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by denying law-enforcement agencies the fruits of any illegal actions on their part.

Both H. R. 8600 and S. 2432 make possible the use of coercive practices by the police. Except for the most hardened criminal, any person who is held incommunicado by the police without an opportunity to consult with friends or counsel, without any formal charges having been brought and without being informed of his legal rights, is placed in an atmosphere of coercion. Whether the period of detention is the 12 hours permitted by the Senate bill or the unlimited period sanctioned by the House bill, by enacting such proposals Congress would place the stamp of approval on questioning carried on in an atmosphere of intimidation.

When the police are permitted to question a lone suspect, it is not the professional criminal whose rights are most likely to be in danger. It is the young, ignorant or inexperienced person, unused to police and court procedures, who is likely to be intimidated. To the ordinary citizen, arrest and detention, even if only for a traffic violation, is a frightening experience. It is these people-the innocent and those unable to protect themselves-for whom the protection of all criminal rules, including the McNabb-Mallory rule, is fashioned.

Would elimination of the exclusionary rule make law enforcement operations more efficient? There is much reason to believe that it would not. Many experts in the field of criminal procedure have suggested that an efficient police force is one which actively rounds up evidence that can be used against criminals in court, instead of attempting to extract the evidence from the defendant by questioning. The committee on the bill of rights of the American Bar Association quoted with approval this statement from Dean Wigmore: "

"*** any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources."

But even if extracting confessions by coercive means were a more efficient system of law enforcement, that would not justify its acceptance in this country. The police systems of Soviet Russia and other dictatorships may be efficient, but no American wants to pay that price for efficiency. When the American Bar Association considered the precise problem under discussion in 1944 when the McNabb decision was under debate, its committee adopted these views:

"Yet efficiency in the pursuit of the guilty is not the sole test of criminal procedure. The long tradition of the common law has built up institutions and devices which plainly hamper efficiency to some extent. These are designed to protect the innocent against powerful Government officials, and also to insure that all prisoners, whether innocent or guilty, shall be treated in ways that fit in with the kind of society we want. For example no matter how efficient a Gestapo or a GPU might be, we do not like that sort of thing in the United States. It is particularly important to remember that criminal procedure is not framed just to reach obviously guilty men; it must take care of the innocent and the doubtful cases too." "

We live in an age when many Americans fear increasing encroachment by the Federal Government into the affairs of individuals. New forms of regulatory statutes carrying criminal penalties for violation have greatly extended the reach of criminal law. Questions as to the admissibility of statements made to investigators may arise in income tax cases as well as rape cases. Thus it is important to all our citizens that the rights of the accused be protected.

There could be no objection to a full and open discussion of the problems of law enforcement touched on in the subcommittee hearings, with the object of revising some aspects of our criminal procedure if that is deemed desirable. Such revision would, of course, be limited by the procedural requirements of the Constitution, and any proposals made in the interest of law enforcement would have to be weighed against the desirability of maintaining the American tradition that citizens can be arrested only on probable cause and can be held only upon the order of a judicial officer.

Within these limitations, however, it may well be that changes could be made in the present rules that would resolve some of the problems that now trouble those who enforce our laws. But this is a matter that requires the most careful study. The Judicial Conference, the Department of Justice, and other official

88 Wigmore. Evidence (3d ed., 1940), sec. 2251, quoted in a statement by the committee on the bill of rights of the American Bar Association on H. R. 3690, p. 7 (1944). 9 Statement, supra, n. 8.

bodies are well equipped to make such a study. Well-informed, painstaking consideration, and not hasty passage of one of the pending bills, is needed if an adequate solution to the problem of police detention and questioning of suspects is to be achieved.

EXHIBIT 21

Hon. THOMAS C. HENNINGS, Jr.,

THE BOSTON COLLEGE LAW SCHOOL,
Brighton, Mass., March 12, 1958.

United States Senate, Washington, D. C.

DEAR SENATOR HENNINGS: Today's New York Times reports that your Subcommittee on Constitutional Rights of the Judiciary Committee is conducting hearings on a bill which would have the effect of overruling the doctrine applied by the Supreme Court in Mallory v. United States (354 U. S. 449).

I find myself unable to get to Washington to testify in person, but I would appreciate your placing this letter in the record of the subcommittee.

In my opinion it would be most unfortunate if the present gulf of intemperate and irresponsible criticism of the Supreme Court were to have the effect of washing away one of our most effective assurances against the development of a police state. Let us bear in mind that Mallory did not create new basic law. It was, in essence, application of the salutary rule announced 15 years earlier (McNabb v. United States, 318 U. S. 332) by a Court only three of whose members survived to participate in Mallory.

It is all every well to make pious protestations about effective law enforcement, but let us face the ugly fact that, if the proposed legislation is enacted, the practical result will be that the police will be given a license to arrest and question on the basis of mere suspicion, and “probable cause" as a criterion of official action will disappear from the law. Remember that, in the Mallory case, the police suspicions extended also to the defendant's two nephews, and they were arrested and detained for hours without the slightest shadow of justification.

Sincerely yours,

JOHN D. O'REILLY, Jr.,
Professor of Law.

EXHIBIT 22

(The Northwestern University Law Review, owner of the copyright, has courteously granted permission to the Senate Constitutional Rights Subcommittee to reprint the following material as part of these hearings.)

Northwestern University
LAW REVIEW

VOLUME 52

MARCH-APRIL, 1957

NUMBER 1

Are the Courts Handcuffing the Police? A Symposium on Law and Police Practice

A vital problem facing the courts and legislatures is the protection of individual civil liberties without unduly restricting the efficient operation of law enforcement agencies. The increasing incidence of criminal offenses together with current progress in developing instruments for observation and detection emphasize the present importance of this problem.

The basic issues are clear: Individual civil liberties must be safeguarded in accordance with constitutional mandates. These safeguards, however, must not be so severe that they make law enforcement impossible or police "lawlessness" inevitable.

Six distinguished authorities in criminal law and police administration present in this symposium the basic considerations for resolving the problem in the areas of Arrest, Search and Seizure, and Interrogation and Confessions.

The argument for less restriction of law enforcement is supported by James Francis Coakley, District Attorney of Alameda County, California; Virgil W. Peterson, Operating Director of the Chicago Crime Commission; and Fred E. Inbau, Professor of Law at Northwestern University School of Law.

Professors Caleb Foote of the University of Pennsylvania, and Monrad G. Paulsen of Columbia University, and the Honorable Samuel S. Leibowitz of the Kings County Court, Brooklyn, New York, broadly support the continuance of present restraints upon law enforcement agencies.

The Review gratefully acknowledges the cooperation of the Committee on Criminal Law of the American Bar Association, through its Chairman, Mr. Walter J. Armstrong, and Secretary, Mr. Rufus F. King, in furnishing transcripts of its recent discussion on the symposium topic to Mr. Coakley and Professor Inbau, who participated in that discussion.

TH

Law and Police Practice:

Restrictions in the Law of Arrest

By James Francis Coakley*

HERE is abundant authority to support the thesis that the present laws of arrest unduly hamper police in the performance of their duties.1 In most states, the arrest statutes are outmoded; moreover, the comparatively small amount of case law on the subject is conflicting, inadequate and, in many respects, likewise outmoded. With the exception of Louisiana, Wisconsin, and the four states which have adopted the Uniform Arrest Act, our laws of arrest have remained virtually unchanged since they were first spawned as part of the common law of twelfth century England."

District Attorney, Alameda County, California. Professor of Law, St. Mary's College Lecturer in Criminology, University of California. A.B., St. Mary's Coll.; J.D., Univ. of California.

1. In the past twenty-five years, more than one hundred articles have dealt with the subject of arrest. Among those which emphasize the practical problems presented to the police are: Adams, The Cahan Case: The Exclusionary Rule, and the Law of Search, Seisure and Arrest in California, 3 U.CL.A.L. Rev. 55 (1955); Hall, Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. Rev. 345 (1936); Hall, Legal and Social Aspects of Arrest Without a Warrant, 49 HARV. L. Rev. 566 (1936); Moreland, Some Trends in the Law of Arrest, 39 MINN. L. REV. 479 (1955); Ploscowe, A Modern Law of Arrest, 39 MINN. L. Rev. 473 (1955); Waite, The Law of Arrest, 24 TEX. L. REV. 279 (1946); Waite, Some Inadequacies in the Law of Arrest, 29 MICH. L. Rev. 448 (1931); Warner, Investigating the Law of Arrest, 26 A.B.A.J. 151 (1940); Warner, The Uniform Arrest Act, 28 VA. L. Rev. 315 (1942); Yankwich, The Lawless Enforcement of the Law, 9 So. CALIF. L. Rev. 14 (1935); Comment, Some Proposals for Modernizing the Law of Arrest, 39 CALIF. L. REV. 96 (1951). See also Wechsler, American Law Institute, Some. Observations on its Model Penal Code, 42 A.B.A.J. 321 (1956).

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For a popular treatment of the subject, see Waite, Why Do Our Courts Protect Criminals? Reader's Digest, Jan. 1956, p. 49. The author states that .. judges too often show greater concern with the behavior of police than with the prevention of crime and the punishment of offenders." Id. at 51.

2. BOK, PROBLEMS IN CRIMINAL LAW 5 (1955): "It may seem odd that the profession has not been more concerned over the idea, expressed as long ago as 1912 by Mr. Justice Taft, that the criminal law is medieval.

It has been said that the law of arrest in California is in such an unsettled and confused state that it is impossible in many cases to determine whether a particular arrest is lawful, and that California arrest statutes are antiquated and inappropriate for mid-twentieth century law enforcement." Adams, supra note 1, at 57, passim

Warner, Investigating the Law of Arrest, 26 A.B.A.J. 151 (1940), points out that the Interstate Commission on Crime "... believed that the law of arrest was antiquated."

3. Box, op. cit. supra note 2, at 28: "Only Louisiana has enacted a new penal code with basic changes, followed by Wisconsin, whose draft is now taking its chances in the legislature." See also Wechsler, supra note 1, at 321: "Modern legislative aids are badly needed in the field of penal law as the draftsmen of the Louisiana Code of 1942 or of the recent code revision in Wisconsin will most readily attest."

4. Delaware, Massachusetts, New Hampshire, Rhode Island.

5. The Uniform Arrest Act was promulgated by the Interstate Commission on Crime from discussions and investigations made in 1939. For the complete text, see Warner, The Uniform Arrest Act, 28 VA. L. REV. 315 (1942).

6. See 2 POLLOCK & MAITLAND, THE HISTORY OF ENGLISH LAW 448 (2d ed.

The statutory law of arrest in California is typical of that of most states. The arrest provisions of the California Penal Code, with a few very insignificant changes, are precisely the same today as they were when adopted in 1872.8 They were taken almost verbatim from the arrest provisions of the proposed code of criminal procedure which was reported to the New York legislature in 1850, and those provisions were taken from the common law of medieval England.10 Conditions with respect to law enforcement procedures and methods have changed, of course, since the days of the mace and crossbow.11 The laws of arrest, therefore, should be changed to meet the new conditions and standards of our times.12 There is no justification for the continuance of outmoded laws which benefit the gangster, the hoodlum, the panderer, the narcotics pusher, the professional thief,13 and the criminal entrepreneur more than the law-abiding citizen.14

1923): "On no other part of our law did the 12th century stamp a more permanent impress of its heavy hand than on that which was to be the criminal law of after days." See also id. at 582-84.

7. CAL. PEN. CODE 88 142, 145, 147-50, 196, 813-17, 821-29, 834-51, 852-52.4, 854-55 (1954).

8. Comment, Some Proposals for Modernising the Law of Arrest, 39 CALIF. L. REV. 96, 97 n.4 (1951). Sections 853.1-.4, which were enacted in 1955, represent a departure from California's antiquated rules by providing citation procedures for violations of county ordinances. For a discussion of these sections, see Comment, 44 Calif. L. REV. 561 (1956)..

9. COMMISSIONERS ON PRACTICE and Pleadings REPORT No. 4, CODE OF CRIMINAL PROCEDURE, 158-79 (1849). See, generally, Kleps, The Revision and Codification of California Statutes 1849-1953; 42 CALIF. L. REV. 766 (1954).

10. 10 HALSBURY, LAWS OF ENGLAND 342-54 (3d ed. 1955). See Wilgus, Arrest Without a Warrant, 22 MICH. L. Rev. 541, 673, 798 (1924); Comment, Some Proposals for Modernizing the Law of Arrest, 39 CALIF. L. REV. 96, 97 (1951).

11. For a listing of inventions which have had a great impact on the technique of law-breaking and law enforcement, see Comment, 39 CALIF. L. Rev. 96, 97 (1951). 12. Ploscowe, supra note 1, at 477; Warner, Investigating the Law of Arrest, 26 A.B.A.J. 151 (1940); Wechsler, supra note 1, at 321.

13, See Comment, Shoplifting and the Law of Arrest: The Merchant's Dilemma, 62 YALE L.J. 788 (1953).

14. Ploscowe, supra note 1, at 474, poses the key question: "How far can and should individual liberty be sacrificed so as to provide a greater degree of social security?" It may be answered that any conflict between liberty and order must be decided on its merits in connection with the particular problem. One of the greatest American liberals, Thomas Jefferson, in a letter to Samuel Kercheval, July 12, 1816, wrote that "... laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."

In West Coast Hotel Co. v. Parish, 300 U.S. 379, 391 (1937), Mr. Chief Justice Hughes, in deciding the validity of the minimum wage law of the State of Washington, interpreted the "liberty without due process" clause of the fourteenth amendment of the Federal Constitution to mean that:

In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which

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