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will not only be ineffectual but may actually have a distinctly opposite effect than that which the proponents intended.

There is but one satisfactory solution to our present police problems: an administrative system which will provide for the better selection and training of police who are permitted to function with a minimum amount of political interference.37 To illustrate the point, consider the situation created by the selection (and subsequent promotion) of a police officer on the basis of political considerations alone-a not unusual occurrence even under so-called "civil service." He may not and frequently does not have the intelligence of the average criminal whom he must apprehend and interrogate. Moreover, the officer usually receives no instruction whatsoever, or, if any, of a quality totally inadequate for the proper and effective performance of his duty. When confronted with the task of interrogating a criminal suspect, an officer of this type will not possess the necessary qualifications or know how to conduct a legally proper and psychologically sound interrogation. His only recourse is to use his fists or resort to other physical abuse or threats in an effort to secure a confession. And an individual of this sort is not likely to be affected or to change the manner of his operations because of an indirect attempt toward his “civilization" by the releasing of a criminal offender who had not been promptly taken before a committing magistrate within the time prescribed by statute.

The average police officer is not sensitive to the decision of a court rejecting a defendant's confession. Unlike a judge or a lawyer whose errors may occasion a reversal on appeal, the average police officer whose confession is declared invalid suffers no embarrassment or loss of prestige. Nor need he have any fear of disciplinary action, because the police department afflicted with the laxity and inefficiency which made possible the officer's infraction will not at the same time interest itself in imposing any disciplinary sanctions. It, too, will suffer little or no embarrassment, for by the time the case has been tried in court there is usually little attention paid to the matter in the press. The next case, therefore, will be handled with the same disregard of consequences as the previous one. The clearance of a case by arrest

87 Justice Harold M. Stephens recognized the crux of the whole problem when he testified before the Judiciary Committee on the Hobbs bill and made the following statement: "The cure for third degree abuses is not in rules of exclusion of voluntary confessions but in improved personnel and facilities for police forces so that character and efficiency and scientific methods rather than brutality will be used to obtain evidence. If an officer is so stupid and brutal as to use thirddegree methods, he will do so, despite rules of exclusion of voluntary confessions from evidence, in order to get leads to other evidence." See Hearings, supra note 23 at 13.

and confession is all that really matters so far as the average policeman is concerned; what happens thereafter is the responsibility of the prosecutor and the courts. Occasionally, however, upon the advice of someone of greater understanding than the officer we have just described, the next time an arrest is contemplated, and circumstances permit, police action will be delayed until a committing magistrate has completed his day's work and gone home for the night. Then an arrest is made about six o'clock in the evening, or one o'clock on a Saturday afternoon, and in this manner circumvent any rule such as that so confidently expounded in the McNabb case.

None of the factors just discussed should warrant judicial consideration, of course, in cases where the courts are called upon to apply tests or rules which were designed for the protection of innocent defendants, as is true regarding the conventional voluntary-trustworthy test of confession admissibility. Where, therefore, the facts and circumstances reasonably indicate the possibility of a false confession, a reversal of the conviction is in order regardless of all other considerations. If such a reversal will have the incidental effect of discouraging the police use of improper methods, well and good. Moreover, if the application of a test designed for the protection of the innocent occasionally results in the acquittal of a person who is perhaps actually guilty, the risk is one which is well warranted by the law's concern over the possibility of convicting the innocent. On the other hand, there is little to recommend a rule which will admittedly release an obviously guilty individual in an effort to indirectly discipline the police, particularly when consideration is giver to the ineffectiveness of such action.

The state courts, for one or more of the reasons previously submitted in criticism of the McNabb case rule, have uniformly rejected the rule when its adoption was urged in state cases. Having their choice to accept or reject the McNabb case rule since no constitutional law principle was involved the state courts have chosen the latter course. They were persuaded to do so by the consideration that "adherence to such a rule would place unnecessary obstacles in the way of detection of crime and result in the acquittal of many a guilty man,"38 and that "society as well as the defendant is entitled to equal protection of the law and to due process of law."39

38 State v. Folkes, 173 Ore. 568, 150 P. (2d) 17 (1944).

89 State v. Zukanskas, 132 Conn, 450, 45 A. (2d) (1945).

For other state cases in point see Inbau, Lie Detection and Criminal Interrogation (1948) 169.

The Way Out

The many reasons supporting the rejection of the McNabb rule in state cases also warrant an abandonment of the rule in federal cases. In fact there is much less need for the "civilization" of federal law enforcement agencies than there is for the "civilization" of local law enforcement bodies. The Federal Bureau of Investigation, for instance, makes a far better selection and better trains its officers than almost any local law enforcement.body. Moreover, the abuse of criminal suspects is far less prevalent in federal cases than in state cases.

If the Supreme Court in Upshaw v. United States is unwilling to overrule the McNabb case, the rule should at least be subjected to considerable modification. Since the present Rule 5b of the Federal Rules of Criminal Procedure supersedes all federal statutory provisions regarding arraignment and fixes a single standard with greater flexibility (i.e., "without unnecessary delay” in lieu of "immediately" or "forthwith")," the Court may feel more at liberty to move in that direction than would have been the situation under the terminology of the original arraignment statutes. The fact that the Court did not see fit to incorporate the McNabb case rule into its Rules of Criminal Procedure, even though the original committee draft of the Rules included such a provision, is another comforting circumstance. In any event, the least the Court should do short of an abandonment of the McNabb rule itself is to reduce the significance of an infraction of the arraignment statute so as to establish a new rule somewhat midway between the original confession exclusion rule of the McNabb case and the conventional voluntary-trustworthy test of admissibility. This may be accomplished by declaring that while the violation of the arraignment statute will not of itself nullify a subsequent confession, it is a circumstance which may be considered by the trial court or jury in determining whether the confession is voluntary or trustworthy. It might also be made the subject of specific consideration in evaluating the truthfulness of the officer's denial of abusive interrogation practices.

Once the Supreme Court has disposed of the Upshaw case and is no longer faced with that dilemma, it should, at the earliest opportunity, reconsider the "inherent coercion" rule of the Ashcraft case and substitute a rule for the guidance of state officers and courts which will be more intelligible and administratively practicable. Any such new rule should also be brought much nearer to the conventional test of confession admissibility.

40 62 Stat. (1948), 18 USCA §3060 (1948).

EXHIBIT 24

AMERICAN BAR ASSOCIATION

SECTION OF CRIMINAL LAW

Concluding session of the criminal law section, 79th annual meeting, Dallas
Public Library, Dallas, Tex., August 29, 1956

Section chairman, Mr. Walter P. Armstrong, Jr., of the Memphis bar, presided. The subject matter, Are the Courts Handcuffing the Police, was presented in the form of a panel discussion, and Chairman Armstrong presented as the first speaker Chief Carl Hansson, of the Dallas (Tex.) Police Department. Chief Hansson, a member of the Dallas Police Department for almost 23 years, has been its chief since 1945. He is also a past president of the Texas Police Association and of the International Association of Chiefs of Police. Chief Hansson discussed Problems of Law Enforcement.

In opening his discussion, Chief Hansson referred to an article by John Barclay Waite, president emeritus of the Michigan Law School, entitled "Judges and the Burden of Crime." Mr. Waite started his article by saying, "One does not happily charge the judiciary with responsibility for the country's burden of crime, but the responsibility does, in fact, exist. Judges, though they may not encourage crime, interfere with its prevention in various ways. They deliberately restrict police efficiency in the discovery of criminals. They exempt from punishment many criminals who are discovered and whose guilt is evident. More seriously still, they so warp and alter public attitude toward crime and criminals as gravely to weaken the country's most effective crime preventative.”

For years it has been the fashion to place on the shoulders of the police the full burden of blame for the amount of crime in a community. Few people have stopped to consider the unfairness of this or view with the same critical eye the competence and efficiency of the other links in the law-enforcement chain-the district attorney, the grand jury, the court, the penal institution, the legislature, and the board of pardon and parole.

One of the greatest deterrents to crime a community can have is a carefully selected, numerically adequate, property equipped, well managed, and well trained police department. Only a very few departments meet all these qualifications. But even if one does, its powers are limited; it can investigate, file charges, arrest and present the evidence it has gathered when and if it is ever called for. The police have no corrective or punitive powers; these are prerogatives of other agencies. The police merely initiate the action. After that, the case is in the hands of the two agencies that can do more than any others to stop crime-the district attorney and the court.

The most powerful figure in law enforcement today is the district attorney. He possesses investigative powers that transcend those of the police; he sits with the grand jury and recommends for or against indictment; through his competence or incompetence a case is won or lost.

The effect is apparent of having a district attorney who is intelligent and vigorous but not honest; or who is vigorous and honest but not intelligent; or who is intelligent and honest but lazy. It is enough to say that the district attorney is the link between the police and the court and it is expected that he will be a strong link.

The object of punishment is to suppress crime and reform the offender. Since the power to punish is reserved to the courts, it naturally follows that a great share of the responsibility for public protection-the suppression of crime-rests squarely upon the shoulders of the judiciary. The criminal does not particularly fear an arrest if he knows that nothing else will follow. What he fears is a good stiff penitentiary sentence. Swift trial, certainty of punishment, punishment suited to fit the needs of the crime, the criminal, and the community are deterrents of the highest order. But how often is the constitutional guarantee of swift trial invoked? Usually only when a heinous crime of rape, or murder, or robbery has been committed. As a rule, the professional criminal makes his bond, gets caught again, makes his bond, has his case reset and reset again and again before he is ever brought to trial. A human wolf is turned loose to prey on the public again. The police are handcuffed in that they must devote time that should be spent on the uncaught to trying to prevent further crimes by one whose only acquaintance with work, as honest men know the term, was gained during his last term in the penitentiary.

Often trial judges exclude evidence vital to securing a conviction because they fear a reversal if the defense should appeal. The jury is not permitted to hear the truth and has no choice but to return a verdict of not guilty. The State has no right of appeal, and another guilty criminal is turned loose to steal again. Many times our judges, in denying the admission of evidence, or in reversing a conviction, evince greater interest in the conduct of the police than with the prevention and suppression of crime and the punishment of criminals. Much of the confusion today lies in the field of searches and seizures. Almost daily, the police officer is faced with situations where immediate action is necessary to prevent the escape of a criminal or the possible loss of important evidence. Then, because of a jurist's interpretation of the word "unreasonable” in the fourth amendment, a conviction is reversed and an enemy of society goes on his way rejoicing. It is the greatest injustice, when a police officer, acting in good faith and in accordance with his training and experience, sees a guilty criminal go free because of an unanticipated technicality—and in addition, have his motives impugned and his integrity maligned.

During the past 15 years, the Supreme Court of the United States has acted on a score of police cases involving searches and seizures. Each case resulted in a split decision. Where is the foul line? Even the umpires cannot decide. The interpretation of "unreasonable" has narrowed until today the police officer is very definitely handcuffed in his effort to obtain proof of wrongdoing. His training and experience are vitiated and nullified and he wonders who knows what the score is.

The courts are not reluctant in letting it be known that the conviction was reversed as a rebuke to the police. Who has gained when the Court struck a blow for the freedom of the criminal? No one but those interested in the commission of crime. The fourth amendment should not be permitted to become an effective escape hatch for the criminal.

While we must always be conscious of the rights of the accused, we must never lose sight of the rights of those who have suffered at the hands of the criminal. Justice is a two-edged sword that must cut both ways. Judicial castigation of the police seems to be the order of the day.

One justice, in commenting on the use of a miniature transmitted on the person of a narcotic agent who posed as a buyer to a narcotic peddler, referred to it as "dirty business" and felt that it made for lazy and not alert law enforcement. Is dope peddling a clean; legitimate business?

In another instance, the thoroughness with which Federal officers conducted a search was characterized as "odious." Looking through a transom to observe the actions of criminals in the act of violating the law is considered most reprehensible.

Because our courts are held in high esteem, such comments have an adverse effect on public attitude toward the police, said Chief Hansson.

When the exclusionary rule was applied to the Cahan case in California last year, an assistant attorney general for that State called it the Magna Carta for the criminals. Crime statistics indicate he is right. Since the first of the year, there has been a 36.5 percent increase in crime in Los Angeles over the same period in 1955. The courts hold that a search is not made legal by what it turns up. If evidence of criminal activity is not there, it cannot be turned up. The rule sets at naught police training and police knowledge of criminals and their methods. Many States have adopted the exclusionary rule to the joy of the criminal and the detriment of society.

In January of this year, the Supreme Court reversed a court of appeals affirmation of a district court's denial of an injunction against a Federal officer testifying in a State case. The majority opinion comments: "In this posture we have then a case that raises not a constitutional question but one concerning our supervisory powers over Federal law-enforcement agencies." Justice Harlan and three other Justices dissented: "The holding that an injunction should issue against making available to New Mexico the evidence and testimony in question is rested on this Court's 'supervisory powers over Federal law-enforcement agencies.' So far as is known this is the first time it has been suggested that the Federal courts share with the executive branch of Government responsibility for supervising law-enforcement activities as such."

Since the United States Supreme Court now claims supervisory powers over Federal law-enforcement agencies, I wonder, says Chief Hansson, if our State courts will claim supervisory powers over local police.

The criminal has had his Bill of Rights for a century and a half. Is it not time the public upon whom he preys was considered as also having rights?

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