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Chairman Armstrong next introduced Judge Dwight L. McCormack of the Texas District Criminal Court whom he said would speak as a judge but from more than a judge's background. Judge McCormack was an agent of the FBI for over 15 years and a practicing attorney for 11 years.

Judge McCormack observed that good law enforcement is only as effective as the courts administering the law. That the courts bend a little toward the defendant because he resolves every reasonable doubt in favor of the defendant. There is no ruling that a court can make on any phase of examination of the conduct of the trial that has not been prescribed by statute. Any time the judge goes outside the statute, he is commiting a reversible error.

The judge stated that "it is only natural that the defendant's attorney is going to try to discredit the policeman before the jury. That is the only hope he has." Any attempt by the court to curtail the examination of a witness by the defendant would be a comment on the evidence and be reversible error.

It is the people who are handcuffing the police. Children are taught to be afraid of the police-they are threatened with police action. Policemen are the finest men in the world, and everyone loves them, when they need them.

If you want good law enforcement bring it home to the people by publicity. The people are entitled to know what is being done in law enforcement. There is no more effective means than television, radio, and the press. Why should a judge who can handle a trial, who has the ability to administer a court, object to the publicity unless it is to cover up inefficiencies and deficiencies on his part? Judge McCormack conceded that there is one place the courts could take the handcuffs off the police, perhaps, and that is by putting adequate sentences and fines on gamblers to destroy the source of funds for organized crime.

Chairman Armstrong opened the meeting for questions following the talk by Judge McCormack.

Mr. Charles Jesmer, of Dallas, asked Mr. Coakley if he considered the decision of the Supreme Court in the Cahan case holding a violation of due process to extract from a suspect some evidence by stomach examination. Mr. Coakley replied that he could understand the reaction of the Supreme Court in their language to the effect that it was indecent, and so forth. But legally he felt the Supreme Court was stretching the doctrine of due process beyond what historically it was intended for. In that case the defendant was a notorious peddler of narcotics and when the police took him in custody they had plenty of probable cause. As they arrested him he swallowed the heroin. There were two reasons for taking the evidence the way they did. One was to save his life—if there was enough heroin there, he may have died. The other reason was to obtain the evidence. It may have been in bad taste but it was carefully controlled in a hospital by doctors who knew their business.

Professor Inbau, in response to a question by Mr. Les Tremaine of Dallas as to who is going to decide how long a detained person can be interrogated, replied that to be realistic there should be some legislation authorizing the detention for purposes of investigation for a limited period of time. That some period that is considered reasonable could be adjusted to the particular type of offense. Mr. Walter Green of Hyattsville, Md., inquired of Professor Inbau if trials were getting to be more of a search for truth or more of a forensic duel by lawyers. Professor Inbau replied that the problems are much more complex than they used to be formerly. That the difficulty comes from the fact that we are still insisting the police operate under some antiquated rules, the law of arrest for example, and search of an arrested person and to that extent we are muddling the waters in the courtroom.

Considerable discussion was had during the open forum with reference to Mr. Coakley's remarks with the result that Mr. Coakley went into greater detail in connection with several points, particularly in regard to the questioning of accused persons immediately following the arrest.

The meeting was adjourned by Chairman Armstrong and the business session of the criminal law section followed.

EXHIBIT 25

(The Oklahoma Law Review, owner of the copyright, has courteously granted permission to the Senate Constitutional Rights Subcommittee to reprint the following material, from vol. 2, Oklahoma Law Review, August 1949, pp. 337-351, as part of these hearings.)

Criminal Law: Evidence: Admissiblity of Confession
Made Before Arraignment

In a recent decision, Upshaw v. United States, 335 U.S. 410, 69 Sup.Ct. 170, 93 L.Ed. *129 (1948), the Supreme Court of the United States held inadmissible a confession made during a detention rendered unlawful because of the failure of the arresting officer to take the accused before a committing magistrate before a verdict, the defendant is entitled to the presumption that such misconduct has been prejudicial to him, . . . ." The state was held not to have met its burden of overcoming the presumption.

22 50 Okla.Cr. 274, 280, 281, 296 Pac. 764, 767 (1931). The bailiff told the jury that the witness Price had been arrested. The court held, “. . . in view of the absence of any showing that the statement influenced the jury, it did not prejudice the rights of the defendants." In Chappell v. State, 44 Okla.Cr. 267, 280 Pac. 639 (1929), during the trial, one of the jurors remained alone with the bailiff while the others went through the jail. The court held the burden was upon the defendant to show he suffered prejudice. In Forester v. State, 36 Okla. Cr. 111, 252 Pac. 861 (1927), the bailiff separated the jury by taking some of them to the lavatory. The court stated in the syllabus, "The legal presumption is that jurors perform their duty in accordance with the oath they have taken and that presumption is not overcome by proof of the mere fact that during an adjournment of the trial the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial...."

28 The instant case cites some of these prior cases with approval but does not comment on the difference in the treatment of the burden of proof.

24 United States v. Sorcey, 151 F.2d 899 (C.C.A. 7th 1945); Wheaton v. United States, 133 F.2d 522 (C.C.A. 8th 1943).

25 People v. Cain, 365 Ill. 494, 6 N.E.2d 1013 (1937); State v. Soltau, 212 Minn. 20, 2 N.W.2d 155 (1942); State v. Verde, 66 R.I. 33, 17 A.2d 39 (1940).

26 Spooner v. State, 56 Ga.App. 618, 193 S.E. 482 (1937); People v. Chambers, 279 Mich. 73, 271 N.W. 556 (1937); Holder v. State, 140 Tex.Cr. 55, 143 S.W.2d 613 (1940).

27 Ballard v. State, 28 Ala.App. 346, 184 So. 259 (1938); People v. Cain, 365 Ill. 494, 6 N.E.2d 1013 (1937); State v. Harrington, 148 Kan. 603, 83 P.2d 659 (1938); State v. Soltau, 212 Minn. 20, 2 N.W.2d 155 (1942); State v. Evans, 48 N.M. 58, 145 P.2d 872 (1944).

without unnecessary delay. The accused was arrested on a Friday at 2 a. m., but was not taken before a magistrate, as required by the Federal Rules of Criminal Procedure.1 After a detention of thirty hours he confessed numerous larcenies. He was convicted and on appeal,2 the conviction was affirmed, the court holding that the confession was admissible. But the Supreme Court reversed these decisions, solely upon the ground that the accused had not been taken before a magistrate without unnecessary delay.

History and Meaning of the McNabb Rule

In order to comprehend the full import of the Upshaw case, it is necessary that one understand several prior decisions. The holding in that case was based upon a doctrine expounded for the first time in the case of McNabb v. United States. Some illiterate, untravelled mountaineers were arrested and held incommunicado in the investigation of the murder of a revenue officer. They were placed in a detention room devoid of all furniture and kept there for fourteen hours. They were questioned alone and in groups at various intervals for a period of about forty-eight hours. One of the defendants was forced to strip before a group of officers. When told that the other defendants had accused him of the murder, he confessed. The Supreme Court held the confession inadmissible for the reason that the defendants had not been taken before a committing magistrate in accordance with the rule above referred to, and the convictions were reversed. The defendants had not raised the question of prolonged detention before commitment and therefore the record did not show when the defendants had been arraigned, but the Court concluded that they had not been. The Court said, "Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in wilful disobedience of the law." 194

It should be noted that the reversal was not based upon any violation of the due process clause of the Fifth Amendment. The Court expressly refrained from deciding any constitutional issues, but rather based its decision upon its power to supervise the administration of criminal justice in the lower federal

1 FED. R. CRIM. P., 5(a) (1948): “Appearance Before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith." This supersedes 28 STAT. 416 (1894), 18 U.S.C. § 595 (1940).

2168 F.2d 167 (App.D.C. 1948).

318 U.S. 332, 63 Sup.Ct. 608, 87 L.Ed. 819 (1943).

4 Id. at 345, 63 Sup.Ct. at 615, 87 L.Ed. at 826. Anderson v. United States, 318 U.S. 350, 63 Sup.Ct. 599, 87 L.Ed. 829 (1943), which was decided the same day as the McNabb case, also applied this rule.

courts." Therefore, the authority of the decision under the principle of stare decisis is confined to federal cases, since the Supreme Court has no power to prescribe rules of evidence for the state courts."

It is immediately apparent that such a decision must have an extensive and confining effect upon the methods to be used by law enforcement personnel. The judicial approach should be in a spirit of cooperation with police officials in the administration of justice, for the task of preventing and punishing the commission of crime is both difficult and dangerous. For the most part it is performed in a spirit of public service to the community and it should not be made more difficult than is necessary in order to secure justice to an individual accused of violating our laws.

The admissibility of a confession before the McNabb case depended upon whether the confession was testimonially trustworthy, and this was commonly determined by deciding whether the confession was voluntary. While these two tests grew up separately, the courts seem to apply them together and hold that an involuntary confession is inadmissible because it is unreliable as evidence. Promises or threats will not render a confession "involuntary" unless they form the motive which induced the defendant to make the confession, and thus the voluntary test becomes only a part of the trustworthy test. In State v. Novak, the court said, "The reason for the rule excluding involuntary confession is not based on the thought that truth thus obtained would not be acceptable, but because confessions thus obtained are unreliable. . . . The essence of the rule is that when the confessions are made the conditions as to hope or fear are such as to make them unsafe as evidence."8

...

And a confession was not to be excluded because of any illegality in the

5 McNabb v. United States, supra note 3, at 340, 63 Sup.Ct. at 613, 87 L.Ed. at 824: "Judicial supervision of the administration of criminal justice in the Federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence." 6 Hebert v. Louisiana, 272 U.S. 312, 47 Sup.Ct. 103, 71 L.Ed. 270 (1926).

"

7 Wilson v. United States, 162 U.S. 613, 622, 16 Sup.Ct. 895, 899, 40 L.Ed. 1090, 1096 (1896): "While some of the adjudged cases indicate distrust of confessions which are not judicial, it is certain, . . . that the rule against their admissibility has been sometimes carried too far, and in its application justice and common sense have too frequently been sacrificed at the shrine of mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character.... while from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution, a deliberate, voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession.' . . . In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort."

8 109 Iowa 717, 79 N.W. 465, 469 (1899). See Harbld v. Oklahoma, 169 Fed. 47 (C.C.A. 8th 1909); People v. Piner, 11 Cal.App. 542, 105 Pac. 780 (1909); Roesel v. State, 62 N.J.L. 216, 41 Atl. 408 (Ct.Err. & App. 1898); Notes, 18 L.R.A. (N.S.) 772 (1909), 50 L.R.A. (N.S.) 1077 (1914); 3 WIGMORE, EVIDENCE § 822 (3d ed. 1940).

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method by which it was obtained, provided the illegality did not render it testimonially untrustworthy.

The McNabb decision did not mean that the Supreme Court has completely discarded the voluntary-trustworthy test of admissibility. If the confession is induced by sufficient coercion, then it is excluded under the due process clauses of the Fifth and Fourteenth Amendments.10 The new rule is to be applied only when a confession is in fact voluntary, for if it is involuntary, it is excluded under the older rules and the application of this new rule is unnecessary.

Much confusion followed in the wake of the McNabb case.11 The paramount issues arise from the conflict of the desire to protect the accused from practices which might terminate in his unjust conviction on the one hand, and on the other the desire that the guilty should be punished and that society should be protected from the ravages of crime.

It was not understood whether that decision was based solely upon the prolonged detention before arraignment, or whether it was based upon the prolonged detention in addition to the accompanying coercive methods practiced by the federal officers in obtaining the confession. This confusion was cleared up in one respect but added to in another by United States v. Mitchell.12 In that case the accused confessed his guilt immediately after his arrest, but he was held eight days before he was arraigned. He later contended that the illegal detention rendered his confession inadmissible under the McNabb rule. The Supreme Court rejected this contention and held that if the illegal detention is subsequent to the making of the confession, the confession is admissible and the McNabb rule has no retroactive effect which renders inadmissible a confession made immediately following arrest. Thus the rule was partially clarified. But in its opinion, the Court had this to say, "Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand."18 This statement indicates that both of these elements are necessary to an application of the rule. Mr. Justice Reed wrote a concurring opinion in which he stated that the prolonged detention without commitment is only one factor which should be considered in determinOlmstead v. United States, 277 U.S. 438, 48 Sup.Ct. 564, 72 L.Ed. 944 (1928); 3 WIGMORE, EVIDENCE § 823(b) (3d ed. 1940).

10 Haley v. Ohio, 332 U.S. 596, 68 Sup.Ct. 302, 92 L.Ed. 224 (1948); Malinski v. New York, 324 U.S. 401, 65 Sup.Ct. 781, 89 L.Ed. 1029 (1945); Ashcraft v. Tennessee, 322 U.S. 143, 64 Sup.Ct. 921, 88 L.Ed. 1192 (1944); Lisenba v. California, 314 U.S. 219, 62 Sup.Ct. 280, 86 L.Ed. 166 (1941); Ziang Sung Wan v. United States, 266 U.S. 1, 45 Sup.Ct. 1, 69 L. Ed. 131 (1924).

11 Inbau, The Confession Dilemma in the United States Supreme Court, 43 ILL. L. REV. 442 (1948); Waite, Police Regulation by Rules of Evidence, 42 MICH. L. REV. 679 (1944); McCormick, Some Problems and Developments in the Admissibility of Confessions, 24 TEX. L. REV. 239 (1946); Notes, 18 CONN. B. J. 166 (1944); 38 J. CRIM. L. 627 (1948). 12 322 U.S. 65, 64 Sup.Ct. 896, 88 L.Ed. 1140 (1944).

13 Id. at 67, 64 Sup.Ct. at 897, 88 L.Ed. at 1142.

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