CONFESSIONS AND POLICE DETENTION FRIDAY, MARCH 7, 1958 UNITED STATES SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS Washington, D. C. The subcommittee met, pursuant to call, at 10:30 a. m., in room 457, Senate Office Building, Senator Thomas C. Hennings, Jr. (chairman of the Senate Judiciary Subcommittee on Constitutional Rights) presiding. Present: Senator Hennings. Also present: Charles H. Slayman, Jr., chief counsel and staff director; J. Delmas Escoe and Walter H. Maloney, Jr., assistant counsel. Senator HENNINGS. The committee will please come to order. I would first like to read a general statement on the subject matter under discusion on which we are going to have testimony this morning. The subject of police detention prior to arraignment raises many vexing and difficult problems in the field of constitutional rights. It involves a continuing examination of our concept of due process of law as well as other guaranties in our Constitution designed to safeguard the basic rights of all Americans-the guilty as well as the innocent. Among these, of course, are the right against self-incrimination, the right to legal counsel, and the requirement that arrests be made only upon probable cause. These constitutional protections are dissipated to a great extent if they are denied to persons initially detained by law enforcement officers and are withheld until a time when the need for them is long past. It is our concern for the protection of these rights which is the reason for these hearings to be conducted today and next Tuesday, March 11. Specifically, we are interested in the arrest and detention of suspects, and confessions obtained during such periods of detention, the basic law of which was first spelled out for Federal lawenforcement officers by the Supreme Court of the United States 15 years ago in the case of McNabb v. United States (318 U. S. 332 (1943)). The doctrine in this case, that confessions obtained from prisoners while they are illegally detained are inadmissible as evidence of the suspect's guilt, has been reaffirmed by the Supreme Court several times since, most recently in the case of Mallory v. United States (354 U. S. 449, decided June 24, 1957). In 1946, pursuant to an act of Congress, the Supreme Court of the United States promulgated the present Federal Rules of Criminal Procedure, applicable in all United States district courts. These 1 rules were specifically approved by Congress in 1948 when it reenacted title 18 of the United States Code into positive law. Implicitly, Congress thereby sanctioned the rule of the McNabb case. Rule 5 (a) of the Federal Rules of Criminal Procedure requires all Federal law-enforcement officers to bring arrested persons "without unnecessary delay" before a committing magistrate. Following its precedent, laid down in the McNabb case, the Supreme Court has refused to allow the admission into evidence of confessions taken during periods of unnecessary delay between arrest and arraignment. It was this rule that was affirmed recently in the Mallory case and which is often referred to as the Mallory rule, although it could more properly be called the McNabb-Mallory rule. The Subcommittee on Constitutional Rights is aware that the Supreme Court decisions in this critical and delicate area have been criticized as placing a difficult burden upon the investigative activities of Federal law-enforcement officers. The subcommittee is today and next week, receiving evidence on this point, as well as testimony concerning the constitutional "due process" right of the citizen to be free from arbitrary arrest and imprisonment. I would like to add, if I may be indulged a personal reference, that this whole problem is and has been of particular interest to me as I spent some 8 years of my life, 6 of those years as a trial prosecutor in the felony division of the criminal courts of the city of St. Louis, back in what we think of as the "gang days," the days when highly organized crime existed in the twenties and early thirties. I was later elected district attorney of the city of St. Louis. So I have considerable sympathy and certainly know firsthand the difficult problems that face those who are protecting society against felons and predatory individuals and organizations. Now there are a great number of varying points of view on this complicated subject of detention prior to arraignment. And today we are indeed honored and happy to have several outstanding spokesmen on many of these points of view. It now gives me great pleasure to present, and ask that he come forward for the purpose of testifying, the Honorable Alexander Holtzoff, United States district court judge for the District of Columbia, who served as secretary of the Advisory Committee to the United States Supreme Court in preparation of the Federal Rules of Criminal Procedure governing criminal cases in district courts of the United States. Judge Holtzoff, we are very happy to have you here today, sir. You may proceed in any manner that you please, sir-either read your statement, Judge, or intersperse it with your own comments as you go along or add to it extemporaneously in any way you please. STATEMENT OF HON. ALEXANDER HOLTZOFF, UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA Judge HOLTZOFF. I thank you for your courtesy. I am appearing at this hearing in response to your gracious written invitation to testify on the subject, Confessions and Police Detention. I would have deemed it inappropriate as a judge to appear here on my own initiative, but I feel that it would be equally inappropriate for me to fail to respond to your request for my views. The subject of confessions plays an important part in the administration of the criminal law. Ordinarily, a person does not freely and voluntarily confess to the commission of a crime, unless he is in fact guilty. There are rare exceptional instances, of course, in the case of some weakminded persons or of persons who have some ulterior motives. Ordinarily, however, a voluntary confession is properly regarded as evidence of the strongest type to connect the accused with the commission of a crime. Of course, there must be independent evidence of the fact that a crime has been committed, what the law calls corpus delicti. Until recently, the test of the admissibility of a confession was solely whether it was voluntary. By voluntary is meant that it was not obtained, in whole or in part, either by duress or by inducements. Duress, of course, is not limited only to physical force or physical abuse, but includes as well mental or moral pressure, such as a prolonged grilling, or similar methods. The law banned confessions secured by duress because methods of this type are obviously abhorrent and are properly regarded as contrary to civilized standards. Moreover, the probative value of confessions obtained by such means is highly questionable. Confessions improperly obtained may be unreliable. For a similar reason the law excludes confessions obtained by inducements. On the other hand, a voluntary confession freely and willingly made, no matter when or under what circumstances, has always been regarded as admissible in the Federal courts, until recently. The sole test of admissibility was invariably whether the confession was voluntary. To exclude voluntary confessions on any ground whatsoever is in my humble judgment detrimental to the cause of justice and permits guilty persons to escape conviction. The rule has worked well. On the one hand, it safeguards defendants against possible oppression, and on the other' hand, it protects the public by permitting the use of the strongest kind of evidence. An entirely different rule of law disconnected from the question of confessions, provides that a person who is arrested must be brought before a committing magistrate without unnecessary delay. It should be emphasized that this is not a constitutional requirement. Preliminary hearings before committing magistrates are not required by the Constitution and do not constitute any part of constitutional due process. They were unknown in common law. In fact, it is my understanding that there are some States in which such a hearing is at times held a considerable period after arrest. The Federal requirement, to which I have just referred, is merely a rule of procedure embodied in rule 5 of the Federal Rules of Criminal Procedure. Until recently there was no connection between the test of admissibility of a confession and the requirement that an arrested person be taken before a committing magistrate without unnecessary delay. As a matter of fact, there is no inherent or logical relation between them. The Federal Rules of Criminal Procedure were drafted by an Advisory Committee appointed by the Supreme Court of the United States. The Committee considered and rejected a proposal that if an arrested person is not brought before a committing magistrate without unnecessary delay, then a confession or any statement made by him during the period of undue delay should be rendered inadmissible on that ground alone. The Advisory Committee, of which I was a member as well as secretary, was of the opinion that this proposal, which was rejected, would impose too great a penalty for failure to comply with a mere procedural requirement, and further than that would visit the penalty on the public rather than on the official who failed to comply with the rule. Recently, the rule of evidence governing the admissibility of confessions in the Federal courts was changed by judicial decisions, and it has been held that even a voluntary confession should be excluded at the trial if the arrested person was not brought before a committing magistrate without unnecessary delay and the confession was made during such period of delay. This is a new rule of evidence which, of course, it is within the power of the Supreme Court to evolve by judicial decisions. It is equally within the power of the Congress to change this principle by legislation. The new doctrine often unnecessarily blocks the work of the police and other investigative agencies and at times leads to acquitting the guilty. It is not necessary for the proper and legitimate protection of the accused and it may seriously hamper the administration of justice and interfere with the protection of the public. Turning again to the rule regulating preliminary hearings, there is no requirement that the arrested person be taken before a magistrate "forthwith" or "immediately." The Advisory Committee deliberately after careful consideration chose the phrase "without unnecessary delay." These words were used by the Committee, as appears from its notes, as being synomymous with "within a reasonable time." In other words, it was the intention of the Advisory Committee that the rule requiring the bringing of a prisoner before the committing magistrate should require that to be done within a reasonable time after the arrest. It is frequently necessary to make an arrest on probable cause and yet further investigation may be necessary in order to make a prima facie case at a hearing. To say that no arrest should take place under such circumstances is not realistic. In fact, the law has always permitted arrests to be made. on probable cause in cases of felonies. Otherwise, a guilty person might flee while the investigation is in progress. After a person is arrested, additional investigation may be necessary. Several hours may elapse before the witnesses can be reached and are available and can be brought to confront and identify the defendant. It is entirely proper for the arresting officer to question the prisoner. To do so is not contrary to any principle of abstract justice, provided, of course, no intimidation or other improper methods are used in the course of the interrogation. If the prisoner gives some information in the course of the questioning, which can be promptly verified or disproved, reasonable time should be accorded for that purpose. In fact, the defendant may furnish information which, if true, might exculpate him and that frequently happens. There may be any number of suspects of a crime and only one would be eventually charged. Suspects may be brought in from time to time who are cleared within a few hours' time or less as a result of interrogation and checking the information given by the prisoner. A great injustice might result if every suspect were immediately taken before a committing magistrate without an interrogation, because then many innocent persons would have a record of having been charged with a crime of which they were later cleared. The stigma of the record, The subject of confessions plays an important part in the administration of the criminal law. Ordinarily, a person does not freely and voluntarily confess to the commission of a crime, unless he is in fact guilty. There are rare exceptional instances, of course, in the case of some weakminded persons or of persons who have some ulterior motives. Ordinarily, however, a voluntary confession is properly regarded as evidence of the strongest type to connect the accused with the commission of a crime. Of course, there must be independent evidence of the fact that a crime has been committed, what the law calls corpus delicti. Until recently, the test of the admissibility of a confession was solely whether it was voluntary. By voluntary is meant that it was not obtained, in whole or in part, either by duress or by inducements. Duress, of course, is not limited only to physical force or physical abuse, but includes as well mental or moral pressure, such as a prolonged grilling, or similar methods. The law banned confessions secured by duress because methods of this type are obviously abhorrent and are properly regarded as contrary to civilized standards. Moreover, the probative value of confessions obtained by such means is highly questionable. Confessions improperly obtained may be unreliable. For a similar reason the law excludes confessions obtained by inducements. On the other hand, a voluntary confession. freely and willingly made, no matter when or under what circumstances, has always been regarded as admissible in the Federal courts, until recently. The sole test of admissibility was invariably whether the confession was voluntary. To exclude voluntary confessions on any ground whatsoever is in my humble judgment detrimental to the cause of justice and permits guilty persons to escape conviction. The rule has worked well. On the one hand, it safeguards defendants against possible oppression, and on the other hand, it protects the public by permitting the use of the strongest kind of evidence. An entirely different rule of law disconnected from the question of confessions, provides that a person who is arrested must be brought before a committing magistrate without unnecessary delay. It should be emphasized that this is not a constitutional requirement. Preliminary hearings before committing magistrates are not required by the Constitution and do not constitute any part of constitutional due process. They were unknown in common law. In fact, it is my understanding that there are some States in which such a hearing is at times held a considerable period after arrest. The Federal requirement, to which I have just referred, is merely a rule of procedure embodied in rule 5 of the Federal Rules of Criminal Procedure. Until recently there was no connection between the test of admissibility of a confession and the requirement that an arrested person be taken before a committing magistrate without unnecessary delay. As a matter of fact, there is no inherent or logical relation between them. The Federal Rules of Criminal Procedure were drafted by an Advisory Committee appointed by the Supreme Court of the United States. The Committee considered and rejected a proposal that if an arrested person is not brought before a committing magistrate without unnecessary delay, then a confession or any statement made by him during the period of undue delay should be rendered inadmissible on that ground alone. The Advisory Committee, of which |