Mr. SILVER. If we discover in our investigation that a particular person engaged in some criminal activity, whether it is a burglary ring, whatever it may be, or gambling, begins to use a particular public telephone, we would have rights under the law to get an order to tap that telephone.

Senator CARROLL. This I understand.

Mr. SILVER. Now all we do if Joe Doakes is our suspect, the only thing that we are interested in is the conversations of Joe Doakes. Now, I said before earlier in my testimony that I can think of no better answer to your question than that in the State of New York where we have a population of approximately 17 million people, maybe 8 million in the city of New York alone, we have operated under the statute for 20 long years, and nobody has been able to point to one instance where the district attorneys have abused the privilege. If we listen on a public telephone and somebody comes in and makes a date with his girl, even if he has a wife, we are in no way interested in that. We are not there for that purpose.

But knowing that this partcular group of people are using this booth simply because they may be fearful that we may have a tap on their plant, whether it is policy or something else, it would be foolhardy for us to say: "Well, they are in a public telephone. We will not use it."

Senator CARROLL. My question was directed to a different point, although I am glad to have this information. My question was really when you put the tap in on this public system, you have to record, I suspect, in an important case, over many, many hours, maybe many days. Is that recording done electronically? Is it done on a record? Is it done on a tape?

Mr. SILVER. It is done on a recording machine, yes.

Senator CARROLL. And this recording machine, how long can it go? You have got to replace reels. Does it go 1 hour, 2 hours, 3 hours, 4 hours?

Mr. SILVER. There are machines that will run 6 hours. The machine does not run unless there is a telephone call made. The machine is activated when the telephone starts. It does not run all the time. Senator CAROLL. I understand.

Mr. SILVER. While it is not activated.

Senator CARROLL. But when the voice is on there, you have, say, 300 or 400 voices. How do you separate those voices?

Mr. SILVER. If we do not know the voice-very often we know the voice of the people we are watching-and in those instances the likelihood is that we would only get the use of leads rather than evidence.

You must remember that we use interception not only to get evidence that may be admitted in a court, but even more often to get leads that we then follow up to prove our case.

So that if we knew that Joe Doakes went into this booth, and the police have talked to him often, they know who he is, they would, if they were listening, know that this is Joe Doakes' voice.

Senator CARROLL. I understand that. But how do you separate it from 300 voices? How do you do this. I have often wondered when you are prosecuting a case, as you have been doing for 20 years, how do you get that particular evidence in? How do you separate the 1 voice

from 300 and identify this voice, saying, "We know this voice"? What is the technique of separation?

Mr. SILVER. No. 1, Senator, if the operation is a serious one, what we call a live situation, there would be people manning the plant as well as recording it. They are listening to it as it is being recorded. We do that in situations where we must be ready to proceed to follow a lead.

In other words, if we are after a narcotics person, and he says he is going to meet so and so at a certain spot, it would be useless to listen to that wire the next day and know there was an appointment made 24 hours before. So, in what we call live situations, the wires are manned by detectives who may proceed at once to take action if something happens.

So that we use wiretapping even more as giving us leads to get evidence than actually using it often in the courtroom.

Now if we had a situation such as you indicated where 400 people talked

Senator CARROLL. May I interrupt right there to say that this would be my idea of how it would be beneficial to district attorneys and to law enforcement officers-wiretapping for leads. This is what the Federal Government has been doing for 20 years for leads, to help, but not to offer it into evidence.

Now you come back to these 300 or 400. I want to hear more about that. How do you separate the voices?

Mr. SILVER. In a situation like that, if we could not separate the voice, if there is a person listening and we could not separate the voice, we would not offer that evidence in the trial.

Senator CARROLL. It would not be admissible?

Mr. SILVER. The judge would say, "It is too confused, and I will not let it in." But you must remember most always there is only a very, very small percentage of cases in which we tap a public telephone. I would say, you asked me how much, I would say certainly not more than 3 or 4 percent of the cases, if that much.

Senator CARROLL. Here is what concerns some of us. You have got 200 or 300 people, or, say, 20 people on a tape, 30 people on a tape. There has to be, it seems to me, a blocking out process. I am not sure that I am right in this at all. This is what I want to explore if we are going to get into this bill. I want to find out how they do this thing technically, how they single out that one particular name that is subject to identification.

Mr. SILVER. Let me offer you one explanation. We make a transcript of that conversation, and we offer the transcript of the conversation of Joe Doakes after we lay a proper foundation in the court that the detective who listened to that while it was being recorded knew the voice of Joe Doakes and this was Joe Doakes talking.

So that the fact that anybody else's conversations are involved would not come into the picture at all. We do not necessarily play the tape in the courtroom. We have a transcript of it.

Now if the judge should, in his desire to be careful, want to make sure that this is an accurate transcript, we could arrange to play that part of the transcript for the judge so he could watch it and see that it was an accurate transcript. But we do not generally

introduce the tape. We introduce the transcription of what the tape has on it.

Senator CARROLL. If you were the defense attorney on an important case, would you not ask for that tape and ask that it be played? Mr. SILVER. No.

We would give it to the court and say to the court, "If Your Honor please, here is Detective So-and-so, who said he listened to Joe Doakes, that he knows Joe Doakes' voice, and this is the part that Joe Doakes said. The other people that talked in that public telephone are of no interest to us. We do not know who they are; we do not know their voices; but we know Joe Doakes' voice. Now here is a transcript of what he said."

If the judge wants to protect the defendant, which he should, he feels there may be some doubt about it, he can have that part of the tape played to him.

We do not cut tapes and just leave a point out and take the others. We never do that.

Senator CARROLL. I think we have had some testimony here that what they do is, I guess the word would be "transcribe" from this major roll into another roll the voice of this individual on another tape, so when the testimony is challenged of this detective in the transcript, they say, "Here is the tape."

But the detective did not take it. It was taken by an electronic device, but he identifies the voice because he knew Joe.

Now, the question then comes as to the authenticity, the validity of the tape itself.

I am not worried about gambling cases. I go along with you 100 percent. Nor racketeering cases, with the big crimes that you have got to meet. This is something that this committee has not fully explored, and I do not believe all I read in the book that you mentioned before by this gentleman from Pennsylvania.

But I want really to find out whether it is possible to change words, to put syllables together, to change the whole context of a man's testimony, which could be vital in a case against him.

Is it susceptible of being detected electronically?
Mr. SILVER. Senator Carroll, may I say this:

That any law enforcement agent, any district attorney that would resort to such horrible trickery is the same kind of a district attorney that would suborn testimony, would take a witness' statement and make him change it, and do things even much worse, even if no wiretapping situation ever existed.

Senator CARROLL. I agree with you on that. But I am not talking about district attorneys. This is a new pattern. We are moving into a new field entirely. We are asking for the first time in American history that now we move into this great, broad field, and I think we ought to proceed very carefully.

As I have stated on other occasions, I wish we could leave you people in New York alone to operate under your own laws. But, as I see this thing spreading, I think we have got to examine it very carefully, not only these crimes of the syndicates, but there are other things that I think are most serious, racketeering, for example.

I am not speaking in opposition.

Mr. SILVER. No.

Senator CARROLL. And I do not think district attorneys would do this. But the other day I read of a Supreme Court decision that I thought a little bit about. This is a telephone conversation. He had given his statement on the telephone conversation, but they permitted him to corroborate his own testimony by a device that he had in his pocket.

I have not practiced criminal law for 25 years, but it occurred to me, the thought occurred to me, that this type of bolstering his own testimony by a secret device hidden in his pocket-maybe I am old fashioned but these are the things

Mr. SILVER. You know, Senator Carroll, there is no law in our State and I do not know that there is in any other State that prevents a man from putting on himself an instrument which we know as a miniphone that would record a conversation that I am having with you.

Senator CARROLL. That is right.

Mr. SILVER. You may be interested that when that bill was passed in New York State, the district attorneys were not sure that they wanted that, but we were overruled.

So that any man can come into my office armed with a miniphone and talk to me and record what I say to him. But that is permitted under the law.

Senator CARROLL. Well, at least you are helping me clarify my thinking.

Mr. Chairman, we have a debate today on the literacy bill. We, as the Congress, have to make a finding of fact that such a condition exists, is alleged to exist. That is one of the basic findings that, as a Congress, we have got to make. I question in my own mind if organized crime is so dangerous to our society that we have now got to take very broad action, even a further intrusion upon the right of privacy. Is it that bad?

It may be that bad in Brooklyn or in New York, but I think we have got to take a look at the overall picture in the country.

I do not think it is that bad in Colorado, although I am sure that certain law-enforcement officers would not mind having the right to use a wiretap.

Now, it may be in the more populous areas, and we have got to consider the more populous areas like New York. We have got to consider Massachusetts. We have got to consider Illinois and these great States, Michigan, to see whether this thing has gotten so bad that we have got to bring it back into balance to help the law-enforcement officials.

Your testimony is very valuable.

Mr. SILVER. May I continue, sir?

Senator HART. Yes.

Mr. SILVER. Another ambiguity is found in the "Grounds for issuance" of an order authorizing interception. Section 8(c), subdivision 3, requires that before the application for such order be granted the judge must determine on the basis of the facts submitted-and this is something that the gentleman from Philadelphia testified to before-that there is probable cause for belief that "no other means are readily available for obtaining that information." What does "readily" mean? It is fraught with ambiguity and uncertainty. The judge determining a motion to suppress may have en

tirely different views from the judge granting the order. Clearly, such a standard is no standard at all; it needs clarification.

Wiretapping by law-enforcing agencies with safeguards such as we have in New York does not mean that we prosecutors are not concerned with civil liberities. Quite the contrary. For example, the district attorneys of New York have introduced a number of bills aimed at protecting the rights of defendants. And it is with pride that I emphasize that the district attorneys, not the American Civil Liberties Union, or the bar associations, introduced those bills.

In this day and age with our scientific and technological developments, why must law enforcement be tied to old-fashioned, outmoded methods in combating crime? The criminals are not restricting themselves to these old-fashioned methods. They are using modern weapons and devices. It is most interesting that in a recent bank robbery case in Brooklyn it was learned that one of the robbers was believed to be wearing a hearing aid. In fact, he was wearing a small transistor receiver in his ear by means of which he could receive instructions and messages from a lookout outside the building.

We must combat these methods with modern methods of crime fighting. I cannot believe that the public wishes to take from its lawenforcement agents this needed and modern weapon in the fight against crime. Nor can I believe that this august committee and the Congress wish to unduly handcuff the district attorney and the police in their tough battle against crime, organized and otherwise.

I appreciate the thinking of Members of Congress who are concerned with the civil liberties of our countrymen which were obtained by our people by much sacrifice and courage. To them I respectfully say: look at the facts and not the speculations of imaginary minds. Where have any facts been produced to warrant reasonable men from denying these necessary tools of battle against the criminals who have harassed us sorely? I beseech you to have confidence in the people who have been elected by their peers to protect their person and property. Help us to do the job we have been elected to do. That ends my statement.

(The document referred to is as follows:)

IS THE PUBLIC GETTING "DUE PROCESS"?

Address of Hon. Edward S. Silver, Brooklyn, N.Y., district attorney, Kings County, before a general session of the American Bar Association, section of criminal law, St. Louis, Mo., August 9, 1961

I shall take as my text for this paper, the caveat of Mr. Justice Holmes in Kepner v. United States, 195 U.S. 100, 134 (1903) that:

"*** At the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny * * *."

The current issue of the FBI Law Enforcement Bulletin, June 1961, contains an article captioned "Pocket Radios May Be Burglars' New Weapon," reading as follows:

"Pocket-sized, two-way radios are now being widely advertised in radio and electronic publications at prices as low as $49.95 per unit. These miniature, twoway radios operate on radio frequencies in the 26.965- to 27.255-megacycle range. No FCC license or permit is required for purchase and operation of the pocketsized units if their power is less than one-tenth watt. Although their range is limited at this power, it is not so limited that a pair of them could not perform very well to provide communication between a lookout and an inside man on a burglary or similar criminal activity. As their availability becomes known to the criminal element, they will undoubtedly receive considerable such use. Two