Mr. O'CONNOR. We have never had in the 6 years I have been district attorney more than 20 or 22 a year. Mr. CREECH. And do you have any reason to believe that there are some policemen who wiretap without authorization? Mr. O'CONNOR. I am not in any position to say there are none. There are probably some, but I think it is extremely limited again because of the technical difficulties of doing it and in the light of our experience we have never had a complaint. It would seem to me if it was widespread, certainly an irate citizen would rise up upon occasion and throw in a complaint to the district attorney's office. Mr. CREECH. How many times have you been denied permission to wiretap that you have requested an order? Mr. O'CONNOR. I don't think we have ever been denied it. Our papers have been turned down on the grounds that we haven't made a proper showing and we have had to go back and place into the papers more facts which would justify a wiretap. I have turned down two or three in the past year where my assistants have come to me and requested approval to get an order. I turned down one the other day. Mr. CREECH. These were not turned down by the court? Mr. O'CONNOR. No, I refused to permit our assistants to go ahead with it. Mr. CREECH. I realize that you made it very clear you feel this type of law is desirable, but in the event there were a broader law enacted in your opinion which, if any of the Federal agencies should be allowed to intercept communications? Mr. O'CONNOR. I haven't given it much thought, frankly. I have been concerned primarily with the State level. I don't know that I am prepared to answer. Mr. CREECH. Mr. Waters has some questions to ask. Mr. WATERS. Mr. O'Connor, are any records kept of the orders which are issued allowing your staff to make a telephone tap? Mr. O'CONNOR. Yes, we keep records. Mr. WATERS. Are those available to anybody other than people in your office? Mr. O'CONNOR. They are only available to the chief of the investigation bureau and myself. Mr. WATERS. Do those records retain the transcription and date of conversation? Mr. O'CONNOR. Yes, they do. Mr. WATERS. Do the records reflect, whether any telephone conversations other than those authorized might have been inadvertently overheard? Mr. O'CONNOR. Yes; the entire conversation would be there, not only included in these suspect but anybody else on the phone when the tap was being made. Mr. WATERS. Thank you very much. Senator ERVIN. The committee is deeply grateful to you, Mr. O'Connor, for giving us the benefit of your experience and views on this subject. Mr. O'CONNOR. Thank you, Mr. Chairman. Mr. CREECH. Our next witness is Mr. Goodman A. Sarachan, chairman, Commission of Investigation, New York, N.Y. Senator KEATING. Mr. Chairman, this is another distinguished New Yorker and a friend of mine of many years' standing. He and I were classmates in college together; that is, he worked for 3 years and he graduated in 3 years and he earned a Phi Beta Kappa in 3 years and he was one of the top students in college and he has continued his knowledgeable career ever since as a practicing lawyer in Rochester, N.Y. and now is the chairman of the New York State Crime Commission. STATEMENT OF GOODMAN A. SARACHAN, CHAIRMAN, COMMISSION OF INVESTIGATION, NEW YORK, N.Y. Mr. SARACHAN. Mr. Chairman, it is very late in the afternoon and you have been patient with witnesses and I am going to stick as closely to the prepared statement as I can. Preliminarily, I want to say it is of particular gratification to me on the first occasion when I appear before a congressional committee to have present a very prominent member of the committee, my old friend, classmate, and fellow resident, Senator Kenneth Keating. Even though we have been on opposite sides of the political fence, it has never interfered with our friendship and I think I speak for all of the citizens of Rochester when I say that we consider Senator Keating one of the outstanding legislators in the entire Congress of the United States. Senator ERVIN. I would say that I would corroborate your statement there and say that he is a most useful and active member of this subcommittee and active member in many other legislative matters. Senator KEATING. I am glad I gave up an appointment elsewhere to hear this. Mr. SARACHAN. I might also state preliminarily to explain how a Democratic appointee happens to be a so-called crime commissioner in the State in which both the Governor and the legislature are Republican; that we are the only commission in the State, I think, in the history of the State, that has equal representation of both political parties and while both Governor Harriman, who appointed me, and Governor Rockefeller, our present Governor, wondered whether an even numbered committee, equally divided between parties could function my fellow commissioners and I feel that that very fact has taken politics out of our operations completely. Senator KEATING. Your chairmanship rotates, does it not? On October 23, 1959, the Commission of Investigation of the State of New York, in collaboration with picked members of the New York State Police, conducted across the central part of New York State what was probably the largest scale raid on gamblers and other law violators in the history of this country. The raids were conducted simultaneously at 3 p.m. of that Friday, in 30 communities covering 19 counties from the eastern to the western end of the State, across the central part of the State. The raids resulted in the arrest not only of bookmakers, but of a substantial number of higher-ups. A huge quantity of equipment and large sums of cash were also seized. Much of the evidence, particularly in relation to the higher-ups, was obtained by the tapping of telephone wires procured under court orders. The sad outcome of a large number of the arrests will be mentioned later. In connection with gambling, I have listened to the testimony this afternoon and I want to say that our commission made very, very long and thorough study of the gambling problem not only in New York State but across the eartern part of the country and into Canada. We and other groups, like grand juries, have reached the conclusion that in many respects gambling is one of the most important crimes and has to be curbed in this country, particularly in the more populous areas if we are to cope with organized crime and criminal syndicates; that gambling is the bread and butter of organized crime and that with the proceeds of gambling, the criminal hoodlum goes into extortion, narcotics, prostitution, and various other crimes considered more serious. Accordingly we have undertaken to try to convince the people, at least in our State, that violations of gambling laws should be treated much more seriously than they ever have been in the past if we are going to make any headway against organized crime. The Federal Communications Act which is now sought to be amended, was passed by Congress in 1934. In 1937, the U.S. Supreme Court held that under section 605 of that act, evidence procured by the tapping of telephone wires was to be excluded in Federal courts. In 1938, after two successive legislatures of the State of New York had approved it, the people of the State of New York approved an amendment to article I, section 12, of the New York State constitution, authorizing permission to tap telephone wires by State law enforcement officers upon authorization of an appropriate court. To put the amendment into effect, the State legislature thereafter enacted article 73 of the penal law and sections 813 a and b of the Code of Criminal Procedure. These provisions of law were so drawn as to restrict very carefully the use of wiretapping so as to safeguard private citizens and protect their civil liberties. May I interject that every one of my associates and myself are great believers in the fifth amendment, and other safeguards of our Federal and State constitutions and we believe that action to protect the civil liberties of the decent law-abiding citizen is as necessary as do any of those who oppose the proposed amendments. The application may be made to a proper court only by a relatively small number of law enforcement officials who must submit a sworn statement that there exists "a reasonable ground to believe that evidence of crime may be thus obtained." A wiretapping order cannot be effective for more than 2 months under our law. In addition to that, the divulgence of any information obtained by wiretapping is carefully restricted. For more than 20 years, law enforcement officers of New York State availed themselves of the benefits of wiretapping laws under the careful scrutiny of State courts. However, the decision of the U.S. Supreme Court as we know, in Benanti v. United States and other Federal court rulings have created a serious situation in law enforcement in my State as District Attorneys Silver and O'Connor have told you. At present, some New York State judges have refused to grant wiretapping orders which are legal under New York State law, and under the State constitution. Others have refused to admit evidence ob criminal investigator, Dr. Lamoyne Snyder, testified for the defendant about the high reliability of the polygraph when properly operated and its widespread use. The court, however, cited authority to the effe that the instrument was by no means infallible and observed that many lie detector experts do not advocate the admissibility of polygraph results under current conditions. Among the other problems that bothered the court was whether, if the evidence were allowed as to one witness, it would have to be as to all-with the result that the case mig. be tried in the laboratory of the polygraph expert, instead of in the courtroom. As with the truth serum, the prior use of a lie detector does not vitiate a subsequent voluntary confession; 105 indeed, in light of the suggestibility attributed to the recipient of a “truth serum," it would seem far easier to show that a confession following a lie-detector test was voluntary than would be true after an interview under drug influence. Also, as with truth serum results, the question arises of whether a witness's mention of a lie-detector test is improper.108 On the other hand, the lie detector does not have the same significance for investigation of mental ailments that truth serum does. Both as to the lie detector and the truth serum, American courts have not warmly embraced the European-fostered view that under no circumstances can such investigative devices be used, because to probe a suspect's mind invades his "dignity," even if done with his consent.107 In America, apparently the investigator is free to use such tests on a willing suspect, and probably the test results would be received in evidence if the courts were satisfied of their reliability. This approach, it is submitted, is, in the long run, more consistent with a true balance of values. If an accused wants to take a lie-detector 108 Henson v. State, 159 Tex. Crim. 647, 266 S.W.2d 864 (1953). See also Commonwealth ex rel. Riccio v. Dilworth, 179 Pa. Super. 64, 115 A.2d 865 (1955); Henderson v. State, 94 Okla. Crim. 45, 230 P.2d 495, 23 A.L.R.2d 1292 (1951); Webb v. State, Tex. Crim. —, 291 S.W.2d 331 (1956) (where apparently polygraph results were unfavorable for the prosecution). But c.f. People v. Sims 395 Ill. —, 69 N.E.2d 336 (1946). Where a polygraph shows a defendant to be lying and he confesses, it is often difficult to keep results from a jury while proving the voluntariness of the confession. Tyler v. United States, 193 F.2d 24 (D.C. Cir. 1954); Gasway v. State, 157 Tex. Crim. 647, 248 S.W.2d 942, cert. denied, 344 U.S. 874 (1952); Leeks v. State, 95 Okla. Crim. 326, 245 P.2d 764 (1952); People v. Aragon, 154 Cal. App.2d 646, 316 P.2d 370 (1957). 106 Compare Kaminski v. State, 63 So.2d 339 (Fla. 1952), with State v. Shepperd, 100 Ohio App. 345, 128 N.E.2d 471 (1955), aff'd, 165 Ohio St. 293, 135 N.E.ad 340 (1956), cert. denied, 352 U.S. 910 (1956). 107 This view is presented by Silving, supra note 84. . commission of investigation feel very proposed amendment to the Federal 1086 with provisions covering investicommittees of the legislature, is an trying to cope with the ever-growing public corruption, are to make any red statement, Mr. Chairman, that it Keating's law should be amended to sted, that wiretap orders be granted inal jurisdiction, which in most parts e supreme court, on the bench of few years ago. ves S. 1086, the bill introduced by om the fact that the people of New y as you do, Senator. your opinion as to the type and te. ought to be left to the State to uld be subject to wiretapping. violations of law which aren't tapping in those cases-traffic think it was the professor who To be left to each State and I is. ve indicated a preference for ference for S. 1086, but in the ld cover the Federal agencies, ould be permitted to intercept ment, the FBI, or the Defense ll kinds of Federal agencies whose job it is to enforce the authority also under court wild be a Federal judge, not a order I think any Federal he laws of the United States |