I don't think the legal problem is any different.

Mr. CREECH. You think the problems connected with wiretapping and eavesdropping are so similar that they should be regulated by similar legislation?

Mr. SILVER. If the effect of the instrument used is no different than an interception or a microphone planted in a room, I think the same law should apply to whatever the instrumentality is. In other words, you may be intercepting a telephone by just putting a bar next to the phone. I don't draw any distinction between the method used to intercept. If it intercepts, it should be controlled the same way whether you actually have to clip something on the wire or put something next to the wire or put it an inch away or 2 feet away. The result is the same and they both ought to be regulated by statute.

Mr. CREECH. In light of the new techniques which have been developed in the field of electronics wiretapping and eavesdropping, do you believe that the holdings of the Olmstead case that wiretapping does not violate either the fourth or fifth amendments of the Constitution are valid today?

Mr. SILVER. I think the Olmstead case-unfortunately, very few people who quote the Olmstead case ever read it. They just pick up a word like "dirty business," and make the most of it.

The Olmstead case dealt with Federal agents procuring evidence in violation of the law of the particular State. It didn't apply to a situation in a State that regulates tapping by statute setting forth the method under which one may or may not intercept a telephone conversation. Whether unlawful interception violates the 4th or 5th amendment one may argue as a lawyer-I think I can argue that it does, or may argue that it doesn't, depending on who is paying my fee. I don't think it affects the actualities of the situation one way or the other whether you say it is a violation of the Constitution or not.

As you well know, lawyers can argue-somehow or other, fees make our minds turn one way or another.

Senator KEATING. Except district attorneys.

Mr. SILVER. Well, our fees are so small. We live on our honor and suspicion of others, particularly in the

Senator ERVIN. The district attorney is supposed to lean just a little bit toward the State.

Mr. SILVER. I will say this, Senator. This may not be relevant to this, but I recently had some doubt about a young man who was arrested for a very serious crime, and I was doing a great deal of investigating in an effort to see if I could find whether my suspicion was right or wrong, and two of the women who were victims of the man's dastardly attacks came in and accused me of having been fixed by this defendant; otherwise, they said, why didn't I proceed with the prosecution?

All I could tell her was I had some doubts about it, and I am trying to check it out, and I suggested she write the Governor who was really my boss and take it up with him.

There was nothing else I could do.

Every public officer is suspect as a result of the mass media we have that the district attorney wants to convict somebody whether he is innocent or not. Every public official is always supposed to

be doing something only because it may benefit him personally. He is never concerned with justice and fairness. Nothing is further from the truth. It is something we have to live with. It is a risk of the trade. If you don't want to take that risk, don't be a district attorney. Senator ERVIN. I was counsel for the defense in many cases. I have no great criticism to make of the solicitors as district attorneys are called in my State. I have found, normally, when they had a case they had doubts about, they would prosecute it for two reasons. Some of them didn't want to lose cases, and I don't think this was just, and others felt it their duty to prosecute cases when there was reasonable ground to believe the law had been violated. I think the advocate procedure between the prosecuting attorney and the attorney for the defense is pretty well calculated to bring out the truth of the case. I think that is the normal thing.

Mr. SILVER. I think that is the case. And I want to say about not losing cases. In my annual report, when I get a chance to write one, I have never published percentages of convictions because I don't think they indicate either the amount of justice that emanates from the district attorney's office or the efficiency of the office. I could easily get 100 percent convictions by telling my grand jury "Don't you find an indictment unless we are pretty sure we are going to get a conviction." I think it would be a poor district attorney who did that.

We don't really lose or win a case. If we don't have sufficient evidence to convict a man beyond a reasonable doubt, the jury won't convict him, but I don't consider that I have lost the case.

Senator ERVIN. The subcommittee is deeply grateful to you for taking the trouble to come and give us the benefit of your experience in this field, a field in which I think there is need for legislation at least on the Federal level. I am a great believer in the old saying that the most efficient teacher of all things is experience. You have the experience as district attorney in this field, and we are certainly deeply grateful for your giving us the benefit of that experience and also giving us the benefit of your suggestions, growing out of that experience, relative to the legislation the subcommittee is considering today.

Mr. SILVER. Mr. Chairman and your colleagues, I deem it a privilege and an honor to appear before this body.

Senator KEATING. Mr. Chairman, could I say just a word at this point?

Senator ERVIN. Yes.

Senator KEATING. It is necessary for me to be on the floor now. I will try to be here when we resume, but I have difficulties in planning a schedule.

I do want to mention that the next scheduled witness is Mr. Daniel Gutman, the dean of the New York Law School, who has had a great deal of experience and study in this field. He was with former Governor Harriman. He has had a very fine opportunity to study this problem. We are also indebted to Mr. Edwin L. Gasperini, who is now the chairman of the Committee on Federal Legislation of the Association of the Bar of the City of New York, for coming here and giving us the benefit of the views of the association. They have done a great deal of work in this field and prepared a great deal of material that I am sure will be very helpful to the committee.

If I am not able to be here when they testify, I did want to express my personal appreciation to these fellow New Yorkers for coming to give us help in this very important area.

Thank you.

Senator ERVIN. We will stand in recess until 2 o'clock.

(Whereupon, at 12:50 p.m., the hearing was recessed until 2 p.m. this same day.)

AFTERNOON SESSION

Senator ERVIN. Counsel, call your next witness.

Mr. CREECH. Our next witness will be Dean Daniel Gutman, New York Law School.

STATEMENT OF DANIEL GUTMAN, DEAN, NEW YORK LAW SCHOOL, NEW YORK, N.Y.

Mr. GUTMAN. Mr. Chairman and Mr. Creech, I appreciate the opportunity to appear before your honorable committee through the invitation extended by suggestion of Senator Keating.

With your permission, I will consider the statement which I have filed with Mr. Creech to be my statement of today and there will be just one point upon which I should elaborate because I think it is of vital importance.

Of course, as you know, I have indicated in my statement, sympathy with bills that would strengthen law enforcement agencies by providing for authorized admission of evidence obtained by wiretapping, to remove the cloud of illegality by authorizing wiretapping in the States which now permit such activity pursuant to court order and also legislation which would extend this to the Federal courts.

One of the things that troubles me very greatly, speaking now from an academic viewpoint, is the difficulty in explaining to students or to lawyers who are interested, the apparent conflict in recent important U.S. Supreme Court decisions and their conflict with the decisions that have prevailed in the court of appeals of the State of New York.

The leading case, of course, is the case of Benanti against the United States.

I should like to read a brief quotation from the decision in that case and then a quotation from the decision in the Pugach case in which the U.S. Supreme Court affirmed the action of the Federal district court which refused to issue an injunction against the admission of evidence obtained as a result of authorized wiretapping in the State courts of New York.

In Benanti, the U.S. Supreme Court said:

Despite the warrant issued by the New York State court pursuant to New York law, we have no alternative other than to hold that by tapping the wires, intercepting the communication made by appellant and divulging at the trial what they had overheard, the New York police officers violated the Federal statute. ***

Then it refers to 47 U.S.C.A. 605, which provides:

No person not being authorized by the sender shall intercept any communication and divulge or publish the existence

and so on.

There apparently is no argument about the fact that Benanti held very clearly that evidence obtained through wiretapping could not be admitted in Federal criminal proceedings. There was nothing new about that, but then there was something else: The Court said, referring to section 605:

Congress, setting out a prohibition in plain terms, did not mean to allow State legislation which would contradict that section and that policy.

Now reading from Judge Bryan's decision in Pugach we find this statement:

Since the Benanti case, there is little doubt that State officers who engage in telephone wiretaps and divulge the contents of communications so obtained not only are acting in violation of the Federal statute, but are committing a Federal crime.

The fact that they act in aid of law enforcement and under purported authority of State constitution and statutes does not make their acts any less a violation of Federal law. * *

The Court, in Pugach, denied an application for an injunction against the admission of evidence that had been obtained as a result of authorized wiretapping. The U.S. Supreme Court, in a divided Court, upheld the decision.

That decision was in line with rulings that had been made by the New York State court of appeals in a series of cases.

It is with interest that I find the rationale in the Pugach case set forth in the opinion. Judge Bryan stated:

Congress, by enacting 605, did not intend to thwart a State rule of evidence. The policy of the State of New York as reaffirmed by its court of appeals subsequent to Benanti, is that wiretap evidence even though illegally obtained is admissible in a State criminal trial.

And the Court went on to say that

This is simply an additional factor for a State to consider in formulating a rule of evidence for use in its own courts. Enforcement of the statutory prohibition in section 605 which can be achieved under the penal provisions of section 501. As I have pointed out, plaintiff may also have a remedy in civil damages.

I do not think it is helpful to have to reconcile our laws and our important decisions by rationalization of this kind. I think as I have stated previously at hearings of the New York State commission of investigation and in the press and in public addresses, that it is a fortunate thing for our State that the court of appeals has taken the position that evidence obtained by authorized wiretapping is admissible in criminal trials.

The position of the court is, briefly, that until the U.S. Supreme Court says, in so many words, that you may not admit evidence obtained as a result of authorized wiretapping in the State courts, until that time we say this is just a rule of evidence, and the States have the right to formulate their rules of evidence.

Now, this is fortunate because if the court of appeals held otherwise, law enforcement would be thrown into chaos in New York State. I believe that law enforcement is badly hampered on the Federal level because of the inability to cope with crime with these modern devices that so frequently are employed by criminals.

Fortunate or unfortunate, it is my considered opinion that there is a great demand first for the immediate passage of a bill which would carry out what Senator Keating's bill, S. 1086, would do, and that

is to legalize wiretapping activities where authorized pursuant to court order in the various States.

Secondly, I think that this medium of fighting against crime of all kinds should be extended to the Federal courts by an appropriate amendment of section 605.

Thirdly, I would respectfully suggest to the committee that in relation to matters concerning subversion, sedition, and treason and related crimes, that these be considered in a separate category because of the great danger, for security reasons, in requiring the disclosure of the underlying facts. This is something that I think needs grave consideration. I do not think it calls for the sacrifice of this important weapon which we can employ in combating subversion. I believe that this area requires the consideration of the Congress, and I am thankful to you for the opportunity to express my views.

Senator ERVIN. Do you have any questions?

Senator HRUSKA. No questions.

Senator ERVIN. Counsel?

Mr. CREECH. Dean Gutman, with regard to three of the four bills which are before the subcommittee, there is a requirement in S. 1221 that before a Federal agent can obtain a court order to wiretap or eavesdrop, he must have reasonable grounds to believe evidence of a Federal crime may be obtained while in S. 1495 there is a requirement that the interception must be required to gain evidence of or to prevent certain crimes.

Are these requirements, in your opinion, enough to protect the privacy of the individual citizen and to accord with the constitutional guarantee against unreasonable search and seizure?

Mr. GUTMAN. I think they are. I think if enacted by Congress these provisions would be held to be constitutional. I believe there is sufficient protection, and ample safeguard, and if I may just add this thought that I consider these in the light of the other safeguards that so properly surround the person on trial for commission of a crime.

Mr. CREECH. Dean Gutman, have you given any consideration to the possibility that under pending legislation, confidential communications between lawyer and client and physician and patient might be the subject of interception and disclosure?

Mr. GUTMAN. Frankly, no. I think it is an interesting item, however, but this raises a question. For example, if you were "bugging" a conversation between an attorney and his client, my offhand thought at this moment is that it might be best to safeguard such disclosures in the manner which is already employed by the law

Senator HRUSKA. Will counsel please yield?

Mr. CREECH. Yes, sir.

Senator HRUSKA. I want to thank Mr. Gutman and state that the court where application is made in such a situation would be governed pretty much by the same considerations you have expressed and only in the case of a very flagrant or very extreme situation would he be inclined to authorize and issue that kind of an order.

Mr. GUTMAN. I am sure the judges would take this into consideration if it appeared on the face of the application.

Senator HRUSKA. If a showing were made for example, that the relationship of an attorney and client surely existed but also there