It is the Escabedo 10 case, however, that raises perhaps the most difficult unanswered questions. There a principal suspect while being questioned at length by the police repeatedly asked to see his lawyer. The lawyer was at the station house asking to see his client. There was no evidence that the defendant was advised of his right not to incriminate himself and there is an allegation that he was tricked into doing so. Under these circumstances the Supreme Court held he was denied "due process" when the incriminating statement obtained during the interrogation was admitted in evidence. A holding based strictly on these facts would have raised few questions. But much uncertainty has resulted from the citation of Gideon, and particularly from the following sentence:

"We hold only that when the process [questioning a witness] shifts from investigatory to accusatory-when its focus is on the accused and its purpose is to elicit a confession-our adversary system begins to operate, and under the circumstances here, the accused must be permitted to consult his lawyer." "1

Four dissenting members of the Court thought that the majority opinion overruled prior decisions and extended the Sixth Amendment right to counsel to the point where "the task [of law enforcement will be] made a great deal more difficult.'

13

Since the Escobedo decision in June 1964, opinions have differed widely as to what it actually requires. Some have asserted that it may have the effect of prohibiting all police questioning of potential suspects. If a lawyer is present, his advice obviously will be to answer no questions. It is further pointed out that where the suspect is indigent the state may have to furnish him counsel.1

16

Still others believe that Escobedo may only require that the suspect be advised of his right to consult a lawyer prior to interrogation.15 Yet another view is that Escobedo merely requires that the suspect be warned of his constitutional right to remain silent, prior to police interrogation. Others suggest that perhaps it requires affirmative advice as to both the right to counsel and to remain silent." Finally, some believe Escobedo is limited to the situation where the witness asks for counsel and his request is denied.18

But whatever may be its ultimate interpretation, Escobedo strikingly illustrates that key decisions often leave many questions unanswered. The result is that law enforcement officers and trial courts must then operate without dependable guidelines.

There are other landmark decisions which come to mind.

Among these. Mallory v. U.S. 19 has provoked much discussion--as well as consternation among law enforcement officials. Congress is now wrestling with legislation trying to define the difficult and delicate issue of what constitutes "unreasonable delay" in presenting a suspect to a magistrate for arraignment.

And, in terms of actual impact on the courts, perhaps most important of all to Federal judges, are the decisions which opened the flood gates of habeas corpusparticularly Fay v. Noia, Townsen v. Sain," and Sanders v. U.S.22

As Professor Meador of the University of Virginia has said:

"The writ of habeas corpus now has a built-in expansion factor, since every new 14th Amendment right judicially formulated for a defendant-furnishes a new ground for habeas corpus."

An example of Professor Meador's "built-in expansion" doctrine is Jackson v. Denno-holding invalid the New York rule which permitted the jury to determine whether a confession is voluntary.

It now appears-especially from the dicta in Linkletter-that Denno must be applied retroactively.

10 Escobedo v. Illinois, 378 U.S. 478 (1964).

11 Id. at p. 492.

12 Cf. Cicenia v. Logay, 357 U.S. 504.

13 Dissenting opinion of Mr. Justice White. 378 U.S. at pp. 493, 499.

14 See Kaufman, "The Uncertain Criminal Law," Atlantic Monthly, January 1965.

15 State v. Hill, 397 P.2d 261 (1964).

16 E.g., People v. Nuly, 395 P.2d 557 (Ore. 1964).

17 See People v. Dorado (Cal. Crim. 7468. Jan. 29, 1965) Carson v. Commonwealth, 382 S.W.2d 85 (Ky. 1964); State v. Dufour, 206 A.2d 82 (R. I. 1965).

18 Cf. State v. Fox, 131 N.W. 2d 604 (Iowa 1964): Anderson v. State, 205 A.2d 281 (Md. 1964) Beau v. State, (Nov. 1965): Browne v. State, 131 N. W.2d 169 (Wis. 1964); People v. Sanchez, 33 L. Week 2571 (N.Y. April 22, 1965).

19 354 U.S. 449 (1957).

20 372 U.S. 391 (1963).

21 372 U.S. 293 (1963).

2373 U.S. 1 (1963).

23 ABAJ, Vol. 50 (Oct. 1964), p. 928.

24 372 U.S. 391 (1963).

25

Griffin v. California is another recent example of this escalation (prosecutor may not comment on failure of defendant to testify).

Whatever may be the ultimate interpretation or resolution of these and similar cases, I have mentioned them to illustrate the truism that great landmark cass in this area usually leave many unanswered questions.

And the most immediate result is that law enforcement officers and trial courts must then operate without dependable guidelines.

In time, much of this uncertainty will be removed by future court decisions. But the present need for clarification of criminal law is far too urgent to leave this to the slow and necessarily uneven process of judicial decision. There must also be action-where this is appropriate-by legislation and rules of court, as well as by clarifying police procedure.

The key problem, in providing workable solutions, is one of balance. While the safeguards of fair trial must surely be preserved, the right of society in general, and of each individual in particular, to be protected from crime must never be subordinated to other rights.

When we talk of "individual rights" it is well to remember that the right of citizens to be free from criminal molestation is perhaps the most basic individual right. Unless this is adequately safeguarded, society itself may become so disordered that in the end all rights are endangered.

There is a growing body of opinion that an imbalance does exist, and that the rights of law abiding citizens have in effect been subordinated.20

Lord Shawcross, former Labour Party Attorney General of Great Britain, in writing recently about a comparable condition there, said:

"The truth is, I believe, that the law has become hopelessly unrealistic in its attitude toward the prevention and detection of crime. We cling to a sentimental and sporting attitude in dealing with the criminal. We put illusory fears about the impairment of liberty before the promotion of justice..." 27

One need not go all the way with Lord Shawcross to agree that the pendulum in criminal justice may indeed have swung too far.28

But recently, there have been some distinctly encouraging signs.

President Johnson, in his message of March 8. placed his administration behind a broadly conceived program to combat crime and the conditions under which it flourished. A new unit, designated the Office of Criminal Justice, was created last year within the Department of Justice, and is ably headed by James Vorenberg of Harvard Law School.20

As recently as March 18, the Law Enforcement Assistance Act of 1965 was introduced in the Congress with Presidential approval. This is intended to provide financial and other assistance to state and local law enforcement agencies with the view to improving techniques of crime control and prevention.

30

A number of states are also re-examining their criminal codes, many of which are out-dated and inadequate under modern conditions and in light of recent court decisions.

31

The ABA welcomes this recognition of the need for modernizing and strengthening criminal laws and for improved enforcement methods and techniques. Indeed, the Association itself has initiated in this area one of the most significant projects ever undertaken by the organized bar.

Under the Chairmanship of Chief Judge J. Edward Lumbard, of the United States Court of Appeals for the Second Circuit, a distinguished national committee has been authorized to formulate and recommend standards with the view to "improving the fairness, efficiency and effectiveness of criminal justice 25380 U.S. 609 (1965).

28 As Judge J. Edward Lumbard put it: "The average citizen's Impression is that the public interest is not receiving fair treatment and that undue emphasis has been placed on safeguarding individual rights. "Address, Section of Judicial Administration. Aug. 10. 1964. See also Lumbard. The Administration of Criminal Justice, 48 ABAJ 840 (1963). 2: Volume 51 ABAJ, p. 225, 227 (March 1965).

2 Walter Lippmann, commenting on the crime problem and this imbalance, recently said: "The balance of power within our society has turned dangerously against the peace forces, against governors and mayors and legislators, against the police and the courts." Herald Tribune, March 11, 1965.

The American Law Institute has in process a model code dealing with many of the difficult pre-arraignment problems.

30H.R. 6508, 89th Cong. See address by Attorney General Katzenbach before National League of Cities, Washington, D.C., April 1, 1965.

Message of Gov. Rockefeller to legislature, reported in New York Times, Jan. 7. 1965 New York State has already set an interesting example by the enactment of its "stop and frisk" and "no knock" laws. These laws, presently being tested in the courts, seek to clarify and increase the power of police to question on the scene persons suspected of crime and delineate the right of police, pursuant to court order, to enter and search for evidence.

Π

in state and federal courts". The entire spectrum of the administration of criminal law is being examined.

Six advisory committees-composed of highly qualified judges, lawyers, law teachers and public officials-have been formed to work on particular areas of criminal justice. Each advisory committee has engaged a recognized authority on criminal law to serve as its "reported". The project, expected to require three years and to cost $750,000 is being financed by the American Bar Endowment, and by grants from the Avalon and Vincent Astor Foundations. The Institute of Judicial Administration, affiliated with the Law School of New York, is providing staff assistance.

The remedies for the present unsatisfactory situation include, of course. far more effective enforcement of existing laws. In addition, there are undoubtedly areas in which the need is for legislative action, both state and federal, which strengthens and clarifies our criminal laws. There is also a need for appropriate changes in court rules, and in procedures and standards followed by law enforcement officials.

In short, our criminal justice is in a state of considerable disarray, and broadly based reforms are indicated.

In accomplishing these needed remedies, care must, of course, be exercised to avoid another pendulum swing too far in the opposite direction.

We must certainly have a system which preserves law and order, and this today is the most urgent need. But if our system is to deserve and receive public support, it must also be fair to the accused and compatible with constitutional rights. At times, the striking of a just and workable balance is very difficult indeed. But this must ever be our objective.

There are, unfortunately, some who frame this problem as an inevitable and irreconcilable conflict between the "law enforcement view" and the "individual rights" view. As James Vorenberg has said, this is a "false conflict which obscures and obstructs" rather than contributes to sound and sensible solutions.

Perhaps I have said enough to indicate the timeliness of the American Bar Association project—as well as the magnitude and complexity of the task of formulating national standards for consideration by legislative bodies, courts and police authorities. Since these standards will merely be recommendations, their authority and influence will depend upon the wisdom with which the Committee and the Advisory Committees function. Their acceptance will depend in major part upon the extent to which the bench and the bar support them.

Senator HART. All right.

The Senator from California and you discussed the extent to which a black American today could be said to enjoy equal protection and equal opportunity. As I recall it, you said you felt that so far as formal treatment under the law, so far as the statutes could achieve it, one could say that there was equality, both of opportunity and freedom, but that in the implementation of some of these laws, and in the attitudes which are personal to a man, we have yet a way to go. Is that a fair statement?

Mr. POWELL. I think that is a correct summary of what I said. Senator HART. Would you agree that many of the decisions of the Warren Court most sharply criticized might fairly be said to be an effort, and a constitutionally sound effort, to reduce some of the disability which attaches to an American merely because he is poor or black or unpopular?

Mr. POWELL. I would agree with that.

Senator HART. The unpopularity of the decisions ought never confuse us as to the soundness of them nor lessen our willingness, either as a judge or as a public commentator to defend them, if indeed, we think, that which is unpopular nonetheless is right.

Mr. POWELL. Of course.

Senator HART. This morning there was discussion about the degree to which there is a chilling effect on the exercise of first amendment rights because of Government threat or presence.

The question in the minds of some of us has been the extent to which the court has an obligation to prevent, as an example, the presence of a photographer or a number of photographers and several observers in attendance at a meeting-whether the crowd is large or small-which is assembled to protest a policy of the Government.

You said that clearly it is necessary and right that a citizen have the opportunity freely to protest, freely to advance an idea. Do you believe that that right could be thwarted by Goverr.ment action of the sort I have described; and, if so, would you feel that it would be appropriate for a court to intervene between the Government and the individuals assembled?

Mr. POWELL. I would certainly think it conceivable that free expression could be thwarted in that way, given certain facts and circumstances, and if it were I would assume the first amendment would be applicable.

Senator HART. It is not a matter merely of adversion to publicity as you, with understandable humor, described your own situation in the last two and a half weeks; it is the problem of most citizens who have to have a job in order to survive, who feel a deep resentment about some injustice in the society, some unwise Government policy; they want to do more than just write their Senator; they want to stand up in broad daylight and say, "you are wrong" and try to change it.

Yet, if they know there is the camera there, the likelihood is great there will be a dossier file and, as we have learned in this committee, once the file is opened on you, you have one awful time finding out what goes into it, and you are never sure why you are dismissed from employment or find new employment difficult to get. You always have the nagging feeling that, "I had better not go to that meeting because who knows what happens when they take my picture."

This describes a very real fear and not a very schizophrenic or even hypersensitive citizen, isn't that so? Isn't this something where we should not just dismiss it by saying, "Well, the Executive is trying to protect freedom."

Mr. POWELL. I have not had any experience with this problem. If it is as serious as you would describe it, it would certainly seem to me a problem that needs attention. I assume, Senator Hart, you are not talking about the presence in a public meeting of photographers from the news media, are you? You are talking about Government photographers.

Senator HART. The Government.

Mr. POWELL. I would assume also that you are talking about peaceful assembly rather than situations in which it has already broken into violence.

Senator HARI. Yes.

Mr. PoWELL. Right.

Senator HART. I am talking about the prospect

Mr. POWELL. Right.

Senator HART. And how it affects a citizen's ability to exercise his first amendment rights.

If increasingly our practice as a Government is to send out photographers and have the hall well secured, lots of people will find very sound reasons why they won't show up for that meeting, and it is this very suppression of ideas that was intended to be avoided by the first amendment; isn't that right?

Mr. POWELL. If that were widespread, I would have no hesitation in saying that it would seem to me to have chilling consequences. I would be surprised

Senator HART. Even if it applied only to one citizen it would have a chilling consequence on him?

Mr. POWELL. I would have to say in answer that I think it would have to depend somewhat on the citizen. I think I have known people who like publicity. But the facts you state exclude publicity. They include only surveillance by some governmental agency.

Senator HART. That is right.

There has been much discussion about your article that was originally in the Times-Dispatch, and then in the New York Times. As I understand it, your general theme was that most of the fears about repressive actions by the Government were exaggerated or unfounded.

You stated that whatever past validity there may have been in distinguishing between external threats of subversion and internal threats, that distinction now is largely meaningless because "the radical left is plotting a revolution and is collaborating with foreign Communist enemies."

What was your concept of the radical left when you used that? Are you defining it as those groups who are conspiring with foreign enemies in this country and no others, or does it include those whom you referred to later on in that article as sympathizers with radical organizations?

Mr. PowELL. It includes, Senator, groups that would like to destroy our democratic form of government.

Senator HART. Well, let us assume I want to destroy the democratic form of government and substitute a vegetarian government?

Mr. POWELL. Substitute a what? What type of government? Senator HART. Vegetarian, as distinguished from a Communist or Socialist. Does that desire, without an assumption that vegetarians will bomb, warrant the labeling of that vegetarian domestic group as the same as a foreign group and, therefore, to be put under surveillance without any court approval?

Mr. POWELL. I think the example you put is very far-removed from anything that I had in mind. The basic concept that I had in this regard, with regard to change, is that our system provides within its structure the means for peaceful change and any change that the people wish to impose or to achieve within the system is change which would be lawfully accomplished.

The change that I would oppose, and there are organizations and individuals in this country who quite openly advocate this kind of change, is change without the system. They say the system no longer accommodates itself properly enough to the need for change, and I honestly disagree with those people.

I believe that any change by coercion or force will in the long run be as harmful to the people who initiate it as to those who, in the beginning, may seem to be the victims. This is my basic philosophy on this