got no business doing it. And I am sure that is true about the rest of the prosecutors in the State.

Senator CARROLL. May I interrupt counsel ?

What is the pleasure of the chairman of the subcommittee? When does he usually recess, and do you have any indication that he would like to come back! Are we scheduled for this afternoon also ?

Mr. CREECH. Yes, sir; we are scheduled for this afternoon. In view of the fact that we have five other witnesses scheduled for today, and all of them from out of the city, I would like to suggest that we reconvene at 2 o'clock.

Senator CARROLL. You have been patient here and I don't want to call off your questioning:

Mr. CREECH. Inasmuch as Mr. Silver indicates he has answered this question in his article, I have just one more question.

Mr. SILVER. At this point, Mr. Creech, I want to say that I quote in this article, and I am quoting from Mr. Dash:

How much wiretapping is done by plainclothesmen is, of course, a matter of speculation. The accuracy of the figures, however, is not really essential since what we are after is only an idea of the quantity of wiretapping done by police. So he admits himself that it is a speculation.

Mr. CREECH. Sir, you mentioned the prosecution of several former policemen and others for illegal wiretapping. How many persons have you prosecuted for illegal wiretapping? Would you describe some of these cases for us?

Mr. SILVER. Some years ago I guess it may be 8 or 9 years ago we prosecuted a fellow by the name of Applebaum and we got a conviction, but it was upset by the court of appeals because they said a man had a right to tap his own telephone. That has been corrected by statute since, and the two policemen that I prosecuted, and offhand I don't know of any others that we did because we can't prosecute a crime unless we know there has been one.

As I said before, unfortunately there is no corpus delicti in wiretapping. A fellow taps a wire illegally if he is trying to get evidence for a divorce, that his wife is not behaving as she should. He puts a wire on, keeps it there for 10 days and then takes it off. No one knows he has ever done it.

Mr. CREECH. You have in your statement alluded to the time element necessary and desirable for maintaining a tap on telephones. What in your opinion is the maximum length of time necessary or desirable for maintaining a tap on any one telephone?

Mr. SILVER. The statute in New York State used to be 6 months. The district attorneys readily agreed to the limitation of 60 days plus the necessity of getting renewal orders for- I think I am not sure now whether it is 30 or 60 days additional, but there is no limitation as to the number we can get on a showing that the information we are getting is fruitful and useful and it would be desirable to keep

Mr. CREECH. Is that your position?
Mr. SILVER. That is my position; yes.

Mr. CREECHI. How many times have you been denied permission to wiretap! I presume you will make that clear in the statistical information which you provide. Mr. SILVER. I would.

85952 0-62–6

it on.

As I said before to the Senator, I doubt whether there are many applications on which we had orders denied, but you have to take that into consideration with the situations under which we request orders. In other words, if we were loose about our procedure in requiring' orders we probably would have a lot more denials than we do.

In order-in other words, if you are careful in making a suit of clothes you have less misfits than if you are not careful.

Thus, I don't think the number of denials has any relationships to the care with which judges grant orders.

Senator Hruska. "The same considerations would apply in the writs of search and seizure; wouldn't they!

Mr. Silver. I don't think there could be any question that there are judges who are more careful than others. But, as I say, this is true with any type of order, whether it is search and seizure, whether it is the payment of alimony, whether it is a writ of habeas corpus, denial of writ, or granting of a writ. We either have to have faith in our judiciary or any laws that we have will be useless. And, as I said before, in the last analysis it is the people who have the obligation of enforcing the laws that determine the efficacy of our laws.

Now, in our office, for example—and I know it is so in the other counties in New York City-we will never predicate or attempt to get a court order on an anonymous letter. We just won't do it, regardless of how detailed the anonymous letter is, because there is an inherent danger in anonymity. Therefore, we do not do it.

If we think the information is good, we will go out and investigate it. If we can substantiate the information, then we will apply for

. an order. Otherwise we will not apply for an order on anonymous information.

Mr. CREECH. Mr. Silver, 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 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 specified crimes.

My question is: Are these requirements, in your opinion, narrow enough to protect the privacy of the individual citizen and to accord with the constitutional guarantees against unreasonable searches and seizures ?

Mr. Silver. I don't think they protect a citizen's rights any more than the law that we now have in New York, because in the last analysis I say our New York law has a great number of safeguards. It gives the judge a right to make all the inquiries he wants about what the crime is and what our information is if he thinks our papers aren't sufficient. And I also have to fall back on facts rather than on speculation. I say we have 20 years of experience to show our law works.

For example, it is never overdone. In New York State-I forget the year; I think it was for a 5-year period, I think between 1953 and 1957-I made a survey of the entire State. That is I didn't make the survey--the State investigation commission made it. I knew of the data sheet they were looking at. So I duplicated it and sent it out to all the district attorneys. We wanted to know what was happening. And in the entire State of New York, on an average, there were approximately 500 orders a year for 62 district attorneys.

Now, when you say that, some people say, “Well, if you don't use it very often, then why worry about it?"

Well, that is a most illogical argument. Because a man is careful about the use of an instrument and doesn't use it recklessly and uses it carefully, that is no reason for taking it away from him altogether when he feels he needs it.

Mr. CREECH. I would presume, sir, that what you are saying is that, in your opinion, the requirements of the law in New York are suf ficiently stringent to protect the privacy of the individual.

Mr. SILVER. That is right; because if you assume a lax judge, if you assume an unlearned judge, if you assume a judge who is not careful, I don't care which bill you are talking about, you are not going to protect a man's rights.

Senator ERVIN. You can take that same argument and say you should not vest power anywhere for fear that it might be abused.

Mr. SILVER. That is correct.

Senator ERVIN. That is the chance or risk we take to protect ourselves, is it not !

Mr. SILVER. That is correct. And, Senator, there is nobody that could raise more havoc than a district attorney if he is unscrupulous and not careful, and has no realization of what his oath is. And, in fact, I think it is 7 or 8 years ago that I addressed a letter to, I think it was, Senator Wiley, who was then sitting in some committee in connection with giving the Federal Government the right to tap, and I opposed the Attorney General himself having the right to tap without going to a court for an order, because I said a district attorney in his zealousness—and power is a very heady thing-ought to welcome the restraints of a court lest he extend himself too much in his very zealousness to prosecute crime. And I was objecting even to the Attorney General himself having the right because I felt actually the Attorney General is not going to have the time to look into each situation and pass on it himself. If I, as a practical person, thought that was a possibility, I would say, well, the Attorney General should be at least as responsible as a Federal district judge. But knowing in practical life the Attorney General would not be studying the facts and looking at the papers and examining them as he should, and would rely on some subordinate, he should welcome the restraining hand of a court lest he overstep himself in his desire to do what he thinks is the right thing to do.

Mr. CREECH. Mr. Silver, in your opinion does wiretapping pose the same constitutional and practical problems as electronic eavesdropipng by such devices as spike mikes?

Mr. SILVER. Well, spike mikes are only an advance scientific development of a room mike. In other words, instead of actually getting a microphone into the room, he gets on the other side of a room and hammers in something which spreads out inside the wall. So he has a mike in the room.

It may make it a little easier to get a bug into a room, but it doesn't present a legal problem or bear on the liberties of our citizens more or less than one coming in at 3 o'clock in the morning and sticking it under some picture. It just makes it easier to do.

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.

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