PAGENO="0001" MALLORY AND DURHAM RULES, INVESTIGA- TIVE ARRESTS AND AMENDMENTS TO CRIM- INAL STATUTES OF DISTRICT OF COLUMBIA ~ ~/(n (i~ r~ / / ~7 ~ ~ HEARINGS BEFORE T~E COMMITTEE ON THE DISTRICT OF COLUMBIA UNITED STATES SENATE EIGHTY-EIGHTH CONGRESS FIRST SESSION ON HR 7525 RELATING TO CRIME AND CRIMINAL PROCEDURE IN THE DISTRICT OF COLUMBIA S. 486 ITO AMEND CERTAIN CRIMINAL LAWS APPLICABLE TO TIlE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES PART 1 OCTOBER 10, 15, 16, 17, 22, 23, 24; NOVEMBER 5, 6, 7, 1068 Printed for the use of the Committee on the District of Columbia U.S. GOVERNMENT PRINTING OFFICE ~b-26O WASHINGTON: 1964 PAGENO="0002" COMMITTEE ON THE DISTRICT OF COLUMBIA ALAN BIBLE, Nevada, Chairman WAYNE MORSE, Oregon J. GLENN BEALL, Maryland VANCE HARTKE, Indiana WINSTON L. PROUTY, Vermont THOMAS J. McINTYRE, New Hampshire PETER H. DOMINICK, Colorado CHESTER H. SMITH, Staff Director II PAGENO="0003" CONTENTS Statement of- Page Acheson, David ~1, U.S. attorney for the Distrtct of Co1ulnbI~L___ 59, 85, 431 Bennett, James V., Director, U.S. Bureau of Prisons 484 Benton, Alexander L., Washington bar association 505 Bible, Hon. Alan, a Senator from State of Nevada 484 Cameron, Dr. Dale C., Superintendent, St. Elizabeths Hospital, Wash- ington, D.C 106 Canlis, Michael N., sheriff, San Joaquin County, Stockton, Calif 298 Clemmer, Donald, DirectOr, District of Columbia Department of Corrections -- 49 Ervin, Hon. Sam J., Jr., a U.S. Senator from the State of North Carolina 352 Fischer, Margaret A., North Washington Council, Washington, D.C.__ 516 Gasch, Oliver, attorney 245, 273 Guttmacher, Dr. Manfred, chief medical officer, supreme bench of the city of Baltimore 14i. Harris, DeLong, chairman, Due Process Committee, American Civil Liberties Union, National Capital Area 399 Heller, James H., secretary and member of executive board, National Capital Area Civil Liberties Union 399 Holtzoff, Hon. Alexander, judge, U. S. District Court for the District of Columbia 241, 319 Inbau, Fred E., professor, Criminal Law Department, Northwestern University School of Law, Chicago, Ill 323 Kamisar, Yale, professor, `School of Law, University of Minnesota, Minneapolis, Minn 364 Katzenbach, Hon Nicholas deB., Deputy U.S. Attorney General 431 Kneipp, Robert, Assistant Corporation Counsel, District of Columbia_ 115 Krash, Abe, attorney 150 Murray, Maj. Robert V., Chief, Metropolitan Police Department, District of Columbia 72,83,452 McLaughlin, Robert E., president, Citizens Crime Commission of Metropolitan Washington 395 Norwood, William K., chairman, Public Protection Committee, Metro- politan Washington Board of Trade 79,259,425 Overholser, Dr. Winfred, former Superintendent, St. Elizabeths Hospital 118 Panzer, Irving R. M., Washington chapter, American. Veterans Com- mittee 479 Patterson, John A., Jr., first vice president, Chevy Chase Citizens Association 520 Pye, A. Kenneth, associate dean, Georgetown University Law School 170, 384 Rauh, Joseph L., Jr., vice chairman, District of Columbia Democratic Central Committee 422 Roberts, William A., president, District of Columbia* Federation of Citizens Associations 266 Schrotel, Col. Stanley R., chief, Cincinnati, Ohio, Police DepartmenL_ 286 Schwartz, Philip, member, board of directors, Washington chapter, Americans for Democratic Action 417 Shadoan, George W., attorney and adjunct professor of law, George- town University Law Center, Washington, D.C 334 Tobriner, I-Ion. Walter N., president, District of Columbia Board of Commissioners 31, 475 Wilson, A. W., superintendent, Chicago, Ill., Police Department 30~ Zagri, Sidney, legislative counsel, International Brotherhood of Team- ~ters III PAGENO="0004" IV CONTENTS MISCELLANEOUS STATEMENTS AND DATA MADE A PART OF THE RECORD I. REPORTS District of Columbia Board of Commissioners: Page On H.R. 7525 14 Statement and draft bilirelating to acquisition and possession of fire- arms - District of Columbia Council on Law Enforcement, on H.R. 7525 23 National Rifle Association of America, on H.R. 7525~ 25 U.S. Department of Justice: On S. 486 On H.R. 7525 9 II. LETTERS AND RESOLUTIONS Bar Association of the District of Columbia, letter and attachments ad- dressed to Hon. Alan Bible dated October 10, 1963, re H.R. 7525 178 CaniLs, Michael N., to Hon. Alan Bible, supplementing testimony 305 Federation of Citizens Associations of the District of Columbia, stating position on H.R. 7525 267 Gasch, Oliver, to Hon. Alan Bible: Re Durham rule 257 Re Mallory rule 283 National Sheriffs' Association, resolution recommending that Metropolitan Police Department be granted time for interrogation of crime suspects before arraignment 298 Optometric Society of the District of Columbia, re 5. 486 30 Remington, Frank J., professor of law, University of Wisconsin, letter dated November 4, 1963, re titles I and III of H.R. 7525 524 Murphy, Michael, New York City police commissioner, letter addressed to Chief Robert V. Murray, Superintendent, Metropolitan Police Depart- ment, relating to so-called Sullivan gun law 48 Wilson, A. W., superintendent, Chicago, Ill., Police Department, to Hon. Alan Bible, supplementing testimony 313 III. STATISTICAL DATA AND ExHnuTs Advisory Committee on Criminal Rules of the Judicial Conference of the United States, report of its study of the provisions of rule 5(a) of Federal Rules of Criminal Procedure 532 Criminal responsibility, various tests of 155 District of Columbia Department of Corrections, data indicating reside"- tial tenure in Washington, District of Columbia, of felons and mis- demeanants Federal Bureau of Prisons: Table showing average sentence length of Federal prisoners received from court in fiscal year 1962, by offense and judicial circuit.~_. 62 Table showing average time served, by offense, for felony prisoners released for first time on their sentence from State institutions, and from District of Columbia institutions, 1960 63 Chart showing average time served and average sentence of burglary offenders released from State institutions in 1960 489 Metropolitan Police Department: Table showing part I felonies in the District of Columbia: Apparent relationship of Mallory decision 77 Chart showing serious offenses reported, District of Columbia, by month 78 PAGENO="0005" CONTENTS V IV. MIScELLANEoUS ARTICLES Page Acheson, David C., U.S. attorney for the District of Columbia, article written by and appearing in Georgetown Law Journal 85 Hall, Jerome, professor, University of Indiana, article written by on Dur- ham rule which appeared in American Bar Association Journal, Octo- ber 1963 526 Overholser, Dr. Winfred, articles written by on mental illness and legal proposals 127 V. TEXT OF BILLs H.R. 7525 1 5. 486 26 S. 1012, introduced by Senator Sam Ervin 353 APPENDIX I. WRITTEN STATEMENTS AND LETTERS A. SUPPLEMENTAL STATEMENTS Carliner, David, chairman, National Capital Area Civil Liberties Union__ 541 Gasch, Oliver, attorney 551 Harris, DeLong, attorney 550 Heller, James H., secretary, National Capital Area Civil Liberties Union_ 543 Holtzoff, Alexander, U.S. district judge 537 Inbau, Fred E., professor of law, Northwestern University 553 Kamisar, Yale, professor of law, University of Minnesota Law School---- 544 McLaughlin, Robert E., Citizens' Crime Commission of Metropolitan Washington 568 Murray, Robert V., Metropolitan Police Department, cites arrest pro- cedures in other cities 572 Norwood, William K., Metropolitan Washington Board of Trade 558 Okun, Joshua, project director, Standing Committee on "Problems Con- nected With Mental Examination of the Accused in Criminal Cases, Before Trial," Georgetown University Law Center 700 Pye, A. Kenneth, associate dean, Georgetown University Law Center____ 555 Rauh, Joseph L., Jr., acting chairman, Democratic Central Committee__ 548 Remington, Frank J., professor of law, University of Wisconsin Law School 567 Schwartz, Philip, Americans for Democratic Action 560 Shadoan, George W., attorney 540 Wilson, 0. W., superintendent, Chicago Police Department 543 Zagri, Sidney, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America 561 B. ORIGINAL WRITTEN STATEMENTS AND LETTER5 American University Park Citizens' Association, statement of 570 Bible, Hon. Alan, letter sent by, to Prof. Arthur Sutherland, Harvard University Law School 5~9 Bible, Hon. Alan, letter written by to several witnesses who testified on HR. 7525 requesting written comments on amendments suggested by U.S. Department of Justice 537 Capitol Hill Southeast Citizens Association, letter urging enactment of H.R. 7525 571 Murray, Albert F., letter from 571 Sutherland, Arthur E., professor, Harvard University Law School, letter re scope and expected conclusion date of American Law Institute pre- arraignment study 569 West End Citizens Association, resolution endorsing H.R. 7525 571 PAGENO="0006" V3 CONTENTS II. COURT CASES A. FULL TEXT Page Coleman v. United State, before U.S. Court of Appeals for the District of Columbia 679 Durham v. United States 625 Jones, Elsie T7., v. United. States, before U. S. Court of Appeals for the District of Columbia Circuit 640 Mallory, Andrew B., v. United. States, before U. S. Supreme Court (June 24, 1957 765 McDonald v. United States, before U. S. Court of Appeals for the District of Columbia 646 1lluschette v. United States, before U. S. Court of Appeals for the District of Columbia - 690 Tatum., Carl, v. United States, before U. S. Court of Appeals for the District of Columbia 676 Tatum, Earl, v. United States, before U.S. Court of Appeals for the District Columbia 674 White v. United States, before U. S. Court of Appeals for the District of Columbia 684 B. 5YNOPSIS Anonymous v. Baker (360 U.S. 287 (1959)) 623 In Re Groban (352 U.S. 330 (1957) ) 623 Coleman, Tony A., v. United. States (317 F. 2d 891 (April 19, 1963) ) 623 Coleman, Charles S., v. United States (313 F. Zd 576 (December 20, 1962) ) 624 Luited States v. James J. Jones (D.C.D.C. Crim. No. 366-63 (tried July 22, 1963)) 624 III. EXHIBITS, CHARTS, DATA Charts showing number of persons committed to St. Elizabeths Hospital by U.S. district court as result of acquittal by reason of insanity; type of crime for which tried and committed; number granted unconditional release; and time elapsed between commitment and unconditional release. Prepared by Standing Committee on "Problems Connected With Mental Examination of the Accused in Criminal Cases, Before Trial," Georgetown University Law Center 701 Compilation of District of Columbia and State Criminal Statutes showing a comparison of mandatory minimum and maximum sentences that ~ean be imposed in connection with certain criminal offenses. Prepared ~y Library of Congress 713 IV. PREss RELEASE Department of Justice, August 18, 1958, citing an excerpt re ]IcXabb- Mallory question 699 PAGENO="0007" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA THURSDAY, OCTOBER 10, 1963 U.S. SENATE, COMMITTEE ON THE DISTRICT OF COLUMBIA, Washington, D.C. The Committee met, pursuant to notice, at 10 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presiding. Present: Senators Bible, Beau, and Dominick. Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard Judd, pro- fessiónal staff member. The CHAIRMAI~r. The committee will come to order. This is the time we have regularly set and noticed for the commence- ment of our hearings on H.R. 7525. This bill is hereby made a part of the record of this hearing and the reporter will, likewise, make as a part of the record of this hearing the official reports received, one from the Department of Justice on this overall bill, the official report of the District of Columbia Commissioners dated September 13; a letter and enclosure from Mr. Acheson, Chairman of the Council on Law Enforcement in the District of Columbia, dated September 12; a letter from Mr. Franklin L. Orth, executive vice president of the Na- tional Rifle Association of America, dated September 20, 1963, re- questing permission to testify if the subject of registration of hand- guns is heard by the committee. Each of these official communica- tions will be made a part of the record at this point. (H.R. 7525 and the reports referred to follow:) [H R 7o25 88th Cong 1st sess] AN* ACT Relating to crime and criminal procedure In the District of Columbia Be it enacted by the senate and House of Representatives of the United ~States of America in Congress assembled, TITLE I SEc. 101. (a) In the courts of the District of Columbia, evidence, including, but not limited to, statements and confessions, otherwise admissible, shall not be inadmissible solely because of delay in taking an arrested person before a com- missioner or other officer empowered to commit persons charged with offenses against the laws of the United States. (b) No statement, including a confession, made by any person during an in- terrogation by a law-enforcement officer made while such person is under arrest shall be. admissible unless prior to such interrogation the arrested person had been advised that he is not required to make a statement and that any statement made by him may be used against him. 1 PAGENO="0008" 2 AMENDMENTS TO CRIMINAL STATUTES OF D.C. TITLE II SEC. 201. Section 927 of the Act entitled "An Act to establish a code of law for the District of Columbia", approved March 3, 1901, as amended (D.C. Coder sec. 24-301 and the following), is amended to read as follows: "~ 927. Insane criminals "(a). Mental disease or defect excluding responsibility; sociopathic and psy- chopathic personality is not disease or defect: "(1) A person is not responsible for criminalconduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to know or appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. "(2) The terms `mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. "(b) Evidence of mental disease or defect admissible when relevant to element of the offense: "(1) Evidence that the defendant in a criminal proceeding suffered from a mental disease or defect shall be admissible whenever it is relevant to. prove that the defendant did or did not have a state of mind which is an element of the offense. "(c) Mental disease or defect excluding responsibility is affirmative defense; requirement of notice; form of verdict: "(1) Mental disease or defect excluding responsibility is an affirmative defense which the defendant . must establish. by showing of substantial evidence. "(2) Evidence of mental disease or defect excluding responsibility shall not be admissible unless the defendant, at the time of entering his plea of not guilty or within fifteen days thereafter or at such later time as the court may. for good cause permit, files with the court and the prosecution written notice of his purpose to rely on such defense. "(3) When the defendant is acquitted on the ground of mental disease or defect excluding respOnsibility, the verdict and the judgment shall so state. "(d) Mental disease or defect excluding fitness to proceed: "(1) No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried or sentenced for the commission of an offense so long as such incapacity endures. "(e) Psychiatric examination of defendant with respect to mental disease or defect excluding responsibility or fitness to proceed: "(1) Whenever the defendant has filed a notice of intention to rely on the defense of mental disease or defect excluding responsibility supported by prima fade evidence submitted to the court or there is substantial reason to doubt his fitness or capacity to proceed, or substantial reason to believe that mental disease or defect of the defendant will otherwise become an issue in the case, the court shall appoint at least one qualified psychiatrist or shall request the Superintendent of the District of Columbia General Hos- pital or the Superintendent of Saint Elizabeths Hospital or the superintend- ent of any other appropriate institution to designate at least one qualified psychiatrist, which designation may be or include the superintendent of such hospital, to examine and report upon the mental condition of the defendant. The court may order the defendant committed to a hospital or other suitable facility for the purpose of examination for such reasonable period as the court may determine to be necessary for the purpose of such examination and report. The court's power to so commit a defendant shall exist, not- withstanding the fact that the defendant has been at large on bond or baiL "(2) In such examination any method may be employed which is accepted by the medical profession for the examination of those thought to be suffer- ing from mental disease or defect. "(3) The report of the examination shall include the following: "(A,) A description of the nature of the examination; "(B) A diagnosis of the mental condition of the defendant; "(0) If the report concludes that defendant suffers from a mental disease or defect, an opinion as to his capacity to understand the pro- `ceedings against him and to assist in his own defense; "(D) When a notice of intention to rely on the defense of irresponsi- bility has been filed, an opinion as to the extent, if any, to which the PAGENO="0009" AMENDMENTS T.O CRIMINAL STATuTES OF D.C. 3 capacity of the defendant to know or appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was im- paired at the time of the criminal conduct charged (E) If the examination cannot be conducted by ieason of the un willingness of the defendant to participate therein the report shall so state and shall include, if possible, an opinion as to whether such un- willingness of the defendant was the result of mental disease or defect; and "(F) The report of the examination shall be filed in triplicate with the clerk, of the court who shall cause copies to be delivered to the prosecution and to defense counsel. `(f) Determination of fitness to proceed.; effect of finding of unfitness; pro- ceethngs if fitness is regained "(1) When the defendant's mental fitness to. proceed is drawn in ques- tion, the issue of such fitness shall be determined by the court. If neither the prosecution nor counsel for the defendant contests the finding of the report filed pursuant to subsection (e), the court may make the determina- tion on the b'isis of such report If the finding is contested the court shall hold a hearing on the issue without a jury. If the report is received in evil- dence upon such hearing the parties who contested the finding thereof shall have the right to summon and cross examine the psychiatrists who joined in the report and to offer evidence upon the issue. If the court determines that the defendant possesses fitness to proceed to trial, that is, that the defendant has the capacity to understand the proceedings against him and to assist in his own defense, the court shall order the defendant to stand trial within a reasonable time. "(2) If the court determines at any stage of the proceedings that the defendant lacks mental fitness to proceed, the proceeding against him shall be suspended, pending trial in the future, and the court shall commit the defendant to an appropriate hospital or institution for so long as such unfit- ness shall endure. Such suspension of proceedings shall not cause jeopardy to attach barring subsequent trial. Whenever the defendant who has been committed to such hospital or other institution is restored to mental fitness in the opinion of the superintendent of such hospital or institution, such superintendent shall certify such fact to the clerk of the court in which the charge against the defendant is pending and the clerk of that court shall furnish copies of said certificate to the parties to the cause. "(3) After the court receives the certificate of such superintendent that the defendant has regained mental fitness to proceed and the court deter- mines that the defendant has regained such fitness to proceed, the trial pro- ceedings shall be resumed or commenced within a reasonable time. Such determination of fitness may be made by the court on the basis of such certifi- cate that the defendant has regained fitness to proceed provided neither the Government nor counsel for the defendant contests the findings that the defendant has regained such fitness to proceed. If the finding that the de- fendant has regained fitness to proceed is contested, the court shall hold a hearing without a jury on the issue and shall determine such fitness to proceed~ "(4) If, however, the court is of the opinion that so much time has elapsed since the commitment of the defendant (to determine the fitness to proceed) that it would be unjust to resume the criminal proceedings, the court may dismiss the charge and may order the defendant committed for examina- tion and determination of status by the Mental Health Commission under the provisions of applicable law. "(g) Determination of irresponsibility on basis of report; access to defendant by psychiatrists of own choice; form of expert testimony: "(1) If the report filed pursuant to subsection (e) finds that the defendant at the time* of the criminal conduct charged suffered from a mental disease or defect which substantially impaired his capacity to appreciate the crim- inality of his conduct or to conform his conduct to the requirements of law, and the court is satisfied that such impairment was sufficient to exclude responsibility, the court shall enter judgment of acquittal on the ground of mental disease or defect excluding responsibility. "(2) When, notwithstanding the report filed pursuant to subsection (e), the defendant wishes to be examined by qualified psychiatrists ef his own choice, such phychiatrists shall be permitted to have reasonable access to the defendant for the purposes of such examination. PAGENO="0010" 4 AMENDMENTS TO CRIMiNAL STATUTES OF D.C. "(3) Upon the trial, the psychiatrists who filed reports pursuant to subsection (e) may be called as witnesses by the prosecution, the defendant, or the court. If called by the court, such witnesses shall be subject to cross- examination by the prosecution and by the defendant. Both the prosecu- tion and the defendant may summon any other qualified psychiatrist to testify but no one who has not examined the defendant shall be competent to testify to his opinion as a psychiatrist with respect to the mental condi- tion or responsibility of the defendant. "(4) When a psychiatrist who has examined the defendant testifies con- cerning his mental condition, the witness shall be permitted to make a state- ment as to the nature of his examination, and his diagnosis of the mental condition of the defendant at the time of the commission of the offense charged. Such psychiatrist shall be permitted to make any explanation reasonably serving to clarify his diagnosis and opinion and may be cross- examined as to any matter bearing on his competency or credibility or the validity of his diagnosis or opinion. "(5) Nothing herein shall exclude the prosecution from causing an examination of the defendant to be made to determine whether or not he had the capacity either to know or appreciate the wrongfulness of his conduct, to conform his conduct to the requirements of law or to under- stand the proceedings against him and assist in his own defense, provided the prosecution makes available to a defendant or his counsel the results *of such examination. "(h) Legal effect of acquittal on the ground of mental disease or defect excluding responsibility; commitment; release or discharge: "(1) When a defendant is acquitted on the ground of mental disease or defect excluding responsibility, the court shall order him to be committed to a hospital having facilities for the custody and care of the mentally ill. "(2) If the superintendent of such hospital is of the view that a person committed to his custody pursuant to paragraph (1) of this subsection is no longer suffering from mental illness and may be discharged or released on probation without danger to himself or to others, he shall make application for the discharge or release of such person in a report to the court by which such person was committed and shall transmit a copy of such application and report to the prosecution and defense counsel. The court shall thereupon appoint at least two qualified psychiatrists to examine such person and to report within sixty days, or such longer period as the court determines to be necessary for the purpose, their opinion as to his - mental condition. To facilitate such examination, and the proceedings thereon, the court may cause such person to be confined in any institution which is suitable for the temporary detention of irresponsible persons. "(3) If the court is satisfied by the report filed pursuant to paragraph (2) of this subsection and the testimony of the psychiatrists making such report, if the court deems it advisable to hear their testimony, that the committed person may be discharged or released on probation without danger to himself or others, the court shall order his discharge or release upon probation, on such conditions as the court determines to be necessary. If the court is* not so satisfied, it shall promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding and the burden shall be upon the committed person to prove that he may safely be discharged or released. According to the determination of the court upon the hearing, the committed person shall thereupon be discharged or released on probation on such conditions as the court determines to be necessary, or shall be recommitted to the custody of such hospital subject to discharge or release only in accordance with the procedure prescribed above for a first hearing. "(4) If after the release on probation of a committed person, the court shall determine, after notice and hearing, that the conditions of probation have been violated and that for the safety of such person or the safety of others his probation should be revoked, the court shall forthwith order him recommitted to a hospital having facilities for the custody, care, and treat- ment of the mentally ill subject to discharge or release only in accordance with the procedure prescribed above for a first hearing. "(5) A committed person may make application for his discharge or release to the court by which he was committed and the procedure to be followed upon such application shall be the same as that prescribed above PAGENO="0011" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 5 * in the case of an application by the superintendent of such hospital. How- ever, no such application by a committed person need be considered until he has been confined for a period of not less than six months from the date of the order of commitment, and if the determination of the court be adverse to the application, such person shall not be permitted to file a further application until one year has elapsed from the date of any preceding hearing on an application for his release or discharge. "(i) Jury not to be told of consequence of verdict: "(1) The jury shall not be told by the court or counsel for the Govern- ment or the defendant at any time regarding the consequences of a verdict of not guilty or acquittal by reason of insanity. "(j) Availability of habeas corpus: "(1) Nothing herein contained shall preclude a person confined under the authority of this Act from establishing his eligibility for release by a write of habeas corpus. "(k) Courts concerned: "(1) This section shall apply only to proceedings brought by information or indictment in the United States District Court for the District of Colum- bia, and the District of Columbia Court of General Sessions, and to pro- ceedings brought to juvenile court in the District of Columbia. "(1) Severability: "(1) The invalidity of any portion of this section shall not affect the validity of any other portion thereof which can be given effect without such invalid part." SEC. 202. Nothing contained in the amendment made by section 201 of this title shall be deemed to alter, amend, or repeal section 928 or section 929(b) of such Act of March 3, 1901, as amended, or the Act entitled "An Act relating to the testimony of physicians in the courts of the District of Columbia", received by the President May 13, 1896 (29 Stat. 138; D.C. Code, sec. 14-308). SEC. 203. Subsection (a) of section 929 of such Act of March 3, 1901, as amended (D.C. Code, sec. 24-303(a)), is hereby repealed. TITLE III SEC. 301. (a) An officer or member of the Metropolitan Police force of the District of Columbia may detain any person abroad whom he has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand of him his name, address, business abroad and whither he is going. (b) Any person so questioned who fails to identify himself or explain his action to the satisfaction of the officer or member (as the case may be) may be detained and further questioned and investigated. (c) The total period of detention provided for by this section shall not exceed six hours. Such detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime. SEC. 302. Section 401, the Revised Statutes of the United States, relating to the District of Columbia (D.C. Code, sec. 4-144), is amended to read as follows: "SEC. 401. (a) Whenever there is reasonable ground to believe that any per- son ~may be a materialwitness to the commission of any felony or attempt.to commit any felony. and that there is a reasonable probability that such person will not be available as a witness during the investigation of such offense by the Metropolitan Police, or when a suspect is arrested or tried therefor, such person may be required by a judge of the United States District Court for the District of Columbia or of the District of Columbia Court of General Sessions, or by a United States Commissioner to post bond or deposit collateral to secure his appearance as such witness during the investigation of such felony or at- tempt or the trial of such suspect. Such person may be detained by the Metro- politan Police, pending the posting of bond or collateral, in a room specially provided for witnesses, separate and apart from the quarters provided for those charged with crime, and in any event he shall be presented before a judge or commissioner within six hours of the beginning of such detention, and the judge or commissioner shall then require him to post bond or collateral, or discharge him. Such detention shall not constitute an arrest within the mean- ing of that term as used in any other law. "(b) The Board of Commissioners shall provide suitable accommodations within the District of Columbia for the detention of witnesses who are unable PAGENO="0012" 6 AMENDMENTS TO CRIMINAL STATUTES OF D.C. to furnish security for their appearance in criminal proceedings. Such acconi- modations shall be in premises other than those used for the confinement of persons charged with crimes." TITLE IV SEC. 401. The definition of "crime of violence" contained in section 1 of the Act entitled "An Act to control the possession, sale, transfer, and use of pistols and other dangerous weapons in the District of Columbia. to provide penalties, to prescribe rules of evidence, and for other purposes", approved July 8, 1932 (D.C. Code, sec. 22-3201), is amended by inserting immediately after "burglary," the following: "robbery,". TITLE V SEC. 501. Section 803 of the Act entitled "An Act to establish a code of law for the District of Columbia". approved March 3, 1901 (31 Stat. 1321: D.C. Code, sec. 22-501), is amended by inserting immediately after "for not" the fol- lowing: "less than two years or". SEC. 502. (a) Section 823 of the Act entitled "An Act to establish a code of law for the District of Columbia", approved March 3, 1901 (31 Stat. 1323; D.C. Code, sec. 22-1801), is amended to read as follows: "SEC. 823 BunGL~nY.-(a) Whoever shall, either in nighttime or in the day- time, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break or carry away any part thereof, or any fixture or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in the actual occupation of any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. Burglary in the first degree shall be punished by imprisonment for not less than twenty years nor more than life imprisonment, and, notwithstanding any other provision of law, any person who violates this subsection and upon whom a sentence of life imprisonment is imposed shall be eligible for parole only after the expiration of twenty years from the date he commences to serve his sentence. "(b) Except as provided in subsection (a) of this section, whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling, bank, store, warehouse, shop, stable, or other building, or any apart- inent or room, whether at the time occupied or not, or any steamboat, canal boat, vessel, or other watercraft, or railroad car, or any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade, with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree. Burglary in the second degree shall be punished by imprisonment for not less than five years nor more than fifteen years." (b) Any person tried before the effective date of this Act for vioIation~of sec- tion 823 of such Act approved March 3, 1901, and who is before a court for the purpose of sentence or resentence, shall be sentenced in accordance with the law in effect before the effective date of this Act. SEC. 503. Section 810 of the Act entitled "An Act to establish a code of law for the District of Columbia", approved March 3, 1901 (31 Stat. 1322; D.C. Code, sec. 22-2901), is amended by striking out "six months" and inserting in lieu thereof "five years". SEC. 504. Section 869e of the Act entitled "An Act to establish a code of law for the "District of Columbia", approved March 3, 1901 (D.C. Code, sec. 22-1513), is amended to read as follows: "SEC. 869e. ComiuPT INFLUENCE ix CoNNEcTIoN Wrrn ATHLETIC CONTESTS.- (a) If any person shall bribe or offer to bribe or shall aid, advise, or abet in any way another in such bribe or offer to bribe, any player or participant in any athletic contest with intent to influence his play, action, or conduct and for the purpose of inducing the player or participant to lose or try to lose or cause to be lost such athletic contest or to limit or try to limit the margin of victory or defeat in such contest; or if any person shall bribe or offer to bribe or shall aid, advise, or abet in any way another in such bribe or offer to bribe, any referee. umpire, manager coach, or any other official of an athletic club or team, league, associa- tion, institution, or conference, by whatever name called connected with such athletic contest with intent to influence his decision or bias his opinion or judg- PAGENO="0013" AMENDMENTS TO CRIMINAL STATUTES OF D~C. 7 ment for the purpose of losing or trying to lose or causing to be lost such athletic contest or of liniiting or trying to limit the margin of victory or defeat in such contest, such person shall be imprisoned not less than one nor more than ten years, and shall be fined not less than $3,000, nor more than $10,000. "(b) If any player or participant in any athletic contest shall accept, or agree to accept, a bribe given for the purpose of inducing the player or participant to lose or try to lose or cause to be lost or to limit or try to limit the margin of victory or defeat in such contest; or if any referee, umpire, manager, coach, or any other official of an athletic club, team, league, association, institution, or conference connected with an athletic contest shall accept or agree to accept a bribe given with the intent to influence his decision or bias his opinion or judg- ment and for the purpose of losing or trying to lose or causing to be lost such athletic contest or of limiting or trying to limit the margin of victory or defeat in such contest, such person shall be imprisoned not less than one nor more than ten years or fined or both `(c) To violate subsection (a) or (b) of this section, it shall not be necessary that the player, manager, coach, referee, umpire, or official shall, at the thne, have been actually employed, selected, or appointed to perform his respective duties; it shall be sufficient if the bribe be offered, accepted, or agreed to with the view of probable employment, selection, or appointment of the person to whom the bribeis offered or by whom it is accepted. It shall not be necessary that such player, referee, umpire, manager, coach, or other official actually play or participate in an athletiC contest, concerning which such bribe is offered or accepted; it shall be sufficient if the bribe be given, offered, or accepted in view of his or their possibly participating therCiñ. "(d) As used in this section, the term "bribe" means any gift, emolument, money or thing of value, testimonial, privilege, appointment or personal advan- tage, or the promise thereof, bestowed or promised for, the purpose of influencing, directly or indirectly, any player, referee, manager, coach, umpire, club or league official, in connection with any athletic contest with respect to which an admission fee may be charged or in connection with any `tthletic contest with respect to which any player managei coach umpire reieree or other official is paid any compensation for his services. A bribe need not be direct; it may be such as is hidden under the semblance of a sale, bet, wager, payment of a debt, or in any other manner designed to cover the true intention of the parties. "(e) If any player or participant shall cOmmit any willful act of omission or commission, in playing of an athletic contest, with intent to lose or try to lose or to cause to be lost or to try or limit the margin of victory or defeat in such contest for the purpose of material gain to himself, or if any referee, umpire, manager, coach, or other official of an athletic club, team, league, asso- ciation institution or conference connected with an athletic contest shall commit any willful act of omission or commission connected with his official duties with intent to try to lose or to cause to be lost or to limit or try to limit the margin of victory or defeat in such contest for the purpose of material gain to himself, such person shall be imprisoned not less than one nor more than ten years, or fined, or both. (f) Nothing in this section shall be construed to prohibit the giving or offer ing of any bonus or extra compensation to any manager, coach, or professional player, or to any league, association, or conference for the purpose of encour- aging such manager coach or player to a higher degree of skill ability or diligence in the performance of his duties SEc. 505. Section 2 of the Act entitled "An Act to control the possession, sale, transfer, and use of pistols and other dangerous weapons in the District of Co- lumbia, to provide penalties, to prescribe rules of evidence, and for other pur- poses", approved ruly 8, 1932 (47 Stat. 650; D.C. Code, sec. 22-3202), is amended by striking out "he may" at each of the four places it appears therein and insert- ing in lieu thereof at each such place "he shall"; and by adding at the end thereof the following: "If a person is convicted of having committed a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm, then, notwithstanding any other provision of law, the court shall not suspend his sentence or give him a probationary sentence." SEC 506 Section 872 of the Act entitled An Act to establish a code of law for the District of Columbia approved March 3 1901 (D C Code see 22-2001) is amended to read as follows SEC 872 INDECENT PUBLICATIONS -(a) Whoever sells or offers to sell oi give away in the District or has in his possession with intent to sell or give away or to evhibit to another any obscene lewd or indecent book pamphlet draw ing PAGENO="0014" 8 AMENDMENTS TO CRIMINAL STATUTES OF D.C. engraving, picture, photograph, instrument, magazine, story, paper, writing, card, print, motion picture film, image, cast, slide, figure, statue, phonograph record, wire, tape, or other sound recording, or other presentation or article of indecent or immoral use, or advertises the same for sale, or writes or prints any letter, circular, handbill, book, pamphlet, or notice of any kind stating by what means any of such articles may be obtained, or advertises any drug, nostrum, or instrument intended to produce abortion, or gives or participates in, or by bill, poster, or otherwise advertises, any public exhibition, show, performance, or play containing obscene, indecent, or lascivious language, postures, or sugges- tions, or otherwise offending public decency, shall be fined not less than $200 nor more than $5,000, or imprisoned not less than three months nor more than two years, or both. "(b) Whoever in the District with knowledge that the same is for the pur- pose of being sold, given away, or exhibited to another, produces, manufactures, photographs, acts in, poses for, models for, prints, records, televises, composes, edits, writes, publishes or offers to publish, or has in possession, any obscene, lewd, or indecent book, pamphlet, drawing, engraving, picture, photograph, instrument, magazine, story, paper, writing, card, print, motion picture film, image, cast, slide, figure, statue, phonograph record, wire, tape, or other sound recording, or other presentation or article of indecent or immoral use, or ad- vertises the same for sale, or writes or prints any letter, circular, handbill, book, pamphlet, or notice of any kind stating by what means any of such articles may be obtained, shall be fined not less than $200 nor more than $5,000, or imprisoned not less than three months nor more than two years, or both. The United States attorney for the District of Columbia and the Corpora- tion Counsel of the District of Columbia are authorized to petition the United States District Court for the District of Columbia for a temporary restraining order to restrain the sale, gift, or exhibition, or distribution, or the offer to sell, give, exhibit, or distribute any obscene, lewd, or indecent matter the sale, gift, exhibition, or distribution of which is punishable under either subsection (a) or (b) of this section, and to restrain the use of any real or personal property for such purpose, and the United States District Court for the District of Columbia is authorized to issue ex parte such a temporary restraining order for a period of not to exceed ten days. "(d) Whenever a temporary restraining order is issued under subsection (c) of this section, the United States District Court for the District of Columbia during the period such temporary restraining order is in effect, and after notice and hearing, may issue a preliminary injunction pending a trial of the issues enjoining the sale, gift, exhibition, or distribution, or the offer to sell, give, exhibit, or distribute the matter and enjoining the disposition and the use of property subject to the restraining order, and such preliminary injunction may permit the seizure of such obscene, lewd, or indecent matter. "(e) If after a trial of the issues a permanent injunction shall be issued by the United States District Court for the District of Columbia, such injunction shall require the destruction of the obscene, lewd, or indecent matter seized un- der the preliminary injunction and permanently enjoin the use of the real prop- erty subject to the preliminary injunction for the purpose of violating this sectiorr. "(f) Any personal property subject to a preliminary injunction issued under subsection (d) of this section shall, if a permanent injunction is issued under subsection (e) of this section, in the discretion of the court, be forfeited to the District of Columbia, and sold at public auction, the proceeds from such sale to be deposited in the Treasury to the credit of the District of Columbia. If any item of such property is not purchased at such auction it shall be disposed of in accordance with regulations prescribed by the Commissioners. If any property seized under authority of this subsection is subject to a lien which is established to the satisfaction of the court as having been cieated without the lienor's having any notice that such property was to be used in connection with the violation of this section, such lien shall be transferred from the property to the proceeds of any sale or other disposition thereof made under authority of this subsection. "(g) For the purpose of obtaining a temporary restraining order or a prelim- inary or permanent injunction under subsection (c), (d), or (e) of this section, it shall not be necessary for the United States attorney or the Corporation Counsel to allege or prove that an adequate remedy at law does not exist or that substantIal irreparable damage would result from the violations alleged. "(h) Injunctive proceedings under this section shall be governed by the Federal Rules of Civil Procedure so far as they are consistent with the provi- sions of this section." PAGENO="0015" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 9 SEC. 507. Section. 825a of the Act entitled "An Act to establish a code of law for the District of Columbia approved March 3 1901 (D C Code sec 22-3105) is amended by striking out "or by imprisonment not exceeding ten years." and inserting in lieu thereof the following: "and by imprisonment for not less than five years or more than ten years." SEC. 508. Whoever shall make or cause to be made to the Metropolitan Police Department of the District of Columbia, or to any officer or member thereof, a false or fictitious report of the commission of any criminal offense within the District of Columbia, or a false or fictitious report of any other matter or occurrence of which such Metropolitan Police Department is required to receive reports or in connection with which such Metropolitan Police Department is required to conduct an investigation, knowing such report to be false or fictitious; or who shall communicate or cause to be communicated to such Metropolitan Police Department, or any officer or member thereof, any false . information concerning the commission of any criminal offense within the District of Colum- bia or concerning any other matter or occurrence of which such Metropolitan Police Department is required to receive reports, or in connection with which such Metropolitan Police Department is required to conduct an. investigation, knowing such information to be false, shall be punished by a fine not exceeding ~$100 or by imprisonment not exceeding six months, or both. Passed the House of Representatives August 12, 1963. Attest: RALPH R. ROBERTS, Clerk. U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUrv ATTORNEY GENERAL, Washington, D.C. Hon. ALAN BIBLE, Chairman, Committee on the District of Colunibia~ 11.2. Senate, Washington, D.C. DEAR SENATOR: This is in response to your request for the views of the Depart- ment of Justice on H.R. 7525, a bill relating to crime and criminal procedure in the District of Columbia. We understand from Mr. Acheson that he has asked you to consider this report as a response to your request for his views. TITLE I. MALLORY RULE Title I as passed by the House of Representatives is intended as a response to the Supreme Court decision in Mallory v. United States, 354 U.S. 449 (1957). However it raises serious constitutional difficulties in dispensing with safe guards which the Mallory rule assured to persons charged with crime. If a change in some of the recent interpretations of the Mallory rule is to be legislated, certain essential safeguards should be preserved to save the bill from constit- tutional attack. The Mallory rule is a rule of evidence in criminal trials. The rule excludes a confession from evidence if it was obtained during a period of unnecessary delay in bringing an arrested person before a committee magistrate. It is intended as a judicial sanction with which to enforce Rule 5(a) of the Federal Rules of Criminal Procedure, which rule requires that an arrested person be taken without unnecessary delay to a committing magistrate to be advised of his rights and to ~receive a preliminary hearing. The Supreme Court made it clear that the Mallory rule was intended to prevent law enforcement officers from delaying preliminary hearings for the purpose of eliciting confessions. This is as it should be. However, since the decision in the Mallory case there have been numerous cases in the District of Columbia1 interpreting "unnecessary delay." Compara- i The Mallory rule is not frequently invoked In Federal criminal cases in jurisdictions other than the District of Columbia. The reason is twofold. First, only In the District of Columbia do the Federal courts have broad jurisdiction over crimes of violence which characteristically lack eyewitnesses and independent evidence. It is quite comnion in -cases of homicide, yoke robberies, rapes, and certain other crimes that there is no third eyewitness. and it is ofen very difficult for the complaining witness to make an identifica- tion. In homicides there is no complaining witness at all. Thus, confessions assume far greater significance as evidence of guilt, and it becomes important to defendants to -exclude their confessions in the courts of the District of Columbia. Second. by contrast most Federal criminal cases in other jurisdictions involve frauds, mail thefts, narcotic viola tions. and the like, where there is substantial evidence apart from a confession, i.e., -contraband property, financial records, tax returns, etc. PAGENO="0016" 10 AMENDMENTS TO CRIMINAL STATUTES OF D.C. tively brief periods of interrogation following arrest have been held to be unnecessar delay and have resulted in the exclusion of confessions See e g Elsie V. Jones v. United States, 113 U.S. App. D.C. 256, 307 F. 2d 397 (1962); Charles S. Coleman v. United States, 114 U.S. App. D.C. -, 313 F. 2d, 57~ (1962); Gail A. Tatum v. United States, 114 U.S~ App. D.C. , 313 F. 2d 579 (1962); To;iy Coleman v. United States, - U.S. App. D.C. -, 317 F. 2d 891 1963 ) 2 Most recently, in a dissenting opinion in Robert A. Muschette v. United States, D.C. Cir. N. 17410 (July 25, 1963), it was contended that a confession obtained 25 minutes after arrest, and 1 hour and 50 minutes before the arrested person was presented to the committing magistrate, should be excluded. In the recent case of United States v. James J. Jones, Grim. No. 366-63, the trial judge excluded a confession which occurred 15 minutes after arrest, and prior to presentment of the arrested person to the committing magistrate. These more extreme applications of the Mallory rule suggest that any interroga- tion of arrested persons prior to presenting them to. committing magistrates may result in the banning of confessions for unnecessary delay.. This is an unneces- sary and undesirable application of the Mallory rule. Interrogation itself is not a violation of due process or other constitutional rights. Interrogation, free of abuses, is a valuable investigative tool. Hence, within the framework of rule 5(a) of the Federal Rules of Criminal Procedure, ally legislation dealing with the Mallory rule should set up standards for the use of confessions and assure the presence of the essential safeguards assured to defendants by the Constitu- tion and rule 5(a). Title I of H.R. 7525 does not provide adequate standards, or maintain neces- sary safeguards. The dissents of four Justices in two Supreme Court cases sug- gest that a warning such as the one incorporated in H.R. 7525 is not adequate. In the cases of In re Groban, 352 U.S. 330 (1956) and Anonymous v. Baker, 36~ U.S. 287 (1958), four dissenters expressed their view that compulsory inter- rogation in camera without permitting a subject to be accompanied by counsel amounts to denial of due process of law. Although these views ~re dissenting views, the issue cannot be ignored; and would be squarely before a reconstituted court under subsection (b) of section 101. As an alternative to H.R.. 7525, we call your attention to the provisions of H.R. 5726, which was prepared by the U.S. attorney for the District of Columbia. Under H.R. 5726, a confession elicited after arrest could not be received in evi- dence unless the defendant had been advised of his right not to make a state- ment and that any he did make might be lLsed.against him, given an opportunity to notify a relative or friend and consult with counsel, and, when reasonably. pos- sible, interrogated in the presence of an independent witness or a recording device, and presented to a magistrate no more than 6. hours after arrest. TITLE II. DURHAM RULE The provisions of title II of .H.R. 7525, dealing with the defense of insanity in criminal cases are identical with those of H.R. 7052 of the 87th Congress, which passed the House of Representatives in. June 1961. They are directed at the problems which have arisen in the application of the decision of the U.S'. Court of Appeals for the District of Columbia in Durham v. United States, 94 U.S. App. D.C. 228, 214 F. 2d 862 (1954). In the opinion of many qualified commenta- tors, this decision complicated the trial of the issue of criminal responsibility and introduced serious handicaps to criminal prosecution, in spite of the fact that the basic aim of Durham was to allow a greater latitude to both defense and prosecution in the use of psychiatric testimony. The difficulties which evolved from Durham have been discussed in a recent article by Mr. David C. Acheson, U.S. attorney for the. District of Columbia, in "McDonald v. United States: The Durham Rule Redefined," 51 Georgetown Law Journal 58. In Mr. Acheson's opinion and that of the Department of Justice, the difficulties that inhere in the Durham rule have been largely obviated by the decision in McDonald v. United States, 312 F. 2d 847 (1962). The McDonald decision brings the test of criminal responsibility closer to the standard of control over behavior and restores to the jury the function of passing upon the credibility and weight Elsie V. Jones: Arrest. 4 :25 n.m. Sunday; confession, S am. Sunday: committing magistrate, 9 n.m. Monday. Charles T. Coleman: Arrest, 8 :45 p.m.; confession, 5 :50 p.m.; committing magistrate, 10 n.m. Carl A. Tatum: Arrest, 8 p.m.; confession, 12 :15. n.m.; committing magistrate, 10 am. *~ony Coleman: Arrest, 12 :25 a.m.; confession, 1 to 3 n.m.; committing magistrate, 10 a.m. PAGENO="0017" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 11. of testimony of expert witnesses, thus sharply curtailing the practice of court-- directed verdicts of acquittal by reason of insanity. It is a major modification of the Durham rule. It is noteworthy that in the McDonald case the en bane opinion of the court was unanimous, and reflected a willingness on the part of the court to make adjustments in the Dvrham rule and to apply a continuing re- evaluation to developments in this field of the law. We believe, therefore, that the court should be given the opportunity to further consolidate and crystallize its recent departure in the field of criminal responsibility, and that legislation at this time would only bring new controversy and confusion into a field which seems to be clarifying in a satisfactory way. It should be added that the effect of McDonald appears to have been to reduce sharply the rate of acquittals by reason of insanity. The following comparison of fiscal years may be of interest to the committee: Fiscal year . Defendants disposed of by verdicts of not guilty by reason of insanity 1 Verdicts of not guilty by reason of insanity in trials by court Verdicts of not guilty by reason of insanity in trials by jury Verdicts of not guilty by reason of insanity directed by court 1958 1959 1960 1961 1962 21 35 36 66 67 2 50 8 19 19 47 42 34 13 16 17 19 25 15 4 10 5 8 9 3 1963 1 Total of cola. 3 and 4. 2 Total of cols. 3 and 4, plus 1 case verdict of not guilty by reason of insanity directed by court of appeals. TITLE III. DETENTION OF SUSPECTS AND MATERIAL WITNESSES Section 301 of title III permits an officer or member of the Metropolitan Police Department to detain, for a period of 6 hours, any person found abroad whom such officer has reason to suspect is committing, has committed, or is about to commit a crime, and who, upon inquiry, fails to identify himself or give a satisfactory explanation of his action. Such detentions are arrests. Legislative statements to the contrary cannot avoid the fact that title III provides for seizure without probable cause. This is a violation of the fourth amendment to the Constitution. Further, title III provides for 6 hours of detention without any provision for the assistance of counsel. This procedure may well be violative of sixth amendment rights. See In re Groban and Anonymous v. Baker, cited above. In addition, the detention proposed by title III deprives a person of his opportunity to seek bail immedi- ately, keeps him incommunicado, suspends his right of habeas corpus, and tends to impair his privilege against self-incrimination under the fifth amendment. Essentially, section 301 is a legislative effort to reinstitute investigative arrests, a practice long criticized by the bar of the District of Columbia, condemned by a special committee appointed by the District of Columbia Commissioners to study the problem, and ended by order of the Commissioners in March of this year. While, for these reasons, we must oppose section 301 of H.R. 7525, we fully recognize the necessity for securing the appearance of material witnesses, which is the subject of section 302. In this connection, we call your attention to 5. 1148, a bill prepared by the District of Columbia Commissioners "To amend the law relating to material and necessary witnesses to crimes committed in the District of Columbia." We believe that bill represents a sounder approach to the problem of material witnesses than does section 302. S. 1148 is patterned after rule 46(b) of the Federal Rules of Criminal Procedure. It does not permit a 6-hour detention; rather, it requires presentment of the witness to a judicial officer "without unnecessary delay" for determination of whether the person is a material and necessary witness and whether there is a reasonable probability he will not be available at the trial. If the committee should be disposed to consider S. 1148 favorably, we offer the following suggestions for improvement of that bill: Recognizing that the person involved is not accused of a criminal act, and may even be the victim of that act, it would seem desirable to provide a means for witnesses to be released from confinement when financially unable to post bond. 25-260-64-pt. 1-2 PAGENO="0018" 12 AMENDMENTS TO CRIMINAL STATUTES OF D.C. In Some States, by statute, once the defendant is apprehended the deposition ~of the wintness may be taken, and the defendant afforded the right of cross- examination. Rule 15(a) of the Federal Rules of Criminal Procedure has a similar provision. While the rules of criminal procedure for the District of Columbia provide for depositions of material witnesses for the defendant who are about to leave the District (D.C. Code, sec. 23-111), no like provision is made for depositions of witnesses for the government. It is also suggested that although the witness is not accused of a crime, he should have the right to counsel and be advised of this right. An analogous situation is the right of an accused to counsel in a preliminary hearing. There is precedent for this practice. In New~ York, for example, the magistrate advises the witness of his right to counsel, and if he cannot pay for it the court will assign an attorney to serve without compensation. (See 40 Neb. L. Rev. 503, ~10; 511, note 42 commenting on "Imprisonment of the Material Witness for Failure to Give Bond.") Consideration should also be given to compensating a witness for time spent in detention awaiting interrogation or trial. While there are provisions in the District of Columbia Code for witness fees for attendance in court (D.C. Code, secs. 11-1501 and 23-109), under the weight of authority these provisions would not be broad enough to permit payment of compensation to a material witness under detention. Even if detention is a public duty which a person may properly be called on to perform, it may operate as an intolerable burden on a witness and his family if, while prevented from working, he is denied reimbursement during a prolonged detention period. As is provided in rule 46(b) of the Federal Rules of Criminal Procedure, con- sideration should be given to a provision which would authorize the judge or commissioner to order the release of the witness if he has been detained for an unreasonable amount of time, and to modify at any time the requirement as to bail. Under the language of the bill the police would, without judicial process, be empowered physically to take the material witness before the judge on the basis of their own determination that the statutory grounds exist. As a prac- ticál matter this would seem to be necessary where a witness is taken into custody at the scene of the crime. However, with respect to witnesses other than those taken into custody at the scene of the crime we suggest that consideration be given to a revision of the proposal to provide that such witnesses may not be taken before a judge except pursuant to a court-issued subpena. This could be based on an ex parte affidavit or petition. Such a revision would be consistent with rule 46(b) of the Federal Rules of Criminal Procedure. Also, to clarify the intention that not all witnesses must be detained but that those who are must be taken before a judicial officer without unnecessary delay, it is suggested that on page 2 of S. 1148, lines 2 through 4, should be amended to read: "* * * believed to be a material and necessary witness may be detained by a member of the Metropolitan Police force, or by a Federal law enforcement officer. Any person so detained shall, without unnecessary delay, be taken * * *,, TITLE Iv. DEFINITION OF CRIME OF VIOLENCE The Department has no objection to title TV of H.R. 7525. Title TV amends 22 I)istrict of Columbia Code 3201 to include robbery within the definition of "crime of violence" as used in the chapter entitled "Weapons". The definition includes the crimes of murder, manslaughter, rape, mayhem, maiming, kidnap- ing, burglary, housebreaking, larceny, assault with intent to kill, commit rape or robbery, assault with a dangerous weapon, and assault with intent to commit any offense punishable by imprisonment in the penitentiary. TITLE V. CRIMINAL OFFENSES AND MINIMUM SENTENCES Title V of H.R. 7525 contains numerous redefined criminal offenses and pro- visions for minimum sentences. For the most part we believe that the provisions of title V are unnecessary and undesirable. Sections 501. 502. 503. 505, and 507 establish mandatory minimum sentences for assault with intent to kill, rob. rape, or poison (2 years), for burglary (20 years. first degree: 5 years. second degree). for robbery (5 years), for crimes of violence committed when armed with a firearm (5 to 30 years additional), and for use of explosives with intent to injure (5 years). Mandatory sentencing is not in keeping with modern thinking, as expressed repeatedly by judges and PAGENO="0019" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 13 ~n the American Law Institute Model Penal Code. They result in serious in- equities and make it even more difficult to obtain warranted convictions. Sentencing should take into account numerous factors which vary from case to case, and the weight to be assigned to each factor should be left to the dis- cretion of the presiding judge in each instance. The interim report of the New York State Temporary Commission on Revision of the Criminal Code, -published on February 1, 1963, indicates similar misgivings about the operation of New York's habitual offender legislation. Finally, mandatory minimums are in direct conflict with Public Law 85-752 (72 Stat. 845, approved Aug. 25, 1958) which seeks to invest the sentencing -process with a full consideration of all the facthr~ involved, an objective which that law proposes to rach through judicial institutes and indeterminate sentences. Section 504 would amend section 22-1513 of the District of Columbia Code which deals with bribery in connection with athletic contests. Although we are not aware of the need for an amendment such as that proposed, this Department interposes no objection. However, the question is raised whether an intention ~`to limit the margin of victory or defeat" is necessarily a culpable intention. It may well be desirable to state the intended prohibitions in more specific terms. Also, it is noted that subsections (b) and (e) of the proposed amended section of the District of Columbia Code fail to designated the fine applicable to persons convicted thereunder. Section 506 would amend section 22-2001 of the District of Columbia Code which relates to indecent publications. The section is similar to HR. 4670 of the 87th Congress which was vetoed by the President on the basis of grave con- stitutional and other considerations posed by the legislation. This section of the bill authorir~es the issuance of an ex parte temporary restraining order prohibiting the sale or distribution of materials alleged to be obscene and restraining the use of real or personal property for such purpose. Since this is an area involving the application of the first amendment, we have serious doubt that such an ex parte proceeding would be constitutionally per- missible. We are not aware of any recent decision specifically upholding such a procedure, and the strong dissenting opinions in Kingsley Books v. Brown (354 U.S. 436, 445, 446, 447), indicate that cx parte procedures of this type -may be held unconstitutional under the first amendment. Moreover, it is our -view that the provisions authorizing ex parte orders enjoining the use of real or personal property may raise due process questions. Proposed subsection (f) of proposed section 872 provides for the forfeiture of -personal property used to produce materials found to violate the statute. This provision raises a substantial constitutional question under the first amend- ment. While the Supreme Court has held that it is permissible- for the -legis- lature to prevent the dissemination of obscene - materials through resort to the injunctive process and to provide for the seizure and destruction of materials judicially found to be obscene (Kingsley Books, Inc. v. Brown, 354 U.S. 436), we are not aware that it has ever been called upon to consider a statute which provided that the means of producing obscene material may be forfeited, nor are we aware of any such statute. We recognize, of course, that in areas not involving freedom of expression the instruments of wrongdoing may be validly forfeited (Goldsmith-Grant Co. v. United States, 254 U.S. 505). We doubt, howev~er, that this principle authorizes -the forfeiture of the means of production of obscene materials, for example, .a printing press, or the enjoining of their use so broadly as to preclude utiliza- tion for purposes protected by the first amendment. In our view, it is I)robal)le that this provision would be held by the courts to constitute an unwarranted, prior restraint on freedom of expression, prohibited by the first amendment. The Department of Justice is appreciative of the objective of section 506. However, committee consideration of the alternative language proposed in the report of the Commissioners of the District of Columbia is recommended. The Commissioners' substitute eliminates the objectionable aspects of section 506 - without sacrificing any of its effectiveness. Section 509 would prohibit the giving of false reports or information to the Police Department with knowledge that the information is false. The I)epart- - ment of Justice defers to the views of the Commissioners of the DIstrict of Columbia as to the need for and desirability of this section of the bill. It is the view of the Department of Justice that legislation directed to strengthening the law relating to crime and criminal procedure in the District -of Columbia should embrace a provision imposing some degree of regulation of PAGENO="0020" 14 AMENDMENTS TO CRIMINAL STATUTES OF D.C. the possession of handguns and requiring their registration. Such legislation is essential to the safety of the law-abiding population of the city for we have a most dangerous situation of serious proportions resulting from the opportunity for virtually unrestricted possession of handguns by irresponsible and criminally motivated individuals. Shootings repeatedly occur in which the weapon used was kept in readiness at the home of the defendant. In the 7-month period from September 1, 1962, through March 31, 1963, the Metropolitan Police seized 334 handguns in connection with arrests for criminal assaults, the carrying of dangerous weapons. and robberies. H.R. 5608 is a bill which would accomplish this objective. It was strongly supported in oral testimony before the House Committee of the District of Co- lumbia by the District of Columbia Commissioners and the U.S. attorney for the District of Columbia. We therefore urge the committee to use H.R. 5608 as a basis for the needed corrective legislation. This legislation need in no way interfere with the lawful use of rifles or shotguns for sporting purposes or the lawful pursuits of collectors, nor need it unduly restrict our law-abiding citizens with respect to the possession of such dangerous weapons. The Bureau of the Budget has advised that there is no objection to the sub- mission of this report from the standpoint of the administration's program. Sincerely yours, NicHolAs DEB. KATZENBACH, Deputy Attorney General. SEPTEMBER 13, 1963. Hon. AlAN BIBLE, Chairman, Committee on the District of Columbia, V U.S. Senate, Washington, D.C. V V V M~ DEAR SENATOR Bmu: The Commissioners of the District of Columbia have for report H.R. 7525, 88th Congress, a bill relating to crime and criminal pro- cedure in the District of Columbia, passed by the House of Representatives on August 12, 1963. V V TITLEI V Title I is intended to qualify and amend the rule of the Supreme Court as enunciated in the case of Mallory v. United States (354 U.S. 449 (1957)), so as to provide that in the courts of the V District of Columbia, evidence, Vincluding~ but not limited to, statements and confessions, otherwise admissible, will not be inadmissible solely because of delay in taking an arrested person before a Commissioner or other officer with power to commit persons charged with offenses against the laws of the United States. The title Valso provides that no state- ment, including a confession, shall be admissible in evidence against an accused unless prior to the interrogation of such person he had been advised that he was not required to make a statement and that any statement made by him may be used against him. The Commissioners favor the admissibility of confessions and statements which are made freely and voluntarily. However, they believe that the title should be amended in several respects, to expand its coverage and to afford cer- tain safeguards to the person making such confession or statement. The changes proposed by the Commissioners are the following: V 1. Insert before the period at the end of line 9 of the first page the phrase "or of the District of Columbia". 2. Insert before the word "prior" in line 2 V on page 2 the word "immediately". 3. Insert between lines V5 and 6 on page 2 the following new subsections: "(c) Each arrested person shall, after his arrest and prior to his being interrogated for the first time by any law-enforcement officer, be plainly advised by the officer or officers having him in custody of his right to be afforded reason- able opportunity to communicate wtih counsel or with a relative or friend, and shall in fact be affored such opportunity. "(d) Each interrogation of an arrested person and the warning and advice required by subsections (b) and (c) of this section shall, whenever reasonably possible, (1) be witnessed by a responsible person who is not a law-enforcement officer, or (2) be transcribed verbatim, or (3) be recorded by a wire, tape, Or other sound-recording device, or (4) be conducted subject to other comparable means of verification. V V "(e) This title shall be construed in the light of its limited purpose of govern- ing the admissibility of certain evidence in criminal trials in the District of Columbia. Nothing herein contained shall be construed as modifying the right PAGENO="0021" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 15 of an arrested person to be taken before a committing magistrate without unnec- essary delay." If title I of the bill be amended as set forth above, the Commissioners would have no objection to its enactment. TITLE II Title II of the bill is patterned after the formulation recommended by the American Law Institute as the test of~ insanity as a defense in criminal cases, sometimes referred to as the test of criminal responsibility. This title is intended to apply to criminal cases in the District of Columbia, replacing the test of criminal responsibility stated for t:he District of Columbia by the U.S. Court of Appeals in the line of cases beginning with Durham v. United States (94 U.S. App. D.C. 228, 214 F. 2d 802 (1954)) and ending with McDonald v. United States (312 F. 2d 847), decided October 8, 1962. The language of the title is identical with the purview of bills previously introduced as H.R. 2519 in the 86th Con- gress, H.R. 7052 of the 87th Congress, and HR. 1932 in the 88th Congress. Title II changes existing law in a number of respects. The language of the title provides for the exclusion of sociopathic and psychopathic personality, or apparantely any combination of these two types of personality, from the category of mental illnesses or defects which exclude responsibility for crime. The title places on the defendant the burden of proof of establishing a mental illness or defect excluding such responsibility, instead of leaving the burden of proof on the prosecutor to prove a lack of mental illness or defect, when mental illness be- comes an issue. The title also requires that a defendant give notice at the time of his plea or within 15 days thereafter, of his intention to rely on the defense of mental disease or defect, or else be precluded from having evidence of mental disease or defect introduced, unless the court may have good cause to permit the introduction of such evidence at a later time. The title requires a notice sup- ported by prima fade evidence, or substantial reason to doubt the defendant's fitness or capacity to proceed, or substantial reason to believe that mental disease or defect of the defendant will become an issue, before the court may order an examination of the defendant or a commitment for such examination. After any such examination, the issue must then be resolved by a judge without a jury. Further, the title requires that when a defendant is acquitted on the ground of a mental disease or `defect excluding criminal responsibility, the court shall order him committed to a hospital for custody and care. If the superintendent of such hospital determines that such person is no longer suffering from such mental illness, the superintendent must make application to the court for the discharge or release of such person, and the court must then appoint two psychiatrists to examine the person and report to the court with respect to his mental illness. In any case in which the court is not satisfied with the report of the psychiatrists appointed by it, the title provides that the court may order a hearing in the nature. of a civil proceeding, in which the burden of proof will be on the corn- mitted person to prove that he may safely be discharged or released. The Commissioners question the desirability of changing existing law in the District of Columbia with respect to the test of criminal responsibility, as set forth in the Durham-McDonald line of cases. The Commissioners are informed that from a public health point of view, the so-called Durham rule as modified by McDonald seems to be working very well, because any person acquitted by reason of his plea of insanity at the time of the commission of the alleged crime, or any person determined to be incapable of contributing toward his defense because of mental illness or defect at the time of trial, must be sent to a mental hospital for treatment, and continue to receive treatment for his mental illness or defect. The Commissioners are informed that while the treatment of such persons has not been a complete success in every case, nevertheless it can be said that expe- rienee indicates that there is less likelihood of recidivism on the part of such persons than there is on the part of those sent to prison. Aside from the. fact that the enactment of title II would have the effect of substituting a new `test of criminal responsibility for a test that has been ham- mered out in court decisions in the past 9 years, and possibly lead to a new series of court decisions, the Commissioners believe that the enactment of this title; will operate to complicate the determination of mental illness or defect by pre- venting evidence of sociopathic and psychopathic personality from being pre- sented to the jury in a determination of whether there is mental illness or defect. Since it is generally accepted in this jurisdiction that such evidence is material in establishing whether a person is suffering from or has had a mental disease' PAGENO="0022" 16 AMENDMENTS TO CRIMINAL STATUTES OF D.C.. or defect, the Commissioners are informed that this proposed provision of law will in many cases operate to prevent the commitment of persons needing treat- nient for mental disease or defect. Further, the Commissioners believe that the title will operate to complicate the release of apparently recovered persons: by introducing a process that could be very costly to the District of Columbia, requiring the appointment of two psychiatrists to advise the court in every case in which the superintendent of a hospital has determined that the patient has recovered and should be released. In view of the foregoing, the Commissioners recommend against tile enact- ment of title II of the bill. They note, incidentally, that their position with respect to this title of the bill is substantially in accord with the position of the Department of Justice as stated in its report to your committee. TITLE III Title III is virtually identical with the purview of bills previously introduced in the Congress as H.R. 12851 of the 87th Congress and HR. 1929 of the 88th: Congress. The language of the first of the two sections of the title (sec. 301) is virtually identical with that of the so-called Uniform Arrest Act. The purpose of the section is to permit an officer or member of the Metropolitan Police force to detain, for a period not exceeding 6 hours, any person found abroad whom such officer or member has reasonable ground to suspect is committing, has corn- nutted, or is about to commit a crime, who, upon demand of him of his name,. address, business abroad, and whither he is going, fails to identify himself or explain his actions to the satisfaction of the officer or member. Under the pro- visions of the bill, such detention is not an arrest and shall not be reported as an arrest in any official record. Section 302 amends section 401 of the Revised Statutes of the United States,. relating to the District of Columbia (sec. 4-144, District of Columbia Code), to provide for the detention of certain material witnesses prior to their present- ment before a judge or commissioner for the purpose of determining whether- they may be required to post bond or deposit collateral to secure their appear-- ance when needed. Suitable accommodations for the witness so detained, and for the witness who is unable to furnish security for his appearance, are au- thorized. On March 9, 1961, the Commissioners appointed Charles A. Horsky, Esq.. Roger Robb, Esq., and William B. Bryant, Esq.-three distinguished members of the bar of the District of Columbia-as a committee "to inquire into the policy and practices of the Police Department that lead to arrests for `investigation'~ and to make recommendations to the Commissioners in respect thereto." 1n its report and recommendations to the Commissioners, submitted in July 1962, the committee concluded "that arrests for investigation, `as presently practiced' in the District of Columbia, are not sanctioned by any District statute and are in violation of the constitutional rights of persons thus arrested." The report of the committee is an exhaustive and excellent study of the problem of police arrests for investigation, and its conclusion that arrests for investigation are illegal is amply supported by authority. The Commissioners are in accord with the conclusion contained in the reporl of this committee and are unalterably opposed to the enactment of section 301. The Commissioners are of the opinion that "arrests for investigation" are un- constitutional in that such arrests `sanction the search and seizure of any per- son thus detained without the requirement of "probable cause" as a' basis there- for. The Commissioners are of the further opinion that the enactment into sub- stantive law of this section of `the bill will not operate to cure the constitutional'. objections to arrests for investigation, and that the proviso, set out in subsec- tion (c) of such section, that the detention will not be labeled "an arrest," will. not make such physical restraint `on an individual's liberty any less unconstitu- tional. The Commissioners' note, incidentally, that the committee mentioned in the preceding paragraph included in its report, at pages 72 through 76, a dis- cussion of certain court decisions interpreting provisions of Delaware and Rhode Island law virtually identical with subsections (a), (b), and (c) of section 301 of H.R. 7525. Iii Delaware, the Supreme Court said in De S'alvatore v. State 163 A. 2d 244(1960), that- "We can find nothing in 11 Del. C. § 1902 [substantially identical, except for the 2-hour period of detention, to subsec. (`a), (b), and (c) of sec. 301J which infringes on the rights of a citizen to be free from detention except, as appellant says, `for proabble cause'. Indeed, we think appellant's attempt to draw a dis- PAGENO="0023" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 17 tinction between an admittedly valid detention upon `reasonable ground to be- lieve' and the requirement of § 1902 of `reasonable ground to suspect' is a semantic quibble. We point out that in Wilson v. State, in referring to the arrest of the defendant, we said, `Nor can it be doubted that the arrest was legal, that is,. upon reasonable suspicion of felony' [citing case]. In this context, the words `suspect' and `believe' are equivalents." [Bracketed language added.] A somewhat similar result was reached in the Rhode Island case of Kavanagh v. Stenhous (174 A. 2d 560 (1961)), in which the Supreme Court, after quoting with approval Dc Salvatore v. State 01 Delaware, 511pm, made the following' statement: "The plaintiff,' however, contends that since the pertinunt'aan'gttage is `~ * * whom he has reason to suspect is committing, has committed, or is about to com- mit a crime * * *` the test could only be subjective, since it represents nothing more than a mere suspicion entertained by the officer. This contention .miscon- ceives the purpose of `reason to suspect' as it appears in the context. These words' are connotative with grounds for belief as distinguished from mere suspicion. It is for the jury [in an action for false arrest] to determine from all of the evidence whether in the circumstances the detaining officer was warranted in concluding that reasonable grounds did exist. His conclusion must find justification in the minds of the jury." [Italic and bracketed language supplied.] It appears, therefore, that in two of the three States which have adopted the' so-called Uniform Arrest Act, frOm which subsections (a), (b), and (c) of sec- tion 301 are derived, the highest courts of those States have held that the phrase "reasonable ground to suspect" (in Delaware) and "reason to suspect" (in Rhode Island) are tantamount to "reasonable ground to believe," that is, prob- able cause. Assuming this to be so, the Commissioners are of the view that the so-called Uniform Arrest Act .is unnecessary, in view of the fact that the Metro- politan Police' `already possess the power to make arrests on the basis ofprobable' cause. However, if the phrase "reasonable ground to suspect" connotes some- thing less than probable cause, and is intended to authorize "arrests for inves- tigation," then the Commissioners are of the view that the provisions of section 301 do not conform with the requirements of the fourth amendment. As reasons in support of their belief that arrests for "investigation" and the dc- tentions authorized by section 301 are unconstitutional, the Commissioners adopt, in part, the following considerations advanced by its committee on police arrests. for investigation: . 1. Such arrests cannot be reconciled with the fourth amendment to the Consti- tutiOn of the United States in that there is not a requirementof "probable cause" and that they permit the police to subjectively determine whom to detain, and for' how long and under what circumstanëes, without the participation of a judicial officer at any stage 2~ Such arrests deny to the person so detained the Opportunity to secure his' lib-' erty by seeking bail or by posting collateral. 3. Such arrests may permit the person so detained to be held incommunicado and thus, in effect, denied the right of habeas corpus. 4. Such arrests deprive the person so detained of the right to have the assist- ance of counsel. 5. Such arrests tend to impair the right of the person, under the fifth amend-~ ment to the Constitution not to be compelled iii `tn~ cummal case to be a witness against himself. With respect to section 302 of the bill, the Commissioners recognize the desir~: ability and practical necessity of securing the appearance of material witnesses, under the particular circumstances outlined in such section. However, the Com- missioners are again opposed in principle to any provision which would authorize the detention of any person as a prospective material witness for a maximum period of 6 hours without presentment before a judicial officer. The Commission- ers are of the view that such persons should be subjected to even less restraint on their physical liberty and freedom than those formally charged with crime, and that they should in all cases be permitted to appear immediately at the beginning of their detention before a judge or commissioner for the purpose of determining whether they are, in fact, necessary and material witnesses and, if necessary to secure their appearance at trial, an oppOrtunity to post bond or deposit collateral. However, the Commissioners prefer that the Congress consider, as a replace ment for'section.302 of H.R. 7525,their draft bill forwarded to the Congress on March 12, 1963, and introduced as S. 1148, a bill to amend the law relating to material and necessary witnesses to crimes committed in the District of Coluni- PAGENO="0024" 118 AMENDMENTS TO CRIMINAL STATUTES OF D.C. bia, if such bill be amended in accordance with certain of the suggestions pro- posed in the report of the Department of Justice to your committee. As so .amended, S. 1148 would provide that section 401 of the Revised Statutes of the United States relating to the District of Columbia be amended to read as follows: "Szo. 401. (a) Whenever in a criminal proceeding there is reasonable ground to believe that any person is a material and necessary witness to the commission of any crime or attempt to commit any crime punishable by imprisonment for one year or more, and there is a reasonable probability that such person will not be available to testify at the trial of the person charged with such offense, such person so believed to be a material and necessary witness shall be taken by a member of the Metropolitan Police force, or by a Federal law enforcement offi- cer,~ without unnecessary delay, before a judge of the United States District * Court for the District of Columbia or a judge of the District of Columbia Court of General Sessions or a United States commissioner. Such judge or commis- sioner. shall afford such person a hearing and shall, prior to commencing the hearing, advise such person that he is entitled to be represented by counsel. Such judge or commissioner may. after a hearing is afforded to such person and such judge or commissioner is satisfied by testimony given under oath that such person is a material and necessary witness and that there is reasonable prob- ability that such person will not be available at the trial as provided in this *.subsection, require such witness to post bond or collateral as security that he will appear and testify at such trial or, upon his failure to post such bond or -collateral after a reasonable opportunity to do so, to order his further detention until such time as he appears and gives testimony in such criminal case or until such criminal case has been finally disposed of otherwise. The detention, as herein provided, of any such witness shall not constitute an arrest within the imeaning of that term as used in any other law or in any rule or regulation. No -statement made by such witness in the course of his detention as authorized by this section shall be used in a prosecution against him for the commission of any crime. "(b) A person detained as a material and necessary witness pursuant to this section shall, for the period beginning with his detention and until he is dis- charged from detention, be entitled to be paid amounts equivalent to the amounts payable to witnesses testifying in the United States District Court for the Dis- trict of Columbia. "(c) Whenever a material and necessary witness is ordered detained by a judge or commissioner, such judge or commissioner shall order the deposition of such witness taken as soon as it is feasible to do so. Each person charged with the crime or crimes in connection with which such deposition has been ordered taken shall, if such person be in custody or be at large on ball,. be present at the taking of the deposition of the witness and shall be entitled to be represented by counsel. The taking of such deposition shall be open to the public. After such -deposition is taken, the judge or commissioner may order the release from deten- tion of such witness. Such witness shall be released from detention if it appears to any such judge or commissioner that the witness has been detained for an unreasonable length of time. Notwithstanding any other provision of this sec- tion, such judge or commissioner may at any time modify. the requirement as to bail, or release the witness on his own recognizance. "(d) The Board of Commissioners shall provide suitable accommodations within the District of Columbia for the detention of persons w'ho are unable to furnish security for their appearance as witnesses, as provided in subsection (a). Such accommodations shall be separate and apart from quarters used for the confinement of persons charged with crime. The said Commissioners may, in their discretion, enter into agreements with any Federal agency. including the United States courts, for the use of suitable space in a building under the juris- diction of any such agency, and such agency is hereby authorized to allow the use of. such space for the purpose of providing the accommodations required by this subsection. In carrying out the purposes of this Act, the said Commis- sioners may utilize any appropriate space in any building which is owned pri- vately or which is owned or leased by the government of the District of Columbia. In the, case of any witness detained by an officer other than an officer or member of the Metropolitan Police force, the District of Columbia shall be reimbursed for the accommodations furnished such witness at rates to be determined by the -Commissioners. "(e) Appropriations to carry out the purposes of this section are hereby .nuthorized." PAGENO="0025" AMENDMENTS TO CRIMINAL STATUTES OF D.C. In the belief that the above language will better protect the rights of persons detained as material and necessary witnesses, the Commissioners strongly rec- ommend that it be used instead of the present amendatory language contained in section 302 of H.R. 7525. TITLE iv Title IV has the effect of including the crime of robbery among the crimes contained in the definition of "crime of violence" set forth in the first section of the act approved July 8, 1932 (sec. 22-3201, District of Columbia Code, 1961 edition). The Commissioners favor the enactment of this title of the bill. TITLE V Section 501 has the effect of establishing a mandatory minimum sentence oV not less than 2 years' imprisonment upon conviction of the offense of assault. with intent to kill or to commit rape, or to commit robbery, or mingling poison. with food, drink, or medicine with intent to kill, or willfully poisoning any well,.. spring, or cistern of water. For the reason set forth below concerning the efficacy of mandatory minimum sentences, the Commissioners question this. section of the bill. Section 502 amends section 823 of the act approved March 3, .1901 (31 Stat.. 1323; District of Columbia Code, sec~. 32-1801), now captioned "Housebreaking," to define the offense of "burglary" and to further define such offense as either "first degree" or "second degree," depending on whether the offense occurs in an occupied place of residence, and should any such resident be in occupancy at such time the offense is that of burglary in the first degree. Any other breaking and entering, or entering without breaking, of the various specified premises is defined as burglary in the second degree. The Commissioners favor the enact- ment of this section of the bill. The Commissioners note, incidentally, that the~ penalty for burglary in the first degree is imprisonment for not less than 20 years nor more than life, as compared with the present penalty for housebreak- ing of imprisonment for not more than 15 years. While the Commissioners do not object to the enactment of section 503, they question so much thereof as~ establishes mandatory minimum sentences, for the reason set forth below. Section 503 amends section 810 of the act of March 3, 1901, defining the offense of robbery, so as to provide a mandatory minimum sentence of not less than 5 years in place of the present mandatory minimum sentence of not less than 6 months. Again for the reason set forth below concerning the efficacy of man- datory minimum sentences, the Commissioners question this section of the bill. * Section 504 of the bill generally relates to bribing or offering to bribe persons. participating in athletic contests, and the acceptance or agreement to accept~ such bribes by such persons. This section amends existing law (act approved July 11, 1947; 61 Stat. 313; sec. 22-1513, District of Columbia Code, 1961 edi- tion) having a somewhat similar effect, and providing for a penalty upon convic-- tion of imprisonment for not less than 1 year nor more than 5 years and a fine of not more than $10,000, as compared with the penalty set forth in subsection (a) of the new section 869e of imprisonment for not less than 1 nor mOre than. 10 years, and a fine of not less than $3,000 nor more than $10,000. Inasmuch as section 504 appears to add nothing to existing law except insofar as penalties* are concerned, and inasmuch as the Commissioners are informed that there appears to be no need for a change in existing law, the Commissioners see no need for section 504. Section 505 makes it mandatory (rather than at the discretion of the judge,. as under existing law) that when any person commits a crime of violence when armed with or having readily available any pistol or other firearm, he shall, in addition to the punishment provided for the crime, also be punished by the penal- ties prescribed in section 2 of the act of July 8, 1932 (sec. 22-3202, District of Columbia Code, 1961 edition). Further, section 505 adds to such section 2 lan- guage prohibiting the court from suspending sentence upon conviction of a crime of violence when armed with or having readily available any pistol or other fire- arm, or from giving the defendant a probationary sentence. The Commissioners question the desirability of removing from the judges the discretion they have under existing law. Section 506, amending section 872 of the act approved March 3, 1901 (District of Columbia Code, see. 22-2001), is identical with the purview of HR. 5089 of the 88th Congress, except for certain additions on which the Commissioners will comment in the next paragraph. The provision of existing law amended by section 506 reads as follows: PAGENO="0026" 20 AMENDMENTS TO CRIMINAL STATUTES OF D.C. "Whoever sells, or offers to sell, or give away, in the District, or has in his possession with intent to sell or give away or to exhibit to another, any obscene, lewd, or indecent book, pamphlet, drawing, engraving, picture, photograph, in- strument, or article of indecent or immoral use, or advertises the same for sale, or writes or prints any letter, circular, handbill, book, pamphlet, or notice of any kind stating by what means any of such articles may be obtained, or advertises any drug, nostrum, or instrument intended to proudce abortion, or gives or par- ticipates in, or by bill, poster, or otherwise advertises, any public exhibition, show, performance, or play containing obscene, indecent, or lascivious language, postures, or suggestions, or otherwise offending public decency, shall be fined not less than fifty dollars nor more than five hundred dollars, or imprisoned not more than oneyear;or both." The foregoing provision of law does nOt, however, take into account certain relatively modern means of publication or communication, nor does it affect per- Sons engaged in the production of indecent publications. Section 506 has for its purpose the expansion of existing law relating to indecent publications so as to make it applicable to publishing and communicating techni- ques developed since the enactment of the 1901 act; to extend its provisions to persons engaged in the production or dissemination of obscene materials; to authorize temporary restraining orders, preliminary injunctions, and permanent injunctions affecting the production, distribution and sale of obscene materials; and to provide for the forfeiture to the District of Columbia of personal property made subject to any such permanent injunction. The Commissioners note, in- cidentally, that the language of section 506 departs from the language of H.R. 5989 by providing, in subsections (a) and (b) of the proposed new section 872, for certain mandatory, minimum sentences, involving fines of not less than $200 or imprisonment for not less than 3 months for violations of sectirni' 872, as amended by the bill. For the reasons they have set forth at greater length below, the Commissioners have some doubt as to the effectiveness of a mandatory minimum penalty. The Commissioners also object to that provision contained in subsection (c) of the amended section 872 which requires the U.S. attorney for the District of Columbia and the Corporation Counsel of the District of Columbia to join in an action to petition the U.S. district court for the temporary restraining order authorized by such subsection. At the very least, the language of the subsection should be couched in the disjunctive so as to authorize either the U.S. attorney or the Corporation Counsel, but not both, acting in concert, to file a petition for such a temporary restraining order. In point of fact, the Commissioners fail to see the need for including the Corporation Counsel in the language of the revised section 872. Prosecutions for the violation of this provision of law would be the function of the U.S. attorney for the District of Columbia. The Commissioners strongly believe that every aspect of the problem, including not only prosecution but also the securing of a temporary restraining order, a preliminary injunction, and a permanent injunction, all as authorized by the proposed new section 872, should be solely the responsibility of the U.S. attorney, without participation by the Corporation Counsel at any point in the process. The Commissioners are awarO'thât' the propOsedAegislation~is concerned with an area in which one must be mindful of the protections guaranteed by the first amendment. The Commissioners accordingly requested the Office of the Corpora- tion Counsel to review the proposed legislation in this light, in cooperation with the Department of Justice and other interested agencies. As a result of that further study the Commissioners believe that there may be constitutional objec- tions to those provisions of section 506 which relate to an ex parte proceeding in connection with the issuance of a temporary restraining order, and which pro- vide for the forfeiture of property other than the obscene and indecent material itself. Accordingly, the Commissioners recommend that subsections (b) through (h) of the amended section 872, as set forth in section 506, be changed to read as follows: `(b) Whoever in the District produces, or participates in the production of, any obscene, lewd, or indecent book, pamphlet, drawing, engraving, picture, photograph, instrument, magazine, story, paper, writing, card, print, motion pie- ture film, image, cast, slide, figure, statue, phonograph record, wire, tape, or other sound recording, or other presentation or article of indecent or immoraluse, with Iknowledge that the same is to be sold, given away, or exhibited to another, shall be fined not more than $5,000, or imprisoned not more than two years, or both. "(C) The U.S. attorney for the District of Columbia is authorized to apply PAGENO="0027" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 21 to the U.S. District Court for the: District of Columbia for a preliminary, in- junction and a permanent injunction to restrain the sale, gift, exhibition, dis tribution, production, disposition, or removal of any obscene, lewd, or indecent matter described in subsection (a) of this section. A hearing on the preliminary injunction shall be had not more than five days, excluding Sundays and holidays, after service upon the defendant of a copy of such application. After such hear- ing the said court may issue a preliminary injunction which shall remain in effect until final determination of the application for the permanent injunction, but in no case for more than thirty calendar days from issuance of time prelimi- nary ihjunction. `.(d) If, after a trial of the issues, the court shall order a permanent injunc- tion; such injunction shall include a provision for the immediate seizure and destruction of the obscene, lewd, or indecent matter, and forbidding its reproduc- tion or duplication. "(e) For the purpose of proceeding under subsection (c) or (d) of this sec- tion, it shall not be necessary for the U.S. attorney to allege or prove that an adequate remedy at law does not exist or that substantial and irreparable dam- agewould result from the violations alleged. "(f) Proceedings pursuant to this section shall be governed by the Federal Rules of Civil Procedure, except as they may be inconsistent with the provisions and purpose of this section." If section 506 be amended in the manner suggested by the Commissioners, they would have no objection to it. However, should the section not be so amended, the Commissioners recommend against its enactment. Section 507 amends existing law (act of Mar. 3, 1901, as amended; sec. 22- ~i105; : District of Columbia Code, 1961 edition) making it an offense to place explosives or cause them to be placed at certain specified locations, with the intent to cause damage, so as to provide a mandatory minimum sentence of not less than 5 years' imprisonment upon conviction of the offense. Again the Coin- missioners question the efficacy of mandatory mininiuni penalties for the rea- son set forth below. Section 508 provides it shall be an offense to make a false or fictitious report to the Metropolitan Police Department of the commission of nay criminal of- fense, knowing such report to be false or fictitious, or to communicate or cause to be communicated to such Department any false information concerning the Lommission of any criminal offense within the District of Columbia or concern- Ing any other matter or occurrence of which such Department is required to receive reports or conduct an investigation, knowing such information to be false. This section is substantially similar to section 5 of article 19 of the police regulations of the District of Columbia except for the penalty to be imposed for the commission of any such offense. The existing police regulation, which `has been in effect for many years, provide's for the penalty of a fine not exceed- `ing $300 or imprisonment not exceeding 10 days. Section 508 provides for a penalty of a fine not exceeding $100 or imprisonment not exceeding 6 months, or both. `The Commissioners consider the proposed change in existing law both unnece~saiv ~nd undesiiable They believe that increasing the peiialtv foi thm~ type of offense i's unnecessary, in that time present penalty imposed under the `authority of section 5 of article 19 of the police regulations is considered ade- quate to deal with this type of offense, generally relatively minor in nature. `The Commissioners consider the proposed change in penalty undesirable in that it has the effect of permitting persons accused of making false reports to demand `trial by jury for what all too often is an offense of relatively little significance, such as reporting a robbery to cover a gambling loss, or reporting that an as- sault was by an "unknown" person, in order to shield another member of the reporter's family, or a friend. The Commissioners believe that in cases of this kind, it is undesirable that the time of the courts be taken up in conducting jury trials whenever demanded by accused persons.' Accordingly, the Commis- sioners recommend against the enactment of section 508. MISCELLANEOUS COMMENTS In the event the Congress `should enact H.R. 7525 despite the objections and deficiencies discussed above, the Commissioners desire to point out that the bill in their view is also deficient in that it fails to contain a separability provsion, a provision for an effective date, and a provision coordinatng the proposed act with Reorganization Plan No. 5 of 1952. To correct these deficiencies, the Com- PAGENO="0028" 22 AMENDMENTS TO CRII\4INAL STATUTES OF D.C. missioners suggest that there be added at the end of the bill the following new title: "TITLE VI "Szc. 601. If any part of this Act is declared unconstitutional, or the appil-. cability thereof to any person or circumstances is held invalid, the appli- cability of such part to other persons and circumstances and the constitutional- ity or valdity of every other part of the Act shall not be affected thereby. "SEc. 602. Nothing in this Act shall be construed so as to affect the authority vested in the Board of Commissioners of the District of Columbia by I~eorga- nization Plan No. 5 of 1952 (66 Stat. 824). The performance of any function vested by this Act in the Board of Commissioners or in any office or agency under the jurisdiction or control of said Board of Commissioners may be dele- gated by said Board of Commissioners in accordance with section 3 of such. plan. "SEc. 603. This Act shall become effective on the first day of the second month. which follows its approval by more than ten days." The Commissioners note that throughout the bill the intention appears to be to increase the penalty presently provided for certain offenses, and in several instances to establish a mandatory minimum penalty. The Commissioners have considerable question concerning the effectiveness of a mandatory minimum penalty. They are of the view that any such penalty may in its effect be self-defeating, in that if the mandatory minimum penalty is considered excessive by a jury, it may tend to acquit the defendant rather than subject him to what the jury may consider an excessively high mandatory minimum penalty. The Commissioners are cognizant of the fact that some effort is made to keep from the jury the knowledge of the penalty to which a defendant may be subject, in view of the fact that this knowledge is irrelevant to the question of whether the defendant did or did not commit the offense with which he is charged. How- ever, the Commissioners recognize that sooner or later the jurors in attendance at court acquire knowledge concerning the maximum and minimum penalties for the more common offenses, and carry this knowledge with them into the jury room at the time they begin their consideration of a case. In view of this~ the Commissioners question whether a mandatory minimum penalty, or an in-- crease in an existing mandatory minimum penalty, will operate in such manner as to affect materially the crime situation in the District of Columbia. Finally, the Commissioners are of the view that H.R. 7525 in its present form does not deal with the serious inadequacies in present law regarding the acquisition and possession of firearms. They believe that an appropriate means of dealing with this problem is that set forth in H.R. 5608, 88th Congress~ a bill to amend the act of July 8, 1932, relating to the control of possession in the District of Columbia of dangerous weapons, and for other purposes, introduced. at the request of the Commissioners. The purpose of this bill is to reduce the rate of serious crimes in the District by more closely controlling the ac- quisition and possession of dangerous weapons, with particular attention te- handguns, which the Commissioners feel are now too easily available to criminal elements in the community. In general, the bill requires persons desiring t~ possess handguns to obtain permits there-for from the Commissioners; prohibits possession of handguns by persons under 18 years of age; prohibits the carrying about of any loaded rifle or shotgun anywhere in the District, except in one's home, place of business, or on other land owned or leased by the possessor of such weapon; requires closer surveillance by law-enforcement authorities over the importation and delivery of handguns into the District; requires stricter licensing of manufacturers and dealers in weapons in the District, and requires records to be kept and reports to be made to the chief of police con- cerning weapons sold and repaired and to whom sold or for whom repaired; tightens existing provisions prohibiting the possession of a dangerous weapon with intent to use it unlawfully, including establishment of a presumption that the possession of certain weapons, including possession of a pistol without a permit, constitutes possession of such weapon with intent to use it unlawfully; and require any person desiring to purchase a pistol, machinegun, sawed-off shotgun, or blackjack. within the District, first to obtain a permit to purchase any such weapon. The foregoing provisions, the Commissioners believe, con- stitute a strong, enforcible law to deal with the dangerous weapons problem in the District of Columbia. Accordingly, the Commissioners recommend that legislation substantially similar to HR.. 5608 be enacted by the Congress. PAGENO="0029" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 23 The Commissioners have been advised by the Bureau of the Budget that, from the standpoint of the administration's program, there is no objection to the submission of this report to the Congress. Sincerely yours, WALTER N. TOBRINER, President, Board of CommIssioners, District of Columbia. U.S. DEPARTMENT OF JUSTICE,. OFFICE OF THE U.S. ATTORNEY, Washington, D.C., September 12, 1963. ~Hon. ALAN BIBLE, Chairman, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR Mn. CHAIRMAN: This letter, written on behalf of the Council on Law En- forcement in the District of Columbia, is in response to a letter request dated August 20, 1963, of Mr. Chester H. Smith, staff director of your committee, that the council submit its views on H.R. 7525. Of course, no form of words which purports to represent the corporate view of the council can accurately reflect every precise shade of the views of all indi- vidual members, or all of the reasons that support those views. Therefore, the most feasible means of conveying the council's views is to report the action that the council has voted on each section of the bill and the principal reasons on which most of the council's members were agreed. The report of the council's action will be broken down by titles of the bill: TITLE I This title represents a change in the so-called Mallory rule in the courts of the District of Columbia. Since the views of the council on the Mallory rule and proposed changes in the Mallory rule were voted at a special meeting of May 6, 1963, and communicated to the chairman of the House Committee on the District of Columbia, the council thought it best to rest upon that action, and accordingly the council invites your attention to our attached advice to the House committee. TITLE II A majority of the council members present voted to recommend against enact- :ment of title II of the bill, with the reservation that the council should express no view on the standards and procedures governing release from mental hospitals of persons committed there following acquittals by reason of insanity, until a study of this question can be made by the council. This reservation relates to subsection (h) (2)-(5) on pages 10-13 of the bill. So far as the council's action relates to the Durham rule and the standards governing acquittal or conviction in criminal cases in which the insanity defense is interposed, the main reason governing the council's action is that the standards of the Durham rule have al- ready been sharply modified in McDonald v. United States, 312 F. 2d 847 (1962), which goes far in the direction taken by the bill. Accordingly, a majority of the council felt that the courts, showing a disposition to make important and de- sirable changes in the Durham rule, should have an opportunity to consolidate .a judicial solution of the problem, a solution which has moved far in a promis- ing direction. TITLE III A majority of the members present voted to recommend against enactment of section 301 of title III. A majority of the members felt that this section is merely ~a reinstitution of arrests for investigation which are not consistent with the provisions of the fourth amendment to the Constitution of the United States. With respect to section 302, a majority of the members of the council present voted to recommend that this section should be enacted, but with amendments which the council understood were being recommended to your committee by the Department of Justice and the Commissioners for the District of Columbia. TITLE Iv A majority of the members present voted to recommend that title IV should be enacted. PAGENO="0030" 24 AMENDMENTS TO CRIMINAL STATUTES OF D.C. TITLE V Section. 501. 502.-A majority of the members present voted to recommend against enactment of these two sections. The principal reason governing this action was the opposition of the majority of the members to mandatory mini- mum sentences,. which, it is felt, take away from the courts a desirable degree of discretion and flexibility in suiting particular sentences to the particular circumstances of the individual offense. Section 503.-A majority of the members present voted to recommend against enactment of section 503. This section would add very substantially to the severity of a mandatory minimtim sentence already contained in District of Columbia Code 22-2901, and the attitude of the members set forth just above applies here as well. Section 504.-A majority of the members present voted to recommend against enactment of this section. Section 505.-A majority of the members of the Council present voted to rec- ommend against enactment of this section, since, like sections 501, 502, and 503, this section restricts a desirable flexibility in sentences that may be. imposed by sentencing judges. Section 506.-A majority of the members of the Council present voted to recom- mend against enactment of this section. Section 507.-A majority of the members of the Council present voted to' recommend against enactment of this section, for the reason referred to above- in connection with sections 501, 502, 503, and 505. Section 508.-A majority of the members of the Council present voted to recommend against enactment of this section. The increase in the sentence- beyond that contained in existing law (police regulations, are 19, sec. 5) governing false reports to the police would convert this offense from one triable without a jury and normally disposed of by fine to one requiring jury trial. District of Columbia Code 11-715 (a). Considering the frequently minor character of such offenses, and the congested state of the trial calendar IL the jury branch, District of Columbia court of general sessions, the members were of the view that the interests of law enforcement would not be served by this amendment. This action of the Council was voted at a meeting on September 10, 1963. In the absence of our chairman, Mr. Clemmer, owing to hospitalization, the undersigned acted as chairman of that meeting and is transmitting this lettee for the Council. Sincerely yours, -DAVID C. ACHESON, T7ice Chairman, Council on Law Enforcement in the District of Colwmbia. Enclosure: Copy of letter to Chairman McMillan dated May 7, 1963. Couxcu~ ON LAW ENFORCEMENT IN THE DISTRICT OF COLUMBIA, May 7, 1963. Hon. JOHN L. MoMux.~x, Chairman, Committee on the District of Columbia, U.S. Ho~ise of Representatives, Washington, D.C. DEAR Mn. CHAIRMAN: The Council on Law Enforcement, District of Columbia, has studied the Mallory matter over the years and most recently during special meetings on April29 and May 6. You are respectfully advised that at yesterday's meeting, the Council voted 9 to 1, with one abstention, in favor of modifying the present Mallory defini- tion by legislation. The Council does not endorse any particular bill nor offer argumentation since, extensive hearings have been held and many of the mem~~ bers of the Council have testified in their official and independent capacities~ We have thought it sufficient to express the coliective view of the Council by simply advising you of the vote that modification of Mallory seems Indicated to us.' For your ready reference, a copy of the statute creating the Council is en- closed together with the names of present members and their vote on Mallory. Sincerely, DONALD CLEMMER, Chairman (Director of Corrections, District of Columbia).. Enclosure. PAGENO="0031" AMENDMENTS TO `CRIMINAL STATUTES OF D.C. 25 NATIONAL RIFLE ASSOCIATION OF AMERICA, Washington, D.C., September 20, 1963. Hon. ALAN BmI.E, Chairman, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR. SENATOR. BIBLE: I `note with interest the reports that the Senate Dis- trict Committee will begin hearings in the very near future on H.R. 7525, relat- ing to crime and criminal procedures in the District of Columbia, and which was recently passed by the House of Representatives. ` .Because of the nature of this bill and the number of legislative measures con- tained therein, I understand that there is a distinct possibility that your corn-. mittee will wish to study in toto each bill originally introduced in the House on the `subject of crime and crime prevention in the District of Columbia and sub- sequently incorporated in whole or in part in H.R. 7525. In recent days, the Department of Justice has urged the enactment of legis- lation requiring the registration of handguns. On May 1, 1963, I appeared be- fore Subcommittee No. 6 of the House Committee on the District of Columbia in opposition to such a measure, which appears in the guise of a requirement that a person have a license merely to possess a pistol or revolved even in his home or place of business. As you know, the House committee rejected this approach to the District of Columbia law enl"rcement problem. The National Rifle Association of America is unalterably opposed to this method of firearms regulation. The practical result of such legislation, as has been proven many times in those jurisdictions having such provisions, will be that the criminal will generally violate the act and take his chances of discovery and punishment while the law-abiding citizen will find it, increasingly difficult to' possess firearms for defense of home or property. Experience has shown that such legislation only aids the criminal by ultimately disarming the citizen of good repute and depriving him of any means of self `or property `protection. The National Rifle Association of America, a nonprofit organization of more than 600,000 shooter-sportsmen and 11,000 affiliated shooting clubs, requests the opportunity to appear before your committee at any hearing that may be scheduled on this proposal by the Department of Justice, or any proposal which would restrict the rights of law-abiding citizens to possess arms. Sincerely, FRANKLIN L. OaTH, Ecoecutive Vice President. `The CHAIRMAN. Before calling the first witness this morning, I be- lieve it might prove helpful to outline what this co~ittee.proposes to do over the next 3 weeks There will be an in depth examination of the need for strengthening the District of Columbia criminal jus- tice code. H.IR. 7525, the House-passed omnibus crime bill to which I have just referred and made a part of this record, covers a' broad field of 14 pro- posed amendments in 5 separate titles. We will propose to cover each' of these subjects separately. For the benefit of our witnesses and the general public, our ground rules of procedure will call for testimony today on title IV, pertaining to establishing robbery as a crime of violence, and 7 sections in title V dealing with minimum sentences for various crimes; defining burglary in `two degrees; corrupt influence in connection with athletic contests; making mandatory the punishment of crimes of violence; and ficti- tious reports to the Metropolitan Police Department. In addition to the aforementioned we shall also recer~e testimony on S 486, which I hereby make a part of the record at this point.. PAGENO="0032" :26 AMENDMENTS TO CRIMINAL STATUTES OF D.C. (S. 486 and the reports follow:) [S. 486, 88th Cong., 1st sess.] A BILL To amend certain criminal laws applicable to the District of Columbia, and for other purposes Be it enacted by the senate and House of Representatives of the United State& of America in Congress assembled, That section 848 of the Act entitled "An Act to establish a code of law for the District of Columbia", approved March 3, 1901, as amended (D.C. Code, sec. 22-403), is further amended to read as follows: "SEC. 848. Whoever maliciously injures or breaks or destroys, or attempts to injure or break or destroy, by fire or otherwise, any public or private propert~~, whether real or personal, not his own, of the value of $200 or more, shall be fined not more than $5,000 or shall be imprisoned for not more than ten years, or both, and if the value of the property be less than $200 shall be fined not more than $1,000 or imprisoned for not more than one year, or both." SEC. 2. The first section of the Act entitled "An Act for the preservation of the public peace and the protection of property in the District of Columbia", approved July 29, 1892, as amended (D.C. Code, sec. 22-3112), is further amended by strik- ing out "destroy, injure, disfigure, cut, chip, break," and inserting in lieu thereof ~`disfigure, cut, chip,". SEC. 3. Section 812 of the Act entitled "An Act to establish a code of law for the District of Columbia", approved March 3, 1901, as amended (D.C. Code, see. 22-2101), is further amended by striking out "for ransom or reward", and insert- ing in lieu thereof "for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof,". SEC. 4. Section 9 of the Act entitled "An Act to enjoin and abate houses of lewdness, assignation, and prostitution; to declare the same to be nuisances; to enjoin the person or persons who conduct or maintain the same and the owner or agent of any building used for such purpose; and to assess a tax against the person maintaining such nuisance and against the `building and owner thereof", npproved February 7, 1914, as amended (D.C. Code, sec. 22-2721), is further amended to read as follows: "SEC. 9. In any prosecution for violation of this Act or so much of the first section of the Act entitled `An Act to confer concurrent jurisdiction on the police court of the District of Columbia in certain cases', approved July 16, 1912 (37 Stat. 192; D.C. Code, sec. 22-2722), as relates to the keeping of a bawdy or dis- orderly house, the court, upon application of the United States attorney made after such attorney has given notice thereof to the Corporation Counsel of the District of Columbia, may order any witness to testify or to produce evidence, or both. Upon such order of the court, such witness shall not be excused from testi- fying or from producing evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfiture. But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any act, transaction, matter or thing concern- ing which he has been ordered to testify or to produce evidence after having claimed the privilege against self-incrimination, nor shall testimony or other evidence ordered to be given or produced under the provisions of this section be used as evidence in any criminal proceeding against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed in connection with giving testimony or producing evidence under order of the court as provided in this section." SEC. 5. The last sentence of section 46 of the Healing Arts Practices Act, District of Columbia, 1928 (D.C. Code, sec. 2-137), is amended by striking out "by said United States District Attorney when instituted on behalf of the Com- mission, and" and by striking out "when institued on behalf of the Commis- sioners of said District or by the major and superintendent of pollee of said District". SEC. 6. The fourth sentence of section 8 of the Act entitled "An Act to define the term `registered nurse' and to provide, for the registration of nurses in the District of Columbia", approved February 9, 1907, as amended (D.C. Code, sec. 2-407), is amended by striking out "United States Attorney for the District of Columbia" and inserting in lieu thereof "Corporation Counsel of the District of Columbia". SEC. 7. Section 2 of the Act entitled "An Act to regulate the practice of op- tometry in the District of Columbia", approved May 28, 1924 (D.C. Code, sec. 2-502), is amended by adding at the end thereof the following new sentence: PAGENO="0033" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 27 4'Prosecutions for violations of this Act shall be conducted in the name of the District of Columbia by the Corporation Counsel". SEC. 8. Section 9 of the Act entitled "An Act to create a board of accountancy for the District of Columbia, and for other purposes", approved February 17, 1923 (D.C. Code, sec. 2-909), is amended by adding at the end thereof the follow- ing new sentence: "Prosecutions for violations Of this Act shall be conducted in the name of the District of Columbia by the Corporation Counsel.". SEC. 9. Sections 425 to 428, inclusive, of the Act entitled "An Act to revise and consolidate the statutes of the United States, general and permanent in their nature, relating to the District of Columbia, in force on the first day of December, in the year of our Lord one thousand eight hundred and seventy three", approved June 22, 1874 (D.C. Code, secs. 4-168-171, inclusive), are hereby repealed. SEC. 10. `The last sentence of the first section of the Act entitled "An Act to provide for the conservation and settlement of estates of absentees and abscond- ers in the District of Columbia, and for other purposes", approved April 8, 1935, as `amended (`D.C. Code, sec. 20-701), is amended by striking out "The United States Attorney in and for the District of Columbia" and inserting in lieu thereof "The Corporation Counsel of the District of Columbia". SEC. 11. Sections 1, 2, and 3 of this Act shall apply to all conduct within the terms of said sections which shall occur subsequent to the approval of this Act. Sections 4, 5, 6, 7, 8, 9 and 10 of this Act shall take effect thirty days from the `approval of this Act, but shall not in any case apply to proceedings insti- tuted prior to the approval of this Act." OFFICE OF THE ATTORNEY GENERAL, Washington, D.C., January 1~, 1963. The VICE PRESIDENT, U.S. Senate, Washington, D.C. DEAR Mu. VICE PRESIDENT: Enclosed for your consideration and appropriate reference is a legislative proposal to amend certain provisions of the Code of the District of Columbia. For the sake of clarity there is also attached a state- ment setting forth the need for each such amendment and how these amend- ments will resolve the problems created by the present statute. An identical proposal was submitted to the 87th Congress on July 25, 19~2, which was introduced as S. 3~370. No action, however, was taken on this bill by the `Senate Committee for the District of Columbia since it was received so late in the session. This proposal was drafted with the assistance of the Corporation Counsel of the District of Columbia who indicated that he is in complete accord with the need for such legislation. The proposal will accomplish a number of things. It will strengthen certain criminal sections of the District of Columbia Code; it will broaden the immunity statute of the District of Columbia so that it will conform with other Federal statutes; it provides for certain procedural changes in matters which are essentially local in nature and permit the substitution of the Corporation Counsel of he District of Columbia as the moving party rather than the US. attorney. It is the view of the Department that this legislation is highly desirable and it is urged that the Congress give favorable consideration to this matter. The Bureau of the Budget has advised that there is no objection to the submission of this recommendation from the standpoint of the administration's program. Sincerely, ROBERT F. KENNEDY, Attorney General. Enclosure. EXPLANATORY STATEMENT A bill to amend certain criminal laws applicable to the District of Columbia, and for other purposes SECTION 1. DESTRUCTION OF PROPERTY This section would amend section 848 of the act approved March 3, 1901 (31 Stat. 1327, ch. 854), as amended by the act approved August 12, 1937 (50 Stat. 629 ch. 599) (District of Columbia Code, see. 22-403), by- 25-260-64-pt. 1-3 PAGENO="0034" 28 `AMENDMENTS TO CRIMINAL STATUTES OF D.C. 1. Removing the language which restricts the application of the section te property which is movable. 2. Broadening the section to cover the malicious destruction of any property whether personal or real. i~. Increasing the value line of demarcation between misdemeanors and felonies from $50 to $200. 4. Increasing the maximum fine for misdemeanors from $200 to $1,000. and changing the penalty for felonies from the present mandatory minimum of 1 year and maximum of 10 years to a fine of not more than $5,000 or imprison- ment for not more than 10 years or both. The effects of the change would be to simplify prosecutions for malicious destruction of property and, by the change in penalties, to provide a more effective deterrent. SECTION 2. DISFIGUREMENT OF PROPERTY This section would amend section 1 of the act approved July 29, 1892 (27 Stat. 322, ch. 320), as amended by the act approved July 8, 1898 (30 Stat. 723, ch. 638) and by the act approved April 21, 1906 (34 Stat. 126, ch. 1647) (District of Columbia Code, sec. 22-3112), by- 1. Striking out the language which permits a defendant who has willfully or wantonly destroyed, broken, or injured property to be prosecuted under this section which relates principally to disfiguring of property and which sub- jects the offender to relatively minor punishment. 2. Conforming the coverage of the section to the expanded coverage of section 1 of this act. SECTION 3. KIDNAPING This section would amend section 812 of the act approved March 3, 1901 (31 Stat. 1322, ch. 854), as amended by the act approved February 18, 193~ (47 Stat. 858, ch. 103) (District of Columbia Code, sec. 22-2101), by- 1. Conforming the existing local law relating to kidnaping to the Federal statute applicable in all other Federal jurisdictions. 2. Excepting parents, as regards their minor children, from the coverage of the statute. 3. Broadening the local kidnaping statute which now makes punishable only a holding for ransom or reward to include instances where no ransom or reward is demanded but where the motive may be lust, a desire for companionship, revenge, or any other nonmonetary motivation. SECTION 4. IMMUNITY This section would amend section 9 of the act approved February 7, 1914 (38 Stat. 282, ch. 16), as amended by section 1 of the act approved June 25, 1948 (62 Stat. 909, ch. 646) (District of Columbia Code, sec. 22-2721), by- 1. Broadening the coverage of the section, now applicable only to civil actions relating to the abatement of the nuisances of disorderly houses to include criminal prosecutions for keeping disorderly houses. 2. Granting authority to the courts upon application of the prosecutor to compel a witness to testify in a criminal prosecution for keeping a disorderly house notwithstanding his claim of privilege under the fifth amendment. 3. Granting witnesses immunity from prosecution on the matters on which testimony was compelled, after a claim of privilege against self-discrimination. 4. Subjecting such witnesses to whom immunity is granted to the ordinary possibilities of prosecution for perjury or contempt of court committed in con- nection with their testimony. 5. Harmonizing. this local immunity statute to comparable Federal laws. SE(YIION 5. HEALING ARTS PRACTICES This section would amend section 46 of the act approved February 29, 1929 (45 Stat. .1340, ch. 352), as amended by the act of June 25, 1948 (62 Stat. 909, ch. 646) (District of Columbia Code, sec. 2-137), by- 1. Substituting the Corporation Counsel of the District of Columbia for the U.S. attorney as the party who shall conduct certain proceedings relating prin- cipally to the suspension or revocation of doctors' licenses; this follows naturally from a recent change effected by the District Commissioners in the composition of the District Commission on Licensure by which the Corporation Counsel was substituted for the U.S. attorney. PAGENO="0035" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 29 SECTION 6. REGISTERED NURSES This section would amend section 6 of the act approved February 9, 1907 (34 Stat. 888, ch. 913) as amended by the act of March 2, 1929 (45 Stat. 1521, ch. 540) and the act of June 25, 1936 (49 Stat. 1921, ch. 804) and the act of June 25, 1948 (62 Stat. 991, ch. 646) and the act of May 24, 1949 (63 Stat. 107, ch. 139) (District of Columbia Code, Sec. 2-407), by- 1. Substituting the Corporation Counsel of the District of Columbia, for th~ U.S. attorney as the party who shall conduct certain proceedings relating principally to the suspension or revocation of nurses' licenses issued by a local board appointed by the Commissioners of the District of Columbia. SECTION 7. OPTOMETRY This section would amend section 2 of the act of May 28, 1924 (43 Stat. 177, cli. 202) (District of Columbia Code, sec. 2-502), by- 1. Designa'ting the Corporation Counsel of the District of Columbia specifically as the prosecutor for misdemeanor violations of provisions concerning optome. trists' licenses issued by a local board appointed by the Commissioners of the District of Columbi.a. SECTION 8. ACCOUNTANCY This section would amend section 9 of the act approved February 17, 1923 (42 Stat. 1263, ch. 94) (District of Columbia Code 2-909), by- 1. Designating the Corporation Counsel of the District of Columbia spe.- cificially as the prosecutor for violations of provisions concerning accountants' licenses issued by a local board appointed by the Commissioners of the District of Columbia. * SECTION 9. PRIVATE DETECTIVES This section would repeal sections 425 and 428, inclusive of the act approved June 22, 1874 (Revised Statutes, District of Columbia, secs. 425-428), as amended by the act of June 11, 1878 (20 Stat. 107, ch. 180) (District of Columbia Code, sees. 4-168--4-171, inclusive), relating to the appointment and bonding of private detectives. This amendment would not change existing substantive law. The sections expressly repealed by the amendment have been given no effect since 1932 when they were repealed by implication and superseded by the act of July 1, 1932 (47 Stat. 559, ch. 366) (District of Columbia Code, sec. 47-2341). SECTION 10. ESTATES OF ABSENTEES AND ABSCONDERS This section would amend section 1 of the act of April 8, 1935 (49 Stat. 111, ch. 46), as amended by the act of June 25, 1936 (49 Stat. 1921, ch. 804), and the act of June 25, 1948 (62 Stat. 991, ch. 646), and the act of May 24, 1949 (63 Stat. 107, ch. 139) (District of Columbia Code 20-701). This amendment would have the effect of transferring what is essentially a local government function to the local government through its attorney, the Corporation Counsel. Under exist- ing law, it is the District of Columbia, not the United States, to which estates normally escheat and by which support payments are made. The amendment would grant specifically to the District of Columbia the right to be made a party in every proceeding where one seeks to place in receivership property of absen- tees or absconders who- (a) have left the District without making provisions for the support of their dependents and (b) whose assets are treated under certain circumstances as if the absen- tee had died intestate. SECTION 11. EFFECTIVE DATE This section provides that sections 1, 2, and. 3 of this actwouldbe applicable only to acts committed after the date of enactment; whereas, sections 4 through 10 would be applicable to proceedings instituted 30 days after enactment and not to proceedings instituted prior thereto. PAGENO="0036" 30 AMENDMENTS TO CRIMINAL STATUTES OF D.C. THE OPTOMETRIC SOCIETY OF THE DISTRICT OF COLUMBIA, Washington, D.C., February 11, 1963. Mr. CHESTER H. SMITH, Staff Director, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR MR. SMITH: First of all, let me assure YOU that we greatly appreciate the action of Senator Bible and yourself in requesting the comments of the District Optometric Society concerning S. 486. Section 7 of the bill, which would amend the District of Columbia optometry law to provide that prosecutions of its violations shall be conducted in the name of the District of Columbia by the corporation counsel, has our unqualified support. Incidentally, if this bill passes as we hope it will, it will be the first amend- ment to the District optometry law since its passage May 28, 1924. Whenever we can be of service, please feel free to call upon us. Respectfully, HoRAcE W. WHITE, Jr., Executive Secretary. The CHAIRMAN. S. 486 is a bill introduced by myself which amends certain criminal laws applicable to the District of Columbia. We will not conclude the testimony on this legislation today. We will continue tomorrow morning and Monday, if necessary, and the three remaining titles will be heard in the succeeding 2 weeks. These hearings are designed to implement factfinding sessions held in February and March before joint meetings of the Senate and House District of Columbia Committees on the upsurge of crime in Wash- ington, D.C. Today we are here in a conscientious and determined effort to make headway in the difficult area of more effective law enforcement within the District of Columbia. The city of Washington is not alone in the upward crime trend, since all major cities in the country have similar problems in varying degrees. As I have said too many times, the fact that we compare favorably with cities of comparable size is, in my opinion, of slight consolation, because there is, certainly, too much crime. Congress has the legislative responsibility over the Nation's Capital City. Each of you in your capacity as an administrative official, law enforcement officer, or a concerned citizen, have your responsibility with respect to law enforcement. Personally, I favor taking every reasonable step to strengthen the arm of law enforcement agencies so long as constitutional guarantees are protected. As I have stated before, I believe just as strongly, that those constitutional guarantees should not deprive law-abiding men, women, and children of another important right-the right to walk our streets without fear of bodily harm and the right to the safety of our homes. These problems and their associated causes have no simple answers. It is my hope, and I believe that hope is shared by every member of this committee, that we can make some headway in discharging our obligation in this field. As I indicated previously, the first range of hearings will be on title IV, and the following subsections of title V. There are, as I indicated, seven subsections under title V as it comes to us in the House bill. We will proceed in that order. After testimony is concluded on titles IV and V we shall proceed during the next 2 weeks to the consideration of titles I and II, the so-called Mallory and D'ur1uz~'m rules. PAGENO="0037" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 31 I am advised that because of some problems of some out-of-town witnesses who are experts on these two subjects that it may be neces- sary to change the order of the hearing on Durham/ and Mallory, but we will give due notice to everybody in proper time. That, in general, is the schedule of this committee that it will at- tempt to follow. We will set a date quite possibly sometime later for hearings on section 506 `of title V which is the title that deals with indecent publications. Our first witness is Commissioner Tobriner. Senator Beau, do you have any statement? Senator BEALL. I just want to say that I certainly concur in what you have said. Crime has been rising all over the country and in the Nation's Capital. Our problem, of course, in this commit- tee, is to deal with the situation right here in Washington and I think it is time that we go into `this as thoroughly as we possibly can and as quickly as we possibly can. I concur in what you have said. The CHAIRMAN. Thank you. As I stated earlier, our first witness this morning is the Chairman of the Board of Commissioners, Mr. Walter N. Tobriner. STATEMENT OP WALTER N. TOBRI~R, PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT `OP COLUMBIA; ACCOMPANIED BY `ROBERT P. KNEIPP, ASSISTANT CORPORATION COUNSEL; AND GILBERT GIMBLE~ ASSISTANT CORPORATION COUNSEL Mr. TOBRINER. Mr. Chairman and members of the committee, I wish to say preliminarily that the Commissioners and the entire govern- ment of the District of Columbia share with you your concern respect- ing the mounting crime rate in the District of Columbia and will cooperate with you to the fullest in securing protection against crime, consistent with constitutional rights. The Commissioners appreciate this opportunity to present their views on titles IV `and V of H.R. 7525 and on S. 486. However, since I understand that section 506 of title V (as the chairman has so indi- cated) is to be made the subject of a later hearing before this com- mittee, I shall reserve to such later hearing my statement as to the views of the Commissioners on that section. Accordingly, nothing in the testimony I offer here today should be considered as being appli- cable, either directly or indirectly, to section 506 of title V. The CHAIRMAN. That deals with indecent publications which will be made the subject of a separate hearing. Mr. TOBRINER. Yes, Mr. Chairman. The CHAIRMAN. We understand that what you are going to say on title V does not have any relation to section 506. Mr. TOBRINER. Right. H.R. 7525, as' passed by the House of Representatives on August 12,1963, is intended to change existing law in the District of Columbia so as to deal more effectively with the crime situation. This is a sit- uation with which the Commissioners have long been concerned, and accordingly they welcome the interest in the problem which the Con- `gress is showing. However, for reasons which they will develop in the course of these hearings, the Commissioners, while they favor certain provisions of the bill, nevertheless, have a number of reserva- PAGENO="0038" 32 AMENDMENTS TO CRLMINAL STATUTES OF D.C. tions concerning many of its provisions. As a result, they have recom- mended to this committee, in. a letter dated September 13, 1963, that the bill not be enacted in its present form. The chairman has already incorporated that letter into the record. The CHAIRMAN. That is correct. It has already been incorporated into the record. Mr. TOBRINER. Title IV of H.R. 7525 has the effect of including the crime of robbery in the group of crimes embraced within the term "crime of violence," as specified by the first section of the act approved July 8, 1932. In view of the fact that the term "crime of violence" as presently defined in such section includes murder, manslaughter, rape, mayhem, maliciously disfiguring another, abduction, kidnaping, bur- glary, housebreaking, larceny, any assault with intent to kill, commit rape, or robbery, assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment in the peni- tentiary, it appears that the addition of the crime of robbery in this group of crimes is merely the correction of an oversight. The Com- missioners favor this change in existing law. Title V consists of seven sections (excluding sec. 506). Six of these sections amend a variety of existing laws, while the seventh enacts in statutory form an existing District of Columbia police regulation pro- hibiting the making of false or fictitious reports to the Metropolitan Police Department. The sections of this title have virtually nothing in common with one another, except that several of the sections either specifically or in effect change existing law so as to provide for the imposition of mandatory minimum sentences upon convictions of certain specified offenses. On this aspect of the general problem, the Commissioners question the effectiveness of a mandatory minimum penalty, in the belief that any such penalty not only deprives the courts of discretion in the sentencing of offenders, but also many, in its effect, be self-defeating. If the mandatory minimum penalty be con- sidered excessive by a jury, the jury may tend to acquit the defendant rather than subject him to what it considers an excessively high pen- alty. In view of this, the Commissioners question whether a manda- tory minimum penalty, or an increase in an existing mandatory mini- mum penalty, will operate so as to affect materially the crime situation in the District. Accordingly, my comments respecting the sections of title V which would have the effect of establishing `a mandatory mini- mum penalty, or increasing an existing mandatory minimum penalty, should be considered as including the foregoing general comment concerning the efficacy of mandatory minimum penAlties. The CHAnu~rAN. Do you have someone who is going to testify on this subjedt of mandatory minimum sentence in more detail? My understandmg is that Mr. Clemmer. Director of the District of Colum- bia Department of Corrections, will testify in detail as to how the present penalties work under, the various code sections. Mr. TOBRINER. Yes; that is under his jurisdiction, in the Depart- ment of Corrections. The CHAIRMAN. I will then withhold those questions, and ask them of mm. Mr. TOBRINER. Yes. Section 803 of the act of. March 3, 1901, presently provides that every person convicted of any assault with intent to kill or commit PAGENO="0039" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 33 rape, or to conrniit robbery, or of mingling poison with food, drink, or metheme with intent to kill, or of willfully poisoning any well, spring, or cistern of water, shall be sentence to imprisonment for not more than 15 years. Section 501 of H.R. 7525 amendsthis provision so :~5 to provide a mandatory penalty of not less than 2 years. For the reasons I have already stated, the Commissioners question the desir- ~ibiity of this section of the bill. Section 502 amends existing law relating to housebreaking so as to denominate the offense as burglary; to provide for two degrees of such offense; and to establish a minimum and maximum penalty for each such degree. The bill provides that burglary in the first degree involves the breaking and entering, or the entering without breaking, with criminal intent, of any dwelling, or room used as a sleeping apartment in any building, if any person be in actual occupation of any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking. Burglary in the second degree involves the breaking and entering, or entering with- out breaking, with criminal intent, of any dwelling, bank, store, ware- house, shop, stable, or other building, or any apartment or room, whether at the time occupied or not, or any steamboat, canalboat, ves- sel, or other watercraft, or railroad car, or any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade. The penalty prescribed for first degree burglary is im- prisonment for not less than 20 years nor more than life, and for the lesser offense of burglary in the second degree, imprisonment for not less than 5 years nor more than 15 years. In general, subject to the comment I have made with respect to the desirability of mandatory minimum penalties, the Commissioners favor the enactment of section 502. They suggest, however, that the language of subsection (b) of the proposed new section 823, would be clearer if the phrase "whether at the time occupied or not," appearing in line 8 011 page 18, were changed to "regardless of whether any person other than the owner of the premises in which such apartment or room is located is entitled to the occupancy thereof." The CHAIRMAN. Do I understand that the Commissioners' position on this section is that there should not be a minimum of 20 years for burglary-is that correct? Mr. TOBRINER. We say that there should be no minimum sentence imposed but that we favor the designation of burglary in two separate degrees. The CHAIRMAN. I understand that, but you are opposed to the im- position of a minimum mandatory sentence? Mr. TOBRINER. That is correct. Section 503 increases the existing mandatory minimum penalty of 6 months upon conviction of the offense of robbery to a mandatory minimum penalty of 5 years' imprisonment. Here again the Corn- missioners question the desirability of establishing a mandatory mini- mum penalty. The CHAIRMAN. May I ask you a question there? Do you object to the setting of a minimum penalty of 6 months upon conviction for an offense such as robbery as it is now in the statute?. Mr. TOBRINER. No. I would not object to that, because I think that is practically demimmis in respect to a crime of that kind PAGENO="0040" 34 AMENDMENTS TO CRTh1L~AL STATUTES OF D.C. The Onu~w~r. I am wondering if you are consistent, though, where you object to minimums in relation to the other sections-why do younot object to a minimum sentence for robbery? Mr. TOBRINER. Because we think that in the case of robbery, which 15 a felony, that the minimum sentence currently prescribed is one which any court would normally give. The CHAIRMAN. That is written into the statute? Mr. TOBRINER. It is written into the statute, but I feel that it is a de minirnis matter, and the Commissioners have no strong feelings about this item of 6 months under the robbery section. The CHAIRMAN. The burden of your argument up to date on the House passed bill is to oppose a minimum sentence? Mr. TOBRINER. We do, sir, but I say that a sentence of 6 months on. a conviction for robbery is so minimal that I do not feel, if that were permitted to stay in the statute that it would constitute any real inter- ference with judicial discretion. The ChAIRMAN. If there were a minimum sentence of 6 months for these other crimes you would then have no objection? Mr. TOBRINER. That would depend upon the nature of the crime. I would say that generally would be true. I do not believe that con- stitutes any substantial impairment in the case of a felony in the court's discretion, which we believe should reside and remain with the judges. The CHAIRMAN. Under the present sentencing system for burglary, if I understand it correctly, the present sentence for housebreaking is imprisonment for not more than 15 years. Is that the sentence that the judge would give, or would he impose one of 10 or 5 years? Mr. TOBRINER. It would be within his discretion to give anything. The CHAIRMAN. He can and does specifically set the sentence in the District of Columbia? Mr. TOBRINER. Yes, sir. The CHAIRMAN. Is that correct? Mr. TOBRINER. Yes, sir. We have an indeterminate sentence law, if that is what you are driving at. The CHAIRMAN. That is what I am driving at. The offender is convicted of housebreaking and he is before the judge for sentencing. Now, my question is, what type of a sentence can the judge impose? Mr. TOBRINER. My recollection is, subject to correction, is that he sentences him for not less than nor more than. The CHAIRMAN. So the judge himself then has a statute to which he can go permitting him to set the minimum? Mr. TOBRINER. Within the confines of the sentence prescribed for the individual crime for which the sentence is imposed. The CHAIRMAN. That is in the District of Columbia? Mr. TOBRINER. I will have to refer to some of my lawyer friends here about that. The CHAIRMAN. I am just trying to find out exactly how it works. Mr. TOBRINER. I think that is true. Is Mr. Acheson here at the moment? Is that correct, Mr. Acheson? The QaAnu~rAN. Would you like to come forward? Maybe this is more properly in your province. Mr. ACHESON. I will touch on that in mytestimony. The CHAIRMAN. We will ask you the question then at that point. Thank you. PAGENO="0041" AMENDMENTS TO CRIMINAL STATuTES OF D.C. 35 Mr. TOBRINER. Section 504, generally relating to the bribing of per- sons participating in athletic contests, and offers to bribe such persons, replaces an existing provision of law having a similar effect. In gen- eral, this section of the bill appears to change existing law only to the extent of changing the penalty which may be imposed upon conviction of the proscribed offense, but otherwise to add nothing to existing law. Inasmuch as the Commissioners are informed that there appears to be no need for any change in existing law relating to this aspect of the problem, the Commissioners see no need for section 504. Accordingly they recommend against its enactment. Section 505 has the effect of depriving the court of any discretion with respect to the imposition of an additional penalty for the offense of committing a crime of violence when armed with, or having readily available, any pistol or other firearm. Under existing law, if any per- son commits a crime of violence when armed with or having readily available a pistol or other firearm, he may, in addition to the punish- ment provided for the crime, be punished by imprisonment for an additional terms of years, which I believe the statute says is 5 years. However, present law does not require that such additional term of imprisonment be imposed, but leaves the matter to the discretion of the court. Section 505 changes existing law in two respects. First, it makes it mandatory that the court impose an additional term of im- prisonment when a crime, of violence is committed while the offender is in possession of, or has readily available, a pistol or other firearm. Second, the section deprives the court of authority to suspend sen- tence or to place the offender on probation. The Commissioners ques- tion the desirability of depriving the court of discretion in matters of sentencing. Accordingly they are opposed to the enactment of section 505. The Commissioners question the desirability of section 507 inasmuch as it has the effect of requiring the imposition of a minimum penalty upon conviction of a violation of section 825 (a) of the act of March 3, 1901, prohibiting the placing of explosives at certain specified locations. I shall now discuss section 508. For many years the police regu- lations of the District of Columbia included and presently include a provision prohibiting the making of a false or fictitious report to the Metropolitan Police Department of the commission of any criminal offense, knowing such report to be false or fictitious, or to communi- cate or cause to be communicated to such Department any false infor- mation concerning the commission of any criminal offense or concern- ing any other matter or occurrence of which the Metropolitan Police Department is required to receive reports, or in connection `with which `such department is required to conduct an investigation, knowing such information to be false. Section 508 of the bill is merely a restate- ment of the long-existing police regulation, differing therefrom only with respect to the penalty which may be imposed. The police regu- lation provides for a penalty of a fine not exceeding $300 or imprison- ment not exceeding 10 days. Section 508 contains a penalty of a fine not exceeding $100 or imprisonment not exceeding 6 months, or both. We consider the proposed change in existing law both unnecessary and undesirable-unnecessary, in that the penalty presently prescribed for the violation of the police regulation is deemed adequate to the PAGENO="0042" 36 AMENDMENTS TO CRIMINAL STATUTES OF D.C. need; undesirable, in that the proposed increase in the penalty for such offense will have the result of permitting persons accused of mak- ing false reports to demand trial by jury for what in many cases would. not be considered a major offense. In view of this, the Commissioners recommend against the enactment of section 508. The two titles of H.R 7525 that I have been discussing attempt to deal, in a limited way, with the serious firearm problem which exists within the District of Columbia. Title IV, incorporating robbery in. the definition of a crime of violence, has a limited effect on the problem. Section 505, making it. mandatory that. persons convicted of a. crime of violence while armed be given an additional term of imprisonment and be precluded from receiving a suspended sentence or being placed on probation, also has a limited effect. on the problem. However, as they have set forth at some length in their report on H.R.. 7525, begin- ning on page 19, the Commissioners are of the view that the bill does not deal with the. serious inadequacies in present law regarding the acquisition and possession of firearms. They believe that an appro- priate means of dealing with this problem is that set forth in the draft bill forwarded to the Congress by the Commissioners on April 5, 1963. I submit for the record a. copy of the Commissioners' draft bill, together with a. copy of t.heir letter of April 5. 1963, to the Honorable Lyndon B. Johnson. President, U.S. Senate. The CHAIRMAN. Without objection, that will be made a part of the record at this point. (The document referred to follows:) APRIL 5, 19B3~ Hon. LYNDON B. JOHNSON, President, U.S. Senate, Washington, D.C. M~ DEAR Mn. PRESIDENT: The Commissioners of the District of Columbia have the honor to submit herewith a draft bill "To amend the act of July 8, 1932, relating to the control and possession in the District of Columbia of dangerous. weapons, and for other purposes." The purpose of the draft bill is to reduce the rate of serious crimes in the District by more closely controlling the acquisition and possession of certain dangerous weapons, with particular attention to handguns, which the Commis- sioners feel are now too easily available to criminal elements in the community~ Crimes committed in the District, as elsewhere in the larger cities of the United States, have been steadily on the increase in the past few years. Many factors play their .part in this trend. The Commissioners feel one factor has been the easy availability of the implements of crime and firmly believe that an. important step in the direction of reducing the crime rate is to provide tighter legal control over the possession of firearms. Police records give some indication of the seriousness of the weapons situation in the District. For example, more than 1,250 handguns alone have been con- fiscated and destroyed over the past 3 years. In addition, police have confiscated other firearms, such as rifles and shotguns, in possession of persons in trouble with the law. The Commissioners are informed that in more than half the cases in which these handguns were confiscated the persons from whom the weapons were taken were charged with assault with a dangerous weapon, armed robbery, or homicide. Recently, the Senate Subcommittee To Investigate Juvenile De- linquency .focused attention on the easy availability of the so-called mail-order guns in the District, many of which have been confiscated by District police. It was noted at these hearings by Senator Thomas J. Dodd, chairman of the sub- committee, that an estimated 800 to 1,000 firearms of all types are confiscated in .the District each year. Part of the reason for the general influx of guns into the District, in the view of the Commissioners, is the existence of several serious inadequacies in present law ~regarding the acquisition and possession of firearms. Accordingly, the attached draft bifi is designed to ellminate those features in existing law con- PAGENO="0043" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 37 sidered to be hindering the effective control of guns and at the same time tighten other features of the law relating to the control of dangerous weapons generally. Weaknesses contained in present law allow persons to come into possession of handguns without an adequate investigation of whether they should have such weapons from the standpoint of their stability and lawful intentions. For example, anyone in the District may keep a gun in his home, place of business or on any other land he may possess without any requirement of any type of license whatsoever. A license is required at present only when a pistol is carried on one's person outside of his property (sec. 22-3204, District of Columbia Code, 1961 edition). Another inadequacy in existing law concerns the provisions requiring a waiting period before a seller may deliver a handgun to a purchaser (sec. 22-3208, Dis- trict of Columbia Code, 1961 edition). The purpose of the waiting period is to give the police an opportunity to investigate the potential purchaser to deter- mine if any reason exists why he should not have the weapon. The required waiting period may be as brief as 42 hours. This, police officials have indicated, is far too short a period in most instances for a thorough check to be made. Further, the statute does not provide specific authority for the police to actually forbid the delivery of the weapon in cases when the potential purchaser is determined not to be qualified to possess one. In addition, existing law, as it relates to possession of handguns by minors, implies that any person under the age of 21 years is free to have such weapons except as restricted by general provisions contained in the statute. Although the law appears to allow such possession, it specifically forbids the sale or transfer of any handguns to minors except by parents or guardians (sec. 22-3207, District of Columbia Code, 1961 edition). This means that a minor may bring into the District and have in his pomession a handgun purchased elsewhere but it not permitted to purchase a handgun in the District. The rationale of the prohibition against any such purchase in the District appears to be that possession of a handgun by a minor is considered undesirable. The Commissioners believe the law should clearly prohibit possession of handguns by persons under the age of 18 years, except to permit certain activities under proper regulations, as for example, the participa- tion in target shooting at authorized locations. These inadequacies are in large part overcome by the proposed amendments contained in the draft bill. Other features of existing law are also substantially strengthened. Briefly, the major areas of change proposed by the amendments would provide the following: 1. Require every person in the District (with exception of police, military personnel, and certain other groups that are specifically exempted or may be exempted under regulatory authority granted the Commissioners) to obtain a permit from the Commissioners or their designated agent in order to legally possess a handgun. When an applicant demonstrates that he is a person of good moral character and responsibility, the Commissioners or their designated agent are required to issue a permit for possession of a handgun to be kept in his home or place of business or on other land he owns or possesses. When an applicant meets similar standards, in addition to demonstrating a need for a weapon to protect his person or property, the Commissioners or their designated agent may in their discretion issue a permit to carry a handgun on his person. 2. Prohibit possession of handguns in the District by person under 18 years of age, but allowing the Commissioners regulatory authority to permit such person to engage in such activities as target shooting and competitive shooting matches under restrictions that they may impose. 3. Prohibit the carrying about of any rifle or shotgun anywhere in the District unless such weapon is unloaded, except that the possession of a loaded rifle or shotgun kept in one's home, place of business or on other land owned or leased by such person, is permitted. 4. Require closer surveillance by law-enforcement authorities over the impor- tation and delivery of handguns into the District to insure that these weapons not get into the hands of unqualified recipients. The Commissioners or their designated agent are given clear authority to order that no delivery be made to such person. No delivery or transfer of any handgun would be permitted by any person unless he first obtains written permission to do so. 5. Require stricter licensing of manufacturers and dealers in weapons in the District, including those selling weapons at retail and wholesale and those in the business of repairing firearms, and require records to be kept and reports to be made to the Chief of Police concerning weapons sold and repaired and to whom sold and delivered. PAGENO="0044" 38 AMENDMENTS TO CRIMINAL STATUTES OF D.C. 6. Tighten existing provisions prohibiting the possession of a dangerous weap- on with intent to use it unlawfully, including establishment of a presmuption that the possession of certain weapons, including possession of a pistol without a license, constitutes possession of such weapon with intent to use it unlawfully. 7. Require any person desiring to purchase a pistol, machine gun, sawed-off shotgun, or blackjack within the District to first obtain a permit to purchase any such weapon. This latter provision, contained in section 2 of the bill and amending section 8 of the act (sec. 22-3208. District of Columbia Code, 1961 edition), has a far- reaching effect in strengthening existing law and is one of the most important features of the bifi. The requirement that any purchase of a pistol, or any other prohibited weapon listed, must be preceded by the granting of a permit to pur- chase such weapon brings the District within the provisions of the Federal Firearms Act (U.S. Code, title 15, ch. 18) governing interstate traffic of firearms. Section 902(c) of such act provides that: "It shall be unlawful for any licensed manufacturer or dealer to transport or ship any firearm in interstate or foreign commerce to any person other than a licensed manufacturer or dealer in any State the laws of which require that a license be obtained for the purchase of such firearm, ~iniess suck license is is ea'hibited to suck maaufactnrer or dealer by the prospective purchaser" [Italic supplied]. The Commissioners believe that the permit to purchase provision, in light of the above-quoted provision of the Federal Firearms Act, would eliminate in great part the serious problem of mail-order shipment of handguns to persons in the District. For example, any licensed dealer outside the District (or, in fact, with- in the District as well, since the Federal Firearms Act defines interstate com- merce to include commerce within the District) would be required to see evi- dence of a permit to purchase issued by the Commissioners or their designated agent before shipping or transporting the weapon in question. Should a dealer fail to comply with this requirement, he would face prosecution under the Fed- eral statute; in addition, under the language of the proposed bill, he would also face prosecution under the strengthened District dangerous weapons statute. The Commissioners have been informed that several States now require a permit (or some equivalent procedure) to purchase firearms bringing them within the Fed- eral Firearms Act, including Hawaii, Massachusetts, Michigan, Missouri, New Jersey, New York, and North Carolina. In developing the draft bill, the Commissioners' legal staff has had the close cooperation and assistance of various Federal officials, including the Internal Revenue Service which administers the Federal Firearms Act and the National Firearms Act. In addition, Mr. David C. Acheson, U.S. attorney for the District of Columbia, has aided in the drafting of the amendments. Mr. Robert V. Mur- ray, Chief of Police for the District of Columbia, has also given personal atten- tion to this matter and has been in communication with high-ranking officials of the New York Police Department concerning the effectiveness of such provisions as are now being proposed. In summary, the Commissioners believe that a need exists at this time for strengthening the District's dangerous weapons statute. The bill would, on one hand, continue to allow the possession of firearms by those law-abiding citizens desiring protection of their property and persons, under proper regulation, so that no qualified citizen desiring possession of such weapon need go unarmed. But, on the other hand, the bill provides for close control over the importation and possession of weapons and thus enables the authorities to take necessary steps to prevent these weapons from falling into the hands of criminal elements or persons not qualified to possess them. Accordingly, the Commissioners most strongly urge the enactment of the proposed bill. The Commissioners have been advised by the Bureau of the Budget that, from the standpoint of the administration's program, there is no objection to the sub- mission of this legislation to the Congress. Very sincerely yours, WALTER N. TOBRINER, President, Board of Commissioners, District of Columbia. A BILL To amend the Act of July 8, 1932, relatIng to the control of possession in the District of Columbia of dangerous weapons, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first section of the Act entitled "An Act to control the possession, sale, transfer, and use of pistols and other PAGENO="0045" AMENDMENTS TO CRIMINAL STATUTES OP D.C. 39 dangerous weapons in the District of Columbia, to provide penalties, to prescribe rules of evidence, and for other purposes", approved July 8, 1932 (47 Stat. 651). as amended, is amended to read as follows: "SECTIoN 1. When used in this Act, unless the context otherwise requires~? "(a) `Pistol' means any firearm, by whatever name known, with a barrel less than twelve inches in length, which will, or is designed to, or which may be readily converted to, expel a projectile or projectiles by the action of an explosive. "(b) `Sawed-off shotgun' means any shotgun or any rifle with a barrel less than twenty inches in length. "(c) `Machine gun' means any firearm which shoots automatically or semi- automatically more than twelve shots without reloading. "(d) `Rifle' means a weapon, other than a sawed-off shotgun, designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger. "(e) `Shotgun' means a weapon, other than a sawed-off shotgun, designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger. "(f) `Switch-blade knife' means a knife which has a blade which opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife. "(g) `Gravity knife' means a knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centri- fugal force and which, when released, is locked in place by means of a button, spring, lever, or other device. "(Ii) `Sell' and `purchase' and the various derivatives of such words shall be construed to include letting on hire, giving, lending, borrowing, and otherwise transferring. "( i) `Crime of violence `means any of the following crimes, or an attempt to commit any of the same, namely: Murder, manslaughter, rape, mayhem, mali- ciously disfiguring another, abduction, kidnaping, burglary, housebreaking, lar- ceny, any assault with intent to kill, commit i-ape, or robbery, assault with a dangerous weapon, or assault with intent to commit offense punishable by imprisonment in the penitentiary. "(j) `Commissioners' means the Board of Commissioners of the District of Columbia, or their designated agent. "(k) `District' means the District of Columbia." SEc. 2. Sections 3 through 14 of such Act approved July 8, 1932 (sees. 22-3203 through 22-3214, D.C. Code, 1961 ed.), are amended to read as follows: "SEe. 3. (a) No person shall own or keep a pistol, or have a pistol in his pos- session or under his control, within the District, if- "(1) he is under the age of eighteen years; "(2) he is a drug addict; "(3) he has been convicted in the District or elsewhere of a felony; "(4) he has been convicted of violating section 1 of the Act entitled `An Act for the suppression of prostitution in the District of Columbia' approved August 15, 1935 (49 Stat. 651), as amended, section 1 of the Act entitled `An Act to confer concurrent jurisdiction on the police court of the District of Columbia in certain cases' approved July 16, 1912 (37 Stat. 192), or sections 1 and 3 of the Act entitled `An Act to define and punish vagrancy in the District of Columbia, and for other purposes' approved December 17, 1941 (55 Stat. 808), as amended; or "(5) he is not licensed under section 10 of this Act and he has been con- victed of violating any section of this Act. "(b) No person shall keep a pistol for, or intentionally make a pistol available to, any person referred to in subsection (a) of this section, knowing or having reason to believe that he is under the age of eighteen years or that he is a drug addict or that he has been so convicted. Whoever violates this section shall be punished as provided in section 15 of this Act, unless the violation occurs after he has been convicted of a violation of this section, in which case he shall be im- prisoned for not more than ten years. "Ssc. 4. (a) No person shall within the District- PAGENO="0046" 40 AMENDMENTS TO CRIMINAL STATUTES OF D.C. "(1) carry either openly or concealed on or about his person any deadly or dangerous weapon capable of being so concealed, except as herein pro- vided; "(2) carry either openly or concealed on or about his person or own or have in his possession or under his custody or control any pistol without a written permit therefor issued to him as provided in this Act; "(3) have in his possession or under his custody or control, except in his dwelling house or place of busines or on other land owned or leased by him, any rifle or shotgun, unless such rifle or shotgun be unloaded; or "(4) own or have in his possession or under his custody or control any machinegiin, sawed-off shotgun, or any instrument or weapon of the kind commonly known as a blackjack, slung shot, slingshot, sandbag, switch-blade knife, gravity knife, or metal knuckles, or any instrument, attachment, or appliance for causing the firing of any firearm to be silent or intended to lessen or muffle the noise of the firing of any firearm. "(b) Any person within the District carrying or having in his possession or under his custody or control any pistol for the possession of which a permit has been issued to him as provided in this Act shall have such permit on his person or within his immediate custody. Any person having such possession, custody, or control of a pistol shall upon demand exhibit such permit to a duly appointed law-enforcement officer. The failure of any person to exhibit such permit as provided herein shall be cause for the revocation of any and all permits issued to him under this Act. "(c) If any person within the District voluntarily delivers to a duly am pointed law-enforcement officer any pistol, machinegun, sawed-off shotgun, shot- gun, rifle, or other firearm, or blackjack, slung shot, slingshot, sandbag, switch- blade knife, gravity knife, or metal knuckles, or any instrument, attachment, or appliance for causing the firing of any firearm to be silent or intended to lessen or muffle the noise of the firing of any firearm, under circumstances that do not give reason to believe that any law other than subsections (a) or (b) of this section has been violated, the voluntary delivery of such weapon or instrument, attachment, or appliance shall preclude the arrest and prosecution of such per- son on a charge of violating any provision of such subsections (a) or (b) with respect to such item voluntarily delivered. In the case of a voluntary delivery of any such weapon, instrument, attachment, or appliance, such item shall be delivered to any police precinct between the hours of 7 antemeridian and 6 postmeridian, shall be securely wrapped and, in the case of a firearm, shall be unloaded, and the bearer shall not have on his person or in his immediate possession any ammunition for such firearm. Any person within the District may summon a police officer to his residence or place of business for the purpose of voluntarily delivering to a police officer any such weapon, instrument, at- tachment, or appliance which shall be securely wrapped, and if a firearm, shall be unloaded. Any such weapon, instrument, attachment, or appliance delivered to any police officer or to any law-enforcement officer shall be disposed of in accordance with orders or regulations prescribed by the Commissioners. "(d) Whoever violates this section shall be punished as provided in section 15 of this Act, unless the violation occurs after such person has been convicted in the District of a violation of this section or of a felony, either in the District or in another jurisdiction, in which case he shall be sentenced to imprisonment for not more than ten years. "SEC. 5. (a) Sections 3 and 4 of this Act shall not apply to the following: "(1) police, marshals, sheriffs, prison or jail wardens, or their deputies, or law-enforcement agents of the United States Government; and "(2) members of the Armed Forces of the United States, the National Guard, or the Organized Reserves, while such members are on duty. "(b) The Commissioners are authorized in their discretion to make orders or regulations exempting from any or all of the provisions of sections 3 and 4 of this Act any or all of the following classes of persons: "(1) special policemen appointed pursuant to the Act approved March 3, 1899 (sec. 4-115, D.C. Code, 1961 edition), special privates appointed pur- suant to sections 378 and 379 of the Revised Statutes relating to the District (sec. 4-113, D.C. Code, 1961 edition) or employees of the United States or of the District, other than police, duly authorized to carry weapons; "(2) employees of any bank, public carrier, express, or armored-truck company organized and operating in good faith for the transportation of money or valuables; PAGENO="0047" AMENDMENTS TO CRIMINAL STATtITES OF D.C. 41 "(3) persons licensed under sections 9 and 10 of this Act, and employees `of persons so licensed, engaged in the business of manufacturing repairing, or dealing in the weapons referred to in such sectiOns~ "(4) regularly enrolled members of any organization duly authorized to purchase or receive firearms from the United States; "(5) members of civil or educational organizations~ and "(6) persons engaged in target shooting at duly authorized or licensed shooting galleries or ranges, or persons engaged in the operation of such shooting galleries or ranges. (c) The Commissioners are also authorized to make orders and regulations to carry out the purposes of this Act, including, without limitation, orders and regulations prescribing the form, content, and requirements respecting the num- ber of copies of reports, applications, permits, and licenses required under or authorized by this Act; providing for the keeping and disposition of records by persons selling, purchasing, manufacturing, repairing, transporting, or delivering weapons, instruments, attachments, and appliances covered by this Act; pro- viding for the carrying of a pistol to and from a place of sale or repair or in moving goods from one place of abode or business to another; and further regu- lating the conduct of the businesses required to be licensed under this Act. "SEC. 6. (a) (1) The Commissioners may in their discretion, upon the written application of any person having a bona fide residence or who conducts business within the District, issue a permit to such person to carry either openly or concealed on or about his person a pistol within the District if the Commissioners are satisfied that the applicant is a person of good moral character and is a responsible person in the light of his age, reputation, employment, medical history, experience with firearms, or other relevant matters, and if the Com- missioners are satisfied that the applicant has a need for such pistol in order to protect his person or property. (2) The Commissioners shall, upon the written application of any person *having a bona fide residence or who conducts business within the District, issue a permit to such person to own or have in his possession or under his custody or control a pistol, but may require such person to keep such pistol in his dwelling place or place of business or on land owned or possessed by him within the District. The Commissioners shall issue such permit if they are satisfied the applicant is a person of good moral character and is a responsible person in the light of his age, reputation, employment, medical history, experience with firearms, or other relevant matters. "(3) Any permit issued under this section may include such restrictions and prohibitions with respect to the possession or carrying about of such pistol as the Commissioners may impose. Any permit issued under this section may be revoked by the Commissioners when they have reason to believe that the per- mittee no longer has the qualifications requisite for the issuance of such a permit: Provided, That such revocation shall be only upon written order, which order may be issued at any time during the period of the permit. Upon service on the permittee of an order revoking any such permit, the permittee shall in~nedi- ately return such permit to the Commissioners. No permit shall be of any force or effect after service on the permittee of an order revoking the same. "(b) The Commissioners shall require that each applicant for a permit under this Act, as a condition to being issued such a permit, be fingerprinted. "(c) Each application for a permit, or a renewal thereof, under this section shall be accompanied by a fee in an amount fixed by the Commissioners but not exceeding $5, which shall be retained by the District regardless of the action taken with respect to the application. "(d) The Colnmissioners are authorized to prescribe the duration of such permit and to require renewals thereof at such times as they deem appropriate. "SEC. 7. No person shall within the District sell any pistol to a person who he has reasonable cause to believe is forbidden by this Act to possess a pistol, and imniess the purchaser is personally known to the seller or shall present clear evidence of his identity, and unless such person exhibits to the seller a permit issued by the Commissioners for the purchase of such pistol. "SEC. 8. (a) No person, except marshals, sheriffs, prison or jail wardens, or their deputies, policemen, or other duly appointed law-enforcement officers, shall purchase any pistol within the District without first obtaining a permit from the Commissioners to purchase such pistol. An application for a permit to purchase a pistol shall be filed with the Commissioners who shall within a reasonable period of time cause an investigation to be made to determine whether the applicant is qualified under the provisions of this Act to receive, own, or PAGENO="0048" 42 AMENDMENTS TO CRIMINAL STATUTES OF D.C. possess any such pistol. At the time of making a purchase of a pistol the pur- chaser shall exhibit to the seller a permit to purchase such pistol issued by the Commissioners and no seller shall deliver any pistol to any person unless such permit is exhibited to him and he makes a record of such permit to purchase, as may be required by regulation. "(b) No person shall ship, transport for delivery, or deliver to any person within the District any pistol or any package which such shipper, transporter, or deliverer has reason to believe contains one or more pistols, without first notifying the Commissioners in writing of the name and address of the person to whom such pistol or package is being shipped or delivered and the place of delivery. Delivery to such person shall be withheld for such reasonable period of time as may be specified in writing by the Commissioners during which period the Commissioners shall cause an investigation to be made to determine whether such person is qualified under the provisions of this Act to obtain a permit to re- ceive, own, or possess any such pistol. In the event the Commissioners determine that such person is not qualified under this Act to receive, owii, or possess a pistol, they shall serve upon the shipper, transporter, and such person written orders prohibiting such delivery to such person, or if they determine that the person is so qualified they shall, in writing, so notify the shipper, transporter, and such person. "(c) No person shall purchase any machine gun, sawed-off shotgun, or black- jack within the District of Columbia without first obtaining a permit from the Commissioners. No person shall sell or deliver any such weapon within the District, or ship or deliver any package within the District if he has reason to believe that such package contains any such weapons, without first obtaining written permission to do so from the Commissioners. "(d) Whoever violates this section or any order served by the Commissioners pursuant to this section shall be punished as provided in section 15 of this Act, unless the violation occurs after such person has been convicted in the District of a violation of this section or of a felony, either in the District or in another jurisdiction, in which case he shall be sentenced to imprisonment for not more than ten years. "SEC. 9. No person shall within the District engage in the business of selling, or manufacturing, or repairing pistols, machine guns, rifles, shotguns, sawed- off shotguns, or blackjacks without being licensed as provided in section 10 of this Act. "SEC. 10. (a) The Commissioners may grant licenses, effective for not more than one year from date of issue, permitting the licensee to sell at retail or at wholesale, or to manufacture or to repair, pistols, machine guns, rifles, shotguns, sawed-off shotguns, or blackjacks. Whenever any such licensee shall breach any conditions upon which his license was issued or upon violation of any provision of this Act or of any provision of section 7 of the Act of July 1, 1902 (32 Stat. 622, et seq., ch. 1352; ch. 2~3, title 47, D.C. Code, 1961 edition), which is ap- plicable to any such licensee or of any applicable regulation made pursuant to such Acts, the license shall be subject to suspension or revocation and the licensee shall be subject to punishment as provided in this Act. "(b) Except as otherwise provided in this Act, the provisions of section 7 of the Act approved July 1, 1902 (32 Stat. 622, et seq., ch. 1352; ch. 23, title 47, D.C. Code, 1961 edition), relating to the issuance, revocation, suspension, trans- fer, and assignment of licenses, and license taxes or fees, and the provisions of such section 7 relating to the supervision, regulation, and inspection of licensed businesses, shall be applicable to licenses authorized to be issued by this section and to the holders of such licenses. "(c) The Commissioners are authorized and empowered to fix, and from time to time increase or decrease, fees for any services rendered under this section. The Commissioners shall increase, decrease, or fix fees in such amounts as will, in the judgment of the Commissioners, approximate the cost to the District of administering this section. "SEC. 11. No person shall, in purchasing any weapon or applying for any permit or license under this Act, or in giving any information pursuant to the requirements of this Act, give false information or offer false evidence of his identity. "SEc. 12. No person shall within the District change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark or identification on any pistol, machine gun, rifle, shotgun, or sawed-off shotgun. Possession of any pistol, machine gun, rifle, shotgun, or sawed-off shotgun upon which any such mark shall have been changed, altered, removed, PAGENO="0049" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 43 or obliterated shall be prima facie evidence that the possessor has changed, al- tered removed, or obliterated the same within the District: Provided, That nothing contained in this section shall apply to any officer or agent of any de- partment or agency of the United States or the District engaged in research or experimental work. "SEC. 13. Nothing in this Act shall be construed to prohibit delivery, sale, or possession of any toy or antique pistol so constructed or in such condition as to be not usable as a firearm, except that no person shall within the District possess any such toy or antique pistol with intent to use the same unlawfully. "SEC. 14. (a) No person, including those persons as may be exempted by subsection (a) of section 5 of this Act or exempted by the Commissioners from the provisions of subsection (a) of section 4 of this Act, shall within the District of Columbia possess, with intent to use unlawfully, any dangerous or deadly instrument or weapon, including, but not limited to, any pistol, machine gun, sawed-off shotgun, shotgun, rifle, or other firearm, or imitation pistol or fire- arm, or dagger, dirk, razor, stiletto, or any knife. Th.e possession by any per- son, other than persons granted exemption by such subsection (a) of section 5 or by the Commissioners, or any pistol without a written permit therefor issued to him in accordance with the provisions of this Act, or of any machine gun, sawed-off shotgun, or any instrument or weapon of the kind commonly known as a blackjack, slung shot, slingshot, sandbag, switch-blade knife, gravity knife, or metal knuckles, shall be presumptive evidence of possession of such firearm or weapon with intent to use the same unlawfully. "(b) Whoever violates this section shall be punished as provided in section 15 of this Act, unless the violation occurs after he has been convicted in the District of a violation of this section or of a felony, either in the District or in another jurisdiction, in which case he shall be imprisoned for not more than ten years". SEC. 3. Such Act approved July 8, 1932, as amended, is amended by adding at the end thereof the following new sections: "SEC. 18. (a) Any order or notice required by this Act to be served shall be deemed to have been served when served by any of the following methods: "(1) when forwarded to the last known address of the permittee, as such address is recorded on the permit record on file with the Commissioners, by certified mail, postage prepaid; "(2) when delivered to the person to be notified; or "(3) when left at the usual residence or place of business of the person to be notified with a person of suitable age and discretion then resident or employed therein. "(2) Any notice to a corporation shall, for the purposes of this Act, be deemed to have been served on such corporation if served on the president, secretary, treasurer, general manager, or any principal officer of such corporation in the manner hereinbefore provided for the service of notices on natural persons; and notices to a foreign corporation shall, for the purposes of this Act, be deemed to have been served if served personally on any agent of such corporation, or if left with any person of suitable age and discretion residing at the usual resi- dence or employed at the usual place of business of such agent in the District. "(c) It shall be the duty of the permittee to notify the Commissioners in writing of loss or theft of any pistol for which a permit has been obtained, the loss or theft of a permit, or of any change of address from that address recorded on the permit of such permittee within forty-eight hours following such change of address or discovery of such loss or theft. "SEC. 19. The Commissioners are authorized to delegate any function vested in them by this Act and to provide for subdelegation of any such function: Provided, That the Commissioners shall not delegate the authority to make regulations pursuant to the authority contained in this Act. "SEC. 20. This Act may be cited as the `District of Columbia Dangerous Weap- ons Act',". SEC. 4. The Act entitled "An Act to consolidate the Police Court of the District of Columbia and the Municipal Court of the District of Columbia, to be known as `the Municipal Court for the District of Columbia,' to create `the Municipal Court of Appeals for the District of Columbia,' and for other purposes", ap- proved April 1, 1942 (56 Stat. 190, cli. 207), as amended (~ 11-772, D.C. Code, 1961 edition), is hereby amended by adding at the end of subsection (e) of section 7 of said Act the following new clause: 25-260-64--pt. 1-4 PAGENO="0050" 44 AMENDMENTS TO CRflS4INAL STATUTES OF D.C. "(10) Any final decision or final order denying, suspending, or revoking any application, permit, or license, or renewal of any permit or license, issued or applied for under the District of Columbia Dangerous Weapons Act." SEc. 5. Section 911 of the Act entitled "An Act to establish a code of law for the District of Columbia", approved March 3, 1901 (31 Stat. 1337), as amended (~ 23-301, D. C. Code, 1961 edition), is amended by inserting after the word "place" where such word first appears "any weapon, instrument, attachment or appliance possessed in violation of the Act approved July 8, 1932 (47 Stat. 650, ch. 465), as amended.". SEC. 6. Section 914 of such Act approved March 3, 1901 (sec. 23-304, D.C. Code, 1961 ed.), is amended by adding the following: "If the property seized be a dangerous article declared to be a nuisance by section 17 of the Act approved July 8, 1932 (47 Stat. 654), as amended, such article shall be disposed of pursuant to such section 17.". SEC. 7. Nothing contained in this Act or in any amendment made by this Act shall be construed as diminishing power or authority vested in the Commission- ers of the District of Columbia by section 4 of the Act of June 30, 1906 (34 stat. 809, cia. 3932; sec. 1-227, D.C. Code, 1961 ed.), or by section 7 of the Act of July 1, 1902 (32 Stat. 622, et seq., ch. 1352; ci. 23, title 47, D.C. Code, 1961 ed.), to make and enforce regulations relating to firearms, projectiles, explosives, or weapons of any kind, but this Act and amendments made by this Act shall be deemed as supplemental to such section 4 of the Act of June 30, 1906, and such section 7 of the Act of July 1, 1902. SEC. 8. The provisions of section 4(c) of such Act approved July 8, 1932, as amended by this Act, relating to the voluntary delivery of weapons to pollce, shall take effect upon the approval of this Act. The remaining provisions of this Act shall take effect on the thirtieth day following approval by the Com- missioners of the District of Columbia of initial regulations made pursuant to the authority contained in such Act approved July 8, 1932, as amended by this Act, and on such effective date all outstanding licenses for the possession of pistols in the District of Columbia shall be of no force or effect. SEC. 9. That the first section of the Federal Firearms Act (52 Stat. 1250; 15 U.S.C., ch. 18) is amended by adding at the end of the definition of the term "interstate or foreign commerce" the following sentence: "For the purposes of this Act the term `State' shall be held to include the District, of Columbia and the Commonwealth of Puerto Rico.". SEC. 10. Appropriations to carry out the purposes of this Act are hereby authorized. Mr. TOBRINER. This letter sets forth the need for the recommended legislation, and explaining its provisions, which, the Commissioners believe, would provide the District with a strong, enforcible law to deal with the dangerous weapons problem in the District of Columbia. The Commissioners desire at this time to recommend that the Con- gress consider tile enactment of legislation substantially similar to that set forth in the draft bill which I have offered for the record. So much then for IH.R. 75'25. I shall flow proceed to a. discussion of 5. 486, a bill to amend certam criminal laws applicable to the District of Columbia, and for other purposes. This bill, designed to strengthen certain existing provi- sions of criminal law in the District, broadens the law governing un- mimity of witnesses in certain criminal proceedings, and to make cer- tain procedural changes, was drafted by the U.S. attorney for the District of Columbia with the assistance of the Corporation Counsel. The Commissioners recommend its enactment. Briefly, the first section of the bill amends section 848 of the act of March 3, 1901, relating to the crime of malicious injury or destruc- tion of property. Section 848 is broadened to cover malicious injury or destruction of all personal and real property, rather than being limited, as at present, only to the malicious injury or destruction of movable property. Also, at present section 848 makes it a felony to PAGENO="0051" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 45 maliciously injure or destroy property valued at $50 or more. Sec.- tion 1 of the bill increases this limitation to $200 or more. This is in line with current depreciation in values. The first section of the bill also revises the penalties established for such felonies by eliminating the mandatory maximum and minimum sentences of not less than 1 year nor more than 10 years' imprisonment, and sub- stitutes instead a line of not more than $5,000 or imprisonment for not more than 10 years, or both. In addition, it increases the maxi- mum line for misdemeanors in such cases from $200 to $1,000, and provides that the penalty for a misdemeanor shall be a fine not exceed- ing $1,000 or imprisonment not exceeding 1 year, or both. The Com- missioners believe that these amendments will result in more effective prosecution of those offenses which would be affected by the amend- ments. The second section of the bill eliminates from an existing provision of law relating to willful or wanton disfigurement of property (sec. 1 of the act of July 29, 1892), language relating to the destruction of property, inasmuch as all prosecutions for malicious injury to. or destruction of property would, by the first section of the bill, be brought under the amended section 848 of the act of March 3, 1901. Section 3 of the bill amends existing District of Columbia law re- lating to kidnaping by striking the words "for ransom or reward" and submitting in lieu thereof the words "for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof." The purpose of this amendment is to broaden the kidnaping statute, which now makes it unlawful only to hold a person for ransom for reward. The amendment would make the statute also applicable to those kid- naping cases in which the motive is lust, a desire for companionship, revenge, or some other motive not involving a desire for ransom or reward. However, in order to make the language of the statute in- applicable to cases involving the taking of a minor child by one of the parents of such child, the proposed amendment expressly excepts any such case from the operation of the statute. The Commissioners are informed that the proposed amendments of existing District of Columbia law will bring t.he District's law into conformity with the Federal statute. Section 4 of the bill broadens immunity privileges now granted under the law to witnesses in cases involving civil actions relating to the abatement of disorderly house nuisances by authorizing the grant-. ing of similar immunity in criminal prosecutions for keeping such houses. Under this amendment the courts, upon application of the prosecutor, may compel a witness to testify in any such criminal prosecution notwithstanding his claim of privilege under the fifth amendment. Such witnesses, nevertheless, remain subject, under the amendment, to prosecution for perjury or contempt of court in con- nection with their testimony. It is expected that the broadening of the immunity statute to include cases involving criminal charges for keeping a bawdy or disorderly house will aid in the successful prose- cution of such charges. Section 5 of the bill amends the Healing Arts Practice Act by substituting the Corporation Counsel for the U.S. attorney as the official to conduct proceedings with regard to the suspension or revo- cation of licenses issued under the authority of such act. Similarly, PAGENO="0052" 46 AMENDMENTS TO CRIMThTAL STATUTES OF D.C. section 6 substitutes the Corporation Counsel for the U.S. attorney with regard to the conduct of proceedings leading to the suspension or revocation of licenses issued to nurses under the authority of the act of February 9, 1907. Sections 7 and 8 amend existing law so as to designate the Corpo- ration Counsel as the prosecutor of violations relating to the licensing of optometrists and accountants. Section 9 repeals certain provisions originally enacted June 22, 1874, relating to the appomtment and bonding of private detectives in the District. These provisions for a number of years have been considered as having been superseded by paragraph 41 of section 7 of the act of July 1, 1932, requiring the licensing of private detectives. Section 10 of the bill substitutes the Corporation Counsel for the U .S. attorney in cases involving certain actions dealing with receiver- ship of properties belonging to absentees or absconders. The amend- ment would, in effect, require that the District of Columbia, instead of the United States, be made a. necessary part.y in proceedings involv- ing rece.ivership of such property when the absentees or absconders have left the District without making provision for support of a wife or minor children, or when such assets are to be treated as though the absentee had died intestate. Finally, section 11 of t.he bill provides for the effective dates of the amendments of existing law made by the several sections of the bill. In summing up my testimony on titles IV and V of H.R. 7525 and on S. 486, I desire to reiterate that the Commissioners fa.vor t.he en- actment of title IV of H.R. 7525 and the enactment of S. 486. With respect to the sections of title V which I have discussed for the reasons I have stated earlier the Commissioners object to those provisions which would have the effect of establishing a mandatory minimum penalty for certain offenses, or increasing an existing mandatory mini- mum penalty. Subject to the foregoing comment, the Commissioners favor the enactment of section 502 of the title, relating to burglary. The Commissioners see no good for the balance of the provisions of title V of R.R. 7525, and accordingly they recommend against the enactment of all of the sections of that title with the exception of section 502. Thank you very much for affording the Commissioners an opportu- nity to express their views with respect to the merits of titles IV and V of ELR. 7525 and of 5. 486. The CHAIn~rAx. Thank you very much, Mr. Tobriner. I appreciate your testimony. I have no questions to direct to you. I previously indicated that we will have our hearing on the Mallory rule, which presents many problems, either next Tuesday or the Tuesday after that, and we will, likewise, have a full week of hearings on the Durham rule. We will look forward to seeing you back on those two separate occasions. Mr. TOBRINER. Thank you. The CuAIa~rAx. Are there any questions, Senator Dominick? Senator DoMINIcK. Mr. Chairman, I do not really have any ques- tions, because I was unable to be here for the full testimony a.nd have not had a chance to read it, but I do wa.nt to get clear what I under- stood from your last comment, Mr. Tobriner, and tha.t is it is my un- derstanding that you are against section V or all provi~ion~ at this point? PAGENO="0053" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 47 Mr. TOBRINER. We are, primarily, against those provisions of title V. Senator DOMINICK. Title V, yes. Mr. TOBRINER. Which either increase an existing mandatory mini- mum sentence or which provide for one where none previously existed. Our feeling is, Senator, that this is a matter which should funda- mentally be left to the judgment and the discretion of the presiding judge who has before him the defendant, the witnesses, the record, and other circumstances which may or may not induce longer or shorter sentences. We feel that it is primarily a judicial function which can safely be left to the discretion of our judges. Senator DOMINICK. Have you expressed an opinion in this with respect to your position on the so-called Mallory rule? Mr. TOBRINER. No, sir. The ChAIRMAN. If I may interrupt there, I am trying to break this hearing into three different sections. Starting next Tuesday we intend going in depth into the Mallory rule, through the balance of the week, and then the following week we are going into the so-called Dci~rham rule. I have no objection to the Senator questioning about this at all, ~except that I am trying to divide it into three sections. And since there is great controversy over both the Mallory-both the Mallory and the Durham rules, it occurred to me-and the witnesses have indicated that it will take us 3 or 4 days on each one of those two phases of the bills-that we would get into title I, which is the Mallory rule in depth starting on next Tuesday. Senator DOMINICK. Thank you, Mr. Chairman. What I really was trying to find out was whether in this statement the Commissioner had made any statement of opinion? Mr. TOBRINER. No, there is no statement of opinion in the statement that I presented today. Senator DOMINICK. Is this true as far as the Durham rule is concerned? Mr. TOBRINER. That is also true. This relates solely to S. 486 and title IV and title V of H.R. 7525. Senator DOMINICK. Did you express any opinion on the possible licensing of firearms? Mr. TOBRINER. Yes, we did. Senator DOMINICK. Are you in favor of that? Mr. TOBRINER. Yes, we are. Senator DOMINICK. Do you feel that this has been helpful in New York? Mr. TOBRINER. Our information, obtained from the chief of police of New York, through our Chief of Police, is that it has been-the so-called Sullivan law. Senator DOMINICK. Does the Chair, if I may ask, intend to go in depth into the specific provisions, other than the Mallory and Durham rules on this bill? The CHAIRMAN. I will say to the Senator that today we are confining ourselves to title IV and to title V and on next Tuesday we will go in depth into title I which is the Mallory rule and title III of the House passed bill, which is detention on the reasonable grounds to suspect a person is or has committed a crime, as well as the detention of material witnesses section. And on the following Tuesday we will go in depth into the Durham rule. PAGENO="0054" 48 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Senator Do~rINIcK. Thank you. Mr. TOBRINER. Senator. Dominick, I will be happy to submit for the record the letter to which I referred from the Police Commissioner of New York City to our Police Chief, relative to the satisfactory working of the Sullivan law. (The letter referred to follows:) THE POLICE Coir~nssIoxER, Crrv OF NEW YORK, March 13, 1963. Mr. ROBERT V. MURRAY, Chief of Police, Government of the District of Columbia, Metropolitan Police Department, Washington, D.C. DEAR BOB: I am enclosing herewith a copy of the penal law of the State of New York, in response to your request relative to the subject of dangerous weapons. Article 172 entitled "Public Safety," beginning with section 1894 through 1899 relates to the so-called Sullivan law. On page 260 there are amnedments to some of these sections, which were passed in the legislative ses- sion of 1961. We have had very little opposition from law abiding businessmen and citizens of the city concerning the enforcement of these provisions relative to the pos- session and carrying of concealable weapons. We have consistently reduced the number of permits we issue and at this time there are only 17,207 in force. We feel that this law is very desirable as it does keep guns out of the hands of criminal elements to a certain extent. Its effectiveness is undermined by the ease with which pistols and revolvers can be obtained in other jurisdictions. I am sure that the most effective method of control would be through a Federal statute. It was a great pleasure to see you in Chicago and I am looking forward to seeing you again soon. Sincerely, MICHAEL 3. MURPHY, Police Commissioner. Senator Do~rINIcK. Let me make some comments on this and per- haps then to a.sk you some questions. The Sullivan law has been in effect for a long time in New York. I have not seen any particular decrease in the crime rate in New York that can be attributed to the Sullivan law. But let me also say this, do you have any evidence through the police records or otherwise that the requirement of licensing of people who have guns decreases the number of people who hold guns for feloneous intent? Mr. TOBRINER. WTe have this evidence, sir, that a recent Senate sub- committee hearing on juvenile delinquency revealed that the police confiscate an estimated 800 to 1,000 handguns here every year. Senator DoMINIcK. Do you feel tha.t this would make it more dif- ficut for you to get those guns? Mr. TOBRINER. I think, sir, if. the proposal that we have suggested is passed it would bring the matter of shipping in guns into the Dis- trict under the current Federal firearms law which would make it illegal for any dealer to consign or ship a gun to a person who is un- licensed, so that in that respect it would make the out-of-state ship- ment of guns into the District of Columbia subject to closer surveil- lance and inspection. Senator DOMINICK. What do you plan on doing about those who aireadyhave guns in the District? Mr. TOBRINER. We would ask those people to register their guns. This is not only a protection to the public, it is also in my opinion, sir, a protection to the person who owns a gun, in that if that gun is PAGENO="0055" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 49 stolen it can be more readily traced, and for that reason it seems to me he is better protected. Senator DOMINICK. Do you propose to apply it to handguns or to shotguns or what? Mr. TOBRINER. I said that the proposed statute has a very complex definition which I will be glad to read to you. The permit to possess guns will be confined to pistols which means any firearm by whatever name known with a barrel less than 12 inches in length which will or is designed to or which may be readily converted to expel projectiles. Senator DOMINIcu. In effect, it is confined to pistols and revolvers? Mr. TGBRINER. Yes. Senator DOMINICK. Thank you, Mr. Chairman. That is all. The CHAIRMAN. Thank you. I would say to the Senator from Colorado that unquestionably we will be going into the firearm ques- tion further at another hearing. Our next witness is Mr. David C. Acheson, U.S. attorney, for the District of Columbia. I would ask also Mr. Clemmer to come for- ward. I understand that Mr. Clemmer has an emergency appoint- ment of some kind. And with Mr. Acheson's approval I would like to hear Mr. Clemmer first. I think that we can have that and your testimony together. As stated, with your indulgence, Mr. Acheson, I will call on Mr. Clemmer to speak first. Would you identify yourself for the record? STATEMENT OP DONALD CLEMMER, DIRECTOR, DEPARTMENT OP CORRECTIONS, DISTRICT OP COLUMBIA Mr. CLEMMER. Mr. Chairman and members of the committee, I am Donald Clemmer, Director of the Department of Corrections, and I speak in that capacity only. I am also Chairman of the District of Columbia Law Enforcement Council, of which Mr. Acheson is the Vice Chairman, who will speak for the Council on several measures. Mr. Chairman, my views as head of the prison system are very close to those expressed by Mr. Tobriner, and for very similar reasons. Some of the measures and provisions we do not feel that we are competent to speak on. I might say that as a former president of the Correctional Adminis- trative Association of America, which is a group composed of 40 of the executives throughout the country in the Federal prison system, there is a strong opinion among these people and I know it because of long association with them, against mandatory minimum sentences. It is not unanimous in its opinion, but there is a strong opinion. I happen this year also to be president-designate of the American Correctional Association which is a group of 5,000 people concerned with their prison probation and parole and there is a strong opinion in that body against mandatory minimum sentences. The CHAIRMAN. Before you develop your position on title IV and the relevant section~ of title V, would you indicate for the record ex- * actly what your responsibility is as Director of the District of Colum- bia Department of Corrections? Are you, in effect, the Chief Parole Officer or are you the Board of Pardons and Paroles, or what? PAGENO="0056" 50 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Mr. CLEMMER. No, the prison system, Mr. Chairman, is a separate department that reports to the Commissioners,. as I do. We have 5 institutions in the department with some 4~8OO inmates now. We have the jail here in town near the stadium with some 1,100 men in it today, and then at a reservation 20 miles from the city in Virginia we have 4 other institutions, one a penitentiary Imown in the newspapers as Lorton, and another for felony offenders and another workhouse for misdemeanor offenders; another small women's reformatory for both felonies and misdemeanors; and the Youth Center. And I am in charge of those institutions. Not the paroTe function which is a separate. agency. The CHAIRMAN. You have nothing whatever to do with paroles? Mr. CLEMMER. No, sir. The CHAIRMAN. Who is in charge of that responsibility? Mr. CLEMMER. Well, there is the Board of Parole made up of five people who report to the Board of Commissioners, and the Chairman is Mr. Ja.coby, a local attorney, who is a nonpaid member. The parole executive is Mr. Hugh Rivers, who is an employee. The CHAIRMAN. This is the Board that actually determines when a man should be released from the institutions over which you are the director? Mr. CLEMMER. That is correct, Mr. Chairman. The CHAIRMAN. And the Chairman of that Boa.rd is Mr. Jicoby? Mr. CLEMMER. Yes. I do not recall his first na.me-I am informed that it is Herbert Jacoby. There are four nonpaid members, or mem- bers who are paid a minor honorarium, prominent citizens who are on the Board to give their time and talents to making these decisions. As an old prison man I imow that the flmction of decision on who is to be released is a very crucial and very difficult one. The CHAIRMAN. Do they ever call upon you for advice? Mr. CLEMMER. Yes, sir. The OIIAIR3IAN. As to why X. Y, Z, should be released? Mr. CLEMMER. We submit reports. We call them parole progress reports. It summarizes an inmate's adjustment with us in terms of conduct and work and training and attitudes and so on. The CHAIRMAN. How many men and women do you have institu- tionalized at the present time? Mr. CLEMMER. 4,800. The CHAIRMAN. 4,800? Mr. CLEMMER. Yes. The CHAIRMAN. How does that break down among the men and women? Mr. CLEMMER. 271 women and the balance men. The CHAIRMAN. How does it break down in age groups? Mr. CLEMMER. In age groups, Mr. Chairman, 14 percent are between age 18 and 22, and the baiance are adults. The average age of our felons, I can give you, is 31, a few months. The misdemeanors tend to be older. I cannot give you that figure right off. Many of them are alcoholics. They come back time after time and are older people. The CHAIRMAN. How many do you have at the present time institu- tionalized for felonies? Mr. Cr~E~r~IRR. We have at Lorton as of today or a day or so ago, 1,505. We have at the jail under felony sentence, I would say, 90. PAGENO="0057" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 51 Among our women offenders we have 80. So we are around 1,700 felonies. Senator DOMINICK. Will you yield at that point? The CHAIRMAN. Yes. Senator DOMINICK. Do you also have a breakdown on racial groups? Mr. CLEMMER. We do not keep it daily. It is about 75 percent Negro and 25 percent white. The CHAIRMAN. Can you supply for the record how many you have institutionalized for murder in any of the degrees? M. CLEMMER. Once again I am quoting from memory. We have from 90 to 100 serving murder, homicide sentences, first and second degree. There are some first degree life sentences. The CHAIRMAN. A person convicted of murder in the first degree in the District of Columbia will serve approximately how many years of the sentence? Mr. CLEMMER. The minimum is 20 years. The CHAIRMAN. The minimum is 20 years? Mr. CLEMMER. Yes. Before the Parole Board even considers him. The CHAIRMAN. A mandatory sentence of a minimum of 20 years? Mr. CLEMMER. Yes. The CHAIRMAN. That means actually he has to serve the full 20 years? Mr. CLEMMER. Twenty calendar years. The CHAIRMAN. Twenty actual calendar years? Mr. CLEMMER. And he does not get time for what is called good time credits, for good behavior, because that is the mandatory minimum of 20 calendar years. The CHAIRMAN. A mandatory minimum is something new to me. In our State we have a minimum for even murder in the first degree, but in my State, a man would be eligible for parole after serving actu- ally 7 years, which is less than it is here in the District of Columbia. What would be the average sentence served by a man sentenced for a minimum of 20 years for first degree murder? Mr. CLEMMER. Mr. Acheson has those figures. I think that he can give them to you. I will say this in general that the residence of felons in the District of Columbia in prison is exceeded only by two States; namely, Illi- nois and Pennsylvania. Mr. Acheson's figures, which I just got this morning, reveal that. I think that he can comment on that. There are occasional pardons and court reduction of sentences on murder charges which will tend to reduce the 20-year minimum. The CHAIRMAN. Maybe I can more properly direct this to the TJ.S. attorney. In the case of a man who was sentenced for 20 years to life, what would be the average length of time that he would actually serve? Mr. CLEMMER. I happen to know that unless it is a rare case that they parole them at the minimum. The CHAIRMAN. I see. I think that is very helpful by way of knowledge. How long have you actually dealt with men in your penal institution who are in for felonies? Mr. CLEMMER. For 19 years, Mr. Chairman, and altogether 32 years in the Federal system and the State of Illinois in the prison there. PAGENO="0058" .52 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. Based on that, do you have any particular observa- tion as to the value of the maximum minimum sentence or a mandatory minimum sentence? Mr. CLEMMER. Mr. Chairman, it i~ a complex question, of course. I would say that there is a body of opinion-I am not sure that I share it-but there is a body of opinion among criminologists, so to speak, that the ideal sentence is 3 months to life for almost every crime.: And some people even advocate that for everything. The point being that the trial court, the trial judge determines the guilt or innocence, and then modern penalology has disclosed that conditions are getting better as the years go along, that they can take women and men and train them and improve them to some degree. No one thinks that everyone can be helped. A lot of them cannot be helped. Some can. The reason that 3 months is given is that it takes that long, at least, to study a person's personality and with a small minimum there can be a demonstration to the paroling authority of improvement. People can be released to the free community with less risk than if they serve a long time in prison. I think that we must all agree-and I have said it a hundred times-that prisons are bad-all of them are bad- even including those that I run and everyone else does, because of the evil influences that exist between inmates, and in spite of chaplains and training programs and progressive administration the entire action among people of this type tends to be debased. The CHAIRMAN. Do you have any questions, Senator Dominick? Senator DoMINIcK. May I ask a question? The CHAIRMAN. Yes. Senator DoMINIcK. I am sorry to interrupt you. Did I understand correctly that you said that in a murder case of one sort or another, in a manslaughter case, that a person with a minimum sentence of 20 years cannot have that reduced even for good behavior? The CHAIRMAN. I think that he said in first degree murder. I did not think he said in manslaughter. Mr. Cr r~n~u. First degree is 20 years. It is somewhat less for manslaughter, I think 15, is it not, Mr. Acheson? Mr. AcmsoN. In second degree murder. Mr. CLEMMER. First degree murder is 20 years. And that is what I referred to. Senator DOMINICK. And second-degree murder is what? Mr. ACHESON. The sentence under the statute that may be given for second-degree murder is 15 years to life, but there is no time floor on the eligibility of the prisoner for parole. Senator DoMINIcK. He could be paroled in a year? Mr. ACHESON. They frequently serve less than 15 years. Senator DOMINICK. Is there time off for good behavior on any of these? Mr. CLEMMER. Yes, except the 20-year minimum on the first-degree murder. Senator DOMINICK. This is the only one with an absolutely fixed floor? Mr. CLEMMER. Yes, that is correct. Mr. Acm~soN. To elaborate the earlier answer, Senator, in the case of second-degree murder, if the judge as he may, sentences under the indeterminate sentence sta.tute, a sentence of 10 to 30 years, then the PAGENO="0059" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 53 j~rsoner is eligible for parole at the expiration of the minimum, which is 10 years. Under the statute the minimum is normally one-third of the maximum. Therefore, 10 to 30 would not be an uncommon sen.. tence. Senator DOMINICK. If you had such a sentence of 10 to 30 years isit possible for the prisoner to be eligible for parole before the expiration -of the 10 years? Mr. AGHE5ON. No. Senator DoMINICK. Does the reviewing parole board ever have -occasion to question the validity of this indeterminate action-have they asked questions about the imnates who seemed to be getting along fine in a prison but nevertheless are not eligible for parole? Mr. CLEMMER. There is a provision in. law by which an inmate may petition me for reduction of the minimum sentence. I cannot quote you the statute, but it can be easily supplied. My department then is called upon to appraise the person in terms of his training and treat- ment and attitude and conduct, and we make a report to the parole board. I might say that we make them by the dozens, because many men, naturally, are seeking release. The parole authorities then weigh the situation, the personnel in- volved and the time and have the right to appeal to the trial judge for a reduction of the minimum. I happen to know of dozens of cases that have gone from. my desk to the parole authorities but the parole folks have only gone to the trial judge a few times. I cannot tell you how many. It may be 8 or 10 or 12 or 5. In other words, such appeals are not very successful. Senator DOMINICK. Thank you, Mr. Chairman. The CHAIRMAN. I have one further question. Your testimony, if I understand it correctly, is that there are approximately 1,500 institu- tionalized at the present time from the District of Columbia for fel- onies. Is that approximately correct? Mr. Ci~1MEn. Let us say 1,700* The CHAIRMAN. Of those 1,700 how many are repeaters? Mr. CLEMMER. We have a record on that, which is not recent, be- cause we do not have enough budget to hire statistical clerks, but a few years ago 21 percent of those were technically first offenders which means they had not been in a major felony institution before, but it does not mean that they have not been in trouble with the law, such as probation or workhouse or juvenile institutions. The huge major- ity of our people have been in trouble before, upward of 80 percent. The CHAIRMAN. What does that mean, that they have been in trou- ble with a prior felony? Mr. CLEMMER. A prior felony, yes. The CHAIRMAN. Prior felonies? Mr. CLEMMER. Yes. The CHAIRMAN. Eighty percent of the people that you have in- stitutionalized have prior felony convictions? Mr. CLEMMER. Yes. I could supply a table on that. The CHAIRMAN. I think that it might be helpful. Mr. CLEMMER. I can do that. The CHAIRMAN. I think that you should supply that for the record. Pardon my interruption. PAGENO="0060" 54 AMENDMENTS TO CRThD~AL STATUTES OF D.C. (The information referred to follows:) DEPARTMENT OF CORRECTIONS, DIsTRICT OF COLUMBIA GOVERNMENT, Washington, D.C., October 16, 1963. Mr. CHESTER H. SMITH, Staff Director, Senate District of Columbia Committee, Room 6222, Senate Ot/Ice Building, Wash4ngton, D.C. DEAR MR. SMITH: Senator Bible asked me to submit for the record data mdi-- eating the length of residence of our prisoners in the District of Columbia prior to commitment. I enclose herewith a study of February 14, 1957, and an up-to-date one dateL O~tober 15, 1963. Both of these studies indicate that the great majority of in-- mates we hold have lived in the District of Columbia for a substantial number of years. Sincerely, DONALD CLEMMER, Director. [Bulletin]' INSTITUTE FOR CRIMINOLOGICAL RESEARCH, DEPARTMENT OF CORRRECTIONS, DISTRICT OF COLUMBIA, Washington~ D.C. RESIDENTIAL TENURE IN WASHINGTON OF FELONS AND MISDEMEANANTS Attention has been given to the length of residence in Washington of a repre-- sentative sample of men aiid women in custody of the Department of Corrections. in January 1957. The notion has existed in certain quarters that a goodly pro- portion of offenders are floaters or newcomers to the Nation's Capital. The- records of 1,278 inmates in residence at the District's Reformatory, Workhouse, and Women's Reformatory have been studied in this regard with the following results: Reported length of residence in the District of Columbia of 1,278 inmates in the reservation institutions Number Percent 1 month or less lto5montbs 6 to 11 months lto2years 3to4years Sto8years 9tol3years 14 to 19 years 20 years to life Life 36 17 27 ~ 39 93 138 149 315 427 2.82 1.33 2.11 2.90' 3.05 7.28 10.80' 11. 66 24.65 33.40 Total 1278 100.00 The 1,278 eases scrutinized cover a reliable sampling of offenders and include male and female, felons and misdemeanants, and Negro and whites in realistic' proportions. It can be noted that contrary to popular opinion a heavy majority of inmates are long-term residents of the District of Columbia, with in excess of 80 percent having resided in Washington over 9 years, and over 50 percent in excess of 20' years, and with over a third having been born in the District. Contrariwise, less than 4 percent can be regarded as floaters and only some 7 percent as residents. of less than 1 year. The records of male inmates committed for intoxication also have been. scrutinized in reference to total residence in the District of Columbia with the- following results: PAGENO="0061" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 55 Reported length of residence in the District of Colnmbia of 260 male inmates committed for into~icatioat . Number Percent imonthorless lto5months 6tollmonths lto2years .3to4years .Sto8years Otol3years l4tol9years 20yearstolife Life 7 3 13 6 8 21 23 20 101 49 2.70 1.15 5.00 2.31 3.08 8.08 8.85 11.15 38.84 18.84 Total 260 100.00 Once again, in slightly varying proportions, the total shows for intoxicants that for the most part they tend to have been long-terni residents of the District with almost 19 percent being native born and 39 percent with residence of 20 years up to life. There are slightly more floaters among the intoxicant group than the large sample, especially of those who have been in residence for a year or less. Length of residence data have also been tabulated for felony offenders as shown in the condensed table below. By and large, the same trends persist; namely, that the bulk of offenders are long-term or life residents of the com- munity. Reported length of residence of 649 male felons in the District of Colnmbia Length of residence Robbery, burglary, car theft Homicide and assault Narcotic offenders Sex offenders Other offenders Total Number Percent 1 year or less 1 to 4 years .5 to 13 years 14 years and over Life Total 22 22 50 79 125 2 6 21 47 23 2 6 16 22 41 2 6 20 21 17 12 12 8 34 33 40 52 115 203 239 6. 16 8.02 17.72 31.28 36. 82 298 99 87 66 99 649 100.00 Publication P-i. FEBRUARY 14, 1957. DONALD CLEMMER, Research, Coordinator (Director of Corrections). INSTITUTE FOR CRIMINOLOGICAL RESEARCH, DEPARTMENT OF ComuicTloNs, DISTRICT OF COLUMBIA, Washington., D.C. RESIDENTIAL LoNGEvIn~ IN WASHINGTON, D.C., OF INCARCERATED MALE FELONS This is a followup of an earlier study1 which dealt with the length of residence in the District of Columbia of a representative sample of male and female felons and misdemeanants in the custody of Department of Corrections, District of Columbia. The current study is a 15-percent systematic random sample of felons presently serving sentences in the District of Columbia Men's Reformatory and the Youth Correctional Center at Lorton, Va. The sample includes 40 offenders from the Youth Correctional Center and 237 offenders from the Men's Reformatory. ~ "Residential Tenure in Washington of Felons and Misdemeanants," Institute for Criminological Research, Publication D-l, February 1957. PAGENO="0062" 56 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The source of data was inmate records at the respective institutions. Birth- place is verified in practically all instances by data procured from the Bureau of Vital Statistics. Length of residence is based on presentence reports and. classification summary information compiled by professionally trained personnel. The current length of residence in Washington of felons at the above two institutions is indicated in the following table: Length of residence in the District of Columbia of inmates at the Youth Correctional Center and the Men's Reformatory Youth Center Men's Reformatory Grand total Grand per- centages Number Percent Number Percent Unable to determine 1 month or less 1 2to5monthsl 6 to 11 months 1 to 2 years 3 to 4 years 5 to 8 years 9 to 13 years 14 to 19 years 2Oyearstolife Total 1 o o 1 5 1 3 18 11 2 2 2 13 2 8 45 28 7 5 o 0 7 9 24 23 20 142 3 2 3 4 10 10 8 60 7 6 ~ o 8 14 25 26 38 153 3 a 3 5 9 9 14 55 40 100 237 100 277 100 1 Transients (definition by length of residence). The above data clearly establish that 78 percent of District of Columbia felons incarcerated have resided in the District of Columbia 9 years or more and that 69 percent have resided for more than 14 years w-ith the greatest majority having spent 19 or more years as residents of the District of Columbia. Particular note should be taken of the Youth Correctional Center felons of which 73 percent have spent practically their entire life in the District of Columbia. Substantiation of this fact is indicated in the below table giving the average age of felons in the above institutions: Average age and race of felons in the District of Columbia Youth Correctional Center and the Men's Reformatory Age, average (years) Race (percentage) Negro White Youth Correctional Center Men's Reformatory 20 35 92 5 87 13 The above findings conclusively substantiate the earlier study indicating that the very great majority of the District of Columbia inmates are long-term residents of the District of Columbia. Only 2 percent of incarcerated felons can be considered as transients. These findings also indicate that recent felony offenders are for the most part lifelong residents of the District of Columbia. This is easily noted in the fact that 78 percent of the younger inmates are lifelong residents of Washington. This clearly demonstrates that criminality, as measured by incarcerated felons, is a local or community social problem. WILLIAM NARDINI, Ph. D., Chief of Research, Institute for Criminological Research. OCTOBER 15, 1963. Mr. CLEMMER. As I say, my competence to talk about constitutional issues here is obviously nil. The point I simply want to make as a prison man is that we do not favor minimum sentences, certainly high minimums, and have a sel~sh reason here. It makes it harder to run the prisons when we have a lot of people who have no hope-when PAGENO="0063" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 57 YOU give a man 20 years to life and he has no hope at all for the fu- ture, 20 years sitting in a prison is pretty bad. When I was in Illinois penology, in the early thirties, there was a rash of robberies, there were many bad ones, and the legislature passed what was called a 10-year- to-life law for robbery. And as the years passed it made it extremely difficult for prison officials to control these men facing a mrnimum of 10 years with no hope. Our legislature, I do not remember, in 1945 or 1943 or maybe in 1948, nullified that law. Now roberry is 1 year to life. That occurred in one State. The CHAIRMAN. Let me get your views correctly. Do you oppose a mandatory minimum sentence, because you did say the prisoner who comes in with a mandatory minimum sentence is harder to con- trol while he is in your custody? Mr. GLEMMER. Yes, that is true. The higher the minimum the worse it is. The CHAIRMAN. The harder he is to control? Mr. OLEMMER. Yes; 1 year to 10 is not particularly bad because they expect that. The CHAIRMAN. If he is going to be there a solid 10 years you can- not do anything to rehabilitate him but if you can do anything he will come out to `be a better citizen. Mr. ~LEMMER. I am sure that it is the other way. It embitters him and makes him hostile a~nd resistive to such treatment. Speak to prison people as I have all over the United States. The orga- nization that I head shares this view very strongly. The CHAIRMAN. I personally have heard the opposite said, that one of the great deterrents to crime is the certainty of punishment. If a man knows that he is going to receive a sentence and that he is going to be in the penitentiary for, at least, 10 years he will take cognizance of that fact before he commits a particular crime, whereas if he has an indeterminate sentence and he might be out in 10 months or in 1 year or 2 years, he may be more apt to go ahead and commit the crime. I take it that you do not accept that philosophy. I do not know whether it is right or not. I have heard it argued. Mr. CLEMMER. The main fact is that we have no scientific data to know what deterrents are. And I think it is a logical argument. I would not be at all surprised that cases can be found among profes- sional criminals, of whom there are really a few in the District of Columbia, who would reason that way, but for the most part I do not believe that a heavy sentence or severe prison treatment is a deterrent. That is my view after 30 years. There is no data on-nobody knows about this. The CHAIRMAN. It is a difficult field in which to work. Senator DOMINICK. Could I enlarge on that just a little? The CHAIRMAN. Certainly. Senator DOMINICK. This is a real interesting field. When I was in the State Legislature in Colorado we were debating the same thing. I feel right at home here. You say that about 80 percent of the group that you have im- prisoned at the present time have been in trouble on felony charges or convictions prior to this? Mr. CLEMMER. Yes. PAGENO="0064" ~58 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Senator DOMINICK. Would that indicate to you that the rehabilita- tion process is not very fruitful? Mr. CLEMMER. It would indicate that to some degree, Senator, and it would indicate that when they return to the free community there is not a helping hand around. It would indicate that in some aspects of our free commumity the moral tone is pretty bad. It does not indicate that we did not reform them, but it indicates, perhaps, an unwise selection of the time of release. And it indicates, I think, that the prevailing moral tone of crime is rampant, is "get anything you can while the going is good," and that sort of thing, which is de~iorable. Senator DOMINICK. Are these groups that you refer to, who have been in trouble before, relatively young? Mr. CLEM~R. As I say, our average of the 1,500 male adult felons is 31 years point some months. Of course, the big deterrent, the big failoff in crime comes with age. Crimes of a predatory nature, such as robberies, car theft, and the like, decrease pretty much after 39. The curve goes way down. The slick crimes, such as forgeries and swindling and that sort of thing go on forever and ever. The danger- ous crimes of yoking and so on decrease with age. Senator DOMINICK. Sometime ago it is my recollection that Wil- mington, Del., had a law which permitted judges to impose a whipping sentence. Did you follow that? Mr. CLEMMER. I know about it. Senator Do~nNIoK. Do you have any comment on that? Mr. CI~E~IMER. I would not agree with that at all. Senator DOMINICK. Would you agree with that? Mr. CLEMMER. I think it is undignified and unhumanitarian and does not take into account the causative factors of crime and individual free will and determinism and all of that. Senator DOMINICK. When was that repealed, do you know? Mr. CLEMMER. I think it is still on the books. I think I read in the spring that some judge ordered a Delaware man to be lashed and it was appealed and has never been settled. Senator DOMINICK. What is the Delaware crime rate? Mr. CLEMM~. No better than Washington. Senator D03IINICK. Thank you. The C~&1~rAN. The only other question that I would like to ask you, Mr. Clenimer, is this: You may be required to supply this for the record-it may not be handy to you right now-is there a break- down of the origin and the home or residence of these 1,700 people- do they come from the metropolitan area or are they coming here because it has been said that the District of Columbia. is soft on crime and they can get away with anything here which they c.aimot in other places-can you give us an origin background of the 1,700? Mr. CLEMMER. Yes. The CHAmir~&N. You can supply that for the record? Mr. CLEMMER. We made a study of that some years ago and I could give you the fundamental facts, and give you that table. First of all, the data is open to some questions, because we have to take as gospel that the inmates were born where they say they were, but con- trary to popular opinion the heavy majority of our felony offenders have been Washington born or have been in Washingfon for 20 years PAGENO="0065" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 59 or more. There were not more, for the most part, I think, 15 percent who were drifters. I recall I reported this fact around 1948 or maybe 1949 when the newspapers picked it up, because there was a prevailing opinion at that time that a lot of our criminals did drift in. The CHAIRMAN. We hear this today. Of course, undoubtedly, when we get into the Mallory rule next week it may be said to be a haven for those who commit crime. Mr. CLEMMER. At that time the facts indicated otherwise. A good majority of them were born here and had been here for 20 years or more, since babyhood and youth. The CHAIRMAN. You are now talking about 1948 figures? Mr. CLEMMER. I am talking about 1948. The CHAIRMAN. Would you know from an examination of the rec- ord whether that holds true today? This is 15 or so years later. Mr. CLEMMER. My hunch is that it holds true. We make a case history on every felon. We are not able to update the data as often as we should, but that can be done, and it will take some time. The CHAIRMAN. I do not want to unduly burden you or the institu- tion which is short of help right now. I assume this is usually true. I hear this report right along. I assume that it is probably correct. If you can furnish anything for the record along that line I will be happy to have it. Mr. CLEMMER. I shall, Mr. Chairman. Senator DOMINICK. I have no further questions. The CHAIRMAN. Thank you very much, Mr. Clemmer. I am going to excuse you now, because I realize that you have an emergency appointment. Mr. CLEMMER. Thank you. The CHAIRMAN. We will now return to Mr. Acheson and hear your testimony, Mr. Acheson. STATEMENT OF DAVID C. ACHESON, U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA Mr. ACHESON. Mr. Chairman and members of the committee, I will try to avoid overlapping testimony of Mr. Tobriner, and with the in- dulgence of the Chair 1 would just orally edit the statement as I go through it. The CHAIRMAN. It will be incorporated in full in the record and you can just highlight it, because some of it has already been covered. Mr. ACHESON. Thank you. (The statement referred to follows:) STATEMENT OF DAVID C. ACHESON, U.S. ATTORNEY FOR THE DISTInCT OF COLUMBIA I am appearing on behalf of the Department of Justice and the Council on Law Enforcement in the District of Columbia, of which I am Vice Chairman. My understanding is that the committee wishes to consider today the provisions of S. 486 and title IV and sections 501-505 and 507-508 of H.R. 7525. S. 486 This bill is the product of joint discussions and joint drafting by representa- tives of my office, of the Corporation Counsel of the District of Columbia, of the staffs of the House and Senate Committees on the District of Columbia, and of the House Legislative Counsel. The bill was designed to make certain technical and clarifying amendments in title 22 of the District of Columbia Code and to 25-260-64-----pt. 1-5 PAGENO="0066" 60 AMENDMENTS TO CRIMINAL STATUTES OF D.C. transfer certain civil and criminal enforcement functions of the District of Colum- bia government from the U.S. attorney to the Corporation Counsel. It seemed to all concerned more logical that these municipal enforcement functions should be performed by the office of the attorney for the city government rather than by me. Section 1 of 5. 480 enlarges the crimes against property covered in the District of Columbia Code 22-403 to include breaking and attempts to break, to cover public as well as private property, and real property as well as personal property. It raises the cutoff point between misdemeanors and felonies from $50 value to $200 value, consistent with the general change in dollar value since the statute was originally enacted. It adds a fine to the penalties imposed. Section 2 of 5. 486 eliminates duplicity between section 403 and section 3112 of District of Columbia Code, title 22. In their present form, both statutes prohibit injury or destruction to property. By eliminating those acts from the coverage of section 3112, which defines only misdemeanors, it will be clear that malicious injury or destruction of property may be a felony under section 403. Section 3 redefines kidnaping under the District of Columbia Code, as it has been defined in the United States Code (see 18 U.S.C. 2101) to make any pur- poseful kidnaping a crime, regardless of whether monetary reward is the mo- tive. Reward would no longer be an essential element. Section 4. In existing law, witnesses in a disorderly house prosecution cannot be given immunity, and hence rest upon their fifth amendment privilege of silence. This commonly makes such prosecutions very difficult, if not impossible. By an anomaly, existing law permits witnesses to be given immunity in civil nuisance enforcement proceedings against disorderly houses. District of Columbia Code 22-2721. Section 4 of the bill would make it possible for witnesses to be given immunity in criminal prosecutions, with the consent of the Corporation Counsel. The purpose of providing for that consent is to give the Corporation Counsel a chance to make a determination whether his office might wish to preserve a dis- orderly conduct charge, a misdemeanor within his prosecutive jurisdiction. Enforcen? eat of pro fessiona! Ucense statutes Section 5 transfers from the U.S. attorney to the District of Columbia Cor- poration Counsel the authority to conduct civil proceedings to revoke medical licenses or registrations and injunction proceedings. Section 6 transfers similar authority in connection with the professional credentials of registered nurses. Section 7 transfers the criminal prosecutive authority with regard to violations by optometrists, and section 8 with regard to violations by public accountants. Both types of violation are misdemeanors. Section 9 of the bill repeals obsolete provisions of the District of Columbia Code relating to the licensing and bonding of private detectives. The practice of private detectives would be exclusively regulated by District of Columbia Code 47-2341c Section 10 of the bill substitutes the Corporation Counsel for the U.S. attorney as the proper legal officer to prosecute petitions for the appointment of receivers for the property of absconding persons who fail to provide for the support of dependents. These functions all appear to be much more closely related to the municipal authority of the District of Columbia Commissioners than to the principal enforcement duties of the U.S. attorney or the Department of Justice, and accordingly my office sought the transfer of these functions, with the consent and cooperation of the Corporation Counsel. ILR. 7525 Title IV Title IV is, I think, a desirable amendment to existing law. Section 3202 of title 22, District of Columbia Code, authorizes additional terms of imprison- ment for the commission of crimes of violence with firearms, and title IV of this bill would add the crime of robbery to the definition of a "crime of violence" for the purpose of the sentencing authority contained in section 3202. PAGENO="0067" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 61 .Section,~ 501, 502, 503, 505, and 507 Sections 501, 502, 503, 505, and 507 of the bill provide for mandatory minimum sentences in the event of conviction for felonious assault, burglary, robbery, an armed crime of violence, and the placing of explosives with intent to injure, re- spectively. The Law Enforcement Council and the Department of Justice are opposed to these provisions. We believe that full discretion should be retained. by District judges to consider all of the highly individual circumstances of each~ crime as factors relating to sentencing. This is not only the trend in the law, but, we believe, a highly desirable trend. It is expressed in Public Law 85~752:~ (72 Stat. 845), approved August 25, 158. It is expressed with considerable- elaboration in the model penal code adopted by the American Law Institute,~ (See the criteria for different forms of sentencing spelled out in secs. 7.01-7.04 of ALl model penal code, proposed official draft, adopted at May 1961 meeting.) A few of these factors would include the age, character, and prior record of the defendant; the actual or probable consequences of harm resulting from the crime; the presence or absence of intent by the defendant to cause harm; per- sonal factors making rehabilitation likely or unlikely; defendant's willingness to compensate victim for damage or injury; provocation for the crime; proba- bility of recurrence of a similar crime; etc. Provisions for mandatory minimum sentences seem to proceed from the as- sumption that the courts of the District of Columbia are soft on criminals. It is sometimes said that our courts mollycoddle criminals and that criminals feel that they may commit crimes without serious regard to the possibility of severe sentences. This assumption, and this type of public utterance, are simply not based upon fact. The facts are very plain and they show that the average sentence meted out by the U.S. District Court for the District of Columbia is substantially more severe in almost every category of felony than the average sentence meted out by other Federal courts and is substantially more severe than the average sentence meted out by State courts. I am attaching to this statement two tables which compare, by categories of felony, average sentences in the District of Columbia with average sentences in other Federal circuits and with average sentences in the States. These figures were supplied to me. at my request, by the Federal Bureau of Prisons. They appear also in the printed record of House committee hearings held on the District of Columbia crime bills this spring. (Hearings before Subcommittee No. 6 of the Committee on the District of Columbia, House of Representatives, on HR. 1930, HR. 5334, HR. 5726, HR. 1932, HR. 1929, HR. 5046, H.R. 5335, H.R. 5336, HR. 1893, BR. 4322, HR. 678, and HR. 5608, April 25, 30, May 1, 6, 7, and 14, 1963, pp. 160-161.) Section 504 With regard to section 504 of the bill, I will rest on the comment at page 11 of Mr. Katzenbach's letter of September 13, 1963. Section 508 With respect to section 508 of the bill, I speak only for the Law Enforcement Council. The Council's letter of Septeniber 12, page 3, states the principal objection to this provision. The section would magnify the punishment for false reports to the police, so as to convert that crime from a minor offense un- der police regulations, triable in the court of general sessions without a jury, to a misdemeanor crime that would require a jury trial under District of Colum- bia Code 11-715(a). Considering the frequently minor character of such of- fenses, the difficulties of proving intentional falsehood as distinguished from simple misinformation, and the delay and expense incident to jury trial, we do not believe that the public interest is served by the enactment of section 508. I would appreciate it if the committee would include, as part of the permanent record of these hearings, this prepared statement, Mr. Katzenbach's letter of September 13, and my letter of September 12 on behalf of the Law Enforcement Council. PAGENO="0068" 62 AMENDMENTS TO CRIMINAL STATUTES OF D.C. C) 0 C C) C)C)C)_~C)~C) C)~ C)C) C)C)~)_C)__C) C) ~C)C) ~ C)-~ C)~C) ~ ~C ~ ~~C)C) ~ C) ~C)~!.C) ~ C) t- ~ t'- ~- t- C) C) ~ C) C) C) C) ~ C)~.Q QC)C) ~1 ~ C) C) - C) C) C) C) ~ ~ . ~ ~ ~ .~ P~ ? ~ ~ C) C) .~. C)~ C) ~ t- C) C'i C) C) P. C) C) - C) C) C)C))C)~~ I ~ H3E~ C) E ~ C)C)C)C)C)C)C).-C)C) ~2~~22 -1~Ii H~ H~E~ 4: -~ C)~~! C) C) .~ .~ ~- ~ - CC ~ S ~ ~ ~E«= oC)~ -.- C)C)C)C)C)C)t-)CC)C) ).~P.C)C)C)C)C) -~ c_ ~ ~ ~ ) C) C) ~ - ~f-~-C)~ C) ~c C: ~ , C) C) C) C) C) C) C) C) C) `~ - - C) C) C- C) C) C- ~ E-~ c= oC)~ C- - ~ ~ c ~ )5;~ C)C)C)--C)C),-~C) ~ ~. S~ -:~::;~`~: C) C) C) C) ii: C) C C C) C C C) C) C) C C) P1) PAGENO="0069" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 63 TABLE 2.-Average time served, by offense, for felony prisoners released for the first time on their sentence from State institutions, and from District of Columbia 1 institutions, 1960 [Data excludes the State of New Jersey] Offense District of Columbia Average time Number served (in months) State institutions Rank order of Number Average time served (in months) District of Columbia 2 All 1st releases Murder Manslaughter Robbery Aggravated assault Burglary Theft, except auto Auto theft Embezzlement and fraud Forgery Rape Other sex offenses Drug laws Weapons Escape Other - 645 40. 4 64, 557 28. 3 9 26 96 65 107 56 56 15 56 31 5 73 7 1 42 167. 6 63. 7 50.8 34.8 41. 1 25. 5 26. 7 17. 1 26. 4 62.8 47. 6 46. 7 19. 7 37. 0 22. 5 1, 659 1,813 6,819 3, 595 17,462 9, 296 3,059 1,435 7,966 1,850 1,622 2,687 338 1, 102 3,854 121. 1 37. 0 42.3 24.8 24. 5 19.8 21. 2 16. 7 20.3 44. 5 35. 5 30. 9 22. 5 18. 5 18. 1 18 3 10 10 1 9 5 17 9 6 8 2 11 4 15 I Felony prisoners released from District of Columbia correctional system. 2 These figures indicate the rank order position of the District of Columbia, when the 50 jurisdictions are ordered, from high to low, by the average time served for each of the several offense categories. Source: Prisoners Released From State and Federal Institutions, 1960, table 3. Mr. ACHESON. A few words about S. 486: Section 2 of S. 486 was designed to eliminate duplicity between section 403 and section 3112 of the District of Columbia Code, title 22. In the present form, both statutes prohibit injury or destruction to property. By elim- inating those acts from the coverage of section 3112, injury or destruc- tion to property, which defines only misdemeanors, it will be clear that malicious injury or destruction of property may be a felony under section 403. Section 3 of S.486 was intended to redefine the crime of kidnaping so as to be consistent with the Federal definition of kidnaping in title 18, United States Code, section 2101. Monetary reward is eliminated as a necessary element of the crime. Section 4 of S. 486 was designed to correct an anomaly in the law, Mr. Chairman. Under present law the statute provides for a nuisance proceeding, a civil proceeding against the maintenance of a disorderly house, and it also, of course, provides for criminal prosecution, but under tile pres- ent statute the witness may be given immunity from prosecution only if tile witness is called in the civil nuisance action. This amendment will make it possible to give witnesses immunity in criminal proceedings so that those witnesses may be used to obtain convictions against the main defendants. At the present time it is very difficult because the participants in a disorderly house usually take the fifth amendment. Senator Dol\nNIcTc Mr. Chairman, may I ask a question? The CHAIRMAN. Certainly. Senator Do~rINIcIc It is my understanding, from reading the testi- mony of Mr. Tobriner, that if that charge should be made the prosecu- 3 PAGENO="0070" 54 AMENDMENTS TO CRIMINAL STATUTES OF D.C. tor could compel a witness to testify in a criminal prosecution even though he has claimed the fifth amendment. Mr. ACHESON. That is correct. Senator Do~nNIcK. And what are the constitutional implications of that? Are you not, in effect, saying that the fifth amendment does not mean anything any more? Mr. AOHESOX. No, there are many immunity statutes, Senator, both m the United States Code and a few in the District of Columbia Code, which provide for, in effect, making an exchange with the witness. You remove his privilege of silence and you give him, in exchange, immunity against prosecution. Senator Do~rINICK. Well- Mr. ACHESON. And the Supreme Court has often decided that such an exchange, by statute, is consistent with the Constitution. For ex- ample, UUrnan v. U.S., 350 U.S. 422. Senator DOMINICK. But it is true, however, that this still leaves him subject to prosecution for perjury or contempt of court in con- nection with his testimony? Mr. ACHESON. That is true. Senator DOMINICK. So he does not have an immunity under the fifth amendment. Mr. ACIIES0N. Well, he has immunity against disclosures that he is compelled to make. He does not have immunity to lie, that is true. Tha.t exception, I may say, has not been thought to raise any con- stitutional problems by the Supreme Court. Senator DOMINICK. Tlìank you. Mr. ACHESON. I would like to deal with title IV and title V of H.R. 7525. Title IV, I think, is a desirable amendment to existing law. The purpose of it is this: Section 3202 of title 22 of the District of Columbia Code authorizes additional terms of imprisonment for the commission of crimes of violence with firearms. Title IV of the bill would simply add the crime of robbery to the definition of a crime of violence for the purpose of the additional sentencing authority under section 3202. Robbery seems to have been omitted as an oversight and, adding it there is really in the nature of a technical amendment. Sections 501, 502, 503, 505, and 507 of the bill provide for mandatory minimum sentences in the event of conviction for felonious assault, burglary, robbery, and an armed crime of violence, and the placmg of explosives with intent to injure. Both the Law Enforcement Council of the District of Columbia and the Department of Justice are opposed to these provisions. ~\Te believe The CHAIRMAN. May I ask you a question there simply for the record? What is the Law Enforcement Council? Mr. ACHESON. It is a statutory body, Senator, defined in the District of Columbia Code title 2, section 1901, made up of the heads of the law enforcement agencies, correction agencies, and legal offices, relat- ing to the government of the District of Columbia. The Cu~ni~rAN. And who is that? PAGENO="0071" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 65 \/~Touid you be a member? Mr. ACHESON. Mr. Tobriner is a member. I am a member. Mr. Ciemmer is a member. The Chief of Police is a member. The Chairman of the Parole Board or a member of the Parole Board is a member. The U.S. Marshal is a member, and there are several more, such as a judge of the juvenile court. The CHAIRMAN. You say the Law Enforcement Council is opposed to these provisions. Does that mean that this is a unanimous decision from the Law En- forcement Council or is this a split decision? How many members does it have? Mr. AcHEsox. Approximately 14 altogether. The CHAIRMAN. Fourteen members? Mr. ACHESON. And at the meeting at which we voted on this action there were, I think, 8 or 10 members there. And I believe our action on these mandatory minimum sentences was a unanimous action. The CHAIRMAN. Yes, I am just directing it to the mandatory mini- mum sentence question. Thank you. Mr. AcirEsoN. We believe that full discretion should be retained by District judges to consider all of the highly individual circumstances of each crime as factors relating to sentencing. This is not only the trend in this law, but we believe a highly desir- able trend. It is expressed in Public Law 85-752, approved August 25, 1958. It is expressed with considerable elaboration in the model penal code, adopted by the American Law Institute and in that code, sec- tions 7.01 to 7.04, the model penal code spells out the different criteria which would apply to different forms of sentencing in great detail. A few of these factors would include the age, character, and prior record of the defendant, the actual or probable consequences of harm resulting from the crime, the presence or absence of intent by the defendant to cause harm, personal factors making rehabilitation likely or unlikely, the defendant's willingness to compensate the victim for damage or for injury, the provocation for the crime, the probability of recurrence of a similar crime, et cetera. Provisions for mandatory minimum sentences seem to proceed from the assumption that the courts of the District of Columbia are soft on criminals. It is sometimes said that our courts mollycoddle criminals and the criminals feel that they may commit crimes without serious regard to the possibility of severe sentences. This assumption, and this type of public utterance, are simply not based upon the facts. The facts ar~ plain and they show that the average sentence meted out by the U.S. District Court for the Dis- trict of Columbia is substantially more severe in almost every cate- gory of felony than the average sentence meted out by the other Fed- eral courts, and is substantially more severe than the average sentence meted out by the State courts. PAGENO="0072" 66 AMENDMENTS TO CRIMINAL STATUTES OF D.C. I have attached to my prepared statement two tables which compare, by categories of felony, average sentences in the District of Columbia with average sentences in other Federal circuits and in the States. These figures were supplied to me at my request by the Federal Bureau of Prisons. They were also included in the record of the House hearings held this spring. Senator DoMIxIcK. Mr. Chairman, may I ask a question? The CHAIRMAN. Certainly. Senator DOMINICK. Mr. Acheson, during the process of our investi- gation of this in my own State one of the complaints that we con- stantly received from the inmates of the prison was that two people would be imprisoned for the same type of crime, let's say armed robbery. One of them will have been there for the second offense or the third offense and will have been before a judge who has looked this over very carefully and has given him a sentence, we will say, of 3 to 10 years. You will have another person, same age, same background, same type of crime, who has came before another judge on a first offense, and he will be given a sentence from 10 to 15 years. * And the question asked by the penologist was why and how do you expect us to rehabilitate these people when the man with the first offense has a far more severe sentence simply because he has come up before a different judge. Now, it seems to me that there is a good deal of merit in this type of questioning and this type of criticism. What suggestion do you have on that ? Mr. ACHESON. Well, this is a problem, Senator, in every court where there are multiple judges, and it is a problem, of course, here where we have a district court that has a great many judges. An attempt to solve this problem was begun with the passage of Public Law 85-752 in 1958, which provided for sentencing institutes set up by the circuit council of each Federal circuit, the District ~uclges and the members of the courts of appeals, which would pull in the U.S. attorneys and any Federal correctional officials in the circuit. The purpose was to work out standards which would be acceptable to all members of that court., working toward the uniformity of seii- tences for similar crimes. I have seen from time to time some articles written by Federal judges who have explained how this has worked in their circuits, and it seems to be working pretty well. I do not think we are yet at the point where there is a perfect har- mony of standards between individual judges. Senator DOMINICK. But is it not the purport of your testimony to say that we should not have uniformit, that we should leave completely to the discretion of the judges? Mr. ACHESOX. Well, we should, I think, Senator. If ou have mandatory minimum sentences I do not think there would be any greater uniformity for a similar type of crime than there is now. PAGENO="0073" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 67 Senator DOMINICK. Well, at least all of them would be in there for a set period of time, to begin with. Mr. ACHESON. Well, perhaps, but if, for example, you had a 10-year minimum for robbery- Senator DOMINICK. Suppose you had a 2-year minimum? Mr. ACHESON. Well, let's take a 2-year minimum. That statute would require that the pickpocket robbery case, for example, which is a common type of crime, should receive the same minimum sentence as the violent case. If both of them came before an easy judge the pickpocket could get 2 years because the judge had to give him 2 years, whereas the judge might otherwise have given him 6 months or something of that nature. A 2-year minimum really would not do much to arrive at a uni- formity standard for a third offender of robbery who had committed a crime of violence. My point is that all a minimum does is tend to require that unequal cases be treated equally, which is, I think, as clear a case of inequality as treating equal things unequally. Senator DOMINICK. Would you agree, however, that this is one of the problems that you have in the process of attempting any kind of rehabilitation? Mr. ACHESON. Oh, I certainly would. I certainly would. I do think that the Federal judges are on their way to working this out. I think one of the problems that should not be overlooked is the very great effect that a standard of sentencing has on the moving of criminal traffic through a Federal court or a State court, for that matter. A court in which all of the judges are thought to be severe aiid in which a plea of guilty does not get a great deal of consideration from the sentencing judge is likely to be a court in which the docket is very heavily backed up and every case tends to go to trial. That kind of situation certainly, in a way, adds to the severity of the deterrent for criminals but it almost paralyzes the criminal justice machinery in the process and some fair compromise has to be worked out between a sentencing standard, which `can move pleas of guilty at a desired rate, and a sentencing standard which, on the other hand, will really hold out a deterrent to criminals. Senator Do~IINIcK. Thank you. The CHAIRi~rAN. May I ask you a question at that point, Mr. Ache- son? Mr. Aci-lEsoN. Yes, Mr. Chairman. The CHAIRMAN. Your table 2, attached to your prepared testimony, indicates, if I read it correctly, that in the' District of Columbia for burglary the average time served in months is 41.1 months. `Is that correct? Mr. ACHESON. That is correct. The CHAIRMAN. And that 1 over to the right, on the rank order of the District of Columbia, means that the person or a person con- victed of burglary in the District of Columbia serves more time than a person convicted of burglary in any State of the Union. Js that what that number 1 means? Mr. ACI-IESON. That is correct, Mr. Chairman. PAGENO="0074" 68 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAn~rAN. Well now, this is a comparison made in 1960. Why was the year 1960 used? What would be the case in 1959 or 1955 or 1958, or is this repre- sentative? Mr. Acn~sox. Well, I think this was simply the last full calendar year in which the Federal Bureau of Prisons had these tabulations prepared and ready for use. The CHAIRMAN. Now, if I understand the minimum sentence pro- posed for burglary in the House bill, the minimum sentence proposed is not less than 5 nor more than 15 years. Well, now, their 5 years is not a great deal of difference from your actual experience here in sentencing in the District of Columbia? Mr. Acm~soN. That is right. The CHAIRMAN. If you are in prison that additional 19 months would look pretty long, but would it not have some effect if I knew that if I were convicted of burglary here in the District of Columbia that I would have to serve at least 5 years in the penitentiary? You just do not feel that this helps? Mr. ACHESON. I am speculating now because, as Mr. Clemmer says, a.nd I feel the same way, we have very little data. The fact that the District of Columbia is first in the severity of sentences for burglary tends to suggest to me that a more severe man- datory minimum sentence t.ha.n this average of time served is not necessary or desirable. Now, if it is necessary then the only conclusion you can form is that the other States are extremely lenient and rather out of line in the sentences that they impose. I do not think that that is as likely as it is likely that we do not need a 5-year minimum. The CHAIRMAN. Do you feel convinced that the placing of manda- tory minimum sentences under any of these crimes is of no assistance to you as a prosecuting attorney here in the District of Columbia in attempting to stamp out crime? Mr. A0HESON. Well, it would work the other way, Mr. Chairman. The CHAIRMAN. Now, why does it work the other way? Mr. ACHESON. It would make it quite difficult, certainly, in any case where no one was hurt in the course of a burglary. It would make it very difficult to get a conviction from a jury. The CHAIRMAN. You do not think a man would put a man away for 5 years because of that? Mr. ACHESON. I do not think a jury would feel that the average burglary is worth 5 years. The CHAIRMAN. Thank you. I think you are probably down to section 504. Mr. ACHESON. In relation to section 504, Mr. Chairman, I will just stand on Mr. Katzenbach's letter of September 13. In relat~on to section 508, what I am going to say speaks only for the Law Enforcement Council. The Department of Justice has de- ferred to the Commissioners' views. The section would ma ~`nify the punishment for fa.lse reports to the police so as to convert that crime from a minor offense under police regulations triable in the Court of General Sessions without a jury, to a misdemeanor crime that would require a jury trial under the District of Columbia Code, section 11-715 (a'). PAGENO="0075" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 69 Considering the frequently minor character of such offenses, the difficulty of proving intentional falsehood as distinguished from sim- ple misinformation, and the delay and expense incident to jury trials, we do not believe that the public interest is served by the enactment of section 508. Mr. Chairman, I would appreciate it if you would include this statement in full in the record. The CHAIRMAN. I believe I have already made that order earlier. Mr. AcHE50N. As well as Mr. Katzenbach's letter of September 13. The CHAIRMAN. That was previously introduced into the hearing record at the start of the hearing. Mr. ACHE50N. And my letter of September 12 on behalf of the Law Enforcement Council. The CHAIRMAN. I believe that an order was made at the commence- ment of the hearing, incorporating that in full in the hearing record. We are certainly all alarmed by this continuing upsurge of crime in the Nation's Capital. `We realize that possibly this follows a kind of a national trend and, certainly, the fact, as I have said so many times that we compare favor- ably with other cities is very, very small consolation. Now, we are proceeding, in the course of the next 3 weeks, to examine the more controversial sections of this crime legislation that is be- fore us, as passed by the House. of Representatives, but I would be hopeful toward the end of this hearing, after we have finished our Mallory and D~r/iam probing, that you would be in a position to make any additional suggestions as to what we can do, as a legislative committee, to strengthen your hand as a law enforcement officer here in the District of Columbia. I know you have spent many, many hours in working on this prob- lem, and I know you have some suggestions. Mr. Tobriner made a suggestion in his statement about the registra- tion of firearms. You may have some comments to make also in that connection. I do not think this is the proper place to make them, but I would hope toward the end of our hearing, in some later session, that you would be prepared to make any additional recommendations that you wish. Maybe there are none to be made. Maybe law alone does not cor- rect this, but I would hope, in the next 2 or 3 weeks,you would give, as you have in the past, your intensive thought tothis problem to see if there is not some way that we can be of help to you in strengthening your arm as a law enforcement officer. Mr. ACHE5ON. I appreciate that, Mr. Chairman. I do expect to have a proposal to make next Tuesday. The CHAIRMAN. That will be fine. Senator Dominick? Senator DOMINICK. Mr. Chairman, I do not know why we should avoid at this time any question on the supposed licensing of firearms, because I think this is a pretty important point. The CHAIRMAN. There is no intention to do that. I intended to go into that independently. Senator DOMINICK. I see. The CHAIRMAN. I am going to bring that into another hearing as well. PAGENO="0076" 70 AMENDMENTS TO CRIMINAL STATUTES OF D.C. It was opened up by Mr. Tobriner in his suggestion, and I have no objection at all to any questions being asked now on it. Mr. ACHEsoN. I am available now. Senator DOMINICK. I will just ask a couple of questions on that then. There are a great number of people who have pistols and sidearms of one kind or another, either as souvenirs from the wars or just because they want to use them for target practice or for shooting gophers or whatever it may be, and obviously this is going to put a lot of these people to a substantial-what would you say-irritation of some kind, at least, in getting licenses and getting them all registered and doing all that. My concern about this has been based largely on the fact that whether this really does anything either by way of stopping crime or by assisting in discovering who has done a crime, because at least in the evidence that we produced during similar types of hearings in my own State, it became apparent that if you put a law of this kind in, that the people who are committing these crimes, with intent to commit ~a crime, would simply knock in the front door of a sporting goods store, swipe what they needed, and go off, or they obtain it through the underground and file the license number off. So it really has not done any good. Now, what is your general attitude on this? I do not mean to tie you down completely, but are these legitimate questions to raise? Mr. ACHESON. Yes; I will be glad to deal with them, Senator. I cannot say with certainty whether a registration statute for fire- arms would help stamp out crimes committed with firearms, but let's deal with probabilities now. We do know that a great many firearms are in the hands of people who are likely to commit crimes. We know that because in the average 6-month period the police con- fiscate about 300 or 350. The CHAIRMAN. Over what period of time is that? Mr. ACHESoN. The average 6-month period, Mr. Chairman. The CHAIRMAN. They confiscated 300? Mr. ACHESON. They confiscated about 300 to 350 handguns in con- nection with arrests made for various felony crimes. This suggests, of course, that there is a larger part of the iceberg that you do not see, that there are a large number of people who would use a handgun unlawfully if an opportunity arose to use it. Now, it is obviously difficult to find a person who has a handgun, if he does not use it unlawfully. But if a statute were passed, that required registration, the very least that we would accomplish would be that we would have the basis of a criminal charge against someone who has it unlawfully, and if the police, by breaking up a Saturday night fight in someone's home, discovered that there is a handgun in the home that is not registered, there is a basis there for a criminal charge against someone who is probably an irresponsible possessor of a handgun. Now, the big problem in such a statute is to set up a standard which distinguishes between responsible citizens, who use them and know how to use them for sporting purposes, and the irresponsible citizens, principally teenagers or young people, who do not use them to shoot PAGENO="0077" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 71 gophers, who do not shoot gophers at all but who keep them in an apartment and carry them around on Saturday nights either to show off or to use them as a weapon in a robbery or something of that kind. Now, in the draft statutes, submitted by the Commissioners, there was an effort to set up a standard which distinguished between respon- sible citizens and irresponsible citizens, and it set up, I think, a pretty good standard. Senator DOMINICK. How do you tell until after the fact? Mr. ACHE5ON. Well, you cannot, but by putting it on the basis of theT likelihood of the responsibility of the citizen, in view of his employ- ment, his medical record, his education, his age, family, circumstances, you can get some guidelines whether it is a stable situation in which a gun may safely be left in his home or whether it is an unstable situa- tion where it might not be safe. And in the one case the police or the Commissioner, under that, would deny a license and in the other case he would grant a license. Now, we made every effort in that bill to make it easy for responsible people to keep handguns. We made it mandatory upon the Commissioners to grant a license if those statutory criteria were satisfied. And to me it is a bit like the question of requiring licenses for the operation of automobiles. Automobiles are dangerous. Guns are dangerous. You require a license to drive an automobile. Now, this is a very considerable inconvenience for people to get. They have got to take a driving test and they have to fill out a form and they have to pay $3. In a sense, it discriminates against law-abiding citizens because they comply with it and other people who are not law-abiding get in a car* and drive it around without a license. But the thing you accomplish is that if you catch a person doing that and he does not have a license, you have a criminal charge against him. Now, this is some deterrent to crime. It also takes him out of circu- lation for a while. And in the case of illegal possession of handguns, I do not see why we should not approach it in much the same way. Senator DoMINIcK. In effect then, you feel that this might have some merit? Mr. ACHESON. That sums it up very accurately, Senator. I think it might have some merit. The CHAIRMAN. Any further questions? Senator DoMINICK. No. The CHAIRMAN. I might say to my friend from Colorado that as we get into this firearms problem I would certainly propose to have some of the experts come in on the workings of the Sullivan law. We have had all kinds of conflicts of opinion. We intend to have some law enforcement experts to give us their best judgments on that. Mr. ACHESON. If I could say just one thing. on that, Mr.: Chairman- The CHAIRMAN. Certainly. : Mr. ACHESON. I think the draft bill that was submitted is a fairer law to the citizenry than the Sullivan law. PAGENO="0078" 72 AMENDMENTS TO CRIMINAL STATUTES OF D.C. There is a general, I won't say "propaganda," but a general mis- apprehension around that it is really a. carbon copy of the Sullivan law, and that adds something to the jredilections against it that a lot of people feel. I would hope that we could have a very open-minded situation on that bill. The CHAIRMAN. I am sure that we will. Any further questions? Senator Do~rn~icK. No. The CHAIRMAN. Thank you very much, Mr. Acheson. Our next witness will be the Chief of Police, Maj. Robert V. Murray. STATEMENT OF MAJ. ROBERT V. MURRAY, CHIEF, ACCOMPANIED BY TERRY V. WILSON, CAPTAIN, METROPOLITAN POLICE DE- rARTMENT The CHAIRMAN. Chief, we are very happy to have you and anyone that you desire to come to the witness table with you. Chief MURRAY. Mr. Chairman, I have with me, Captain Wilson. The CHAIRMAN. We are very happy to see again, Captain. Chief MURRAY. Mr. Chairman, and members of the committee, I have a brief statement I would like to make. Chief MURRAY. Mr. Chairman, according to the schedule furnished me, the committee today is considering title IV of H.R.. 7525, which will classify the offense of robbery as a crime of violence, those parts of title V of that bill which deal with minimum sentences for certain criminal offense, and with false reports, and all of S. 486, which amends certain other criminal laws applicable to the District of Columbia. If I may, I should like to address my remarks to each of those three items and conclude by briefly relating to the committee the current crime situation in the District of Columbia. ROBBERY AS A CRIME OF VIOLENCE In a letter dated May 1, 1963, to the House Committee on the Dis- trict of Columbia, I suggested that, while that committee was consider- ing dangerous weapons legislation, it might want to recommend amend- ment of section 22-3201 of the District Code to add the offense of rob- bery to crimes defined as "crimes of violence." The code already includes within that definition the offense ofassault with intent to commit robbery but, apparently from oversight, the actual offense of robbery is not included. Because robbery is a major problem within the District of Columbia, and because it is a crime in which a weapon is often employed, I sug- gest that it would be logical and helpful to include that offense among the listed crimes of violence, thereby permitting imposition of addi- tional penalties for commission of a robbery while armed with a pistol or other firearm. PAGENO="0079" AMENDMENTS TO CRIMINAL STATUTES OF D.C.. 73 MINIMUM SENTENCES AND FALSE REPORTS Mr. Chairman, as you and the members of this committee know, I am by training and experience a police officer and police administra- tor rather than a jurist or penalogist. In my statement to the House Committee on the District of Columbia, regarding H.R. 1893, the so- called four-time loser bill, I stated that I thought legislation which would apply possible irrevocable life imprisonment to the vast selection of criminal offenses included in the felony classification might not be in the best interests of the District. I stated to the House committee and will repeat to this committee that, in general, the District Code authorizes additional penalties for repeaters. But in the Police Department, in our interviewing of criminals and in our observations of repeaters, we have found that among criminals the thought seems to prevail, with some possible merit, that the crim- inal gets abetter break in the District of Columbia than he does else- where. The CHAIRMAN. That seems to be a point on which the TJ.S. attorney disagrees with you. Chief MURRAY. Yes, I know he does. The CHAIRMAN. If I understood his testimony correct, and I think I did, the table which he submitted does not seem to bear this out. I do not know whether this is right or wrong. Chief MURRAY. Could I depart from the statement a moment ~ The CHAIRMAN. Yes, of course. Chief MURRAY. We had a case right here in the District of Colum- bia, which I thought was an atrocious crime, just a few months ago where a man had been released from prison in Virginia. He stopped off here in Washington and he held up two young ladies atthe point of a gun. They had just come from a theater. He forced them into a car and drove around town, out in the counties, and back in here, for that 3 hours. He raped one of the victims, and tied them up and went on. First we had a police identification from the victims from a 7-year- old photograph that was in our gallery. The next day the man was arrested in Philadelphia, where he had attempted to hold up two candy stores. He told the police in Phila- delphia that he had shot and killed a woman and thrown her body into the river here in Washington and, in the meantime, we got the victims and detectives and sent them over to Philadelphia where they identified the man, and he told substantially the same story that the complainants had told about the crime, but he stated that the reason that. he had told them the story about killing a woman and throwing her body into the river was he thought that he would get off easier here in Washington than he would in Philadelphia., but he is being held in Philadelphia and will later come here to be tried. There are many other- . The CI-IAIRMAN. Is that a common experience? Clii ef MURRAY. Well, yes; sir. I do not have it with me, but I would like to put, i.nto the record or furnish for t.he record the penal- ties `for the offense of armed robbery in nearby Virginia and the State of Maryland. PAGENO="0080" 74 AMENDMENTS TO CRTh1I~AL STATUTES OF D.C. Now, if I am not mistaken, the minimum sentence and minimum penalty in Virginia is 8 years. I do not think that they get less than 8 years for an armed robbery. And I think it is just like that in Maryland, but I would like to put: that into the record. The CHAIRMAN. I think that we should have inserted in the record this information and this, I am sure, the staff people could do. We should have inserted in the record a tabulation, which must be easily obtainable, of the minimum sentences in those States where they have minimum sentences, and the maximum sentences for all of the States. I think it would be very helpful to run this out by way of comparing it. with other jurisdictions. Chief MURRAY. Yes, sir; I think it would. The CHAIRMAN. The staff will do that. We will have them procure that information for us. Chief MURRAY. All right. (The documents referred to may be seen on p. 711.) Chief MURRAY. I will state to this committee that I do believe that punishment of the criminal does deter crime, and I do think that crime prevention might be well served by an urging of the courts t& impose greater penalties, under existing law, on criminal offenders, but I will leave it for the. Congress to decide whether or not minimum sentences prescribed by law are the best method of obtaining adequate punishment. The CHAIRMAN. I take it you do not take a position then on whether we should or should not have mandatory sentences? Chief MURRAY. Yes, sir. I would rather leave that to the courts, to the district attorney, and the Congress. The CHAIRMAN. When you wear a different hat and serve on the Law Enforcement. Council, do you vote for or against the mandatory minimum sentence or~ Chief MURRAY. I was not present at that meeting, Mr. Chairman, and some of the other things that they voted for I take an exception to and I vote against, some of the other things that are coming up. The CHAIRMAN. I understand. The mandatory minimum sentence, you take no position? Chief MURRAY. No, sir. The CHAIRMAN. You think that is a mat.ter primarily for the prose- cuting attorney and the courts? Chief MURRAY. Yes, sir. I feel, Mr. Chairman, that the Police Department's job is to arrest offenders and send them to court and hope that justice will be done. The CHAIRMAN. If we were to write a mandatory minimum sen- tence into the statutes of the District of Columbia, do you believe that would cut down the crime rate here in the District? Chief MURRAY. It might- The CHAIRMAN. Would that deter the criminal? Chief MURRAY. Yes; I think it might be a deterrent. The CHAIRMAN. It might be a deterrent? And I certainly agree that the punishment of a criminal does deter crime. I think that is certainly true. I asked either Mr. Clemmer or Mr. Acheson-I have forgotten which one it was-as to their thinking on this point, of knowing that PAGENO="0081" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 75 you would be in a penitentiary for a definitely fixed period of time, if that would not deter you. My own personal view is that it would. I mean, it would seem to me that that would tend to deter me if I knew I was going to be in there at least 1 year or 2 years or 5 years rather than an indeterminate sentence subject to an earlier parole. Chief MURRAY. I feel it would be a deterrent; yes, sir. The CHAIRMAN. Thank you. Chief MURRAY. It is important to mention, however, for the infor- mation of this Senate committee, that three of the criminal offenses affected by title 1/; namely, the offense of assault to rob, the offense of burglary, and the offense of robbery constitute the major crime problems in this jurisdiction. Both burglary and robbery have more than doubled during the past 6 months and both stand currently at extreme alitime highs. Senator DOMINICK. Did you mean "6 months" or "6 years?" Chief MURRAY. Six years, sir. Did I say "6 months?" Senator DoMINIcK. You said "6 months." Chief MURRAY. I'm sorry. I meant "6 years." The CHAIRMAN. You did not completely finish your thought on that particular paragraph, if I understand you correctly, because these are among the three criminal offenses with which you have the greatest problem. Do I take it then that it follows, as a logical conclusion, that it would be your thinking that if you had a minimum sentence for those crimes it would be helpful, a mandatory minimum sentence? Chief MURRAY. I think it would be helpful. I think, too, where there are multiple offenses that if they got some time on each offense-in other words, if we got a man for a series of robbery cases or a series of burglary cases, I have often heard them say, "Well, if I commit one crime I might as well commit crimes until I am caught because I won't get any more time." Now, I have been working with the U.S. attorney's office for more than 30 years. They can only get indictments on a certain number of cases. In other words, we have 50 offenses against a man, say. They can- not take 50 cases into court or 50 indictments, and prosecute them be- cause they have found over the years that they get concurrent sentences. So, therefore, they only put in a few of the best cases and the other cases are not prosecuted. The CHAIRMAN. In this jurisdiction do the sentences run concur- rently or what is the procedure used? Chief MURRAY. Well, the judge can make a concurrent sentence or he can make it consecutive. The CHAIRMAN. "Consecutive," that is the word I wanted. Does a judge do that today if he finds a man guilty of two offenses? Can he make consecutive sentences? Chief MURRAY. He can; yes, sir, or he can make it concurrent, and where The CHAIRMAN. The law does not need to be changed then in that regard? Chief MURRAY. Sir? 25-260-64-pt. 1-6 PAGENO="0082" 76 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAn~rAx. The law would not need to be changed in that re- gard to meet your point then. Chief MURRAY. No, it would not. The CnAn~rAN. In other words, the judge today, if a man is con- victed of two crimes, could impose consecutive sentences? Chief Mmmxv. He can do that if he wants to now. The CITAIi~rAN. Yes, but we cannot help you then in that regard? Chief MURRAY. No, sir. The CHAn~rAx. That is a matter for the judges. Chief MURRAY. That is a matter for the judge. It is not a matter for the U.S. a.ttorney or for the Police Depart- ment. The CHAIRMAN. Yes. I was not quite clear on that paragraph. Thank you, Chief. Chief Munn~&y. Section 508 of title V codifies the provisions of the Police Regulations of the District of Columbia relating to the making of false or fictitious reports to the Police Department. This police regulation provision has been very useful to us in our investigation of crimes and other matters within the purview of our responsibility. I am informed that the penalties provided for this offense by section 508 will generate some problems for prosecution of these charges by permitting demands for trial by jury. It is fitting that testimony on this potentia.l problem come from the prosecutor rather than the police; therefore, I will confine my remarks to a comment that any dilution of the effectiveness of the existing regulation would certainly be harmful to law enforcement. I think Mr. Aclieson testified that jury trials would be harmful. DAMAGE TO PROPERTY, KIDNAPING, AND PROSECUTIONS As this Department understands it, S. 486 will make certain amend- ments to the statutes relating to damage or destruction of property, to kidnapping, and to prosecutions of certain offenses within the District of Columbia. I believe that the changes in the statutes relating to damage of prop- erty and to kidnapping are logical and useful, and I would recommend their enactment by the Congress. Since those provision of this bill relating to changes in prosecuting officials do not relate specifically to the duties of this Department., no comment from me would seem necessary on those subjects. GENERAL CRIME CONDITIONS IN THE DISTRICT OF COLUMBIA In February of this year, I made a full report to this committee. in joint hearings with the House Committee on the District of Columbia, on overall crime conditions within this city. I do not want to take the time of this committee today to reiterate all of the points I covered in February. And, a.s the committee has scheduled for another date the discussion of Mallory and Mallory- related sections of H.R.. T527, I will not seek to justify those provisions today. I would, however, like to inform the committee that the overall crime situation in the District has not become better since February. The trend of offenses has continued consistently uiiward, and it is note- PAGENO="0083" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 77 worthy that, with the close of September 1963, our total crime trend exceeded the previous alitime high of crime established in December 1952. I would also like to mention that the House Committee on the Dis- trict of Columbia published in its report on H.R. 7525 data furnished by this Department showing the clearance of part 1 felonies as related to the Mallory decision. After that table was provided by us, the statistics for fiscal year 1963 have become available and, I might inform this committee, the trends established in previous years have been continued. I have furnished today for each member of the committee copies of an updated graph and statistical table reflecting the foregoing data through the fiscal year 1963, and will be glad to provide additional data on whatever points the committee may want to cover. That is the end of the statement, Mr. Chairman. The CHAIRMAN. Well, both the "Part 1 Felonies in the District of Columbia" and the attached table, if it can be reproduced, and I imagine it can, will be made a part of the record at this point in your testimony and, very obviously, you will want to comment in depth on this, I am sure, when you are back before us next week- Chief MURRAY. Yes, sir. The CHAIRMAN (continuing). When we get into title I, which is the Mallor~j section of H.R. 7525. Chief MURRAY. Yes, sir; I would like to come back next week. (The documents referred to follow:) PART 1 FELONIES1 IN THE DISTRICT OF COLUMBIA; APPARENT RELATIONSHIP OF "MAlLoRY" DECISION Part 1 felonies in the District of Columbia reached a record low of 9,155 offenses for the fiscal year ending June 1957. Since that month there has been a relatively steady increase in those offenses to a high of 15,191 for the fiscal year 1963. The following table reflects the number and percent of part 1 felonies reported and cleared for past fiscal years: Fiscal year Number reported Number cleared Percent cleared Fiscal year Number reported Number cleared Percent cleared 1952 1953 1954... 1955 1956 1957 14, 066 15, 251 11,917 11,488 10,048 9,155 8, 197 7, 798 6,989 7,453 5,996 5,304 58.3 51. 1 58.6 64.9 59.7 57.9 1958 1959 1960.... 1961 1962 1963 9, 895 10, 163 11,714 12,948 13,274 15,191 5, 746 6, 167 6,311 6,647 6,493 6,770 58. 1 60. 7 53.9 51.3 48.9 44.6 As the total number of offenses has increased, the total number cleared has also increased, but the proportion of clearance has, in general, fallen behind. The reasons for this are readily obvious: a general increase in total offenses at first brings with it a large number of crimes which are cleared on the scene when the report is made or which are relatively easy to clear; however, as the increase continues, the overwhelming workload begins to affect tbe number and propor- tion of clearances possible with a given number of personnel. It is significant that, even with increased emphasis on detection operations, this department has not been able to attain in recent years either the number or proportion of clearances attained during the high crime years prior to 1957. 1 Part 1 felonies includes all offenses in the part 1 classification except negligent homicide and attempt housebreaking (which together usually comprises only about 1 percent of the part 1 classification) and petit larceny (which usually comprises about 40 percent of the part 1 classification). PAGENO="0084" SERtOUS OFFENSES REPORTED ALLO~S fS~ 5TH ST TIS ~ )~I~1:I~lB Ii Vi ~ ~ ~ mt Ili::W~~ 0 2~O nDo ~o0 NUMBER OFPENSR$ THAT MONTH -~______ AVERAGE PER MONTH PAST 12 MONTHS 1500 1230 1000 75, 500 230 PAGENO="0085" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 79 The CHAIRMAN. We are going to go into that later, and we have had a request from many witnesses both pro and con, and we will try to do a thorough job of going into it. I have no questions on the phases of title VI and title V of 486 which you covered. Obviously, we will have questions as we move into later hearings. Senator Dominick? Senator DOMINICK. Mr. Chairman, will the Chief be available to discuss this question of licensing of guns? The CHAIRMAN. Yes, he will. We will go into that later. I have no objection to your asking him the questions now, however. Senator DOMINICK. That is all right, I will defer the questions. The CHAIRMAN. Thank you very much, Chief, and we will look for- ward to seeing you Tuesday morning at 10 o'clock. We hope if the witnesses are available on that-they are out of town witnesses-to proceed with Mallory, but if they are not available we will proceed with Durham and have Mallory the next day. We may have to reverse the order. Chief MURRAY. I will be here both days, sir. The CHAIRMAN. Thank you very much, Chief. Our next witness is Mr. William K. Norwood, chairman of the public protection committee of the Metropolitan Washington Board of Trade. STATEMENT OP WILLIAM K. NORWOOD, CHAIRMAN, PUBLIC PRO.. TECTION COMMITTEE, METROPOLITAN WASHINGTON BOARD OP TRADE Mr. Nouwoou. Mr. Chairman, and members of the Senate District of Columbia Committee: My name is William K. Norwood. I am appearing here today as the chairman of the public protection committee of the Metropolitan Wa.shington Board of Trade, an organization representing approxi- mately 7,000 principal business, civic, and professional leaders, from more than 4,000 different enterprises. The views that I shall express represent the recommendations of the public protection committee which have been adopted by our board of directors and hence are policies' of the board of trade. We are here today to support the, proposed amendments to the Dis- trict of Columbia Code as encompassed within title IV and title V of the omnibus crime bill, H.R 7525, less section 507 which will be con- sidered separately at a later date. Title IV adds the crime of robbery to the present District of Co- lumbia Code definition of "crimes of violence". Title V is composed of eight sections. Seven of these amend `existing sections of the Dis- trict of Columbia Code and one, section 508, codifies a police regula- tion. Generally speaking, all of these amendments amplify `existing law and tighten the penalties applicable to certain crimes. Each of these sections concern an area of criminal activity in which there has been a marked upsurge since the drarna~tic changes following the Mallory decision in 1957. These particular sections as amended, 501 concerning assault with intent to kill, rob, rape or poison; 502 concerning burglary; 503 dealing with robbery; 505 concerning addi- PAGENO="0086" 80 AMENDMENTS TO CRIMINAL STATUTES OF D.C. tional punishment for committing crimes while armed; and 507 for placing explosives with intent to destroy or injure property, will strengthen the District of Columbia statutes applicable to these crimes and put teeth into our laws comparable to those of neighboring and adjacent States. The Nation's Capital has acquired. deserving or not., the reputation within the crimina.l community of being soft on crime. Increasing the minimum and, in some cases, the maximum penalties for these crimes will demonstrate to the criminally inclined that the Congress and the law-abiding residents of the District of Columbia will no longer coun- tenance the situation which has developed over the past decade. The passage of these proposed amendments will be of substantial assistance in correcting the direction of the pendulum of justice in the Nation's Capital. And I would like to deviate from my formal text for just a few words, if I may. The CHAIRMAN. Certainly. Mr. NoRwooD. I am not a lawyer. I am not a penologist, and I have heard a good deal of direct testimony this morning somewhat contrary to what I have just recommended. My interest, and it goes a little bit beyond the board of trade be- cause I am a pa.st president of the. Federat.ion of Citizens Associations, is to protect the law-abiding citizens of our community, and it is our opinion that these changes will assist in doing that. I recognize that the accused has certain rights but it is our opinion, and it is also the general feeling of the community at large, that the pendulum has swung a little bit t.oo far to protect the criminal and it is just common-I cannot say "common lrnowledge"-but it is common conversation that the criminal these days has more protection than the innocent. Some crime figures were just released today, and I think Chief Mur- ray referred to them, that September was the 16th month in succession where the crime rate has exceeded last year's. The feeling has developed tha.t Washington is soft on crime and that was very well indicated by the case t.hat Chief Murray cited * involving a crime here in the District and the man going up to Pennsylvania. The public is very much concerned about that. Even though Wash~ ington is not the highest of the major cities in connection with crime, it. is one of the largest and the fact it is not the highest, I think, is rather immaterial because Washington should be a showcase and we certainly are not in the line of crime. And it is worrying our people. I was talking to a former District Commissioner the other day about this, and talking about tightening up some crime laws, and he said that- Well, the people are overconcerned about that; it really isn't as bad as they say, but if the people in the community are concerned about it and the women are afraid to go out on the streets at night, which is a fact-and it is not only confined to women, but it reaches to our diplomats, lawmakers, and the average citizen-something needs to be done about it, as soon as possible. PAGENO="0087" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 81 And we believe that stricter penalties will assist in advising the criminally inclined members of our community that we are just not going to put up with it any more. As far as I know, from personal experience, the severity of the penalty can influence you. A couple of years ago, a member of my family collected a few traffic points because he went over the lawful speed limit just a little bit, and the fact that, collecting a few more points, he was going to have his license suspended, resulted in the most careful driving that I have seen in many years. And I think the same thing will apply to our criminal community. And I urge you gentlemen, because you have the opportunity to help correct the impression that is being spread around the country about Washington and also help eliminate the feeling of fear that exists in so many of our members of our community, not only women but also men, to tighten up these laws involving crime. I think that you will assist on both of those in correcting the im- pression that has been gained about crime here in Washington and also eliminating the concern on the part of our community, because I am interested in protecting the law-abiding citizen. Thank you very much, Mr. Chairman. The CHAIRMAN. I want to compliment you on your statement, Mr. Norwood. I think it is a very fine statement, and I think it was par- ticularly fine when you started ad libbing. I do not know that lawyers are trained penologists or police officers have any exclusive prerogative in this particular area. I know that you express the alarm of the citizenry of Washington, and we are here to try to be of help to you and enact legislation which will be constitutional and which will help arrest this very alarming upsurge in crime. We know it is here, and we want to do something about it, and what you have said has been very very helpful. Mr. NoRwooD. Thank you. The CHAIEMAN. The Senator from Colorado? Senator DOMINICK. No questions. The CHAIRMAN. Thank you very much, Mr. Norwood. We will stand in recess until 10 o'clock Tuesday morning. (Whereupon, at 12:13 o'clock, the committee was recessed, to re- convene at 10 a.in., Tuesday, October 15, 1963.) PAGENO="0088" PAGENO="0089" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA TUESDAY, OCTOBER 15, 1963 U.S. SENATE, COMMITTEE ON THE DIsTRIcT OF COLUMBIA, Washington, D.C. The committee met, pursuant to recess, at 10:05 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presiding. Present: Senator Bible. Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard Judd, pro- fessional staff member. The CHAIRMAN. The committee will come to order at this time for the commencement of the hearing on title II of H.R. 7525. Our first witness this morning will be Maj. Robert V. Murray, Chief of Police of the District of Columbia. Chief Murray? STATEMENT OF ROBERT V. MURRAY, CHIEF OP POLICE, DISTRICT OP COLUMBIA; ACCOMPA~NIED BY TERRY V. WILSON, CAPTAIN, POLICE DEPARTMENT, DISTRICT OP COLUMBIA Chief MURRAY. Mr. Chairman, I have a very brief prepared state- ment which I would like to read-first, I would like to say that I have with me Captain Wilson. The CHAIRMAN. Happy to have you present, Captain. You may proceed, Chief Murray. Chief MURRAY. Mr. Chairman, I am informed that today the Sen- ate Committee on the District of Columbia is examining only title II of H.R. 7525, which is intended to apply to criminal cases in the District of Columbia and to replace the test of criminal responsibility stated for the District of Columbia in the Durham decision. The Durham decision I think has had a detrimental effect on overall law enforcement in this city; however, the provisions of that decision are not directly applicable to police activities and are not encountered in the criminal processes until the case actually goes to trial. There- fore, I believe that Government recommendations on the Durham de- cision and on proposed remedies such as title II of H.R. 7525 should more appropriately come from the U.S. attorney than from the Chief of Police. 83 PAGENO="0090" 84 AMENDMENTS TO CRIMINAL STATTJTES OF D.C. The CHAIRMAN. Thank you. My attention was directed, Chief, to the U.S. News & `World Report which had an interview with you con- cerning the crime situation in the Nation's Capital and I think we would like to examine you further on that at such time as we get into the hearings on the so-called A1allo~y decision. However, I think that it is proper that I ask you a question today on your answer con- tained on page 95 of the U.S. News & `World Report, which magazine bears the date of October 21, 1963, where the question was asked of you: Have court decisions on insanity hurt law- enforcement? This was the question asked of you and this is your answer: We think they did at first but after they got the law amended so that anyone pleading insanity would be committed and then brought back for trial if they recovered, the number of cases dropped off. I don't think it is a real big problem now'. Now, does that statement in the U.S. News & World R.eport cor- rectly reflect your views on the present handling of the sanity cases in the District of Columbia? Chief Mu `r. Yes, sir, it does, plus the fact that there was a change about a year ago in the ilfcDon.alci decision, and in talking to Mr. Acheson, he says that has modified the Durham decision a good deal. The CHAIRMAN. The answer attributed to you says, "after they got the law amended." I assume you meant by that, after the law was modified? Chief MURRAY. Yes, sir. The CHAIRMAN. By the decision in the ii[cDonakl case? Chief MURRAY. Yes, sir, that is what I meant. The CHAIRMAN. I am told that that was what was meant. Now, in view of what you have sa.id in the U.S. News & `World Report, would it be your judgment that there is or is not a. need for a. statutory pro- vision such as is contained in t.itle II of the House bill now before us? Chief MURRAY. No, sir. I am willing to go along with Mr. Acheson, that the present court decisions did not make it too difficult as when the Dvrha.m case was handed down. The CHAIRMAN. Yes. I am limiting myself entirely to the Durham problem, that is title II. But. what you have said here is, "I don't think it is a real big problem now." That is the way you feel? Chief MURRAY. That is correct, yes, sir. The CHAIRMAN. On quest.ions dealing with insanity, that the de- cisions in the District of Columbia~ do not hurt law enforcement?~ Chief MURRAY. No, sir, not like they did when the Durliam decision first came out. The CHAIRMAN. I understand that the Dur1~ am decision was modi- fied by the McDonald decision. Now, in the light, of the McDonald decision I understand you to be saying that you do not think that the decisions on insanity pose any big problem as far as you are concerned, as a police officer, is that correct.? Chief MURRAY. That is correct. Thc CHAIRMAN. Thank you. Chief. I have no further questions. We will be looking forward to seeing you back here again next week. Chief MURRAY. Thank you, Mr. Chairman. The CHAIRMAN. Our next witness is David C. Acheson, U.S. attorney for the District of Columbia. PAGENO="0091" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 85 STATEMENT OF DAVID C. ACHESON, U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA Mr. ACHESON. Mr. Chairman, I would like to discuss briefly the question of the standards to be followed by the courts in determining criminal responsibility, which is the most noteworthy feature of title II of this bill. This title is identical to H.R. 7052 of the 87th Congress that was reported by the House committee in June of 1961. For a number of years prosecutors and judges in the District of Columbia have encountered difficult problems in trials of the insanity defense in criminal cases. These difficulties have largely arisen from the application of the so-called Durham rule, the rule laid down in Durham v. United States (94 U.S. App. D.C. 228, 214 F. 2d 862). That standard of criminal responsibility exonerated defendants who were suffering from mental disease or defect at the time of the crime, if the crime was a product of such mental disease or defect. The rule has been a subject of controversy for much of the period since 1954. Its strength was that it left the door open to much more exact, voluminous, and detailed medical evidence than did the law theretofore. The problems Durham created were: (1) The very slight quantum of evidence that was required of the defense to raise the insanity issue in the case; (2) The near impossibility incumbent upon the government of the disproving beyond a reasonable doubt a causal connec- tion between a mental illness and a criminal act; and (3) The very uncertain criteria by which district judges were often compelled to direct verdicts in -favor of defendants. A vast quantity of writing has been devoted to the Durham rule, which should not appropriately be rehearsed at this time and place. For the further study of any member of the committee who may wish to examine a criticism of the Durham rule in more detail, I am submitting copies of an article that I was asked to write which appeared in the Georgetown Law Journal in the spring of this year. The CHAIRMAN. The article will be printed at this point in the hearing record. (The article referred to follows:) MCDONALD V. UNITED STATES: THE DURHAM RULE REDEFINED (By David C. Aeheson*) Briefly examining the inequities which have arisen under the Durham rule of criminal responsibility, as developed in the District of Columbia, the author suggests that many of these imbalances have been eliminated by the recently decided McDonald v. United ytates. Mr. Acheson points out that not only have the problems presented the prosecution by the elusive product question been reduced, but also that under McDonald the defendant is much less likely to get a directed verdict of not guilty by reason of insanity merely because "some evidence" of insanity has been introduced and gone unrebutted. He concludes by stating that al- though McDonald can be expected to have little effect upon psychiatric testimony in criminal trials, it is nevertheless a significant step toward the achievement of a test of mental responsibility which is fair to de- fense and prosecution alike. *U.S. Attorney for the District of Columbia. PAGENO="0092" 86 AMENDMENTS TO CRIMINAL STATUTES OF D.C. INTRODUCTION A few weeks ago the Temporary Commission on Revision of the Penal Law of New York asked me to submit to the New York state legislature a statement of our experience in the District of Columbia with the Durham rule of criminal responsibility.' In response, I put down my own views of the D urli am rule, and the successor rules laid down in McDonald v. United States,' together with some thoughts on their relative merit or demerit versus the New York proposal, and what follows is substantially the text of the statement that I submitted. These observations will serve, I hope, as a useful review of local developments in crimi- nal responsibility, of at least as much interest to the legal profession in the Dis- trict of Columbia as to the New York legislature. While this is not the place for theorizing, I would like to fix a starting point for what I have to say. It is important to be certain precisely for what purpose a rule of law is to be used. To me a rule of criminal responsibility ought to answer two purposes. First, it must be a test of responsibility. This means that we accept the axiom that some moral choice must be made between the guilty and the innocent, between those who are morally culpable and are to be punished and those who are not. If a moral choice is not to be made, it is nonsense to talk of criminal responsibility. And if responsibility is the blossom that we are trying to pick from the thorns, the test of responsibility must measure the degree of choice open to the defendant. A test of responsibility should not be shaped to irrelevant uses-such as determining merely whether the defendant needs mental treatment, or whether his mental condition made it more or less likely that he would commit the criminal act. Nor should we be diverted by the skepticism of psychiatrists toward the validity of the concept of moral culpa- bility. We have passed beyond that crossroad, if we are at the point that we are looking for a rule of responsibility. Second, the rule must be one that is not incomprehensible to juries. It must recognize the fact that the issue of responsibility is decided by the unscientific process of litigation, and the rule must define the issue in a way that permits jury determination in more or less familiar terms without throwing the ultimate issue open to hopeless speculation. At the risk of slight over-simplification, I should like to emphasize that the Durham. rule, as it is commonly known, is no longer the law in the District of Columbia. It was modified in basic part by McDonald v.. United States.' decided by the United States Court of Appeals for the District of Columbia Circuit sitting en. bane, on October 8, 1062. My discussion will take up Durham before Mc- Donald, then the new rules laid dow-n in McDonald. then the practical applica- tion of both standards by psychiatrists in the District of Columbia. THE DURHAM RULE Durham is best understood as a shorthand expression for the basic rule of responsibility laid down in Dviii am v. United States,4 as the court of appeals applied and interpreted it isa eighty-odd cases over a i)eriod of eight and a half years, plus a number of subsidiary rules laid down in court decisions in which criminal responsibility was an issue. Space only permits a highlight examination of the sedimentary deposit subsequently added to Duihiam up to the time of McDonald. Dvrhzam w-as decided in 1054. The rule of the case was, and is. that a person is not responsible for a criminal act if he suffered at the time from a mental disease or defect and if the act was a "product" of the disease or defect. On its face it would appear a reasonable rule calling for inquiry into mental affliction and its causal connection with the criminal act. But very serious problems have arisen in applying the rule over the years, to the point that it was not well focused as an inquiry into responsibility, it was confusing to juries, judges, and medical witnesses alike, and it set a series of traps in the path of the prosecution which, in my judgment, did not serve the interests of justice. 1. One major criticism of Durham. has always been that "product" was too vague a term. `Product" in what sense? How should the trial judge explain 1 The New York Legislature is presently considering a proposal to adopt the American Law Institute's formulation in lieu of the rather strict version of the .If'2cagliten rule now obtaining there. This proposal is cast as an amendment of sec. 1120 of the Penal Law. 2 No. 16,304, D.C. Cir., Oct. 8, 1962. ~ Thid. 4 94 L~.S. App. D.C. 228, 214 F. 2d 862 (1954). PAGENO="0093" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 87 "product" to the jury in his instruction? What causal mechanisms should the medical witness describe to the jury and the jury search for in evidence? As practice developed, the juries could expect precious' little guidance from the medical witness or the judge. Psychiatrists, of course, do not define the legal term "product." Many believe that it is impossible to say whether a particular act is the product of a mental disease and those psychiatrists customarily ex- press no opinion on that issue.5 One effort was made by the court of appeals to explain "product" in terms of a variety of causal synonyms: "When we say the defense of insanity requires that the act be a `product of' a disease, we mean that the facts on the record are such that the trier of the facts is enabled to draw a reasonable inference that the accused would not have committed the act he did commit if he had not been diseased as lie was. T'here must be a relationship between the disease and the act, and `that relationship, whatever it may be in degree, must be, as we have already said, critical in its effect in respect to the act. By `critical' we mean decisive, determinative, causal; we mean to convey the idea inherent in the phrases `because of,' `except for,' `without which,' `but for,' `effect of,' `result of,' `causative factor'; the disease made the effective or deci'sive difference between doing and not doing the act. T'he short phrases `product of' and `causal connection' are not intended to be precise, as though they were chemical formulae." 6 This decision turned jury instructions toward circular definitions for a brief period, but these definitions were not widely followed by trial judges.. Some trial judges attempted to explain the "product" concept in terms of particular causal mechanisms of which there was evidence in the particular case. For example, in Campbell v. Uwited ~States the issue of "product" was tried by both sides on the question of the defendant's ability to exercise good judgment and his ability to control his conduct. The trial judge's instruction to the jury explained "product" in those terms-the terms chosen for litigation by the parties themselves. But a divided panel of the United States Court of Appeals for the District of Columbia (2-1) reversed the conviction, holding that the capacity-for-control test was only one type of the causal relationships that were possible under Durham, and that the instruction had erroneously narrowed the jury's understanding of "product" by excluding other possible causal stand- ards. The majority did not attempt to point out what other types of causal connection was possible. Rehearing of the case en bane was sought, bui was de- nied by a margin of one vote. A related difficulty with the "product" concept is the attitude toward it that has evolved among medical witnesses. Their prevailing view is that, while occasionally one can say that an act was a product of mental disease, one can rarely if ever say that an act was not a product. To analogize, one can some- times find a needle in the haystack, but one cannot find that there is not a needle in the haystack. The consequence of this view is that when the psychiatrist can come to a firm opinion on the issue of "product," it is almost invariably in favor of the defendant. No dice could be more loaded than this. It is not the fault of the psychiatrist. When the test of causal connection is as limitless and vague as the "product" concept, certainty can only exist on the affirmative finding, never on the negative. Part of the problem is that medical witnesses are permitted under Durham to testify to an ultimate issue in the case, the "product" question. This practice carries 1)0th a legal and a practical evil. Legally, a witness is supposed to limit his testimony to fact or to expert opinion. "Product" is neither. It is a legal- factual ultimate conclusion, analogous to the issue of negligence, on which surely no witness would be permitted to speak. Practically, "product" is quite outside of the normal, expert frame of reference of the witness. It is a judgment that most psychiatrists do not make professionally in diagnosis or treatment. 2. A second major difficulty with the "product" rule has been a virtually automatic presumption, once mental disease is shown, that the act was a product of the disease. This presumption arises immediately upon a bare showinr of mental disease, without any evidence of a causal connection. If the defendant can show "some evidence" of mental disease, and if the medical witnesses say they don't know whether or `not the act was a product, the government loses The effect of such a disclaimer is treated p. 503. infra. 6Carter v. United States, 102 U.S. App. D.C. 227, 236, 252 F. 2d 606, 617 (19561. `~11,3 U.S. App. D.C. 260, 307 F. 2d 597 (1962). 8The phrase comes from Davis v. United States, 160 U.S., 486 (1895). PAGENO="0094" 88 AMENDMENTS TO CRIMINAL STATUTES OF D.C. on directed verdict for failure to carry its burden of proof beyond a reasonable doubt. The rule that the defendant is required to raise the issue by showing "some evidence" of mental disease does not apply to the second prong of the re- sponsibility test. Under the rule of Frigillana v. United States "some evidence" of causal connection or "product" is not necessary.9 Of course, there is a presumption of sanity in the District of Columbia, as elsewhere, but under the case law of which Frigillana was the most recent ex- pression, that presumption is overconie by a showing of "some evidence" of mental disease. Thereafter, the government must prove beyond a reasonable doubt the absence of mental disease or that the act was not a product of the disease. The latter element cannot be proved in the typical case in which the psychiatrist will not or cannot express an opinion on the question. And so, as a practical matter, every case must be fought by the prosecution on the absence of mental disease, or not fought at all. "Product" is thus read out of the Durham rule in practice, by the automatic, trap-like operation of the presumption of a causal connection. The irony of this is particularly biting when one recalls that one of the chief arguments advanced for the Dnrliam standard was that it took account of "psychic realities and scientific knowledge." 10 Naturally, the presumption of causal connection has produced many situations in which either a verdict is directed against the governnient, or it is forced tO go to trial before a judge, on a waiver of jury trial, and take an uncontested judgment of acquittal by reason of insanity. An interesting example of a di- rected verdict situation is the state of the record on the "product" question in lVright v. United States." Eleven psychiatrists testified, all called by the defend- ant. No opinion was elicited by defendant from five. The opinions the others expressed on the "product" issue were in various shades of doubt. Tw-o wit- nesses stated they had "insufficient data to support an opinion"; one said that it was "likely" there was a causal connection; another said there "could very well be" a causal connection and another that it was "surely possible"; one of the eleven answered "Yes" to a hypothetical question. The court of appeals, on this state of the record, held that the government failed to sustain its burden as a matter of law, and reversed the conviction. Such a state of the record is not unusual in the degree of its ambiguity on the issue of "product." 3. As a final criticism, the state of the law- under Durham requires of the de- fendant too slender a quantum of evidence of mental disease, to overcome the presumption of sanity. "Some evidence" is the historic rule.'2 As interpreted in our circuit, this has been something akin to a "scintilla." As an illustration of how insignificant "some evidence" could be, one defendant took the witness stand and speculated that he "must have been insane." On cross-examination be testified that he was not insane, but w-ould like to be because he preferred St. Elizabeths Hospital to jail. The court of appeals held that the presumption of sanity was overcome so as to raise the insanity issue, solely by virtue of this testimony.'3 Such a standard has often brought the issue of responsibility into the case when there was not enough evidence to litigate the issue intelligibly to a jury, and naturally has encouraged surprise tactics by defense counsel. Trials have frequently been chaotic and preparation has lost much of its power to forearm. Believing that Durham and its subsidiary rules had become so capricious and burdensome as to be tolerable no longer, the U.S. Attorney's Office prepared and urged in 1062 a brief legislative act based upon a proposed section of the Ameri- can Law Institute Model Penal Code.'4 Subsequently, the court of appeals handed dow-n. en bane, a unanimous (for this purpose) opinion in McDonald v. United States." In this decision, I believe, the law has taken a significant new direction, and much for the better. THE NEW RULES In McDonald v. United States the court of appeals reversed a conviction of manslaughter for a faulty jury instruction. Important new rules were laid down, which, since they were provided as guidance for a new trial, have stature ° 113 U.S. App. D.C. 318. 307 F. 2d 665 (1962). 10Dnrham v. United States. 94 U.s. App. D.C. 228, 240, 214 F. 2d 862, 874 (1954). 11102 U.S. App. D.C. 36. 250 F. 2d 4 (1957). "Deals v. United States, 160 U.S. 469. 486 (1895) ; Durham v. United States, 94 U.S. App. D.C. 228. 235. 214 F. 2d 862. 869 (1954). ~1 Cleat v. Lnited States, 104 U.S. App. D.C. 27, 259 F. 25 184 (1958). `2Model Penal Code. sec. 4.01 (Proposed Draft, 1962). `~ No.16.304, D.C. Cir., Oct. 8, 1962. PAGENO="0095" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 89 far greater than mere dicta. A panel of the court heard argument, and rehearing en bane was ordered sua sponte. So far as the points under discussion here are concerned, the new rules were unanimously supported by the full court. 1. The court pointed out in McDonald that, contrary to the Government's con- tention, sufficient evidence of mental disease was present to require a jury in- struction on criminal responsibility. The issue is raised by "some evidence" which must be "more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal." 16 After Clark v. United States,17 this statement would appear to tighten the stand- ard of "some evidence" considerably. 2. Possibly the most significant portion of the court's opinion in McDonald dealt with the standards for directed verdict. The court firmly knocked on the head the notion that affirmative government evidence of responsibility is neces- sary to avoid a directed verdict. The court said: "It does not follow, however, that whenever there is any testimony which may be said to constitute `some evidence' of mental disorder, the Government must present affirmative rebuttal evidence or suffer a directed verdict. A directed verdict requires not merely `some evidence,' but proof sufficient to compel a reasonable juror to entertain a reasonable doubt concerning the accused's re- sponsibility. * * * Whether uncontradicted evidence, including expert opinion evidence, which is sufficient to raise a jury question on the mental issue is also sufficient to require a directed verdict depends upon its weight and credibility. * * * Davis v. United States, 160 U.S. 469, clearly supports this position. There the Supreme Court said that the jury, in considering an insanity plea, must weigh all the evidence, including the presumption of sanity. Id. at 488. Whether un- contradicted expert testimony overcomes the presumption depends upon its weight and credibility, and weight and credibility ordinarily are for the jury." 18 As a practical matter this amounts to saying that every issue of criminal re- sponsibility must go to the jury, a very great improvement in the law from a prosecutor's point of view and a rule that does neither side an injustice. Subsequent to McDonald, decisions of the court of appeals have made it clear that the court will not revert to an evidence-weighing process in passing upon appellants' claims that a verdict should have been directed. They have adhered to the approach expressed in McDonald.1° 3. Perhaps the most significant part of the McDonald opinion is the court's handling of the causal connection problem. The court changed the standard of responsibility, in effect, from a two-step finding of (1) mental disease and (2) causal connection to a one-step analysis. This was done by a definition of "mental disease" in the following terms: "[A] mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially im- pairs behavior controls. Thus the jury would consider testimony concerning the development, adaptation, and functioning of these processes and controls." 20 By this standard a mental condition must have behavioral consequences to qualify as "mental disease" for legal purposes. Thus, the psychiatrists' termi- nology does not control the question of "mental disease," but rather the conse- quences of the mental condition control it. "What psychiatrists may consider a `mental disease or defect' for clinical purposes, where their concern is treat- ment, may or may not be the same as mental disease or defect for the jury's purpose in determining criminal responsibility." ~ The recognition of this dichot- omy of the medical and legal standard is long overdue and the candid handling of it in McDonald should bring much clarity to the confusion wrought by medical witnesses' testimony. It may be, though the court has not yet so ruled, that it will be improper to put the question to a medical witness: "Doctor, on the basis of your examination of the defendant and his medical record, was he, on Janu- ary 2, 1963, in your opinion, suffering from a mental disease?" Under the old Durham rules, this question was a common one, and an affirmative answer could wrap up the ball game. While McDonald does not formally abolish the "product" element, it does reduce its significance. It is apparent that a finding of "mental disease," with the consequences required under McDonald, much reduces the significance of 16 Id. at 3-4. 17104 U.S. App. D.C. 27, 259 F. 2d 184 (1958). 18 No. 10.304. D.C. Cir.. Oct. 8. 1962~ at 5-6. 19 E.g., Hawkins v. United States. 112 U.S. App. D.C. 257, 310 F. 2d 849 (1962). 20 No. 16,304, D.C. Cir., Oct. 18, 1962, at 7. ~ Ibid. PAGENO="0096" 90 AMENDMENTS TO CRIMINAL STATUTES OF D.C. a second-step finding that the crime was the "product" of the disease. Once the jury finds that the effects of the mental disease are present which McDonald requires, the issue of "product" relation with the crime will in many cases be virtually decided. If the jury finds the defendant suffering from a mental condition which impairs his control over his behavior, which is the McDonald standard, then it is an easy jump to the finding that the mental condition caused the particular behavior involved in the criminal case. The government's burden of proof is substantially redistributed-not reduced, but redistributed. LTnder McDonald the government has the burden of proof beyond a reasonable doubt to show that the defendant was not suffering from a mental disease which impairs control of behavior, or that the crime was not a product of that disease. Where a defendant did in fact not suffer from that kind of mental disease, it will probably be less difficult for the government to carry its burden than it was under Durham to prove that the defendant did not suffer from a mental disease of any kind. But if the jury finds against the government on that issue-that is, finds that the defendant suffered from a mental disease which impaired his control of behavior-it will be more difficult under McDonald than it was under Durham to prove that the criminal behavior was not caused by the mental disease. If control over behavior in general is found to be impaired by the mental disease, it will be virtually impossible for the government to sort out the particular criminal act and show that it alone of the defendant's total con- duct was not the result of that impairment. This is not to say that the McDonald standard makes the government's case harder, but only that the case will swing more completely on the issue of mental disease. As prosecutors, we are, on the whole, better off. In this respect the McDonald rule is not dissimilar to the standard of responsi- bility proposed in section 4.01 of the American Law Institute Model Penal Code and proposed for New York. Under the ALT rule, there is no question of causal connection between mental condition and the particular crime, but only on examination of mental condition and its behavioral consequences. Under Mc- D&nalcl, the causal connection between mental condition and the particular act is still involved, but it is the caboose on time train. Its direction is determined by the finding of behavioral consequences of the mental condition. MEDICAL PRACTICE UNDER "DURHAM" AND M'DONALD" So much for legal experience under Durham and for the legal changes wrought by McDonald. It remains to examine the application of the two by the psy- chiatrists, chiefly those at St. Elizabeths Hospital, where most of the defendants are examined. After pretrial mental examination under District of Columbia Code, section 24-301, the practice of both St. Elizabeths and District of Columbia General Hospitals has been to report to the court on mental condition and causal con- nection with the crime. The report identifies a mental disease, if any, and states an opinion one way or the other, or demurs, on the question whether the act was a "product." There is reason to believe that the more experienced doc- tors are reluctant to make a finding of mental disease without some evidence of its effect on conduct. They tend to look for behavioral consequences, as one element of mental disease, in rather the fashion suggested in McDonald. This was medical practice under Durham even before 1[cDonald. The practice ap- pears to have resulted partly from the native skepticism of doctors and partly from an awareness on their part that the "mental disease" finding was to be used for a criminal responsibility test and therefore should have a built-in relevance to responsibility for behavior and to the defendant's pow-er of choice. Such an approach to the finding of mental disease is not, in many cases, used by the more junior staff psychiatrists. On the contrary, many of the junior medical staff appear to approach the question from the opposite angle, and seem disposed to infer mental disease from the starting point of criminal conduct. The result of this approach, of course, is to resolve both the mental disease question and the "product" question against a finding of responsibility. It is more owing, perhaps, to the liberal trend in medical analysis, than to the legal standards of Durham, that there has been a steady and rapid increase in PAGENO="0097" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 91 acquittals by reason of insanity in the District of Columbia. The statistical ex- perience is as follows: Fiscal year Defendants tried * Defendants acquitted by reason of insanity Percentage insanity acquittals of defendants tried 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 1,017 600 485 503 485 570 525 438 521 516 3 9 12 21 12 21 35 36 66 67 0.29 1.5 2.5 4.2 2.5 3.7 6.7 8.2 12.7 13.0 One cannot say that the present rate of insanity acquittals is too high or too low~ without a fixed standard of comparison and without knowing whether that standard is sound or unsound. Perhaps before Durham too few were acquitted, and perhaps now too many. Certainly even a prosecutor cannot proceed from the premise that the insanity defense should never succeed. However, it is likely that such acquittals, as a percentage of total defendants tried, is higher in the District of Columbia than in any jurisdiction in the United States. A very significant fact that the statistics cited above do not reveal is that between two-thirds and three-fourths of our insanity acquittals are uncontested acquittals by the court sitting without a jury, upon waiver by both sides. Cases are handled in that fashion when the examining staff panel at the hospital is unanimous that the defendant had mental disease and that the crime was a product. When the Government lacks any contrary evidence and believes that the medical staff judgment is well supported, it simply submits its case-in-chief and offers, and indeed possesses, no rebuttal on responsibility. In cases of this kind, it would probably make little difference whether the District of Columbia had Durham, the American Law Institute proposal, or McDonald. Doctors who will not make a finding of mental disease without being satisfied that there is a substantial deprivation of behavior control would probably find the same way under all three tests. Apparently they were satisfied of this in these un- contested cases where the panel was unanimous. And in such cases, of course, one would expect the same result from the liberal medical school which tends to infer mental disease from criminal conduct. In more difficult cases, however, amounting to one-fourth to one-third of the cases where the issue is raised, it may be that the more skeptical school of medi- cal thought will find fewer cases of mental disease under McDonald than under Dus~ham. It is too early in McDonald's career to know. I have my doubts. I think the same medical approach will be used as formerly. The behavioral consequence of mental disease is now part of the legal definition, but that fact will not much alter the analysis of a doctor who always used it, anyway. The real point is that the skeptical school of medicine appears to be dying out among the government staff physicians. This fact is far more important than the legal difference between Durham and McDonald. My own guess is that insanity acquittals will continue on the rise. It may very well be that the relevant ques- tion is not so much whether Durham or the Model Code is the preferable legal test of responsibility, as what kind of psychiatrists will administer either stand- ard. I do not believe that the adoption of the Model Code provision in the Dis- trict of Columbia would make nearly as much difference in the analysis of psychiatrists or in the acquittal rate as would a less liberal attitude on the part of the medical profession. But I should think that even the most liberal psy- chiatrist is closely harnessed by the M'Naghten standard, and that a change These figures relate to the U.S. district court only; municipal court figures are not included. 25-260-64----.pt. 1-7 PAGENO="0098" 92 AMENDMENTS TO CRIMINAL STATUTES OF D.C. in jurisdictions which follow that standard to the ALl standard would greatly increase the acquittal rate. As I have said, this is not necessarily something to be avoided. One final word on the subject of medical application of the Durham and Mc- Donald. rules. The matter of psychopaths is a difficult problem in the District of Columbia, and one on which doctors divide. Mere repeated anti-social con- duct is normally not categorized as mental disease, but the difficulty arises when that phenomenon accompanies a "personality disorder," such as a diagnosis of "inadequate personality." Some doctors call it mental disease; others do not. Perhaps the matter can safely be left to the evidence in each case. But it should be noted that the exception in the ALl proposal for "repeated criminal or other- wise antisocial conduct" would not necessarily except a personality disorder diagnosed from psychological tests. Many doctors would call that disorder "mental disease" for medical purposes. CONCLUSION In summary, our experience in the District of Columbia under the Durham rule has been an unhappy one. From my point of view the legal changes in the standard of responsibility and in subsidiary rules, resulting from the Mc- Donald decision, are highly desirable. The legal standards now obtaining in the District of Columbia under McDonald should result in a state of affairs satisfac- tory from a prosecutor's point of view. However, at the same time they will provide a standard that will be fair to defense and prosecution alike, and will permit the advantageous use of medical learning wtihout permitting psychia- trists to run riot. Mr. AoJi~soN. Thank you, Mr. Chairman. All three of these problem areas of the Durham rule were, from our point of view, favorably clarified in a decision of the U.S. Court ofAppeals of the District of Columbia in McDonald v. United States (312 F. 2d 847 (1962)). Briefly, that opinion worked three signif- icant changes: (1) In order to raise the issue of insanity as a defense, a defendant must offer some evidence of a mental disease or defect, the precise quantum of evidence being more than a scintilla, though not so sub- stantial as to require, if uncontroverted, a judgment of acquittal; (2) The opinion dispelled the previous notion that, if the Govern- ment had no affirmative rebuttal evidence, it must suffer a judgment of acquittal. The court emphasized that the question whether expert testimony may overcome the presmnption of sanity depends upon the weight and credibility of that testimony, and weight and credibility are for the jury. This, in effect, is to say that nearly every case, no matter how one-sided the evidence might appear, must go to the jury for an evaluation of the testimony supporting the defense of insanity. The CHAIRMAN. If I may interrupt you there, Mr. Acheson. I am not quite clear how that varies from the general rule of the law. I thought that the general rule of t.he law was that the weight or credi- bility of testimony or the credibility of witnesses always went to the jury. Does Durham raise a different standard? Mr. ACHESON. Well, prior to McDonald, Mr. Chairman, there were a number of cases in the court of appeals in which the court of appeals frequently divided panels of the. court, held that evidence was so slight in favor of the Government on the insanity issue, that the trial court should have directed the verdict of acquittal by reason of insamty. One such case was Wright v. United States, 102 U.S. App. D.C. 36, 250 F. 2d 4 (1957), and there were many more along that line. Prosecutors and district judges were never clear just how much evi- dence it took to rebut. the insanity defense, to get to the jury. PAGENO="0099" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 93 Now, in McDonald, the unanimous court made it quite clear that except in a very rare case, almost uncontested the issue must go to the jury. The CHAIRMAN. Thank you. Mr. ACHESON. (3) The court redefined "mental disease or defect," the key phrase of the Durham rule, so as to leave the character of the mental disease less to speculation and less to the terminology of the medical witness. The definition is "any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls." You will see that in this definition is a new ingredient, the ingredient of the casual consequence of the mental condition upon conduct. This new ingredient thus limits the type of abnormal mental condition which will qualify as a mental disease. It limits mental disease in a particularly relevant way-~by using the criterion of effect on conduct. This is particularly relevant because it is responsibility for conduct which is at issue in a criminal trial where the insanity defense is raised. In formulating these new principles governing criminal responsi- bility, the court of appeals acted unanimously through all of its judges sitting en banc. In our experience as prosecutors since the McDonald decision, the principles of that case have appeared to us to be workable, sensible, and intelligible to juries. The decision is only a year old. It has been applied more or less uniformly by district judges in instructions to juries and has considerably diminished the controversy over in- sanity instructions in the court of appeals. We suggest, therefore, and I speak for the Department of Justice and the Law Enforcement Coun- cil on this question, that the courts of the District of Columbia be al- lowed to gain further experience with the McDonald rules, without further changes by legislation at this time. We believe that under McDonald we are going in a direction that makes sense, and that our courts are developing promising jurisprudence. In its effect, the test of criminal responsibility in McDonald is very close to that formulated in title II of the bill which, of course, is based upon the American Law Institute's model penal code. Both tests make exoneration from responsibility rest upon impairment of controls by a mental disease or defect. Thus, I believe that McDonald has accomplished the main objective of subsection (a) of title II of this The CHAIRMAN. At that point, Mr. Acheson, might I ask you how close title II of H.R. 7525 is to the model law suggested by ALT on the question of insanity? Mr. ACHESON. It is identical, Mr. Chairman, except in one respect. If you look at the bill, title TI, you see section (a), subsection (1). The CHAIRMAN. Yes. Mr. ACHESON. At line- The CHAIRMAN. I am following it. Mr. AcmisoN. At line 18. The CHAIRMAN. Well, let us read that sentence (a) (1) into the record, it is just one sentence and I understand that this is the heart of title II. Is that correct? PAGENO="0100" 94 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Mr. Aci~sox. That is right. It reads: A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to know or appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The CHAIRMAN. The House passed this section? Mr. ACHESON. That is right. The CHAIRMAN. That is the standard for insanity. Now, what does the ALT say? Mr. ACI~SON. The ALT, instead of using the word "wrongfulness," uses the word "criminality." As I recall, that is the only difference between the two paragraphs. The CHAIRMAN. Someone handed me this from the ALT and I think I will read it into the record, and I would like to have you point out what the actual differcnces are. If I am correctly informed, the House action made a very radical change in the ALT model penal code definition-now, it may be right or may be wrong, but I would like to have you comment on it at this time realizing, of course, that this is a technical question in an involved and difficult subject. The ALT section reads as follows: A person is not responsible for criminal conduct if at the time of such con- duct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The House in formulating the insanity test as contained in con- tained in H.R. 7525, deleted the word "criminality," and in place thereof inserted the word "wrongfulness". Mr. ACHESON. Well, Mr. Chairman, let me ge.t my papers here from the back of the room. The CHAIRMAN. It has been called to my attention also that in addi- tion to that, another change by the House was the addition of the words "to know". Mr. ACHESON. That is correct. The CHAIRMAN. Now, what is the difference? Mr. ACHESON. I think it is only a semantic difference. The CHAIRMAN. Now, then, the minority opinion of the House says, and I am reading from page 91 of the House report on the bill: The test contained in the bill has been presented by some as the American Law Institute test. The fact, however, is that it differs from the American Law Institute test in a critical respect. The phrase "to know" does not appear in the ALT test, which is set out in the footnote below. The committee has taken this part of the test from the long discredited "knowledge of right and wrong test" adopted by the English House of Lords in 1843 in the ]i'iYaghtem case (10 01. & Fin. 200 (H.L. 1843)). In other words, that part of the proposed test which provides that a defendant shall be criminally responsible unless he lacks capacity "to know * * the wrongfulness of his conduct" is an attempt to perpetuate the 1843 English rule-a rule adopted long before the rise of modern psychiatry. Mr. ACHESON. Mr. Chairman, let me explain this clearly as I can. This is very convoluted. The CHAIRMAN. Very what? Mr. ACHESON. Very convoluted. The CHAIRMAN. I still didn't get it; what kind of a word was that? Mr. ACHESON. Convoluted, Mr. Chairman. The House com- mittee- PAGENO="0101" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 95 The CHAIRMAN. You have me on that one. What does "convoluted" mean? Mr. ACHESON. A very twisted and complicated area. The CHAIRMAN. Oh, I see. Mr. AGHESON. And the House committee, I think, is mistaken in its judgment of the effect of the- The CHAIRMAN. You understand, this is the minority report of the committee that I read from. Mr. AOHEs0N. Oh, I see. The CHAIRMAN. This is not the majority view. This is the minority opinion or view. Mr. ACHESON. Yes; I understand. If the words "to know" appeared there alone without the word "appreciate," then you would have this result: If a man shot-if A shot B and at the time that A shot B he suffered from a mental defect or disease, as the result of which he thought that the gun was a banana and he was offering B a banana to eat, he would, of course, be acquitted by reason of insanity. But if the words "to know" appeared there alone as they did under the ancient M'iYaghten ruling, if A was perfectly clear that he was holding a gun and not a banana, the chances are that he would be convicted. Now, when you add the words "appreciate the wrongfulness of the conduct," you eliminate the effect of the words "to know." If A in that case knew that he was holding a gun and not a banana, but at the same time he was suffering from a mental disease or defect so that he thought it was perfectly just to shoot B as a result of a hallucination that B was going to shoot him, then he would still be acquitted under the ALT rule, acquitted by reason of insanity. Now, that illustration is intended to show the committee that by putting the words "or appreciate" in there, making the test one of understanding of conduct, you really eliminate the significance of the IJ1'Naghten term "to know," which is here in the same rule-do you follow me? The CHAIRMAN. No; I am not sure that I do, but I will read the written transcript and see if I do then. But of this I am sure, that you do not agree with the minority report of the House insofar as it says that it differs from the ALT model law in a critical respect. Mr. ACHESON. That is correct. The CHAIRMAN. And you say this is not a critical defect. Mr. ACHESON. That is correct. The CHAIRMAN. And it is left in the alternative, "know or appreci- ate." Mr. A0HEs0N. That is right. Let me put it another way now, to make it clear, if I may. By putting in the language "to know or appreciate" they are putting in a very stern test and a much more liberal test, both in the alternative. The CHAIRMAN. It is an alternative test. Mr. ACHESON. Yes. Now, if the defendant can satisfy the liberal test, he will be acquitted by reason of insanity and since it is much more likely that lie will satisfy the liberal test before lie satisfies the very stern test, then the effect of "to know"-it is almost meaningless. The CHAIRMAN. If he satisfies this test. PAGENO="0102" 96 A~NDMENTS TO CRTh~Th~AL STATUTES OF D.C. Mr. AdilEsoN. Tha.t is right; and in 99 cases out of a hundred, he will be able to satisfy the requirement that he does not appreciate the wrongfulness of his conduct, much more easily than he can satisfy the test that he does not know what he was doing. The CHAIRMAN. Thank you. Mr. ACHESON. Now, Mr. Chairman, I have some figures on the num- ber of acquittals by reason of insanity which I shall not read, except to say that they show that from 1954 that approximately 2 or 2½ percent of the defendants tried were acquitted by reason of insanity. And in 1955 that figure climbed and it climbed fairly slowly to 1960 and then it climbed very steeply so that in 1962 the figure of acquittals by reason of insanity was 13 percent of all defendants tried. Now, the figures dropped again, they dropped from 67 acquittals by reason of insanity in 1960, to 50 in 1963 and in percentages it dropped from 13 to 11.2 percent. I have checked that against the number of trials that we had in the same fiscal year. The number of trials decreased 21 percent from 1962 to 1963; the acquittal figure is decreased by 25 percent. Therefore I rather suspect, Mr. Chairman, that the decrease is a function of the lesser volume of criminal trials rather than the result of the new law; namely, the McDonald decision-but this is specu- lation. The CHA~MAN. Well, the figures certainly have some meaning. Mr. ACHESON. I think-let me say this, Mr. Chairman: It is not necessarily a vindication of McDonald to have the insanity acquittals drop, though. I think they were too high before. But you can only say that an insanity acquittal was wrong if, in fact, the defendant was not insane. I am just unable to tell whether 57 acquittals by reason of insanity was too high in relation to the number of people that were really insane. I think the number of cases in which the defense was fraudulent and successful was very, very slight. The CHAIRMAN. I think that the burden of your testimony is that as the prosecutor for the District of Columbia you are satisfied that the condition of the case law as it is now as the result of the McDonald decision is satisfactory, in the definition of insanity, in the test re- quired, and that you do not see the need for a statutory enactment. That is what you are saying, is it not? Mr. ACHESON. That is absolutely correct. I would like to leave the door open, Mr. Chairman, however, to see how the McDonald rule is applied over the next 2 or 3 years. If we have the experience with it over that period that we had in the last year, I think that we could say that we would he entirely satisfied with the case law. The CHAIRMAN. Do I understand you further, as a result of the McDonald case, the case law is substantially the same as that laid down by t.he ALT? Mr. ACHESON. I believe it is very substantially the same. The CHAIRMAN. Well, if that were true and if it is substantially the same, then what is the argument against writing it into the statute so that no one has any doubt exactly what it is? Mr. ACHESOX. Well, only this, Mr. Chairman: A unanimous court has, with very painstaking care, formulated a rule which it is prepared PAGENO="0103" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 97 to apply. They are happy with the rule. The Government is happy with the rule. The District judges appear happy with the rule. Rather than disturb the application of that rule by changing the words on which it is based, I think the less agitating course of action would be to leave the courts to apply that rule in their own way. I am afraid that a legislative act which changed the terminology, although slightly, would still give a foundation to judges to start tinkering with this unanimous rule that they laid down in McDonald and we would be back, I think, to very diversified and controversial disagreements in the court of appeals and in the District courts as to what the legislative rule meant. The CHAIRMAN~ Thank you, Mr. Acheson. Now, the staff has suggested a number of questions to be propounded to you, and I would like to ask them of you, and if any of them will take any research on your part or any time, just take the time for that. The first question suggested by the staff is: What is the insanity test in criminal proceedings in the District of Columbia at the present time? I think you have already answered that the test is the test laid down in the McDonald case. Mr. ACHESON. That is correct, Mr. Chairman. The CHAIRMAN. And the test is essentially the ALT test? Mr. ACHESON. That is exactly right, Mr. Chairman. The CHAIRMAN. And the second question is: Even though the ap- peals court has set forth insanity rules in the Durham and McDonald cases, is it still permissible for the trial court where the testimony sup- ports it, to supplement the insanity instruction in terms of irresistible impulse, the M'Naqhten right and wrong test, and as that test was modified by the Holloway case? Mr. AoHnsoN. Well, that is permissible only if the district judge makes it very clear that irresistible impulse is only one of a number of examples of the way that mental condition can affect conduct. If he makes it a synonym, an illustration that is intended to he syn- onymous with Durham or McDonald, he will probably be reversed, even now. The leading case on that proposition is Campbell v. The United States, 113 TJ.S. App. D.C. 260,307 F. 2d 597 (1902). The CHAIRMAN. In your opinion, was the McDonald case de- cided by the appeals court as a supplement to the Durham insanity case in order to allow the jury to consider a defendant's mental capac- ity for choice and control? Do you wish to enlarge in that area? Mr. ACHESON. It serves as a clarification of McDonald. I think it is fair to say that that is what it is. The CHAIRMAN. Clarification of Durham? Mr. ACHESON. I am sorry, of Durham. I don't believe it was in- tended to be of Durham, altogether. I don't-I am not privy to the secrets of judges, but I suspect that when they are trying to get a unanimous court to sign on to an opinion like the McDonald opinion, they cannot be too categorical in what they say it is going to do. I think it was intended by the full court to be a clarification-a supple- ment, using your phrase. The CHAIRMAN. How many other Federal jurisdictions, if you know, follow the insanity test as it is now defined for the District of Columbia, how many follow the Durham and McDonald tests? PAGENO="0104" 98 ~n~w~rs TO CRIMINAL STATUTES OF D.C. Mr. AcrrEsox. Well, now, the third circuit in a case called United States v. Curren~. 290 F. 2d 751 (1961), followed the test whether the defendant is suffering from a mental disease as a result of which he cannot conform his conduct to the requirements of law, half of the American Law Institute test-this is in the Gurrens decision. I think the opinion was by Judge Biggs, one of the very distinguished judges of that circuit. It has the effect, I think, of McDonald. Now, the seventh circuit in the case of Dusky v. United States in- dicated that it would not follow the Durham rule, as the Durham. rule was prior to McDomaid and stated that if the question came before it squarely it would be inclined to follow the American Law Institute's formula.. The CIiAIR~rAx. Do you know if other Federal jurisdictions which have abandoned the M~ATaghten right and wrong test have adopted the American Law Institute insanity test? I think you have partly answered that. Mr. AOHEsoN. Well, partly, but I cannot speak for the other juris- dictions, Mr. Chairman, I am not familiar with the case law. But, of course, the question arises so infrequently in the Federal court of ap- peals outside of the District of Columbia, because usually the in- sanity defense is made only in connection with crimes of violence. It is not made in connection with security frauds or post office swindles, that kind of thing, usually in a crime of violence, of course, the Fed- eral courts in our district have jurisdiction, local jurisdiction over crimes of violence. But in other Federal district circuits it is only the rare case where a murder or a robbery or other crime of violence is committed on an Indian reservation or on a Federal reservation of some kind that would get the question into a Federal court. So that the case law is very slight indeed outside of our district. The CHAIR~rAx. The next suggested quest.ion I think you have answered: Is it a. fact that the insanity test for the District of Colum- bia has emerged from a number of court decisions and is not set forth in statutory form? The answer is probably "Yes"; I suppose. Mr. AcHEsox. Yes, they are and on that point I have a few coin- ments on the remainder of title IT-I don't know whether the com- mittee wishes to hear them now. The CHAniMAN. We would be glad to hear them. Your prepared sta.tement went only to the definition. Mr. AcHEsox. That is right. The CHAniMAN. And now you want to comment on the other sec- tions of title II? Mr. AcBIsoN. Yes, sir. The CHAniMAN. I think this could be the proper place for you to comment on those. Do you have a prepared statement on that? Mr. Acm~soN. No; I do not, but I can be very brief. As I went into the rest of title II, it was clear to me that a great many of the provisions there are already taken care of in the District of Columbia Code or closely paralleled in the practice that we follow under our court rules. Now, there are exceptions. On page 3 o~ the bill at line 16 the bill provides for written notice to the prosecution of the intention of the defense to rely on the insanity defense. We do not now have any such requirement. It is possible under our practice here for the defense, particularly if the defendant PAGENO="0105" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 99 is out on bond, to be examined by a private psychiatrist, prepare an insanity defense and come to trial at the last minute with medical witnesses, leaving the Government wholly unprepared to meet the defense. The CHAIRMAN. So you like that section. Mr. ACHESON. That is right, Mr. Chairman. Now, this is not a frequent problem, and I do not want to say that orderly progress of the trial depends on written notice in advance. But every now and then we run up against this problem and it would help if we had a statute requiring advance notice. The CHAIRMAN. Just so that I can have that clear, with regard to section 201(c) (2)- Mr. ACHESON. That is correct. Now, subsection (3) provides that the verdict shall state when the acquittal is on the ground of mental disease. That is now provided for substantially in the District of Columbia Code, title 24, section 301(c). Now, the next page, under subsection (e), subsection (e) pro- vides- The CHAIRMAN. I don't know that I follow you there. Mr. ACHESON. On page 4 of the bill, Mr. Chairman. The CHAIRMAN. Yes, line 4. Mr. ACHESON. That is right, line 4. Now, that subsection provides for the procedure for determining the competency of the defendant to stand trial, all the way over to page 6, down to line 10. Subsection (e) describes exactly what will be done to provide examination, hearings, the determination of competency by the court, et cetera. Now, those provisions are pretty similar in the procedures that they require, to title 24 of the District of Columbia, section 301(a). The terminology is different, but the procedures provided for are quite similar. The CHAIRMAN. What you are saying is that subsection (e), pro- ceduraiwise, is already incorporated into the District Code? Mr. AoI~soN. It does not add much to what we already have. The CHAIRMAN. Very well. It would not add anything? Mr. ACHESON. That is right. Now, subsection (f) provides for a court hearing on the issue of competency to stand trial-that again is not a great departure from what we already have in 301 (a) in title 24 of the Code. And that similarity will go down to page 7, line 12. Now, beginning with line 12, on page 7, the bill provides for what shall happen when the defendant is committed to the hospital to be restored to mental competency and the steps there provided for are not a great departure from what we now have provided for in section 301(b) of title 24. Beginning on page 8, line 9, subsection (4), there is a provision in the bill that in certain circumstances where the defendant is in- competent and has been in the hospital for a long period, the court may dismiss criminal charges and order him committed civilly. We do not have the statutory provision like this. We do, however, have a practice which rather closely follows this. In extreme cases, where it is clear that the defendant has suffered from mental incompetency for a long time and is likely to continue for a long time, we often dismiss the criminal charges against him PAGENO="0106" 100 AMENDMENTS TO CRIMINAL STATUTES OF D.C. and move in the civil courts to have him committed civilly to a mental institution. We do it under other statutory provisions. This subsection (4), therefore, while it would be a new statutory provision, unlike anything we now have, would call for a practice which we now follow and I think would add very little to our jurisprudence. The CHMR~rAN. Well, what do you actually gain by dismissing the crimmal charges, if he is going to be committed, what difference does it make whether he is committed civilly or under a charge of murder? Mr. Ac~soN. We are talking here about defendants who have iiever been tried. They are in the hospital awaiting trial, pending a restoration of mental competency. Under our law as it now stands, we cannot move in the civil courts for a civil commitment if there is a criminal charge pending against a defendant and, therefore, we must dismiss the criminal charges before we move for civil commit- ment a.nd, of course, that is what this subsection provides. But I think it would add very little to the practice that we now follow, or our authority to follow it. Now, at the bottom of page 8, in subsection (g) of the bill, there is a provision that the court may order a judgment of acquittal by reason of insanity solely on the basis of a medical report. I think there are risks in such a provision, particularly in a case where a medi- cal report finding a defendant insane might be the result of a divided panel of doctors. In cases where panels of examining doctors are divided, we usually take the case to a jury trial. It seems to me that a jury question is presented where doctors are divided and I would not like to see au- thority in the judge to override that division of medical view, and order an acquittal on the strength of his own selection of one medical view as against another. I would just like to call the attention of the committee to this pro- vision on page 9 of the bill, line 9 where it provides for the testimony of psychiatrists in trials. Under our present case law, notably Jenkins v. United States, 113 U.s. app. D.C. 300, 307 F 2d 637 (1962), a medical witness may be, not a psychiatrist, but a clinically trained psychologist. Under that decision, a psychologist who does not have medical train- ing, but who is familiar with insanity cases and hospital work, familiar with the records, familiar with the psychological testing procedures, is allowed to come in to court in a criminal prosecution and express a view on mental disease or express an opinion or view as to whether the criminal act was the product of a mental disease. This statute would eliminate that, and limit expert testimony to psychiatrists. I do not have any particular comments on the balance of this bill, Mr. Chairman, except to say that, on page 11, there is a provision be- ginning at line 7 for a hearing in court on the question of the release of the patient from a mental institution, and that in the procedure provided for here in the bill the court may appoint at least two quali- fied psychiatrists to examine the person. Our procedure under our present law is very different from this. This would substantially change the procedure and I think would sub- stantially involve us in more litigation over releases from hospitals, more than we now have, under our present procedure. PAGENO="0107" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 101 Under the present procedure the court may act on the certificate of the hospital unless the Government objects to a release recommended by the hospital, and in that case there is a hearing at which the hospital doctors who participated in the examination are called as witnesses. Now, this bill would add to that procedure the appointment of ad- ditional outside doctors who would come in and give their testimony after examination and I think it would multiply the cases of divided medical opinion and would multiply the hours spent in court by doctors over the question of release from mental institutions. One last comment- The CHAIRMAN. Pardon me. I gather you are opposed to that sec- tion, are you not? Mr. ACHESON. Yes, Mr. Chairman. I am opposed to it. I think it would be inconvenient, to say the least. It would be an additional burden on the staff of St. Elizabeths Hospital because, in almost every case where their view was that the defendant should not be released from the hospital, the defendant will attempt to invoke this procedure and have additional doctors appointed by the court and take the case to court. Not only the new doctors but the original St. Elizabeths doctors would have to come to court and testify. And they spend so much of their time testifying now that I thuik they would be spending more time in court than in the hospital, under this provision. On page 13 of the bill, and I am merely flagging it to the attention of the committee, page 13, line 11, there is a provision that the jury should not be instructed by the court of the consequences of a verdict of guilty, or acquittal by reason of insanity, that is, they should not be told that, if acquitted by reason of insanity, the defendant will go to the hospital instead of going free. Under our present case law, in the case of Lyles v. The United States (103 U.S. App. D.C. 22, 254 F. 2d 725), the District judge must instruct the jury as to the consequences of an aquittal by reason of insanity, unless the defense affirmatively waives that instruction. The CHAIRMAN. You say you are flagging that to the attention of the committee- Mr. ACHESON. Well, Mr. Chairman, it does not make much dif- ference to me whether the District judges give that instruction or do not. I think it is probably better that they should give it but I don't feel strongly about it, I just simply wanted the committee to know about this provision. The CHAIRMAN. Is that an ALT recommendation? Mr. ACHESON. This is an ALT recommendation also, and it is the only provision of the bill that radically differs from our present prac- tice and, in fact, is opposite to it. The CHAIRMAN. And your judgment on it is that- Mr. Aci-lEsoN. Well, my judgment is, and I don't think it is a vital thing, but I think it is better that the jury should know the conse- quences of acquittal and the consequences of conviction. If the jury thinks, for example, that if acquitted by reason of insanity a defend- ant is on the street, the chances are that they may not acquit, in a case where the defendant really had a serious mental disease and really is not responsible for the crime. PAGENO="0108" 102 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. But that is a requirement, is it, under the statutory law orcase law? Mr. ACHE50N. Under the present case law. The CHAIRMAN. Present case law but not the statutory law? Mr. ACHESON. That is right, requiring the District judge to tell the jury that if the defendant is acquitted by reason of insanity he will not go free but will go under compulsory commitment to a mental hospital. The CHAIRMAN. You say that you favor that instruction ? Do I understand you correctly or do you not favor the instruction? Mr. Aci-lEsoN. No, I favor that instruction. The CHAIRMAN. Therefore, you would be opposed to this provision? Mr. AcI-lEsoN. I am opposed to it-. I do not feel deeply about it, Mr. Chairman, but I prefer our present practice to the provision of this bill. The CHAIRMAN. Well, you say that is the only item that has a radical change, is substantially different, in title II ? Mr. ACHESON. That is right, Mr. Chairman. The CHAIRMAN. But is different from your present practice or stat- utory law or case law. Mr. A0HEs0N. That is right. The CHAIRMAN. The definition of insanity by the ALT, their defini- tion is very, very similar to the present case law as enunciated in the District. Mr. Acm~soN. That is right. The CHAIRMAN. And this is the only change that you say varies from your present statutory or case law in the District of Columbia? Mr. ACHESON. Under this bill I can imagine cases where tile jury, not knowing that the defendant would go to a mental hospital, would convict him even though he is sick and so sick as to be irresponsible, and I would think that was an injustice. Now, those are the comments that I have on the rest of the bill and if there are any questions on those parts, I would be glad to try to answer them. The CHAIRMAN. Summing up your analysis of title II, I under- stand that section 201 (a) (1), which is the definition section, of the House bill, in your opinion is not necessary because it is substantially the case law as set out in Al eDortald , is that correct? Mr. Arni~sox. That is right. The CHAIRMAN. As to the balance of tile sections under title II you feel that they are not necessary because they are already covered by either statutory law or case law in the District of Columbia. Is that correct? Mr. ACHESON. Primarily statutory law. Tile CHAIRMAN. You mean primarily statutory law with the excep- tion of tile sections 201(h) (4) ; 201(g) (1) ; 201(h) (2) and 201(i) (1)? It is my understanding that under section 201 (i) tile jury is not to be told of the consequences of a- verdict of acquittal by reason of insanity. This provision in tile bill varies from your present instructions given by tile district courts in msamty cases, where tiley inform the jury of the consequences of an acquittal by reason of insamt-y. Is it my under- standing that you favor the present- instruction? Mr. ACHE50N. That is right. PAGENO="0109" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 103 The CHAIRMAN. And which is case law and not statutory? Mr. ACHESON. That is right. The CHAIRMAN. Therefore, as for the remaining sections of title II, you would be opposed, mildly opposed, let us say, to this particular sec- tion; is that right? Mr. ACHESON. That is right. The CHAIRMAN. Other than that there are no radical changes. Mr. AcHE50N. And just so it is clear on the record, on page 11 the provision beginning at line 7 I think would seriously complicate our present court procedures governing release from the hospital. The CHAIRMAN. You would be opposed to that because unless it were properly qualified it would unduly encumber the present pro- cedures, as I understand your testimony and you do say in that con- nection that if that were to become the practice in the courts that maybe the doctors would be in court even more often than they are now. Mr. AOHE50N. That is right. The CHAIRMAN. Now, let me ask you just a few more questions, if you don't mind. Mr. ACHESON. Yes indeed, Mr. Chairman. The CHAIRMAN. You may or may not have this and if you do not you may supply it for the record-the suggested question is as follows: Is it a fact that the vast number of the States have their insanity law set forth by statutes? Mr. ACHESON. I don't know.. The CHAIRMAN. You do not know? Mr. ACHESON. I do not know the answer to that. The CHAIRMAN. Well, I am not asking you to research that. Mr. ACHESON. I know that New York has its insanity test defined by statute and there is a big controversy going on at the present time there over whether they should abandon the McNaghten rule there and adopt something like the American Law Institute test. The CHAIRMAN. Well, I know in my own State of Nevada, where you have a definition of insanity, that having the definition in a statute, the mere fact that it is set out in the statute, and you have changes in the words in the statute, it does not make it any less difficult than where you have a rule or definition of insanity not set forth in statu- tory form as in the District of Columbia. Mr. ACHESON. That is a very, very difficult problem. And I think you put your finger on precisely the reason why one ought not to pass a statute even though it is like the case law test under McDonald be- cause, as you say, you change the words in the statute and immediately you start a train of new jurisprudence and if you had a pretty good test before, you are likely to get it loosened up. The CHAIRMAN. I would be glad to have you clarify this be- cause the argument otherwise is that if you have the ALT test and that is substantially the test laid down by the case law in the McDonald decision, then there would be no harm in having a statutory definition. Mr. ACHESON. I strongly disagree with that, Mr. Chairman. The CHAIRMAN. Then you would be in disagreement to having the definition of insanity and the instruction to be given, set forth in statutory form. Mr. ACHESON. Correct. PAGENO="0110" 104 AMENDMENTS TO CRThIINAL STATUTES OF D.C. The CHAIRMAN. That is the point you are making? Mr. ACHESON. Yes, sir. The ChAIRMAN. The next suggested question-I think you have answered. The question is whether it would be desirable for the defendant to provide notice to the government of an intention to plead an insanity defense. I think you said that you liked that section of the suggested title II concerning written notice to the prosecution. Mr. AchlEsoN. I like that, but the problem does not arise more than once a year or so, I would say, with us. The CHAIRMAN. I see. Mr. AOHEs0N. There is a problem also with that provision of the bill, as to how to enforce it if the defendant does not give the written notice. There seems to me at least to be a serious constitutional ques- tion whether you can deprive him of the insanity defense. And if you cannot deprive him of it, then that provision of written notice would have no sanction and would- The CHAIRMAN. I thought that you were interested in having notice and tha.t you would be in favor of that provision. Mr. ACHE50N. Well, it is a sanction that really ought to be directed against the lawyer and not against the defendant, as it is under the bill. * The CHAIRMAN. Well, one further suggested question: Does it ap- pear desirable to have the defendant carry the burden of establishing his insanity defense by a preponderance of evidence? Where is that burden as of now? Mr. ACHESON. Well, in the District of Columbia the government, if the insanity defense is properly raised by a showing, some evidence of mental disease, the government has the burden of providing beyond a reasonable doubt either that the defendant does not have a mental disease or that the crime was not a. product of the mental disease. The CHAIRMAN. And then the burden shifts, is that right? Mr. ACHESON. Then the burden shifts. Now, under the law of Oregon, or certainly as it was a year or two ago, I am not sure now, under the law of Oregon the defendant had to show beyond a reason- able doubt that he was insane and not responsible. In about 22 States, Mr. Chairman, the defendant must show by a preponderance of the evidence that he was insane and not responsible. So the answer to the question is that the States are divided on how they place the burden of proof on this issue. The CHAIRMAN. Well, the suggested title II, subsection (c), line 6 to 10 on page 3 reads as follows: Mental disease or defect is an affirmative deferrse which the defendant must establish by a showing of substantial evidence. That places the burden on the defendant. Mr. ACHESON. I don't believe that provision changes the burden of proof. I think it is intended only to require that the issue be raised initially by a showing of more than a scintilla of evidence. The CHAIRMAN. Are there sections within title II that involve the burden of proof? PAGENO="0111" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 105 Mr. ACHESON. I think not, no. There are none, Mr. Chairman. The CHAIRMAN. Then you say this is not a burden-of-proof section. Mr. ACHESON. This is not a burden of proof section, it is a section only requiring that the defendant raise the issue, introduce the issue into the case by a showing of substantial evidence and if he does that, then the burden shifts, as it now is, to the Government to prove beyond a reasonable doubt the opposite of his contention. The CHAIRMAN. Then if the section would become law it would have no effect upon the present case law in the District of Columbia as far as burden of proof is concerned? Mr. ACHE5ON. That is right. The CHAIRMAN. The burden of proof still starts with the defendant and after he has produced some evidence then the burden of proof shifts to the prosecution to prove the contrary? Mr. ACHESON. That is right, Mr. Chairman. This provision would make it a bit more difficult for the defendant to raise the issue initially, but if he did the burden of proof would remain where it now is. The CHAIRMAN. This question has just been suggested by the staff: Can you state in a sentence or two what the rule is in the District of Columbia on the question of mental disease or insanity or whatever you call it-do you have a sentence or a two-sentence definition that is the equivalent of the ALT rule on the question of criminal re- sponsibility? Mr. A0HEs0N. Let me read the crucial sentence from the McDonald opinion. The CHAIRMAN. You are going to read now from the McDonald decision? Mr. ACHE5ON. I am reading now from the McDonald decision of October 8, 1962. The CHAIRMAN. Where is that found? Mr. ACHESON. This is cited in my statement, Mr. Chairman. The CHAIRMAN. Very well. Mr. ACHESON (reading): The jury should be told that a mental defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and sub- stantially impairs behavior controls. The CHAIRMAN. This is from the McDonald case and is given as an instruction in all insanity cases by a presiding judge or by a jury? Mr. ACHESON. It is a mandatory instruction. The ChAIRMAN. It is a mandatory instruction; and your further statement that it is substantially the same as the ALT instruction. Mr. ACHESON. That is right. The CHAIRMAN. Thank you very much, Mr. Acheson. You have done a good job and I appreciate it, your testimony has been very helpful. Mr. ACHE5ON. Thank you. The CHAIRMAN. Our next witness is Dr. Dale C. Cameron, Super- intendent of St. Elizabeths Hospital. Dr. CAMERON. Thank you. The CHAIRMAN. You may proceed, sir. PAGENO="0112" 106 AMENDMENTS TO CRIMINAL STATTJTES OF D.C. STATEMENT OP DALE C. CAMERON, M.D., SUPERINTENDENT, ST. ELIZABETIIS HOSPITAL, WASHINGTON~ D.C. Dr. CAMERON. Mr. Chairman, members of the committee, my name is Dale Cameron. I am Superintendent of St. Elizabeths Hospital, WTashington, D.C. I deeply appreciate your invitation to present my views on H.R. 7525. Because of time limitations, the Department of Health, Education, and WTelfare has not approved nor disapproved my statement. It will later submit its views in response to the com- mittee's request for a departmental report. on this bill. 11.11. 7525 an act relating to crime and criminal procedure in the District of áolurnbia, concerns itself, in title II, with modifications in the District of Columbia Code relating to "Insane Criminals." I shall limit my comments to that title. The. proposed changes clea.l with such things as competence to stand trial, the definition of mental disease or defect excluding responsibility, burden of proof, and the legal effect of acquittal on the ground of mental disease or defect. It is apparent that a very so~rnd and long-honored concept under- lies this act-that is sound insofar as it goes. That. concept is well expressed by the quotation "our collective conscience does not allow punishment where it cannot impose blame." The difficulty with this laudable, but limited concept is that it focuses attention in criminal procedures on the moral issue of blame- worthiness to the almost total exclusion of what I believe to be at least equally important issues. It is to be hoped that at some future happy time "our collective conscience" in relation to criminal law will be as concerned with the prevention of unlawful acts resulting from mental disease and disorder and the treatment of mentally ill persons who have committed unlawful acts, as it now is with the cletermina- tion of guilt and the appropriateness of imposition of blame. If title II of H.R. 7525 is enacted in its present. form-and I sin- cerely urge that it not be-it will perpetuate, but with substantial modifications of details, the present system that requires jurors to con- sicler simultaneously two distinct and essentially unrelated but sepa- rable questions; namely (1) did the defendant commit the unlawful act charged, or as it is phrased with moral judgment connotations, "Is he guilty," and (2) if so, has the defendant an abnormal mental conch- tion directly or indirectly so related to the unlawful act that he should, because of our "collective conscience," be excused from blame? The first is a question of fact, the answer to which may be and usually is expressed in moral terms, though it need not be so expressed. The second is both a medical and moral question; that is, Is he so sick (a medical question) and his illness so related to the act charged (a mecli- cal question with substantial moral overtones because of the unlaw- ful nature of the act) that he should be held blameless (a moral question) ? The second question is almost always answered in moral terms. The uimecessarv comingling of these essentially unrelated issues in a single question. (1) makes for a needlessly difficult answer. (2) tends to leach to unduly rigid disposition of "guilty but ill" defendants, and (3) introduces unfortunate complications into the process of answer- ing the first or primary question of fact as to whether or not the cie- fenclant committed the act cha rgecl. PAGENO="0113" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 107 May I suggest that existing-and the proposed-procedures be so modified that jurors be concerned only with the first question of fact; namely, did the defendant commit the unlawful act alleged? If he did, then let the court or another dispositional body obtain, without a jury and in an informal manner, such medical opinion and its bases as may be necessary to assist the court in deciding on the most appro- priate disposition of the defendant who has already been found to have committed the act charged. Proper disposition of such a de- fendant must take account of his particular problems and needs as well as those of society. In fact, it may be argued on philosophical grounds that unless society considers the needs of its members, its own ends are not well served. If the defendant has a significant mental disorder, it matters little whether it is sufficiently related to his unlawful act to state formally that he should or should not be excused from responsibility for that act. I see no necessity that such a moral judgment be made, certainly not by a jury. It contributes nothing to what is to follow. Rather, to repeat, I urge that his mental condition be considered by the court without a jury, or by another disposit.ional body, when de- ciding where, for how long, and in what manner the defendant who has been found to have committed an unlawful act will be under the man- agement of society. In other words, medical opinion can be more help- ful on questions of disposition than on those of commission of an act or of guilt. The CHAIRMAN. Does this not take this question of insanity com- pletely away from the jury? Dr. CAMERON. It is my understanding that there have been at- tempts to obtain this in some of the States and to my knowledge it has not been achieved in any State. It is the common practice in several European countries. The CI-IAIRMAN. Thank you. Dr. CAMERON. The advantages of the concept and procedures pro- posed are several: 1. The competence of a defendant to stand trial would continue to be determined by the court without a jury after access to medical opinion and its bases. 2. The question of fact as to the commission of an unlawful act would be determined by a jury without the presentation of irrelevant medical issues in an atmosphere of moral judgment. A jury trial could, of course, continue to be waived. 3. Physicians would be spared unnecessary involvements in the ad- versary process to determine the factual and moral issues. They have no special skills or knowledge to offer on such issues. 4. Physicians would be able to make available to the court or another dispositional body their special knowledge about mental disorders in general, and the mental condition of the defendant in particular, in a nonadversary atmosphere, looking to questions of treatment and rehabilitation, if indicated, rather than to a factual and moral issue already settled. 5. The need for dispositional resources beyond those now available in the District of Columbia, would be highlighted. It is my own belief that persons who have committed unlawful acts and who require separation from society cannot properly be managed, as at present, in 25-260-64--pt. L-8 PAGENO="0114" 108 AMENDMENTS TO CRThflNAL STATUTES OF D.C. but two basic institutional programs-prisons and hospitals. Human beings do not fit into neat compartments. There are many different. t.ypes of persons with all gradations be- tween. Surely, there is a need for modes of approach other than those provided by prisons a.nd hospitals as they are now operated in the District of Columbia-something inbetween. In fact, other countries and other jurisdictions in this country have developed some ajterna- tives. The Netherlands, for example, has adopted the basic concept and procedures I have just set forth, and has several different types of facilities to which its guilty may be sent. Some States, for example, Maryland, have special institutions with well-developed security fea- tures in which programs are provided for persons involved in unlaw- ful acts who are mentally ill, but who are not out of contact with reality. I might say parenthetically that many of these patients in mental hospit.als are out of contact with reality and therefore require a differ- ent type of a program than those who are in touch with reality. Before turning to the specific provisions of H.R. 7525, let me observe that some of them clearly would be unnecessary were you to accept the concept and its relat.ed procedure that I have just discussed, and of which I strongly urge your favorable consideration. Decisions as to blameworthiness contribute little to the solution of the essential questions: Was an unlawful act committed by the defendant? If so, what is the proper disposition of him, taking account of the best inter- ests of society and those of the individual involved? The CHAIRMAN. Under your theory, Doctor, how would you deter- mine degrees of murder? Dr. CAMERON. Sir? The CHAIRMAN. Degrees of murder, how would you determine it under your theory? Dr. CAMERON. It would be irrelevant to me as to whether he. The CHAIRMAN. In other words it is irrelevant whether he killed a ma.n or did not kill a man? Dr. CAMERON. If he is grossly psychotic and mentally ill, it is irrelevant whether it is first-, second-, or third-degree murder, unless you are preoccupied with t.he purpose of pinning a label on him. What I am suggesting is that instead of being preoccupied with the label, let us let society be more preoccupied with the man and what ought to be done with him. He has committed a. murder. It is unlawful-it is an unlawful act. What should be done with this man? It is-if it is determined that he is not mentally ill, then go ahead and apply first-, second-, or third-degree murder in any way you can, which is part of the moral judgment involved. But if he is mentally ill, then the question is, What do you do with him? Put him in a hos- pital? And if so, for how long and where and .so on and for what kind of a program? The fact that it is first-, second-, or third-degree murder contributes little to this solution. The CIiAni~r~N. Thank you. Dr. CAMERON. I might say parenthetically that in many Federal jurisdictions where the MeNagliten defense is often used, that many PAGENO="0115" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 109 persons are found guilty who are so obviously mentally ill that when they reach prison it has been necessary for the Federal Burea.u of Prisons to build a mental hospital to take care of guilty people who are obviously sick. I have spent the last couple of years working with the Director of the Federal Bureau of Prisons trying to help him design still another hospital. Now here you see the moral sanction or the moral diagnosis of guilt had really very little to do with the kind of program needed by the person, and it was necessary within the prison system to develop some- thing else for these obviously sick people. The CHAIRMAN. Under your proposed procedure a commission or other dispositional body would determine responsibility once a jury has concluded that the defendant committed the unlawful act. Dr. CAMERON. Yes, sir. The CHAIRMAN. Under your theory- Dr. CAMERON. Yes, sir. The CHAIRMAN. You follow that up by saying that to determine the mental condition of the defendant, you would-you would put that up to the judge? Dr. CAMERON. That is correct. The CHAIRMAN. Well, is the judge qualified to act in this field? Would you say it should be the judge or would you say it should be a board of psychiatrists? Dr. CAMERON. Well, I say the judge. or other dispositional body. The CHAIRMAN. Yes, that is true. Dr. CAMERON. And that judge or other dispositional body would hear testimony from psychiatrists and other physicians solely around the question of whether or not the man was sick and what kind of treatment if any is indicated for him, and the medical testimony would then be presented in an atmosphere looking forward to the disposition of the man rather than, as now is the case, in an adversary atmosphere looking primarily to the question of did he do it and if he did do it, is he to be imprisoned? The CHAIRMAN. And under your theory that would be after he had committed the unlawful killing and been found to have done so and- Dr. CAMERON. Yes, sir. The CHAIRMAN (continuing). And then you would bring it before a judge or dispositional body and at that time they would pass upon whether he has the mental capacity to commit the crime? Dr. CAMERON. That is correct. The CHAIRMAN. If he did not have the mental capacity to commit the crime that the jury says he did, then the judge should be the sole arbiter of that question? Dr. CAMERON. As he now is under the law. I am sorry. That is incorrect because under the current procedure if he finds him not guilty by reason of insanity, which is a euphemism for "he did it but he should be excused from blame," then there is a mandatory law which commits him to the hospital for treatment and that manda- tory law would remain in effect that is, if it were to remain in effect, then after the jury said that he did it, the judge would determine after hearing medical evidence, as to whether or not he was so sick PAGENO="0116" 110 AMENDMENTS TO CRIMINAL STATUTES OF D.C. that he might be excused, and if he were, he would still go to the hospital. The Ci ii~i~. I wonder if your theory would require a change in the Constitution, under which certainly every man is entitled to trial by a jury of his peers, by 12 men tried and true and they are the ones who are supposed to determine this question-and you would substitute a judgment decision as to that, constitutionally-I am just wondermg if your theory could be brought about without changing the Constitution. Dr. CAMERON. Well, Mr. Chairman--- The CHAIRMAN. Of course, I understand that you are not posing as a constitutional lawyer. Dr. CAMERON. I certainly do not pose as a constitutional lawyer, no, and I don't have any real opinion as to whether a change in the Constitution would be required, but if it is, I still think it would be useful in the interest of the proper disposition of these people. The CHAIRMAN. And you think that would be a better way of deal- ing with these problems than we are dealing with theni now. Dr. CAMERON. I do. The CHAIRMAN. You don't know whether the constitutional amend- ment is required or not to accomplish that; but you would prefer your proposed procedure. Dr. CAMERON. That is right. The CHAIRMAN. Thank you. Dr. CAMERON. In discussing the specific provisions of H.R.. 7525, I shall comment on only those sections of title II that have substantial medical aspects. Subsection (a.), paragraph (1) defines a person with a "mental disea.se or defect excluding responsibility" as one who lacks "substan- tial capacity either to know or appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." This is not a very helpful definition for the following reasons: 1. Physicians will have difficulty testifying, if requested, on the question of knowledge or appreciation of the wrongfulness of conduct since this is more a. moral than a. medical question. Physicians have no special knowledge or skill in relation to moral issues. 2. The meaning of capacity "to conform * * * conduct to the re- quirements of law" is vague. Unless the legislative history makes t.he intent of this phrase quite clear, both jurists and physicians will have difficulty with it. It may be interpreted almost exclusively in relation to volition or will. If so, it is little different than "power to choose" or "irresistible impulse." If so interpreted, it deals only with a fractional part of the personalty factors that may be involved in illness and affect. vitally one's capacity to conform. Now, I was present in the room when t.he U.S. attorney was testi- fying and it is obvious from his testimony that he would not inter- pret this section as being limited to volition and will. But I have talked with jurists who in saying what they understand the ALT form- ulation to mean, do interpret it just as I have described; that is, strictly in relation to will and this I think makes the point that Mr. Acheson is ma.king~ that you would now start all over with a new theory of judgment based on a new formulation which they are now onerating on *hich comes to eventually the broader definition which I shall now comment on. PAGENO="0117" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 111 If it is interpreted broadly, as I believe it should be, recognizing that all facets of personality (not just volition or will) affect one's "capacity to conform," it is little different than "the product or result of" as set forth in Durham and clarified in subsequent decisions. I would urge the latter formulation if we must, in my view unnecessarily, commingle medical and moral issues while endeavoring to establish a question of fact. It is, in my opinion, the only legal test of mental disease or defect excluding responsibility of those now in use or about which I have read or thought, that clearly allows a physician to put before a jury all the pertinent medical information about a defendant. An intelligent juror might wish to be informed about this totality of information before being called on to exercise his awesome responsi- bility by casting his vote for or against guilt and blameworthiness. I believe that jurors, in such cases, should have all pertinent informa- tion before them, medical and otherwise, not just that part that is permitted to filter through the sieve of a limited legal definition of "insanity." The CHAIRMAN. Doctor, if I may interrupt, my understanding of your analysis of the suggested definition in 201 (a) (1) would be that you would leave it where it is as a result of the Durham and McDonald decisions rather than attempt to tamper with it by imposing a statutory definition? Dr. CA~IERON. That is correct. If you impose the definition pro- posed in this bill then it would immediately follow that there would be a series of test cases to find out whether it should be strictly interpreted as dealing only with volition or broadly interpreted as I just described and if broadly interpreted, then it is essentially in effect, as Mr. Ache- son pointed out, the present situation under Durham and McDonald. And in my view there is no need, since we have reached the broad definition already fairly clearly, there is no need, since we have that broad definition under case law, to start all over again redefining it just to achieve the same purpose. Of course, I disagree with some of the processes of comingling-I believe it is unnecessa.ry to do so, of the n'ioral and medical issues. The CHAIRMAN. Thank you. Dr. CAMERON. Subsection (a), paragraph (2) states that- The terms "mental disease or defect" do not include an abnormality mani- fested only by repeated criminal or otherwise antisocial conduct. With this provision I strongly agree, and it should be retained as worded. However, in the introductory portion or caption of subsec- tion (a) the following is stated: * * * sociopathic and psychopathic personality is not disease or defect `~- * * If this is intended to refer to paragraph (2), it will lead to needless inaccuracy and confusion. That paragraph, the content of which I believe is sound and desirable, is not a description of sociopathic or psychopathic personality. These essentially synonymous terms are a medical diagnosis. *To make this diagnosis, a psychiatrist would ordinarily expect to find a characteristic pattern involving numerous positive signs and symptoms. Repeated antisocial behavior is not one of them, a~s far as I am concerned. True it is that sociopaths often are involved in criminal and other antisocial behavior, but not all socio- paths are so involved, nor is all crime perpetrated by sociopaths. PAGENO="0118" 112 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Therefore, I recommend that the first sentence of subsection (a) be revised to read "mental disease or defect excluding responsibility; repeated criminal or otherwise antisocial behavior is not mental dis- ease or defect per Se." The CHAIRMAN. Doctor, at that point, just to help my own thinking, how would you define a sociopath personality? Dr. CAMERON. Well, I can describe a sociopathic for you if you will permit me to. This is a list of some things that show the hallmarks of a sociopath, they are as follows: 1. An inability to put off present pleasure for future gain. 2. A lack of aim and foresight. 3. A failure to learn from experience. 4. Impulsiveness. 5. Egocentricity. 6. Lack of lasting emotional rapport with others. 7. Lack of sympathy. 8. General immaturity. 9. Little intellectual influence on behavior. Now, I would like to call your attention to the fact- The CHAIRMAN. Well, do you have to have all of those to be a socio- path? Dr. CAMERON. No, Mr. Chairman, not. all, but. you would have the majority of them and in that pattern. But I would like to- The CHAIRMAN. But you would have to have at. least some of them. Dr. CAMERON. You would have to have, quite a few. And, Mr. Chairman, let me suggest that many criminals do not show at least six of the things I have mentioned-let. me draw them, let me invite them specifically to your attention. There are many criminals who do have the ability to put off pleasant pleasure for future gain. There are. many who do have aim and fore- sight.. There are many criminals who do learn from experience. There are a good many who a.re not impulsive and there are quite a few who are not immature, and there are quite a. number who do regulate their behavior by their intellect, but purely in an unlawful way. But I am trying to point out that the signs and symptoms that I describe which are those of a sociopath do not necessarily describe a. chronic criminal and certainly-let me go ahead and make one other point. I want to call your attention to the fact, Mr. Chairman, that I did not list antisocial behavior as one of the signs and symptoms because indeed it is not a medical symptom at all in the true sense. it is rather a sociophenomenon not peculiar or exclusive to sociopathy or any other form of mental disorder. Now, the persons with the above-described symptoms and signs do often indulge in antisocial behavior, and that is not at all surprising but, however, the fact remains that not all sociopa.ths are involved in criminal behavior and not. all criminal behavior is perpetrated by socio- paths. And antisocial behavior is particularly troublesome if considered as a symptom sinc.e this leads to a peculiar form of circular logic which is as follows: Anyone who commits an unlawful act must be crazy; anyone who is crazy is to be excused from what he does; therefore, no one is respon- sible for anything that he does. PAGENO="0119" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 113 And I think it is only those persons who get trapped in this remark- able circular reasoning are the people who tend to think of sociology as being defined primarily by antisocial and unlawful behavior and also to equate the lack of responsibility with the presence of mental disorder without the need to find any relation between the mental dis- order and the event. I think that I have perhaps taken an undue amount of time and- The CHAIRMAN. No, not at all. Dr. CAMERON. But the point is that this will lead to the most aston- ishing confusion in the courts if the law says that sociopathic and psychopathic personality is not a mental disease or defect and then define something else called, call it "antisocial behavior," as disorder- I think you would find very, very few physicians who would agree with that definition in the law. The CHAIRMAN. Thank you. You may proceed. Dr. CAMERON. Subsection (c), paragraph (1), makes "mental dis- ease or defect excluding responsibility" an affirmative defense. While this is strictly a legal, not a medical matter on which a physican might be expected to comment, I would like to lend my support to the con- cept. Its adoption will help solve many of the problems that have been troublesome under the Durha?m decision and, in my opinion, will con- tinue to be troublesome as long as the law requires the simultaneous consideration of medical and moral issues, and I think it will help some. Subsection (d) puts forth the usual definition of mental disease or defect excluding fitness to proceed and is, from my point of view, as satisfactory as can be devised at this time. Subsection (e), paragraph (1), indicates that upon request of the court, the Superintendent of St. Elizabeths Hospital, among others, may "designate at least one qualified psychiatrist * * * to examine and report upon the mental condition of the defendant." This, again, is quite satisfactory. Subsection (e), paragraph (2), relative to the nature of the psychi- atric examination is also satisfactory. However, I should like to in- vite your attention to the fact that nowhere in title II is treatment explicitly authorized for defendants while in a hospital undergoing examination. Some such defendants will doubtless be ill and in need of treatment. Authority should be included to permit the use of such treatment methods as are accepted by the medical profession for the treatment of persOns found to be suffering from a mental disease or defect while such person is hospitalized for examination. Subsection (e), paragraph (3), indicates what shall be included in the report of the examination. I believe the court and the examining physican would be better served if it were reported that there be in- cluded in such reports at least a brief statement as to the basis of maj or opinions rendered. I need not repeat m.y comments on the nature of the tests of mental disease or defect excluding responsibility, which tests are stated in this and in preceding and subsequent subsections. Nor is it necessary to repeat, in connection with this and other subsec- tions involved, my comments on the inappropriateness of psychiatrists being involved in the adversary process of factfinding with reference to the commission of an act. Subsection (h), paragraph (1) would be improved by adding refer- ence to hospitals having facilities for treatment as well as for the cus- tody and care of the mentally ill. PAGENO="0120" 114 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Subsection (h), paragraph (2), provides that if the superintendent of the hospital to whom a person is appropriately committed is of the view that the person so committed "is no longer suffering from mental illness and may be discharged or released on probation without danger to himself or to others c * ~" [emphasis supplied] he shall make appli- cation for release, et cetera. Your attention is invited to the fact that this phrasing could be mterpreted to set up two conditions for applica- tions for release, both of which must be satisfied in each case before ap- plication for such release is made. The two conditions are (1) "no longer suffering from mental illness"-that is, full recovery, and (2) "without danger to himself or to others." Many persons may be im- proved to the degree that they are without danger to themselves or to others aiid yet not be fully recovered. A strict interpretation of this paragraph would preclude making application for their release. Still others may recover from their illnesses and yet be dangerous to others, but not because of mental illness. A dangerous criminal may become mentally ill, recover from his illness, and still be a dangerous criminal. A preferred working might be achieved by deleting the material be- tween the word "subsection" in line 25, page 10, and the word "he", in line 3, page 11, and inserting in lieu thereof the following: is improved to the degree that he may be discharged or released on probation without danger to himself or to others in the reasonably foreseeable future as a consequence of mental disease or defect. This same paragraph also requires the supermtendent to "make ap- plication for the discharge or release of such person in a report to the court by which such person was committed." May I strongly suggest that consideration be given to placing the power of discharge or release on probation from a hospital in a body other than the committing court. Such powers of discharge and release on probation are not vested in the sentencing court once a convicted person has been sentenced to prison. Rather, it usually is vested in a board of parole or of pardons. In my view, a body consisting of psychiatrists, attorneys, and perhaps others, should be established and granted powers of discharge and release on probation in connection with mentally ill persons committed to a mental hospital as a consequence of criminal proceedings. Subsection (h), paragraph (2), further- The CHAIR:~IAN. Is there any precedent for that, Doctor? Dr. CA:~rEuox. In the European countries, as I mentioned previously, this is the way it is done. While I have every confidence in the jurists and in the courts, if it should happen at some future time that there was a judge who happened to be particularly concerned about the re- lease of people who had been in serious difficulty-take particularly, and this does not apply too much to the District, but assume if you will a judge in a small town where there has been a sex crime and lie is under considerable pressure from the local community to retain in the hos- pita.l a man who is in serious trouble, and if the release of that person rests with the court, it may be on occasion rather hard to get him from the hospital after he has recovered. Now, I say this not in relation to the courts in the District, but in relation to it as a matter of principle, and I think that the laws in the District should be somewhat of a model to other parts of the country. I also base it on the assumption that if society and the legislative bodies of the country have decided that it is inappropriate to place PAGENO="0121" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 115 this power in the courts, the court which has sentenced the man to prison, it is equally inappropriate to place that power in the court for a person who is mentally ill. Now, subsection (h), paragraph (2) further states that when the court receives a report from the superintendent of a hospital applying for the discharge or release on probation of a person in his custody, "the court shall thereupon appoint at least two qualified psychiatrists to examine such person and to report * * ~." [Emphasis supplied.] May I suggest that "shall" be. changed to "may." It is the practice at St. Elizabeths Hospital for the Superintendent to receive recomrnenda- tions from two or more qualified staff psychiatrists familiar with such person before making his own recommendation to the court. To insist that still other psychiatrists be required, after the recommendation is made, and as a matter of routine in all cases, to examine and report on the condition of the person recommended for discharge or release is burdensome and unnecessarily time consuming for both the person in question and the psychiatrists involved. In summary, let me say I recommend for your serious consideration that in criminal cases involving questions of mental disease or a defect excluding responsibility, (1) the proceedings be so arranged that a jury be asked only to determine the question of fact as to the commission of an unlawful act by the defendant, and (2) that the medical issues be considered in relation to the disposition of a defendant who has been shown to have committed the act alleged. In any event, I urge against the adoption of the proposed new rule of law in regard to mental disease or defect excluding responsibility. The Durham de- cision, as modified particularly in the McDonald case, is a better solu- tion. I understand that the Department of Justice and the Commis- sioners of the District of Columbia believe the present rules in this regard are satisfactory and should not be changed by legislation at this time. Mr. Chairman and members of the committee, I appreciate your courtesy in inviting me to offer my views on this act, which is so important to the welfare of the mentally ill who are involved in pro- cedures related to criminal law, and which is equally important to society. I thank you for the opportunity. The CHAIRMAN. Thank you very much, Dr. Cameron. I have no further questions other than I have asked you in the course of your testimony. Thank you very much. Dr. CAMERON. Thank you. The CHAIRMAN. Our next witness is Robert Kneipp, Assistant Cor- poration Counsel for the District of Columbia. STATEMENT OP ROBERT KNEIPP, ASSISTANT CORPORATION COUNSEL, DISTRICT OP COLUMBIA Mr. KNEIPP. Thank you, Mr. Chairman. May I first say, Mr. Chairman, I want to express the regrets of the Commissioners at not being able to be present. Mr. Tobriner is not in the city and Mr. Duncan finds it necessary to involve himself in the administration of municipal affairs. PAGENO="0122" 116 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. Well, that is all right, we always like to have them here but it iS perfectly all right. You can present their views and make a statement in their behalf. We are always delighted to have the Commissioners here but if they cannot make it, we understand. We are very happy to have you here. Mr. Kx~ipp. Thank you. The Commissioners appreciate this opportunity to present their views on title II of H.R. 7525. The Commissioners understand that this title of the bill is patterned after the formulation recommended by the American Law Institute as a test of insanity as a defense in criminal cases, and is intended to replace the test of criminal responsibility stated for the District of Columbia by the U.S. Court of Appeals in the line of cases beginning with Durham v. United States, decided in 1954, and ending with McDonald v. United States, decided October 8, 1902. The Commissioners are informed that the decision of the U.S. Court of Appeals in McDonald v. United States, considerably modi- fied the so-called Durham rule., so that the rule now requires that the defendants bear the burden of proving that the alleged mental dis- ease is one which had the effect of impairing control of his conduct. Further, McDonald has the effect of restoring to juries the function of evaluating the testimony of expert witnesses, and eliminates the practice of directed verdicts of acquittal by reason of insanity. In short, therefore, the Commissioners are informed that the applica- tion of the Durham rule, as modified by McDonald, has substantially the same result as the formulation recommended by the American Law Institute. In view of this, the Commissioners believe that the exist- ing state of the law in the District of Columbia should remain un- changed. Accordingly, the recommend against enactment of title II. Thank you. The CHAIRMAN. Thank you very much, Mr. Kneipp. I assume, you being in the Office of the Assistant Corporation Counsel that you do not get involved in insanity cases very often. Mr. KNEIPP. I think that this kind of case is very rarely prosecuted by the Corporation Counsel. There may be some instances but it is primarily a matter that comes before the U.S. attorney. The CHAIRMAN. I am sure of that. Is it your position that you hnve no firsthand working knowledge of the criminal law because that issue does not arise in your office? Mr. Kxiipp. That is correct, it arises very infrequently. The CHAIRMAN. Thank you very much for your statement. We will stand in recess until 10 o'clock tomorrow rnormng. Thank you, gentlemen. (Whereupon, at 11:50 a.rn., the committee was in recess, to recon- vene at 10 a.m., Wednesday, October 16, 1963.) PAGENO="0123" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA WEDNESDAY, OCTOBER 16, 1963 U.S. SENATE, COMMITTEE ON THE DISTRICT OF COLUMBIA, Wa~shington, D.C. The committee met, pursuant to recess, at 10:05 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presiding. Present: Senators Bible, Dominick, and McIntyre. Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard Judd, pro- fessional staff member. The CHAIRMAN. The committee will come to order. This is a continuance of our hearings on H.R. 7525. We have ear- lier heard testimony with regard to titles IV and V. We commenced yesterday to hear title II, the section that deals with the insanity rule for the District of Columbia. We will continue tomorrow on hearing title II, and on Tuesday next we will commence hearings on title I, which deals with the modifica- tion of the so-called Mallory rule. Yesterday I think it was very clear from the testimony of the U.S. attorney that he felt the Durham rule, as modified recently by the McDonald decision adequately defined insanity as a criminal defense in the District of Columbia. We are very happy today to have one of the real experts in this field, Dr. Overholser, who has been here before this committee and the Appropriations Committee many times in the past, in his former ca- pacity as Superintendent of St. Elizabeths 1-lospital, where he com- pleted some 25 years of service. He is a member of the Advisory Committee of the American Law Institute, and served with such committee when the American Law Institute criminal insanity rule was being embodied substantially in the House-passed bill. He is an author and lecturer on problems of criminal responsibility. Dr. Overholser, it is always nice to see you back before a congres- sional committee. We look forward to your suggestions. 117 PAGENO="0124" 118 AMENDMENTS TO CRIMINAL STATUTES OF D.C. STATEMENT OP DR. WINPRED OVERIIOLSER, FORMER SUPERIN- TENDANT OP ST. ELIZABETHS HOSPITAL Dr. OVERHOLSER. Thank you very much, Mr. Chairman. May I say, first of all, Mr. Chairman, I have no written statement. The C~n~rAx. Very well. I think maybe I can provide you some guidelines. I believe the testimony of witnesses that we heard yester- day will sustain the proposition that the Durham rule, as modified by the McDonald rule, is an adequate test and definition of insanity in the District of Columbia. Mr. Acheson, the U.S. attorney, said that he felt the Durham? case as it was modified recently by the McDonald case has provided the Dis- trict with a fair and reasona.ble test of insanity. He was asked the question as to whether or not it would be prefer- able to substitute the American Law Institute test, with which von are familiar, and which is substantially the same rule or test laid down in H.R. 7525, with the exception of the addition by the House committee of the words "to Irnow" and the including of the word "wrongfulness" in place of criminality in the test as laid clown by the American Law Institute. The insanity test laid down in the House bill before us for consideration reads as follows: A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacked substantial capacity either to know or appreciate the wrongfulness of his conduct or to conform his conduct to requirements of law. That is the definition that we have before us in our consideration of the insanity portion of the so-called omnibus crime bill. Mr. Acheson's testimony was to the effect that the American Law Institute insanity rule is substantially the instruction that is given to the jury in the District of Columbia at the present time as a result of the McDonald decision, and as it supplemented the Durhan~ rule. This may be some guidance to you in your testimony. He also said-and I think this is important, as far as his testimony is con- cerned-that he felt there was no need of a new statutory insanity definition in view of the present state of the case law. I do not know whether you would agTee with that, or whether you would think there should be written into the statute the ALl test. I would give that by way of preliminary, Dr. Overholser, and pos- sibly as some guidance to you in your testimony. You may proceed. Dr. OVERHOLSER. Thank you, Mr. Chairman. The CHAIRMAN. In the first place, what we are primarily interested in determining is whether or not there is a need and a necessity for writing into statutory law a provision such as I have just read to you. Dr. OVERHOLSER. If I were asked that question, I should answer categorically "No." The CHAIRMAN. And why? Dr. OVERHOSLER. In other words, all of the tests of criminal insan- ity, if you wish to call it that, that have been laid down since about. the time, I guess of Edward III, or thereabouts, have been laid down by courts. In some instances in this country Jeelsiatures have en- acted into law what. was the prevailing judicial determination at that time. PAGENO="0125" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 119 New York is an example of that. They are now trying to change the law in New York because phychiatry has passed the law by quite a way. Once you get in the statute a definition of this sort, you are, so to speak, stuck with it for a long time; whereas in the course of the operation of the courts, there is an opportunity to yield, as the views of psychiatry and of medicine in general become generally accepted. That, of course, is what the New Hampshire courts did back in 1860, and it was what the District of Columbia Court of Appeals did some- thing over 80 years later, by adopting the Durham rule. The McDonald interpretation is, I think, in general an improvement. It clarifies some points which were not entirely clear in the operation of the Durham rule. The American Law Institute, in which my colleague, Dr. Gutt- macher, who is present here this morning, Mr. Chairman, and I had the honor of serving, on the advisory committee, together with Dr. Lawrence Freedman, now of Chicago, sat through all of the delib- erations of the committee of the American Law Institute. To my mind the definition of the American Law Institute has two objections, and I will, if I may, Mr. Chairman, file a statement which was published in the American Journal of Psychiatry, which Dr. Freedman, who I have already mentioned, Dr. Guttmacher and I all very happily signed, objecting to the formulation of the American Law Institute. In the first place, that formulation is in many ways a change of lan- guage without change of idea, much of the McNaghten and irrestible impulse rule. In addition, it makes what is to my mind a very serious error in legislating on a medical matter. In the bill which is before your com- mittee now, you will note that the fiat statement is made that socio- pathic or psychopathic personality is not a mental disease or defect. The views of the psychiatric profession are not perhaps unanimous. But certainly in the official nomenclature of the American Psychiatric Association you will find that this condition is mentioned under the general heading of mental disorder. Furthermore, as a psychiatrist, I certainly do not know of any mental disease or defect which is evidenced only by repeated criminal or otherwise antisocial conduct. That is a very unsuccessful attempt to eliminate this particular diagnosis. To my mind, the psychopath or the sociopath, the true one, is a sick person, mentally sick, and this should be taken into consideration and not struck out by statute. So I think it is unfortunate if we get any legislation on this topic at all. I think the judges should be given their heads, and I think that they, in the long run, will keep up with the margin of progress in other helds of science, including medicine, better than a statutory fixation which is likely to become pretty much fixed. I note, too-not being a lawyer, I cannot say, and I hope that some- one will refer to this-I note that under subsection (1) of section .(c), page 3-that it is stated that the defense is an affirmative defense which the defendant must establish by the showing of sub- stantial evidence. PAGENO="0126" 120 AMENDMENTS TO CRThIINAL STATUTES OF D.C. How that gibes with the McDonald ruling I do not know. The CHAIRMAN. At that point, Doctor-and I will let my legal men check me out-if I remember Mr. Acheson's testimony on that point correctly yesterday, he testified that such section is not a burden-of- proof section, but. rather it. is a provision of law requiring the defend- ant to raise the insanity issue by a showing of substantial evidence, and if he does that, then the burden shifts, as it now is, to the Govern- ment to prove beyond a reasonable doubt the opposite of his contention. I understood him to say this was substantially the prac- tice in the District of Columbia at the present time. Dr. OVERHOLSER. I hope that is the case. The CHAIRMAN. This was the testimony, 1 believe, I will recheck it, since you have again directed our attention to this subsection. I be- lieve this is what Mr. Acheson said. Reading from page 127 of his testimony yesterday, he said: I do not believe that provision changes the burden of proof. I think it is intended only to require that the issue be raised initially by a showing of more than a scintilla of evidence. Then I asked the question: Well, are there sections within title II that involve the burden of proof? Mr. ACHESON. I think not, no. There are none. Mr. Chairman. The CHAIRMAN. Then you say this is not a burden-of-proof section? Mr. AcuEsoN. This is not a burden-of-proof section. It is a section only re- quiring that the defendant raise the issue, introduce the issue into the case by a showing of substantial evidence. If he does that, then the burden shifts as it now is to the government to prove beyond a reasonable doubt the opposite of his contention. The CHAIRMAN. Then if the section would become law, it would have no effect upon the present case law in the District of Columbia as far as the burden of proof is concerned? Mr. ACHESON. That is right. The CHAIRMAN. The burden of proof still starts with the defendant, and after he has produced some evidence, then the burden of proof shifts to the prosecution to prove the contrary. Mr. ACHESON. To prove otherwise; that is right, Mr. Chairman. The provision would make it a little bit more difficult for the defendant to raise the issue initi~ ally. But if he did, the burden of proof would remain where it now is. That was Mr. Acheson's statement as of yesterday. Dr. OVERHOLSER. I simply hope that this was not an attempt to cir- cumvent Davis v. the United States, which is still good law, as fa.r as I know. The CHAIRMAN. I do not think Davis has been reversed. Dr. OVERHOLSER. Yes, sir. I do not want you to think that I am opposed to everything in this section. I am opposed to most of it, Mr. Chairman. But I do agree with this matter of notice. The notice of intent to plead insanity as a defense-that is done in a good many States. I think it is entirely fair to the defendant. There are enough safe- guards as far as the discretion of the judge is concerned. But at times in the past in some cases, both here and elsewhere, the defense of in- sanity has been sprung, so to speak-taking perhaps the prosecution off base. After all, the attempt ought to be to get the facts on both sides, rather than to take one side by surprise. The CHAIRMAN. Well, on that point, the U.S. attorney is in com- plete agreement with you. He favored the notice section. He did say, as a practical matter, it caused them no great problem in the Dis- PAGENO="0127" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 121 trict of Columbia, because apparently they did have notice in most all of the cases where insanity was to be raised as an issue. However, he favored the section. He thought notice as provided by the House bill was a good thing, because it did do just exactly what you say, and that is prevent the prosecution from being taken by surprise. Dr. OVERHOLSER. Thank you, sir. On page 5, Mr. Chairman, in the paragraph at the bottom of the page head "D," I think again you are giving a good deal of authority to the psychiatrist on a topic which really is not entirely within his field, the capacity to know or appreciate the wrongfulness of his con- duct, or to conform his conduct to the requirements of law-and to what extent it was impaired. I think in general the attempt is made when opinions of that sort are given to answer as far as the psychia- trist is competent to answer. But I must say that psychiatrists are not always completely successful mindreaders, and some of this seems to call for knowledge which is over and above that which is really needed by the psychiatrist. The CHAIRMAN. In other words, you think that that subsection (d) is unnecessary. Dr. OVERHOLSER. Yes, sir. The CHAIRMAN. Then I am a little troubled- Senator DOMINICK. I did not get the witness' answer. The CHAIRMAN. What was your answer to my question? My question was, "I take it from what you say that subsection (d), lines 19 through 25, page 4 of the House bill, are unnecessary?" Dr. OVERHOLSER. I think they are. The CHAIRMAN. You think they are unnecessary? Dr. OVERHOLSER. I do; yes, Mr. Chairman. On page 9 of the bill, I take it that the prohibition against a psy- chiatrist who has not examined the defendant is intended to rule out any hypothetical question. Of course, a psychiatrist always would prefer to testify about some- one he has examined. These hypothetical questions are very often quite misleading, I think, to the jury. So perhaps if that is the aim, I suppose it is all right, although I can think of situations in which an adequate examination was not permitted by time, for example, to enable the psychiatrist to give an adequate opinion, except on the basis of a hypothesis. Maybe my reading of the-this is lines 14 to 19, on page 9. The CHAIRMAN. That reads: Both the prosecution and the defendant may summon any other qualified psy- chiatrist to testify, but no one who has not examined the defendant shall be com- petent to testify to his opinion as a psychiatrist with respect to the mental con- dition or responsibility of the defendant. Dr. OVERHOLSER. Yes, sir. The CHAIRMAN. Now, again your objection to that is what, Doctor? Dr. OVERHOLSER. Well, it would seem that this would prohibit ask~ ing any psychiatrist a hypothetical question about the defendant, that he might conceivably not have seen him. I think perhaps this is a very minor point., to be sure. But I raise that question, sir. The CHAIRMAN. Thank you. PAGENO="0128" 122 AMENDMENTS TO CRThIINAL STATUTES OF D.C. Dr. OviiunoLsra~. Well, those are the principal points-except I just wonder-on page 12 of the bifi, Mr. Chairman, I notice there is some~ thing said about the release on probation of a committed person. LI suppose this refers to a person who has been committed after being found not guilty by reason of insanity, in which case it would seem really unfair and inconsistent to use a penal term in referring to him. The present statute of the District, which refers to the commitment, the mandatory commitment following an acquittal by reason of insanity, speaks of conditional or unconditional release, not of probation. This is merely perhaps a minor point in terminology, Mr. Chairman. And then- Senator Do~nNIoK. Do I understand from that, Doctor, that your objection is to the word "probation"? Dr. OVERHOLSER. Yes, sir-because I take it this person has been acquitted, acquitted by reason of insanity. The matter of whether or not- Senator Do~rIxIcK. Doctor, I wonder if I could ask a few more questions on that. Is it your opinion, then, that if a person is acquitted by reason of insanity of a felony, that as soon as he is committeed to a hospital, that the court no longer has jurisdiction over him? Dr. OVERHOLSER. No, because after all, the court has sent him there, and there. are provisions, of course, of habeas corpus, too, as well as conditional or unconditional release. It is merely the terminology that I raise a question about. Senator Do~rINIcK. In other words, you think that it would be pos- sible to release him nuder some sort of supervision. Dr. OVERHOLSER. Yes sir. Senator DoiuixlcK. on a status similar to probation. And then if he violates the laws of the jurisdiction here, the court could im- mediately pick him up and recommit him to the hospital, even if the hospital authorities themselves felt that this was a mistake, is that correct? Dr. OVERHOLSER. I think this is the status at the present time, Senator. Senator DoMINICK. I wondered whether you had any objection to that. Dr. OVERHOLSER. No-it is oniy the word I object to. Certainly not. I think that there ought to be a joint action between the court and the hospital in the matter of the release of these persons. But there is provision now for an unconditional release, in which case of course neither the court nor the hospital has any control. Senator DoMINICK. Now, in the paragraph above, starting on line 4, on page 1~, it also says: According to the determination of the court upon a hearing the committed eerson shall thereupon be discharged or released on probation, on such condi- tion as the court determines to be necessary. Now, this is a civil hearing, as I gather. And I would presume that this in turn-the word probation is also used on page 11 of the bill-that the civil hearing is designed to determine the degree of safety to the public in general if this person is allowed more freedom, is that cOrrect? Dr. OVERHOLSER. Yes, Sir. PAGENO="0129" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 123 Senator DoMINIcK. What is your objection to the use of the word "probation" which fits in with a good deal of existing procedures at least on releasing prisoners subject to good behavior? Dr. OVERHOLSER. Because probation is a term which is used for persons who have been convicted or at least who have pleaded guilty to an offense. This man has been acquitted. Presumably, therefore, there is no criminal charge pending, except, of course, he has shown by his behavior at the time of the crime itself that he is unsafe to the public. Now, he may recover from the condition which existed. But he has been declared not guilty. For that reason I question whether either "parole" or "probation" is a proper word, since those are both ap-. plied in a penal context. Senator Doi~1INIcK. What suggested terminology would you have? Dr. OVERHOLSER. Well, I should just strike it out. He could be released "on such conditions." Just strike out the words "on probation," just as is done now in the statute relating to the release of persons in the District who have been acquitted by reason of insanity. Sentor DonINIcK. Thank you, Doctor. Dr. OVERHOLSER. I suppose that again this is a question which per- haps I am presumptuous to raise. There is on page 13 of the bill some language with reference to the frequency with which a person may be permitted to make application. Yet in the next paragraph-rn two paragraphs down there is language saying that this shall not in- terfere with his right to a writ of habeas corpus. I should suppose that there might .be an inconsistency there. I am not quite clear in my mind as to the proper policy-and this again is a matter of public policy and not a question of psychiatric knowledge-the question of whether the jury should be informed in the judge's charge what the disposition of the defendant will be if they find him not guilty by reason of insanity. This question has come up a few times in the District already. What the case law is at the moment, I am not quite sure. The CHAIRMAN. Would you repeat that statement again? Dr. OVERHOLSER. Yes. On page 13, Mr. Chairman, lines 12 to 15: the jury shall not be informed of the result, if they find the individual- The CHAIRMAN. My understanding of the case law, and Mr. Acheson testified on this point yesterday, is just the reverse of this proposed instruction `to the jury. As I understand it, the case law in the Dis- trict of Columbia today is that the jury is told of the consequence of a verdict of acquittal by reason of insanity. The House bill states the jury shall not be told of the consequences of a verdict of not guilty by reason of insanity. The district attorney said this provision in the House bill was undesirable, and that the case law which exists in the District of Columbia today is preferable. Dr. OVERHOLSER. It is my impression that is the existing case law. I think it is quite correct. I think the jury is entitled to have that information. The CHAIRMAN. The U.S. attorney thoroughly agrees with you on that point. Senator DOMINICK. Why? 25-260-64--pt. 1-9 PAGENO="0130" 124 AMENDMENTS TO CRThIINAL STATUTES OF D.C. Dr. OVERHOLSER. I have an idea that a good many people, both in the District and outside, have an idea. that if a person is found not guilty by reason of insanity, he is going to be put right out on the street; and for that reason, they would leaii the other way-unless they knew that there was provision for him to be confined until such time as in the opinion of the hospital and the court he was fit to be released, without undue danger to the public. Senator DoMINICK. Suppose the jury is told that a person who has just murdered three people has done so by reason of insanity. Sup- pose they are told that all they need to do is keep him in the hospital for 6 months, and then he is going to be turned loose on the public again. I would think that this would tend to make the jury find him not guilty-beg your pardon-make the jury find him not irresponsible within the terms of this law. Dr. OVERHOLSER~ Well, if they were told that, I think it would be misinformation. Senator DOMINICK. Wouldn't they have to say he would be com- mitted to the hospital, a.nd that he could not get out until at least 6 months? Dr. OVERHOLSER. Ordinarily, of course, it is a good bit longer than that. Senator DOMINICK. I doubt very much whether they could be told that. The provision of the law is that he is committed until he is well and not entitled to be released for a period, of 6 months. Dr. OVERHOLSER. He will not be released except by the concurrent action of the hospital and the court. And I think that a hospital in general would be rather reluctant to make such a recommendation in so short a time. Senator DOMINICK. It just strikes `me, if I may say so, `Doctor, that the purpose of having the jury here determine whether or not he should be acquitted by reason of insanity, and the question of what, the policy is in the event that he is so acquitted, or is not, is in the statute and has nothing to do with the jury's determination. Dr. OVERHOLSER. Psychologically, I am not so sure that it won't have anything to do with their determination. Matters of this sort are decided by a good many people outside the realm of reason,' on the basis of emOtion. So I am afraid that there would be considerations, which were a bit adventitious, shall we say. I agree with you, of course, that the statute says certain things. It seems to me that the jury ought to know that at least this man is not going to be turned loose pronto. Senator DOMINICK. In other words, you feel that if the provision stays the way it is, that the juries are more liable to find someone not guilty by reason of insanity. Dr. OVERHOLSER. Where the other facts warrant, yes, I should say so. Senator DOMINICK. Thank you. The CHAmMAN. You may proceed, Doctor. Do you have further comments to make? Dr. OVERHOLSER. I think not, Mr. Chairman. I have two other things that I should like to provide the committee for the hearing record. PAGENO="0131" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 125 The CHAIRMAN. We would be very happy to receive them. Will you tell us what they are? Dr. OVERHOLSER. I have spoken already about the article written by Drs. Guttmacher, Freedman, and myself. The CHAIRMAN. As I understand it, that article says that the ALl test has weaknesses; is that correct? Dr. OVERHOLSER. Yes, sir. The CHAIRMAN. Is that a correct capsule expression of what this article says? Dr. OVERHOLSER. Yes. The CHAiRMAN. In other words, you three men, very eminent psy~ chiatrists, do not agree with the ALl test? Dr. OVERHOLSER. Yes, sir; that is correct. The CHAIRMAN. You point out in this article why you do not agree with the ALT test. Dr. OVERHOLSER. Yes, sir. The CHAIRMAN. Why don't you agree with the ALT test? Dr. Ovi~RnoLsER. Well, I think that would trespass on the time of the committee, Mr. Chairman. The CHAIRMAN. I thought you might capsule it. I am a little in- quisitive. at the present time, because I understood the U.S. attorney to say that the case law, Durham, as clarified or supplemented by the McDonald case, was substantially the test that is laid down in the American Law Institute test. Now, I do not know whether you agree with that or not. Dr. OVERHOLSER. No, sir; I do not agree entirely with that. I think the basic concept of the ALT rule is a melange of the M'Naghten rule and the irresistible impulse rule. The CHAIRMAN. The M'Naghten rule is the "right and wrong" rule? Dr. OVERHOLSER. Yes, sir; that it doesn't come to grips with. the basic problem which was set up in the New Hampshire courts in 1870, and by the Durham rule here. And I do not think that basically McDonald did very much to change the basic concept about produc- tivity. . It pointed out very clearly and very properly that the jury decides. on the basis, hopefully, at least, of the evidence which is before the jury from experts. And it pointed out, too, that the evidence which is needed to shift the burden of proof must be something more than a scintilla. And I think that is proper. I am not so sure that-just where the borderline comes in between scintilla, some evidence~ substantial evidence, and preponderant evi- dence. Sometimes that is a bit difficult to determine. Of course, what bothers me, and what bothers Mr. Justice Brennan,. in the article which he wrote in the American Bar Association Journal 2 months ago, is that sometimes it will happen that the defendant, being indigent, cannot get the necessary support for his contention, perhaps, that he is mentally ill. And I think that .is one of the weak-~ nesses, perhaps, of administration of the criminal law, particularly in this country-that the indigent defendant perhaps does not get quite all his rights, whereas the wealthy one can bring in other evidence. Senator DOMINICK. Now, Doctor, where do you get that type of in- formation? I have seen these indigents brought in on accused crimes, at least in our State, and in many other areas, and they are supplied PAGENO="0132" 126 AMENDMENTS TO CRIMINAL STATUTES OF D.C. by the court at State expense, if it is a State case, or at their own ex- pense, if it is a Federal case, with a list of some of the most qualified lawyers in the whole area to defend them. I have yet to see anybody who got a better defense than an indigent defendant. Dr. OVERHOLSER. I was speaking, sir, not of lawyers. I am well aware of what you say. I was thinking particularly of medical evi- dence. And Mr. Justice Brennan made an eloquent plea in this arti- cle to which I have referred for psychiatrists to be, shall I say, as generous with their time as lawyers are in cases of this sort. Senator D03HNIOK. It is my understanding that if a plea by reason of insanity they are represented by court-appointed psychiatrists in most jurisdictions, are they not? Dr. OviurnoI~sr~R. Well, I cannot say about most jurisdictions. I rather think maybe. The CiIAIR~rAN. What is the situation here in the District of Co- lumbia, in response to Senator Dominick's question? Dr. OvEnhiolsER. They are usually sent- The CHAIRMAN. Is the indigent defendant provided with adequate psychiatric assistance? Dr. OVERHOLSER. District of Columbia General Hospital or St. Elizabeths? I do not say t.his is right-but some defendants will get the idea that since the District of Columbia General Hospital and St. Elizabeths Hospital are arms of the Government, they do not have quite a fair shake. The CHAIRMAN. In other words, what you are saying is that since they are an arm of the Government, they are more or less a branch of the prosecution, and therefore they are not completely independent of the prosecution. Dr. OVERHOLSER. Yes, sir. I am sure there are some defendants who feel that way. I do not agree with them at all. But I am think- ing now-because as Dean Pound said long, long ago, it is not so important that the courts shall do justice, but that the public shall be sure that they do justice. In other words, that the public and the defendant have that feeling. Senator DOMINICK. I have never yet seen a defendant who thought he had justice if he was convicted, whether it is in a civil case or whether it is that. criminal case. Almost invariably they feel that they have been mishandled in one form or another. And the lawyer who is designed to protect their rights, and I have been in that position myself on many an occasion, does his best to convince the court that they have not gotten their rights, because this is his job, and he does a pretty good job of it. But I cannot see that the question of whether the defendant feels that he has gotten adequate. treatment or not really is germane to the issue of whether he has in fact gotten adequate treatment. Dr. OVIRHOLSER. Yes, sir, of course. I think the latter is much more important, Senator. Senator Do~nMIcK. Well, I just wanted to set the record straight. as far as the legal end is concerned. I think that the indigent defendant. ~has extremely good care, just as I think in many cases the indigent sick person has very good care, too. The CHAIRMAN. Your additional exhibits will be received and in- *corporated and made a part of the record, Dr. Overholser. PAGENO="0133" AMENDMENTS TO CRiMINAL STATUTES OF D.C. 127 (The exhibits follow:) Am. J. Psychiat. 118: 32-34, July 19G1 MENTAL DISEASE OR DEFECT EXCLUDING RESPONSIBILITY1 A PSYCHIATRIC VIEW OF THE AMERICAN LAw INSTITUTE: MODEL PENAL CODE PROPOSAL LAWRENCE ZELIC FREEDMAN, M.D.,2 MANFRED GUTTMACHER, M.D., AND WINFRED OVERHOLSER, M.D. It is a truism that in any decisionmaking process the freer the flow of relevant information the greater the chances that the decision will be rational and just. Any impediment to pertinent communication increases the probability that ir- rational or, in the court of law, unjust decisions will be made. The clinical in- sights of psychiatry can accurately reflect the state of its knowledge and be efficiently utilized by courts only when the procedures for testifying do not suppress or distort the information. The fewer the restrictions imposed on the psychiatrist testifying in court, the greater the resources upon which the courts can draw. Decisions concerning the legal criteria for excluding responsibility obviously belong to other members of this Committee. The considerations which we are presenting arise from and are restricted to our area of training, competency, and primary interest-mental disease and mental defect. Only so far as. the pro- posal attempts to incorporate psychiatric disease need the. Committee grant our advice any more weight than that of other interested laymen. However, so far as it does, we. think it reasonable to hold that the unanimous opinion of the three psychiatric members of the Advisory Committee ought to be weighed as representative of the thinking of many of our colleagues in psychiatry upon whom the success of any formula depends. There is now a body of experience based on the history of the MacNaughton formula which may guide us to avoid a repetition of difficulties arising from earlier efforts. For example, a serious impediment to meaningful communication between psychiatrists and lawyers in the MacNaughton formula is the psy- chiatrists' mistaken assumption that MacNaughton makes an attempt to define insanity which . they consider in error. Lawyers see it as a statement of the con- ditions under. which an accused person might be exculpated from guilt and from being stigmatized as a criminal. The traditional reluctance of psychiatrists to testify in courts under the Mac- Naughton formula arises in large part from the frustration of language which the law requires of them. Many lawyers have failed to realize that freedom of psychiatric testifying is not identical with extension of psychiatric concepts in the procedures and decisions of the courts. Courts can only benefit from having the grea.test..possible clarity of exposition of psychiatric testimony, no matter what standards it sets for responsibility. Section Four of the Model Penal Code of the American Law Institute,2 devoted to Responsibility, has a dual function: It sets up the criteria by which, according to law, mental disease or defect may exclude responsibility. Responsibility is not a qualitative or quantitative intrinsic attribute of a person; it is, in this context, a legal judgment. Since, however, "the deed does not make the criminal unless the mind is criminal," the state of mind must be ascertained and a pathological state of mind is a psychiatric problem. However, the gauge for determining legal exculpation is not suitable for the differential diagnosis of psychiatric disability. So, Section Four also sets up standards, it guides, and it limits the commu- nications of the psychiatrists concerning mental disease and defect to the judge 1 This Is the minority report of the psychiatric members of the Advisory Committee to the American Law Institute preparing a Model Penal Code. The preparation of this paper was supported by the Foundation's Fund for Research In Psychiatry. 2 Center for Advanced Study In Behavioral Sciences, 202 Junipero Serra Blvd., Stan- ford. Calif. I The proposed American Law Institute formula, Section 4: 1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disea.se or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. 2. The terms "mental disease" or "defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. PAGENO="0134" 128 AMENDMENTS TO CRIMINAL STATUTES OF D.C. and the jury who are to make the legal decision. It is this second and to some extent competing function which concerns us. Confusion arises from this para- doxical effort to combine in one formula: (1) The criteria by which the courts will hold a man not legally responsible (i.e., punishable) ; and (2) the condi- tions for the exposition of the psychiatrist's knowledge. The question clearly should be: How may the courts optimally elicit testimony from the psychiatrist concerning psychopathology so that its own legal ques- tion concerning responsibility may be answered with maximum information at its disposal? The two major formulae, competing to supplant MacNaughton, are the proposed American Law Institute prescription and the Durham Decision.4 In our view both are refreshing and encouraging advances over MacNaughton and reveal significant agreement. The similarities between them might be summarized as follows: 1. Each is intended to free from responsibility a man who has committed an illegal act which is the result of, or the product of, mental disease or defect. 2. Each includes mental pathology-illness, disease, or defect. 3. Each rejects exclusively cognitive or inteflective approach. 4. Neither formula, presumably, is primarily concerned to define mental ill- ness but rather to indicate what degree of severity of mental illness protects an individual against the punitive and stigmatizing impact of criminal law. 5. Each incorporates the concept of causality, with the words "product of" and "as the result of." Both "product" and "result" refer to the cause. Cause is the circumstance, condition, event, which necessarily brings about or contributes to a result. Within this framework we state our reservations concerning the American Law Institute formula. We hold that the subtlety, complexity, and obscurity of its psychological entities and its actual intrusion into the field of psychiatric diagnosis unnecessarily limit the contributions of ps~ chiatry present and poten tial; and needlessly restrict the medical and psychological resources ~upon which the court may draw. The legal requirements concerning appreciation of crinil- nality aiid conformance of conduct and the negative definition that repeated crim- inal or otherwise antisocial conduct is not mental disease effect a gratuitous entrance into medical and scientific arenas which is unnecessary and may be harmful to the law's purposes. Specifically, "substantial" and "capacity" are psychologically vague, `ambigu- ous, unclear, and complex quantitative concepts. More important, "to appreciate the criminality" is an involved cognitive phrase at* least as likely to lead to confusion as "knowledge of right and, wrong." Further, since criminality is an illegal act with an aceompa;nyingnzental state, is there nOt a logical inconsistency or tautology here? For if the offender cannot "appreciate the criminality,", then his act is not criminal, and if it is criminal then he must have "appreciated" it. "To conform his conduct to the requirements of law" is an inverse restate- ment of irresistible Impulse which has proven to be an almost unusable defense. To lack"sub~tàtitia'l capacity to. conform his conduct to the requirements of law" is to have~ an irresistible impulse. The terms "mental disease" and "defect" specifically exclude "an abnormality manifested only by repeated criminal or other antisocial conduct." To refer to mental disease and then to limit its meaning is to rob the court of the worth of the psychiatrist's expertness precisely to the degree that it limits his ability to transmit clinical information. It predisposes to failure in communication. The phrase "mental disease or defect" should serve as a focus for the communica- tion and description of the combined behavior, feeilng, ideas, of a person so as to inform judge or jury. If the courts wish to determine whether mental disease or defect exists, then the law must use not only the semantics but the substance of psychiatry. It cannot, for example, meaningfully adopt psychiatric words, and then appro- priate to itself the right to establish psychiatric diagnosis criteria even by exclusion. It legally excludes forms of behavior which may themselves be symptomatic of pathology, for antisocial behavior may be the manifestation of illness. Repeated illegal or antisocial conduct is a manifestation of a person- ality, and this personality may be a sick one. There is a quality of behavior Durham Decision: An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect [94 U.S. App. P.C. 228, 214 F. 2d 862 (1954)1. PAGENO="0135" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 129 referred to as alloplastic, most commonly found in the psychopathic personality in which the symptom of psychopathology consists in the acting out. The manifestation of a man's abnormality may consist precisely in his repeated or otherwise antisocial conduct. To exclude such conduct from "mental illness" is to make a psychiatric judgment eliminating behavioral or conduct disorders. Apparently there is no insistence on legal formulae in diagnosing physical diseases, so why in this case? If the physician were similarly forbidden to use one outstanding symptom as criterion for physical illness, the absurdity of such an approach would become apparent, or if he were limited to two tests it would be considered unscientific. If the intent is to exclude the so-called psychopathic personality from irre- sponsibility, it is hard to see how it can succeed in this way. If the Com- mittee does not want to excuse as psychiatrically ill individuals the so-called psychopathic or sociopathic personality, this formula will not serve that purpose, for its use depends upon the testimony of psychiatrists; those who consider psychopathic or sociopathic personality a mental disease or defect will so testify and those who do not will not. In summary, essentially the Model Penal Code formula has added to the cognitive criteria volitional criteria. It has eliminated behavioral criteria except when they are combined with other phenomena. The Durham Decision permits free communication of psychiatric informa- tion and the American Law Institute creates roadblocks to such transmission. The Durham formula puts no limitations on psychiatric testimony except those which are implicit in the present state of the discipline The American Lai~ Institute formula requires psychiatric judgments as to substantial capacity demands essentially cognitive criteria concerning capacity to control, and insists upon including legal criteria in the old tradition by attempting to eliminate the psychopathic personality. Neither the Model Penal Code nor the Durham formula resolves the problems of psychiatry no legal formula can Psychiatry is an incomplete scientific and medical specialty. Indeed all medicine and science are developing and hence are incomplete This is reason to encourage its contribution rather than to emphasize its limitations in the courts. For these reasons, we recommend the adoption of the historic practice of the New Hampshire Court as recently reformulated in the case of Monte Durham CRIMINAL REsPONSIBILITY: A PsYcHIATRIsT's VIEwPOINT In the first half of Dr. Overholser's article, he discusses the mean- * ing of psychiatry, the makeup and development of personality, some of the disorders to which personality is subject, and the nature of a mental examination. With this as background, he proceeds to ex- press his views as a psychiatrist about the various legal tests for de- determining criminal responsibility. Commenting with favor on the Durham rule (214 F. 2d 862 (District of Columbia Cir., 1954)), he states that the psychiatrist is interested in the very criterion outlined in the Durham, case, namely, productivity. In his criticism of the ?~IcNaghten test, he refers to it as unrealistic and moralistic, and out of tune with psychiatric knowledge. (By Dr. Winfred Overholser, St. Elizabeths Hospital, Washington, D.C.) During the past decade or more, communication between the legal profession nnd the psychiatrists has become more active. Especially has this been true in the field of criminal law, and in that field hardly any question has been the subject of more interest, discussion and argument than that of criminal responsibility. It seems in order, therefore, for a psychiatrist to venture to a legal readership his views on this subject. The disciplines of law and medicine deal with the behavior of people. The ap- proach of the lawyer and the judge is bound. to be different from that of the psychiatrist, yet it seems reasonable to suppose that some of the psychological facts now known concerning behavior may be of value to the legal profession and to the lawmaker as well in bringing about improvement, both in the protection ~f society and in the assurance of justice to the individual accused. PAGENO="0136" 130 AMENDMENTS TO CRIMINAL STATUTES OF D.C. I write as a psychiatrist who has had fairly intimate experience with the courts over the past 35 years and who is reasonably familiar with the literature, both medical and legal, dealing with the psychology of behavior. Although the views I express are those of myself alone, I think that they are reasonably representative of those of psychiatrists in general, and particularly of those psychiatrists who have occasion to come into contact with the courts. First of all, what is psychiatry? Sir David Henderson, the dean of British psychiatrists, defines it thus: "Psychiatry is that branch of medicine which deals with those individuals who, from a combination of circumstances, constitutional or acquired, are unable to adapt themselves satisfactorily to their particular situation in life because of cer- tain signs and symptoms, certain maladjustments which may or may not require treatment in the home, the school, the college, the factory, the clinic, nursing home, or hospital." The breadth of this definition illustrates forcefully the great advances which have been made in the last half century, and it is a far cry from the days when the only interest of the psychiatrist was either in testifying in court or in send- ing to the "asylum" those who were "furiously mad". We have indeed learned much of the way the human mind operates, and substantial advances have been made in the line of treatment of mental disorder, both institutional and extra- mural as well. The modern era of psychiatry begins with the wOrk of Sigmund Freud. There were to be sure, pioneers like PInel and Dorothea Lynde Dix, who did much toward alleviating the lot of the institutionalized patients, but until the time of Freud, psychiatry was on a descriptive level. Just as Copernicus and Galileo shattered man's notions that the earth was the center of the universe and just as Darwin showed that man is after all not a special order of creation but a product of evolution, so Freud demolished the idea that man is entirely a reasoning animal. Rather he showed that man does not live and act by syllo- gisms alone. He demonstrated the driving force of emotion and the important and dynamic effect of unconscious factors in behavior. The fact that the emotions may on occasion overcome sound judgment has long been recognized by the law in the "heat of blood" doctrine as affecting premeditation, but recog- nition of the importance of unconscious emotional factors in the mental life has lagged in general acceptance. This, however, is not to say that all conduct is entirely predetermined, that man is blind, a puppet. Man is capable, even though conditioned by what has gone before, of testing his impulses and desires by reality and of making decisions; the prospect of penalties for violation of the prevailing code of conduct is one of the elements of reality. Indeed, it is only because there is determinism that rules of conduct can be expected to have any effect, or that any sort of treatment for mental dinorders can be `helpful. It is not entirely accurate to consider that to the psychiatrist the sick and the wicked are equally free of blame. THE MAKEUP AND DEVELOPMENT OF PERSONALITY Perhaps a few words are in order concerning the makeup and development of personality and concerning some of the disorders to which it is subject. What we generally term "mind" is an abstraction, an inclusive word which signifies the sum total of the ways in which the individual acts as a whole in response to stimuli, external and internal, which are constantly playing upon him. Mental activity, in other words, is merely one aspect of biological func- tioning. The mind does not have a separate entity, nor does it exist in a vacuum somehow separately from the body. The various parts of the body are unified through the actions of the nervous system, the central organ of this system being the brain, a complicated structure which receives the stimuli from the outside world as well as from the body itself, responds to these stimuli by motor phenomena of various sorts, and stores the various impressions which it has received. This phenomenon of storing these impressions is referred to as memory, a most important function. by means of which the effects of training are accumulated and various associations set in motion; some of these associa- tions at least appear to result in what is known as logical thought. On the basis of these memories and previous impressions, judgment is do- veloped. It follows, then, that damage to the brain may be expected to have an effect upon judgment and the other higher mental functiOns. The damage may be due to failure of development (a condition known as mental retardation), PAGENO="0137" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 131 or to external injury, circulating poisons in the blood stream, as from infection or drugs, and from degenerative changes due to tumor or arterial degeneration. Damage from any of these causes may be expected to bring about alterations, temporary or permanent, in the total functioning of the individual-in his con- duct, his judgment, and his ability to respond to stimuli-in short, in his mind. A. considerable part of the functioning of the nervous system is outside of volun- tary control. The autonomic or vegetative nervous system controls such vegeta- tive functions as the body temperature, the blood pressure, digestion and the various glands; it likewise acts as the mediator between the emotions and the functioning of the so-called involuntary organs. It is by means of this system that we experience, for example, "gooseflesh", blushing, pallor and sweating from fright, and through it the various symptom-complexes which are dealt with by the specialty of "psychosomatic medicine" are controlled. No two persons are born identically alike, and everyone starts life with his own constitutional makeup, of which the temperament is a part. Everyone has experiences as he is growing up, not all alike by any means; some of these are pleasant and some of them unpleasant, but all have a bearing upon the develop- ment of his personality. No two persons have quite the same background of ex- perience, and thus we properly expect wide variations in the behavior of indi- viduals. Furthermore, it is well demonstrated that impressions, experiences, and teachings, many of them consciously "forgotten," are nevertheless stored in what is referred to as the unconscious. Unpleasant experiences may be repressed, yet many come out ~u disguised form in phobias, tics, dreams, anxieties, and various neurotic and even psychotic manifestations. These constellations, with with a heavy emotional charge, are referred to as complexes. Everyone, of course, has them. It is how one deals with them or how they deal with him that is important. The child soon learns to distinguish between himself and the outside world with its demands. He develops a sense of reality which is constantly in use throughout his life for testing his desires and instinctual drives. The human being, indeed, is in a constant state of conflict between his desires, such as those for sex and food, for acclaim, approbation, and power on the one hand, and the requirements of the reality situation on the other. Life is always a compromise and a process of adjustment, and not all the forces which are exerted upon any one person can be resolved. There are no iron men, and although most persons lead fairly comfortable and law-abiding lives, stress of one sort or another, internal or external, may drive a particular individual into a neurosis, psy- chosis, or some sort of conduct which is denominated by the law as a criminaL May I make a personal statement of belief, which I think is representative of most of my colleagues, namely, that most persons fall within the category of "normal" and that many criminals are not In the legal sense "insane" or in the medical sense "mentally ill". I make this disclaimer because I realize that there are some persons who fear that psychiatrists if given their own way would find all offenders to be subjects for the mental hospital, and there are likewise those who even think that most psychiatrists consider the rest of the world deranged. Such is far from the case, even though as we look about us we note that every- one has his idiosyncrasies, just `as others note them in us. Indeed, it may be said safely that without an idiosyncrasy or two an individual would be a dull person indeed. With all the individual physical, temperamental, and intellectual variations among people, and with the vast differences in individual experiences, particularly during the developmental period, it is not strange that some persons develop disorders of behavior. PSYCHOSES AND NEUROSES I have spoken already of the organic types of mental disorder, such as senile "organic brain syndreme," as it is called in the prevailing nomenclature. In addition, there are certain gross distortions of personality which we generally refer to as psychoses, notably schizophrenia and the involutional psychoses, the latter being those mental disorders occurring in the involutional period of life. In psychotic disorders, both organic and those without known organic basis (some- times called functional) there is usually a considerable loss of contact with re- ality, or a marked elevation or depression of mood. It is of these types that people generally think when they use the words "mentally ill" or "insane." There is another large group of mental disorders, however, known as the neuroses, in which the individual is usually in substantial contact with his environment. He may realize that he is not well, hut he may at the same time suffer from PAGENO="0138" 132 AMENDMENTS TO CRIMINAL STATUTES OF D.C. various phobias, compulsive states, or dissociative states like hysterical am- nesia. It is in these compulsive states particularly that we find what is known as irresistible impulse. Perhaps kleptomania is the best example of these com- pulsive neuroses so far as the law is concerned. The so-called psychosomatic disorders are not of particular interest in the criminal law, although they often are of concern in tort law, as in the case of traumatic neuroses. There is another group of mental disorder, classified in the official nomencla- ture of the American Psychiatric Association as personality disorders. This includes, among others, the so-called psychopathic or sociopathic personality. The sociopath is characterized by lack of aim and of foresight, the failure to profit by experience, impulsiveness, egocentricity, a lack of emotional rapport with others, a lack of sympathy, a general immaturity and very little regulatory influence of intellect upon his behavior. A moderate proportion of criminals may fall in this group and some very decidedly do so. The notion that there is a "mental abnormality manifested only by repeated criminal or otherwise anti- social conduct" is, however, unpsychiatric. There is no such entity, even though the proposed Model Penal Code of the American Law Institute purports to ex- clude persons with a diagnosis of soeiopathic personality. There are many criminals who are not sociopaths, but the sociopath who comes into conflict with the law has numerous symptoms in addition to his antisocial behavior, and is decidedly a mentally sick man THE NATURE OF A. MENTAL EXAMINATION Let us now turn to considering the nature of a mental examination. There may be a very few cases in which. a glance even~ by an untrained per~on. will satisfy the observer that the subject is mentally deranged, but these cases are rareindeed. A proper examination calls first of all for a physical examination and if possible an electroencephalogram to determine from what are colloquially known as "brain waves" whether or not: there is a tendency toward epilepsy or some other gross abnormality of the brain. The presence or absence of gross neurological changes should be tested. A reasonably full history of the individual is essential, together with various psychological tests; the history should be obtained from the subject himself and from outside sources. No~ one is an. entirely dependable source of information about his own conduct, particularly in criminal cases, where self-serving and self-exculpatory declarations are likely to be met. The psychiatric interview should include not only the history but the ascertaining of the presence or absence of delusions and hallucinations, eválua- tion of the judgment of the subject. has recognition of his relations with those about him or what we term orientation, his memory, his thought processes, and his emotional reactions, such as undue elation or depression or indifference. There is hardly any one symptom which can be said to be pathognomonic of mental disorder and except in unusual instances there is hardly anything so. clearcut and obvious as, let us say, an X-ray of a broken bone. Isaac Ray, the great American pioneer in medical jurisprudence, said many years ago, "Insanity is a disease and as is the case with all other diseases the fact of its existence is never established by a single diagnostic symptom; but by the whole body of symptoms, no particular one of which is present in every case." The psychiatrist, whether examining an alleged offender or a private patient in his office, will take into consideration the entire body of symptoms and signs in an attempt to understand why the individual conducts himself and feels as he does. For this purpose several interviews or a period of observation in a mental hospital may be necessary. THE PSYCHIATRIST AND THE DURHAM RULE From what I have already said it will be seen that the psychiatrist is interested in the very criterion outlined in Durham, namely, that of productivity. While being questioned under the Durham rule (214 F. 2d 862 (District of Columbia Cir., 1954)) he is thus speaking as a psychiatrist, and has full opportunity to outline the history, the whole development of the subjects' conduct, and the relationship of his mental disorder, if any, to the act with which he is charged. The problem of causation of conduct is within the psychiatrist's province, whereas the M'Na.ghten rule and the frame of reference in which the questions under that rule are asked pose a moral query which is not within the competence of the psychiatrist. PAGENO="0139" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 133 Space does not permit any discussion of the evolution of the so-called "tests of insanity." All of them, until the establishment of the New Hampshire rule in 1870 and the Durham rule in 1954, drew a sharp line of dichotomy between sane and insane, the latter implying total loss of reason. Yet the law itself in a number of states has recognized that there is a "gray" area between the black and the white. I refer to the establishment in certain jurisdictions of the so-called sex psychopath group. Although this group is not at all well- defined psychiatrically, the demand for such legislation arose as, a result of pub- lic recognition of the fact that many persistent sexual offenders show them- selves to be entirely unamenable to routine correctional treatment, that although they are not "insane" in the eyes of the law they are by reason of mental deviation not readily deterrable. Some of these offenders are sociopaths, more of them in my opinion are neurotic, but in any event the principle has been established that here is a group of something other than frankly "insane" persons who should be dealt with by an indeterminate period of detention and, where possible, treatment; acthally a fair proportion of these offenders are amenable to psychiatric treatment. Although~ there is in the District of :Co- lumhia a sexual psychopath act, there is no question in `~y mind that under the Durham rule these persons could be acquitted as insane and confined, since their acts are quite clearly the product of mental disorder. I have indicated already that I have some reservations, to put it mildly, concerning the Americen LawInstitute formulation of Criminal irresponsibility." The formulation appears to' me to be a combination of `the M'Naghten rule ("capacity to' appreciate `the' criminality") and the irresistible impulse test' ("conform his conduct' tO the requirements `of law"). This formulation met the approval of the majority of the `committee and. has been adopted by the Institute it is a fact however that all three of the psvchritric consultants on the committee take exception to it I am not sure that a psychiatrist is corn petent to pass on whether or not the accused has "adequate capacity" to appre- ciate the criminality Or to conform his conduct. Subsection (2) of 4.01, which purports to exclude sociopathic personality from the definition of menthi `disease or defect, fails to do so because it fails to recOgnize the fact' that the' sociopath has' many `other symptoms than the mere antisocial behavior~ `So far I have endeavored to outline some of the psychiatric conceptsL'under- lying `the testimony of the expert `psyéhiatric witness. I have indicated, `tOo, the objections of the psychiatrist to testifying under the M'Nagkten rule. As a matter of `fact, many patients in mental hospitals whO by any test whatever would be' considered to be "insane" have at least some glimmering and some- times a strong sense of what'is right and what is wrong. The test is unrealistic and mOralistic, and `is out of tune with psychiatric knowledge. It was attacked by legal writers as well as physicians soon after it was enunciated and the literature is `replete with criticisms of it. An interesting study could be made, perhaps, of the psychology of the reasons why the M'Naghten rule has appeared to be almost immortal in spite of all of the psychiatric progress that ha~ been made in the last 117 years Judge Doe of New Hampshire who is responsible for the so~caI1ed New Hampshire rule, arrived at his formulation `after pro- longed study, concluding as he did that the matter of the mental state of the offender' i~ as much a matter of fact as his presence' at the scene of the crime. He held, too, that the law had no call to attempt to define disease. He said: "What is a diseased condition of mind is to be settled by science and not by law-disease is wholly within the realm of natural law or the law of nature. The municipal, civil law established by men for human government, ,does not de- clare what is disease of the mind any more than it declares what is `disease of the lungs or liver." The Court of Appeals of the District of Columbia in 1954, apparently by somewhat different reasoning, arrived at a similar result, namely that the proper test, if any, was whether or not the act was the product' of mental disease or defect. SOME DURHAM RULE CHARGES ANSWERED One of the charges made against the Durham rule is that it is vague. ,Cer- tainly the M'Naghten rule appears on the surface only not to be vague, al- though it is entirely out of tune with reality. But as Chief Judge Simon Sobeloff well says, "What we ought to fear above all is not the absence of a definition but being saddled with a false definition" (41 A.B.A.J. 793, 796 (September 1955)). The fuller meaning of "product" was clarified in the decision of Carter PAGENO="0140" 134 AMENDMENTS TO CRIMINAL STATUTES OF D.C. v. United States (252 F. 2d 608 (D.C. Cir., 1957)) as meaning that the mental disease, or defect was decisive or critical in bringing about the act. It is also alleged that the jury cannot arrive at a conclusion on such vague in- structions. This seems to me a specious argument, for juries appear to have very little difficulty in deciding what is a reasonable man, what is due care, what is negligence, what is malice or premeditation, just as in other types of cases they seem to arrive at some conclusion about causation. Under the Durham rule, they can be given guidance by full psychiatric evidence. Certainty is an il- lusory virtue in any conclusions involving the behavior of human beings, and this is recognized by the American Law Institute formulation of "substantial" or "adequate" capacity. Very few things in this world are certain, and even the law does not demand more than a finding beyond a reasonable doubt. Still another allegation against the Durham rule is that it will increase the number of acquittals by reason of insanity. I grant that the number has in- creased to some extent. From the date of the Durham decision (July 1, 1954) through November 16, 1960, two hundred twenty-nine persons have been found not guilty by reason of insanity and committed to Saint Elizabeths Hospital in accord- ance with the statute, with increases particularly in the past two years (59 and 100 respectively). This statute (D.C. CODE § 24-301 (1961)), passed in 1955 after the Durham decision, provides for mandatory commitment to Saint Elizabeths Hospital until such time as the hospital finds and the court agrees that the offender has improved sufficiently to be released without danger to him- self or others in the "reasonable future"; in such case he is entitled to a condi- tional release, or if he has recovered he is entitled to an unconditional release. Of these persons committed under this provision, forty-two have been released unconditionally and an additional sixteen conditionally; few, if any, of these persons have been returned to the hospital. Six others have been released on writs of habeas corpus, meaning -that the court has released the patient with- out thecontemplated certification from the hospital. One ;fact which sometimes escapes attention when acquittals by reason of insanity are being criticized is that in a substantial number of cases the period of confinement resulting has been far greater than if an ordinary sentence had been imposed. Several persons have been committed to Saint Elizabeths Hospital after acquittal of such charges as threats, disorderly conduct, unauthorized use of automobile, or even drunkenness. In spite of -the trivial nature of the charge, some of these persons havebeen found to be seriously ill mentally and potentiaUy dangerous. After all, if an individual is mentally ill and dangerous, it would seem to be to society's advantage at least to keep him in custody until he can 1~e released safely. I venture to suggest that the odds are in favor of a period of sequestration in the hospital that is longer than if a sentence -were being served. As for the subject, he has the advantage of being given treatment for his mental disturbance if that is practical. When one considers the large - number of criminal cases going through the courts of the District -it hardly seems that the public peace and safety have been very greatly threatened. The provision for mandatory commitment has been sustained by the Court of Appeals (1?agsdale v. Overh-olser, 281 F~ 2d 943 (D.C., Cir., 1900)). For a more detailed - study of the operation of the Durham rule, see James Clayton's article in the June 1960 issue of the Journal of the American Judicature Society, and the study by Abe Krash in 70 Yale Law Journal 905-952, May 1961. THE VIEWS OF CHIEF JUSTICE WEINTRAUB The concurring opinion of Chief Justice Weintraub of the Supreme Court of New Jersey in State v. Lucas (152 A. 2d 50 (1959)) is one of the recent decisions upholding the M'Nagh ten rule. It is a thoughtful document and one entitled to serious consideration by psychiatrists, although I must respectfully disagree with some of the views expressed. There is no doubt, of course, that society must be protected from the insane as well as the sane; in the District of Colum- Na the legislation enacted by the Congress takes care of this matter fully as well perhaps as does the liberation of convicted persons by parole boards, and probably better. I doubt whether the implication that the psychiatrist would "discard all concepts of insanity as a defense and deal with transgressors as unfortunate mortals" is quite within the facts. There are a very few psychia- trists who might consider the criminal act as strong presumption of niental illness, but they are greatly in the minority. I doubt, again, whether the lack of existing psychiatric facilities is sufficient objection to the adoption of such a rule as Durham. After all, if further institutions or those of a different sort PAGENO="0141" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 135 are needed for the protection of the public and for justice to the offender, it is up to the legislature and the administrative authorities to see to it that those facilities are provided. With one of Chief Justice Weintraub's points at least 1. am in hearty agreement. He favors "the admission of full psychiatric testi~ mony for the jury's consideration in determining whether a man should live or die." I would go further-if desirable in a capital case, why not in other prosecu- tions as well where the issue of sanity is raised? As a matter of fact, this is irecisely what the Durham rule encourages. A word may be said here in behalf of the Scottish and (now) English doctrine of diminished responsibility. In 1957 the 1-lomicide Act of Parliament provided in part that an offender shall not be convicted of murder "if he was suffering from such abnormality of mind . . . as substantially impaired his mental responsi- bility for his acts and omissions in doing or being a party to the killing." This doctrine has been in force in Scotland for nearly one hundred years, and now has finally been adopted by the English Parliament. The principle has in practice been employed in some American trials in lowering the grade of the offense, although it was specifically rejected by the Supreme Court of the United States in the Fisher case (328 U.S. 463 (1946)). There are gradations in responsibility. I am very glad that the Durham rule was adopted, and in my opinion it is workitig well. It has taken the psychiatric witness out of a straitjacket, it has given the juries an opportunity to be fully informed about the mental state of the offender, it has been fair to the offender who is mentally deranged, while at the same time the public safety has not suffered. The rule has been indorsed by many legal writers, and it is my hope as a psychiatrist that we may eventually see other courts follow the lead of New Hampshire and the District of Columbia. As the Court of Appeals said in the case of Stewart v. United States (247 F. 2d 42 (D.C. Cir., 1957)) "The rule laid down in Durham requires no different examination by the psychiatrist, but only a different examination of the psychiatrist by the lawyers. (It) simply allows the psychiatrist to testify in terms of mental health or ~illness without being required necessarily to answer questions on what he may consider `nonmedical topics [such] as "malice", "right and wrong", and "criminal intent".' One of the purposes of the rule is to remove some of the `barrier[s] to communication between lawyers and physicians". It allows greater altitude for evidence which throws material light on `whether the accused acted because of a mental disorder'." In closing, may I quote Chief Judge John Biggs' dissent in Smith v. Baldi (192 F. 2d 540, 568 (3d Cir. 1951)): "The rule in M'Naghten's Case was created by decision. Perhaps it is not too much to think that it may be altered by the same means." Dr. OVERHOLSER. The other article, Mr. Chairman, is an article of mine which appeared in the American Bar Association Journal, which constituted an address I made before the Chief Justices of the United States 2 or 3 years ago, in which I tried to take up some of these problems as a psychiatrist sees them. And the most recent thing I have written appeared in a foreign journal, but that was in English, may I hasten to add, and I called it "Psychiatry and Some Problems of Criminal Responsibility," in which I tried to put the thing in a~ historical context. The CHAIRMAN. It will be received. We are very happy to have your testimony. (The article follows:) PSYCHIATRY AND SOME PROBLEMS OF CRIMINAL RESPONSIBILITY (By W. Overholser, Washington, D.C.) It is a high privilege to have the opportunity to pay honor to Professor Man- fred Bleuler on the occasion of his 60th birthday. Ever since he assumed the Chair at the University of Zurich, he has been an indefatigable contributor to psychiatric literature, an eminent practitioner and lecturer. He bears an hon- orable name and he does so with honor to himself and to the memory of his distinguished father. PAGENO="0142" 136 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Some remarks may be in order concerning the role of psychiatrists in assess- ing the punishability, the accountability, or the responsibility, as it may vari- ously be termed, of the individual who offends against the criminal law. The mental state of the offender has long been of interest, both in the Continental and the Anglo-Saxon systems of law. Tilpian, the great commentator, who wrote soon after 200 A.D., stated that the madman, or the child, is not to be held accountable, "since a wrong is only able to exist by the intention of those who have committed it." In general, it may be said that the attitude of the Continental law was considerably broader and less restricted than has been the case in the Anglo-Saxon law. In the Belgian and French Codes, for example. it is held merely that the offender has not committed a crime if he was in a state of mental aberration (démence) without attempting to define the nature or extent of that aberration. The Swiss Penal Code has been somewhat more restrictive, stating (Section 10) that the offender is not punishable who by reason of mental illness, idiocy, or grave alteration of consciousness, did not possess at the moment of the action the ability to appreciate the illegal character of his act, or to conduct himself in accord with that appreciation. It is of interest to an American to note that the Swiss Code recognizes diminished re- sponsibility, a concept which has oniy lately been scatteringly recognized in American law. AnOther aspect `Of psychiatric testimony in the Continental law, as "distin- guished from the Anglo-Saxon, is the rOle of the psychiatrist as an advisor to the court rather' than as a partisan. I shall speak more of these distinctions later on. It might be pointed out, however, at this' point that the rOle of the physician has not always been clearly recognized as one of competence in this field. Johannes Weyer's views, which to us sound modern, were dismissed sum- marily `by the Saxon Code in 1572, with the statement that since he was "merely a physician and not a jurist" his views were important, and Weyer's archenemy. Jean Bodin, made a virulent attack on him, even accusing him of being an instru- ment of ,the devil. Paolo Zacehias, however, the Protomedicus of the Papal Court, in the early 1600's, maintained that only a physician could evaluate for `the courts the mental condition of an accused. On the other hand, Immnn'uei Kant and J. C. Hoff baser, the Ominent `legal writer' of the 18th Century, believed that the proper testimony on such topics should be given by a philosopher rather than by a physician. I have mentioned very' briefly some of the aspects of the Continental law re- garding responsibility, merely to emphasize a few of the distinctions between the Roman and the Anglo-Saxon traditions. The earliest systematic' treatise in the Anglo-Saxon law is that of Bracton, who' wrote in the 13th Century. He Subscribed to the doctrine laid down by Tjlpian much earlier; namely, that the madman and the infant are not to be held accountable for their offenses, unless there was an intent to injure. His state- meñt is often quoted to the effect that the madman (furiosus) "does not know what he is doing,' is lacking in mind and reason, and' is not far removed from the brute." Starting with Bracton and coming down largely to the present day, it has been characteristic of the English and American law that judges in hand- ing down their decisions through the years have attempted consistently to specify the type and degree Of mental disorder which would exculpate the offender. The eriteria of "insanity"; that is, of mental disorder which would excuse, varied, as was to be expected, from time to time with what little advance there was in those days of the knowledge of mental mechanisms. Lord Coke and Lord Hale, writing in the 17th Century, emphasized criminal intent as important, considering that if the mental disorder abolished this intent, then a, crime had not been ~com- mitted. There were distinctions at that time between total and partial insanity. Lord Hale suggested the test of understanding as being that possessed by a four- teen years' child. A century later we find the knowledge of good and evil re- quired, but it should be pointed out that this meant good and evil in the abstract sense and not necessarily as applied to the act in question. At about this time. in 1724, the "wild beast test" was introduced. In 1800. delusion was laid down `as the important test [1]. but this test did not receive much later attention. The `tendency in the English law seems to have been toward a broadening of the test, but any trend of this sort was nullified by the very strict interpretation given by the Judges of England in the case of M'Naghten in 1843[2]. In this case the defendant. obviously deranged. had been acquitted by reason of insanity after `having killed the clerk of the Home Secretary. As a result of public furor, the `House of Lords asked the ,Judges of England to state what the proper instructions to the jury would be in a case of this sort. The Opinion of the ,Tudges has had a PAGENO="0143" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 137 most extraordinary life. Indeed, it is still the prevailing law in England and in most of the American states. Briefly, the opinion stated that in order to estab- lish a defense on the ground of insanity, it must be proved that at the time of committing the act, the party accused was "laboring under such a defect of rea- son from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know be was doing what was wrong." The Judges emphasized that this knowledge of right and wrong re- referred to the very act charged rather than right and wrong in the abstract, and not only to legal but probably also moral right and wrong. A few very serious objections to the M'Naghten Rule may be mentioned: It operates with relation to psychopathological notions which are wholly at vari- ance with present-day psychiatric conceptions; the criterion is basically an ethical rather than a psychiatric one, right and wrong being ethical questions. Finally, it deals only with disorders of the intellectual aspect of the mind, making no allowance whatever for aberrations characterized by deficiency of volition or other emotional factors. The test was attacked almost immediately after it had been enunciated, and it has been frequently since criticized by legal writers and psychiatrists, yet it still persists. The basic objection by the psychiatrist is that he is not asked a psychiatric question at all, but rather a moralistic one, a ques- tion in a field in which he has nospecialcompetence whatever. Another so-called "test," evolved in the United States even slightly earlier than the so-called M'Naghten Rule (1834) is known rather loosely as the "ir- resistible impulse" test. According to this doctrine, the power to choose or for- bear to do the act was necessary in order to establish criminal irresponsibility, 01 as an Ohio court phrased it, "Was the accused a free agent in forming the purpose to kill?" [3]. Some of the earlier cases seem to have linked this type of defect to knowledge of right and wrong, combining the two as it were, but later decisions seem to have recognized the volitional aspect as distinguished from the cognitive as sufficient in itself if impaired to warrant a defense of lack of responsibility. It was an advance, of course, to recognize the emotional elements in crime as against the intellectual, but here again the test called for one symptom rather than a totality. From the psychiatric po.int of view it is almost as difficult to say that the defendant labored under an uncontrollable impulse as it is to say that he lacked capacity to recognize the difference between right and wrong. The "impulse" test is recognized in about twenty of the American states. Both of these so-called "tests," until the establishment of the New Hampshire Rule in 1809 [4], and the Durham Rule in the District of Columbia in 1954 [5], drew a sharp line of dichotomy between "sane" and "insane," the latter term implying total loss of reason. The New Hampshire Rule, enuniciated in 1869, stood alone until the Durham Rule was adopted in the District of Columbia in 1954. Judge Doe formulated the rule after prolonged study, concluding that the matter of the mental state of the offender is as much a matter of fact and not of law, as, for example, his presence at the scene of the crime. He held, too, that the law should not attempt to define disease, saying that a "diseased condition of the mind should be settled by science and not by law. Disease is wholly within the realm of natural law or the law of nature." Both the New Hampshire and the District of Columbia rules, then, inquire whether or not the act of the accused was the product of mental disease or defect. If there is any question on which the psychiatrist should be competent to speak, it is the relationship between the behaviour of the defendant. and any mental deviation from which he may be suffering. In other words, the psychiatrist under the Durham or the New Hampshire rule speaks as a psychiatrist. He has full opportunity and should use it to outline the history, the development of the subject's conduct and the relationship of his mental disorder, if any, to the act with which he is charged. - The problem of causation of conduct is within the psychiatrist's province, where- as the M'Naghten Rule and the frame of reference in which the questions under that rule are asked pose a moral query which is not within his competence and under the "irresistible impulse" test ask a question which is extremely difficult, if not impossible, of .answer from the evidential point of view. The Durham Rule has not been adopted as yet, by any other juris~liction, although a number of judges have gone out of their way to explain why they were not adopting it. Their principal objection seems to be that the Durham Rule is vague, whereas, say the judges, the M'Naghten Rule is definite. This definiteness is quite illusory, as well as wholly lacking in psychiatric reality. For example, there has been dispute on the meaning of so simple soimthng a phrase as "nature and quality." As one of the eminent jurists, Chief Judge PAGENO="0144" 138 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Simon Sobeloff says, "What we ought to fear above all is not the absence of a definition but being saddled with a false definition [6]." Very few things are certain either in the law or in psychiatry, but it seems clear that the jury which may have to decide complicated questions of finance, of liability, of negligence, and so on, need have no fear of coming to a conclusion on a question of responsi- bility where they are guided by expert evidence and particularly by a full ex- planation by the psychiatrist of the case as he sees it. The American Law Institute, in drawing up a Model Penal Code, has struggled with the problem of a definition of responsibility, a definition which to the author seems quite improper to be embodied in legislation, since it is properly a judicial matter. The "test" proposed includes, in somewhat changed language, a combination of the M'Naghten and the "irresistible impulse" rules. It is doubt- ful whether it is any advantage whatever over those two rules, both of which are subject to serious criticism. Another serious defect of the Institute's formu- lation is the vain atetmpt to exclude "psychopathic personality" as a defense by defining it as a "mental disorder manifested only by repeated criminal con- duct or otherwise antisocial conduct." The inadequacy of this definition is pre- sumably obvious to any psychiatrist. Qualifications of the Durham Rule have been suggested, notably by Chief Judge John Biggs, Jr., in the Currens' decision [7], and it is safe to say that the last word is far from having been spoken [8]. Opinion seems to be unanimous that M'Naghten by~ itself ought to be abandoned, and in England, the doctrine of diminished responsibility (recognized in the Swiss law, and in the Scottish law as well), has recently been adopted by Act of Parliament. Under this provision, a person "shall not be convicted of murder if he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions [~fl." The principle has been specifically repudiated by the Supreme Court of the United States (with three dissents [10]), although at least one State court has recognized it. As a prac- tical matter, however, the various degrees of crime which are recognized in most of the American states furnish an opportunity for prosecution on a lesser charge if it is thought that there are extenuating circumstances, including mental dis- order, of a degree less than is sufficient to warrant finding lack of responsibility. A modification of diminished responsibility which is recognized in the American law consists in the existence of the so-called sexual psychopath laws. Although this group is not at all well defined psychiatrically, and there are certain objections to this type of legislation, the basis lies in recognition of the fact there are persistent sexual offenders who have shown themselves to be entirely unamenable to routine correctional treatment, but who are not "insane" in the eyes of the law. They are nevertheless, by reason of mental deviation, not readily deterrable. Some of these offenders are sociopaths (psychopathic per- sonalities), more of them probably suffering from neurosis. In any event, here is a recognition of the principle that there is a group of offenders who are less than frankly insane but who should be dealt with by an indeterminable period of detention and, where possible, treatment. As a matter of fact, a fair proportion of these offenders are amenable to psychiatric treatment. It may be mentioned parenthetically here that under the Durham Rule in the District of Columbia, a considerable number of persons diagnosed as suffering from sociopathic or psychopathic personality have been acquitted by reason of insanity, and com- mitted for an indeterminate period to St. Elizabeths Hospital. It would seem that this is a decided advance in the law from the days when it was thought that all offenders were either completely sane or completely insane. Psychiatrists agree that the persistent sexual deviate presents a psychiatric problem. Granted that the law recognizes that there are mental disorders or devia- tions conforming to certain so-called tests which will exculpate from charges of crime, the question readily rises as to how the information concerning the mental state of the offender is to be presented to the court. It may be mentioned that in all felony cases the defendant in the United States is entitled, if he wishes, to a jury trial. This practice differs from that in vogue in some of the European states. Furthermore, in the European courts in general, the psy- chiatrist is an advisor of the court, an expert recognized as authoritative, and, at the same time, impartial. Such, unfortunately, is not the case in the United States and England. Until the 17th Century, it was the common practice for judges to call in medical men to advise them, or indeed, experts in almost any field, but since that time with the rise of the importance of the jury, the practice developed of summoning expert witnesses by the respective parties to the trial, just as is done with ordinary witnesses. In this way, the expert soon came to PAGENO="0145" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 139 bear the stigma of partisanship, and unfortunately at times was even accused of venality. At any rate, it must be obvious that the appearance of partisanship weakens the testimony of the expert. Furthermore, any possible deviations. or differences of opinion between the two sides are readily emphasized by the~ respective lawyers in their methods of cross-examination and in their framing of the hypothetical question. Another question may arise; namely, whether a defendant's mental deviation is recognized. It is indeed not impossible that a defendant may be mentally ill, though not conforming to the layman's idea of the "raving maniac," so that. an injustice may be done him through failure to present the facts to the court. concerning his mental illness. Over forty years ago, the Commonwealth of Massachusetts devised a proce- dure known as the Briggs Law, whereby persons charged with certain types of offense, particularly capital offenses or cases of recidivism of felony, whereby the defendant was referred automatically to the Department of Mental Health of the Commonwealth for examination by psychiatrists. This report, available to both the prosecution and defense, to the court and to the probation officer,, carries very considerable weight since it was obviously impartial and competent.. The proportion of defendants found to be clearly mentally ill has been low, and~ indeed all the types of recommendations for commitment, observation, of sug-~ gestion of low intelligence, total less than 20%. Thus the lie is given to those who accuse the psychiatrists of wishing to make out all offenders as mentally deranged. It seems strange that after forty years, only two other states have adopted even in part the provisions of the Briggs Law. It is by far the most practical method yet devised of providing sound information to the court con- cerning the mental state of the defendant and insuring recollection of his mental deviation, if any. As the frontiers of psychiatry are extended, as a greater knowledge of human behavior in its wellsprings becomes generalized, and as the public becomes more clearly aware of the fact that there are many so-called borderline cases, the line between criminal behavior and mentally abnormal behavior will not be so clearly drawn as some would like to think. There is every reason to believe that there will be a greater recognition in the courts of the contributions which psychiatry may make for a more enlightened dealing with the offender and thereby a greater degree of protection of society. Perhaps, indeed, we may look forward to the establishment of "treatment tribunals," as proposed by Wharton and later by She1~don Glueck, leaving to the jury the question only of guilt of the act and making the matter of disposition a wholly administrative matter. Then, and probably only then, will it be possible to avoid such concepts as "insanity" and "responsibility." REFERENCES [ill Hadfield's Case, 27 Howell St. Tr 1282. [2] 10 Clark & FIn. 200. For a general discussion of the historical development of these "test" see Guttmacher M., Archives of Criminal Psychodynamics 4, 647 (Fall 1961). [3l~ 12 Ohio Reports 483 (1843) and Wright's Ohio Rep. 612 (1834). [4] 49 New Hampshire 399 and 50 New Hampshire 369. [5] Durham v. U.S.: 214 Fed. 2nd 862. [6] Insanity and the Criminal Law: From McNaghten to Durham and Beyond. Amerlcan,Bar Association Journal 41, 796 (1956). [7] u.s:v. Currens: 290 Fed. 2d 751 (1961). [8] See Burger J.: Dissenting opinion In Corner Blocker V. U.S., 282 Fed. 2nd 853 (1.961). [91 Homicide Act of 1957. [10] Fisher v. U.S., 328 U.S. 463 (1946). See comment by Weihofen H. and Overholser W. 56 Yale Law Journal 959 (1947). [11] Ch. 123, General Laws, Sec. 100A. See Overholser W., "The Briggs Law of Massa- chusetts"; A Review and an Appraisal. Journal of Criminal Law and Criminology 25, 859 (1935). Address of the author: W. Overhol8er, M. D., The Essex, Apt. 415, 4740 ConnectIcut Avenue NW., Washington, D.C. (8). The CHAIRMAN. If I understand you correctly, you say that the test that is now being developed by case law in the District of Columbia is an adequate test for insanity. Is that your opinion? You would not enact a statute to define insanity. You would depend upon the courts to lay down the test. Dr. OVERHOLSER. Precisely, sir. Yes, sir. The CHAIRMAN. Thank you. 25-260-64-pt. 1-10 PAGENO="0146" 140 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Senator Do~rINIcK. If I might, Mr. Chairman, I would like to go into this a little more. Doctor, I have great respect for your competence and ability. And I do not intend to be cross-examining you on any of these. But I want to see in what context. we are talking. Your general thesis, then, as I understand from your answer to the chairman's question, is that the court should determine what are the tests as to whether a. defendant is sane or insane. Is that accurate? Dr. OVERHOLSER. Yes, sir. Senator DOMINICK. And in each court, of course, you have a differ- ent judge, a.nd you have a. different person. So therefore, the rules in each specific case might well be different, might t.hey not? Dr. OVERHOLSER. I should say in any one jurisdiction t.hey ought to be uniform, just as there is here now by the decisions of the court of appeals-and .the one case that has gone up to the Supreme Court of the. United States. Senator DOMINICK. But this takes quite a long time, to arrive at a uniform status for determining whether a person is sane or insane, does it not? Dr. OVIERHOLSER. The courts have been doing business for a long, long time. Some of them have not made much progress a.s far as keep- ing up with the findings of science, and particularly of psychiatry. I mean the 1Jic~Yag/iten. rule is still the predominaift rule in the United States. There. are many jurisdict.ions having also the so-called irresis- tible impulse rule. And then there is ~ew Hampshire and the Dis- trict, and so far those are the only two, which have adopted the so-called productivity test. And I think that at. least one State, and maybe one or two more-Dr. Guttmacher may kiiow-have adopted in essence the ALT formulation. Senator DOMINICK. Now, Doctor, to lay the groundwork for this, I would say that the law is at best an inexact science. I do not. know whether you would agree with this or not; but as a lawyer, a.nd as a practicing one before I entered Congress, I would say that. Would you say that psychiatry is an inexact science? Dr. OVERHOLSER. Yes, sir. I would agree with both of these state- ments. Senator DoMINIcK. If you then agree with both of those statements, and you add into it the element of different judges a.nd different branches of the court, don't you get t.wo elements of inexactness in trying to determine whether a person is sane or insane, within t.he terms of responsible conduct?. Dr. OVERHOLSER. I suppose that has been the case ever since the con- cept of criminal responsibility was developed. Senator DOMINICK. What I am trying to bring out is that wouldn't we pyramid the doubts and confusion by simply leaving this up to the courts to determine, whether or not a person is responsible or not responsible for a felonious act? Dr. OVERHOLSER. I think you would embalm t.hem just the way a butterfly could be embalmed in plastic. There would be no chance of further change-for practical purposes, whereas t.he c.ourts can change their minds, and sometimes do. Senator DOMINIcK. And then what. happens if the courts do change their minds on people who have been acquitted or convicted on t.he basis of rules which have been reversed by the court? PAGENO="0147" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 141 Dr. OVERHOLSER. Reversed subsequently? Senator DOMINICK. Yes. Dr. OVERIIOLSER. Well, of course, if they have been acquitted, there is nothing you can do. Senator DOMINICK. That is correct. And they are released on the street, are they not? Dr. OVERHOLSER. Not here. And in quite a number of juristhc- tions-certainly not in England. There is a provision for confine- ment until the doctors and the courts have determined that the person is reasonably safe. And of course boards of parole make mistakes, just as psychiatrists do, as far as predicting behavior is concerned. At least so I have been informed by the newspapers. Senator Do~nNIcK. That is all I have. The CHAIRMAN. Thank you very much, Dr. Overholser. We cer- tainly appreciate your testimony. The staff will get your exhibits. Dr. OVERHOLSER. Thank you very much. The CHAIRMAN. Thank you. Our next witness is Dr. Guttmacher, chief medical officer of the supreme bench of the city of Baltimore, member of the Advisory Committee on the Model Penal Code of the American Law Institute. And it has been called to my attention that you have beeii quoted on page 92 of the House report, H.R. 7525, with relation to the knowledge of wrongfulness test, having written in the Chicago Law Review, 1955. We are delighted to have you with us, Doctor. STATEMENT OP DR. MANFRED GUTTMACHER, CHIEF MEDICAL OFFICER, SUPRE1\~E BENCH OF THE CITY OF BALTIMORE Dr. GUTTMACHER. I wish to thank you and the committee for having asked me to testify before you. This is a problem- The CHAIRMAN. Before you get into the problem, I wonder if, for the recOrd, you might not indicate what your responsibilities are as the chief medical officer of the supreme bench of the city of Baltimore. Is the supreme bench of the city of Baltimore a trial bench, or an appellate bench? Dr. GUrrMACHER. It is the trial bench. I have been chief of this facility since 1930, a psychiatric advisory office which examines cases that are referred to us by the court or by various agencies connected with the court. We render reports and frequently testify. Our office consists of three half-time psychiatrists, including myself, four, actually, and two full-time clinical psycholocrists, a social worker, and a secretarial staff. We see all the cases w~here there is a not- guilty-because-of-insanity plea. A good many cases are seen postconviction to advise the sentencing judge in regard to the personality makeup and the character structure of the individual with whom the judge is dealing. * Senator DOMINICK. May I interrupt there, Mr. Chairman? The CHAIRMAN. Certainly. Senator DOMINICK. I wonder if you could give us any idea from your experience, Doctor, as to the percentage of cases where a person is caught in a felonious act, as far as the actual conduct of that act is concerned, that plead not guilty by reason of insanity. Dr. GuTTMACHER. The number that make the plea? PAGENO="0148" 142 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Senator Doxtn~IcK. Yes, just a rough est;imate. Dr. GIJTrMACHER. Yes. The figures run, I think, in Maryland, about 1i~ to 2 percent of individuals who come to trial in the criminal courts are found not quilty because of insanity. I would say the plea is not made, perhaps, more than in 3 or 4 percent of the cases. That would be-I do not have any actual statistics to support that, but I think that is a fairly accurate guess. Senator DOMINICK. Are we talking now in terms of percentages of the more violent crimes, or are we talking about the overall crime rate? Dr. GUTTMACHER. Well, I deal only with the trial court level. We have not, up to now, been dealing with the police court type of case. So that there are, I think, about 5,000 to 6,000 individuals who come before the criminal courts of Baltimore, and this is the group with which I deal. The statistics that I give you would be in regard to that particular group of cases. These are the more serious crimes, as a whole. Senator DOMINICK. Would the percentage that you quote be equally applicable to the class of cases where death is involved? Dr. GUT'rMACHER. Death is involved? No; the insanity plea is made more frequently in capital offenses than in any other type of case. Senator DoMINICK. Do you have any idea what percentage that might involve? Dr. GCTrMACHER. This, sir, is a guess. I would say that not more than 10 percent, at most. And the reason that the figure is relatively low in Baltimore is that these cases are frequently referred to our office for pretrial examination. I think that our office is sufficiently well established, and because of our neutral position, if we render a report saying that we feel that this man is not suffering from a definite mental disease, that most defense attorneys will drop the idea of making an insanity plea. I believe if you go to a jurisdiction that does not have the particular type of office which we have, you would find a greater percentage of not-guilty-because-of-insanity pleas in capital cases. Senator DOMINICK. You do not happen to know what that might be in the District of Columbia, do you? Dr. GUTTMACHER. No, sir; I am not familiar with that at all. Senator DOMINICK. Thank you, Doctor. The CHAIRMAN. We will ask the staff to secure that from the proper officials. The U.S. attorney did testify yesterday, this is not completely responsive to the Senator's question, but he did testify that in 1q62 the figure of acquittals by reason of insanity was 13 percent of all defend- ants tried, which would seem to be materially higher than you have experienced in Maryland, 13 percent of all defendants tried. Dr. GtTTI'MACHER. Well, we have in Maryland the MeNaglitert rule. It has not been in any way amended. We must deal with the rule which we have. I have never been a proponent of that rule. I think that it doesn't administer justice as it should be administered. I do not know, sir, how to proceed. The one question which has come up which I am afraid I cannot give any very authoritative opinion about is whether this great problem which has been a vexing one for so long should be settled by the courts or by legislative enact- ment. PAGENO="0149" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 143 I have talked with Chief Justice Brune, of our court of appeals in Maryland, a very respected jurist, who feels that it is a legislative matter. I am not in a position to say, except that I have appeared before committees of the Maryland Legislature on various matters. As a matter of fact, I have appeared before them in regard to changing the MoNaghten rule. And I must say that it has always impressed me that the caliber of mind which composes the appellate court judges is better equipped to deal with so complex a problem than the State legislators. Now, that does not, of course, apply to the problem that you have, because you have an entirely different group of men who will be dealing with this problem. But for my own State, I would far rather see the court of appeals deal with this very complex problem, than to see it left entirely to the State legislature. Senator DoMINICK. If I may say so, Mr. Chairman, that was ex- tremely gracefully put. The CHAIRMAN. It certainly was. Dr. GtTrrMACHER. Now, if you permit me-. The CHAIRMAN. I see why you have been there since 1930. You may proceed. Dr. GUTPMACHEE. If you will permit me, I listed what I thought ivere the good points in this bill, and then I have listed a few~that. I thought were not good points. I think the first thing, that the appointment of a neurological expert whenever mental disease or defect appears likely to be an element in the case, is important. And I do not know-as a layman, it seems to me that this bill has particular importance, because I believe that the laymen in the United States look to the District of Columbia to have what seems to be model legislation. And ~I feel that .it is very important that this bill be a model bilL And I think the fact that the appointment of a neutral expert, whenever the case- ~whenever the mental condition becomes a definite issue, is a real step forward. I think secondly, that the report should be made available to all parties seerns:to be a very wise provision. I think there is too much tendency to play the game as if it were some sort of an athletic encOunter rather than a seeking of justice. And it seems to me that this is best obtained when there is a frankness and an honesty about such involved and complex matters, and such serious matters as insanity in criminal cases. I think that the third point, that no psychiatrist is permitted to testify who has not examined the accused, is a good point. I think Dr. Overhoiser had some reservations about that, I think, in regard to the use of the hypothetical question. I am, of course, not legally trained. My own experience with hypothetical questions has not been a happy one. I feel that in most instances the hypothetical question confuses rather than clarifiesissues. And I think for a psychiatrist to come into a court and testify on a matter of this kind when he has never had the responsibility or opportunity of examining the man about whom he is testifying is not wise. PAGENO="0150" 144 AMENDMENTS TO CRIMINAL STATUTES OF D.C. I think that the psychiatric testimony permitted to prove the pres- ence or absence of a state of mind which is an element of offense is important, particularly in homicide cases. I think the fifth point, that the bill does incorporate from the American Law Institute Model Code what seems to me an extremely important provision-and that is that the psychiatrist, should be allowed to state fully his views and the basis for them. I think one of the most stultifying situations that one can find oneself in is when one gets on a witness stand and takes an oath, not only to tell the truth, but the whole truth, and then one has inept counsel, and inept counsel fails to ask the questions that are really germane to the issue. And I think one often leaves the stand under those conditions feeling that one really has not carried out one's responsibility, one has not been able to give the jury the full information that it requires. So that I feel that the incorporation of this provision in the bill is extremely wise. Then I think that-the sixth point-I think that a conditional dis~ charge of the patient by the court is also a. very wise provision. I agree with Dr. Overholser-the word "probation" has come to mean a criminal procedure. And I think releasing the patient on conditional release, or convalescent status, or whatever word one wants to use,. would be preferable. But the principle is important. The Sunday before last I went up to the State hospital in Peunsyl- vaiiia, north of Scranton, to examine a man who had killed his wife and child some ~½ years before. The question came up whether this man is ready for release. I would be quite enthusiastic, quite ready to strongly advocate his release if the court were able to lay down cer- tain conditions as to further treatment, observation, and living under certain conditions. On the other hand, I have some serious misgivings about not releas- ing a man without such conditions. I believe there are only three States where the release is conditional. And I think it is an important point, that this should be made. The CHAIRMAN. Is it conditional in Maryland, by chance? Dr. GUTTMACHER. No, we have nothing like that.. The CHAIRMAN. I see. Dr. Gurnr~&cm~R. Now, the two less important points, I think, are not good-I believe that the incorporation from the American Law Institute, the provision that the report is only to be used in relation to the mental condition of the accused and not used as to his general guilt or innocence, is a wise provision. Now, perhaps the case law in the District of Columbia, with which I am not familiar, makes it impossible to use revelations which might have been given psychiatrists during the course of an examination as evidence in the general question of guilt or innocence. But it seems to me that you are certainly much more likely to get the full cooperation of your patient if there is no probability of the use of this material as evidence in the court. I also believe that denial of the right to inform jurors of the conse- quence of a not-guilty-by-reason-of-insanity verdict is not wise. I know that the point has already been raised. I think that I agree with Dr. Overholser that the general public thinks that as soon as a man is found not guilty because of insanity, this means that he just walks out of the courtroom, and he is a free man. PAGENO="0151" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 145 A good many years ago, Dr. William White, who was a great Super- intendent at St. Elizabeths, made a careful statistical study of the time of capital offenders, that is, first degree murderers given life sentences, sentences in the penitentiary as compared to the time that these people spent in psychiatric hospitals. And as I remember it, quite definitely the average stay in the psychiatric hospital was longer than the stay in the penitentiary. Now, I do not mean to say that that is necessarily any longer the case. I think things have changed, and the figures may not be the same, but there are many people who stay in psychiatric hospitals for life who have been found not guilty by i~eason of insanity. And I think it is only fair and wise that the jury have at its disposal all of the practical material which it really needs in reaching deci- sions. And I am sure that you gentlemen who have dealt with juries know better than I that often minor points of this kind, as much as we do not like to feel that these enter into the final decision, are things which really do make the decision. Now, the definition, which is the important thing-I am not enthusiastic about this definition. I know that it is basically the American Law Institute definition, and Dr. Overholser has talked to the point, where he and Dr. Freedman and I were not favorable to this definition. I feel that Durham, particularly with McDonald, is a very workable system. I think McDonald has been a very important decision, because the definition that it gives of mental disease is a functional one, it is not a technical one, it is not phrased in ethical terms. And further- more, I think that it stresses the question of degree. And it has been brought out before, psychiatry is far from an exact science, and we cannot make an exact cutoff point of black and white. There is a continuum between health and disease. And I think thefact that the McDonald decision talks about the substantial-using this word twice-"substantial," I think is important. Furthermore, I think that it does put the burden, it stresses the fact that this is a jury decision. I have a reprint of an article 1 published this year, which I would like if possible to give to the committee, entitled "What Can a Psychia- trist Contribute to the Issue of Criminal Responsibility ?" And in there, I point out that there is no such medical entity as responsibility. We have no X-ray of electroencephalograph or anything else that is going to determine this. This is a social concept that society places on an individual. I think that psychiatry should not be made the 13th juror. I would far rather see the actual question not put to the psychiatrist, no mat- ter how it is termed. I would rather see the psychiatrist merely state his analysis of the individual, whether he is suffering from mental disease, what the chief characteristics of this mental disease are, in what way the mental disease has affected the intellectual processes of the patient, and his social control. This is as far as I think psychiatry should go. I don't like to be cast in the role of the impoitant individ- ual in the whole process. I do not think this is a psychiatric decision. It is a decision that should be made by one's peers, by the community. The CHAIRMAN. Don't you think the jury, though, leans very heavily on the expert advice of men in your field to make this all-important de- PAGENO="0152" 146 AMENDMENTS TO CRIMINAL STATUTES OF D.C. termination as to whether or not the defendant did have the mental capability, or was mentally responsible for his act ? It seems to me if I were in the jury box, I would look for guidance. I am not a man trained in this field. I am looking to you, Dr. Overholser, and other *doctors, to try to indicate to me whether this defendant who is standing trial is responsible for his criminal act. Dr. GUTTMACHER. Yes, I feel it should lean heavily, but not as heavily as it seems to me is often the case. It. is a great responsibility to put on one individual. The CHAIRMAN. You differ somewhat, then, with the testimony of the present Superintendent of St. Eliza'beths, who testified yesterday, and took the position, rather novel, I think, that he would take this entire question of criminal responsibility away from the jury entirely; he would simply have them determine whether an unlawful act had been committed, a.nd then either the judge or I think he called it a responsible body would then make the determination of whether the man was responsible for his act and what disposition should be made of him. This is a new concept. Dr. GUTrMAOHER. The idea of having a treatment facility, having the court decide whether the man carried out the act or not, and then having a board of so-called experts composed of sociologists, psychol- ogists, and psychiatrics. determine whether the man should go in institution A, B, C, or D, and roughly for how long, this is not too novel an idea. Perhaps it hassome merit to it. I feel that our society is certainly not ready to give up~ the whole concept of responsibility. I think that sometimes a psychiatrist is placed in a role that he does not have sufficient divine inspiration to play in these proceedings. Now, in regard to the definition, my chief quarrel with the defini- tion is this leaving out of the psychopath, just categorically deciding that this group of people, the sociopaths and psychopaths, that these people are to be put into a separate entity. From a practical point of view, perhaps this is not so unjust, if we deal with these people as we are now dealing with them in Maryland. As I have told you, Maryland now has the MeNaghten rule, and, of course, the psychopaths in 99 cases out of 100, I would say, are found responsible. But Maryland has built a special institution where this group of of- fenders, who form so important an element in the recidivistic group, are sent for an indeterminate time- The CHAIRMAN. Those are the ones that come back time and time again. Dr. GTYTrMACHER. That is right. They are sent to a special facility under an indeterminate sentence. We do not have a fourth-offender law in Maryland. This law, I think, is far better. And these people are dealt with in a very special category, and are under `civil proceed- ings determined to be what we call in the Maryland law defective de- linquents rather than sociopaths. And there they are sent to an institution which is midway between a hospital and a prison. It is administered by a psychiatrist, but it has a great wall around it and custodial staff, and a great deal of the discipline that goes with a prison. But these men are offered training in various fields, they are given a great deal of group therapy, and the general atmosphere of PAGENO="0153" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 147 the institution differs from that of the ordinary prison. We hope- and feel there is some reason to believe-that some of these people. who have been among the most serious repeaters in our State will be rehabilitated. If you are going to make provisions for this psychopath group, so that they are afforded treatment of a special kind, it seems to me that from a practical point of view this is not too important a dissent. But I would refer you, and I am sure that you `are well familiar with Judge .Biggs' opinion in the (Yurren.s case, where I think Judge Biggs in a very masterly way takes up in a series of about four paragraphs this whole issue of whether the psychopath should be excluded from the possibility of irresponsibility. The CHAIRMAN. How do you define "psychopath," Doctor? Dr. GUTTMACHER. Well- The CHAIRMAN. Who is a psychopath? Dr. GUTTMACHER. Well, if you have the time, sir. The CHAIRMAN. I would just like to know if I ran into one. Dr.. GUTTMACHER. I cannot do it in one word. The CHAIRMAN. I realize this. Dr. GUTTMACHER. I would like to- The CHAIRMAN. We asked about sociopaths yesterday. Dr. GUrrMA.HER. I' am `sorry,. sir, `maybe Tam confusing the `issue. The psychopath is a special group, is' a sort of subdivision of the sociopath. What we are really talking about is the same' thing. The sociopath and the psychopath are to all intents and purposes for .our proceedings here today identical. And if I am confusing the issue iii that way, I' apologize. The CHAIRMAN. We had a definition yesterday of sociopath. And. I think we had about nine categories in it, and if you had six of' the nine, you, were a sociopath. And it certainly looked to~ me like ~we had an awful lot of sociopaths running around the United States today. Dr. GUrrMACHER. I am sure we have.' And they. are not all in prison. `The CHAIRMAN. Tam sure this is true. Dr. GUTTMAOHER. That is why I think Durham~, sir, is so important from the point of view of degree. I think there are degrees of soci- opathy iii some of my friends, and perhaps we shoul.d not exclude my- self entirely. But at any rate, I think that this is a matter of degree. And I think that these people become incapable of controlling them- selves, and this really is the basis for our decision whether they have the freewill, whether they have the ability to control themselves. I think that when this condition reaches a certain degree of malignancy, that their control system has entirely broken down. So I think it is a mat- ter of degree. I think that this in in general true of this whole prob- lem of mental disorder. The CHAIRMAN. Except this bill that we have before us, which is the one .that we are probing at the present time, title IT, says, on line 12(a): Mental disease or defect excluding responsibility, sociopathic and psycho- pathic personality is not disease or defect. Now, you take issue with that? Dr. GUTTMACTIER. That is right. PAGENO="0154" 148 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAn~iAN. "Sociopathic and psychopathic personality is not disease or defect." If it is not a disease or defect, what is it? Dr. GUTTMACHER. Well, it is a cha.racterological deformity which has been present in the individual from childhood, but would not necessarily have been noticed until later years. The CHAIRMAN. You would take that particular definition coin- pletely out of any proposed statute. Dr. GUTrMACHER. That is right. Of course, it is not in the Dvr/ic,im rule, and it is not in MeN ctghten, and it is not in a good many others. The ALT rule, of course, has gone out of its way to make this what I think is a gratuitous. statement. There are, of course, very, very few responsible psychiatrists who have had any kind of experie.nce in this field-there are a few arm- chair theorists, perhaps-who would say that just the ordinary recidi- vist, the man who is dissocial, who has been raised in an environment which ha.s given him poor ethical and social standards, that these people are indistinguishable from the group we call the psychopath. But the vast majority of psychiatrists, particularly those who have had any clinical experiei~ce in this field, I think, do not hold that. I think that there are a group of people who are just ordinary rethd- ivist, a.nd I think there are people who, because of their character deformity, which has been for the most part produced by early noxious situations in which they grew up, that their character deformity is of such magnitude that they are quit~ incapable of deep-lying drives and attitudes and complexes, that they are~not capable of conducting themselves as normal people. Senator DOMINICK. Mr. Chairman, I wonder if I might ask a question? It is my understanding-and if I am incorrect, I hope either the chairman or the witness would correct me-that this is a policy de- cision by the House of Representatives, and what the House, in effect, is saying is tha.t history to dat.e has indicated that sociopathic and psychopathic people should not be put into an institution for rehabili- tation because up to date there has been nothing to prove that you can rehabilitate them, and tha.t they can by virtue of their particular type of personality get released from a place like this, ar~d immediately go ahead .and commit the same crime again. So therefore, you ought to deter or try to deter them by punishment rather than by rehabilitation. Dr. GUTrMACHER. As I said, sir, in my remarks a little while ago, from a practical point of view, if you intend to establish a spee1al institution to dea.l with these people on a treatment basis, I do not think any great harm is done. But I would say that in 99 cases out of 100 these people are-well, that is a figure that perhaps is too high- hut in 90 percent of the cases these people are not changed by the ordinary penal institution, and they come out, and they~ form the most serious group of criminals, or among the most serious groups that we have. Now, what our batting average is going to be in a place like the Patuxent Institution in Maryland is too early to say. If we are able to get 50 or 60 percent of these people to be law abiding it will be a triumph. Now, I cannot guarantee that the method we are using in Maryland is going to cure all these people. But I can say that is going to cure-at least in theory, and I believe PAGENO="0155" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 149 there is some suggestion in practice-that is going to cure a much higher percentage than the ordinary penal institution will cure. So that if there is a special provision made for this group of people, I think that this is a workable scheme. Senator DoMINIcK. Well, suppose, Doctor, that you included them within the people who can plead not guilty by reason of insanity, and they proved to be psychopaths, and therefore they are put into a rehabilitation institution of some sort with all the others. Are they going to get the necessary treatment in there to do them any good, or ~re they simply going to be committed to an institution where they may do harm to some of the other inmates? Dr. GUTrMACHER. `\~\rell, I think there are certain institutions which in our more enlightened States are now being geared to special treat~ ment provisions for this group of individuals. I think ideally that if one is going to talk theory, that these people are really not responsible in the ordinary sense, because in extreme instances they do not have this free will which is the basis for our decision. Ideally we are talk. ing about a philosophical principle involved-they should not be held responsible. If. that is done, then I think that then there should also be special divisions or perhaps special institutions-but special divi- sions of institutions where they are dealt with. I think that more of them are modified favorably in the ordinary psychintric~ hospital than the ordinary prison. I think that this is considerabi~ lower than it would be if we had special facilities for their treatment. Senator DOMINICK. Thank you. The CHAIRMAN. Thank you, Doctor. Did you have anything additional? I do want to at least adopt by reference the Biggs decision. I think we have that before us. It does not need to be incorporated in the record. I very much appreciate your testimony. The Currens case to which you refer is 290 Federal Second, page 751, Third Circuit decision, May 1, 1961. We can refer to the case by going to the casebook. Now, as I understand it-and I want you to make it clear-if I undrstand ydur testimony, going to the heart of the House bill, the definition of mental responsibility and the question of insanity, is it your opinion that the test now laid down in the Durham case as ampli- fled or supplemented by the McDonald case is a sufficient and adequate test in this area? Dr. GUITMACHER. I think it is the best we have, and I am sure I could not do as well. I mean I am sure I could not devise a better one. I think it is the best we have. The CHAIRMAN. In your judgment, is the test fair to society, in dealing with people who enter pleas of guilty by reason of insanity? I mean, are we correctly probing this very difficult area, and would a jury be. properly guided with regard to an insanity defense when in- structed in terms of Durham and the McDonald case? Dr. GUTTMACHER. I feel they are; yes, sir. Senator Do1~rINIcK. One question. The CHAIRMAN. Senator Dominick. PAGENO="0156" 150 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Senator DOMINICK. The Ovrrens case, according to the report on page 90-and I might add this is the minority report I am reading from-refers as follows: "In doing so,"-and they are talking about the. Uvrren~ case adopt- ing a new test of criminal responsibility-"In doing so, the court of appeals flatly rejected the language contained in section 201(a) (2) of KR. 7525," which can be found on page 2 of the present bill between lines 20 to 22, "which eliminates consideration of abnormality mani- fested by repeated criminal or otherwise antisocial conduct." The fact of the matter is that the definition on page 2 eliminates this insofar as an abnormality is manifested only by repeated criminal or otherwise antisocial conduct. And this report doe.s not include that word "only," which seems to me is fairly important. Now, my question to your would be abnormality manifested only by repeated criminal or antisocial conduct-would this change your opin- ion as to whether this typeof a definition is valid? Dr. GUTTMAOHER. No. sir; I think that "only" is a very desirable word to insert. I do not know just what it accomplishes. As I say, I do not think any reputable expert would say that such a person was a sociopath and could be considered in the area of responsibility. This seems to me sort of a gratuitous statement that sort of complicates things~ and really does not add very much, but use a footnote or some- thing or other, or in some opinion, it seems to me it has a place. But that it should have so prominent a place in the statute when I do not think it really is necessary seems to me objectionable. . . :: .~ Senator DOMINICK. Thank you. The CHAIRMAN. Thank you very much, Doctor. Our next witness is Mr. Abe Krash, . Esq., a member of the Wash- ington. D.C., law firm of Arnold, Porter & Fortas. Mr Krash, we are very happy to have you with us STATENENT OP ABE KRASH, WASHIN(~TON, D.C., LAW PIRM OP ARNOLD, PORTER & PORTAS Mr. KRASH. Thank you, Mr. Chairman. My name is~ Abe Krash. I am of the firm of Arnold, Porter & Fortas, here in Washington, D.C. My colleague, Mr. Fortas, was appointed as a counsel for Durham in the famous Durham case, and he invited me to collaborate with him in preparing the brief and argument in that case. I was subsequently asked by the court of appeals to act as amicus curiae to the court, sitting en banc, in another insanity case, the Stewart case. In 1959 I served as a member of the District of Columbia Bar As- sociation Committee on Criminal Responsibility, and I am currently a member of the Judicial Conference Committee which is consider- ing the problems of pretrial competence. Finally, I should state, Mr. Chairman, that I am the author of a somewhat unreasonably long article on the Durham rule which ap- peared in the Yale Law Journal, and which Mr. Smith of your staff asked that I bring with me. I have a prepared statement, but rather than read it- The CHAIRMAN. We will refer to the article by reference, Mr. 1~rash. PAGENO="0157" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 151 Mr. KRASH. Rather than read the prepared statement, I would sim- ply like to ask that you include it in the hearing record, and I will in- stead undertake to speak extemporaneously and answer the' questions of the committee. (The statement referred to follows:) STATEMENT OF ABE KRASH Nearly a decade has now passed since our court of appeals announced a new standard of criminal responsibility in the Durham case. I believe that it is a timely moment to reappraise the situation, and I believe that it is appropriate that this committee should undertake to make a study in depth of the trouble- some and complex issues which arise in connection with judicial administration of the insanity defense. I shall confine my remarks to some of the issues presented by title 2 of the bill pending before the committee-that is, to problems connected with the insan~ ity defense in criminal cases. I At the outset, I should like very briefly to summarize the principles which I feel should govern consideration of the responsibility issue. First, I assume that nearly everyone will agree that there are some persons who are so mentally disordered that it would be unreasonable to punish them. The Nazis believed in exterminating the mentally sick, but that idea is abhorrent to us-we believe that mentally ill persons should be cared for and treated. There are differences of opinion with respect to the standard of responsibility which should be followed, but there is virtually no dispute that persons who are not influenced in their behavior by the threat of punitive sanctions should not be punished. Second, there is general agreement that the judgment as to responsibility should be made ultimately by a jury. Essentially we call upon the jury to make a moral judgment: Should this defendant be held accountable and punished? In order to make an informed judgment of this type, the jury should have the benefit of the greatest possible amount of data concerning the defendant s moti vation. Since the issue of responsibility is to be decided by a jury, the test should be simple and intelligible to laymen. Third, in administering a test of responsibility, the courts need the help o~ experts specifically psychiatrists Whatever the test psyhiatrists should be permitted to state all of their findings concerning the defendant in their own terms I also believe that the test of responsibility should be consistent with generally accepted scientific theories as to the nature of mental disorder, and its effect `upon behavior. A test of responsibility which is scientifically absurd will quickly be discredited and, .in practice, it will discourage the participation in criminal proceedings of competent medical men. Finally, it is essential to bear in mind that persons who are found not',guilty by reason of insanity are not turned loose in, the District of Columbia The governing statute requires automatic, mandatory hospitalization of all persons acquitted on grounds of insanity. They cannot win their freedom unless they canS convince the District court that they no longer suffer from an abnormal mental condition and will not be dangerous to the community or to themselves if released. As I shall discuss, I believe that the Durham rule satisfies the requirements for an acceptable test of criminal responsibility. I believe that it has had a profoundly beneficial effect on the administration of criminal justice. I do not regard the Durham rule as a definitive, ultimate solution to this difficult problem, but in my judgment it would be most unfortunate if the test of responsibility contained in H.R. 7525 were to be enacted into law as a substitute. The Durham rule provides simply that an accused person is not criminally responsible if the illegal act was a product of mental~ disease or defect. In evaluating the implications of this rule, it is necessary to bear in mind the atmosphere that prevailed in the District in July 1954, when the Durham decision was announced. The rules of criminal responsibility applied in the District at that time were the MoNaghten, test-which was first adopted by the House of Lords in 1843- and the irresistible impulse test, which became accepted at the turn of the cen- tury. Under McNagTvten, the issue was this: At the time of the offense, was the PAGENO="0158" 152 AMENDMENTS TO CRIMINAL STATUTES OF D.C. accused suffering from a defect of reason so that he did not know what he was doing, or if he did know the nature of his act, did he know it to be wrong? The basic trouble with this test is that it focused exclusively upon the defend- ant's intellectual capacities, and it ignored the emotional component of person- ality. To put it another way, most insane people know the difference between right and wrong in an intellectual sense; like children, they. can give you the right answer, but they do not really feel the answer. They are incapable of con- trolling their conduct in conformity with their knowledge. The irresistible im- pulse test was unsatisfactory since it did not cover cases of a mental illness char- acterized by a long period of deterioration. In short, the two tests were too narrow; they did not cover many cases involving persons who unquestionably suffer from severe mental disorder. I think it fair to say that the issue of mental illness in connection with crimi- nal behavior was largely a neglected issue in the District before the Durham case. Neither the bench nor the bar seemed to be particularly conscious of the problem. For example, in 1953, the year before Durham, 2,559 persons were named as defendants in criminal cases filed in the district court; 1,017 defend- ants were tried but only 3 persons were found not guilty by reason of insanity. I do not think it can be seriously disputed that this abnormal situation was a result, in large part, of the obsolete and unjust standards of criminal respon- sibility which then prevailed in the District. There was, if you please, a kind of "w-asteland" in this area of the law. The Durham decision reflected, I believe, a conviction by a majority of the judges sitting on our court of appeals that mental disorder w-as a significant factor in criminal behavior in a substantial number of instances, arid that the existing rules and procedures were totally inadequate for dealing with the prob- lem. The D urh am rule was priniarily designed. I suggest, to produce a more just and accurate classification of defendants at the trial stage. In other words, it was designed to facilitate more accurate discrimination between those defend- ants who should be punished and those who should be absolved from respon- sibility and hospitalized. This objective was to be attained primarily through a test which would make it possible for psychiatrists to give a complete and honest report to the judge and jury of their findings with respect to the accused's mental condition-a situation that simply was not possible under the existing tests. An assumption underlying the Durham decision was that if a jury receives comprehensive information concerning the defendant, it will more likely render a just verdict. As a test of responsibility, the Durham rule, it seems to me, has two great virtues: First, it focuses the jury's attention sharply and directly on the prob- lem of the relationship, if any, between mental disorder and the alleged offense. Second, it has the virtue of simplicity; I believe that it is intelligible to jurors. For me, the least satisfactory part of the rule is the "product" aspect. I think there is considerable force to the argument that this phrase is logically ambiguous. I recognize too that it has presented difficulties for the prosecution in some instances because psychiatrists who find a mental disease are reluctant to say that an act is not a product of the illness. A good deal of the difficulty has arisen, I believe, because the product issue is treated-erroneously in my view-as a psychiatric question. The psychiatrists are asked: "Was the offense, in your opinion, a product of the mental disease?" I believe this is an imper- missible question. Whether the crime is a product of mental disease~ is an ultimate issue to be resolved by the jury on the basis of the totality of the facts presented. Last year the court of appeals undertook to clarify the meaning of the phrase "mental disease or defect." In the McDonald case, the court said that "the jury should be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and sub~ stantially impairs behavior controls." I may add that I think one of the most important points about the McDonald case has been overlooked.~ The case in- volved a mentally retarded person with an IQ of OS, and I believe the case stands for the point that mental retardation is a defect within the meaning of the Durham test. The Durham rule is consistent with the fundamental ideology of the criminal law. It does not alter the principle that a jury-12 laymen, good and true, chosen at random-determine whether the accused shall be held accountable. Durham does not change the principle that a person found to have criminal intent may be punished. Contrary to some things that have been said about it, PAGENO="0159" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 153: the Durham rule does not represent a radical departure from the historic tradi- tions of the law. It is true that a larger number of persons have been found not guilty by reason of insanity under the Durham rule than under the preexisting tests. But this does not prove that the rule is either a success or a failure~ The optimum number of persons who should be acquitted of criminal charges by reason of mental disorder is not a legal or a psychiatric question-it is not a scientific issue-it is a moral question. We do not know whether all persons who should have been absolved of criminal responsibility in the District since 1954 have in fact been absolved. It may also be true that a few persons have unjustly escaped responsibility-that they have succeeded, as the prisoners in the Dis- trict jail so inelegantly put it, in "bugging out." It is my impression, however- and the hospital authorities could confirm this better than I-that persons who are presently being found not guilty by reason of insanity in the District are very sick people indeed. It is also essential to keep the magnitude of this problem in a realistic per- spective. The largest number of defendants acquitted in any one year on grounds of insanity was 67 in 1962. According to statistics prepared by the U.S. attorney's office, there were 1,493 persoiis charged in the District court with criminal offenses in that year. In other words, the percentage of persons found not responsible out of those charged was roughly 4.7 percent. I do not believe that this is an unreasonably high percentage. It is, I think, significant that after a decade of living under the Durham rule, there are very few informed persons in the District who would favor turning the clock back to the M'Naghten and irresistible impulse tests. When such a pro- posal was made in effect to the bar association in 1959, it was turned down by a large maojrity of those voting. The Durham rule has been supported for 10 years by a majority of the nine members of the court of appeals, including three of the last four chief judges-Judge Edgerton, Judge Prettyman, and Judge Bazelon. There are, of course, some judges and lawyers who are dissatisfied with and critical of the Durham test. But I think it noteworthy that nearly everyone now agrees, in the light of a decade of experience, that the preexisting tests were inadquate and unjust. II I should like to comment next-very briefly-on several of the provisions in title 2 of ll.R. 7525. First, the bill would establish a new test of criminal responsibility for the District. This test is set out on page 2 of the bill (lines 15 to 19). It has been stated that this test is based upon the formulation recommended by the American Law Institute in the Model Penal Code. For the convenience of the committee, I have prepared an exhibit which sets forth the various tests of responsibility which we are discussing. As you will note from this exhibit, the American Law Institute test does not contain the words "to know" which are a part of the responsibility test in H.R. 7525. This "to know" phrase can be traced back to the discredited M'Naghten~ test. I would reject the test set out in the bill for that reason alone. Assume, however, that the "to know" phrase were deleted from the test in the' bill so that the standard was identical with the proposal of the American Law Institute. Speaking for myself, I have no serious objection to adoption of the American Law Institute test. I do think that it is complex and rather awkwardly phrased. I am also impressed by the fact that the psychiatric consultants to the American Law Institute dissented from this test. If a change in the responsibility test in the District were now to be made by statue, I personally would prefer the test proposed by Chief Judge Biggs of the Court of Appeals for the Third Circuit in Currens v. United States. The test of respon- sibility formulated by him reads as follows: "The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacks substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated." I must say, however, that I do not think that any practical purpose would be served at this point in making this change in the District. I do not believe that' the outcome of cases where the insanity defense is involved would be sub- stantially different if the applicable test of responsibility in the District were the American Law Institute standard or the Currens rule instead of the Durham rule. I am reinforced in this conclusion by an observation of the very able U.S. PAGENO="0160" 154 AMENDMENTS TO CRIMINAL STATUTES OF D.C. attorney for the District, Mr. David Acheson. In an article he recently pub- lished in the Georgetown Law Journal,1 he has stated that between two-thirds and three-fourths of the insanity acquittals are uncontested cases where the hospital staff is unanimous that the defendant had a mental disease and the crime was a product. He has written that "in cases of this kind, it would probably make little difference whether the District of Columbia had Durham, the American Law Institute proposal, or McDonald." I think it would also be inadvisable to freeze the responsibility test at this point in a statute. The whole field is presently in a great state of ferment. I believe it would be advisable to await experience with other tests. Second, H.R. 7525 would make an important change in the rules of evidence -which apply where insanity is in issue. Subsection (c) (1) [p. 3, lines 8-1OJ provides that "mental disease or defect excluding responsibility is an affirma- tive defense which the defendant must establish by showing of substantial *evidence." In all Federal courts, including the District, it is the law that a defendant creates an issue as to responsibility by presenting some evidence of mental disorder. I am aware of no valid reason why this burden should be increased. It must be remembered that the vast majority of defendants in criminal cases are indigent and poorly educated or even entirely illiterate. The jury should not be foreclosed from considering the responsibility issue if there is some relevant credible evidence. Third, another significant change in existing law would be made by section (i) -which appears on page 13 of the bill (lines 12-15). It provides that "the jury shall not be told by the court or counsel for the defendant at any time regarding the consequences of a verdict of not guilty or acquittal by reason of insanity." The court of appeals has held that-unless the defendant waives the point- the trial judge must inform the jury that the defendant will be hospitalized until he is no longer dangerous in the event he is acquitted on insanity grounds. This instruction seems to me necessary and appropriate. Laymen commonly Jinow the consequences of a guilty or not guilty verdict, but they are not generally familiar with the fact that a defendant acquitted on insanity grounds will be hospitalized. An insanity defense of great merit may be rejected by a jury influenced by the specter of lunatics turned loose on a community. III Finally, I should like to say just a word about the relationship of mental disorder to the issue of the incidence of crime in the District. I do not believe it can be seriously argued that there is any correlation be- tween the crime rate and the existence of an enlightened rule as to criminal responsibility. I am not aware of any evidence showing that a substantial number of crimes have been committed by persons who believed they could escape criminal responsibility by invoking the insanity defense. To the contrary, there are many people who feel that confinement in a mental institution is a worse fate and carries a greater stigma than imprisonment. St. Elizabeths Hospital authorities have been very conservative in approving the release of defendants acquitted on insanity grounds. Various studies which have been made suggest that, given the same offense, the period of hospital confinement will probably exceed the time that would be spent in prison if the defendant were found guilty. Some critics of the court of appeals have accused it of being tenderhearted and sentimental. I would say, on the contrary, that Durham is the product of .a court willing to face the realistic fact that mental disorder in connection with crime is a serious problem; of a pragmatic court willing to experiment; of an open-minded court responsive to scientific development. Our court of appeals has given the issue of judicial administration of the insanity defense more intensive consideration than any other court in the English-speaking world. I would say that it has done a superb job. I do not think that a case can be made out for enactment of title 2 of H.R. 7525. Mr. KEASH. What I thought might be helpful to~ the committee would be if I were to briefly serve as the development of the doctrine -of responsibility and to indicate how the Dur/taim case arose out of it, 1 Acheson, McDonaZd v. United States: The Durham Rule Redefined, 51 Georgetown ILl. 580, 589 (1963). PAGENO="0161" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 155 and then briefly to discuss what has happened in the District of Co- lumbia under the Drurham rule, and why I think it is a satisfactory and adequate rule. Perhaps during the course of that, I can comment on some of the questions raised by the chairman this morning, by Senator Dominick, and perhaps make some reference to the testimony yesterday of Dr. Cameron. Let me say first of all I have prepared a brief exhibit for the con- venience of the committee which lists the principal rules of responsi- bility under discussion. The CHAIRMAN. That will be incorporated in full in the record. I think it will be very helpful. (The exhibit referred to follows:) VARIOUS TESTS OF CRIMINAL RESPONSIBILITY 1. The M'Nayhten Rule (The "right and wrong" test)-1843: "[T]o establish a defense on the ground of ilisanity it must be clearly proved that, at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." (M'Naghten?s Case, 10 Cl. &F. 200, 209 (1843).) 2. Durham Test, 1954: "[A] n accused is not criminally responsible if his unlawful act was the product of mental disease or defect." (Durham v. United States, 214 F. 2d 862, 874-75 (D.C. Cir. 1954).) 3. American Law lB st it ute, Model Penal Code § 4.01-1955: "(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. "(2) The terms `mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct." 4. Currens Test, 1961: "The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated." (United States v. Currens, 290 F. 2d 751, 774 (3rd Cir. 1961).) 5. HR. 7525, Title II, Sec. 201-(1963): "~ 927. Insane criminals "(a) Mental disease or defect excluding responsibility; sociopathic and psychopathic personality is not disease or defect: "(1) . A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to know or appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. "(2) The terms `mental disease or defect: do not include an abnormality manifested only by repeated criminal or otherwise antisocia~l conduct." Mr. 1(RASH. Let me say first of all that I assume nearly everyone will agree-I am now stating what I think are three or four assump- tions which I think ought to govern one's consideration of this ques- tion of responsibility. First, I think nearly everyone would agree that there are some per- sons who are so mentally disordered that it would be unreasonable to punish them. The. Nazis believed, that you shOuld exterminate the mentally sick, but I do not. suppose that anyone would seriously in this country accept such a notion. And the question really is what should be the st.andard of criminal responsibility. As to t.hat question, of course, there have been and are legitimate differences of opinion. 25-260 0-64-pt. 1-11 PAGENO="0162" 156 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Secondly, it is my. view that the ultimate determination of respon- sibility should be made by a jury~ I have a strong confidence in the robust commonsense of juries in criminal cases. They. represent a cross section of the community. And I believe they are the prOper instrument to make that judgment. Let .me say in this connection that we do not ask the jury in these cases to make a medical judgment. The jury is being asked rather to make a moral judgment. And the . psychiatric information, the medical data, is simply a part of the information which the jury re- quires in order to make an informed moral judgment.. As I shall indicate, one of the great virtues of the Dur/tarim test is that it allows the jury to have the full benefit of all relevant informa- tion with respect to the accused. . . I: But I want to underscore my strong conviction in the desirability of allowing the jury to make this decision. . .. . . Now,.third, in administering a test of responsibility- ~. :. Senator DOMINICK. Could I interrupt right there. Mr. KRASH. Senator, I hope you will interrupt me at any point. Senator Do~rINIcK. I would gather from what you said that you would disagree with the witness we had yesterday who indicated that the question of responsibility should be determined by a panel. of psychiatrists. . Mr. KRASH. Yes, I would. Let met just comment for one moment, since youhave raised `the question of Dr. Cameron's point. I read about it in the press. I just had a few minutes this morn- ing to read his statement, which he was kind enough to send me. I have a very high regard and admiration for Dr~ Cameron. Ithink the community is fortunate to have a man of his great qualifications as the head of St. Elizabeths Hospital. But I disagree with his proposal. Let me explain why. . As I understand it, his idea is this-that the court would decide-the jury, at .a trial, would decide whether or not the acc'used committed the act. . And then there would be a second hearing a.t which there would be a determination made with respect to the accused respón- sibility or his mental condition as of the time of the :offense and the disposition to be made. . Now, first' of . all, I think this reflects a psychiatric attitude and undemeath it I believe is t.his point of view-. Many psychiatrists do not like to appear in court. They are cast in an. uncomfortable role. They a.re in an advisory situat.ion. They do not occupy the authoritative position they usually occupy. Now, they are caught in a crossfire of cross-examination, and it is'an uncomfortableposition to be in. So this idea, basically, I think springs from a desire to get psychi- atrists out of this advisory arena. But I think the problem is this If there w ts a subsequent hearing, the defendant. and the Government would clearly be entitled:to cross- examine a psychiatrist. I cannot imagine any system of law in which a finding which is so critical to the disposition of the defendant would not.be subject to cross-examination. And while I think that psychia- trists have been unjustly maligned frequently, that is the disagree- ments among them have been greatly exaggerated, nevertheless, the fact, is that they may be mistaken, and they may have incorrect and im- proper diagnoses, and they obviously must be cross-examined. PAGENO="0163" AMENDMENTS TO CRIMINAL STATUTES OF D~C. 157 So I do not think this proposal would really solve what I think may be in the back of Dr. Cameron's mind. In the second place, I think this would raise the most serious consti- tutional question with respect to the right of trial by jury~ A defend- ant is entitled to have the determination"made by a jury. Now, finally, I may say that 1 think in addition, this* would only double or increase the time of trial. But more. basically; this really would result in a revolutionary change of our whole conception of what a criminal trial is about. The notion of guilty and not guilty I think is deeply imbedded. And in. addition I think we must recognize this fact. A trial is a symbolic way of getting expressionin a peaceful way to the community sense of wrong and injustice. And there has to be some way in which that can be expressed. And if you take away the notion of guilt or innocence, then you are going to, it seems to me, cre- ate many more problems than you will solve. There must be a forum where that determination can be made. ` A trial is a kind of symbolic little `play, as it were. And you cannot remove the notion, it seems to me, at least at the present state of our society, of this notion of guilt or innocence. Now, .1. do agree with Dr. Cameron to this extent: I think that psychiatrists could be used more liberally than they are now with re- spect `to the question of posttrial disposition of the defendant. That `is, with respect to the question of sentencing. And I think in `this juris- diction a greater effort is being made to do that than is true in some places.' So to that extent I would `agree. `But I would doubt very much the wisdom of a two-step procedure at this particular point, and I think it would raise an enormous amount of difficult constitutional issues. .. ` ` Senator DOMINICK. Thank you, Mr. Krash. ` ` `Mr. KRASH. Now, I want to say with respect to the test of responsi- bility, however, it seems to me that it is absolutely clear we must have the help ~of psychiatrists. Indeed, one of the principal objectives we a'dvocated'in the Durham~ brief in which I think'the court of appeals has tried to articulate in subsequent cases is that the test of responsi- bility must be one which enables psychiatrists to state their finding~ in their.. own terms `to the court and jury. Psychiatrists should be al- lowed to act as psychiatrists and not forced to answer'ethical questions or questions for which they are not qualified. And the great virtue of the Durham rule is that it `allows them to do that. I am very much in favor of that. ` ` `Finally,' Senator Dominick- Senator DOMINICK. I might say right there this bill does the same thing;doesitnot? Mr. KRASH. Yes; it does. I do think the teSt makes it somewhat more difficult for psychiatrists. The test of responsibility is a more difficult one for psychiatrists to work with.' Finally-the choice here is not between a liberal or enlightened test of responsibility and turning `defendants loose. In the District of Columbia every accused person who is found not guilty by reason of insanity is automatically and mandatorily committed to a mental institution, and he must remain there at the j~resent time' until the court is convinced by a preponderance of `the evidence that he will'not be dangerous to himself or to others if he is released. ` PAGENO="0164" 158 AMENDMENTS TO CRIMLNAL STATUTES OF D.C. Let me say that the hospital has been very conservative in recoin- mending release, and the court has been very tough. Indeed some people feel that the court has been too tough with regard to releasing people who have been acquitted by reason of insanity. Senator BIBr~. Is that factually correct? This is what the U.S. attorney indicated by some statistics he gave us yesterday, I guess. But it just seems to be the common impression that since this Durham~ rule that we are turnmg all kinds of people loose who should be either tried for the crime or should be committed to a mental institution. Mr. Ki~su. I think that impression is erroneous, Senator. Senator BIBLE. Don't you think that is the impression? Mr. Krt~sn. Yes; I think to some extent some people have that view. There is no doubt that every time, for example, there are x~casions when people come out of the hospital, they commit a crime, and promptly you read in the newspaper that a person who is released from the hospital has committed an offense. But bear in mind two- thirds of all the people who come out of prison are recidivist. That is, they repeat crimes, too. I think you would find very few people who come out of the hospital commit further offenses. I think you would also find-the studies I have seen indicate that the period of hospital confinement is longer, given the same offense, than it would be if a person was sent to prison. The truth is that the court and the hospital are being very cautious, very conservative, about letting people go after they are found not guilty by reason of insanity and committed to St. Elizabeths. Let me just give you an example with which I am familiar of how difficult it is to get someone out. We represented Ezra. Pound, the noted poet, who was indicted on charges of treason in 1945. He was found not competent to stand trial. He was held in St. Elizabeths Hospital for 14 years on the grounds that he was incompetent to stand trial. He suffered from paranoia, which was an incurable mental illness. And the hospital certified he would not be dangerous if released. And it was on that basis we went to the district court and asked the court that he be dis- charged. The hospital agreed that he. would not be dangerous. The district court was satisfied he would not, a.nd lie was discharged. Now, there are other cases I think of, of people who have been in the hospital for long periods. So I do not think this is really a serious problem. In other words, I do not think we are confronted here with the problem of turning people loose on the streets. Now, let me go back, if I may, for a minute and just t.ry to elaborate on how all this came about. I would say that one could go back to the common law of England, as far back as the 14th or 13th century, and find the idea that there was no criminal responsibility if a man is mentally disordered. One time the test was whether or not a man could count to 20. Then in 1843, I thjnk you have really the first major development in this field of the law with the M'Naghten test. Essentially that test is whether the defendant knew the difference between right and wrong, and whether he knew the nature of what. he was doing. Now, the trouble with the LJI'Naghten test very simply is this. It emphasizes a defect of reason. That is, the intellectual capacities of the defendant. Whereas everything that. modern psychiatry teac1ies~ PAGENO="0165" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 159 everything that we know from observing people in mental institutions, from everyday observation, it. is that the emotional component of personality is a determinant of conduct as much as reason. If you talk to insane people in a mental institution they can verbally give you the right answer to questions you put. The trouble is they do not really feel the answer. They are like children who if you ask them a question, they can give you the right answer, but they really do not know it in the sense of really feeling it. Put another way, the trouble- Senator DoMINICK. In the case of small children, if they do not follow what they say, you whop them, or you should. Mr. KRASH. You should do. Senator DOMINICK. And the question is what you should do at this point. Mr. I(ii~sn. I think there is a very important difference between small children and the mentally insane. That is this-sane children will respond to the sanction, whereas frequently those people who are suffering from a severe mental disorder simply are not influenced by the criminal sandtion. That's the whole point. We are trying to really reach people who are not deterred by the threat of criminal sanction.. Now, I can simply say that the McNaghten rule- the trouble is that it was much too narrow. There are too many people who suffer from severe mental disorders who are guilty under the McNaghten rule. And I can say only that such eminent judges as Justice Car- dozo denounced it as not being in conformity with psychic reality, and Justice Frankfurter called it a sham. I think it was discredited by nearly every reputable scholar and authority in the field. There are a few who defend it, but not very many. Senator DOMINICK. I think this is a good point that perhaps has not been brought up. If a person is put into a mental hospital and does n~t follow the rules of the hospital, he or she is disciplined. Mr. KRASH. Oh, yes. Senator DOMINICK. In order to enforce those rules. Mr. KRASH. Yes. Sertator Dominick, I do not think there is any dispute between us that people ought to be disciplined, or that we ought to have a system of punishment at all.. The Durham rule does not change that. It is not nearly so radical a rule as some people have suggested. The ~question really is whether or not you ought to punish people who are not deterable, who are not influenced by criminal sanction. Senator DOMINICK. But they do that in a mental hospital. Mr. KRASIT. What they do is they have certain rules that they try to get the people to adjust to. That's right. There is no doubt about that. But that is not really the question that I think reaches the problem we are dealing with here. Put it this way: we are dealing with people who are not influenced by criipinal sanctions. Now, you can get certain people in a hospital who are just not influenced unless you have guards with them every moment. And of course in society we just do not have that. I do not think anyone seriously suggests for example if you are dealing with an extreme paranoid person who commits a crime, suffering from delusions and hallucinations, that even though that person may be subject to the discipline of a hospital, PAGENO="0166" 160 AMENDMENTS TO CRIMINAL STATUTES OF D.C. that that is a person we ought to punish. No one really, I think, seri- ously is arguing that. The real argument is coming about in more borderline kinds of cases. That is really where the argument is being waged. And the question is whether or not the Durham nile is taking up too many: of those borderline eases. But these extreme cases, people who may be subject to discipline in a hospital, nobody really seriously argues that they should be held not criminally responsible. Some of those people are even reached under the AleNaughten rule. Take those peo~ ple, for example. They could be disciplined in a hospital. But everybody would agree they should be found not guilty by reason of insanity. The situation in the District in 1954, was that we had the McNagh- ten test and we had what was called the irresistible impluse test. That is the test some of you may have seen in the James Stewart movie, "Ai~atomy of a Murder." He discovered this test one day in the law books. It is a very limited test. It is limited to cases of a sudden impulsive kind of act, and very inadequate. Now, to give you some idea, Senators, of what the situation was in the District in 1954, let me say that the truth is there was a kind of wasteland* in the law of criminal responsibility in the District. The truth is that the judges and the bar were by and large unaware, unoonscious of this problem. And I think that the statistiCs bear that out to the hilt. Let me just show you what those statistics are. The statistics prepared by the U.S. attorney's office show that in 1953, the year before Durham, 2,559 persons were named defendants in criminal cases in the District; of Columbia, and only 3 persons were found not guilty by reason of insanity. Now, I do not thmk there can be the slightest question that that situation was a product of the fact that we just had obsolete, inade- quate, unjust rules of criminal responsibility that just did not reach the problem. And that-lawyers pretty much concluded it wasfu- tile to attempt to present the defense, and judges were just not paying much attention to the problem. The Durham rule then represented, I think, the recognition of the fact by the judges of the court of appe'ils that mental disorder in criminal cases was a serious problem. I think that fact was clear to them from the fact that they were getting the record of all these cases from the district court, from their own observation. And the fact was that the rules we had in the District dealing with criminal responsibility simply were made quate. The test for responsibility was inadequate, the pretrial pro- cedures were* inadequate, the posttrial procedures were inadequate. And the point about the Durhcim rifle w'ts th'~t b'msically it was de signed to enable psychiatrists to testify in their own language about the mental conditmonof the accused. In other words, it made psychia- try legitirn'~te in `i cnmmn'fl ctse Psychiatrists previously were being asked "Does this defendant know the difference between right and wrong," to which their answer was "How should I know-that is not a question I as a psychiatrist can answer, that. is an ethical question." Whereas under the Durham rule at least the psychiatrists who were allo~d to testifyon the basis PAGENO="0167" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 161 as a psychiatrist. And the theory was that if they gave the jury the benefit of what they knew about the accused, you would get a more just result. *And I think that premise is fundamentally sound. In other words, I think if the jury is more informed, has greater in- formation concerning the defendant's emotional makeup, they are more likely to do justice in the particular case. Now, the Durham rule has, I think, two great virtues. First, it focuses the issue very sharply on the question of mental disorder, and secondly I believe it is intelligible. Now, I do think theie is support to the criticism that the product phase of it is ambiguous, and I think it has presente~ some problems in some cases-I don't know how many-I don't think very many-to the prosecution. But I think most of those problems are probably now resolved by the McDonald decision. The CHAIRMAN. Right at that point, I wonder why you do not in- clude the McDonald case in your test of criminal responsibility. May- beyou do not consider that as a test. Mr. KRASII. That's right~-I don't. It is really, to be accurate about it in my judgment-it is a clarification, it is a definition of the terms "disease or defect" in the Durham rule. The law in the District of Columbia is the Durham test, as clarified by McDonald. Now, let me say one thing about the McDonald test which I think has been overlooked. The important point about the McDonald case is this-that the phrase "mental defect" is defined in such a way that it reaches the mentally retarded. Not just persons who are mentally diseased in the sense of being psychotic-but it reaches the mentally. retarded. The case involved a mentally retarded man, a man with an IQ of 68. And im that sense it is a; very important decision, because the Presi- dent's Panel on Mental Retardation has indicated this problem isex- tremely important, and the McDonald case is designed to reach that situation. Now, in that connection I would say this with respect to one section of the bill before the committee The bill would make an important change with respect to the evi- dence which must he produced. It would require in subsection (c).(1) th'tt the defend'tnt must establish by subst'~ntial evidence-the words "substanti'il evidence"-the defense of insanity Now, under the McDonald case, which simply repeats the law which the Supreme Court laid down in the Davz$ case, the defendant must produce some evidence, not substanti'il evidence-some evidence in or der to create `~n issue And once he his produced some evidence, the prosecution, which has the burden of proof on this issue from the be ginning-the prosecution has the duty of going forward and must prove beyond a reasonable doubt th'tt the defendant is mentally corn petent. So if the bill would change the existing law, it would incre'tse the burden Now let me say, I think I v~ ould not be in favor of that, and very simply for this reason: Over 90 percent of these defendants are indigents. And many of them are illiterate and have been poorly educated. And while I would agree, Senator Dominick, with an ob- servation you made this morning that indigent defendants are fre- PAGENO="0168" 162 AMENDMENTS TO CRIMINAL STATUTES OF D.C. quently represented with great competence and devotion and skill by appointed counsel, the truth is that they are not so represented in all cases, and I do not think anyone would seriously suggest that if a man who has large sums of money or who had-could hire any lawyer- that he is in the same situation as a man who has no funds-who can retain psychiatrists, experts, and so on. There really is a disadvantage to the indigent defendants, despite the dedication of many lawyers particularly in the District, who serve without a fee in the Federal courts in case after case. So that I do not think that it is reasonable to increase the burden on the defendants beyond some evidence. That is the law throughout the United States, and I see no reason why it should be changed here. I think the bill would change it. And I think it would be undesirable. The CHAIRMAN. What is the case law in the District of Columbia at the present time? Mr. KRA5H. In the District of Columbia it is this: The defendant is presumed to be sane. If the defendant produces some evidence The CHAIRMAN. "Some" is the word used? Mr. KRASH. That's right. I have the McDonald case before me. The CHAIRMAN. In the McDonald case. Mr. KRA5H. In the McDonald case. It repeats the language of the Davi~s decision. If there is some evidence, then there is an issue. Now, some evidence does not justify a directed verdict. That is one of the points of the case. But if there is some evidence, then the issue mu~t be put to the jury. Now, the prosecution has, of course-the law then is that the prosecu- tion, where there is some evidence, must prove beyond a reasonable doubt that the defendant did not suffer from a mental disease, or the act was not a product of his illness. Now, it is true that a larger nmnber of persons have escaped respon- sibility, if you want to put it that way, under the Durham test than was true before. No question about that. But that does not prove that the test is either good or bad. What is the optimum number of people who should be found not guilty is, of course, not a medical question. It is really a moral ques- tion. There may be some people who should have been found not guilty by reason of insanity who have not been so found. It may also be true there are some people who have escaped responsibility under the Durham test who should have been found responsible. My impression, however, is this, that the people who are being found not guilty by reason of insanity, and the hospital could really confirm this better than I, are really very sick people. In other words, in the District of Columbia. at the present time we are not finding not guilt~ by reason of insanity people who would be regarded as sane. They are really sick. And the hospital psychiatrists who are the principal witnesses, both for the defense and the prosecution, are really quite conservative about this. I think also you have got to keep the magnitude of the problem in perspective. The largest number of defendants acquitted in any one ~ear was 67, in 1962. In that year, there were, according to the U.S. attorneys office, about 1,493 people charged with a crime. So that what you are saying is roughly between 4 and 5 percent. of the persons who are PAGENO="0169" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 163 charged with crime in the district court are being found not guilty by reason of insanity. I personally do not believe that is an abnormally high percentage. In connection with the statistics, I would say this: sometimes you hear the statistics cited in terms of the percentage of persons found not guilty out of those who are tried. But bear in mind that the cases tried are the most serious. The great majority of cases are dis- missed or nolle prossed, or they are pleas of guilty, and so on. So that you would expect to find a very high percentage, relatively speaking, of insanity cases with respect to the cases which are tried. I do not think that the statistics are in any degree indicating that the Durham rule is a failure. Now, let me say this, Mr. Chairman: We have had the Durham rule here for nearly a decade now. And I think it is significant-and I would emphasize this to the committee-that there are very few in- formed people who have dealt with this subject in the District who favor turning the clock back to the MeNag/iten rule and the irresistible impulse test. When such a proposal was made to the bar association in 1959 in effect it was turned down by a large majority of those voting. The Durham rule has been supported for 10 years by a majority of our court of appeals, including three of the last four chief judges-Judge Edgerton. Judge Bazelon, and Judge Prettyman. And, of course, there are judges and lawyers of great competence who are dissatisfied with it, and critical of the Durham test~. I am critical of certain aspects of it myself. But I think it is noteworthy that nearly everyone now agrees today in the District that we should not go back to 1JI'~Naqhten. to where we were before. The CHAIRMAN. Have other jurisdictions adopted this new test rather than the MeNaahten test? Mr. KRASH. No. As far as I am aware-I think that the Virgin Islands and I believe New Hampshire has it, maybe it is also adopted in Maine. I have not made a recent check on that. I undertook to do that in the article I wrote. I do not recall more than that. There are changes going on throughout the United States in this. For example. there is the (Ynrrens test of Judge Big~gs, which I happen to think is a very good test, by the way. The point is there is no question that there is in many States for example, Senator Bible, many courts that are reluctant to change the law because they do not have automatic and compulsory hospitaTiza- tion such as we do in the District. They may not have the hospital fa- cilities that are adequate. Third. there are many places which feel that this change ought to be made by the legislature. And there is no question, there is a great deal of resistance to change in this area of the law. I think it i~ one of the tributes of the court of appeals here that it has pioneered this field. The fact is there is a great feeling throughout the country, I would say, among the informed people in this area dealing with problems of criminal responsibility that the law needs to be changed. Now, there are differences of opinion about what the test ought to be. I would say that the basic reason why I would riot change the Dur- ham rule here in favor of the American Law Institute test, for which I have no great objection- The CHATRMAN. May I ask you a question right at that point? Is there any substantial difference between the Durham test as amplified PAGENO="0170" 164 AMENDMENTS TO CRIMINAL STATUTES OF D.C. or supplemented by the McDonald case and the ALT test? The rea~ son I ask that. question is this: In my questioning of the U.S. attorney yesterday he took the position they are substantially the same. I got the impression from Dr. Guttmacher and possibly from Dr. Over- holser-at least from one of the two witnesses-that they did not feel they were the same. In fact, they have joined in writing a paper criticizing the ALT rule. Yet both psychiatrists testified this morning and stated they were in full accord with the Durham rule as modified by the McDonald case. Mr. KRA5H. Well, I think here you are in an area of mediphysics. .1 think they are very close. I think there is some difference between McDonald and the Durham test and the ALT test. I think the differ- ence is this: the Durham-McDonald test may require a more direct focus on the relationship of the disease to the particular offense, whereas the ALT test I think would focus more generally on the de- fendant's capacity to conform his conduct to the requirements of law generally as opposed to the relationship of the illness to the particular act. And I think there is that shade of difference remaining. I think the reason t.hat-the psychiatrists found the Durham test I think an easier test in terms of their discipline to work with. So there is that difference. The point I just wanted to complete, Senator- The CHAIRMAN. Pardon my interruption. Mr. KRASH. I wanted to complete my answer to your question with this: One reason why I think that it would be-that there would be no real practical advantage in shifting to ALT, because as I say I have no great objection to it, or to (7urren.s--which I think really is a better test than ALT-is this: I think under any one of those tests the prac- tical results are going to be just about the same. That is, urtder Durham, Currens, or ALT you really-I would doubt very much if the results, the ultimate outcome in many cases would be very different. I think they would be pretty much the same. I may say that the very able TJ.S. attorney, Mr. Acheson; in an article in the Georgetown Law Journal I think substantially agrees with that position, at least as to two-thirds or three-quarters of the cases. The CHAIRMAN. Of course I asked him a question yesterday to arrive at the conclusion that. the ALT test and the Durham -McDonald test are substantially the same-what is the objection of writing itinto the statutory law rather than relying on case law? Would yOu give any opinions on that? He expressed himself On that. Mr. KRASH. Well, Senator Dominick also asked one of the earlier witnesses I believe- The CHAIRMAN. He touched on the same point a little eatlier. Mr. KRASH. Yes, he did. Senator Dominick-Senator Bible just. asked me if the test, the Durham. rule and the-as modified or clarified by McDonald-is the same test as the American Law Institute test, what objection if any wOuld be to make that a part of the statute? And I believe that really touches a question which you were addressing to Dr. Overholser, and I think probably in the back of your mind, was the idea that the criminal law ought to be a matter of statute law and not a process of judicia.l law. Let me say this as to that: The reason I think I will be inclined to leave the situation as it is, at least. for the time being, is t.hat the law in this area, criminal re- PAGENO="0171" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 165 sponsibility, is in a very great state of ferment throughout the .coun-~ try. There are different tests being adopted and tried, some by courts, `some by legislatures. And I think it would be desirable at least. for the time being to let things remain as they are and see what is the experience that different jurisdictions have under different tests. It may well be that. after a period of time you might want to codify the law of:crirninal responsibility. I would say that at the present time I would not favor doing that in the District of Columbia. The court of appeals here has done a better .job in this area of the law than any other court in the English- speaking world. It has written about 150 opinions on the law of criminal responsibility. It is an amazing, outstanding body of law which I think . has evoked the admiration of~ legal commentators throughout the world who are familiar with this subject. . Of course people disagree with different decisions. . I. do myself. But as a body of law in one area of the law; that is, with respect to the whole problem of judicial administration of the insanity defense, the court of appeals has done a superb job. And the law as laid down by them-it is as m a statute.. That is, once you have a decision, all of the district judges and I think all of the panels of the court of appeals follow it. Now, to be sure it can be changed by a. court, just as Congress can change a statute. But I think there would be-I could see no particu- lar advantage at this point, in time in codifying the standard of re- sponsibility in the District. And I see some advantage in leaving the sit.uation where it now is; that is, somewhat open to change by the court of appeals. This is a matter of course in which there can be differences of opinion. The CHAIRMAN. Right on that point-and .1 asked Mr. Acheson identically this same question. As I indicated to you, he answered .very much the same way. But he did advance an additional reason, and that was that if the American Law Institute definition would, be written into the statutory law, even though he thought it. was substan- .tially the same as the Durham-McDonald decisions, and other lawyers might think it was substantially the same, nevertheless you wouldbe right back in the courts for interpretation as to what the legislative intent was in enacting tha't particular statute. So that rather than crystalizing or clearing out an area of great controversy,: you would really be putting it back in turmoil again, because you would have t. go all .the way back through the court proce.ss, where now you are relying upon, as I understand it in the McDonald case, a unanimous test in ,this area, that test agreed upon unanimously by the court of appeals. Mr. KEA5H. I certainly agree with what you have said, Senator. The CHAIRMAN. This is what the U.S. attorney said as the reason for not enacting the test suggested to us in the bill before liS~ Senator DoMINICK. I just would like .to comment on that, Mr. Chairman. . I think the point is arguable from the point of view that the courts have constantly been changing. these test.s in the District of Columbia for a considerable period of time. There is no reason to think we are going to stop at this point. And it seems to me with Congress con- sidering a thil of this kind, if we should put. in a statutory definition similar to the American Law~ Institute or incorporating in the .Mc Donald portion of the Durham rule, it would seem to me that we would PAGENO="0172" 166 AMENDMENTS TO CRIMINAL. STATUTES OF D.C. be giving a lead to a~ great number of areas throughout the country to adopt similar standards so we have something that a fellow does not get tried under one set of rules in one portion of the country and an- other in this particular jurisdiction. Mr. 1(~sn. Well, Senator, I might comment for one moment on your observation. The fact is there really have not. been many changes. The original test for responsibility in the District., the. MeNagh ten. rule, was adopted by the courts in the 1880's. And then the court of appeals adopted the irresistible impulse test I believe in 1927-I am not. sure of the date. Then there was no other change until the Durham rule, and there was no other change after that until MeD o'naid, which I do not think is really a change at all. It is only a clarification. So there have been very few changes relatively speaking. And during this same period, Senator, I think I should point this out-this has been a. whole period of a tremendous change in development in psychiatry. One can really say, as a. matter of fact, that all of modern psychiatry I suppose begins with the work of Dr. Freud at the turn of the century. So the last half century has been a field of grea.t change in the field of psychiatry. It has been a period also of great change of public attitude toward the insane and toward the mentally ill. I think this is reflected by the President's proposal now before the Congress in this area. Our whole community attitude has changed, and I think the court of appeals here simply was reflecting the fact that science had developed, medicine had developed, public attitudes had changed, and the law changed. Why should we have a t.est in 1963 which was the test in England in. 1843, based upon the state of medicine which existed then? Senator Do~rIxIcI~. Mr. Chairman, I wonder if I could ask just one more question? The CHAIRMAN. Certainly, ask as many as you want. Mr. KEASH. I would be glad to answer any questions at all. Senator D0MINICIc. This is on a different subject. This is in con- nection with your question on t.he word "substantial," and the definition. In your prepared statement. the use of the word "substantial" was part of the establishment of the defense, whereas the use of the word "some" which I thought was preferable was simply defined to create an issue, not to establish the defense. Now, is there a legitimate distinction in there? Mr. T(RASH. No, I don't think so. Let me try to restate it, and per- haps maybe I can clarify it. Point 1: We start with a presumption of sanity. And if nothing is said about it, the defendant is presumed sane. Now, point 2: If the defendant produces some evidence, and, of course, you cannot quantify what you mean by some, but some credible evidence, some probative evidence that he suffered from mental dis- order, proof, for example, that he has been discharged from the serv- ice on psychiatric grounds, proof that he had a previous record of hospital confinement, proof, for example, of some psychiatric testi- mony, which would be the best evidence. But if he produces some credible evidence, then there is an issue which is created as to the insanity issue. PAGENO="0173" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 167 And by that I mean that the defendant is entitled to have the jury instructed to consider whether he is responsible under the Durham rule. He is not entitled by putting in some evidence to .a directed verdict of acquittal. All that he is entitled to do is to get to the jury. Now, of course, if his evidence, for example-if you have a situation in which the evidence by the defendant is very substantial, very great, uncorrected, psychiatric experts, a. large number who testify unani- mously that the accused is of unsound mind, the defendant then might be entitled to a directed verdict. In other words, the defense would have been established as a matter of law so great that he would be entitled to a directed verdict. But there will be very few cases which are so absolutely clear. Senator DoMINICK. Well, Mr. Krash, I think you are missing my point. It seems to me that on page 3 what we are talking about is the ability of the defendant to establish this affirmative defense. All he has to show is substantial evidence. Mr. KRASH. Well, my point is that the issue goes to the jury by his showing some evidence. In other words, that is the sense in which I use it. He has estab- lished a defense. That is what I mean by establishing the defense. By putting in some evidence. Now, let me just quote the way the court of appeals puts it perhaps The court of appeals said in the McDonald case: Under Davis against United States if there is some evidence supporting the defendant's claim of mental disability, he is entitled to have that issue submitted to the jury. And that is what I mean. Now, I think what this C-i in the bill is entitled to do is to mean that the defendant must produce substantial evidence. That is what I ~n- terpret the bill to mean. Senator DOMINICK. Well, I am not sure I would agree with you. Mr. KRAsH. I certainly could be mistaken. That is my reading of it. The CHAIRMAN. Might I ask your views on this. You have indicated that you very much agree with the answer of the U.S. attorney that at this time the Congress should not enact an in- sanity statute that adopts the ALT test even though it is substantially the same as the Durhan~ test as modified by the McDonald decision. What would be your thought if you took the Durham~ test, an ac- cused is not criminally responsible if his unlawful act was the product of mental disease or defect, and then add to it the additional sentence that is given by way of amplification in the McDonald case: Consequently, for that purpose the jury should be told the mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls. Would there be any real gain in phrasing the unanimous decision of the circuit court of appeals into a statute? Mr. KEAsH. My answer is "No." I would not favor doing that. In other words, I make my point clear, I would not favor making the Durham rule as clarified by the McDonald test, incorporating that in a statute itself. Any more than I would favor making the American Law Institute test or the (Yuirens Test. I don't think at this pomt in PAGENO="0174" 168 AMENDMENTS TO CRIMINAL STATUTES OF D.C. time, Senator; that even though I think the Durham test as clarified is a good test~ It is by no means a perfect test. And I think probably as we go along we will find we can improve on it And it is precisely bec'iuse I think it probably can be impro~ ed and because I think that I believe that the processes of change are easier in the courts, which I think work with these problems day-to-day, and perhaps could do the job more easily than the Congress, that I would be inclined to leave it where it is. I do not think, however, that would be a grave error on the part of the Congress by any. means. I do think it would be a mistake to adopt the testconta.ined in the bill specifically because primarily I may say because of the inclusion of the phrase "to know" which comes from the old M'Naghten rule. In other words, the test. in the bill, Senator Bible, is really the Ameri- can Law Institute test modified or commingled with a part of the MWag/i ten test. And the M'Naghten test is so thoroughly discredited and is so ob- jectionable to so many people that I think it would be a grave mistake to turn the clock back to that. It is for that reason I would object to that. Now, if you took out the phrase "to know." The CHAIRMAN. Is it actually as discredited as you indicate? I mean, isn't it still the rule or the test for insanity in a great majority of our States? Mr. KRASH. It sure is. But I would just say that Justice Frank- furter; for example, called it a sham. Judge Cardoza said it had nothing to do with psychic reality. I think every committee which I am familiar with, which in recent years has studied it, the American Law Institute, the Royal Commis- sion of England, has said it is a totally unsatisfactory, unjust, and inadequate test. * Now, that is what I mean~ I mean it is discredited by the people, by commentators, by- The CHAIRMAN. It hasn't been discredited by the State legislature that originally enacted it. Mr. Kn~si. No, it certaintly has not. And I should say it certainly does have its supporters in various jurisdictions. The CHAIRMAN. What is the U.S. Supreme Court case on the M'Naghten? Mr. ICRASH. There is a case called Leland against Oregon, Senator, which really does not involve the M'Naghten test directly. The ques- tion th~re was whether or nOt a State which imposed a requirement upon the defendant to prove the defense of insanity---.whether such a statute violates the due process clause of the 14th amendment. The Supreme Court held that it did not. Oregon at this time has the M'Naghten rule. Now it is interesting to note that the Supreme Court has adopted a different rule for the Federal courts with respect to the burden of proof, namely, the "~ome evidence" rule. Tn all Federal courts that is the rule. PAGENO="0175" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 169 But all the Court held in Leland against Oregon was that if a State chose to impose a greater burden upon defendants, that that was permissible within the meaning of the due process clause. The Supreme Court has never, as far as I am aware, had any case in which the argument was made that M'Naghten was unconstitutional. I believe there may be some attempt to do that. I would think it would be very difficult to do. I don't think it is unconstitutional. I just think it is a bad, unwise, unjust test. The CHAIRMAN. Well, in summary you are going to the heart of title IT-you would not enact it into statute. You would let~ it rest upon case law. You think that the Durham case as amplified by the McDonald case is the best test that has been devised for the giving of instruc.tioiis to the jury on this difficult area of "not guilty" or "acquittal by reason of insanity" up to the presenttime. Mr. ICRASH. I think that is correct. You state my views very accurately, Senator. One thing I would hope would be, and I want to emphasize, I don't regard it as a definitive, ultimate solution. I think it is capable of improvement. I am not sure that, for example, the C~urrens test isn't in some re- spect even a better test. But it is a very operable test which has worked quite well. The CHAIRMAN. The Currens test is really very close to the Durham- McDonald test, is it not! - Mr. KRASH. Very close. The CHAIRMAN. There is a little change in*~ phraseology. But it appears to me it is fairly minor. Mr. KRASH. Very much so. You are absolutely correct, Senator. At this point, if I may say so, I think we are in an area of what I would call legally esthetic. You are getting down to very precise dif- ferences and shades of meaning here. which in terms of the rough and tumble of day-to-day trial practice in the trial courts, where this test is administered as a practical matter, I don't think we are talking about really important practical considerations. I don't mean to suggest these are nçt important as a theoretical matter, and that the legal scholars and commentators and I included, will write long and dreary law review articles and make long speeches about how important itis to distinguish these. All I am saying as a practical matter now, wherever, it concerns people who support that test, Judge Biggs' is, the American Law Institute test, Durham as modified by McDonald-the circle which we are all in is very close. We are all hitting at the same table. The CHAIRMAN. Thank you very much, Mr. Krash. You have been an excellent witness and extremely knowledgeable in this very diffi- cult field. I appreciate your taking time out from obviously what is a very busy practice to appear before us this morning.. Our next witness will be Dean Pye, associate dean of Georgetown Law School. We would be very happy to have your testimony now. I am sorry it has takeu us so long to get to you. PAGENO="0176" 170 AMENDMENTS TO CRIMINAL STATUTES OF D.C. STATEMENT OP A. KENI~ETH PYE, ASSOCIATE DEAN, GEORGETOWN UNIVERSITY LAW SCHOOL Mr. ~ My comments will be brief, because I agree in substance with almost everything Mr. Krash has said to the committee. I agree with a great deal of what the U.S. attorney, Mr. Acheson, said yesterday also, and I shall try to avoid repetition wherever possible. My views on the subject have been subject to considerable change during recent years. I served with Mr. Krash on the bar association committee in 1959, which recommended something very similar to the bill that this committee has before it today. At that time I favored the language which was contained in that bill, as distinguished from the Durham rule, as I understood it to be operative in the courts of the District of Columbia. Mr. Krash indicated, the bar association did not approve its committee's recommendation. Since that time, I have changed my views drastically. My view- point as to what is the appropriate test for responsibility in a criminal case is the same. The difference is that the law as it. has developed by judicial decisions has come around, at least in the way I read these cases, to be substantially what I think it should be. The CHAn~rAN. By that you mean Durham clarified by McDonald.~ Mr. P~. Durham clarified by McDonald, and the practices which have developed in the courts as far as the understanding of testimony, the reluctance of the court of appeals to reverse jury verdicts. I was originally concerned when Durham was interpreted in deci- sions such as United States v. Wright (250 Fed. 2d), that we might be leading toward an area. in which the concept of freedom of will was being deleted from the fabric of our criminal law. That we might. be headed toward an area that just because an individual was ill he would be held not responsible for his acts. Any doubts that I might have had in this particular have been solved, I think, by subsequent opinions of the court. As I understand the rule at the present time, the test is a workable test, a test which indicates that a defendant should not be held responsible when his capacity to refrain from doing an act. has beeii substantially impaired. The advantages of the right, and wrong test., and the irresistible impulse test are available in addition to this somewhat broader dpctrine. The CHAIRMAN. I don't understand that. last. statement. Mr. Pv~. The advantages of the recognition factor in the right and wrong test still exists in the law of the District of Columbia. In an appropria.te case the court would instruct, not only on Durham, but also on iF! cNaghten, arid irresistible impulse. The Durham test. is not a substitute for these other two. It re- places it in t.hose areas where right and wrong is not important. But a jury would still be instructed in an appropriate case that they should find the defenda.nt not. guilty by reason of irisamt.y if they determine that the effect of his disease was such Iliat be could not distinguish betwe~n right and wrong. PAGENO="0177" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 171 The CHAIRMAN. Thank you. Mr. Pvi. I cannot go as far as Mr. Acheson in concluding that the test as it presently exists is the same or substantially the same as that embraced in H.R. 7525. I do not know. My point is this: We have one opinion from a unanimous court. It seems to me q~iiite likely that a case may develop that will result in the cleavages which existed in the circuit prior to this opinion. I suggest the following possible, case, in which a defense counsel requests an instruction that a jury should find the defendant not guilty by reason of insanity if they find that his act was the product of the disease, and that they should reach this conclusion even though they find that his capacity to refrain from doing the act has not been susbtantially impaired. That kind of instruction would put it flatly to the court whether substantial impairment is a definition of what is meant by product, or definition of what is meant by disease. I am not at all sure the court will agree. At the present time, however, the concept of substantial impair~ ment is an important factor in the determination of who is responsible. Psychiatric treatment is such that I am not sure that it would make any difference to the average psychiatrist whether his testimony is couched in terms of susbtantial impairment or in terms of produc- tivity. My ma.jor point is that this test has shown that through the decision- making processes, evolution can occur, that the circuit court is not unmindful of the problems which exist in the trial court. That it is able to clarify the `law when it becomes evident that public welfare demands that it be clarified. Three years ago, if I were before this committee, I would have to complain, as I complained before Senator Ervin's Subcommittee on Constitutional Rights, that one of the problems of the operation of the Durham rule was that cases were being taken away from juries and directed verdicts being granted against the Government simply because a defendant was able to admit some evidence of insanity, and the Government could introduce no evidence of noncausality. This is no longer the case. McDonald has made it clear that when a defendant introduces some evidence, unless this evidence is of such overwhelming qualitative significance that a trial judge should not direct the case against the Government, it should submit it to a jury. Experience has also shown that the problems of- The CHAIRMAN. At that point, Dean Pye, the McDonald case came down in October of last year. Since that date, down to the present time, have we actual case examples in the District of Columbia where a defendant was freed by a directed verdict after he had produced some evidence of his mental condition? Mr. PYE. I know of none, sir. Quite clearly, it would occur in a case where three pschiatrists testify that the defendant is psychotic, the Government does nothing about it. This is the way the Government would handle the case in order to obtain the mandatory commitments features. If the Government agreed that the defendant was psychotic and not responsible for his acts, it would not dismiss the indictment in order to obtain the advantages of mandatory commitment. 25-260 0-64--pt. 1-12 PAGENO="0178" 172 AMENDMENTS TO CRIMINAL STATUTES OF D.C. They would go through with the trial, and the Government would simply not oppose the insanity defense. In that kind of case, there may still be directed verdicts. I know of no case where the Government has had a verdict directed against it in a contested case where the Government simply was unable to produce a psychiatrist who would testify that there was no casualty involved. This was occurring prior to McDonald. The CHAIRMAN. I understand that. But I am just trying to develop the facts that you are suggesting after the McDonald case. And I would assume if the statement you are making is correct- and I don't question it-that the facts, if there are any that fall within this category in actual practice, would bear you out. The CHAIRMAN. I will ask the staff to check that out. They may have cases that fall in this category, and there may not be~ This has only been a relatively short period of time, 13 months~ But I want to develop for the record what happens in the first case that you alluded to. If I understand you correctly, we have a defendant charged with a crime. He interposes a defense of not guilty by reason of insanity. Three psychiatrists testify as to his mental condition, and they are completely unanimous on his menta1 condition, that he should be acquitted or found not guilty by reason of insanity. I understood you to say that in that case the Government does not oppose the three psychiatrists-I understand that fact totally in that type of a case the judge would then commit this man to a mental institution; is that correct? Mr. P~ri~. No, sir; he would direct the jury to return a verdict of not guilty by reason of insanity. Upon receipt of that verdict, he would enter judgment of not guilty by reason of insanity, and then commit the defendant. The CHAIRMAN. And then there would be the commitment. Mr. Pvi~. Yes, sir. The CHAIRMAN. I think this is very important, because I know there exists in the minds of many, many people, and probably in the minds of a great many people in the community, the impression that under a factual situation such as you described that this man is turned loose on the streets. This simply is not true. Mr. Pvi~. That is absolutely correct, Senator. There is, another misimpression that is even more dangerous, `and that is that the in- dividuals who are found not guilty by reason of insanity, and who are committod to St. Elizabeths Hospital,. will promptly find themselves back on the streets ii~ a position to repeat their criminal activity, while had they received pi4son sentences they would be off the streets and the public would be protected. At the present time this data is under study. The judicial conference of the District, of Columbia circuit has for the last 3 years engaged in a project under the supervision of Professor Ohm of our faculty, and under a )uchclal conference committee, with grants received from the Agnes Meyer Foundation, studying the sub- ject of pretrial commitment for competency. . In the process of collecting this data, we have also concerned our- selves with what happens to an individual once he gets into St Eliza- PAGENO="0179" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 173 beths. The results will not be released until the conference acts upon it. I think it is a fair statement to say that anyone who is knowledgeable in this area, however, has reached the, conclusion that the average persOn who is sent to* St. Elizabeths Hospital will be released from St~ Elizabeths Hospital considerably later than he would anticipate release had he been convicted. And this is discounting the fact that one-third of the people who are convicted are placed on the streets immediately in a probation status. This kind of information is unfortunately not generally understood by the public. The"CHAIRMAN. Several witnesses testified to the same effect as you have testified now. I think this is very helpful for the record. Mr. Pm. Indeed, the problem for defense counsel is just the con- verse of the problem suggested by Senator Dominick earlier. If you were a defense counsel today, the Durham rule may loom as a formidable obstacle to doing what you think is best for your client. To the extent that a psychopath may be found to lack criminal responsibility, he will also be found to have very little chance of responding to treatment. `As Senator Dominick suggests, we have not been very lucky in re- habilitating these people. This means for the defense counsel if his client is found not guilty by reason of insanity, he may never be re- leased, where if he were convicted,'he could look forward to probation in 1 to 3 years~ Returning to the subject of the statute itself, I am concerned with several specific sections of it which have nothing to do with the test. The CHAIRMAN. If I understand- you are in agreement, as I under- stand, with the U.S. attorney and with Mr. Krash who preceded you, that-the test should best be left to the courts rather than to statutory law, and that the Durham rule as amplified or modified or supplemented by the McDonald test is the best test that can be de- signed to be given to a jury at the present time. Mr. Pv~. Yes, sir. The CHAIRMAN. Is that substantially your view? Mr. Pm. Yes, sir. The CHAIRMAN. All right. Now you might point to the other sections of title 2. Mr Pm With reference to the subject of the necessity of fllir~g advance nOtice of intention to assert the insanity defense, I' personally think that this is a desirable kind of situation. ` I' question whetheE it is best done in a general statute of this na- ture, as distinguished from being done in the rulemaking power of the Supreme Court in the "Federal Rules of Criminal Procedure." The Supreme Court advisory committee has under consideration at the:present time'whether advance notice of certain defenses should be required of defense counsel. In the' proposed amendment' they have `concluded that `it would be advisable to require advance assertion of the alibi de~ense~ They did not so conclude with reference to insanity PAGENO="0180" 174 AMENDMENTS TO CRIMINAL STATUTES OF D.C. This may be because it constitutes no substantial problem within the Federal system, although it might be a problem in the District of Columbia. However, I think it is the kind of matter which deserves consider- ation, not in isolation of the insanity defense, but in connection with all other provisions relating to criminal discovery, including the de- fendant's right to learn from the Government what its case is going to be. The CHAIRMAN. The U.S. attorney on that point said that he fa- vored this section. He did not think it was absolutely required, be- cause he very rarely ran into this type of a problem as a matter of practice. But he said notice in order to prevent surprise is a. good thing. I understand your point to be that you agree that notice is a good thing, because it does prevent surprise, but it should be taken care of under the rulemaking authority of the courts rather than under the statutory making authority of the Congress. Mr. ~ That is correct, because there is an intimate connection between how much the defendant should have a right to know about the Government's case, when we are giving advance notice of the de- fendant's case to the Govermnent. I think this is best handled in the general context of criminal rules in general. I agree ~vith Mr. Acheson that it would be meaningless in this juris- diction, in 95 percent of the cases, for the simple reason `we are dealing with a predominantly indigent population, and even those that are not indigent can rarely afford the psychiatric advice of private prac- titioners. As a result, to my experien~ce at least, 90 percent of the cases which are tried, in which the defense is asserted, are cases where evidence of psychiatric disorder is learned through pretrial mental commitment. The Govermnent receives notice of this, the Government receives a copy of the report. They have advance notice, in a.ll except the most unusual case where you are representing a wealthy individual who is able to hire a psychiatrist on the sly and be examined without the Government finding out `about it. Now, this is a disadvantage. But we are bound to have some dis- `advantages in any system. The `Government under the case of Hughes v. The United States, 306 Fed. 2d, has a right to obtain an advantage over the defendant in a few cases by sending in a Government psychiatrist to examine a defendant immediately after he is arrested, and not provide a. report of this examination to the defendant. Now, neither of these would be good in a perfect system. I ques- tion whether it is desirable to pass a statute to take care of such un- usual possibilities. I might add with reference to this statute, the statute presumably wishes to give legislative endorsement to the result of the Hughes case. There is a provision in the statute which would permit the Gov- ernment not to utilize the usual procedure of impartial examination, but would permit the Government to send its own psychiatrist in immediately after arrest, and examine the defendant. This could be very important, because of the ~delay factor. PAGENO="0181" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 175 Psychiatric testimony of a doctor who has examined the defend- ant immediately after an offense is apt to be more persuasive than an examination of a doctor who did not see the defendant until months thereafter. If the defendant is required to utilize the procedure provided for in this statute, it would only be after indictment, the appointment of counsel, the assertion of the intention to rely on the defense, that the examination would be made. The Government in the meanwhile could have had him examined by a private psychiatrist at a much earlier date. I don't think that discrepancy is desirable. The sanction provided for by the statute in paragraph c(2) on page 3, also causes me some difficulty. It is suggested that evidence would not be admissible at trial if the defendant failed to assert in advance of trial his intention to rely on this defense. I respectfully suggest that if a trial judge refused to permit evidence that a defendant was insane at a criminal trial, the appellate courts would not have much trouble in finding out that the conviction ought to be reversed. I invite the attention of the committee to a recent case in Colorado, French v. The District Court, which is still in the advance sheets. Under Colorado procedure, the defendant is remanded to a State mental institution for psychiatric examination, where he is supposed to cooperate.. This defendant did not cooperate. Because he did not cooperate, they refused to permit him to admit evidence of insanity at his trial. The Supreme Court of Colorado in a unanimous opinion reversed, the case, saying that regardless of the desirability of his cooperation, they could not permit a judgment to be entered of guilty against a man who might be insane. I suggest that the same result would follow if this particular statu- tory sanction was invoked. The CHAIRMAN. The same problem that you present troubles the U.S. attorney as well. He indicated if there was any sanction, it should probably be against the lawyer and not against the defendant. I don't know whether you have any comments on that. Mr. Pys. I am Chairman of the ,Judicial Conference of this Cir- cuit's Committee on Federal Criminal Rules. With reference to the alibi defense, we tentatively explored the possibility of providing a sanction against the attorney similar to the sanctions provided for in rule 11 of the, Federal Civil Rules. Now, this is the rule that requires or provides that. the signature of an attorney constitutes verification of what is contained in the com- plaint and the answer, and that the court might exert disciplinary sanctions against an attorney who files a false complaint or false answer. We are unable to find any cases in which this has ever been done, however, and I strongly suspect the result would be the same in the criminal area. The CHAIRMAN Th'tnk you PAGENO="0182" 176 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Mr. P~. I think I disagree with Mr. Acheson's testimony with reference to the provision in paragraph c(1), oii page 3, lines 8 through 10, with reference to the language of the act which would make language of mental responsibility an affirmative defense, and require that the defendant must show this by substantial evidence. I think that this would constitute a considerable change in existing law in the District of Columbia~ It is my understanding that this particular provision originated in the ALl as a result of a compromise between individuals that didn't like the some evidence rule, and individuals who wanted to adopt a statute such as the Oregon statute in Lelar4 v. Oregon, placing the burden on the defendant to establish insanity. The result was a statute which, as I read it, is ambiguous. You cannot tell whether the defendant has to establish the existence of a mental disease by a preponderance of the evidence. It is clear, however, that he has to produce substantial evidence. Substantial evidence might well be interpreted to mean somethin different than some evidence. Some evidence has a judicially define meaning now, as a result of almost 50 years of case law since the Davis opinion. To change the word "some" to "substantial" would give rise to a feeling on the part of some people that the defendant has to produce at least a preponderance of the evidence. I think it is reasonable to assume he has to produce something more than some, if not a preponderance. In any case, I see no advantage to confusing the law, unless we are in a situation where substantial detriment is being sustained by the Government in meeting the insanity burden. As I understand from Mr. Acheson's testimony and his article in our law review of last year, this is not the case. The fact that the Government has the burden of proceeding as a result of the introduction of some evidence does not at the present time place any severe limitation on the Government; they are able to meet it. If this is true, I see no point in trying to adopt new statutory ian-. guage, when the old language is doing the job. I am particularly concerned with the provisions in paragraphs d. to g, which cover pages 3 to 10 of the act. These are the provisions that set forth details of the scope, manner, form, and effect of the pretrial examinations. This is the very subject which the judicial conference of this circuit has had understudy for 3 years. This conference appointed an eight- man executive committee, retained the full-time services of a project director, and obtained $50,000 of funds in order to conduct the study. Every case which has involved the assertion of a claim of incom- petency to stand trial since 1953 has been studied. The records of St. Elizabeths Hospital have been studied, the court records have been studied, questionnaires have been sent to lawyers and attorneys throughout the country. This May the committee will report to the judicial conference making recommendations. Some of these recommendations may constitute substantial changes in existing procedure as to pretrial commitment, what should be in PAGENO="0183" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 177 the examination, what the responsibility of the court should be in dealing with the doctors who have determied that he is competent or incompetent, and perhaps dealing with release procedures. The CHAIRMAN. Much of this, as I understand it, is already covered by existing statutes in the District of Columbia. Mr. PYE. That is correct. The CHAIRMAN. Statutory law-and this is what you are examining in your judicial conference. Mr. PYE. Yes, sir. In. substance we shall be in a position, if the conference approves the report, of making recommendations to this committee for such changes in the existing provisions of title 24301 of the District of Columbia Code as should be desirable. `it may be that we will recommend the same language which is in the present act. .1 simply suggest that there is much in favor of the committee deferring action upon it until it has the benefit of a substantial staff study. I have one further comment with reference to the language that a defendant who has been released from a hospital following a verdict of not guilty by reason of insanity should be put on a probation status. I agree with the preceding witnesses that this language is undesir- able, but for somewhat different reasons. At the present time a person who is on a. conditional release status is subject to a redetermination of his status by the court upon proper application by the Government. He is subject to supervision by the court. The court usually imposes conditions that require him to. report or undergo treatment fromthe hospital. This, to my mind, is a better method than putting him on probation, if by probation we mean putting him under the supervision of a probation officer. At the present time, in the District of Columbia, our officers have a caseload of over 84 cases a month. it is quite obvious that the extent to which they can supervise or provide treatment for people is limited. When you have 84 of them a month to take care of, I think the hospi- tal is a better place, and the direct supervision of the court is a better place from the point of view of the protection of society as well asfor the rehabilitation of the individual'than any transfer of this type of individual to the probation service., Thank you, sir. The CHAIRMAN May I ask you just one further comment A nuin be:r' of witnesses have commented on the jury instruction, found at page `13 `of the bill. It reads as follows in the proposed bill before us: The jury shall not be told by the court of counsel for the Government and for defendant the consequences of the verdict of not guilty or acquittal by reason of insanity. . . . . * My understanding of `case law' in the District of Columbia at the present time is th~t it is just the reverse, and that the jury is told the `consequences of a verdict of not guilty or acquittal by reason of insanity. Would you favor this or would you not? Mr. P~ru. I would oppose this, sir, for this reason: * PAGENO="0184" 178 AMENDMENTS TO CRIMINAL STATUTES OF D.C. As other witnesses have testified, the average juror comes into a criminal case with the belief that if the defendant is found guilty he will go to prison; if he is found not. guilty he will go free. If he goes free he may constitute a menace to society. I think a totally rational view on the part. of a juror in a. serious case would be that, "If I have a reasonable doubt as to whether this man is insane. but I am sure he is a dangerous individual. I will con- vict rather than find him not guilty, because that way I am certain that sOciety will be protected. Where, if I find him not guilty by reason of insanity, he may be free to prey on the public again." This instruction which is presently being given dispels t.his kind of attitude. I think it is more important tha.t an instruction of this type be given in the District of Columbia ra.ther than in some other place. As everyone is aware, a. number of our citizens do not. come from the District of Columbia originally. Even well-informed citizens from other States would not know the -mandatory.~commi.tment. law, because other States do not have the mandatory commitment law. All that this instruction does is permit the jury to determine wheth- er the defendant is mentally responsible in a. realistic posture. If he is sick, and the sickness caused the disease, he will go to a hospital. If he is not sick, or if the sickness did not cause the disease, he should go to prison. In neither case will he go free unless they find him not. guilty. I think instructions that put the case to the jury in that posture are quite reasonable. The CHAIRMAN. Thank you, Dean Pye. I certainly appreciate your courtesy in coming here and appearing before us this morning. Again I want to thank you for your patience in waiting such an un- seemingly long period of time to give your testimony. Mr. Pr~. Thank you, Senator. The CHAIRMAN. Before we recess, I would like to include in the hearing record a letter and attachments from Mr. John H. Pratt. president of the bar association of the District of Columbia, dated October 10, 1963. (The letter and attachments follow:) THE B~n AsSoCIATIoN OF THE DISTRICT OF COLUMBIA, Washington, D.C., October 10, 1963. Re H.R. 7525, omnibus crime bill. Hon. ALAN BIBLE, Chairman, Committee on the District of Coivnibia, U.S. Senate, Washington, D.C. DEAR SENATOR Bm~: We appreciate your invitation for the Bar Association of the District of Columbia to express its views on H.R. 7525, relating to crime and criminal procedure in tue District of Columbia. Unfortunately, the asso- ciation is not in a position to take any formal position on the entire bill, since neither the board of directors nor the membership has approved any policy declaration on it. We are pleased to communicate certain information based on past association consideration of related matters, however. PAGENO="0185" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 179 TITLE I-"MALLOBY" RULE As you know, title I of the bill would modify existing law (interpretation of rule 5(a) of the Federal Rules of Criminal Procedure) to prevent the courts from disqualifying statements and confessions solely because of delay between the arrest and arraignment of a suspect. The Supreme Court in Mallory v. United States, 354 U.S. 449 (1957), and the earlier decision in McNabb v. United States, 318 U.S. 332 (1943), placed limitations on the use of confessions under certain circumstances of delay between arrest and arraignment. The U.S. Court of. Appeals for the District of Columbia circuit applied the Mallory-McNabb rule in KillOugh V. United States, 315 F. 2d 241 (D.C. Cir. 1962) resulting in much discussion of the rule by the bar and thepublic. The Deputy Chief of Police appeared before the bar association and discussed problems of the Police De- partment in investigations and prosecutions under the rule. Thereafter the president of the association appointed a committee of experi- enced lawyers (some very experienced in the criminal field and others less ox- periencecl in that field) to study the matter. On March 7, 1963, the committee submitted its report recommending (with one dissent) four bills or legislative enactments. The first recommended bill would deal with the Mallory rule and is generally consistent with title I of H.R. 7525, except that it would provide certain additional safeguards not included in H.R. 7525. A copy of the commit- tee report is forwarded herewith as attachment 1. The board of directors of the association unanimously approved the report in principle. The association's committee on criminal law and procedure on March 20, 1963, adopted a report opposing the report of the special committee and specifi- cally opposing H.R. 1930 to amend the Mallory rule much as title I of HR. 7525 would do. The committee's report is enclosed as attachment 2. Because of this position the matter was scheduled for consideration and debated at the regular meeting of the association held on April 16,. 1963. The association membership voted down the special committee's recommendation by a standing vote of the membership (30 Journal of the Bar Association of the District of Columbia 263, 268). That position of the association has never been reconsidered. How- ever, the matter is now referred to the association's criminal law and procedure committee for recommendation. TITLE II-"DUBHAM" RULE Title II of H.R. 7525 would abolish the rule on criminal responsibility applied in Durham v. United States, 94 U.S. App. D.C. 228, 214 F. 2d 862 (1954), and other cases, and would provide that insanity is an affirmative defense to be as- serted and proven by the accused. The association has never been able to reach agreement to support similar pro- posals. As is noted in House Report 563, 87th Congress, 1st session, page 20, in September 1959, a proposal to abolish the Durham rule and substitute a statu- tory rule dealing with insanity as a defense in a criminal case was voted down by the membership (26 Journal of the Bar Association of the District of Colum- bia 301, 316, 448-449). A copy of the 1959 committee report and dissent are enclosed as attachment 3. In connection with H.R. 7052, 87th Congress, our mental health committee carefully studied the problem anew in 1962. The exhaustive studies resulted in a majority report of some 50 pages and a minority report of some 15 pages, each of which were transmitted to you by letter from the association's executive secretary, on April 12, 1962, for assistance and guidance of your committee and its staff in considering the Durham. rule legislation. We refer you to those reports as the product of hours of study by informed lawyers rendering a public service. The association has no further position on this matter. TITLE Ill-DETENTION FOR INVESTIGATION The association's special committee on the Killough case considered this sub- ject in its report (see pp. 6-7). Likewise, the committee on criminal law and procedure considered it in its adverse report (pp. 1-3 on H.R. 1920). The vote of the association rejected the special committee's report which recommended legislation similar to title III. The association's position remains unchanged. PAGENO="0186" 180 AMENDMENTS TO CRIMINAL STATUTES OF D.C. TITLES IV AND V-AMENDMENTS CONCERNING SPECIFIC ACTS OR CRIMES These two titles deal with propoEals to amend the statute with respect to robbery, burglary, corrupt influences in connection with athletic contests and Indecent `publications. No policy position has been formulated, to date, on these provisions, either by the assocIation or its cOmmittees. H.R. 7525 is being studied by our committee on criminal law and procedure. If views which have proper authorization and approval of the committee, the association's board of directors or Its membership are arrived at before your present hearings close, we shall be pleased to communicate them to you. Again let us express appreciation for your keen interest in the District of ~olumbia ami its laws~ If we can be of further assistance, please call on me or Robert W. Barker, Esq., chairman of our committee, on pending legislation. Sincerely yours, JOHN H. PL&u!r, President. PAGENO="0187" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 181 ATTACHMENT 1 Report of the Special Committee for Consideration of the Rule in Killough's Case and Related Matters March 7, 1963 Thomas S Jackson, Esquire President Bar Association of the District of Columbia * 1044 WashingtOn Building Washington 5, D. C. Dear Tom: This letter and the enclosures constitute the report of the above committee. We agree unanimously that the decision of the United States Court of Appeals for the District of Columbia Circuit in Killough v. United States U.S. App.D.C , repre- sents merely an application of the McNabb-Mallory rule and as such does not merit prolonged attention. Some of us are of the opinion that the Court of Appeah overturned too readily the finding of the trial judge that there was no casual connection between the two confessions but we do not think that any legislative or other corrective action is called for in this regard. We have construed our appointment as requiring us to go further than a consideration of the Killough case itself and have conducted our proceedings accordingly. The problem that faces the community arises out of the necessity of reconciling protection of individual rights with the public interest in ade- quate law enforcement. The nature of the problems that arise and the division of opinion that inevitably results are well illus- trated in the decision of the Supreme Court of the United States in In Re Groban, 352 U.S. 330, 1 L.Ed.2d 376, 77 S.Ct. 510 and Anonymous V. Baker, 360 U.S. 287, 3 L.Ed.2d 1234, 79 S.Ct. 1157, in each of which the Justices divided five to four. After consideration of what we deem all of the relevant factors, the undersigned recommend that the Bar Association of the District of Columbia sponsor the enactment by Congress of the three bills that are attached. PAGENO="0188" 182 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The first, which relates to the admission in evidence of cer- tain confessions in criminal cases, contains in sections 1 and 2 substantially the provisions that appeared in Senate 525 offered in the 86th Congress 1st Session by Senator Keating and others. Sections 3, 4 and 5 of the attached bill have been devised by your committee. The second bill, which would authorize judicial officers to require the giving of evidence relating to crimes committed in the District, is based upon the bill prepared for the Commis- sioners and submitted by them to the Bureau of the Budget early in January but contains a number of additions and changes made by the committee with a view to making the bill both more effective for its intended purpose and also to afford greater protection of individual rights. The third bill, relating to material and necessary witnesses to crimes committed in the District, is likewise based upon a bill submitted by the Commissioners to the Bureau of the Budget in January but contains certain changes sponsored by the committee. Respectfully submitted, MILTON W. KING DANIEL W. DONOGHUE EDMUND D. CAMPBELL GEORGE E. C. HAYES FREDERICK A. BALLARD JOHN J. WILSON WILLIAM S. THOMPSON JOHN E. POWELL JEP/a Enclosures PAGENO="0189" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 183 A BILL To ptovide for the admission in evidence of certain confessions in criminal cases in the District of Columbia and for other purposes. B~ IT ENACTED BY THE SENATE AND HOUSE OF REPRE- SENTATIVES OF THE UNITED STATES OF AMERICA IN CON- GRESS ASSEMBLED, That 1. In any criminal trial in the District of Columbia evidence, including statements and confessions, otherwise admissible, shall not be inadmissible solely because of delay in taking an arrested person before a commissioner or other officer empowered to commit persons charged with offenses against the laws of the United States, unless the effect of the delay is to render the confession involuntary. 2. Notwithstanding the provisions of section 1, no statement, admission, confession or other evidence obtained from the de- fendant in an interrogation of him shall be admissible, unless immediately prior to any such interrogration the defendant is plainly advised that he is not required to make any statement and that any statement made by him may be used against him. 3. Nothing in this Act shall be construed to limit or abridge the privilege against self-incrimination. 4. In any criminal trial in the District of Columbia, if the trial judge is of the opinion that a statement or confession has been obtained by the Metropolitan Police from the accused in violation of any constitutional provision, statute or rule of Court, he shall direct that the relevant portions of the transcript and his observations thereon be forwarded by the court clerk to the Commissioners of the District of Columbia. 5. Upon receipt of such a transcript, the Commissioners shall promptly forward the same to the Special Police Trial Board created by Reorganization Order No. 48, dated June 26, 1953, as amended, for prompt trial of the police official or officials allegedly involved in the violation referred to in sec- tion 4. The trial board shall have the powers described in Chapter 6, Title 4 of the Code of Law for the District of PAGENO="0190" 184 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Columbia in addition to any others lawfully conferred upon it; and the findings of the board and the action ultimately taken,. exonerating, reprimanding, disciplining or otherwise punish- ing the police official or officials involved, shall in due course. be communicated by the Commissioners to the Clerk of the court from which the trial transcript was forwarded. A BILL To authorize judicial officers to require the givingof evidence re. lating to crimes committed in the District of Columbia. BE IT ENACTED BY THE SENATE Ai~ HOUSE OF REPRE- SENTATIVES OF THE UNITED STATES OF AMERICA IN CON GRESS ASSEMBLED, That (a) In any investigation by a mem- ber of the Metropolitan Police force or by any Federal law enforcement officer (hereinafter called investigating officer) of a crime committed in the District of Columbia which is punish able by imprisonment for a year or more, an a showing of good cause to believe that a person may be able to give evidence relating to such crime, any judge of the District of Columbia Court of General Sessions or the United States Commissioner for the District of Columbia (hereinafter called judicial officer) may, on the application of the appropriate prosecuting attorney, issue a subpoena commanding such person (hereinafter called respondent) to appear before a designated judicial officer forth with or at any time specified in the subpoena The subpoena may be served by an investigating officer or by the United States Marshal or a deputy United States Marshal If the sub- poena requires the appearance of the respondent forthwith, the person serving the subpoena shall bring the respondent before the judicial officer; provided, however, that if the investigating officer has reasonable ground to believe that any such respond- ent may not be readily available if the foregoing procedure is followed, he may hand to respondent a subpoena previously issued in blank by the Clerk of the District of COlumbia Court of General Sessions or by the United States Commissioner foE the District of Columbia, requiring the respondent to apoear forthwith before a judicial officer, and the investigating officer serving such subpoena shall bring the respondent forthwith PAGENO="0191" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 185 before the judicial officer, who shall determine whether or not there is good cause to believe that respondent may be able to give evidence relating to such crime; and if the judicial offi- cer does not find that good cause exists, he shall forthwith dis- charge respondent; provided further, however, that no statement or evidence given by respondent prior to his appearance before the judicial officer may be used against him in any criminal proceeding. (b) The judicial officer shall inform respondent of the pur- pose of the subpoena, that he is not required to make any state- ment or give any evidence that may incriminate him, and that any statement or evidence given by him may be used against him in any criminal proceeding Thereafter the judicial officer may require respondent to give evidence to the investigating officer or officers at a specified time for a period not exceeding six hours, and at a specified place or places other than a police station, cell block, or other area normally used for detention of arrested or convicted persons If the respondent willfully re- fuses to give evidence he may be prosecuted as provided in Title 23 of the Code of Law for the District of Columbia and, upon conviction, may be fined not more than $500 or imprisoned for not more than 60 days Provuled, That nothing in this Act shall be construed as being in derogation or limitation of respondent s privilege not to be a witness against himself in a criminal case or of any privilege respecting his testimony to which he is otherwise entitled by law At the conclusion of the detention, as herein provided, the respondent shall immediately be brought again before a judicial officer who shall both inform respondent of his right to make a statement with respect to anything that occurred during the detention and afford him adequate opportunity to make one (c) A detention, as herein provided, of any person shall not constitute an arrest within the meaning of that term as used in anylaw, rule or regulation. (d) In every case of a respondent who is required to give evidence pursuant to this section, all proceedings before the judicial officer shall be transcribed verbatim or recorded elec- PAGENO="0192" 186 AMENDMENTS TO CRIMINAL STATUTES OF D.C. tronically, and the investigating officer or officers shall make and preserve an electronic recording of all questions asked of the respondent and of all answers and statements made by him and shall make and preserve a detailed record of all documen- tary and other evidence given by him; and anything occurring upon such occasion, if not so recorded, shall not be used against him in any criminal proceeding. Such recording and any such documentary or other evidence may, for good cause, be ordered by the court to be produced at a trial or hearing in any criminal proceeding or for inspection before trial. The recording and documentary or other evidence referred to in this subsection shall be preserved for a period of not less than three years and for such longer period as the appropriate prosecuting attorney shall direct in writing. A BILL To amend the law relating to material and necessary witnesses to crimes committed in the District of Columbia. BE IT ENACTED BY THE SENATE AND HOUSE OF REPRE- SENTATIVES OF THE UNITED STATES OF AMERICA IN CON- GRESS ASSEMBLED, That section 401, the Revised Statutes of the United States, relating to the District of Columbia (D. C. Code, sec. 4-144), is amended to read as follows: "Sec. 401. (a) Whenever, in a criminal case, there is reasonable ground to believe that any person is a mate- rial and necessary witness to any crime or attempt to commit any crime punishable by imprisonment for one year or more and there is a reasonable probability that he will not be available to testify at the trial of the person charged with such crime, the person so believed to be a material and necessary witness may be taken by a member of the Metropolitan Police force or by a Federal law en- forcement officer, without unnecessary delay, before a judge of the United States District Court for the District of Columbia or a judge of the District of Columbia Court of General Sessions or a United States Commissioner (here- inafter called judicial officer). If the judicial officer, after PAGENO="0193" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 187 a hearing at which testimony shall be given under oath, is satisfied that the person is a material and necesssary witness and that there is reasonable probability that the witness will not be available at the trial, he may require such witness to post bond or collateral as security that he will appear and testify at such trial, or upon his failure to post such bond or collateral after a reasonable oppor- tunity to do so, may order his further detention until such time as he appears and gives testimony at the trial or un- til the trial has been finally disposed of otherwise. The detention, as herein provided, of any such witness shall not constitute an arrest within the meaning of that term as used in any law, rule or regulation. No statement made by such witness in the course of his detention as authorized by this section shall be used in a prosecution against him for the commission of any crime, unless he shall have been previously informed by a judicial officer that he is not required to make any statement or give any evidence that may incriminate him and that any statement or evidence given by him may be used against him in any criminal proceeding. (b) The Board of Commissioners shall provide suit- able accommodations within the District of Columbia for the detention of persons who are unable to furnish security for their appearance as witnesses, as provided in subsec- tion (a). Such accommodations shall be separate and ~apart from quarters used for the confinement of persons charged with crime. The Commissioners may, in their discretion, enter into agreements with any Federal Agency, including the United States courts, for the use of suitable space in a building under the jurisdiction of any such agency, and such agency is hereby authorized to permit the use of such space for the purpose of providing the accommodations required by this subsection. In carrying out the purposes of this Act, the Commissioners may util- ize any appropriate space in any building which is owned or leased by the government of the District of Columbia. 25-260 O-64~---pt. 1-13 PAGENO="0194" 188 AMENDMENTS TO CRIMINAL STATUTES OF D.C. In the case of any witness detained by an officer other than an officer or meinber of the Metropolitan Police force, the District of Columbia shall be reimbursed for the accommodations furnished such witness at rates to be determined by the Commissioners." Sec. 2. District of Columbia appropriations shall be avail- able for carrying out the purposes of this Act. March 12, 1963 MEMORANDUM for Board of Directors Bar Association of the District of Columbia Re: KILLOUGH COMMflTEE This memorandum supplements the Committee's report dated March 7, 1963. The first bill referred to in the report, entitled "A bill to provide for the admission in evidence of certain confessions in criminal cases in the District of Columbia" would accomplish two purposes. Paragraphs 1 and 2 would amend the McNabb- Mallory rule and would restore the law more or less to the situation that existed prior to the Supreme Court's adoption of the exclusionary rule as its chosen method of enforcing the injunction, of Rule 5(a) of the Federal Rules of Criminal Pro.. cedure that an officer making an arrest shall take the arrested person "without unnecessary delay before the nearest available" judicial officer. These paragraphs 1 and 2 are substantially the same as those approved by the Judicial Conference at its session on May 8, 1958. Paragraphs 4 and 5 of the proposed bill are intended to pro- vide an alternate method for policing and enforcing the man- date of Rule 5(a) quoted above. They incorporate a suggestion made by Judge Burger in his dissenting opinion in Killough v. PAGENO="0195" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 189 U. S. (slip opinion page 34, Note 5) which was adopted by Judge Youngdahl in his memorandum opinion filed October 23, 1962 in U. S. v. Smith and Bowden, Criminal No. 324-62. These paragraphs of the bill are also designed to make clear that there is no intention of countenancing so-called third de- gree methods. The second proposed bill entitled "A bill to authorize judicial officers to require the giving of evidence relating to crimes committed in the District of Columbia" is intended to furnish a substitute for the arrests for investigation that were condemned by the Horsky Report and to establish a carefully circumscribed procedure that would permit limited police interrogation with- out an arrest. This bill would apply the subpoena to new uses; the bill thus seeks to build upon existing law and practice. As noted in the original committee report dated March 7, this bill is based upon that submitted by the Commissioners to the Bureau of the Budget in January but contains certain additions and changes proposed by the committee. The most substantial additions appear on page 1, line 19 through line 11 on page 2; lines 3 through 11 on page 3; and lines 19, 20 and 21 on page 3. Other departures from the Commissioners' bill have been made for purposes of readability and clarification. The third bill entitled "A bill to amend the law relating to material and necessary witnesses to crimes committed in the District of Columbia" is likewise based upon a bill submitted by the Commissioners to the Bureau of the Budget in January. The additions proposed by the Committee are to be found in lines 15 through 20 on page 2. Other changes have been made with a view to increasing readability and clarity. The existing statute, which the bill would amend, has been on the Statute Books for eighty-five years but has been little used because of its limited provisions. The proposed bill represents an attempt to revise this statute so as to make it a useful adjunct of law enforcement which at the same time affords protection to the citizen witness. JOHN E. POWELL Chairman PAGENO="0196" 190 AMENDMENTS TO CRIMINAL STATUTES OF D.C. March 13, 1963 Dissent from Killough Committee Report I agree with the Killough Committee that the decision of the United States Court of Appeals for the District of Colum- bia Circuit in Killough v. United States, .. . U.S. App. D.C. F.2d .... (No. 16398, Oct. 4, 1962), represents only an application of the McNabb-Mallory rule and that the Committee should make no specific recommendation with re- spect to that case. As we said during our deliberations, Killough is a matter for "judicial evolution." I respectfully dissent from all other recommendations of the Killough Committee. The Committee has submitted three legislative proposals and has recommended that all three be sponsored by the Bar Asso- ciation of the District of Columbia. The first two proposals urge drastic changes in criminal procedure in the District of Colum- bia-changes which may restrict rights guaranteed by the Con- stitution. One who sponsors such legislation has a heavy burden to prove both need and legality. I do not think that burden has been met. The third proposal-while less drastic-is not sup- ported by a demonstration of need. The three proposals will be discussed in order. I. ANTE-MALLORY PROPOSAL The first bill provides in essence that a confession shall not be inadmissible in evidence solely because it was obtained during a period of unnecessary delay between arrest and arraignment. This is an elaboration of the so-called Keating Bill and similar proposals which have been debated extensively for a number of years in the Judicial Conference, this Bar Association and Congress. The premise of this proposal seems to be that Rule 5(a) of the Federal Rules of Criminal Procedure has not been construed properly by the courts. It is an attempt to eliminate the McNabb-Mallory rule via legislation. This is not the place for a detailed analysis of the McNahb- Mallory-Killough cases, but some brief reference appears in order. PAGENO="0197" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 191 Rule 5(a) provides that a police officer who has made an arrest shall take the arrested person before a magistrate without unnec~ssary delay. Rule 5(b) provides that the magistrate shall inform the defendant of the complaint against him, of his right to retain counsel, of his right to a preliminary hearing, that he is not required to make a statement, and that any statement made by him may be used against him. Rule 5 imposes no sanction on the police for a violation of the rule. The McNabb decision interpreted the statutory antecedents of Rule 5 (a). It merely decided that any confession obtained during a period of illegal detention cannot be received in evi- dence. McNabb v. United States, 318 U.S. 332 (1943). The McNabb rule itself is not a constitutional doctrine. It is a rule of evidence established by the Supreme Court in the exercise of its supervisory authority over the administration of criminal justice in the federal courts. The facts in the McNabb case itself, and in other cases involving application of the McNabb rule, raise constitutional questions as well because protracted secret questioning by the policy may, at least under some circumstances, also constitute a violation of due process. When the McNabb doctrine is applied, however, the constitu- tional questions need not be reached, and they were not reached by the Supreme Court in the McNabb case. The Mallory case simply interprets when the McNabb rule is violated. Mallory was arrested around 2:30 P.M. The police then had insufficient evidence to take him before the Com- missioner. He made a series of confessions late that night and was arraigned at 10:00 o'clock the next morning. The Court held the confessions were improperly admitted at trial because Rule 5 (a) had been violated. Mallory v. United States, 354 U.S. 449 (1957). The Killough case involved a situation in which there had been a Mallory violation in that the police had obtained a confession during a period of illegal detention. The defendant was then arraigned and the police later obtained a reaffirma- tion of the earlier confession. At the trial the prosecutor used only the reaffirmation. The Killough case simply holds that the reaffirmation has no validity unless the accused has received PAGENO="0198" 192 AMENDMENTS TO CRIMINAL STATUTES O~ D.C. the advice of counsel prior to the reaffirmation. The literature on this subject is extensive. See, for example, Hogan and Snee, The McNabb-Mallory Rule: Its Rise, Ration- ale and Rescue, 47 Geo. L.J. 1 (1958). Our Junior Bar Section prepared an extensive analysis of the McNabb rule in 1957, while Mallory was pending in the Supreme Court. See "Report to the Council on Law Enforcement on the Meaning and Appli- cation of the McNabb Rule." As I recall, former United States Attorney Oliver Gasch once reported that Mallory questions (confessions and admissions) are of controlling importance in probably less than five percent of criminal prosecutions in the District of Columbia. He also once dismissed the suggestion that the McNabb-Mallory rule affected the crime rate as "much too speculative." This suggests the need for a clear demonstration that drastic legislation is in order. The Killough Committee has not made such a demonstration. There may be added problems raised by Wong Sun v. United St at es~ U.S (1963), U.S. LAW WEEK, p. 4079, Jan. 14, 1963. Even before Wong Sun, the illegality of an arrest excluded tangible evidence. There was, however, some controversy as to whether a confession or admission obtained as a result of an illegal arrest could be excluded as a violation of the Fourth Amendment. In Wong Sun, the Supreme Court found there had been an arrest without probable cause and extended the doctrine to confessions and admissions. The Court said: "Thus verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the `fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion. See Nueslein V. District of Columbia, 115 F.2d 690. Nor do the policies underlying the exclusionary rule invite any logical distinc- tion between physical and verbal evidence." Slip Opinion, p. 14 The Wong Sun case probably means that the legality of an arrest will be in issue in every confession case. It may even exclude some "threshold" confessions, which have been ad- missible in D. C. courts under United States V. Mitchell, 322 U.S. 65 (1944). PAGENO="0199" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 193 The Wong Sun case serves to illustrate that the problem goes beyond an interpretation of Rule 5(a). Even if Rule 5(a) were abolished, the courts may be forced to decide whether the Fourth Amendment has been violated in Mallory-type cases. The courts may also reach questions under the Fifth Amend- ment (whether liberty has been lost without due process of law), the Sixth Amendment (rights to notice of the charge, confrontation, and counsel), and the Eighth Amendment (right to reasonable bail). In the final analysis, I think any bar association should be very careful in advocating the abolition of a rule which has been in effect for so many years and which has been interpreted on so many different occasions. Further, I think any bar asso- ciation should be extremely cautious in proposing legislation which may restrict rights guaranteed by the Constitution. II. SIX HOUR BILL The second bill would authorize judicial officers to require the giving of evidence by providing that a person may be subpoenaed and interrogated for six hours. In the Killough Committee we have called this proposal the "Six Hour Bill." More specifically, this bill provides that when any law en- forcement officer has "good cause" (not probable cause) to believe that someone (a "respondent") may have information concerning a specific crime, the prosecuting attorney may ask a judge to issue a subpoena directing the respondent to appear forthwith. The judge tells the respondent that he is not re- quiréd to give evidence which may incriminate him, but the respondent is not given counsel. The respondent is then taken away (to some place other than the precinct) where he may be interrogated, in the absence of judge and counsel, for six hours. If he is not willing to talk, he may be held in contempt. A transcript is made of the respondent's testimony. This bill was discussed rather extensively during Committee meetings and I shall now set forth my general objections as expressed to members of the Committee. A. Is the "Respondent" Arrested? The first problem seems to be whether the "respondent" is PAGENO="0200" 194 AMENDMENTS TO CRIMINAL STATUTES OF D.C. arrested when the police take him away with a subpoena. If an arrest is involved, it is unlawful without probable cause. If probable cause exists, the entire exercise is unnecessary. If it is not an "arrest" or "seizure," what is it? One authority has said: "... [I)n most instances the [state) courts have not even discussed whether in-custody investigation by the police is legal." Barrett, Police Practices and the Law- From Arrest to Release or Charge, 50 Calif. L. Rev. 11, 22 (1962). We know that the courts of the District of Columbia will discuss the problem, and I think we should try to predict what they will say and do. My prediction is that our courts will find there has been an arrest. See, for example, page 20 of Judge Youngdahl's opinion in United States V. Smith and Bowden, Criminal No. 3 24-62, U.S. District Court for the District of Columbia. I pre- dict our Court of Appeals and the Supreme Court will also find there has been an arrest. See Coleman V. United States, 111 U.S. App. D.C. 210,295 F. 2d 555 (1961). The suggestion has been advanced that the presumption of constitutionality of a statute would be sufficient to tilt the scales in favor of constitutionality of the Six Hour Bill. I doubt that the presumption is sufficiently strong to overcome constitutional objections. One suggestion has been made that an attempt could be made to adopt the Six Hour Bill on the basis that it involves a civil proceeding rather than a criminal one. There may be a dispositive analogy in the Fifth Amendment language that no person shall be required to testify against himself "in any criminal case." The courts said at an early date that the pro- tection of the Amendment would be an empty gesture if it was literally applied. For this reason, courts long ago concluded that it must be given a comprehensive application, and thus must prevent compulsory incrimination in any proceeding. This is a broad construction of the constitutional language but perhaps it is required for accomplishment of the basic objective of that language. The Wong Sun case, su~ra, is also pertinent to any consid- eration of the Six Hour Bill. PAGENO="0201" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 195 B. The Right to Counsel The Six Hour Bill says nothing about the right to counsel. In line with Rule 5 (b), I think the respondent should, be ad- vised of his right to retain counsel. Perhaps he should also be advised of his right to request the assignment of counsel, as recently recommended by an Advisory Committee on Crimi- nal Rules. See Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, page 2, December 1962. In my opinion, this is a fatal omission in the Six Hour Bill. We cannot ignore the inexorable trend of all of our local courts-and the Supreme Court-expanding the right to counsel. One key case may be In re Groban, 352 U.S. 330 (1957), where four of nine justices dissented (Warren, Black, Brennan and Douglas) and said there is a right to counsel even when a fire marshal's questioning is involved in an administrative proceeding. Justices Frankfurter and Harlan concurred with the majority only because a fire marshal was involved. Now Mr. Justice Goldberg has succeeded Mr. Justice Frankfurter, which probably tilts the scales the other way. A fortiori, when a policeman is involved, the Supreme Court will find a right to counsel. At the very least, the respondent needs an attorney for contempt questions. In addition, how does an untrained man know he is validly invoking the Fifth Amendment? Discussions of an accused's constitutional right to the assist- ance of counsel may be found in the annotations in 84 Law. Ed. 383 and 1 Law Ed. 2d 1865 (in administrative proceed- ings). Another fundamental question is whether any bar associa- tion should recommend legislation which weakens the right to counsel. C. The Contempt Problem The contempt proviso seems to create as many problems as it solves. As I read the cases, an open trial would be required PAGENO="0202" 196 AMENDMENTS TO CRIMINAL STATUTES OF D.C. on any contempt charge. See In re Oliver5 333 U.S. 257 (1948), where a Michigan statute authorized judges to sit as one-man grand juries, with the usual grand jury powers, including the power to commit a witness for contempt if his testimony seemed false or evasive, subject to review only on such portion of the record as the committing judge may select. Under this statute a witness was summarily committed for contempt by a judge-grand jury because of the apparent inconsistency of his testimony with that of another witness. On habeas corpus the court considered only the testimony alleged to be false and evasive, not the whole record. The entire proceeding before the judge-grand jury, including the commitment as well as the investigation itself, was held in secret, and there was no spe- cial or separate hearing on the contempt charge. The Court, in an opinion by. Mr. Justice Black, held that such summary commitment constituted a denial of due process in violation of the Fourteenth Amendment on the grounds of (1) the secrecy of the proceedings and (2) the lack of reason- able opportunity to be heard on the contempt charge. III. MATERIAL WITNESS BILL The third bill provides for the detention of material and necessary witnesses to crimes if there is "reasonable proba- bility" that such witnesses will not be available at the trial. It expands considerably a provision found in Section 4-144 of the D.C. Code. I have yet to hear of any valid reason for this proposed legislation. I do not deny that a reason exists; I simply state that I have not heard of a reason. It seems to me that this problem can be solved without additional legislation. Surely if there is some doubt that a wit- ness will appear, he may be placed under subpoena by the court. If he does not appear at the trial the case may be continued and the matter cleared up at a later date. A uniform law already exists whereby the United States Attorney may bring a witness here from some other jurisdic- tion. I refer specifically to Section 23-803 of the D.C. Code, which provides in essence that if any person in any state is PAGENO="0203" AMENDMENTS TO CRIMINAL STATUTES OF D.C 197 a material witness in a prosecution pending in the District of Columbia, or in a grand jury investigation, that witness may be taken into immediate custody to assure his attendance in the District of Columbia. My superficial examination convinces me that Section 2 3-803 is effective. If it does not work, I would like to hear the United States Attorney explain why it does not work. CONCLUSION There is no doubt that the District of Columbia has a prob- lem of adequate law enforcement, but I do not find the answer in the Committee's proposals. It has been suggested that the police need some definite guidelines as to what they can and cannot do regarding deten- tions and arrest. I think the guidelines already exist. For many years our United States Court of Appeals has been telling* the police when and how they may make arrests. There is no reason to conclude that the judges will terminate this process of judicial evolution, regardless of any statute which may be enacted. Perhaps everyone-even the police-will profit by following the inevitable process of judicial evolution. Respectfully submitted, JAMES J. BIERBOWER PAGENO="0204" 198 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Letter to Senator Bible March 14, 1963 Honorable Alan Bible Committee on the District of Columbia United States Senate Washington 25, D. C. DEAR SENATOR BIBLE: Some months ago the decision of the United States Court of Appeals for the District of Columbia Circuit in the case of Killough V. United States intensified public attention to what has become known as the Mallory Rule, an interpretation of Rule 5 (a) of the Federal Rules of Criminal Procedure. Believing that the legal profession owes to the public the duty of giving to this matter-and to the related problem of "arrests for investigation"-its best and most mature atten- tion, the Board of Directors of this Association authorized me to appoint a special committee of outstanding lawyers charged with the duty of considering whether the rule in Killough's case required legislative modification; and, if so, the nature of such legislative action as they deemed to be required. The committee was established, not for research, but rather for deliberation and conclusion as to an effective statutory rule within constitutional limits relating to arrests, interrogation and confessions. The committee has reported; and I enclose copies of its report, a brief statement prepared by its Chairman and of the three Bills drafted and recommended by the majority of the committee. I also enclose a copy of the single dissent. The Board of Directors of this Association has considered the report and has unanimously recommended to the Associa- tion that the majority report be approved in principle. Until the Association acts, after publication to its members, at a meeting of the membership, neither the report of the committee nor the dissent is the recommendation of the Bar Association of the District of Columbia. However, the Board has authorized me to transmit the enclosures to you now because the subject PAGENO="0205" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 199 matter of the report is presently under active study by the Con- gress and the Commissioners and because the Board considered that the ideas embodied in both the majority and minority reports should be available to Congress without delay. Most respectfully yours, THOMAS S. JACKSON President TSJ : ap end. Identical letters were sent to the House Representative McMillan, Chairman, United States District Committee; Walter N. Tobriner, President, D. C. Board of Commissioners; the Attorney General of the United States; and David C. Acheson, Uoited States Attorney. Action of Board The Board of Directors at a special meeting held Wednes- day, March 13, 1963, considered at length the report of the Special Committee on the Rule in Killough's case, and the dissent thereto. The Board, with one negative vote, approved a motion that the President be authorized to release the report of the com- mittee, together with the minority report, to the press and transmit copies to the appropriate committees of the Congress, the Commissioners, the Department of Justice and the United States Attorney, clearly stating that the report would not be an action of the Association until it had been submitted to and approved by the Association at a meeting of the membership. The Board also adopted a motion, with one member abstaining, that the report of the majority of the committee be approved in principle and recommended that the Association approve the enactment of the three bills favorably recommended by the majority of the committee substantially in the form as proposed. PAGENO="0206" 200 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Letter from Senator Bible UNITED STATES SENATE COMMITTEE ON THE Dis'riucr OF COLUMBIA March 20, 1963 Mr. Thomas S. Jackson, President The Bar Association of the District of Columbia 1044 Washington Building Washington 5, D. C. DEAR MR. JACKSON: Please let me acknowledge and thank you for your letter of March 14, 1963, with enclosures, and I certainly appreciate your making available to the Committee, the special comnilt- tee's report and recommended proposed legislation in connec- tion with the Mallory Rule and Procedures for limited police interrogation. I am well aware that legislation in this area of the criminal law is most difficult for the reason that the protection of the individual's rights must be balanced with the public interest in maintaining adequate law enforcement. However, I am sure that the task of the Committee will be lessened considerably by having the views and recommendations of the special com- mittee of the Bar Association in this matter. Since you have advised me that the members of the Bar Association have not had an opportunity to consider the report, I have instructed the Committee staff to treat the report as an interim and unofficial document until it is formally adopted by the Association and the Committee is so notified. Cordially, ALAN BIBLE PAGENO="0207" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 201 ATTACHMENT 2 REPORT OF THE COMMITTEE ON CRIMINAL LAW AND PROCEDURE The committee on criminal law and procedure was called to order in the board room of the National Savings & Trust Co., at 4 p.m., on Monday, March 18, 1963. In attendance were Messers. H. Clifford Alider, Richard L. Braun, Edmond P. Daly, Frederick H. Evans, William E. Foley, DeLong Harris, Karl M. Kunz, Hugh J. McGee, Gerald S. Ostrowski, A. Kenneth Pye, Sylvan Schwartz, Rich- ard J. Scupi, Joseph Sitnick, Robert L. Weinberg, Hal Witt, and Donald E. van Koughnet. Mr. Sitnick, vice chairman of the committee, presided in the absence of the chairman who was ill. The committee proceeded to the consideration of several bills directed to the committee by Mr. Pratt, vice president of the association. I. HR. 1029 This bill contains two parts. The first section is based upon the provisions of the Uniform Arrest Act and permits a police officer to detain any person abroad whom `he has reasonable ground to suspect is committing, has committed, or is about to commit a crime. The police officer may demand that he identify himself and explain where he is going. If he fails to identify himself or explain his ac- tion to the satisfaction of the office, he may be detained for a period not exceed- ing 6 hours. The bill further provides that this "detention" is not considered an arrest. It was pointed out that members of the committee have for the last few years discussed and studied the problems of arrests for investigation, illegal arrests, the McNabb-Mailory rule, the Killouglv decision, the Uniform Arrest Act, and related matters. Mr. Pye moved that the committee recommend that the association oppose sec- tion 1 Of H.R. 1929. Fourteen members voted in favor of the motion; Mr. Daly and Mr. Braun abstained. No member of the committee voted in favor of the section. Section 2 of the bill seeks to amend section 4-444 of the District of Columbia Code relating to the detentiOn of material witnesses. The bill provides that whenever there is a reasonable ground to believe that any person may be a material witness to the commission of any felony, or attempt to commit a felony, and there is a reasonable probability that such person will `not be available as a witness during the investigation or trial, the police may take the witness into custody and detain the suspected witness for not more than 6 hours. At that time the suspected witness must be brought before a judge or Commissioner who may require him to post bond or collateral to secure his appearance at the inves- tigation or trial, or discharge him. Provision is made that the "detention" shall not constitute an "arrest." It is provided that the detention or confine- ment of the witness shall be in quarters other than those used for persons charged with crimes. During the discussion several matters were pointed out. (1) There has been no showing that legislation of this type is needed; (2) an out-of-town witness might find himself in a situation where no local bondsman would post bond for him; (3) the provision in the original draft released by the Commissioners of the District of Columbia provided that nothing said by the witness during his detention could be used against him in a subsequent criminal proceeding. This provision has been removed from the bill under consideration. Mr. Ailder moved that the committee recommend that the association oppose section 2 of H.R. 1929. Fourteen members voted in favor of the motion; Mr. 1)aly and Mr. Braun abstained. No member voted in favor of the section. II. H.R. 1930 HR. 1930 is another form of the Willis-Keating bill which has been regularly intro'Iuced in the Congress since 1957. In pertinent part it provides: "That in the courts of the District of Columbia, evidence, including, but not limited to, statements and confessions, otherwise admissible, shall not be inadmis- sible solely because of delay in taking an arrested person before a Commissioner or other officer emnowered to commit persons charged with offenses against the laws of the United States." The bill also provides that no statement made by a person during interrogation "while such person is under arrest" shall be admissible `unless the arrested PAGENO="0208" 202 AMENDMENTS TO CRIMINAL STATUTES OF D.C. person shall have been previously advised of his right to remain silent and that any statement made by him may be used against him. It was pointed out that the implications of the Mc2~,Ta,lYb.Maiiory rule have been discussed in the committee, within subcommittees, and informally during the last few years. No member of the committee was aware of any new develop- ment which he deemed sufficiently significant to merit renewed discussion. Mr. Evans moved that the committee recommend that H.R. 1930 be opposed. Fourteen members voted in favor of the motion, Mr. Daly dissented; Mr. Braun abstained. III. TEE 6-EOUE BILL M:r. Pye invited the committee's attention to the so-called 6-hour bill, which apparently had been referred to the special committee appointed to consider the Killough decision, but had not been referred to this committee. This bill, in substance, provides that when a police officer has "good cause" to believe that someone may have information concerning a crime, the prosecut- ing attorney may ask a judge to issue a subpena directing the respondent to appear forthwith. At that time the court has the obligation to inform the re- spondent that he is not required to incriminate himself. Respondent then may be committed to the custody of the police and may be held by the police at someplace other than the precinct for a period not to exceed 6 hours. During this period of time he is subject to interrogation. If he does not answer ques- tions and fails to rely on his privilege against self-incrimination, he may be held in contempt. A transcript of his interrogation is required. Several observations were made concerning the bill. (1) Evasion of the Mallory rule is made simple subpenaing the suspect instead of arresting him where there is probable cause; (2) there is strong reason to think that it is unconstitutional to detain a suspect where there is no probable cause to believe that he has committed a crime; (3) there is strong reason to believe that it would be unconstitutional to hold a suspect in cont~mpt for failure to answer when he had been interrogated in secret without the aid of counsel to inform him whether the fifth amendment may be properly asserted; (4) it is undesir- able to permit such a drastic change in the structure of American law as would occur through judicial intervention for the purpose of permitting secret interro- gation of citizens without counsel under pain of contempt. Mr. Pye moved that the committee recommend that the association oppose the bill. Fifteen members voted in favor of the motion; Mr. Daly dissented. The committee considered several other bills submitted to it for consideration. A report in these matters will~,be submitted in the near future. Mr. Evans moved as follows: The vice chairman is directed to transmit the report of the committee with reference to H.R. 1929, H.R. 1930, and the 6-hour bill to the president and the board of directors. The vice chairman is directed to request that the president refer the report to such persons as he directed the report of the special committee and in the same manner as he directed that report in order to dispell the apparent impression that there is almost complete unanimity within the association with reference to these matters. The vice chairman is further directed to request the president to bring the disagreement between the special committee appointed by him and this standing committee of the association to the attention of the association at the earliest possible time in order that these matters may be considered by the full association. The motion passed unanimously. The committee was adjourned at 5:30 p.m. Respectfully submitted -: A. KENNETH PYE, secretary. PAGENO="0209" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 203 ATTACHMENT 3 Bar Association of the District of Columbia Committee on Criminal Responsibility To the President and Directors of the Bar Association of the District of Columbia. Your Committee on Criminal Responsibility respectfully recommends that the Bar Association adopt the attached Reso- lution to the effect that the Congress be requested to enact legislation defining criminal insanity and providing procedure for its application to trials in the District of Columbia. Your Committee respectfully submits its report in support of said resolution. (En. NOTE: Debate is scheduled at the September 15 meeting.) RESOLUTION The Bar Association of the District of Columbia recommends that Congress enact the following legislation: In all trials for criminal offenses in the courts of the District of Columbia in which the defense of insanity is in issue, the jury shall be instructed to return a verdict of not guilty on the ground of insanity unless they believe beyond a reasonable doubt that the defendant is mentally responsible for such alleged offense. The jury shall be further instructed that the defendant is not mentally responsible if at the time of the alleged offense the defendant, because of an impaired or defective mental cond- tion, was substantially lacking either in his capacity to apprec~- ate that his conduct was wrong or in violation of law, or ~n fli~ capacity to conform his conduct to the right or to the require- ments of law. An instruction in substantially these terms shall be sufficient in all cases. Lay testimony and expert testimony as to the existence and nature of an impaired or defective mental condition and as to its incapacitating effect shall be freely received, but the jury shall be instructed that such testimony is not binding on the jury. If sufficient evidence is received as to the existence and nature of an impaired or defective mental condition for con- 25-260 O-64----~pt. l-14 PAGENO="0210" 204 AMENDMENTS TO CRIMINAL STATUTES OF D.C. sideration of. the jury, the court shall leave to the sole deter- mination of the jury the question as to the incapacitating effect if any of such mental condition, whether there has been opinion testimony regarding its incapacitating effect or not. COMMITTEE ON CRIMINAL REsPoNsIBILITY SUMMARY OF REPORT The test of criminal responsibility known as the Durham rule is not satisfactory and should be changed by statute. Legisla- tion to effectuate the new test is also needed. The Durham rule provides that a person is not responsible for a criminal act if the act was the product of a mental disease or mental defect. There is no clear definition of mental disease or mental defect. Hence its meaning depends on psychiatric opinion. Psychiatrists do not agree on what the term means nor on its application in particular cases, and their opinion is subject to change overnight, as has actually occurred. The causality or "product" part of the rule is also confusing. Although the Court of Appeals has reversed convictions be- cause the instructions of the trial judges on causality were in- accurate or inadequate, it has not suggested an instruction as a guide for future cases, and the trial judges are left without a guide even on re-trials of the reversed cases. An accused person may raise the issue~ of insanity by pro- ducing a minimal showing of mental disease without evidence as to whether the act was the product thereof. The government must then prove sanity beyond a reasonable doubt, or prove that the act was not the product of the disease. Psychiatrists are unwilling to give an opinion on this latter point, and the United States Attorney has lost prosecutions and abandoned prosecu- tions on that account. The basic difficulty in the Durham rule is that it attempts to make. the legal test of criminal insanity the same as the medical test of mental disease. The requirement of a fixed standard for a legal test, and the inevitable changes in psychiatric dis- covery and concepts, make any such attempt futile. PAGENO="0211" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 205 Furthermore, under both the pre-Durham rule and the Dur.. ham rule psychiatrists are required to answer questions in the very words of the applicable test; such as whether in their opinion the accused could distinguish between right and wrong, and whether the criminal act was the product of the mental disease. We believe that practice should** be discontinueth There is no reason why in cases involving the insanity defense the expert witness should be required to give answers in the. words of the legal test of responsibility, whose application is ultimately for the jury. There is no such requirement in other criminal cases, many of which also require the jury to pass on specific states of mind, such as intent to defraud. The legisla- tion which we recommend is intended to provide a fixed test understandable to a jury and applicable to and sufficient for all cases, to give the expert witness freedom to testify as to the mental condition of the accused without being compelled to equate his opinion with the legal test; and to repose in the jury the ultimate function of applying the test. COMMIrrEE ON CRIMINAL RESPONSIBILITY REPORT The Committee on Criminal Responsibility of the Bar Asso- ciation of the District of Columbia was created in June 1958 and charged by the Board of Directors with the duty of study~ ing "insanity as a defense to criminal proceedings with the view toward recommending legislation which would define the words "criminal insanity." The Journal of the Bar Association of the District of Columbia, September 1958, Vol. XXV, No. 9, p. 474. The Committee has conceived its function to be to consider the definition of insanity existing at this time in criminal pro- ceedings in the District of Columbia in comparison with the definition which it replaced and with other existing and other possible definitions, and to recommend a change if and only if the present definition is not satisfactory and a more satisfactory one can be found. PAGENO="0212" 206 AMENDMENTS TO CRIMINAL STATtJTES OF D.C. The Durham Rule The existing definition will be referred to in this report as the Durham rule. It means the definition of insanity which the United States court of Appeals for the District of Columbia Circuit announced on July 1, 1954, in the case of Durham V. United States, 93 U.S. App. D.C. 228,214 F. 2d 862,45 A.L.R. 2d 1430, as that definition has been affected by subsequent de- cisions of the same Court. The Durham rule may be stated as follows: THE ACCUSED IS NOT RESPONSIBLE FOR A CRIMI- NAL ACT IF SUCH ACT WAS THE PRODUCT OF A MENTAL DISEASE OR MENTAL DEFECT. A MENTAL DISEASE IS A DISEASED MENTAL CONDITION WHICH MAY GET BE1TER OR GET WORSE; A MENTAL DE- FECT IS A DISEASED MENTAL CONDITION WHICH CANNOT GET BETTER AND CANNOT GET WORSE. THE CRIMINAL ACT WAS THE PRODUCT OF THE MENTAL DISEASE OR MENTAL DEFECT IF THE ACT WOULD NOT HAVE OCCURRED EXCEPT FOR THE DISEASE OR DEFECT; AND THAT IS SO WHETHER THE DISEASE OR DEFECT WAS THE ONLY CAUSE OF THE ACT, OR THE PRINCIPAL ONE OF SEVERAL CAUSES, OR ONE OF SEVERAL CAUSES. The Pre-Durham Rule The rule which the Durham decision replaced will be called in this report the pre-Durham rule. It is the irresistible im- pulse test superimposed on the right-and-wrong test of the M'Naghten case. The rule is stated in Smith V. United States, 59 U.S. App. D.C. 144, 36 F. 2d 548, 72 A.L.R. 654 (1929), which reversed a conviction of murder in the first degree for failure of the trial court to give a requested instruction in the terms approved by the Supreme Court in the case of Davis v. United States, 165 U.S. 375, 17 S. Ct. 360, 41 L. Ed. 750. The pre-Durham rule may be stated as follows: THE ACCUSED IS NOT RESPONSIBLE FOR HIS CRIMI- NAL ACT IF AT THE TIME OF THE ACT HE WAS PAGENO="0213" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 207 SUFFERING FROM A PERVERTED AND DERANGED CONDITION OF HIS MENTAL FACULTIES WHICH RENDERED HIM UNCONSCIOUS OF THE NATURE OF HIS ACT OR INCAPABLE OF DISTINGUISHING BE- TWEEN RIGHT AND WRONG AND OF KNOWING THAT HIS ACT WAS WRONG; AND EVEN THOUGH HE WAS CONSCIOUS OF THE NATURE OF THE A~T AND WAS CAPABLE OF DISTINGUISHING BETWEEN RIGHT AND WRONG AND OF KNOWING THAT HIS ACT WAS WRONG, HE IS STILL NOT RESPONSIBLE IF HIS WILL, THE GOVERNING POWER OF HIS MIND, HAD BEEN, OTHERWISE THAN VOLUNTARILY, SO COMPLETELY DESTROYED THAT HIS ACTIONS WERE NOT SUBJECT TO HIS WILL BUT WERE BEYOND HIS CONTROL. The Nature of the Commitee's Study The Committee studied some of the voluminous material on the subject; interviewed and met with outstanding psychiatrists; and availed itself of the combined experience of its member- ship, which included personal experience as counsel, observa- tion of trial and hearings, and current word-of-mouth infor- mation from participating counsel in practically every District Court and Court of Appeals proceeding which has dealt with the Durham rule since it was announced in 1954. There was a sharp difference of view among the psychiatri~ts with which the Committee met. One group was practically unanimous in the view that the Durham rule is not satisfactory. It was stated that ninety per cent of all persons who commit criminal acts are suffering from a mental disease of a greater or less degree which necessarily contributes in some way to the criminal act, and if the Durham rule were literally applied it would excuse nearly every one charged. Another group of equally distinguished experts was practically unanimous in the view that the Durham rule is working satisfactorily, pointing out that it conforms more closely to the realities* of modern psychiatric discoveries and has at last permitted psychiatrists to PAGENO="0214" 208 AMENDMENTS TO CRIMINAL STATUTES OF D.C. testify freely and fully instead of being restricted by criteria having no relation to their science. In resolving these divergent views, we have felt secure in relying on the practical observations and experience of our membership to select the expert view that conforms to our lay knowledge and experience. We believe that the Durham rule should be changed and replaced by a statutory definition of insanity. We believe that the test should be stated in fixed terms under- standable to a jury and applicable to all cases. Meaning of Mental Disease The Durham rule pitches excuse from criminal responsibility on the existence of a "mental disease" or a "mental defect" (plus causality, which will be discussed hereafter). "Mental disease" is not defined except to the extent of being differentiated from "mental defect." Hence its meaning is left to the opinions of the particular psychiatrists who give testi- mony in a given case. Psychiatrists, do not agree as to its mean- ing among themselves, and those who have opinions may change them overnight. The term is borrowed from physical medicine and is not acceptable to all psychiatrists. "I will say there is neither such a thing as `insanity' nor such a thing as a `mental disease.'" (Dr. Roche, Tennessee Law Review, Vol. 26, No. 2, Winter 1959, p. 240.) "Psychosis" is accepted as a synonym for mental disease, although it may not comprehend all mental diseases, But "psychosis" itself is not exact in meaning, since its definition involves extent and degree. In Psychiatric Dictionary it is de- fined as a mental disorder of a "severe" type. When does a mental disorder become a disease or psychosis? In one in- stance about to be mentioned, that change from disorder to disease, from sanity to insanity, took place in the middle of a criminal trial. Hence the term mental disease is not precise in its meaning to psychiatrists. In addition to its vagueness, the term is subject to change in PAGENO="0215" AMENDMENTS. TO CRIMINAL STATUTES OF D.C. 209 application. The same mental condition may be classified one day as not a disease and next day as a disease. For instance, psychiatrists recognize the term "sociopathy" to mean a mental disorder. Is this disorder also a mental disease? In a criminal trial in the District of Columbia under the . Durham rule in which the psychiatrists described the defendant as a "sociopath," two psychiatrists from a government mental institution testified that "sociopathy" is not a mental disease and that the defendant was of sound mind; two days later a third witness from the same institution, a superior of the first two witnesses, testified that sociopathy is a mental disease. He testified that shortly before he came to court that day there had been a conference of offi- cials at the institution at which it had been decided to change the classification of sociopathy from a condition not a disease to a disease. The defendant was acquitted by reason of insanity. Thus by administrative fiat a mental disorder which was not a mental disease became a mental disease, and a person responsi- ble for his act became a person not responsible for his act. Under the pre-Durham rule and under the new rule which we recommend, before that defendant could be held not re- sponsible for his act it would be necessary for the jury to con- sider not only whether he had a disease, but whether that disease affected his ability to control his actions. It goes without saying that psychiatrists have the right and duty to differ among themselves and to change their views when intellectual honesty requires it. But the decision to. punish or hospitalize the perpetrator of a criminal act should not depend on so uncertain a science. The causality or Product Part of the Durham Rule Is Confusing The Durham rule is that the accused is not responsible for his criminal act if the act was the "product" of. a mental dis- east or mental defect. What does "product" mean? In the Durham opinion the Court of Appeals~ suggested a sample instruction for a jury on causality or "product." How- ever, when the trial judge gave that instruction to the jury in the case of Wright v. United States (1957) the conviction was PAGENO="0216" 210 AMENDMENTS TO CRIMINAL STATUTES OF D.C. reversed because the Court of Appeals said the sample instruc- tion did not deal adequately with the evidence in that par- ticular case. The Court did not suggest a sample instruction to be given on re-trial of the case should the evidence be sub- ~tantially th~ same as `in tb~ first trial, The Coi~rt did repe~i~ and quote its explanation of the ~`product" requirement given in the earlier case of Carter V. United States and struck down the trial judge's instruction because it might have caused the jury to believe that Wright would not be excused from responsi- bility for his act unless his mental disease was the principal reason why he committed the act, which is not the law. "With-* out an explanation of `causual connection,' the jury may have erroneously concluded that, though the shooting would not have occurred but for Wright's illness, the principal cause of the shooting was the rational one, i.e., his ill-feeling against his wife, and that, therefore, he ought to be held accountable for his act. * * *" Wright, 102 U.s. App. D.C. at 45. The meaning of the "product" part of the Durham rule as explained in the Carter case and as repeated and quoted in the Wright case is as fcllows: "When we say the defense of insanity requires that the act be a `product of' a disease, we do not mean that it must be a direct emission, or a proximate creation, or an immediate issue of the disease in the sense for example, of Hadfield's delusion that the Almighty had directed him to shoot George HI. * * * "~ * * There must be a relationship between the disease and the act, and that relationship, whatever it may be in degree, must be, as we have already said, critical in its effect in respect to the act. By `critical' we mean decisive, determinative, causal; we mean to convey the idea inherent in the phrases `because of,' `except for,' `without which,' `but for,' `effect of,' `result of,' `causative factor'; the disease made the effective or decisive difference between doing and not doing the act. The short phrases `product of' and `causal connection' are not intended to be precise, as though they were chemical formulae. They mean that the facts concerning the disease and the facts concerning the act are such as to justify reasonably the conclusion that `But for this disease the act would not have been committed." This definition contains parts which might reduce the test to one of mere necessary co-incidence. Take for example the case of a person charged with assault with a dangerous weapon. PAGENO="0217" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 211 The defendant would have to have possession of a dangerous weapon. in order to commit the act charged. "Except for" having possession of the dangerous weapon he could not com- mit the act; possession of a dangerous weapon was a condition "without which" he could not commit the act; "but for" posses- sion of a dangerous weapon he could not commit the act; the possession of a dangerous weapon would have made the "de- cisive difference between doing and not doing the act." Yet obviously possession of a dangerous weapon was not an efficient cause of the act. If the defense was self-defense, the jury would be instructed that they should draw no unfavorable inference from the fact that the defendant had possession of a dangerous weapon (a distinct offense). Other parts of the. definition would seem to exclude posses- sion of a dangerous weapon as a cause, or the assault as the "product."* The possession of the dangerous weapon would not be critical in its effect, or causal in the usual sense, nor would the assault be the result of the possession of the weapon in the usual sense. Hence it appears that for the trial judge to give the multiform definition of causality in the Carter case could be confusing to a jury; and it goes without saying that a trial judge who should venture to paraphrase the definition or select portions of it to give and portions to leave out would be inviting reversal. Hence our trial judges are left without a guide for future cases, including re-trials of the reversed cases. The lack of a legal definition of mental disease and its re- liance on medical science to define and apply the term, and the confusing causality requirement and its uncertainty in applica- tion to various cases, make a change in the Durham rule de- sirable if one can be found. Difficulties of the Prosecution The Durham rule in application has caused the United. States Attorney to lose and abandon prosecutions because psychiatrists would not give opinions on the "product" requirement of the rule. The law presumes sanity. Hence the government in a crimi- PAGENO="0218" 212 AMENDMENTS TO CRIMINAL STATUTES OF D.C. nal trial does not have to prove as part of its case in chief that the defendant at the time of the offense was sane. But once the issue of insanity is raised by the defendant the Government must prove sanity beyond a reasonable doubt. How much defense evidence is needed to raise the issue? It has been described as "some," and the decisions of our courts have interpreted this to mean very little. in the case of Clark V. United States no men- tion was made of the mental condition of the defendant until the defendant himself in the course of his testimony said he must have been "insane" when he shot the deceased. This evi- dence was held sufficient to raise the issue of insanity, and the failure of the defendant's attorney to pursue that defense caused a reversal of the conviction-presumably because the accused was thereby deprived of adequate representation. The evidence which the defendant must produce to raise the issue of insanity does not have to include proof of causality but only proof of the mental disease. The government then must prove either that the accused did not have a mental disease or defect or that the act was not the product thereof. The United States Attorney has lost prosecutions and abandoned prosecu- tions because he has not been able to get testimony on this latter point, and he reports that most psychiarists are relucant to express an opinion. Durham and Pre-Durham Compared Putting aside the validity of the concepts of the Durham rule and the pre-Durham rule, it is a valid theoretical criticism of the Durham rule that it excuses the accused from responsibility for a criminal act which he knew to be wrong when he com- mitted it and which he could have refrained from committing in spite of his mental disease. The pre-Durham test required a disease and disability by reason thereof from knowing that the act was wrong and from being able to refrain from committing the act. Durham requires a disease only and without reference to its great or trivial disabling effect, so long as the act would not have occurred without it. Durham's Effect in Other Jurisdictions While the decisions of other federal courts and of state PAGENO="0219" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 213 courts should not in themselves be determinative, it is perinent to observe the reception which the Durham decision has been accorded in other jurisdictions because (a) it is based on the decision of the New Hampshire Court in the Pike case in 1869, which was offered as a recognition by a court of the modern advances in psychiatry and (b) because the Durham decision has provoked wide-spread interest and enjoyed careful consid- eration and scrutiny. So far as known, it has not been accepted anywhere; and it has been rejected by the Circuit Courts for the Fifth and Ninth Circuits and by Indiana, Maryland, Massa- chusetts, Nevada and Washington. Arguments for Durham Some of the reasons for retaining the Durham rule which the Committee has considered will be mentioned and com- mented upon. 1. The Durham rule may not be perfect, but it is much better than the pre-Durham rule, and should be given a further try. Comment: If the present imperfect rule can be changed to a better imperfect rule, that of course should be done. The Committee will not in this report compare the two rules, since we do not recommend a return to the pre-Durham rule. 2. In no event should a change be made by way of a statu- tory enactment. The adjustments necessary in the dynamic evolution of the test of insanity require the flexibility of trial court and review court procedures, and are impossible in a fixed statutory provision. Comment: Order and equality in the law make a fixed stand- ard desirable. A fixed standard is possible if it be fitted to the norm of social responsibility instead of the vagaries of a de- veloping science. The degree of impairment and incapacity of a particular individual as related to the duty of all individuals to conform to the requirement of restraint for the common good is not so much a psychiatric question as it is a legal, moral, ethical, sociological question. It is .not unlike the question of the extent to which a condition of intoxication should excuse one for a criminal act. The studies being made now in various other jurisdictions are directed toward legislative enactments. PAGENO="0220" 214 AMENDMENTS TO CRIMINAL STATUTES OF D.C. 3. The Durham rule conforms more faithfully to modern psychiatric knowledge than does the pre-Durham rule. Comment: The same virtue was claimed for the Pike deci- sion in New Hampshire in 1869, which recognized the ad- vances in modern psychiatry since M'Naghten in 1843. Obvi- ously the Pike test will keep abreast of advances in psychiatry, since it surrenders the legal test to psychiatry. But the courts have the duty to protect society as well as the duty to respect advances in science. Both these objectives can be accomplished if the test is in terms which do not undertake to reflect psy- chiatric knowledge ancient or modern; if the psychiatrist is per- mitted to testify freely in regard to his medical examinations and findings and opinion but is not required to give conclusions, especially conclusions in the words of the test; and if the jury is free on the basis of all the evidence to apply the test whether the psychiatric witnesses give conclusions in terms of the test or not. 4. The Durham rule has at last freed the psychiatric witness to give his honest and unhampered views which the pre- Durham rule restricted. Comment: It must be conceded that psychiatrists are gen- erally agreed on this. Without pausing to question the validity of the observation, it can be said that the degree of freedom allowed psychiatric, witnesses has been largely a matter for the discretion of the trial judge, and judges differ in their views on what freedom should be permitted. The pre-Durham rule dealt with diagnosis of a mental condition as does the Durham rule. The "product" part of the Durham test is not a point on which psychiatrists are eager to give an opinion. Regardless of what the test is, the psychiatrist would have freedom in his testimony if he were relieved from the necessity of adapting his views to the terms of the test. This is desirable. The psychiatrist should not impose his medical test on the courts, and the courts should not impose their legal test on the psychiatrist. PAGENO="0221" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 215 The Basic Difficulty The basic difficulty in the Durham rule is that it makes the legal test of criminal insanity the same as the medical test of mental disease. These are constitutionally incompatible. The orderly and equal treatment of accused persons requires that they be subject to a fixed standard applicable to all cases. On the other hand, psychiatry must advance from case to case and by experimentation and adaptation, and change is of the very essence of its progress. Furthermore, the legal test which divides accused persons into those who are to be punished for their acts and those who are to be treated for their illness in- volves considerations beyond the competence of psychiatry. A secondary difficulty, but one close to the interests of psy- chiatrists who have given actual testimony, has been the pro- cedure in eliciting expert testimony. Psychiatrists have been required to answer questions as to whether the accused was capable of distinguishing between right and wrong; as to whether his will had been destroyed by his mental disease so that he could not control his actions; and as to whether the criminal act was the product of his mental disease. These have been objected to as calling for answers which psychiatry can- not supply. The requiring of such answers in cases involving the insanity defense has historical sanction; but there is nothing in the experience or, information of our Committee which com- pels the practice, which is not followed in other criminal trials involving mental and personality questions. The legal issue whether an accused person is guilty or not guilty of a criminal offense must always be determined on two questions: (1) whether he committed the act (or omitted the required act); and (2) whether at that time he had the re- quisite criminal intent. In criminal charges involving the so- called specific intent or knowledge, the jury must determine whether the accused formed an intent to kill, or an intent to commit a felony, or an intent to defraud; whether he had an evil purpose and motive; whether he "knew" that property which he received was stolen property; whether he intended to evade and defeat his legal obligations. In this connection the PAGENO="0222" 216 AMENDMENTS TO CRIMINAL STATUTES OF D.C. jury must consider in certain cases whether the ability of the accused to have the requisite knowledge or intent was so af- fecred by intoxication that he wa~ not capable of performing these cognitive and volitional functions. For centuries juries have confined or released their fellow- men by their answers to these questions. In some cases expert testimony was received. In many cases it was not. The verdict was for the sole. determination of the jury, with or without expert testimony, and where it was given the verdict was in conformity with it or contrary to it, as the jury decided. Why should a different rule be applied to cases where the defense of insanity is raised? The Rule We Recommend The legislation which we propose is intended to put back into the test of insanity a legal standard of responsibility; to state that standard in terms understandable to a jury; to make that test applicable to all cases and sufficient for all cases; to permit expert witnesses to testify freely as to their examina- tions and findings regarding the mental condition of the accused, and their opinion as to its disabling effect if any, but not to require such witness to give his conclusions; and to leave to the jury the ultimate question of criminal responsibility whether experts have given conclusions or not. Reference Is Now Made to the Resolution The government's burden of proving sanity beyon4 a rea- sonable doubt is retained and re-stated. "Impaired or defective" mental condition avoids the use of the medical term disease and covers any unsound mental con- dition of whatever origin and duration and whatever its psy- chiatric classification. It is later limited by its disabling effect. "Substantially lacking" meets the criticism that the old rule of irresistible impulse required total incapacity, which psychia- trists say rarely exists in persons suffering~ from frank, seriously disabling mental disease. "Appreciate" ~covers functions of the personality broader than cognition, to which"know" may be limited. It is said that very few insane persons do not "know" the nature of their conduct; PAGENO="0223" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 217 what they lack is a full comprehension of its significancee-an "appreciation." "That his conduct was wrong or in violation of law." The word "wrong" has been criticized as involving a moral judg- ment which some persons do not indulge. It is a word thai has a meaning for most jurors; for thOse who find it inept the equivalent "or in violation of law," is provided. The remaining provisions, as the language shows, are in- tended to provide a fixed standard applicable to and so suffi- cient for all cases; to preserve the jury's right to accept or reject testimony, including that of experts; and to leave to the jury the ultimate decision as to the criminal responsibility of the accused without requiring expert testimony in the words of the standard or test. * Causality is not approached as a direct connection between condition and act, but as a connection between condition and disability in regard to the conduct of the accused and the time of the offense. Those few psychiatrists who have stated they might be able to express an opinion on causality have added the condition "if the examination of the subject could be made shortly after the crime." It is thus apparent that the conclusion is not a direct and "clinical" finding so much as an indirect conclusion from the concurrence in time of the disease and the act. The connection in our proposed test between the dis- * ease and the act in time, and the disabling effect of the condi- tion in relation to the same time, are believed to be a sufficient connection to satisfy the test and invite psychiatric opinion. also. But expert opinion as to such connection is not indis- pensable to put~ the issue of responsibility to the jury. Respectfully submitted, H. Clifford Allder James C. Toomey Milton D. Korman Cecil R. Heflin John L. * Laskey * Edward P. Troxell A. Kenneth Pye Hugh J. McGee, Secretary C. Frank Reifsnyder Richard W. Galiher, Vice-Chairman Charles B. Murray, Chairman PAGENO="0224" 218 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Memorandum of Dissent By ABE KRASH AND SELMA M. LEVINE We dissent from the report and recommendations of the majority of our colleagues on the Committee on Criminal Responsibility. The majority recommend that this Association should adopt a resolution urging Congress to abrogate the test of criminal responsibility promulgated by our Court of Appeals in 1954 in Durham V. United States, 214 F. 2d 862 (D.C.Cir. 1954). The Association is. urged to support enactment by Congress of a new "statutory definition of insanity" devised by the ma- jority. We do not agree that a case has been made out by the majority for abolishing the Durham rule. To the contrary, we submit that the Durham rule has worked remarkably well. Moreover, we do not believe that the novel and complex test proposed as a substitute by the majority would be more satisfactory. Many of the objections levelled by the majority against Durham would be equally applicable to the formula- tion proposed as a substitute. In addition, the majority's sug- gested rule would spawn a host of new and troublesome problems. In any event, we feel it would be unwise to freeze any rule in a statute at this time, during a period of transition and rapid developments in this field and before there has been a full opportunity to appraise the Durham rule. The Durham test has been widely praised. It has commanded the support of a majority of our Court of Appeals for five years. It has been approved by the present Chief Judge, E. Barrett Prettyman; 1 by the former Chief Judge, Henry Edger- ton; 2 by the Chief Judge of the Court of Appeals for the Third Circuit, John Biggs; ~ by the Chief Judge of the Court of Appeals for the Fourth Circuit, Simon Sobeloff; `~ and by Supreme Court Justice William 0. Douglas.5 It is approved by the overwhelming majority of psychiatrists,6 and is strongly ~ e.g. Carter V. United States, 252 F. 2d 608 (D.C. Cir. 1957). `Durham V. United States, 214 F. 2d 862 (D.C. Cir. 1954) (per Bazelon, Edgerton, and Washington). See Biggs, The Guilty Mind (1955). PAGENO="0225" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 219 endorsed by mental health specialists who have had the most intimate contact with the administration of criminal justice, including the country's two most eminent authorities, Dr. Win- fred Overholser, Superintendent of Saint Elizabeth's Hospital and Dr. Manfred Guttmacher, Chief Medical Officer of the Supreme Bench of Ba1t~more.7 The Durham rule is supported by a substantial number of practicing lawyers in the District. It should not be abandoned without clear and convincing evi- dence that it is not satisfactory, and without reasonable assur- ance of a more satisfactory test. The majority has failed to make a case on either of these grounds. We are in agreement with the majority in two significant respects. First, the majority affirmatively and explicity recom- mends against a "return" to the tests of responsibility which the Durham rule superseded (Report, p. 11). We regard the pre-existing tests (which we discuss below) as inadequate, obsolete, and unjust. Second, the majority recognizes the de- sirability of permitting psychiatric experts to testify freely as to their diagnosis and opinions (Report, p. 12). This was per- haps the chief objective of the Durham test, We do not claim that the Durham formula is perfect, or that it is immune from criticism. We differ from the majority, however, in their criti- que of Durham and in the merits .f their proposed statutory substitute. We think it incumbent upon us, in light of the basicS portañce of the question8 and the far reaching implications of the majority's report, to indicate the reasons which impel us to differ from our associates on the committee. Sobeloff, insanity and the Criminal Law: From McNaghten to Durham and Beyond, 41 A.B.A.J. 796 (1955). `Douglas, The Durham Rule: A Meeting Ground fo~ Lawyers and Psychiatrists, 41 Iowa L. Rev. 485 (1956). 6 See e.g. Roche, Criminality and Mental illness-Two Faces of the Same Coin, 22 Univ. of Chicago L. Rev. 320 (1955); Zilboorg, A Step Toward En- lightened Justice, Id. at p. 331. 7Guttmacher, The Psychiatrist as an Expert Witness, 22 Univ. of Chicago L. Rev. 325 (1955). 8 "[T]he question at bar, [i.e., the test for determining responsibility] far from being ordinary, is perhaps the most controversial problem existing in the criminal law today." Barnes, J., in Saner V. United States, 241 P. 2d 640, 644 (9th Cir. 1957). 25-260 0-64--pt. 1-15 PAGENO="0226" 220 AMENDMENTS TO CRIMINAL STATUTES OF D.C. I BACKGROUND DEVELOPMENTS A brief consideration of legal and scientific developments is helpful in appraising the committee's report and recommen- dations. 1. It has been recognized for centuries that individuals should not be held responsible for criminal acts committed while they were insane. Our ethical and legal traditions forbid punish- ment of the mentally ill. "Our collective conscience does not allow punishment where it cannot impose blame. Holloway V. United States, 148 F.2d 655, 666 (D.C.Cir. 1945). 2. The tests applied in determining whether an accused should be held accountable have varied. (At one time, for example, the test in England was whether the defendant could count to twenty, could tell who was his mother or father, or how old he was.) These varying tests have reflected develop- ments in man's understanding of mental abnormality. They reflect the progress toward more enlightened and humane treatment of the insane and the historic trend toward greater individualization in the disposition of persons accused of crime. 3. In 1843 the House of Lords in England promulgated the so-called "right and wrong" test. Daniel M'Naghten's Case, 10 Cl. & Fin. 200 (H.L. 1943). The test of insanity to be applied in criminal proceedings was whether the accused "was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing wrong." This test was accepted in many jurisdic- tions in this country. See Leland v. State of Oregon, 343 U.S. 790, 800 (1954). 4. The "right and wrong" test was adopted in the District of Columbia by judicial decision and was formally applied as early as 1882 at the trial of President Garfield's assassin. Guiteau's Case, 1 Mackey 498 (D.C. Sup.Ct. 1882). 5. In 1929, our Court of Appeals supplemented the "right and wrong" test with the "irresistible impulse" test. Smith v. PAGENO="0227" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 221 United States, 36 F. 2d 548 (D.C.Cir. 1928). The Court felt that a change in the standard of criminal responsibility was re-. quired in view of "the great advancement in medical science as an enlightening influence on this subject." It concluded that an individual should not be held criminally responsible if his "reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, through knowing it to be wrong" (36 F. 2d at 549). 6. The "right and wrong" and "irresistible impulse" tests have been forcefully criticized by judges, commentators, and medical authorities. In a landmark report, a Royal Commis- sion in England summed up the defects in these words: "[T)he M'Naghten test is based on an entirely obsolete and mislead- ing conception of the nature of insanity, since insanity does not only, or primarily, affect the cognitive or intellectual faculties, but affects the whole personality of the patient, including both the will and the emo- tions. An insane person may therefore often know the nature and quality of his act and that it is wrong and forbidden by law, and yet commit it as the result of the mental disease. * * * In our view the test of criminal responsibility contained in the M'Naghten rules cannot be defended in the light of modern medical knowledge and modern penal views. * * * The real objection to the term `irresistible impulse' is that it is too narrow and carries an unfortunate and mislea4ing impli- cation that, where a crime is committed as a result of emotional disorder due to insanity, it must have been suddenly and impulsively committed after a sharp internal conflict. In many cases, such as those of m~lan- cholia, this is not true at all." Report of the Royal Commission on Capital Punishment, Cmd. 8932, pp. 80, 103, 110 (1953). It is unnecessary for us to dwell upon the inadequacies of these tests, since the committee unanimously recommends against these tests (See Report, p 11). 7. In 1954, our Court of Appeals, recognizing that the ex- isting tests did not take sufficient account of "psychic realities and scientific knowledge", announced a new standard in Durham V. United States: "[A)n accused is not criminally re.~ sponsible if his unlawful act was the product of mental disease or mental defect." The Durham case reflected the fact that in the century since the M'Naghten rules were announced there PAGENO="0228" 222 AMENDMENTS TO CRIMINAL STATUTES OF D.C. have been immense strides in medical knowledge of insanity and mental abnormality. The almost universal recognition of the power of the UflCOflSCiOUS to determine and influence human behaviour has had a profound effect upon criminology and ac- cepted notions of punishment and blame. The Durham decision also reflected recognition that the incidence of mental disorder among persons charged with crime is high, and that existing procedures for dealing with such persons were not adequate. It is this test-the Durham rule-which the majority wishes to abandon. II THE DURHAM RULE HAS PROVED TO BE BENEFICIAL TN PRACTICE A. The insanity issue may become relevant at different stages of a criminal proceeding. The Defendant's sanity is pertinent to his competence to stand trial. it is germane to the question of the Defendant's responsibility as of the time of the offense, an issue presented at the trial itself. It is also relevant in determin- ing when a Defendant may be released from commitment after acquittal by r~on of msanTty~ In ~hoct, it is r~1eyg~t to p~vci~1, trial, and post-trial issues. See Lyles v. Unz~ted States, 254 F.2d 725, 729 (D.C. Cir. 1957) (per Prettyman and Burger). The tests are different in each situation.9 The Durham test is ap- plicable solely in determining the Defendant's responsibility as of the time of the alleged offense. The function of an insanity test for determining whether the accused was responsible at the time of the offense is to test applied in determining the fitness of the Defendant to stand trial is whether he is "unable to understand the proceedings against him or properly to assist in his own defense" (18 U.S.C. § 4244). In deciding whether a per. son shall be released from a mental institution to which he has been committed following a verdict of not guilty by reason of insanity, the test is whether, in the opinion of the Hospital Superintendent and the District Court, "such person has recovered his sanity and will not in the reasonable future be dangerous to him- self or others." D.C. Code § 24.301 (Supp. VI, 1958). In Overholser V. Leach, 257 F. 2d 667, 670 (D.C. Cir. 1958), the Court of Appeals construed the foregoing provision respecting release to require proof of "freedom from such abnormal condition as would make the individual dangerous to himself or the community in the reasonably foreseeable future." PAGENO="0229" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 223 facilitate classification of those who should be held responsible and subjected to punitive-corrective sanctions from those who should be held not ~esponsible and who should be hospitalized for medical treatment. The test must provide a workable stand- ard for regulating the admission of evidence at trial. It must also provide thebasis for instructions to the jury and for review of the jury verdict, when appropriate, by the trial judge and appellatee courts. W submit that the test should encourage the receipt of all relevant testimony relating to the Defendant's mental condition. It should be in harmony with scientific knowledge, and it should symbolize and implement the com- munity ideal that punishment is not inflicted upon those who should not be blamed. B. We submit that the Durham rule has been in accord with these objectives and that its net effect upon the administration of criminal justice in the District has been beneficial. Before the Durham rule was announced the insanity defense was neglected and largely ignored in this jurisdiction. Pleas of insanity tended to be treated casually and superficially. The facts relating to a Defendant's mental history frequently were not presented at the trial, or were presented in a fragmentary fashion. Psychiatrists were deterred from participating in the administration of criminal justice by archaic rules. The result was injustice to the Defendant and defective protection for the community. As a result of.the Durham opinion and subsequent decisions in this field by the Court of Appeals, there is today widespread awareness and sensitivity to the problems of mental illness in the District. An insanity plea is given careful, painstaking at- tention by the United States Attorney's Office, by defense counsel, and by the trial courts. There has been a striking change in the mode of trials when insanity pleas are invoked. The facts relating to the Defendant's mental condition are pre- sented at the trial in detail in many cases. The Durham rule broke downthe barriers to communications between mental health experts and the court. It permits physicians to testify freely and fully as to theft diagnosis of the PAGENO="0230" 224 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Defendant's mental condition. They are at liberty to articulate their findings and opinions without artificial, arbitrary testi- monial restrictions. The dire predictions by some at the time Durham was announced have been proven baseless. Although there has been an increase in the number of insanity pleas, the number of acquittals by reason of insanity is still relatively negligible. Ac- cording to statistics compiled by the Office of the United States Attorney, only 7 persons were found not guilty by reason of insanity in 1957, and in 1958 only seventeen.10 In other words, less than 3.3% of all the terminated criminal proceed- ings in the District Court in 1958 resulted in an acquittal on grounds of insanity. Moreover, each of these individuals has been committed to Saint Elizabeth's Hospital for treatment. The protection of the community has been guaranteed by the mandatory requirement incorporated in a statute (D.C. Code § 24-30 1, Supp. VI, 1958) that individuals found not guilty by reason of insanity must be committed to Saint Elizabeth's. Such persons cannot be released until the Hospital Superintend- ent has certified and the District Court has found that the De- 10 Fiscal Not Guilty Verdicts of Years Verdicts Verdicts & Not Guilty Ending of Judgments by Reason June30 Guilty of Acquittal of insanity 1951 382 197 0 1952 359 170 3 1953 462 180 3 1954 433 190 7 1955 357 87 10 1956 334 93 15 1957 362 103 19~8 328 121 17 Sounc~: OlIke of United States Attornei, as quoted in 58. Columbia L. Rev. 1253, 1266 (1958). Traffic Accident Analyst CLARENCE S. BRUCE Traffic accident analysis and reconstruction-Consultation-Expert testi- mony. Automotive Engineer formerly with National Bureau of Standards Tel. U. 4-7752, BA. 6-0048 Home Office-P.O..Box 1909 Washington, D. C. Ft. Myers, Florida PAGENO="0231" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 225 fendant has recovered his sanity and "will not in the reason- able future be dangerous to himself or to others." We have set out in the margin a table which demonstrates that the Hospital authorities are slow to release such individuals, and that rela- tively few of the persons who are treated and released have subsequently become enmeshed with the law." III THE MAJORITY'S CRITICISM OF DURHAM The majority report attacks the Durham rule principally on three grounds: (i) The majority maintains that "the basic difficulty in the Durham rule is that it makes the legal test of criminal insanity the same as the medical test of mental disease" (Report, p. 13). The majority insists that "there is no clear definition of mental disease or mental defect" and that since psychiatrists differ among themselves there is uncertainty and inequality in the administration of the criminal law. (ii) The majority claims that the "causality or `product' part of the rule is ~ * * confusing" (Report, p. 2), and they feel the test deficient for the reason the United States Attorney has "los[t) and abandon[ed) prosecutions because psychiatrists The practical results of acquittals under the Durham rule, July 1, 1954, to May 7, 1958, Column 1 shows the number of defendants in criminal cases ac- quitted by reason of insanity. Column 2 shows the number of these defendants who are still confined at St Elizabeths hospital. Column 3 shows the number released from the hospital as recovered. Column 4 shows the number of those. released who have since gotten into serious criminal trouble. Later Still Serious Crime Acquitted Confined Released Trouble Murder 7 6 1 0 Assault 5 3 2 0 Robbery 8 4 4 1 Housebreaking .... 8 2 6 1 Forgery 6 2 4 1 Auto theft 6 5 1 0 Others. 6 1 5 0. Totals 46 23 23 3 SOURCE: The Washington Post, May 9, 1958, p. D3, col. 7. PAGENO="0232" 226 AMENDMENTS TO CRIMINAL STATUTES OF D.C. could not give opinions on the `product' requirement of the rule" (id. at p. 10). (iii) The majority also finds it significant that the Durham rule "has not been accepted" by other federal or state courts (Report, p. 11). We shall examine each of these objections in turn. First. We think the majority mistaken in contending that the Durham rule equates the legal test of criminal respothibility with the medical test of mental disease. To be sure, one of the principal objectives of the Court of Appeals was to bring an obsolete legal standard into harmony with generally accepted medical opinion. But the Durham rule does not adopt a medi- cal test; it does not, for example, provide that "all defendants diagnosed to be suffering from `paranoid schizophrenia" or that "all defendants diagnosed to be suffering from manic- depressive psychosis" shall not be criminally responsible. It sets forth a legal guide which allows psychiatrists to testify in their own terms about the defendant's mental state. Moreover, if the test were purely medical, the testimony of laymen pre- sumably would be incompetent and irrelevant. However, testi- mony `concerning the defendant's mental condition by arrest- ing officers, acquaintances, and members of the accused's family is freely received. See Carter v. United States, 252 F. 2d 608, 618 (D.C. Cir. 1957). Finally, and fundamentally, the Durham rule does not disturb the basic principle `that the jury should be the ultimate arbiter. The jury considers the lay and expert testimony in light of the legal test. As the Court stated in the Durham opinion: "[I)n leaving the determination of the ultimate question of fact to the jury, we permit it to perform its traditional function, which, as we said in Holloway, is to `apply our inherited ideas of moral responsi- biliry to individuals prosecuted for crime'." (214 F. 2d at 876). The jury's verdict is final unless it is arbitrary. We do not share the majority's view that the terms "disease" or "defect" are unduly vague. In the Durham case, the Court defined disease as "a condition which is considered capable of either improving or deteriorating" (214 F. 2d at 875). It de- PAGENO="0233" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 227 fined defect as a "condition which is not considered capable of either improving or deteriorating and which may be either con- genital, or the result of injury, or the residual effect of a physi- cal or mental disease." Ibid. "Disease or defect" are the terms commonly used to desig- nate serious mental abnormalities. They are the terms em- ployed in the test of criminal responsibility proposed in the Model Penal Code of the American Law Institute (A.L.I., Model Penal Code, Tentative Draft No.4, Section 4.01). They are the same terms contained in the proposed statute recom- mended in New York by the Governor's Conference on the Defense of Insanity. We think these terms are intelligible to laymen. Certainly they are no more vague or incapable of precise definition than others juries are regularly called upon to apply, such as "reasonable man." The majority report repeatedly stresses the uncertainty of psychiatric knowledge and the disagreements among psychia- trists when called as experts to testify. It is clear that "So long as the defense of irresponsibility by reason of insanity is recog- nized in any form, the law needs to be aided in its administra- tion by expert psychiatric testimony." (Interim Report of Subcommittee of The Governor's Conference on Insanity, New York, May 29, 1958, mimeographed draft, p. 5.) We are well aware that psychiatry has many limitations and that there is no precise, universally accepted terminology. It is also true, of course, that in some cases psychiatrists differ in their diagnosis and conclusions. But psychiatrists are certainly not uniqu& in this respect among experts who appear in Court. The disagree- ment tends to be exaggerated by the techniques of certain trial counsel. There is virtually no disagreement among psychiatrists in cases involving individuals suffering from a "mental defect" (e.g., idiocy). There is likewise almost no disagreement in cases involving organic brain disorders. Psychiatrists also rarely differ in cases ;involving prolonged schizophrenia. Dis- agreement may and does exist in cases involving psychopathic personalities and various borderline cases. To the extent that disagreements among psychiatrists exist, PAGENO="0234" 228 AMENDMENTS TO CRIMINAL STATUTES OF D.C. we fail to see that they constitute a valid criticism of the Durham rule itself, or bespeak the need for another rule. One of the professed objectives of the test recommended by the majority itself is to "permit expert witnesses to testify freely as to their examinations and findings regarding the mental con- dition of the accused, and their opinions as to its disabling effect if any * * *" (Report, p. 14). So long as psychiatrists are accorded free rein in this fashion, differences of opinion in the borderline areas may well occur no matter which test is in force. Durham provided an impetus toward increasing use of psychiatric knowledge in determining the disposition of crimi- nal offenders. We welcome this trend, since we believe that continued collaboration between law and psychiatry can lead to fruitful results. Second. The majority condemns Durham on the ground that the "causality or `product' part of the rule is * * * con- fusing" (Report, pp. 2, 8-9) ,12 We believe that many of the difficulties have been resolved by the Court of Appeals in opinions subsequent to Durham. We are also of the view that the argument is essentially academic and theoretical in nature, and that in practice the objection has not proved to be serious or substantial.'3 In Carter V. United States, 252 F. 2d 608 (D.C. Cir. 1957), the Court of Appeals clarified this aspect of the ~u1e and pro- ~ This aspect of the rule has evoked criticism from other sources. . See, e.g., The Criteria of Crimind Re.rponsibiity, 22 Univ. of Chi. L. Rev. 367 (1955), by Professor Herbert Wechsler. `3The Court of Appeals noted that "`Mental abnormalities vary infinitely in their nature and intensity and in their effects on the character and conduct of those who suffer from them. Where a person suffering from a mental ab- normality commits a crime there must always be some likelihood that the abnormality has played some part in the causation of the crime; and, generally speaking, the graver the abnormality, * * * the more probable it must be that there is a causal connection between them. But the closeness of this connection will be shown by the facts brought in evidence in individual cases and cannot be decided on the basis of any general medical principle." Durham v. United States, 214 F. 2d at 875, Note 49. Some psychiatrists maintain that an individ- ual's conduct cannot be dissociated from his total personality. In other words, given "mental disease or defect," the crime is a symptom or manifestation of the illness. PAGENO="0235" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 229. vided specific and clear guidance for trial courts. As the Court putit (252 P. 2dat617): "When we say the defense of insanity requires that the act be a `product of' a disease, we mean that the facts on the record are such that the trier of the facts is enabled to draw a reasonable inference that the accused would not have committed the act he did commit if he had. not been diseased as he was. There must be a relationship between the disease and the act, and that relationship, whatever it may be in degree, must be as we have already said, critical in its effect in respect to the act. By `critical' we mean decisive, determinative, causal; we mean to convey the idea inherent in the phrases `because of,' `except for,' `without which,' `but for,' `effect of,' `result of,' `causative factor'; the disease made the effective or decisive difference between doing and not doing the act. The short phrases `product of' and `causal connec- tion' are not intended to be precise, as though they were chemical formulae. They mean that the facts concerning the disease and the facts concerning the act are such as to justify reasonably the conclusion that `But for this disease the act would not have been committed." (Emphasis supplied.) The Court added that "The ultimate inferences vel non of relationship, of cause and effect, are for the trier of facts" (252 F. 2d at 617). We believe that confusion has arisen from failure to heed this admonition. In other words, whether the crime was a product of the illness so as to exempt the defcnd~ ant from criminal responsibility is essentially an ultimate judg- ment to be reached by the jury on the basis of the entire record (See Note 12, iupra). It is not essentially a psychiatric ques- tion, though the psychiatric testimony may bear heavily on it. It is the function of the psychiatrist to explain the dynamics of the illness and how it affects "the mental and emotional proc- esses of the defendant," While lawyers have asked psychiatrists whether the crime is the product of the illness, and psychiatrists have replied, the question is not essential, and this practice may be objectionable as calling for a conclusion which is properly within the province of the jury. So far as we are aware, the United States Attorney has not dropped cases because of his inability to obtain expert assistance on the "product" phase of the test. In some cases, pleas of not guilty because of insanity may have been accepted because the PAGENO="0236" 230 AMENDMENTS TO CRIMINAL STATUTES OF D.C. insanity defense was SO clearly established. Such defendants would be committed to Saint Elizabeth's. As a practical matter, the basic controversy where an insanity plea is made is this: Did the Defendant suffer from a mental disease or defect? As to this issue, there is not the slightest in- dication that the prosecution has any difficulty in obtaining psychiatric assistance. All of the facilities of one of the greatest mental hospitals in the world, Saint Elizabeth's, are readily at its disposal. The vast majority of defendants-per- haps 95 %-are indigent, and it is only proper and just in our view that the prosecution, with the enormous resources at its disposal, should bear a heavy responsibility for producing and presenting expert testimony respecting the accused's mental condition (see Blunt v. United States, 244 F. 2d 355, 364, note 23 (D.C. Cir. 1957).14 Third. We do not think any inference against Durham can logically or fairly be drawn from the action by courts of other jurisdictions. In most, the M'Naghten rule still prevails though that rule is thoroughly discredited. That these jurisdictions have chosen to retain an obsolete test is hardly compelling evi- dence of its soundness, nor does it constitute a cogent reason for discarding Durham. in any event, unique factors which are inapposite here were present in most such cases. Other Circuit Courts, for example, have held they were not free to follow Durham because they do not enjoy the same "autonomy" with respect to local criminal law as our Court of Appeals. Saner V. United States, 241 F. 2d 640, 644 (9th Cir. 1957); Hbward V. United States, 232 F. 2d 274, 275 (5th Cir. 1956). Some state courts have been inhibited by statutes defining criminal responsibility. People V. Johnson, 169 N.Y.S. 2d 217 (1957). The fact is that no other court in the United States has sub- jected the question of criminal responsibility to the same in- tensive scrutiny as our Court of Appeals. Since 1954, the 14Many of the prosecution difficulties have been alleviated by a 1955 amend- ment to the District Code. The normal doctor-patient privilege does not apply in a criminal case where insanity is an issue as a result of a plea by the defendant, with the result that the prosecution may freely use the testimony of psychiatrists who have examined the defendant. D.C. Code § 14-308 (Supp. IV, 1957). PAGENO="0237" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 231 Court has rendered nearly fifty opinions touching nearly every aspect of the insanity defense, e.g., competence to stand trial, scope of the doctor-patient privilege, instructions to the jury, problems relating to release of a person from a mental institu- tion, etc.15 This corpus of law constitutes an outstanding con- tribution to enlightened judicial administration of the insanity defense. The Durham test is substantially the same as a test pro- mulgated some eighty years ago in New Hampshire. State. v. Pike, 49N.H. 399 (1869); State V. Jones, 50 N.H. 369 * (1871). The test devised by the majority has not been sanc- tioned by any court, legislature, or commission which has * studied the problem. The proposed test is patterned after the test recommended in the Model Penal Code by the American * Law Institute, but it differs from the A.L.I. test in critical re- spects. * Iv OBJECTIONS TO THE MAJORITY TEST The committee majority accepts, at least by implication, the criticism of the pre-existing tests which prompted adoption of the D#'ham rule. Thus, the majority report acknowledges that it is "desirable" that the psychiatrist should be "free" in testifying as to the Defendant's mental condition (Report, p. 12). The majority report. further reflects the change of atti- rude which has taken place since Durham in affirmatively~ rec- ommending against a return to the pre-existing tests. But the test devised as a substitute for Durham by the majority is subject, in our view, to serious objections. At the threshold, there j~ an objection of fundamental im- portance which the majority report treats lightly. The majority propose that the new standard of criminal responsibility be embodied in a statute. In the District of Columbia there is presently no statute defining, criminal responsibility. The power Only a few of these cases have related to the Durham rule per se. Prob- lems such as fitness to stand trial would exist under any rule of responsibility. For the most part, the decisions represent a long overdue review by the Court of procedural problems inyolved in administering the insanity defense. PAGENO="0238" 232 AMENDMENTS TO CRIMINAL STATUTES OF D.C. to formulate and change the test has been traditionally vested in and exercised by our Courts. The "right and wrong" and "irresistible impulse" tests became incorporated in law as a result of judicial decision. On- other occasions, the Court of Appeals has declined to adopt recommended changes. See e.g., Fisher V. United States, 149 F. 2d 28 (D.C. Cir. 1949), aff'd 328 U.S. 463 (1946); Stewart V. United States, 214 F. 2d 879 (D.C. Cir. 1954). The decision by the Court of Appeals in the Durham case thus represented the exercise of a traditional rule-makingpower. It was, as Judge Prettyman has stated, "a short, simple step, inevitable and evolutionary after the opinion of this court in Smith." Carter V. United States, 252 F. 2d at 616. The majority recommends in effect that this long-settled prac- tice be abandoned. We agree that compelling arguments can be advanced in support of codifying the substantive criminal law although we perceive no validity whatever to the sug- gestion that a rule promulgated by. a court is not as "applicable to all cases" as a statutory rule. We do not believe, however, that it would be wise to crystallize the insanity test in a statute * at this time.1° The insanity defense is presently the subject of widespread debate throughout~ the United States. Commissions are studying the problem in Massachusetts, New York, and Maryland. Var- -ious universities, including the University of Chicago and the University of Pennsylvania, have study projects in this field under way. In these circumstances, it would be premature to freeze any rule in a statute at present. The results of various studies should be awaited. Moreover, there should be a further period of trial with the Durham rule, and intensive study of the cases which have arisen under it. Experience under the Durham 181n April 1955, a Committee on Mental Disorder as a Criminal Defense, ap- pointed by the Council on Law Enforcement of the District, and headed by George L. Hart, Jr., now District Judge, recommended against a legislative definition. More recently, the Washington Psychiatric Society, by a mail poll taken in April, 1959, overwhelmingly expressed its opposition to the Davis Bill, H.R. 13492, 85th Cong. 2d Sess. (1958), which seeks, inter alia, to enact a statutory definition patterned along the A.L.I. test. PAGENO="0239" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 233 rule and related opinions is still too limited to permit definitive conclusions. It is unnecessary to belabor the difficulties of effecting a change once a statutory test is enacted. In New York, where the "right and wrong" test is prescribed by statute, there has been agitation for reform, promoted by such leading figures as Judge Benjamin Cardozo, for more than thirty years, and no change has yet been achieved. (See Interim Report of Sub- committee of The Governor's Conference on Insanity, New York, May 29, 1958.) Apart from this basic consideration, we believe a number of problems are raised by the majority's proposed test which reads as follows: tT)he defendant is not mentally [sic criminally?) responsible if at the time of the alleged offense, the defendant, because of an impaired or defective mental condition, was substantially lacking either *in his capacity to appreciate that his conduct was wrong or in violation of law, or in his capacity to conform his conduct to the right or to the require- ments of law." (i) The terms "right" and "wrong" embodied in the pro- posal do not appear. in the A.L.I. test which is the model for the majority.'7 These terms, a relic of M'Naghten, are far more ambiguous and subjective in content than the terms "disease or defect" to which the majority takes exception. The terms "im- paired or defective mental condition" in the proposed test are perhaps apt synonyms for mental defects (e.g., idiocy), but these terms do not, in our view, meaningfully describe most of the psychoses, such as schizophrenia or manic-depressive psy- chosis. (ii) . The majority deplores uncertainty under the Durham rule. But the same degree of uncertainty would exist with re- spect to the majOrity's proposal. Psychiatrists would differ as to whether "because of an impaired or defective mental condi- tion" an individual "was substantially lacking either in his 17The proposed. A.L.I. test reads as follows: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." PAGENO="0240" 234 AMENDMENTS TO CRIMINAL STATUTES OF D.C. capacity to appreciate that his conduct was wrong or in violation of law. * * *" The majority would exempt the defendant from criminal responsibility if he was ~substai~tia1ly lacking * * * in his capacity to appreciate that his conduct was wrong," etc. Questions of substantiality are necessarily questions of degree, and questions of degree invite disagreement. (iii) The majority challenges the requirement in the Dur- ham rule that the criminal act must be the product of mental illness. But the test devised by the majority would require proof of logical connection or relationship between (a) the impaired or defective mental condition and (b) the defendant's capacity to appreciate that his conduct was wrong. It would not be sufficient to prove "impaired or defective mental condition," that is that the Defendant was mentally ill. We believe the proposed test would also require proof of a connection between impaired capacity and the specific crime charged. Abstract proof of a lack of capacity to appreciate wrongfulness or to conform conduct to the requirements of law might well not suffice. The issue would be: "Did the defendant lack the capacity by reason of impaired or defective mental condition to appreciate that the specific act with which he was charged is wrong or in violation of Jaw!" (iv) We do not think the majority's proposed Lormulatlon would be more intelligible or meaningful to a jury than the short, lucid Durham test. The Durham test phrases the ulti- mate question simply, directly, and succinctly. We think the majority test verbally awkward and complex. (v) The test devised by the majority was never submitted to psychiatrists for their appraisal. The committee met with psychiatrists on two occasions. Every one of the psychiatrists agreed that Durham represented a notable advance over the pre-existing rules. A few of the psychiatrists felt there could be further improvement in Durham. Some of the physicians with whom the committee met were sharply critical of the test proposed in the Model Penal Code by the American Law In- stitute, which served as the model for the majOrity's proposal. We do not believe any test of criminal responsibility should be PAGENO="0241" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 235 proposed without careful consideration of the views of mental health specialists concerning the specific test proposed. V COMMENT ON OTHER RECOMMENDATIONS BY THE MAJORITY In addition to recommending a change in the substantive test of criminal responsibility, the majority makes recommenda- tions respecting (i) the permissible scope of examination of the expert medical witness, (ii) the type of instruction which shall be held legally sufficient, and (iii) the finality of the jury's determination of the issue of "incapacity." We partially concur and partially differ from the recommendations as we discuss below. (i) The majority report is critical of the practice, which is apparently widely prevalent, of questions put to expert wit- nesses in the direct language of the Durham test itself. Both the prosecution and defense will explicitly ask the psychiatric witnesses: "At the time of the offense, did the defendant suffer from a mental disease or defect." The majority notes that questions phrased in terms of the ultimate standard of responsi- bility have been traditionally asked, whatever the standard. We think the majority mistaken in their a~ertion that the Diirhan~ rule requires such questions (Report, p. 2), but we agree with the majority in condemning this practice. Questions phrased in the ultimate terms of the test are ob- jectionable as calling for conclusions of law and represetit an improper intrusion upon the jury's province.'8 The function of the expert is to state his diagnosis; to de- scribe the symptoms and characteristics of the disorder, if any; to indicate, if he can do so, the effect of such symptoms upon the individual's behavior; and to explain the methods he followed in arriving at his opinion. Some psychiatrists, for example, are This question is ably discussed in the brief filed with the Court of Appeals by Messrs. Howard C. Westwood and J. William Doolittle, Jr., designated by the court as attorneys for appellant in Blocker V. United States, No. 14,274, decided April, 1959. 25-260 0-64-pt. 1-16 PAGENO="0242" 236 AMENDMENTS TO CRIMINAL STATUTES OF D.C. of the opinion that a "sociopathic personality" constitutes a mental disease; other psychiatrists are of a different opinion. In our view, it is for the jury to decide whether, on the record, the defendant suffered from a "mental disease or defect" at the time of the crime so as to be. exempt from criminal responsi- bility. If questions phrased in terms of the test are asked, we think it essential that the trial judge should charge the jury that the views of the psychiatrists as to this ultimate quesion are not binding upon it. We believe that this problem can be dealt with adequately by the Courts and that legislation is unneces- sary. (ii) The majority also recommends that "An instruction in substantially these terms [i.e., the terms of the rule proposed by the majority) shall be sufficient in all cases." We think this proposal could seriously prejudice the right to a meaningful jury trial. The right of a jury trial necessarily implies-that the jury shall be given adequate guidance. See Williams v. United States, 131 F. 2d 21 (D.C. Cir. 1942). The instruction must neces- sarily be shaped to the facts of each particular case. In Carter V. United States, 252 F. 2d at 618, Judge Prettyman pointed out, in speaking for the Court of Appeals, that "A trial judge faced with a defense of insanity in a criminal case ought not attempt to be brief or dogmatic. He ought to explain-not just state by rote but explain-the applicable rules of law and the duties of the jury in respect to the matter. He should ex- plain not only in general terms but in terms applicable to the disease and the act involved in the case at bar. Because, after all, the jury must make its findings upon the facts in the case before it, not in some nebulous generality or supposition." In some cases it would be appropriate for the trial judge, in assisting the jury, to point out areas of agreement or conflict in the expert testimony. See Durham V. United States, 214 F. 2d at 875, note 50. Elucidation by the trial judge might be essential in answering a juror's request for guidance. See Wright V. United States, 250 F. 2d 4, 11 (D.C. Cir. 1957). The rule proposed by the majority would tend in rime to PAGENO="0243" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 237 result in mechanical recitation in haec verba of the formula alone. It would drain the defense of vitality. The recom- mendation is contrary to the trend of permitting more liberal scope to the trial judge in commenting upon the evidence. We oppose this recommendation by the majority. (iii) The majority also recommends that where "sufficient evidence," both lay and expert, has been received as to the nature and extent of the defendant's mental condition, the court shall leave to the "sole determination of the jury the ql.les- tion as to the incapacitating effect if any of such mental condi- tion. * * ~" This proposal would preclude a court from ever directing a verdict of not guilty by reason of insanity. While we think that the question of responsibility is primarily for the jury, we do not see any sound reason for depriving the court of its traditional, prerogative of directing a verdict where the evidence so overwhelmingly points one way-in this instance, insanity-that reasonable men could: come to no other con- clusion. See Douglas V. United States, 239 F. 2d 52 (D.C. Cir. 1956). We therefore oppose this recommendation by the majority. VI CONCLUSION AND RECOMMENDATIONS In April1955, a Committee on Mental Disorder as a Crimi- nal Defense, appointed by the Council on Law Enforcement of the District, and headed by George L. Hart, Jr., now District Judge, submitted a report to Congress on the Durham .rule. We are in accord with the conclusion of this distinguished com- mittee.'° (Senate Rep. No. 1170, 84th Cong., 1st Sess., p. 10): "It is the opinion of the Committee that the test of criminal respon- sibility established in the Durham case represents a significant and desirable advance over the `right and wrong' and `irresistible impulse' tests, and is in the interests of justice. "It is the opinion of the Committee that, while the Durham test is by no means the ultimate test or the perfect test, it would not be feasi- 19Ji~ addition to Judge Hart, the Committee included Donald A. Clemmer, Leroy H. McKinney, Hugh F. Rivers, and Vernon E. West. PAGENO="0244" 238 AMENDMENTS TO CRIMINAL STATUTES OF D.C. ble, and, in fact, would be inadvisable to attempt a statutory definition of. legal insanity. The witnesses who appeared before the Committee were almost unanimous in expressing their opinion of the infeasibility and undesirability of obtaining a statutory definition. Your Committee feels that no significant group of either physicians or lawyers would ever agree on any statutory definition. "Lord Blackburn well expressed the difficulties involved more than 50 years ago when he said: `I have read every definition (of insanity) which I could meet with and never was satisfied with one of them, and I have endeavored in vain to make one satisfactory to myself. I verily believe it is not in human power to do it.' "It is the opinion of your Committee that, by leaving in the courts their common law power to establish legal tests of insanity, a desired flexibility will be possible in adapting legal tests to growing experience in the psychiatric field." We accordingly recommend as follows: 1. That the resolution recommended by the majority should not be approved. 2. That a resolution be adopted recommending against any legislative change of the Durham rule at this time. 3. That this Association should actively join in supporting further study of the insanity defense. We respectfully submit that no change should be made without an exhaustive investiga.- tion of the entire question.2° There are tremendous gaps in our knowledge of criminal behavior and mental disorder. Such a study would require the facilities of a trained, full-time staff, consisting of lawyers, psychiatrists, and criminalogists. We believe that the nature of the problem is such that one of the country's leading foundations, e.g., Rockefeller or Ford, might well be interested in helping to finance a study of the insanity defense in the District of Columbia. The opportunities for such a study are unique in this jurisdiction. This Association and this Committee could furnish invaluable assistance; We believe that a non-partisan, scholarly study of this character would be preferable at this time to any legislative action. 20We deem it important to underscore the limited function which the rule itself plays in the total process of administering the insanity defense. The atti- tude of the bench and bar and of the public generally toward insanity and crimi- nal behavior, the availability of psychiatrists and hospital facilities, procedures for prompt mental examination of each defendant charged with a serious offense- all of these have a critical bearing upon the problem. PAGENO="0245" AMENDMENTS TO CRIMINAL STATUTES OF D.c. 239 The CHAIRMAN. We will stand in recess until 10 o'clock tomorrow morning. (Whereupon, at 1 p.m., the committee recessed to reconvene at 10 a.m., Thursday, October 17, 1963.) PAGENO="0246" PAGENO="0247" MALLORY AND DURHAM RULES, INVESTI~ATIVE AR- RESTS AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA THURSDAY, OCTOBER 17, 1963 U.S. SENATE, COMMIrrEE ON THE DIsriucT OF COLUMBIA, W&~ingtoii, D.C. The committee met, pursuant to recess, at 10 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presiding. Present: Senator Bible. Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard Judd, pro- fessional staff member. The CHAIRMAN. The committee will come to order. Our first witness this morning will be Judge Holtzoff. STATEMENT OP RON. ALEXANDER HOLTZOPP, flTDGE, U.S. DISTRICT COURT FOR THE DISTRICT OP COLUMBIA The CHAIRMAN. Judge, we are very happy to hear you as our first witness this morning. I recognize that you have a number of com- mitments, and we will be very pleased to have you present your testi- mony at this time. Judge HOLTZ0FF. Mr. Chairman, may I say at the outset, that I do not appear this morning on my own initiative. I am saying this, although it would have been appropriate for me to appear here on my own initiative, but I am appearing here in response to your courteous invitation conveyed to me through your counsel, Colonel McIntyre, and I would have considered it uncooperative on my part if I had not responded to `the invitation. The CHAIRMAN. Well, I recognize your position there, Judge, and we were very anxious to have your viewpoints and your suggestions and your analysis of title II of the House bill which deals with this problem of insanity. You are an expert in this field, and have a wonderful background, and for that reason we wanted the benefit of your views. So we are very delighted that you do respond to our invitation and we are happy to have you here with us this morning. Judge HOLTZOFF. It is a great pleasure for me to cooperate with this distinguished committee, especially since I greatly admire its work. My remarks will be directed, as requested, to the rules relating to insanity. They are found in title II of the pen4ii~g bill, H.R. 7525. ~241 PAGENO="0248" 242 ~m~i~s TO CRIMINAL STATUTES~ OF D.C. In fact, if necessary, the sections comprising that title could be taken out and made a separate bill, because it may well be that some people will be in favor of title II, who might be opposed to other sections of the bill. The basic provisions of title II, relating to insanity, are taken. from the Model Penal Code of the American Law Institute, which was the product of several years of intensive study and work performed by a group of distinguished scholars, lawyers, and judges. I am heartily in favor and support title II very largely because it is taken from the Model Penal Code of the American Law Institute, and because these provisions will completely solve some of our prob- lems and meet some of our difficulties in connection with the defense of insanity in criminal cases. While I am going to make my remarks very succinct and brief, because I know you have a number of witnesses, I do want to go back for a moment. to highlight one or two matters of what might be called history. We often hear criticism of the well-known M'Naghten case, decided * in England over a century ago, in which the so-called right and wrong test was laid down, in which the test of insanity, for the purpose of criminal cases, was whether the defendant knew or was able to distinguish between right and wrong and, if he knew which was wrong, could he adhere to the right. With the advance of the psychiatric science over the years many people recognized that that test was insufficient because there might be some insane people who knew that they were doing wrong and yet were unable to adhere to the right. Now the Federal courts long ago abandoned sole reliance on the M'Nagltten case. Consequently, it seems to me inappropriate, as many people have said, that the reason for the Durham case was because the M'Naghten was bad. We abandoned the sole reliance on the M'Naghten case years ago. The Supreme Court, in the Da~vi$ case, in 165 U.S. 373, at page 378, added to the right and wrong test the test known as the ability to adhere to the right, and it defined insanity, in connection with criminal cases as follows: The term "insanity" means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong or unconscious, at the time, of the nature of the act he is committing or, though conscious of it, unable to distinguish between right and wrong, and yet his will, by which I mean the governing powers of his mind, has been overcome and voluntarily so completely destroyed that his actions are ~not subject to it but are beyond his control. Now, this test has prevailed in the Federal courts ever since the decision of the Davie case. It still prevails in all of the Federal courts outside of the District of Columbia. The bill that you are discussing really reenacts the same test in somewhat more modern language which, I think, is very well written. It provides that a person is not responsible for crimina.l conduct if, at the time of such conduct, as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. PAGENO="0249" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 243 The CHAIRMAN. At that point, Judge, would you permit an inter- ruption? 1 would like to have your views as to the difference between the language in H.R. 7525 and the language of the test; which you have just read from the American Law Institute. The House, in passing this bill, added two words. They added the words "either to know or appreciate." I will have the staff show you the words that they have a4ded and ask if you think that that makes a difference in the test. What I am pointing out is that the language contained in the bill before us is not identical with the ALT test to which you have just referred. Judge HOLTZOFF. Well, substantially, your bill is the definition con- tained in the American Law Institute code. The CHAIRMAN. With the exception of the words "to know"? Judge HOLTZOFF. Yes. The CHAIRMAN. Would you point those out, please? Judge HOLTZOFF. Yes. The words "to know", I think, are a desir- able insertion although they are not a necessary insertion. I think it makes it easier to understand the definition to know or appreciate the unlawfulness of his conduct, whereas the words "to know" are not in the penal code. I do not think this changes the sense any, but I think it makes it easier to understand. So I would favor that change or modification. Now, the Durham case, which was decided by our court of appeals in 1954, sought to abandon any definition of insanity and is to the effect that if a person, at the time of the commission of a crime, was suffering from a mental disease or mental defect, and the crime was the product of such mental defect or such mental disease, then he shall not be responsible for his criminal offense. Well, the difficulty with that definition is not a theoretical one. It is a practical one. It is so vague and general that it does not guide juries. What constitutes a product of a mental disease? Even psychiatrists have frequently said, from the witness stand, "I do not know what you mean by `product'." Over the years I have acquired a mounting admiration for juries but, at the same time, juries need concrete guidance, and the difficulty we have had with the Durham case is because the format of the Durham case is so general as to be no concrete test and, for that rea- son, I hope that the Congress will enact the provisions of H.R. 7525. There is another difficulty that we have had that really was due to something that happened at St. Elizabeths Hospital. A person with a psychopathic personality had never been regarded ~ s an insane person. He could not be committed civilly. He was not excused for any crimes that he had committed. He was just a maladjusted person. By the way, they have changed the term "psychopathic" to the term "sociopathic." Psychiatry changes its nomenclature very frequently. In recent years there developed a school of psychiatrists who adopted the view that a sociopathic personality is a mental disease. Tjnfortu- nately, those in charge of St. Elizabeths Hospital became adherents to that view and several years ago, after the Durham case was de- PAGENO="0250" 244 AMENDMENTS TO CRIMINAL STATUTES OF D.C. cided, overnight they made a public announcement that hereafter "we will testify ihat a sociopathic personality is a mental disease," although previously they testified otherwise. Now, the result of that has been that many persons who used to be called "psychopaths" and now are called "sociópaths"~ and who were always regarded as mentally responsible for their crimes, are being acquitted on the ground of insanity because the psychiatrists from St. Elizabeths Hospital take the witness stand and say that this man has a sociopathic personality, that is a mental disease, and the crime was a product of his personality. Now, other psychiatrists will testify otherwise. The result is very incongruous. We get a group of people who are not regarded as. insane, from the standpoint of civil law, who could not be committed to St. Elizabeths Hospital by a civil commitment proceeding, and yet who are acquitted of any criminal offense that they committed on the ground of insanity. Now, the American Law Institute and your bill takes care of that and does away or makes it impossible hereafter to regard or classify a sociopathic personality as a person with a mental disease. In subsection (2) of section 927 (a), as amended, by section 201 of the bill, it is provided: The terms "mental disease or defect" do not include an abnormality mani- fested only by repeated criminal or otherwise antisocial conduct. That would eliminate the sociopath as being a mentally diseased person. This would be very wholesome and salutary and a very neces- sary operation. Now, there are two other matters that I want to refer to. One is the question of the burden of proof. The burden of proof on the issue of insanity is on the prosecution in the Federal courts. In many States the burden of proof is on the defense to prove insanity as an affirmative defense. In fact, the State of Oregon goes so far as to require that the defense is to be established beyond a. reasonable doubt. Other States require it to be established by a preponderance of the evidence. Now, it is almost an intolerable burden on the U.S. attorney's office to disprove, an allegation of insanity because they have to get evidence to prove that on a particular date, some time ago, the defendant was not insane, and- The CHAIRMI~N. May I ask a question there, Judge? Judge HOLTZOFF. Surely. The CHAIRMAN. In an insanity case, what is the case law in the District of Columbia with regard to the burden of .proof? Judge ~ioLTzoFF. The case law now is that the prosecution has to prove beyond a reasonable doubt that the defendant was free of mental disease or mental defect on the date of the crime and, further, that if he did have a mental disease or mental defect that. the crime was not the product of his mental disease or defect. Now, that renders almost. an intolerable burden on the prosecution, and I know there have been cases where defendants have been acquitted on the ground of insanity, not because they have been proven insane but because the Government was unable to prove that they were not insane. . PAGENO="0251" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 245 Now, this is taken care of in the Model Penal Code and in your bill, in subsection (c), paragraph (1) of section 927, as amended by section 201 of the bill. The provision in the bill is: Mental disease or defect excluding responsibility is an affirmative defense which the defendant must establish by showing of substantial evidence. Now, that is a very necessary provi~ion and, actually, it will not do any harm or cause any prejudice to a defendant who has a valid insanity defense. However, it will prevent a situation in which at times a person, who may or may not be insane, is found not guilty on the ground of insanity, and I hope that this will be enacted. One other feature to which I would like to advert for a moment is the requirement of notice. The bill would require that a defendant, who relies on the defense of insanity, must give notice of that fact. I think that is also found in the Model Penal Code. That is very necessary because frequently the Government is taken by surprise and is not in a position to adduce evidence on the issue at the last moment.. I am not appearing here in a representative capacity. I am appear- ing here a.s an individual judge, but I do want to say that from time to time my colleagues and I have discussed some of these matters, and I think I would be justified in saying that the majority of my col- leagues have views similar to those that I have expressed this morning. I do hope that title II of H.R. 7525 will be enacted because it is a much needed and highly desirable piece of legislation. I want to thank you very much for your courtesy, Mr. Chairman, and it has been a pleasure to appear before your committee. The CHAIRMAN. We very much appreciate having you with us here this morning, Judge. Thank you very much. STATEMENT OF OLIVER GASCK, ATTORbTEY, OP THE FIRM OP CRAIGRILL, AIELLO, GASCH & CRAIGHILL, WASHINGTON, D.C. The CHAIRMAN. Our next witness is Mr. Oliver Gasch. We are very happy to have you with us, Mr. Gasch. For the record, Mr. Gasch is a practicing attorney in the District of Columbia. He is a former u.S. attorney of the District of Co- lumbia and served in that capacity from 1957 to 1960. He was principal assistant TJ.S. attorney for the District of Columbia at the time the Durhan~ case was tried in 1954. He is an immediate past chairman of the Law Enforcement Council; We are always delighted to have you with us, Mr. Gasch. Your judgment in these affairs is always appreciated. Mr. GASCH. Thank you, Mr. Chairman. I appreciate the invitation to appear as a witiless, and I would like to say at the outset that the views that I express are my own personal views gained during the years that I was U.S. attorney and do not reflect the views of the District of Columbia Bar Association, of whieh I am an officer at the p.resent time. I listened, with interest, to Judge Holtzoff's statement and, as a re- sult of a study of Mr. Acheson's testimor~y, I would like to direct my PAGENO="0252" 246 A~NDMENTS TO CRTh~II~AL STATUTES OF D.C. views primarily to the iJIcDo~na7d case and the extent to which it does modify the Durham doctrine, and to my own view that the American Law Institute Code, as passed by the House, does represent a sub- stantial step in the direction of criminal justice. I nthe first place, it is important to note what McDonald does and what it does not do. I think it tends to restore the jury to the tra- ditional place that it has had in criminal jurisprudence. I said "tends to restore" because it certainly does not overrule the Douglas and Wright cases in which the court of appeals said that the jury was not free to ignore the testimony of the expert or psychiatric witness. I do not read the McDonald case as taking that step. I think it does, however, indicate that the traditional function of the jury, in weighing the evidence, is somewhat restored. It seems to indicate that the quantum of proof, which was estab- lished in the Taturn case, the some evidence quantum, which can be quite vague, is somewhat enlarged but the extent to which that im- portant quantum of proof of the state of insanity or menta.l disease or defect must be established is still vague~ Now, reference is often made in the court of appeals decisions to the Davis case in the Supreme Court. There are two Davis cases, because the first one (160 U.S.) repre- sented a reversal of a conviction of first degree murder; whereas, the second Davis case (165 U.S.) was an a.ffirmance of the second trial of the same man. Judge Holtzoff has read to you, and I will not repeat it though I have the volume with me, the essential language from the second Davis case which does define "insanity." I think it is important to realize that because it includes, among other things, this test which is implicit in the ~House bill and the American Law Institute formula which is capacity to control one's unlawful behavior. Now, one of the greatest difficulties that we experienced in the U.S. attorney's office, during the 5 years that I was at the courthouse in the capacity of U.S. attorney, was the fact that this capacity to control one's unlawful impulses or inclinations to commit crime was not a part of the Durham formula. The Durham formula basically is not a. new formula. It was adopted only 2~ years after the M'Naghten case in the Pike case in New Hampshire. So it also is a product of the 19th century. Let me state briefly the reason why I prefer the American Law Institute formula.. In the first place, this formula was worked out by some of the lead- ing and most respected legal craftsmen in t.he coimt.ry, people like Learned Hand, Judge Parker of the fourth circuit, Judge Fee of the ninth circuit, Professor Wechsler, now director of the American Law Institute and for many years professor of law at Columbia and Har- vard, and a former Assistant Attorney General of the United States. Those people were not under the pressure of deciding a given case for certain reasons that in that case seemed important. They were attempting to work out a code, you might say, in the cool of the evening where people could sit down and exchange views and experi- eñces gained over a lifetime. PAGENO="0253" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 247 I think that that type of code is likely to be a more enduring docu- ment. I like the procedures of the code. They are basically fair to the person accused and, at the same time, they are fair to the general public. And that balance is most impor- tant in achieving justice. Now, what are the basic differences between the code and the law in the District today? In the first place, the code requires notice of the defense of insanity. I do not think there is any real dispute about that. I recall an occasion, not more than 4or 5 years ago, when a group of students from the University of Pennsylvania came to the court of appeals for a moot court on insanity, and Judge Bazelon invited me to be one of the moot court judges, and I went up there and afterward we had a discussion on our respective views-which have not always been in harmony-and I indicated the importance of notice of the defense of insanity. And Judge Bazelon, not to my surprise, did say that he saw no objection to requiring notice of the defense of insanity, so that there could be a timely examination of the person who seeks to interpose that defense. I recall a case, the Sweeney case, when I was district attorney, in which this young college boy stabbed his sweetheart and she died. We sought a timely examination of this boy to ascertain what the best judgment of the psychiatrists were as to his mental condition, as near the time of the commission of the act as possible, and we were held off by the efforts of defense counsel until an examination was no longer meaningful, although we applied to the court and sought con- sideration as expeditiously as possible. Now, the ALT formulation would control that point, and I think it would be in the interest of justice to do so. The CHAIRMAN. That is on the question of notice? Mr. GASCH. That is right, sir. The CHAIRMAN. Apparently this is one area where all the witnesses to date are almost in complete agreement. I think everyone has testified to date that a requirement of notice was very desirable. Mr. GASCH. Well, I would like to point out, sir, that that is one of the basic differences between a cohesive formula and code, which the American Law Institute has drawn, and the case-by-case method which we have developed in the District of Columbia. The court of appeals can "legislate," if you want to use that term- The CHAIRMAN. Well, I hope that is not what they end up doing. Mr. GASOH. I do not mean to imply any criticism- The CHAIRMAN. I understand. Mr. GASCH. But when you do it on a case-by-case basis you do not always have the opportunity of stating that notice is an essential ingredient. Of course, the Congress does have that opportunity in its legislative capacity, and I think that is one important thing that should be done. Now, on this question of making insanity an affirmative defense. Judge Holtzoff has referred to that briefly. I think it would be most desirable to make insanity an affirmative defense which the party, seeking to interpose the defense, must prove by substantial evidence. PAGENO="0254" 248 m~r~rs TO CRIMINAL STATUTES OF D.C. I recall when that issue was discussed at the meeting of the Ameri- can Law Institute in 1956~-and I have the transcript of the meeting- here in Washington, at the Mayflower Hotel, two alternatives were proposed, each that it. should be an affirmative defense. One group supported the view that the House has adopted, that it be proved by substantial evidence, and the other group voted that it ought to be proved by a preponderance of the evidence. In my view, the view which the House has taken and which the American Law Institute subsequently adopted, it simply gets us away from the old Tatum rule, which is a very vague quantum of evidence. It does not necessarily mean that we have abandoned the present situation which requires the government to prove, as part of its case, once substantial evidence is interposed by the defendant, the insanity or the sanit~~. The CHAIRMAN. Well, how much evidence is "substantial"? Do we have case law that says what is substantial and what is pré- ponderance and what is scintilla and what is not? This is a very difficult area, it seems to me. Mr. GASCH. It is a very vague area, sir. Let me define some of the cases under the "some" evidence rule. In Tatuim the only proof was by a member of the family that Tatum was not like other boys, and t.hat lie, had some strange characteristics. It was a very vague statement of evidence. The CHAIRMAN. This wa.s.the insanity testimony that the defenda.nt introduced at his trial, and then upon such testimony being received in evidence the burden of proof shifted to the government? Mr. GASOH. That is correct. The CHAIRMAN. Your point is that. that is not sufficient? Mr. GAscH. That is not sufficient. The CHAIRMAN. All right. How much evidence would be suffi- cient? Mr. GASCH. There was one case that I would like to refer to to show how far we have gone in that direction, in my experience. I do not recall the name of the defendant, but I could get the name for the committee. His defense counsel was a man named Tom Ahern. He did not believe that there was any insanity defense in the case, but while the defendant was on the stand, in an effort to explain his conduct, lie let the words drop "I must have been crazy drunk." The court of appeals, analyzing that offhand remark, said there should have been instruction on insanity and, absent instruction on insanity, the case had to be reversed. That was some evidence of insanity as defined in that case by the court of appeals. The CHAIRMAN. Did the defendant interpose an affirmative defense of insa.nity in that case? Mr. GA5OH. No, sir; the defendant did not wish to interpose an. affirmative defense of insanity. The CHAIRMAN. It just came up? Mr. GA5CH. It was a colloquial remark that this man made on the stand in an effort to explain his conduct. The CHAIRMAN. Well, would this be a typica.l example? Mr. GA5CH. No, sir. This is not a typical example, but I think when we utilize the words "substantial evidence" which to~ me con- PAGENO="0255" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 249 notes some real testimony indicating that the defendant wishes to rely on insanity and that the man actually is suffering from a disease or defect, and he can prove it, I think until that is done the burden should not shift to the government to prove beyond a reasonable doubt that the man was not suffering from a disease or defect or, if he was, that the crime itself was not the product. The CHAIRMAN. Are the words "substantial evidence" well defined in case law in this field of insanity in the matter of an insanity defense? Is there a case law in the District of Columbia defining "substan- tial evidence," saying what is "substantial evidence" and what is not? I do not know. Mr. GASCH. Senator, to me it is a meaningful concept, but I have not researched the point. I would think that it would mean that if you seek to interpose in- sanity as a defense you must show, by psychiatric testimony or by the testimony of lay witnesses, that this individual was at least the type of person who could be civilly committed. The CHAIRMAN. Thank you. Mr. GASCH. Now, the second point or the third point, rather, on which I feel the American Law Institute formula does add something to the administration of criminal justice is the manner in which it deals with the sociopath. From the standpoint of the protection of the community and the people who are likely to be hurt by criminals at large, the sociopath is probably the most dangerous of this group of people whom the court; in some cases has concluded are suffering from a mental disease or defect. The sociopath, as the American Law Institute formula defines it, shall not be regarded as a person suffering from disease or defect if the only evidence of his sociopathy is continued criminal behavior. That is to say, there must be something in addition to this series of criminal acts in order to show that he is within the protection of insanity as a defense. Now, I can recall one case that I think illustrates that almost better than anything else. I recall a number, but this is one case in particular. This was the individual who was known as the "Bad Man of Swampoodle," Dallas 0. Williams, and I have, in a statement that I would like to hand to the clerk, given the citation of the case in which the facts are set forth. Williams had been convicted of a long series of crimes of violence, including murder. The case was under consideration a number of times by the court of appeals and finally, because of the delay between the original indict- ment and the final trial, the conviction was reversed, the court inter- posed the speedy trial formula, and Williams was out and a free man. The suggestion was made that we seek a civil commitment of Wil- hams. I sought the assistance of psychiatrists from St. Elizabeths hospital. They came over and the proof that I could get from the whole group of them amounted to an insufficient quantum to hold him. He was iiot civilly committable. PAGENO="0256" 250 AMENDMENTS TO CRIMINAL STATUTES OF D.C. We took the case. to the court of appeals, following Judge Keech's adverse ruling. We had a hearing there that same late afternoon. The court considered it but agreed with Judge Keech. The point I am seeking to make is this, that this individual went out and when he sought to utilize the open area of a gasoline station as a men's room, the attendants objected, and he [Williams] pulled out his gun and shot two persons. He is now behind the ba.i~, and I hope he will stay there for a while. The community would be safer if he did. But there are other sociopathic person~lities- The CHAIRMAN. He is behind what kind of bars? Is he behind the penitentiary bars or is he committed to an asylum? Mr. GASOH. No, sir; he is in prison. The jury, in its wisdom, decided to reject his evidence of sociopathy and juries, as Judge Holtzoff said, often show very good judgment. I think their inclinations ought to be respected. And at that point let me say this: I remember studying this with some interest. I do not have the transcript any longer, because in private practice you do not keep all of those things, but the British Royal Commis- sion, took the testimony of Mr. Justice Frankfurter as to the best in- sanity formula. I was impressed by what Justice Frankfurter said which is as follows: If you leave it up to the jury they will get the point, and I do not think it makes a great deal of difference what the formula is so long as you leave it up to the jury. I think that would be in line with my experience, but I do feel that some other trend in our cases, for instance, the Douglas case and the lVrlght case, where the jury saw fit to reject this expert testimony, as juries have a right to reject expert testimony in any case, the trend was that the court held, in those cases, that they could not reject the testi- mony; that they were bound by it. I do not believe that the McDonald case corrects that, though I think that there should be a basis wherein the jury is the judge and not the psychiatrists. That is one of the objections I have always had to the Durham formula. I think the McDonald case tends to alleviate that difficulty, but I recall the correspondence that was printed in the appendix to the American Law Institute volume on this subject, by Doctor Gutt- macher, who was one of your witnesses. The CHAIRMAN. He testified yesterday. Mr. GASCH. And Professor Wechsler, in which Dr. Guttmacher said: I can understand why you lawyers do not like the Durltam fOrmula. It tends to make the psychiatrist the arbiter. That is precisely what has been done in many of these cases. Now, McDonakl does indicate a tendency to get away from that ruling, and McDonald does indicate the importance of the formula, capacity to control one's unlawful inclinations, and I think that is very important. Now, one of the best tests, and this is in the third circut, in my judgment, is embraced in the Ju~re~s decision. Chief Judge Biggs wrote that opinion. PAGENO="0257" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 251 That is very close to the American Law Institute formula. It is this: The jury must be satisfied that at the time of committing the prohibitive act the defendant, as a result of mental disease or defect, lacked substantial ca- pacity to conform his conduct to the requirements of law which be is alleged to have violated. And Chief Judge Biggs, in quite an admirable way, set forth what the instruction should be in these cases. As a former prosecutor, I always like to see the court tell both the prosecution and the defense what a proper instruction is. If you know what a proper instruction is then you certainly save a lot of time and a lot of headaches, and a lot of expense, incident to retrial of these criminal cases, and that is something that is very desirable to achieve. I am not going to read this, instruction, but it is set forth at 290th Federal Reporter, 2d series, at page 775. The CHAIRMAN. The case was referred to by a witness yesterday. I am certain that it was incorporated in full in the record. Of course, I think some of the testimony yesterday was to the effect that when you take the Curren.s case, and you read that side by side with the Durham rule, as amplified and supplemented by the MeD on- aid rule, you have two tests that are very, very close together. Now, I do not know. Lawyers seem to differ on this, and I under- stand that, but there was testimony to the effect that when you read the Judge Biggs' test, which I understand you to say seems to be a very fair test, and the Durham case, as supplemented by the McDonald test, that you have very close to the same test. I would appreciate your views. Mr. GAsoH. Well, at page 7 Of the slip opinion in McDonald, you do have a recognition of this capacity to control one's unlawful con- duct, which is the heart and soul of the American Law Institute for- mula and the American Law Institute formula was adopted by Judge, Biggs in the Currens case. Now, here is what the court said per curiam is the definition of "disease and defect." This is on page 7. Consequently, for that purpose the jury should be told that a mental disease or defect includes any abnormal condition of the mind which substantially af- fects mental or emotional processes and substantially impairs behavioral con- trol. Now, that is as far as the court has gone in that regard. I personal- ly prefer the way that Chief Judge Biggs has stated it but, quite frankly, when I read Mr. Acheson's testimony I must respect his ex- perience. He has been there during the last 2 years. I. have not. I have been concerning myself with civil cases except for an oc- casional criminal assignment, and I cannot say that I am as well up on these cases. I am as well informed on the problem as he is, but I do feel basical- ly, in conclusion, that when a group of respectable legal scholars get together and coolly figure out what these procedural steps should be, they are more likely to come up with a code that is in the interest of justice than if you have the case by case method to which we have in the District of Columbia heretofore been relegated, and that is basically why I feel that the American Law Institute formula, adopted by I lie house bill, is preferable and, of course, the three 25-260-64--pt. 1-iT PAGENO="0258" 252 AMENDMENTS TO CRIMINAL STATUTES OF D.C. points I made concerning notice:, the affirmative defense, `and the socio- pathic personality, those are embodied in the code which I think is preferable to the state Of the law that we have in the District at this' time. The CHAIn~rAx. Well, I appreciate that, Mr. G-asch. I would like to ask you the same question that I asked Judge Holtz- off. Do you see any difference between the American Law Institute test and the test contained in title II of the House-passed bill, where the words "to Imow" are inserted by the House? That is not in the American Law Institute test. The House. has also inserted the word "wrongfulness" for the word "criminality" in the ALT insanity test. Mr. GASCH. I do not have any strong feelings about that. I think I would agree with Judge Holtzoff, that the addition of the words "to know" makes the formula a little more meaningful, gen- eraTly more understandable to the laymen who sit on the jury. Some psychiatrists seem to object to what they call the "cognitive test" because they feel, that knowledge is only one aspect of the man's understanding. They feel that to..appreciate is a broader concept than to know, but if you have the two together I think it is a litie more meaningful,. and I do'not feel that it would be a serious mistake to strike the words to know" if the's `ire obiectionable to psychntnsts or those who tre orieuted in that direction but, personally, I prefer to have the two' words. They area little more understandable. The CHAIRMAN. Now, let me ask you this further question because the history of the evolution of the definition of an instruction on in- sanity in the District of Columbia has come to this jurisdiction by way of case law. Isthatnot correct? Mr. GASCH. Yes, it is, sir. The CHAIRMAN. Since the inception of the District of Columbia there has never been a code provision on this subject of insanity Is that correct? Mr. GASCH. That is my understanding, sir. The CHAIRMAN. That has been mine. Mr. GASCH. We have some statutory procedure pertaining to men- tal competency. The CHAIRMAN. I am not talking about the procedural part. I am talking about the tests because I `believe this is contrary to the usual practice in most of the States. My State, for example, has the definition and the instruction in- sanity written right into the code, and I think this would be almost uniformly true of the other States. Now, the purpose of my recitation of that background is to ask you. whether you think it is preferable to rely upon case law as it now exists in the District of Columbia, Dur1ia~rt amplified by McDonald, or whether we should write the insanity test into law, whatever that test may ultimately be? Mr. GASOH. Well, I prefer leaving statutory matters to the Congress. of the United States and letting the judges decide the cases. PAGENO="0259" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 253 The CHAIRMAN. I asked the same question of the present U.S. At- torney and he said, among other things, that in his opimon the case law in the District of Columbia, as it now stands today in this question of the insanity test, is substantially the same as the American Law Institute test to which you alluded. Now, I do not know whether you. agree with that or do not agree with it, and I am not trying to pit you against each other. All we are trying to do is work out a very difficult problem in a very difficult area. My question to Mr. Acheson was, if the case law in the District of Columbia is substantially the same as the American Law Institute test, what is wrong with writing the American Law Institute test into the law? Mr. GAscH. Precisely. The CHAIRMAN. His answer to that was that if you write the in- sanity test into law then defense counsel will be bringing new cases before the appellate courts. and the circuit courts to again test the iii- struction or the test. Mr G-AscI-x. Well, I do not know that there is any final answer to the question of whether you should leave the judges the prerogative of rulemaking power or whether you should have Congress legislate in such a field as this. It is a question of one's individual preference. My preference is to have Congress lay down the rule, and I will tell you why I feel that way. The case-by-case me.thod is basically a wasteful method. You take the 80 or more cases decided in the Durham area. Each of them, as far as I can recall, represented t.he reversal of a criminal conviction and the expense and necessity for re-trying the case, and the fact that in some instances like in the Dallas Williams case, the man was given the opportunity of killing two innocent gas station attendants. I do not like to legislate in that manner, if it. can be avoided. I would much rather have the considered judgment of the Congress on what the rule should be. The CHAIRMAN.. Very well.. Now, let me ask just a couple more questions, if you do not mind. Your interpretation of the. affirmative defense, which the defendant must establish by a showing of substantial evidence, do I understand you to mean that the burden of proof is in any way affected? In other words if the defendant makes an affirmative defense then he must establish that affirmative defense .by substantial evidence and once accomplished the burden of proof would shift to the Government. Mr. GASOH. I would agree with you, sir. The CHAIRMAN. As it does at the present time. Mr. GASCH. Yes, sir. The CHAIRMAN. To the Government to prove beyond a reasonable doubt that the defendant is sane? Mr. GAscIl. That is correct, sir. The CHAIRMAN. Is that not true? Mr. GA5CH. Or that there was no-then you get to the second aspect of the Durham formula: If it were shown that the defendant was suffering from a mental disease or defect then the Government could further prove its case by PAGENO="0260" 254 AMENDMENTS TO CRIMINAL STATUTES OF D.C. showing beyond a reasonable doubt that there was no productivity between the mental disease and defect and the criminal act. That is a very difficult thing to show beyond a reasonable doubt, and I think the virtue of the American Law Institute formula is that the defense would be triggered only by the defendant's adducing substan- tial evidence that he, in fact, was suffering from a mental disease or defect. The CHAIRMAN. Does counsel have any further questions for Mr. Gasch ~ Mr. McIntyre has suggested that I ask you as to whether or not you would favor an affirmative requirement that the defendant prove his insanity by a preponderance of the evidence without shifting the burden back to the Government. In other words, you put the burden of proving the insanity com- pletely upon the defense. Mr. GASCH. I will try to fiuid for my friend, your counsel, the tran- script of the debate in the American Law Institute on that point. My recollection is that originally the members seemed to favor making insanity an affirmative defense, which must be proved by a preponderance of the evidence. The CHAIRMAN. That, of course, would keep the burden on the defendant? Mr. GASCH. Keep the burden on the defendant. Then I think it was Learned Hand who stood up, and he was an incomparable fighter, and he felt that the words "substantial evidence" were better than "by a preponderance of the evidence." And he persuaded the American Law Institute to accept that par- ticular phraseology. Who am .1 to disagree with Learned Hand, but you asked my view. The CHAIRMAN. Surely. Mr. GASOH. I think that I would prefer that. Perhaps that is the stigma of having been a prosecutor. Sometimes you cannot get rid of your background and, in this in- stance, I would prefer that if it were my own personal judgment, but I can well see the basis on which Judge Hands persuaded the American Law Institute to go along with this language. I think it would be a definite improvement of the situation that we have at this time, and it would definitely clarify what we mean by "some evidence." Now, before I leave that "some evidence" point- The CHAIRMAN. Oh, I did not mean to cut you off on that "some evidence" point. I am happy to have you amplify that in any way you wish. Mr. GASOH. I have only this to say, sir. The court of appeals frequently refers to the first Davis case, in 160 u.S., because the expression "some evidence" was used there. I think you have to take into consideration what the Supreme Court was talking about and what the facts of that case were. There had been a very acrimonious dispute between two farmers, and one of them was back in his cotton patch, picking cotton, and doing nothing to disturb the other fellow, but Davis got his gun and went to his neighbor's cotton patch and shot and killed him. That is the kind of thing they were dealing with in that case. PAGENO="0261" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 255 And, as Judge Holtzoff read to you, and this is on page 378 of the second Davis case, in 165 U.S., the court decides "insanity" in terms that certainly would be quite different from some of the cases in which, like Tatum, the court was satisfied that insanity was triggered as a defense and. the. evidence simply was that he was not like other boys and that he got into disputes with his friends, and so forth. I think it is important that when we deal with insanity we deal with it legitimately, that we know that there is. a defense of insanity, that there be notice of it and when the case is tried there be evidence of it. If you deal with that type of tangible situation then I think a great deal of the difficulty that we have had over the last 80 cases will be obviated. The CHAIRMAN. Well, I appreciate your views very, very much, Mr. Gasch. I would like to take this opportunity, as long as you are here, lf I could, to ask you another question. We have been confining ourselves entirely to title II during our hearing, and title V, which was the mandatory minimum sentence for crimes. There was an area of difference of opinion as to whether it was helpful in law enforcement to have a mandatory minimum sentence or whether it was not helpful, and there was a divergence of views. Now, if you would care to comment on it, I would be delighted to have your comment from your former position as a prosecutor. Would it have helped you in prosecuting crimes to have a statute which set a mandatory minimum sentence of 2 years or 3 years, for example, in a housebreaking case, rather than the no-minimum statute ~ I do not know whether this is going to help a prosecutor or riot. Mr. GASOH. Well, sir, I am very happy to testify on that. I learned' most of my criminal law from my predecessor, Judge Leo Rover. The CHAIRMAN. Well, he was my criminal law professor. He was one of the best. Mr. GASCH. He certainly was. One point on which he and I agreed 100 percent, and there were many, was that mandatory minimum sentences are self-defeating. He felt very strongly on this. He felt that the sentence that an individual is given should be the result of careful consideration of the facts and circumstances of that case by the judge, having, received a report from the probation office. He felt that if you take that power away from a judge and seek to impose mandatory minimum sentences it will basically be self-defeat- ing and deny society the opportunity of rehabilitating many individ- uals who can be rehabilitated. In this whole area I have always felt that we worried too much, we think too much about criminal rules, that is to say we wait until the individual has committed a serious crime and then we talk about the niceties of trial and ignore that which is basically more funda- mental and more important; namely, the imlividual when he is in his formative years, when he is a juvenile. PAGENO="0262" 256 AMENDMENTS TO CRIMINAL STATUTES OF D.C. We do not take that individual and seek to thrust him in the paths of righteousness, if you can use an old Biblical term which I strongly believe in. We let him run in the streets. We let him associate with "bad boys." He gets in trouble and it is one case of trouble after another, until he is a dyed-in-the-wool criminal, and what people call a "iecid~vist' and too often we are confronted with that situation, and I do not think that you answer the problem by simply locking him up and throwing the key away. I think you have to deal with each individual case and exercise our greatest imagination to rehabilitate these people before it is too late. The CHAIRMAN. The Director of your institutions in the District of Columbia, Mr. Cleminer, was in complete agreement with what you are saying. He said we do have, as you well know, several statutes in which there is a mandatory minimum sentence prescribed. In a conviction of that particular type of crime, where there is a mandatory minimum sentence, say, of 5 years, and the defendant knows that he has to re- main in an institution for a period of a minimum of 5 years, Mr. Clemmer testified that he has more problems with that type of con- victed person than almost any other type because the man has almost no hope and he is incorrigible and he shows very little chance of re- habilitation. Now, I was amazed to learn from him of the high degree of recidi- vism in the District of Columbia. I do not know how many are two-, three-, or four-time losers; I do not know whether that is a great. pattern. Mr. GASCII. I am afraid it is, sir. I have talked to Jim Bennett about this on many occasions. He is much concerned about it. Of course, Don Clemmer, and I worked together closely very many years, but I cannot. emphasize too strongly the im~ortance. of empha- sizing probation and parole as safeguarding instrumentalities of justice in the community. In short, a. prison is like a barrel of apples. If `von have some bad apples in that prison those bad apples do not become good a~ples because some of the good apples have been sent down there. They tend to rot the whole barrel, and when those people come out they are marked men, they have criminal records, they have difficulty getting jobs a.nd very easily they turn to another incident of crime. We have licked that problem but the difficulty is, both in the case of proba.tion and in the case of parole, the number of persons that the probation officers and the parole officers have to supervise, which is unrealistically high. It is about 80 individuals a month. Now, you cannot give meaning- ful supervision to 80 individuals a month. If it were, cut down to~ the point where it were no more than 20. perhaps, they could give good supervision to them. I think it is much more important. that those two aspects of our system be liberally utilized. and they have'not been in the. past. The CI-IAIRMAX. In any event, is it your opmion that the writing in of a mandatory minimum sentence is not going to strengthen law enforcement iii the District? PAGENO="0263" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 257 Mr. G-ASCH. No, sir. The CHAIRMAN. Thank you very much, Mr. G-asch. I very much appreciate your courtesy. . You have always been most cooperative and helpful to this com- mittee and to me personally, in trying to work out some of these problems. Mr. GASCH. Thank you. The CHAIRMAN. Thank you very much. Your letter of October 16, 1963, will be inserted in the record at this point (The letter referred to follows:) CI~AIGunL, AtELLO, GASCH & CRAIGHILL, Washington, D.C., October 16, 1963. Hon. ALAN BIBLE, Chairman Committee on the Dist~ wt 01 Columbia U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This statement is presented in response to the commit- tee's request for my views, which request was delivered to me by the committee's counsel, Mr. McIntyre. I should like to make it plain at the outset that the views which I am about to express are my views which I express as an individuaL I am not testifying as an officer of the District of Columbia Bar Association. It is my understanding that the committee is concerned at this stage of its hearings with the subject of whether it is desirable and in the public interest to make any legislative changes respecting the rule of criminal responsibility in the District of Columbia. Legislation patterned largely on the American Law Institute's formulation has passed the House of Representatives. The Durham rule, substantially modified by the McDonald decision,. is the law in the District of Columbia today on this subject. Prior to the Durham rule, the M'Naghten rule which superseded the old right- wrong test, as subsequently modified by the Smith decision of 1929 (the irresist- ible impulse test was the law in the District of Columbia until the decision in the Durham case in 1954. The date of the M'Naghten formulation is approxi- mately 1843. It antidated the basic language of the Durham rule which was taken from the Pike decision in New Hampshire of 1869. Durham and M'Naghten, then, are both products of the 19th century. They are separated by approximately 26 years. I have favored the American Law Institute's formulation for several reasons. In the first place, it is a coherent, cohesive, self-contained document. Often- times, procedures are most important in achieving justice. The American Law Institute's formulation specifies the procedures to be followed from the outset. Doubt as to when and under what conditions one charged with a crime should be examined by a psychiatrist is removed. I recall well the Sweeney case in which a young college boy had stabbed to death his sweetheart. The Government sought a timely psychiatric examination to ascertain the youth's condition as close to the critical time as possible. We encountered delay after delay until, a psychiatric examination was no longer meaningful. I should like to emphasize two points in the American Law Institute's formu- lation which seem of the utmost importance to me. The first is the recognition that insanity is an affirmative defense. It must be proved by substantial evi- dence. There should be no. serious constitutional question respecting this point for the reason that the Supreme Court in Leland v. Oregon sustained the con- stitutionality of an Oregon statute which requires one asserting the defense of insanity to prove it beyond a reasonable doubt. One of the great difficulties respecting the Durham rule has been the "some evidence" rule adopted by the court in the Tatum case. "Some evidence" over the years proved to be a very vague and light quantum, but whenever there was some evidence of insanity, the burden was thrown upon the Government to prove either that the defendant was sane beyond a reasonable doubt or, in the alternative, to prove beyond a reasonable doubt that there was no causal connection or productivity between the mental condition and the criminal act. To a degree the situation has been alleviated by the decision of the court of appeals in McDonald. Under this decision the jury has regained its rightful place in the evaluation of expert testimony. Under Douglas, the jury was re- PAGENO="0264" 258 AMENDMENTS TO CRIMINAL STATUTES OF D.C. quired to follow psychiatric opinion or at least the Court said they were not free to reject it. It must be borne in mind that the jury has the opportunity of observing the psychiatrist, and the impression his testimony makes of them is important. I do not think McDonald changes Douglas. One of the most controversial aspects of the long line of Durham cases, num- bering between 80 and 100, is that which concerns the sociopath. Formerly it was the position of St. Elizabeths Hospital that the sociopath was not within the disease or defect coverage of the Durham rule. Dramatically, this was changed during the course of the trial of the Leach case. This issue is covered by the legislation which recently passed the House by saying "The terms `mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct." As I read this language, if the only evidence of mental disease or defect is that which relates to crimes or anti- social behavior, such an individual, if found guilty, would go to the penitentiary rather than a mental hospital. The cases which have always concerned me to the greatest degree have been the borderline cases where the issue concerning mental disease or defect has been close. In such cases under instructions required by Durham, the jury may find the accused not guilty by reason of insanity. Once such a finding is made, the individual is mandatorily committed to a mental institution where he remains until the hospital certifies that he is no longer dangerous to himself or others. The hospital authorities feel that they are operating a hospital for the sick and not an institution of confinement. In pursuing a process of rehabilitation, they encourage the individual to progress from maximum security to minimum se- curity. The more marginal his "mental ifiness" the more likely the hospital is t& release him or to extend to him visitorial privileges. This progression often facilitates the "elopement," as the hospital authorities call it, of the mental patient who formerly was accused of crime and found not guilty by reason of insanity. I noticed a rather meaningful statistic in the Star of October 2, concerning 94 releases from St. Elizabeths during the past year. Seventeen of them have com- mitted crime since their release. It was reported that one of the crimes was murder. It is quite true that some of the patients who are released either by the hospi- tal or by the court at the hearing make an entirely satisfactory readjustment. I have in mind the case of the one who shot and killed a Voice of America em- ployee by the name of Abdesheli. At the time of the killing, I was advised by two senior psychiatrists from St. Ellzabeths Hospital that the accused was very sick and the probability was that the illness would become progressively worse and that she would probably never be released from the hospital. The basic difference between the Durham rule, which has been the disease- product test, and the ALl formulation is that the former is couched in behavioral terms and is therefore attractive to psychiatrists, whereas the latter is couched in legal terms. It has been said that the Durham rule makes the psychiatrist the arbiter. The important thing is that psychiatrists when called to testify be given the opportunity of testifying freely and without some of the restrictions formerly imposed upon them. The ALl code makes adequate provision for this. In conclusion, I recommend passage of the American Law Institute's formula- tion for the reason that it represents a carefully thoughtout code for dealing with most of the issues which arise in a criminal case wherein the defense of insanity is interposed. Those who worked on this cOde are well known to this committee-Judge Learned Hand of the second circuit, Judge Parker of the fourth circuit, Prof. Rerbert Wechsler, now director of the American Law Institute, Judge Dimock, of New York, Judge Fee of the ninth circuit, and' many others. This was not case-by-case law, which sometimes produces a desirable result but which often does not, this was an effort on behalf of experi- enced, highly competent legal and judicial craftsmen to improve the adminis- tration of criminal justice. As I have previously said; the McDonald case had modified the Durham doc- trine. The extent to which the jury is bound by the conclusions of a psychiatrist' depends upon the weight and credibility of the evidence. These normally are questions for the jury. Douglas, in which the court said the jury was not free to reject arbitrarily expert testimony, is probably still the law. No longer is the "some evidence" rule of the Tatun? case controlling where insanity is or may be a defense. At least it does not require a directed verdict of not guilty by PAGENO="0265" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 259 reason of insanity when the Government lacks rebuttal evidence. These are steps in the right direction, but we should recognize insanity as an affirmative defense and the party asserting it should prove it at least by substantial evi- dence. In McDonald the definition of mental disease does approach the ALl criteria of capacity to conform one's conduct to the requirements of law as well as the Currens test of the third circuit. Next, the case of the sociopath should be given consideration. It is in this category that we are most likely to encounter one capable of and likely to commit serious crimes of violence. There is general agreement among psychiatrists that sociopaths rarely improve. The law institute's formulation takes the position that the terms mental disease or defect do not include an abnormality mani- fested only by repeated criminal or otherwise antisocial conduct. We had a classic example of such an individual in this jurisdiction. The bad man of Swampoodle, Dallas 0. Williams, following a long career of crimes of violence, which included murder, had been released. Thereafter, upon being told that the could not utilize the open facilities of a gasoline station as a men's room, he shot and killed two of the attendants. Fortunately, he has since been tried and convicted of homicide, and it is hoped that his criminal career is as at an end. Respectfully submitted. OLIVER GASCH. N0TE.-Durham v. U.S., 214 F. 2d 802; MeNaghten's case, 10 Cl. and F. 200; $tate v. Pike, 49 N.E. 399; Leland v. Oregon, 343 U.S. 790; McDonald v. U.S., 312 F. 2d 847; Douglas v. U.S. 239 F. 2d 52; Gurrens v. U.S., 290 F. 2d 751; Williams v. U.S., 250 F. 2d 19. The CHAIRMAN. Our next witness will be Mr. William K. Norwood, chairman, Public Protection Committee, Washington Metropolitan Board of Trade. STATEMENT OP WILLIAM K. NORWOOD, CHAIRMAN, PUBLIC PRO- TECTION COMMITTEE, WASHINGTON METROPOLITAN BOARD OP TRADE The CHAIRMAN. Mr. Norwood, we are happy to have you back here. Mr. NORWOOD. Thank you, Mr. Chairman. My name is William K. Norwood, chairman of the Public Protec- tion Committee of the Metropolitan Washington Board of Trade, an organization representing approximately 7,000 principal business, civic, and professional leaders from more than 4,000 enterprises in the Nation's Capital. The views that I shall express today represent the recommendations of the public protection committee and the law and legislation com- mittee and have been adopted by our board of directors as the official policy of the board of trade. We support the enactment of title II of I1.IR. 7525, the omnibus crime bill. The board of trade has previously supported the enact- ment of H.R. 1932 which contains approximately the same provisions as encompassed within title II of H.R. 7525 with, as we interpret them, minor changes. Both of these legislative proposals adopt the American Law Insti- tute's approach to a reasonable solution to the legal entanglements developed by the Monte Durham decision. Title II of H.R. 7525 is based upon the formulation recommended by the American Law Insti- tute as the test of insanity as a defense in criminal cases, often referred to as the test of criminal responsibility. This title is intended to apply to criminal cases in the District of Columbia, replacing the rest of criminal responsibility stated by the Durham rule. This new formulation in title II is intended, not sO PAGENO="0266" 260 AMENDMENTS TO CRIMII~AL STATUTES OF D.C. much as a repudiation of the Durham rule, as an effort to develop it~ give it more specific content, and establish criteria to provide guidance to trial courts and juries. The Durham rule simply states- that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. In that case the Court discarded a well established test of insanity as a defense that is the rule in the M'Naghten case. The M'Naghten rule held that a person was responsible for his criminal conduct if he possessed the capacity to distinguish between right and wrong. By way of comment and observation, it is interesting to note that the Durham rule has been considered by a number of State and Fed- eral courts. In every case it has been rejected by the courts. Twenty States place the burden on the defendant of proving insanity as a defense by a preponderance of the evidence. For example, the State of Oregon imposes upon the defendant the duty of proving such a defense beyond a reasonable doubt. Substantiation of this burden as was mentioned earlier by Judge Holtzoff,. has been upheld by the preme Court of the United States in Leland v. Oregon in 1952. In the District of Columbia, there are shocking signs of abuse of the defense of insanity that* can only. be corrected by a change in the burden of proof rules. A particularly shocking example occurred recently in the testimony of the roommate of Paul McGee. McGee was acquitted by reason of insanity of armed holdup of the Apex Theater in the course of which McGee shot and wounded a police Officer. Tile roommate testified that he had discussed "jokingly" with McGee where a robbery should be committed by a thoughtful criminal and suggesting to McGee that lie select New York as a community where his family might be most influential. .. McGee's reply was that he would select the District of Columbia because in the District of Columbia he could feign insanity as a defense and retain his freedom even though. he might be apprehended. Gentlemen of the Senate DistriCt Committee, this constitutes one more example of the prevalence of thought with the criminally inclined that the District of Columbia is "soft on crime" and a haven from prosecution and conviction for the criminal. The C~m~rAN. I have heard this a great deal, and I have asked the staff to check it out, because I was somewhat impressed with the testi- mony that we had yesterday that runs counter to the common misconception. (See p. 700 re statistics furnished by Judicial Con- ference of the District of Columbia Circuit on Committments and subsequent release from St. Elizabeths Hospital.) Now, McGee, when he was acquitted by reason of insanity, was, of course, committed to St. Elizabeths. And the testimony yesterday was, and I have not ha.d the staff verify it, but my understanding was from the testimony yesterday that if you take it on a case-by-case basis you will find that the men who are acquitted by reason of insanity, here in the District of Columbia and are committed to St. Elizabeth's will actually be institutionalized for a longer period of time than if they had been convicted of the crime with which they were charged. PAGENO="0267" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 261 Now, this is something that I was not aware of until yesterday, but I am asking that they check it out and verify it, because I think the people of the District of Columbia should know this, because we are constantly told about the McGee case, that he was saying that he came here because the District of Columbia was "soft on crime." But the plain facts of the matter are that as of today, at this very moment, he is still under the jurisdiction of the trial court, and if the testimony of yesterday was correct, and I am sure it was, and we are going to check it out on a case-by-case basis, I think it is helpful and reassuring to the people in the District to know that these people are institutionalized for a period of time. Would you agree with that, Mr. Norwood? Mr. Nonwoon. Yes, sir, I do, and I have heard that same statement. Of course, I have no definite proof of it. I have heard the same statement made. But, on the other hand, it is true that. because of this defense of insanity criminals are turned loose on the community to- The CHAIRMAN. Well, how are they turned loose? That is just the point I am trying to make. How are they turned loose., because this is the common miscon- ception. I am just trying to .run this down. Paul McGee, who was acquitted by reason of insanity, is still under the jurisdiction of St. Elizabeths Hospital. However, he is on conditional release from the hospital and subject to conditions specified by the court in ordering his con- ditional release. Because we hear so much about Paul McGee, and I think we should, in fairness, say exactly what happened to him. following his com- mittment to St. Elizabeths Hospital. Thank you. Pardon my interruption. . Mr. NORWOOD. Thank you, sir. Prior to 1954, in the District of Columbia, a criminal defendant seeking acquittal by reason of insanity had to satisfy the right-wrong or irresistible impulse tests. Briefly stated, the right-wrong test is: "Did the accused know what he was doing, and did he know that what he was doing was wrong?" The irresistible test is: "Was the capacity of the accused to refrain from committing the act so diminished by insanity that he could not resist?" Some States .and . England utilize the right-wrong test as the only test of insanity. Other States, including the District of Columbia, have supplemented this with the irresistible impulse defense. By decision of the U.S. Court of Appeals for the District of Columbia Circuit these tests were replaced by the Durham rule in 1954. The Durham rule provides simply that a defendant is not responsible if his act was the product of mental disease or defect. Spurred by the Durham rule, the American Law Institute has given long and careful study to this problem. The American Law Insti- tute's proposal would allow a successful defense if the accused, as a result of mental disease or defect, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. This constitutes an updating of the tradi- PAGENO="0268" 262 AMENDMENTS TO CRIMINAL STATUTES OF D.C. tional right-wrong and irresistible impulse tests. This proposal has been codified by the legislatures of Illinois and Oregon. Arguments for Durham rule: Proponents of the Durham rule appear to use t.hree arguments in its support: 1. Courts following the right-wrong and irresistible impulse tests tended to exclude expert testimony on the nature of the mental ill- ness, limiting psychiatrists to testimony whether the subject was ca- pable of distinguishing right from wrong and of resisting impulses. Psychiatrists point out that these terms have no medical meaning, and it is undoubtedly true that restrictive rulings of judges kept relevant medical evidence from juries; 2. There was a general feeling that the traditional rules were con- strued too strictly, probably resulting in jail sentences for some per- sons who should, instead, have been committed to mental institutions; and 3. Psychiatry has developed immensely since the traditional rules were formulated, rendering those rules hopelessly obsolete. A majority of observers believe that there is much justification for the first two objections. Both the Durham rule, which now applies in the District of Columbia, and the American Law Institute rule, which H.R. 1932 would substitute for the Durham rule, would seem to satisfy them. The third objection probably reveals the true conflict between the Durham rule a.nd the American Law Institute rule. Wrhen it is said that the traditional rules are hopelessly obsolete because of the ad- vances of psychiatry, it is assumed that the traditional rules attempted to define mental illness. If the assumption is correct, the objection is valid.~ But many observers believe the traditional rules did not attempt to define insanity; they merely defined the moral elements of punish- ability-which are not medical tests-and stated that if mental ill- ness, regardlessof what kind or the manner defined, negated the exist- ence of the moral elements, the accused was not punishable. The Durhamru1~ makes no reference to any i.~iora1 criteria. It pro- vides merely that if a man is mentally ill, and the crime was a product of the mental illness, he is not punishable. The moral element is pre- supposed; it is assumed that anyone who is mentally ill, and whose act is the product thereof, is not morally blameworthy. The American Law Institute rule, on the other hand, restates the traditional rules and preserves the moral test. It provides that if a man knew he was doing wrong and could have refrained, he acted with evil intent a.nd is therefore blameworthy. This rule specifically renders the sociopath or the psychopath, whose abnormal behavior is manifested only by repeated criminal or otherwise antisocial conduct, responsible for his conduct. In case of clearcut mental abnormality, both rules lead to acqmttal by reason of insanity. But in borderline cases, where the mental illness is slight-for example, mildly sociopathic individuals-the Durham rule tends to lead to acquittal and the American Law Institute rule tends to lead to conviction, providing the jury feels the mental ill- ness was not of su~cient severity to excuse the accused. PAGENO="0269" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 263 The American Law Institute leaves the decision whether to punish to the jury. The Durham rule leaves only the medical facts of mental illness and product to the jury; the moral decision is an automatic con~ sequence of the medical findings. It might be fair to summarize the Durham rule as a medical test, and the American Law Institute rule as a moral test. There is a sharp split on whether a medical test or a moral test is best. Both views have respectable support. The fact of approval of the moral test by the American Law Institute is a factor not to be ignored. Consisting of outstanding attorneys, it is in a good position to weigh the rights of the individual and the public, and its deliberations have been thorough and scholarly. Title II proposes legislation only for the District of Cohimbia. Any such legislation should constitute an effort to balance the interests of the public and the accused. Prior to the adoption of the Durham rule in 1954, according to a recent report, less than 1 percent of the criminal cases tried in the U.S. District Court for the District of Columbia resulted in verdicts of not guilty by reason of insanity. And it was only yesterday testimony was given before this com- mittee indicating that the current rate approaches. 13 percent of all defendants tried. The CHAIRMAN. Well, again, the point that I make and I am asking the staff to check through this very carefully, even though you arrive at these percentages, those defendants are still institutionalized at St. Elizabeths? Mr. NoRwooD. That is right. T he ChAIRMAN. This is the point that I ani making. They are in- stitutionalized, and certainly society is safer from the particular in- dividual during the time of incarceration, whether he is in the peni- tentiary or in an asylum. Mr. NoRwooD. Well, I think the validity and the justifiction of the points that you are bringing up now will be covered and brought out later. The CHAIRMAN. Yes, fine. Thank you very much, Mr. Norwood. Mr. NoRwooD. Yes, sir. Summary of the point by which title II of H.R. 7525 improves upon the existing law: In the following respects, title II accomplishes a decided improve- ment over the existing law: 1. The Durham rule is too general in its definition of mental disease and defect. The proposed title II provides a working formula. which has the approval of the American Law Institute. 2. Under the Durham rule and related cases, the "some evidence" rule imposes the impossible burden of proof on the Government. The proposed language places the burden where it belongs. It iniposes upon the defendant the duty of establishing his defense by substantial evidence. 3. The present law does not require the defendant to~ give notice of his defense. The proposed title II places that burden upon the defendant. This will reduce the use of the defense of insanity in a j ustice-thwartirig maniier. PAGENO="0270" 264 AMENDMENTS TO CRll~IINAL STATUTES OF D.C. 4. Under the Durham rule and other cases, the psychiatrist has be- come the arbiter. Under title II, as proposed, the factfinding func- tion will be returned to the jury where it belongs. 5. The Durham. decision and other cited cases permits ad hoc appel- late treatment. Under title II of the bill, the standards will be so clear that there will be guidance from case to case, thereby improving the ad hoc problem. G. Under the Durham. decision the concept of personal responsibility for crime is subordinated to general notions concerning mental disease or mental defect. This title of the bill will return to the law the prop- osition that when a person is capable of controlling his conduct he is responsible for his crime. This return to ideas of personal respon- sibility is essential to law enforcement in the District of Columbia. 7. Under the Durham decision, there is little or no guidance regard- ing the meaning of the words "causation" and "productivity" as they are incorporated in the Durham rule. The proposed language will eliminate the confusion arising in this area by returning to the law the proposition that when one has a free will and is capable of con- trolling his activities, he is responsible for the wrongs which he commits. 8. Under the Durham decision, defendants such as Paul McGee may choose the District of Columbia as the place for their criminal be- havior. Title II of H.R. 7525 will eliminate one basis for the selec- tion of the District of Columbia as a place within which to commit crime. Thank you, Mr. Chairman, for the opportunity to appear before the Senate District Committee today and express the views of the Metropolitan Washington Board of Trade in support of title TI of H.R. 7525. Just at this point I would like to give a quote from a recent tele- vision editorial on this general matter of crime prevention, and I have a comment on it. The police here need more tools, not less, to carry out their job in tracking downand questioning suspects, but they need something else and that is tangible public support. We have a situation in which victims, for fear of publicity, won't take their cases to the police, of witnesses who will watch biit will not testify, of too many leaders who won't take a public stand and, consequently, of criminals assured in the knowledge that if caught they will probably never be convicted under the system. The cops have become their patsies. Those who are suffering are the decent citizens who want no more of living in the district. They are moving out, and the city's businessmen complain that suburban Maryland and Virginia families won't shop in this jungle, and that tourists are reluctant to visit here. They are right, but if the same businessmen will, instead of complaining about the chaos, if they will support the Washington Board of Trade and Police Chief Robert V. Murray in the belief of stronger law enforcement procedures then Congress in the omnibus crime bill may correct what is becoming a grim and sorrowful situation in the Nation's Capital. Now, since our sessions last week on titles IV and V, I have heard several comments, and I believe you made the comment that you were surprised at the public apathy on these bills. Since this hearing last Thursday at which I appeared I attended two organization meetings and one social gathering, and I had an opportunity to bring this matter up in a brief discussion of the crime situation. PAGENO="0271" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 265 I said that part of the problem is that "You folks, you intelligent citizens, when there is a hearing, you do not appear and you do not say anything about. "If you did, I am sure that the congressional committees, the Senators, and the Representatives, as the case may be, will be impressed." S And here is the reaction that I got, right or wrong. Those who are Oovernment employees, either District or Federal, said that they were afraid to come here `1 hey did not know how the Hatch Act would apply to them. S They said they were afraid of reprisals either at the home location or in their offices. They were interested, and they would liked to have said something, but they were just afraid to do it. S `1 lie Cu Uw\IA~ WTe11, I am sure that they have no fears on that score They `ire American citizens just the same as everybody else Certainly the Hatch Act does not apply- S Mr. NonwooD. Well, there was that situation and it was amazing to me, the l'ick of underst'indmg They were afraid that in their testimony they may say something that i~ as contrary to Government policy or that might be interpreted as trying to tend to influence somebody unduly I tried to convince them that this did not apply but that fear was thei e and they were not going to take a chance The CHAIRMAN Well, I have been in Government many, many years, and I have found many Government employees, both in politics and elsewhere, who are always happy to hide behind governmental immumty. S And I have always thought . Government employees, once they get locked in under the Hatch Act or under the civil service, they are scared to express themselves because it is just much easier to go along that way Mi ~ ORWOOD I h'it is true They just were not going to take a chance, and I think that these people who were talking were sincere in their belief, right or wrong. S The CHAIRMAN I am sure they were One of the difficulties in this field, and I think we mustface it. We are all trying to work to Ihelp strengthen o~ir law enforcement agencies, but certainly we must do it within the Constitution There are certain constitutional safeguards of which we are well aware, and we are grnded by those You cannot just write any kind of a law you want and expect to get this problem solved, because the laws you write must pass constitu- tional tests There is no need of us passing laws when they are not gomg to be upheld by the courts. This is one of the real problemsthat we have. But I do appreciate your statement and your appearance here, Mr. Norwood. I have at all times urged every citizen, Government employees, and those who think they are under the Hatch Act and those who do not, to take a more active part in Government on every possible level because this Government can be just as effective as the citizens who make it. I would like to ask you this one question. PAGENO="0272" 266 AMENDMENTS TO CRIMINAL STATUTES OF D.C. In reading your statement and your research paper, I do not see that you mentioned the McDonald case in any words along the way, and I am wondering if this statement that you have given me on behalf of the Washington Board of Trade was worked out prior to the McDonald decision. The testimony we have had to date and, of course, this is a recent decision, of October of last year, has been to the effect that the Durham rule has been considerably improved as a result of the McDonald decision. Mr. NORWOOD. That is our understanding, that the McDonald de- cision has been a step in the right direction, which has implemented and cleared up some of the questions and the complexities involved. The CHAIRMAN. Your prepared statement made no reference what- ever to McDonald, and I thought ouite possibly it had been prepared before the McDonald decision was decided. Mr. NORWOOD. No, this statement wa.s prepared within the last: week or 10 days. The CHAIRMAN. I understand. Mr. NORWOOD. Yes, and I have just one other brief comment. Some of these individuals that I was talking to said that it doesn't do any good for them to come up here. "We do not represent an organization and they do not pay any attention to us." And I said, "I think if you had appeared before Senator Bible last week he would have paid some attention to you." The CHAIR~L~x. I certainly would have. I like to hear from the citizens at all `times. Mr. NORWOOD. Thank you, Mr. Chairman, for allowing me to appear~ The CHAIRMAN. Thank you very much. We are always apprecia- tive of you coming before us.. Our next witness is Col. William £ Roberts, president of the Dis- trict of Columbia Federation of Citizens Associations. The CHAIRMAN. Colonel Roberts, we are happy to see you again. STATEMENT OP WILLIAM A. ROBERTS, PRESIDENT, DISTRICT OP COLUMBIA PEDERATION OP CITIZENS ASSOCIATIONS Mr. ROBERTS. Mr. Chairman, for the record, I am presently presi- dent of the Federation of Citizens Associations, and my testimony today is for the purpose of bringing before your corñmittee the report of action of the law and legislative committee of the federation itself, at its most recent meeting this year in regard to H.R. 7525. For the information of the committee, my experience in connection with the District of Columbia dates back over 33 years as People's Counsel, Acting Corporation Counsel in connection with numerous civic matters. Some 30 years ago I was, for two terms, president of the Federal Bar Association. I have had a constant interest in connection with District of Colum- bia and Federal Bar Association matters with regard to problems of criminal and civil laws as applied to the District of Columbia. The action of the, federation, in condensed form, was presented in a letter which is in the hands of the committee and it was signed by U. H. TJlman, chairman of the law and legislative committee, and I would like to ask that that letter be made a part of your record. PAGENO="0273" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 267 The CHAIRMAN. That letter, addressed tO me, under date of October 15, and signed, as you indicate, by Mr. Tjlman, chairman of the law and legislative committee will be made a part of the record at this point. (The letter referred to follows:) FEDERATION OF CITIZENS ASSOCIATIONS OF THE DISTRICT OF COLUMBIA, October 15, 1963. Hon. ALAN BmLE, Chairman, Committee on the District of Columbia, 17.2. Senate, Washington, D.C. DEAR Mn. BIBLE: I am writing to you to State for the record the position of.. the Federation of Citizens Associations on H.R. 7525. At the first regular meet- ing of the federation which was held Thursday evening, October 10, the full membership considered certain provisions of the bill and took the following action: TITLE I The federation voted to support the language of section 101(a) of the bill pro- viding that confessions which are otherwise admissible shall not be considered inadmissible solely because of delay in arraignment. TITLE II Without suggesting specific language the federation voted to endorse appro- priate legislation to restore the "right from wrong test" in criminal proceedings where insanity is raised as a defense. TITLE III The federation voted to endorse legislation to make investigative arrests available to the police department when the arresting officer has "probable cause to believe" the suspect has committed, is about to commit, or is committing a crime. TITLE iv The federation voted to endorse section 401 which adds "robbery" to the list of definitions of crimes of violence. TITLE V The Federation voted to endorse the increases in minimum sentences which are contained in the several sections of this title. We regret the delay in reporting the position of the federation concerning this legislation but felt that because of the importance of the measure we did not want to state the position of the federation until after the full membership had bad an opportunity to consider the bill as it passed the House of Representatives. Sincerely yours, Lnwis H. ULMAN, Chairman, Law and Legislation Committee. Mr. ROBERTS. Now, the action of the federation is directed to cer- tain parts of the bill. The federation took no action with respect to the omnibus bill as a whole, either affirmative or negative. It dealt with certain parts in which there was a very great interest, and I might say that no one could follow the affairs of the federation or of its 46 member bodies for the last several years without being aware of the extreme concern of the federation over the constant increase in crimes of violence in the District of Columbia and what, in their opinion, constituted inade- quate methods for prosecution, conviction, and prevention of such crimes. The federation is very highly concerned and it consists, to a great measure, of older people who have had occasion to note the lack of 25-200-64-pt. 1-18 PAGENO="0274" 268 AMENDMENTS TO CRP~IINAL STATUTES OF D.C. security in their neighborhoods and they are very deeply impressed with the need for some kind of action which will improve the situa- tion with regard to crime, and danger in the District of Columbia. With regard to the specific action in the letter it will be noted that under title I the federation addressed itself to 101(a), and it was the federation's position that they would support the language in that section~ providing the confessions, which were otherwise admissible, shall not be considered inadmissible solely because of delays in arraignment. In other words, they confined themselves to the single' question as to whether or not a mere delay in arraignment could cause a con- fession or similar evidentiary matter to be excluded from a prosecu- tion of a. criminal. Without suggesting specific language, the federation, under title II, voted to enforce appropriate legislation to restore the right from wrong test as the federation termed it in criminal proceedings where insanity is raised as a defense. In this cOnnection I feel confident, from the debate-it was a ma- jority determination and a strong one-they expressed great concern and confusion concerning the many different variations from the Durham rule. Essentially, they are trying to return to MWa,qhten, as it was orig- inally enforced, substantially without modification, that is the moral test of right and wrong a.nd without what they consider to be means of evasion available to a criminal under which he avoids responsibility for his action. In the report of the law and legislative committee, neither the re- port of the law and legislative committee or the action of the debate of the federation went into the many provisions of the omnibus bill and att.emptinu~ to clarify~ if you choose, the A['Z'Taghten rule or to modern- ize the M'Nagliten rule and to provide protecting devices for the pro- tection of the public from a criminal who might be acquitted by reason of insanity or who might be held not to be responsible by reason of insanity. The CHATRMAN.. Well, of course, protection of the public. A man who is found not guilty by reason of insanity, is committed to St. Elizabeths Hospital, and is that. not protection of the public? Mr. ROBERTS. Quite obviously, under the M'Naghten rule he was acquitted and he was freed because we did not have 200 years ago the means formental care and the knowledge The CHAIRMAN. I am talking about the District of Columbia as of today. Mr. ROBERTS. Under the Durham rule, as modified by the M'Naghten rule, the person charged with a criminal offense, and where there has been a; failure to establish the fact that he is not insane, and he has alleged insanity, he is, of course, committed to St. Elizabeths Hospital. In a very great mea.~ure, as is quite obvious to anyone who is aware of the situation, the difficulty which the public fears the greatest is not the fact that the. man is put in an insane asylum, instead of a prison, but it is the fact that St. Elizabeths Hospital itself is not an adequate recentacle for either the custody or the improvement or the tesHng of the alleged criminal when he is confined. The CHAIRMAN. Well, I suppose if that is true though, it is not the fault of the law. PAGENO="0275" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 269 It is probably the fault of the Congress, or possibly the District Commissioners in failing to provide sufficient money to adequately staff and give the facilities to St. Elizabeths that its needs. Mr. ROBERTS. Mr. Chairman, there is no question about that fact, Tthat St. Elizabeths has been overloaded for years and has never had its required appropriations for either physical facilities or, which is vastly more important, for the manpower at the present price of psychiatrists as compared with the price of psychiatrists before they became so popular some years ago. The fear clearly is that it is insecure in two aspects, first, physically insecure, so that dangerous persons who are in fact, criminally con- fined, can escape and can again attack the population and, secondly, it is insecure in the sense that there is a lack of confidence in the test measures of the staff of St. Elizabeths as to the tests they apply in the final release of the prisoner. . . I am sure that this very largely motivates the public. The CHAIRMAN. I am interested in this field very much. I have asked the staff to check out every single case, since the Durham decision, as to what has happened to defendants who have been acquitted by reason of insanity, if they have been committed to St. Elizabeths, how long they have been held there, when were they re- leased, and what test was applied when they were released. I was very much impressed yesterday by the testimony of Dean Pye, the iestimony of Dr. Overholser, and Dr. Guttmacher, from Baltimore, :and particularly Dr. Overholser to the effect that, statistically, that `tho~e committed to St. Elizabeths Hospital were institutionalized for a longer period of time than they would have been if they had been convicted of a crime as a sane person. To me, this is. a very interesting statistic, and I am going to ask the staff to check it out so we will have a case history of `this, because I think this is a message that should go to the community as soon as `we have established its veracity. Mr. ROBERTS. Senator, I think, that is of the utmost importance, and I would like to suggest, with reference to the environment in which most of the thinking, considering this legislation, has occurred. For example, in U.S. News & World Report, the October 21 issue, which is coming out or was coming out at the time of your hear- `ings,.there is a many-page interview with Robert B. Murray, the Chief of Police- The CHAIRMAN Yes, I read it very carefully Mr. ROBERTS. And this, of course, sets forth, I presume, in the words of the Chief, of Police, to a large degree that certainly to some degree, in the words of the writers of the interview, a very strong position which, in effect, says nothing at all about any inquiries into the criminal rate which may be available to the prosecution methods but, on the whole, attributes the entire increase in crime and the alleged desirability of the District of Columbia as a home for criminals to ~deficiencies in the system of judicial execution, to the improper con- duct of the bar, and to the weaknesses of the system at St. Elizabeths. I think that in order for the committee to fully consider the aspects of the omnibus bill the committee should realize, as I know it does, "that there have been for several years now certainly since the Durham rule and before, a very strong and persistent publication of conclu- PAGENO="0276" 270 AMENDMENTS TO CRIMINAL STATUTES OF D.C. sions with respect to criminal law, and to the care of criminals which is bound to be read, and it is bound to affect the opinions of the in- telligent people in the District. The CHAIRMAN. I agree with you. Mr. ROBERTS. In that article I notice the Chief of Police said, con- cerning insanity-this is all a great discussion on the~ subject of the Dur/taim rule about people who have never read it and about the whole treatment of this problem, and he says merely: Question. Have court decisions on insanity here affected law enforcement? He answered: We think they did at first but after they got the law amended, so that anyone pleading insanity would be committed and then brought back for trial if they recovered, the number of cases dropped off. I don't think it is a real big problem now. One single question and answer directed toward something that is occupying or has occuj?ied hundreds of columns of newspapers and editorial comments, which has agitated and disturbed citizens and which, I am sure, has affected the courts. It seems to me that the publication of such articles on a nationwide basis, together with uncensored statistics therein contained, may ac- count to a degree for the uncertainty of public opinion, andY they certainly should not overaffect the determinations of the Senate and the Congress in. applying criminal laws to the individual. The CHAIRMAN. Well, I could not a.gree more with the section to which you have just referred. I happened to read it before we started our hearings on Tuesday, and I specifically asked the Chief of Police the following question about the section to which you have just referred. Now, does that statement iii the U.S. News & World Report correctly reflect your views on the present handling of insanitycases in the District of Columbia? Chief MURRAY. Yes, sir, it does, plus the fact that there was a change about a year ago in the McDonald decision, and in talking to Mr. Acheson, he says that has modified the Durham decision a good deaL The CHAIRMAN. The answer attributed to you says, "After they got the law amended." I assume you meant by that, after the law was modified by case law? Mr. MURRAY. Yes, sir. The CHAIRMAN. By the decision in the MeD oi~akl case? Mr. MURRAY. Yes, sir; thatis what I meant. The CHAIRMAN. Now, in view of what you have said in the U.S. News & World Report, would it be your judgment that there is or is not a need for a statutory provision such as is contained in title II of the House bill now before us? Chief MURRAY. No, sir; I am willing to go along with Mr. Acheson, that the present court decisions do not make it as difficult as when the Durham case was handed down. The CHAIRMAN. Yes. I am limiting myself entirely to the Durham problem, that is title II. But what you have said here is, "I don't think it is a real big problem now." That is the way you feel? Chief MURRAY. That is correct; yes, sir. The CHAIRMAN. On questions dealing with insanity, that the decisions in the~ District of Columbia do not hurt law enforcement? Chief MURRAY. No, sir; not like they did when the Durli am decision first came out. The CHAIRMAN. I understand that the Durham decision was modified by the McDonald decision. Now, in the light of the McDonald decision I understand you to be saying that you do not think that the decisions on insanity pose any big problem as far as you are concerned, as a police officer. Is that correct? Chief MURRAY. That is correct. PAGENO="0277" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 271 The CnAIR~rAx. This.was Chief Murray's testimony on the day be- fore yesterday, Tuesday, October 15. Mr. ROBERTS. In that. connection, I should make very clear that the position of the federation is that they want the law amended or the law defined to include the right-from-wrong test as stated in their resolution. I call attention, however, that under title II the proposal of the bill is an attempt to place in statutory words the right-and-wrong test. When a notice of intention to rely on the defense of irresponsibility has been flied an opinion as to the extent, if any, to which the capacity of the defendant to know or appreciate the wroingfulness of his conduct or to conform his conduct to the requirement of the law was impaired at the time of the criminal conduct, which is as near as I can determine a statutory effort to define the right-and-wrong test and the capacity to recognize right from wrong at the time. As I look upon the statute it does more than merely clarify, however, the McDonald modification of the Durham) rule and is more an attempt to reestablish, in modern aspect the M'Naughten rule than otherwise, as for example merely to say that the present court decisions do not impair criminal prosecution in the District of Columbia or successful criminal prosecutions, would not take away the desirability of the bill with regard to the precise standards that a person who has been ac- quitted by reason of insanity, to use a trite way of saying it, and has been confined in an institution, can then be released to the public. The act was very useful to the extent in which it tries to place in a vague realm the jurisdiction of the psychiatrists and the doctors some rule for them similar to the rules that have for hundreds of years been applicable to the judges and the juries. So I do not think that it is sufficient to say that there is no need for the bill or its provisions merely because there appears to be an ad- justment to the methods of prosecutions where the allegation of the defense of insanity has been presented. Mr. ROBERTS. The third matter that the. federation expressed itself quite firmly on was the question of title III, with regard to investiga- the arrests in which the constitutional protections were invoked and administrative action taken in the District of Columbia to restrict the police from the so-called investigative arrests or arrests on suspicion. They are satisfied with the language that where the policeman may make the arrest he has probable cause to believe that the suspect has committed or is about to commit or is committing a crime. There were variations of that opinion expressed in connection with this matter, and I would attempt to substitute, in some instances, dif- ferent language. I think the determination of the federation, in accepting the lan- guage of the bills, is based on the great hazard involved in trying to set up new language for something that has been established by rulings of the courts for a great many years, and I think it is clearly under- stood what "probable cause" means. It has been defined innumerable times in closely tried criminal cases. There is no doubt of their position that they want to restore to the police the opportunity to be certain that they can make an arrest when there is probable cause, but I think they should be equally credited PAGENO="0278" 272 AMENDMENTS TO CRIMINAL STATUTES OF D.C. with knowledge of the constitutional provision that, without any cause at all, the use of police-state methods would not be. considered to be satisfactory to the federation. Under title IV the simple statement is made that the federation. voted to enforce section 401, which adds robbery to the list of defini- tions of crimes of violence. That was the only action they took with respect to the section, and II have no comment upon it. Now, as to title V, in a closely divided vote and after vigorous de- bate, the federation voted to endorse increases in minimum sentences; and the establishment of mandatory minimum sentences as contained in several sections of the title. That is the federation's action, and I am so reporting. Reverting to the subject of the 27i'Naghten rule, or Durham. rule, or whatever name you choose to apply to it, I believe the committee has had an opportunity to see an article entitled "M'Naghten Rule and Proposed Alternatives" by Jerome Hall, which appears in the current issue of the American Bar Journal. I call attention t.o this authority, and he is an authority, and he is very skillful, and he ends up the review by saying CC~\T~ ought to study it. more" and I would like t.o make reference to that article in case- The CHAIRMAN. It has been incorporated by reference in the hear- ings, Colonel, and it is our hope and our pre.sent understanding that the author of the article will appear before. this committee personally. Mr. ROBERTS. Fine. The CHAIRMAN. Because Mr. Jerome Hall is recognized as one of the leading legal authorities in the very difficult area. which we a.re holding hearings, and we do contemplate having him appear before this committee as a wit-ness. Mr. ROBERTS. I would like to conclude my statement by saying tha.t tl1e federation's general attitude on the subject of the onmibus crime- bill is one of a very firm determination to aid the police organization of the District of Columbia a.nd the processe.s of the courts in trying- to get a correction in the prevalence of crime and to reduce the fm- quency of crime, unpunished crime and repetitive crime in the Dis- trict of Columbia, very strongly, whether it be by increased appropria- tions, increased policemen, increased efficiency, or otherwise and, sec- ondly, they are very appreciative of the length of time that has been allocated by both the House and now by the committee of the Senate to this subject and its cognizance of t.he constitutional provisions tha.t~ govern. The CHAIRMAN. Thank you very much, Colonel Roberts. We always appreciate your appearance here as one of our witnesses. Mr. ROBERTS. Thank you. The CHAIRMAN. We will stand in recess until next Tuesday at 10~ o'clock. (Whereupon, at 12 :10 p.m., the committee was adjourned to re- convene at 10 a.m., on Tuesday October 22, 1963.) PAGENO="0279" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS, AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA TUESDAY, OCTOBER 22, 1963 * TJ.S. SENATE, COMMITTEE ON THE DISTRICT OF COLUMBIA, Washington, D C The committee met, pursuant to recess, at 10 `i m, in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presiding Present Senator Bible Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard~ E. Judd, professional staff member The CHAIRMAN. The committee will come to order. This is a continuation of our hearing on H R 7525 Although we have not concluded our examination on title II, the so e'tlled Durham rule, i~ e will commence this morning with title I, with what is referred to as the Mallory rule We still have several witnesses to hear on the Durham rule, but they cannot be present tothy liVe will hear them at ~ latei time Our first witness this morning on title I will be Oliver G'Lsch, former U S attorney in the District of Columbia, and p~tst chairm'rn. of the District of Columbia Law Enforcement Council. Ag'i~rn my thanks and `ippreciation to you, Mr Gasch, for your courtesy in appearing and giving us the benefit of your vieu s on title I STATEMENT OP OLIVER GASCH, ATTORNEY, WASHINGTON, B C Mr. GASCH. Thaiik you, Senator. I appreciate the opportunity of stating my views. As was the c'Lse in my testimony concerning the Americ'in Law In stitute formulation on insanity as a defense in criminal cases, the views I expressed are my own and are not to be attributed to the Bar Association of the District of Columbri, of which I am an officer This morning I should like to address my remarks to rule 5A and its interpretation in the Mallory case. I think the key sentence in that decision is the requn ement of rule is part of the procedure devised by Congress for safeguarding the rights of the individual without hampering effective and intelligent law enforcement. I say that that is the key sentence because I believe that sentence provides~ the basis wherein Congress may examine the effect of the 273 PAGENO="0280" 274 AMENDMENTS TO CRIMINAL STATUTES OF D.C. IWaiior~y decision and make a determination as to whether in its judg- ment either the rights of the individual are being safeguarded or whether effective and intelligent~ law enforcement is being hampered by that decision. In short, the Court recognized the need for a balance between these two competing forces-recognizing and safeguarding the rights of tue individual on the one hand, and maintaining effective and intelligent law enforcement on the other. I think it is important that we look into this situation insofar as it applies to the Nation's Capital, for recent statistics indicate that our city is either in the lead or is second in the Nation for cities of com- parable size insofar as the crimes of robbery and aggravated assault are concerned. It is not that I am less interested in safeguarding the rights of the individual than some others: it is that more emphasis seems to have been given this side of the balance than the side which pertains to the maintenance of effective and intelligent law enforcement-that I should like to speak about the latter consideration. I should like to emphasize that we are not seeking legislation for the benefit of the police; we are seeking legislation for the protection of the innocent, potential victims of these crimes in which Washington leads the Na- tion. I think *e should always bear in mind the situation which concerns the Miksa Mersons and the Newell Elliott, Juniors, and other people who innocently have walked the streets in the evening hours and have wound up victims of murder. Now, some consideration has been given to the meaning and effect of rule 5A. And I agree that it is a very salutary provision to require the police to take the person arrested before a judicial officer without unnecessary delay. I also agree that no person should be arrested or could be lawfully arrested in this jurisdiction unless the police had probable cause to believe that he was involved in a crime. However, it is on the question of sanctions that I would like to direct these remarks. And I think in considering what Congress had in mind at the time it gave its authorization for the drawing up of the Federal rules, we should turn to the work of the Committee of the Supreme~ Court which drew up these rules. In my prepared statement which I have lodged with the committee, I refer to the place in the records of the Senate where this information is specifically contained. But in accordance with the testimony of Judge Holtzoff before Senator O'Mahoney's subcommittee of the judiciary, it appears that as that rule was first conceived, those. who drafted it st.ated specifically that if testimony were procured in violation of the requirement that the individual be arraigned without unnecessary delay, that that testi- mony would be inadmissible in court. When the full committee considered this proposed rule, it rejected it, Judge Holtzoff says, by a strong vote. And as the sanction was deleted from the committee work, it was approved by the Supreme Court and acquiesced in by the Congress. I think that circumstance is quite important, because it is with respect to the sanction that most of the difference of opinion exists today. PAGENO="0281" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 275 There are those-and I would say I have the greatest respect for them, both personally and professionally, like my friend Irving Fur- man of the American Civil Liberties Union-who feel that the sanc- tion is necessary in requiring the police to conform to rule 5(a). However, I would suggest for the committee's consideration that if the sanction is imposed and voluntary statements are excluded from evidence, it is the public that is penalized, not the police, and it is effective law enforcement that is penalized, not the police. It is to the extent that we should try to make law enforcement as efficient as possible that we should reexamine the theory of the sanction. It goes back to 1914 and the Weeks case. That was a search-and- seizure situation. And I am not going into a great deal of detail on that, other than to say that where you are dealing with one's home, and the opportunity of law enforcement to enter one's home, I think you are dealing with a substantially different concept than the question involved in the interrogation of one who has been believed to have been involved in crime. The sanction has a tendency to immunize the individual accused of crime from the effects of his wrongdoing, and could have a very unfortunate effect if we had a policeS force other than as honest as I believe our police force to be, because if a police officer wished to confer immunity for one reason or another upon a suspect, all he would have to do would be to detain him longer than the reasonable period for interrogation, and then nothing the individual has said could be used against him in court. And there is a tendency, reflected in the Killough case, decided about a year ago, to extend the Mallory rule. This involved a postarraignment, or postwarning confession, which some members of the Court felt very strongly should be admitted and considered by the jury. There is no question about the voluntary nature of it. But the majority of the Court felt it was tainted with. the illegality of the first confession, and therefore it was excluded * I have noticed in recent cases that this doctrine, by virtue of which the second confession was excluded in the Killough case, namely the fruit-of-the-poisonous-tree doctrine, the Z'7ardone doctrine, that defense counsel have made a renewed effort to inject this doctrine into all facets' of evidence learned as a result of detention, the legality of which they question. I would like to say to the committee that during the time I was U.S. attorney I recognized the importance of having a series of lee- tures for the guidance. of the police, for the information of `the police,. insofar as these decisions were concerned. Those lectures have been printed and are available to the committee.. The police made the suggestion originally that we have these lectures. And I think they havebeen. very effective. ` * Also I would like `to say we gave consideration to the Police Chief's request that we give suggestions to him as to how his work may be' made more effective a.s a result of the' impact of the Mallor!,' decision. I would like to file with the committee a statement which he has brought to my attention, which I gave him some 3 years ago for use with the Appropriations Committee on this subject. PAGENO="0282" 276 AMENDMENTS TO CRIMINAL STATUTES OF D.C. In brief, I suggested more men, men better trained, men who under- stood, the impact of this decision and who are prepared to work around the clock with it. AU this is costly. And I wanted the Appropriations Committee to know that.. But I felt. we had no alternative under this doctrine. Now, in spite of the fact that he has received what he considers complete cooperation from the Congress, insofar as his appropriation requests are concerned, the crime rat.e still continues to rise, he still continues to have these problems. And it is in the area of interroga- .tion of persons arrested .that I think he does need some help. I think that the statement made in title I respecting confessions and admissions otherwise admissible-by that. we mean voluntary in character-shall not be deemed inadmissible solely because of delay between arrest. and a preliminary hearing. . . I think tha.t would do much t.o take care of the problem with which we are confronted. The CIJAnu~rAx.. Well, at that point, Mr. Gasch, quite possibly you have covered it. in your prepared statement-as you know, the Depart- ment. of Justice and the TJ~S. attorney take the position that title I may raise constitutional problems. Now, 1. recognize, and I would like to have your comments on that-I recognize the Mallory rule does not turn upon a constitutional provision, it turns strictly upon the interpretation of "without unneces- sary delay" as written into rule 5(a). The Department of Justice,, in their letter to this. committee, dated September13, `1963, stated the following: Title .1 as passed by the House of Representatives is intended as a response to the Supreme Court decision in Mallory v. United ~State8 (354 U.S. 449 (1957)). However, . it raises serious constitutional difficulties in dispensing with safe- guards `which the Mallory rule assures to persons charged with crime. If a ëhange in some of the recent interpretations of the Mallory rule is to be legis- lated. certain essential safeguards should be preserved to save the bill from constitutional attack. The Mallory rule is a rule of evidence in criminal . trials. The rule excludes a confession from evidence if it was obtained during a period of "unnecessary delay" in bringing an arrested person befOre a committing magistrate. It is intended as a judicial sanction with which to enforce rule 5(a) of the Federal Rules of Criminal Procedure, which rule requires that an arrested person be taken without unnecessary delay to a committing magistrate to be advised of his rights and to receive a preliminary hearing. The Supreme' Court made it clear that the Mallory rule was intended to pre- vent law enforcement officers from delaying preliminary hearings for the pur- pose of eliciting confessions. This is as it should be. I would appreciate your comments upon that particular portion of the letter that the Department of Justice forwarded to this commit- tee concerning title I of the House passed bill. If I understand you correctly it is your opinion that title I of the House bill would stand a constitutional test. Mr. GAsCH. Yes, sir. In the first place, I would emphasize that what the Supreme Court was concerned with in the Mallory case was an interpretation of a procedural rule, 5(a). There is no indica- tion that the Court considered that they were dealing with a constitu- tional'situation. That is true also in the earlier McZ'Tabb case,. where they were dealing with certain statutes which required immediate arraignment. PAGENO="0283" AMENDMENTS TO CRIMINAL STATUTES OF DC. 277 They did not consider that a constitutional question was involved in that situation. Now, of course, it is familiar doctrine that the Court does not go to the constitutional provision if it can decide an issue on other bases. And that is possibly what would happen. But I would not assume or presume that there was a constitutional question here unless I had better indication than these facts seem to indicate. Now, of course, what the Supreme Court may do in the future is something that is very' difficult to forecast. But in the interests of the public, I would certainly not withhold the type of protection that I think title I gives because of the fear that the Supreme Court might subsequently make a holding-that is, of course, within their preroga- tive to do so. I would point out simply that if we adhere to the provisions of `rule 5(a), and if the court submits to the jury under proper instruc- tions the question of the voluntariness of the confession, as I am sure `they would, or the admission, that I do not see that you have a con- ~tItutional issue at that point. I would invite the committee's atten- tion to the fact that the criterion of voluntariness is the traditional criterion that' has been the basis of our decisions in this area since we have been a nation. Voluntariness is the criterion in England. Now, I think it is entirely possible that if the delay in the hands of the police amounts to unreasonable delay, that the court as a matter of I aw would exclude the confession. I h't~ e had lntim'Lte experience, `ts the Senatoi knows, with the judges of our local court, and I,know that they are mostscrupulous in protecting the rights of the. individual. And this was prior to Mal- lory as well. And certainly the judges of the appellate court are very careful to see to it that tainted evidence is thrown out and convictions which in any way flow from tainted evidence are reversed. So it would be my view that the rights of the individual are aide- quately being protected under the legislation which is proposed. The CHLURMAN. Thank you. Thank you for your response to that question. I did not mean to interrupt you, Mr. Gasch. Mr. GAscil. Well, `I had practically concluded, sir. I think that one comment on the comparison that is made with the FBI and its ~work perhaps is indicated. There are those who say that because the FBI is able to operate na- ~tionally without seeking such legislation, that it is not needed locally. I think there is an obvious difference between a city police force, a good city police force like ours, and a national organization like the FBI. The FBI handles a different type of crime generally than the com- mon law crimes of violence that we are concerned with in this area. The FBI is able to select most carefully its agents. And the FBI, of course, has the benefit of the national `resources, the international resources of `that organization. These mark the significant differences between the FBI and the local police force. A local police force must operate within the confines of its juris- diction. Because the FBI is able to operate without such helpful PAGENO="0284" 278 AMENDMENTS TO CRIMINAL STATUTES OF D.C. legislation does not mean that it is not necessary for a local police force. I repeat that it seems to me the essential question is the right of they individual to walk the streets in relative safety. In this jurisdiction today he does not have that right. We are leading the Nation insofar as these two particular crimes of violence are concerned-assault and robbery. And that is not a good situation for our Capital City. I feel if the police had this additional opportunity of interrogating individuals that would flow from this legislation, that it would have a most salutary effect, and for that reason I do support it. The CHAIRMAN. How far should such interrogation be permittedT Mr. Gasc.h? This seems to be the point on which all of this problem turns. In reading the Mallory decision, which is simply an interpretation of rule 5(a), the Supreme Court's decision made it clear that following an arrest there is to be very little more done than actually taking a.. case history of the suspect. It would seem to me that is about all it permits. Do you agree with that? Mr. GASCH. Yes, sir-very little delay between the point of arrest and the time at which the individual must be taken before a judicial officer for warning as to his right is permitted. The Court said that he may be booked and the usual police pro- cedures followed. It also says that a. brief delay is permissible for the purpose of checking his story. I would say it involves a matter of a couple of hours perhaps, some- thing like that.. And if I may say so, Mr. Chairman, when I was U.S. attorney we had an arrangement whereby, where preliminary hearings under rule 5(a) were necessary, they could be held in the middle of the night, and they frequently were held in the middle of the night-where we felt we were absolutely dependent upon. a con- fession or admission in a given case, and we wanted to minimize the opportunity of a reversal on this point. The commissioner judge was gotten out of bed, and they were warned of their rights. Now, I would say where every effort is made to expedite the judicial warning, that what transpires between the police officer and the ac- cused person prior to that time should be admissible, even under the Mallory doctrine, provided~ of course, the police are not seeking to delay this preliminary hearing. It is a difficult thing. I hate to get judges and commissioners out of bed in the middle of the night-but. we did so. In the Porter case, Mr. ~Justice Reed, sitting on the circuit by desig- nation, said it was not necessary. But there were differences of opin- ion among his colleagues on the c-ourt of appeal on that question. And 1 sought wherever possible and wherever we thought it was necessary t.o have these preliminary hearings just as soon as possible after the arrest where we thought it was necessary to comply with the restrictions of the Mallory doctrine. Now, while we are waiting for preliminary hearing or while we are complying with normal police practices, I think some questioning of the suspect is entirely proper. PAGENO="0285" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 279 I point out in my statement that some of the judges of our court of nppeal seem to take the position of the Trilling case, the dissent there, that no questioning between arrest and the preliminary hearmg is possible or is proper. One of the difficulties, of course, with which law enforcement has been confronted is that there is a sharp difference of opinion, reflected in the Trilling case, reflected in the Killough case, as to what the meaning and effect of the Mallory doctrine is. That is one of the things with which the prosecution and the police are confronted. Be- cause no one ever knows-at least 1 have never learned the secret of learning what panel you are going to get when you walk up to the fifth floor to argue an appellate case. You may have one panel, you might have another one. It would make all the difference in the world, depending on which panel you get. * The fact is there is a difference of opinion. I think this legislation, this proposed legislation, would clarify that situation. The CHAIRMAN. Of course the portion of the decision that disturbs me in the Mallory case is this sentence here. First I will read the pre- ceding sentence: The arrested person may of course be "booked" by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself even if not so designed to eliciting damaging statements to support the arrest and ultimately his guilt. Now, my inquiry of you, if this is the law of the land, and it is the decision of the U.S. Supreme Court in construing 5(a) as it now exists, what can the police do with the suspect? What can they ask him, if officers are not permitted to question the suspect about the crime? That sentence disturbs me. What can they ask him? Mr. GASCH. It is a disturbing sentence, there is no question about it, sir. I would agree with you. I recall one case, I think it was the Pearson case-reference is made ~to it in an interrogation by Senator O'Mahoney in the hearings before his subcommittee of some of the witnesses-I think it *as the Pearson case-rn which Judge Curran ruled that delay of about an hour was ~adequate to throw out the admissions and cbnfessions made for the reason that the police officer said "I took this man to headquarters to get a confession from him." So I think that it is a question of the purpose for which the man was taken to headquarters. If he was taken to headquarters primar- ily for that purpose, then, of course, Judge Curran or his brethren might feel as though admissions or confessions made were unlawful, to be excluded. On the other hand, if he was taken to headquarters for normal police procedures, such as booking and fingerprinting and the like, and ~incident thereto, while waiting for the preliminary hearing before the commissioner, there was conversation which resulted in admissions or confessions, then I think that circumstance would not necessarily exclude those admissions or confessions. The CHAIRMAN. I would like your comment on a couple of other points made by the Attorney General in his official report to us. He PAGENO="0286" 280 AMENDMENTS TO CRIMINAL STATUTES OF D.C. cites some of the extreme applications. He says, citing the Jone.~ case and the Musehette case: These more extreme applications of the Mallory rule suggest that any interroga- tion of arrested persons prior to presenting them to committing magistrates may result in the banning of confessions for unnecessary delay. This is an unnecessary and undesirable application of the Mallory nile. Interrogation itself is not a violation of due process or other constitutional rights. Interrogation, free of abuses, is a valuable investigative tool. Hence, within the framework of rule 5(a) of the Federal Rules of Criminal Procedure any legislation dealing with the Malkry rule should set up standards for the use of confessions and assure the presence of the essential safeguards assured to defendants by the Constitution and rule 5(a). It seems to me what the Justice Department is saying there is that. rule 5 (a.) is not to be used to cut off interrogation by tile police. But where do you draw the line? Mr. GASCH. Well, Senator, may I comment briefly on the importance of interrogation? I think it is the single most useful tool that the police have in solving crimes, particularly the type of crime that we get here in Washington-street crimes. Justic Clark, I think it was, in Crooper v. California emphasized that point, and sa.id, in the concluding paragraph of the opinion of the court, that to preclude interrogation by the police would have a deva.stating-that word is his word-devastating effect on law en- forcement. Now, on the question of whether legislation can set up appropriate standards for interrogation, I was impressed in reading over the testi- mony of Mr. Furman on that point-Mr. Furman of the AOLU- and his appearance before Senator O'Mahoney's subcommittee. He mentioned the judges' rules in England which had been set up for the purpose of deciding upon some standards for the control of the police in interrogating persons accused of crime. I thmk, perhaps, those standards could properly be drawn by the judges. Certainly, the manner in which the standards are applied in England is quite reasonable. They are not rigidly applied. They have some flexibility-in accordance with what Mr. Furman said about them. I recall my conversation with the English Attorney General when he was. over here, perhaps 5 years ago, to address a ba.r association dimmer. He said that these standards were applied, as he put it, with intelligence, and they did not constitute. an impediment to effective law enforcement. He also was somewhat impressed by what I told him our restrictions were tirnewise. and he said in England, fre- quently, the delay between arrest. and preliminary hearmg amounted to a week. But he said, at tile expiration of that week, their rules require tha.t the Government divulge all its evidence to the accused and his attorney. So there was quite a meaningful pretrial at that point 111 the government's case. WTe have never gone that far, though there is a present tendeucv-witness the afternoon program of the Judicial Conference last year-to go into the question of criminal discovery. But I see no reason why standards should not be established. I think, perhaps, it. would be more effective for the judges in this country to set. up those standards as they have in England. But I think that if we get into the drafting of standards as I understand PAGENO="0287" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 281 the pi oposed Justice bill to do, w e may h'ii e `i situation that is cornp'u able to `in `urpline thit is bmlt with such safet~ th it it ne~ er gets off the ground It so happens, atthe present time, I represent the aircraft builders, and I recently had occasion to go into the construction of landmg- gear struts and that kind of thing in connection with an accident here loc'dl\ Metallurgists `md engineers Ii I\ e `tssui ed me th~~t you can build `i strut so stiong th'mt it will ne~ ci fail, but it will constitute such `in impairment in the paylo'td ol the `uiplane th'mt there is no poiiit in designing such' an airplane. I think, with legislation that w utes in `is many standards `md safeguaids is you c'in thmk of, it will not be very effective insofar as intelligence law enforcement is con- cerned. The CHAIRMAN. What safeguards do you think should be written in to meet the constitutional test? Should not the defendant be ad- vised of his right not to make a statement, but if he does that it might be used against him? I suppOse you would certainly agree to that. Mr GASCH Yes The CHAIRMAN. Do you agree that upon an accused being taken into police custody that he should be immediately told he has the opportunity to consult with an attorney ~ Mr GASCH This raises a sei ious question And I am thinking of the Cicenia and Crooleer cases in the Supreme Court, in which that wa.s the issue. Both these men demanded lawyers. One was a case, in New Jersey-Uicenia. The Croolcer case was in California. I think it was in the Cicenia case that the courts said, "We have not gone so far even in Federal jurisdiction as to require that arm individ- ual be given the services of a lawyer at the police st'ition" And 1 mention the Cwenza for another reason The CHAIRMAN.' But should he be advised of his right to have a lawyer immediately? Mr GASCH Well, I do not have any real objection to that But I think that gets you into the point of the providing of a lawyer before there can be any interrogation. I think if you do that, you will find that `there will be' no interrogation, because any lawyer-any lawyer that I Imow-would certainly say first off to his client "Don't talk." That would be under the interrogation. The CHAIRMAN. Well, what type of interrogation, then, would the police engage in view of the Mallory case? It seems to me the Mallory case allows the police to do very little except to get a biography of the man. Mr. GA5CH. The Mallory rule does not provide much of an oppor- tunity. The CHAIRMAN. For interrogation." Mr. GASCH. That's correct. But it does provide some opportunity, and I think that opportunity should be preserved. The CHAIRMAN. An opportunity to discover what, Mr. Gasch? You pick up defendant X, and he is a suspect. Upon what can you interrogate him? `Mr. GASCH. Well, oftentimes you can find out where lie has been, with whom he has been, what they have been doing, and you can establish a basis for further investigation of the case PAGENO="0288" 282 A~IRNDMENTS TO CRTh~U~AL STATUTES OF D.C. Now, I would agree with the Mallory case, as I said earlier, that the police should arrest only on probable cause. I do not disagree with the Horsky report on that point. Presumably, the police have before them one who has committed a crime, or at least who is pre- sumed, who is believed to have committed a crime. The police have probable cause to believe he has committed a crime. The CHAIRMAN. Well, that being true, why don't they take him immediately before the committing magistrate? Mr. GASCH. Well, there is a difference, sir, between probable cause, the prima facie case which the police need for the presentation of the case before the grand jury, and guilt beyond a reasonable doubt, which they need to establish if the case goes to court. So even though they may have probable cause, additional investigation is necessary, and interrogation is part of that investigation, as I see it. The CHAIRMAN. I realize this is a most difficult area. Mr. GASOH. No question about it, sir. The CHAIRMAN. I am just wondering if you can write it into legis- lation, the proper guidelines, to come up with a constitutional pro- vision that adequately protects society and at the same time protects the constitutional rights of the defendant under the various provisions of the Constitution. Your opinion is that the present title would be constitutional. Mr. GASCH. That's my opinion. The CHAIRMAN. Of the House bill. Does counsel have questions? You know Mr. Mcintyre very well. He is a former assistant U.S. attorney. He suggests this question: Under the so-called Mallory provision contained in the House bill, statements and confessions would not be inadmissible because of delay in taking an arrested per~ son before the commissioner. If this is so, what if anything would motivate the police to exercise any measure of expediency in taking an accused in their custody before a U.S. commissioner? Mr. GASCH. Well, if the confession is the product of unreasonable delay, I would say as a matter of law the trial judge would exclude it. If there is an issue as to whether* the delay is reasonable or other- wise, then it is for the jury. That is a proper safeguard, I think, to the rights of the individual. The CHAIRMAN. Of course the present wording is, "because of delay," and as you very well IRcall during the hearings that were conducted before Senator O'Mahoney's judiciary subcommittee on the admission of evidence in 1958, there was written into this par- ticular provision the word "reasonable delay." Mr. GASCH. I have no objection to that addition. In fact, I think it is implicit in the language that it be there, because if the delay were other than reasonable, it would certainly bar the admission of the confession or admission. The CHAIRMAN. Would you also favor a proviso being written into title I of H.R. 7525 that is similar to that which was written into H.R. 11477, 85th Congress. Such proviso reads as follows: "provided that such delay is to be considered as an element in determining the volun- tary or involuntary nature of such statements and confessions." This proviso was added at conference. Then as you may recall the matter came back to the Senate side, it was late in the session, and the con- ference report with regard to H.R. 11477 was not adopted. PAGENO="0289" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 283 Mr. GASCH. There was a point of order raised. The CHAIRMAN. That's right. Mr. GASOH. I think this also is implicit. I do not think it is neces- sary to put that language in It could be left in the committee report But I think it is implicit that it is one of the elements to be taken into consideration. I am sure that would be the first thing that any trial judge would think of, as to whether the confession or admission is the product of an unnecessary delay. The CHAIRMAN. A further question. Is it a fact since the Mallory decision was decided by the Supreme Court several cases decided by the IJ.S. Court of Appeals for the Dis- trict have sanctioned the questioning of an arrested person prior to his being taken before a U.S. commissioner in order to verify his story concerning the commission of a crime? Mr. GASOH, Yes, I think that's true. The CHAIRMAN. And is it also true that they verify it through third parties, when they are available, as to the commission of a crime? Mr GASCH Yes The CHAIRMAN Does it appear th'it if the appeal court decision were to be extended any further. in the matter of allowing police to verify an arrested person's story, that the questioning by police might a~sume the n'uiure of a proceeding th it would provide opportumty for exti action of `t confession ~ Mr. GASOH. Well, of course I think you cannot draw a line, as some of the legislatiOn seeks to do, to say ~the police should have 6 hours Or 12 hours, as Senator Butler's bill did some years ago I think that the period of delay between the arrest and the preliminary he'iring must be a reasonable delay, and if anything other than a reasonable delay is encountered, during that additional period the confession is obtained, then I would question whether the court would permit that confession to be considered by the jury The CHAIRMAN. Who determines the voluntariness of the confes- sion in the District of Columbia, in the District courts? Is this de- termrned by the judge without the jury ~ Mr GA50H If there is no factual issue, it is determined by the judge. The CHAIRMAN. In the absence of the jury. Mr. GASOH. That's right, sir. If, on . the other hand, there is a factual. issue, the judge submits the question to the jury. The CHAIRMAN. Thank you very much, Mr. Gasch. I certainly ap- preciate your continuing interest and valuable advice in this field. It is very, very helpful We appreciate it a great deal Mr GASOH Thank you, sir (The statement referred to follows:) .CRAIGHLLL, AIELLO, GASCH & OBAIGHILL, Washington, D.C., October 22, 1963. Hon. ALAN BIBLE, Chairman, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR MR. OHAIRMA.N In response to the committee's request, I am pleased to present my views herewith. I should like to state the views which I express are my own personal views and I express them as an individual and not as an officer of the Bar Association of the District of Columbia. 25-260----64-pt. 1-i9 PAGENO="0290" 284 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Since the MciVa.bb case approximately .20 years ago, interest and emphasis on the part of lawyers and judges has shifted to the rights of the individual accused of crime. Mr. Justice Frankfurter, who wrote the opinion of the Court in ill a-i- lory, recognized the importance of safeguarding both the rights of the individual and the balancing need for doing so in such a way as not to impair effective and intelligent law enforcement.. It is not that I am less interested than others in safeguarding the rights Of the individual, it is only because I am convinced this aspect of the balance will be dealt with effectively by the courts that I should like to emphasize in this com- munication my views respecting the maintenance of effective and intelligent law enforcement. It is important to recall the admonition of the Supzeme Court in the Bcrger case that the prime objective of the prosecutor should be to see that justice is done and that .he should regard himself as the servant of the law, the twofold aim of which is that guilt should not escape nor innocence suffer (295 11.5.78,88). Since the Wan case' in the early 1920's, courts and lawyers have been haunted by the fear of coercion exercised by unscrupulous police officers to the extent that there are some today who would do away with all interrogation.2 Interrogation is a vitally necessary tool in the solution of the most difficult types of crime; for instance, murders, rapes, yoke robberies, and crimes of vio- lence in which the victim is either killed or so badly beaten as to be Unable to assist in identifying the perpetrator of the crime. If a description, is furnished at all, that description is likely to be meager and general. Jf the police are deprived of the opportunity of interrogation, our rising crime rate will cei~t-ainly not be curtailed. On the other hand, it seems logical to conclude that if felons learn that they cannot lawfully be interrogated, it will have a devastating effect on' law enforcement~ The Supreme Court recognized this in Crook-er. v. Cali- fornia (357 U.S. 433, 441). The stake of the innocent victim of violent crime is not alone his personal stake. It is closely akin to the rights of the people, generally, to use the streets in safety. We tend. to lose sight of the rights .of the people, generally, in our desire to safeguard the rights of those accused of crime. As Mr. Justice Frank- furter emphasized in the Mallory case, the delicate and difficult balance between safeguarding the rights of the individual without hampering effective and intelli- gent law enforcement is part of the procedure devised by Congress. In the years directly following the Mallory decision, the U;S. attorney's office gave a series of lectures to the Police. Department at the request of the Chief of Police~ on the effect of this decision on police procedures. These lectures are printed in the `hearings before Senator O'MahOney's subcommittee of the Judi- ciary Committee of the Senate: 5. 2910 at page 39(3 (1958). Also filed by the Chief of Police with the House Committee on Appropriations On January 18, 1960 was a memorandum which I prepared for him setting forth the importance of increasing the size and training of the Police Department. A . copy of that memorandum is attached hereto. These detailed suggestions have conscientiously been followed but serious crime, particularly robbery and aggravated assault, has increased to the~ point that Washington either leads or is second in cities of comparable size in the Nation.. Whether there is a direct relationship between the restrictions imposed by the Mallory decision and the sharp increase in crime requires a wiser judgment than I am competent to make. Some of the other factors that have entered into the . picture are: the unusual backlog of cases in the juvenile court which pre- cluded the effective functioning of that court as a crime prevention agency; the closing of the Police Boys Club; the aggravated overcrowding in other sections of the city due to the Southwest redevelopment project; vast population shifts in and out of the city and the job dislocations incident thereto. It is also noted that nationally crime rates have risen. The swiftness and the certainty of punisment has long been regarded as a crime deterrent. This more likely to be an acceptable conclusion insofar as robbery and assault are concerned than in the case of crimes of passion. The imposition of restrictions on police work which prevent interrogation or limit the extent to which it can be used do little or nothing to make law enforcement' more efficient or effective. In some instance; particularly insofar as~ street 1147an v. U.S., 226 11.8. 1. 2 Trilling v. U.S., dissenting opinion, 260 F. 2d 667, 686. PAGENO="0291" AMENDMENTS TO CRIMINAL STATUTES O~' D.C. 285 crimes are concerned, it may render law enforcement quite impotent. To say to a city police force: You must operate as does the FBI is no answer. The nature and character of the cases are different. The city police force lacks the trained personnel, the resources, and nationwide organization of the FBI. What then does the Mallory doctrine require and what is the area within which Congress may legislate in the interest of improving and making more effective local law enforcement. The Mallory case makes it clear that lawful arrests must be predicated. on probable cause. To arrest without probable cause and on mere suspicion is un- lawful. There has been an extension of the Mallory doctrine in the Killough case, decided about a year ago, in which a postarraignment confession was ex- cluded because it was "tainted" with the illegality of the first confession. ` Efforts are now being made to apply the "fruit of the poisonous tree" doctrine to all evidence learned as a result of illegal detention. The courts have seen fit to impose sanctions for the reason that they have felt that it is the only way effectively to bring about compliance by the police force with the rules of arrest. ` These sanctions actually penalize the public more, than the police force. They have a tendency to insulate the criminal from the consequences of his wrong doing. If the police force were less honest than I believe our police force to be, it could result in a calculated, deliberate move on the part of the. police to piotect by this expedient criminals who otherwise would be prosecuted In this connection I have emphasized to the Chief the necessity of continuing a series of seminais and lectures which were instituted during the time I served as U.S. attorney. It is absolutely necessary that, the pOlice know the decisions of the court, particularly the'limitations emphasized in these decisions so that their work in the future will be guided.by the teaching of these `judicial precedents. ` ` ` . ` ` . It is my feeling that more men better educated in these decisions and better trained in prOcedures required to meet these decisions are necessai~y because of the impoct of these decisions and particularly `the sanctions which are'incident thereto. ` . . . In both the McNabb and Mallory decisions, the Supreme Court was careful to state' that it was concerned with the enforcement of a procedural statute or rule. It was not concerned with a constitutional right. It is, of course, familiar doctrine that if a case can be decided' upon other than a constitutional provision, the courts does so Rule 5(a) which was mvolved m the Mallory ease requires that the arresting officer take the person arrested without unnecessary delay to the nearest available commissioner Short periods of delay are sanctioned pro- vided they s'tem from the need for verifying the story or for normal police proce- dures, such as booking and so forth, `but the court has emphasized that it is unlaw- ful to take the arrested person to the police station for the purpose of extracting a confession. ., ` ,, " ,, ,,.,, ` ` ` I have felt and I do feel that since the Supreme Court indicated that the basis of its decision was its interpretation of what Congress intended in authoriz- ing such a rule as 5 (`a) that it is an area in which Congress may speak as to what its intention is When rule 5(a) was originally, drawn by the Supreme Court's committee, the original draft contemplated the imposition of sanctions insofar as the introduc tion of evidence obtained in violation of the rule was concerned.' The majority' of the committee, however, did not go along, with the imposition of sanctions and that language was deleted from the rule~which ~the committee recommended and the Supreme Court adopted and the Congress approved. (S. Rept. 1478, p: 5.) It. seems to me, then, that there is a proper basis for concluding that Congress did not ` intend that sanctiOns be applied whenever law enforcement failed to adhere strictly to the provisions of rule 5(a). Legislation comparable in form to title I of H.R. 7525 has thrice passed the House. Once under the sponsorship of Senator O'Mahoney it,passed the Senate in a slightly different form. Such legislation would have the effect of tending to restore the balance be- tween safeguarding the rights of the individual and maintaining effective and intelligent law enforcement. It would still require the police to take the arrested person before the com- missioner without unnecessary delay. But it would say to the courts: Con- gress in authorizing rule 5A does not condone the impositions of sanctions which have the effect of excluding confessions or admissions which are voluntary in character. Respectfully submitted. OLIVER GASCH. PAGENO="0292" 286 AMENDMENTS TO CRIMINAL STATIITES OF D.C. The Cn~ra~rAx. Our next witness was to be Superintendent Wilson, chief of the Chicago, Ill., Police Department. I am advised he has run into some transportation problems and he will be somewhat de- layed, so `we will hear him at a later time, to suit his convenience. Our next witness will be Col. Stanley R. Schrotel, chief of the Cincinnati, Ohio, Police Department, and immediate past president of the International Association of Chiefs of Police. Chief Schrotel, we are very happy to have you with us this morning. STATEMENT OP COL. STANLEY R. SCHROTEL, CHIEF, CINCINNATI, OHIO, POLICE DEPARTMENT Chief SCHROTEL. Thank you very much, Senator. My comments this morning, sir, are addressed to title I and title III of the proposed bill 7525 dealing with the Mallory decision and an expansion of the arrest privileges as. they currently are invoked in the District. Our free society has created a system designed to identify the person who commits a crime and to give him a fair trial in which the truth of his, guilt or innocence is to be established. This system is based on the principle that guilty `persons should be adjudged guilty. The trial court is as ethically bound to ascertain the guilt of the guilty as it is to ascertain the innocence of the innocent. Rules that exclude material and relevant facts bearing on the guilt or innocence of the defendant a.re inconsistent with this principle a.nd with the oath to tell the truth, the whole truth, and nothing but the truth. Since an in- valid arrest may result in the exclusion of material and relevant facts, the liberalization of arrest privileges would lessen the likelihood of the exclusion of truth, a.nd would also facilitate the apprehension of criminals and lessenthe ~physical hazards of the police. The rules that establish the validity of arrest, as well as the other police arrest privileges under discussion, should be established `by legislation, as was proposed in 1942 by the interstate crime commis sion in its . uniform arrest' act. The courts may then rule on their constitutionality.' The `decisions would probably be favorable; the provisions of the uniform act.have not been declared unconstitutional in any of the.States that have adopted them. Both unbounded liberty, an its restriction place basic human rights in jeopardy. Unbounded liberty jeopardizes the security of life and property and, indeed, the security of our free society. Were this not so, there would be no need to place any restrictions on liberty. Re- stricting liberty, on the other hand, jeopardizes the basic human right to freedom in movement and conduct. The problem, then, is to prescribe restrictions which will provide an acceptable degree of security without `unduly infringing upon indi- vidual freedom. The restrictions on liberty now under discussion are adjusted by increasing or decreasing police arrest privileges. They must be so regulated that the price paid in inconvenience and restraint has an equal compensating value in the advantages of greater public security. To keep the scales of justice in balance, the advan- tages to a free society resulting from a reasonable degree of security in one pan must hold in precise equilibruim the other containing the disadvantages that result from such restrictions. PAGENO="0293" AMENDMENTS TO CEL~L[NAL STATUTES OF D.C. 287 This means compromise; some liberty must be sacrificed for the sake of security. A compromise is a modification of opposing views so that they may blend to the mutual satisfaction of the opponents. Theopponents in the issue under discussion are not the assailant and his victim but instead law-ahidino~ citizens who differ in their apprais- als of the danger of unbounded li~erty on the one hand and the danger of bounding it on the other. The issue is not simplified by the fact that both groups would like to have at the same time both complete security .and complete liberty. The impossibility of achieving both desires simultaneously is recognized, and each group makes a com- promise it believes will provide a suitable balance between maximum security and minimum restriction on liberty. Were the appraisals by the groups identical, the problem would be solved. Since oppos- ing groups make different appraisals, a reconciliation of the opposing views must be sought. . . * Compromise is a characteristic of a free society, the strength of which is derived from consolidating the. most acceptable features of opposing views into a workable system. In compromise, each side appraises what it. gains in advantage against what it looses in: dis- advantage; there is then a measure of give and take. The appraisal in a; free society is participated in by. the citizens with the legislature serving as the arbitrator to say, "This is the way it will be." This democratic process enables~ citizens to have their desires implemented by law. . . ,. ** . *. in the ah~ence of legislation bearing on~ some aspect of police arrest privileges, the appellate courts may make decisions that are as bind- ing in their effect as legislative enactments. The process whichresults in an appellate decision is markedly different frOm the legislative process. The issue before the court relates to the rights of the appel- lant, who has been judged guilty by the most liberal system of crilninal justice found anywhere in the world. The court considers whether the rights of the appellant have been violated, not by organized so- ciety, but by a policeman whose actions are often viewed with distaste because all of the facts which may have justified the action are not on the record. The court ponders the alleged infringement of the rights of the convicted person as a legal abstraction and feels obliged to considerthe.question as it would apply were the individualinnocent. Finally, the desires of the general public for some reasonable measure of security and for a redress of the ~wrong done to the innocent victim of the criminal are not made known nor are they readily available to the court. The issue before us does not jeopardize the integrity of the Consti- tution. Instead, it involves an appraisal of relative dangers, or ad- vantages arrayed against disadvantages, which result from restrictions on liberty imposed by police arrest privileges. Statesmen representa- tive of the people seem better qualified to make fair appraisals of public needs than appellate judges who, by virtue of their positions, are not so responsive to the desires of the public. The fundamental question is not a legal one after its constitutionality has been estab- lished. Instead, it is a philosophical problem i~i the science of govern- ment. People on the whole want prot.ection from criminal attack; they want to feel secure in their homes and on the streets from disturbances PAGENO="0294" 288 AMENDMENTS TO CRIMINAL STATUTES OF D.C. and molestations. To meet this need, local communities in our free society have created unifOrmed bodies of police to prevent crimes and to bring to court those who commit them. Responsibility for the prevention of crime rests principally on city police forces, sheriffs' departments, and local detachments of State police. A crime occurs when a person who desires to commit it discovers the opportunity to do so. Such imwholesome desires spring from and are a reasonable measure of criminality. The police cannot pre- vent the development of criminalit~y, except as their contacts with potential and actual offenders may have this wholesome effect; nor are the police charged with thi~ responsibility. Their basic purpose is to remove or lessen by both physical and psychological means the opportunity to commit crimes. To prevent crime, the police must either stand guard at every point of possible attack, which is a physical and economic impossibility, or intercept the person with criminal intent before lie robs, rapes, or kills. It is better. to have an alert police force that prevents the crime than one that devotes its time to seeking to identify the assailant after the life has been taken, the daughter ravished, or the pedestrian slugged and robbed. The task of the police in preventing crime is quite different from that of identifying the perpetrator and marshaling evidence to prove his guilt. To prevent crime by intercepting, the criminal, while he seeks his prey is not iuilike hunting a predatory animal; prompt~ and de- cisive action is called for at a critical moment nbt of the huntsman's or policeman's choosing. The policeman who fails to act at the critical moment may nonetheless prevent an impending crime, but the criminal who. more times than not is wanted for previous unsolved crimes, re- mains at large to continue his depredations. Restrictions on arrest privileges hamper the police not only in preventing crime but also in clearing cases by the arrest of the perpetrator and in marshaling evi- dence to suport prosecution. The . local police feel the restrictions imposed on arrest privileges more keenly than do the specialized police agencies. I am mindful of the question you put, Senator, to Mr. Ga.sch suggesting that some of the opponents to the proposed bill. has indicated that Federal agencies s'u~h as the FBI have learned to live with the Mallory rule Here we say that specialized police agencies, whose principal responsi- bility is the gathering of evidence to identify and convict persons after they have committeed a crime, rather than to prevent the act in the first instance. These people do not feel as keenly as the local police restrictions that the Mallory rule imposes. Frequently the criminal, whose act is within the jurisdiction of a specialized police agency, has already been arrested by local police who often apprehei~d him in the act or in flight from the crime scene. These are critical moments for police action. In cases where the cul- prit has not been arrested, the critical moment for arrest can often be set by the specialized police; it is planned after sufficient evidence is marshaled to justify the arrest which is often authorized by warrant. In contrast, most arrests by local police are made without warrant at a critical moment not. of their choosing `before they have had an op- portunity to marshal evidence beyond what. they personally observed at the tinie. PAGENO="0295" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 289 The typical citizen would feel that the police were r~p'uiss in their duty should they fail on their own initiative, or refuse on legal grounds, to investigate by questioning a person who was lurking in the neighborhood for no apparent reason. The disturbed citizen would expect the police to discover whether the suspect was armed and, if so, *to disarm him and prosecute him should it be discovered that he was carrying the weapon illegally. Should the suspect refuse to explain what he was doing in the neighborhood, and the policeman apologized for questioning him and then went about his duties leaving the suspect to continue his lurking, the citizen would consider that he was not receiving a fair return on his tax investment for police services. The typical citizen is surprised when he discovers that in many jurisdictions police arrest privileges are so, carefully circumscribed by statutory and case law as to render the policeman virtually powerless to deal effectively and safely with situations that confront him almost hourly during his duty tour. The police action demanded by. the citizen from his protector is illegal in many jurisdictions. The police, under local control as in our form of~ government, are inclmed to provide the protection their citizen employers demand, otherwise the police fail to prevent crime and are subject to sharp criticism for thMr failure to protect the public. Also, since they usually act with courtesy, discretion, and good judgment, only infre- quently is the legality of their acts questioned, and then by a citizen who fails to understand and appreciate the police motive or by a lawyer who uses the incident in the defense of his guilty client. The discrepancy between what the people expect the police to do and what the police are privileged to do in protecting public peace and security results principally from a lack of understanding of the police purpose and of what the police must do to accomplish it The police must accept some blame fc~r hick of. public confidence in the means they use to `ichieve their purpose Police `ibuse of their authOrity must be eliminated, not by withdrawing essential authority or by freeing the guilty criminal, but by raising police standards to a level of trustworthiness and by some action which will penaJize the community that employs an officer who abuses his authority~ Police leadership has been dilatory in raising service qualifications and ethical standards. However, the police now have an acceptable code of ethics and their qualification standards are being raised from coast to coast. Each local community should insist on improvement in the quality of its police service until all have achieved professional status.. The community that is penalized -for abuse of arrest privileges will be likely to demand both higher standards and disciplinary action against the offending officer. Lack of public understanding of the police purpose and what the police must do to accomplish it is accentuated by two circumstances that tend to cast the police in the role of agents bent on unnecessarily Oppressing freedom. The first grows out of police responsibility hi the enforcement of traffic and other regulatory laws sometimes vio- lated by the most conscientious citizen, an enforcement that alines good citizens against the police. The other is ignorance of the facts involved in the war against crime in a free society. People are apt to fear and hate what they do not understand__and the hate is often stimulated by traffic violation experiences. PAGENO="0296" 290 AMENDMENTS TO CRIMII~AL STATUTES OF D.C. These misunderstandings continue unabated because the police are not a vocal, scholarly group that devotes much time to presenting in a favorable light the facts that bear on the problem. The literature in consequence is principally devoted to the case against the police; little has been written in their defense. The press, the literature, and even ease law are all directed at incidents that discredit the police. Small wonder that those who read the papers or research the literature and case law conclude that the police are evil. Information on which a fairer judgment might be based is not generally circulated. The CHAIRMAN. Chief, do you think that is a general impression? Do you think the American people believe V t.he police are an evil influence? V V V V V Chief SOHROTEL. Sir, I am merely saying that the agiiostic, who is expôsed'almost specifically or solely to tVhe current literature, Vthe Vcur rent news media, entertainment in~dia, sees the police characterized, in my opinion, in a rather unfavorable way. V V V V V The CHAIRMAN. I am sorry to hear that, because I did not think that was the cOmmon impression. V V V IV V V V V V Chief SOH~OTEL. Sir; you are invited to ride the police car, Senator, in these days and times and I ~mm sure you will discos er there is a frightening segment of our commumty who do not regard enforce ment., or the synThols of authority, with the degree of credit that I think their officewarrants. V V V V V V V V V The CHAIRMAN Would that be true of professiowml people, business people, leadOrs in the community? V V V V V V VV. V Chief S0HRO'IRL. No-these are, knowledgeable folks. I would say not V J am talking about the large majority of those who do not under- stand, who `ire not informed who `ire not knowledge'tble in the ways of a polièe mission, aVnd in a manner in which our objectives are at least supposed to be accomplished. V V V V V The CHAIRMAN. V What would you suggest doing about. it? Maybe V you develop this V a little furthOr on in your presentation. V Is this an educational program, where the people should be told more and more that you are the protectors of the citizens of the community, and that you are their friends? How do you get this message across? Chief SCHROTEL. Well, I think we V aVre here, Senator, seeking for a very effective way of getting this message across. V V V V Let's use V the simple illustration that I just alluded to V previously, where the citizen who V has very little contact with the police, who knows little about his mission, observes in a respected community setting, where they have had a series of burglaries, an individual be- having in a furtive manfler, moving from post to post V on the public way. But this citizen in tVhe early night sees and observes this man and does what comes naturally-he summons the police. The police arrive, and within the law that is now circumscribed by Mallory and other restrictive, devices upon police action, he says to the citizen de- manding police service, "I am awfully sorry, but under the law I cannot question this man. He has committed no offense. True, there bad been a series of crimes committed in this area, and true he may be the logical person in terms of identifying the perpetrator. But I cannot proceed." I wonder if this information were generally known to V our Nation at large, whether or not they would not hasten to provide more effec- PAGENO="0297" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 291 tive tools for meeting this kind of an emergency. And that is why we are here. I think that to the extent that we are restrained or im- paired in containing crime by these restrictive devices, I think to this extent we are bringing more and more discredit to ourselves, because the public tends to look at us as the sole instrumentality in government for the containment of crime~ I know full well this is not so, that this burden is not properly ours. We labor a fair share of it. But in terms of explaining to the average citizen, the police agency is responsible for misconduct within the con- text of criminal behavior. And I am saying that we have-the police have not been vocal, we have not been articulate, we have not been able to bring intelligently to the minds of the community that should know the obstructions and the impairments that we face. I think having done this, we `will win more support, and we will, I think, ef- fectively cope with this grim specter of public disrespect that I mentioned. The CHAIRMAN. What can you do with the criminal suspect you have so vividly described? Suppose one of the men under your com- mand from Cincinnati, Ohio, would find this type of suspect on the streets of Cincinnati, and a citizen would come to him and do just exactly as you described-what would the police do? Chief SOHROTEL. We would probably violate his constitutional rig~its and arrest him. Ihe CHAIRMAN. Well, you are not under the mandate of the Ma2- lorji rule, are you? Chief SCHROTEL. Sir, we are feeling the full brunt of it, however. The CHAIRMAN. Is that so? Chief SOHRYrEL. Yes. The CHAIRMAN. What is the law in Ohio? Are you required to take a suspect before a committing magistrate without unnecessary delay? Is that what your Ohio law says? Chief SOHROTEL. Well, it is not as stringent, perhaps, as the mandate expressed in the Mallory decision. We can bring him to trial at the next conference-the convention of the court the following morning. The CHAIRMAN. You can hold him overnight? Chief SCHROTEL. We can hold him overnight, or we can hold him in some. instances for a period of 24 hours, until the court convenes. But we must charge him. The CHAIRMAN. If you pick up a suspect on the street in Cincinnati, what do you do with him? Do you take him to the nearest police facility? Chief SGHROTEL. Yes, sir; and interrogate him in reference to his identity. If you are referring to this illustration that I have just given. We would interrogate him in reference to his identity, the pur- pose for his presence in that location, and having ascertained these, we would proceed, if we could, to determine his involvement in the offense, through this interrogation. He would be charged. If not, we would release him. The CHAIRMAN. How would you book him on your police blotter? Would you book him for investigation? What is your procedure? Chief SOHROTEL. Yes; we hold him for investigation. The CHAIRMAN. You hold him for investigation. PAGENO="0298" 292 AMENDMENTS TO CR~IINAL STATUTES OF D.C. Chief SCHROTEL. That's right.; yes, sir. The CHAn~rAx. When you pick him up, do you advise him that any statement he makes can be used against him? Chief SCHROTEL. If he is willing to make a statement. This appears as the prefacing commentary on the formalized statement. The CHAIRMAN. Is he advised that he has a right to counsel at that stage? Chief SCHROTEL. ~o; we just advise him that he need not make a statement, but if he so chooses, that this statement will be used for or against him at the time of his trial. Now, we do not advise him he is entitled to counsel. The CHAIRMAN. Depending upon the result of the interrogation, do you take him before a. committing magistrate. the next morning? Chief SCHROTEL. That is right, sir. The CHAIRMAN. You do mit get the magistrate out of bed in the middle of the night? Chief SCHROTEL. No, sir; we have never had an occasion to do that. The CHAIRMAN. Do you have legal problems on this question within Cincinnati, Ohio, similar to those that have arisen in the District Of Columbia as the result of the Mallory case? Chief SCHROTEL. The courts have suggested that they ought to be- the local courts-that they ought t.O be adhering more stringently to the spirit of the Mallory rule. So I suspect that unless the rule is modified, we will in Cincinnati, as in other urban centers, be faced with a more rigid adherence to that doctrine. . . The CHAIRMAN: Thank you, Chief. Chief SCHROTEL. Highly intelligent people ponder the police role as a hypothetical abstraction, in ignorance of the true facts, and con- ceive the police to be a potential instrument of tyranny which will destroy* the essential freedom* of a free society. Since their reading and research are restricted to incidents that discredit the police, they conclude that all police are bad. These citizens, as protectors of liberty and freedom, then aline themselves against the police without giving attention to the cost of criminal depredations. There have been exceptions in which men whose integrity and judg- ment are respected have accompanied the police on their tours of duty in order to learn and report the true facts. Prof. John Barker Waite of tile University of Michigan Law School and Sam Bass Warner of the Harvard Law School are two examples. Their experiences gave them a sympathetic understanding of tile problems confronted by the police in consequence of antiquated rules governing the questioning and detaining of suspects, searching them for weapons when police safety is jeonardized, arresting them when conditions warrant such action, and the right of the siisnec.t under some conditions forcibly to resist arrest by a. uniformed policeman. These men have championed in books and articles the liberalization of arrest privileges because through their experiences they have gained a. sound understanding of the handicaps of the modern policeman in his legal war against crime. On the basis of his police experiences, Professor Warner played the principal role. in drafting tile Uniform Arrest Act. La.w enforcement may be strengthene.d by legalizing common police practices, already legal in some jurisdictions, which would~ have the effect of facilitating the discovery of criminals and evidence of their PAGENO="0299" AMENDMENTS TO CRIMINAL STATUTES OF D~C. 2.93 guilt and of lessening the exclusion of relevant evidence from their trials. The police should be authorized to question persons whose actions under the circumstances then existing are such as to arouse reasonable suspicion that the suspect may be seeking an opportumty to commit a crime. A police officer should be privileged to search such a suspect for weapons when the officer has reasonable grounds to believe that he is in danger if the person possess.es a dangerous weapon, and, should -the ~suspect be illegally armed, to arrest him for this offense. Should the suspect be unable or unwilling to explain satisfactory the reasons for his presence and actions, the officer should be authorized to take him to a police station and hold him while the investigation is continued, for a reasonable period without placing him under arrest. The police should be privileged to release an arrested person- without bringing him before a magistrate when their investigation reveals his innocence or when a drunk has become- sober. The police should be authorized to hold an arrested person before bringing him before .a magistrate for at least 24 hours, excludin~days when courts are not in session. - Magistrates should be authorize~-to order the defendant to be held- for an additional period when good- cause for such detention is shown The CHAIRMAN. If I understand you -correctly, Ohièf, -you said in Cincin~iati,. Ohio; youcan hold a person-~nly overnight. - -- Chief SCI-IRoTEI~. Until the next court session, sir. This may be even a shorter period than 24 hours. It may be 1 or 2 hours. - The CIIArRMAN. If it is over the weekend, it -would -be longer than 24 hours. - -- -- *. - -- - ~ - ----: -- - - Chief SCHROTEL~ That's right. It may be -as long as 2 days. - Now, he is not deprived of h-is right ~or application to a writ. -- - - - The CHAIRMAN. I understand. But if you can hold --him over a -long weekend; - where the courts are not in- session, then have you any court test saying that this is or is not an- unnecessary delay? - - - Chief SCHROTEL. We have not had any local rulings- -as yet.- But I am sure that we will soon- hear from- our judiciary- with reference -to or in line with-the spirit of Mallory. - - - - - - The -CHAIRMAN. It is surprising to me that-over the years that some defense counsel has not raised this question in the courts.-- - - - Chief ~SCHRÔTEL. I am- sure that thè~have done this- in~ attempting to impeach the voluntary nature of the confession or admission that wa-s obtained during this so-called- protracted period of detention. But, Senator, I do not know how you can ignore the nature of man and the relation of this to police interrogation. - - - - - If you have- a suspect that has committed a heinous offense, I think it takes a very skillful kind of interview, - a proper kind of environ- -ment, in order to establish the rapport that is necessary to elicit from this man admission- that may very well result in his incarceration for an extended perod of time, or in some instances even his electrocution or death. - -- I cannot conceive of anyone dealing with this problem in the ab- stract-when the police officer must first of all gain the confidence of the subject that he suspects of an offense. Now, I am mindful of the court's intention to insulate the person who enjoys the abiding presumption of innocence against the abuse in the hands of the police. But again this confirms my earlier statement PAGENO="0300" 294 AMENDMENTS TO CRIMINAL STATUTES OF D.C. that the police have been discredited so long in their contacts with the generally law-abiding public in the traffic context as such that police- men are looked at as those who might, given an opportunity, exploit `the very authority that they ought to be protecting. So it is `just wishful thinking to suspect that a prisoner who is contacted perfunctorily by a police officer will just unburden his conscience and say, "You're right, officer, I have committed the of- fense"-rape, robbery, burglary, the whole gamut of predatory acts. This is not so. In many instances it takes several hours to gain the confidence of the subject. Now, the people suggest this is star chamber. But we live in an age where the technological advances have been tremendous. What is wrong with recording everything that the police officer says to the suspect? What is wrong with filming the entire interview-if there is some concern about a possible abuse while this proper kind of rap- port is in the developmental stages? This can be done. The CHAIRMAN. Isn't that actually done in certain instances? `Chief SCHR0TEL. Sir, we go so far-in fact in the Mallory case- mindful of this grim specter of public criticism, they even took Mr. Mallory to a doctor to have him examined so that they would be in a position to say that he bears'no particular marks of abuse or physical abuse at the hands of the police. The police constantly have to labor with~this. The CHAIRMAN. You have `made reference to the taking of films during an interrogation. Is this actually done in any of your police work, so as to preserve the fact of voluntariness for the jury? Chief Scm~omL. When we want to buttress~a confession-we have done this in our local jurisdiction-we `have had the suspect reenact the crime, and we have filmed his reenactment. We have not gone far enough, because of monetary limitations, to `do this in sound, but it certainly could be done. But I am suggesting that in the interro- gation room, `where you have something akin to a lawyer-client rela- tionship, `a doctor-patient' relationship, the same kind of confiden- tiality must prevail if we are to elicit from'this individual information thatwil result in his'own undoing. The CHAIRMAN. You' `may continue. Chief'Sôm~o1'EL. A police'officer should be authorized to arrest under a warrant when the warrant is not in his possession, to arrest without a warrant for any misdemeanor committed in his presence, and to arrest without a warrant for petty thefts and other misdemeanors not committed in his presence when he has reasonable grounds to believe that the defendant could not be found after the warrant was issued. Suspects should be denied the right to resist illegal arrest.s by a lerson the suspect has reasonable grounds to believe to be a police officer. The police should be authorized and urged to use notices to appear in court in lieu of physical arrest in suitable misdemeanor cases when they believe the defendant will appear as agreed. Persons the police have reasonable grounds to believe to be wit- nesses to crimes should be legally required to identify themselves to the police. These are essentially the provisions of the Uniform Arrest Act. To them should be added authority for the police to search any con- victed narcot ic offender for contraband, without a warrant, when PAGENO="0301" AMENDMENTS TO CRIMINAL. STATUTES OF D.C. 295 his actions, under the circumstances then existing, are such as to arouse reasonable suspicion that the suspect may have contraband in his possession. The reasonable arrest privileges mentioned above would facilitate the achievement of objectives in law enforcement desired by all per- Sons except the criminals themselves. The privileges~ would enable the police to exercise such control over persons in public places as to enhance the peace and security of all citizens. These privileges do not threaten the lives or health of the innocent; the inconvenience of 6 hours of detention short .of arrest is experienced only by the innocent person who inadvertently or by poor judgment is found in a situation that arouses police suspicion and which the suspect is unable or unwilling to explain on the spot. In view of the present jeopardy to public security, such inconven- ience seems `a small price to pay for the privilege of living securely and peacefully. Police abuse of authority with criminal intent resulting in serious offenses must always he dealt with by criminal prosecution and disci- plinary action. Establishing safeguards against'abuse of authority by the overzealous policeman in the day~to~day performance of his duty presents quite a different problem. . Safeguards that weaken law en- forcement or free the guilty are socially. undesirable; if possible the problem should be solved in some other way. Civil suits for damages filed against the individual officer have not proved adequately effective in pieveiiting police abuse of authority. Were this procedure effective., however, it would emasculate vigorous police action and law enforcement would be weakened at a time when it needs to be strengthened. Negating police overzealousness by freeing guilty defendants vio- lates the principle that the guilty should be adjudged guilty, punishes society rather than the policeman, rewards the guilty, and is `a mis- carriage of justice. Its effectiveness as a control of police `abuse of authority has not `been~demonstrated. The Committee on Criminal Law and Procedure of the California State Bar proposed that: . ` * * * `the `answer might lie in a new kind of civil action, or better, ~ summary type of proceeding, for a `substantial `money judgment in favor of the wronged individual, whether innocent or guilty, and against the political subdivision whose enforcement officers violated that person's rights. After not many out- lays of public `funds the taxpayers `and administrative heads would insist upon curbing unlawful police action (29 `Cal. St. `Bar Jour. 2~3-64 (1954). ProL Edward L. Barrett, Jr., of the University of. California `Law School, in commenting on this proposal, stated Legislative `a'ction along these general lines gives promise of providing a more adequ'ate solution th'an `the exclusionary rule at a `smaller social cost * * *. The remedy would be available to `the innocent `as well as the guilty, for the illegal arrest as well as the illegal search. The courts would have frequent oppórtuni- ties for `ruling on the legality of police action,' for `enunciating and developing' the governing law. If in any community a substantial number of such' `actions become successful, the financial pressure on the police to conform more closely `to judicial standards would doubtless follow. Finally, if a careful line is drawn between those situations where increased personal liability should be placed upon the individual policeman (basically those involving serious and intentional violations of law) and those' where he should be immunized and sole liability placed upon the governmental agency, interference with the efficient functioning of law enforcement would be mini- mized (43 Calif. E~. Rev. 465, 595 (1955). ` ` " PAGENO="0302" 296 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The modernization of arrest privileges is needed to make them consistent with the conditions under which the police today must pro- tect the public from criminal attack. The following advantages would be gained from liberalizmg ancient rules of arrest based on conditions that no longer exist and from penalizing a political subdivision for abuse of authority by its police: (1) Public peace and security would be increased by eithancing the likelihood of discovering persons seeking an opportunity to attack. (2) The effectiveness of the administration of justice would be in- creased by facilitating the investigation of suspects, the arrest of criminals, and the collection ~f admissible evidence. By these means both clearance and conviction rates would be increased. (3) The security of the police would be increased by permitting them to discover weapons that may be used to attack them and by making it illegal to resist arrest by a known peace officer. (4) Higher standards of service and stricter adherence to the legal restrictions imposed on the police would result when a community or other political subdivision was penalized for abuse of authority by its police. We feel all of these advantages will flow if, sir, you react favorably to the proposal that is before you. The CHAIRMAN. Thank you, Chief. I certainly appreciate your coming before us and giving us the benefit of your experience in the law-enforcement field. I note that you are the immediate past president of the International Association of Chiefs of Police. Are you having a problem nation- wide with regard to the admissibility of confessions similar to the prob- lem now being experienced in the District of Columbia? ~hiëf SCHROTEIL Yes, we are. In the urban centers throughout the country, crime is on the increase, and we are having more and more difficulty in approaching crime containment, because of the lack of adequate tools. Of course the spirit of Mallory and the spirit of the restriction on investigative arrest is certainly felt in cities beyond the pale of the influence in the District. The CHAIRMAN. The position the Department of Justice takes on these problems is that the title I, to which you are directing your testi- mony, is quite possibly unconstitutional. My concern, and I am sure it would bethe conimittee's concern, is that the legislation we enact must stand a court test. Now, do you, or your association have any guidelines for investiga- tive arrest, and for the admissions of confessions, that would stand the constitutional test? Chief SCHROTEL. Isn't the nub of the issue, though, in the word "un- reasonable"-"witliout unreasonable delay." And if the court then examined the reason for delay, and the circumstances attendant to the inquiry, don't you think that reasonable minds might decide that the delay, even though extending for a matter of hours, was reasonable within the context of the circumstances of the arreSt? The Cn~ni~rAx. What you say may be correct. Chief SOHROTEL. But isn't this the rea~I issue in terms of tests for constitutionality? The OHAIRMAN. Do you have any decisions that indicate that to be the case? PAGENO="0303" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 297 Chief SCHROTEL~ No. The CHAIRMAN. I felt possibly as past president of the international association that you might know what, if any, consideration your inter- national association has given as to what can be done in the field of investigative arrests and in the field of admission of confessions as they relate to rule 5(a) without violating basic constitutional rights? Chief SCHROTEL. No, sir; I am sorry, Senator, I do not have that. The CHAIRMAN. The staff director of the committee has drawn my attention to something th'it you said just a little bit earlier th'it pos sibly needs some clarification. When I was asking you about your arrest practices in Gincinnati, I understood you to say earlier in your testimony that you would prob-. ably violate the Constitution and. arrest him. Now, I do not know whether this is what you really meant. I think it probably needs some clarification, in fairness to your testimony. Chief SCHROTEL Perh'ips I was somewh'tt f'tcetious in this commentary. The CHAIRMAN. I am sure you did not mean that you are going to deliberately violate the Constitution. Chief SCHROTEL We are empov~ ered to arrest those individuals whom we reason'tbly belie'~ e h'ive committed or `ire about to commit a felony. Now, this is a. very elastic concept. We would have to relate the presence of this individual to the environmental pattern, to the history of crime in that area. Now, this is a m'ttter of reliance solely upon the judgment of the officer It is a rather difficult thing foi him immedi'Ltely to detei mine whether .he is functioning within the framework of this statutory right, insof'tr as the rights of this particul'ir suspect `ire concerned- wheie great minds in an unemotional forum differ in 5 to 4 decisions This places the judgment of the police officer on a rather high plane. I was just suggesting that maybe he may be in error when he does that, when he brings this man into custody But I think that he has this concomitant responsibility, however, to respond to the taxpayer who summoned him for service, to provide some protection against an individual whom he feels is jeopardizing his own rights The CHAIRMAN I think that clarifies the record I probably should have picked it up at the time you were making your statement. I was positive that~ you were not advocating that the Constitution be violated Th'it you operate to the best of your ability in Cincinnati, Ohio, within the framework of the Constitution Maybe it ultimately turns out you have violated some constitutional right, but you do not deliberately do so. Chief SOHROTEL Thank you for extricating me, Senator The CHAIRMAN I certainly appreciate your coming here, Chief We recognize you do have many problems. We also recognize the area in which you are working is a very difficult one. Thank you very much. Our next witness will be Sheriff Canlis from San Joaquin Corinty, Stockton, Calif., a member of the board of governors, National Sher- iffs Association. I also want to express my appreciation to you for coming here so that you might give us the benefit of your views on this very difficult problem. PAGENO="0304" 298 AMENDMENTS TO CRIMINAL STATUTES OF D.C. STATEMENT OP SKERIYF MICHAEL N. CANLIS, SAN IOAQUIN * COUNTY, STOCKTON, CALIF.; MEMBER, BOARD OP GOVERNORS, * NATIONAL SItERThTS' ASSOCIATION * Sheriff OAIcI~Is. Senator,. 1 am very deeply grateful to you for the opportunity you have provided me to express my views, and those I represent. I think at the outset here, Senator, may I, for the record, submit a resolution passed by the National Sheriffs' Association in June at Portland, Oreg., at their annual convention. The CHAIRMAN. The resolution will be received at this point in the record. (The resolution referred to follows:) THE NATIONAL SHERIFFS' ASSOCIATION, * Washington, D.C., October 22, 1963. To: The Senate District of Columbia Committee. From: The National Sheriffs' Association. The attached resolution was unanimously adopted by sheriff delegates at- tending the National Sheriffs' Association's 23d Annual Informative Conference, July 15-17, 1963, Lu Portland, Oreg. Respectfully submitted as part of the testimony of Sheriff Michael N. Canlis, Stockton, Calif.; representing the National Sheriffs' Association. Sheriff WILLIAM M. LENNOX, Philadelphia, Pa., President. A REsoLUTIoN RECOMMENDING THAT THE METROPOLITAN POLICE DEPARTMENT OF WASHINGTON, D.C., BE Gn~&NTEr) SUFFICIENT TIME FOR INTERROGATION OF CRIME SUSPECTS BEFORE ARRAIGNMENT Adopted by the National Sheriffs' Association, July 17, 1963, at its annual conference held in Portland, Oreg. Whereas there became effective on March 15, 1963, a ruling by the District of Columbia Commissioners (appointed by the Nation's Chief Executive) upon the recommendation of Charles A. Horsky, Presidential adviser for District affairs (also appointed by the Nation's Chief Executive), that the Metropolitan Police Department of the District of Columbia cease and desist from the neces- sary proven law enforcement practice of interrogating suspects in a crime in- vestigation; and S Whereas the Metropolitan Police Department of the District of Columbia oper- ates under the jurisdiction of the Federal Government; and S Whereas the members of this police department before they may interrogate a suspect, must produce him (or her) before a committing magistrate and offer substantial evidence as to the reason for interrogation; and S Whereas this procedure works a hardship upon the officers dedicated to the protection of life, limb, and property resulting, in most instances, in the immedi- ate release of the person or persons who may fall under general suspicion in connection with the committed crime; and S Whereas law enforcement officers are cognizant of the fact that many persons either suspected of being guilty, or who may be totally innocent of a crime hay- lug been perpetrated require a reasonable amount of time to interrogate and in- vestigate in order to bring the guilty to justice and release of th~ innocent;~ and Whereas decisions made in the case of handcuffing members of the Metropolitan Police Department of Washington, D.C., who, as previously stated, are under Federal jurisdiction and control, will probably be the pattern for all Federal law enforcement officers to follow; and S Whereas it is feared that this pattern may be adopted in * State courts and thereby hamstring all law enforcement of this Nation which would redound to the benefit of the law violators: Therefore be it * S Resolved, That the National Sheriffs' Association, in nationul' conference, as- sembled in Portland, Oreg., this 17th day of July 1963. go on official record as op- posing the recommendation of the Horsky committee and urge the Congress of the United States to rectify this situation in the Nation's Capital now styled as a "jungle of crime ;" and be it further PAGENO="0305" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 299 Resolved, That appropriate and reasonable time be allowed the District of Columbia police to pursue their endeavors to remove the crime clouds now over- shadowing the Nation's Capital; and be it further Resolved, That a copy of this resolution be sent to every Member of the U.S.. Senate and the House of Representatives. RESOLUTIONS COMMITTEE, Sheriff ROBERT JAMISON, Chairman, New Brunswick, N.J. Sheriff DONALD TULLOCH, Barnstable, Mass. Sheriff DENVER YOUNG, $alcm, Oreg. Sheriff CANLIS. Please let me state at the outset, that it is not my' intention to in any way reflect discredit on any agency, or that my appearance here this morning be interpreted as interfering or inject-~ ing myself into the province of the fine Metropolitan Police Depart- ment of Washington, D.C., and its distinguished Chief, Robert V.. Murray. It used to be that Federal rulings influencing law enforcement eventually trickled down into the State and local law enforcement; however, it can now be described as a constant avalanche of interpre-- tations so massive as to have completely depressed and dwarfed the effectiveness of law enforcement generally everywhere. It is because of this that I have accepted your ]nvit~tion in the hope that 1 might call your attention, the very great need for us all to have `congressional understanding to stem the tide of legislation by judicial interpretation, and also the unwarranted restrictions on modern-day police. Our sworn duty is to protect life and property, and to preserve the peace, and to prevent crime. Never, in the history of our society,~ however, has the principal purpose of our existence been so lost. Never, his there been such confusion concerning interpretation of the law Never, have we created such an offensive image while in tbe proper discharge of our duty Never, have we been so maligned and so substituted for the issues or the cause, or the social injury. Our. lot as you know, is to be damned if you do and danined if you don t It is quite apparent that not what we do, but the manner in which we do it, makes `it either acceptable to the community or the courts, or transfers the sympathy to the miscreant. Respect for the law is diminishing rapidly, and those who seek illegitimate gain, hesitate less and less to commit grave, unprovoked assaults ag'unst their hapless victims, and law enforcement officers, and even to sacrifice human life when it suits their purpose to do so Some of the High Court decisions describe the activities between the criminals and law enforcement, as if we were engaged in some sort of contest, with rules applicable to both, applied equally and, fairly, as if we had chosen up sides. Nothing could be further fr,om the truth, and this is no game. The Mallory decision and its many interpretations, some of which are close' decisions by the arbitrators or referees, if you will, the majority ruling being 5 to 4, has the effect of appropriating any success by law en- forcement and transferring it to the defense or other side, with the further restriction that any subsequent score, would be, -treated in the same m'rnnei The March 15, 1963, ruling by the District of Columbia Commis- sioners for the Metropolitan Police of this District, to cease and desist 25-260-64--pt. 1-20 PAGENO="0306" 300 AMENDMENTS TO CRIMINAL STATUTES OF D.C. from interrogating a suspect prior to his appearance before the magis- trate, would appear to have completely emasculated their effectiveness. So I fear, as has been the case many times past, the pattern set for Federal law-enforcement officers to follow, will shortly be the rule for all of us. The CHAIRMAN. What rule is followed with regard to investigative arrests in California at the present time? Sheriff CANLIS. Reasonableness again is the measure, Senator. And we have no-in no event greater than 48 hours, excluding Sunday. But the reasonableness there is also examined by the courts in every instance. The CHAIRMAN. Is this written into a statute? Sheriff CANLIS. Yes, sir. The CHAIRMAN. How has that statute been construed by the Supreme Court of California? Sheriff CANLIS. It has been examined in some of the cases, and the reasonableness as applied has been judged by the courts in each in- dividual case. There have been some reverses. The CHAIRMAN. How about the admission of confessions? Sheriff CANLIS. They are examined quite carefully, and they have been for many, many years. even in light of this rule, and, of course, as you are well aware there are many many safeguards, constitutional and procedural, about the admissions of confessions or admissions of damaging statements a.nd the maimer in which they .are obtained, and these are subject to careful review by the courts. They have been for a great many years. The CHAIRMAN. What is the. statutory law in California on adinis- sion of confessions? Sheriff CANLIS. Senator, because of the time element, I am ill pre- pared. I do not want to make a statement that is even partly incorrect. The CHAIRMAN. We can have it checked. The staff can check it out, because the statute will speak for itself. I assume it probably follows pretty much the general law. Sheriff CANLIS. Constitutional provisions, and its interpretation. The CHAIRMAN. Should he be taken before a committing magistrate without unreasonably delay? Sheriff CANLIS. Without unreasonable delay. And this is examined even in light of the fact that we are allowed or permitted by. the statute no more than 48 hours, or excluding Sundays. The reasonable- ness is again examined on each occasion, and the manner in which the confession has beenobtained. The CHAIRMAN. Thank you. Sheriff .OANLIS. Generally speaking, law enforcement has not been so fortunate as other units of government in gaining new personnel, even in light of the ever-increasing laws. We a.re sprea.d so thin that even a slight adjustment further restricting our operations will have an unsalutary effect on the peace of the community. We have witnessed many times recently, and alarmingly with in- creasing frequency, some segments of our society acting as if they had already returned to the jungle. Our function to protect life and property and to preserve the. pea.ce and to prevent crime, is not as uncomplicated as it soimcls. As our society becomes more sophisticated. the laws which we are sworn to PAGENO="0307" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 301 enforce, have defined human conduct to where it is no longer a simple matter of right or wrong. In some sections, misbehavior is governed by a complicated, almost impossible to understand statute, and this is further complicated by a judicial interpretation of the statute, and all too frequently the latter only holds for a very brief period of time before it is again reinter- preted, and I believe that the Mallory case has been already cited in 142 Federal cases on appeal, many of these in conflict with one another. It is almost impossible to train an officer today to operate within the meaning of the statutes, let alone to educate them to understand the various interpretations that constantly succeeds the law. It is not unusual for us to be called upon to interpret and apply to an active situation or social condition, constitutional provisions that have been and are at this very moment a subject of deep study and review by the~ best. legal minds and students of government. Most often the actor on our side is the rookie policeman on the street, with an immediate responsibility to discharge. It is also unrealistic that our acts be reexamined and judged on the basis of the law or interpretation of the law that has not taken into consideration the developments of our social order and the present acceptable standards of conduct, or misconduct, if you will. According to the record, our distinguished justices disagree as so do many of the accomplished members of the bar, both in practice and in the area of academic study, as to the meaning of statutes and mterpretatiou of the . statutes. Yet we,. without the benefit of this great training and experience, are expected to identify the law and to stand accountable if it is wrong or if it is wrongfully applied 01 even if it is unacceptable in any given situation. We are not lawyers, nor do we think we should be. Nor do we think it necessary in order to understand the rules of human conduct that our society provides through its government. . Some of the interpretations that have come down to us guaranteeing the rights of individuals by overcoming the statutory provisions as applied by the police, I am sure interfere with the paramount rights of society, who alone guarantee these privileges. We believe, however, and we plead for your support, that the law and its interpretations should be sufficiently clear to be understood by all. The CHAIRMAN. I think that is a very fine sentence. But I think we will be at the millennium if we ever get to a point where we can draw a law with which everyone is in agreement and the court be- comes unanimous. Humans being what they are, they are going to have differences of opinion as to the meaning of statutes. I understand what you are saying, but I wonder how you overcame this problem. Sheriff CANLIS. My prayerful hope is the Congress of the United States, and, what you are doing here today in sifting out everybody's thinking, including the proponents and opponents of a thing like this, and the detail in which you are doing, and the graciousness with which you are encouraging this type of testimony, and really being inter- ested in the problems of every segment of society. PAGENO="0308" 302 AMENDMENTS TO CRIMINAL STATUTES OF D.C. I think you are making a far-reaching move to do this. I think that in a case where you are now examining a procedural provision, not a constitutional provision-because I am conscious, Senator, of my oath to defend the Constitution of the United States, and I know you feel the same way. And, of course, we are here now determining how these procedural changes are creeping into constitu- tional interpretations. If this is true, I will back away. The CHAIRMAN. This gets us right into the most difficult area. The enactment into law of a provision such as that contained in title I, that will stand the court tests. I believe I understand what you are saying. You are hopeful that a statute can be enacted, and that we will get one final decision from the highest court of the land, and that decision will serve as a guide to every police officer. This is what you are saying, I think. Sheriff CANLIS. This is what I am saying. And I will say it clear, too, Senator, because I think that we need this from you, from the Congress of the United States-that these directions be made. The rules of conduct should be applied within the framework of the Constitution that will guide us in our operations. The CHAIRMAN. Thank you. Sheriff CANLIS. For the law enforcement officer, the time-proven deterrents to crime, are sure detection, swift apprehension, and cer- tainty of punishment. Each is a necessary ingredient. However, if apprehension has to wait on a formal order and appearance, the modem jet engine and other forms of high-speed transportation re- locates the defendant beyond reach, with the fruits of the crime and other physical evidence. Crime knows no time table excepting that which describes its fre- quency of occurrence, and criminals too, like the weekend and the early morning hours, and in my 25 years, I don't recall very many active courtrooms or lighted chambers or recorded availability of the judge or commissioners during these periods. It is incredible and unbelievable indeed, that men learned in the law, who are familiar with the activities of criminals, would prOpose that we should not question suspects at all. Yet.this is the case. It is riot inconceivable then that an innocent person who under the appro- priate circumstances, such as to indicate to a reasonable :ma.n, that he could in fact be the person described by a victim, would suffer the indignity of being formally charged and eventually, we hope, released. I have not found however, the description of time as anplicable to the courts as it is applied to peace officers, although the Constitution specifically provides for speedy trials. It is not outside the realm of possibility and in fact it is reality, that some court~ proceedings ta.ke many days and many months, and it is further regulated in some areas as to not more than 30 days without conser~t of the defendant. This is relevant then, because in a matter of a few hours of inquiry and interrogation, the true participation of a person could be de- termined and certainty of identity could be established or the victims can fail to identify or signify that they will refuse to prosecute, and the defendant will be immediately discharged. You should also be aware that many, many people who come to the attention of the police, are never charged with ~a `criminal offense as a result of their interrogation and the immediate substantiation of mitigating circumstances. Also close questions of law are usually PAGENO="0309" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 303 resolved to the benefit of the suspect and lie is not arrested after detention. Police operations under these rules established by the Mallory de- cision and the District of Columbia regulation, would necessitate their all being formally charged before a committing authority. The harsh references to police in the dictum of the court decisions inferring and even accusing that the situation leading to the Mallory and Killough (1960) and other similar rules, was a police technique by design, of modern-day third-degree methods in order to obtain damaging statements and admissions and confessions. I submit our record of solutions to crimes is not so good as to sub- stantiate the accusations of the heinous practices that are attributed to us in these decisions. This archaic thinking must also be influencing many of the other court directives in the review of our activities on appeal. It is a very dangerous doctrine to consider the judges as the ultimate arbitra- tors of all constitutional questions. It is one which would place us under the ~iespotism of an oligarchy. Gentlemen, Thomas Jefferson wrote that to William .Jarvis in 1820. Article IV of the amendments to the Constitution of the United States, is familiar to us all. It is of very deep concern that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated. However, .1 would like to misinterpret this as to be applied p.rac- tically, and ask you how this guarantee is to be accomplished under the ever4ncreasing restrictions on the frontline force of Government. The police, charged with the responsibility of preventing crime, are being rendered almost sterile by their obedience to the interpretations of the courts to the law of the land. I submit justice is also the apprehension, detention, and punishment of the criminal offender who is a recipient of justice when held ac- ~countable for his criminality. I respectfully urge, then, that this committee of the Senate look beyond the immediacy of this hearing and examine the whole spectrum of judicial law as it affects this vexingproblem. Law enforcement wants and desperately needs and will accept, workable rules ;that can be understood and applied to discharge their responsibility. The CHAIRMAN. Sheriff, I certainly appreciate your presence here. 1 assume, from the general tenor of your very carefully worked out statement, that you are experiencing an upsurge of crime in California. Is that correct? How about your own town? Is crime up over a year ago? Sheriff CANLIS. Upsurge just would not be adequate to describe it. lit is a real threat to the peace of the community, Senator. The CHAIRMAN. How many people do you have in San Joaquin County? Sheriff CANLIS. 275,000. The CHAIRMAN. Is your crime rate on major crimes-up from a year ago? Sheriff CANLIS. Fortunately, in some areas it is not up as would make a great impression. But I can explain it better by telling you that in a county of our size we have 900 people in jail. PAGENO="0310" 304 AMENDMENTS TO CRIMINAL STATTJTES OF D.C~ The CHAIR~IAx. How many were there in jail a. year ago, or 5 years ago? Sheriff CANLIS. The high last year. was about 1,200, and 5 years ago it was down to between 550 and 600. The CHAIRMAN. Of course, 5 years ago you did not have 275,000 people. Sheriff CANLIS. We are not. the fastest growing area in the State, Senator, but we had 250,000. The CHAIRMAN. Is it the feeling of your law enforcing officers in San Joaquin County that part. of the increase in the crime rate in a county of 275,000 people is due to the restrictions that are placed upon t.11e police in the matter of either investigation of crime, or the admis- sion of confessions? . . . Sheriff CANLIS. There is no question about it, Senator. We are fre- quently faced with recharging a man who has been arrested a short while before with an entirely new offense., .. . The CHAIRMAN. If what you say is correct, isn't this based upon court decisions involving constitutional guarantees? Sheriff CANLIS. Some of them are, yes, Senator, and some are-like the. rule of discovery is not a. constitutional question in California. But'imder the rule of discovery, which applies to us in California, the material that we have concerning a defendant is ava~iiabie" to. `the defense.: . . . . The. CHAIRMAN. This is a statutory provision?. Sheriff CANLIS. No; it is a ruling of the court. . The ChAIRMAN. This is a. court rule of your Sa.n Joaquin County court system? . . Sheriff CAXLIS. No-the State. of California. The CHAIRMAN. The Supreme Court of California? Sheriff CANLIS. I am not certain how extensive-where that rule originated. J~ may have come down from a Federa.l court. But it is there, and it applies to the entire State. Some of the `recent things that we have done to overcome this is made the same application for the rule of discovery against the defense. In some cases it has been allowed, in some cases it has not. The CHAIRMAN. On this complaint tha.t you are ma.king~ do you.take `it before your State legislature in Sacramento, and ask for changes in the law? . Sheriff CANLIS. Yes, Senator; we are there constantly. The CHAIRMAN. I take it that you do not reap the success that you think you should when going before the legislature for a change in the law. Sheriff GANLIS. The law has been changed; it has been modified; and it' has been then interpreted. The CHAIRMAN. Your problem is that you still do not . have the tools you believe you need t.o effectively work as a law-enforcement officer? Sheriff CANLIS. I am certain that is true, Senator. The Cn~TRMAx. You think von could he supplied those tools by your California State Legislature and still remain within the provi- sions oft-he Constitution? Sheriff CANLIS. I would insist that we stay within the provisions of the Constitution, Senator. I seek no escape from the Consti- tution of the United States. PAGENO="0311" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 305 The CiL&ni~rAx. I understand that. But this is where we get into this difficult `u ei If ~ on stai t gr~ ing the pohce officers some of the tools that they `ne seeking, then we are told by the constitutional ex perts it would be unconstitutional. V I am wondering where you draw this line. V V Sheiiff CANLIS It is a mattei of re'dism, Senator We have to ex- amine this quite carefully to see whether or not, in effect, this is a matter of interpretation of the Constitution as it affects human V con- duct today. V Things have changed V radically over the time when pre- ~ ions intei pret'~tions of the Constitution were made Some of these questions that are being more closely i estricted today were ruled on a long time V ago, and they V have been narrowed tre~ mendously in the recent decisions as `Lgainst pre~ ious decisions in in- tei preting constitution'd proit isions The Cu AIRMAN Well, I recognize that Notwithstanding the statement thatV you attributed to Thomas V Jefferson, we still V rely. upon courts to interpret the Constitution They are charged with the 1 esponsibility of interpi eting our Constitution If they change, and nai row cei tam constitutional provisions, then I do not know what appeal you have from that. The court is the interpreter of the Con~ stitution The onli thing we can do, as I understand your statement, would be to change the Constitution itself Sheriff CANLIS. My statement, Senator, goes V to the heart of the m~ttei of congiessional enactment of rules that would peimit us to act that would be recognized by the interpreters of the Constitution, who `tre our courts In 5A, in the Mallory decision, for instance, it is a very narrow rule. And of course the court said, at the time, that interpi eting this they interpret it as to the meaning of the thing as it w'is written Now, cert'unly the interpretation of words, the definition of woi ds, goes to the heart of this measure. VV And of course if Congress could extend this to what it, in reality, means, that a police officer has the right, undei proper circumstances, and with the proper controls to intei rog'tte, this forever then would set the court straight in interpret ing this provision-because there are adequate remedies and guarantees `md s'ifegu'trds against what is alluded to in here as police abuses Bec'iuse, I iepeat, Senator, if we were that good, we would not have thisbigaproblem. V The CHAIRMAN. I think I understand the position you are taking, Sheriff, Again I want to express my personal appreciation for your coming here and giving us the benefit of your views in this very diffi- cult area. V Sheriff `CANLIS. I am grateful for the opportunity, Senator. (Additional views subsequently filed with the committee by Sheriff Canlis follow:) V V OFFICE OF SHERIFF-CORONER, COUNTY OF SAN JOAQUIN, Stockton, Calif., October 24, 1f~6'3. Hon. ALAN BIBLE, V U.S. Senator, Nevada, Chairman, U.S. Senate Committee on the District of Columbia, Washington, D.C. V DEAR SENATOR BIBLE: In response to a question that you asked me during my recent appearance before your committee concerning the Mallory rule and the Uniform Arrest Act, I feel that my answer was inadequate and not completely responsive to your inquiry as to what the situation was in California with re- gard to this law. PAGENO="0312" 306 AMENDMENTS TO CRIMINAL STATUTES OF D.C. If you will permit me, I would like to elaborate on that answer to tell you the following: A person under arrest has a right to be taken before a magistrate and ar- raigned without unnecessary delay, and in any event, within 2 days after his arrest excluding Sundays and holidays. This is set out by the California Penal Code, section 825 and partly in 849~ Penal code section 841 requires a person making an arrest must inform the person to be arrested, of the cause of the arrest, and upon request of the person lie is arresting, of the offense for which he is being arrested. Section 849 provides: "(a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person, must be laid before such magistrate. "(b) Any peace officer may release from custody, inatead of taking such person before a magistrate, any person arrested without a warrant whenever- "(1) he is satisfied that there is no ground for making a criminal com- plaint against the person arrested. Any recOrd of such arrest shall in- chide a record of the release hereunder and thereafter shall not be deemed an arrest but a detention only. "(2) the person arrested was arrested for intoxication only, and no fur- ther proceedings are desirable. "(3) the person arrested was arrested for a misdemeanor, and has signed an agreement to appear in court or before a magistrate at a place and time designated, as provided in this code (as amended Stat,s. 1957, ch. 2147, p. 3806, sec. 6)." There are many sections in California law that are a result of codification of the decisions of the supreme court. One of these that has recently been re- writtenafter the original section was repealed, is section 647, which in several sections describes unusual conduct. Section (e) particularly, states: "Who loiters or wanders upon the streets or from place. to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surroundingcircum- stances are such as to indicate to a reasonable man that the public safety de- mands such identification." The penalty provisions of this section is, that every person who commits any of the acts which includes the above, shall be guilty of disorderly conduct, a misdemeanor. I reiterate, that I share your concern about infringement on the Constitution and its guarantees, however, I do believe that Congress can make rules by cjdl- fying the .decisions of the courts in their interpretaations of the Constitution. However, all things being equal, procedural rules and their interpretation should not be judged in the same light or with the same weight as constitutional guar- antees~ Congress has been eminently successful in this field, as witnessed by the many codes that now maintain us as the greatest government in the world, *with the other two branches of government in support I was impressed and deeply grateful by the manner in which I was treated while testifying before yOu, and want to assure you that I would consider it a privilege to be of any assistance that you might request. Very sincerely yours, MICHAEL N. CANLIS, ~heriff-C1oroner, ~an Joaquin County. The CHAIRMAN. Thank you very much, Sheriff. As I indicated earlier,. Superintendent Wilson had a transportation problem. He is not here right now. We will stand in recess until 2 o'clock this afternoon. (Whereupon, at 12:10 p.m., the hearing was recessed, to reconvene at 2 p.m. on the same day.) AFTERNOON SESSION The CHAIRMAN. The committee will come to order. I apologize to our witness this afternoon for being a little late. We had a voting session in the Senate. PAGENO="0313" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 307 STATEMENT OP 0. W. WILSON, SUPERINTENDENT OP POLICE, CHICAGO, ILL. The CHAIR~rAN. Superintendent Wilson, we are very happy to have you with us, and we will be very happy to hear from you at this time. Superintendent Wilson is the chief of the Chicago, Ill., Police Department. Do you go by the title of "Superintendent" or "Chief"? Sup~rintendent WILSON. "Superintendent" in Chicago. The CHAIRMAN. "Superintendent"? Superintendent WILSON. Yes~ The CHAIRMAN. Fine~ Just be seated, and we will be delighted to have your testimony. Superintendent WILSON. Senator Bible, I am pleased to appear be- fore this distinguished committee, and add my voice to those of Chief Robert V. Murray and other distinguished law-enforcement officials urging the enactment of title I of H.R. 7525. Title I, as you know, deals with the applicati9n of the McNabb-MaUory rule in the District of Columbia. It has been long my belief that the proponents of the McNabb- Mallory i~ule favor it out of a lack of understanding of the manner in which local police departments must function. I say "must func- tion" advisedly because after pondering the problem on many occa- si ons I. am foreed to the conclusion that there is no other reasonable way of earryh~g on local law enforcement than the traditional method commonly employed by local police ~of using. in-custody investigation to solva a large pronortion of their more serious crimes. The CHAIRMAN. What do you mean by "in-custody investigation"? Is this taking the suspect ofF of the street and to the police station? Superintendent WILSON. That is correct. The CHAIRMAN. And questioning him and interrogating him for how long a period of time? Superintendent WILsoN. For whatever period of time may be neces- sary to accomplish the purposes that society has in mind in the opera- tion of law enforcement agencies and the adjudication of criminal cases in courts. A reasonable period of time. The CHAIRMAN. Operating in Chicago you have problems just as we have problems here in the District, and such as other cities of com- parable size, but wh~i t do you do when you find a. suspect on the street? Superintendent WILSON. Well, it depends on the circumstances, ob- viously. The CHAIRMAN. Yes, certainly. Superintendent WILSON. If there are~ reasonable grounds to believe that this man has committed an offense he is taken into custody and brought to a police station. The CHAIRMAN. After you get him to the police station how long do you hold him? Superintendent WILsoN. Until the next appearance of the court, the next court hearing, which would be the following day in most instances. The CHAIRMAN. In other words, you could hold him overnight in. that situation? Superintendent WILSON. That is correct. PAGENO="0314" :308 AMENDMENTS TO CRIM~AL STATUTES OF D.C. The CHAIRMAN. You could hold him over a long weekend? Superintendent WILsoN. That is correct. We have holiday court on Saturdays. If he were arrested after a holiday court, he could be held until Monday morning. The CHAIRMAN. Without a charge being filed against him? Superintendent WILSON. Oh, he would not be booked unless a charge were filed against him. The CHAIRMAN. Well, how do you book him? Do you book him for investigation? That is not a charge in and of itself, is it? Superintendent WTILSON. Well, this is the bookkeeping process used by the police to record the arrest and, at the time of booking, a charge is made, not before court officials but the complaint is filed. You could say that the complaint is filed as a part. of the booking process. The CHAIRMAN. I still do not quite understand you there. Suppose John Doe is picked up on one of your streets in Chicago, and you have reason to believe that he is guilty of a crime of robbery and you take him to the nearest police station. Then what do you do? Do you book him as "Joim Doe" for investigation for robbery? Superintendent WILsoN. No; if we have reasonable grounds tO be- iieve~that ~he has committed a:robbery we book him for ~robbery. The CHAIRMAN. You book him striiight out forrobbery ? Superintendent WILSON. On the nose, as they say. The CHAIRMAN. I see. But if you do not or if you were just acting on suspicion what do you book him for.? Do you book him for investigation? Superintendent WILSON. Well, I am not quite sure of what you mean by"suspicion." We suspect him of having conunitted a crim& Wehave reasonable grounds to believe that he has committed this crime. We may not have all the evidenc~ necessary to bring a prosecution, but we will book him for the crime, whatever it might be. : The CHAni~rAN. Isee. This is all within the police station? Superintendent WILSON. That is correct. The CHAIRMAN. Now from the time that you pick him up on the street to the time that you take him to your police station and book him for robbery or assault or whatever it might be, do you at any time advise him of his rights? Superintendent WILSON. No; we are not required by law to advise him of his rights. The CHAIRMAN. is he not told that he is free to make a statement but if he does so that it can be used against him? Superintendent WILSON. No; he is not advised of that. This is not required by law but, effective January 1, we will have posted in all of our lockups this information, which is a section in the new code of criminal procedure adopted by our legislature at the last session, which becomes the law effective the first of January. The CIixim~rAx. Effective the first of January ll)(34. what will be the procedure? PAGENO="0315" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 309 Superintendent WILSON. The procedure will be the same. We are not required by law to tell him, "You do not need to reply to our questioning." But this information is contained in posters that will be on the walls of the lockup so that he will have an oppor- tunity to read it. All of his rights are outlined in the section of the code relating to his rights. The CHAIRMAN. This poster, advising him of his rights, has beau brought about by the enactment of a law in the State of Illinois? Superintendent WILSON. That is correct. The CHAIRMAN. Now, under the law can you hold an accused. un- til the next convening of the court? Superintendent WILSON. That is correct. *The CHAIRMAN. Is that written specifically into the law of Illinois? Superintendent WILSON. Not in those terms. We are required to ~bring him before a magistrate within a reasonable period of time. The CHAIRMAN. That follows pretty much the general law, requir- ing law-enforcement officers to take an accused before a committing magistrate without unreasonable delay- Superintendent WILSON. Yes. The CHAIRMAN. Or words to that effect? Superintendent WILSON. That is right. The `CHAIR1~IAN. Thank you, Superintendent. Superintendent WILSON Should I continue with my staternent~ The CHAIRMAN. If you would, please. Superintendent WILSON. All right.' I do `not contend that the police should violate the civil rights of an accused in investigating a crime but only that they must have au- thority. to conduct in-custody investigations of persons whom they have reasonable grounds to believe have committed crimes.' I believe `that in the McNabb and Mallory cases, reasonable grounds did exist for believing that both McNabb and Mallory had committed the. crimes `with which they were subsequently charged and convicted. It boils down to a question of the quantum of evidence needed by the police to take various steps in "the law-enforcement process which leads toward the trial of a suspect. The law enforcement process in a municipality consists of three progressive steps, `each' bcing preceded by a decision as to `whether it should be taken, based on fftcts which constitute some measure of `prob-. able cause or proof of the commission of a crime by a suspect. Each step in the series requires, for its justification, a greater degree of proof than the preceding one. The decision to take each successive step is based on the quantum of evidence at hand at that time. Each step may `add to the quantum of evidence and thus justify the succeed- ing step. The steps in. chronological sequence are: first, the street stop and questioning of a suspect; second, taking the suspect to the police sta-' tion; and third, booking th'3 suspect on a definite charge. The adjudication of the case similarly involves a progression of steps, each preceded by a decision requiring a greater quantum of .proof than the preceding one. First, the decision of the prosecutor to pre- sent the suspect for prosecution; second, the decision at a preliminary hearing to bind over or to release; third, the decision by the grand PAGENO="0316" 310 AMENDMENTS TO CRIMINAL STATUTES OF D.C. jury to indict or not to indict; and fourth, the decision at the trial to convict or acquit. If society is to be protected from criminal attacks, its law-enforce- ment representatives must be authorized, in dealing with a person who the police have reasonable grounds to believe has committed or is about to commit a. crime, to take certain steps even though they lack the quantum of proof required for a conviction or even to make .a formal charge. Let us consider the need for each of these steps in. the: pro- tection of our citizens from crinlinal attack. The first step-the street stop and questioning: When a policeman encounters someone on the street under circum- stances that would lead a reasonably prudent policeman to suspect that something was amiss, he must and should stop the suspect long enough to ask a few pertinent questions. Perhaps the explanation of the: person suspected may resolve all grounds for suspicion right then and there, thus terminating the incident. The second step-taking the suspect to the police station:* The incident described above may not, on the other hand, terminate with the immediate release of the suspect. What he says or refuses to. say, what the officer observes and what ha learns from possible wit- nesses at the scene, may add to the reasonable grounds for belief suffi- cient to justify arrest and in ay provide evidence of the need for wider- and more intensive investigation. While the quantum Of proof may justify arrest, the officer may still lack the degree of proof needed for- prosecution. I maintain that these are necessary pOlice procedures. I know of no alternative other than to take no action at all. Every citizen ex- pects and demands that the police take action to protect him against prowlers and other suspicious persons, and yet some of our couit decisions seem to deny that our police have this responsibility to stop and question a person observed under suspicious circumstances and in some cases to take him to a police station so that a decision may be reached by the officer's superior as to whether the third step should be taken. The third step-booking the suspect on a definite charge.: Bringing thesuspect to-a police station affords the pbiice~a.noppor- tumty to discharge six important obligations which they owe to the law-abiding citizens of their community. In doing so, the police may discover facts which will provide the quantum of proof needed for the third step-booking the prisoner. This does not., however, relieve them of their six investigative obligations. They must con- tinue their investigation in order to build up the quantum of proof needed to convict the criminal in court.. The first obligation-checking the suspect's story: The police would be. naive indeed, and subject to justifiable public censure, should they release a suspect who had just committed a heinous crime simply because of some unsubsta.nt.iated explanation given by the person suspected of the crime. The police have an ob- ligation to corroborate. the. story given by the suspect-and should have a reasonable period of time to do so. The second obligation-checking the ident.ity of the. suspect: When the police have some. reason for believing that the suspect may be wanted locally or in some other jurisdiction for the commission of a PAGENO="0317" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 311 crime, they should have a reasonable period of time to cheek their fingerprint and other files to ascertain whether the suspect is. a "wanted" person. They would be justifiably subject to censure should they release from their custody one of the FBI's most sorely wanted criminals.. The third obligation-getting statements from victims and wit- nesses: The victim of a criminal assault may be unconscious in a hospital. All witnesses to the assault may not yet be known to the police. The police have an obligation to search out witnesses and to obtain statefl ments from them and the victim; they should have a reasonable time to do so before releasing the suspect when their is strong reason to believe him guilty of the assault even though they lack, at that. mo- ment, the quantum of proof required for his prosecution. The fourth obligation-making laboratory analysis of physical evidence: The suspect may have in his possession a substance which may be a contraband drug, or a firearm which may be a murder weapon, or a punch or other tool which may have been used in a safe burgulary or other crime, The police would look pretty silly to the public they are charged with protecting should they release a suspect, and then in a few hours learn from their crime laboratory that the firearm he had in his possession was used in a heinous sex-murder of a school- girl. . The police have a.n obligation to make these laboratory tests and they should have a reasonable time to do so. The fifth obligation-to search for the murder weapon and loot: The investigation sometimes uncovers leads as to the location of a hidden murder weapon or loot that has been concealed or disposed of. Their recovery may provide the quantum of proof needed to justify prosecution The police have an obligation to effect their re covery and should have a reasonable time to do so The sixth obligation-a lineup for victims and witnesses:~ The police often arrest a person on probable cause and yet are not in a position to place a formal charge because the suspect has not yet been identified by the victim or witnesses A reasonable delay is neces sary in order to arr'tnge for the victims and witnesses to view and identify the suspect Moreover, a crumnal often commits a series of simil'Lr crimes in such a manner and in such a chronological and geographical pattern as to justify the police in believing that all of the crimes were committed by the same man. When a suspect is in custody, the police have an obligation to bring in all victims and wit- nesses to observe him in a lineup. They should have reasonable time to do so. Again, I maintain that these are necessary police procedures. I know of no other reasonable alternative procedure. What other course can the police pursue? The police could release the suspect with the understanding that he make himself available for viewing by the victim at a time mutually convenient to all parties. This might be practicable if the suspect were a person well known in the community, a family man, or property owner who would be unlikely to flee. But robbers, burglars, and sex offenders are usually a different type of person. If you let them go today you would be unlikely to find them tomorrow. PAGENO="0318" 312 AMENDMENTS TO CRIMINAL STATUTES OF D.C. * The step-by-step process that I have described is recognized by Judge Burger, of the Circuit Court of Appeals for the District of Columbia, in his opinion in the case of United States v. Goldsmith, 277.F. 2d 335: At the risk of stating the obvious, we take note that the process of law enforcement must, of necessity, proceed step by step * * `~. A vital factor to bear in mind is that as these steps progress the burden of the law enforcement agency increases. What may constitute probable cause for arrest does not necessarily constitute probable cause for a charge or arraignment * * ~. Hence at each stage, and especially at the early stage, when little is known that is sure, police must not be compelled prematurely to make the hard choices, such as arraigning or releasing, on incomplete information. If they are forced to make a decision to seek a charge on incomplete information, they may irreparably injure an innocent person; if they must decide prematurely to release, they may be releasing a guilty one. Questioning, which is reasonably necessary to decide whether to prefer charges or to release the suspect, ought not to be regarded as unnecessary delay. As Judge Burger said, it is undesirable to compel the police to prematurely decide, on incomplete information, whether to release or to charge a person who has been lawfully arrested. Police must have a reasonable opportunity to conduct an in-custody investig'ition in ceitain types of serious crimes in ordei to produce information on which they may decide whether sufficient groimds exist to subject the arrested person to the furthei hai dship which inei itabl~ i esults from berng charged with the cornmi~sion of a ciime I do not want to be misunderstood as advocating prolonged deten- tion I argue only for the recognition that in custody investigation is necessary for the proper performance of the police function in almost every case involving a serious crime. The only delay recog- nized under the Mallory rule is the delay necessary for the clerical procedures involved in the arraignment I submit that this is not enough but I argue only for the additional: delay reasonably necessary for the police to perform their proper investigative duties, no more, no less. The CHAIRMAN. On that particular point, would you have any knowledge as to Illinois cases that sustain that position ~ Your statute, as you have said, requires you, and I think this is fairly uniform in the States if I understand the rule correctly and the statutes correctly-your st9tute says that `ss hen an arrest is made without a warrant, either by an officer or by a private person, the person arresting shall, "without unnecessary delay" and most of these cases turn upon what is and what is not an "imnecess'~ry delay" And your point is that you should go a step beyond the delay recog- nized on the Mallory rule which I think you are correct in saying, which says the delay necessary for clerical procedures~ but you are saying that you should go one step further and permit the police to perform their proper investigative duties. This is the position you are taking? I am wondering whether this is sustained in view of your Illinois statutes by the courts of Illinois. Superintendent WILSON. Yes. There is an Illinois Supreme Court decision that bears on this question. Unfortunately, I am not able to give you the citation. I will be glad to send it to you. PAGENO="0319" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 313 The CHAIRMAN. I think it might be helpful because in this area, which each of us recognizes is a difficult area in the determination of what is and what is not an "unnecessary delay." Any cases that you have in mind that you could cite or furnish to this committee would be helpful. Superintendent WILsoN. Well, this one supreme court decision bears on this question, and Twill be glad to get you the citation. (The citation referred to follows:) OFFICE OF THE SUPERINTENDENT OF POLICE, Chicago, October 25, 1~63. Hon. ALAN BIBLE, Chairm~an, District of Columbia Committee, TI ~ senate Washvngton D C DEAR SENATOR BIBLE: Thank you again for the opportunity to appear before the District, of Columbia Committee of the Senate on behalf of title I of H.R. 7525. In support of my statement that Illinois law recognizes the authority of the police to conduct an adequate in-custody investigation, I cite People v. Jackson ((1901), 23 Iii. (2cl) 274, 178 NE 299), in which the Supreme Court of Illinois said at page 280: "The legislative directions that the accused be taken before a magistrate `forthwith' or `without unnecessary delay' cannot mean that police officers must forsake all other duties to comply, and~ neither can they mean that the police do.not have reasonable latitude to fully, investigate a crime." Sincerely, 0. W. WILSON, * Superintendent of Police.' The CHAIRMAN. If I understand you correctly, it goes to the point that you can hold the suspect not only longer than necesary for clerical procedures but that you could hold him long enuogh to permit the police to reasonably perform their proper investigating duties ~ Superintendent WILSON This is wh~t we do and this is my inter p1 etation of the supreme court decision The CHAIRMAN. Within the constitution of the. State of Illinois? Superintendent WILSON. That is right. The CHAIRMAN. Thank you, sir. Superintendent WILSON. I note that .pponents of title .1 argue that the Mallory rule applies throughout the Federal court system and. that' there is no justification for abrogating it in `the District of Co- lumbia ~lone~ While I am opposed to the Mallory rule on principle anywhere it applies7 I do not feel that jt is i1log~ca1 to outlaw it in the District of Columbia while it still remains in effect elsewhere. The District of Columbia is the only jui isdiction in which the Federal Government operates a local police* department. The necessity for in custody investigation is pecuirir to local police agencies It is not an equally compelling need to the FBI and other Federal. law enforce-. ment agencies. The police must patrol our streets and protect our lives and property. They are the first line of defense; so to speak, and it is they who are confronted on the street with the immediate hard choices as to whether to question or not to question, whether to detain or not to detain, whether to arrest or not to arrest. The investiga- tions by the FBI, the Secret Service `tnd other Federal hw enforce- ment agencies, by. their very nature, are more deliberate in character. The identity and whereabouts of the subjects of their investigations are usually well known in adv'ince It is a m'ttter of g~thering cvi deuce Ariests can be delayed until all the f'tcLs `tre known This is PAGENO="0320" 314 AMENDMENTS TO CRIMINAL STATUTES OF D.C. not so with the police who usually must conduct their investigations on the spur of the moment and often when the accused is already in custody. There is a vast difference in such operations as these. The CHAmMAN. I think that point you make is an excellent one in distinguishing the application of Federal rule 5(a) in the District of Columbia as contrasted to its application elsewhere in the United States. I call your attention to the fact that the Department of Justice, in writing an opinion which frankly is very critical of title I which we have before us, nevertheless, does recognize, as you do, that we have a different problem here in the District of Columbia. This is what the Department of Justice said and it seems to me that it fits in very well with what you have just stated: The Mallory rule is not frequently invoked in Federal crimthal cases in juris- dictions other than the District of Columbia. The reason is twofold: First, only in the District of Columbia do the Federal courts have broad juris- diction over crimes of violence which characteristically lack eyewitnesses and independent evidence. It is quite common in cases of homicide, yoke, robberies, rapes and certain other crimes that there is no third eyewitness, and it is often very difficult for the complaining witness to make an identification. In homicides there is no complaining witness at all. Thus, confessions assume far greater significance as evidence of guilt and it becomes important to defend- ants to exclude their confessions in the courts of the District of Columbia. Second, by contrast most Federal criminal cases in other jurisdictions involve frauds, mail thefts, narcotic violations, and the like, where there is substantial evidence apart from a confession; i.e., contraband property, financial reports, tax returns. etc. The CHAIRMAN. Chief Murray is charged, in this Nation's Capitai, with operating under the Federal rule very much with the same type of functions that you are charged with, as the superintendent of police in the city of Chicago. I think you have made a very fine distinction here, and I think it is one that is not quite often understood. Thank you, sir. Superintendent WILSON. There are those who seem to advocate that the police can perform their function without questioning suspects at all; that the solution of crimes is merely a matter of proper skill and training to find physical evidence at the scene of the crime. These same individuals argue that this is the practice routinely followed by the FBI and they ask rhetorically why the police cannot be equally skilled. I submit that there is no substitution for questioning. Even in the relatively few cases where incriminating evidence is found at the scene of the crime, the evidence rarely speaks for itself. The testi- mony of someone, or an admission by the accused, is usually needed to tie the evidence to the a.ccused and to make the physical evidence relevant as proof. I cannot express this thought better than was done in the opinion in the case of Trilling v. United States (104 U.S. App. D.C. at 182): At least one of the prime functions, if not the prime function, of the police is to investigate reports of crime or the actual commission of crime. The usual, most useful, most efficient, and most effective method of investigation is by questioning people. It is all very well to say the police should investigate by microscopic examination of stains and dust. Sometimes they can. But of all human facilities for ascertaining facts, asking questions is the usual one and always has been. The courts use that method. PAGENO="0321" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 315 As I said before, I am against the Mallor~,' rule on principle. I feel that the purpose of the machinery of criminal justice should be to ascertain the truth so that the innocent may be freed and the guilty punished. The Mallory rule arbitrarily excludes the truth on the peculiar theory that by doing so, the court can punish the police for what the court considers to be a violation of the rights of the accused. But it is society that is being punished; nOt the police. The only beneficiary is the criminal. As a consequence, crime is overwhelming our society. The correct approach, it seems to me, is to raise the standards of our law enforcement personnel, to attract better personnel by decent salaries, to improve our training, and to hold individual law enforce- ment officers responsible, through criminal and disciplinary proce- dures and civil liability, for any violations of the civil rights of an accused, regardless of whether the accused is guilty or innocent. This is the approach used by other common law countries-the United Kingdom, Canada, Australia, and New Zealand. These coun- tries. have not permitted themselves to become overwhelmed by crime and yet no one would say that their systems of criminal justice have any less regard than ours for the rights of the individual accused. That concludes my statement, sir. The CHAIRMAN. Well, thank you very much, Superintendent Wil- son, for a very thoughtful and well-thought-out presentation. Might I ask you a few questions about your Chicago police force? No. 1, your jurisdiction extends over a city of how many people?.. Superintendent WILSON. 3.5 million. The CHAIRMAN. Your jurisdiction is for the city of Chicago. Do you extend into the suburbs? Superintendent WILSON. No, we are restricted to the city boundaries of Chicago. The CHAIRMAN. Within the city boundaries you have approxi- mately 3.5 million people? Superintendent WILSON. That is correct. . . The CHAIRMAN. How large a police fOrce do you have? Superintendent WILsoN. Including civilians, about 13,000.. .. . The CHAIRMAN. You said "including civilians." In what capacity do you use civilians? Superintendent WILSON. Clerical, skilled positions, laboratory posi- tions, programers, methods analysts, forms control, crossing guards- these are the principal ones. . We have a force of about 10,500 sworn personnel. The remainder are civilians. * The CHAIRMAN. 10,500 is actually the police force? Superintendent WILSON. Right. The CHAIRMAN. Do you have a reserve force? Superintendent WILSON. No, we do not. The CHAIRMAN. What is your salary scale? . Superintendent WILSON. It is, in my judgment, quite inadequate. A patrolman, after 5 years, gets $6,015 per annum. . The CHAIRMAN. What do you start out with?. * Superintendent WILSON. Something in the neighborhood of $5,000. The CHAIRMAN. After 5 years they get up to about $6,000? Superintendent WILSON. Yes. This is the peak. 25-260-64--pt. l-21 PAGENO="0322" 316 AMENDMENTS TO CR~IINAL STATUTES OF D.C. The CHAIRMAN. Do you have much turnover in your police depart- ment? Superintendent WILSON. Ai~ attrition of about 40 per month, but only about 10 of these leave, to seek employment elsewhere, not includ- ing those who leave on pensions. The CHAIRMAN. What type of retirement system do you have? Is it an adequate retirement system? Superintendent WILsON. After 55 years of age and 20 years of service a man gets-I have forgotten-something more than 50 percent of his salary, but precisely what amount- The CHAIRMAN. After 20 years and 55 years of age? Superintendent WILSON. Right. The CHAIRMAN. I take it from your statement that you have ex- perienced an increase in crime in the city of Chicago over the last few years. Superintendent WILSON. Well, this is a difficult question to answer, S~hator Bible. We had a very large statistical increase following my arrival i~ Chicago 31/2 years. ago. This statistical increase resulted from a change in reporting pro- cedures, a centralization and adequate control, which was set up so that we could satisfy ourselves and the community that we are record- ing all crime that becomes known to the police. This year we have enjoyed a slight reduction in total indexed crimes, and we feel that this trend will continue throughout this year so that we may end the year with about a 5-percent reduction. The CHAIRMAN. Is there a feeling by you and by the police officers generally that the restrictions that are placed upon the police have accounted for the increase in crime in your city? Superintendent WILsoN. Yes; there is this conviction on my part and on the part of the members of the department, who are concerned with the analysis of crime in the administration of the department. The citizens, however, I cannot speak for. \Ve have made some efforts to get some relaxation on the restrictions that have been imposed upon us in the State legislature, and some efforts to obtain weapons that we feel are essential in our fight against crime. The CHAIRMAN. When you say "weapons" to what do you refer? Superintendent WILSON. Well, the two specific things that I have reference to are two bills that we introduced in the last session of the legislature; one authorizing audio surveillance under court order or wiretapping, if you please, and the other, syndicated gambling, a bill not designed to deal with the player but the operator, the higher echelons in organized crime. The first bill we failed to get out of the judiciary committee of the senate. The second bill, however, was reported out of the judiciary committee of the house of representatives unanimously. Something happened. It never got considered on the floor of the house. The CHAIRMAN. As a result of the `Mallory decision do you sense more restrictions being imposed on the police by the courts under which you operate? PAGENO="0323" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 317 Superintendent WILSON. Nothing that I think I could trace specifi- cally to the Mallory rule, but there is always lurking in the back of my mind the fear that the Mallory rule may one day be imposed~ countrywide, on all law enforcement agencies, placing the Chicag& police in the same position that the Metropolitan Police are confronted with here. I think this would be disastrous. The CHAIRMAN. Of course, the Mallory rule is the rule of procedure pronounced by the U.S. Supreme Court, with regard to the Federal rule of criminal procedure. I would not see how that would be binding on your State legisla- ture. It might have some effect on the courts of Illinois. They might be inclined to follow the Mallory decision. Superintendent WILSON. `Well, I think not only persuasive to the courts, but persuasive to the legislature also, in considering the appli- cation of similar rules in the State of Illinois. That is, our State legislature could do exactly what Congress has done, and since, I presume, State legislatures look to Congress for guidance perhaps some of them may be tempted to apply the Mallory rule or your Federal rules on the local police. This, I think, would be disastrous for our country. The CHAIRMAN. I just wanted to clarify that. You feel it would be harmful to you in two different ways, No. 1, on the part of the State legislature and, No. 2, on the part of the courts? Superintendent WILSON. Right. The CHAIRMAN. Thank you very much, Superintendent Wilson. It has been very kind of you to come here and give us the benefit of your knowledge in this field. Superintendent WILSON. Thank you, Senator Bible. The CHAIRMAN. If we have nothing further this afternoon, we will stand in recess until 10 o'clock tomorrow morning. Thank you. (Whereupon, at 3:07 p.m., the committee was in recess, to recon- vene at 10 a.m., Wednesday, October 23, 1963.) PAGENO="0324" PAGENO="0325" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS, AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA WEDNESDAY, OCTOBER 23, 1963 U. S. SENATE, COMMITTEE ON THE DISTRICT OF COLUMBIA, TVa$hington, D.C. The committee met, pursuant to recess, at 10 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presiding. Present: Senator Bible. Also present: Chester H. Smith, staff director; Fred IL. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard Judd, pro- fessional staff member. The CHAIR1~IAN. The committee will come to order. Judge IHoltzoif, we tire delighted to see you back with us again this morning. As you know, we are probing the problems of title I, the so-called Mallory rule. We are happy to have you with us, sir. You are very patient, very kind, and very considerate to come back. STATEMENT OP HON. ALEXANDER HOLTZOPP, JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Judge HOLTZOFF. Mr. Chairman, I greatly appreciate your courtesy, and I want to express my pleasure in appearing before this distin- guished committee and cooperating with it. I would like to say, in order to make the record clear, if I may, that I am not coming here on my own initiative-because I would have some hesitancy about doing that. I am coming here. a.t your very courteous request, conveyed to me through your counsel, Mr. McIntyre. You asked me to discuss the rule of the Mallory case. May I preface my discussion by emphasizing something that perhaps is unnecessary, and that is tha.t I have the highest re.spect and admira- tion for the Supreme Court. In my humble judgment, it is perhaps the grea.test contribution made by the Founding Fathers to our po- litical institutions. But an expression of disagreement with a decision of the Supreme Court is not any disrespect for the Supreme Court. Some very great men in the past have on occasion expressed disagreement with the Supreme Court, and we think none the worse of them. For example, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin Roosevelt have all expressed disagreement on occasion with specific decisions of the Supreme Court. And there have been occa.sions in the past in which the Congress has taken 319 PAGENO="0326" 320 AMENDMENTS TO CRIMINAL STATUTES OF D.C. action to override some ruling or decision of the Supreme Court. That has never been construed as a showing of disrespect. to that august tribunal. If I may take one striking illustration-we would not have the income tax today if some very fine people, some very fine people who were leaders in Congress were not instrumental in securing the enact- ment of the income tax amendment in order to override a decision of the Supreme Court holding that under tile Constitution, tile Fed- eral Government could not levy an income tax. So it is in that Spirit I am going to discuss tile Mallory case, with all respect for tile Court. At the outset I want to say that the rule in the Mallory case-and I think tilis should be emphasized-is not a rule of constitutional law. It is a rule of evidence. And as a rule of evidence, it can be changed by subsequent decision of the Court, it can be changed by legislation. Tile CHAIRMAN. Right at that point, Judge, I thoroughly agree with you that this is not a decision that hinges upon tile construction of the Constitution. I think Justice Frankfurter made t.ilat very clear in his opinion. But tile Justice Department now, in their official report before us, states that any modification of rule 5(a) as proposed by title I of H.IR. 7525, raises serious constitutional difficulties in dispensing safe- guards which tile Mallory rule assured to persoiis charged with crime. Now, this is the current position of the Department of Justice, as evidenced by their official opinion, signed by Mr. Katzenbach, under date of September 13, 1963. I would be pleased to have your observations on that position, be- cause I agree with you that tue. decision of the U.S. Supreme Court in the Mallory case does not turn on a constitutiona.l point; it turns on a strict interpretation of rule. 5(a) of the Federal Rules of Criminal Procedure. I am sure you and I are in complete agreement on that.. But over and above that., do you have any doubt as to whether or not the present title I which is before us in H.R. 7525 would or would not be constitutional under the various provisions of tile Coil- stitution? Judge HOLTzOFF. I respectfully disagree with the views expressed by the Department of Justice. But I do know this: The conimunica- tions from the Deputy Attorney General which you have just read does not go so far as to say that .the Mallory rule is a rule of con- stitutional law. It does not venture any further than to suggest t.ilat possibly there lurks a constitutional question. But even On that I disagree. Tile CHAIRMAN. Tile point tilat concerns me ~fl the Mallory decision, and in ejust.ice Frankfurter's pronouncement, is tilis one sentence where he says: But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt. Justice Frankfurter thereafter discusses the duty that is enjoined upon an arresting officer to arraign without unnecessary delay. In this regard he says: . . But the delay must not be of a nature to give opportunity for the extraction of a confession. PAGENO="0327" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 321 Now, I agree with you that he does not specifically point to any constitutional prohibition, and apparently it is a strict interpretation of a Federal rule. But it seems to me that there is inherent in this opinion, in those two sentences, the fear that unless such procedure is followed there may be a violation of a constitutional right. Now, I would like to have your comment on that, because that is one of the problems that we have before this committee. Judge HOLTZOFF. I venture to suggest that on analyzing the Mal- lory case-and I have had occasion actually in my work to read it several times, and other cases along the same line-I construe what I think Justice Frankfurter and some parts of the opinion makes clear: That what they are trying to do is introduce a means of enforcing, or a sanction for enforcing rule 5(a), which requires that a prisoner he promptly brought before a committing magistrate. Or to put it another way: They are imposing a penalty for failure to comply with the rule, so as to encourage compliance with it. Now, the right to preliminary hearing is not a constitutional right. As far as confessions are concerned, the rule up to the McNabb and Mallory cases was that an involuntary confession was inadmissible, a voluntary confession was admissible. And I think that is the rule in most of the States today. It was the rule of the common law,, and it was the Federal rule until these cases came along. I think as a result of some decisions the exclusion of an involuntary confession has become a matter of constitutional right, as a lack of due process, because it is apparent to us in this day and age that a confession should not be forced by torture, be it physical or mental. Now, the rule of the 11! allory case, however, excludes a voluntary confession-it excludes a confession merely if the defendant or the arrested person was not brought before a magistrate without unneces- sary delay. Now the words "unnecessary de'ay" have been construed rather narrowly. Sometimes-well, the decisions have not been en- tirely consistent in the various circuits. The second circuit construes it much more liberally than, for example, the District of Columbia Court of Appeals. The District of Columbia Court of Appeals puts a very narrow construction on what is unnecessary delay. And that increases the problem here, because here the types of crimes that else- where are triable in State courts are triable in the Federal courts. Now, it is for this reason that I am convinced that the proper con- struction of the Supreme Court opinion is that they were not en- deavoring to promulgate a rule of constitutional law, but merely a rule of evidence. And of course, the Supreme Court has the right and power to promulgate a rule of evidence. And the Congress has equal power to repeal or abrogate it by legislative action. Now, I think there is no doubt-and here I am drawing on my own experience in the trial of cases. I spend between one-third and one- half of my time on criminal cases. There is no doubt in my mind that prosecutions are hampered by the enforcement of the rule of the Mal- lory case, and that there are occasions where an otherwise guilty per- son, who has made a voluntary confession, is acquitted or found not guilty because the confession has to be excluded under the Mallory case, and there is not sufficient other proof standing alone to justify conviction. PAGENO="0328" 322 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Then we are troubled very frequently with borderline cases. For example, I had one case where confession was made after three-quar- ters of an hour, after a person was brought to police headquarters. In that case I held that was not an unnecessary delay. The court of ap- peals sustained me. Other cases where the delay might have been just a little longer, the confession has been held inadmissible. I venture to suggest that so far as substantial justice is concerned, or abstract justice is concerned, the question as to whether a person was brought before a magistrate within an hour or 3 or 4 or 5 or ~ hours-that question has no bearing on the question of substantial and abstract justice, so long as the confession or statement is voluntary. Now, of course, in determining whether or not a statement or a con- fession is voluntary, if the defendant has been held incommunicado all the time, that matter ma.y be considered in determining whether the confession is voluntary. But mere delay I venture to urge should not be considered to be in and of itself sufficient to exclude a confession. As I said a moment ago, if I may repeat, the requirements of sub- stantial justice do not require it. As a matter of fact, substantial. jus- tice is at times defeated by the rule. Now, title I of the pending bill, H.R. 7525, I venture to suggest adequately deais with the matter. Subsection (a) would do away. with tile rule promulgated in the Mallory case that delay alone in bringing a person before a committing magistrate may-is safficient to exclude a confession made during the period of delay. However, the defenda.nt is safeguarded and protected by subsection (b) which provides that no statement made by any person during an interrogation by a law enforcement officer while such person is in cus- tody shall be admissible unless he has been previously warned as to his rights. As a matter of fact, a warning as to a. person's rights has never been- has frequently been given by police officers, but was never required by law. This would add an additional safeguard to defendants by re~ qiiiring such a warning. Subsection (a) I think would be a step in the direction of progress in the enforcement of criminal law. I very often like to refer to a statement made by Justice Cardoza in tile leading case of Snyder against. Massachusetts. He said in his inimitable manner, "Justice, though due to the accused, is due to the accuser also." The CHAIRMAN. Thank you very much, Judge. I certainly appre- ciate your appearance before me this morning. May I ask you just one question, because I think I understand you clearly. That is, whether title I, H.R.. 7525 (secs. 101 (a) and (b), in your considered judgment would stand a constitutiona.l test. Judge HOLTZOFF. Oh, yes, in my opinion. May I add this ob- servation. This bill is an omnibus bill, and it is possible that some parts of it will not appeal to some and others will. Now, title I can be separated from the rest of the bill and enacted as a separate measure. I feel strongly that it is constitutional. The OHAIIDIAN. Thank you very much, Judge. Judge HOLTZOFF. Thank you for your courtesy, Mr. Chairman. The OHA~MAN. The next witness will be Prof. Fred E. Inbau, Crim- inal Law Department, Northwestern Umversity School of Law, PAGENO="0329" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 323 Chicago, Ill.; former director of the Chicago Crime Laboratory, author and lecturer on police practices and subjects. At this point, I would like to have inserted into the record a short biographical sketch of Professor Inbau. (The biographical sketch referred to follows:) Professor of law, Northwestern University (since 1045) ; member of the bar of Louisiana and of Illinois; graduate of Tulane University (B.S. and LL.B.) and of Northwestern University (LL.M.). From 1933 until 1938, a member of the staff of the Scientific Crime Detection Laboratory of Northwestern University. After the transfer of the laboratory from the university to the Chicago Police Department, Mr. Inbau became its first director, and from 1938 until 1941 he served as director of the Chicago Police Scientific Crime Detection Laboratory. Based upon his crime detection laboratory experience, he prepared and pub- lished his book, "Lie Detection and Criminal Interrogation," a standard text on that subject. Mr. Inbau is also author of "Self-Incrimination: What Can an Accused Per- son Be Compelled To Do?"; "Cases and Comments on Criminal Justice," a standard text in law for the teaching of criminal law and criminal procedure; and "Criminal Interrogation and Confession." The CHAIRMAN. Professor, we are very happy to have you with us this morning. STATEMENT OF PROF. FRED B. INBAU, CRIMINAL LAW DEPART- i\~ENT, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, CHICAGO, ILL. Mr. INBAU. Thank you very much, Senator. I appreciate your inserting my biographical sketch, Senator, be- cause I am not here just in the capacity of a professor of law, but as one who has had some practical experience in the police field, and particularly with reference to the interrogation of criminal suspects and witnesses, both in the Chicago Police Department and the scien- tific crime laboratory when it was part of Northwestern University. There is a cobweb of judicial misconception about this McNabb- MaUo~y rule. I would like to speak with reference to four of the prin- cipal misconceptions. The first one is that when the Supreme Court of the United States laid down this rule initially in 1943 it was only effectuating a congres- sional intent expressed in an earlier congressional enactment. That is not so. The second misconception .to which I would like to address myself is that the third degree is widespread, and that the McNabb-MaUor~j rule is the only effective way of preventing such deplorable practices. The third misconception is that the police can get along very well with this rule. The fourth is that since the FBI and other national agencies func- tion rather effectively, and they do, despite this rule, so can the police in the District of Columbia. Now, with reference to the first misconception, I think we should take a look at the basis for the rule originally in the McNabb case in 1943. Congress had enacted a statute in 1893 requiring the taking of an arrested person before the nearest Federal Commissioner for the pur- PAGENO="0330" 324 AMENDMENTS TO CRIMINAL STATUTES OF D.C. pose-this is what was stated in Justice Frankfurter's opinion, at least what he thought the pui'pose of it to be- To avoid all the implications of secret interrogation. Now, Congress had enacted this statute requiring the taking of the arrested person before the nearest Federal Commissioner. But I sub- mit that it was not for the reason ascribed to it. by Justice Frankfurter in the McNa.bb case. Not only was that not the reason for it, but this statute initially said nothing about taking someone to the nearest Fed- eral Commissioner without unnecessary delay. This pai~icular statute that applies in the McNabb case made no reference to the time within which this was to be done. This statute-and I traced the congressiona.l history of it-was en- acted for an entirely different purpose. than the one ascribed to it in the McNabb case. It was actually enacted for the purpose of putting a stop to a racket t.hat had developed between Federal marshals and Federa.l comlmssioners at that time. And you will find all this in the Congressional Record. It. was not an order to protec.t the accused per- son from secret interrogations. The original bill that was t.he basis for the. MeATabb case was an amendment to an appropriation bill in Congress. Now, the reason that I mention all this is because the Court in the 2Jie~Vabb case indicated . that it was only effectuating a congressional int.ent. All right. If the court was wrong in that-in other words, this was not the intent of Congress-it seems to me that the. present Congress is all the more privileged to set the records straight. as to what. this Congress intends. It certainly was not the intent of Congress. with this 1893 bill, and I hope this present Congress will make it clear that it is not the intent of Congress at the present time, that you do not ap- prove of this rule which severely handicaps the police. I like to put it in a little more drastic term-that handcuffs the Police. And that is what is being done here in the District of Columbia. Mr. Chairman, you asked Judge Holtzoff a question about the con- stitutionality of the proposed bill, and I would like to make some statement on that, if I may. It is quite clear in t.he original McNa.bb bill, which laid down the rule that was only perpetuated in i1Iaiio~y-the court made it quite ciea.r that it did not found this rule on constitutional considerations; it was merely-it was laid down by virtue of the supervisory power over-within the Supreme Court over lower Federal courts. It was not based upon constitutional considerations. And the State courts have held unanimously that this is not binding on them, they are privi- leged to accept or reject it.. Now. I think tha.t being so, if you have here a bill, as you do have, which would abrogate this rule, it seems to me that it is completely constitutional, and Congress has the privilege and I think the duty to enact this particular piece of legislation. The CHAIRMAN. The citations of similar provisions in the State statutes; for example, on this subject, and particularly in my own State of Nevada the duty is expressed this way. "The defendant must in all cases be taken before the magistrate without unnecessary delay." I think that is fairly sta.ndard in many of the States. PAGENO="0331" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 325 Now, my question to you, as an authority in this field, would be this. Have sections similar to the one I just quoted been construed by the State courts and the U.S. Supreme Court to be constitutional? Mr. INBAu. Well, Mr. Chairman, let me put it this way. We re- cently had a decision from the Illinois Supreme Court in a. case in which the police delayed in taking someone before a judge for arraign- ment or for the preliminary hearing. The police did delay. They did it for the purpose of completing an investigation, and also for the purpose of interrogating the accused. In other words, they delayed. Now, the Illinois Supreme Court held that this was all right- even though we have a statute in Illinois saying that the arrested per- son must be brought before a judge without unnecessary delay. The Supreme Court of Illinois held that as long as the purpose of this was to complete the investigation, to question the defendant, and as long as they used proper means, no force, no threats, no promises, as long as they did that, and the time during which they did it was not un- reasonable, there was a compliance with the statutory provision. Now, what I am suggesting here is that if the question came before the Illinois Supreme Court, the constitutionality of a statute permi:t~ ting the police to hold someone, say, for 3 hours, 4 hours, 6 hours, I have no doubt the Illinois Supreme Court would have sustained it in the light o~f what `it' said in this case, and I am referring to the case of People v. Escobido. That is a recent decision of the Illinois Supreme Court. Now, other State courts have upheld the constitutionality of the Uniform Arrest Act. It is on the books in three States. And no- where along the line has the U.S. Supreme Court said that the States are not privileged to do this, or that Congress is not privileged to do this, to give the police an opportunity to complete. their investi- gation and to interrogate an arrested person. And I differ. I have not read the statement to which you refer, Mr. Chairman, but if it seems to imply that this is unconstitutional, I wholeheartedly agree with Judge Holtzoff-I `do not think it is unconstitutional. I think it is a constitutional measure. The CHAIRMAN. The statement to which I referred is contained in the letter of the U.S~ Department of Justice dated. September 13, 1963, signed by Mr. Katzenba.ch, and forwarded to this committee. I will now read the pertinent portion of the letter to you: Title I as passed by the House of Representatives is intended as a response to the Supreme Court decision in Mallory v. United $tate.s, 354 U.S. 449 (1957). However, it raises serious constitutional difficulties in dispensing with safe- guards which the Mallory rule assured to persons charged with crime. Now, I assume that the Department of Justice is alluding to what Justice Frankfurter stated in the Mallory decision that persons under arrest be taken without unnecessary delay before a committing magis- trate. In accordance with the Mallory decision about the only inter- rogation that was to be made was. a routine interrogation, not a pro- ceeding that was intended to lead to a confession. Then the Department of Justice, in its September 13 letter, states this: If a change in some of the recent interpretations of the Mallory rule is to be legislated, certain essential safeguards should be preserved to save the bill from constitutional attack. PAGENO="0332" 326 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Now, that is what I was directing your attention to. Mr. INBAu. WelL Mr. Chairman, I have no doubt but that there are some members of the U.S. Supreme Court who would like to see, and who would impose, if they could, the Mallory rule upon the State as a constitutional requirement.. The Court has not said that so far. And I would suggest to this Congress that this awesome responsibility be left up to the Court, and that Congress should not, by fear of pos- sible constitutional invalidity, refuse to pass this bill. I think it is vitally necessary. And if the time comes when it is held to be a con- stitutional requirement, I would like to have the privilege of coming before the appropriate committee to suggest that we have a constitu- tional amendment to change it, for the simple reason that it is abso- lutely necessary for the police to have this opportunity to interrogate criminal suspects. Now, with reference to the second misconception- The CHAIRMAN. Before you get to the second misconception, may I rephrase my question a little and ask you this: Do you know of any U.S. Supreme Court decision that would hold to be constitutional a provision similar to the one that we have before us in title I? Mr. INBAU. No, I do not-except I think we. have to go back to the McNabb case, the original case that laid down this rule. And in that c~se the Court very specifically disclaimed any constitutional basis for the decision. The Court said: We are laying this down only in the exercise of our supervisory power. Now, if the Court wanted to make this a constitutional requirement, it had a wonderful opportunity in the 3icNabb case. It could have said so specifically in the Mallory case. But the Court itself has never said this. The CHAIRMAN. I understand that the McNabb-Maiiory line of de- cisions, are not based on constitutional grounds, rather they go to the construction of a rule of procedure. Is that correct? Mr. INBAu. That's right. The CHAIRMAN. But my question, aside from the Federal court system, is there any provision similar to the one that is now before us where it is indicated that evidence including but not limited to state- ments and confessions otherwise admissible shall not be inadmissible solely because of delay in taking the arrested person before the Corn- missioner? Now, do we have any construction of a provision of that kind by the U.S. Supreme Court, to your knowledge? Mr. INBAU. Not specifically on that. It may be this, Mr. Chairman, that the Department of Justice is referring to. As we all know, the U.S. Supreme Court has imposed the exclusion- ary rule on all the States as a constitutional requirement. Now, you may deduce . from what the Court did in the case that laid down this rule, that if the police delayed in bringing someone before a magis- trate, in defiance of a State requirement, that then anything obtained during that delay is inadmissible because it would be unconstitutional to use such evidence. In other words, it laid down a rule of exclusion. with respect to confessions as they have-as regards evidence of a physical nature, that has been illegally seized. PAGENO="0333" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 327 Now, again I say I have no doubt that several members of the Su- preme Court would like to* impose the MeNabb-Mctllor~j rule on the States as a constitutional requirement. I have no doubt about that at all. And it could be another one of these 5-to-4 decisions, holding this particular bill unconstitutional. The CHAIRMAN. I understand the position you are taking. The Justice Department cites no specific authority. The Deputy Attorney General says in his letter that this would raise serious constitutional difficulties. It would seem to me as a lawyer, if they had a case that would point to these two sections being unconstitutional, they would have cited it. I suppose there is no such case, for the simple reason that probably none of the States have a provision comparable to the title now before us which says that a confession shall not be inadmis- sible solely because of delay in taking before the committing magis- trate. Mr. INBAU. The reason that you do not have it in the States is be- cause the States do not have the McNabb-MaUory rule, anyway. The CHAIRMAN. Since there is no State legislation comparable with legislation before us, then there probably is no final decision from the Supreme Court bearing on this particular point. Mr. I~BAU. That's right. The CHAIRMAN. All right, thank you-and pardon my interruption. Mr. INBAU. The second misconception that I would like to discuss for a few moments is that this notion that third degree practices are prevalent within police departments-and the only way to stop them is by rules such as the McNabb-MaUory rule. Now, first of all third degree practices are no longer prevalent in this country. I knew what the situation was 15,20 years ago. I know what it was in my own city of Chicago. I know what it is now. It used to be officially condoned. It is not officially condoned now in the Chicago Police Department and other police departments with which I am familiar. Not only that, but if the police officer indulges in such third degree practices, severe disciplinary measures are taken. Now, I think we ought to clear the air on that. We are not living in a time when the police are becoming more lawless than they used. to be. They are becoming much more law abiding. And now is an. inappropriate time to keep clobbering them with these rules that pre-. vent them from functioning effectively. I think what we have ~o bear in mind is tha.t there are other ways of protecting the public from police abuses short of depriving them of the necessary opportunity to interrogate criminal suspects. The only way you ever do it is to pursue a practice of selecting better police,. training them properly, seing that there is a minimum of political. interference-and by that I mean some ward committeeman and per-. sons like that inducing them to do something wrong; to see to it that. there is a. promotion system based upon merit considerations and not political considerations. An.d also to see that they are adequately compensated. That is the only way we are going to protect ourselves. from police abuses. We are not going to do it by any judicial decree. And I think the courts have stepped out of their traditional constitu- tional role, as a judiciary branch. of the government, and they have gone into this executive area.. I do not think it is the province of the courts to do that. PAGENO="0334" 328 AMENDMENTS TO CRIMINAL STA~tXTES OF D.C. I would also say this to the people who are opposed to this present bill, those who favor the McNabb-Mallor'y bifi. If you want to really put a stop to all police abuses, then outlaw confessions completely. Let's face up to it and out~aw them all. Let's don't fool around with these rules as we have been dealing with them up to now. Let's outlaw all confessions. I would certainly urge anyone who is in favor of that to bear in mind the consequences of such a rule. Crime right now is increasing four times faster than population. And I venture to say if you had such a rule as that it is going to in- crease tremendously faster. It would be inevitable. And I think some commonsense consideration will support that. We could put a stop to all fatal accidents on the highway, prac- tically alT of them, if we required by Federal and State law that all automobiles have governors on them so they cannot go faster than 20 miles an hour. If you want to achieve this kind of objective, you want to get. complete safety on the highways, that is one sure way to do it.. But we would pay an awful price for safety on the highways if.none of us could go faster than 20 miles an hour. Again, I say if you want to put a stop to all police abuses, prohibit interrogations completely, don't let the police use any confessions. Just bear in mind what the consequences of that would be. Now, this notion that the police can function effectively with the Mc!tTabb rule, that they can get along with it fairly well-you have heard from Chief Murray. He has told you what the situation is here in the District of Columbia. Let ~me suggest this to you on the basis of my own experience and observation over the years-that most crimes can only. be solved by the interrogation of criminal suspects and i~itnesses. And let me give you just a few simple illustrations of this. A woman is walking down the street late at night. She is grabbed, taken into a dark alley, and raped. She knows this was a man, he looked big to her, about 6 feet tall, he had on a blue sweater or some- thing of that sort. That is about all she can tell the police. He does not drop his hat at the scene of the crime with his name in it. He does not leave any other clues. In that type of case you can bring the FBI laboratory to the scene and you would still not be able to ~nd any clue leading to the identity of the perpetrator of that offense. The only way you solve thOse crimes is by picking up people on reasonable grounds, reasonable suspicion, and questioning them. The CHAIRMAN-. If you have a reasonable ground, at that point, why don't you take him before a committing magistrate and charge him with the crime, if he has reasonable cause to believe he has com- mitted it? Mr. INBAU. Mr. Chairman, you cannot support a charge before a Federal commissioner by an officer's reasonable belief that this man committed the crime. That may be adequate for the purpose of the apprehension. But if you take him before a Federal commissioner, you are going to be able to support the charge-he has not made an admission. And in those cases, unless you get an admission, and he tells you where he threw this woman's purse after he robbed her fol- lowing the rape, or something of that sort-unless you get evidence PAGENO="0335" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 329 of that sort, you cannot support a charge before a Federal commis- sioner, you would not hold him on any charge. In most of these cases unless you get a statement or confession from the suspect himself, you are helpless with the prosecution. Let me give you another example. Take a robbery on the street. A man is walking down the street at night, someone comes up and hits him over the head, lie is knocked unconscious, his wallet is taken away from him. Again there is no hat at the scene of that crime with the man's name in it. How else can the police solve these crimes without picking up individuals upon the reasonable belief that he may be involved in this, and questioning him. But I want to make this perfectly clear. When I say interrogation, I do not mean the use of methods that are apt to make an innocent person confess. I am unalterably opposed to force, hitting an indi- vidual, threatening him, making promises of leniency to him. I am opposed to all of those methods. But there are other psychological techniques and tactics that are usuable to get confessions from the guilty without endangering the rights and safety of the innocent people. And when I say the police have to resort to these interrogation devices, I mean that kind of an interrogation, and not the kind of 15,20, or 25 years ago. Now, another misconception-- The CJiAIR1~rAN. It seems to me that that really gets to the heart of this problem. Witnesses have appeared before this committee, and indicated that it is difficult to spell out the type of police interrogation that you are speaking about. Certainly, Justice Frankfurter, in construing rule 5(a), indicated that police officers could not take a suspect to police headquarters in order to carry out a process of inquiry that lends itself even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt. In the next paragraph he concludes by saying: The delay must not be of a nature to give opportunity for the extraction of a confession. Mr. INBAU. Mr. Chairman, when Justice Frankfurter talks about extracting a confession, it gives the impression that what the police do is to force confessions out of individuals, and that is the only way you can get confessions out of people. Now, the years that I was at the crime detection laboratory, my special interest was in interrogation. I have written a book, two books on the subject-one as recently as November-in which I have described the methods by which you can interrogate people without it bordering on extraction. You see, many of us have been reading too many detective stories and watching this stuff on television and the movies, where you can solve these crimes just by being very sharp in one respect or another. You do not solve crimes that way. People do not come in and blurt out a confession of guilt. They have to be talked into it, persuaded into confessing. Now, this is not extraction. I When you sympathize with a person who killed another one, and you play upon his sympathies to get him to tell you the truth_in my judgment, that is not the extraction of a confession. That is obtain- PAGENO="0336" 330 AMENDMENTS TO CRIMINAL STATUTES OF D.C. ing a confession. But it is not the extraction. You have not put him through the wringer to get it. When you suggest to him that his partner has confessed the crime, and then he says, "All right, I will tell you," and then he tells you where the gun is, where the loot is, or where the body is-to me that is not extracting a confession; that is obtaining a confession. 1Vhen you use the word "extraction it means th'tt you put some body through a wringer, you are putting him on the rack, you are threatening and abusing him in order to get him to tell you the truth. That is not what we are talking about. I know that Mr. Wilson yes- terday did not have that in mind. The other people did not have t.hat in mind. That is not what we are asking for. What we are asking for is an opportunity to question people in a way that is not apt to bring forth a confession from an innocent person. The CHAIRMAN. Is there any way that that theory and practice- it is a practice, that you are suggesting-is there any way that that could be defined and written out in cold print, saying, "Mr. Police Officer, you can interrogate this suspect in this manner." Of course, I realize this is hard to reduce to writing. Mr. INBA~. I did it. I came up with what I thought. was the only kind of advice that could be given to the police. I have, analyzed all of these Supreme Court decisions, and the decisions of the State courts and the Federal circuit courts. And the only sensible guide I could come up with is to tell the police this. And after all, you cannot give them a Supreme Court; decision and tell them, "This is what you are supposed to do." As I view it, thIs is the way interrogation should be conducted, this is, the way police should be instructed with respect to interrogation procedures. Ask yourself this question when you are ready to inter- rogate someone: "Is what I am about to do or say likely to make an innocent person (onfess?" If the answer objectively given is "Yes," don't do it. On ttie other hand, if you can objectively say: "What I am about to do or say is not apt to make an innocent person confess," then go ahead a:nd do it. You see, this was the rule until the MelVabb case; This was the rule. This is the rule in England today. The test of voluntariness- not a test as to whether the police were~ naughty' and delayed `half. an hour in getting somebody before a magistrate. The confe~sion' rule developed initially to protect persons from untrustworthy confessions. I think we ought to go back to that. Justice Frankfurter, in the Colum case, which was a State case, once again said the test of confession admissibility is voluntariness. Now, the Court has vacillated on that over the years. But some members of the Court cannot avoid trying to discipline'the police by laying down these unrealistic rules, and ignoring the consequences of it insofar as the public welfare and safety are concerned. Now, this I think brings me appropriately to this next point I wanted to make. You frequently have heard it said, I know you have heard it here- "After all, the FBI does a fine job, and they are saddled with the McNabb-Ma1l~r~,' rule, so others can get along with it, too." PAGENO="0337" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 331 A comparable fallacy is for someone to say, "The British police do not have to do this kind of interrogation, so we can get along without doing it here, too." Now, with respect to the second one, the British police-that is ~ completely fallacious notion. I can refer this committee to the refer- ences of two police officers in England, high-ranking police officers, in print, where they admit that they have to avoid the stringent judges' rules in England, which prohibit in f act an interrogation of someone after they are ready to charge him. They tell you how they circumvent it. They just l?ostpone in their own minds the time when they are going to charge him with the crime. Or if they interrogate him, they are doing it to remove an ambiguity from his statement. Now, with reference to the national Federal police- The CHAIRMAN. You mean the FBI? Mr. INBAU. The FBI, or other national police-the Treasury De- partment, and so on. When they are on a case, a Mann Act case, a counterfeit case, even an espionage case, that type of case lends itself to solution by investigative procedures short of interrogation. The FBI can build up a beautiful espionage case against someone with- out ever having talked to him. They can get somebody on a Mann Act case without ever having said hello to him. Those cases are different, however, from what Chief Murray and his police are confronted with here in the District of Columbia. They do not have that kind of a case. They have got rapes in dark alleys, robberies on dark streets, burglaries, and crimes of that sort that do not lend themselves to solution by these processes. Furthermore, they have thousands of cases to every one the FBI has. Now, mind you, this is not to deprecate the FBI. I have the high- est respect for it. But I think we are wrong when we say if the FBI can do it, Chief Murray here in Washington, D.C., can do it-he better go ahead and do it. You are dealing with two entirely different situations. The CHAIRMAN. I think in fairness to the Department of Justice they make that very clear, in pointing out just exactly what you have pointed out. And I read it into the record yesterday, and will not read it into the record again, except to indicate that they agree with you that here in the District of Columbia the chief of police is more closely allied and similar to the chief of police that you have in the city of Chicago than to the FBI. The Department of Justice recog- nizes that. Of course, as you may remember, that was one of the points that was made, before the Judiciary Subcommittee on the gen- eral amendment that was proposed at that time to rule 5(a), and the majority report of the Judiciary Committee of the United States back in 1958 indicated very clearly, even though this problem was recog- nized, that they were not going to make a distinction and have one rule of evidence here in the District of Columbia and a different rule of evidence in the Federal court systems. Senator O'Mahoney said that in the majority report which he flied accompanying the bill. So I think we do recognize the very differ- ence that you comment on. And I think it is one that should be emphasized and reemphasized time and time again, because there is a difference This is not the FBI operating here-this is in fact a chief 25-260-64-pt. 1-22 PAGENO="0338" 332 AMENDMENTS TO CRIMINAL STATUTES OF D.C. of police operating similarly to the chief of police in the city of Chicago. Mr. INBAU. That's right. Well, Mr. Chairman, I have taken up enough of your time. I would, however, like to more or less summarize what I have been trying to say here-that the police in Washington, D.C., as in Ohi~ago, or New York, or Los Angeles-they need time to interrogate criminal suspects; they need that opportunity. If the law-abiding public is going to be protected, that is an absolute necessity. Incidentally, it is fashionable now to talk all about individual civil rights-that's fine. There is a Bill of Rights, and for the record I am in favor of the Bill of Rights. But I also am aware of the fact. that there is something in the preamble of the Constitution talking about the purposes of the Constitution to protect the public welfare and promote the public * tranquillity. We have got to look at the Constitution as a whole. It was not jiist a Bill of Rights. There is something else in there-it was designed for the protection of the public generally, and for the public welfare. Now, the police also need, in the city of Chicago, Washington, D.C., the right to stop people on the street under reasonable circumstances. A man in a dark alley at 3 o'clock in the morning-they need the right to find out who he is, what is he doing there. And I would hazard a guess that the people who are opposed to giving the police this right would be the first ones who would insist it be done if their home ha.d been burglarized, their daughter had been raped, or they had been robbed. They would expect the police to go looking for the man who did it., and to use these very processes that they are opposed to in principle. * The police also need the. authority that is given them is this pro- posed bill for the detention of material witnesses. I think all of these as a package are deserving of favorable congressional attention. Now, let us all bear in mind that we are not living in a vacuum, we are not living in a make-believe world, we are not living in a world where we can all do as we please without limitations or controls upon our individual conduct. In driving a car, if I'm in a hurry I find it awfully annoying to stop for a red light, to st.op for a stop sign. That is awfully annoying to me. I would prefer to do it another way. But I have come to recognize, as all of us have, that in the public interest, public safety, we have to have these kinds of controls and limitations. As a businessman, if I were a businessman, I think I would find it very, very inconvenient to comply with the various Federal and States regulations and controls upon my business. I would prefer, as a businessman, I think, to go ahead and do it the way I please. But in the public interest, the businessman today is really handcuffed. I am not saying that is undesirable. I think it is desirable. But let us recognize there are other people than criminals who are being confined to adhere to and forced more or less into complying with rules that are absolutely necessary for our collective existence. If I'm in a hurry at night, and I run down the street and take a short cut through an alley and a policeman stops me, wanting to know who I am, what I'm doing there, I would find it inconvenient to be detained for this purpose. But I hope I have sense enough to re.cog- PAGENO="0339" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 333 nize the fact that what he is doing is in the public interest and requires this kind of inconvenience on my part as on individual. These are the prices we pay for the privilege of living in an orderly society. Everything we do as law-abiding citizens today is circum- scribed by considerations of public welfare and public safety. We have accepted this. I think we have a right, therefore, to require criminals or those per- sons who are reasonably suspected of being criminals to make a similar confession. Thank you very much. The CHAIRMAN. May I ask a question in connection with the con- cluding part. of your very fine statement where you discussed title III of the bilL Now, are investigative arrests sanctioned in the State of Illinois? Mr. INBAu. In effect, they are. The CHAIRMAN. In effect they are. Is it written into the statute? Mr INBAL No, it is not in the st~tute, Mr Chairman But as I mentioned eurlier, there is a recent Illinois Supreme Court decision, the case of Escobido, in which the Illinois Supreme Court recognized the fact that the police need this opportunity to complete this investi- gation after an arrest and before taking an individual before a judge for a formal charge. The CHAIRMAN. I thought that case went to the admissibility of a confession. Mr. INBAU. Well, it did. But the court very specifically said that the police need this opportunity. It stated that in the opinion. The' CHAIRMAN.' If you have a citation that could be furnished to the staff, we would appreciate it. In your opinion, is title III `t constitution'il provision ~ Mr. INBAU. Yes, sir. The CHAIRMAN. My understanding is the lawyers who have studied it rather exhaustively here in the District of Columbia seem to have grave doubts as to the constitutionality of this particular provision. Mr. INBAU. The constitutionality has been upheld by a couple of State supreme court decisions in States which have the Uniform Arrest Act, after which this one is modeled. Now, it seem to me if you have the supreme court of a couple of States upholding the con- stitutionality of it, Congress is privileged to take a chance on its * constitutionality, despite the fact, that there are some lawyers who have grave doubts. The CHAIRMAN. Would those State supreme court decisions find their way to the U.S. Supreme Court, and there be denied on certior- ari? * Mr. INBAu. As a matter of fact, certiorari was denied in one of those cases. Now, that does not mean the U.S. Supreme Court ap- proved it. The Court has always said that it is not to be accepted as an approval of what was done below-the mere denial of certiorari. But the Supreme Court did in one of those cases. The CHAIRMAN. Well, in your judgment, based upon two or three ~Supreme Court decisions which hold the uniform arrest statute con- stitutional, you would think that the investigative arrest provision in title 3 would be held constitutional. PAGENO="0340" 334 `AMENDMENTS TO CRIMINAL STATUTES OF D.C. Mr. INBAU. It should be held constitutional. What bothers me. though, Mr. Chairman, is that there are some members of the Court thoroughly committed to labeling anything of this sort unconstitu- ,tional. I would hazard a guess there is going to be a 5 to 4 decision one way or the other. Now, the trend-as you saw it recently-three Justices are now talking about holding it a violation of the Constitution to impose a death penalty. They spoke with reference .to a rape case. So I do not want to be in a spot of assuring this committee what the Supreme Court is going to do. I do not know. What I am saying is in the light of the history back of these constitutional provisions, in the light of all that has been said by the Court thusfar, we have reason to believe that the Court should or would uphold the constitutionality of this. And I trust the Court will come around to doing that before the situation becomes so hopeslessly bad in the District of Columbia, for instance, that the force of those circumstances will compel the Court or compel constitutional amendments to give the police this privilege. It takes time to come up with a constitutional amendment. And meanwhile, I am seriously concerned as to the safety of the public of this country. The CHAIRMAN. Thank you very much. I certainly appreciate your appearance before us today and obtaining the benefit of your views in areas that you are proficient. Thank you very much. Mr. INBAU. Thank you, Senator. The CHAIRMAN. Our next witness is Mr. George Shadoan, of Wash- ington, D.C., an attorney, adjunct professor of criminal law, George- town University. STATEMENT OP `GEORGE W. SHADOAN, ATTORNEY AN]) `ADJIJNCT PROYESSOR OP LAW, GEORGETOWN TTh1IVERSITY LAW CENTER, WASHINGTON, D.C. Mr. SHADOAN. Mr. Chairman ~nd gentlemen, thank you for the op- portunity of presenting my comments concerning titles I and III of H.R. 7525 to the committee. I am George Shadoan. Until August 1 of this year I was an asso- ciate professor of law at Georgetown University Law Center and di- rector of the Georgetown legal internship program. In that capacity I was an immediate participant in or supervised the handling of something like 1,500 criminal cases over the past few years, all `on the side of the defense. I would like to preface my remarks by saying that in the .course of participating in or supervising the handling of 1,000 to 1,500 crim- inal cases in the District of Columbia, I have come to recognize a need for the police interrogation of `suspects. I do not automatical- ly oppose any bill which seeks to `allow increased police interroga- tion of suspects. I believe that the bill advocated by U.S. Attorney Aeheson sometime earlier this year warrants serious consideration, ~and I believe that with modification it would be acceptable to me and to most fair-minded people. I do not endorse H.R. 7525 which has been popularized as the omnibus crime bill. Looking over the list of imposing witnesses appearing before this committee to present their PAGENO="0341" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 335 views regarding the bill it is obvious that many competent men will demonstrate to this committee the specific advantages and disad- vantages of this legislation. Therefore, I asked myself what I could say that would be helpful to the committee which would not be a repe- tition of other witnesses' observations. I concluded that some com- ments concerning the stated needs for this legislation might be help- ful. It seems to me there has been far too much reliance upon the opinion of experts and far too little attention to verifiable facts. These facts, to the extent possible, are the ones that I would like to speak about. It seems to me from what I read in the paper day after day that the public, and indeed the Congress, has been subjected to a cam- paign arising from fear and frustration, and the arguments which have been made to support this legislation are so obviously false as in my judgment to manifest an intellectual contempt for Con- gress and the public. For example, these arguments may be summarized from the House committee report, that this legislation is needed, first, to protect inno- cent people from charges that would later be dismissed, leaving them with a stigma of a police arrest record; and, too, as Professor Inbau has just said, to catch and convict the guilty. And finally, of course, if this legislation is enacted, that famous telegram to the underworld that Washington is soft on crime will be retracted. In my statement, which I have submitted- The CHAIRMAN. And it will be incorporated in full in the record. (The statement referred to follows:) STATEMENT OF GEORGE W. SHADOAN, ATTORNEY AND ADJUNCT PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAw CENTER Mr. Chairman and gentlemen, thank you for the opportunity of presenting my comments concerning titles I and III of ll.R. 7525 to the committee. I am George Shadoan. Until August 1 of this year I was an associate professor of law at Georgetown University Law Center and director of the Georgetown legal internship program. I would like to preface my remarks by saying that in the course of participating in or supervising the handling of some 1,000 to 1,500 criminal cases in the District of Columbia, I have come to recognize a need for the police interrogation of suspects. I do not automatically oppose any bill which seeks to allow increased police interrogation of suspects. I believe that the bill advocated by U.S. Attorney Acheson sometime earlier this year warrants serious con- sideration, and I believe that with modification it would be acceptable to me and to most fair-minded people. I do not endorse H.R. 7525 which has been popularized as the omnibus crime bill. Looking over the list of imposing witnesses appearing before this committee to present their views regarding the bill, it is obvious that many competent men will demonstrate to this com- mittee the specific advantages and disadvantages of this legislation. Therefore, I asked myself what I could say that would be helpful to the committee which would not be a repetition of other witnesses' observations. I concluded that some comments concerning the stated needs for this legislation might be helpful. Out of the fear and frustration of this emergency-and I recognize the emergency-otherwise responsible public figures have waged a campaign of hysteria. In doing so, they have used arguments so obviously false as to mani- fest an intellectual contempt for Congress and the public. The result is illus- trated by the committee report of the present bill. It urges that the legislation. is necessary (I) to protect innocent persons who would otherwise be charged with crime because of police inability to investigate and clear them prior to* formal charge, (2) to catch and convict the guilty, and (3) to retract that "telegram" to the underworld that Washington courts mollycoddle criminals and are soft on crime. PAGENO="0342" 336 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Because of the deep emotion involved, I suggest that the Congress cannot rely- upon opinions even of experts. The testimony of law enforcement officials before Congress has been so conflicting as to strain the credence of the most gullible. For example, Police Chief Murray told Congress in 1957 "if the Mallory deci-- sion stands, it will result in complete breakdown in law enforcement in the District of Columbia * * an overwhelming majority of these major crime cases, and maybe as much as 90 percent, are solved after the subject has beeii brought in and questioned." And in 1958, the Chief stated to Congress2 that "most of the murders, the rapes. and robberies that I have come in contact with would have gone unsolved and unpunished under the Mallory decision." These frightening predictions did not move the Congress to legislation either year. Furthermore, they did not prevent the Chief from testifying at an ap-- propriations hearing in 1961 that the police had improved their solution rate of criminal homicide and other major crimes between 1958 and 1959; and that in. fact the Washington police solved twice as many of these crimes as the na- tional average.8 Supporting the Chief's appropriations testimony are statements from former U.S. attorney, Mr. Oliver Gasch, and the present U.S. attorney, Mr. David Acheson. In 1960, the Washington Post4 reported Mr. Gasch as stating in a speech that Mallory questions were of controlling importance in less than 5 percent of the criminal prosecutions. And U.S. Attorney Acheson, Mr. Gasch's successor, indicated in a 1962 television interview that in only two cases per year did his Office drop a prosecution or lose a conviction because of the Mallory rule. Finally, even upon the executive hearings concerning the present bill, when presented with a letter critical of the police by Mr. Whitener, we find Chief Murray ~tating defensively: "I would like to make a couple of comments. I have been appearing bëfore committees of Congress for a number of years, and no one has ever heard me minimize the crime problems in the District of Columbia, but all large cities have these crime problems too * * *. And I think if you check the records, you will find our Department is second to none in the Nation in the clearance of crimes." 6 I believe that this series of quotations alone should lead us to the conclusion that Congress must insofar as possible supplement such opinions with fact, and~ not to confuse the one with the other. The factual evidence at my disposal indicates that the louse report premises are false. Briefly, I should like to attempt to establish three points: 1. Measures allowing arrest without probable cause and subsequent de- tention and interrogation without the presence of counsel or presentment before a magistrate would not significantly aid the police in securing eon- victions of the guilty; 2. At the same time such measure would not result in the thorough investi- gation- necessary to clear:innocent persons faced with suspicious ~circum-. stances; and 3. The only telegraphic message to the underworld that Washington is soft on crime and that our courts mollycoddle criminals has been sent by anti-Mallory propagandists who transmit a false message. With reference to the first point, the statistics from the Police Department's own files conclusively show the futility of allowing unfettered interrogation. In 1960, the so-called investigative arrest was in full flower. The police could arrest and detain for indeterminate periods without regard to the presence or absence of probable cause. And one legitimately asks how successful were these `Hearings before the Special Subcommittee To Study Decisions of the Supreme Court of the United States of the House Committee on the Judiciary, 85th Cong., 24 sess.. pt. 1, at 42-43, as reported in Kamisar, Public &zfety V. Individual Liberties, 53 Jour. Crim. Law an1l Criminol. 190 (1962). 2 Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong., 24 sess., p. 124. ~ Hearings on the District of Columbia appropriations for 1961 at pp. 619-620 as re- ported by Kamisar, supra. note 1, at p. 191. See Kamisar, supra, note 1, at p. 192. ~ See report and recommendations of the Commissioners' Committee on Police Arrest for Investigations, July 1962, p. 17, which states that "the information was supplied by the U.S. attorney in a television interview. `Dimension 4,' WRC-TV, Apr. 1, 1962, and was subsequently confirmed to the committee." ~ Joint hearing before the District of Columbia Committees of the Senate and the House of Representatives on the increasingly serious crime situation in the District of Columbia. Feb. 6, 1963, p. 52. PAGENO="0343" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 337 unfettered interrogations? The police statistics anwer the question, and as far as I know their answer cannot be controverted.7 These statistics show that in 1960 one-third of all felony arrests were for investigation. That year, 1,356 people were detained for investigation for 8 hours or more. Of these 1,340 or all but 16, were ultimately released without charge of any crime. That means that only 1.2 percent were even charged with a crime. The same year, 690 persons were detained for more than 12 hours. Of these, only seven were ever charged with a crime. Again, in only 1 percent of the cases did detention and interrogation yield any measure of success to the police. But what about the major categories of vicious crime for which detention and interrogation is said to be essential? In 1960, 221 persons were arrested for investigation of homicide-all but 1 were released. During the same period, 120 persons were arrested for investigation of rape-all but 3 were released without charge. And so it goes. Let me say again that so far as I have been able to determine, these facts are not subject to dispute. But police officials and others who must know of their existence have chosen to sluff over or ignore them in the widespread public hysteria of the day. Another point which officials have chosen to ignore is that the great majority of these so-called investigations occurred in secret without knowledge on the part of anyone that the arrested person was in custody. Second, I would like to comment upon the bill's proponents' solicitude for the innocent suspect. They say that unless the police are allowed to detain and in- terrogate, many innocent persons will be charged with crime, and thus given a police criminal record, and also spend at least some time in jail before the case is kicked out of court. I may note parenthetically that the proponents' concern does not reach so far as to advise the suspect of his right to counsel nor to re- quirè'an opportunity to contact counsel. Similarly, contrary to other recent legislative proposals, no provision for a verbatim recording of the interrogation is included. We are told that we can rely upon the discretion and self-restraint of the police to conduct a thorough investigation to clear the innocent and con- vict the guilty. `I must state initially that so far as I know it is true that alibis and identifi- cations are checked out in the sensational cases. My remarks will relate to the run-of-the-mill armed robbery, street robbery, and aggravated assault which really make up our frightening statistics. In these cases my conclusion is that the common police approach is simply `to get enough evidence to satisfy the prose- cutor's and the committing magistrate's requirement of probable cause, and hopefully, enough evidence to convict. At t.hat point the police investigation stops and the case is marked "solved" or "cleared" so far as their records are concerned. Any investigation thereafter is a matter for defens'e concern-and cooperation with the defense attorney's investigation is limited in most cases. Fairness, requires the caveat that my conclusions are limited by my experience, which though fairly `wide, cannotcarry' `the weight~ of stati~tica1 fact. However, I am confident that my remarks would not be challenged by any knowledgeable attorney who `has frequent occasion to defend persons accused of crime. Even in the `short time since I received the unexpected invitation to appear here, I had no difficulty in recalling enough instances within my own experience to illustrate my remarks. An example `of the police "clearance" or "solution" philosophy may `be found in the occasional lament of an assistant U.S. a'ttorney that his cas'e rests upon the "race to the hospital." Contrary to the pessimistic dictum of Ecclesiastes, apparently the Metropolitan Police do award the race to the swift. The injured party who first reaches the hospital is asked who cut or shot him and the named person is arrested and charged. No further investigation is conducted as this is "a matter for the defense." An excellent example of the "race to the hospital" and the police clearance concept is found in the case of United States v. Joseph Taylor, Cr. No. 198-61. The charge was assault with a dangerous weapon. The complaining witness had been' ~severely cut ,about the face with a broken bottle. When I first inter- viewed the defendant, he had already been in jail over a' month `since' `his arrest because of his inability to make bail. He told me that he had acted in self- defense against a drunken and unprovoked attack with what appeared to be a knife. The complaining witness fled the scene after being hit with a bottle which broke and cut his face. Shortly thereafter, the police arrived and despite See the analysis of the police records reported In the report and recommendations of the Commissioners' Committee on Police Arrest for Investigations, July 1962, pp. 39-40. PAGENO="0344" 338 AMENDMENTS TO CRIMINAL STATUTES OF D.C. his protestations that an impartial eyewitness was in the room to prove his innocence, the police told him that this was a matter for the defense, took him to District of Columbia General Hospital for emergency treatment of his cut from the assault and then placed him in a cell where he had been until I was appointed to represent him. He had been arrested and indicted without further investigation solely upon the word of the complaining witness. Ultimately, I was able to interview the eyewitness named by the defendant. He was found in the presence of the complaining witness and his wife. All readily confirmed the truth of the defendant's story. The complaining witness said that he had made the false charges because he was drunk and angry at the time. Now he was afraid to change his story because he had sworn to the complaint. How- ever, faced with the witness and his own wife, he agreed to tell the truth at trial. When he did, the case was dismissed. By this time the accused had spent over 2 months in jail. My recollection is that the accused's entire police record consisted of one previous charge of assault. The man upon whose word he was charged, in addition to being angry and intoxicated at the time he made the complaint, had a police record showing that he had been convicted of public drunkeness 17 times since 1945, of being disorderly 4 times in the same period, and had a simple assault charge and a charge of assault with a dangerous weapon dismissed for want of prosecution. Similarly, in United States v. William Kemp, Cr. No. 1033-60, a gas station had been broken into, ransacked, and a car stolen. Within a short distance, two men were found in the car. One, William Kemp, stated that he had been picked up a short time before at his home, which was within about a block and a half of the arrest site. He said that numerous witnesses were there to cor- roborate his story that he could not have been present when the crime occurred. Notwithstanding the close proximity of the home and witnesses a few minutes away, no effort was made to check out the story. Even worse, no attempt was made to take any fingerprints at the scene of the crime. The officers testified that this was a matter for the defense. One can perhaps appreciate that with its limited force the police in the city cannot thoroughly investigate every crime. And if so, this should be clearly understood by the Congress and the public who make up our juries. But more serious in my judgment is the police philosophy that their job is to simply collect enough evidence to get by the committing magistrate's requirement of probable cause and to convict some suspect. In United States v. Ernest DuBose, Cr. No. 152-61, the charge was that of street robbery with a butcher knife. In the early morning hours a powerful young Negro accosted a young white woman on the street, dragged her into an alley, and brandishing a butcher knife, he robbed her of what money she had on her person. In a pretrial motion to suppress the evidence of the girl's lineup identification, the police officer testified that 13 pictures had been taken to the girl's apartment and that from them she selected the picture of the accused. No attempt was made by the police to check out the five alleged alibi witnesses. At trial, the girl testified that she had been shown only one picture, the picture of the accused, and after hearing the five alibi witnesses testify, she drew aside the prosecuting attorney in the corridor and told him that she could no longer be sure of her identification. The case was then dismissed. In discussing this matter, I wish that my concern were limited to the police "clearance" philosophy. In large part it is, but not entirely so. Among some policemen. I cannot say how many, there also exists what I would call a con- viction philosophy. I mention this because of the House report's statement on page 19 that: "This title will place considerably more reliance upon the voluntary and in- telligent self-restraint of the police force than does the Mallory rule. The committee feels that such reliance is not misplaced." For my part, until I am assured that my experience with the "conviction" philosophy is the exception rather than the rule, I must conclude that such reliance is misplaced. The conviction philosophy runs thusly. The policeman sincerely reaches his personal conclusion that the suspect is guilty. Then he feels justified in actively seeking a conviction, sometimes by questionable methods-the self-restraint relied upon by the committee is missing. Consider for example the charges against two brothers in United States v. Howard W. Lee an4 John Tham~as Lee. U.S. Nos. 1113-1117-62. An elderly grocer, along with certain patrons, had been held up in his store at gunpoint. ~The grocer's age and poor vision weakened his identification of the defendants. His vision was so bad that he sometimes had to feel the coins to determine their 4lenomination. A teenage girl was so frightened at the time that she could afford PAGENO="0345" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 33 no help in identification. The only relatively calm and physicaly fit adult avail- able to firm up the identification was a young white woman, Jacquelyn Moore. With the committee's permission, I believe that the transcript speaks best for itself at this point. The following colloquy took place between the assistant U.S. attorney and Miss Moore during direct examination: Q. "Now, were these men just standing plain in this lineup or were they directed by the police to make certain movements or to say anything? A. "They were directed to each one say, `Get down on the floor lady,' because that is what the boy said to me in the store. "That is all. They were just standing in a straight line. Q. "And each one of them was asked this question? A. "Yes. Q. "Now, at what point was it then? Was it after they made this statement that you thought, you said you thought you could identify the voice of one of these parties, and so on? A. "Yes. Q. "And did the police use coercion at all to make you make this statement? A. "What do you mean by coercion exactly? You mean try to persuade me? Q. "Yes. A. "Yes. Q. "In what way did they try to persuade you? A. "When they first asked me, you know, I was shown the boys, and each. one said, `Get down on the floor, lady,' the boys in the lineup, and. they were directed to turn around with their backs to us. And one of the detectives said,. `Is there anybody here?' "I said, `No,' that I couldn't identify anybody right offhand. "And then he said, `Oh, comeon, Jacquelyn.' "Then I said, `No, there is nobody here.' "He went into another room. There's two rooms for the lineup, and be said.,. `Are you sure there is nobody there? One has confessed.' "But he didn't say which one, and he said, `Well, this boy,' who was, I believe,. Howard Lee, who was second from the right. "I said `His voice sounds like it.' That is all. "He said, be did say this, `What difference does it make, it's a couple more niggers.' "Mr. DUNCAN (the defense attorney). I'm sorry, I did not hear that statement. Would- "The WITNESS. I said the detective who said, `Oh, come on Jacquelyn,' to me~ when I said there was two boys in the lineup who looked like the ones in the store, he said, `What difference does it make, it's just a couple more niggers.' "By Mr. HOGAN. Q. "What detective said this? A. "Do I have to name him? "The COURT. Yes. "The WITNESS. Beltrante. "By Mr. HOGAN. Q. "Now, which detective said, `Oh, come on now, Jacquelyn'? A. "Beltrante. Q. "Is that all he said before you identified that you thought Howard's voice was the one? A. "Uh-buh. This was more or less, this is just an interpretation of mine, my interpretation. He was not so much trying to pressure me into it, I think; just his attitude, you know. Q. "But this is all he said to you? A. "Yes, sir." Similarly, in United States v. Eugene Evans (Cr. No. 1062-60), the accused moved to suppress a Mallory-type confession. The police detective responded' by testifying that the confession had been made right after the arrest while on the way to the precinct in the police cruiser. Of course, if true, this. testimony evaded the Mallory rule by the "threshold" confession device. The defense at- torney asked for a forthwith subpena of police records. These revealed that the defendant had not even been taken to the precinct in the detective's cruiser, but in fact had been transported there in a paddy wagon. The police officer driving the paddy wagon was called to support the records, and after he did so the confession was suppressed. The irony of this case is that it was later used as an example at Northwestern University to show the evil of the Mallory rule. PAGENO="0346" 340 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Let me repeat that it is not my contention that these cases reflecting the "con- viction" and "clearance" philosophies are necessarily representative of general police atitudes in this city. They are selected from one man's experienëe and cannot be regarded as a meaningful sample. But they certainly are sufficient to make me fed very uncomfortable when a committee report speaks of reliance upon police discretion to protect the innocent. I would also repeat that there are large areas of this city in which I am afraid to walk alone, day or night, be- cause of the criminal element. And I want action to remedy the situation. But I prefer additional men on the beat to increased police authority and discretion. And in the absence of any action I am not so frightened as to commit my free- dom to the benign discretIon of a benevolent police force. Before leaving the committee report concern for the innocent, there is one further comment to be made. This bill will not eliminate the problem caused by police records of charges which have been dismissed. When the investiga- tive arrest was still practiced, I once had a case in which the question of whether the prosecution would go forward or be dropped depended upon the police check of his investigative arrest record to see if his past arrests for investigation had been for the same offense. The only way to eliminate the enduring stigma of an arrest record is to provide that no record at all of the detention be made- no booking or any other notation. If this were done the citizen would be complete- ly in the hands of the police. There would be no record of when he w-as picked up or why. We would be helpless. I have always assumed that one purpose of such records was to protect the arrestee. For my part, I would prefer the pro- tection to the absence of stigma. Finally, I'd like to say something about that famous telegraphic message to the underworld that "Washington is soft on crime." It is simply incredible to me that any responsible person would be willing to make this statement in view of readily available facts which demonstrate its falsity. The U.S. Bureau of Prisons statistics show that the sentences meted out by our courts are among the stiffest in the Nation, second only to Illinois. And the probation rate is among the lowest. Also there is a strict parole policy. When the strict parole policy is combined with the sentence imposed, one can make a meaningful judgment as to which jurisdiction keeps its convictees in prisons for the longest terms. In this, the District of Columbia is second to none. Our convicts serve more time than similarly situated convictees in any other jurisdiction. When these facts are compared with the high conviction rate; a rate in excess of 90 percent in felony cases and. I believe, something around 80 percent in mis- demeanor cases, it seems clear that our courts can not legitimately be charged with mollycoddling criminals. Thank you. Mr. SHADOAN. Thank you, Senator. In this statement, I have attempted to select some of the most tell- ing quotes from Police Chief Murray and other law enforcement offi- cials, that from their own words demonstrate the. inconsistency and conflict of the positions they have takeii with reference to thisproblem. One moment we are told there will be a colnplete breakdown in law enforcement if the Mallory decision stands, and a few years later we are told in another posture, and for another reason, by t.he same voice, that after all we face as a matter of fact-in the executive session held earlier this year-Police Chief Mnrray said after all we face the same problems as other cities, and our crime clearance rate is second to none. I won't go into this, because what I have to say really does not rest upon the weakness or inconsistencies of tile proponents of this bill. I would like to suggest. to the cOmmittee some facts which I believe tend to establish three pomts. The first is thatmeasures allowing an arrest without.probable cause and subsequent detention and interrogation without tile presence of counsel or presentment before a magistrate will not significantly aid the police in securing convictions of the guilty. Now, I realize t.his is a most extreme sort of police freedom. I am not speaking about this bill. But even if we had that, I would like to PAGENO="0347" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 341 present some data that would show that this would not really solve the problem. And let me sa.y again I recognize that there is a problem. I am not minimizing the crime problem in the city of Washington. I believe action is needed. But not this action. Secondly, I would like to suggest to the committee why I do not believe these measures would aid the police or would result in the clearance of innocent persons who would otherwise be charged with crime. And I will support that with some specific instances which I believe can be checked out and verified. Finally, the third point that I would like to make is that the only telegraphic message to the underworld that Washington is soft on crime and that our courts mollycoddle criminals has been sent by nrrti-Mallory propagandists who transmit a false message. Looking at the first point, that is, that the police would be able to catch and convict the guilty if they only had these handcuffs removed. Well, in 1960 in this city we had what was known as the investigative arrest, it was in full force. There was no requirement that this arrest meet the requirement of probable cause. The man was not taken be- fore a magistrate. The police could keep him as long as they wanted, apparently to iiiterrogate him. Now the statistics that I will refer to the committee here come from the Police Department's own files. In 1960 one-third of all felony arrests were for investigation. Iii That year L356 people were detained for investigation for 8 hours or more. Of these 1,340, or all but16, after that interrogation, were re- leased without any sort of charge at all. That means that 1.2 percent ivere charged with a crime, after this prolonged detention. The same year, there were 690 people who were detained for over 12 hours. Seven of these were ultimately charged. Again, in all 1 percent of the cases were the police aided in the solution of crime in any measurable way. Now, Police Chief Murray at various times has told the Congress that most of the murders, the rapes, and robberies he has seen were solved because of interrogation that would not be solved if the Mallory rule stood. He has said different things at different times. But let's look at the statistics on these rnaj or categories of crime. In, that year, 1960, 221 persons were arrested for investigation of homicide. All but one were released without any charge. During the same period, there were 120 persons arrested for investigation of rape. All but three were arrested without any sort of charge. And so the statistics go. The ChAIRMAN. The only point I would ask you, simply for clarifi- cation2 is why you select 1960. You say that you s~lect it because investigative arrests were in their full flower then. What was the statistical record in 1959 or 1961 or 1958? Mr. SHADOAN. I select these statistics, Senator, because these are the statistics represented in the report to the Commissioners by the so- called Horsky committee. * Everyone is not allowed to go through the police, files and. find out what the facts are. I can only submit to this committee those statis- tics presented in that report. This points up something thatis very important, at least in my judg- ment * PAGENO="0348" 342 AMENDMENTS TO CRIMINAL STATUTES OF D.C. These statistics that I have presented, some of which are. from 1961 and some of which are from 1959 in the Horsky report-naturally I pick out the statistics which seem the most dramatic. But they all basically are in this area. These have been available. People have known about them. But otherwise responsible officials have continued to make state- ments who knew of their existence, they have sloughed off these things or ignored them. It seems to me they must be dealt with. The CHAIRMAN. The year 1960, you say, is fairly representative of the actual statistical experience concerning investigative arrests in the Police Department in Washington, D.C. Is that the point you are making? Mr. SHADOAN. Yes. I cannot. say that 1960 is representative of every year. I do believe that the report shows that with some slight modification in the percentages, the area that was studied came up with about the same result. ~Tow, I would have to make this qualification. This statistical report may not reflect those persons who confessed before they were charged or booked for investigation. But it does not seem to me this is a. maj or qualification, because after all these people are not subject to tile Mallory rule. This is not a real problem. The CHAIRMAN. Very well. I understand the first point you are niakmg. Mr. SHADOAN. Now, secondly, I would like to coimnent upon the bill proponents' solicitude for the innocent suspect. They say that unless the police are allowed to detain and interrogate under the pres- ent restrictive procedures in the haste to get before the committing magistrate these people will be charged with a crime and thus when the case is later dismissed, they will be left. with the. enduring stigma of a police record. But if we have a sufficient time, the police will check out. their story, verify it, check out. the shaky identification, they will check out the alibi witnesses, et cetera, and if he is innocent he will never be charged with a crime and he won't be left with a police record. We are told that we can rely upon the voluntary self-restraint and the discretion of the police to conduct such a thorough investigation which will clea.r the innocent and convict the guilty. Now, with reference to that point I have got to say initially that so far as I know it is true that alibis and identifications are checked out in the sensational cases. My remarks will relate to the run of the mill armed robbery, street robbery, aggravated assault. that really make up these frightening statistics. In these cases it is my judgment that the common police approach is to secure enongh evidence against a. particular suspect to meet the requirement of probable cause before tile committing magistrate, and to meet the evidentiary requirements of the prosecuting attorney so he won't kick the ease out. When they get that. quantum of evidence, it is at tha.t point that the police investigation st.ops. The crime is solved, the crime is cleared for the purpose of police statistics. And for the purpose of my remarks today, I will refer to this as the clearance concept. Any investigation after that quantum is met is a matter for tile defense, a matter for the defense attorney. PAGENO="0349" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 343 Again, at this point I would have to say fairness requires a caveat that my conclusions here are limited by my experience which although fairly wide cannot carry the weight of statistical fact. However, I am confident that my remarks would not be challenged by any knowl- edgeable attorney who has frequent occasion to defend persons ac- cused:of crime in the courts of the District of Columbia. But I am not going to leave the committee with conclusions. Even in the short time, last week, since I received this invitation, it was no difficulty at all for me to secure some representative cases to illustrate this concept from my own experience. For example, I would first suggest the occasional lament that one hears from the assistant U.S. attorney that his case rests upon the race to the hospital. It seems that contrary to the pessimistic dictum of Ecclesiastes, the Metropolitan Police do award the race to the swift. The injured party of an altercation who first reaches the hos- pital is asked, "Who cut you?" or "Who shot you?" and the one he names is arrested and charged-that is it. `For example, in the case of the United States v. Joseph Taylor, Criminal No. 198-61, the charge was assault with a dangerous weapon. The complaining witness had been severely cut about the face with a broken bottle. When I was appointed, and I first saw the defendant in this case, he had already been in jail for over 30 days, because he could not make bail. And he told me that he had acted in self. de- fense against a drunken and unprovoked attack, and that shortly after the man left, the police arrived, and when the police arrived he said, "Look, here is an impartial witness, eyewitness right here, that will tell you I acted in self defense." The policeman said, "The complaint has been made. You can tell this to your :attonTley. This is a matter for the defense." "He was taken away, taken down to the District of Columbia Gen- eral Hospital where lie was given emergency treatment for his injury. Then he was placed in a cell where he remained until I saw him. In checking out this story, I finally found the impartial witness he spoke about. He was in the presence at the time I found him of the complaining witness~ and the complainant's wife. All readily ad- mitted the trñth of the defendant's story. But the complainant was af raid to change his story because after all he had sworn to a com- plaint. He was afraid of the consequences if he changed his story. But in view of his wife and the eyewitness he said, "Okay, I will tell the truth at the trial." And he did. And the case was dismissed at that point, the defendant having been in jail at this time for over 2 months. The only evidence against him was the statement of a sin~1e witness who was also a party to the altercation, who was in- toxicated and angry at the time he made the accusation, and further- moie had a police record showing that he had been convicted of public drunkenness 17 times since 1945, disorderly conduct 4 times in that period, and had been charged with simple assault and assault with a deadly weapon himself, both of which had been dropped for want of prosecution. This was the evidence against the accused. The accused I think had had a charge himself of simple assault in South Carolina at some time. I mention this case because I believe it is representative of the clear- ance philosophy. PAGENO="0350" 344 AMENDMENTS TO CRIMINAL STATUTES OF D.C. There are numerous others. Another one I have suggested here is United States v. Wiiiiam Ken~p, Criminal No. 1033-60, in which the charge was housebreaking, larceny, and unauthorized use of a motor vehicle. There the car and the two defendants were found within a fairly short distance of the garage some time after the break-in. William Kemp said at thetime: I was picked up in this car only a few minutes ago at my hOme. Thera are witnesses there, which is very close by, maybe a block and a half away, who will tell you that I could not have been present when this crime was committed. But they were in possession, they were in the car, there was enough to make a charge. The police did not expend the few minutes to go to the home to check out these alibi witnesses. They did not even take fingerprints at the garage to see if Kemp's prints were there. They had enough to get by the requirement of probable cause. They had enough, prob- ably, to convict unless evidence came forward. The defendant's evidence did come forward, I might add. And when the question. as to this investigation was propo~rnded at.. the trial, the officer said, "This is a matter for the defense." Now, we heard the discussion or the suggestion a.bout the street robbery, how this could not be solved without police interrogation. I would add my own remarks, that this is really the area where we have the most difficulty. There is no question about it. This fleetin~- glimpse of the .back of the head that takes the purse and runs down the street, or as in the case of United States v. Earnest Dv.Bose, Criminal No. 152-61, where the young white woman was dragged into the alley and the powerful young Negro, brandishing a butcher knife, robbed her of what money she had on her person. In this case, the police testified at the trial that they had gone to the girl's apartment and shown her 13 pictures from which she selected the picture of the accused. Later-this was at the pretrial hearing on a motion to suppress. Later on the girl testified she had been shown one picture, the picture of the accused. After she heard the testimony of five alibi wit- nesses, she drew aside the prosecuting attorney and said she was no longer certain about her identification. These albi witnesses had nOt been checked out .by the police. Again in my judgment that illustrates what I have labeled the clearance philosophy. Now, it is true with the volume of crime that we have, and the num- ber of policemen we have, that there is a limit to the amount of investi- gation that the police can conduct, and maybe they cannot check out the defense story. But if so, let's acknowledge that this is the case, and let's let Congress and the public, and I might add the public who make up our juries, know that that is the case-that these matters of defense are not investigated by the police, they do not have the men nor the time. And it is either done by the defense attorney or it is not done at all. Now, in discussing this matter of reliance upon police discretion, which the House committee report-and . self-restraint-which the House committee report says is not misplaced-I refer you to the quotation from page 19 of that report: This title will place considerable more reliance upon the voluntary and intel- ligent self-restraint of the police force than does the Mallory rule. The com- mittee feels that such reliance is not misplaced. PAGENO="0351" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 345 As I say; I wish that my concern or my lack of reliance were limited to what I have suggested should be labeled the clearance concept. But it is not. Among some policemen, IL cannot say how many-but among some policemen there is also what is known or what I would call a convic- tion philosophy. That is the policeman, on the basis of some evidence, guesswork, or other criteria, sincerely reaches his personal opinion that the suspect is guilty of a crime. Once he does that, he feels justi- fied in actively seeking a conviction, and sometimes by questionable methods, such as are illustrated by the cases I have here. The first example is United iStates v. Howard W. Lee and John Thomas Lee, United States Nos. 113-117-62. In this case an elderly grocer, along with certain patrons, had been held up-armed rob- bery of the grocery-and there was a difficulty of identification. The grocer, in addition to his age, had such poor vision at times he had to feel the coins to determine their denomination. A young girl, 15 years old, had been so frightened that she could not make an identification. The only adult and relatively calm witness to the affray was another woman who had been robbed, a young white woman, whose name was Jacquelyn Moore. What happened here, after the police had determined, or the police- man had determined that the accused were in fact guilty, is best illus- trated by a portion of the transcript itself. In this portion of the transcript, which I refer to the committee, there is a colloquy between the U.S. attorney at the trial on direct examination of the robbery-not a cross examination by the defense attorney. And Mr. Hogan, the U.S. attorney said; Question. Now, were these men just standing plain in this lineup or were they directed by the police to make certain movements or to say anything? A. They were directed to each one say, "Get down on the floor lady," because. that is what the boy said to me in the store. That is all. They were just standing in a straight line. Q. And each of them was asked this question? A. Yes. Q. Now, at what point was it then? Was it after they made this statement that you thought, you said you thought, you could identify the voice of one of these parties, and so on? A. Yes. Q. And did the police use coercion at all to make you make this statement? A. What do you mean by coercion exactly? You mean try to persuade me? Q. Yes. A. Yes. Q. In what way did they try to persuade you? A. When they first asked me, you know, I was shown the boys, and each one said, "Get down on the floor," the boys in the lineup, and they were directed to. turn around with their backs to us. And one of the detectives said, "Is there anybody here?" I said, "No," that I couldn't identify anybody right offhand. And then he said, "Oh, come on, Jacquelyn." He went into another room. There's two rooms for the lineup, and be said,. "Are you sure there is nobody there? One has confessed." But he didn't say which one, and he said, "Well, this boy," who was, I believe,' Howard Lee, who was second from the right. I said, "His voice sounds like it." That is all. He said, he did say this, "What difference does it make? It's a couple more niggers." Mr. DUNCAN (the defense attorney). I'm sorry, I did not hear that statement. Would- PAGENO="0352" 346 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The WrrNEss. I said the detective who said, "Oh. come on, Jacquelyn," to me, when I said there was two boys in the lineup who looked like the ones in tile store, he said, "What difference does it make? It's just a couple more niggers." By Mr. HOGAN: Q. What detective said this? A. Do ihave to name him? The Counr. Yes. The WITNESS. Beltrante. By Mr. HOGAN: Q. Now, which detective said, "Oh1 come on now, Jacquelyn"? A. Beltrante. Q. Is that all he said before you identified that you thought Howard's voice was the one? A. Uh-huh. This was more or less, that is just an interpretation of mine, my interpretation. He was not so much trying to presume me into it, I think; just his attitude, you know. This, of course, is an unusual example. There are others. It does notstand alone. You have got the case similarly of the United States v. Evgene Er a'ns, Criminal No. 1062-60. In that case there was a motion to suppress a. Mallory-type con- fession. The police detective testifying sought to justify the confes- sion and evade the Mallory rule by the LTpshaw route-that is, it; was a threshold confession. He testified that. the confession was made in the police cruiser right after the arrest on the way down to the police station. The defense attorney at that point asked for a forthwith subpena of the police records; They were brought in and they demonstrated that the accused had not even been taken to the station in the cruiser, but in fact had been taken down there by a uniformed officer in a paddy wagon. The uniformed officer was called, lie verified the police records, and the case. was dismissed. It seems to me the irony of this case-this was later used at North- western University to demonstrate the evil of the Mallory rule. Now, as I suggest, this conviction philosophy may not exist on a very wide scale. I am not aware of how wide it is. I do know it exists. It exists wide enough in my experience to make me feel very uncomfortable when I read in a House report that we should rely upon the discretion and voluntary self-restraint of police. It may not be significant, but in the Eva~.s case the detective who testified al~ut the confession in the cruiser, that did not take place- it may be significant of police attitude tha.t this case was reported in the newspaper, and it is my understanding that the detective was shortly after that promoted to lieutenant. As I say again, I do not think I can emphasize too strongly that these instances may not in any way be a representative sample. They do illustrate, though, a problem, when we speak about relying upon self-restraint, discretion of police officers. We can make general argu- ment.s about the danger of this thing. But it seems to me it would be more profitable, rather in making generalized statements of the danger, to demonstrate by some specific cases what these dangers are. The other thing that I would like to say, before we leave this clear- ing concept, a.nd this does relate specifically to the bill, is that we face a rather difficult problem when we attempt to eliminate an arrest record and its stigma. PAGENO="0353" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 347 The bill provides that-title III provides no record will be made as an arrest under the detention. Chief Murray, I believe, says, that the investigative arrest records are expunged. They may be expunged now, but in 1961 I remember a case in which I was representing a boy accused of a misdemeanor, peeping torn. The U.S. attorney and I had agreed that society would best be served if the case were continued and he were treated by a psychiatrist. But. the execution o.f this was dependent upon the checking out of his investigative arrest record, to see whether or not he had been arrested for similar crimes in the past. The presumption was of course that if he had, he was guilty. It really does not matter whether we call this a detention record, booking, arrest record, or what we call it-if there is any record kept, it will be available for this purpose. If no record is kept, it seems to me that the citizens are helpless, then. There will be no record at all of these interrogations, the investigations, how long they take. I might note parenthetically at this point-contrary to some of the other legislative proposals, there is no suggestion here that a verbatim recording be made of the interrogation. There is no suggestion that the accused-it does not go so far as solicitude for the innocent as to advise the innocent he has the right to counsel or to allow him an opportunity to contact that counsel. And in this reference, it may be relevant to note the conclusion of the Commissioner's report, the re- port to the Commissioners, that in the investigative arrest statistics that I suggested earlier, the great majority of these were conducted without the knowledge of anyone that. this man was in custody, ar- rested-not family, not friends, not attorney, not employer-he would just vanish from 8 to 12 hours. Finally, I would like to make just a few remarks about that famous telegraphic message to the underworld that Washington is soft on crime. It is incredible to me that any responsible person would be willing to make this statement in view of readily available facts which demon- strate its falsity. The statistics on crime of course are rather sketchy. But if one goes to the U.S. Bureau of Prisons and inquires-and this has been pub- licized of course-what are the length of sentences that are meted out in the State-type crimes-not Federal crimes-State-type crimes, the length of the sentences, how many probations are given, what is the iarole policy, and you take these statistics and put them together, and you can find out how long a convictee stays in jail in the District of Columbia. If you go and take comparable crimes in the States, and you take convictees in a similar situation-the only way to do it fairly, you have to have the same sort of crime, you have to have ,a convic- tee who is arrested and convicted the first time. You cannot compare a man that has been convicted five times with one who has been con- victed the first time. You get a meaningful comparison. And in this comparison the sentences, the length of the sentences that are `meted out in the District of Columbia are not quite as long as Illinois. flu- nois is the only. one that has a longer sentence. But we have a more restrictive parole policy. So that the average length of. time for a first-time offender convicted of a felony, a State-type felony in the District of Columbia, is 41.5 months. There is no other jurisdiction, no other State jurisdiction that keeps convictees similarly situated so long in jail. 25-260-64--pt. 1-23 PAGENO="0354" 348 AMENDMENTS TO CRIMII~AL STATUTES OF D.C. What about the conviction rate-that the police are hampered so much by the Mallory rule, and the courts are turning them loose. Pro- fessor Inbau has called this the turn-them-loose policy. The conviction rate in the District court, as shown by statistics from the Administrative Office of the U.S. Courts, for felonies-take 1960 again, for a base year, that year there were 1,337 indictments, I be- lieve, and there were 140 acquittals, 66 of those were for insanity. The went to St. Elizabeths. The remainder were outright acquittals. That means there is an acquittal rate of about 5 percent of the indict- ments, at least for that year. And I suggest that in any year the people that are indicted are convicted in about 90 percent of the cases. And I understand in the court of general sessions it is around 80 per- cent. I suggest to the committee that this compares pretty favorably with the State jurisdictions who are not hampered by the so-called Mallory rule~ I have two other comments that I would like to make. I know that I have taken a lot of the committee's t~'°e. The CHAIRMAN. That's all right. We are very happy to hear from you. Mr. SHADOAN. First of all, one of the things the Senate has been concerned about, and I am sure this will be elaborated upon-is what is this constitutional problem. Well, I do not essay to speak for the Justice Department, nor do I suggest that I have made a study of this. But as I see that this is something that is of interest at. the moment-i did not come prepared to discuss this, but I only want to make one observation. The last sentence of the McNahb case holding by Justice Frank~ furter went something like this- We hold only that the integrity of the judicial system will not tolerate the receipt of confession secured under circumstances such as these. It may well be that when we are talking about the procedure neces- sary to protect the integrity of a Federal court, that this is something that inheres in the power of the court to determine. And there may be a constitutional onestion as to whether or not a legislative body can interfere with the minimal standards tha.t a. court will set to protect its integrity. This is just a suggestion, based upon this statement. I would like also to point out that the States, contrary to Professor Inbau's statement, as I understood it.. are not unanimous in rejecting the Mallory rule, although certainly the great majority do. But I would call the committee's attention to the. 1960 case in Michigan, People v. Hamilton, 357 Michigan at page 410, where they adopted a rule similar to Mallory-even though they were not required to do so. They thought that maybe that was a civilized way to administer justice in the State of Michigan. I would like only one other comment and that is this matter of the third degree that Professor Inbau spoke to you about this morning, and t1~e fa.ct that all you have to do is have this policeman say to him- self. "Is what I am going to do going to make an innocent person confess." There is no suggestion-and I have some familiarity with these techniques. as I had the privilege recently to review Professor Inbau's book "Criminal Interrogations and Confessions"-there was no sug- PAGENO="0355" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 349 gestion either in his testimony this morning nor anywhere else, that I have.~eeñ, of this psychological pressure that you `bring to bear to get a recalcitrant person to confess affects only the guilty. Thereis no suggestion, for example-I would remind the conimittee of the famous case of Tim~othy Evans in England, since English pro- cedure has been called into question this morning, in which the man made two confessions that he had murdered hiswife and child. At the trial it was shown he was of subnormal intelligence. He said, "I was afraid they were going to beat me up-that is the reason I confessed." In fact, of course, there was no danger of this. He was hanged. Six years later six other bodies were found in the same house. An investi- gation revealed that a man named Christie had killed them all and also confessed that he had killed the wife and son of Timothy Evans. The point is that the psychological pressure that is used, I fail to see any' evidence that it will affect the guilty person who wants to hide his guilt, but will not affect an innocent person who would like to demonstrate his innocence. I would like to say, in closing, something about what these psycho- logical techniques are. These can be found not only-well, the first time I saw them was in Professor Tnbau's book. I had the uncommon privilege recently to cross-examine a polygraph operator in a special court-martial, who also had read the book and applied the techniques. They involve putting the suspect in a room where there are no win- dows, removing pencils and other tension relieving~ objects, sitting within a foot and a. half or so of the suspect, constantly manifesting your confidence in his guilt, no matter what he says, maintaining psy- chological mastery of the situation, and finally convincing him that it is futile to resist longer. These are the techniques that are suggested in terms of psychological pressure. The CHAIRMAN. Those psychological pressures. if they were used in securing a confession, would you hold those to be voluntary? Mr. SHADOAN. The thing is that we have-you see, it is very rare- you don't have a. verbatim recording, you don't have a. witness other than the accused, and no one will believe-it is very difficult to show what happened in an interrogation room. `The CHAIRMAN. I know. But you are reciting something that I assume did happen. Mr. SHADOAN. That's right. In this particular case this was a special court-martial-the interrogator admitted all of these things. He admitted that he used the results of the lie detector test to convince a woman it was futile to resist. The CHAIRMAN. What did the court do? Mr. SHADOAN. She was found not guilty. The confession was not suppressed in that case. The CHAIRMAN. The confession was admitted. Mr. SHADOAN. That's right. The CHAIRMAN. I see. Mr. SHADOAN. But there is some question as to whether or not in this particular case-whether or not the confession was a confession of crime in any event, because it was partially incriminatory and par- tially in, exculpation. So that the point I wish to make is that these techniques are coercive upon a weak person. And if a person is weak and subject to coercion, PAGENO="0356" 350 AMENDMENTS TO CRIMINAL STATUTES OF D.C. phychological or physical, it does not matter a wit whether he is inno- cent or guilty, he will submit. And this is the reason t1~at I suggest. to the committee that any such bill-and I turn again to Mr. Acheson's bill, who it seemed to me made a serious attempt to provide the Con- gress with a good bill, had in it the requirement of a verbatim record- ing of what went on in the interrogation room. There are other modifications. I would close by saying again I recognize. this has been a strong statement. I would like to close by saying again I recognize there is a crime problem, a serious crime problem. I am not impressed that it is just as bad in Chicago. The point is, it is ba.d here. Something should be done. The CI-IAIn~L&N. I think we all agree with that. Mr. SHADOAN. Yes. But I want to make it clear despite my state- ment against this bill I agree with that. And I would like to see some action. The ~iiAna~rAx. What kind of action would you like to see taken? As I understand your position you base your case almost entirely upon supplying more men to t.he police so that they can do a more thorough job in the field of investigation. Mr. SHADOAN. Not entirely. 1 think this is essential. I would be glad to name another one. We need more ES. attorneys here. They are overworked. They do a wonderful job, but they are not as pre- pared as they ought to be. They cannot be.. Similarly, in the Court of General Sessions we need more judges sit- ting in criminal. You cannot get a fair trial for the prosecution or the defense if the judge is watching the clock. He knows he has got to get that calendar out. And that is what is happening. At the same time we have a delay, and we know delayed punish- ment weakens the deterrence. So I would say we have to beef up these areas. Now I believe a bill can be fashioned; this is the point that I want to make. I believe that I would be willing to support some legislation. giving the police greater freedom in the interrogation of suspects. The CHAIRMAN. How do you do that? This also comes down to the point, you just put your finger on. You say you want to help the police, you want to give them more latitude in interrogation. How would you do it? Can you write this into a statute? Mr. SHADOAN. Let me suggest, then, a bill which I believe that I might be willing to support as an individual. Perhaps a bill which says the arrest shall be on probable cause. The suspect shall be taken before a judicial officer who will advise him of his rights, including advice that he has a right to counsel. Thereafter they can take him and interrogate him for 6 hours, not in a cell, and with a verbatim recording, preferably a tape recording of the questions so that a jury can understand what these pressures were. I would support a bifi like that. The CHAIRMAN. Well, on that point you have a vast experience, a very worthwhile experience in this field of defending criminals here in the District of Columbia. But, how does your proposed procedure help the police in their interrogation? It would seem to me if `you took this suspect before a committing magistrate on probable cause, and he was charged, and he was advised of the right not to make. a PAGENO="0357" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 351 statement, and also advised of his right to counsel, and following this if the suspect would say, "I want an attorney, I am not going to speak until you give me an attorney," how does this help the police in interrogation? Mr. SHADOAN. Well, it helps them because then they can go in and interrogate for 6 hours. Your assumption, Senator, is he will' be advised by the attorney not to talk and he won't, or after the warmng lie won't talk. This is the assumption of the police. The CHAIRMAN. It would be my assumption, too. But I may be wrong. Mr. SHADOAN. I think an appropriate analogy, and one which is useful, is to look at the experience in the Armed Forces. In the Armed Forces the suspect is told of his rights, article 32 has to be read to him. His right to remain silent, that anything lie may say will be used against him, and under the case of I believe-i `cannot recall the case right now, but a case in 1956-they must. be advised of their right to counsel, if `they talk to the staff legal officer, at least. And that does not seem-I do not think any of us are under the illusion that the armed services are unable to administer justice because of these hand- cuffs on the investigative forces. But there is no question but. what the bill I suggested is going to be more restrictive on the police than if they just can have carte blanche. The problem is striking an appropriate balance. And if the statistics that I have cited to the committee from the investigative arrest in 1960 are meaningful, I tl'iink we have to `recognize that the help that flows t.o the Police Department, certainly it flows to them, is somewhat minimal, is not that 90 percent figure that we have heard, not when 1 percent are all that they even charged them with, after they hold them 8 to 12 hours. The CHAIRMAN. I certaiiily appreciate your appearance. I just want to ask you one further question. You made a considerable issue of this clearance policy. You put it on both extremes. You say one is the clearance policy and the other is the conviction policy. But it would seem to me that on this clearance policy, if the police had an adequate time to interrogate the defendant and check him out more thoroughly, they would avoid this clearance objection that you make. Do I understand you correctly in this area? Mr. SHADOAN. I believe that you havenot fully grasped what. I be- ii eve t.o'be `my position. The CHAIRMAN. On the clearance. Mr. SHADOAN. The problem with the clearance policy i~s not the time that. they have to interrogate, but the absence of any interest in clear- mg the defense, a philosophy that this is not the job of the police. The cases that I have cited are cases in which the problem was not that he had to charge someone-there is nothing to prevent the police in those cases-there was no confession, there was nothing to prevent them from checking out the story. But they did not do that, because they did not, I believe, one, because they do not have the men. But more serious, they do not feel this is their responsibility. And as long as `the police feel the responsibility is limited to getting enough evi- dence to' hold someone, and then it is cleared, it is solved, then more tune is not going to avail the innocent of any solution, because the PAGENO="0358" 352 AMENDMENTS TO CRIMINAL STATUTES OF D.C. police; that is not their concern. They are concerned with if they have enough evidence. I believe, as I have said-I believe the conviction policy I spoke of 1S fairly limited. I do not believe that is widespread. I like to think it~ is not, anyway. The clearance policy I believe is widespread. The CHAIRMAN. Thank you very much. I certainly appreciate your appearance. We will stand in recess until 2 this afternoon. (Whereupon, at 11 :55 a.m., a recess was taken until 2 p.m., the same day.) AFTERNOON SESSION-2 O'CLOCK The~ CHAIRMAN. The committee will come to order. We are delighted to have you as a witness today, Senator. Ervin. We know of your great interest in this field, the Committee that you Chair in the Judiciary Committee. Yesterday we started our examination of title I and had briefly taken a. look at title II. so-called Durham~ rule. We have also in the same instant hearing taken a look at title III on the question of inves- tigative arrest. We are looking forward to your testimony with a great de~d of interest. We are attempting to work in a very difficult. area, as you well know. STATEMENT OP HON. SAM J. ERVIN, JR., A U.S. SENATOR PROM THE STATE OP NORTH CAROLINA Senator ERVIN. Mr. Chairman. I certainly appreciate the oppor- tunity to appear before this committee. I regret that I was a little late. I ha.d to appear before another committee at 2 o'clock over in the Ca.pitol. The CHAIRMAN. I appreciate you taking time out of such a busy schedule. Senator ERVIN. Mr. Chairman, I appreciate this opportunity to testify before the District of Columbia Committee on H.R 7525. a bill designed t.o reduce crime and revise criminal procedures in the District of Colmnbia. I would like to confine my remarks today primarily to titles I, II, and III. These concern, respectively, the Ma/br?1 rule, the~ Dvr ham. rule., investigative arrests, and detention for questioning material wit- nesses. The Subcommittee on Constitutional Rights, of which I am a member, has considered each of these subjects in connection with its continuing investigation of th.e administration of criminal justice. and all three were dealt with in detail during the subcommittee's hearings on "Confessions and Police Detention" and on "Constitu- tional Rights of the. Mentally Ill: Criminal Aspects." TITLE I The Jla1boi~y rule and rule 5(a) of the Federal Rules of Criminal Procedure are subjects which have long been of great concern to me. It is my feeling that the crime rate in the District will continue to mushroom and effective law enforcement here will continue; to be frustrated until legislation such as that contained in title I is en- PAGENO="0359" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 353 acted. For this reason, I have in this and previous Congresses intro- duced legislation to clarify rule 5. Mr. Chairman, I request that S. 1012, a bill concerning this subject which I introduced and which was cosponsored by Senators Byrd of Virginia, Eastland, Johnston, McClellan, and Talmadge, on March 7, be printed at this point in the record of the hearings. The CHAIRMAN. Without objection, that will be done. (S. 1012 follows:) [S. 1012, 88th Cong., 1st sess.] A BILL To make voluntary admissions and confessions admissible In criminal proceedings and prosecutions in the courts of the United States and the District of Columbia Be it enacted by the Senate and House of Representatives of the Unitef States of America in Congress assembled, That, notwithstanding the provisions of rule 5 of the Rules of Criminal Procedure for the United States District Courts or any other rule or statute of like purport, a voluntary admission or a voluntary confession of an accused shall be admissible against him in any criminal pro- ceeding or prosecution in the courts of the United States or of the District of Columbia, and the finding of the trial court in respect to the voluntariness of the admission or confession shall be binding upon any reviewing court in the event it is supported by substantial evidence. Senator ERVIN. Although S. 1012 differs in language from title I of the legislation before you today, the effect would be the same no matter which measure is enacted. That effect would hopefully be to reverse the upward direction the crime rate has taken since 1957~ the year the Supreme Court decided the case of Mallory v. U.s. (354 U.S. 449). Although I realize this is not the only factor influencing the crime rate, the Mallory rule certainly is a major factor for due to it self-confessed criminals are let free by the courts, and the police are hampered in their crime detection. Here, I believe it might be well to review the history of the case itself. The Mallory ruling held inadmissible the voluntary statement of a convicted and self-confessed rapist because of the delay in taking him before a committing magistrate. rfhe Court stated that a delay of 7~/2 hours in arraigning the prisoner violated rule 5.(a) of the Fed- eral Rules of Criminal Procedure which requires that an arrested per- son be taken before a committing officer without "unnecessary delay." The `Mallory ruling and the decision in the earlier case of McNabb v. United States (318 U.S. 332) have resulted in abolishing an old and fundamental rule of evidence regarding the admissibility of a con- fession. Prior to t.hese decisions, the sole test of the admissibility of a confession was whether it was made voluntarily. Under this test, if a confession was freely and voluntarily made, it was deemed to be trustworthy. Of course, if there was a showing that the delay itself constituted sufficient inducement to confess, the court could, in its dis- cretion, render such a confession inadmissible. But the point is that mere delay in itself was not enough to invalidate a confession. In the Mallory case, time alone was the deciding factor. There was i~o showing that any duress was used in extracting the confession from the prisoner. Indeed, there was no allegation on the part of the pri- soner that any force whatever was used to have him confess to the cnrne. There was nothing to indicate that the confession was anything but voluntarily given. Nevertheless, despite the voluntary nature of the confession and despite the fact that the confession was substan- tiated by all the facts of the crime charged against the prisoner, it was invalidated merely because of the passage of time. PAGENO="0360" 354 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The Mallory rule was extended even furt.her in the decision of Killough v. United States, decided on October 4, 1962, by the Court of Appeals for the District of Columbia. In Killough, the prisoner had confessed two separate times to the murder of his wife, once prior to arrangement and once thereafter. Not only did the court use the Mallo~ry doctrine to throw out the voluntary confession of the accused made prior to his arraignment, but the court extended this doctrine to invalidate an admission made after the arraignment. The court reasoned that the second confession was prompted by the first ad- mission, which was illegal under Mallory. Judge Burger alluded to the departure from precedent and the ramifications of this decision in his dissenting opinion; he stated, as follows: The majority holding today is one of the most significant and far reaching of this court in many years. It goes far beyond the statute it purports to "inter- pret" and far beyond any prior opinion of this court or the Supreme Court. No statute remotely authorizes the holding. No one even suggests that any right under the Constitution is involved. The majority holding constructs an entirely new "statute" and takes a step neither contemplated by Congress nor remotely warranted by the Mallory case. The Mallory doctrine operated to exclude or suppress incriminating statements made during "unnecessary delay" before taking the arrested person to the committing magistrate. The entire rationale of Mallory is that the statements are barred because made while detention is unlawful-unlawful for failure to have a prompt hearing. Today's majority holding, carries the "fruit of the poisonous tree" doctrine to new lengths and means in effect, that statements made either before or after the hearing are to be excluded unless the statements are made with the defendants' lawyers at his elbow. For all practical purposes the majority bars ally admissions except where the accused is advised and prepared- to enter a guilty plea. It would be difficult to overstate the enormity and scope of this incredible "interpretation" of rule 5(e). Mallory to a large extent foreclosed police investigations prior to preliminary hearing; this holding eliminates any interrogation of an accused after he has had the judicial warning until he secures a lawyer * C In light of this holding it is ironic that in the Mallory opinion Justice Frankfurter Characterized nile 5(a) as "a part of the procedure devised by Congress for safeguarding individual rights - without hampering effective and intelligent law enforcement." Mr. Chairman. I contend -that it is both unsound and unreasonable to apply time alone as a measure of admissibility. This subverts a rule -of procedure relating to the duty of an arresting officer into a rule of evidence. Because a police officer fails to observe the require- ments of rule 5(a) a self-confessed criminal may be turned back to society,. eve-n though he- may have confessed again subsequent to his arraignment. In other words, the supposed sins of the policeman are visited upon a-n innocent society. I submit that when Congress approved the promulgation of the Federal Rules of Criminal Procedure, it- did not intend to throw on the scrapheap the time-honored test of voluntariness concerning the admissibility of a confession. I submit that Congress had no intention of making - convictions impossible simply because a police officer failed to take a.~ prisoner before a committing magistrate. until ~½ hours had elapsed.- As chairman of the Subcommittee on Constitutional Rights. I am, of course, not- unmindful of the many protections which the Consti- tution of the United Sta-tes bestows upon the persons accused of crimes within - our society. But-. in the words of Judge Alexander 1-Ioltzoff. U.S. district, judge for the District of Columbia, who testified at sub- PAGENO="0361" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 355 committee hearings on the subject of "Confessions and Police Deten- tion," in 1958: We must bear in mind that the purpose of the criminal law is to protect the public. On the one hand, it is essential that no innocent person be convicted of a crime and that oppressive methods be not used against the guilty. Qil the other hand, it is equally indispensable that victims of a crime and potential vic- tims of possible future crimes receive protection. The victim must not become a forgotten man. As was said by Mr. Justice Cardozo in Snyder v. Massachusetts (291 U.S. 97, 122), "Justice, though due `the accused, is due `to the accuser `also. The concept of fairness must not be strained till it is narrowed to a filament. WTe are to keep the balance true." In considering the effect of these decisions, we should keep in mind that the Supreme Court did not base its decisions on any. constitu- tional issue. it did not suggest `that to admit Mallory's confession into evidence would be a violation of due process. The Court in both Mallory and Kiliough based its decision on its interpretation of the will of Congress as expressed in rule 5(a) of the Federal Rules of Criminal Procedure. I do not believe tha:t `the Court has correctly interpreted the will and intent of Congress in this matter. It is for this reason that I endorse title I, a. provision to make voluntary ad- missions and confessions admissible in criminal proceedings and prose- cutions in the courts of the United States and the District of Columbia. When all is said, the Mallory case rests upon the conviction that voluntary confessions made by an accused before arraignment must be excluded because their admission might tempt arresting officers to extort involuntary confessions. This being true, the reasoning which underlies the Mallory case is really a throwback to the common law philosophy that the interests of parties to actions might tempt them to testify falsely and for t.his reason they should be prevented from testifying at all for fear that they might commit perjury. In other words, the Mallory case rests upon the proposition that arresting of- ficers must be freed from temptations even if the process by which they are so freed results in the freeing of those who murder innocent victims or prey upon a society which the criminal law was designed to protect. I might add tha.t it seems to me that enough has been done for those who murder and rape a.nd rob. It is time for somebody to do some- thing for those who do not wish to be murdered, raped, or robbed. Mr. Chairman, I would like to summarize the rest of my' statement, and'have the entire statement in respect to titles II and III printed in the record. The CHAIRMAN. I will be happy for you to do that. Your prepared statement will be printed at the conclusion of your testimony. Before you proceed, Senator, and while you are on title I, the De- partment of Justice, in their official report on title I, House bill 7525, takes the position that it raises serious constitutional difficulties in dispensing with safeguards which the Mallory case assured a person charged with a crime. Now, I recognize, as you well pointed out, that the Mallory decision does not turn on an interpretation of the Constitution; it is a straight out interpretation of rule 5(a). . Now, my que.stion of you would be if title I was enacted, do you bel eve it would be held constitutional? PAGENO="0362" 356 AMENDMENTS TO CRLMINAL STATUTES OF D.C. Senator ERVIN. I do not think there is any question about it. I think the position of the iDepartrnent of Justice as set out in the extract that you have read is totally unsound, because virtually every State in t.he Union, and every Federal court in existence prior to the McNabb case held to the common law rule of evidence, that a voluntary confession was admissible, and an involuntary confession was inadmissible. That being true, I do not believe, while I would hesitate to predict all of the things that the Supreme Court as presently constituted might de- cide-I do not believe they will go so far as to hold that the due process clause of either the fifth amendment or of the 14th amendment is vio- lated by a rule of evidence which was recognized as a valid rule in all jurisdictions following the common law system. In fact., I do not know any stronger evidence of a man's guilt than the fact that he voluntarily says, "I committed the crime charged." And of course you have to have independent evidence of the corpus delicti. So there is really no danger of misjustice on that basis. I think any person who has done trial work in the courtroom, where witnesses appear, knows that a judge of any competence what- soever has no difficulty ordinarily in determining whether a confession was voluntary or involuntary. I think we should-I would refer to this statute, return to the common law rule of evidence, allowing that matter to be determined by the judge. But I would certainly go along with title I of this bill, because it would provide a remedy for a very grevious situation. The CHAIRMAN. As you well know, because you were a member of the committee at the time, in 1958, the Judiciary Committee did report out a bill which was almost-not completely, but almost identical with the language that is now embraced in title I. I think the word "reasonable" was added to the 1958 bill, and I think in conference they added a proviso that delay could be considered as an element in determining the voluntary or involuntary nature of statements or confessions. You are completely familiar with the history of that legislation. It passed the House, passed the Senate, went to conference and was lost on a point of order in the Senate at the very end of the session. Senator ERVIN. Because the conferees-the Vice President held when the point of order was made that the language of the conferees went beyond the scope of the language of either bill. The CHAIRMAN. This very proviso I think I referred to. Now, how does the bill that you have introduced, that is now before your Judiciary Committee, differ from the bill that was passed by both Houses a.nd lost out on the point of order back in 1958? Senator ERVIN. The bill I introduced goes back to the common law principle. It provides t.hat notwithst.anding this rule, or any similar statute, that a voluntary admission of confession shall be admissible, and that an involuntary confession or admission shall be inadmissible. In other words. it just. restores the rule which was deve.lope.d by the experience of the common law. The CHAIRMAN. You wanted to comment on title II. Senator ERVIN. Title II. I favor title II strongly. I have had a great deal of concern about the Durham rule. I have felt that the rule enunciated in the Durham case merely lets the jury go out a.nd sail upon the sea without any PAGENO="0363" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 357 legal chart or guide to guide them, and without any standard to apply-~--to say that a man should be acquitted on the grounds of in- sanity if the act charged against him is a product of mental disease or mental defect, as stated in the Durham rule-that furnished the jury no guide whatever as to what a mental disease is. I do not think the rule is improved very much by the language used in the McDonald case, because the McDonald case in one aspect of it virtually departs from insanity and makes a man's guilt depend upon his emotions If he h'ts `~n `tbnormal condition of mind th'tt causes his emotional processes to influence his behavior substantially. I think that that is opening the door to a man who merely refuses or fails to discipline hims':if, as many people do, and makes his emo- tional processes rather than his inadequate mental processes a criterion. And I think this statute furnishes a very good criterion, because in effect it goes back and gets the substance of the rule in the MeNaghten case and the substance of ~vhat we used to call the irresistible doctrine, and makes a very simple, direct rule which I think a jury can under- stand and gives them a standard by which to measure the man's capacity to commit a. crime, and a standard by which his responsibility could be, adequately measured. I think it realizes what we necessarily have to realize, and that is that there is a distinction between a mental abnormality in the mind of medicine, which is interested in trying to alleviate or cure that condi- tion, and the fact that the law must have some' standard or account- ability. The rule is almost in-set. out in title II, is almost the same rule that is in the model code, and I think it is good for that reason. In addition, I `am also glad to note that title II provides that. in- sanity is an affirmative defense, except of course in those cases where there is a requisite mentai intent as a part of the crime. That is the law in most of the States. It is the law I am familiar with in North Carolina-that the burden of establishing insanity is on the accused, and it is an affirmative defense to be interposed by him. I think that is good.. The CHAIRMAN. I thought the general rule was-and I can certainly stand corrected on this-that it is an affirmative defense which the de- fendant must establish, either by a showing of some evidence or sub- stantial evidence. But I thought after you' were beyond that point of raising it by some evidence or substantial evidence, as the case may be, that the burden shifted then to the State to prove the accused's sanity beyond a reasonable doubt. Senator ERvIN. Well- The CHAIRMAN. Isn't that the general rule? Senator ERVIN. Well, I think it is a general rule that the burden- the courts-I mean in the different States they are divided. There are some courts that hold that after-as you state-that after the defend- ant has introduced some evidence, that the burden shifts to establish the possession of the requisite mental condition, to be accountable for crimes, to the prosecution. Though a great many States are on the contrary. The burden is on the defendant to satisfy the jury. Now of course in all cases, in both of these jurisdictions, where there is ~a specific mental intent required as an essential ingredient of the crime, in, that case the prosecution always has to-where it is called PAGENO="0364" 358 AMENDMENTS TO CRIMINAL STATUTES OF D~C~ into question by evidence, the prosecution always has to show.snffic.ient mental power to be able to entertain that specific intent as a part of the case for the prosecution. The CHAIRMAN. Thank you. Title IT follows the ALT test closely, except for the addition of the words "to know," and the substitution of the word "wrongfulness" for "criminality." Title II as the House passed it reads as follows: A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to know or appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. Now, the House saw fit to have the words "to know" added to the standard ALT definition. And there seemed to be some variance among legal experts who appeared before us as to whether this created a substantial. variance with the ALT test. Senator Envix. It would strike me that it does not substantially alter its meaning. In other words. if you substitute that word "know"-the words "or know"-in the American Law Institute draft, and substitute the word "wrongfulness" instead of "criminality." The CHAIRMAN. That's correct-"wrongfulness" replaces "crimi- thought the use of the words "to know" simply broadened the test, and that it made no material change to the ALT test. nality" contained in the ALT test. Some of the lawyers simply Senator ERVIN. With reference to the provisions of title III, I have grave misgivings about the right to hold people for any definite period of time for the purpose of investigation. And I doubt whether you can square that with the Constitution. In other words, it seems to me that it is a rather dangerous practice to allow a man to be held for any period of time merely for the pur- pose of investigating him and ascertaining whether there is reason to believe he is guilty or not. For that reason, I have misgivings about that provision. I do think there are instances, referring to the part about material witnesses, whe.re you do have to make some provision for the detention of a material witness when you have reason to think that he may flee the jurisdiction and not be available for trial. And T think the part of title TIT which deals with that subject is probably about as good a way to handle it as can be devised. The CHAIRMAN. T certainly appreciate your views. One of the witnesses, T believe it was the professor of criminal law at Northwestern, who testified this morning, seemed to indicate that the investigative arrest provision now in the first part of title III is very close to the Uniform Arrest Act, which has been held con- stitutional, he indicated, in a number of States. But many lawyers share with you your expressions that an investigative arrest is uncon- stitutional-very close to being unconstitutional. Senator ERVIN. Yes. I take that view notwithstanding the fact of my own practice which, as far as criminal law was concerned, consisted of defending people charged with crime and not prosecut- ing them. I think that as a matter of fact that probably more people get turned loose without trial and without having great expense when the officers do certain questioning of them. That was one reason that always seemed to me unfortunate about the Mallory case from a prac- PAGENO="0365" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 359 tical standpoint. I think that officers turn `loose more people as a result of'the investigations than even as a result of the interrogation' of those people, th'm they do get people wiongfully convicted- far more. The CHAIRMAN. That was borne out this morning by a professor of law at Georgetown University Law School, who handled some thing in the neighborhOod of 1,500 criminal cases `when he headed up, or was in charge of their legal internship program, here in the District of Columbia. He said in 1960 one-third of all felony ar- iests were for investigation That ye'~r 1 3~6 people were det'uned for investigation for 8 hours or `more. Of these 1,340 or all but 16 were ultimately released without a charge of any crime. In other' words, the point that he was making was that approxi- mately 1 percent of the cases that were picked up on an' investigative arrest wer.e held for further processing. He felt that aside from the constitutional feature, to which you allude, that it had a very ill effect in the District of Columbia in strengthening the arm of the police, because of the vast number they turned loose. I was sur- priseci that they turned that many loose, but he said they did. Senator ERVIN. I am surprised at the percentage also. But I was under the impression, just from observation', that a very substantial percentage of persons are released without trial as a result of inves- tigations conducted by the police after their detention. The CHAIRMAN. His figure was 1.2 percent charged with a crime. Senator ERVIN. All these provisions of these three titles, with the exception-I do have misgivings about the detention for investiga- tion-I certainly hope that the committee will take favorable action on them. I think too often we forget the great debt society owes to our law enforcement officers. And I think you have that particular prob- lem here in the District owing in part to a small geographical area. It is much more difficult to enforce the law or apprehend criminals where you have a small geographical area because it is so easy to flee the jurisdiction. And I think that Washington is extremely fortu- nate in its Chief of Police-Chief Murray, I think, is one of the most enlightened officers I have ever been privileged to know. And cer- tainly Congress ought to arm them with whatever assistance in the way of law that will enable them to do a good job, short of trampling into the constitutional rights of our citizens generally. The CHAIRMAN. I certainly appreciate your taking time out to come and give us the benefit of your very valuable' views, Senator. I know you are a jurist of great constitutional renown and I appreciate the viewpoints you have expressed. Senator ERVIN. Thank you, Mr. Chairman. The CHAIRMAN. Thank you very much. (The statement previously referred to follows:) Our next witness will be Prof. Yale Kamisar, School of Law, Uni- versity of Minnesota, Minneapolis, Mhm.; author and lecturer on in- vestigative arrest practices and the Malloi~y rule. We are delighted to have you with us this afternoon. STATEMENT OF SENATOR SAM J. Envix, Jn., ON HR. 7525 Mr. Chairman, I appreciate this opportunity to testify before the District of Columbia Committee on H.R. 7525, a bill designed to reduce crime and revise criminal procedures in the District of Columbia. PAGENO="0366" 360 AMENDMENTS TO CRIMINAL STATUTES OF D.C~ I would like to confine my remarks today primarily to titles I, II, and III. These concern, respectively, the Mallory rule, the Durham rule, investigative arrests, and detention for questioning material witnesses. The Subcommittee on Constitutional Rights, of which I am a member, has considered each of these subjects in connection with its continuing investigation of the administration of criminal justice, and all three were dealt with in detail during the sub- committee's hearings on "Confessions and Police Detention" and on "Constitu- tional Rights of the Mentally Ill: Criminal Aspects." TITLE I The Mallory rule and rule 5(e) of the Federal Rules of Criminal Procedure are subjects which have long been of great concern to me. It is my feeling that the crime rate in the District will continue to mushroom and effective law enforcement here will continue to be frustrated until legislation such as that contained in title I is enacted. For this reason, I have in this and previous Congresses introduced legislation to clarify rule 5. Mr. Chairman, I request that S. 1012, a bill concerning this subject which I introduced and which was cosponsored by Senators Byrd of Virginia, Eastland, 3ohnston, McClellan, and Talmadge, on March 7, be printed at this point in the record of hearings. IS. 1012, 88th Cong., 1st sess.) A BILL To make voluntary admissions and confessions admissible in criminal proceedings arni prosecutions in the courts of the United States and the District of Columbia Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding the provisions of rule 5 of the Rules of Criminal Procedure for the United States District Courts or any other rule or statute of like purport, a voluntary admission or a voluntary confession of an accused shall be admissible against him in any criminal proceeding or prosecution in the courts of the United States or of the District of Columbia. and the finding of the trial court in respect to* the volun- tariness of the admission or confession shall be binding upon any reviewing court in the event it is supported by substantial evidence. Although S. 1012 differs in language from title I of the legislation before you today, the effect would be the same no matter which measure is enacted. That effect would hopefully be to reverse the upward direction the crime rate has taken since 1957, the year the Supreme Court decided the case of Mallory v. U.S., 354 U.S. 449. Although I realize this is not the only factor influencing the crime rate, the Mallory rule certainly is a major factor for due to it self- confessed criminals are let free by the courts. and the police are hampered in their crime detection. Here, I believe it might be well to review the history of the. case itself. The Mallory ruling held inadmissible the voluntary statement of a convicted and self-confessed rapist because of the delay in taking him before a committing magistrate. The Court stated that a delay of 7'/~ hours in arraigning the prisoner violated rule 5(a) of the Federal Rules of Criminal Procedure which requires that an arrested person be taken before a committing officet~ without "unnecessary delay." The Mallory ruling and the decision in the earlier case of Mc7~ahb . v. United States, (318 U.S. 332) have resulted in abolishing an old and fundamental rule of evidence regarding the admissibility of. a confession. Prior . to these decisions, the sole test of the admissibility of a cOnfession was whether it was made voluntarily. Under this test, if a èonfession was freely and voluntarily made, it was deemed to be trustworthy. Of course, if there. was a showing that the delay itself constituted sufficient inducement to confess, the~ ëourt could, in its discretion, render such a confession inadmissible.. But, the point is, that mere delay.in itaelf was not enough toinvalidate a confession. In the Mallory case, time alone was the deciding factor. There was no show- ing that any duress was used in extracting the confession from. the~ prisoner. Indeed, there was no allegation on~~ the part of the prisoner that ~ force whatever was used to have him confess to the crime. There was nothing to indicate that the confession was anything but voluntarily given. Nevertheless. despite the voluntary nature of the confession and despite the fact that the confession~ was substantiated by. all the facts of. the crime charged against the prisoner, it was invalidated merely. because of the. passage of time.. . PAGENO="0367" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 361 The Mallory rule was extended even further in the decision of Killough V. United ~States, decided on October 4, 1962,. by the Court of Appeals for the District of Columbia. In Killough, the prisoner had confessed two separate times to the murder of his wife, once prior to arrignment and once thereafter. Not only did* the court use the Mallory doctrine to throw out the voluntary confession of the accused made prior to his arraignment, but the court extended this doctrine to invalidate an admission made after the arraignment. The court reasoned that the second confession was prompted by the first admis- sion, which was illegal under Mallory. Judge Burger alluded to the departure from precedent and the ramifications of this decision in his dissenting opinion; he stated, as follows: "The majority holding today is one of the most significant and far reaching of this court in many years. It goes far beyond the statute it purports to `in terpret' and far beyond any prior opinion of this court or the Supreme Court. No statute remotely authorizes the holding. No one even suggests that any right under the Constitution is involved. "The majority holding constructs an entirely new `statute' and takes a step neither contemplated by Congress nor remotely warranted by the Mallory case. The Mallory doctrine operated to exclude or suppress incriminating statements made during `unnecessary delay' before taking the arrested person to a committing magistrate. The entire rationale of Mallory is that the state- ments are barred because made while detention is unlawful-unlawful for failure to have a prompt hearing. Today's majority holding, carries the `fruit of the poisonous tree' doctrine to new lengths and means in effect, that state- ments made either before or after the hearing are to be excluded unless the statements are made with the defendant's lawyer at his elbow. For all prac- tical purposes the majority bars any admissions except where the accused is advised and prepared to enter a guilty plea. It would be difficult to overstate the enormity and scope of this incredible `interpretation' of rule 5(a). Mallory to a large extent foreclosed police investigations prior to preliminary hearing; this holding eliminates any interrogation of an accused after he has had the judicial warning until he secures a lawyer * * *~ In light of this holding it is ironic that in the Mallory opinion Justice Frankfurter characterized rule 5(a) as `a part of the procedure devised by Congress for safeguarding indi- vidual rights without hampering effective and intelligent law enforcement.'" Mr. Chairman, I contend that it is both unsound and unreasonable to apply time alone as a measure of admissibility. This subverts a rule of procedure relating to the duty of an arresting officer into a rule of evidence. Because a police officer fails to observe the requirements of rule 5(a) a self-confessed crimi- nal may be turned back to society, even though he may have confessed again subsequent to his arraignment. In other words, the supposed sins of the police- man are visited upon an innocent society. I submit that when Congress approved the promulgation of the Federal Rules of Criminal Procedure, it did not intend to throw on the scrapheap the time- honored test of voluntariness concerning the admissibbility of a confession. I submit that Congress had'no intention of making convictions impossible simply because a police officer failed to take a prisoner before a committing magistrate until 71/2 hours had elapsed. As chairman of the Subcommittee on Constitutional Rights, I am, of course, not unmindful of the many protections which the Constitution of the United States bestows upon the persons accused of crimes within our society. But, in the words of Judge Alexander Holtzoff, U.S. District Judge for the District of Columbia, who testified at subcommittee hearings on the subject of "Oonfes- sions and Police Detention," in 1958: "We must bear in mind that the purpose of the criminal law is to protect the public.' On the one hand, it is essential that no innocent person be convicted of a crime and that oppressive methods be not used against the guilty. On the other hand, it is equally indispensaMe that victims of a crime and potential vic- tims of possible future crimes receive protection. The victim must not become a forgotten man. As was said by Mr. Justice Cardozo in ~$ynder v. Massachu- i~etts, (291 U.S. 97, 122), `Justice, though due the accused, is due to the accuser also. The concept `of fairness must not be strained till it is narrowed to a fila- melt. We are to keep the balance true.'" ` In considering the effect of these decisions, we should keep in mind that the Supreme Court did not base its' decisions on any constitutional issue. It did not suggest that to admit Mallory's confession into evidence would be a' vio- PAGENO="0368" 362 AMENDMENTS TO CRIMINAL STATUTES OF D.C. lation of due process. The court in both Mallory and Killough based its deci- siOn on its interpretation of the will of Congress as expressed in rule 5(a) of the Federhi Rules of Criminal Procedure. I do not believe that the court has correctly interpreted the will and intent of Congress in this matter. It is for this ret~son that I endorse title I, a provision to make voluntary admissions and confessions admissible in criminal proceedings and prosecutions in the courts of the United States and the District of Columbia. When all is said, the Mallory case rests upon the conviction that voluntary confes~iOns made by an accused before arraignment must be excluded because their admission might tempt arresting officers to extort involuntary confessions. This being true, the reasoning which underlies the Mallory case is really a throwback to the common law philosophy that the interests of parties to actions might tempt them to testify falsely and for this reason they should be prevented from testifying at all for fear that they might commit perjury. In other words, the ]iallory case rests upon the proposition that arresting officers must be freed from temptations even if the process by which they are so freed results in the freeing of those who murder innocent vicitms or prey upon a society which the criminal law was designed to protect. TITLE II Mr. Chairman, title II of H.R. 7525 represents a substantial improvement over the Durham rule, the existing test for determining responsibility for criminal conduct in the District of Columbia. Section 201 (a) (1) of the bill provides that criminal responsibility be meas- ured by the following standards ~`A person is not responsible for criminal conduct if at the time of such con- duct as a result of mental disease or defect he lacks substantial capacity either to know or appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." This rule establishes a specific test, on which a judge can instruct a jury and ~vhich a jury can understand. It is substantially similar to the provision recom- mended by the American Law Institute in its model penal code. My objections to the Durham rule arise out of my experience as a trial judge in North Carolina. Under North Carolina law, the judge has an absolute duty to instruct the jury as to all of the substantial questions arising in a criminal prosecution, and it is error for him to fail to do so. I think that the Durham rule is inadequate because it establishes no definite tests to ascertain respon- sibility for crime. It would seem to me that under the Durham rule, the jury in effect is fOrced to try one of the crucial issues of the case; namely, a man's legal accountability for a crime, without any test that they can apply. I do not think, as some have claimed, that the case of McDonald v. United States, 312 F. 2d 847, handed down last year by the Court of Appeals for the District of Columbia sitting en banc remedies the difficulties with the Durham rule. McDonald provides "that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls" (p. 851). However, it is clear that this standard, while shedding some light on the prob- lem of what constitutes a mental disease or defect still leaves the jury in the dark as to how that mental disease or defect must affect a defendant's conduct which is in issue at the triaL McDonald does not change the "productivity" test established by Durham. Told that they must find that the crime was the product of a mental disease or defect, the jury, under Durham, is not told how the mental disease or defect must affect the conduct in question. Productivity is a psychiatrist's term. Lay- men cannot readily relate criminal acts to mental conditions in terms of productivity. I also want to commend to you section 201(c) (1) which makes the existence of a mental disease or defect excluding responsibility an affirmative defense. In my home State of North Carolina, as in many other States, insanity is ordinarily an affirmative defense. Under the North Carolina rule, the person who relies upon the plea of insanity is required to establish to the satisfaction of the jury that he is insane, subject to exception in cases which require a specific intent. In those cases, the burden is on the State to establish beyond a reasonable doubt the existence of criminal intent. and, of course, in connection with that, the State must prove that the man has the capacity to entertain criminal intent. PAGENO="0369" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 363 A rule~which gives the prosecution the burden of establishing sanity beyond a reasonable doubt, as does Durham, puts too great a burden on the prosecution. McDonald does not change this rule substantially. It modifies only the degree of evidence which must be presented to inject the issue of sanity into the case. I think that much of the confusion engendered in this area is due to the fail- ure to recognize clearly that the function of the law is one thing and the function of psychiatrists is entirely a different thing in this area. The law is trying to create a standard not to determine whether a person has one of the varieties of mental diseases or mental defects, but to determine whether the nature of his mental disease or defect is such that it would be unjust to punishhim for an act which would otherwise be criminal in the average in- dividual; whereas, the psychiatrist is concerned with the question of the nature and degree of his mental illness, not for the purpose of determining his legal or moral accountability but for the purpose of determining what means should be used either to cure him or to alleviate his condition. The provisions of the bill relating to criminal responsibility which I have dis- cussed, in my view, go far toward establishing the proper role of law in this area. TITLE III Title III of H.R. 7525 accords legislative sanction to the former police practice in the District of Columbia of arresting for investigation; that is, it provides for detention of persons when an officer has "reasonable grounds to suspect" he is committing, has committed, or is about to commit crime. The second half would add to the law new procedures for the detention of material witnesses. While I endorse the principle of the provision regarding material witnesses, I cannot, in good conscience, endorse the section relating to investigative arrests. There are constitutional as well as policy considerations that sometimes prevent lawmakers from legislating upon the theory that, in law as well as in geometry, a straight line is the shortest distance between two points. In the matter of investigative arrests-and I do believe such dententiorl amounts to arrest, regardless of stipulations that it does not-our legislative road toward decreasing the crime rate in the District of Columbia is neither clear nor straight. Rather, it is marked by those constitutional guarantees which the Founding Fathers saw fit to incorporate in the Bill of Rights. The fourth amendment assuring the hard-won guarantee, deeply rooted in Anglo- American experiences, that there will be no seizure of persons without probable cause; the fifth amendment providing for due process of law, with all that has been held to include; the sixth amendment assuring the right to counsel-these are obstacles in the path of Congress which are not to be ignored. Incorporating some of the fundamental principles on which our society rests, these amend- ments were meant to guide lawmakers in the centuries ahead, and are so basic that they should not be overlooked in our effort to meet the exigencies of the moment. This measure appears to establish a subjective test for apprehending suspects, a rule of thumb to be interpreted by every policeman patrolling his beat. In effect, by premitting the detention for 6 hours of a suspect when his replies to questions are not satisfactory to a policeman, this bill would, for the con- venience of law enforcement officers, postpone that point at which all the pro- cedural guarantees of the Constitution become operative for the individual arrested. As was stated by the Department of Justice report on the bills, this proposal provides "for a seizure of the person without probable cause, in vio- lation of the fourth amendment, and accompanied by the consequences of a conventional arrest." It would permit "a 6-hour police interrogation of a person suspected of com- mitting a felony, without the assistance of counsel.' Such a procedure, in the Justice Department view, "would be violative of the sixth amendment's guarantee that an accused shall have the assistance of counsel for his defense." The constitutiOnality of this section,' in my view, coiild not withstand judicial review. I tend, futhermore, to agree with the opinion expressed by the U.S. attorney for the District of Columbia1 that enactment of a workable bill dealing with the Mallory problem may obviate some of the need police feel for the pro- visions of title III. Familiar as I am with the problems faced by law enforcement officials who must protect society from the criminal, I have always been willing to grant them 1 House hearings, p. 144. 25-260-64-pt. 1-24 PAGENO="0370" 364 AMENDMENTS TO CRIMINAL STATUTES OF D.C. the constitutionally permissible legal tools which they require in their fight against crime. I have, in effect, always attempted to balance the rights of society against the rights of the individual. Having done this now in respect to section 301 of H.R. 7525, I find that, in this instance, the rights of the individual must prevail. With regard to section 302 of the bill I do, as I have indicated, endorse the principle of detaining material witnesses. Such authority is often an in- valuable tool for securing the attendance of a witness at trial. I do, however, see considerable merit in the recommendation of the Depart- ment of Justice and the Commissioners of the District of Columbia that material witnesses should be accorded protections similar to those provided in the Federal Rules of Criminal Procedure. Rule 46(b) provides that if it appears by affidavit that the testimony of a witness is material in a criminal proceeding, the court or commissioner may require him to give bail for his appearance, and if he does not, his detention may be ordered pending disposition of the proceeding. In addition to modifying the requirement as to bail, the judge or commissioner may order release of a witness detained unreasonably. In addition to such protections, the Justice Department urged that considera- tion be given to amendments which would take into account the financial ability of the witness to post bond, the filing of depositions as an alternative to confine- ment, the right to counsel, and to compensation for time detained. As the Department of Justice indicated: "Even if detention is a public duty w-hich a person may properly be called on to perform. it may operate as an intolerable burden on a witness and his family. if while prevented from working he is denied reimbursement during the de- tention period which under some circumstances might be prolonged for several months." It is unfortunate that not one of the safeguards for material witnesses in felony cases suggested by the Department of Justice and the District Commis- sioners were incorporated in the House bill. I think their recommendations might, with profit, be considered by this committee. By assuring that the policy behind the criminal statutes enacted by Congress and the administrative procedures sanctioned by it reflect a respect for con- stitutional principles, I believe that, in the final analysis, we secure the perma- ent benefit not only for the individual citizen, but for our entire society. STATEMENT OP PROP. YALE KAMISAR, SCROOL OP LAW, UNIVER- SITY OP MII~NESOTA, MINNEAPOLIS, MINN. Mr. KAMIsAR. I appreciate being here, Mr. Chairman, and I have been listening with great interest since 10 o'clock this morning. I have learned a great deal. I must say I am most impressed with the judicious way in which you are handling this thing. I see no signs of favoritism one way or the other from you, and a great deal of leeway in getting eveçy. con- ceivable view into the record. Perhaps I will try your patience; First of all- The CHAmMAN. I doubt it. We are delighted to have you here. Mr. KAMISAR. It seems to me, as in most things, the way you c~orne out depends on where and how you begin, on what your first premise is. Once you assume that these statements are in fact voltmtai~y~-and that is all there is to it-one indeed `tsks, `W1iv do we throw them out~" Now. the trouble is that they are voluntary so far as the record shows, which is not to say that they are actually voluntary. The whose history of the confession law the Whole development of the 1JcNabb-Mailory rule is an outgrowth of the Supreme .C~i~t's impatience and frustration at theT inevitable dispute as to wimt hap- pened behind closed doors. PAGENO="0371" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 365 Now, almost invariably the police will say, "We played checkers with him. We served him tea and crumpets." And the man will say, "They beat me half to death," or at least, "They shone bright lights on me." This happens again and again. We can see this in due process cases, such as Asheraft in the early 1940's, where a man was held 36 hours and claimed the police did a great many bad things to him, and they said they didn't do anythmg at all. Now, looking at it realistically-Senator Ervin said that the trial court does not have much difficulty resolving those disputes. I suspect not. I suspect he resolves them almost invariably in favor of the police. The policeman has more prestige, his credibility is assessed higher. Very often there are four or five policemen against one suspect, so they have the advantage of numbers. Very often the suspect does not make a good witness; he is confused as to what happened; he has difficulty articulating it. This problem of proof becomes increasingly difficult as the in- terrogators develop psychological techniques. No force-just psychology. Now, this evidence of mental coercion may be especially. elusive. Allegations of momentary tensions or underlying psychological devia- tion which may aggravate the suggestiveness of interrogation are difficult to substantiate. The Yale Law Journal in a very fine `note back in 1959 said (note, 68 Yale LI. 1003, 1022) The MeNabh-Mailory rule is an attempt to avoid saddling the accused with an unconscionable evidentiary burden. And that. is what it would be if there were no McNabb-Mallory rule. Now, another fine commentator, a Chicago lawyer named Bernard Weisburg, has pointed out the relationship between the interrogator and his prisoner inevitably invites abuse, not because policemen are any more brutal than the rest of us, but because the officers' natural indignation in crimes of violence, his position of relative control and mastery over the prisoner, the absence of disinterested observation, and, above all, the frustration of trying to get the answer-the whole process of questioning breeds a readiness to resort to bullying. (See Weisberg, "Police Interrogation of Arrested Persons: A Skeptical View," in "Police Power and Individual Freedom," 153, 180 `(Sowle ed.1962).) If there is a right to an answer, there seems to be a right to expect an answer. He says, and I think he's right, it is asking too much of men to grant virtually unlimited discretion to the interrogator in such a sitUa~tion w ithoiit the guid'ince and restraint of clear rules, disinterested ob servation, and eventual public scrutiny. ` Now, I taught a seminar in criminal ~rocedure, and most of my students felt the MeNabb-Mailory rule' was wrong. `They felt that if the record shows the statement was voluntary, why not Jet it in'? One day I hid a windfall-in a case called the Bn on case, which has since been reversed by the Minnesota Supreme Court. It devel- oped that by some accident the interrogation of this prisoner in the Minneapolis Police Headquarters was taped. There was' some mixup. Some of the police officers thought this man w ould confess quickly, PAGENO="0372" 366 AMENDMENTS TO CRIMINAL STATUTES OF D.C. and tltht they could use the tape to play to the other alleged cocon- spirators. Well, in the confusion some of the police officers left and others ~a~ne in, not knowing they were on tape. When I played that tape in my seminar-I wish you could hear it. This is a1ypical interrogation, no interrogator aware that he is being taped: ~The tricks they used, the deception. It is true there was no violence. We are past that stage, fortunately. The promises they made-which could not be kept. Now, we do not very often have a tape. And that is the problem. As far us I'm concerned, if a man's lawyer could just be given earphones and listen, and not be able to even appear physically, and not be able to say, "Stop"-just to listen, so we actually know what happened, on tape, the problem would be solved in large measure. The CHAIRMAN. You say the problem would be solved just so long as the accused's lawyer knew what occurred at police headquarters? Mr. KAMISAR. Well, the point is-all right. 1 am suggesting that if he could not be interrogated without some disinterested person us- tenmg, just listening-we remove the problem of proof. Now, it seems to me rightly or wrongly, whether we agree with the 3IcNabb rule or not, that is what the Court is trying to do. It was just frus- trated. it was convinced-and many commentators have said this- all the coerced confession rules in the world are illusory, as a practical matter, when the prestige of the police testimony prevails almost in- variably. Now, you may say the police do not do such things, thev never do such things. I don't know how to resolve that problem. I think there is some evidence that some police do it often enough to make it~ a problem. So I think that that is the basic problem, that is what the ilcNabb- Ma7kn'~y rule is trying to get at. Another problem the rule is trying to get at is the practice of arrest- ing without probable cause in the first place. This is a point that Francis Biddle, as Attorney General, made back in 1943 when the hearings were held on lJicZVabb (hearings before the Subcommittee on the Study of Admission of Evidence of the House Committee on the Judiciary, 78th Cong., 1st sess.. sec. 12, at p. 30 (1943)). He said it fits perfectly, the whole idea is you cannot arrest a man with- out probable cause, you promptly bring him before a committing mag- istrate, and if there is no probable cause, let him go. Now, the example Professor Inbau gave this morning-and I thought, Mr. Chairman, you hit it right on the nose when you said if you have probable cause, why don't you bring the man before the magistrate. And Professor Inbau said it would not hold up. Why wouldn't it hold up? Because there was no probable cause to arrest him in the first place. That's the problem. And the whole thrust of the McNabb-JJ[aUo'cy rule, another main thrust, is just this. To make meaningful the protection against unlawful arrest the Court is saying, "Look, you cannot arrest a man without probable cause and then get him to give you enough evidence to give you prob- able cause." Now, that is really what Professor Inbau was driving at. The troublesome cases are the cases where you do not even have probable cause to hold him in the first place. Now, it seems to me it is kind of a strange logic to say if you il- legally take a man into custody, you ought to have the power to make PAGENO="0373" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 367 it legal by holding him illegally. That is really what we are. ~loing. That in a sense was Judge Prettyman's argument in the Mallory case below, before he was reversed. He argued if there was not probable cause to arrest the man, you could hold him long enough and question him long enough until you got probable cause to charge him. And the Supreme Court said you have to have probable cause in the first place, you cannot operate that way. All right. Now, looking at this bill, it is interesting to note that nobody is sug- gesting that we change the rules. No one is suggesting that we change the rules which say the police officer shall bring the arrested person before a committing magistrate without unnecessary delay. That will still be the law a.fter this act is passed. And it will also be the law in the District of Columbia, under a special provision of the code, that an arresting officer must immediately, or without delay, bring that man before a magistrate. (See District of Columbia. Code sec. 4-138, 4-140.) And the warrants will continue to issue, warrants for arrest will continue to issue, saying "Bring the man forthwith to the magistrate." Now, the interesting thing is that we are not changing the rule itself. We are only changing-we are only trying to change the sanction. The CHAIRMAN. Let me just follow you there. Mr. KAMISAR. My point, Mr. Chairman, is it will still be a violation of rule 5(a) if you do not bring the man before the magistrate with- out unnecessary delay. The CHAIRMAN. That is the general law today. Mr. KAMISAR. That law will still be violated. All you are saying is that the violation will not matter. All you are saying is, even though it is a violation of a law you can still profit by it, you can still use the confession obtained in violation. But you are not chang- ing that law. The same argument comes up in connection with the exclusionary rule in the search and seizure cases. In Minneapolis until 1961 nobody paid any attention to search and seizure laws. We. have a constitutional provision saying you cannot search or arrest without probable cause. Nobody cared whether the Constitution said it or not. All the police cared about was, could they do it and get away with it? The amazing thing was when this matter came up in 1961, there was utter chaos in Minneapolis-and I think it is representative-~they did not know there was a provision in the Constitution to that effect. They never had any occasion to read it. The Minneapolis city at- torney said, "I haven't issued a search warrant in 10 years." The police said, "What do we do now?" The exclusionary rule, the sanction, that is the rule, as far as these law enforcement people are concerned. What we are suggesting here is that we keep the law, we will con- tinue to have a rule 5(a), which we can talk about on Law Day or Constitution Day, and it says the arresting officer must take a mami before the magistrate without unnecessary delay. But of course that won't mean anything any more, because if he does not do it, he can still use the confession. In other words, the law will be unenforced because we want to give the police the power to violate that law. But it will be unrepealed, because we want to preserve our morals. PAGENO="0374" 368 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Now, I am paraphrasing Thurmond Arnold, but I think it is a fair commentary. ([Cf. "Arnold, the Symbols of Government," 160 (1935)].) All right. The CHAIRMAN. Let me follow you at that point. You take the suspect before the. committing magistrate without undue delay. But this particular title would say that delay in itself shall not. make the confession inadmissible. Doesn't it only go to the point, of delay? Mr. KAMISAR. My point is this bill says that you will be hence- forth-you will be allowed to get into evidence statements obtained in violation of rule 5(a). That is t.he thrust of it. It does not say, it. does not change the command. You see, it does not. change the command, which will continue to exist in rule 5(a), that the pohce officers must. ta.ke the arrested person without unnecessary delay. If he doesn't. he is violating that command. But this bill simply says~ "So what?" It says the admission of the statement obtained in violation will be ollowed. My point is it is kind of an interesting way to go about it. Why don't we change the law? Why don't we say that. a. pohceman is authorized to hold a man as long as he want.s to? Why instead do we continue to have these laws which we are now saying t.he policeman can violate? That's m's- point.. It is an interesting way to go about it. And it seems to me we go about it this way because everybody realizes that these laws do not. mean anythine~ without. the sanction. Nobody ever claimed we ought to repeal t.he search and seizure laws. All they claimed was we should not throw out. the evidence once illegal- lv-si.zed. Keep it on the books. But that is the. amazing thing. What for? What good is it if you haven't got the sanction? That's the point I'm trying to make. Next, we get to the ouestion of. shall we say, the "sweetener" that no statement shall be admissible unless prior to such interrogation t.he arrested person had been advised that he is not required to ma.ke a statement., and so forth. Well, this looks good at first glance-although what we are saying in effect is that the interrogator should protect the interests of the sus- nect. at the same time. he is at.tempt.ing to obta.in enough damaging infnrma.ton from him to convict him. Now, I frankly doubt. that this is a substitute for the. loyalty of counselor disinterestedness of a. judge. But: we are right back where we started, it seems to me., because if this is passed, the inevitable conflict will be: Did the police officer make the statemei~t? When did lie make the. statement? How did. he make the statement? Now, I can ma.ke a statement, "Look, you might as well cooperate. You know it can be held against you, but you might as well cooperate." You can do it very perfunctorily, you can do it very routinely, sloppily. And t.he way you do it can affect the outcome immensely. Now, you also have the problem that after the man has made a couple of oral~ incriminating statements, then, before he makes the written statement, you advise him of his rights. I have seen that. happen in several cases. But the point is: psychologically "the cat is out of the hag." Once a ma.n makes an incrimina.ting st.atement, and then you say, "All right, you might as well reduce it to writing. Before we do, PAGENO="0375" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 369 we want you to know of your rights. We have a special form." The man is going to say, "I was broken; I was informed too late; the door was:closed only when the horse was out of the barn." It seems to me we are going to have tremendous evidentiary prob- lems. So we are right back where we started. The I whole idea of the McNabb-Mallory rule was to avoid these problems of proof. The whole idea was to avoid the dispute over what happens, the inevitable evidentiary battles over what really hap- pened behind the closed doors. The theory was that if the policeman exists who is willing to violate the Constitution, he is also willing to perj iire himself. Now, if that policeman exists, he is willing to perjure himself and say that he gave the suspect the warning. Now, this is an illusory safeguard, I think. And the thing that is even more dangerous, it seems to me, is that when you read it. to- gether with title ITT-title I says, "A person under arrest shall be given this protection." But title III says, "A man can be detained for 6 hours and he shall not be regarded as under arrest." Does that mean that you can detain a man for 6 hours and not advise him of his right to remain silent and so forth, because lie is not under arrest? Certainly the way title I and title III now read, it is susceptible of that meaning. If so, you hold a guy for 6 hours and you say, "We did not have to give him any warning; he was not arrested, lie was only detained." And.. then after he has made some incriminating statements, we then arrest him, and then we give him the safeguard, when it is too late. So I think that is a very serious problem which ought to be clarified. Now, it is also interesting to me to note that in the 1957 House coin- mittee hearings, at page 37, I believe, the Chief of Police was against this caution. He said it couldn't work, nobody would make any state- ments. But what happened? The years since have demonstrated that it does work, because.apparently it is standard practice to give this warning, and a great many statements are being obtained. This is not asubstantial barrier afterall. But moving on to title Ill- The CHAIRMAN. Before you move on to title ITT-the thing that puz- zles me about this problem that we have if I understand your position correctly-what would the police do in the case of-and I am sure this happens in many places in the country, I assume it happens in Minne- apolis=-where you have a particularly atrocious sex crime within the city. Ithink it is customary for the police to go out and round up all known sex violators of the past, they have them fairly well cataloged. I assume under your theory the police could not do this. Mr. KAMISAR. Senator, I state this categorically. I do not think there is a competent legal scholar in the United States who will say that that is constitutional. You cannot round up 100 or 200 people. How can you say you have probable cause? The CHAIRMAN. They do it, though; do they not? Mr. KAMISAR. The wide disregard of constitutional rights which exists is no reason to make the practices constitutional. Now, 30 years ago. police interrogators were hitting guys with telephone books and blackjacking them, and that was common practice. That was com- mon practice in 1930. We finally cleaned that up. But if the law PAGENO="0376" 370 AMENDMENTS TO CRIMINAL STATUTES OF D.C. enforcement officials could say everybody was doing it, it's all right- it. does not become constitutional because enough of them do it. And it. seems to me-sure they do it. I admit it. I admit that lu Minne- apolis there are "arrests for investigation." But there is not a doubt in my mind it is unconstitutional. I mean we do a lot of things which are wrong. whether in this or other areas. There is a gTeat deal of un- constitutional behavior going on in the South. It is still unconsti- tutionaL The CHAIRMAN. The point I am driving at is, then, that under your theory you would be able to- Mr. KA3HSAR. I would prefer to say under the Supreme Court deci- sions, as most people would read them-it is not my theory-I am simply reporting the Supreme Court law to the best of my ability. I do not think there is any doubt, the Supreme Court of the United States has made it crystal clear that you cannot go around "rounding up" people. That is the most spectacular, flagrant violation of the protection against unreasonable search and seizure there is. Sure, it happens. I understand that there was-I have not documented it, but I read it somewhere in a District of Columbia opinion-that 6,000 people were picked up in connection with a recent investigation involving four murders. (This "roundup" is referred to in Jones v. United States. 266 F. 2d 924, 930 n. 21 (1959).) Well, that may be speedy and efficient. police work in a narrow sense, but that is unconstitutional. The CH~~L~N. What can you do, then, under your theory? What would you do to help strengthen the arm of the police? Because they do have these problems. Mr. KAMISAR. For one thing, Mr. Chairman, I happen to believe that a substantial improvement might be worked if the police ques- tioned more rather than arrested. Now I understand the chief of police laughs at this and says some of the people he Imows will just laugh in his face. Now my answer to this is this. I don't think that most people are going to laugh in a policeman's face when he walks up to you and says, "Look, we are not arresting you, we are not putting you under restraint. We would like to have you cooperate." Now, if the man is hardened enough and defiant enough that he is going to laugh in a policeman's face, then you are not going to get anything out of him if you question him 5 or 6 hours. Now, to follow that. point up-the FBI may be a different breed than most police forces. But. the people they deal with are the same. And it is very significant to me that. in the lectures that the U.S. attorney's office gave t.he District of Columbia police on several occasions, the U.S. attorney, then Oliver Gasch, made this point. Now I read-these are the hearings of July 1958. (Hearings be- fore a subcommittee of the Senate Committee on the Judiciary, 85th Cong., 2d sess., on H.R. 11477, S. 2970), and this is page 413: There may be other cases, of course, in which you follow the tactics that have been explained to me, and probably to many of you, by the FBI, in which you say to a man that you want to interrogate, "You are not under arrest, you are free to go at any time that you want to, but we are trying to solve such-and-such case, and I am working on that case, and I would just PAGENO="0377" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 371 like to see if' I could not get a little help from you." Well, they tell me that in many qf the cases in which they work that technique is effective, that technique ha~ paid off, and that technique and that system will undoubtedly be a good basis for our arguing in court that such a man was very definitely not under arrest and that admissions he made during such questioning would not be subject to the strict qualifications of the Mallory rule. And again on page 397 this point is dicussed. And on page 409: I would like to emphasize what Assistant U.S. Attorney Tom [Flanneryl said about the desirability of using new techniques to the extent possible insofar as questioning work is concerned. That it is a widely used technique by the Bureau. You never can tell whether it will work or won't work in your type of case until you try it. And if you get a break that way, you can remember the Mallory rule does not apply to a confession secured prior to arrest. Of course, I was impressed by the fact that I went down to the FBI School at Quantico with Inspector John Layton and some others a year ago. We talked about this thing with the instructor at the school. He told me the way they usually handled a situation like that is when they go into a man's home they say to him, "I just want to talk with you about this situation. You are not under arrest, you are free to go, but I have talked to a few people and maybe you can helpme solve this crime." Now the instructor down there, a man of 15 years' experience, told me the technique has been found quite productive by their men in many different kinds of cases. Now, there is no stigma-the man is not arrested. He has no record. He is not dragged down to headquarters. I happen t.o think the great majority of people will cooperate whether they a.re indirectly coerced or not-I think that is the normal reaction. The point is at least they have not been arrested. And I think that if the FBI can does this, so can all policemen. The CHAIRMAN. That does not violate any constitutional guarantee? Mr. KAMISAR. Absolutely not. It does not violate anything. The CHAIRMAN. I say "Professor, I want you to come along. You and I are going to have a friendly talk. I just want to ask you a few questions.", Mr. KAMISAR. You can say this-"I cannot arrest you. I am not going to take you down to headquarters at this point. I may come back and do it later if I have, enough information. I am just going to ask you whether you are willing to cooperate." Now, I think most people will say, "Yes, I will answer the questions. Maybe I can help you." Now, no one has ever forbade mere questioning. The main prob- lem is the stigma of arrest-when you grab these guys and take them down and `then question them later. It seems to be routinely done. But as `Commissioner Duncan said a couple of years ago, he said- maybe it doesn't happen any more, but it happened in the old days- Negroes going to Howard University or Howard Law School or Medical School got picked up in a big roundup, and 15 or 20 years later, when some of them are lawyers and doctors, they are still trying to explain why they were arrested 15 years before. It is a big difference from the point of view of the man being questioned. And apparently it has worked in a number of other juris- dictions. And I just throw that out. I also suggest-well, to buttress the point. I just made, it is interest- ing to note that in a number of recent Mall.or~i-type cases, when a man is brought before a comn'iitting magistrate, and then put iii the custody of the marshal or the warden, you must get him to sign a PAGENO="0378" 372 AMENDMENTS TO CRIMINAL STATUTES OF D.C. consent before you can interrgote him further. In a number of cases, I would say over half of the recent District of Columbia Court of Appeals cases I have read, the police get that consent. Now, if they can get the consent from a man in jail in writing, that he is willing to talk further-then, if ever, the blue chips ar~ on the line-they do not need any greater power. Now, if, as is another possibility, they deceive these people into giving their consent, then they should not be given the power, or any more power. I mean it seems to me you have to have it one way or the other. The fact is they are gettin~ consent in writing. All right. Now- The CHAIRMAN. Your theory is that the Mallory rule should remain just as it is. Mr. KAMISAR. Well, I'm going to get to why I do not think it should be changed. I mean I admit it is much easier to counterpunch than to lead. And I am just here to counterpunch. I am against a specific proposal; I am just counterpunching. Now, the fact that I may not be able to come up with a golden solution does not mean I can't say this one is not the golden solution. I suggest that some clarification could be made as to the power of the policeman to interrogate a person after he has appeared before the magistrate and been given the warning, and perhaps had an initial contact with counsel. Now, there have been cases in the District of Columbia, the Gold- smith case (277 F. 2d 335 (D.C. Cir. 1959)), where the judge ordered the man, after he was given the warning, back to the custody of the police and he confessed, and that was upheld. And it seems to me the Killouqh case is not inconsistent with that. Now. I know that Senator Ervin read from the Killouqh dissent. B~it. I think it is fairly obvious that dissents are not always the most reliable commentary on what happened. Dissenting judges some- times get rather angry, and they tend to exaggerate. You may recall some years ago the famous .fencks case (353 U.S. 658 (1957)), where Justice Clark dissented on the ground that: The Court has opened [the FBI] files to the criminal and thus afforded. him a Roman holiday for rummaging through confidential information (Id. at 681-682). And that was not even remotely what the majority held. The maioritv limited it to prior statements of those witnesses who appeared for the Government. only to prior inconsistent statements by them. and when the Cone~ress of the Urdtecl States got throunh con- sidering the problem, in effect they reaffirmed the majority opinion. (See generally Note 67. Yale L.,J. 674 (1958).) Now, nerhaps they thou~ht they were nreventing what the dissent was predicting. But that is an example of exaggeration. Now, what hapuened in the Kiilovah case-there is no question about it. Every judge on the Court agreed that the defendant was held flagrantly in violation of law-he was held 34 hours. Everybody agreed-even Judge Burger-that~ the first confession was illegal (Ki7lonali v. United State.c. 315 F. 2d 241 (D.C. Cir. 1962)). Then what did the police do? When he appears before a magis- trate. he is not told that the first confession cannot be used against him. All right. Here is a man who has made a confession, under illegal PAGENO="0379" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 373 circumstances. He is now given his warning that he need not make any statements, after he already has. And he goes to jail. In comes the police officer and asks him-I am quoting from footnote 2 at page 243. He asked him if he remembered anything he had not told [him] in his [original] statement, to which he replied, "My statement is just about the same." And then he goes over it all over again. Well, if you can violate the rule flagrantly, and then when a man is in jail walk in and lead him to believe that the first c,onfessjon is going to be used against him anyhow, and simply ask him to repeat it all over again, then there is no point having the rule. And it seems to me that is really all the Killough case stands for. It does not forbid interrogation after the man has been advised of his rights. It only forbids the unfair leverage, once a man has improperly been induced into confessing. Now, there is one point that I would like to get into briefly before I go on to title III, and that is the question you have been asking about the constitutional difficulties. I did not come prepared here to discuss that, but since I have been listening to you ask this question of other witnesses I have been think- ing about it-all day. A great many of these people, as I have indicated, are arrested with- out probable cause in the first place. That is why they are held-to get more information. Now, the Supreme Court has come down with a decision this year, the Wong Sun case (371 U.S. 471 (1963)), which holds, as I read it, that in Federal cases, at least, incriminating statements obtained from an arrested person should be thrown out-I'm sorry-illegally arrested person, should be thrown out, just as physical evidence obtained from an illegally arrested person is thrown out. In other words, if you arrest a man without probable cause and you search him, you cannot use the physical evidence you find. If you arrest him without probable cause and lie makes a statement, the court has now indicated you can- not use that either, because again we want to take the profit out of illegal arrest. So you may have that problem. I think that is a serious constitutional problem. There is language in Wong Si~n which indicates that no distinction is going to be made-at least in Federal jurisdictions, and at least when the statement is obtained by the arresting officer relatively promptly or a few hours afterward-no distinction between verbal and physical evidence. That is one problem. The other problem may be-it is true, as Senator Ervin said, and Professor Inbau said, that prior to the McNabb case, no one even sug- gested there was a constitutional problem here. That's true. Bi~it the McNabb case is 20 years ago. That is the stone age as far as the his- tory of criminal procedure is concerned. The developments in the last 20 years are, relatively speaking, fantastic. You just cannot go back to 1943. Senator Ervin made a very, very fine speech in favor of overruling Map~ v. 0 Mo because the physical evidence obtained in violation of search and seizure is trustworthy-the old common law rule should come into play. We are not going to overrule illapp v. Ohio. That PAGENO="0380" 374 AMENDMENTS TO CR~III~AL STATUTES OF D.C. is here to' stay. And so are some of the other developments in the confession area. Now, as long as the McNabb rule was on the books, the Supreme Court had no necessity or occasion-in Federal criminal cases-to develop at. what point the right to counsel begins, or whether self- incrimination exists at t.he police station and so forth. The Federal courts had the MeiVab b-Mallory rule. And contrary to what Pro- fessor Inbau suggested tins morning, the last thing the Supreme Court. does is decide a constitutional question, not the first thing. If there iS a statutory way out, they will resolve it in terms of the statute. They do i~ot want to get t.o a constitutional question unless they have to. Now, if the MclVabb-Mallory rule is repealed, they have to reach the constitutional question. WTe don't know what they would have done, because the whole development has been checked for 20 years under the A[cNabb-2llallory rule. But there has been a great deal of agitation about when the right to counsel begins. There are at least four, asI count them, perhaps five justices who have made sounds as if it might begin soon after a. man is arrested. This obviously will affect the repeal of the ill cNabb-M aJlory rule.. Certainly, the Supreme Court is finding that a delay of 1 or 2 days might be unconstitutional. In other words, t.here were times when a man was held incommunicado 25 days, and the. Supreme Court found no violation of due process. In a case last year, Haynes v. TTTashin.gton (373 U.S. 503 (1963), 143 hours' delay, plus the refusal to let him see his wife and a little bit more, knocked out that case on due process grounds. Now, I think that another possible suggestion is this: The Chief of Police has said, at least in TJ.S. News & World Report. (Oct. 21, 1963, pp. 92, 95), where he seems to be a favorite contributor, that it has always been the rule that when a man asks for a lawyer, you throw . him a telephone book. Weli, if that has always been t.he rule, I must confess I do not understand what the shouting is all a.bout. Because.if you give a man a telephone book as soon as he asks for a lawyer ~md let him call a lawyer, there goes your interrogation opportunity. It may suggest that you are counting on the guys who are too dumb to a.sk for a lawyer, who don't know about their rights, or don't have any lawyer, cannot. afford a lawyer. Now,,. there was some suggestion in G~iffi'n v. Illinois, more particu- larly Douglas v. Ca.lifo~i-nia. dealing with the right to counsel on ap- peal, that, this could conceivably-a distinction as t.o when the right to counsel "begins" drawn between a man who can afford a lawyer and a luau who ca.nnot afford a lawyer might be unconstitutional. The. crucial period is at the beginning. And if a. rich man can get a lawyer by naming one, as soon as he names one, and a poor man must wait, has nobody to get because he has no lawyer to name, this might raise some serious constitutional problems. So I think there are some serious difficulties in this area, although I am not prepared to say that a repeal of the MeNab b-Mallory rule would he unconstitutional. Of course, it depends upon the fact situation. You have to resolve this thing in terms of the actual case, the par- ticular case. Suppose the man is held 24 hours or 22 hours, that PAGENO="0381" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 375 in itself might violate due process. It is just a question of the totality of the particular fact situation: if he is not warned, if his request for counsel is denied, if he is of subnormal mentality, these are all factors. I think it is fair to say the length of time a man is held incommu- nicado is becoming an increasingly significant factor in the court's overall assessment of whether or not due process has been violated in obtaining the confession. Now, I have some doubts, some serious doubts, one way or the other, about whether you could constitutionally repeal this; and I must confess at the moment I would say you can. But I : want to point out the law is moving. That is my only point. The law is moving. And we don't know what will happen, because :t~~ has been a constitutional void-if the McNabb-MaUory rule is repealed, the void will fill. All these years nothing has happened, nothing of constitutional dimensions in these Federal prosecutions, because you had the McNabb-Mallory rule. And undoubtedly the court will begin to develop the constitutional safeguards in this area, if and when you repeal the rule. But I have no doubt that title III is unconstitutional. I will state cate~orically that that will never survive litigation. And if it does, I will give up teaching criminal law and teach property and trust and estates-a fate worse than death, to me. Now this title ITT-as Prof. Caleb Foote of the University of Penn- sylvania Law School has said of a similar rneasure-"t.his is Madison Avenue at its best"-[Foote, "The Fourth Amendment :* Obstacle or Necessity in the Law of Arrest, in Police Power and Individual Free- dom," 29, 30 (Sowle edition, 1962)]. The statement is, "may de- tain any person whom he has reasonable grounds to suspect." Now that sounds very reasonable-"reasonable grounds to suspect." But no matter how many times you use the word "reasonable" in formulating the standard for detention or arrest-"reasonable suspi- cion," I have seen, "reasonable grounds to believe," "reasonable cir- cumstances"-any standard less than probable cause is unreasonable in the constitutional sense. I do not know what "reasonable grounds to suspect" means. I think I can say this much. The whole idea, the whole point of it is that it means something less than reasonable grounds. Otherwise there is no point putting it in there. It, is a very Interesting thing, as Fred Inbau said this morning, a similar provision in a State code has been sustained. I know of one ease where it was sustained. You know how? The Court said "rea- sonable grounds to suspect" means "reasonable grounds tO believe," means "probable cause." They sustained it, all right. But they wrote out the whole purpose of the statute. (See Foote, supra, at p. 30.) My only point is if "reasonable grounds to suspect" means some- thing less than the constitutional standard for arrest-and obviously that is the intent-it just won't stand up. The CHAIRMAN. Although Senator Ervin and you seem to have a difference of opinion on title I, I assume you are in complete agreement on title III, insofar as investigative arrests. Mr. KAMIsAR. Yes. The CIJAIRMAN. You both think it is unconstitutional. Mr. KAMIsAR. I think I am a little more emphatic about it. PAGENO="0382" 376 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. What's that? Mr~ KAMISAR. I think I am a little more emphatic about it. The CHAIRMAN. You are pretty emphatic. about everything you say. Mr~ KAMISAR. Yes: I think we are in substantial agreement. The CHAIRMAN. I always like to find these areas of agreement. This is a little difficult in this field. Mr. KAMISAR. That's right. The Uniform Arrest Act has been mentioned-people say, how can it be that a uniform act was proposed which is now unconstitutional? ~~1j the Uniform Arrest Act was the work of Sam Bass Warner and some other people back in the 1930's. Now in its time it was "constitutional." But back in the 1930's no one suggested that an illegal arrest violated due process. I mean this is like saying back in the 1930's some authority had a certain view of the scOpe of the commerce power. Well, that is meaningless today. Again, we have gone eons since 1935. Now it is just hard for me to see how you can detain somebody for as much as 6 hours and say you have not arrested him. Now, you know, "arrest on suspicion" or "false imprisonment"- these are dirty words, these are blunt words. But "detention" where there is "reasonable ground to suspect"-that is Madison Avenue. That is soft, that is clean; it doesn't sound too bad. The CHAIRMAN. But you think it is unconstitutional. Mr. KAMISAR. I think it is lmconstitutional. I think it is kind of cute, you know. For, if you read it fast, it looks awfully good- "reasonable grounds to suspect." It seems pretty reasonable. But it is less than reasonable grounds. The CHAIRMAN. Let me ask you this. We are faced with a prob- lem, and the record is pretty clear that the District of Columbia has a very bad record on aggravated assaults, robberies, and housebreaking. If you were a legislator, what would you do to try to be of assistance to the police in this area? You have told me what was wrong with title I. You are a very capable and brilliant young lawyer, and you have spent a lot of time studying this. What would you do? People certainly have a right to be safe in their homes and safe on the streets. How would you make their homes and the streets safe? Mr. KAMISAR. Well, I have a long answer, which would take about 15 or 20 minutes. The thrust of it is: To what. extent is the MeNabb- Jfaliorii rule a major cause of the current crime situation in the Na- tion's Capital? And I think this is an important area, because everybody seems to assume this is so. that it is a. major cause. I spent a great deal of time, most of last night, going over these statistics, and I think I could establish it is not so. The CHAIRMAN. You heard Mr. Shadoan this morning. Mr. KAMISAR. Let me sa.y this first of all. I agree with him on the statistics about holding people for more than 8 hours and only charging 1.2 percent. But I have other data than his. Now as to that, there is no question about the reliability of that data. That was in the Horsky report, which has not been mentmned often enough. That was a distinguished committee. One of the members of the committee was former-or still present-personal counsel to the Chief of Police. Another member of the committee is now the Presidential adviser on National Capital affairs, one of the Nation's truly great lawyers, Mr. Horsky. PAGENO="0383" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 377 The police were given 6 weeks to answer that report. They filed a lengthy answer. They did not contest a single finding, at least along these `lii~es. They did not challenge these findings. And this shows you the, longer they hold a person, the less fruitful it is. If they hold him up to 4 hours, they charge 5 percent. If they hold more than 8 hours or 10 hours, they charge 1.2 percent; 1960 is a typical year. As a matter~~f fact, that really is what they are trying to do in title III- get that back in, get back to "investigative arrests." This disurbs me because I think there has been a great deal of dis- tortion `about the ban on "arrests for investigation" in the press. For example this article in Look, "Portrait of a Sick City-Washington, D.C." (June 4, 1963, p. 15). It says: A new city rule imposes additional restraints on Washington police. Arrests for "investigation," a fruitful source of information on crime, are now banned (p.l9)~ Now, of course, the fourth amendment has always imposed this re- straint `On District of Columbia police. Legally they have never had the leeway to arrest on less than probable cause. And it seems to me that-if I may read a couple of paragraphs from the Horsky report. The H~rsky Committee says this on page 68: When we permit arrests on the basis of probable cause, we balance the un- fortunate consequences to an individual as to whom this is probable cause- even though he may be innocent-against the consequences to society if such a person is not made available to stand trial for the offense of which there is probable cause to believe he is guilty. This balance has been struck, and the citizen is prepared to pay the price in individual hardship. And this is the balance which the Police Department should recognize. Where they have probable cause, they may arrest; they need not, of course, if they believe further `investigation will change the picture. Where they do not have prob- able cause, they may not arrest, for "investigation" or anything else. Now, the President of the Board of District of Columbia Com- missioners, Mr. Tobriner, said this was a compelling, persuasive, and classic document. He said there was no doubt in any of the Coin- missioners' minds tha.t arrests for investigation are unconstitutional. The Corporation Counsel for the District of Columbia, Chester H. Gray, characterized the report as an exhaustive and excellent study of the problem, and he agreed that the conclusions that arrest for investigation are unconstitutional is founded on a longstanding and well-settled proposition `of law. And I venture to say that I doubt that there is a lawyer on the Washington, D.C., District Attorney's staff, or any lawyer in the Department of Justice, who will argue to the contrary. Those arrests for investigation, the men were brought down to headquarters, fingerprinted, booked almost invariably. To say that you can arrest for investigation on less than probable cause-and that this-fingerprinting, booking, and all that-is not really like an arrest-is unbelievable. I would like to establish, that "arrests for investigation" are not needed. As soon as the Horsky Committee was formed, the police cut back their arrests for investigation very drastically be- cause they were afraid of publicity and when they cut back the rate for arrests for investigation drastically, they were still charging the same 5 or 6 percent, which is-and this is pointed out by the Horsky Committee. PAGENO="0384" 378 AMENDMENTS TO CRIMINAL STATUTES OF D.C. "It is disturbing"-it says on page 68: It is disturbing to find the police engaged in any practice which they are quick to modify when it is questioned. More importantly, the change in volume of "investigation" arrests goes very far, in and of itself, to destroy the argu- ment of "necessity." * * * The decline in volume was not due to the elimi- nation of what might have been considered the "fringe" situations. For ex- ample, essentially the same proportion of those arrested for "investigation" were charged in 1960 as in 1961 * * *~ Whatever the standard for an "investigation" arrest may be * * * it does not appear to have tightened up in 1961. Rather. the decline was largely due to police forbearance. It has been .a matter of concern to the committee that the practice can be curtailed by two-thirds in the space of months, since by the same token it can also be increased by two or three times, if the police conclude that their forbearance has gone too far. Now, Chief Murray found comfort in the Horsky Committee con- clusions that in the case of many arrests for investigation, although the standard of probable cause was not required, such cause actually existed. And if this is so and if nevertheless only 1 person out of 18 so arrested were charged, why should the sta.ndard of probable cause be lowered further? It seems to me that in trying to demonstrate the legality Of an in- vestigative arrest as practiced, the Chief has come perilously close to conceding that the practice has little or no utility. And it just seems to me that to read about the ban on these arrests "crippling" the Police Department, to read this over and over and over again, this constant crying, this moaning-we can't go on-in the face of these Horsky Committee statistics-it is unbelievable. And every- body picks up this crying and just repeats it-but it has no meaning. I don't think that "arrests for investigation" are fruitful or con- stitutional. It is possible that they are neither; I think they are neither. Now, if I may get to the prime consideration in this area, and I think this is the big point-what we are doing today we did 5 years ago, we did 20 years ago. I have got the hearings of 1943 [exhibiting] (hearings before Sub- committee No. 2 of the 1-louse Judiciary Conrniittee, 78th Cong., 1st sess. H.R. 3690). Maj. Edward Kelly was then the Chief of Police ill Washington, ID. C., and you cannot tell him from Chief Murray in 1963. He is crying, he is screaming, he is saying that there will be utter catastrophe, there will be a complete breakdown if McNabb is not re- pealed, they cairnot go on-if ZiicNabb is not repealed. McNabb was decided in 1943 and the biggest gains that the Police Department ever had they got under the McNabb rule. The great. myth is that. ill ciiio~y is something new and different. As Professor Inbau himself said, he said it this morning, the iJicNabb rule was the rule since 1943 and all that. i1ia17or~i did was t reaffirm the rule, and it has been reaffirmed several times. Now, when you talk about the apparent relationship between the 3IaZlory rule and crime-well, since 1943 crime has been going up and it has been going down, it was going up and down, I mean, how can you-what is the apparent relationship between the iI[cNabb rule and crime? It seems to me that there has been a great deal of distortion in the press so that the man in the street has an entirely erroneous concept of the crime situation in the Nation's Capital. PAGENO="0385" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 379 The CHAIRMAN. Whether he has an erroneous conception or not, I think it has been checked independently, and if you were to check with many, many `people in the metropolitan area, I think you will find that they dare not go out on the streets at night. And, of course, rightly or wrongly, they fear that they are likely to be molested or intercepted or yoked or a robbery would be commit- ted or something of that n aiture. Mr. KAMISAR. The Police Department's own' statistics show that there is less rape today than there has ever been in the Nation's Capi- tal. You check the figures and you will see that there is less rape today than there has ever been in the Nation's Capital. (See Joint Hearings Before the District of Columbia Committees of the Senate and House, 88th Cong., 1st sess. (1963) at pp. 14, 20.) You will never believe this. I was flying in here from Minneapolis last night and a lady said, "It is impossible, the raping going on." I said, "Lady, you have never had it so good. There is less rape now than there ever was." She said, "You don't read the newspapers." I said, "No, thank God, I don't read the crime stories in the Wash- ington newspapers." I read committee hearings, and here it is, and you look and you will see that there has been a sharp drop. Now, why? After all, Mallory was a rape case. Why weren't the rapists emboldened? Why didn't the rapists say after Mallory, "Well, gee whiz, we got off." I was in Washington, D.C., at the time. The headlines were screaming, "Rapist Gets Off." And you would think that if anything would go up after Mallory, it would be rape, but it doesn't; rape goes down drastically. It has never been so low-and nobody mentions that. The Ci-IAI~IAN. I understand your point. You think that the Mallory law is satisfactory and you believe that title III is unconsti- tutional. My only question of you is: Do you have any suggestions to make as to what a legislative com- mittee should do or can do to attempt to be of assistance to the Police Department-maybe you don't believe it should be of assistance to the Police Department. Perhaps you don't think that is important. Mr. KA~rIsAR. Well, I think it is also important to be of assistance to those accused of crime. The CHAIRMAN. How about also of assistance to those who don't feel safe going out at night? Mr. KAMISAR. Yes, Mr. Chairman, yes; and one point-take those people-and there were more than 1,000 of them per year-who were held over 8 hours, but not charged. Now, that is a very unpleasant ordeal. Now, what happened to those 995 people? Who were held over 8 hours, but not charged? Nothing. They went home. They nursed their wounds. Now, what the professor from Georgetown said this morning- there is no doubt about these psychological interrogation techniques- Inbau has written this in his book and I reviewed it, and this is what the best police are doing. 25-260-64-pt. 1-25 PAGENO="0386" 380 AMENDMENTS TO CRTh'IINAL STATUTES OF D.C. These police, the best police, the police, who read his books-ail of these psychological things that he spelled out, he spelled out this morning-they are spelled out in the books as standard operating pro- cedure. (See, e.g., Inbau & Reid, Criminal Interrogation and Con- fessions 14, 16, 27, 31, 58-59, 109 (1962).) Now, it seems to me that, as a legislator, perhaps you ought to get some true information. I mean, it may be that the newspapers digest and redigest these crime cases until everybody has gone crazy- it seems to me that the question is not whether there is crime in the District of Columbia., but whethe.r it is due to the McNabb-Maiior~ rule-and the House report says that it doesn't matter (Rept. No. 579 on District of Columbia Crime, 88th Cong., 1st sess. (1963) at p. 5), it doesn't matter whether it is good or bad elsewhere. But it does matter. Whether it is just as bad elsewhere-that is the whole point. If it is just as bad elsewhere and nobody else has the McNabb- Mallory rule, how can you blame it on the MoNabb-Mallory rule? The CHAIRMAN. Well, assuming that they are not blaming it on Mallory. Mr. KAMISAR. Well, if they are not blaming it on that, if they are not going on that, what is the-what is this big movement, the big movement to repeal the ][ciVabb-Mailory rule? We have had it for 20 years. The CHAIRMAN. Sir, I understand your point on the Mallory rule. All I am trying to solicit from you are suggestions as to how we can have better law enforcement. Now, I am very well aware at this point that you a.re making, the point that the statistics compare favorably. Now, I don't know what the Minneapolis statistics are. I don't think that that is getting the job done just making the point about favorable statistics. Mr. Ic~IIsAR. Well, I will suggest-I'll suggest what tan be done, Senator, by putting it this way. The CHAIRMAN. Not only what can be done, that is not exactly what I am asking you: What would you do? Mr. KAMISAR. Well, I would say that it would be more profitable to turn our attention to the deep social factors which cause crime and stop making the Supreme Court of the United States and the Court of Appeals for the District of Columbia the scapegoats. Now, nobody hates to be made a scapegoat more than a police, de- partment, and nobody resents being made a scapegoat more than a police department. And, now, when anybody suggests that there is crime, why don't the police put a stop to it-what is their answer'? Chief 0. W. Wilson, of Chicago, has answered that a major source of antagonism toward the police is the tendency to blame policemen for a high incidence of crime instead of recognizing that there are many causes such as slum conditions, lack of parental responsibility, unemployment, cultural inequalities, and other social factors over which the police have no influence or control. But in the same speech, he blames the Supreme Court. Now, the Supreme Court. has no more influence or control over those factors than the police department and it is outrageous to blame. this on the Supreme Court. PAGENO="0387" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 381 I say, look to the social conditions, look to the problem of school discipline, the dropout rate-39 percent in the Washington, D.C., schools. Illiteracy has increased in the last decade here while de- clining everywhere else in the United States. One principal reported that only 13 percent of her kindergarten, first and second grade pupils, have anyone at home when they return from school. There are more illegitimate births in this city than in any other city, in any other city of the same size. Girls in the city public schools under 15 gave birth to more illegitimate babies than anywhere else in any comparable city. Who is going to blame this on the Mallory rule? The District of Columbia venereal disease rate in the age group 15 to 19 is more than 10 times the national average. In short, it seems to me that we should stop looking for the easy answer. You said this yourself at the joint hearings, as a former State attor- ney general, there is no easy answer, "Crime has many tentacles for causes" (p. 3). And that is my point. If I accomplish nothing else-as you pointed out, there are many, many factors, and this is a very con'iplex problem. it seems to me that we are going off in the wrong direction. We are kidding ourselves: We are not going to solve crin'ie by changmg rules of evidence. And it seems to me that until there is compelling reason to repeal the McNabb-Mallory rule, we should not, and I am willing to stand here at great length and show you that these crime statistics are phony, that they are misleading. As a matter of fact., the clearance rate went up after the Mallory decision, and it had gone down before. You look, at the.. figure,s in the joint hearings, and you will see that, that it dropped 6 or 7 points between 1955 and 1957. Then it went up 2 or 3 points in 1959, and then it drops again. (See table at p. 21 of the joint hearings.) Now, if it dropped 2 years after the Mallory case, how can you. blame it on Maliory~ Now. it seems to me, Senator, one more point-- The CHAIRMAN. I am not trying to blame it on Mallory. All I am trying to find out from you-if you have any suggestions. I agree with you that w~ have many problems, and. there are problems not onlyhere but iii evely big metropolitan city. ProbTems that go to the heart. of education, welfare, better living conditions, of opportunities to work. Each of these are long-range objectives which we have to face up to. T)uring this interim period, I am trying to find out what we can do, and that is why I want to know if you have any su~gestions. The suggestion has been made that we might ad~ to our police force. Maybe we should and perhaps we should have more U.S. attorneys. *~1r. IC~ris~um. I have heard `those suggestions, and of course I agree with you, and of course I agree that the police should be paid more, and of course I agree that they should be better trained and better selected. But; I dont agree that that is the only thing that we can do in the meantime. And I see nothing inconsistent' with adhering to the Su- preme Court ruling in the area and at the same time moving ahead in PAGENO="0388" 382 AMENDMENTS TO CRIMINAL STATUTES OF D.C. another direction, and it seems to me that you can have a better police department with MeiVabb-IJiai7or~i on the books. It seems to me that-there are statements made by Oliver Gasch (former U.S. at- torney for the District of Columbia.) saying that as a a result of McNabb-Mallory the police are preparing their cases better, and that they are not relying on confessional evidence as much, "extensive in- vestigation prior to arrest * * * has resulted." (Gasch, "Law En- forcement in the District of Columbia," pp. 3, 4, unpublished address of Mar. 25, 1960, to 12th annual conference, ACLU Clearing House, Washington, D.C.) Well, I would venture to say that the District of Columbia Police Department is a far superior police department because it has had to work with these restrictive rules and I venture to say that if we repeal the ?iIeNabb-Mallory rule we may cause more resentment and more crime, because-I come here, you Imow, simply to say-what is the case for repealing the McNabb-Mallory rule? I am not sure that there is any short answer. All I am saying is this bill is not the short answer. All I am saying is that-for example, Chief Judge David Bazelon put it this way: "Who bears the brunt? If you repeal the MciYabb rule, who bears the brunt of police action, police conduct or misconduct? Not you or me," he said (Bazelon, "Law, Morality, and Individual Rights," pp. 9-10, unpublished address of Aug. 20, 1963, Juvenile Judges Institute, Minneapolis, Minn.): We should be aware that if the protections of the Bill of Rights are restricted we shall, in practice, be affecting directly the rights of only our more deprived population. When we talk about arrests for investigation, lengthy police inter- rogation prior to arraignment, and the like, the subject under discussion is not you or me. We don't get arrested without probable cause because, to put it plainly, we don't "look" as if we would commit acts of violence and we do look as if it might not pay to trifle with our rights. Nor would you oi~ I be subjected to long interrogation by the police without the benefit of counsel. Nor do you and I live in neighborhoods where the police dragnet is used, and where suspects are subjected to wholesale arrest. So the issue really comes down to whether we should further whittle away the protections of the very people who most need them-the people who are too ignor- ant, too poor, too ill educated to defend themselves. Can we expect to induce a spirit of respect for law in the people who constitute our crime problem by treating them as beyond the pale of the Constitution? I venture to say, when you round up 90 Negroes and hold 67 of them overnight and those guys go home, you have caused yourself more problems than anything else, that these people, they have every right to say, "The damn cops, they are our enemies." (Several years ago, in a hunt for three "stocky" young Negro robbery suspects, Dis- trict of Columbia police rounded up 90 persons, holding 67 overnight.. Another man, not one of the 90 arrested, was later charged. The incident is described in Trilling v. United States, 260 F. 2d 677, 690, n. 11 (D.C. Cir. 1958).). And they do that, to the Negroes-they won't do it to the blue-eyed blondes-they won't round up 90 blue-eyed blondes-and it doesn't happen very often but it has happened. It has happened all over the United States. It is the Mexicans, the Negroes, the Indians, the poor people-they are the ones that the police push around, and that is the problem. For they are also the ones who breed the most crime. And it may be that PAGENO="0389" AMENDMENTS TO CRIMINAL STATtTE~ OF D.C. 383 by getting them resentful, getting them mad, they are going to breed still more crime. Now, I suggest that this is just as plausible as some of the argu~ ments you have heard about the McNabb-MaUory rule causing crime1 It seems to me you might gain a greater respect for the police depart~ ment and you might get better results in the long run if you stop giving the police more power, if you stop listening to them-I'm sorry, if you listen to them but stop going along with everything they says everything they want. Now, these police officers are sincere7 but it seems to me that-I will put it this way: I was an infantry lieutenant in combat and I sin- cerely believed that if a man would not obey my orders and go up the hill, I could shoot him in the back of the head-I was prepared to do that. Now, years later, I realized that that was indefensible-but I was too involved. I was sincere. I felt that the only way to prevent soldiers from "bugging out" was to shoot one of them, and I honestly thought that that was proper, at the time. Now, I was too close to it. And it seems to me that-these police- men are experts, these men are specialists, but they are also very intensely involved. And it seems to me that because of their great expertise and because of their great drive and zeal, which makes them good policemen, it also raises some problems about their ability to take into account other values. Now, we don't let our admirals and generals push us around. If they say that we should not make a nuclear weapons treaty, and they are admirals and generals, and they have a Congressional Medal of Honor, and eight rows of ribbons, we don't necessarily listen to them. They are too close to the problem, and we recognize it. But for some reason, we recognize it less when it comes to a police officer. That is the point that I am trying to make. I have long been a football enthusiast. The football coach, if he has his way, boy, there would be no standards. Any guy who could run the hundred in 9.5 seconds, he would be in school, and Minnesota would have a better team. Now, the coach gets annoyed and says that the faculty committee members are interfering by raising the stand- ards. He says, "What do you guys know about football? I am the football coach." And they say, "Yes, but we are running the university, and the presi- dent of the university and the faculty committee are better qualified to decide what the academic standards are for letting people play foot- ball on our college team than you are." And it seems to me that we are running a society. There are other values than police efficiency. It seems to me that people who are not so deeply involved, people who can stand back and consider other values who have more perspective, are better qualified to decide about things like the McNabb-Malloryrule than are the police. The CHAIRMAN. Thank you very much. You have been a very interesting, effective, and articulate speaker. It has been a pleas- ure to have you here with us and I appreciate your testimony, and you can rest assured that it will have the full evaluation of the entire committee. Mr. KAMISAR. Thank you very much, sir. PAGENO="0390" 384 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. Our last witness for the afternoon is Dean Pye, professor of law at Georgetown University. Professor Pye, or Dean Pye, we are happy to have you with us. STATEMENT BY ASSISTANT DEAN KENNETH PYE, PROFESSOR OF LAW, SCHOOL OF LAW, GEORG-ETOWN UNIVERSITY; CHAIRMAN OF THE CRIMINAL LAW COMMITTEE OF THE flIDICIAL CONFER.. ENCE FOR THE DISTRICT OF COLUMBIA Mr. P1-E. Thank you, Mr. Chairman. Mr. Chairman, my association with this problem began originally when I was teaching criminal law and later as a teacher of criminal procedure. In addition, during the year 1960-61, I was director of the legal internship program and I exercised supervisory jurisdiction of approximately 700 cases which came into our office in one form or another during that year. Since that time I have been a member of the criminal law coin- mittee of the judicial conference of the bar association and repre- sented that committee in presenting its report in reference to the Mallory rule last year at the meeting of the entire association which was called to decide the association's position with reference to the bill. Now, I shall not review all of my viewpoints on this rule. Much of wha.t I would have had to say has been said by my colleague, Mr. Sha doan. I think I agree with much of what Professor Kamisar has said. I find myself in disagreement with a great deal of what Professor Inbau has said. As I see the rule, it has several purposes. One of them is to prevent inequality of access to evidence on the question of voluntariness, if a defendant is detained in secret by police officers, necessarily he will have only his testimony on the issue of voluntariness and they will have theirs, and in the ordinary litigation situation, the judge will not unreasonably believe them and not the defendant. And as a result, in the fairly rare case in which a confession has been obtained as a result of force, threat, or offers of leniency, he will not be able to assert his rights effectively. Let me say that I cannot go along with either my colleague, Mr. Shadoan, or Professor Ka.misar in any possible inclination that I think this occurs regularly in police interrogations in this city. My experience with the police and my experience with criminal cases has indicated that only on one or two occasions do I think that such con- fession was obtained, by improper offers or inducements. The IlIalloTy rule has other purposes as well as these purposes. However, these purposes, I do think, would be frustrated by the pass- age of this bill before the committee now. The provisions in rule 5 calling for the presentation of the de- fendant, a defendant has the right to be admitted to bail, he is in- formed of his rights to trial, lie is informed of his rights to counsel and in this jurisdiction, to be presented before a judge of our court of general ~essions and counsel appointed for him if lie is unable to procure counsel independently. PAGENO="0391" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 385 In addition, at that time he has the right to a hearing on the ques- tion of probable cause. These are broad constitutional rights of great meaning and they will be technically frustrated if the police are per- nutted: to detain for: an unnecessary period of time and then profit by the delay. And the bill which is before the committee would result in exactly that. And any protection given insofar as, under rule 5, the right of counsel, which is protected at the present time in the Court of General Sessions and the statute would be broadened by the proposed changes to rule 5 and 44 of the Federal Rules of Crimi- nal Procedure and the only case which would be presented before a magistrate would be a' case where they did not have proof of probable cause and the case would have to be dismissed, or a case in which they had obtained probable cause as the result of interrogation which took place during the period of unlawful detention. The Justice Department presentation with regard to the constitu- tionality of this proposal was well founded, in my opinion. I don't think the proposal is constitutional on its face. I think it would be constitutional if applied to a situation where the defendant is lawfully arrested, that is, with probable cause and detained for a very short period of time and during that short period of time, voluntarily con- fesses. Now, these are rare cases, however. The crying need of the Police Department is for an opportunity to interrogate people w'hom they suspect of crimes under circumstances where they do not yet have prob- able cause to believe the defendant has committed the crime. And this statute if applied to that kind of a situation would in my opinion violate the dictates of the Supreme Court in the Wansung case. As I understand that case', it says that if a police officer arrests a defendant without probable cause, any confession which he may obtain as the result of that illegal arrest shall be suppressed not because of the Mallory rule but `because of the dic~ates of the fourth amendment and the rules in support of that amendment. And insofar as this statute would attempt to permit these confessions to be admitted in evidence, I think it would be truely contrary `to that decision and would be held in violation of the fourth amendment. The other kind of situation is the case in which there has been a lawful arrest and a prolonged period of detention. If the period of detention is sufficiently lo'ng, it may be argued effectively that the causal relation between the illegal arrest and the confession has been dissipated and it would not prohibit the admission of the confession. The problem here is t'hat in all probability the cases would fall under the due process cases including the confession as being "involuntary," and this would leave the statute, if passed, covering only those limited number of cases of lawful arrests and short periods of `detention and periods of lengthy detention and confession would be suppressed under `the due process cases and cases in which there is a prompt confession following illegal arrests would be suppressed under Wansung and in that sense I think the statute is too broad to be constitutional if ap- plied to all cases that the police would like to have it applied to. Let me say that I do not think the provision of the statute calling for the warning is anything more than a device to give the appearance of a meaningful right and presumably the House is aware of the fact that originally military law contained the very exact provision which PAGENO="0392" 386 AMENDMENTS TO CRIMINAL STATUTES OF D.C. is contained in this statute and the experience during World War II showed that this was an utterly meaningless right. Interrogation would be conducted of the suspect or the person who was detained without informing him of his rights. After he con- fessed, he would then be arrested and then informed of his rights. Now, as the result, the Senat.e placed into the Uniform Code of Mili- tary Justice in 1950 a provision requiring anyone who was suspected of an offense to be informed of his rights to take care of just the kind of evils which had resulted from the statute which only required a warn- ing to be given to people who had been placed in the state of arrest. I think it is significant that the House chose the old statute and discarded the military law of the Senate in 1950 in order to pass the particular language contained in this act. I might add that the new section of the Uniform Code requires each individual who is suspected of an offense to be informed of his rights, has proved not very effective in practice. The number of confessions was the same, as always happens in the military simply because of the fact that the use of persuasive interrogation devices, such as those proposed by Pro- fessor Inbau, are such that the 19-year-old without any prior associa- tion with criminal law is unable to remain silent, even though he is informed by a police officer that he possesses that right. I also have severe question as to the extent to which police efficiency has been impaired by the present ruling. Undoubtedly, there are occa- sions, cases which could be pointed to. I have great sympathy with the police feeling that, in order to educate younger officers, it is neces- sary to tell them how far they can go in t.he present state of the law and if this is not done, consequently, an officer does not lmow when he violates the law and I have a tremendous degree of sympathy for them there. I think it is clear to everyone that as long as they interrogate only during the period of arrest, taking him to the precinct and only during the booking process, that it is admissible, and I think it is also clear that if they wait for more than 2 hours thereafter for purposes of interrogation, they would be inadmissible. To the extent that they desire to interrogate before booking, but before 2 hours, they could, of course, instruct officers not to interrogate after booking, but there is a natural reluctance to stop before they are required to stop when they are trying to do their duty in solving a crime. There are undoubtedly cases which cannot be solved by the police unless there is a period of time in which the suspect might be interro- gated in secret without the presence of his counsel. These are cases in which the identity of the defendant cannot be established by the prosecuting witness, and he cannot make a case without some kind of an admission. The Killough case, I think, is a pretty good example. The chief of police gives other examples and they are well taken. On most of these cases, however, there are cases where the police may not lawfully arrest in the first place, because the reason why they cannot make the case is because they do not have probable cause and there are only two cases in my experience where they had probable cause for arrest and where the admission is absolutely necessary for the prosecution, but the vast majority of cases are cases which can be made if they had probable cause for arrest in the first place. PAGENO="0393" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 387 I have some concern that the Senate is being given the impression that our crime rate is on a great increase here. I will not attempt to duplicate statistics given by my colleague, Mr. Shadoan, but the annual report of the Police Department for the last fiscal year indi- cated that the crime in the District of Columbia, serious crime in the District of Columbia has declined during that fiscal year 1.2 percent, and although the crime rate has increased considerably since 1957, the serious crime rate in the District during last year was 12.5 percent below what it was in 1953. I also understand, and this is a matter here of hearsay, and I am sure that the committee staff will be able to verify it, that the District of Columbia leads the Nation in the efficiency of the police, as judged by the percentage of closed cases. As I understand it, this clearance rate, as it is called, is the percentage of cases in which a file is begun and which is ultimately closed by arrests and it is my understanding- hearsay again-that the District of Columbia closed approximately 44 percent of the cases, whereas the national average is 27 percent. While it may be argued that more cases would be closed without the Mallory rule, it does not appear that the Mallory rule is preventing them from doing an extremely efficient job. I would like to. have the information as to exactly how many cases have been lost because of the Mallory rule. I have never been able to get this information. One of my colleagues who at the present time has been directing the program and for the last 4 years was assistant chief of the court of general sessions, could recall only 3 cases of the approximately 30,000 with which he caine in contact that were thrown out because of the Mallory rule. Undoubtedly there are a number of other cases in which confessions have been excluded from evidence in the district court and where the Government has lost the case, and there are four or five cases in the court of appeals reversed because of inadmissible confession, but I do not know how many cases have not been presented to the U.S. attorney's office because the police were unable to interrogate in such cases. I would strongly suggest, however, that the number is not a very large number and one of the reasons is that the police are quite flexible and have quite a bit of ingenuity and in particular areas they are extremely intelligent and as a result they have found devices to avoid the exclusionary effect of the Mallory rule. These devices are largely devices of violating the rule part way. They arrest the person without probable cause, or with probable cause, depending on whether they have it. You detain him clearly for an unnecessary period of time. He confesses. And in his confession you are able to determine not only perhaps the victim of this crime but the fact that he has committed other crimes. And so then you go to your unsolved crimes files and you produce those witnesses and at the trial you do not offer evidence that you illegally obtained your confession, you only offer in evidence the eyewitness testimony of the witness whom you have found as the result of the unlawful detention. Now, this has been sustained by the Court. In the case of Leroy Pane, Pane had been detained 25 hours and ultimately he was tried for an offense other than the one for which he had been arrested because they could not prove the offense for which he had been arrested without violating the Mallory rule. But during the period of inter- PAGENO="0394" 388 AMENDMENTS TO CRIMINAL STATUTES OF D.C. rogation he admitted another crime and the witness whom they needed in the other crime was found and only the testimony of this witness was offered. In the Smith and Bowden cases handed down by the circuit in September of this year, we have the circumstance where the police detained an individual for 60 hours. As the result of his detention, one individual who was an adult. and the other-an intensive interro- gation of a juvenile for 35 hours, by a clear violation of the Mallory rule, they obtained knowledge of the whereabouts of a witness and at the trial they did not attempt to admit the confession of the juvenile which would be excluded under the Mallory decision, they produced only the testimony of the witness which had been found as a result of these unlawful detentions and that was sustained. I am not prepared to argue before this committee that these things are right or wrong, but I do think that they indicate that there is a great deal more flexibility available to the police and that the com- mittee would be. wrongly advised if they thought that because there is a Mallory rule the police have stopped unlawful detentions-the unlawful detention may not be accomp1isl~ed in a case where it may cost the case, but these decisions in the aggravated assault cases and the homicide cases are pretty good evidence, I think, that the police in important cases will detain unlawfully even with the Mallory rule, and may be very well able to make their case without the necessity of violating the Mallory rule simply by their reluctance to admit the confession. As a defense counsel I have on occasion attempted to incite a. prose- cutor to offer a confession because then I would be able to establish the Mallory rule violation. The clever prosecutors will not do it, he has a witness, he uses the testimony of that witness that he has obtained for the purpose of conviction and the same phenomenon is noted, of course, in the Goldsmith, Jackson, and Killough cases where con- cededly the rule was violated and an admissible confession obtained and on the basis of this confession a subsequent admissible confession was obtained in Jackson-Goldsmith and an inadmissible confession in Kiliough. I continue to be concerned over the problem in the District of Colum- bia. As the Senator has indicated, my mother is one of those ladies who will not go out on the street at night for fear of attack. I simply am not sure that her position would be changed if the Senate passes this particular bill, and that is the thrust of my comments before the committee today. The bar of the District of Columbia is a bar which is acutely con- scious not only of the pressure of business interests in the District but the pressure of their loved ones and the pressure of their clients, for something to be done about our crime rate. Nevertheless, last year, when this matter was presented to the bar association at a meeting attended by over .900 members of the associa- tion, the vote was overwhehning against a statute such as this one which would effectively negate the protection given to defendants at the present time by the Mallory rule. And this was not just defense coimsel assembled in high dudgeon. The bar of the District of Colum- bia has indeed very few defense counsel, there are a few like myself PAGENO="0395" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 389 and there are a couple of people from Fifth Street engaged in regular representation, and there was a substantial number of U.S. attorneys.. But the vast majority of these people were ordinary practitioners~ in the District and they came out and studied the matter and reached. the conclusion that it was the better part of valor not to attempt to~ interfere with rules of evidence which had been proclaimed by courts of competent jurisdiction. The press reported it as being a 4-to-I. vote. My personal belief is that it was closer to 3 to 2 against it. These matters are of concern to everyone who is involved in criminal processes. The American Law Institute has commissioned a study which will spend $250,000 studying the purposes of arrest, detention, search, and seizure during the next 2 years and the program is under the direction of Professor Sullivan, of the Harvard Law ~chool, and an associate professor, Prof. Edward Barrett, of the University of Cali- fornia Law School. Hopefully, they will come out with some kind of a solution so that we will not be put into a position where we can simply say that Mallory should not be retained but we simply don't have any alternative to provide. Now, I think there are some things that can be done in the District of Columbia at the present time to materially improve the administra- tion of criminal justice and to assist the police. Obviously, the ulti- mate practice will depend upon matters which Professor Kamisar has described-we have got to do something about venereal disease, broken homes, discriminations, all of these other factors which are really within the purview of the factors of crime-but this is going to be 20 years from now. During the next 5 years we will suffer from the fact that the Dis- trict of Columbia only had one juvenile court judge at a time when our new criminals were being bred and we will also suffer from the school dropout rate. But we can do something. One of the things that we can do is to engage in the kind of work that was begun by Dr. Gasch and continued by Mr. Acheson, instruct- ing police in what they can do legally and how to do it effectively- the so-called prearrest interrogation technique in which, instead of putting the defendant under arrest and bringing him down to the headquarters to interrogate him there, you interrogate where you ~nd him, on the street, and the only occasion that it is necessary to bring him down is when he won't answer and experience has shown that most people do answer. You have the possibility here that the defendant will confess to something that he didn't know before, if he attempts to evade, being told that this evasion constitutes probable cause to justify his arrest, and a great deal more can be done in this area that has not been done before-it would probably be more convenient to the police officer to take him downtown and interrogate him in police facilities, rather than on the street- The CHAIRMAN. I wonder if you could develop that point a little bit. This seems to be very similar to what Professor Kamisar discussed in his testimony. Mr. PYE. Well, the. law is unclear in this, Senator, because it is as yet just evolving as the result of, among other cases, the Henry case. The idea is this, that the police officer, when he sees someone who is behaving suspiciously or sees someone who is under investigation, his PAGENO="0396" 390 AMENDMENTS TO CRIMINAL STATUTES OF D.C~ conduct is under investigation, he approaches this individual and he talks to him and inquires concerning what facts he desires to know, and- The CHAIRMAN. You mean, wherever he happens to intercept him? Mr. P~. Wherever he is intercepted. It could be a case where the police officer observes suspicious conduct on the street or the case where the officer goes to his home and he questions him, after having obtained entrance he questions him and he asks him those questions there. It would appear that this is lawful. Now, on the second question, whether you can advise him to accompany you to a detention facility and interrogate him there, as long as he does not object, that seems quite clear. There is an opinion in the second circuit, The United States v. Delea, holding that this is legal, that the defendant who vol- untarily accompanied the Federal Bureau of Investigation officers to a police station where he was interrogated for a period of 7 hours, had not been placed under arrest, and unless he had been placed under arrest the requirements of 5(a) did not apply and therefore there was no obligation- The CHAIRMAN. Along that line is what Professor Kamisar sug- gested. Instead of arresting and then questioning you can elicit the same information by artful questioning before arrest. Mr. PYE. That is correct. There is this exception, and this is a very rea.l one, if the defendant says "No, I don't want to answer your ques- tions," unless you have probable cause, you can do nothing except leav~ him. TILe CIIAnr~IAx. Of course, under your theory and Dr. Kamisar's theory, as I understand it, you can't do it anyway, if they stand on the JlIa7lory case. Mr~ Pre. Well, I am not sure that is true, sir. We have a period of time in which we know of no confession which has been excluded under 1Jfa~7ory in a time interval shorter than 2½ hours and the cases clearly establish that if you arrest a person and ~put him in a squad car and take him to the precinct and ask him questions en route to that precinct and he answers them, his answers are admissible and while you are going through the booking process, the answers are admissible and while you are fingerprinting him, they are admissible. The cases simply hold that after you have completed the routing booking purposes you may not then continue if you have no other purpose than interrogation, at that stage you have the duty to produce him before a magistrate. There is some opportunity. The problem is that while you are going through these stages you do not have the secrecy, nor do you have the inducive effect of a police detention facility which is more likely to encourage a confes- sion, and it is undoubtedly true that a sophisticated criminal, if he knows you are going to have to produce it promptly, he is more likely to volunteer a confession than if he has reason to believe that you can detain him for some period of time without- The CuAu~rAx. That was the point made in the Mallory case. There Justice Frankfurter stated that the arrested person may of course be booked by the police but he is not to be taken to the police headquarters in order to carry out a process of inquiry, so designed as to elicit damaging statements to support an arrest. PAGENO="0397" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 391 Mi. Prig. That is it, sir, but I think it has to be read in context with the decision in which the judge was speaking and as I under- stand the law, you may ask him. an incriminatory question after you have put him under arrest, while you are waiting for the squad car, or in the squad car going down or during the booking process, at that stage you can put him formally under arrest and book him and after that stage you may not ask him any questions solely for the purpose of obtaining an incriminatory-the period between the completion of the booking process and the point of arrest should be regarded as .a period of necessary delay and if it is a necessary delay the interroga- tion in this period is not illegal, it is only when the period of un- necessary delay begins after the booking process that interrogation would be illegal. The CHAIRMAN. Is there anywhere that spells it out, so that the police can properly interpret when they can . interrogate, and when they cannot. Mr. PYE. Well, I think that the police are well aware that they can interrogate up to this stage at the present time and I know of no court that has suggested that a spontaneous confession in a squad car going down is suppressable. The problem is that the police want to extend the period after he is booked. Now, how far can you go after he is booked, that is the period which is doubtful. The CHAIRMAN. How long may they keep him before booking him? Mr. Pyii. This is not clear but I think it usually amounts to 2 hours or 21/4 hours. In the &heelc case it involved 45 minutes after his arrest and that confession was admitted. My bet would be that the court will not suppress any confession of less than 2 hours unless they find the police department dallying in the squad car and not taking him downtown. The CHAIRMAN. As I understand it, if the police intercept a sus- pect on the street they can actually interrogate him until such time as the actual booking process is completed. Mr. P~ii. Assuming that the~ are not taking any deliberate steps to delay the ordinary booking process. I am sure that if they picked him up in the 2d precinct and decided to book him over in the 13th and walked him there for the purpose of putting him under interroga- tion, the court would make an exception, but I am speaking of a situa- tion where the ordinary course of events is followed; where the officer picks him up . and takes him down to the nearest precinct and books him and I don't know of any case where that would be held improper. Now let me say thatthere are other things that I think can be done also. One of the problems which concerns all of us is the increase in the rate of police resignations. As I understand it, almost twice is many police officers resigned from the force during the ye'ir 1962 fiscal 1962, than did in fiscal year 1961 and I think we should try to examine into the reasons for that, the reasons for that. The next factor w lnch I think is serious enough to be given great consideration is increasing the police powers to arrest in certain of- fenses In my opinion the police are subst'tntially limited by the pi~esent law in the District of ~olumbia which does not permit a PAGENO="0398" 392 AMENDMENTS TO CRIMINAL STATUTES OF D.C. police officer to arrest for a misdemeanor or simple assault, even though he has probable cause to believe that an offense has been committed. A number of cases fall into this kind of a category and there I think the police should have that kind of authority. Now, I might add that- The CHAIRMAN. Will you repeat that? Did I understand you to say that they cannot arrest with probable cause in the case of a simple assault? Mr. Pri~. Yes, sir. The CHAIRMAN. Is that by court decision? Mr. P~n. It is by statute, sir. The CHAIRMAN. By statute? Mr. Pia. Yes; by statute. The statute permits arrest for probable cause in felony cases and in certain specific misdemeanor cases in- cluded as a result of the omnibus crime law of 1954. Simple assault is not one of these categories, and I think it should be. I think this should be changed. I think that serious consideration might be given to the policies gov- erning the nolle prosses entered by the office of the U.S. attorney. I do not suggest., and I do not intend to suggest, that they are not doing the best possible job, but a former roommate of mine is a chief of that division which is engaged in those nolle prosses. The fact remains that almost two-thirds of the cases which are brought to his office by the police are not prosecuted, either because of shortage of manpower or the belief that the defendant would be acquitted or that the police believe that the defendant would be placed on probation, anyway, and that may have a distinct relationship to recidivism in the District of Columbia, the probationary policies, the strengthening of the pro- bationary system here, so that the time of the police will not be spent trying to assist probation officers trying to find individuals who have breached probation. We have an extraordinarily sad situation there, in my opinion. The average probation officer in the District of Columbia has over 84 cases entrusted to him for supervision each month and the idea of- trying to forward the rehabilitation idea is absolutely absurd when the officer has to spend-when he only has 10 minutes a month to spend with each person under his care, and that is about what it works out to, if my figuring is correct. The provision that Chief Murray mentioned at the time of the Senate Appropriation Committee hearings earlier this year, the transfer of uniformed officers from clerical positions to positions on the street and replacement by clerical personnel or. in the alternative, the addition of more police officers-all of these will help the problem. I do not think, however, that the passage of the bill in question will help and, in fact1 it may hinder progress. Witnesses before this committee yesterday spoke of the very unfor- tuna.te situation of police departments throughout the country being held in disrespect by substantial segments of the population. Well, t.hat is true, and one of the reasons-one of the reasons, obviously, is ~the fact that when 20 people are arrested for investiga.tion without Tprobable cause and 19 of them are subsequently released, those. 19 are iess likely to respect the police than they were prior to its happening- PAGENO="0399" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 393 and this is particularly true where we know that 17 of the 19 were Negroes. We cannot, I think, realistically avoid the fact that passage of this bill has grave racial overtones. If the records of arrests in the Dis- trict of Columbia are reviewed, you will find a very high percentage of the people who were arrested are Negroes and what this bill will do is to permit the unlawful detention of these Negroes with no effec- tive sanction against the police. I do not think any other alternative is clear, except for the fact that this will breed the kind of a feeling of discrimination and the kind of disrespect for law and law enforce- ment which is extremely dangerous to the entire community and I regret that I have to say this and it would not be true, perhaps, in an- other jurisdiction. But this bill only applies to people who are unlawfully detained- and they are Negroes and already a white attorney who is research- ing the problem-cases in the 2d precinct and the 9th precinct and the 13th precinct-he says that he cannot get Negroes to assist him because once a Negro knows that he is connected with the law he has an atti- tude of "you are my enemy." The arrest and investigation point is the beginning point to try to expel this attitude and to try to create a real equality before the law, which, hopefully, will result in a greater sense of civic responsi- bility and more respect for the institutions of the law, and to permit these unlawful detentions of these individuals will just be moving in the other direction. Thank you. The CHAIRMAN. Thank you. You have certainly made a splendid statement and your presentation is among the best that I have heard in many a day. Now, I would like to get back to one question that was prompted by the suggestion made by Mr. Katzenbach in his official report on H.R. 7525 on page 4 in the second paragraph where he says: As an alternative to HR. 7525, we call your attention to the provisions of H.R. 7526 which was prepared by the U.S. attorney for the District of Colum- bia. Under H.R. 7526, a confession elicited after arrest could not be received in evidence unless the defendant had been advised of his right not to make a statement and that any he did make might be used against him; given an oppor- tunity to notify a relative or friend and consult with counsel, and, when reason- ably possible, interrogated in the presence of an independent witness or a re- cording device and presented to a magistrate no more than 6 hours after arrest. This is the point I want to make. As I understood, part of the thrust of Professor Kamisar's statement was that we do not quite know what goes on during the period of interrogation, we cannot be quite sure whether inducements were offered or whether threats were made, but if you had an official recording, then you would have a record of that interrogation which would show whether it was legal or illegal. Mr. PYE. Well, let me just say that I have not had a chance to study the bill as closely as I would have liked to, but that particular provision I would have no personal objection to if it were amended to provide, where he could not retain private counsel, counsel will be appointed for him. To inform him that he has a right to counsel is meaningless in 70 percent of the cases tried in this jurisdiction, and if we are going to implement this by providing counsel for him, then I have no ob- jection to it. PAGENO="0400" 394 AMENDMENTS TO CR1ML~AL STATUTES OF D.C. My problem is this, Senator. That bill results in no interrogation, either. If you give him the right to counsel and if you give him counsel then counsel is going to tell him that he does not have to have interrogation. So while I have no objection to that proposal, I do not think you will accomplish his objective. I am afraid that my proposition comes down to this-my position, rather, that even though there are some crimes that cannot be solved without interrogation in secret, this is a price which we have to be prepared to pay if we are going to achieve the greater objective which is the protection of the rights of the vast majority of defendants. I know of no way that we can give the police the right to interrogate in secret and not in some way interfere with the liberties, the individual liberties of the vast majority of people charged with crime. The CHAIRMAN. But I am speaking about interrogating with a recording device. Mr. PvE. Well, this is entirely new-and the only place that I know of where it has been done is in Israel. In Israel, the minute that the defendant enters the detention facilities, everything that occurs there is recorded. Now, in the event that the Senate is disposed to pass on this bill I think that the addition of that requirement would be a substantial safeguard. What it does not cover is in the case of a defendant who has been illegally arrested, that detention is unlawful and the fact that you have evidence of the illegality is not very helpful, and I go back to the point that the great virtue of the JJia1loi-~y rule is to provide protection against the original illegal arrest and I don't know how we can achieve that result other than by exclusion of the evidence. But I certainly agree that something similar to the Israeli statute of re- quiring verbatim recordings of all interrogations of individuals after they are placed in the arrest status is a considerably better alternative than simply to obtain any confession obtainable as a result of unlawful detention. The CHAIRMAN. Thank you very much, your presentation is helpful to the committee. We will stand in recess until 10 o'clock tomorrow morning. (Whereupon, at 4:30 p.m., a recess was taken until 10 a.m., Thurs- day, October 24, 1963.) PAGENO="0401" MALLORY AND DUR}IAM RULES, INVESTIGATIVE AR- RESTS, AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA THURSDAY, OCTOBER 24, 1963 U.S. SENATE, Coi~Lir1rrEE ON THE DISTRICT OF COLUMBIA, Washington, D.C. The committee met, pursuant to recess, at 10 a.m., in room 6~26, New Senate Office Building, Senator Alan Bible (chairman) presiding. Present: Senator Bible. Also present: Chester IT. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard E. Judd, professional staff member. The CHAIRMAN. The committee will come to order. This is a continuance of the crime hearings. We are still on title I, involving the Mallory rule, title III, the so-called investigative arrest provision, and the second part of title III involving detention of ma- terial witnesses. Our first witness this morning is Hon. Robert McLaughlin, presi- dent of the Citizens Crime Commission of Metropolitan Washington, a very distinguished Washington citizen, former Commissioner, Chair- man of the Board of Commissioners. Always glad to see you back in these familiar surroundings. STATEMENT OP ROBERT E. McLAUGHLIN, PRESIDENT, CITIZENS CRIME COMMISSION OP METROPOLITAN WASHINGTON Mr. MCLAUGHLIN. Thank you, Mr. Chairman. I should come up here more often. The CHAIRMAN. It was always a pleasure to work with you during the time you served as Chairman of the Board of Commissioners. Mr. MCLAUGHLIN. Mr. Chairman, I wish to thank the committee for the opportunity of presenting the position of the Citizens Crime Commission on the so-called Mallor'y rule, the Uniform Arrest Act, and the detention of material witnesses to a crime. First, may I state for the record that the Citizens Crime Commis- sion of Metropolitan Washington is a voluntary citizens' organization, established iii 1936 upon the recommendation of a House Crime Inves- tgating Subcommittee, chaired by the Honorable Jennings Randolph, who is now serving as a distiguished Member of the Senate. I might also add here, Mr. Chairman, the Citizens Crime Commis- sion is the organization which was originally known as the Washing- ton Criminal Justice Association. 25-260-64--pt. 1-26 PAGENO="0402" 396 AMENDMENTS TO CRThIINAL STATUTES OF D.C. An act of Congress has actually brought us into a sort of semiof- ficial status in that the Citizens Crime Commission places one member on the Council of Law Enforcement, by statutory provision of the District of Columbia Code. This organization's work has been principally in the field of investi- gationa.l research; however, it is now also approaching the serious problems of crime in this area by mobilizing the cooperation of the hundreds of citizens' organizations with the purpose of mounting an areawide attack on lawlessness, particularly street violence. The Citizens Crime Commission has take.n official positions on each of the three subjects under discussion today. In general, I may state that this organization, after giving careful and extensive considera- tion to the crime situation that has developed here since 1952, takes the definitive position that crime has increased in volume and violence because the word has got around among criminals, and people who are criminally inclined, that WTashington has become soft on crime. This commission equally concludes that this impression is largely the result of a series of legal developments, including the Durham ruling, the Malloi~y and Kiliough decisions, the 1957 Report on Prisoiis, Proba- tion, and Parole, and the recent order against investigatory arrests. \~\Tliile we feel that these local events have a direct bearing on the buildup of crime here, we recognize that they cannot all be reversed. We believe that any arrest without probable cause is in violation of the constitutional rights of the individual. We cannot, therefore, go along with the Uniform Arrest Act as we read it in section 301 of H.R. 7525. However, we feel differently about section 302 of the bill dealing with the detention of material witnesses to the commission of a felony. In the earlier days of the criminal law of England, when a peace of- ficer sounded the "hue and cry" in pursuit of a suspected criminal any citizen bystander was required to join the pursuit and assist the officer in effecting the arrest. Failure to do so was an indictable offense. We feel that the citizenry of today are seriously at fault in this area in that they do not coop- erate properly with the police to bring criminals to justice. Too often they -fail to notify police of crimes committed in their presence. They refuse to give information to the police when they arrive on the scene. They are uncooperative when they reach the courts. During my tenure as a District Commissioner, there were occasions when we were required under section 4-144 of the District of Columbia Code, to provide lodging facilities for material witnesses who were being held in default of bond. We realized that the existing statute should be improved, and set about to do something about it. The present law goes back to 1878 (and probably beyond that time). The question in my mind was: Where do they get the authority to detain these people? In our opinion, section 302 would confer such authority. Further- more, we do not feel it to be unconstitutional. These witnesses are not being required to give evidence against themselves. This is merely a. reasonable exercise of the police power for the restoration of peace and good order in the community. In the complex community in which we live today criminal activities cannot be adequately dealt with to protect the public while material witnesses are free to drop out PAGENO="0403" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 397 of sight or leave town to avoid their civic responsibilities. Such parties may, of course, be compelled to attend court and testify in a criminal trial where the defendant is not compelled to testify. It is our opinion that there is nothing unreasonable about their being required to cooperate with the investigative authorities who are endeavoring to solve a crime and restore peace and good order in the community. It is of great importance to the enforcement of the law in this city that material witnesses not be permitted to obstruct justice by absconding from the jurisdiction. The Citizens Crime Commission also endorses section 101 of IELR. 7525. The Mallory rule has crippled our police in their efforts to protect the community. It increases the difficulties of law enforce- ment, and also encourages increased lawlessness. Section 101 simply returns the courts to the general tests for coercion with respect to defendants' statements and it requires the warning concerning the rights of the individual to stand mute. Section 5 of the Federal Rules of Criminal Procedure was created by action of the Congress. It is a rule of criminal procedure, governing the admission of evidence in a trial, and it is clear that it can be constitutionally explained or amended by the Congress. The crime commission feels this to be of extreme importance to the enforcement of law in the District of Columbia. Mr. Chairman, I have sought to avoid repetition of the testimony of other witnesses, but I shall be glad to respond to any questions you may wish to ask. The CHAIRMAN. I appreciate your appearing and providing the committee the benefits of your views. I know of your fine reputation, not only as a public official, but you are equally a splendid lawyer, and your views are very helpful to us. There seems to be general agreement on the investigative arrests. Most of the witnesses who have appeared have cast doubt on the constitutionality of the provision. They have taken the position sim- ilar to yours. Senator Ervin, who appeared before us yesterday, and who is really an expert in the field of constitutional law, took the same position. Now, as you say, in the Mallory rule, it is a Federal rule, it does not involve, as indicated in Justice Frankfurter's decision, a construction of the Constitution. Is it your opinion if title I was enacted into law, that it would stand a constitutional test? Mr. MCLAUGHLIN. That is our opinion. We have a very good committee on policy and legislation. in this organization, some experts in this field, and we are all of the opinion that that would, Mr. Chairman. The CI-IAIRMAN. This is an area, of course, in which there is some difference of opinion. Some people feel if you were to enact title I, and it was to find its way to the U.S. Supreme Court, that there would be certain constitutional objections raised on the grounds that you had not built in adequate safeguards for the accused. This is very much the position of Mr. Katzenbach of the Department of Justice, in hi.s official opinion, just a month ago, to this committee. Of course, he will be before us as soon as we can conveniently arrange it with him, and we can explore his views at that time. PAGENO="0404" 398 AMENDMENTS TO CRIMINAL STATUTES OF D.C. There is a difference of opinion as to whether or not title I, that. we are now considering, as passed by the House of Representatives, would stand this constitutional test. As a lawyer I recognize lawyers themselves have differences of opinion about this. It is your judgment that title I would stand a constitutional test? Mr. MCLAUGHLIN. In view of the fact that it is merely a rule of criminal procedure, yes; that is our opinion. We are not saying that people may be held for indefinite periods of time. I mean that is a matter for substantive law. We still have, among other things, the right to go in with a habeas corpus. I mean we are dealing here merely with the rules for admission of evidence. And if a suspect is held too long, this will all be brought out in the trial. This merely says that the statements that he makes or the evidence related to the delay may not be kept solely because of the delay, itself, out of testimony in the trial. And we feel that much more good than harm will come from it, and that it is not unconstitutional as merely a rule of admission of evidence. The CHAIRMAN. We appreciate your views. Just one further ques- tion: You may not desire to comment on it, because it is beyond the pur- view of your statement. Title V of the bill before us provides mandatory minimum sentences. And I am wondering if you have any expression as to whether this would be a deterrent to the criminal or not. Now, you may not have had opportunity to examine the subject. and if not, certainly say so. Mr. MCLAUGHLIN. Mr. Chairman, I have thought of it.. But I will probably testify later in some of your other hearings. And I would rather respond at that time. The CHAIRMAN. I want to give you the opportunity to study it. We seem to have had, I would think, a fair amount of agreement on the subject of the mandatory minimum sentences. In general, I think it is fair to sum up the testimony that has been given to date. The testimony coming from the present LT.S. attorney, and the former U.S. attorney, Oliver Gasch, the parole, and probation people, and lawyers as well, seem to indicate that they doubt mandatory minimum sentence served any useful purpose in deterring crime. There was some testimony to the opposite. But I think time preponderance of the testimony has been to the effect that mandatory minimum sentences would not deter the criminal. Mr. MCLAUGHLIN. I will go into this, Mr. Chairman, in my next appearance. The CHAIRMAN. We very much appreciate your appearance. Our next witnesses are Mr. DeLong Harris and Mr. James Heller of the National Capital Area Civil Liberties Union. Are you speaking from a prepared statement? Mr. HARRIS. I have a prepared statement, Senator. However, I will not speak fromthe prepared statement.. PAGENO="0405" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 399 The CHAIRMAN. The prepared statement will be received and in- ~orporated in full in the hearing record. Suppose you highlight your prepared statement. First identify yourself. Is one speaking for both of you? Mr. HARRIs. Both will speak separately. STATEMENT OF DeLONG HARRIS, CHAIRMAN, DUE PROCESS COM~ MITTEE, AMERICAN CIVIL LIBERTIES UNION, NATIONAL CAPITAL AREA Mr. hARRIS. My name is DeLong Harris. I am the chairman of the Due Process Committee of the National Capital Area, Civil Liber- ties Union, a past president of the Washington Bar Association, a member of the bar of the District of Columbia for the past 19 years, and engaged in the general practice of law, about 50 percent criminal practice. The CHAIRMAN. How long have you been in practice of law, Mr. }Iarris? Mr. HARRIS. Nineteen years, sir; ever since I was 22 years old. The CI-IAIRMAN. Very well. Mr. HARRIS. This statement is given on behalf of the National Capi- tal Area Civil Liberties Union. The CHAIRMAN. For the record, why don't you tell us about the National Capital Area, American Civil Liberties Union? Mr. HARRIS. Mr. Heller is a member of the board of directors in a higher echelon in the Civil Liberties Union. The CHAIRMAN. I think it would be helpful to have this information in the record. People might say, "What is this organization?" STATEMENT OF JAMES H. HELLER, SECRETARY AND MEMBER OP EXECUTIVE BOARD, NATIONAL CAPITAL AREA CIVIL LIBERTIES UNION Mr. HELLER. I am James H. Heller. I am a Washington attorney as well. I am the secretary and a member of the executive board of the National Capital Area Civil Lib- erties Union. It is the American Civil Liberties Union affiliate for the Washington metropolitan area, which includes, of course, the Dis- trict of Columbia as well as Prince Georges and Montgomery Coun- ties, Md.; Alexandria, Arlington County, and Fairfax County, Falls Church, Va. We were organized approximately 21/2 years ago. We are a rather new affiliate, but quite a large one. We have about 2,300 members. Our principal business in this world is to defend people whose cases, or represent them, whose cases we believe involve civil liberties impli- cations on a local basis, and secondly, to appear in such cases as this, where we believe that legislation or public action involves civil liber- ties implications for this area. We do try and keep out. of purely national civil liberties issues, be- cause there is a Washington office of our parent body, the American Civil Liberties Union, and Mr.' Lawrence Spizer ably represents them PAGENO="0406" 400 AMENDMENTS TO CRIMINAL STATUTES OF D.C. normally before Congress and the executive departments on nation-~ wide issues. The CHAIRMAN. Do you pay dues to belong to thisNational Capital Chapter? Mr. ITELLER. It is a clues-paying membership organization. We pay dues to the American Civil Liberties Union, which then splits its dues between the affiliate and the parent body. The dues are a mini- mum of $2, and go up as high as people wish to contribute. The CUMItnAN. Thank you. I think that is very helpful for the record. You say you have approximately 2,300 members in the metropolitan area. Mr. HELLER. 2,200 or 2,300. We usually are a little sloppy on mem- bership just as some other organizations. The CHAIRMAN. Thank you very much for that information. Mr. HARRIS. My primary concern, Mr. Chairman, will be with the Mallory aspects-that is the part of the bill having to do with un- necessary delay in arraignment. Of course, the committee has heard a huge volume of te.stimony con- cerning this matter. But this view, taken by the American Civil Liberties Union, we believe fundamentally that the Mallory decision should not be disturbed and we believe that sincerely, because of a number of reasons, a few of which I will now attempt to delineate. The Mallory decision, first of all, did not represent a new departure or something novel insofar as the Supreme Court was concerned- when there was the MeNab b decision. The difference was that when MeNabb was handed down, there was not in existence the new rules of criminal procedure. However, without the new rules of criminal procedure, and before that day, McNabb. the Supreme Court reached the almost same conclusion, arrived at the same point based upon fundamental rights rather than upon the interpretation of a rule. Now, Mallory, as the Supreme Court announced, is, or concerns itself with an interpretation of rule S (a), the text of which I am sure the Senators are familiar with. Rule 5(a), of course, being promulgated by the Supreme Court, and enacted by Congress as statutory law-that caine to the Supreme Court in the Andrew Mallory case, a means of enforcing this rule. Now, throughout the criminal rule, and as is the case in a number of procedures of criminal rules, there is no announced policy of en- forcing that rule. Now, the Supreme Court did not say so, but Judge Cahan, in Cal- ifornia, had perhaps the best method of expressing that concept when California decided to accept the TVeeJ~s doctrine in the State Court of California. And he says this: When law-enforcement officials disobey a command of the criminal procedure rules or the law itself, there must be a penalty assessed, and frequently it is im- possible or impractical to assess the penalty against the police officer, and the penalty must be assessed against society itself. So, applying that same line of reasoning to Mallory here, we have rule 5(a), and the police officer doesn't obey it, so society will be penalized for that transgression by that law-enforcement official. be- cause the Supreme Court says if you fail to bring the suspect before PAGENO="0407" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 401 the tribunal, or before the magistrate, or before the judge without unnecessary delay, and if in the interim you have gotten valuable information by way of an otherwise valid confession, we are going to remove that, we are going to take that away from you, and it may be that perhaps the citizens in the long run might suffer, as far as that particular case is concerned. This philosophy again is not new. It was first enunciated, as far as I can remember, first in Weeks, in 1914-49 years ago; and as is now the case, in 1914 and for a number of years thereafter, it was hard for law-enforcement officials to reconcile good law-enforcement prac- tices with a doctrine that said if law-enforcement officials didn't obey certain commands of the fourth amendment, that evidence would be excluded and thereby vicious criminals might be turned loose upon the street. Perspective, of course, is always very valuable in considering any sort of legislation. Forty-nine years ago Weeks seemed to be a most horrible sort of decision on the part of the Supreme Court. No one believed that you could really suppress certain crimes if by certain then acceptable means of police practice good evidence otherwise admissible was brought for the conviction of a known and sometimes even a vicious criminal if it were thrown out. In 49 years America has marched on. The country has not been taken over by criminals. Law has been enforced rigorously. And, we say, very satisfactorily. And indeed, as I mentioned before, California, about 5 years ago, adopted the Weeks concept, and as I now understand it, `the majority of the 50 States also subscribe to that concept, and if they did not, in the recent Mapp case the Supreme Court issued a decision which would cause them to have to follow on that. We are now here concerned with a similar analogous proposition. There is no rational connection between, on the one hand an other- wise valid confession, and on the other hand, the taking away of that otherwise valid confession from the law-enforcement officials and say- ing to them that you cannot present it to the jury. And as Judge Cahan said, and as is the rationale and the theory of this type of procedure, if society is punished often enough, they will have police officials and law-enforcement officials who will obey the command of those rules. And if they don't, of course, they will be replaced. We are then faced with the question as to whether or not the enforce- ment of law is actually hampered, hamstrung, or thwarted by the enforcement of rule 5(a). Of course, again perspective is important, because the mdi vidual who is taken away from his home, wife, and family, and plact~d in a cold and often strange environment of the best of police precincts, is under a psychological strain the likes of which cannot be described adequately, and cannot be really felt unless you have actually under- gone that particular type of pressure. Now, if the police officials believed that in order to thoroughly sup- press crime `they must be given the privilege of detaining or holding a man, without charging him for any crime, for the simple purpose of interrogating him, and if that practice were directed against every PAGENO="0408" 402 AMENDMENTS TO CRIMINAL STATUTES OF D.C. citizen in America, there would not be any question but that there would be no such proposed law as we are now here before this body to discuss, because the personal equation would then enter into it. However, we look back upon the statistics that have been presented here by eminent law-enforcement officials, including our own chief of police, and including, I believe, Prof. Fred Inbau of Northwestern University. I have already presented our basic view. I do not believe that statistics will be of great value to this commit- tee because statistics can be used according to the viewpoint that you take to prove almost anything that you undertake to explore. If you say that crime, percentagewise, has increased in the District of Columbia since 1957, when Mallory came out, it is a fallacious type of logic, and certainly is not a correct reasoning. It is a nonfollowing conclusion that Mallory, ergo, must have had something to do with it. Because during that same period rents have gone up, automobile production has gone up. And of course, those things are absurd to consider, whether or not Mallory had anything to do with this. The concept that the criminal now knows that he is entitled to be brought immediately before a committing magistrate, and that he is not compelled to testify against himself, that knowledge permeated in American law, spread across this Nation, causes crime to rise, is something that I cannot comprehend-because some of these concepts are based in the very Constitution itself. If you say that Congress, in its wisdom, many years ago said that I am not con~pelled to testify against myself, is it not also a corollary of that constitutional rule that if I am not compelled to testify against myself, then I should not be compelled to be subjected to that type of psychological strain that would have the same effect. I notice from the press that Prof. Fred Inbau said that police now have psychological methods of interrogating witnesses. Ai~d I say yes, that is true; that certainly is the truth. And of course one of the greatest psychological weapons of the police department, again, is nothing novel, nothing new. If you take a man and put him in a small, dark, cold room and keep him for a number of hours, his mind is af- fected, he is subjected to a pressure, a psychological pressure, that may be turned against him. I agree with the professor that the third-degree methods t.hat were in vogue 20 years ago are becoming almost nonexistent. Now you don't have to take a rubber hose and beat a man 6 hours. You can keep him for 3 days, give him no cigarettes, give him no water, give him no food. And you can take about 2 dozen police officials or police officers and interrogate that man, and keep him awake for 3 days. And at the end of 3 days, he is almost ready to confess murder of his mother. If you don't believe it, try staying awake for 3 days; and at the end of that time, you would almost give your birthright for just 1 minute's sle~p. Now, I don't say that the officials who advocate the emasculation of the Mallory decision also advocate this ~type of subtle third degree. But I believe the purpose of the Supreme Court in the enforcement of the rule by this method is to not allow them that much leeway. PAGENO="0409" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 403 Of course I think the best expression on that particular subject- and I have forgotten the decision-but Justice Douglas has said- it wa.s in the McDonald case, which arose in this jurisdiction-power in the hands of the police is a very heady thing. Of course, power in the hands of almost any given group of people or a given individual sometimes tends to go to their heads. We believe that one of the most effective methods of this enforce- ment is that devised by the Supreme Court. Let us look, then, as to the effect of some of the-well, some of the ramifications of persons who tire arrested and who, for some reason no charges are placed, and they are set free. Now, at some previous hearings on similar type of legislation, it was set forth by certain police officials that the arrested citizen would he in a better position without the Mallory decision because the citizen could be arrested and not actually charged with any crime, but he could be then interrogated, and that would not be as vital to his personal situation as under the Mallory decision, whereby he would possibly be charged. I call to the attention of the committee the U.S. Civil Service Form .57, which no doubt the committee is familar with, and there is a ques- tion in all of those forms 57 that, as I understand it, all applicants for Federal employment, and all Federal employees, civil service, and even some of the non-civil-service employees, must answer. Now, that question does not say whether or not you have been ever convicted of a crime. It asks, "Have you ever been arrested, charged, or convicted?" Now, the citizen must theii explain why he was arrested. It could very well be that he was arrested in a dragnet, or he might have been arrested as was the case here in the District where a Marine was murdered on 14th Street, a brutal sort of crime, about 7 years ago, and I understand, to use something I don't advocate all the time-but some 4,000 people were arrested in connection with that murder. I think Colonel McIntyre probably was in the district attorney's office at that time, and I think the colonel can tell you they never solved that crime-although 4,000 people were taken into custody for periods of time ranging from a few minutes to a few days. The Police Department had the widest of latitude. There was not in effect any Mallory decision. No confessions were gotten, because no leads were obtained, and the murder has not been solved. More recently, less than 2 years ago, out in what is called No. 14 Precinct in Washington, there was a brutal sex crime murder of a little girl. I don't have the exact figure, but I understand many hundreds of people were arrested, and this was after Mallory-many people were interrogated. But the crime was not solved. One Supreme Court Justice says, insofar as the task of the police official is concerned, if the police official desires to arrest and interro- gate without limit, maybe that would be helpful-and unquestionably if you can arrest, to make it absurd, 50 percent of all of the populace of a given city of, say, a thousand, and knowing that one of them must have committed it, and if you are permitted to interrogate them long enough, you will always come up with the confession. But this Supreme Court Justice says perhaps if rather than going out and working in the sun, if he could at leisure, in the shade of a PAGENO="0410" 404 AMENDMENTS TO CRIMINAL STATUTES OF D.C. tree., take his suspect and rub pepper in his eyes, then his task might be made a lot lighter. Now we recognize, of course, the task of a police officer is, to quote "The Mikado," quite an unhappy one, and quite a serious one in many respects. and we sympathize with them. However, we do not believe that the rights of the citizens should be sacrificed to the comfort of the police officer in the accomplishment of his task. We believe that A[cNabb as followed in Mallory is good for the Dis- trict of Columbia. We do not believe that it will increase crime. We believe that it might cause more work on the part of the police officials, and indeed it might even cost money because it might cause the hiring of more policemen. We believe that this is a small price to pay for human liberty. Thank you. (The complete prepared statement previously referred to follows:) STATEMENT OF AMERICAN CIVIL LIBERTIES UNION, NATIONAL CAPITAL AREA Ever since Mallory v. United States (354 U.S. 449; 1 L. ed. 2d 1479, June 24, 1957), there has been much said by many groups, individuals, and organizations, all seeking to demonstrate that the Supreme COurt was ill-advised in that de- cision whereby the Supreme Court undertook to treat of the effect of an un- reasonable delay in arraigning a suspect when it appeared that there was no valid reason for such a delay and where during the delay, the suspect was subjected to lengthy interrogation, to a lie detector test and, after detention for a considerable length of time, made a confession, the validity of which was the subject of the proceeding. Because law enforcement officials have been so loud in their con- demnation and because they have been more effective in lobbying for legislation which would destroy the effect of Mallory, it is sometimes necessary to delineate the Supreme Court holding so that persons considering the need, or lack of a need, for action by Congress to modify by legislation the judicially pronounced rule of evidence announced in Mallory might be advised. In the words of the Supreme Court: "The case calls for the proper application of rule 5(a) of the Federal Rules of Criminal Procedure, promulgated in 1946, 327 U.S. 821. That rule provides: "`(a) Appearance before the commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the LTnited States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.'" The Court then discussed the statutory and judicial antecedents used as guides in the application of rule 5(a) including McNabb v. United States (318 U.S. 332). In Mallory we are told that: In McWabb, "in order to adequately enforce the con- gressional requirement of prompt arraignment, it was deemed necessary to ren- der inadmissible incriminating statements elicited from defendants during a period of unlawful detention." It is believed that the many bills introduced in this session of Congress aimed at the emasculation of the law as set forth in Mallory have been so introduced without consideration of the real and basic holding in Mallory and in disregard of the true purpose of that decision. The Mallory decision recognizes the intent of rule 5(a) of the Federal Rules of Criminal Procedure which requires the prompt arraignment of the suspect: "It aims to avoid all the evil implication of secret interrogation of persons ac- cused of crime." Further it protects the innocent and law-abiding citizen from being held for unreasonable lengths of time who has been arrested without probable cause in the first instance but merely upon bare suspicion and who, in many instances, has been arrested merely for the purpose of seeking informa- tion concerning the crime being investigated and for the purpose of obtaining leads as to other possible suspects. PAGENO="0411" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 405 If the Congress was right in requiring that the arrested citizen be promptly arraigned, and if rule 5(a) of the Federal Rules of Criminal Procedure is a rule good for citizens in general, then there should be some method of enforc- ing the rule No civil or criminal sanctions can be invoked against the peice officer or official who willfully and deliberately violates the law as set forth in rule 5(a). The Supreme Court, therefore, by the promulgation of a rule of evidence, seeks to enforce rule 5(a) by the assessment of a penalty against the Government in instances where this law has been violated. That penalty is simply the refusal to admit into evidence statements or confessions obtained during the period of unlawful detention without regard to coercion or lack of coercion. All that the Supreme Court is saying in this regard is this: Rule 5(a) pro- vides for the arraignment of arrested citizens without unnecessary delay. This is the law. Unfortunately there is no means of enforcing this rule. Because unnecessary delays invite and encourage extensive, unwarranted and secret interrogation of arrested citizens and possible employment of "third-degree" methods of obtaining information and confessions, we had devised a rule of evidence that will not only discourage the violation of the law contained in rule 5(a) by police officers but will, indeed, effectively remove the reason for such unnecessary delay (i.e. the desire to delay arraignment while a confession is extracted). This rule of evidence is quite simple and most effective: if of- ficers fail to cause the suspect to be promptly arraigned, statements or con- fessions obtained during the period of unnecessary delay may not be used in evidence against the suspect. The rule is enforced through the penalty. In Mallory the Supreme Court sa~rs this to the peaëeofficer: (1) You must not airest a citizen without probable cause for his arrest in the first instance; (2) If you have arrested a citizen upon what you believe to be probable cause, take him promptly before a committing magistrate, judge, or commissioner who under our system of jurisprudence, will judicially determine if there is in fact probable cause. If you are correct in your original assumption, the citizen will be held and bail bond fixed. If you are not correct, the citizen will be released. (3) If you have arrested a citizen without probable cause, you have no right to hold him for the purpose of questioning concerning your suspicions and if, by chance, you are correct in your suspicions and after a long delay before ar- raignment the defendant confesses his guilt you will have thwarted your own purpose, for you will then be unable to use the confession in evidence against the defendant upon his trial for the offense. The effect of that directive by the Supreme Court to the peace officer, once he understands it and as soon as his superiors cease complaining that they are hampered in law enforcement by Mallory, will be to compel him to employ more efficient methods of crime detection. The peace officer will realize that where a crime has been committed and he has suspicions concerning possibly a dozen persons but no probable cause to charge any single one of the dozen with having committed the crime, he can no longer arrest all 12 of the citi- zens without probable cause and for the purpose of questioning them at length and by that method derive his probable cause against one of them (or, pos- sibly with the result that the whole 12 have been arrested in vain), but he must seek to discover some individual together with sufficient evidence of his guilt to constiute probable cause before making any arrest. Many persons have erroneously interpreted Mallory to hold that a confession or statement obtained during a long delay before arraignment is presumed to be involuntary. Nothing could be further from the truth. Under Mallory whether or not a confession or statement is involuntary or coerced is not ger- mane to the issue. Mallory does not say that such statements or confessions are presumed to be involuntary. That decision merely holds that as a rule of evidence and as a means of enforcing the prompt arraignment requirement of rule 5(a) of the Federal Rules of Criminal Procedure, a confession obtained during the period of unnecessary delay before arraignment is inadmissible. The question as to whether or not such statement or confession is voluntary or not is closed and of no importance. Such statement or confession is not admissible as a rule of evidence whether involuntary or voluntary. In order to enforce the fourth and fifth amendments to the Constitution the Supreme Court formulated the Federal exclusionary rule in Wee/cs v. United States (232 U.S. 383 (1914)). The purpose of that rule is: "To remove the temptation to ignore constitutional restraints on search and seizure, evidence PAGENO="0412" 406 AMENDMENTS TO CRIMINAL STATUTES OF D.C. obtained in violation thereof is made inadmissible against an accused in Federal courts." Although the rule as set forth in Weeks case was at the time of its promulgation contrary to the law in effect in most of the States and although the Supreme Court has itself said that the Weeks doctrine is not a command of the fourth amendment but is a judicially created rule of evidence which Con- gress could overrule, Congress has not overruled the Weeks doctrine during the now 49 years that it has governed the law of search and seizure in Federal courts. During these 49 years the enforcement of Federal criminal law has not been hampered thereby. And today, as at all times since 1914, we must look to the courts to determine what is a reasonable search and what is an un- reasonable search under amendments 4 and 5. No one can deny that the court.s have done a most effective job in this regard. If the United States for the past 49 years relied upon the judicially created rule of evidence that was first set forth in the Weeks case for the enforcement of the rights of citizens under the fourth and fifth amendments without legis- lation to circumscribe, define, modify, or emasculate its provisions, without any hampering of law enforcement and without any general failure to bring crim- inals to justice, it seems to me, that since the provisions of the fourth amend- ment have been enforced for 49 years by the rule rending inadmissible evidence seized in violation of the fourth amendment, certainly rule 5(a) of the Federal Rules of Criminal Procedure could be enforced by this very similar judicially created rule of evidence as set forth in the Mallory decision. This could be accom- plished without legislation to circumscribe, define, modify, or emasculate its pro- visions. I sincerely believe that this will not result in any hampering of law enforcement officials who desire to proceed in a lawful fashion, nor will it result in an inability of the police to bring criminals to justice as heretofore. Mallory was decided June 24, 1957. In the some 6 years since the law as set forth in that decision has been in effect, there has been nothing in the records of the Police Department in the District of Columbia to indicate that policemen have been hindered in their job of causing the legal arrests and con- victions of criminals. Perhaps the job of the policeman has been made not as easy as it was before, but on the other hand, it is perhaps also true that great numbers of citizens have been spared the inconvenience, humiliation, and chagrin of having been unlawfully arrested and having been unlawfully detained for varying lengths of time while being interrogated extensively concerning the crimes that they did not commit. The majority of the persons complaining of the Mallory decision are police- men. The policemen do not admit it. but what they really desire is a right to arrest citizens without probable cause and without penalty of any sort. If we interpret the fourth amendment to mean that a citizen may not be arrested without probable cause, why should we accede to the demands of policemen, who for oil intent and purposes really seek to violate the constitutional com- mand? The legislation sought will implement the desire of policemen to arrest without probable cause. Prior to the Mallorii decision in the District of Columbia a very large per- centage of all arrests were arrests made on the so-called charge of investigation. Since there is no such crime and no such charge known to the law, naturally all of these arrests for investigation were illegal arrests. In other words. many policemen follow the policy of arresting first and investigating later. Seems to roe, it should be the other way around. Now, becau~ to some limited extent Mallory compels policemen to investigate first and arrest later upon the basis of the investigation, the policemen complain that they are hindered in the performance of their duty. This is not so. Officers can do their duty just as effectively under Mallory as before. There can be no doubt. however, that they must work a bit harder and perhaps even a few more officers might be needed. Certainly this price is not too high for the preservation of the rights and liberties of the individual that have been the heritage of Amerienu~ fhvr~~o~ the years. The citizen who is arrested and charged with investigation will have his reputation damaged to the same extent as the citizen who is arrested, charged, and promptly brought before a judge, committing magistrate, or commissioner for arraie~iment and preliminary hearing. He would be discharged if there be no probable cause for his arrest. In this regard it is interesting to note that the form 57 that job apnlicants for almost all types of Federal employment must execute, contains the following question: "33. Have you ever been arrested, charged, or held by Federal, State, or other law enforcement authorities for any violation of any Federal law, State law, county, or municipal law, regulation, or ordinance? PAGENO="0413" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 407 "Do not include anything that happened before your 16th birthday. "Do not include traffic violations for which a fine of $25 or less was imposed. All other charges must be included even if they were dismissed." The Federal job applicant must explain all arrests. He must explain even if the charges were dismissed. This is probably true in job applications for most responsible jobs in private concerns as well. The reputations of a far greater number of innocent citizens would be preserved by the enforcement of Mallory because that decision certainly will deter and curb arrests without probable cause. Officers will not be very prone to frequently arraign persons without probable cause when they come to know that arraignments without probable cause will result only in the release of the persons arrested and a loss of time by both officer and citizen. Some policemen have complained because, they say, a commissioner or com- mitting magistrate is not always available. In the District of Columbia there are 15 judges in the U.S. District Court for the District of Columbia, exclusive of 3 retired judges who serve part time. In the District of Columbia Court of General Sessions there are 15 judges exclusive of 1 retired judge who serves 3 months per year. All 34 of these judges may issue warrants, arraign, commit, discharge, or fix bail for persons brought before them charged with offenses against the United States. In addition to the 34 judges there is. a U.S. com- missioner who is also empowered to perform these duties. There should, there- fore, be no lack of .a judicial officer for the purpose of arraignments in the Dis- trict of Columbia at any time. Many years ago Congress recognized the fact that in some instances arrested persons were being detained in the District of Columbia for unreasonable lengths of time without formal charge. Congress enacted what is now title 16, section 805, District of Columbia Code, which provides as follows: "16-805/24: 205/. Right to true copy of commitment-Forfeiture. "Any person committed or detained, or any person in his behalf, may demand a true copy of the warrant of commitment, or detainer, and any officer or other person detaining him who shall refuse or neglect to deliver to him a true copy of the warrant of commitment or detainer, if there be any, within 6 hours after the demand, shall forfeit to the party so detained the sum of $500 (Mar. 3, 1901, 31 Stat. 1372, ch. 854, 1147)." While on its face this statute merely provides for the obterition of a true copy of the warrant of commitment or detainer, its real purpose was to effect the release within 6 hours of persons detained without forñmal charge. In the District of Columbia there has come to be known among criminal lawyers what is called a 6-hour writ. When a client has been arrested on the so-called charge of investi- gation and is being held without being charged with any crime, the lawyer will serve upon the officer in charge of the precinct where the client is detained a formal demand for a true copy of the warrant of commitment or detainer pursu- ant to the aforesaid statute. Under this practice the police officers must then charge the client with some offense formally or release the client. The police officers release or charge such prisoners after such demand because of the for- feiture provision. This might be a somewhat effective method of preventing long unlawful detentions but for the fact that in practice there is required a formal demand in writing which cannot be effected by the prisoner himself and for the further reason that the arrested person seldom knows of this statutory provision and, certainly he is not told of it.s existence. The result is that the remedial feature of the statute is available only to those persons who have friends or relatives able to employ an attorney. This statute contemplates no penalty against an officer who holds an arrested subject for several days without charge. and without arraignment provided that within 6 hours after receipt of the formal demand, he either formally charges the prisoner or releases him. More- over, in event of a formal charge being placed against the suspect after service of the formal demand or 6-hour writ there is nothing to compel the officer to arraign the prisoner. True enough, in the practice in the District of Columbia if the charge is placed against the suspect during the nighttime hours, the Chief of the Detective Bureau or some police official is empowered to fix the amount of bail bond. This is a judicial function. But aside from all of these matters, the important thing to be considered is that Congress recognized a need for some method of compelling the release of unlawfully detained persons. Because of these reasons it is plain that this provision is woefully inadequate. This statute is in effect only in the District of Columbia and has no application to the States. We say that the method of enforcement of rule 5(a) of the Federal Rules of PAGENO="0414" 408. AMENDMENTS TO CRIMINAL STATUTES OF D.C. Criminal Procedure set forth in the Mallory decision is the most effective method, a method that has been tried in the enforcement of the provisions of the fourth amendment and has proved to be most effective during the past 49 years. We say that Congress should not permit itself to be stampeded into hasty enac- tion of legislation designed to nullify the effect of that decision without suffi- cient time to properly ascertain and evaluate the effect of that decision upon law enforcement generally and the protection of the rights of citizens specifically. Further, it must be considered that Mallory has now been in effect for more than 6 years without appreciable effect upon law enforcement. We, therefore, urge that no legislation be enacted to modify the law as set forth in the Mallory decision. The CHAIRMAN. Thank you very much, Mr. Harris. Let me ask you two questions. No. 1, if title I in the bill now before us for consideration was enacted into law, do you believe that it would be a constitutional enact- ment? Mr. HARRIS. I do not believe that it would be constitutional. I say that for several reasons I won't go into now. However, I say this, Mr. Chairman: The Mallory decision was not based on any constitutional considera- tions. The CHAIRMAN. I understand that. Of course, the point has been made repeatedly, and there is a. difference of opinion in the witnesses who have appeared before us. Some say that title I, if carried up to the U.S. Supreme Court, would stand the constitutional test. Other witnesses say that. it would not, because it would violate various provision of the Constitution. I was just asking for your opinion. You are a lawyer who has prac- ticed here 19 years, and you say half your practice is involved in criminal law. So you would have some familiarity in this particular field. Your opinion is it would be unconstitutional. Mr. HARRIS. And I would say that my basis would be amendment 5~ rather than amendment 4, because, as I mentioned briefly in my state- ment, it would be a form of compulsion of testimony. I say that if the Congress says in amendment IV that I am not com- pelled to testify against myself, a. corollary of that rule is that tile police official or tile State or tile United States is not entitled to place me in a. situation where I would give a. statement against myself. ostensibly voluntarily, but as we know, caused by the psychic and psychological pressures by an unlawful clet,ei~tion. The CHAIRMAN. My second question is this: There seems to be, threading through all of tile testimony on both sides, actually, in our hearings thus far, on title I, tile objective the police are trying to reach, which was expressed, I think very well yesterday, by Dean Pye, assistant deair at Georgetown Law School. He said the crying need is for interrogation. in your opinion, how far can the police go in interrogating a suspect? Mr. HARRIS. While in custody or while out of custody? The CHAIRMAN. Well, when they first pick him up-find a suspect, `mci the~ intercept him in WT~tsiungton, P C, a police c'u inteicepts him. At that point, from there on, how far can police go in interrogat- ing that suspect? The very time they pick him up. PAGENO="0415" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 409. Mr. HARRIs. There is no limit to how far they can go in interrogat- ing him. There is no limit whatsoever-provided that they had prob- able cause to arrest him in the first place. You see, Mallory doesn't say, and nobody advocates the fact that a police officer cannot question anybody. Mallory is trying to en- force 5(a), which in turn, in a left-handed sort of way, is trying to say that a police official should arrest with probable cause. If I am arrested with probable cause, you have a right to ask all the questions you see fit, as long as within a reasonable time you take me before the U.S. commissioner. Now, a reasonable time might be 1 hour, 1 minute, or maybe in some instances, several hours, or half a day. During that time, it is not unconstitutional, it is not against the law to ask as many questions as you see fit. Now, I say that that has one limitation. The suspect or the arrestee should be advised of his constitutional right to refuse to give self- incriminatory testimony. The CHAIRMAN. Any statement may be used against him. Mr. HARRIS. That is correct. The CHAIRMAN. That is the second part of title I as it now is before us. Of course the statement has been made that that is a little sugar coating, that actually this is something that would be pretty hard to determine in any event, as a matter of proof. Mr. HARRIS. That is correct. And as a matter of my experience in the trying of criminal cases, I have never experienced, nor have I ever heard of a police official, a police officer, coming down and saying that "I did not advise the suspect of his constitutional rights." Now, I must imagine that in the normal course of events somebody, in the normal course, might have forgotten. But I have never heard it said in court. The CHAIRMAN. In other words, you sometimes question whether it is done. Mr. HARRIS. That is correct. And also sometimes it can be done in a fashion, while the actual words and phrases are used, the suspect is led to believe that a contrary result is true. And that can be done by a skillful officer, and the suspect would admit that these words were used. But he would get a feeling that by his cooperation certain things,. certain benefits would inure to him that otherwise would not. This sometimes happens when a man is sentenced and he is brought in the District of Columbia before the district court. Here now. of late. they must always be asked: "Have you ever been made any promises ?" Now, these law-enforcement officers don't make promises, and some- times they do tell a suspect, "You know, anything you say may be used against you, but I want you to tell me this," and then they go on from there. But see, the phrase can be given and then nullified by the subsequent conversation. The suspect often is an unlettered man, very little academic skill, and when asked, "Did Officer X say to you that anything you say may be used awunst you ~" he woimld say, "Yes And then the next question-he never gets a question to say wh~tt Officer X told him after that-if he told him so and so he probably would go free, or words to that effect, or leadin~ the suspect to b~hieve it. I don't believe that we-when I say "we," I mean the citizens of PAGENO="0416" 410 AMENDMENTS TO CRIMINAL STATUTES OF D.C. America-should be left to that type of power, as described by Justice Douglas, that heady power in the hands of a policeman, to come down and testify that he did give the magic words. I don't agree that that will be a bulwark against the evil that it seeks to prevent. The CHAIRMAN. Thank you. I think I understand the position you are taking. I do appreciate your statement a great deal. Now, Mr. Heller, we would be happy to hear from you. Your prepared statement will be incorporated in full in the record. In looking at it from here, I note that you are directing your atten- tion to title III. Mr. HELLER. That is right, Mr. Chairman. I wonder if I might approach slightly on your time to talk about quickly two other provisions on which we did not want to send a separate witness up here; namely, you asked about mandatory mini- mum sentences. We oppose them. And I think we add very little, however, to the statements that have already been made by the Justice Department particularly. We think they are very bad psychology. We do recall that Representative Whitener, in the House hearings, talked about the psychology of despair, of a man who gets a mandatory life sentence. We think this psychology works in a lesser degree or a mandatory minimum sentence. And we think it does make prison administration harder. Of course, the ACLTJ is not principally concerned about prison adminis- tration from that side. But we think it is a pragmatic reason for not favoring these sentences. We think the judge ought to have discre- tion to view the man before him and treat him as he sees him. Secondly, I did want to very quickly comment on section 509, which is the false report section, only very quickly. We would hope that the committee would not act on this. Mr. Harris' committee of our affiliate, the due process committee, is right now contemplating a study of the use of false report charges to cover up police misconduct. We don't know whether this exists or not. We have got some idea that false report charges are pressed against people who are prepared to complain about police mistreat- ment or brutality. We think if it is left in the current regulations, there is authority to punish people who make false reports. But the Commissioners will have some discretion to consider this problem more comprehensively in the future, since that seems, in our reports from individuals who complain of mistreatment, to be tied up with their charges of mistreatment by the police. Now, then, I am not going to take a lot of your time on investigative arrests, because I heard your statement to Mr. McLaughliii, that by and large, there seems to be general agreement that this is an invalid proposal. We certainly subscribe to that, and the written statement sets out some of the reasons. The only thing I might add to that is, we stand pretty squarely on the report and recommendations of the Commissioners' Committee on Police Arrests for Investigation, which led the Commissioners to forbid them-the so-called Horsky report. PAGENO="0417" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 411 We don't want to burden your record; if it has not been placed in the record, we can do so. The CHAIRMAN. It will be adopted by reference. We won't incor- porate it in full, but it will certainly he referred to by reference, be- cause this is the basis of the termination of the so-called mvestigative arrests in the District of Columbia. Mr. TIELLER. We think section 302, the material witness section, is in effect an alternative means of making arrest for investigation as it is now drafted. And this concerns us just as greatly as section 301, which actually is a sort of a Uniform Arrest Act provision, and allows arrests for investigation. I might just start with this by saying that while this is conceptually distinct from the Mallory rule, it is in very sharp pragmatic fact closely related to it. The problem of the Mallory rule in one sense, the proposal to repeal it in title I, is in effect, we think, a proposal to repeal criminal rule 5(a) without saying so. Title III would do so in effect-would quite clearly repeal crim- inal rule 5(a) for the District of Columbia alone. That bothers us somewhat as an organization which is concerned with the District's right to self-government, and as long as it doesn't have it, to at least be treated the same as other Federal jurisdictions in criminal matters. But it is true, in a sense, that if you repeal the McNabb-Mallory rule legislatively-and I agree fully with the statements that have been made that there is a constitutional basis for it-what you in effect do is repeal criminal rule 5(a), you in effect tell the police that they are free to disobey the rule. That is really the only purpose of repealing McNabb-Mallory. It is transparently what the police want. I am not charging them with bad faith or anything. I think they have simply put their testimony on a better ground than we would. But what it does is that it simply says criminal rule 5(a) is of no great concern to you, at least the unnecessary delay phrase of it. You may now ques- tion at the police station, and all that will be left to consider is whether you gave the proper warning and voluntariness is involved in any confession. Now Judge Fahy of our court of appeals has expressed his con- cern in a case which I am afraid I cannot remember the citation of, about trials in the police station. And that is what title III really is concerned with, and it is what McNab b-Mallory is concerned with. We are concerned about trials in the police station. We recognize the hopelessness of the task of the criminal defendant to come in later into court and say contrary to the testimony of five or six policemen-who obviously have records as fine public servants, as far as the jury knows, and generally this is true, no doubt-that he was mistreated, or he was pressured. This is a hopeless task for a court to resolve any way but one; namely, in favor of the police. So it is in a sense a meaningless form for people to be warned and then detained in the police station. That is what section 301 would have done. And now, as I want to state, it is what section 302 will do. The Ilorsky report, at a page which I cannot find any more, did say that there were problems with the existing material witness statute 25-26O-64-pt. 1-27 PAGENO="0418" 412 AMENDMENTS TO CRIMINAL STATUTES OF D.C. of the District of Columbia. It did say that it was so cumbersome that it could not be used. We take that to mean that the phrase requiring that material witnesses be held in separate premises-the word "prem- ises" I emphasize-apart from criminals, or people accused of crimes, is the difficulty here. What part of section 302 would do, would allow them to be kept in a separate room, but on the same premises; namely, in the jail, or in the lockup, or in a precinct lockup, wherever it proves fruitful to hold them. If this is the question, if this is the proposal, the problem with the material witness statute as we now have it, and the proposal is to change it for this reason alone, then we think it can be done a great deal more narrowly, and it doesn't present the kind of problems which I am about to talk about. I want to call your attention to the fact that Mr. McLaughlin said that while there is this statute for the detention of material witnesses, there is in their opinion, the opinion of the Crime Commission, no authority to stop them in t.he first instance, to hold them. But there is. There is Federal rule of criminal procedure 46(b), which flatly, specif- ically allows the detention of a material witness during the pendency of a case. This is the limitation which we think should be imposed on any statute fOr, allowing the detention of material witnesses. It must be tied to a case which is pending. The CHAIRMAN. At that point, Mr. Heller, I assume you would agree very largely with the official position of the Department of Justice on section 302. They say it in two or three sentences. While for these reasons we must oppose section 301- which is the investigative arrest section- We fully recognize the necessity for securing the appearance of material witnesses which is the subject of section 302. In this connection, we call your attention to S. 1148, a bill prepared by the District of Columbia Commissioners to amend the law relating to material or necessary witnesses to crimes committed in the District of Columbia. We believe that bill represents a sounder approach to the problem of material witnesses than does section 302. I don't know whether in the course of your preparation, speaking on section 302, you have examined S. 1148 or not. Mr. HELLER. I believe, Mr. Chairman, that I did look at it some- time in the past, and I am frank to tell you that I caimot now recall whether it is limited to the detention of witnesses in a case which has already been begun in court. If that is so, this is a basic limitation. The real danger of section 302 is that it is wholly directed to thede- tention of witnesses during police investigations. And Mr. Harris iust told you about several investigations that have gone on for years in a technical sense because the crime has never been solved. This, in other words, allows the police to hold up to 6 hours, and without court approval, and thereafter with court approval during the pendency of a police investigation-a wholly vague and imhmited concept. It seems to me that it is an element of-I hate to use drastic language in a very polite hearing-police state methods, that men can he picked up off the street, or women, and held for 6 hours, with nobody knowing about it and then thereafter by a judge if they cannot PAGENO="0419" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 4th produce a bond satisfactory to him for as long as the police go on investigating a crime, because their testimony might in the future prove useful. Of course, the statute as drafted, section 302, doesn't refer just to witnesses as such, the people who get up and testify to crime and- say, "I saw it happen, sir." It particularly permits the holding of the person who may later become the defendant. And this is very clear. The House committee: deleted a proposal from one of the bills that was before it., one of the specific bills, that the man be informed of his rights, that he need not testify against himself. We think the deletion of that proposal was somewhat significant, because it shows that there was in mind the idea that people who might become defendants, not mere witnesses, could be held by the police. Of course, as I have told you already, we think that warning doesn't satisfy the problems of a man held incommunicado. But nonethe- less, the deletion even of the warning provision suggests to us that the House committee did contemplate that defendants, future defend- ants, would be held in this manner. Now, this is a pretty frightening prospect. The police can pick up a man without relation to a pending case, they can hold him for 6 hours without telling anybody about it, he has no line to the outside world. They can continue to hold him if, being a poor person, lie cannot produce a bond. And it goes on so long as a police investigation goes on. And this man apparently is not even to be informed that lie need not testify against himself. And we have no doubt, frankly, that this will be used by the police to get around the ban on investigative arrests. At least we have no doubt that unless the law is concretely tied to a witness in a pending case in which there is already a defendant charged, that possibility will continue to exist as long as the law is on the books as drafted. Now, we think it wasn't an accident that; the dissenters in the House committee said this is one-perhaps the most dangerous single pro- vision of H.R. 7525, because it is a legislative wolf in sheep's clothing. Perhaps that language is colorful, but we think it is not too far off the mark. So I am in here today to stress as strongly as I can-if you agree that section 301 is no good, is invalid, if you decide not to recommend such a provision, but if you recommend section 302 in its present form, you have done the same thing by the back door. And we are in very, very serious trouble. You have had testimony about the grim specter of public disrespect for the police by a Cincinnati police chief who is apparently not subject to the Federal Constitution in the sense that our officials are. You have had testimony that today a citizen does not. have this right t.o walk the streets of Washington primarily because police may not interrogate suspects. The truth of the matter is if you hear the complaints of the people in the parts of town where investigative arrests and material witness detentions would be made-and we know, by the Way, that members of this committee would not be the people subject to this, even if they PAGENO="0420" 414 AMENDMENTS TO CRIMINAL STATUTES OF D.C. were suspected of a crime-if you hear their complaints, we know very well why there is disrespect for the police in a large part of this town. There is disrespect for the police because the police have a certain degree of disrespect for the Constitution themselves in their past practices. And this has gone on too long. And it has created an atmosphere of official lawlessness in this District, which has incurred private lawlessness. Now, the police have a very difficult problem. And it is an excellent police force-probably no more honest and zealous one in the country. But zeal on the policeman's part is just the advocate of a man who would go as far as he could in getting the crime solved. Now, long ago, of course, and I am not accusing Chief Murray or any of his subordinates of suggesting this again today-but long ago, when inquisitions were stopped, when the rules that a man had to confess against himself or else there could be no valid basis for con- viction, was abolished, there were cries by law enforcement officials that this would stop the solution of crimes. There is not a lot of difference in quality, although there is a great difference in degree in the protestations being made today. We are anxious that the police not feel paranoid in this city. But we are anxious that they do abide by the law, and we think the con- stitutional basis for saying that a person arrested must be taken with- out unnecessary delay before a magistrate, told of his rights, allowed bond, granted counsel, all that can be found in the decisions construing the Constitution of the United States. (The complete prepared statement of James H. Heller follows:) VIEWS OF THE NATIONAL CAPITAL AREA CIVIL LIBERTIES UNION Mr. Chairman, members of the committee, my name is James H. Heller. I am a Washington attorney. I am also secretary and a member of the execu- tive board of the National Capital Area Civil Liberties Union. On behalf of that organization, I ask this committee's rejection of title III of H.R. 7525, the so-called omnibus crime bill. This title is in two sections. One would openly revive and attempt to legitimatize the recently banned police practice of mak- ing investigative arrests. The second section would accomplish very much the same result but under the semantic device of detaining material witnesses for questioning. It is this second section of title III to which we wish to call particular at- tention today, for the minority of the House Committee on the District of Co- lumbia rightly underscored its view that, "Perhaps this is the most dangerous single provision of H.R. 7525 because it is a legislative wolf in sheep's cloth- ing." (H. Rept. 579, 88th Cong., p. 99.) First, however, let me turn to section 301 which directly revives investigative arrests under a procedure of 6-hour detention by the police in their own discre- tion. It cannot be any secret that an American Civil Liberties Union affiliate opposes this authoritarian and unconstitutional practice. Let me state our major objections to the practice. My task is made very simple by the published "Report and Recommendations of the Commissioners' Committee on Public Arrests for Investigation," the so- called Horsky committee report of July 1962. It was this report which led to the Commissioners' ban on investigative arrests in March 1963. I hope I need not commend the Horsky report to this committee beyond pointing to the creden- tials of the report's authors, the thoroughness of their inquiry, and the fact that no lawyer has yet risen to oppose the report's factual and iegal con- clusions. I would add this: Here was a carefully documented, cogently writ- ten, and long debated report commissioned by our own local chief executive, the Board of Commissioners. To ignore or override their action based on that report would debase and mock even our present semicolonial system of govern- ment in the District. PAGENO="0421" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 415 The part of the Horsky report I particularly call your attention to is the conclusion *that arrests for investigation are illegal because they directly vio- late the requirement of the fourth amendment to the Constitution that arrests be made only on probable cause to believe that the arrested person has committed a crime. (Horsky report, pp. 2, 22 if.) This really makes it academic whether investigative arrests are a good idea from the police viewpoint; although in fact the Horsky report shows that their value is far less than has been claimed- inasmuch as they are a bad idea from a constitutional viewpoint. Any restraint of locomotion or freedom to come and go as one pleases is an arrest, and in- vestigative arrests are not "probable cause" arrests because they are not based on a criminal charge. These are not just theories. They are the gist of very clear holdings by the Supreme Court and our own U.S. Court of Appeals. Now, plainly, the label "detention" and the incredible assertion in section 301 of this bill that a deten- tion shall not constitute an arrest are deserving of better irony than I can muster. To put it pallidly, this is tantamount to saying black is white when the Constitution has already labeled it black. In the light of these clear legal principles I have vainly puzzled over pages 28-34 of the House committee report which seeks to justify section 301. If I have gotten any glimmer about the views of the House sponsors of the bill, it is that they have simply changed the subject, omitting all reference to the fourth amendment, the court decisions discussed in the Horsky report, and the report itself. Seemingly, from their defense of title III, all that is at issue is the right to detain a person before charging him and granting him a pre- limninary hearing. If that were so, section 301 would be redundant in view of title I and it would be less objectionable but for different reasons which Mr. Harris has already outlined in connection with the McNabb-MallorY rule. But section 301 does much more. It is a terrible thing to be subject to ar- rest and detention without judicial approval because you fail to satisfy a police- man who suspects you of possible past or future criniinal activity. I doubt that we will ever have a better or more literal definition of the police state in practice. We submit that it is nonsense to argue that the police need this unreview- able power to avoid precipitate accusations against the innocent. Ask any man in this town-ask yourselves-whether this dubious protection is really preferable to his rights under the fourth amendment. No one except the police has ever suggested that a regime of unconstitutional arrests is preferable to an occasional mistaken constitutional arrest. This argument is not even a siren song; it is just bunk. Let me turn to section 302 which permits precisely the same practices under another name-so that if this committee or the Congress rejected section 301 but enacted section 302 we would be no better off. I cannot stress this too strongly. The two sections provide alternate routes to the same forbidden destination. Look at section 302 and this will become clear. It, too, authorizes G hour un- reviewable detention. It, too, permits arrests to be made before a formal charge is to be filed, that is "during the investigation." It, too, specifies that the detention "shall not constitute an arrest" even though it plainly is one. The man thus arrested is denominated a "material witness." On occasion he may really be a witness and no more. But it is clear that he can also be the real suspect, the future defendant. For 6 hours the police have him completely in their custody, incommunicado, without warning of his rights, without access to a lawyer, without judicial protection-in short, without any meaningful rights at all. Like the person arrested under section 301 he is subjected to a complete denial of his rights under criminal rule 5(a). Like that person he can be re- leased and arrested again to avoid the 6-hour rule, because the right to arrest and detain goes on so long as there is a pending investigation of a crime. It is not tied to a criminal charge and court rules of criminal procedure. All this is permitted in the name of holding material witnesses, but we already have laws to permit such a detention where approved by a judge in connection with a pending court case. There is Federal Rule of Criminal Procedure 46(b) and there is also District of Columbia Code, section 4-144 which this new sec- tion 302 would replace. These provisions tie detentions to the need to produce the witness at the trial of an actual case already in the court. Rule 46(b) re- quires court approval to begin with and authorizes release of the witness if de- tention goes on too long. The police rarely use these existing provisions and PAGENO="0422" 416 AMENDMENTS TO CRIMINAL STATUTES OF D.C. yet it is proposed to give them a new one without any comparable protection to the individual. Section 302, like criminal rule 46(b), contemplates that the arrested person may be released on bail, which is a severe hardship to the poor who cannot secure bail. But even if this were construed to allow personal recognizance there would be no possibility of release during the first 6 hours, before the man was brought to court. Beyond this, consider the idea of requiring a man to post bail because the police are investigating a crime and think he may be a mate- rial witness someday. This could go on for years if a court did not release him on habeas corpus or invalidate section 302 itself. Of course, we believe that courts would either invalidate both these provisions or else construe them as going no further than existing arrest authority. This committee, we believe, should not approve laws which are either unconstitutional or merely redundant. It is small wonder that last April one of the largest membership meetings of the Bar Association of the District of Columbia ever held overwhelmingly con- demned the very kind of proposals which now go to make up title III of this bill. Actually the proposals put before the bar association contained guaran- tees which this bill does not incorporate. The committee is already aware of the opposition of the Justice Department and the District Commissioners to these provisions. To put it simply, these provisions are anathema to our rights. They are surely unconstitutional for the largest part. They import a statutory authorization of police-state methods into our local laws. They use semantic devices to relabel illegal arrests. They have nothing at all to commend them to such good protec- tors of our rights as the members of this committee have shown themselves to be. We ask the committee to reject them in toto. Thank you very much. The CHAIRMAN. That is a very effective statement, Mr. Heller. The Justice Department indicates Senate 1148 is patterned after rule 46(b) of the Federal Rules of Criminal Procedure. I am advised by Mr. McIntyre 46(b) is a section that was very seldom used in the past in the District of Columbia, as a section for the detention of a material witnesses. Now, are you in favor of section 46(b)? Mr. HELLER. We are in favor, with one limitation, Mr. Chairman. We dislike, and most of the organized bar of the District of Colum- bia Bar, I think, is beginning to suspect that the problem of bail in the traditional sense is a tremendous hardship on poor people. If this is construed to allow personal recognizance when a man is to be released, if the magistrate. or judge. thinks this is satisfactory, then we believe there is a proper rule, rule 46(b). It may be construable that way today. Secondly, let me say we think there ought to be some maximum time limitation on detention, because calendar delays ought not to keep an innocent man who is merely a witness in jail. `We are a Federal jurisdiction. A man who flees this jurisdiction can be brought back from almost anywhere under a Federal subpena. Now, there is the problem that rule 46(b) doesn't cover the general sessions court. `We recognize that. `We are in favor of a similar rule in the general sessions court, and we are in favor of amending the detention statute, section 4144 of the code, so it .is not quite as cuinber- some to hold a man. However, once again, the fact that rule 46(b) is not much used suggests to me one of two answers to that problem. Either the de- tention statute itself is too cumbersome, although I doubt it applies in the Federal district court over rule 46(b) itself, or the police really don't want this for witnesses, and really don't need it for witnesse~;- they want it for potential defendants. I am forced to say that. PAGENO="0423" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 417 The CHAIRMAN. I understand your position. You are saying that 301 is invalid-and as I have indicated, the testimony seems to be almost unanimous it is an unconstitutional provision. But if we went ahead and enacted 302, you say we would be doing something indirectly that we would do under 301. Mr. HELLER. Yes, sir. The CHAIRMAN. I think I understand you very well. I certainly appreciate your testimony. Thanks to both of you gentlemen. Our next witness is Mr. Philip Schwartz, member of the board of directors of the Americans for Democratic Action. STATEMENT OF PHILIP SCHWARTZ, MEMBER, BOARD OF DIREC- TORS, WASHINGTON CHAPTER, AMERICANS FOR DEMOCRATIC ACTION Mr. SCHWARTZ. Mr. Chairman, we have passed out our written statements already to the clerk. The CHAIRMAN. Very well. I have it before me. It seems to be a reasonably brief written statement. You can either read it in full or highlight it. Mr. SCHWARTZ. I will go through it rapidly. The CHAIRMAN. Very well. Mr. SCHWARTZ. Mr. Chairman and members of the committee, my name is Philip Schwartz. I am an attorney and a member of the board of directors of the Washington Chapter of Americans for Democratic Action. It is a pleasure to again come before you and to have this opportunity to present the views of ADA on an extremely far reaching piece of criminal legislation. We have prepared a statement of our position on the bill's provisions affecting the Mallory rule, detention for investigation, and detention of material witnesses. By way of prefacing my remarks on these matters, I would like to comment upon the underlying philosophy which motivates our views. The enormous extent to which H.R. 7525 would affect the enforce- ment of the criminal law in the District of Columbia and thus the lives and liberty of all its residents and the many thousands who work in it and visit it, places upon you a responsibility of historical importance. The cold bare words of H.R. 7525 sound ostensibly plausible. But we must remember that the Congress is attempting here to revise a delicate segment of virtually the oldest of manmade civilizing in- stitutions-the criminal law, man's groping attempt to enforce divine precepts of man's responsibility toward his fellowmnan. Implicit in this codification of society's mechanism for insuring the respect of the person and property of others are other basic human concepts, which in the Western World of Judaeo-Christian philosophy and of demo- cratic society are deemed inalienable rights of every person. This means, in the context of criminal law, that regardless of the assiduousness in enforcing the codified moral responsibilities by the governmental institutions, certain paramount human rights must be respected and any encroachments upon these rights by the powerful public enforcement institutions are inherently wrong unless such en- croachi aents serve some higher purpose of society. PAGENO="0424" 418 AMENDMENTS TO CRIMINAL STATUTES OF D.C. This is basically the problem we are faced with in this bill. Where, how and to what extent can basic rights be invaded by the enforce- ment institutions of society? And further, how can a citizen's rights be protected against overzealous application of the desire to serve the higher purposes of society which transcend individual rights? ~\Te must be careful here not to engage in circuitous logic and pre- sume that the mere allegation of a violation of society's laws permits the deprivation of the accused's rights to liberty and freedom from forcible societal restraint, for this precociously invokes the presump- tion of "higher social purposes" where the individual accused cannot satisfactorily prove the negative to accusations laid against him. Thus we reach the counter principle that stands high in our hierarchial order of freedom-that each man's freedom is sacrosanct and he shall not be required to prove his freedom from criminal guilt; and his ac- cusers cannot restrain or restrict his freedom without carrying the highest burden of responsibility that they are doing so with probable cause, nor given such probable cause should the accused be insulated from legal counsel or be coerced to waive his right to not make a statement. When we speak in these terms we are essentially giving voice to, and real meaning to, the sanctity of human dignity due each person regardless of his station in life and that "innocent until proven guilty" is a vital principle that cannot be circumvented by indirect techniques which aim to prove "guilt" out of the mouth of the accused. Let me turn first to the so-called Mallory rule, or more properly to my mind, the McATabb-Mallory rule. We flatly oppose the provision of title I, section 101 of H.IR. 7525 which seeks to vitiate the principles laid down in the McNabb and Maiior~,' decisions of the U.S. Supreme Court. The bill, by declaring that delay before an accused is brought before a committing magistrate shall not alone make inadmissible any evi- dence, including confessions acquired beforehand, would permit and encourage third degree and subtle pressure techniques. Police au- thorities, regardless of their sincerity and desire to be fa.ir, must be restrained in their interrogation to protect those arrested from waiv- ing their constitutional right not. to speak, out. of fear or intimidation. I am not referring here to physical intimidation or brutality in the usua.l sense. The picture I am attempting to draw is basically one of the less-fortunate membe.r of our society, who because of his low economic state or his deficiency of education is somehow transformed in the minds of many persons bearing symbols of authority into a person whose rights, feelings, and sensibilities are not deserving of the same measure of respect as others. Such an arrested person, not willing to buck the all-powerful authorities, becomes easy prey for the necessary intimidation attendant upon secret, prolonged interro- gation in surroundings not conducive to objective eliciting of facts. Without discoursing on the decisions in McNabb and Mallory. which I am certain you a.re thoroughly familiar with, you must also be aware that the Supreme Court has not barred all confessions. It has not, moreover, said mere delay before arraignment is fatal to the Gov- ernment's case. Therefore Mallory is not so all inclusive as its vocifer- oiis critics have shouted. PAGENO="0425" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 419 The requirement that arraignment of an accused man must be had without unnecessary delay, as stated in rule 5(a) of the Federal Rules of Criminal Procedure, is a codification of procedural due process of law. It serves to insure t.hat all persons irrespective of their knowl- edge of their rights and regardless of their fear of exercising their rights will be insulated from pressure techniques. The magistrate's function in this regard is to make known to the accused his rights and that the police cannot force him to prove their case from his words. That is to say, arrests must constitutionally be made upon probable cause and probable cause should not be developed subsequent to the arrest from statements made by the accused. If there was no prob- able cause prior to the arrest, then the arrest was constitutionally unlawful. As has been stated many times by the Federal courts, the police cannot make arrests without probable cause and then submit the "fruits" of such arrests to prove guilt. To say that title I of H.R. 7525 would not permit the admission of coerced confessions, as many proponents of the bill have said, is to state a naivete. The CHAIRMAN. Why is this true? I thought if the confession was coerced, it would be involuntary. This would be the case even under title I? Mr. SCHWARTZ. The point I was trying to make, Mr. Chairman, is that the fact that there was delay to our mind is in fact coercion. The CHAIRMAN. Title I of H.R. 7525 would not permit the admis- sion of coerced confessions. Mr. SCHWARTZ. Yes. I am not quite sure I get your point, Mr. Chairman. The CHAIRMAN. My point is, if under the rule of voluntariness and involuntariness as a criterion for the admission of confessions, the statement has to be voluntarily made. If a confession was coerced, it would not be admissible, no matter what the time limits were. Isn't this true? Mr. SCHWARTZ. That's right. The CHAIRMAN. Well, then, why is that a naive statement? Mr. SCHWARTZ. Well, the point is that- The CHAIRMAN. Maybe you explain it a little further on in your testimony. Mr. SCHWARTZ. The point I am trying to make is perhaps the word "coerced" there was used in the classical sense of actual coercion; but to our mind, the delay is in effect a coercion. The CHAIRMAN. You are saying delay itself is coercion, you are using coercion in that sense, rather than in the sense of forcing, intim- idating, or beating a confession out of somebody. Mr. SCHWARTZ. That's right. The CHAIRMAN. I understand. Thank you. Mr. SCHWARTZ. Title I, if passed, would create the needed protec- tion to the police to carry on the most intense and extended interro- gation under the coercive atmosphere of a police station and gives no protection to the frightened suspect who would find it almost im- possible to later substantiate any claims he might have to pressure tactics against the full array of police witnesses denying any coercion. Furthermore, title I would, in our opinion, be ultimately held un- constitutional. An arraignment before a committing magistrate with- PAGENO="0426" 420 AMENDMENTS TO CRIMINAL STATUTES OF D.C. out unnecessary delay is per se a constitutional right according to the Supreme Court. Therefore any confessions adduced during such period of illegal detention would be excluded from evidence. Title I permits admission of such confessions, regardless of the length of delay between arrest and arraigurnent. Clearly this is violative of the Constitution. There have been several statements made in regard to Mallory, and the former District Commissioner testified earlier to the point that Washington has become notoriously a soft touch for criminals. The CHAmMAN. A number of witnesses have said that. Mr. SCHWARTZ. I do not know whether this is true or not-whether this has caused a greater influx of criminals to this communit. But if there is a greater influx of criminals, I do not necessarily attribute it to the fact that the law itself is soft, but merely that the opponents of Mallory have spread this opinion that Mallori1í is creating a soft area for criminals, and if criminals are reacting to that, they may be com- ing into the area-I do not know if they are. I do not say it is because of the law itself. The CHAIRMAN. The charge ha.s been made. I do not know whether it is correct or wrong. It has been made by some, it has been denied by others. Those who deny it have pointed to statistics indicating that a great percentage, the exact percentage slips my mind, of crimes com- mitted here in the District of Columbia, were committed by people who practically lived here all of their lives, right in the metropolitan area. This was used in refutation of the statement that the word had gone out that Washington was soft on crime, and therefore criminals from all over the United States were flocking here, because they could get away with more here than they could in any other area. Now, the opponents to that contention point out this simply is not statistically true, because a great percentage of the crimes are com- mitted by people who were either born or spent practically all of their lives here. This was used by way of refutation. This is one of the areas of distinct conflict in the evidence and testimony that is before this committee. Mr. SCHWARTZ. Turning to a problem closely related to the issues by the Mallory rule, I direct your attention to the insidious conse- quences of section 301 of title III of H.R. 7525; namely, the section dealing with detention for investigation of a person on suspicion that he is committing a crime, has committed one, or is about to commit one. WTe confroht again, as under title I, constitutional difficulties. The fourth amendment permits no arrests unless there is probable cause. The restraint imposed by detention for investigation constitutes an arrest per se and certainly au arrest without probable cause. Thus, though the "suspicion" of the police must be based on a "reasonable g~ound," the bill attempts to raise suspicion to the same level as the constitutional "probable cause." While this bill imposes a 6-hour limit on the detention, that is, arrest, it in effect forces a suspect to prove the negative of guilt to the police to avoid being charged. Is this not an arrest without prob~ble cause and thus unconstitutional? Is this not another device to cir- cumvent the Mallory decision against arrests followed by unneces- sary delay before arraignment? PAGENO="0427" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 421 Section 302 of the same title III purports to insure the availability of material witnesses in felony cases. It is clearly a detention device. It permits up to 6 hours of de- tention by the police during which time interrogation can be pur- sued without recourse to' a presentation before a judjcial officer. Re- lease of the witness does not preclude another detention, or let's say it-arrest. It is an arrest, notwithstanding the bill's assurance other- wise. What is more, this arrest of a material witness can be had even in a matter where another person is being held as a suspect and is being investigated under section 301. The Federal Rules of Criminal Procedure now demand the sanction of a judicial officer to detain ma- terial witnesses in these cases. ~\7V1iile the material witness held under section 302 can be released when brought before a judge or commissioner, he must post. bond or collateral-another imposition on the impoverished if he is not re- leased on his personal recognizance. And where is his right to counsel protected? And where is his right to not be detained unreasonably if he caimot meet bond or collateral requirements? And where is his protection against the use in a criminal prosecution against him of incriminating statements made by him during this so-called detention. I would like to digress a moment here, Mr. Chairman. We are coiicerned about the casual way that some witnesses have treated 302, claiming that it is a necessity to insure that witnesses needed for criminal prosecutions won't abscond. It is clearly to our mind an arrest, no matter what you call it and we do not believe that section 302 adequately protects people from the possibility of use of information in a future criminal prosecution, and also blernishiug their record, as one of the ACLU men mentioned earlier-it was unavoidable that one must include such detention in a form 57 application for the Government. Gentlemen, I am hopeful that the considerable volume of testimony you have heard so far will convince you that H.R. 7525 resorts to tinkering with the criminal law of the District of Columbia in a way which can lead to disastrous results. Broad statements that the "innocent have a right to be protected from vicious criminals" or that "criminals are released on mere tech- nicalities" or the "Supreme Court's decisions hamper effective police work" tend to obfuscate the true issues and, to me, evidence an inade- quate understanding of the democratic society and of the. constitu- tional principles which support our way of life. Encroachments upon constitutional individual rights by the police, as I said in my introductory remarks, are intolerable even if encroached upon to a slight degree. Even if the individual in reality is guilty, the situation is not different, because the only way to prevent illegal af- fronts to our rights by the police is to impress the police with the idea that where they act unconstitutionally, whether such acts be arrest, seizure of evidence, or acquisition of a confession, the fruits of such acts shall not be admissible in a criminal prosecution. Through this stringent restraint upon the great potential powers possessed by the man with a badge, we are enhancing the sanctity of each person and his property against the eagerness of the police acting on less than probable cause. We cherish the certainty that we will not be molested, interfered with, or oppressed without good reason by the PAGENO="0428" 422 AMENDMENTS TO CRIMINAL STATUTES OF D.C. police even if in having this assurance the police are hampered in investigating a crime or a guilty person goes unpunished. Thank you very much. The CHAIRMAN. We appreciate very much your statement, Mr. Schwartz. It will be very helpful to the committee. Our next witness is Mr. Joe Rauh, ~Jr., vice chairman of the Demo- cratic Central Committee for the District of Columbia. STATEMENT OP JOSEPH L. RAUH, JR., VICE CHAIRMAN, DISTRICT OP COLUMBIA DEMOCRATIC CENTRAL COMMITTEE Mr. RAUH. Mr. Chairman, thank you very much for this privilege of testifying before you, and also I thank you very much for the inter- est which you have displayed in this problem. Just sitting here this rnorning-I think it is wonderful that you are giving your time to really going after this very serious problem. But that is not surprising to those who know the interest you have put into the District of Columbia generally, sir. The CHAIRMAN. Thank you. Mr. R.AUH. I have a very short statement. The Democratic Central Committee strongly supports the Mallory rule. and opposes the pending legislation to repeal it. Just. as our party has always stood up for the civil rights of minority Americans, so we seek to defend and protect the civil liberties of all Americans. The pending legislation would weaken civil liberties in the District of Columbia by encouraging the police to hold suspects for intolerable periods of questioning instead of taking them promptly be~fore the committing magistrate. I might interject here, Mr. Chairman, that I think Mr. Schwartz was right. in the sentence you questioned. but. I think he was right for a little different reason. when he. said it was naive to think you would keep out coerced confessions. I think that is correct, as a matter of practice. It is naive to think you can prove the coercion. In other words. this Mallor~,' rule is a substitute for proof of co- ercion. It is terribly hard to prove what went on in a. police station. And therefore when a fellow says it is naive to think that you can keep out. the coerced confession if you do not have the Mallory rule, I personally very much think that is correct.. Of course, if a fellow is beaten-the original case in the Supreme Court is Bro~cn v. Aii.~ss~ipp. There. the man was beaten to a pulp. It was admitted he was beaten. That. is one kind of coercion. But the ordinary coercion cannot be proved in the courtroom. And I must respectfully suggest that. that is the real basis for what we believe, in. A police station is not a p~c.nic ground. Honest but over-zealous policemen, striving for the solution of crimes through confessions, too often use methods bordering on the third degree. The only way to forestall such conduct is to deny the police the use of confessions extracted during periods of imne.cessa.ry delay at the station house. We cannot expect. the police to punish the offending officer; the Ma.l.- 7~ry rule denying the officer the use of the wrongfully obtained con- fe.~~on is society's only means of ensuring civilized police conduct. The CnAI~rAN. A suggestion has been made by some of the PAGENO="0429" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 423 witnesses-and I think they pointed to practice in Israel where, if I understand it correctly, there is either some type of recorder or a disinterested witness who becomes a part of the interrogation pro- *cedure, so that one could determine whether or not there had been undue influence or coercion or involuntariness, or undue time, simply as a matter of proof. Now, this has been suggested as a method that would determine the fairness of the interrogation. I do not know whether this works or not. It has been suggested. I do not know anything about the practice in Israel. Mr. RAUH. I am sure I don't know. The only Israel trial I ever saw anything about was the Eichmann trials, and I am quite confi- dent that was not a typical trial. So I have no experience in that myself. My own feeling is that would be an improvement, but not a substitute for the Mallory rule. There is something to my mind wrong about getting the proof out of the fellow's own mouth. It is true if he is bubbling over with talk as he is arrested, that's all right, I understand that. But when he is resisting, if he does not give it to them in the ride to the station, or immediately, he is obviously resisting. And I think then he ought not to be forced by delays to do it, even in front of a third party- although I agree it would be better to have a third party than nobody. The ChAIRMAN. Thank you. Mr. 1RAUH. I would just like to say a word here, if I may, on the subject-I think there is bipartisan opposition in the District of Columbia. I think it would be helpful if this could be put on the record, Mr. Chairman. Many times, at least several times, when I have spoken with Mr. Shipley in the same places on these District questions, Mr. Shipley, who is, as you know, the chairman of the Republican Party here, has taken the position that he, too, favors the Mallory rule and opposes legislation. Now, I notice he is not on the list of witnesses. But in view of the fact that he has taken that position- The CHAIRMAN. I do not know how he feels. Mr. RAull. I think it would be very helpful. I believe there is bipartisan opposition to changing Mallory. And I thought possibly an inquiry might get this. I always think that in those few occasions when we have bipartisan positions here it would be very helpful to the committee to know that. The CHAIRMAN. I have noticed that occasionally you men come in marching arm in arm. Of course, several times I find you do have differences of opinion. Mr. RATJH. When we are arm in arm, I would like to bring it for- ward, and see if it can be helpful to the committee. The CHAIRMAN. I appreciate your suggestion. The staff will note it. Mr. RAIJH. While we oppose any change in the Mallory rule, we yield to no group in our desire to reduce the crime rate in the Nation's Capital. Exaggerated though our crime situation often is, we sup- port all reasonable measures to deal with the admittedly high crime rate, including measures both to frustrate crime and to reduce its causes. PAGENO="0430" 424 AMENDMENTS TO CRIMINAL STATUTES OF D.C. I do not think the list suggested by me here for either frustrating crime or reducing crime, reducing its causes-that these are by any means the ±ull list. I think many, many things can be done. I simply, in my own suggestion, would say let's put our emphasis on this kind of a method in the District of Columbia: First, we support expansion of the police force so that t.he authority of the law will be more visible in the difficult areas of the city; Second, denial of pistols to all persons within the city limits except for those few who obtain permits based on justified need. I must say I have always been surprised why the police do not support this pro- posal of limiting small arms. Small arms are not ways of shooting ducks. I really feel that there is much to be said for trying to keep these concealed weapons away from people in this area; Third, more complete integration of the police force in the interest of efficiency and public confidence; Fourth, improved education, housing, employment, and welfare throughout tim city; and Fifth, a District of Columbia fair housing regulation, and a District of Columbia fair employment practices regulation, both long overdue, to make it possible for every District resident to have the housing he can afford and t.he job he can do. Methods such as these are the American way of fighting crime. Let us reduce the crime rate by raising standards throughout the city, not by lowering them at the police station. In conclusion, may I say a word of commendation of Chief Murray and his colleagues. Our disagreement over Maiior'q must not obscure our deep debt of gratitude to him and to the entire Metropolitan Police force for the magnificent way in which they handled the August 28 march on Washington and our two local marches. The splendid co- operation of the police force with the leadership and citizens of the community on those occasions points the way to future cooperation in other areas. One can only hope that the spirit of cooperation during the marches can now be applied to reducing the. crime rate here in our Nation's Cal)ital. I strongly feel, Mr. Chairman, that there . is much that can be. clone between the police, force and the citizenry that has never been done. I was terribly heartened by the way that they did have this coopera- tion in the marches. People have said to me, How do I look on the racial tensions in the city of Washington today? And I said that I thought the situation had improved considerably. And they say to what fact, would you say-what was the one fact which has had the best effect on racial ten- sions in the city of Washington? In my judgment, it is the fine way in which the police cooperated with those marchers and made the Negro population feel that there were times at least in which the police force was not just on the other side. Therefore, I would sort of like to take the spirit of the way the police handled those marches and apply it to the crime situation generally. And I think a great deal can be clone, a lot more can he clone today, in my judgment, and the judgment of our local Democratic Part.y, than by changing the rules to make confessions easier. The CHAIRMAN. Thank you very much, Joe. I appreciate your statement a great deal. PAGENO="0431" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 425 Our next witness is Mr. William K. Norwood, chairman of the pub- lic protection committee of the Washington Metropolitan Board of Trade. We are happy to see you again, Mr. Norwood. STATEMENT OP WILLIAM K. NORWOOD~, CHAIRMAN, PUBLIC PRO- TECTION COMMITTEE, METROPOLITAN WASHINGTON BOARD OP TRADE Mr. NonwooD. Thank you, Senator. Mr. Chairman, I am William K. Norwood. I am appearing here today in my capacity as chairman of the Public Protection Committee of the Metropolitan Washington Board of Trade, an organization representing approximately 7~00O of the principal business, civic, and professional leaders from more than 4,000 enterprises in our Nation's Capital. The views I shall express represent the recommendations of the Public Protection Committee and have been adopted by our board of directors as the official policy of the board of trade. We support the enactment of title I and title III of H.R. 7525, the omnibus crime bill. Title I of H.R. 7525, would qualify and amend the Mailor&y rule by providing a rule of evidence for the courts of the District of Columbia. rfhis proposed rule provides that a statement or confession made by an arrested person shall not be excluded from evidence solely because of delay in taking such an arrested person before a committing magistrate. The rule also provides that such a voluntary statement or confession shall not be admissible in evidence unless the officer of the law warns the arrested person both that he is not required to make a statement and that any statement made by the arrested person may be used against him. At this point, we would like to note that legislation essentially the same as title I of H.R. 7525 with minor and inconsequential language changes has been passed previously by the Senate and by the House Of Representatives. In the 85th Congress, H.R. 11477 passed both the House of Representatives and the Senate, in amended form, by a.n overwhelming majority and went to conference. Agreement was ieached and the conference report was adopted by the House of Representatives, but Congress adjourned prior to final action in the~ Senate. Again, in the 87th Congress, a bill-H.R. 7053, identical to title I of the present bill, was passed by the House, but did not receive final consideration in the Senate prior to adjournment. As one can readily see, the case of Andrew Mallory is not new to either body of the Congress. Andrew Mallory was convicted of rape in the U.S. District Court for the District of Columbia. This conviction was subsequently up- held by the Court of Appeals for the District of Columbia but was reversed by the Supreme Court in 1957. The facts of the case reveal that the rape occurred at approximately ~ p.m. in the basement hum- dry of an apartment house inhabited by the victim. The defendant- Mallory-lived in the basement with his half brother who was em- ployed as the janitor for the apartment house. The victim sought help in connection with malfunctioning laundry equipment and Mal- PAGENO="0432" 426 AMENDMENTS TO CRIMINAL STATUTES OF D.C. lory responded to the call in the absence of his half brother. Mallory left the laundry room, but shortly thereafter the victim was confronted by a masked person who criminally assaulted her. A brief time after the commission of the crime, the defendant and one of his nephews left the apartment house. Mallory was appre- hended the following day at approximately 2 p.m., and was taken to police headquarters with two nephews who were also suspects. All were questioned for slightly over one-half hour and were held until 4 p.m., when they were asked to submit to a polygraph examination to which they agreed. Mallory was then questioned for approximately 11/2 hours shortly after 8 p.m. Finally he admitted his guilt. At 10 p.m., he repeated his confession to other police officers and a fruitless effort ensued on the part of police officers to reach a U.S. commissioner in order to arraign the defendant. Mallory consented to a physical examination by the coroner who found no indication of physical abuse or psychological coercion. Confronted by the victim at approximately midnight, Mallory once again admitted his guilt, repeated his confes- sion, and dictated it to a stenographer. The defendant signed the con- fession and he was arraigned the following morning. Following Mallory's conviction and the appeals leading to the Supreme Court reversal of the conviction, the case was remanded to the district court where the indictment was dismissed and the defendant released. An interesting and significant facet to the case is that at no time during the course of the pretrial or the trial proceedings did Mallory deny his guilt. We understand that as a result of the Mallory rule over 140 cases of appeal have been brought to our higher courts in the past 5 years, many in direct conflict with one another. Without question, the Dis- trict of Columbia has felt the greatest impact of the ruling in the Mallory case. Common law crimes, over which the Federal Govern- ment has jurisdiction within the District of Columbia, makes this the case in contrast to the States where Federal statutes apply less broadly. Local law enforcement agencies, in most cases, handle these crimes in the various States. The Supreme Court in its opinion referred to rule 5(a) as being a part of the procedure devised by Congress to safeguard individual rights without hampering effective and intelligent law enforcement. This last provision is the basic premise for the proposed legislation encompassed in title I of H.R. 7525. Earlier this week we heard a knowledgeable and respected law-en- forcement official, referring to the Mallory rule, describe it as possess- ing the capacity to wield a disastrous influence upon our Nation if allowed to thwart iustice in the States in the fashion that it has in the District of Columbia. This same official offered convincing justifica- tion for the need of a reasonable period of time for the police to per- form their investigative functions prior to the arraignment of an in- dividual on a specific charge. Interpretations and decisions based upon the Constitution have narrowed tremendously in recent years. Probably the most significant of these decisions has concerned Andrew Mallory. It would be com- pletely absurd to advance the thought that the learned men who framed our Constitution over 170 years ago had in mind preserving the PAGENO="0433" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 427 liberty of men such as Mallory, who have admitted their culpability, only to be released on legal technicalities, and providing them with the further opportunity to bring harm to society. I would like to repeat that they are released on legal technicalities, legal theorists, and bleeding hearts without any regard to facts would turn these criminals loose on society to continue their career of crime. A Nation, State, or jurisdiction basing its determination of an individual's guilt or innocence upon an overly lenient interpretation of a rule of criminal procedure is deserving of the description of being "soft on crime." To provide a further example of the ridiculous extremes to which the Mallory rule has been extended, we need only consider the Kill- ough case which departed substantially from previous decisions in application of the Mallory principle. Killough beat and strangled his wife and then carried the body after dark to the city dump where he hid it under a pile of rubbish. Five days later Killough told the police that his wife was missing. He then left town without keeping an appointment with police to give them more information. After 5 days, he returned home and the police questioned him about his missing wife for a full day without making a specific charge. At the end of the day he was booked and held. The following day he took police to the body and signed a confession to the murder. He was then charged and taken before a U.S. Commissioner for a hearing under rule 5(a). This procedure shows an obvious violation of rule 5(a) under Mallory. Accordingly, the judge had no other alternative but to exclude the written confession. The following day, at the District jail and not in police custody, Killough reiterated the essentials of the crime to a police officer who came to receive instructions from Killough as to the disposition of his wife's body. The second confession was allowed in evidence as a voluntary statement made after Killough had been duly warned and advised of his rights under rule 5(a). The majority of the court held in substance that the second con- fession, which was admitted in evidence, even though it was volun- tarily made following the presentation of the defendant before a U.S. Commissioner, who advised him of his rights, was inadmissible in evidence under the theory that it was the fruit of the first confession and therefore was improperly admitted at the trial because the first confession had been given during a period of illegal detention. In the course of its reasoning, the majority of the court made a com- parison of the relationship between Killough and the receiver of his confession and the situation existing between parties possessing a confidential relationship and between whom there is a privileged com- munication such as a confession made to a clergyman or statements made in private to a doctor or lawyer. In commenting upon this comparison, the minority in its dissent likened the effort of the ma- jority to equate Killough's confession made to a member of the clergy or statements to a doctor or lawyer as a "red herring." The sup- pression of the statement is not in any sense comparable to the common law or statutory privilege which leads to the exclusion of revelations of privileged communication to lawyer, doctor, or clergyman. This type of relationship simply does not exist between the police and accused persons. 25-260-64-pt. 1-28 PAGENO="0434" 428 AMENDMENTS TO CRIMINAL STATUTES OF D.C. This is typical of some of the travesties on justice which are per- mitted under the Mallory law. With the two historic cases of Mallory and Killough hovering in the background to impede swift and certain justice to criminals in the District of Columbia, it is not startling that this city has wit*~ nesseci a marked rise in crime since the Mallory ruling in June 1957. From 1952 to 1957 there was a. continuous and sharp drop in serious crime in the District of Columbia. The actual figures were from a high of 2,300 in December 1952 to 1,300 in June 1957. From the date of the Mallory ruling, however, there has been a continuous and sharp increase in serious crime in the District.. For the first 6 months of the current year, Washington stood eighth in the 16 cities with popula- tions between 500~000 and 1 million in population. It should be noted, however, that in 1957, we were in 12th place on the same comparative basis. From 1957 to 1962, serious crime in these other 15 cities showed an overall increase of 21 percent, while in the District of Columbia in the same 6-year period, it increased by 48 percent, moving the Nation's Capital 4 notches up t.he crime ladder. Significantly, since 1960, the District's rate of serious crime clearance, has also declined. As the total number of offenses has increased from 1957 to date, the total num- ber cleared has also increased, but the proportion of clearance has, in general, fallen behind. Even with increased emphasis on detection operations within the Metropolitan Police Department since 1957, that Department has not been able to attain either the number or propor- tion of clearances attained during the high crime years prior to 1957. Continuing this alarming crime pattern, it should be noted that for the first quarter of 1963. the District of Columbia has had a. 19-percent crime increase over the first quarter of 1962 as compa.red to a 7-percent increase for the remainder of the coufitry. Furthermore, recently re- leased statistics indicate that figures for the Nation's Capital show an increase for the 17th consecutive month. At this time in our Capital City, it appears that the representatives of law and order are equipped with an 18th century stagecoach in hot pursuit of the recidivist crimi-- nal element operating a 1964 Cadillac with radar equipment. There exists another ramification of the 3lallory rule not too often considered in discussions of the effect. of the Court decision. When police officers are hurried iii the conduct of their official duties and are required to arraign persons with reference tO whom there may be probable cause for arrest, it is possible that many innocent persons might. be arraigned and charged with crimes as a result of the peculiar circumstances surrounding their location and conduct. The Mallory rule has the effect of providing an unhealthy acceleration to police work to such a degree that the opportunity for exculpatory question- ing is seriously diminished. Accordingly, revisions in the Mallory rule as encompassed within title I will have the effect. of protecting the iimocent. Paragraph (b) of section 101 of title I specifically sets forth safe- guards to protect the person who may be subject to interrogation. It provides that no confession shall be admissible unless prior to such interrogation the arrested person was advised that he was not required to make a statement and that any statement made by him may be used against him. With this one major' qualification and limitation on the police officer, title I is designed to restore the law to its posi- PAGENO="0435" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 429 tion prior to the iJIalloi~y decision; that is, to insure the. admissibility of confessions which are freely and voluntarily made. Of course, this excludes confessions which result from improper compulsions. In our investigation and subsequent support of title III, we have discovered that the laws of many States relating to the~ apprehen- sion, detention, and quest.ioning of persons held on "probable cause" in connection with a crime, and the practice of local police depart- ments in the various States under the authority of the respective legis- latures, contain one essential uniformity. This uniform element is that all jurisdictions permit and practice the detention of persons after "probable cause" for interrogation during investigation and solution of the crime. The length of the permissible period varies widely. Expert testimony developed earlier this week before this committee revealed that the statutory law in San Joaquin County, Calif., per- mits the detention of a suspect for investigation for a periOd of 48 hours including Sundays; in Chicago, Ill., the suspect may be held until the next court session which, in some cases, may run over a week- end. The few States whose laws appear to be most nearly alike, were those States which have adopted the provisions, with minor modiflca~ tions, of the Uniform Arrest Act. The language embodied in title III, 1-LR. 7525, incorporated from I-l.R. 1929, 88th Congress, which we supported, applies the substance of the Uniform Arrest .Act to the District of Columbia. Under the amendments to the police regulations of the District of Columbia which became effective on March 15, 1963, the language of the regulation now states, "arrests shall not be made for investiga- tion." Under section 301 (c) of title III, I-l.R. 7525, a period not to exceed 6 hours would be provided in the police regulations for detention for interrogation and investigation. And that is not the 3 days referred to by a previous witness, but 6 hours. At the end of this period, the person shall be released or arrested and charged with a specific crime. The detention shall not be re- corded as an official arrest in any records. This allowance of 6 hours places the suspect in a much more favorable position than many other States and jurisdictions throughout the Nation. The effect of the Mallory decision has been felt, to some extent, throughout our Nation by those bodies vested with the responsibility of upholding the law and developing effective prosecution in criminal cases. By far the greatest influence has been in the District of Co- lumbia where the effect has been to seriously impede crime detection and ultimate conviction. Today's Police need modern tools to combat the cunning and knowledgeabla modern criminal. The legislation now before us will, if enacted into law, be a tremendous stride in a nositive direction in the battle to balance the pendulum of justice more equally between the. rights of society and the rights of the criminal in the District of Columbia. Thank you, Mr. Chairman, for the opportunity to appear before the Senate District Committee and express the views of the Metro- politan Washington Board of Trade in support of title I and title III of H.R. 7525, the omnibus crime bill. The CHAIRMAN. We are very happy to have you before us, Mr. Norwood. You have been very faithful in giving us your views on, these problems that arise under H.R. 7525. I appreciate the interest PAGENO="0436" 430 AJ\IENDMENTS TO CRIMINAL STATUTES OF D.C. not only of you, but of your Public Protection Committee of the Washington Board of Trade. I thank you very much. Mr. NonwooD. Thank you, Mr. Chairman. The CHAIRMAN. The committee will stand in recess until further order of the Chair. `We still have two or three expert witnesses in the field of title II of the so-called Durhan-~ rule. `We then want to hear the official witnesses. `We have had some difficulty in working out a satisfactory date with Mr. Katzenbach, the Chief Deputy Attorney General of the United States, who is the author of the official position of the Department of Justice. As soon as we can work out a date that does not conflict with his prior commitments, we will hear him as well as other witnesses. We will hear Mr. Acheson again, and we will hear Mr. Tobriner, in order to secure the Board of Commissioners' position. Of course we will obviously hear Mr. Murray, the Chief of Police and any of the men that he desires to have accompany him. We cannot pinpoint the exact date at this time. I would hope that it would be sometime the week after next. It will be impossible to schedule it next week. But I would hope we could make some further progress in this field the week after that. We are pointing toward the date of November 4 or 5 or 6. Subject to the call of the Chair, we will stand in recess. Thank you. (Whereupon, at 11. :55, a.m., the committee was in recess, to recon- vene subject to the call of the Chair.) PAGENO="0437" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS, AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA TUESDAY, NOVEMBER 5, 1963 U.S. SENATE, COMMIrrEE ON THE DISTRICT OF COLuMBIA, TVashington, D.C. The committee met, pursuant to recess, at 10 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presid- ing. Present: Senators Bible, McIntyre, and Dominick. Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard E. Judd, professional staff member. The CHAIRMAN. The committee will come to order. This is a con- tinuance of the hearings on H.R. 7525. This morning we are exam- ining title I and title III of this particular legislation. Our first witness is Mr. Nicholas deB. Katzenbach, Deputy Attorney General. We will be pleased to hear from you at this time, Mr. Kat- zenbach. The official report of the Department of Justice has been made a part of the record earlier in the. hearings. STATEMENT OF NICHOLAS deB. KATZENBACH, DEPUTY ATTORNEY `GENERAL; ACCOMPANIED BY DAVID ACHESON, U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA Mr. KATZENBACH. I have with me Mr. David Acheson, who is the U.S. attorney here in the District of Columbia. I have a short pre- pared statement. The CHAIRMAN. Why don't you proceed t.o develop your position by reading the statement. Mr. KATZENBACH. I am pleased to respond to your invitation for me to state the views of the Department of ~Justice with respect to title I of H.R. 7525, relating to the so-called Mallory rule. This rule, and what, if anything, to do about it, has been the center of much controversy. In arriving at any conclusions upon which to base legislative action, it is essential that all persons charged with the responsibility of con- sidering the legislation or making recommendations with respect to it should agree on just what the rule is. It is generally agreed that it is a rule of evidence, stemming from the Supreme Court opinion in Mallory v. United States, 354 U.S. 449 (1957). That rule of evidence is, in turn, a judicial sanction through 431 PAGENO="0438" 432 AMENDMENTS TO CRIMINAL STATUTES OF D.C. which rule. 5(a) of the Federal Rules of Criminal Procedure may be enforced. As you know, rule 5(a) requires that an arrested person shall be taken "without unnecessary delay" before the nearest avail- able commissioner or before any other officer empowered to commit persons charged with offenses against the laws of the United States. In Mallory the Court held that if an arrested person is not brought promptly before the nearest available commissioner but is held and interrogated by officers for the purpose of eliciting self-incriminating statements, such statements may not be received in evidence at the subsequent trial. It should be emphasized that the Mallory rule is in no way concerned with whether or under what circumstances a police- man may make an arrest. It stands merely for the proposition that a confession obtained from an arrested person before his arraignment will not be received in evidence in a criminal trial if obtained during a period of "unnecessary delay." The Mallory rule is not frequently invoked in Federal criminal cases in jurisdictions other than the District of Columbia. The reason is twofold. First~, only in the District, of Columbia do the Federal courts have broad jurisdiction over crimes of violence which characteristically lack eye witnesses and independent evidence. It is quite common in cases of homicide, yoke robberies, rape, and certain other crimes that there is no third eye witness, and it is often difficult for the complaining witness to make an identification. Of course, in homicides there is no complaining witness. Thus, in such cases, confessions assume far greater significance as evidence of guilt. and it becomes important to defendants to have their confessions ex- cluded in the courts of the District of Columbia. Second, by contrast. most Federal criminal cases in other jurisdictions involve frauds, mail thefts, narcotic violations, and the like, where there is substantial evidence apart from a confession; i.e., contraband propei~ty, financial records, tax returns, et cetera. Therefore, it is reasonable to consider the prol)lems in the District of Columbia as being rather unique with respect to the Mallory rule and deserving of congressional consideration in legislation limited to its application to the District of Columbia~. In my opinion, the Mallory rule is a good one. Through it, the Supreme Court made clear its intention to prevent law enforcement officers from delaying preliminary hearings for the purpose of elicit- ing confessions. This is as it should be. The problem which gives rise to the legislative proposal before the committee lies not with the Mallory rule but with its application in the District of Columbia. In a number of cases in the District of Columbia. "umiecessarv delay" has been interpreted and applied to make it virtually impos- sible, I am informed, for investigating officers to speak with arrested persons with any assurance that resultant confessions will be accept- able in the courtroom. For example, in Elsie J7~ Jones v. United States. 113 U.S. App. D.C. 256, 307 F. 2d 397 (1962). the defendant was arrested at 4:25 of a Sunday morning, confessed 31,4 hours later, and was brought before a committing magistrate at 9 Monday morning. A divided couftheldl her confessions inadmissible. PAGENO="0439" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 433 In Charles S. Coleman v. United States, 114 U.S. App. D.C. 185, 313 F. 2d 576 (1962), a delay of 2 hours and 5 minutes was, again by a divided court, held fatal to the admissibility of the conviction. In Tony A. Coleman v. United States ~, U.S. App. D.C. 317 F. 2d 891 (1963), a divided court permitted the conviction on one count to stand although based upon a confession given 1 hour after the arrest, but reversed the conviction on other counts based upon con- fessions given 2 or 3 hours after arrest. Most recently, in a dissenting opinion in Robert A. Musehette v. United States, D.C. Cir. No. 17410 (July 25, 1963), it was contended that a confession obtained 25 minutes after arrest and 1 hour and 50 minutes before the arrested person was presented to the committing magistrate should be excluded. This past summer, in United States v. James J. Jones, Criminal No. 366-63, the trial judge excluded a confession which occurred within 15 minutes after arrest and prior to presentment of the arrested person to the committing magistrate. The dissent in the former case and the ruling in the latter case were based on the ground that no interrogation of any length is permissible and, indeed, an arrested person is not to be taken to the precinct or to headquarters for booking and finger- printing, but is to be taken before a magistrate forthwith. Thus, "without unnecessary delay" was considered to mean "without any delay." Obviously, such an interpretation of the Mallory rule changes it from a rule of reason to an absolute prohibition of interrogation fol- lowing arrest. In my opinion, this goes far beyond the evil against which the Supreme Court spoke out in Mallory. As I indicated in my written report to the committee, dated Sep- tember 13, 1963, interrogation itself is not a violation of due process or of other constitutional rights. Free of abuse, interrogation is a valuable investigative tool for arriving at facts. The only safeguard in title I is that the arrested person must be advised he is not required to make a statement and that any statement made by him may be used against him. The dissents of four justices in two Supreme Court cases (In re Groban, 352 U.S. 330 (t957); Anonymous v. Baker, 360 U.S. 287 (1959)) suggest that such a warn- ing is not adequate. In the view of these justices, compulsory interrogation in camera, without permitting the arrested person to be accompanied by counsel, amounts to a denial of due process of law. If, therefore, this committee concludes that some corrective legis- lation is necessary, it is my recommendation that at a minimum four essential safeguards of defendants' rights must be incorporated in it. In addition to expressly preserving the rule against unnecessary delay, the legislation must provide for- (1) A plain warning to the defendant, immediately in advance of the questioning, that he is not required to make any state- ment at any time and that any statement made by him may be used against him; (2) The arrested persons being afforded a reasonable oppor- tunity to notify a relative or friend and consult with coui isel of his choosing; PAGENO="0440" 434 AMENDMENTS TO CRIMINAL STATUTES OF D.C. (3) A maximum of 6 hours elapsed time between arrest and completion of the confession; and (4) A responsible witness, other than a law enforcement offi- cer, observing the questioning, or a verbatim transcript or record- ing of the interrogation. The above-mentioned safeguards are contained in legislation which was introduced in the House last April as H.R. 5726. That measure was prepared by the U.S. attorney for the District of Columbia. Thank you very much. I shall be pleased to respond to any ques- tions you may have. The CHAIR~rAN. Thank you, Mr. Katzenbach. I think several questions do suggest themselves. Your original report on this bill, dated September 13, 1963, among other things, says in regard to title I of the bill: However, it raises serious constitutional difficulties in dispensing with safe- guards which the Mallory rule assured to persons charged with crime. This is part of your opinion of September 13, 1963. I am sure you are very well aware that title I is now before us for consideration, has passed the House of Representatives in essentially its present form on at least four different occasions. In 1958, the Senate, by a vote of 65 to 12. passed a version almost identical with that contained in the House bill which we now have before us for consideration, except for the addition of the word "reasonable" before the word "delay." This was added by the Senate Judiciary Committee. When the bill went to conference, the Senate a.nd House conferees accepted the word "reasonable" but also added a proviso in the proposed legislation that had the effect of making delay a matter to be considered in de- termimng the voluntariness of the confession. I think it is fair to state that this proviso which was added to the amendatory language to rule 5(a) by the conferees in 1958 was ruled out on a point of order raised at a very late hour in the 1958 session of the Congress. So actually the amendment. to rule 5(a) was not enacted into law. But in view of this legislative history. I would like to ask on what position the Department of Justice would take with regard to title I of the pending bill, if it were to pass in its present form. Mr. KATZENBACFI. If that legislation were to pass in its present form we would defend its constitutionality in the courts. The CHAIRMAN. What recommendation would the Department of Justice make to the President? Mr. KATzENBACTII. Did you say to the President? The CHAIRMAN. To the President.. yes. Would you recommend that the bill be signed or would you recommend that the bill be vetoed? Mr. KATZENBACIL I don't believe it proper for me to state at this time what recommendation the Department of Justice would make to the President, Mr. Chairman. The CHAIRMAN. Why would that be? I am raising the question because your ow-n opinion says that it raises serious constitutional difficulties. Mr. KATZEXBACH. I thInk that it does. The CHAIRMAN. IVould those constitutional difficulties be such that you would feel it was unconstitutional and recommend to the President of the United States that it be vetoed? PAGENO="0441" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 435 Mr. KATZENBACH. I believe that there are serious constitutional questions, Senator, and I can discuss those with the committee if you wish. If you are suggesting hypothetically that it would pass in this precise form now, I suppose that we would call those constitutional difficulties to the attention of the President. Whether we would rec- ommend a veto or not is not something that I am prepared to say at this moment. I would say that I don't believe our report says it would be my opinion that the provision as it now stands is clearly and un- equivocally unconstitutional. The CHAIRMAN. It does not say that and I haven't suggested it. Mr. KATZENBACH. It would raise serious constitutional questions that it seems to me Members of both Houses should consider this in terms of their legislative responsibilities. I am sure the President would consider those as well and I am sure that a report written to him by the Department of Justice would draw his attention to those difficulties, and also the fact, as I have just stated, that such a statute is more clearly unconstitutional. The CHAIRMAN. I am not trying to do anything except to arrive at sound conclusions as to how we handle this particular problem. As you say, this is a highly controversial problem. It is one that has been before the Congress many times. There are divergent views as to whether it is or is not constitutional. All we are attempting to do is to arrive at a result that would be of some assistance to law enforcement here in the Nation's Capital. This would be my view as the chairman, at least speaking for myself. But I would have considerable concern if we were to enact legislation which the Department of Justice as the legal adviser for the President of the United States would feel was unconstitutional. This is all I am trying to determine. Mr. KATZENBACH. Let me stand on what I have already said. I have not said that this legislation is unconstitutional. I have said that it raises serious constitutional questions. and I have attempted to give you the reasons, and I can put those at more length as to why it does. I do not know how the Supreme Court would hold in this case. The CHAIRMAN. I recognize that the Department of Justice and the Attorney General cannot, of course, speak for the court. If the Congress should pass the legislation then let the courts determine its final legality. I recognize they are the final authorities as to whether an act is unconstitutional or whether it is constitutional. I would call to your attention that in 1958 the Attorney General in the Depart- ment of Justice, under date of August 18, 1958, stated this, and I think this should go into the record. It is directed to the law enforcement problem, speaking on legislation then before the Judiciary Commit- tee in amendment of rule 5(a): It is directed to the law enforcement problem raised by the Supreme Court decision in Mallory V. TJ.~. (354 U.S. 448). Its scope is narrow. It is aimed at one legal problem. Its effect may be anticipated. In the Mallory case, the Court ruled inadmissible a confession made during a delay between arrest and arraignment which the Court considered to be unnecessary. The bill would provide for evidence including the statement and confessions otherwise would not be admissible solely because of reasonable delay in taking an arrested per- son before a commissioner or other officer empowered to commit persons charged with offenses against the laws of the United States. We have no objection to the enactment of this bill. PAGENO="0442" 436 AMENDMENTS TO CRIMD~AL STATUTES OF D.C. This was the position of the Department of Justice in 1958. Mr. KATZENBACH. I think, Mr. Chairman, the record should also show that ~n 1959 the Supreme Court made another decision relevant to this problem in Anonymow9 v. Baker (360 U.S. 287). The CHAIimIAN. \Yliat is the citation of that case? Mr. KATZENBACH. 360 U.S. 287. The CI-IAI~L~x. I mean the name of the case? Mr. KATZENBACH. Anonymous v. Baker. The CHAIRMAN. Yes. Your position is that the decision in 1959 would somewhat change the decision of the. Department in 1958? Mr. KATZENBACH. My point would be that in that case again four Justices on the then Court suggested that compulsory interrogation in camera without permitting counsel would be in violation of the Constitution, in violation of the due process of law. The composition of the Court has since changed. The CHAIRMAN. The Senator from Colorado. Senator DoMINIcK. Thank von. Mr. Chairman. Mr. Katzenbach, as usual, it seems to me you have given a very good statement here. Mr. KATZENBACH. Thank you, Senator. Senator Do~rINIcK. Just a few questions that I have. On these cases that you cite on page 4 as giving the situation in which confes- sions were ruled inadmissible, and that any conviction based on that should be reversed, now in those cases did the persons who were doing the interrogation, in fact, warn the defendants of their legal and constitutional rights to have an a.ttorney, and that statements would be used against them, that they didn't have to make any statement at all, or is that not clear in the case? Mr. KATZENBACH. I believe in at least some of those cases such a warning was given: is that correct? Mr. ACHESON. That is right, Senator. The warning was given in all of those cases as I recall. That is a standard appurtenant to the regular form of interrogation. Senator Do~rINIcK. So that in the normal course of events, absent the Mallory case then, these confessions would have been ruled as voluntary legal confessions, in your opinion? Mr. KATZENBACH. Yes; I think they were voluntary. I don't think there was an coercion, and I think there was a warning. The point that. we are trying to make in this is that the Mallory case as has been interpreted here in the District of Columbia has undoubtedly raised law enforcement problems. and the Department of Justice is nmch in sympathy with efforts to clarify the procedures and avoid the kind of situation that arose in the cases which we have put here. One of the principal problems in this is that you really don't know when you are prosecuting a case in Mr. Acheson's office whether or not a confession admitted by the trial court as it would be in all of these cases is or is not going to be overruled by the court of appeals. In part this depends upon the composition I think of the court of appeals, and it is very difficult for us at least to guess, and that is almost what it is, as to whether or not such confession is going to be ruie& out in that trial. Now very often there is probably enough evidence in this case, apart from the confession, to successfully prose- cute. But. the confession itself, where there is no coercion involved, is PAGENO="0443" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 437 really the best evidence. It satisfies perhaps the general public as well as the jury more than any other thing one can think of where it is voluntary and the person admits it. Subsequently to have this reversed some time later in the court of appeals and have to retry the case raises difficulties of time involved, and, of course, in recent cases there has even been a suggestion if you got the confession and then got other evidence as a result of it, that was tainted, and by giving the confession there might virtually be an immunity. Maybe the thing for criminals to do is to confess quickly in this situation and then have the court find that the confession is no good, and any leads that are gotten from it are no good. I am not being entirely facetious when I say that. I also tiunk as a matter of wisdom when I raise these constitutional questions that it seems to me fairly clear that there are four Justices still sitting on the Supreme Court who think that there are serious constitutional questions raised if you are not permitted to have counsel, and by the fact of interrogation. I find nothing of this kind in the JtaUor7j case itself when I read it. I find it to be quite a reasonable decision in this respect. The facts were very different from the facts of these cases. The confession was for longer delays. The questioning made was of a far longer period of time. It involved some rather tricky questioning, the use of a polygraph and lie detectors, and in Mr. Justice Frankfurter's opinion there is a suggestion that it would not be an unnecessary delay if, for example, a witness volunteered a story which could easily be checked through going to third persons, and other normal police techniques. Now our concern is that if you simply modify directly the Malio~j rule as this proposed title I would do, that that will be really an invitation to the Court to go along with the four dissenting Justices and to hold it unconstitutional. We believe that the reason behind the Ma~lom,' rule was the safeguards, the warn- ing that had to be given and the additional safeguards of being able to contact a friend or contact a lawyer, to have the questioning witnessed so that you have independent verification of the process of questioning that there was no use of improper police techniques and that the con- fession was voluntary, and that given that kind of safeguard in the legislation the possibility of holding that legislation unconstitutional would be greatly minimized. I would think that that would be the wise course of action to take. To simply modify the rule and to modify the decision would seem (0 me to be an invitation to have further constitutional discussion of this problem which might well go along the line of the dissenting opinion and leave the situation more difficult from the point of view of law en- forcement than it presently is. That is the sum and substance, really, of the Department's position. * Senator D0MINIcIc. Mr. Katzenbach, in these cases they are all court of appeals cases. At least two of them are specifically referred to as a divided court. Mr. KATZENBACH. Yes. Senator DOMINICK. I don't. know whether the Jones case was a thvided court or not. I gather it is your feeling that the Court of Appeals has expanded the Mallory procedural or evidential rule and there were constitutional issues far beyond its originally intended scope. Now the question that I have in my mind is has there been any indica- t~on in the Supreme Court cases that the Court of Appeals exti~nsion of PAGENO="0444" 438 AMENDMENTS TO CRIMINAL STATUTES OF D.C. the Mallory rule goes along with the Supreme Court philosophy as the Court is presently constituted. Mr. KATZENBACH. There has been no disposition on the part of the Supreme Court to review any of these cases. Senator DoMINIcK. Have they denied certiorari on any of them or demed appeal? Mr. KATZENBACH. Do you know the answer to that, Mr. Acheson? Mr. ACHESON. My recollection is, Senator, that in the last year or two, perhaps the last 2 or 3 years, at least one case involving a ]Jlaiior?/ question was sought to be reviewed in the Supreme Court and certi- orari was denied. I know of no case in which the Supreme Court has confirmed or disavowed the rather extreme line of rulings that we cite here. Senator DOMINICK. All right. Now, if I may. could I just ask you a couple of questions about your recommendations on adding certain safeguards to the proposed Mallory rule. You obviously would have the legal question right awa under Recommendation No. 2 as to what is or is not a reasonable opportunity, to notify a relative or friend or consult counsel of his choosing. Might you not get into the same bind on that as we are as to whether there is a reasonable or unreasonable delay in the Mallory ruling to begin with? Mr. KATZENBACH. I would think, Senator, that whether or not there was a reasonable opportunity there would be a question of fact for the trial court, and the trial court could make a finding of fact in that respect. Senator DOMINICK. One would surmise that this would be also true in the trial court ruling on whether a confession has been obtained with or without a reasonable delay? Mr. KATZENBACH. It is without an unnecessary delay. Senator DOMINICK. Doesn't the trial court make a finding of fact on that? Mr. KATZENBACH. When it admits-yes, it does; when it admits the confession. Senator DOMINICK. And m each of these cases presumably it made a finding of fact that this would not constitute an unnecessary delay and then the court of appeals reversed it? Mr. KATZENBACH. I think it might be desirable for the legislation to state what a reasonable opportunity was. Senator Do~rI~IcK. How did you happen to pick 6 hours, in No. 3? Mr. KATZENBACH. Like any period of time, it is somewhat arbi- trary. We thought it ought to be on the short side. One of the things that lies behind the Mallory rule, I don't think it is the essence of it, though, is the coercion aspect. It seemed to us that a 6-hour delay. in the light of the cases and of experience would scarcely result in coer- cion, yet would be sort of fast enough to be reasonable. By that I niean I was thinking in terms of an a.rrest late at night and how quickly can you get them before a magistrate. It seemed to us that 6 hours, if you took into consideration the nighttime problems, was a reasonable length of time, and 12 hours seemed to us rather too much, and 4 hours seemed rather too little. Senator DOMINICK. Of course your recommendation of 6 hours' elapsed time between arrest and completion of the confession. does not say anything about arraignment? PAGENO="0445" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 439 Mr. KATZENBACII. No. We have thought the validity of the con- fession really thought to be measured from the time of arrest to the time of confession. I think that is by and large consistent with the cases and even with the extreme cases here. * Senator DOMINICK. But the Mallory rule deals with not the time of confession but that deals with between the time of arrest and getting of a confession sometime during that period and the time of arraign- ment? Mr. KATZENBACH. Yes; it does in a sense, Senator, but the Mallory case put a great deal of emphasis upon the fact that a number of hours after the arrest-and I have forgotten what it was, 12 or 14 hours. Mr. ACHESON. About 11. Mr. KATZENBACH. Eleven hours after the arrest the confession was obtained. And then after getting the confession, they went on to get several more confessions, and then eventually got him arraigned. But I thought and I believe that the whole thrust of that case is upon the time between arrest and the time of confession rather than the actual time of arraignment. This is why the one instance to us of a confession 25 minutes after arrest one judge felt was too long an elapsed time to us to represent a rather different philosophy approach than what I get from a reading of the Mallory case. Senator DOMINICK. Wouldn't you feel that the 6-hour period if it was incorporated in the law would become kind of a flag which would be used by the arresting officer to hold all prisoners 6 hours before they took any action as far as arraignment is concerned? Mr. KATZENBACH. I think that is a possibility, Senator, and I think that is one of the difficulties. On the other hand, if you are interested as we are interested in knowing whether a confession is certainly going to be thrown out or not, there was, it seemed to us an advantage in stating an absolute bar and an absolute rule so that you would at least have that part of it as firm as possible. It could be regarded in that way, although we would also support keeping the rule as it is, to say that he should be arraigned without unnecessary delay. Senator DOMINICK. My previous question concerning the difference between the time of arrest and the time of confession, the time of arrest and the time of arraignment, is brought in by in part your statement on page 4 with reference to the Jones case, because in this the defend- ant was arrested at 4:25 of a Sunday morning, which I suppose means 4:25 a.m. on Sunday. Mr. KATZENBACH. Yes. Senator DOMINICK. She confessed 31/2 hours later, but she wasn't brought before the committing magistrate until more than 24 hours after that period, after the confession. I have not read the case and therefore I don't know whether any point was made of this, but a point seems to be made of it in your statement. Mr. KATZENBACH. I wonder whether I stated the facts correctly there and whether that should be Monday morning. I believe that that is an error in my statement there, and that the 4 :25 should be of a Monday morning, as well as the 8 a.m.; is that correct? Senator DOMINICK. Yes; Mr. Acheson? Mr. ACHESON. May I clarify that? The confession that was in- volved in the Jones case was the written confession, not the initial oral confession. The first confession was made quite soon after arrest. PAGENO="0446" 440 AMENDMENTS TO CRIMINAL STATUTES OF D.C. It was subsequently transcribed and confirmed in writing, and the. mormng of the following day the defendant was brought to arraign- ment before the Commissioner. Senator Do~1IxIcK. So that there was a rather substantial delay between the time of the confession and the time of arraignment. This is the point I was making. Mr. ACI-lEsox. That is correct. And Senator, you might have had occasion to notice the case, the decision of United States v. Mitchell in the Supreme Court 322 U.S. 65, which I think dates from about 1956. That makes it clear that the delay that takes place between the time of confession and the time of arraignment is really immaterial for purposes of application of the Mallory rule. It is the delay that produces the confession which is the significant thing. The Mitchell case makes that quite clear, and I don't know of any case that indi- cates that thinking has been reversed in the Supreme Court. Senator Do~rIxIcK. All right. Now on your fourth recommenda- tion you say: A responsible witness other than a law enforcement officer should observe the questioning, or the reeording of the interrogation. Who do you mean or what type of person? Are you thinking of a court reporter, a stenographer, or are you thinking of a lawyer on behalf of the defendant or are you thinking of a friend or a relative on behalf of the defendant or what? Mr. KATZENBACIT. That. or a person of good reputation in the com- munity, a priest, a minister. Senator DoMINIcK. If you arrest someone at 4 a.m. Sunday morn- ing you are going to have kind of a~ hard time unless someone is con- nected with the case in getting anybody clown to court, aren't you. or to go to a police station? Mr. KATZENBAC.TT. I don't think that is necessarily true, Senator. In the area in which I lived in Chicago before I came with the Gov- ernment here, the police within that area always secured, when some- body was arrested, an independent witness to look at the questioning, and it was extremely helpful in terms of credibility of what happened during the questioning to have a person unconnected do that. A num- ber of citizens were quite happy to volunteer for this and to make sure that any questioning, any interrogation was fair in this respect. Senat.or Do~1INICK. Was this a matter of a law or was this a~ matter of procedure? Mr. KATZENBACT-I. It. was a matter of procedure and practice, and I think probably it was confined to one or two precincts in Chicago. the university area where I lived. This has been suggested as a means cf insuring that any claims that any confession was coerced could be rebutted, and the police in these precincts at least followed that prac- tice, with some regularity. Senator Do3nNIcK. Are you recommending under No. 2-and I might say in passing that I think your procedural statement of what the police did is most helpful. I think if we could get that moving in other jurisdictions it might be a real help, but are you recommending under No. 2 that the relative or friend who is notified, and the consultation with counsel of his own choosing should take place during the questioning by the police or prior to the start of it? Mr. KATZENBACH. It should take place prior to any interrogation PAGENO="0447" AMENDMENTS TO CRIMINAL STATTJTES OF D.C. 441 of the witness. I would assume in the normal course of things that the man is taken into custody and that when he arrives at the precinct station, he should be given this opportunity to make a phone call to a relative or to a friend or to a lawyer. Senator Dw,aINICK. At least one of our witnesses has mdicated that if these people do get counsel, the counsel will tell him to say nothing, which is the general role of a counsel defending a defendant. Mr. KATZENBACEI. That is certainly Perry Mason's constant advice. Senator DOMINICK. Thank you, Mr. Chairman. The ChAIRMAN. Thank you. The Senator from New Hampshire. Senator MCINTYRE. I understand, then, that you feel the Mallory rule is a good rule, generally speaking? Mr. KATZENBACII. Yes, I do. Senator MCINTYRE. Do you understand also that it does pose some problems for the District of Columbia in its enforcement of law and order? Mr. KATZENBACH. I think the Mallory rule as it has been inter- preted by the court of appeals here in the District does pose such problems. Senator MCINTYRE. Are you suggesting to this committee that there are four areas where you feel that the law if passed in its present form might very well raise some serious constitutional objections? Mr. KATZENBACH. That is correct, Senator. Senator MCINTYRE. What I would like to be informed about is this : As I look over these four provisions, What is the accepted practice or what is required by the law today here in the District of Columbia when an arrest is made? If an arrest is made can a man be brought to the police station and immediately shoved into a chair and the interrogation commence or does he have to have these things? Is this accepted practice or is it required by law that first of all he be in- formed that he need not make any statement at all. Is this being done or isn't it? Mr. ACITESON. At the present time, the procedure is, Senator, that, of course, probable cause is required to justify the arrest. After the arrest is made, the case law provides that there are certain, admin- istrative steps that are entirely justifiable and even necessary which call for the taking of the defendant to the police station, the pre- cinct, or the headquarters where he will be fingerprinted, photo- graphed, and a lineup sheet involving his vital statistics, prior record, and all that filled out, and when that is accomplished, he may be briefly questioned to determine whether he has got any statement to make on the case. He may not be held for a long period for the purpose of interroga- tion, because Mallory forbids that. But he may be initially interro- gated to see whether he has a statement to make or an alibi or any- thing which, on its face, would tend to exculpate him. In connection with that interrogation defendants frequently confess. This is called a threshold confession, and it has been in the past allowed to be introduced in evidence by the District judges and by the courts of appeals. We are now reaching the point where successive opinions of the court of appeals have tended to shrink the period in which a threshold confession may be elicited. This initial interrogation is PAGENO="0448" 442 AMENDMENTS TO CRIMINAL STATUTES OF D.C. beginning to be squeezed away. Now as far as the four elements here are concerned, the safeguards proposed in the bill H.R. 5726, the police at the present time do warn the defendant that he need not make a statement. Senator MoIN~rYm~. This is just the practice? Mr. ACHESON. That is a standard practice. Senator MCINTYRE. Not required? Mr. ACHESON. I won't say it is not required, Senator. I think if they stop doing it, and if they elicited confessions, the courts would probably exclude them. It is an absolutely uniform practice. It is done in every case, so far as I know. The CHAIRMAN. Might I interrupt at that point for a question? Senator McIxmu~. Surely. The CHAIRMAN. On t.his first safeguard that you are testifying to, do you run into problems when you actually get to court in accurately ascertaining whether a warning was or was not given to the defendant? It occurs to me that this first safeguard that you suggest might lead to considerable areas of controversy. I have always thought it is a fairly standard practice everywhere in the United States to give this warning about any statement being used against you. But don't you run into the problem of the police saying, "Yes, we gave the warning," and the defendant saying, "No, you didn't tell me a thing about it"? Mr. ACHESON. Not very frequently, Mr. Chairman. I think it is known to the courts that this is such a standard practice that unless there is some solid evidence that the warning was not given, they assume it is. Now in the case of a written confession, the warning is right there in print on the statement which is subscribed by the defendant, and almost in no case is there any rebutting evidence that it was not given in that situation. I do not feel it is a device. I think the warning is given. The police do comply with this condition in a bona. fide way. And as far as I am aware, and I think I would know if it were otherwise, it is standard practice. Senator MCINTYRE. You were going to talk about the second element. Mr. ACHESON. As t.o the second element, occasionally a relative of the defendant does come down to the police station when they are notified that the defendant is being held there. Occasionally they will retain counsel for the defendant and counsel will come down to the police station. When that happens, it is commonplace for the counsel or the relative to be allowed to speak to the defendant at some point during the proceedings. But there is no fixed practice, of course, that the interrogation must be suspended until a. lawyer or a relative arrives. Senator MCINTYRE. Let me interject this question. If a. lawyer arrives, is there any attempt by the police to keep this lawyer from the suspected criminal until they have had a chance to get this~ thres- hold confession of which you speak? Mr. ACJIEs0N. I think there are situations where tl1e lawyer arrives at a time when the interrogation is actually going on. Under those circumstances, I doubt very much if the interrogation would be inter- rupted. I hesitate to generalize there, Senator, there is such a variety of facts in the situations that come up here. PAGENO="0449" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 443 Senator MCINTYRE.. Yes. Well, what I was mostly concerned with was that*the practices that I have seen are followed here in the Districi of Columbia. In other words, the attorney comes in, interrOgation is going on, the attorney is allowed to instruct the witness in the Perry Mason formula? Mr. ACIJE5ON. Oh, yes. Senator MCINTYRE. This is very important. Mr. AciiisoN. Where he arrives timely, where the interrogation isn't. completed by the time he arrives, I am sure that is the practice. As far as element No. 3 is concerned, I think in some very high percentage of the cases a confession is made if it is going to be made at all, within an hour or two, perhaps 3 hours after arrest. I don't believe for that reason that the 6-hour detention would become stand- ard in every case. In the great majority of cases a confession is made fairly promptly after arrest. Of course, a confession is withheld be- cause the defendant thinks the police have nothing on him. When he finds out they do, he very frequently confesses.. You get some cases like Killough in which the police can not get anything on him and he will not confess even though he is held for a few days. We certainly don't suggest that there is any legislation that is practicable which would cope with a situation like that. SenatOr DoMINICK. Would the Senator yield at that point? Senator MCINTYRE. Yes, I would be happy to yield. Senator DOMINICK. I would just like to get your estimate of .the likelihood of this. If this becomes a part of the written law;~ namely, a maximum of 6 hours, isn't it entirely possible that the at least hardened criminals would take this into account and simply wouldn't open their yap until more than 6 hours had gone by, and then it wouldn't make any difference what they said? Any confession or anything that they said would be ruled out? Mr. ACHE5ON. Senator, I think that is attributing a degree of sophistication to even a hardened criminal that very few of them seem to possess. At the present time for all practical purposes if he can hold out for 2 hours, 2'/2 hours, he is pretty well in the clear, but very few of them do. Senator DOMINICK. So your answer to the question is that you don't think that this would give them an additional escape hatch? Mr. ACHESON. I do not. Element No. 4, just to finish this, goes back to your q~uestion, Mr. Chairman. The witness or transcript or recording which is called for in element No. 4 would prevent the very controversy that yo!ti suggest from' coming into a trial and being taken seriously where there was not factual support for it as to what happened at the interrogation... Senator MCINTYRE. Who would normally be this responsible per- son? Where would you find such a responsible person, go out in the street andget him? Mr. ACHESON. It is in the alternative here, Senator. The proba- bility is that the practice would be to set up a transcription system or a reporting system instead. Where there was a responsible person in the shape of a relative or counsel that happened to be there, they might prefer `to protect the interrogation in that fashion. 25-260-64-pt. 1-29 PAGENO="0450" 444 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Senator MCINTYRE. Is this responsible witness-I take it the answer is obvious-is this responsible witness or verbatim transcript or record- ing not a customary practice in the District of Columbia today? Mr. AcnIsoN. I don't believe so, but I would prefer to leave that question to the Chief of Police. Senator MCINTYRE. Do I understand that it is an accepted practic8 that the suspect be given an opportunity to telephone his friends or relatives or his attorney? Mr. AcHEsoN. There again I think he is. Usually, Senator, these people don't know a lawyer. Senator MCINTYRE. I appreciate that. Mr. ACHESON. They may have a relative. Senator MCINTYRE. I appreciate that, but it is the opportunity? Mr. Acm~soN. They are offered the telephone. I think a classic situation here is the famous defendant Killough in a murder case, who was offered the telephone. He did not make use of it. He didn't know a lawyer to call. But he could have called a relative or called anyone he chose. I think the answer is "Yes," as far as I know, they are allowed the opportunity. Senator MolNnrun. Of course, I realize the practicalities of this thing in going down the drain but of course we are interested in the opportunities for protection of these rights that are so important. Of course I am not familiar with the problems of a tremendous big city like Washington. Do the police offer to this person names from the Legal Aid Society or other opportunities for counsel or names of attorneys, just a list? Mr. ACHESON. I think the police with some reason feel that it would be quite improper for them to select counsel for defendants, and I believe tha.t the legal agency at the present time is not authorized to accept the call of the police to represent defendants in the custody of the police. Senator MCINTYRE. Nothing in my question was meant to indicate that I thought the police should select counsel. Mr. ACHESON. I understand. Senator MCINTYRE. In a smaller city you would just give them a list of attorneys. One thing I wanted to get straight in my mind is this: In looking over these decisions that you indicated here, I rea1ize you are compressing the facts down to a number of hours, but certainly in these cases there must be something that goes to the voluntariness of the confession. Are these facts all that are necessary, two or three and a half hours are sufficient to throw the question out? Mr. KATZENBACH. That is right, Senator. There is no question in any of these `cases as to the voluntariness of the confession. Senator MoIxTYi~. No question a.t all as to the voluntariness? Mr. KATZENBACH. No, sir. Senator MCINTYRE. This is a safeguard written into this Mallory rule which indicates that a delay of time is an implication that there may be some undue force at work. Mr. KATZENBACH. I think that is one of the reasons in the Mallory rule, but only one. I don't think-they do go back to McNabb. In the Mallory case and they do talk about that, but the test is not whether or not the confession is voluntary. It is far more automatic even in the Mallory case. They say rule 5(a) was not complied with PAGENO="0451" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 445 in this case, and if it was not complied with as a method of forcing the police to comply with the rule of the Court; requiring prompt ar- raignment, they are going to exclude the confession no matter how voluntary, no matter how true, no matter how accurate that confes- sion is, if there is a suggestion that the confession was obtained during a period of time which constituted an unnecessary delay prior to the arraignment. I don't believe-well, one of the bases for the rule 5(a) may have been, and it is suggested again in Mallory, that the longer the delay, the more opportunity for improper police conduct. I don't believe that the Mallory rule rests entirely on that. It is a way which the Court has chosen, the Supreme Court chose in that case, of making sure that the rules of the Court were complied with by putting a sanc- tion upon the prosecution in the form of excluding any confession which was obtained. It is for that reason that it would be our view that if other effective means of insuring that the proper safeguards were in fact complied with, that the constitutionality of some questioning during that period would be preserved. But if the law contains no safeguards in this respect except the safeguard of voluntariness, it is our suggestion that the Court might find some of these other safeguards ignored or jeop- ardized, and thus elevate the Mallory case which is presently simply a rule of evidence, into a constitutional decision. Would you agree with that? Mr. ACHESON. I would agree with that. Senator MclNnriiE. It is pretty hard for me to understand why the common law test, the real essential test of a confession, got so out of whack, here with this Federal procedure. Is it criminal procedure, that an arbitrary determination of a number of hours should be suffi- cient to rule out the confession so long as the confession is free and voluntary. I would say yes, 14 hours, 16 hours or something like that, where there are circumstances showing that a delay went to the essential elements of the confession, but I don't see one and a half hours or 30 minutes. This doesn't make very much sense. Mr. KATZENBAOH. That certainly doesn't make very much sense in terms of voluntariness and I think that is why the courts did not put that on the basis of voluntariness. What the court is suggesting is that there are other rights in addition to the right to be protected against a coerced confession. There is, for example, the right to consult counsel, the right to know what it is you are charged with which is what you get on the arraignment and prior to that that may be just a little bit vague as to just exactly what it is you are charged with. Those would be primary other rights in addition, I suppose to the voluntariness not to be tricked into a confession, not to be coerced, not to be misled by the police in terms of just get it off your chest and nothing serious will happen to you, or something of that kind. I am not suggesting that does occur. I am only suggesting that absent a record of what does occur, there is always the possibility that, one, that it could occur and, secondly, that the defendant would claim that it has occurred. But it is not really simply a test of voluntariness, and I don't think the court of appeals has any idea that these con- fessions are not voluntary in the usual sense of the word. In fact, in the 25-minute business, the theory I think of the judge who took that view is that since you then had all the evidence that you needed to a.rrulgn4h~~erson, it was improper to ask him any questions. PAGENO="0452" 446 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Senator MoINmm. One final question. Taking into account all the crimes that are committed in this district, do both of you feel that a substantial number of criminals evade punishment because of this? Mr. KATZENBACH. I don't know of any facts that could be cited that would lead to that conclusion. Senator MCINTYRE. I take it your answer means that you do not believe there are a substantial number of criminals that evade punish- inent because of the Mallory rule? Mr. KATZENBACH. I phrased it as I did, Senator, because people whose judgment I respect do take the view that there are.. I simply don't know of any way of establishing that by- Senator MCINTYRE. There are no statistics on it? Mr. KATZENBACH (continuing). By factual evidence that would lead anybody to that conclusion. Senator MCiNTYRE. Of course, the question is directed to you more as an opinion as an expert. May I ask this same question of Mr. Acheson? Mr. AdilEsoN. Senator, let me answer by indicating the disposition of some of the defendants whose cases are cited here in Mr. Katzen- bach's statement, because I think they are typical of the way the nor- mal Mallory reversal by the court of appeals is ultimately disposed of. Elsie Jones pleaded guilty, after the reversal of her conviction, to manslaughter, and received a sentence of imprisonment from 1 to 4 years commencing January 11 of this year. Senator MCINTYRE. Just a minute. I don't know what she was charged with here. What was she charged with in the first instance? Mr. ACHF~sON. She was charged with murder. Senator MCINTYRE. Well, that is not bad, reduction from murder to manslaughter. All right. Mr. ACTIESON. Charles Coleman entered a plea of guilty to unau- thorized use of a vehicle, and was sentenced in May to imprisonment for a period of 8 months to 2 years. As I recall, he was charged orig- inally with robbery, and murder. Senator MCINTYRE. And he pleaded guilty to what? Mr. ACnESON. Pleaded guilty to unauthorized use of a vehicle. Tony Coleman, of course-now his conviction was reversed on six counts but affirmed on one, and the six counts that were reversed were dismissed. By the. time the appellate reversal came down, he had al- ready served the sentence on the one count that was affirmed, so that he is now out of custody. It is the practice, of course, of this court, as you may know, Senator, this District court, in most cases to enter judgment of sentence on multiple counts which are concurrent sentences rather than consecu- tive. Now there is another case pending which I wouldn't want to com- ment on in detail now, the Killough case. I don't know how that will end. But I would say, to generalize, that a number of defendants have escaped the punishment that they deserved, certainly the punish- ment which was sought to be imposed upon them, because of the Mal- lory case. I think very few were turned loose in the street as a result of that decision. Senator Mdfrrrim. Then I take it your answer is that because of the Malloi-~y rule there is not a substantial number of criminals who PAGENO="0453" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 447 evade punishment. They may in some instances evade the punish- ment they deserve. They usually end up with some. Mr. ACHESON. That is correct. Senator MCINTYRE. Thank you. The CHAIRMAN. The Senator from Colorado. Senator DoMINIcK. I would just like to ask again as a couple of experts in this situation here, your opinion on the following. I have a basic feeling that the more legislative standards you put into the law which must be complied with prior to a conviction, the more shil- Ielaghs you give to a defendant attorney to say that they haven't been lived up to. What would be your feeling on the constitutionality of the law if you just put in 1 and 2 of your recommendations as opposed to all four of them? Mr. KATZENBACII. I would think that would go a long way toward solving the constitutional difficulties. At the same time something would have to be set to make sure that the present practice was not continued. I take it you assume this would be with a modification of rule 5(a). Senator DOMINICK. Yes. Mr. KATZENBACH. I think that would go a long way toward doing it. I would think that as far as requirement four there was concerned, that I doubt-I don't know the cost of it but I would doubt-that apart from the cost that would be a very burdensome requirement on the police. Mr. ACHESON. That is correct. Mr. KATZENBACH. It would seem to me, one that they might be quite willing to undergo. I believe that the conduct of the police, I am sure here in the District of Columbia, and I think in many other cities, is professional, exemplary professional conduct. I think one of the problems is that there has been enough talk about rubber hoses and clubs and improper police practices that there is sort of a mythology about this that I think influences the opinions of at least some judges that are not really familiar with what actually goes on. I would think that requirements such as we have suggested, that that would be one way of showing the general public and the courts that what is done is done in a decent professional way. Senator DOMINICK. Now one more question, and then I think I am through. On the top of page 6 you talk about the dissents of the four Justices in the two Supreme Court cases which you mentioned, Groban and Anonyrnou~ v. Baker. Is it your feeling that if the proposed change in rule 5(a) is made without at least 1 and 2, that the dissents of the four Justices might become the majority opinion of the Court? Mr. KATZENBACH. Those four Justices are still on the Court. It needs one more to make it the decision. Senator DOMINICK. But I am in effect asking you whether you think that this would- Mr. KATZENBACH. I think it is quite possible, Senator, yes. Senator DOMINICK. To shove over a couple more to their side. Mr. KATZENBACH. That is right. I think that it might, and that I suppose would guarantee written into the law that the risk of that kind of holding is unconstitutional along with an opinion that really put them in as a constitutional matter would be minimized. Senator DOMINICK. Thank you. PAGENO="0454" 448 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. Very much in line with the questions which Sen- ator Dominick was just asking you about the first two safeguards, it also occurred to me that if we built in all four of the safeguards which you suggest, you might be hamstringing the police more than you are helping them. Would you have any views on that, Mr. Acheson? I understood Mr. Katzenbach to say if you put in the first two safeguards in his opinion it would be constitutional. Do I correctly understand you? Mr. .KATZENBACH. I think it would help a great deal in that respect, yes. The CHAIRMAN. It would help a great deal. If you put all four in, are your standards going to be so rigid and so fixed that it is ~ing to handcuff the police more than they claim they are handcuffed now by the Mallory decision, because this is their claim. It is just that simple. Mr. ACHESON. I would not think so, Mr. Chairman. The CHAIRMAN. You don't think so. Well, we are going to have the Chief of Police next, so we will get his views. Mr. KATZENBACH. Requirement No. 1 is pretty much the practice now. Requirement No. 3, as I indicated, is not really a terribly impor- tant factor in the normal case that involves 1 or 2 hours. I should not think requirements 2 or 4 would be terribly burdensome, but of course I don't speak for the Chief on that. The CHAIRMAN. I understand. He is the next witness, and we can solicit his views on that. Our staff has suggested questions that I would like to ask you. As you know, one is the former assistant U.S. attorney here in the District of Columbia with some 10 years of experience, and the other staff member is a. former assistant U.S. attorney in Maryland. These are some questions that they have suggested. Is it a fact that in a great number of criminal cases occurring in the District, the accused are not brought before a committing magistrate without unnecessary delay as defined in Mallory, but rather they are held in police custody for hours awaiting the convening of the court or the availability of the U.S. commissioner? Would you know, Mr. Acheson? Mr. Ac~sox. Well. I think the regular practice in night arrests where a confession is not an essential element of the case against the defendant, is to arrest. him, charge him, fingerprint him, photograph him, and then put him in the lockup for his appearance before the commissionerat 10 o'clock the following morning.. If he is arrested during court hours, he has his appearance usually very promptly. If he is arrested at night, it has always been thought legitimate and in full compliance with the provisions of the law to bring him before the magistrate when court opens in the. morning. Where a confession is an important element of the case, and it is thought important to protect that confession, he is normally arraigned before a magistrate at some nighttime arraignment. The magistrate is called out of bed frequently or away from dinner or whatever, at the request of the prosecutor. The question, if I may say, rather presents the same legal issue that we are talking about. The CHAIRMAN. I understand. PAGENO="0455" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 449 Mr. ACHESON. Is the defendant held with unnecessary delay? Well, if he is held for 2 hours, I would say no. Perhaps some judges might say yes. The CHAIRMAN. It seems to me the question also poses the addi- tional thought, if I understand you correctly, that if you tried to get the confession, then you follow the practice of taking him before a committing magistrate without unnecessary delay, but if you don't think you are going to get a confession, you follow a little different rule. So the poor defendant, in whose case you don't have to rely on a confession, spends a longer time in jail before he goes before the com- mitting magistrate. Is that a fair statement? Mr. ACHESON. Senator, I think everyone involved would be com- plying with the law if all defendants who are arrested at night were properly charged, locked up overnight, and presented at 10 o'clock in the morning. Now if more speedy presentment is accomplished in the case of some defendants, I should not think it was a prejudice to the rights of the others. The CHAIRMAN. Fine. Thank you. It was suggested by Assistant Dean Pye, of Georgetown Univer- sity Law School, who appeared here several days ago, he informed the committee that the American Law Institute was undertaking a 2-year study of arrests, detention, and search and seizure problems. In your judgment should actions on titles 1 and 3 be delayed pend- ing a study of the American Law Institute's findings in this respect? Mr. ACHESON. Would you like Mr. Katzenbach to answer that? Mr. KATZENBACH. I have the greatest respect for the American Law Institute, but I don't see any reason why Congress should delay action that it feels is necessary pending study by that body. You can always consider their recommendations subsequently, and amend any laws in the light of anything that they come up with. The problem here in the District of Columbia has been urged by those responsible for law enforcement that it be an urgent one, and I think they state that with good faith and conviction, and I would not feel that there was any reason to await a study by an outside body of a more general problem. They are concerned after all with this problem in all of the States, and I am sure, as you are aware, Mr. Chairman, the State courts and the practices in the States of the United States are not that of the Dis- trict of Columbia, because there is no Mallory rule applicable in the State court. proceedings, that being a rule of evidence in Federal cases. The CHAIRMAN. I recognize that this is a Federal rule. However, we heard testimony from various chiefs of police throughout the country that the Mallory nile was having its effect even upon State decisions. I think it has been indicated that the Mallory rule has now been cited in some 150 cases, some such number that have occurred in various places both in Federal courts and State court levels recogniz- ing it is not binding on a State court, but they are moving more and more toward the Mallory rule. Mr. KATZENBAOH. I have no doubt that would be true, Mr. Chair- man, but I think probably Chief Murray would be happy to change places with virtually any other police chief with respect to the inter- pretation of the Mallory rule. PAGENO="0456" 450 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. Well, I have heard him many times. I would not be surprised that this is a correct conclusion. Mr. ACHESON. Mr. Chairman, it might not be inappropriate to just flag for the record, just one example of a State having an almost duplicate of rule 5(a), and the question arose iii a case in which a con- fession was obtained whether a ruling like the Mallory ruling should be employed by the State court to enforce that rule of speedy present- ment and exclude the confession in the case. The Supreme Court of Oregon held that they would not follow such a rule in State v. Shipley, 375 Pacific 2d 237. It is an interest- ing discussion of a problem that perhaps illustrates the division of philosophy between some of the State courts and the Federal courts. The CHAIRMAN. The Supreme Court of Oregon said they would not follow the Mallory rule. Mr. ACHESON. That is correct, even though they did have a cOunter- part of rule 5(a) in the State code. The CHAIRMAN. I understand. May I ask just one final question. During some of the earlier testimony it was stated by one of the wit- nesses that the U.S. attorney's office has done a wonderful job, but that the number of assistants were inadequate and that more assist- ants were needed to carry out the day-to-day assignments. This should probably be directed to you, Mr. Acheson. Would you care to comment upon that particular statement? I think all attorneys, the U.S. attorneys and assistant U.S.' attorneys say they are overworked, but do you have a sufficient number of U.S~ attorneys and assistants to handle the job in the District of Columbia? Mr. ACHESON. In a job that is as hectic as mine perhaps the best distinction one can hope for is to he one' public official that did not ask for a larger office.. We try to take care of our manpower prob- lems within the Department on a when, as, and if needed basis, and I think at the present time we are staffed adequately, even though it does involve a heavy pressure on the assistants. The CHAIRMAN. You think you are adequately staffed? Mr. AcHEsoN. Yes. They work hard, perhaps too hard, but I would not want to say that they can't do the job. The CHAIRMAN. One of my own personal observations in the field of the U.S. attorneys and their assistants is that they are not paid a sufficient amount of money, and this is nationwide. I am not con- fining this to the District of Columbia. My experience has been that they start an assistant U.S. attorney out at, I think this is correct, $6,000 or $6,500 now I think, and then after a year they are raised to $7,500. This will attract a young attorney who wants the experience for about 2 years. As soon as he gets this experience to where he is helpful, he moves on into pri- vate practice. Of `course, I think this is a nationwide indictment of the system. It should be moved up' so that you can have the `best possible legal talent in the various US. attorneys' offices. Mr. Katzenba.ch might like to comment on that. Mr. KATZENBAOH. I agree with you, Senator. I think that we have improved in the last 21/i years the situation with respect to the pay of assistant U.S. attorneys, and, of course, have had some improve- ment within the Dep'irtment of Justice `is well PAGENO="0457" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 451 We have a problem in the U.S. attorney's office and to a degree, quite, a considerable `degree, within the Department of Justice itself where it is extremely hard under the present circumstances to hold the really' able young attorneys and to keep them as career attorneys. I . believe ~that we should look for career attorneys equally in the U.S~ attorneys' `offices and in the Department of Justice. I think to operate efficiently, particularly in the larger offices, you do need a cadre, of experience that U.S. attorneys who would maintain that position on a permanent basis, irrespective of changes in administration. It has to'o often been the practice in the past in the U.S. attorney's office for there to be virtually a complete turnover of personnel with the incoming U.S. attorney. Not always by any means is it his choice. I think in the bigger offices such as that of Mr. Acheson's, the southern district of New York, or any of the other big offices, a new U.S. attorney coming in, whether he be a Republican or a Democrat, would just ` be delighted to keep any experienced personnel that he has, irrespective of their political affiliations. The CHAIRMAN. Thank you very much. You have been most help- ful and most patient in answering our questions. Mr. KATZENBAOH. Thank you. (The prepared statement submitted by Mr. Acheson follows:) STATEMENT OF DAVID C. ACHESON, U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA My prepared remarks are addressed to title III of HR. 7525, since the Depart- ment of Justice has, through Mr. Katzenbach, expressed its views and my own on title,,I. Title III contains a section providing for detention of suspects and a section providing for the detention of material witnesses. The former, section 301, is based upon the Uniform Arrest Act. As Mr. Katzenbach's letter of September 13 stated, those provisions purport to authorize arrests without probable cause, contrary to the fourth amendment. The provi- sion in subsection (c) to the effect that detention is not to be an arest would not control in any analysis of whether the fourth amendment barred such detention. Section 301 raises difficult questions of denial of fifth and sixth amendment rights, since it appears to deny access to counsel during the 6-hour detention, and deprives an arrested person of bail, communication, habeas corpus, and im- pairs his privilege of silence during the period of detention. For these reasons the Department of Justice opposes section 301. Section 302 in our judgment requires amendment, but has a useful purpose. Properly amended, it does not appear to raise insuperable constitutional prob- lems. We believe amendment is necessary for the following purposes: 1. To eliminate 6-hour detention and provide for presentment to a magistrate without unnecessary delay. `2. To require the magistrate to determine whether the witness is material and whether there is a reasonable probability he will be unavailable. 3.' `To provide discretionary authority in the magistrate to release a witness on personal bond if he is financially unable to post bond, or modify bail. 4. To provide for depositions of witnesses who are committed, in the fashion provided by'rule 15(a), of the Federal Rules Criminal Procedure. `5. To provide that the witness should have the right to consult counsel and should be advised of this right. We have developed these and other proposed amendments at greater length in *Mr. Katzenbach's letter of September 13, and we suggest that the committee consider S. 1148 as a preferable starting point for a satisfactory material witness bill. I have also been asked to present the views on title III of the Council on Law Enforcement in the District of Columbia of which I am vice chairman. The council opposes the enactment of section 301 of title III, since a majority of the members believe that this section is merely a reinstitution of arrests for investi PAGENO="0458" 452 AMENDMENTS TO CRIMINAL STATUTES OF D.C. gation, inconsistent with the provisions of the fourth amendment to the Con- stitution of the United States. The council supports the enactment of section 302, provided it is amended in the fashion recommended by the Department of Justice and the Commissioners for the District of Columbia. The CHAIRMAN. Our next witness will be Police Chief Murray. STATEMENT OF ROBERT V. MURRAY, CHIEF, DISTRICT OP COLUM- BIA METROPOLITAN POLICE DEPARTMENT; ACCOMPANIED BY JOHN B. LAYTON, DEPUTY CHIEF OF POLICE, CHIEF OF DETEC- TIVES; AND JERRY V. WILSON, CAPTAIN, BUDGET OFFICER Mr. Mmli~Y. I have with me Deputy Chief Layton and Capt. Jerry Wilson. The CHAIRMAN. We are very happy to have both witnesses accom- panying you. Mr. Mijiut~y. I have a statement which I would like to put in the record. The CHAIRMAN. Without objection you may incorporate your full statement in the record at this point. You may highlight it in any manner. (The statement referred to follows:) STATEMENT OF ROBERT V. Muim~y, CHIEF OF POLICE Mr. Chairman, titles I and III of H.R. 7525 are designed to fulfill the three paramount needs for legislation to improve law enforcement in this city. Alto- gether, these two titles would provide for- 1. Clarification of the intent of Congress as expressed in rule 5(a) of the Federal Rules of Criminal Procedure; 2. Legislation in the nature of the Uniform Arrest Act, as an alternative to the now prohibited practice of investigative arrest, to empower police officers to detain probable felons for questioning; and 3. An effective statute authorizing the detention of a material witness to the commission of a felony. Mr. Chairman, from the standpoint of police operations, these~ three items are the outstanding legislative needs of this city; I would rank them by impor- tance in the order I have just iisted them. As I have frequently reported to the Congress, under the hampering effect of the Mallory ruling and corollary decisions, our rate of offense clearance has de- creased and the related effectiveness of swift arrest and punishment and of re- moving criminals from the streets has been diminished. I have previously furnished to this committee a table with an explanation showing the readily apparent relationship of the Mallory decision to the clearance of part I felonies in the District of Columbia; for the convenience of members of the committee, I have furnished additional copies of that material for their examination today. This table reflects the fact that, for the fiscal year 1963, our rate of clearance of part I felonies stood at 44.6 percent, the lowest rate for any of the past 12 years. Second only to the need for legislation to broaden police authority and police procedures under rule 5(a) is the need for a statute to empower police officers of this city to detain probable felons for questioning. As this com- mittee is aware, since March 15, 1963, arrests for investigation by the Metro- politan Police force have been prohibited by order of the Board of Com- missioners. I have furnished today, for the information of the committee, a table ~com- paring our crime clearance rates, by months, for the calendar years 1960, 1961, 1962, and 1903. These data clearly reflect the adverse effect which changed policies on arrest for investigation have had on the clearance of crime in this city. For the calendar year 1960, before the Commissioners' Committee began its study of arrests for investigation, this department cleared 59 percent of the serious (crime index) offenses reported in this city. In March 1961, when the study by the Committee began, the rate of crime clear- PAGENO="0459" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 453 *ance immediately declined, and for that calendar year our rate of clearance for serious offenses dropped to 51 percent. This decline in rate of clearance continued through the calendar year 1962, and for that first full calendar year after the examination of investigative policies was begun, our clearance of serious offenses dropped to 45 percent. Comparison of data for the first 9 months of 1962 and 1963 will clearly show you that our clearance rate for this calendar year is likely to he even lower. On the subject of detention of witnesses, in its printed report, the Commis- sioners' Committee on Police Arrests for Investigation pointed out that the present statute governing detention of material witnesses in the District of Columbia is so cumbersome that it is of no practical value to the police and is almost never used. The Committee recommended reexamination and pos- sible improvement of the statute and regulations on that subject. I am in full accord with that particular recommendation of the Committee. I want to emphasize to you, as I did to the House District Committee, that any material witness legislation, to be effective for the police, must, as the Commissioners' Committee on Police Arrests for Investigation put it, "Play its proper function in insuring that persons who have knowledge of a crime will not disappear before a trial of the offense can be had." To serve that function, the statute must be applicable to material witnesses before, as well as after, formal initiation of proceedings by the criminal courts. Section 302 of H.R. 7525 does fulfill that purpose. Mr. Chairman, opponents of legislation to negate the Mallory rule and of legislation in the nature of the Uniform Arrest Act have put forth several arguments in support of their opposition. Four principal arguments are, first, that the current rules governing detention of suspects by the police prevent police brutality; second, that increased efficiency of the police force would obviate the need for legislation to overcome the Mallory ruling; third, that increased reliance by the police on scientific investigative techniques would overcome the problems imposed by prohibitions against questioning of a suspect, and fourth, that crime rates and crime clearance rates of the District are really not too bad in comparison with other cities and that, therefore, legisla- tion regarding Mallory and the Uniform Arrest Act is not actually needed. The premise regarding police brutality is an obviously fallacious one. First of all, police brutality bad nothing whatever to do with the Mallory ruling; not the slightest suggestion was made that Mallory was physically abused by the police. I would also add a doubt that any citizen familiar with our operations believes that this department employs so-called third-degree methods. And certainly, even if police brutality in the questioning nf criminals were n problem in this jurisdiction, society should be able to find many alterna- tive solutions to that problem which would not, as the Mallory ruling has done, shackle the hands of the police in the investigation of crime. On the subject of police efficiency, I think I can proudly state that, except to the extent we are rendered ineffective by restrictions such as the Mallory rule, inefficient police operations are not adding measurably to the crime prob- lems of this city. We have made great strides in improving our operations during the past decade, and I believe that the effects of our efforts are reflected by the reduction of crime in this city from 1952 through 1957, when we dropped from 3d place in serious offenses per thousand population to 12th place among the 16 cities in our population group. Like any organization, large or small, there is always room for improvement in our department, and we are constantly working toward changes which give promise of better operations, but I assure you that there are no changes or improvements within logic or reason which can effectively offset the encumbrances imposed upon us by the Mallory ruling and corollary decisions. On the subject of increased use of scientific detection techniques, r can assure this committee that we are relying on those techniques to the fullest extent possible. But too many of our serious crimes are committed at locations or under circumstances where scientific crime detection techniques are not appli- cable. For example, I might cite the case of the so-called butcher knife bandit who robbed some 50 business establishments in this city over a period of almost 3 years, using a butcher knife to threaten his victims. True, he. was finally ap- prehended when he carelessly left a flngerprint~ on one of his discarded weapons, but only after he had committed about 50 robberies with the resulting fear, loss, and danger to his victims. PAGENO="0460" 454 AMENDMENTS TO. CRThHNAL STATUTES OF D.C. Another case which I believe will illustrate our problems under the Mallory. ruling, involves one of these misguided youths who has developed into a. preda- tory criminal in the midst of society. This particular individual was born about 26 years ago. In 1954, at age 16, he was arrested and charged with 15 housebreakings into private homes in the Northwest area; he admitted his guilt in these cases and was committed to the National Training School for Boys for a period of nearly 4 years. In 196.S, shortly after his release from custody, he was again arrested by this department, this time on a charge of housebreaking with robbery by force and violence. I would like to read, for the consideration of this committee, the statement of facts in this case: The complainant, a 70-year-old woman, reported that at about 3 o'clock in the afternoon a colored man knocked on her door and asked if the elderly man who had just left the house lived there. He stated that the elderly man had just been hurt down on the corner. As she went from the door to get her coat, he asked for a glass of water, which she gave him. He drank the water. and he then grabbed her around the neck, choked her, and beat her in the face and removed a $10 bill from her pocket and about $20 from her purse. The then 20-year-old criminal admitted his guilt in this case, and was indicted by the grand jury on this case and three other cases involving housebreakings, robberies, and assaults. In February 1959, he was sentenced to serve 18 to 54 months. Three and one-half years later, in late August 1962, this individual was re- leased from prison. On September 9. 1962, he committed another housebreaking and robbery, follow-lag his adopted modus operandi. In this case the corn- plainant, an 82-year-old woman, reported that at about 4 o'clock in the after- noon she answered a knock on her door. A Negro man asked her if . she knew a man, whose name he mentioned, but the complainant could not remember it. The man then pushed the complainant against the wall and stated, `All I want is your money, don't get excited, I'm not going to hurt you." The criminal took a box holding five church envelopes, each containing about $3; and then went into the living room where he took a black leather identification folder containing papers, and a change purse containing about $1. In this particular case, we were fortunate enough to find and identify a palm print obtained at the scene of the crime. The subject was arrested and charged, even though he denied the offense. In October 1962 he was indicted by the grand jury on the charge, but, because of the subsequent death of the complainant from natural causes, the indictment was dismissed, on motion of the Government, in January 1963. By May 1963, he had resumed his criminal activities. On May 13, 1963, we received a report of a housebreaking and robbery offense against a 71-year-old woman; on May 20, 1963, we received a similar report involving a 63-year-old woman, on May 29, 1963. we received a report of assault (with apparent intent te rob) from a 67-year-old female complainant. The modus operandi and general physical description in these cases clearly indicated to us that the previously described criminal could be responsible for these housebreakings, assaults, and robberies. But we were unable to find fingerprints or other scientific evidence at the scenes of these crimes. I might interject that our "uneducated" subject had learned well the crime lesson of his arrest on fingerprint evidence; one of this new victims reported his wearing gloves (in May) and another his wiping his fingerprints from all articles he handled. The photograph of this suspect was shown to each victim and to whatever witnesses were available in the several cases, and the witness and one victim seemed to think that he was the assailant involved, but none could make a positive identification. These several tentative identifications, in addi- tion to the modus operandi, seemed to us to provide probable cause for arrest of this criminal, and we discussed with an assistant U.S. attorney the issuance of a warrant for his arrest: however, because not one of the witnesses was able to make a positive identification which would be adequate for a conviction, our request for a warrant was refused. As we were, therefore, unable to issue a lookout to the force authorizing the arrest of this individual, we followed what we considered to be the next best course open to us and issued to the force a confidential memorandum outlining his suspected activities and his description, and a directive that, if he or any other suspicious subject was observed around any apartment building occupied l)y elderly women, he be kept under surveillance and that the Detective Division be notified. PAGENO="0461" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 455 On June 11, 1963, this criminal struck again, this time breaking into the home of a 72-year-old woman, choking her, and robbing her of $17. Again, on June 29, 1963, over here on Capitol Hill, he forced his way into the apartment of a 59-year-old woman and robbed her of $137. While he was in the- apartment, two visitors to her apartment knocked on the door, and he 1eft~ through the frontdoor, passing the visitors on his way out. Fortunately, these witnesses were able to identify the criminal from his pho-- tograph, and a warrant for his arrest was then issued by the U.S. Commissioner at about 10 a.m. on July 2, 1963. A lookout was sent to all units of the Depart- ment, and soon afterward this criminal, who had been preying on the elderly women of this community for nearly 2 full months, and who had committed at least two serious offenses after we had come to the conclusion that he was guilty of the previous three offenses, was in custody of this Department. I might add that, of the five victims, only the victim and the witnesses in the last case were able to positively identify the accused, but stating, "You got me good; I might just as well get all of them straightened out," he confessed to all five of the crimes. He was subsequently indicted and recently was sentenced to imprisonment for from 3 to 9 years. Mr. Chairman, I don't want to belabor the point or waste the time of this com- mittee by pursuing too long a single line of testimony. But I think these cases, and particularly this last criminal I have described, show what the police of the community are up against. I submit that at least after the commission of the first three of these cases, there was, from the inodus operandi and general physical description alone, adequate evidence to create in the mind of a reason- able and prudent man probable cause for the arrest and questioning of this known criminal. But, just as certainly, without a statement from the defendant, there was not sufficient evidence to arraign and convict him. Mr. Chairman, I submit that the last two victims of this criminal enjoyed in theory only their right to be secure in their persons and houses. Mr. Chairman, I can honestly testify to this committee that, even today, we have walking in the streets of this city, criminals who, we have ample reason to believe, have committed series of crimes, but who we cannot arrest, because they have not been careless enough to leave fingerprints behind, and who will con- tinue in their criminal careers until they become careless with their fingerprints or until their criminal act is witnessed by someone who can testify against them. Mr. Chairman, it is true that, in terms of current nationwide crime rates, the District compares favorably. For the period January through June 1963, among the 16 cities in our class of 500,000 to 1 million population, the District ranked 8th in total serious offenses, 6th in murder, 9th in rape, 2d in robbery, 1st in aggravated assault, 7th in housebreaking, 12th in larceny, and 9th in auto theft. It is also true that overall crime in the District of Columbia is now about aver- age in comparison with other large American cities. On the other hand, it is important to remember that our crime rate has in- creased by 56 percent since 1957 to an alitime high as of last month; that our ranking among cities in our population group has increased from 12th place in 1957 to 8th place for this year, and that the rate of increase of our crimes since 1957 has steadily outstripped, that of other American cities and is still rising sharply. I would ask this committee and the opponents of this legislation, "Must we wait until the *District of Columbia is first in crime before providing the metropolitan policeman with statutory tools already possessed by other police officers throughout the United States?" Mr. Chairman, some time ago I wrote to most of the major cities throughout the Nation to inquire regarding the rules of arrest under which they operate. I have brought with me today copies of the replies from those cities which I will make available for study by this committee. I can assure this committee that none of those cities is hampered in crime investigations by a restriction even nearly approaching the stringency of the Mallory rule. Mr. Chairman, I' have been repeatedly advised by legal experts that no con- stitutional question is involved in the Mallory ruling. Its proponents claim that it is needed to protect the guilty from the police. Mr. Chairman, I submit that the innocent also deserve protection from the predatory and that, if more pro- tection of the criminal is needed than existed in 1957, which I. doubt, then some other device, which `strikes a better balance between the rights of the criminal and the rights of the law-abiding citizen, should be found. PAGENO="0462" 456 AMENDMENTS TO CRIMINAL STATUTES OF D.C. One of the opponents to a change of the Mallory rule, in his appearance before the House District Committee, called upon a quotation from Professor Wigmore to support the Mallory rule. He quoted Wigmore as saying: "Any system of admission which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. the inclination develops to rely mainly on such evidence and to be satisfied with an incomplete investigation of the other sources." Actually, that quotation did not deal specifically with exclusionary rules such as Mallory, but Professor Wigmore did elsewhere write forcefully on the subject of such exclusions. In Wigmore on Evidence, third edition, section 851, he discussed at length the need for questioning of criminals under arrest and also referwred to the potential abuses which can conceivably occur as an outgrowth of such questioning. As an alternative, he suggested that private questioning of suspects under arrest might be done by a prosecutor or a magis- trate, an alternative I do not now specifically propose, but one which I acknowl- edge would merit consideration. My point at this time, in referring to that writing, is to quote his concluding paragraph. Professor Wigmore wrote: "* * * it follows that the attempts, legislative and judicial, to exclude entirely confessions obtained by questioning of persons arrested and in seclusion repre- sent simply a misguided solution of the problem." Mr. Chairman, I personally favor the present language of title I and title III of H.R. 7525 as practical provisions which will provide this Department with authority to cope with our current crime problems. I realize, of course, that alternative provisions are likely to be proposed to the Congress and that some of those will be intended to alleviate our problems in these areas while, at the same time, possibly meeting some major objections of the opponents to the leg- islation in its present form. I recognize, therefore, that it may be necessary to consider some compromise provisions, which do not impair excessively the effectiveness of these proposals, in order to obtain early legislative relief in some form. Because of the dire need for some such relief, I urge the Congress to act on these problems as quickly as possible. Mr. MURRAY. Mr. Chairman, title I and title III of H.R. 7525 are designed to fulfill the three paramount needs for legislation to im- prove law enforcement in this city. Altogether, these two titles would provide for- 1. Clarification of the intent of Congress as expressed in rule 5(a) of the Federal Rules of Criminal Procedure; 2. Legislation in the nature of the Uniform Arrest Act, as an alternative to the now prohibited practice of investigative arrest, to empower police officers to detain probable felons for question- ing; and 3. An effective statute authorizing the detention of a material witness to the commission of a felony. Mr. Chairman, from the standpoint of police operations, these three items are the outstanding legislative needs of this city; I would rank them by importance in the order I have just listed them. As I have frequently reported to the Congress, under the hamper- ing effect of the Mallory ruling and corollary decisions, our rate of ~offense clearance has decreased and the related effectiveness of swift ~arrest and punishment and of removing criminals from the streets has been diminished. I have previously furnished to this commit- ~tee a table with an explanation showing the readily apparent rela- tionship of the Mallory decision to the clearance of part I felonies in the District of Columbia; for the convenience of members of the com- mittee, I have furnished additional copies of that material for their examination today. This table reflects the fact that, for the fiscal year 1963, our rate of clearance of part I felonies stood at 44.6 percent, the lowest rate for any of the past 12 years. PAGENO="0463" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 457 Second only to the need for legislation to broaden police authority and police procedures under rule 5(a) is the need for a statut.e to em- power police officers of this city to detain probable felons for question- ing. As this committee is aware, since March 15, 1963, arrests for investigation by the Metropolitan Police force have been prohibited by order of the Board of Commissioners. I have furnished today, for the information of the committee, a table comparing our crime clearance rates, by months, for the calendar years 1960, 1961, 1962, and 1963. These data clearly reflect the adverse effect which changed policies on arrest for investigation have had on the clearance of crime in this city. For the calendar year 1960, be- fore the Commissioners' committee began its study of arrests for in- vestigation, this department cleared 59 percent of the serious (crime in- dex) offenses reported in this city. In March 1961, when the study by the committee began, the rate of crime clearance immediately declined, and for that calendar year our rate of clearance for serious offenses dropped to 51 percent. This decline in rate of clearance continued through the calendar year 1962, and for that first full calendar year after the examination of investigative policies was begun, our clear- ance of serious offenses dropped to 45 percent. Comparison of data for the first 9 months of 1962 and 1963 will clearly show you that our clearance rate for this calendar year is likely to be even lower. On the subject of detention of witnesses, in its printed report, the Commissioners' Committee on Police arrests for Investigation pointed out that the present statute governing detention of material witnesses in the District of Columbia is so cumbersome that it is of no practical value to the police and is almost never used. The committee recom- mended reexamination and possible improvement of the statute and regulations on that subject. I am in full accord with that particular recommendation of the committee. I want to emphasize to you, as I did to the House District Com- mittee, that any material witness legislation, to be effective for the police, must, as the Commissioners' Committee on Police Arrests for Investigation put it- play its proper function in insuring that persons who have knowledge of a crime will not disappear before a trial of the offense can be had. To serve that function, the statute must be applicable to material witnesses before, as well as after, formal initiation of proceedings by the criminal courts. Section 302 of H.R. 7525 does fulfill that purpose. Mr. Chairman, opponents of legislation to negate the Mallory rule and of legislation to the nature of the Uniform Arrest Act have put forth several arguments in support of their opposition. Four principle arguments are, first, that the current rules governing deten- tion of suspects by the police prevent police brutality; second, that increased efficiency of the police force would obviate the need for legislation to overcome the Mallory ruling; third, that increased re- liance by the police on scientific investigative techniques would over- come the problems imposed by prohibitions against questioning of a suspect; and fourth, that crime rates and crime clearance rates of the District are really not too bad in comparison with other cities and that, therefore, legislation regarding Mallory and the Uniform Arrest Act is not actually needed. PAGENO="0464" 458 i~rs TO CRIMINAL STATUTES OF D.C. The premise regarding police brutality is an obviously fallacious one. First of all, police brutality had nothing whatever to do with the Mallory ruling; not the slightest suggestion was made that Mallory was physically abused by the police. I would also add a doubt that any citizen familiar with our operations believes that this Department employs so-called third degree methods. And certainly, even if police brutality in the questioning of criminals were a problem in this juris- diction, society should be able to find many alternative solutions to that problem which would not, as the Mallory ruling has done, shackle the hands of the police in the investigation of crime. On the subject of police efficiency, I think I can proudly state that, except to the extent we are rendered ineffective by restrictions such as the Mallory rule, inefficient police operations are not adding meas- urably to the crime problems of this city. We have made great strides in improving our operations during the past decade, and I believe that the effects of our efforts are reflected by the reduction of crime in this city from 1952 through 1957, when we dropped from 3d place in serious offenses per thousand population to 12th place among the 16 cities in our population group. Like any organization, large or small, there is always room for improvement in our Depart- ment, and we are constantly working toward changes which give promise of better operations, but I assure you that there are no changes or improvements within logic or reason which can effectively offset the encumbrances imposed upon us by the Mallory ruling and corollary decisions. On the subject of increased use of scientific detection techniques, I can assure this committee that we are relying on those techniques to the fullest extent possible. But too many of our serious crimes are committed at locations or under circumstances where scientific crime detection techniques are not applicable. For example, I might cite the case of the so-called butcher knife bandit who robbed some 50 business establishments in this city over a period of almost 3 years, using a butcher knife to threaten his victims. True, he was finally apprehended when he carelessly left a fingerprint on one of his discarded weapons, but only after he had committed about 50 robberies. with the resulting fear, loss, and danger to his victims. Another case which I believe will illustrate our problems under the Mallory ruling, involves one of these misguided youths who has de- veloped into a predatory criminal in the midst of society. This particular individual was born about 26 years ago... In 1954, at age 16, he was arrested and charged with 15 housebreakings into private homes in the northwest area; he admitted his guilt in these cases and was committed to the National Training School for Boys for a period of nearly 4 years. In 1958, shortly after his release from custody, he was again arrested by this Department, this time on a charge of housebreaking with robbery by force and violence. I would like to read, for the consid- eration of this committee. the statement of facts in this case: . The complainant., a 70-year-old woman, reported that at about 3 o'clock in the afternoon a colored man knocked on her door and. asked if the elderly man who had just left the house. lived there: He stated that the elderly man had just been hurt down on the corner. As she went from the door to get her coat, he asked for a. glass of water. PAGENO="0465" AMENDMENTS TO CRIMINAL STATUTES OF~~D.C. 459 which she gave him. He drank the water, and he then grabbed her around the neck, choked her, and beat her in the face and removed a $10 bill from her pocket and about $20 from her purse. The then 20-year-old criminal admitted his guilt in this case, and was indicted by the grand jury on this case and three other cases involving housebreakings, robberies, and assaults. In February 1959, he was sentenced to serve 18 to 54 months. Three and one-half years later, in late August 1962, this individual was released from prison. On September 9, 1962, he committed another housebreaking and robbery, following his adopted modus operandi. In this case the complainant, an 82-year-old woman, re- ported that about 4 o'clock in the afternoon she answered a knock on her door. A Negro man asked her if she knew a man, whose name he mentioned, but the complainant could not remember it. The man then pushed the complainant against the wall and stated "all I want is your money, don't get excited, I'm not going to hurt you." The crimi- nal took a box holding five church envelopes, each containing about $3; and then went into the living room where he took a black leather identification folder containing papers, and a change purse containing about $1. In this particular case, we were fortunate enough to find and iden- tify a palm print obtained at the scene of the crime. The subject was arrested and charged, even though he denied the offense. In October 1962 he was indicted by the grand jury on the charge, but, because of the subsequent death of the complainant from natural causes, the indictment was dismissed, on motion of the government, in January 1963. By May 1963, he had resumed his criminal activities. On May 13, 1963, we received a report of a housebreaking and robbery offense against a 71-year-old woman; on May 20, 1963, we received a similar report involving a 63-year-old woman; on May 29, 1963 we received a report of assault (with apparent intent to rob) from a 67-year-old female complainant. The modus operandi and general physical description in these cases clearly indicated to us that the previously described criminal could be responsible for these housebreakings, assaults, and robberies. But we were unable to find fingerprints or other scientific evidence at the scenes of these crimes. I might interject that our "uneducated" sub- ject had learned well the crime lesson of his arrest on fingerprint evi- dence; one of his new victims reported his wearing gloves (in May) and another his wiping his fingerprints from all articles he handled. The photograph of this suspect was shown to each victim and to what- ever witnesses were available in the several cases, and the witnesses and one victim seemed to think that he was the assailant involved, but none could make a positive identification. These several tentative identifications, in addition to the modus operandi, seemed to us to provide probable cause for arrest of this criminal, and we discussed with an assistant U.S. attorney the issuance of a warrant for his arrest; however, because not one of the witnesses was able to make a positive identification which would be adequate for a conviction, our request for a warrant was refused. As we were, therefore, unable to issue a lookout to the force author- izing the arrest of this individual, we followed what we considered to be the next best course open to us and issued to the force a confidential 25-260----64-pt. i-30 PAGENO="0466" 460 AMENDMENTS TO CRIMINAL STATUTES OF D.C~ memorandum outlining his suspected activities and~ his description, and a directive that, if he or any other suspicious subject was observed around any apartment building occupied by elderly women, he be kept under surveillance and that the Detective Division be notified. On June 11, 1963, this criminal struck again, this time breaking into the home of a 72-year-old woman, choking her, and robbing her of $17. Again, on June 29, 1963, over here on Capitol Hill, he forced his way into the apartment of a 59-year-old woman and robbed her of $137. While he was in the apartment, two visitors to her apartment knocked on the door and he left, through the front door, passing the visitors on his way out. Fortunately, these witnesses were able to identify the criminal from his photograph, and a warrant for his arrest was then issued by the U.S. Commissioner at about 10 a.m. on July 2, 1963. A lookout was sent to all units of the Department, and soon afterward, this criminal, who had been preying on the elderly women of this community for nearly 2 full months, and who had committed at least two serious of- fense after we had come to the conclusion that he was guilty of the previous three offenses, was in custody of this Department. I might add that, of the five victims, only the victim and the wit- nesses in the last case were able to positively identify the accused, but, stating "you got me good, I might just as well get all of them straightened out," he confessed to all five of the crimes. He was subsequently indicted and recently was sentenced to im- prisonment for from 3 to 9 years. Mr. Chairman, I don't want to belabor the point or waste the time of this committee by pursuing too long a single line of testimony. But I think these cases, and particularly this last criminal I have described, show what the police of the community are up against. I submit that at least after the commission of the first three of these cases, there was, from the modus operandi and general physical de- scription alone, adequate evidence to create in the mind of a reason- able and prudent man probable cause for the arrest and questioninsz of this known criminal. But, just as certainly, without a statement from the defendant there was not sufficient evidence to arraign awl convict him. Mr. Chairman, I submit that the last two victims of this crimina~ enjoyed in theory only their right to be secure in their persons and houses. Mr. Chairman, I can honestly testify to this committee that, eve~n today, we have walking in the streets of this city criminals who w~ have reason-ample reason to believe have committed series of crimes. but who we cannot arrest because they have not been careless enough to leave fingerprints behind, and who will continue in their criminal careers until they become careless with their fingerprints or until their criminal act is witnessed by someone who can testify against them. Mr. Chairman, it is true that, in terms of current nationwide crime rates, the District compares favorably. For the period January through June 1963, among the 16 cities in our class of 500,000 to I million population, the District ranked 8th in total serious offenses; 6th in murder, 9th in rape, 2d in robbery, 1st in aggravated assault, PAGENO="0467" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 461. 7th in housebreaking, 12th in larceny, and 9th in auto theft. It is also true that overall crime in the District of Columbia is now about average in comparison with other large American cities. On the other hand, it is important to remember that our crime rate has increased by 56 percent since 1957 to an alltime high as of last month, that our ranking among cities in our population group has increased from 12th place in 1957 to 8th place for this year, and that the rate of increase of our crimes since 1957 has steadily outstripped that of other American cities and is still rising sharply. I would ask this committee and the opponents of this legislation: "Must we wait until the District of Columbia is first in crime before providing the Metropolitan policemen with statutory tools already possessed by other police officers throughout the United States?" Mr. Chairman, some time a~o I wrote to most of the major cities throughout the Nation to inquire regarding the rules of arrest under which they operate. I have brought with me today copies of the replies from those cities which I will make available for study by this committee. I can assure this committee that none of those cities is hampered in crime investigations by a restriction even nearly ap- proaching the stringency of the Mallory rule. Mr. Chairman, I have been repeatedly advised by legal experts that no constitutional question is involved in the Mallory ruling. Its proponents claim that it is needed to protect the guilty from the police. Mr. Chairman, I submit that the innocent also deserve pro- tection from the predatory and that, if more protection of the criminal is needed than existed in 1957, which I doubt, then some other device, which strikes a better balance between the rights of the criminal and the rights of the `law-abiding citizen, should be found. One of the opponents to a change of the Mallory rule, in his ap- pearance before the House District Committee, called upon a quota- tion from Professor Wigmore to support the Mallory rule. He quoted Wigmore as saying: Any system of admission which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly on such evidence and to be satisfied with an incomplete investigation of the other sources. Actually, `that quotation did not deal specifically with exclusionary rules such as Mallory, but Professor Wigmore did elsewhere write forcefully on the subject of such exclusions. In "Wigmore on Evi- dence," third edition, section 851, he discussed at length the need for questioning of criminals under arrest and also referred to the poten- tial abuses which can conceivably occur as an outgrowth of such ques- tioning. As an alternative, he suggested that private questioning of suspects under arrest might be done by a prosecutor or a magistrate, an alternative I do not now specifically propose, but one which I acknowledge would merit consideration. My point at this time, in referring to that writing, is to quote his concludmg paragraph. Pro- fessor Wigmore wrote: * * * it follows that the attempts, legislative and judicial, to exclude entirely confessions, obtained by questioning of persons arrested and in seclusion represent simply a misguided solution. PAGENO="0468" 462 AMENDMENTS. TO CRIMINAL. STATUTES `~OF' D.C. Mr. Chairman, I personally favor the present language of title I and title III of H.R. Th25 as practical provisions which will provide this department with authority to cope with our. current crime prob- lems. I realize, of course, that alternative provisions are likely to be opposed to the Congress and that some of those will~ be intended to alleviate our problems in these areas while, at the same time, possibly. meeting some major objections of the opponents to the legislation in its present form. I recognize, therefore, that it may be necessary to consider some compromise provisions, which do not impair excessively the effective- ness of these proposals, in order to obtain early legislative relief in some form. Because of the dire need for some such relief, I urge the Congress to act on these problems as quickly as possible. The CHAIRMAN. Thank you, Chief. You heard the testimony of both Mr. Katzenbach and Mr. Acheson. I am sure you were here throughout most of their testimony. Mr. Munn~&y. Yes, sir. The CHAIRMAN. You state that your legal experts have said that there is no constitutional question involved. Of course it is very clear from what Mr. Kat~enbach has told us that he thinks serious constitutional questions and constitutional rights may be involved. This is his opinion as the Attorney General of the United States. You heard his testimony in this respect? Mr. Mijmi~y. Yes, sir. The CHAIRMAN. Now, you also heard his suggestions that if this committee were to enact legislation, that they should build in certain safeguards. I think you heard what those safeguards are. The first one was the plain warning to the defendant. Now, this is already included in section 1(b) of the bill before us, so I assume you have no objection to that. Mr. Munrt~&y. No, sir. The CHAIRMAN. ,The second, suggested safeguard was that the ar- rested person be afforded a reasonable opportunity to notify a relative or friend and consult with counsel of his choosing. You heard Sena-, tor Dominick's questions to Mr. Katzenbach, what wOuld `his position be (1) if the first and seéond safeguards' were written into tIns legis- lation. Do you have an opinion on that? `Mr. Mnmi~. Mr. Chairman, `I would see no' objection to notifying a relative, but notifying a friend might be notifying a confederate or accomplice, and I dont Imow whether this would be good or `not. He may find someone who is going to dispose of some loot for him. Now, over the years if a man was arrested and said "I want a lawyer" he was given an opportunity to call a lawyer. I heard Mr. Katzenbach mention about a practice in Chicago where a third party is brought `in. Well, this has been done many times in very important cases back over the years in our department too~ For instance, if it is a homicide case, a reenactment may be in the presence of an apartment house mana.ger or apartment house janitor. A third and distinterested party. has been used many times, and we think this is a good idea. ` .` The CHAIRMAN. That is at least in part his fourth safeguard. It is a little `broader, I think, than that. It has an alternative suggestion PAGENO="0469" AMENDME~VPS TO~ CRTh~tINAt SThTTJTES oi~ r.c~ 463 to it. it i~ t~ responsible witness other than a law enforcement officer observing the questioning or a verbatim transcript or recording being made of the interiogation. That is the fourth safeguard suggested by the Department of Justice. What would your comment be with re- gardto that? Mr. MURRAY. That is a recording you are speaking of? * The CHAIRMAN. He puts them together. He says it is an either/or proposition; either a responsible witness other than the law enforce- ment officer observing the questioning, or a verbatim transcript or re- cording of theinterrogation. Mr. MuRn~&Y. I would not have any serious objection to that at all. The CHAIRMAN. If that was built into the law? Mr. Mmm~&~. Yes, sir. The CHAIRMAN. Then you would have no objection to the fourth safeguard? Mr. MURRAY; No, sir. I think that perhaps would work to our advantage at the trial as it has in many other cases where we had a homicide case ora rape case where we used a third party. The CHAIRMAN. Now the third safeguard he suggests, Chief, is a maximum of 6 hours elapsed time between arrest and completion of the confession. That is the third safeguard suggested by the Depart- ment of Justice. Mr. MURRAY~ I think, Mr. Chairman, there are many cases that can be ready for court in much less than 6 hours, but as the Senator from Colorado mentioned, if a criminal knows that all he has to do is sit tight for 6 hours, he may sit tight for 6 hours and not say anything. I think a time limitation should be decided by the judge, if it is a rea- sonable length of time. The CHAIRMAN. Please correct me if I am misstating your position in any respect. The Department of Justice suggests four safeguards be built into corrective legislation if the Congress, in its wisdom, sees fit to enact corrective legislation because of the Mallory rule. The first one is the question of plain warning, which is very similar to 1(b) now before us, and I understand you to say that you would see no objection to the first safeguard. Do you or do you not follow this practice at the present time? Mr. MURRAY. We do follow this practice. The CHAIRMAN. So obviously you have no objection to No. 1? Mr. MtTRRAY. No, sir. The CHAIRMAN. No. 2, if I understood you correctly, it says the arrested person being afforded a reasonable opportunity to notify a relative or friend and consult with counsel of hisehoosing. I understood you to say that you objected, that you thought his being given the opportunity to notify a friend might cause difficulties be- cause it might be a confederate or an accomplice and he could warn them to dispose of the loot or something like that. Mr. MURRAY. I think to notify an attorney or a relative would be all right. `I would not object to that. But I think they could go fairly far afield on notifying friends. The CHAIRMAN. Then No. 3, you just stated your objections to the third safeguard, which is a maximum of 6 hours elapsed time between arrest and the completion of the confession. PAGENO="0470" 464 tENTS TO CRIMINAL STATUTES OF D.C. You stated if I understood you correctly that the fourth suggested safeguard of having a responsible witness other than a law enforce- ment officer observing the questioning or a verbatim transcript or a recording of the interrogation, would not be objectionable to you. Mr. Muiut~y. I have no objection to that. The CHA1~L~N. You have none to that. Then it boils down to your objecting to. the maximum 6 hours of elapsed time, and the opportunity of notifying a friend, is that correct? Those would be your two ob- jections to the suggestions made by the Department of Justice for building safeguards into the bill which is now before us for con- sideration. Mr. MURRAY. Yes, sir.. I think that if it is left withoutimnecessary delay, in other words, the trial judge can determine whether there was any unnecessary delay. Sometimes I think a case would be prepared in 2 or 3 hours. Sometimes it may take as much as 6 hours. The CHAIRMAN. Might I ask you just a few more questions, Chief. Mr. MURRAY. Yes, sir. The CHAIRMAN. I will hurry along on these. These questions are prompted by testimony that we have had from some other witnesses, and I think in fairness to the record that you should be given the op- portunity of makinganyst.a.tement youwant on them.. On October 23, certain witnesses indicated generally that some seg- ments of the population of the United States viewed the police with disrespect and, an evil force. This was said rather emphatically by the chief of police of Cincimiati, the sheriff from California, from San Jose. I believe, San Joaquin County, and also from the superin. tendent of police, Chicago, Ill. Now what is your view on this matter? Does the Metropolitan Police Department have the respect of the citizens of the District of Columbia? Mr. MURRAY. I think, Senator, that there has been an effort in some quarters to create disrespect for law enforcement perhaps nationwide over the years. I think that locally the Department is held iii a little higher regard now than it has been. The CHAIRMAN. I would hope that that is a correct statement. Mr. MURRAY. I think it is, yes, sir. The CHAIRMAN. I think the Department istheldin very high regard by the citizens of this community. At least this is my personal opinion. Mr. MURRAY. I think it is held in a higher regard than it has been for some time. The CHAIRMAN. I am glad to hear that. I certainly hope that is correct. Now at least two or more witnesses who testified at our October 23 hearing stated it was wrong for persons to allege that Washington, D.C., is soft on crime. In support of their view they provided statis- tics that showed first that an accused convicted of felony in the Dis- trict receives in the District on the average 41.5 months imprison- ment, which is greater than any State jurisdiction except one or two, and t.hat the Mallory decision while causing much adverse comment in the District has caused comparatively few reversals and acquittals of defendants in the District. Would you care to comment on that particular statement? PAGENO="0471" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 465 Mr. MURRAY. Yes, sir. First I would like to make it very clear, Mr. Chairman and members of the committee, that I have never pri- vately or publicly been critical of our trial court judges. I feel that we have had some appeals court decisions that did not set too well with me or with other police officers, but I have never been critical of our trial court judges. Now, what was the second part of your question? The CHAIRMAN. The other part of my question was concerning the statement that Washington, D.C., was soft on crime. We have heard this repeatedly. It has received widespread publicity in national periodicals. Two of the witnesses testified that this wasn't true, that in the District of Columbia a convicted felon averaged 41.5 months imprisonment, which was greater than any State jurisdiction except one. That was used by way of refuting the statement that Washington, D.C., was soft on crime. I would ask for your comments. Mr. MURRAY. Since the 23d of October I have gone back to the office and checked up on some of the sentences, and I feel the sentences are a little more substantial now than they may have been some years back. We have an account of: everyone who is released and how much time they served, and I think that sentences have been a little more substan- tial in late years. As to being soft on crime, I think that some restrictions have been placed on law enforcement. The fact that crime has gone up 56 per- cent since the Mallory decision was handed down in 1957, I think that has done a great deal to cause the thought that there is a lot of crime here. I have mentioned several times that I have never minimized the amount of crime in the District. I think there is too much crime here, but there is too much crime in all large cities. But the fact that we have gone up 56 percent since 1957, 1 think it is more than just a coincidence. May I show the committee this chart? The CHAIRMAN. I think that leads into the next question that I was asking. And I know that you have repeatedly said that since the Mallory decision crime has increased, and you relate the increase in crime to the Mallory decision. Of course, we have had statements by other witnesses that there has been comparatively few reversals and acquittals of defendants in the District of Columbia because of the Mallory decision. I would be very happy to have you say anything you want on that because this is always your major premise. Your major premise is that crime has increased in the District of Columbia because of the Mallory decision decided on June 24, 1957. I would be very happy to have you sustain that premise. Mr. MURRAY. Yes, sir. I don't say that the Mallory decision is the sole cause. The CHAIRMAN. I don't want to indicate that it is. Mr. MURRAY. That crime has gone up, but I think it is more than a coincidence that it has gone up 56 percent. We had crime at a low point for 10 years back in June of 1957 when theMallory decision was handed down, and it started to climb that very month, and it has been climbing ever since, and at that same time the clearance of crime has started down. In other words, where we had a high rate of clear- ance, it has fallen off. PAGENO="0472" 466 MENDMENTS TO CRIMINAL STATUTES Oy D:C. The CHAIRMAN. Will YOU pardon an interruption.' Senator `Mc- Intyre had a question. Senator Mohrn~iIR. What is the dc~tted line on the chart;? The CHAu~r~. Would you indicate what the dotted line is? Mr. WILSON. That is the moving annual average of crime, Senator. The other line shows the monthly totals, and the dotted line shows'the moving average annual. ` ` The CHAIRMAN. ~What moving annual average? Mr. WILsoN~ This is the total crime for the 12 months ending in each month. It takes out the seasonal variations which You can see in the various months. Of course, `we have a great deal of seasonal variation in crime be- cause some crimes are more prevalent during the summer months, others in December. But this dotted line removes the seasonal varia- tion and gives us an annual average or a crime trend. Senator Do~rINIcK. In the District alone? Mr. WILSON. In the District alone. The CHAIRMAN. Pardon the interruption, Chief. I wish you would make abundantly clear how you tie the increase in crime to the Mallory decision. I recognize you say this is not the sole factor, but that it is one of the major factors. Mr. MURRAY. I think the very fact that crime is at a low point in June 1957, since that time we `have had added 350 policemen to our force. We have added equipment, we have added the canines. We have added lots of things that should have made crime go down, but instead of that it has gone up 56 percent. So I say that these restric- tions are responsible for that to a large extent. The CHAIRMAN. The Senator from Colorado. Senator DOMINICK. Just one question there. How much has th~ population gone up since that time? Mr. MURRAY. It has gone down. Senator DOMINICK. Since 1957? Mr. MURRAY. Yes, sir. Senator DOMINICK. In the metropolitan area? Mr. MURRAY. Not in the area; no, sir. I think the census for 1960, it has fallen off more than 50,000 within the District of Columbia itself. `Senator DOMINICK. A great many of these crimes within the Dis- trict are done or accomplished by people who move in and out' from the suburbs. Mr. Mmi.m~y. Well, of course, they claim in the suburbs that our criminals go out there and commit crimes. The CHAIRMAN. I think it is correct that within the limits of the District of Columbia the population has shrunk slightly. Of course, it has expanded tremendously in the metropolitan area, and I suppose there is some causal relationship to an area that is this close together, because I suppose the metropolitan area must have doubled in population. Mr. MURRAY. I think it is about 2 million population. The CHAIRMAN. It is about 2.2 million now. What was it in 1957 roughly, the metropolitan area that includes, Arlington, Alexandria, Silver Spring, Bethesda, and Chevy Chase? Mr. MURRAY. We have got 1950 figures and 1960 figures. PAGENO="0473" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 467 The CHAIRMAN. This may hold fairly constant. What was the 1950 figure for the metropolitan area? Mr. WILSON. To put it simply, Senator, the metropolitan area total increased by 26 percent from 1950 to 1960. It increased to 2.1 million. The CHAIRMAN. What was the figure in 1950? Mr. Wu~sow. 1,464,000. S The CHAIRMAN. It increased from 1,464,000 to 2.2 million in 1960? 5 5 Mr. WILsoN. Yes; an increase of 26.8 percent. Senator DOMINICK. 26.8 from 1,400,000 to 2.2 million. The CHAIRMAN. I think he said 50 percent. Maybe I misunder- stood him. What was the percentage increase? * Mr. WILSON. 26.8. It isan increase of 537,000. The CHAIRMAN. That would sound to be more than 26 percent. Senator DOMINICK. If you are going from 1.4 to 2.2 million, you have got 800,000 in any arithmetic I have ever done. The CHAIRMAN. Why don't you check that out and supply it for the record. S S Mr. WILsoN. Yes. The CHAIRMAN. The Chief, I think, wanted to respond further. Mr. MURRAY. It is true, Senator, that you will have safemen, house- breakers, who will operate in the District and nearby Maryland and Virginia., don't stop at the District line. We do have them operating in all these jurisdictions until they are caught. * The CHAIRMAN.. Another point that was made on this question of softness on crime, Chief, and this is something that we have heard many times. Some witness somewhere during the course of these hearings indicated, and I think it was possibly a chief of a penal institution here, Mr. Clemmer, if that is the correct nam&- Mr MURRAY Mr Clemmer The CHAIRMAN. I believe he indicated that the great percentage of the felons convicted in the District of Columbia were born and raised here andlived here their entire lives. This was a little surprising to me. I am sure this is what he testified to. Mr. MURRAY. I believe a survey that was made some years ago did indicate that most of the criminals in our penal institutions were right from the District of Columbia. The CHAIRMAN. The point that they were trying to establish was that the District of Columbia had this nationwide reputation for being soft on crime, and still the statistics did not bear out the fact that the District was attracting criminals from other areas. I have heard your testimony on various occasions, and you have indicated that word has gone out to the underground that the District of Columbia is soft on crime. Mr. MURRAY. There has been some of this; yes, sir. The ChAIRMAN. You have said there were instances of this. * Mr. MURRAY. There has been. The CHAIRMAN. You named somebody from Philadelphia. He was very anxiOus to get out of the clutches of the Philadelphia police officers or the sheriff's department because he would rather come to Washington, D.C., because he would have an easier chance of getting off. I think this is in substance what you said. PAGENO="0474" 468 AMENDMENTS TO CRTh1II~AL STATUTES OF D.C. Mr. Minm~r. That happened this spring. This fellow held up two young women at 10th and G Streets, forced them into a car at the point of a gun and made them drive around the city and finally raped one of the young women. He made good his escape and went to Philadelphia and attempted to hold up two candy stores over there, and was arrested over there. Well, he told the police that he had killed a woman here in Wash- ington and had thrown her body in the river. Well, our detectives took our witnesses over there, and they immedi- ately identified him, as~ being. the assailaiit of the night befoi~e, hei~e in Washington. But he told them, he told the police that the reason that he had given the story about killing a woman and throwing her body in the river was that he felt he had a better chance of getting off easier down here than he did in Philadelphia. The CHAIRMAN. I don't know whether that is an isolated instance or how credible the witness was. Mr. MURRAY. Getting back to your percentage of cases that had been lost, Mr. Chairman, there are many cases that have not been presented because the Mallory problem was raised. Now, one case where a baby was found in a locker over at Union Station, I think this woman from the time of her arrest to arraign- ment, 3 hours had elapsed. But it was decided that they could not prosecute the case, and the case was thrown out. It was only 3 hours. We had another case where a 19-year old was surprised in the act of ransacking an apartment, and he stabbed a woman to death. From the time of arrest until arraignment, 2 hours 40 minutes had elapsed. He was finally convicted, but they would not let us use the reenact- ment of the crime. We took him back to the apartment where he re- enacted the crime, but we couldn't use that. The only thing we could use was his confession immediately after he was arrested, 2 hours 40 minutes was too long. So I think that is drawn a little bit too fine. The CHAIRMAN. Chief, you cite this one instance. Do you keep records in your Police Department indicating the number of cases that were presented to the U.S. attorneys where acquittals resulted because a confession was excludable or excluded under the Maflo~y rule? Mr. MURRAY. I don't think we do. We don't have any statistical records of that; no, sir. The CHAIRMAN. The advantage of such a record would of course help to prove, beyond any doubt whatever, that your statement about crime being on an increase is attributable to the Mallory rule. This could be demonstrable if you had the records that would indicate this. Mr. MURRAY. No, sir; we could get together a lot of cases that were not prosecuted because they felt too much time had elapsed, and some- times they think 2 hours is too much time. The CHAnti~L&N. This I understand. Do you have statistics that would reveal in 1962 that 1,000 cases were not prosecuted or were not presented to the U.S. attorneys office because of the fact that a con- fession would be excluded under the Mallory rule. Are there statis- tics of that kind? Mr. MURRAY. No; we would have to go through our cases and pick them out. We don't have any statistics on those. PAGENO="0475" AMENDMENTS. TO CRIMINAL STATUTES OF D.C. 469 The CHAIRMAN. I am not suggesting that you make a study of this going back to 1957. If you did have these statistics, it would be very helpful in indicating just exactly how many cases were not presented to the U.S. attorney because of the restrictions that you claim come about because of the ilIaUor'?/ rule. Mr. MtHiRAY. Mr. Chairman, in all homicide and rape cases, where an arrest is made during the night, the U.S. attorney has a list of as- sistants on call, and as soon as arrest is made, we call the next man in line and from the time the arrest is made we go along with whatever hesays should be done.. If he says a man should be put in a cell, don't talk to him any more, that is what is done. That is in all homicide and rape cases. The CHAIRMAN. Of course, your No. 1 is what, aggravated assaults? Mr. Muiui&Y. Yes, sir; we are No. 1 in aggravated assaults statis- tically; yes, sir. The CHAIRMAN. And as I understood you, you say t~his is the area where you are having your greatest problems. Mr. MURRAY. Yes, sir. The CHAIRMAN. In aggravated assaults. I have a few further questions, but I want to defer to my colleagues. First the Senator from New Hampshire. Senator MCINTYRE. I just wanted to ask you, Chief, you are de- scribing a situation where a young man was ransacking an apartment. He was surprised, he committed murder. An arrest apparently was made. One of these threshold-type confessions you spoke of was made and 2 hours 40 minutes later he was taken to the scene and re- enacted the crime. Mr. MURRAY. Yes, sir; 2 hours 40 minutes from the time he was ar- rested he was brought by this apartment on the way down to head- quarters where he described the apartment and reenacted the crime. 1-Ic was taken to headquarters. A statement was taken from him, he was fingerprinted and photo- graphed, and taken to the U.S. commissioner, and the time elapsed was 2 hours 40 minutes from the time he was first picked up until he was taken before the commissioner. But the reenactment, everything except his original threshold confession was thrown out. They didn't use it. They thought too much time had gone by. Senator MCINTYRE. I don't want to pursue this too much, but do I understand that the..reenactment took place before the confession? Mr. MURRAY. No; he confessed at the station house, but then on the way to headquarters they stopped by the apartment house where, the murder had been committed, and he reenacted the crime there. Senator MOINTRYR. Thank you. The CHAIRMAN. The Senator from Colorado? Senator DOMINICK. Chief, there are only two things that I have to ask about. In your statement you say here that the proponents of the Mallory rule claim that it is needed to protect the guilty from the police. I don't really think that is true. I think what they say is to protect the people who have been ar- rested, because a person still is presumed to be innocent until he has been proved to be guilty. So I don't think they are saying that you are going to protect the guilty. PAGENO="0476" 470 AMENDMENTS. TO CRIMINAL STATUTES OF D.C. Mr. Mhmi~. Well, they are presumed innocent until they are con- victed in court. Senator DOMINICK. Again just to rOemphasize what the chairman said, as far as you can see right now, recommendations One and two of Mr. Katzenbach would not impose any particular difficulty in your procedure as long as you eliminated the word "friend." * Mr. MURRAY.. Yes, sir; that is correct. * Senator DOMINICK. This would `be triiO even if th~.t were inter- preted to mean that before you could cross-examine a prisoner, he would be entitled to consult an attorney of his own choosing? * Mr. MuuRAI-. Well; yes. But I have never run into an attorney yet that would not advise his client not to talk to the police. We know when an attorney comes in that his client is not going to talk to the police about the case. He is going to advise him not to incriminate himself. But at that same time, Senator, I know that when I worked in homi- cide 20 years ago that we had a person in there and he said, "I want a lawyer," why there is no use wasting time with him. Just get him a lawyer. Let him call a lawyer. * The CHAIRMAN. At that point, what if he does not ask for a lawyer? Do you advise him of his rights to have an attorney? Mr. MURRAY. He is advised that he* doesn't have to make a state- ment. The CHAIRMAN. That wasn't my question. Mr. Mijiim&y. No, sir. The CHAIRMAN. You do not advise him? Mr. MURRAY. No, sir. If he asks for a lawyer, he is given a tele-' phone book, or if he knows a lawyer he can call a lawyer. The CHAIRMAN. But he must initiate the request? Mr. MURRAY. Yes, sir. The CHAIRMAN. The police do not suggest it? Mr. Muirn~Y. That is right. The CHAIRMAN. The answer is "No," is that correct? Mr. Mumt~r. That is right. The CHAIRMAN. The Senator from Colorado? Senator DOMINICK. That is all. The CHAIRMAN. The Senator from New Hampshire? Senator MCINTYRE. Shifting to title III for a minute, just one thing bothers me and that is the opportunity for abuse on these in- vestigative arrests. How would the police department go about mak- ing certain that no abuses followed under this title III? I will explain myself a little better. I don't care how good a police force you have, you are always bound to get one or two that have got some sort of tendency or characteristics, and I feel that the investi- gative arrest gives an opportunity for abuse and for mistreatment of some individuals that this particular police officer may have it in for. Now what precautions can you take as Chief of Police to keep this as a very limited occurrence? Mr. MURRAY. Senator, we certainly would not stand for anyone using their office as police officer to bring someone, in to carry out a grudge against anyone. I am sure'that we would not stand for any- thing like that. .` *" .` ::`.` .~ PAGENO="0477" AMENDMENTS TO CRThtLNAL STATUTES OF D.C. 471 Back in 1957, they had what was called a dragnet arrest where about 90 people were arrested. A woman was beaten up and robbed in the place of business, and without any authorization either from me or anyone else. at headquarters on a precinct level they went out and ar- rested about 90 people, and we have been hearing about it ever since. The CHAIRMAN. We have heard about it. Mr. MURRAY. Yes, sir; ever since. That is 6 years ago. The next day the President. of the Board of Commissioners, Mr. McLaughlin, criticized it publicly and I did too. We didn't condone this, but it was done on a precinct level. But you would think that I had claimed the whole thing because as I say I have been hearing about it for 6 years. Senator MCINTYRE. I just offer that. I feel the investigative arrest can be utilized by certain police officers. Mr. MURRAY. Senator, I would like to mention too, this is a ques- tion that comes up quite often where someone feels they have been abused by the police, they have redress by going to the U.S. Attorney's office. They can go to the Civil Rights Division of the Department of Justice. They can go to the Commissioner's Office or they can come to my office, and they often do any one of these. So there are many roads open for any abuse of any prisoner. Now I understand that some of our friends over here have testified that this would not be constitutional, that this Uniform Arrest Act, well, if it won't be constitutional, of course, I guess we will just have to give up the idea, because we don't want to do anything that is not constitutional. The CHAIRMAN. I think, going even further than that, Chief, on title III on the investigative arrest, I don't think there has been one single solitary witness that has appeared before us that has said it was constitutional. I will have to check the record. I don't want to be relying completely on my memory, but I think without exception the witnesses who have appeared before us, the law professors, for example, Senator Ervin who is an expert in this field of constitutional rights within the Judiciary Committee of the U.S. Senate said in his opinion it was clearly unconstitutional. I don't think we have had anyone to testify it was constitutional. If I am in error I may certainly be corrected. The Minnesota University Law School professor testified that in his opinion it was not constitutional. I want the record clear on that. Mr. MURRAY. Mr. Chairman, I could not really argue with anyone because I am not an attorney. I have dealt with attorneys for about 34 years, but I could not tell you whether it would be constitutional or not. The CHAIRMAN. I think the great preponderance of the witnesses who have appeared before us today have thrown serious constitutional questions on investigative arrest provision. The Senator from New Hampshire. Senator McIwryiu~. That is all. The CHAIRMAN. I have just a few other questions, all suggested by some of the earlier testimony. During the hearings that we have held on the Mallory rule, several of the witnesses have mdicated that better training of officers and detectives on the police force is one way to offset the adverse effects PAGENO="0478" 472 r~iw'rs TO CRIMINAL STATUTES OF D.C. of the Mallory rule. They explain that this can be done in a number of ways; namely, prearrest interrogation. We `have constantly heard this word "prearrest interrogation." Now, might I ask you, Chief, what instructions do your officers receive about attempting such interrogations? Mr. MURRAY. Well, we realize, Mr. Chairman, that we can no longer bring people in for investigation of a crime, that greater efforts must be made to question them in the field, and' a great deal of that is being done. The CHAIRMAN. It has been suggested by a number of witnesses, `and I am sure you are aware of this, you have read the testimony, that the FBI makes great use of this prearrest interrogation. Mr. MURRAY. Yes, sir. I think, though, that they would be the first to tell you that their type of enforcement is altogether different from ours. Wehave a common-law type of crime-homicide, rape, robbery. and so on-which they don't have. Theirs is more in an investigative field, and we work very closely with the FBI and get along very well with them. But our type of work is quite different. The CHAIRMAN. I think that is correct, and I think that Mr. Katzen- bach made that abundantly clear in his statement:today. He certainly made it very clear in his official report which is filed with this com- mittee, but there is a distinction in the application of the rule of criminal procedure 5(a) in the District of Columbia and elsewhere around the United States. Mr. MURRAY. Mr. Chairman, could I ask permission to put into the record, furnish for the record, a statement' on our training program which I think is a very good training program, and also a statement replying or rebutting a witness who testified here some days ago. The CHAIRMAN. Certainly. The record will be kept open for that purpose. Now, how many detectives do you have in the Police Department? Mr. MURRAY. 370. That `is in the Detective Bureau and~ in the District. The CHAIRMAN. 370, Chief? Mr. MURRAY. Yes, sir. ` The CHAIRMAN. Now, how many of these work on each shift? Mr. MURRAY. They are split up into three tours of duty. We have representatives from each squad, whether it is homicide, robbery, sex squad. They are on the street 24 hours a day. We have representa- tion there. The CHAIRMAN. Do you need more detectives? Mr. MURRAY. I guess Deputy Layton would say we did, but I don't think we do right now. , ` The CHAIRMAN. How many detectives did you have in 1957? Mr. MURRAY. I would have to get that figure for you, Mr. Chairman. The CHAIRMAN. It can be supplied for the record? Mr. MURRAY. Yes, sir. (The figure referred to follows:) 1957 330 detectives PAGENO="0479" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 473 The CHAIRMAN. Now,, do you have any extensive program where you require foot-patrol Officers or squad-car officers to work at least one shift per month with the Detective Bureau? Mr. MURRAY. We have men from the precincts that fill in on the midnight tour of duty and in the precincts for 1 week. That is sort of a training program. The CHAIRMAN. A further question prompted by one of the wit- nesses appearing in the October 23 hearing expressed concern that this committee was being given the impression that the crime rate was on a great increase here in Washington. In support of this position, the witness informed the committee that serious crime in the District has declined during the last fiscal year 1.2 percent, and although the crime rate has increased considerably since 1957, the serious crime rate in the District during last year was 121/2 percent below that which it was in 1953. Is that statistically correct? Mr. WILSON. Mr. Chairman, he was citing fiscal year 1962 statistics. Of course, this slight decline for 1962 is reflected on this chart. The CHAIRMAN. Compared with 1953, he indicated that it was 121/2 percent below what it was in 1953. Mr. WILSON. And for the 1962 data he was correct, but since then, as you can see, the crime has swung upward again, and as of the end of September we were three-tenths of 1 percent over the alitime high which was reached in 1952. We are now at an alltime high, rather, as of the end of September, we were at the alitime high for crime in this city. The CHAIRMAN. As of the end of September, you were at the alltime high for crime in the District of Columbia? Mr. WILSON. Yes, sir. The CHAIRMAN. In 1963, January 1 to September 30. Mr. WILSON. There, again, for the 12-month average it would be October 1 of 1962 through September 30 of 1963 was the highest 12- month period of crime in our District. The CHAIRMAN. Thank you. Now, on the same October 23 hearing one of the witnesses testified that in some instances the police do not make a `complete and thorough examination of the crime. In the case of offenses involving assaults with dangerous weapons the witness stated the complainant in the case is generally the one who makes the first report to the police or turns himself into the hospital. The witness cited the case of Joseph Taylor (case 198-61), and several others as an example illustrating this point. Would you care to com- ment upon that particular statement, Chief? Mr. MURRAY. I don't believe what that witness had to say and that is the one I want to rebut. I want to put a statement in, if I may. The CHAIRMAN. Very well. I want to give you the opportunity to make comments on anything that has been said during the course of these hearings. We were attempting to go into this in depth and want to come up with the correct answer. Now, Assistant Dean Pye testified that the rate of police resignations during fiscal 1962 was double the rate of fiscal 1961. Is that a correct statement? PAGENO="0480" 474 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Mr. WILSON. Mr~ Chairman, the resignations for the fiscal year 1962 were very nearly double the rate for fiscal 1961. The rate for 1963, however, had dropped again. We had a peak which we reached in January of this year, and since the salary increase that was allowed in January, resignations have dropped considerably. To give you the figures for 1961 we had 78 resignations; for 1962 we had 141; for 1963 it was 113; and I would say that our current rate is about 90 per year. The CHAIRMAN. Is there any explanation indicated? You say it is a salary problem, Chief? Mr. MUi~n~. We think the salary rates that went into effect last January did stem resignations to a great extent, and also we haven't had any trouble in recruiting men over the last several months. We are recruited to full strength and have a backlog of applicants. The CHAIRMAN. At the present time are. there any officers in your Department assigned to help the Probation Department apprehend parolees and probation violators? Mr. LAYTON. No, sir. The CHAIRMAN. There a.re none? Mr. MURRAY. No, sir. If there is somebody that they haYe a. lookout for, the whole force would be on the lookout for them. The CHAIRMAN. This I understand. That wOuld be in connection with the police force? Mr. MURRAY. Yes, sir. No specific assignments. The CHAIRMAN. I think that there were some indications that some police officers were being used in this parole and probation capacity, and that this made a demand upon your police force. Mr. MURRAY. No, sir. The CHAIRMAN. You would say this is not correct? Mr. MURRAY. This is not correct. The CHAIRMAN. Dean Pye, the witness at the~ October 23 hearing, suggested that Mallory is not too great a problem in the District because it is his understanding that the Metropolitan Police Department closes approximately 44 percent of its cases compared with the national average of 27 percent. This was his statement, and this would be my question. If that is the situation, how is it explained that the city police depart- ments which do not have the Mallory restriction to contend with lag so far behind the Metropolitan Department in this measure of police efficiency? Mr. MURRAY. I can't, Mr. Chairman, say why their clearance rate is not up to ours, but we feel kind of bad because our clearance rate is not ~58 percent as it has been. The CHAIRMAN. I understood that. You furnished a table indicat- ing it had dropped to 44 percent, and again you use that as part of your argument that this is due to the restrictive influence of the Mal- ior~' decision. But conversely if the national average of clearances is 27 percent, then certainly they are not restricted by the Mallory decision. Mr. MURRAY. No; but we want to clea.r 58 percent. The CHAIRMAN. And do you think if the Mallory decision is cor- rected by enacting legislation, that you would be back to 58 percent? Mr. MURRAY. Yes, sir; I do. PAGENO="0481" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 475 The CHAIRMAN. Any further questions? Thank you very much, Chief. We always enjoy having you with us. You have been very helpful. We will do the best we can to work out this problem. Mr. MURRAY. Mr. Chairman, I would also like to express my ap- preciation to you for bringing in the chiefs of police and other wit- nesses to help present our side of the case. I know you have brought in people from both sides, but I know you have had the superintendent as a witness and others in here, and I appreciate it very much. The CHAIRMAN. Thank you. Our next witness is Mr. Tobriner. * Mr. Tobriner, I am very grateful to you for your indulgence in waiting this long to be heard. It occurred to me that in view of the testimony of the Department of Justice and the U.S. attorney, it was very proper that we hear from the Police Chief at that particular point. STATEMENT OP WALTER N. TOBRINER, PRESIDENT OP THE BOARD OP COMMISSIONERS Mr. TOBRINER. Thank you very much, sir. Mr. Chairman and members of the committee, the Commissioners appreciate this opportunity to present their views on titles I and III of H.R. 7525, an act relating to crime and criminal procedure in the District of Columbia, passed by the House of Representatives on August 12, 1963. Title I of H.R. 7525 is intended to overcome for the courts of the District of Columbia the effect of a rule of evidence laid down in a line of cases beginning with the case of Mallory v. United States, decided in 1957 by the Supreme Court, barring the admissibility in evidence of statements made by arrested persons if such persons are not promptly taken before a committing magistrate in accordance with rule 5(a) of the Federal Rules of Criminal Procedure, requiring arrested persons to be taken before a committing magistrate "without unnecessary delay." Title I of the bill would change the existing situation in the District of Columbia so as to provide that statements and confessions, other- wise admissible, will not be inadmissible solely because of delay in taking an arrested person before a commissioner or other officer with power to commit persons charged with offenses against the laws of the United States. The Commissioners naturally favor the admissibility of confessions and statements which are made freely and voluntarily. However, they believe that title I of H.R. 7525 should be amended in several respects so as to expand its coverage and afford certain safeguards to the persons making confessions or statements. Accordingly, the Commissioners have recommended a number of changes in this title of the bill, set forth on page 2 of their report to the committee. The first of these changes would make the title ap- plicable in cases of arrests for violations of the laws of the District of Columbia as well as of the laws of the United States. The second change has the effect of requiring that each person shall immediately prior to being interrogated, be advised that he is not 25-260-64--pt. 1-31 PAGENO="0482" 476 A~NDMENTS TO CRTh~II~AL STATUTES OF D.C. required to make a statement and that any statement made by him may be used against him. The third change proposed by the Corn- niissioners is the addition of three new subsections designed to sur- round arrested persons with safeguards to protect their constitu- tional rights. The first of these subsections requires that, prior to any interroga- tion, an arrested person shall be plainly advised by the police officer or officers having him in custody of his right to reasonable opportu- nity to. communicate with counsel or with a relative or friend, and. re~ quires that the arrested person shall in fact be afforded such op- portunity. The second subsection requires that, whenever reasonably possible, each interrogation of an arrested person, and the warning and ad- vice given him, (1) be monitored by some responsible person who is not a. law-enforcement officer, or (2) be. reported verbatim, be rec- orded by a recording device, or be conducted subject. to some other means of verification. The third proposed subsection is designed to emphasize that nothing in the title is intended to supersede the re- quirements of rule 5 (a.) of the Federal Rules of Criminal Procedure respecting the right of an arrested person to be taken before a com- mitting magistrate "without unnecessary delay." To interpolate for a . moment our views are the views of the De- partment of Justice. with the. exception that we would eliminate that section.. providing for a ceiling of 6 hours on detentiOn prior to arraignment. . . If title I of H.R. T525 be amended as I have suggested, the Com- missioners would have no objec.tion to its enactment. However, should the title not be amended along the lines I have set forth, the Commis- sioners, since they have r~servations concerning the protection af- forded an arrested person by this section, in the form in which it is set forth in the. bill, would be constrained to recommend against its enactment. . Title III of H.R. 7525 consists of two sections, the first of: which, patterned after the so-called Uniform Arrest Act, provides for the detention of suspects for a period not exceeding 6 hours, while the second provides for the detention of certain material ~witiiesses.. The Commissioners. are unalterably opposed to the enactment of the first of the two sections conta.ined in title III,. Ofl the ground that the seètion is either unconstitutional or unnecessary, depending on the judicial interpretation of the phrase "reasonable ground to suspect" appearing in line 21 on page 14. This phrase, taken with the balance of the section,.luis the effect of permitting an officer or member of the Metropolitan Police Force to detain, for a period not exceeding 6 hours, a.ny person suspected by the officer or member of committing, or having cOmmitted, or being~ about to commit, a crime, and who has failed to ident.ify himself or explain his actions to the satisfaction of such office.r or member. If the phrase "reasonable ground to suspect" is interpreted as an- thorizing the detention of an individual on the basis of something less than probable cause, then this section, in its effect, authorizes arrests for investigation-a practice that the Commissioners firmly believe is unconstitutional in that such arrests involve the detention of a person withOut the requirement of probable cause, in violation of the fourth amendment to the Constitution of the United States. .. . PAGENO="0483" AMRNDMENTS TO CRIMINAL STATIJTES OF D.C. 477 Obviously, any such arrest denies to the person so detained, for a period of as much as 6 hours, the opportunity to secure his liberty by posting bail or collateral, denies him the right of habeas corpus, deprives him of the assistance of counsel, and tends to impair his right under the fifth amendment not to be compelled in any criminal case to be a witness against himself. The Commissioners note, incidentally~ that the U.S. Court of Appeals for the Fifth Circuit, in the case of Staples v. U.S., 320 F. 2d 817, decided July 10, 1963, stated, with respect to one of the defendant.s in the case, that "McNamara was not under lawful arrest, but had been booked for `investigation of passing coun- terfeit notes.'" The emphasis in my statement is also in the original. This statement, the Commissioners believe, supports their view that arrests for investigation are not lawful. In addition, there is a line of cases which you are well aware of in the other Federal courts, anc~ in the Supreme Court of the United States. The Commissioners are cognizant of the fact that there is some. sup~ port in the community for statutory authorization of the practice of making arrests for investigation, as an effective means of coping with the crime situation in the District of Columbia. They question, how~ ever, whether the "cure" pi~ovided by section 301 of title III is not ifl fact worse than the disease. It should be borne in mind that, if se~c- tion 301 should be enacted by the Congress and be approved by the President, each of us present in this room today would be subject to being stopped on the street by a police officer merely because he is suspicious of us, and, should we not satisfy him concerning our identity or actions, we could be `held incommunicado in a police precinct sta- tion house cell for as long as 6 hours, regardless of the pressing and im- portant nature of our business elsewhere. This, the Commissioners strongly believe, is too high a price to pay. If, however, the phrase "reasonable ground to suspect" in section 301 is construed, as has been the case in two of the three States in which the so-called Uniform Arrest Act is in effect, as meaning nothing more than "reasonable ground to believe"-that is, probable cause-then the Commissioners are* of the view that this provision of the bill is unnec- essary, since the officers and members of the Metropolitan Police force already possess the power to make arrests on the basis of probable cause Accordingly, to sum up my testimony on so much of title III of the bill as would imjose on the District of Columbia the so-called Uniform Arrest Act, the Commissioners are strongly opposed to this provision `~s being either unconstitutional, in that it `~i ould authoi ize "arrests for investigation," or unnecessary, in that if the phrase "reasonable ground to suspect" be interpreted to mean "probable cause," the provision gives the Metropolitan Police no greater authority than they already possess.. With respect to the second of the two sections contained in title III of H.R. 7525, the Commissioners recognize the desirability and prac- tical necessity of securing the appearance of material and necessary witnesses under the particular circumstances `outlined in the sectionS However, they believe that such persons should be subjected to even less restraint on their physical liberty and freedom than those for- mally charged with crime,' and that they should in all cases be per- mitted to appear immediately at the beginning of their detention be~ foie i judge 01 commissioner for the purpose of determining whether PAGENO="0484" 478 AMENDMENTS TO CRIMINAL STATUTES OF D.C. they are in fact necessary and material witnesses and be given an. opportunity to post bond or deposit collateral to secure their appear- ance at trial. Accordingly, the Commissioners have recommended to the Congress certain proposed legislation which has been introduced in the Senate as S. 1148, a bill to amend the law relating to material and necessary witnesses to crimes committed in the District of Columbia. This bill amends section 401 of the Revised Statutes of the Tjnited States relating to the District of Columbia so as to better protect the rights of persons detained as material and necessary witnesses. The Department of Justice has suggested a number of amendments to the legislation proposed by the Commissioners-suggestions with which the Commissioners agree and which they have incorporated in a revi- sion of their proposed amendment of such section 401. This revision appears on pages 9, 10, and 11 of the Commissioners' report to the committee on H.R. 7525. In summation, I wish to emphasize that the Commissioners strongly believe that whatever action the Congress may take with respect to providing more effective statutory tools to deal with the crime situa- tion in the District of Columbia should not be in disregard of the con- stitutional rights of the residents of the District of Columbia, both law-abiding and non-law-abiding alike. The Commissioners recog- nize the need for clarifying the situation with respect to the admis- sibility in evidence of confessions and statements made by arrested persons. They have, however, concern for the constitutional rights of all persons, those accused of crime as well as others. Accordingly, they strongly recommend that title I incorporate safe- guards designed to protect the constitutional rights of such persons while at the same time permitting the use in evidence of confessions and statements voluntarily made by them. With respect to section 301 of title III, it is the view of the Commissioners that it is either constitutionally objectionable or is unnecessary, and therefore should not be enacted by the Congress. As to section 302, relating to the detention of material witnesses, the Commissioners believe that such persons should be given greater consideration than section 302 pres- ently provides, and therefore the Commissioners strongly recommend that the Congress consider enacting legislation substantially similar to that suggested in the Commissioners' report on H.R. 7525. Thank you very much for affording the Commissioners an oppor- tunity to express their views on these two titles of H.R. 7525. The CHAIRMAN. I certainly appreciate your appearance here, Mr. Tobriner, and the views that you have expressed. I don't think I have any questions on your statement. It was very specific and is easily understood. The Senator from Colorado? Senator DOMINICK. No questions, Mr. Chairman. Senator MCI~r'niE. No questions. Mr. ToBRnci~R. Thank you very much. Senator BIBLE. This is a good day for you, Mr. Commissioner. Mr. TonRn~R. Yes, sir. The CHAIRMAN. We will stand in recess until 10 o'clock tomorrow morning. (Whereupon, at 12:45 p.m., the committee was recessed, to reconvene at 10 a.m., Wednesday, November 6, 1963.) PAGENO="0485" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS, AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA WEDNESDAY, NOVEMBER 6, 1963 U.S. SENATE, CoMMrr1~EE ON THE DISTRICT OF COLtri\1BJ~A, Washington, D.C. The committee met, pursuant to recess, at 10:17 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) pre- siding. Present: Senators Bible and McIntyre. Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard E. Judd, professional staff member. The CHAIRMAN. The committee will come to order. Our first witness this morning will be Mr. Irving R. M. Panzer, of the American Veterans Committee.. STATEMENT OP IRVING R. M. PANZER, WASHINGTON CHAPTER, AMERICAN VETERANS COMMITTEE The CHAIRMAN. We are very happy to have you with us this morn- ing, Mr. Panzer. Mr. PANZER. Thank you, Senator. My name is Irving R. M. Panzer, and I appear before this commit- tee on behalf of the Washington, D.C., Chapter of the American Veterans Committee (AVC). We are proud to live in or near our Nation's Capital. We have worked long and valiantly to help make it a better place for all per- sons, and to eliminate or mitigate its deficiencies or shortcomings. We are deeply concerned about the social and economic conditions which foster juvenile delinquency and crime. We believe that the governing agencies of this community-the Congress, the District Commissioners, the police, and all other agencies of government- must be continually alert to deal with the evils of crime and delin- quency, and to do so in a way that is compatible with our constitu- tional guarantees and protections. We are deeply troubled by many features of the so-called omnibus crime bill (I-]I.IR. 7525) nOw being considered by your committee. Our concern that the bill is unconstitutional and unwise is heightened by the fact that it is opposed vigorously by at least 147 Congressmen, by the Department of Justice, by the U.S. attorney, by the District Commissioners, in many respects by the Bar Association of the Dis- 479 PAGENO="0486" 480 AMENDMENTS TO CRIMINAL STATUTES OF D.C. trict of Columbia, and by many others concerned with crime, civil liberties, and man's relation to his fellow luau, and the problems of controlling crime. Time technical aspects of this bill are already detailed at length in the majority and minority reports in the House of Representatives (H. Rept. 479, 88th Cong.), and in the letters of the District Com- missioners and the Department of Justice opposing the bill which are printed in the Congressional Record of August 12~ 1963, which the House debated the bill; and many witnesses have commented on these technical aspects in their testimony before this committee. Our concern does not rest on technicalities. Rather, we believe that the overall effect. of~ this bill would abridge the constitutional rights of many people, and would not achieve its professed purpose of al- leviating or preventing crime in the District of Columbia.. First, we oppose title I of the bill, which would repeal, solely for the District of Columbia. alone among all Federal jurisdictions, the uniform Federal rule (known as the JIaliory rule) which makes in- admissible the confession of an arrested person who, has not been taken before a committing magistrate without unnecessary delay as required by rule 5(a) of the Federal Rules of Criminal Procedure. `We believe that title I weakens the rights and liberties of every American. It opens the door to unrestrained detention and intimida- tion of suspects by the police for prolonged periods . of time, and encourages the use of "third degree" methods to extract confessions. The' Deput-v Attorney General recently `advised the Congress that this provision "Fails to provide even minimum safeguards for the accused." It is 110 answer to say that title I would exclude involuntary con- fessions extracted by intmidation, because an arrested person whose confession has been obtained in the confines of illegal police detention will almost never be able to prove that he was coerced, or that the police engaged in more than "polite inquiry." It is argued that the Mallory rule hampers' effective law enforce- ment because it is often difficult. to show "probable cause" for' the arrest. prior to securing a confession. The difficulty with this argu- ment is that the Constitution prohibits any arrest except upon probable cause. If there is no probable cause at tile time of arrest, `the accused should not have been arrested at all. A civilized society like ours. whose basic Constitution prohibits arrests without probable cause. should not water clown that guarantee by destroying the protection furnished to arrested persons mmcler rule 5 (a) and the Mallory rule. Second, we oppose title II which would make radical and far-reach- ing changes in tile highly complex and controversial law of criminal responsibility. We regard time Durham. rule, which focuses attention on the' question of mental disease or mental defect as a causal factor in criminal conduct as a great step forward toward bringing the legal test of criminal responsibility into harmony with modern medical and psycimiatric knowledge concerning mental disorder. TInder the present law, a person acquitted on the ground of insanity must be confined in a mental institution until such time as he can wove that he is salle. Tile community' is protected, and tile accused receives treatment for his mental disease. Time use of time Dvrhiam~ rule by tile District courts has not loosed a flood of criminals upon the public. On the contrary, it. has afforded greater protection to time PAGENO="0487" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 481 community, and has been more just to the individual, than the usual criminal sanctions. The Durham rule has been warmly approved by eminent judges, legal commentators, psychiatrists, and others who have carefully studied the problems of criminal responsibility. The Department of Justice and the U.S. attorney, who are charged with the duty of prosecuting criminal cases, have repeatedly stated that the court deci- sions in this field are "working out" and that their task in the admin- istration of justice would be disrupted by enactment of title II. We think that no adequate basis has been shown to override their views, and we urge that title II not be enacted. We are opposed to title III of the bill which, in effect, reinstates investigative arrests which were discontinued in March 1963, only 8 months ago. Not one lawyer has disputed the outright illegality of arresting persons for investigation or on suspicion. Not one lawyer has claimed that it could be constitutionally continued. The report of the Horsky committee explodes every legal and factual justification for investiga- tive arrests, and demonstrates their pragmatic vice. Despite the as- sertion in section 301(c) of the bill that the detention is not an arrest, it clearly deprives a person of his liberty and violates the fourth amendment to the Constitution which specifically prohibits any arrest except upon probable cause. Title III strikes at the heart of the Bill of Rights and abrogates the very protections which distinguish us from a police state. It should be rejected by the Congress. Fourth, we oppose the provisions of title V which provide for mandatory mimmurn sentences and disrupt the reh'thilit'ttion pro ceduies of existing parole laws High mandatory minimum sentences do not deter crime. They produce bad results by depriving prosecutors of the ability to secure cooperation from some crimin'tls in exposing and helping convict other crimin'ils, by rn'tking it more difficult to obt'un convictions be cause juries often will not convict a criminal when they think the penalty is too high, and by depriving prisoners of effective incentives for good beh'ivior Thus, the enactment of title V will tend to result in moi e acquittals and `~m ill not protect the District ag'iinst crime Fifth, we oppose section 507, which would amend the District's ob- scenity laws. We do not favor obscenity. However, we think the ex p'trte methods proposed in th'~t section would violate constitution'tl 1imitat~ons. The Nation's Capital should lead in protecting, rather than destroy- ing, freedom of speech, press and other expression of ideas. We abhor obscene m'mteri'ils `tnd agree thit there are some kinds of miterials which are so obscene that they deserve no place in a civilized com munity. But there is the widest disparity of views as to what is truly "obscene" or "indecent" and what constitutes the exercise of expression protected under the first amendment's guarantee of freedom of speech and press. In such an area, there should be the greatest care taken to avoid having constitutionalrights abrogated on the basis of individual whim or caprice. TJnder the present District law, the sale of obscene or indecent mate- rial is subject to criminal penalties of fine and imprisonment which are imposed after a trial. Section 507 of this bill, however, would impose censorship through the: technique of ex parte restraining orders issued PAGENO="0488" 482 AMENDMENTS TO CRIMINAL STATUTES OF D.C. without a hearing. Moreover, these ex parte orders would apply not only to the materials themselves alleged to be obscene or indecent, but to all personal a.nd real property used in connection therewith. Thus, a bookseller, or newspaper publisher, or theater owner, or anyone hav- ing any materials alleged to be obscene or indecent, could be entirely shut down and deprived of the use of his property prior to a trial. We think this procedure would violate the constitutional guarantees of due process of law. We think these provisions of section 507 are too drastic to be used in the delicate area of speech and press which is specially protected under our Constitution. In trying to eliminate household vermin, we should not burn down the whole house. There are other ways to com- bat obscenity and indecency than by the Draconian sanctions of sec- tion 507 which would destroy essential constitutional protections and choke off freedom of expression, speech and press. We therefore urge that section 507 be rejected. Thank you for permitting us to present these views on H.R. 7525. The CHAIRMAN. We very much appreciate your appearance here, Mr. Panzer, and appreciate the views of the American Veterans Com- mittee on this omnibus crime bill that is before us. Your prepared statement will be included in the hearing record at this point. (The prepared statement follows:) TESTIMONY OF IRVING R. M. PANZER, ON BEHALF OF WASHINGTOT~ CHAPTER, AMERICAN VETERANS COMMITTEE My name is Irving R. M. Panzer and I appear before this committee on behalf of the Washington, D.C., Chapter of the American Veterans Committee (AVC). We are proud to live in or near our Nation's Capital. We have worked long and valiantly to help make it a better place for all persons, and to eliminate or mitigate its deficiencies or shortcomings. We are deeply concerned about the social and economic conditions which foster juvenile delinquency and crime. We believe that the governing agencies of this community-the Congress, the District Commissioners, the police, and all other agencies of government-must be continually alert to deal with the evils of crime and delinquency, and to do so in a way that is compatible with our constitutional guarantees and protections. We are deeply troubled by many features of the so-called omnibus crime bill (H.R. 7525) now being considered by your committee. Our concern that the bill is unconstitutional and unwise is heightened by the fact that it is opposed vigorously by at least 147 Congressmen, by the Department of Justice, by the U.S. attorney, by the District Commissioners, by the Bar Association of the District of Columbia, and by many others concerned with crime, civil liberties, and man's relation to his fellow man, and the problems of controlling crime. The technical aspects of this bill are already detailed at length in the majority and minority reports in the House of Representatives (H.. Rept. 579, 88th Cong.), and in the letters of the District COmmissioners and the Department of Justice opposing the bill which are printed in the Congressional Record of August 12, 1963, when the House debated the bill; and many witnesses have commented on these technical aspects in their testimony before this committee. Our concern does not rest on technicalities. Rather, we believe that the overall effect of this bill would abridge the constitutional rights of many people, and would not achieve its professed purpose of alleviating or preventing crime in the District of Columbia. First, we oppose title I of the bill, which would repeal. for the District of Columbia alone among all Federal jurisdictions, the uniform Federal rule (known as the Mallory rule) which makes inadmissable the confession of an arrested person who has not been taken before a committing magistrate without unneces- sary delay as required by rule 5(a) of the Federal Rules of Criminal Procedure. We believe that title I weakens the rights and liberties of every American. It opens the door to unrestrained detention and intimidation of suspects by the police for prolonged periods of time, and encourages the use of "third degree" methods to extract confessions. The Deputy Attorney General recently advised PAGENO="0489" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 483 the Congress that this provision "Fails to provide even minimum safeguards for the accused." It is no answer to say that title I would exclude involuntary con- fessions extracted by intimidation, because an arrested person whose confession has been obtained in the confines of illegal police detention will almost never be able to prove that he was coerced, or that the police engaged in more than "polite inquiry." It is argued that the Mallory rule hampers effective law enforcement because it is often difficult to show "probable cause" for the arrest prior to securing a confession. The difficulty with this argument is that the Constitution prohibits any arrest except upon probable cause. If there is no probable cause at the time of arrest, the accused should not have been arrested at all. A civilized society like ours, whose basic Constitution prohibits arrests without probable cause, should not water down that guarantee by destroying the protection furnished to arrested persons under rule 5(a) and the Mallory rule. Second, we oppose title II which would make radical and far-reaching changes in the highly complex and controversial law of criminal responsibility. We regard the Durham rule, which focusesattention of the question of mental disease or mental defect as a causal factor in criminal conduct as a great step forward toward bringing the legal test of criminal responsibility into harmony *with modern medical and psychiatric knowledge concerning mental disorder. Under the present law, a person acquitted on the ground of insanity must be confined in a mental institution until such time as he can prove that he is sane. The community is protected, and the accused receives treatment for his mental disease. The use of the Durham rule by the District courts has not loosed a flood of criminals upon the public. On the contrary, it has afforded greater protection to the community, and has been more just to the individual, than the usual criminal sanctions. The Durham rule has been warmly approved by eminent judges, legal commen- tators, psychiatrists, and others who have carefully studied the problems of criminal responsibility. The Department of Justice and the U.S. attorney, who are charged with the duty of prosecuting criminal cases, have repeatedly stated that the court decisions in this field are "working out" and that their task in the administration of justice would be disrupted by enactment of title II. We think that no adequate basis has been shown to override their views, and `we urge that title II not be enacted. Third, we oppose title III of the bill, which would reinstate the plainly un- constitutional system of arrests for investigation which the District Com- missioners, after the most careful deliberation, ordered discontinued in March 1963, only 8 months ago. Not one lawyer has disputed the outright illegality of arresting persons for investigation or on suspicion. Not one lawyer has claimed that it could be constitutionally continued. The report of the Horsky committee explodes every legal and factual justification for investigative arrests, and demonstrates their pragmatic vice. Despite the assertion in section 301(c) of the bill that the detention is not an arrest, it clearly deprives a person of his liberty and violates the fourth amendment to the Constitution which specifically prohibits any arrest except upon probable cause. Title III strikes at, the heart of the Bill of Rights and abrogates the very protections which distinguish us from a police state. It should be rejected by the Congress. Fourth, we oppose the provisions of title V which provide for mandatory minimum sentences `tad disrupt the iehabihtation procedures of existing parole laws. High mandatory minimum sentences do not deter crime. They produce bad results by depriving prosecutors of the ability `to secure cooperation from some criminals in exposing and helping convict other criminals, by making it more difficult to obtain convictions because juries often will not convict a criminal when they think the penalty is too high, and by depriving prisoners of effective incentives for good behavior. Thus, the enactment of title V will tend to result in more acquittals and will not protect the District against crime. Fifth, we oppose section 507, which would amend the District's obscenity laws. We do not favor obscenity. However, we think the ex parte methods proposed in that section would violate constitutional limitations. The Nation's Capital should lead in protecting, rather than destroying, free- dom of speech, press, and other expression of ideas. We abhor obscene mate- ulals and agree that there are some kinds of materials which are so obscene that they deserve no place in a civilized community. But there is the widest dis- parity of views as to what is truly obscene or indecent and what constitutes the exercise of expression protected under the first amendment's guarantee PAGENO="0490" 484 AMENDMENTS TO CRIMINAL STATUTES OF D.C. of freedom of speech and press. In such an area, there should be the greatest care taken to avoid having constitutional rights abrogated on the basis of individual whim or caprice. Under the present District law, the sale or exhibition of obscene or indecent material is subject to criminal penalties of fine and imprisonment which are imposed after a trial. Section 5ff1 of this bill, however, would impose censorship through the technique of ex parte restraining orders, issued without a hearing. Moreover, these ex parte orders would apply not only to the materials themselves alleged to be obscene or indecent, but to all personal and real property used in connection therewith. Thus, a bookseller, or newspaper publisher, or theater- owner, or anyone having any materials alleged to be obscene or indecent, could be entirely shut down and deprived of the use of his property prior to a trial. We think this procedure would violate the constitutional guarantees of due proc- ess of law. We think these provisions of section 507 are too drastic to be used in the delicate area of speech and press which is specially protected under our Con- stitution. In trying to eliminate household vermin, we should not burn down the house. There are other ways to combat obscenity and indecency than by the disconian sanctions of section 507 which would destroy essential constitu- tional protections and choke off freedom of expression, speech, and press. We therefore urge that section 507 be rejected. Thank you for permitting us to present these views on ll.R. 7525. Our next witness is Mr. Alexander Benton. Is Mr. Benton here? (No response.) The CHAIRMAN. Is Mrs. Fischer here? (No response.) The CHAIRMAN. Do we have other witnesses who want. to be heard? (No response.) The CHAIRMAN. We have three more witnesses listed. They were not due until 11 o'clock, and this was done purposely because we have an appropriation~ markup session this morning at 10:30, and I must attend that session, at least for the purposes of providing a quorum; and we will stand in recess then until 11 o'clock when we will continue. * Wc have four more listed witnesses and we will complete them at that time. We will stand in recess until 11 o'clock. (At this point a recess was taken.) The CHAIRMAN. The committeewill come to order. First, my apologies fOr being gone for so long, but we had the District of Columbia appropriation bill up for a markup. It is a very important piece of legislation. It detained both Senator Mcintyre and me. My apologies to you, Mr. Bennett. We will hear you now. STATEMENT OP JAMES V. BE~1TETT, DIRECTOR, U.S. BUREAU OP * PRISONS The Cii UR1I~\ Just be se'ited there Mi Bennett It is alw'tys good to welcome you to this committee. . I would like to make a statement which, I think, somewhat indi- cates the present posture of the bill which is before us: * It is my hope that the committee may today close its hearings on all of the major provisions of H.R. 7525, with the exception of section 506 of titleS dealing with indecent publications. I believe it migh~be appropriate at this time to review the activities of this committee in its examination during this Congress of the need for strengthening the criminal justice code in the District of Colum- bia. It was my announced purpose when these hearings on the omm- PAGENO="0491" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 485 bus crime bill opened on October 10 to make an indepth examination of this broad subject matter. The House bill actually contains 12 proposed changes of law in 5 separate titles and deals with two of the most complex and difficult subjects in the criminal law field today-Ma~lory and Durham rules. During the past weeks and before this day is over, we will have listened to 42 witnesses. They have included some of the outstanding legal scholars from prominent law schools around the country; prac- ticing attorneys dealing closely with the crime picture; medical- psychiatric experts; police chiefs from several of our Nation's major cities; and representatives of our local citizenry who must live with this crime upsurge in the Nation's Capital City day in and day out. It was the committee's hope that this in-depth examination would. be completely objective and I believe this commitment has been carried out. I believe it is noteworthy that the witnesses we have heard have been the finest the committee could secure in the broad field of law enforcement. This committee by the end of today will have listened to 23 hours of testimony since our hearings on this bill began on October 10. The committee records show that no single piece of legislation has received greater attention in this committee for many, many years; Likew ise, this committee in its efforts to examine this cit~ `s crime problems, held joint hearings with the House District of Columbia Committee on February 6, 25, and March 4, listening to 10 witnesses at tha.t time. Subsequently, on April 2, this committee again heard witnesses on four different bills dealing with the crime situation. In my judgment this committee is.making.a most conscientious and deter- mined effort to bring about some accomplishments in the difficult area of law enforcement in this city. As we have heard so many times from witnesses from all over the country, this city faces the same problems that other cities do in the rising crime trend. However, that is little consolation as any crime is too much crime. I still say we should take every reasonable step to strengthen the `~rmn of the l'tw enfoicement `igencies as long `is consti t.utional .guarantees are provided. We have attempted to. hammer home the constitutional guarantees related to the crime problems. Those accused must have their constitutional guarantees but law- `tbiding men, women, and children must also have their constitutional guarantees of. the safety of the streets and their homes. It will now be the committee's task to deal in executive sessions with t.he information we have at hand. I hope that this can be done expeditiously in the w eeks `ihe'md `ir~d the decisionm'mking is not a simple task `is I know other people w ho h'u e listened to the testimony o~ ei these months, will agree. May I extend the appreciation of this committee to the witnesses we li't~ e c'ifled back se~ evil tnnes on v'mnous sections of this bill foi their attention to their official positions. And now, Mr. Bennett, we will be very happy to hear from you. Mi BENNETT Sen'itor Bible, ~ members of the committee, `is Director of the Federal Prison Bureau and at one time a member of the advisory boa.rd of the American Law Institute, in its dra.fting of its model penal code, I wa.nt fist of all to congratulate you for the thoughtful work you have done here and for the care with which you are going into this entire piece of legislation. PAGENO="0492" 486 AMENDMENTS TO CRIMINAL STATUTES OF D.C. It is a most difficult problem to deal with. I come in that capacity but I am here particularly to comment on some of the penalty provi- sions of the statute. I have a statement, Senator, but since time is of the essence here I think I will merely file the statement and, with your permission, talk a little about these penalty provisions. The CHAIRMAN. Your statement will be received, Mr. Beiinett, and incorporated in full in the record. (The statement of Mr. Bennett follows:) STATEMENT OF NAMES V. BENNETT, DIREcTOR, U.S. BUREAU OF PRIsoNs I appreciate the opportunity of appearing before this committee on H.R. 7525. I have been a resident of this area for the past 45 years and both in my official capacity and as a private citizen have always been much interested in our crime problem and what can be done about it. There are aspects of the pending bill that I heartily approve. On the other hand there are proposals which I believe to be poorly grounded. I am happy to see that your committee is giving it such careful consideration. There is no need for hurry or hasty action. *The crime situation in the District is, I believe, not as serious as some would have you believe. The police here are doing an excellent job and Washington is not a city with an inordinate amount of crime. There is virtually no organized crime here, no gang killings, no racketeering of consequence, no corruption of public officials, and virtually no commercialized vice. The crime we have here largely stems from the cultural changes that are occurring, from the fact that Washington is a haven for the handicapped forced out of other areas. Also Washington lacks employment opportunities for certain types of workers who drift into crime. But despite these problems there are eight of our larger cities with a higher crime rate than Washington. To be sure, we have our share of murders, armed robberies, assaults, and similar serious crimes, but considering the upheaval occurring in our culture, the tensions arising from durrent racial conditions, and the ever-widening number of statutory crimes, I believe we should pauSe to put the situation here in proper perspective. I say this in the hope you will not proceed too rapidly and hastily with this legislation and will break down the various sections and titles into separate bills, study them deliberately, and consider each on its merits. If this is done I think you will wish to consider modifying -the penalty provi- sions for burglary and robbery. These are the sections that provide a mandatory minimum of ~ years for second-degree burglary and a mandatory 20-year mini- mum for first-degree burglary. These Draconian penalties almost without paraflelelsewhere in the United States are self-defeating. I am convinced they will not have the intended effect of deterring this type of offense. Moreover. I find it difficult to understand why these severe mandatory mini- mum terms have been proposed. The sentences imposed in the District of Columbia are already severe, and on the average, much higher than in any other Federal jurisdiction. Even in comparison to the States the District ranks, according to fiscal year 1960. figures, third among the most severe sentencing jurisdictions. Offenders convicted of burglary in the District of Columbia, as a matter of fact, now serve longer sentences than in any other State or Federal jurisdiction in the country. If crime can be stopped or deterred by heavy penalties then the District should have no burglaries or robberies. I do not mean to infer that there are not some instances where very heavy penalties are justified. And the law as it does now should make it possible for a judge to impose heavy penalties. But the law should also leave to the judge the discretion to make distinctions between one offense or one offender and another. He should be free to impose lighter terms where the infraction is minor or u-here there are circumstances in mitigation. The mandatory aspect of the penalties proposed by IT.R. 7525 will, if the bill is enacted. inevitably bring about injustices just as have all other mandatory sentencing laws passed by the Congress or the State legislatures. They have not only brought about injustices hut have also created serious problems for prosecutors, judges, and law- enforcement officials. PAGENO="0493" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 487 Moreover, statutes providing harsh mandatory terms do not work because judges, juries, and even prosecuting attorneys find ways of getting around them. Prof. Paul Tappan, in an article, "Court Treatment of General Recidivist Statutes" (48 Col. L. Rev. 238 (1948)), has documented just how prosecutors, courts, and defense attorneys evade the mandatory provisions of such statutes. He cited one appellate court which frankly declared its hostility to the applica- tion of the law. In granting a writ of habeas corpus to a prisoner the court said: "If the sentence under review stands, the relator, who is 25 years of age, because he had previously stolen chickens, certain automobile parts, and a motorcycle, must spend the remainder of his days in a State's prison." He cited another case in which a district attorney had to apply to the S~ipreme Court for a writ of mandamus to a lower court judge who had issued an order forbidding supple- mentary proceedings under the habitual criminal act. The article gives other instances, some legal and some of doubtful illegality, in which judges have found ways to avoid imposing mandatory penalties. Similar examples of circumventing such mandatory penalties may be found in the Federal jurisdiction. The Congress in 1935 passed a law providing a man- datory 25-year term for armed postal robbery. It was passed in a gangster- ridden era and undoubtedly the Congress bad in mind the desperadoes of those days who held up post offices at the point of a machinegun, shotgun, or revolver. But in the years since then the Dillingers have gone, and their places have been taken by social misfits, alcoholics, emotionally disturbed youngsters, and others who may enter a smalitown grocery store doubling as a post office and brandish some kind of weapon to force the proprietor to hand over the contents of the cash register, including whatever stamps it may contain. The judges get around this statute in t~ o ways First they found that the statute did not prohibit the imposition of probation for such offenders. In many instances, although a prison term m~ty have been indicated, the judges placed the defendants on probation rather than impose a 25-year term. This is perhaps an outstanding example of the manner in which a statute has com- pletely frustrated its own purpose. Other judges have completely ignored the statutory requirement for a 25-year term and imposed a lesser term of years. These sentences were illegal, but they have not been challenged by the defendants, who benefited from them, or by the U.S. .attorneys, who were aware as well as the judge that a 25-year term would be contrary to the interests of justice. The Narcotics Control Act of 1956 provides other illustrations, both of the injustices of mandatory pênálties and the means that have had to be found to mitigate or correct these injustices. That statute, as you know, provides manda- tory minimum terms of 5 years or more for certain types of narcotics and marl- buana offenses. It does not provide any means of distinguishing between major racketeers such as Vito Genovese and the victim of the drug traffic, the addict. In fact, we have received smalltime drug addicts and pushers with much more severe sentences than the 15 years that was imposed on Genovese. Just last week I interviewed one such person at Leavenworth who received 40 years for possession and sale of demerol and other synthetic drugs stoleu apparently fiom a doctor s supply This sentence was partially the result of the require inent that a long prescribed sentence bad to be imposed on some of the counts Some of it, of course, was due to the savagery of the judge. Despite the fact the Narcotics Control Act has been tightly written there are other judges who find ways of avoiding the imposition of such grossly excessive penalties. In the typical case several counts are involved, some of which call for a mandatory minimum penalty and a few of which (26 U S 7273(a)) per mit the judge to use* his discretion in imposing probation or a term of 2 years or more with eligibility for parole Some judges in cases in which the 5 year minimum term would be too severe under the circumstances have dismissed the counts of the indictment carrying mandatory minimum terms and allowed the defendant to plead to a count permitting the judge to use his discretion in sentencing. This is typical of the way these mandatory sentencing provisions are circumvented and is the basis for my belief they are self-defeating. The American Law Institute's- model penal code, in tentative draft No. 2 (p 41) states that Experience has shown that * highly afflictive manda tory punishment prOvisions become nullified in practice." I predict that, if HR. 7525 is enacted with its present provisions for mandatory minimum terms of 20 years for first-degree burglary and 5 years for second-degree burglary, as w ell as the similal mandatory minimum terms for robbery when armed the following trends will result: PAGENO="0494" 488 AMENDMENTS TO CRIMINAL STATUTES OF D.C. 1. In worthy cases the representatives of the U.S. attorney's office will find ways of reducing the charges of burglary to petty larceny or some similar offense not carrying a mandatory minimum term. 2. The U.S. attorney's office will be under constant pressure from the defense counsels, and others, to reduce the charge. 3. The courts will not be slow in dismissing or finding unsupported by the evidence those counts of the indictment carrying high mandatory minimum sentences. 4. Defendants charged with offenses carrying mandatory minimum terms will not plead guilty, request jury trials, raise all possible defenses and technicalities. 5. Juries will be hesitant to convict a defendant when they know that con- viction will bring him a minimum 20-year sentence or 5 years fOr the relatively minor offenses that can be tried under the definition of burglary as defined in this bill. 0. The appellate courts will comb the record to find some grounds for reversing the case. 7. More cases will be brought to the President for the exercise of his clemency powers. All of these things have occurred as a result of the mandatory penalties of the Narcotics Control Act. This has also occurred in those States where con- viction of certain offenses carries with it a mandatory penalty. The result is destructive to the orderly administration of criminal justice and enhances the possibility that a defendant can escape the consequences of his crime. Under the proposed bill, H.R. 7525, if enacted in its present form, injustice Is not only inevitable as a consequence of the mandatory minimum penalties but as a consequence of the broad, all-embracing definition of second-degree burglary. As the definition now stands, almost any act of petty theft could be charged as second-degree burglary, as for instance: 1. A youth going into a dimestore and stealing a pencil from a counter. 2. A derelict passing an open garage, spying a pile of old newspapers and steal- ing them to sell them for a few pennies. 3. A young man walking down the wharf, and seeing a coil of rope on the deck of a nearby boat and impulsively stealing it. 4. An alcoholic removing a few~ pieces of rusted metal from a junkyard in order to sell them for the.price of a drink. These and many other examples could be cited, each of which would be second- degree burglary, requiring the judge to impose a 5-year minimum. You can predict the result as well as I. If the provision were actually enforced as written, the District of Columbia would have to build several more penal institutions to house the petty offenders that would be imprisoned for 5 years or more. Appropriations for the District of Columbia would have to be substantially increased. The crime statistics on the District would also give an unfair picture of the actual crime situation. But experience with only mandatory sentencing statutes around the Nation indicates that the provisions would not be enforced as written. Burglary charges would be downgraded to petty larceny, law enforcement people would find ways around the statute, juries would hesitate to convict and as a consequence respect for the law would drop another notch in public estimation. The present District of Columbia housebreaking statute seems more than adequate to me in its provision for a 15-year maximum term. But if the commit- tee feels that this statute should be broken up into two degrees of burglary, which I think would be desirable, the action relating to second-degree burglary ought to be rewritten. The distinction between first- and second-degree burglary ought to rest on whether the dwelling or room used as a sleeping apartment was occu- pied or unoccupied at the time of the offense. The rest of the offenses poten- tially covered by H.R. 7525's definition of second-degree burglary can be left to existing statutes. Similarly, the bill's provisions barring probation, parole short of the minimum, or suspension of sentence should he removed. We must not rob a man of all hope. No civilized country can afford to bury a man in the penitentiary giving him no chance to reform and set no goal he can possibly attain. We have done away with wholesale hangings, banishment, transportation to penal colonies so let's not substitute in this day and age medieval penalties of the same stripe. Our judges can safely be trusted with the responsibility of fair and adequate sentencing and protecting fully the public. They are carefully selected. well qualified, able, knowledgeable, and realistic men who take their responsibilities PAGENO="0495" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 489 seriously. They should not be hobbled by shortsighted, arbitrary statutes which rob them of their discretion. I urge, therefore, that minimum mandatory penalties be stricken from the bill and broad discretion left to the courts in making the penalty fit both the crime and the criminal. There are some other sections of the bill that I consider undersirable and will, if the committee wishes, file a separate memorandum at a later date. Average time served and average sentence of burglary offenders released from State institutions in 1960 State Average served in months Average sentence in months Average State served in months Avenge sentence in months Alabama Arizona Arkansas California Colorado Connecticut Delaware. . District of Columbia Florida Qeorgia.~.. Hawaii Idaho Illinois Indiana Iowa 22.7 20.2 23.5 26.9 16.5 17.3 14.9 41.1 23.6 27. 0 38.3 16.3 30.8 29.8 34.6 40. 1 46. 7 41.4 50.5 101.5 57. 0 21. 9 64.5 51. 4 70. 7 217.3 91.5 71. 7 * 77. 0 122. 5 Montana Nebraska Nevada New Hampshire New Mexico New York North Carolina.~... North Dakota. Ohio Oklahoma- Oregon Pennsylvania Rhode IslancL..._._ South Carolina South Dakota 13.9 21.4 16.7 21.3 22.4 33.7 22.4 16.3 25.4 21.3 18. 9 32.4 24. 8 29. 5 14. 3 29.4 42.7 3.). 9 140. 7 48.6 51.6 80. 7 50.4 44.4 178. 4 41. 7 36.3 71.4 36. 7 45 6 31. 1 52.6 Kansas Kentucky Louisiana 21.3 18.4 22.8 117.8 28.9 47. 7 Tennessee Texas Utah 25. 7 24.3 13. 1 55.4 202. 5 31. 1 Maine.___ Maryland Massachusetts Michigan Minnesota ... Mississippi Missouri 15. 5 18. 9 20.2 22. 2 25.3 27. 3 20. 9 42. 0 30.8 63. 1 137. 5 73.8 39.4 40.6 Vermont Virginia 30. 2 Washington 26. 0 West Virginia 25. 0 Wisconsin 16. 7 Wyoming 15. 2 53. 1 198. 2 128. 1 38.0 33. 7 The CHAIRMAN. You refer to the penalty provisions. You are re- ferring to the mandatory minimum sentences ~ Mr. BENNETT. I am referring, sir, particularly to title V. The CHAIRMAN. Very well. Mr. BENNETT. And the sentences prescribed there. You will note that the penalty for burglary in section 823 is 5 years for second degree burglary, and that is a minimum mandatory penalty which the judge must impose, of 5 years, for second degree burglary, and a mandatory 20 year minimum sentence for first degree burglary. These penalties are without parallel anywhere in the world. There is no State, no place, where these penalties are so large or as Draconian as these, and I cannot understand the reason why these penalties should have been proposed. - They are inconsistent. Already the District of Columbia is sending men to prison for burghry and giving them hi~,her tver ige sentences than any other jurisdiction in the country. I will file with tile com- mittee a statement showing these penalties. In the District of Columbia the average time served in months for burglary is 41.1 months as contrasted, Senator McIntyre, with New Hampshire, which is 21.3 months, and so it goes. Some of these States, for burglary, have the average time served as low as 15 months. Wisconsin, which has a very fine criminal rec- ord, there the average time served for burglary in WTisconsin is only 16 months, and so it goes. PAGENO="0496" 490 AMENDMENTS TO CRThflNAL STATUTES OF D.C. And it is to be borne in mind that the judge has no discretion in this bill when it comes to imposing the penalty. Neither you nor I, Senator Bible, from your experience in the law courts, and so on, know how difficult that makes the problem of prosecuting attorneys when he comes to, after indictment, choosing the charge. You realize the pressures that are brought upon him. And you realize, I am sure, that these penalties are self-defeating. Efforts are made, and successful effort~s are made, to circumvent these penalties by every person and every individual having any contact with the case. Judges and courts undertake to avoid them in various ways. They charge the case out of court. Some of them will ignore the statute entirely, and other judges, of good conscience, find ways to prevent imposing this mandatory penalty. The defendant, since he has nothing to lose, in every case will de- mand and get a jury trial which prolongs the case, and adds additional work to the court. He will appeal it. And the appeal courts, as you know, Senator, are likely, to comb the record for technicalities by which they can upset the conviction when such a mandatory penalty is imposed. We have ha.d examples of this sort of thing in the Federal system. In the Federa.l courts there are two, only two, laws where mandatory penalties are required. One is the robbery of a post office while armed. That gives a man- datory sentence of 25 years. Now, this penalty or this statute or people, rather, who are indicted under this statute are relatively few in the number of cases, but there are some cases. It frequently happens that a person will go into a country store, and I am reciting a specific case, where he goes into a country store and he robs the store. Well, there happens to be a post office in that store. Then the case is frequently made into a Federal case and it is transferred to the Federal court and the person is subjected to a man- datory minimum penalty of 25 years. Well, judges get around the, statute in two ways. First, the courts found that probation was applicable in such cases and even though they realized that the defendant might require some period of treat- ment in an institution to avoid this 25 year penalty they would grant him probation. Other judges will completely ignore the penalty provision and sen- tence him, under whatever they feel the circumstances require. Now, of course, the defendant doesn't appeal that. And the U.S. attorneys for the most part have been reluctant, and I know of no case where they have filed a mandamus provision, to require the imposition of the longer sentence. The other statues on the Federal books that require mandatory pen- alties are under the Narcotics Control Act. As I guess you know, it provides for a mandatory minimum penalty of a term of 5 years for the first offense of possession of narcotics and 10 years for the second offense, and so on. Now, the judge can make no distinction in these cases. When he has a case before him of the victim of the drug peddler, the addict, PAGENO="0497" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 491 he has to give him the same sentence that he gives the bigtime racketeers. Mr. Vito Genovese, who was one of the bigtime racketeers in the drug business, received a sentence of 15 years; whereas I have another case of a prisoner that I just recently interviewed last week out in Leavenworth who had stolen some synthetic Demerol tablets from a drugstore and sold them. There were a number of counts involved, and he received a sentence of 40 years under the mandatory provisions of the sentencing. I am hopeful that some of these things are going to be modified. Other committees of this Congress have this matter under considera- tion, and I hope that these matters are going to be modified. One of the interesting things, Senator, I suppose you realize, is that section 501 here, which provides for penalties for assault with intent to kill, rob, rape, or poison-they have described it-they have prescribed a new penalty there which is a minimum term of 2 years; whereas, burglary first has a minimum term of 20 years. This is totally inconsistent, it seems to me, to consider assault with intent to rob or rape-demanding a penalty less for that than when it is burglary. Take what you can do under this burglary statute. The wording of the statute is so broad that almost any offense can be brought under it. V For instance, in burglary second degree, a youth who goes into a dime store, for instance, and steals a pencil or anything else, tech- nically can be brought in under that statute and given a minimum sentence of 5 years. A drunken derelict passing by a garage-this is an actual case- passing by a garage spies an old pile of newspapers and takes them to sell them for a few pennies to get some smokes. V He can be sent to prison and in this particular case would have had to be sent to prison for a minimum of 5 years And this is another actual case. V V A man walking down here by the wharves sees a coil of rope on the deck of a boat, and he more or less compulsively steals it and he goes to jail. The judge has no discretion. He goes to jail for a minimum of 5 years. Stealing a tire or a piece of junk from a junkyard also takes a similar penalty. V V We can sit here and cite examples of this kind all day long. I just bring that up to show that these penalties are in no way consistent with the offense. V I do not believe that they will work. The CHAIRMAN. May I ask you a question, Mr. Bennett? V V You have been Director of the Federal Prison System for how many years? Mr. BENNETT. Twenty-seven years. V V The CHAIRMAN. Twenty-seven years? Approximately how many men are directly under your jurisdiction within the Federal prison system? V Mr. BENNETT. At the present time about 24,000. V The CHAIRMAN. My interest in these particular sections would be whether or not, in your considered judgment, a mandatory minimum sentence is or is not a deterrent of crime. V V V V V 25-260---64-pt. 1-32 PAGENO="0498" 492 AMENDMENTS TO CRIMINAL STATIITES OF D.C. Mr. BENNETT. I do not think so, Senator. I do not think making a penalty mandatory has any influence whatever upon the individual who might be contemplating or might be involved in the commission of a crime. The CHAIRMAN. I am sure that must have been the objective of the authors of the bill and the proponents of the bill, to build in a manda- tory minimum sentence, believing that if there. was a mandatory mini- mum sentence that this might serve as a deterrent to crime. In your opinion, you do not think it would be? Mr. BENNETT. I do not think it would be. In fact, it probably or might possibly act in just the opposite direction because, as I cited with regard to these mail robbery cases, people would escape or would drcumvent these charges. The CHAIRMAN. Well, that is a new approach to this particular problem. It was said by the Director of the Federal Penal Institution in the District of Columbia and you might like to comment on it. If I recall his testimony correctly, it was to the effect that the man who has a mandatory minimum sentence is invariably a very recalci- trant and a very difficult prisoner to deal with because he knows he is going to be in for a minimum of 5 or 10 years as an absolute minimum. Now, would you have any type of a comment on that? Mr. BENNETT. Oh, yes, indeed. The CHAIRMAN. Because you have many men under your system who are also in under a minimum prison sentence. What kind of prisoners are they? Mr. BENNETT. Well, they are very difficult persons. You hold out no hope for them. You can assign no goal for, them to achieve, and they feel that they have nothing to lose, and the consequence is, of course, that it complicates our problems tremendously. It increases the tax burden. The CHAIRMAN. Well, do they attempt to break out of the peni- tentiaries? Mr. BENNETT. Yes. He is a desperate person. The CHAIRMAN. A desperate person? Mr. BENNETT. When he is on the. lam and, with these charges against him, why, he is an extremely dangerous person. We have been trying, Senator, for 500 years to solve the problem of crime by imposing severe penalties. We did it. There is a very famous case of the lazy apprentice. As you know, they executed him so that other apprentices would not be lazy. We transported people. We branded them. We drew and quar- tered them in times past, and it did not solve the crime problem. It is extremely difficult to scare people into complying with the laws especially if they are hungry and especially if they are in search of something by which they can alleviate their immediately emotional problems. So I say to you, Senator, and hope that when you reconsider this bill at least you will eliminate the mandatory provisions. , I have no particular objection to the maximum specified here, but I want to leave these matters to our judges. PAGENO="0499" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 493 Our judges are conscientious people. They are understanding people. They know the situation here in the District or anyplace else they are, and I think that man ought to be left to them. `Why have a judge on the bench if you restrict him so that he has no alternative? And I think that it will be in line with the-the changes in these penalties or eliminating these penalties will be in line with the atti- tude of the Congress. I agree that perhaps we ought to break the burglary definition down into two sections, of first degree burglary and second degree burglary, and then we might-any penalty within reason-any maximum penalty within reason would be agreeable. But to put in a mandatory penalty is a step backward. The CHAIRMAN. I certainly understand your position, Mr. Bennett. *The Senator from New Hampshire? Senator MCINTYRE. No questions. Thank you, Mr. Bennett, for your excellent statement. The CHAIRMAN. I want to join in that word of thanks and again `express my apology for running as late as I did. It was unavoidable. I do appreciate your coming here to give us the benefit of a tremen- clous number of dedicated years of service in a very difficult field. You have an outstanding record in the field in which you serve. Mr. BENNETT. Thank you very much, Senator. If there are any other parts of this bill later on, as you begin studying them more, if you want me to comment on or file a brief on them, I will be very happy to do so. The CHAIRMAN. I primarily wanted your views on the effect of a mandatory minimum sentence, because it appeared tO me, in calling you as a witness, that we would have somebody who has had vast experi- ence in this field. Does this average out to about 25,000 Federal prisoners a year? Is that a fairly steady figure? Mr. BENNETT. It has been increasing, Senator. The CHAIRMAN. It has been increasing? When you went in as Director of Prisons how many Federal prisoners did you have? Mr. BENENTT. We had about 13,000 or 14,000. The CHAIRMAN. You had about 13,000 or 14,000, and you have been Director for what did you say? Mr. BENNETT. Twenty-seven years. The CHAIRMAN. Twenty-seven years, and it has increased to ap- ~proximately 25,000? Mr~ BENNETT. That is right; yes, sir. The CHAIRM4N. Well, as the Director you have firsthand knowledge ~of how the prisoners under you react. Mr. BENNETT. Let me just add one other figure, Senator, that you might like to keep in mind. The District of Columbia has more people in jail per 100,000 of population than any other State or section or political entity in the country. It has 287-in 1961 it had 287 men in prison per 100,000 of popula- tion, contrasted, for instance, with New Hampshire, which has only 31. The CHAIRMAN. Well, they are so law abiding. Mr. BENNETT. So, they do not have to put people in prison in New Hampshire, Senator, in order to have an orderly State. PAGENO="0500" 494 AMENDMENTS TO CR~Ifl~AL STATUTES OF D.C. The CHAIRMAN. Well, that is an interesting statistic. I did not realize that. Will you repeat the statistics again? Mr. BENNETT. Yes; on December 31, 1961, there were 287.7 people in prison per 100,000 of population in the District of Columbia. On that same date, in New Hampshire, there were 31.2 persons. In Massachusetts there were 38.1 persons, and so on. The average number, as I recall the statistics, is about 130 persons in. prison per 100,000 of population for the country as a whole. The CHAIRMAN. I appreciate that additional statistic. Senator MCINTYRE. Do you happen to have figures on a State like: Michigan? Mr. BENNETT. Yes, sir. Senator MCINTYRE. What was the average-did you say per 100,000 ~ Mr. BENNETT. I do not have them immediately before me, but I cam guess that it was about 165. Senator MCINTYRE. And that is a sharp rise then over the 31 that you. found in New Hampshire? Mr. BENNETT. Oh, yes, sir; incidentally, too, Senator, the penalties for burglary or the time served for burglary in States like South Caro- lina, North Carolina, and Virginia are about 16 months. I can give you that. It is about 16 mont.hs. The CHAIRMAN. I would like, to have you furnish tha.t for the record. It has been testified to earlier. I understand you to say that some of these tables did develop that? Mr. BENNETT. Yes, they do. The CHAIRMAN. I certainly appreciate your coming here and giving us the benefit of your knowledge. Mr. BENNETT. Thank you, sir. The CHAIRMAN. Thank you very much. Our next witness is Mr. Sidney Zagri, legislative counsel, of the International Brotherhood of Teamsters. Mr. Za.gri? STATEMENT OP SIDNEY ZAGRI, LEGISLATIVE COUNSEL, INTERNATIONAL BROTHERHOOD OP TEAMSTERS The CHAIRMAN. Good morning, Mr. Zagri. Mr. ZAGRI. Good morning, Mr. Chairman. Mr. Chairman and members of the Senate District Committee, al- though I am appearing specifically on title I and title III, of H.R. 7525, as well as on H.R.. 5726, I would not like tO have this opportunity escape me to say that the testimony by the preceding witness, Mr. Bennett, Director of the Bureau of Prisons, his comments on the meat ax approach of this bill, its drastic approach in finding solutions to crime, illustrates the approach of the bill in title I and title III as well. And we are here specifically in opposition to H.R. 7525, particularly title I and title III, as well as H.IR. 5726, which has been offered by U.S. Attorney Acheson and Deputy Attorney General Katzenbach as a corn- promise solution. I note in today's paper that the committee is thinking in terms of a compromise solution on the Ma7lo~y rule. I trust it has not reached PAGENO="0501" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 495 that because I am going to direct much of my testimony here this morning to point out that this so-called compromise- The CHAIRMAN. The committee has reached no determination on this bill. They have not met in executive session and there will be no determination until they have met in executive session. The indication was where there were possible avenues of working this out. Mr. ZAGRI. Because let me say that there can be no compromise with the techniques of the police state or with the essentials of personal liberty. There can be no compromise with "secret investigative" arrests, whether they be by Castro's secret police, the Soviet Commit- tee for State Security, or by the Metropolitan Police of the District of Columbia. There can be no compromise with fundamental constitutional guar- antees. H.R. 7525 openly flouts the Constitution; whereas, H.R. 5726 hems and haws, advances and retreats between constitutional safe- guards and arbitrary police action. What it gives with one hand, it takes away with another. H.R. 5726: I consider H.R. 5726 the more dangerous of the two bills because it is the more plausible. It appears to afford constitu- tional safeguards without assuring them. It is an attempt to recon- cile "the exigencies of criminal prosecution with the imperatives of constitutional liberty." In reality, it ends in whittling away danger- ously at vital constitutional safeguards. Its principal proponents-such as Deputy Attorney General Katzen- bach-start out with the major premise that the Mallory rule is a good one-but not for the District of Columbia. In defense of the Mallory rule, he states: * * * the District court made clear its intention to prevent law enforcement officers from delaying hearings for the purpOse of eliciting confessions. This is as it should be. He then states: The problem which gives rise to the legislative proposal before the committee not with the Mallory rule but with its application in the District of Columbia. He makes the rather remarkable proposal that Federal rule 5(a), requiring preliminary hearing without unnecessary delay, which is effective in all of the courts of the 10 judicial districts of the Federal court system, and with all the States having similar enactments, be repealed in its application in the District of Columbia. Rule 5(a) is aimed at preserving constitutional rights and, in par- ticular, procedural due process of law. It provides for the treatment of accused persons on an equal basis-the innocent as well as the guilty. It offers protection to the impoverished, uneducated, or youthful suspect. The hardened, well-heeled criminal does not need a city magistrate to advise him of his rights. He knows those rights. He has highly paid attorneys to advise him in advance. On what basis can he justify that the lowly, the illiterate, the im- poverished of the District of Columbia be detained by the police up to6 hours without probable cause to believe that the accused has com- mitted a crime, and afford the right of prompt arraignment in all other jurisdictions? PAGENO="0502" 496 AMENDMENTS TO CR~iD~AL STATUTES OF D.C. Deputy Attorney General Katzenbach seeks to justify a double standard of constitutional safeguards on the basis that- Only in the District of Columbia do the Federal courts have broad jurisdic- tion over crimes of violence which characteristically lack eye witnesses and independent evidence. By contrast, he points out- most Federal criminal cases in other jurisdictions involve frauds, mail thefts, narcotic violations and the like, where there is substantial evidence apart from a confession; i.e., controlled property, ~nancial records, tax returns, et cetera.. He then concludes that- It is reasonable to consider the problems in the District of Columbia as being rather unique with respect to the Mallory rule and deserving of congressional consideration in legislation limited in its application to the District of Columbia. While it may be true that such a distinction may exist between the District of Columbia~ and other Federal jurisdictions, it is not true with reference to the State jurisdictions where the Mallovy rule has been applied. As recently as last week, in People v. Donovan, 326 W 2A1, the Court of Appeals in the. State of New York, where crimes of violence are as great as in the District of Columbia, applied the Mctllo?y rule. And I quote from that citation: Quite apart from the due process clause of the 14th amendment, New York's~ constitutional statutory provisions, pertaining to the privilege of self-incrimina-- tion and the right to counsel, not to mention the State's guarantee of due process, require its exclusion. In this case the court excluded a confession solely on the grounds: tha.t it was taken during a period of unnecessary delay prior to arraign-~ ment. And I think that it is especially significant at this time that a. State like New York, which includes, of course, New York City where crimes of violence are certainly as many in number or probahly~ much higher in number, and almost as great in frequency, as they are in the District of Columbia, that the New York Court of Appeals: applied the Mallory rule. The Supreme Court has enforced the Mcdiovy-McNabb rule in the States under the 14th amendment. The rule in the Mallory case is in full force and effect in the city of Buffalo, N.Y. This is in accordance with section 165 of New York State Code of Criminal Procedures, which provides: The defendant must in all cases be taken before the magistrate without un- necessary delay and he may be given bail at any time of the day or night. An examination of crime statistics of cities with half a million to 1 million persons establishes Washington, D.C., as No. 1 in two majoi~ crime categories of violence, and Buffalo, N.Y., is recorded as 16th in these same two crime categories. A check with Lieutenant Phelps: of the Buffalo police force indicates that: We do not arrest a man unless we are ready and prepared to go to court. The Mallory rule did not impede effective police practices in Buffalo. Operating under the New York State Code, the pOlice are required to use brains rather than brawn. In Great Britain the suspect cannot be questioned, with the exception of clearing up ambiguities, once he is placed under arrest. Yet we find according to the criminal statistics of England and Wales in PAGENO="0503" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 497. 1962, an unusually high percentage of crime solutions, particularly in acts of violence without the aid of the confession. Although crime is on the upgrade in England, felonies increasing from 283,220 in 1938 to 86,424 in 1962, we find that in 1962, there were 37,958 offenses. charging acts of violence with 32,027 cases cleared during the same year It is clear from these figures. that adherence to a strict code of police behavior is not a handicap to police efficiency. On the other' hand, slack and unimaginative police work cannot occur where re- course to extra legal action is not available in the solution of crime.. It should be pointed out that the MaZiory rule does not prohibit questioning of a suspect. It simply requires arraignment without' unnecessary delay The crucial period during which mental or physical coercion may be applied is between the time of detention and arraignment. The in- vestigation into lawless enforcement of law conducted by the Wicker- sham Commission showed that out of 106 cases reported between 1920 and 1930 in appellate courts where use of the third degree was charged, there were only 7 cases where the prisoner declai ed that the third degree was used after he had been brought before a city magistrate. Coercion itself is always hard to prove because the questioning takes place in secret It is true that H R 5726 provides th'it- Such questioning and the warning and advice required by subsections (a) and (b) of this section were, whenever reasonably possible, witnessed by a responsible person who is not a law enforcement officer or transcribed verbatim or recorded by a wire, tape, or other sound recording or conducting subject to other comparable means of verification. This provision simply provides for vei ification of the accuracy of the warnings and advice with reference to self incrimination, also to notify a relative or friend and consult with counsel This does not provide for verification of the actual questioning, and it is well estab lished that mere questioning, in and of itself, can be coercive under certain circumstances. .. . . ` " . Section 3 of H R 5726 establishes a 6 hour period for detention between the time of arrest and completion of the confession, state- ment or admission. Could not this result in establishing the norm' for investigative arrests? ` .` . . . Deputy Attorney Gener'il Katzenbach conceded this as a possi- bility in his questioning by Sen'itor Dominick in his appearance before this committee yesterday. This establishes an arbitrary standard in which questioning which, in fact, was coercive could tak~ `place and confessions so ~cquired would be admissible Deputy Attorney Gen eral Katzenbach seeks to justify the 6 hour rule on the basis that recent decisions of the District Court of Appeals have reversed con- victions based upon. confessions given 2 or 3 hours after arrest. He states: . . . . . . . Thus, "without unnecessary delay" has come to mean "without any delay." On cross examination, Deputy Attorney General Katzenbach con- cedes that while confessions were obtained within 2 or 3 hours or less after arrest, arraignment in some instances did not take place until the following day. The Mallory rule simply requires the court to find that under a particular set of circumstances, delay was unnecessary. It may be th'it in each of the instances cited by Deputy Attoiney Gen- PAGENO="0504" 498 AMENDMENTS TO CRIMINAL STATUTES OF D.C. eral Katzenbach, the court had good reason to find that the delay was unnecessary. It does not follow that because a confession was obtained within a short time after arrest, that the surrounding circumstances did not indicate the existence of unnecessary delay. The 6-hour detention period repeals the present rule banning inves- tigative arrest in the District of Columbia, which was enacted by the Commissioners as a result of the Horsky report, which found that there had been great abuse of police authority in arresting individuals on grounds of suspicion. There is no law called suspicion. Under the fourth amendment, the person may not be arrested unless there is probable cause before the arrest may be made. This probable cause may not be ascertained by an unnecessary delay through the media of the secret investigative arrest. The fact that there is a 6-hour limitation on the investigative arrest does not make it less a violation of a fourth amendment right. Despite all the constitutional window dressing of section 3, the fact remains that the suspect is informed of his rights against self-incrimi- nation, right to counsel, right to remain mute-not by a magistrate, not by a commissioner, but by the police. This bill substitutes the zealousness of police action for time-honored checks on the police through judicial machinery. The legislative policy behind the requirement that an officer making an arrest take the arrested person without unnecessary delay before the nearest available commissioner is spelled out by the U.S. Supreme Court in Mcil7abb v. United States (318 U.S. 332, 343. 344, p. 1582): The purpose of this impressively pervasive requirement of criminal procedure is plain. * * * The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. I wish to point out that the Katzenbach proposal does not divide this function. He vested all in the police authorities. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an im- portant safeguard-not only in assuring protection for the innocent but also in securing protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement, checks resort to those reprehensible practices known as the third degree which, though universally rejected, as indefensible. still find their way (354 U.S. 453) into use. It aims to avoid all the evil impli-~ cations of secret interrogation of persons accused of crime. I must agree with the Washington Post; editorial: * ~* ~ It is a sound principle of law that arrested persons should be taken before a judicial officer without unnecessary delay, that they should be advised of their rights by a judicial officer and that they should be subject to detention only upon the authorization of a judicial officer. The only effective way we can think of to make the police observe this principle of law is to forbid the use of any evidence, including confessions, obtaIned in violation of it. I must agree with Senator Morse's evaluation of this bill: The Acheson bill is a most unacceptable compromise. When one concludes the reading of the Acheson bill he discovers he has nothing but a meaningless hodgepodge left. I must agree with the- overwhelming majority of the 900-odd lawyers of the District bar who voted against all three bills (including the Acheson bill) aimed at a revision of the Mallory rule and permitting easy interrogation of suspects by policemen. PAGENO="0505" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 499 11.11. 7525, title I: Repeals the McNabb-Maliory rule and nullifies section 5(a) of the Federal `rules. While the Mallory rule is an ex- clusionary rule of evidence, its repeal will interfere with certain basic constitutional safeguards. It opens the door for prolonged detention for an unlimited period of time. Imprisonment incommunicado in- terferes with the right of habeas corpus, which is guaranteed by ar- ticle I, section 9, of the Constitution itself. If the prisoner's family or friends or lawyers knew where he was, they could at once obtain habeas corpus and compel the immediate production of the prisoner before a magistrate. No expediency would supersede the rule of immediacy-no court would permit custody without commital to be continued an instant because of the desirability of interrogation or the indavisability of warning confederates. The suspension of habeas corpus by police- men should be condemned. Unlawful detention takes away the right to bail guaranteed by the eighth amendment of the Constitution to insure personal freedom. Even after a lawful arrest only a magistrate can grant a person bail. Those who keep him from the magistrate are denying him the right to bail. Unlawful and secret detention deprives the accused to have the assistance of counsel for his defense; which is guaranteed by the sixth amendment. The Supreme Court through Justice Sutherland and Justice Black has declared that a person requires the guiding hand of counsel in every step in the proceeding against him. The constitutional right to counsel commences from the moment of the arrest of the prisoner to assist him in securing his discharge if the evidence is insufficient, to advise him about his statement during preliminary examination before the magistrate, to arrange his bail, and to protect him from abuses during confinement. Finally, unlawful detention tends to impair the right of the ac- cused under the fifth amendment not to be "compelled in any criminal case to be a witness against himself." This does not preclude proper questioning, but it is obvious that the line between proper and im- proper questions may easily be passed. Nothing but the conscience of the police officer can protect a prisoner from milder or drastic forms of the third degree so long as he is intheir uncontrolled custody removed from systematic prison regulations and isolated from the outside world. Title III: Title III seeks to accomplish indirectly what title I would do directly. It is, to quote the minority report. of' the House District Committee, "a legislative sheep in wolf's clothing." Although it is extensively designed to detain a material witness,. it does not provide that the material witness be in connection with a pending case. The Federal rules already provide for the detention of material witnesses under those circumstances. Actually under this title, any investigative arrest or any confession obtained could be used for the purpose of obtaining an arrest of' a person detained. The proponents of title I will do more than to "qualify and amend" the Supreme Court's decision in Mallory v. United States (354 U.S. 449); it will, in fact, overrule many court decisions and a long well- established judiciary policy of protecting persons against unlawful. arrest and secret prolonged ii iterrogation. PAGENO="0506" 500 AMENDMENTS TO CRIMINAL STATUTES OF D.C. It has been argued that the Iiiallo~,' rule hampers effective law en- forcement in that it is often difficult to show "probable cause" unless and until a confession has been secured. I have already pointed out that efficient poiiëe work does not depend upon obtaining confessions by unlawful detention, in fact the contrary is true. Reliance upon extra-legal methods for obtaining evidence results in sloppy police work: it results in disrespect for law because of the use of unlawful means by law enforcement officers. Earlier in our discussion, I referred to Buffalo as an example of the best behaved city in America where the Mallory rule was enforced. I suggest that there is a more basic reason for the crime rates in the two cities; that is, Buffalo and Washington. Let us áompare the situation of a man, a.ble bodied, unemployed, and penniless with a family to support. in Washington and in Buffalo. I do not suggest the gentleman has two families to support. I ask you to envisage him in the same family situation in Washington or in Buffalo. In Washington, he could not be given relief, desperately though he, his wife, and his children may need it. In Buffalo hewould beeñtitled tO relief. This relief would be supplied, in part, by Federal matching funds under the aid-to-dependent-children law, as amended in 1961 If he weie a single able bodied nrtn in Buff'tlo he would get relief from the city general assistance fund. Iii Washington, he would get no relief. The exclusion of a man from relief beca.use lie is able bodied, when he has a family to support and cannot find work, is inhuman. It arouses in the man desperation, bitterness, ai~d enormous envy. This is a tough society in which to be poor. The bitterness of the dispos- sessed is reflected in the crime statistics of this city and in the type of crime committed. l,\Tashington is the highest city in the Nation in incidence of; ag~ gravated assault and second to highest in the incidence of robbery. Out of 16 cities, Buffalo is 15th in the incidence of both aggravated assault and robbery. What is a penniless father of a family to do in Washington when his children cry for food or for more warmth on a winter's night? For many of low skills there is no work and no prospect of work. He must either beg or he must steal. Until we, too, have been faced with that choice I do not think we should feel sure of what we would do. In Buffalo, the same man has an additional choice. He can apply for relief. It is better than begging or stealing. I criticized the Mtirray thesis for simplicity. Am I opening myself to the same criticism here? My argument is a simple one. Many crimes in Washington are committed, on impulse, by desperately poor men denied help by the society which has rejected them as wage earners. I am not sugegsting that. this is the only or even the maj or cause of crime in this city. What I do suggest is that it is one of the major causes. I believe there is a positive correlation between the humane welfare regulations of the city of Buffalo and the low crime rate there. Scrupulous police work and a human approach to welfare prob- lems spells Buffalo, America's best-behaved big city. PAGENO="0507" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 501 A police force encouraged openly by its chief to demand extra-legal Tights in "fighting" crime and an inhuman welfare program directed by Members of the Congress who oppose advance in the area of civil rights spells Washington, D.C., where one's chances of being assaulted and robbed are higher than anywhere else in the Nation. May I urge upon members of this committee to call upon their col- leagues on the full Senate Appropriations Committee this week to replace the aid-to-dependent children program in the new District of `Columbia budget. Let us give it a try for 1 year. Let us see what de- moralizing results will flow from helping a poor unemployed and able- bodied man to feed his wife and little ones. Let us see what effect this innovation might have upon the crime rate. CONCLUSION It should be noted that the Ford Foundation has made a grant of $215,000 to the American Law Institute for the purpose of con- ducting an objective study of the rule in the Mailo~j case' and related problems raised by that case. I completely agree with Senator Wayne Morse that the Congress should put off making any decision in this matter until the American Law Institute has completed' its study. In the meantime, let us not be stampeded into any drastic departure eliminating basic constitutional safeguards. Let us remember that the basic separation of functions does not permit the police to pass judgment on the validity of their own arrests. ,Let us faceup to the `problem of the increasing crime rate in the District by improving the efficiency of the police, increasing the size of the force, raising the min- imum educational standards and training program. For example, the Buffalo Police Department requires high school graduates; the District police have many school dropouts on the force. And, finally, let us remember the problem of crime in the District `is far too complex to find solutions through any single panacea. Re- member that the concentration of crime here is in the central city `which economy is a disaster area. The average unemployment rate in -this area, calculated from 1960 census figure's, is 10.4 percent of the male work force. And this figure does not really tell the full story because we find -that when the average national unemployment is around 6 percent, that the Negro unemployment in the country borders nearly 20 percent. They are the first to be laid off and the last to be returned to work. Let us remember the warning of Judge Lehman, New York Court of Appeals in the Dontn case: Suggestions that courts should not hamper police by restricting them to the use of lawful methods seem to many of our citizens in accord with common- sense. Our boasted guarantees of liberty-it would seem-are so precious that `they must be kept for special occasions and not be subjected to the wear and tear ef daily use. Not so may the court treat these guarantees. In a court of law no argument of expediency can ever justify a lawless invasion of a legal right. The CHAIRMAN Thank you very much, Mr Zagri I appreciate your views. You made constant reference to Buffalo. Approximately how large a ci'ty is Buffalo? PAGENO="0508" 502 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Mr. ZAGRI. It is over 500,000. The CHAIRMAN. Do you have any knowledge as to the size of its police force? Do you know how many police they have there? Mr. ZAGRI. I can get that information for you (The information referred to follows:) INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHATJFFEtIRS, WAREHOIJSEMEN & HELPERS OF AMERICA, Detroit, Mich., December 16, 1963. In re H.R. 7525, HR. 5726. Hon. ALAN BmLE, Chairman, U.s. senate, Committee on the District of Columbia, Washington, D.C. DEAL SENATOR BinIE: When I testified before the Senate District Committee on November 6, 1963, on the subject of the Mallory rule, I was asked to supply figures for the populations and police strengths of Buffalo and the District of Columbia. The figures are appended below. District of Buffalo Columbia Population (1960) Present police strength 763,956 2,920 532,759 1,346 This means there is a policeman for each 261 persons in the District of Colum- bia and 1 for each 395 persons in Buffalo. Yet, it is the District of Columbia police who call for additional police powers. If I can be of any further assistance, please let me know. Cordially yours, SIDNEY ZAGRI, Legislative Counsel. The CHAIRMAN. I think it would be helpful to furnish it for th~ record because it apparently is a city of somewhat comparable size. It is a little smaller, but it is not surrounded by as large a metro- politan area as we have, but comparisons of that kind, I think, are very helpful. The Senator from New Hampshire? Senator McIN~rn~. I just want to compliment Mr. Zagri for a very fine statement and to assure him that the views that he has expressed here will be given every consideration by this committee. Mr. ZAGRI. Thank you. Senator McIN~m~. In view of the time situation here, I do not think I will ask any questions. The CHAIRMAN. Thank you, Mr. Zagri. We certainly appreciate your coming here this morning. Our next witness is Mr. Alexander Benton, of the Washington Bar Association. is Mr. Benton here? Mr. BENTON. Yes, sir. The CnAm~rAN. I regret to say this, while you are just getting here, Mr. Benton, but it is now 12:30 and that last call was for a quorum from the Senate, and we have to answer it. I am wondering what would be a convenient time for you to come back. I would like to have you return, but it is 12:30 at this time and we must go to the Senate. PAGENO="0509" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 503 Would tomorrow morning suit you all right? What is your schedule? Mr. BENTON. If you will excuse me just a moment, I will check. The CHAIRMAN. Would you check your calendar? I want to ac- ~omrnodate you because you have waited very patiently. We will have a voting session on the Senate floor all afternoon, so I hesitate to continue a hearing until this afternoon and if you can give me some indication of what your calendar looks like for tomorrow- Mr. BENTON. Senator, I find tomorrow morning will be convenient for me. The CHAIRMAN. I think we have one further witness and that is Mrs. Fischer, president of the Mount Pleasant Citizens Association. Is Mrs. Fischer here? (No response.) The CHAIRMAN. Apparently you are the last remaining witness, and I see that you have a full statement here. It is a 12-page state- ment, and I want you to do it justice. So, without objection, we will be in recess until 10 o'clock tomor- row morning. Mr. BENTON. Thank you very much, sir. (Whereupon, at 12:30 p.m., the committee was recessed, to recon- vene at 10 a.m., Thursday, November 7, 1963.) PAGENO="0510" PAGENO="0511" MALLORY AND DURHAM RULES, INVESTIGATIVE AR- RESTS, AND AMENDMENTS TO CRIMINAL STATUTES OF DISTRICT OF COLUMBIA THURSDAY, NOVE1VIBER 7, 1963 U.S. SENATE, COMMITTEE ON THE DI5TEIOT OF COLUMBIA, Wa~shingto%, D.C. The committee met, pursuant to recess, at 10:05 a.m., in room 6226, New Senate Office Building, Senator Alan Bible (chairman) presiding. Present: Senator Bible. Also present: Chester H. Smith, staff director; Fred L. McIntyre, counsel; Martin A. Ferris, assistant counsel; and Richard E. Judd, professional staff member. The CHAIRMAN. The committee will come to order. We have three witnesses this morning on titles I and III of the District of Columbia omnibus crime bill STATEMENT OP ALEXANDER L. BENTON, ON BEHALF `OP THE WASHINGTON BAIt ASSOCIATION The CHAIRMAN. Our first witness is Mr. Benton of the Washington Bar Association. `Mr. Benton? `Mr. BENTON. Good morning, Senator. The CHAIRMAN. We appreciate your courtesy in returning this morning because of the legislative situation that precluded us from hearing you yesterday. Mr. BENTON. I appreciate that, Senator. I well understand the problems. Sir, if it please the Senator, I have a prepared statement. Of course, in view of the fact that there has been much testimony already with reference to titles I and III, as you indicated yesterday, and also as indicated in this mormng's press, I would like to submit this ~statement. The CHAIRMAN. The statement will be submitted and will be incorporated in full, and you may highlight it or add anything that you would like (The statement referred to follows:) STATEMENT OF THE WASHINGTON BAli AssocIATION Mr Chairman and members of the committee my name is Alexander L Ben ton. I am a member of the bar of the District of Columbia and I appear before you in behalf of' the Washington Bar Association. I would like to take this 505 PAGENO="0512" 506 AMENDMENTS TO CRIMINAL STATUTES OF D.C. opportunity to express my sincere appreciation for the opportunity to appear before this committee and offer testimony relative to titles I and III of HR. 7525. At the outset, the Washington Bar Association would like the record to show that it opposes the entire act in general on the ground that no new legislation is needed for the purposes or so-called evils the act proposes to remedy. Sec- ondly, the act is applicable only to the District of Columbia and specific opposi- tion is registered with respect to titles I and III of the act, for reasons which will be more fully set forth herein below. TITLE I Section 101(a). This title, as I understand it, would not exclude confessions or statements made during detention simply because of a delay in having the arrested person brought before a committing magistrate or other judicial officer; that is, an officer clothed with judicial authority and concomitant power to com- mit persons charged with violation of laws of the United States. The bare language of this section is pregnant with evils of a most sinister nature. It strips an arrested person of fundamental constituental rights. And, contrary to the views held in some circles, it does not afford protection to the public or society in general. It attempts to achieve by statutory flat what only can be done by a competent and properly administered judiciary. It lays stress on the viciousness and the heinous nature of an offense as the need for relaxation of the current rule relative to admission of confessions and statements rather than stressing the need to safeguard the fundamental constitutional rights of the individual which it is submitted is the beacon for safeguarding the pub- lic. It is submitted that a denial of the constitutional rights of a single individ- ual can only lead to a weakening of the confidence of society in the whole struc- ture of criminal justice. While the language fo title I does not so state, the majority view of the re- port accompanying H.R. 7525 states that one of the purposes of title I is to re. turn to voluntariness as the test of admissibility of confessions. It would ap- pear that one of the tests of voluntariness is whether there wa a delay, other than adminitrative, in taking the arrested person before a committing magistrate. It should be observed at this juncture that neither the language of title I nor the report of the majority places any time limit on the delay. Conceivably, one could be held for months before being allowed to confront a committing magis- trate or other judicial officer-thus delay in itself, without more, could be tantamount to coercion. The majority views of the House committee report relates that a confession, to be admissible, should not be the product of coercion, duress, physical com- pulsion, promises, or threats; but if such foregoing factors are absent the con- fession should be admissible provided it is given freely and voluntarily and that the purpose of title I is to insure such a result. It is submitted that title I would do just the opposite; From practical experience it is known that a delay in itself could produce some of the very evils which constitute the irregular factors. Having had the experience of representing defendants in criminal cases in both the U.S. District Court for the District of Columbia and the District of Columbia court of general sessions, I have a somewhat more intimate and personal knowl- edge of some of the interplay between defendants and police officers. In many instances there have been situations where an arrested person has been held until he decides to give a statement. In some instances it was intimated to the prisoner that he would be permitted to make a phone call to contact a friend or relative or to contact a bail bondsman, only if he cooperated with the officer. In some of these cases the prisoner finding himself in such a situation has indi- cated he would cooperate only after he could talk with a particular officer, but it would develop that the particular officer was on leave or was off duty and he would not return for several hours or, in some cases, several days. And thus the prisoner would be held incommunicado until such time as the officers or officer arrived. It would then develop that the defendant would make statements to this par- ticular officer because he had a special confidence in him. Of course in many in- stances such confidence was ill-founded. In most cases he would exact from the officer an oral and confidential promise to help him with the district attorney or to recommend a low bond. In return for such oral promises, totally unsupported by any consideration, the prisoner unburdens himself orally. The officer at no time, tells the inmate that he does not have to make a statement. After hearing PAGENO="0513" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 507 all of the story the officer goes to his typewriter and types out his recollection of the confession plus any view of his own. Usually he begins the typewriter version with language to the effect that the accused was advised of his rights. However, in many such instances the officer does not spell out just what those rights are. The typewritten version is then presented to the defendant for him to sign, which he does in 90 percent of the cases without bothering to read it. In many cases, he cannot read so he has to rely upon what the officer tells him is in the type- written version. In other situations the defendant is told he doesn't have to make a statement "but it will be better for you if you do or the sooner you do, the sooner you can get out on bail, or if you cooperate I will see that you get a bondsman." To the neophyte and uninitiated, this is tantamount to saying to him, "You have no other choice." It should also be observed that in many such situations this represents the first time the defendant has been locked in a cell and some of the cell blocks are permeated with stench and foul odors as a result of being inhabited by drunks and unclean persons, and there is an additional factor of, in many cases, having to be in the same cell withsexual deviates. The upshot is that in many instances, as a practical matter, being advised of one's rights by a police officer, is the same as receiving no advice because of the' manner in which* the advice is given. However, when these same cases are brought into court and a motion is made to suppress the confession, it amounts to a contest of credibility ,between the testimony of the defendant as to `the in- voluntariness of the confession, because of the manner in which it was obtained, and the testimony of the officer, who, by virtue of his status, is presumed to give credible testimony, and, further, can furnish ample corroborative testimony from fellow officers. A good example of this Is Ufi. v. Mitchell, 332 U.S. 65 (1944). In that case, it will be recalled, Mitchell was indicted for housebreaking and larceny, for which be was tried in the U.S. District Court for the District of Columbia. At the trial a motion ~was made to' suppress Mitchell's oral confessions and certain stolen property which had been recovered from his home. The facts disclosed that Mitchell made the oral confession shortly after being arrested and gave his consent for the ,search of his home. Subsequently, Mitchell was held for a period of some 8 days' `before being taken before a committing magistrate. The trial court denied the motion. On appeal, the U.S. Court of Appeals of the District of Columbia reversed on the basis of McNabb v. U.s., 318 U.S. 332 (1943). The, Supreme Court, on writ of certiorai to said U.S. Court of Appeals for ,the Dis- trict of Columbia reversed on the ground that the McNabb doctrine was in- applicable because the extended period of. detention occurred after the confession and the consent to search the premises.' Inéidentally, in passing, it is interest- ing to note that the ostensible purpose of the detention was to give Mitchell the opportunity to cooperate with the officers in solving about 30 other cases of housebreaking. This gives one cause to wonder whether, in fact, such coopera- tion was voluntary on Mitchell's part. In any event, it would make' little dif- ference because it would be his word against that of the officers. Moreover, title I, and particularly section 101 (b) does not provide a mechan- ism for fully protecting the defendant. It merely states that prior to interroga- tion by law-enforcement officers the arrested person is advised that he does not have to make a statement and that any statement made may be used against him. It is submitted that this proscription does not provide ample protection for the accused. It does not comport with his full constitutional rights. In the first place, It fails to set a standard relative to who should do the advising and what their qualifications should be; the manner in which such advice is given or any require- ments that there be some criteria for indicating or determining that the accused person had some, or better still, substantial awareness, of the significance of such advice. A mere bare statement, ofttimes incoherently mumbled, is insufficient. In addition, this admonition does not spell out or provide for one's full rights, such as his right to counsel, which is quite important. I think he should be told not only the fa('t that he does not have to make a statement and that any state- went that he makes could be used against him, but be should also be fully advised of his right' to consult with counsel prior to making any statement. This, the act, does not do. Title I could only lead to wholesale dragnet arrests, without any scintilla of probable cause, in contravention of the dictates of the fourth amendment to the Constitution. There could be arrests solely for the' purpose of exacting a con- 25-260-64--pt. 1-33 PAGENO="0514" 508 AENDMEI~I'S TO CRIMINAL STATUTES OF D.C. fession. Such tactics are closely akin to those of the police state or gestapo. It hardly commends itself to what is expected of a law-enforcement agency of a self-confident and free society. Moreover, it would deny protection to those per- sons who are in greatest need of such protection. I have reference to the poor, the illiterate, and the impoverished, the victims of the slums and low economic ghettos. The educated and sophisticated and the affluent are not in great need of protection. In the first place, the incidence of crime is much lower in this group and the brush with the law is nOt as frequent. Furthermore, when there is such a brush with the law the members of this group are able to make bail immediately, and, more important still, they know that they have a right to .con~ sult with counsel before making any statement. Frequently does this situation occur. In this category, when the arrested per- son is asked a question, his reply is "I'm not saying anything until I've seen my lawyer." It is also significant that the police, - with respect to members of this group, do not bother or attempt to get a statement because of their very physical appearance- and the manner of dress and speech. The police are im~ pressed with the fact that these are the people that should not be tampered with, their -rights should not be infringed upon, and they make no effort to question them. - it is submitted that rule 5(a). of the Federal Rules of Criminal Procedure, which requires that an arrested person shall be brought before -the nearest available committing magistrate "without unnecessary delay," and the McNabb. Mallory doctrine, afford the best protection against violation of one's- rights by law enforcement officers, and by so doing, -protects society. This -is sigrificant because it was fashioned-by the courts and not by the legislature-which is the way it should be. As was said by Mr. Justice Frankfurter in McNabb v. - U.S.: -- "Experience has therefore counseled that safeguards -must be provided against the - dangers Of the overzealous as well as the despotic. -- Instruments of - the criminal law cannot be entrusted to. a single functionary. - The complicated process of - criminal justice is therefore divided -into different parts, responsi- bility for which is separately vested in the various participants upon whom the ciiminai law relies for its \ indication and in U S v Mitchell ieferred to above Mr Justice Frankfurter had this to say "Practically the whole body of the law of evidence governing criminal trials in *the Federal courts has been judgemadC. Naturally these evidOntiary rules have not remained unchanged They have adapted themselves to progressive notions of relevance in the pursuit of truth through adversary litigation, and have re- flected dominant conceptions of standards appropriate for the effective and civilized administiation of 1 w &s this court w hen m'iking a new departure in this field took occasion to say a decade ago The public policy of one generation may not under changed conth tions be the public policy of another The MeNabb decision was merely an other expression of this histoiic tradition whereby rules of evidence for criminal trials in the Federal -courts are made a part of living law -and not treated as a mere collection of wooden iules in a game I submit to you gentlemen that the same situation is applicable today that the rule as is commonly espoused by Federal rule 5(a) as buttressed by 4lcNabb Mallory is an example of hying law-that it should be flexible and only the courts can keep it that way. - The legislature is not in the ~Ositionto devise and design laws which should be applicable in every situation. It should be left to the courts to do this depending on the facts and circumstances in each given case The proposed law would merely be one of the w ooden rules referred to by Mr Justice Frankfurter It would appeai that if the proponents of title I really wanted to eliminate entirely, or considerably reduce, the incidence of crime in the District of Colum- bia more energy and attention should be directed to the e~use of crime &nd some of these are self evident e g lack of employment opportunities low pay ing jobs, inadequate housing, and school dropouts. - It is noteworthy tha-t a large percentage of crimes are committed by juveniles or young adults It would appear that society is partly responsible for this Many of these youngsters have been denied an opportunity.- A classic example is a current situation in the District of Columbia, relative to the policy of certain boys' clubs which still espouse and adhere to the outmoded and undemocratic doctrine of segregation on the basis of race The proposed legislation is not going to resolve such issues and, therefore, is not going to reduce the incidence of crime. - PAGENO="0515" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 509 TITLE III Section 301 in its entirety is unequivocally and emphatically objectionable. It is a dangerous provision. It clothes the police with too much authority, it constitutes the police officer-both judicial officer and prosecutor. One might well ask whether the proposed law will require the police officer to be a graduate of an accredited law school. Such a law could only lead to widespread arrests without probable cause. It could be used as a means of harassment. As an example of this, in a number of criminal cases in which I have represented the defendant, I have been told by the defendant that a certain officer is: "Out to get me," and, "he has told me that he is going to lock me up every time he sees me." This provision is clearly unconstitutional. The standard of probable cause, as required by the fourth amendment to the Constitution, is wholly missing from this provision. And to retreat to the subterfuge that a detention is not. an arrest, is sheer shammery. Not to be overlooked is the obvious fact, with attendant ominous portents, that this provision would provide the police with the open sesame to resort to third-degree tactics. Moreover, it would provide the police with pseudoshort- cuts to solving crimes, at the risk of sacrificing the constitutional rights of citizens. There is no concomitant provision that the standard of training and caliber of constituents of the police department be raised, or that they be bona fide residents of the District of Columbia. It is axiomatic that an undue propor- tion of the members are not residents, and, as such, their true loyalty lies else~ where. It cannot be expected that these officers will take the same interest in protecting the rights of District of Columbia residents as they would those of the residents of the communities in which the officers themselves reside and where their families reside. To go a step further, this provision could only lead to giving legal sanction to some of the tactics which are prevalent in some other sections of the country, such as using the law as a means of frustrating the activities of individuals who are merely trying to pursue their civil rights. The test for suspicion, as espoused in the proposed law, is more subjective than objective. Some of the means used are denial of bail, arrest, and trials on sham charges, and issuance of unconstitutional court orders. One sure evil to arise, as has been indicated in recent cases, is to arrest and charge with making a false report, one who makes a. report or files a complaint against the police for physically abusing a person. And this is likely to occur no matter how sincere the motives of the complainant and irrespective of the fact. that the report is made in good faith. It should be observed that in such cases the complainant is not entitled to a jury trial and, as a general rule, several officers appear as witnesses against him. It follows, therefore, that in most instances the defendant is convicted. One recent case received wide publicity because after being convicted the defend- ants were given the alternative of writing an essay, of not less than .100 pages in length extolling the virtues of the police department which it is submitted is sheer irony because, under the circumstances, there .was nothing good to. say but in order to escape a heavy fine or jail term an effort was made to write such an essay. It is also significant that in this case, the punishment meted out to the two defendants varied in direct proportion. to the length of .the essays submitted to the court. The defendant .who submitted the longer essay re- ceived a suspended sentence while the other defendant received a fine or jail sentence. More important, however, both defendants were being forced by judi- cial sanction to make statements which were not a reflection of their true feelings Is this freedom of speech? Is one being given his full constitutional rights? Is it justice'? Will passage of the proposed law mitigate or improve such practices? Unfortunately, all of these questions must be answered in the nega- tive. On the contrary, the .proposed law will only worsen, by a thousandfold, such a sorrowful state of affairs. . Section 302 of the proposed title III is a mere camouflage designed to buttress section 301 by providing additional assurance that the police will be permitted to hold a person for 6 hours of questioning prior to confronting a judicial officer. . . . . . . . This provision is riddled with booby traps. It does not make provisions for releasing witnesses who are poverty stricken and cannot pay~ the bond premium which means such persons could be detained for an indefinite and protracted period. Neither is there any provision made for arranging counsel for the witnes or assuring that the witness will be advised of his right to counsel. Not only does the proposed act fail in these significant respects but it also fails to PAGENO="0516" 510 AMENDMENTS TO CRIMD~AL STATUTES OF D.C. offer a compensatory provision such as providing that the witness will be clothed with immunity against prosecution with respect to any crime as a result of statements made during such detention. Moreover, no procedure is shown to exist for compensating a witness who has been detained, which could result in a. loss of income in many cases. Current procedures for detaining material witnesses in criminal cases are quite adequate, particularly with reference to the Federal court. Indeed it is submitted that the procedures with respect to the District of Columbia Court of General Sessions it is quite adequate. How- ever, if the police feel that they need additional authority they should attempt to seek specific legislation for that purpose. The esteem in which policemen in general are held, by the people who are most likely to be affected by the proposed law, is not very high. The proposed law cannot and will not, in fact is not designed to, raise such esteem. It can and will lower it. Accordingly it is strongly urged that this committee reject H.R. 7525, par- ticularly titles I and III. Thank you very much. Mr. BENTON. Yes. Of, course, I would like to make a few com- ments here and there with reference to the proposed legislation. In the first place, in reference to the proposed rule, that is title I, which deals with Mallory, I get the impression that the basis for the proposed rule is the prevalence of crime in the District of Columbia. Apparently, some people have been disturbed by the great incidence of crime. Now, I also get the impression that they are more concerned about the nature of the crime. For instance, they seem to be disturbed about the crimes of violence, particularly, for instance, rape, murder, and what-have-you. The CHAIRMAN. Aggravated assault- Mr. BENTON. Yes, aggravated assault. Now, apparently, they feel that something can be done about it and, of course, they have proposed this law which they think is going to act as a deterrent to the commission of these particular offenses. Now, I frankly think that that is fallacious reasoning. I do not think that is the proper approach to use. I do not think that that is going to solve the problem. I think you have to get to the basic roots; that is, as to the cause of the crime before we can really decide on how it can be solved. And a striking example of this is the case of the narcotics offender, which reminds me this morning I was just reading in the press about 11 persons who were arrested for narcotics offenses. I think the Senator knows and, perhaps, tile staff already know that under the Harrison Narcotics Act that the mandatory punishment imposed-I think the initial punishment is 5 years without any chance of parole, and the second time it is 10 years, and every time it in- creases and, becomes more severe without any chance of parole. Now, some of these narcotics offenders know that and some do not but apparently whether they do or do not know it, that has not made any difference insofar as the commission of the offenses. They still commit the offense. The CHAIRMAN. Well, your testimony in that respect is directed to title V, which deals with the mandatory minimum sentences. Is that cOrrect? What you are saying, is that the severity of the penalty is not a deterrent to crime. Mr. BENTON. That is the point I am making, but I am also using that to buttress this proposition, that changing the ilialiory rule itself PAGENO="0517" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 511 is not going to affect-is not going to serve as a deterrent to the corn- mission of crimes. in other words- The CHAIRMAN. Why does one follow from the other? That is the only point I am trying to make. I think the testimony of Mr. Bennett, the Director of the Federal prison system was to the point that mandatory minimum sentences, as built into the Federal law, certainly do not deter the men who are con- victed of Federal crimes and violate the U.S. criminal code. I thought that he made some very emphatic points in this connection, and that came from a man of 27 years of experience and whose depart- ment retains jurisdiction over something like 25,000 prisoners in the Federal prison system. I think that point was made very well by him. I understood you to emphasize it, but I do not quite understand how you use it to buttress your argument that title I is not a deterrent to crime. Mr. BENTON. You do not see the relevancy? The CHAIRMAN. J do not see the particular relevancy. I would like to have yOu tie it up. Even admitting that one is true, that a mandatory minimum sentence does not actually deter crime, how does it follow that title I would not serve as a deterrent to crime? The CHAIRMAN. It seems to me like they are two different propositions. Mr. BENTON. Well, that particular phase of it is, perhaps, a little different but what I was going to say or, I mean, to elaborate on this further- The CHAIRMAN. Yes, and I did not mean to cut you off. Mr. BENTON. But what I was going to say is this, that under the Harrison regulation, that is that particular act, there was an easing of the rules of evidence. In other words, they were not as stringent. In other words, usually when a person was arrested under that particular act, that is for a violation of that particular act, there were usually three counts against him, a sales count, possession count, and also importation. That is, it was presumed that he had imported this particular prod- uct and that is, in a sense, what Mallory would do. It would tend to ease the rules of evidence in a sense, to make it easier to obtain a conviction. So my point is this- The CHAIRMAN. You do not mean "Mallory." You mean title I. Mr. BENTON. I beg your pardon. Title I; yes. The CHAIRMAN. Your point is that title I would make it easier to adnnt confessions into evidence than is now present under the Mallory rule? Mr. BENTON. Yes, and my point is that it has not worked so far as the Narcotics Act is concerned, and I do not think it would work in this case. The CHAIRMAN. Yes; now I have your point. I was putting too much emphasis on the mandatory nature of the minimum sentence. Mr. BENTON. I might say for the record that I, of course, do object to the mandatory sentence phase of it. The CHAIRMAN. I understand your position. PAGENO="0518" 512 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Mr. BENTON. Now, if I may go a step further, I might say, in passing, that the same thiiig, the same general rules seem to apply so far as capital punishment is concerned in the District of Columbia. In other words, it does not make much difference actually as to whether or not a person likes to be punished severely. I mean, this is by way of collateral reference, so to speak. The area in which this proposed la~w will operate, and the people that it is likely to affect-they are not, going to really know about. it in advance anyway. I mean, they do not really read the papers. They do not listen to the radio. They are not aware of the fact that there is any law being con- sidered now, the ones who are really going to be affected. So, actually, I do not think we are going to accomplish much really in reference to title I. Now, also in that connection I would like to say this, that from my experience in dealing with these people, who have been involved in the commission of crimes, and I have had some experience in handling criminal cases both in the U.S. District Court for the District of Columbia and also in the District court of general sessions and there particularly, in the court of general sessions, you come in contact with some of the so-called lowest' element of society, the people who are very earthy, and they frequently have told m~ on various occasions that they did not know they did not have to make any statement. As a matter of fact, some-I have asked some of them. 1 said, "Did you make any statement to the police officer," and they have said, "No, I didn't make any statement." Of course, some were lying on that and I did not realize, until it came time for trial, that there had been a confession signed. So, naturally, when it came time to try to get the confession slip- pressed it really resolved itself into a question of credibility between the officers and what the defendant said. So the defendant usually has not witnesses to support what he has said. So a lot of times the court has no alternative-I mean, he has to more or less go. by what the officer says; the credibility is better. So my position in this regard is this. particular title I. as I under- stand it, says that a mere delay in itself' shall not be the cause of refusing to having a confession admitted as long as the confession is iroliintarily made. Now, I submit that the very fact that there is a. delay, tknt in itself, is a form of coercion. In other words, that is the only weapon in many instances that a defendant would have to protect himself. That is the only thing that would be accurately recorded. For instance, at the time that he is arrested or the time he is arrested, for instance, that perhaps could be checked by documentary evidence or the time that he appeared before a committing magistrate. Those factors: could be checked through documentary evidenceS but what happened in between, whether or not he did make a statement or whether he did not make a statement, sometimes cannot be proved. I mean, if he says he didn't, he cannot prove it. And also in connectiOn-in the same connection. the same people, these little people, the people who are uninitiated, the uninformed, usually when they get locked up they do not really-they `do not think about the lawyer first. The first thing they think about is a bonds- man. PAGENO="0519" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 513 "Can I get. out of here; how can I get out?" That i~ `all they are con- cerned about. They are not concerned about what their- rights are. So, actually, that is an area in which the law enforcement officer has an opportunity to take advantage of one. In other words, there have been cases, and I have had personal experience with this, where the defendant has told me that he wanted to talk with an officer first because the officer told him that he was going to see that he had bond and was going to let him get~ out. So he wanted to talk to him first before he talked to a lawyer. That is a mattei that has actu'tlly happened, and I have had personal experience in that connection. "` `.. ` . And, of course, we have this problem also insofar as confessions are concerned as to the maimer in which a confession is given. There have been situ~tions where the defendant would be brought into a precinct and he would be asked to give a' statement. Now, con- trary to popular belief, in many cases *he is not told at that time that he does not have to make a statement or that. any statement `he makes may be used against him As a practical matter, what really happens is the officer tells him, "Well,yoii'want to get out, don't you ?" `" ` , i am going to see that you get a `bondsman. `Just tell me what happened" We'll, the defendant may or may not. He may relate in abbreviated terms what he considered to be the facts The officer, a lot of times, will go and reduce that to `writing by a typewriter or he will usually incorporate his own version or; that is, his view of the'case, `and then he will bring it back to this defendant to sign it and a lot of times the defendant cannot even read. He can hardly sign his name. That is an actüal'fact. Usually, at the very beginning of the typewritten version, they will also `have-at the' very beginning there will be the statement that, the defendant was advised of his rights and, of course, usually it is just a' simple statement that he was advised of his rights without bothering `to' explain what those rights are or bothering to make it clear that the `defendant really understood' what his rights were~ So in those cases a lot `of times the confession is - held admissible on the ground that it was voluntary when, in fact, it was' not. The defendant generally has no defense then and, therefore, I sa~ the delay factor itself could be very important. That is why I say it is very important that that be maintain,ed as' a protective measure against these poor illiterate people. 1 would like' to direct the chairman's attention to a recent case- well, it was not exactly a recent case, but it was decided not too long `ago, and it bears on this point and it is on page 4 of the prepared statement, but that gives- ` " ~The CHAIRMAN. United States v. Mitchell? Mr. BENTON. Yes, United' States v. Mitchell which, I think, is a good example of that. ` ` - Now, in that case, of course, it wa~s alleged that Mitchell confessed immediately to certain crimes and, `of course, after having made a confession he was held for a period of some 8 days `before he was taken to -a committing magistrate. ; ` ,But the point I was `trying to make is that later, when he was tried, of course, he tried to have his confession suppressed and eventually PAGENO="0520" 514 AMENDMENTS TO CRTh~INAL STATUTES OF D.C. it went to the Supreme Court and it was held that the confession should be admitted because the ill cNabb doctrine did not apply, but the point was that Mitchell actually had denied making the confession. The officers had said that he made the confession and he was held because he said he was going to cooperate with them. So here we have really a question of credibility. Who are we going to believe, Mitehell, the defendant, or the officers? I think those are the points I would like to make. The CHAIRMAN. Yes, you have emphasized that very well in your prepared statement, Mr. Benton. Your position is very clear. I mean, you do not favor title I, and you think the Mallory rule should be retained just as it is. Mr. BENTON. Yes, that is right. I do not think there should be any change. I think that should best be left to the court. The CHAIRMAN. I understand. Mr. BENTON. As a matter of fact- The CHAIRMAN. Why do you not just comment briefly on title III? I think it is very clear. I have read your statement, incidentally, and I have read it in full. Of course, your first point, on section 301, is that investigative arrests are clearly unconstitutional. Mr. BENTON. Yes, and I think that has been made a clear by a lot of testimony that has gone on in advance to my appearing here, and I think it is amply supported by documentary evidence. The CHAIRMAN. Now, why do you not just comment very briefly on section 302, that is the section of title III, as you know, that permits the holding of persons as material witnesses? Mr. BENTON. Well, I think that is a very dangerous provision. The CHAIRMAN. Now, why is it dangerous? Mr. BE~roN. Well, in the first place, it gives too much authority to a police officer. In other words, the police officer, who is considered to be perhaps of average intelligence, as a general rule, has a right to determine for himself by merely being on the street whether or not a person should be picked up and held, and it can lead to other dangers. For instance, there can be situations where that can be used as a weapon against particular individuals. For instance, they might want to harass an individual while they cannot charge him specifically with any particular offense, and they can arrest him repeatedly and hold him. They can hold him for 6 hours nnd release him and then go right out in the street and pick him up again, and that has happened. It happens now, I mean, without this new law, because I have had some defendants, whom I have represented, tell me that, that they have picked them up repeatedly and tell them that they are going to do it, particularly in cases of some of these prostitutes. They have been arrested repeatedly for something. They are not really guilty, but the officer says, "I am going to keep you off the streets," and every time he sees them he picks them up. So that has definite dangers. Frankly, I feel that one of the things-I do not know whether it has been expressed previously or not, but I think this merits some consideration. PAGENO="0521" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 515 As I said before, the people who are going to be, affected are the low- income level people, the people who are somewhat illiterate. I think that it is really a sociological problem that should be given a lot of consideration first. For instance, there are the job opportunities for these peope. A lot of them do not have jobs and cannot get jobs because of either race or because of educational attainment and what-have-you. The jobs are just not made available to him. "So what am I going to do? I have a family. I want to live, too." Well, I mean I, do not approve of these crimes, but I think we have got to get to the root of this thing. The CHAIRMAN. A number of people have advanced the same theory, as far as the long-range solution of the problem is concerned, the problems related to unemployment, substandard housing, poor school- mg, and some `breakdown in the welfare system. Mr. BENTON. One point, and I do not know whether this has been expressed previously ~or not, that I want to make is that I think this proposed legislation `is going to be applicable purely to the District of Columbia. And I think that some consideration should be given to the fact that the Metropolitan Police Department is going to be involved and I think that some consideration should `be given to a re- organization perhaps of that Department itself. I think that a lot of the trouble, insofar as solving these crimes are concerned, is as a result of the Police Department itself. For instance, I think that the individual members do `not have the interest of the District of Columbia really at heart because the vast majority of them live in other jurisdictions. They are nonresidents. I think if they, in order to hold those jobs, were required to be residents of the District of Columbia, I think perhaps that would make a big difference in ,the total effectiveness of the Department itself. I think that they would have a greater interest, you see, not only because of the fact that they are drawing their money, their means of making a living, from the District but also the fact that they reside here. Their families reside here and their children reside here. I think it would create a greater personal interest in themselves, I mean, as an individual, and not just go by mere authority or by mere orders. , " And, secondly, I think the morale somewhat could be improved because I think there is no question about the fact that the morale is quite low in some areas because some of the members are not afforded an opportunity `to advance or they are being held in certain categories. There is no question about that, and it is usually because of their race. Secondly, they are not permitted to serve in certain positions, for instance, squad cars and scout cars and what-have-you. They have a tendency to isolate them into certain groups, which is bad for morale. They have police dogs which so far are not really effective. They only operate in certain areas of the city and again it is those of the low income and illiterate people. I think that something should be done in that area. I think if that `were done that might be some improvement. Actually, I do not think there is any need for legislation at this time. ` PAGENO="0522" 516 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. Well, I certainly appreciate your views, Mr. Ben- ton, and I thank you for returning this morning. Thank you very much. Our next witness will be Mrs. Margaret A. Fischer, president of the Mount Pleasant Citizens Association. STATEMENT OF MRS. MARGARET A. FISCHER, ON BEHALF OF THE NORTH WASHINGTON COUNCIL, WASHINGTON, D.C. The CHAIRMAN. Mrs. Fischer?,'~ Mrs. FISCHER. Good morning, Mr. Chairman, and members of the committee. 1 forgot.rny reading glasses this morning, so if I am a little hesitant in what I am reading you will know why. The CHAIRMAN. Surely; you just proceed in your own way, Mrs. Fischer. . , `., ` ` .. ` Mrs.. FISCHER." I would like to say, Senator Bible, that I" am here for the North Washington Council.. It is true that I am president of the Mount Pleasant Citizens Association. ` ` ` Jam not here as a lawyer. `I am simply here before this committee as someone. wIlo has been very active in civic matters.' I am. a member of the board down at the Federation of Citizens Associations.. I. am on the police and fire committee, and .1 am also a member of the legislative committee. ` ` " I only give you' `this background so that you `will know that I have been deeply interested in this crime situation here in the District of Columbia. `~ The CHAIRMAN. Surely. "Mrs. `FISCHER. My name is Mrs. Margaret A. Fischer,' and I am here as the duly authorized delegate from the ~North Washington Council which is composed of nine citizens associations that is, Arkan- sas, Brightwood, Chillum Heights, Columbia Heights, Crestwood,. Mount Pleasant, Kalorama, Petworth, Shepherd Park, all located in the Northwest section of Washington, D.C., west of Rock Creek Park. These associations have served their community and our Capital diligently for many years, in fact, Brightwood Association celebrated its 74th year of service, and my own Mount Pleasant Association has ~3 years of service behind it. I mention this that you may know that we are not newcomers to this area and that we have an understanding of the problems' which exist and we desire to correct them. Our actions in the past have consistently pointed up our deep con- cern because of the rise in crimes and deplored the soft policy shown toward the criminals. We strongly supported the antiloitering law and thereby hoped `to get children off the streets and help parents to assume responsibility for their whereabouts. We also supported Judge Davis' legislation which would have taken juveniles between the ages of 16 and 18 out of the jurisdiction of the juvenile court and would have had them tried as `adults in the mu- nicipal court. In the past, we have presented our resolutions regard- ing the seriousness `of crime to members of the Sena'te and House Dis- trict Committees and, the newspapers of our city. 1 am here today because we again note `with grave alarm the ever increase in crime figures covering all categories, and realize every PAGENO="0523" AMENDMENTS TO; CRIMINAL STATUTES OF D.C. 517 day that our law-abiding citizens no longer enjoy peace and protection day or night on the streets, in their homes, in their churches, and in their place of business. It is `iknown fqct among people who want to know the truth, that night attendance has decreased in citizen association meetings, church services, `uid that restaurants (in many `ireas) do not enjoy the eve fling patronage thatthey oiicehad. It has come to my attention that certain dining rooms are closing (after 20 years of service) bec'ruse the older people are deathly afraid to be out The fact tli'it the National Geogi `iphic lecture at 5 is very popular, that the Lisner afternoon concert programs `ire being well attended, that church b'i zaars advertise afternoon hours rather than late evening hours as they once used to do, and that more e'trly evening schedules are being adopted for meetings, classes, et cetera, is surely indicative of the growing fear of being assaulted People do not travel alone but usually try to get a ride with some one and by the way, everyone insists that the doors be locked Does this not point up a danger and a restraint on the free movement of the law abiding citizen We speak of our concern for the well-being of our people. Are we thinking seriously of another category of citizens ~ The doctors, nurses, ambulance drivers, policemen, firemen, utility service people, and those who serve us in emergencies. These are only a few who serve us at night. What are we doing. to protect them? As you know, it is absolutely necessary for them to be out at night in all types of neighborhoods, and I call your attention to page 8 of Report No. 579 of the District of Columbia crime, this report shows that during 1962, the District of Columbia ranked 1st in aggravated assault (as- sault with a dangerous weapon), 2d in robbery,. 4th in murder and nonnegligent manslaughter; 5th. in housebreaking, 10th in forcible rape, 10th in auto theft, 11th in larceny. Rather disgraceful, isn't it? Are we going to permit our streets to become dead because of the absence of law-abiding citizens because they are afraid to go out? Are we going to permit freedom of movement only to the criminals? Are we going to put off punishing the criminals until our tourist trade becomes nonexistent? Gentlemen, it is high time that something be done about this de- plorable condition. We the citizens are not apathetic-many do not have the time to appear here-others are shy and cannot speak before you-we know what the problem is-you are talking only about the knOwn reported crimes. * . . We are also concerned with the many crimes which are committed every day but which are nOt known to our police and the news media. You ask why that is? People are afraid because of the consequences (if the~~ testify against the criminal) to their personal safety. Others do not wish. to be embarrassed . by questioning in a courtroom, the mental anguish is too great. And because of the leniency of many court decisions in favor of the criminal, they feel that the criminal will eventually be let off and so what is the use? . Therefore, the North Washington Council wishes to go on record today as supporting H.R. 7525, known as the omnibus crime bill. We are wholly in accord with the purpose of the bill and are deeply orate- ful for the time and effOrt expended by Chairman McMillar~ and members of the House District Committee. .. . * PAGENO="0524" 518 AMENDMENTS TO CRIMINAL STATUTES OF D.C. And we definitely urge the adoption of titles I, II, III, IV, and V- and, Chairman Bible, you have heard so much about the explanation of these titles that I did not bother going into them. The CHAIRMAN. Yes, I think I am fairly familiar with them, Mrs. Fischer. Thank you. Mrs. FIsCHIR. We sincerely feel that if they are incorporated, they will be a deterrent to crime and will be instrumental in helping the policemen interrogating criminals and thus help apprehend them with greater dispatch and thus remove them from society and our streets and get them in penal institutions where they should learn discipline, cooperation, and respect for the laws of society and its people. Then and only then, will the law-abiding citizen have freedom of movement and prOtection under the law which the Constitution guarantees to him. And he then can fulfill his obligations to God, country, family, and society without fear of being harmed. Thank you, gentlemen, for this opportunity to appear here and please accept our sincere thanks for everything you may do to uphold H.R. 7525 and help in its passage. The CHAIRMAN. Might I just ask you, for the record, a couple of questions, Mrs. Fischer? Mrs. Fiscrn~. Yes, sir. The CHAIRMAN. The North Washington Council is made up of nine citizens associations- Mrs. FIsCm~R. That is right. The CHAIRMAN (continuing). And you have named them. Mrs. FISCHER. Yes. The CHAIRMAN. Now, approximately, how many people are in each of these associations? Mrs. FISCHER. Well, they have different memberships, sir. I would say the overall membership would be around 3,500. The CHAIRMAN. Now, these various areas represent how many people? Mrs. FISCHER. Well, in my own association-I can speak for my own association- The CHAIRMAN. And yours is the Mount Pleasant association? Mrs. FISCHER. Yes; we have 250 members. The CHAIRMAN. How many people are within the Mount Pleasant area? Mrs. FISCHER. Oh, in the Mount Pleasant area there would be many, many thousands. The CHAIRMAN. I think it would be helpful if you could furnish that to the committee. Mrs. FISCHER. I would be very happy to do that, sir. The CHAIRMAN. You have nine citizents associations? Mrs. FISCHER. Yes; our boundary line, and I can help you with that, begins at Florida Avenue and goes over to Rock Creek Park west, and goes as far a.s the District line on the north, and then would go over to about Fourth Street on the Northwest section. Mrs. FISCHER. May I make a personal observation here, sir? The CHAIRMAN. Surely. Mrs. FISCHER. There has been much said that the policemen should not have the privilege of investigative arrests. Of late I have been a witness of several little things that have hap- pened out on the streets, and the only thing that I noticed was that PAGENO="0525" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 519 with the appearance of the police the individuals scattered so quickly that I do not see how anybody would have had time to go through the neighborhood trying to find these people. And I do believe that it is helpful for the officer in an area to be able to ask somebody why they are there. I also have observed lately at night that there are many of our good citizens who are afraid to be out on the streets. However, if you look out through the window you will find there are other people walking around at 3 and 4 o'clock in the morning and there is no way of know- ing whether these individuals are residents of your area and, as citizens, we have no right to question them. We may suspect that they should not be in the neighborhood and that there may be something wrong about it. Yet as individuals we cannot do that. And I believe that our policemen, when they are walking around, if there is something happening they should have the privilege of trying to find out what these people are doing there for our own protection. I know that about a month ago a very good friend of mine was walking along a street at 11 o'clock at night, and he felt perfectly safe and he noticed across the street there were about 12 boys walking along and one of them called across the street and asked him if he had a cigarette and he replied he didn't have. And in a few minutes there were 12 young men that crossed the street and completely surrounded him. And this man had been in the Medical Corps in World War II, and he realized that he was no match for these 12 boys, and one boy asked him for a dime, and he refused to give him any money and another fellow replied, "Well, you are a wise guy." And immediately they started pumping him and before he knew it he was down on the ground. He said he realized the only thing he could do was to make unmerciful sounds, which he did, and in a few seconds' time these 12 boys dispersed. Well, Senator Bible, you can realize how could we possibly find 12 boys in the neighborhood. Perhaps they did not even live in our neighborhood. I think that this has to be brought out before you. The other thing that I noticed was in yesterday's paper or last night's Star that Mr. Bennett had felt that there was not any urgency for crime legislation. I wish that someone would make a survey either through the news- papers or some organization and permit the number of people to write in who would actually answer whether or not we need legislation. Those of us who have lived here many years and, sir, I have lived here since 1936, and those of us who like living here and who realize this is our Capital, I do not think, sir, that we look at it comparing ourselves with other States or other places. I do not think that we should. If the crime is here it is our problem, and I think we should solve it here and not worry about whether some other city or some other State has more or less crime than we have. I think we should settle that problem here and make our city safe for our own people. PAGENO="0526" 520 AMENDMENTS TO CHTh{TNAL STATUTES OF D.C. The CIIAIm~rAx. Thank you very much, Mrs. Fischer. You have been a very fine witness and I appreciate your testimony. Our next witness is Mr. John A. Patterson, Jr., of the Chevy Chase Citizens' Association. STATEMENT OF JOHN A. PATTERSON, flt., FIRST VICE PRESIDENT, CHEVY CHASE CITIZENS' ASSOCIATION The CHAIRMAN. Mr. Patterson? Mr. PATTERSON. Good morning, Senator Bible. The CHAIRMAN. Good morning. Mr. PATTERSON. My name is John A. Patterson, Jr., first vice presi- dent of the Chevy Chase Citizens' Association. I am appearing here today as a substitute witness for F. McKey Smith, who is ill, chair- man of the Public Protection Committee of the Chevy Chase Citizens' Association, an organization with a membership of approximately 3,000 out of approximately 10,000 residents, and a large number of them approximately are residents of apartment houses and do not have the same interest possibly as property owners do, of the leading busi- ness and professional people in our community. Mr. Smith was to appear here today as the result of a meeting of the executive committee of the Chevy Chase Citizens' Association which had empowered him to make the following comments reflecting our policy upon I{.R. 7525, the omnibus crime bill, now before the Senate District Committee. The delicate balance of t.he pendulum of justice has been thrown cOmpletely out of balance in the. District of Columbia by the Mallory decision and the ensuing restrictions placed upon the Metropolitan Police Department to interrogate and question suspects of crimes or witnesses to crimes This delic'~te b'ilance must be restoi ed if there is to be a return to normalcy in the Nation's Capital, permitting the law-abiding citizen and his family to walk the streets with a reason- able degree of safety, free from molestation from assailants, mur- derers, and rapists The result of almOst 6 years of the Mallory decision, which has ham- pered police activities in bringing criminals to justice, is coldly and shockingly emblazoned in the headlines, which reveal the facts of re- peatéd criminals being allowed to mingle in our society with meager or no punishment, and the sharp reduction in the rate of crime clear- ance by the police department. Six years of justice by this 20th-century equation has turned our once-proud city with a remarkably low crime rate into a haven for criminals and lawbreakers and a showcase of sin beset by police- mocking felons. Washington, D.C., has become a global symbol of law- lessness and acquired the reputation, deserving or not, of being soft on crime. To dramatically demonstrate the effect of the Mallory decision, I wish to point to the following statistical evidence. The Mallory deci- sion was made in June of 1957. From 1952 to 1957, a period of 5 years, therehad been a marked drop in crimes of violence and felony offenses in the District of Columbia. Since June of 1957, the trend has completely reversed itself and the incidence of crime has nga~n sky- rocketed, even more markedly upward than the descent from 1952. PAGENO="0527" AMENDMENTS TC CRIMINAL STATUTES OF D.C. 521 The law enforcement officials of this city must be taken off the defen- sive they have occupied since Mallory. The most acceptable remedy, the one advocated by the vast majority of the law-abiding elements of our community, is embodied in title I of IELR. 7525. Other bills have been introduced to alleviate the handcuffing effect upon law enforce- ment of the Mallory decision. Unquestionably there is virtue to many parts of these bills and would most certainly represent an improvement over the present conditions. One of these, IE[.R. 5726, proposed by the U.S. attorney for the District of Columbia and Deputy Attorney General Katzenbach is a compromise which would, generally, be of assistance to law enforce- inent. It is our feeling, however, that H.R. 5726 and other bills go too far in the direction of protecting the criminal and tend to make the job of law enforcement subject to extremely cumbersome and unwieldy limitatiOns in performing their principal duties of protect- ing our law abiding citizenry. * We urge the adoption of title III of ELR. 7525 which will permit an officer or member of the Metropolitan Police Department to detain and question persons suspected of committing crimes and to requne bond in the case of certain material witnesses. Title III also pro- vides for legislation similir to the Umform Arrest Act `is `in alter native practice to investigate arrests. This legislation will provide for the detention and questioning of material witnesses to crimes of violence. It is deemed necessary for enactment in view of* the short- comings of the present statute covering the detention of material witnesses, which is practically impossible to utilize and in the final anilysis, serves no practical value Any miterial witness legislition, to be effective, must mike certain that the witnebs is ivailible before, during, `tnd after the initition of criminal proceedings in the court. Other legislation introduced in the Congress to provide for the detention of material witnesses tends to place excess re~trictions upon law enforcement and some would * leave us no better off, if it were enacted, than we are today. The American Law Institute has made a detailed and comprehen- sive study of the Durham rule, adopted in 1954 after the now famous Monte Durham decision. The Durham rule provides that a defend- ant is not responsible if the act was caused by mental disease or defect. * Title II of H.R. 7525, drafted upon the recommendations of the American Law Institute, w~uld allow a successful defense if the a~- cused, as a result of mental illness or defect, lacked substantial capac- ity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. This represents an updating of the traditional right-wrong and irresistible impulse tests which were the determining factors in criminal defense prior to the Durham decision in 1954. In urging the adoption of this legislation, we realize that this is an extremely technical subject but feel that the diligent research of the American Law Institute has provided us with badly needed and, equally important, workable legislation. The Chevy Chase Citizens' Association considers these legislative proposals to be of paramount importance in bringing about a swift and dramatic change in the ciime picture of our Nation's Capital. We strongly feel that unless legislation covering these points is swiftly PAGENO="0528" 522 AMENDMENTS TO CRIMINAL STATUTES OF D.C. enacted into law that our crime problems in the District of Columbia will continue to multiply manifold rather than commence to diminish. Mr. Chairman, in conclusion, I would like to speak briefly about a matter not covered directly by H.R. 7525, but bearing a direct and undeniable effect upon the total District crime problem. An attitude and inclination toward lawlessness and disrespect for the property and rights of others is becoming progressively greater among the youth of the District of Columbia. The number of multiple offenders in the 16- and 17-year-old brackets, both male and female, continues to rise at an unbelievably alarming rate with the result that we are actually raising and breeding a gen- eration of young criminals who are committing heinous adult crimes but continues to be. treated as juveniles by our courts. Age has become, and remains today, the arbitrary line of division for a criminal act. The current practice of treating these incorrigible young criminals, the vast majority of the 16- and 17-year-old multiple offenders, as juveniles should not be condoned by our lawmakers or by society. The demonstrated contempt these youths have for law and order and civilized living is absolutely appalling. Today, modern justice dictates that rehabilitation and readjust- ment to society are all important. The law-abiding citizen who maintains a well-balanced adjustment to society is ignored today with the result his rights are constantly abridged to provide repeated read- justment opportunities for the youthful criminal. There must be a limit to the degree of flexibility our society can possess., in dealing with juvenile offenders. In the Nation's Capital, this limit has been passed long ago. The shocking release of four juveniles, recidivists beyond any question, with unbelievable records of criminal activity, serves as a glowing illustration of the need for a stern reappraisal of our current methods of punishment for the so-called juvenile offender. Mr. Chairman, the citizen of the District of Columbia is entitled to the same protection from his police force as the citizen in 1 of the 50 States. You, and your fellow Members of the Congress, have the power to provide our fine Police Department with the tools to give us this protection. In your deliberations, we ask that you consider us, the law abiding, equally with the criminal, hopefully, to be adjusted to society. Thank you, Mr. Chairman, and members of the Senate District Committee for this opportunity to set forth the views of the Chevy Chase Citizens Association in support of H.R. 7525. I have something not in the prepared statement, to say, and this is a comment concerning yesterday's testimony before this conirnittee which I would like to comment on, if I may. The CHAIRMAN. Certainly, we will be glad to have your comments. Mr. PATTERSON. Yesterday before this committee a witness stated that he believed that there was a positive correlation between the humane welfare regulations of the city of Buffalo, N.Y., and the low crime rate there. He also stated that scrupulous police work and the humane ap- proach to the welfare problems spells Buffalo as America's best behaved big city. . A review of the facts and statistics from the Uniform Crime Report of the Federal Bureau of Investigation, released July 19, 1963, do not PAGENO="0529" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 523 in our opinion bear out this conclusion. In 1962, for 200 major cities in the United States, reporting in the five major categories of criminal activities, Buffalo ranked as follows, per 100,000 inhabitants: Fifty-two cities had fewer total offenses than Buffalo; 42 cities had fewer cases of murder and nonnegligent manslaughter; 59 had fewer cases of forcible rape; 64 had a lower incidence of robbery; 91 cities had fewer cases of aggravated assaults, and 51 had fewer cases of burglary. Also of interest is the fact that many of the cities in the foregoing statistics are in the depressed and high unemployment areas of Penn- sylvania and West Virginia. That is in my statement, Mr. Chairman. The CHAIRMAN. I am very happy to have those statistics. I think, to tell the full story, we should know exactly what the popu- lation range is of the cities that are cited. You cited many cities that have less crime than Buffalo, but I would also be interested, and I think to round out the picture, we should know how many cities have more crime than Buffalo. I do not know whether that is readily available, but the record is going to be kept open for a week and I think, in fairness, it should be rounded out in that manner. You have told part of the story, but I think we should have the com- plete story of whatever value these statistics are, and statistics can be made to tell many, many different stories. And I think that we should know the number of cities that go to make up this particular study, when this study was made, and what year this represents. I think you have to take more than 1 year in any of these things if you are to give it any significance, and we have not had that in these hearings here. I mean, the proponents will pick out a year that makes the record look the blackest for their purposes and the opponents will pick out a year that serves their purposes best. I think, as a lawyer, you understand how people plead thRir cases, and there is somewhere between the highest and the lowest in these cases the complete answer and the complete facts. Since Buffalo came into the picture yesterday I asked him at that time to furnish some statistics not directly on the point that you are making but to the point of the size of the city. I asked him how many policemen they had, and he said he did not know. I think if you are going to make a comparison you ought to make a good rounded out comparison so we can see just how it strikes in the balance of the cities. As I have said, the mere fact that our city compares favorably with many, many towns, of comparable size in the uprise of crime is of slight consolation. We want to make this the most perfect city in the entire world. This is the ultimate goal and we obviously have quite a ways to go yet, but I think we should keep striving in that direction. So I think if you can, without too much difficulty, give these addi- tional facts I would appreciate it. Mr. PATTERSON. Mr. Chairman, I stated this was information re- leased in the latest uniform crime report, and these statistics are for 1962, which is available. 25-260-&4---pt. 1-34 PAGENO="0530" ~524 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The CHAIRMAN. Yes. Mr. PATTERSON. I have confidence in the source of this because I am also- The CHAIRMAN. I am not questioning the source. Do not misun- derstand me. I am not questioning the source. I do not think that this tells the whole story for two reasons; No. 1, it takes 1 year, 1962, and I think the statistics have got to be broader than for 1 year. No. 2, it lists, according to your recitation, the cities that have less crime. It does not list the cities that have more crime, and it seems to me that this is the only way that you can fit them into the tabulation for whatever value the comparison of one city to another may have. Obviously, this is a problem. This has been testified to time and time again during these hearings, that the racial component and racial makeup of communities has some direct relationship to this problem that we are considering today. I do not think we can blindfold ourselves to that fact. Mr. PATTERSON. There is a lot of material in relation to this. I am also on the protection committee of the board of trade, and we have gOne into this quite thoroughly and I feel certain that this is: a comparable setup to Washington, but we will be: glad :to get further infOrmatiOn and submit it within the week to the staff. The Q Well, if it is not too much trouble, 1 would appre- ci'~te it I would rather have a~ broader look at Buffalo or Washington or Philadelphia or San Francisco than iust one isolated year such as 1962. Mr. PATTERSON. I agree with you that often the whole: picture :1S better. But thOse are the statistics that we got and we brought it out for the very reason that: you said, to bring out one city to prove the point, but I will be very happy to get the other information. Thank you very much. The CHAIRMAN. Mr. Patterson, :j am delighted to :have you here and I am delighted: at the interest that the citizens' associations show: in these matters. Now, the hearing record will remain open until ~ p.m., Thursday, November 14, for rebuttal statements from any and all witnesses, and we welcome rebuttal statements. :There are many areas upon which we have heard testimony over the last several weeks in which there are differences of opinion, and we would be delighted to have any comments that anyone whatever wants to make pro or con on the matter before us. A letter from Frank J. Remington, professor of law, University of Wisconsin Law School, dated November 4, 1963, whose views were sought by the committee and who was unable to testify personally, will be included in the record. (The letter referred to follows:) THE UNIVERSITY OF WISCONSIN LAW SCHOOL, Madison, Wis., November 4,1963. CHESTER H. SMITH, ~S'taf flireetor. Committee on the District of Columbia, U.S. Sencte. Washington, D.C. DEAR MR. Si~irru: This is a reply to your letter of October 16 in which you ask for my views of titles I and III of HR. 7~92~. These two titles deal with the general issue of incustody investigation, a matter of great current interest and importance to law enforcement. I have had an PAGENO="0531" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 525 opportunity to concern myself with this issue as project director of the American Bar Foundation's survey of the administration of criminal justice in the United States, and as a member of the Advisory Committee on the Federal Rules of Qriminal Procedure. The views which I express in this letter, however, are not those of either of these groups but are my own individual views. Title I is designed to repeal the so-called Mallory rule. In the very recent ease of United States e.~ rd. Williams v. Pay decided on October 4, 1963, Chief Judge Lumbard of the Second Circuit Court of Appeals made a statement which seems to me very relevant to the issue raised by title I. In his opinion he re- ierred to the problem of police interrogation and said in part: Cases such as this raise a very serious question, whether the States are powerless to make the kind of inquiry which will bring to justice those who rob at night and murder their victims leaving no witness who can identify them. As a judge who must pass upon these cases where Federal court intervention is sought, I cannot concur without pointing out that the courts have been left to make rules and apply constitutional standards with little, if any, real knowledge or guidance regarding the difficulties which face the police in solving such crimes in our crowded metropolitan centers. Moreover, Congress and the legislatures have failed to make appropriate inquiry and statutory provision to meet the situation. [Emphasis added.] * It seems to me. that Judge `Lumbard is right when he says that courts have had to act without sufficient knowledge or guidance regarding most enforcement practices and problems. I.beileve he is also right when he says that the Congress has failed to make appropriate inquiry and statutory provision to meet the situa- tion. Certainly title I does not meet this need. All it does is to repeal the sanc- tion which is the exclusion of evidence obtained during a period of illegal deten- tion. The vital question. is left unanswered. This is the question of when a law enforcement agency may properly. detain a person, following a. lawful arrest, for the purpose of conducting an~ in-custody interrogation or other in-custody investi- gation designed to produce facts which will make it feasible to either charge the suspect or to release him from custody. This is an extremely complex and an extremely important issue. Its difficulty makes it understandable why the Con- gress might want to avoid the issue by merely providing that a confession is not inadmissible merely because of a failure to bring the suspect before the Commis- sioner without unnecessary delay. However, the difficulty of the task does not, in my judgment; justify the failure to deal with the issue. Law enforcement agencies cannot avoid the responsibility of deciding whether to detain or not to detain suspects The question is ~s hether they will have to continue to do this without adequate guidance from the Congress Congressional dissatisfaction with the Mallory rule evidenced by the passage of title I of H R 7525 is in fact dissatisfaction not only with the exclusion of evidence but more `importantly with the requirement that a suspect be brought before the Commis- sioner without unnecessary delay. Treating the symptom, which is the exclusion of the evidence, will have no effect whatsoever on the basic and important ques- tion of when detention for purposes of in custody investigation following a lawful arrest is proper and when it is improper. Passage of title I of H.R. 7525 will make it possible for police to act illegally without jeopardizing the conviction of the suspect. Certainly this is not a happy situation for anyone, most of all for law enforcement agencies who ought not to be content with a situation in which they are required to act illegally in order to maintain the level of enforcement demanded by the community. If in-custody interrogation is necessary (and I might say parenthetically that I believe it is both proper and necessary), it ought to be sanctioned by legislation spelling out when a suspect may be detained for the purpose of in-custody investigation. Congress has the facilities to make the kind of thorough investigation necessary to enable legislation to be drafted which will adequately deal with this issue. In brief, I would oppose title I of HR. 7525 because I do not think it deals ade- quately with the problem. It continues what seems to me to be the history of legislative default in regard to some of the basic questions facing law enforce- ment agencies today. Title III of H.R. 7525 does attempt to deal more directly with the problem of detention for investigation prior to arrest (title I having dealt with detention following arrest). Title III does at least try to indicate the circumstances in which it is proper to detain a person and sets a limit on the period of detention. There is also an effort made to prevent the suspect from having an arrest record if he `is released following the investigation. PAGENO="0532" 526 AMENDMENTS TO CRLMJNAL STATUTES OF D.C. The weakness of title III is that it merely incorporates the provisions of the Uniform Arrest Act, which are some 30 years old, and fails to reflect some of the problems which have arisen under the Uniform Arrest Act in States where it has been adopted. For example, in Delaware the Supreme Court in Desalva- tore v. State (163 A.2d 244 (1960)), held that the phrase "reasonable grounds to suspect" means "reasonable grounds to believe." By this interpretation the Supreme Court of Delaware sustained the constitutionality of the detention provision but in so doing deprived it of any significance. To equate "reasonable grounds to suspect" with "reasonable grounds to believe" means that a person can be detained prior to arrest only when grounds for arrest exist. The courts of the District of Columbia will not necessarily adopt this view of the Delaware court, but it would be desirable to make certain of this by attempting to give some further content to the phrase "reasonable ground to suspect." In Rios v. United States, the Department of Justice argued that law enforcement officers ought to have the right to question a suspect where there exists "reasonable grounds for inquiry." This seems to be a better formulation, particularly if the draftsmen were able to give some indication of the factors which might properly be taken into account by a law enforcement officer in deciding whether sufficient grounds for inquiry exist. Even if these matters were clarified, my own individual view would still be that it is unnecessary to have a 6-hour in-custodydetention provision if Congress were to provide an adequate basis for stopping and questioning suspects on the street; adequate arrest power; and an adeqaute right to conduct a reasonable in-custody interrogation following a lawful arrest. In brief, my view of title III is that it is inadequate to the extent that it per- petuates the difficulties which have developed in the Uniform Arrest Act during the 30-year period since its original formulation and further that it is both unnec- essary and unwise to raise the very difficult constitutional questions involved in the 6-hour detention provision when adequate provision for stopping and ques- tioning suspects, arrest and in-custody interrogation would provide the power needed for effective law enforcement today. Very truly yours, FRANK J. REMINGTON, Professor of Law. The CuAIn~LAN. I believe the views expressed in his letter are most challenging. The committee had also hoped tO hear Prof. Jerome Hall, of the University of Indiana, a legal scholar in the Durham field, who was unable to arrange his schedule to appear before the committee. Therefore, I ask to be placed in the record at this time an article by Professor Hall in the American Bar Association Journal of Oc- tober 1963, dealing with the Durham subject, and during the course of our hearing on title II, which involved the Durham subject, a num- ber of witnesses referred to this particular article. (The article referred to follows:) THE MONAGHTEN RuLEs AND PROPOSED ALTERNATIVES Responding to overt and implied criticism of the McNaghten Rules for determining legal insanity to excuse criminal responsi- bility, Mr. Hall proposes a national seminar or study by judges of the diverse and perplexing problems they must face in deciding issues in this field. He thinks that MeNaghten needs repair rather than replacement and that a rough consensus might be attainable. (By Jerome Hall, distinguished service professor of law, Indiana University) In the March 1963, issue of the American Bar Association Journal, Justice William J. Brennan, Jr., after stating that he would not even "by the slightest intimation suggest" which insanity test he thought preferable to the McNnghten rules, "if indeed it has yet been proved that any one of them is better," proceeds directly to express some very definite preferences on this subject.1 1 Brennan, "Law and Psychiatry Must Join in Defending Mentally Ill Criminals,~? 49 A.B.A.J 239 (March 1963). PAGENO="0533" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 527 Thus, evidently referring to those who defend the McNaghten rules, he asks a startling and illuminating question: "How valid is the assumption that morality and safety require punishment C * of mentally ill people?" This is startling because it seems to suggest that defenders of the McNaghten rules wish to have psychotic persons punished. It is illuminating because if indicates a lack of awareness of the fact that the principal problems in this area concerning the meaning of "mentally ill", the "knowledge" by reference to which this is to be determined, and bow mental illness can best be decided in a democratic society when the issue is criminal responsibility.2 One's concern is heightened by the justice's confidence in "medical assessment" as a condition of release from impris- onment arid by his evident opinion that there is. an obvious answer to the question whether "mentally ill offenders" should be sent to a hospital or a penal institution. The McNaghten rules were propounded by English judges in 1843 in Daniel IleNaghten's Case, 10 Cl. and Fin. 200. 8 Eng. Rep. 718, in response to inquiries from the House of Lords. They hold that "to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know be was doing what was wrong." This test has been and is followed (with some glosses) in almost all American jurisdictions, except New Hampshire, Vermont, and perhaps Illinois. In New Hampshire, for instance, in State v. Pike, 49 N.H. 399 (1869), the supreme court of that State formulated a test holding that an accused is not criminally responsible "if the [unlawful act] was the offspring or product of mental disease * ~ 1)URHAM CASE AROUSES INTEREST IN INSANITY RULES The present interest in insanity is a defense in trials of criminal responsibility was aroused by the decision of the U.S. Oourt of Appeals for the District of Columbia Circuit in 1954 in Durham v. United States, 214 F. 2d 862, in which the court held that a defendant was not criminally responsible "if his unlawful act was the product of mental disease or mental defect." The Court of Appeals for the Third Circuit has refused, as have many other courts, to follow the Durham rule, stating: "We are of the opinion that the following formula most nearly fulfills the objectives just discussed: The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which be is alleged to have violated." Another alternative to the M'Naghten rules is proposed in the Model Penal Code of the American Law Institute. This provides: (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. (2) As used in this article, the terms "mental disease or defect" do not include an abnorality manifested only by repeated criminal or otherwise antisocial conduct.4 In his article Justice Brennan goes on to state that "a glance at the transcripts *in more than a handful of cases" convinced him that although an accused may be "legally sane," he may "nevertheless [be] seriously disordered." Able psy- cliiatrists, after considerable study of many cases, disagree on this, and experi- enced forensic psychiatrists have said that ~he M'Naghten rules operate well and justly and are preferable to alternative proposals.5 The Justice then asks: "Can a true moral judgment be made about responsi- bility for any act without delving deeply enough into the actor's background * * * to attempt to explain the whole man?" While no mention is made of any- one who wishes to limit such an inquiry or of inevitable limitations of any legal or psychiatric inquiry, the implication regarding the present law and its admin- istration is plain and disturbing. 2 These questions are discussed in Hall, "General Principles of Criminal Law," 449-529 (2d ed. 1960). ~` United ~tate8 v. Currezz, 290 F. 20751 (1961). Sec. 4.01, Model Penal Code (proposed official draft) 66 (1962). See, also, Schwartz, "The Model Penal Code: An Invitation to Law Reform," 49 A.B.AJ. 447, at 449 (May 1963). 6 Hall, op. cit. supra at 519-520, passlm. PAGENO="0534" 528 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Justice Brennan also refers to the "distinguished Drs. Karl Menninger and Joseph Sotten" and he quotes approvingly and at length from Judge Bazelon, the- author of the Durham opinion, but he does not mention Drs. Frederic Wertham and Hervey M. Cleckley or other distinguished psychiatrists who hold a dif- ferent opinion of the current law. and of the forensic use of psychiatry. Finally,. there is no reference to any of the judges of some 20 jurisdictions, State and. Federal, who have rejected the Durham rule and other proposed alternatives to the M'Nagthen rules, not even to the particularly thoughtful opinion of the chief justice of the supreme court of his own State in State v. Lucas, 30 N.J. 37.. 152 A. 2d50 (1959). JUSTICE DOUGLAS THINKS DURHAM IS IMPROVEMENT In a lecture a few years ago to group of psychiatrists, Justice William 0.. Douglas hailed the Durham rule .as a great. improvement on the "rigid," the "arbitrary, fixed" M'Naghten rules.6 He first attributed the M'Naghten test to political .pressure, public clamor, and newspaper publicity, but later be said: "The only warrant of the M'Naghten ruleof insanity was tradition." "To most psychiatrists," he continued, the Durham decision "was . a break with legal tradition that was long overdue." It has the great advantage of permitting the- psychiatrist to "speak to the court and to the jury in the language of his dis- cipline," he declared. . . . Justice Douglas, in my opinion, was seriously mistaken in every one of these statements. Not the least significant evidence of this is that an overwhelming majority of the judges who have had an opportunity to pass on the question have rejected the Durham rule and the psychiatry summoned in support of it. The irony of these implied and expressed criticisms of the M'Naghten rules is that these justices, especially sensitive to the protection of civil liberties, do not realize that if the M'Naghten rules are abandoned, the consequence will probably be a "tyranny of experts".7 The vaunted "humanitarianism" of:some psychiatrista cOntemplates the long-term incarceration of vast numbers of persons who have violated no law, as well as the detention of thousands of petty offenders for as- long a time as the so-called experts withhold their favorable prognosis. It is unfortunate that these justices do not raise a question regarding the touted claim that adequate knowledge exists to discharge the above vital functionn fairly and with warranted assurance in the validity of the "experts'" decisions. What is especially significant is the probability that if judges as able and conscientious as Justices Brennan and Douglas lack the knowledge required to deal soundly with this problem, then many other judges and lawyers are in a similar situation. In sum, we face a complex 20th-century problem whose solut.ion requires much more than sympathy with unfortunate persons èharged. with the commission of crimes. INFORMED DISCUSSION SHOULDN'T BE CURTAILED Can anything be done to remedy this situation, especially in its relation to issues of the gravest importance that will no doubt be presented in due course to the Supreme Court? Certainly it would be a mistake for .judges to refrain from public speaking and printed publication, for then important;potential con- tributions would not be made and the occasional need for further study would be unknown. It may- be suggested, in the. first place, that when a judge delivers a public lecture and has it published in a w-idely read journal, it is both fair and necessary that the views he expresses be subjected to the same sort of searching criticism as the published views of others. But objectivity is very difficult to maintain when a Justice of the U.S. Supreme Court is concerned. Moreover, one can hardly ignore the fact that although we avow a free market in ideas as the best test of truth, the heads of well-financed psychiatric institu- tions and powerful officials enjoy strategic positions in the formation of public opinion. The implications are alarming when a Justice of the Supreme Court appears to have accepted certain philosophical versions of psychiatry. It would, of course, be absurd to imply that either Justice Brennan or Justice Douglas would approve any philosophy that depreciated human freedom. What °Douglas, "The Durham Rule: A Meeting Ground for Lawyers and Psychiatrists," 41 lowaL. Rev. 485 (1956). Wertham, "Psychoauthoritarianism and the Law," 22 U. Chi. L. Rev. 337 (1955). PAGENO="0535" AMENDMENTS * TO CRIMINAL STATUTES . OF D.C.. 529 troubles one is their apparent failure to recognize the relationship to human freedom ~ of the thesis that everyone or that every criminal is "mentally ill. What troubles, also, is the apparent acceptance of the extremely broad meaning of "mental illness" propagated by psychiatrists whose philosophy is, quite consistently, the utter repudiation of freedom, responsibility, and other basic values of democratic society. It is hardly possible to avoid the conclusion that what is plainly needed is further study Qf this difficult problem by judges and practicing lawyers so that at least the cogent questions can `be raised. NATIONAL SEMINAR IS PROPOSEW : Can anything be done to facilitate this and to assuie a fair and informed hearing of these problem~ Given competent guidance it Vv ould be possible for an able lawyer or judge to acquire a significant degree of critical competence in this area in a year of carefully planned ieading and bimonthly discussions This could be done in seminars or roundtable discussions in.which the ,M'Naghteii adherents were given a role and an opportunity equal to that of the critics, of the prevailing law. Newspaper reporting and other interference with dispas- sionate study and uninhibited discussion, such as stenographic or other record- ing, would be barred. Efforts. should be made to avoId the connotations of "work"; instead everything should be done to make the study enjoyable. The company of the judges interested in this particular problem might be augmented by.the admission of thoughtful laymen, legal philosophers, other scholars, and friends so that a congemal atmosphei e conducive to discussion prevailed The great .books method of.study depends on.a discussion leader who carries the major burden, and it allows a larger. number to participate than is possi- ble in' a seminar .where each participant is expected to report in some detail on a partièular problem. On the other band, in a discussion grol~p, one. would participate only to the extent he desired In a seminar which met bimonthly for 10. months, 20 participants would probably be the maximum number that could be accommodated. . . . . , ., Ten major phases of a basic problem, such as that noted above, could .be studied, one each month, with two participants reporting each session, pref- erably on opposed sides. ,The other members, would prepare for these meetings by reading from a carefully selected biblography in order to participate mean- ingfully in the discussion of their colleagues reports. Each participant would also be preparing his own repoi t A small able research staff would be a valuable adjunct to the seminir or discussion group It might limit its function to reporting on specific ques tions; e.g., How man psychiatrists are there in this country? How many of them have critized the M r~ aghten rules ~ What studies have been made to determine ~ hether psychiati ic testimony is at present restricted? SOME SUBJECTS ron DISCUSSION The following program `of a `seminar or discussion group is suggested' as illustrative. No preference is implied as to the order of studying the various problems and their formulation is not wholly neutral since my purpose is also, to raise questions regarding current criticism of the M'Naghten rules. 1. What are the principal meanings of "disease"? Is mental illness like physical illness, or is it so different from it that even a very wide analogy is misleading? ` ` ` - 2. What is "science"? Is there an intermediate type of knowledge between science, rigorously defined, and commonsense? Where should `psychiatry be placed; e.g., what of statements by leading psychiatrists to the effect that psychiatry is an art?~ What evidenëe is there that psychiatrists (a) cure men- tal illness,' (b) diagnose `it correctly, (c) can recognize that persons who have not committed any harm are socially dangerOus, and (d) c,an accurately' pre- dict that certain individuals will commit ciimes if they are released fiom hospitals or penal institutions? ` ` 3. What is an expert; e.g., does that term imply that there is a body of knowledge with reference to which all or most "experts" agree? What is the basis of the position taken by some social scientists that psychiatry has not yet developed to the point where psychiatrists should `be permitted ,to testify in court as experts? What are the principal types or schools of psychiati y and what is the significance of divergent theories and diveigent diai,noses7 What does this imply regarding the `common assumption that psychiatrists PAGENO="0536" 530 AMENDMENTS TO CRIMINAL STATUTES OF D.C. are expert in classifying certain persons as "psychotic" or "insane"? If these terms mean extreme and irrational deviation from social norms; for instance, being a social nuisance, is such labeling by a psychiatrist more or less sound than that by an intelligent jury? 4. Does psychiatry include expert skill in elucidating such terms as "right," "freedom," "justice," "punishment," and "responsibility"? What is the special competence of psychiatrists? What is the significance of a deterministic premise when employed (a) in physical science, (b) in psychiatric research, (c) in ther- apy, (d) in deciding whether a person should be held criminally responsible for a harm he committed? 5. The history of legal tests of insanity should be explored to ascertain their relationship to the contemporaneous medical and psychiatric knowledge, moral ideas, and views of "human nature" and, also, to evaluate certain recent state- ments, e.g., that the M'Naghten rules were merely the product of political pres- sure, that a "wild beast" test was ever actually a rule of law in England in the implied literal sense, and that lawyers have usually impeded the march of scien- tific progress while doctors have facilitated it. 6. Important, also, is a comparative study of American, English, and con- tinental law, especially with reference to the "irresistible impulse" test as a complete alternative to the cognitive (M'Naghten) test. On what grounds has the Report of the Royal Commission, 1949-53, so highly praised in this country by critics of M'Naghten, been criticized by English judges, for instance, Justice Devlin? In the study of continental codes, the meaning of the word "or" needs to be scrutinized to determine whether its significance is disjunctive or conjunc- tive. Continental cases should be studied to determine whether the position so ~vigorously.urged here by very articulate psychiatrists-thata person's cognitive faculties may be quite normal or even superior but, nonetheless, he may be un- able to keep from committing the most serious harms-is actually accepted in European law. If it is found to be recognized to some extent, is this the effect of the early 19th century psychology of separate faculties, which has been everywhere disearded. or is it currently supported by able* European psychiatrists? 7. In the study of such social problems, the most difficult question often is: What is the question or the proposal that is made? This requires logical analysis of various arguments. For example, is it consistent with the psychology of integrated personality (that man functions as a unit) to argue that M'Naghten should be abandoned? Is it consistent with that theory of psychology to argue that the volitional function can be seriously disordered but, at the same time, the cognitive functions remain normal? Is it consistent to assert that psychiatry does not deal with human freedom, right and wrong, responsibility, and justice, and to assert also that the right-and-wrong test is a vestige of superstition and that psychotic persons understand the difference between right and wrong? Logical inquiry can also disclose the areas where no assured answer can be given to certain questions, e.g., whether punishment deters, whether psychiatrists can rehabilitate criminals, and so on. If "experts" in behavioral disciplines and psychiatrists do not have all the desired answers, what is the role of intelligent laymen in dealing with such problems, end what of the legal and ethical stand- ards developed by thoughtful persons in the course of many centuries? 8. The characteristics and requirements of a democratic legal order should be studied especially in relation to the role of unfettered officials, unfettered experts, and unfettered juries. Are the prevailing conceptions of human nature, individ- ual responsibility, freedom, right and wrong, as traditionally expressed in the rules of law which guide judges and juries, to be subordinated to the theories of psychiatrists and, if so, to which ones-Freudian, neo-Freudian, anti-Freud- ian, Jungian, Adlerite, existentialist, organicist, neurologist, Reikian, Frommian, or eclectic? 8 Should the selected experts be permitted to present any theories or opinions to juries who receive no guidance from judges or laws? 9. There are still unsettled questions about "punishment" to be studied; they involve questions of public policy, ethics and free discussion. There are dis- tinctions to be drawn between reforms, utopias, and the relation of punishment to freedom and social responsibility. There are issues which concern hospitali- ~ "We are forced to conclude that the psychologically minded psychiatrist and his organi- cist colleague, though often members of the same professional organizations, do not talk the same language and do not have the same interests. `It is not surprising, then, that they have nothing good to say to each other, and that when they do communicate it Is ~nlv to castigate each other's work and point of view," Szasz, "The Myth of Mental Illness," 93 (1961). PAGENO="0537" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 531 zation and punishment, e.g., when is a "hospital" a penitentiary? And again, if we cannot determine whether punishment deters or whether experts can rehabilitate offenders, what is the status of so-called retributive punishment? 10. Finally, efforts might be made to formulate conclusions reached at the end of the inquiry, which, presumably, would correctly and precisely reflect the various positions held at that time. Evidently, also, some of the topics and some of the methods of analysis indicated above would be dealt with or employed at several meetings. STUDY HAS VALUES EVEN' WITHOUT ANSWERS There is, of course, no certainty that a general agreement will be reached on these difficult questions even after a year's study; it is possible that one's ulti- mate premises, one's "can't helps," as Holmes put it, will persist to the very end. But this does not imply that painstaking inquiries are illusory or mere "ideologies."~ The more defensible view is that such study takes one closer to the relevant truths as well as to a fuller appreciation of opposed positions. Cer- tainly the direction and degree of tolerable compromise could be more clearly discerned, and in the practical realm of daily life in a democracy, that may suffice. For me the existence of a significant degree of human freedom is a "can't help," as it is, no doubt, for Justices Brennan and Douglas and the vast majority of thoughtful Americans. So, too, as regards moral values, e.g., that after think- ing about a problem' it makes sense to speak of "right" and "wrong" actions. But human freedom and moral values depend upon understanding-they imply the reasoning, ` generalizing, cognitive functions of the human mind. "Mental illness" in at least some of its meanings deeply affects the validity of these postulates and their implications. Seen in relation to these basic postulates, the M'Naghten rules are neither a political contrivance nor a mere tradition. They may be faulty in their formu- lation, in emphasis on, one phase of personality, and in connotating the one- sidedness of the supporting psychology of the times. ` But despite its defects, M'Naghten incorporates the most important function `of human personality in terms of criteria with which a civilized body of criminal law must be concerned. M'NAGHTEN NEEDS REPAIRS, NOT ABANDONMENT For that reason, what is relevant is not the abandonment of M'Naghten, but only its repair. Just as the Venus de Milo is not neglected because an arm is missing, just as the Winged Victory holds the place of honor in the world's greatest art museum despite its glaring defect, so, too, reform of the present law should preserve what is essential in the M'Naghten rules. This. means the avoidance of completely autonomous alternatives such as the Durham rule, the American Law Institute's alternative proposal in terms of lack of "sub- stantial capacity .. . to conform" and other forms of the "irresistible impulse" hypothesis. A test solely in terms of "control of conduct" is ambiguous because it is silent on the crucial question: whether understanding has anything to do with conduct. To preserve the sound core of M'Naghten requires that the rationality of the human mind (understanding, knowledge, appreciation) be included `in the proposed test, in which case it may, of course, and probably should be, joined to other major functions of the personality.9 There is sufficient acceptance of these basic premises to warrant the expecta- tion that a very substantial agreement can be reached on their application to criminal responsibility, including the problem of mental illness. The hazards are the traditions which envelop and condition our attitudes toward the judiciary and the possibility that powerful judges will be called on to render extremely important decisions before they have studied this difficult subject. American realism, resourcefulness, and candor should be able to meet this challenge. ACTIVITIE5 OF SECTIONS The section of labor relations law conducted spirited meetings at the associa- tion's 86th annual meeting, with an extensive 3-day program. Supreme Court Associate Justice ArthurJ. Goldberg, a former member of the council: of the section, was a featured speaker. His remarks will appear in a later publication of the sedtion. 0 Hall, op. cit., supra, at 521-522. PAGENO="0538" 532 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Reports of the various committees of the section were presented and three received extended attention. The committee on National Labor Relations Board practices and procedure, headed by Edward Schneider of Boston, Mass., and J. Albert Woll of Washing- ton, D.C., reported recent revisions in the National Labor Relations Board rules and regulations, terming the changes a "substantial improvement." The com- mittee reported that its liaison relations with the Board were improved and cordial, though there are still some areas of disagreement. Two committee reports provoked floor debates. The ad hoc committee known as "Gulf-Warrior" presented majority and minority reports on a resolution to amend section 301 of the Taft-Hartley Act to overturn the rules set forth in United Steelworkers of America v. Warrior G Gulf Navigation. Company, 363 U.S. 574 ~1960). After debate, the minority report, which favored amendment, was adopted by a vote of 62 to 49. Another ad hoc committee-this one known as "Atkinson-Sinclair"-presented three reports, one representing a neutral pOsition. The resolution proposed amendment of the Norris-LaGuardia Act in the light of Sinclair Refining Com- pany v. Atkinson, 370 U.S. 195 (1962), to permit issuance of an injunction in violation of a no-strike provision of a labor contract. The resolution was amended to provide that no injunction may be issued except on notice and hear- ing and as amended was adopted, 63 to 30. * A paper on "Labor Law Decisions of the Supreme Court, 1962 Term" was given by Clyde W. Summers of New Haven, Conn. At the annual luncheon meeting, Arnold Ordman, newly appointed General Counsel of t.he National Labor Rela- tions Board, was the principal speaker. Guests of the section at the meeting were Frank W. McCulloch, Chairman of `the NLRB; and: John H. Faiming and Boyd Leedom, members of tile Board. Charles Donohue, Solicitor of Labor of the U.S. Department of Labor, partici- pated in the workshop session on fairlabor standards. The membership committee report, submitted by William F. Joy and. Robert M. `Segal' of Boston, Mass.. cochairmen, indicated a substantial growth in the section, with a membership now of 2,400. The meeting concluded with the election of new officers and~ council members. Tracy H. Ferguson of Syiacuse, N.Y.', was elected chairman and Louis Sherman of Washington, D.C., vice chairman. Robert F. Koretz, who is professor of law at Syracuse TJniversit~, is the new secretary of~ the section. New members of the council are Frank A. Costangy of Atlanta, Ga., and David Previant of Milwaukee Wis The CHAIRMAN. Likewise, the committee is hopeful . of. receiving from the Ath isoi~ Committee on Criminal Rules of the JudicnA Con fei ence of tile United St'ttes `i report of its study of the provisions of rule 5 (Ct) of the Fedei `ii Rules of Criminal Procedui e, smce one ~f its eminent judicial members was unable to arrange his schedule to appee i before the committee (The report i~eferred to follows:) NOVEMBER 15, 1963. Mr. W~anm~' OLNEY III, Director, Administrative 0171cc of the U.S. Courts, Supreme Con~rt B.nilding, Washington, D.C. DEAB Ma. OLNir: This committee has before it for consideration, legislation passed on August 12, 1963, by the House of Representatives which, under title I thereof, would substantially abrogate the )llcNabb-Ma.liory rule in the District of Columbia. . . This committee has conducted a series of hearings on the above subject and other matters relating to Criminal Justice Code, in the District of Columbia, during the past 2 months. The committee has made every effort to secure a comprehensive view of this subject. This committe has in its files copies of a purported report of the Advisory Committee on Criminal Rules of its study of provisions of rule 5(a), dated July 2, 1963; and a purported report of the. Committee on Rules and Practice and Procedure to the Judicial Conference of the United States, dated August 26, 1963, copies of which are enclosed. It would be appreciated if you could ascertain if these copies are the actual reports of the two committees because the information contained therein might PAGENO="0539" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 533 well be helpful in this committee's examination of the pending legislation. Like- wise, if these reports are those of the committees involved, this committee would like to include such in the appendix of the printed hearing record for the benefit of the Members of the Senate considering this subject matter. A staff member of the District of Columbia Committee spoke with Mr. Joseph F. Spaniol, Jr., over the past several weeks in an effort to arrange `a date satis- factory for Judge William Smith of the U.S. Court of Appeals, Third Circuit, to testify on the Mallory legislative proposal. However, a conflict with schedules of Judge Smith and the committee precluded his testimony. Therefore, as another means of securing information on the position of the Advisory Committee and the Committee on Rules of Practice and Procedure, I am attempting to secure the inclusion of such reports in the' hearing record. For your general information as to the~ general subject matter involved I enclose a copy of HR. 7525 and call your attention to the McNabb-Mallory section designated as title I and commencing on page 1. I shall await your reply in order that we can proceed with the preparation of the printed hearing record. Your courtesy is appreciated. Cordially, ALAN BIBLE. ADMINIsTRATIVE OFRICE OF THE U.S. COURTS, Washingoii, D.C., November 21,1963. Hon. ALAN BIBLE, Chaarm~an Committee on the Disti ect of CoTumina tT~ senate Washington,D.C. DEAR SENATOR BIBLE: I am replying to your letter of November 15, concerning the report of the Advisory Committee on Criminal Rules on its study of the provi- sions of Rule 5(a): Federal Rules of Criminal Procedure, dated July 2, 1963, and the report of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States, dated August 26, 1963, copies of which were enclosed with your letter. We have examined these reports and find them to be identical with the reports submitted to the Judicial Conference at its recent session in Septem- ber 1963. I should like to inform you further that at that time the recommenda- tions contained in these reports were approved by the Judicial Conference. The copies of the reports which you enclosed with your letter are' returned herewith for such use as you may wish to make of them'. Sincerely yours, WARREN OLNEY III, `Director. REPORT or THE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE TO THE JUDICL&L CONFERENCE OF THE UNITED STATES `1 our Committee on Rules of Practice and Procedure has received from the Advisory Committee on Criminal Rules a report of its study of the provisions of rule 5(a) of the Federal Rules of Criminal Procedure. That report, a copy Of which is annexed hereto, recommends that the Judicial Conference disapprove S. 1012, 88th Congress, and similar bills which seek to abrogate the McNabb-Mallory rule. Your. `committee `approves the report of the Advisory Committee on Criminal Rules and recommends that it be approved and adopted by the Judicial Conference and that the Bureau of the Budget, which has requested the views of the Conference on S. 1012, 88th Congress, be informed of the action of the Conference. Our committee has no definitive proposals to present to the Judicial Confer- ence at this time for changes in the rules of practice and procedure. Tentative proposals for the amendment of certain of the Federal rules of criminal pro- cedure have been widely circulated and are now being considered by the bench and bar. All five of the advisory committees now under appointment are actively engaged in the work to which they have been assigned. Progress re- ports from~ each of them are. annexed hereto for. the' information of the Conference. Respectfully submitted. ` ` ALBERT B. MARIS, Chairman. PAGENO="0540" 534 AMENDMENTS TO CRIMINAL STATUTES OF D.C. REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES OF ITS STUDY OF THE PRovIsIoNs OF RULE 5(a) The Advisory Committee on Criminal Rules has spent a considerable amount of time studying and discussing the problems raised by the provisions of rule 5(a) which requires that a person arrested be brought before a commissioner- "without unnecessary delay." The present status of the deliberations of the committee on these problems is as follows: (1) The committee is agreed that there should be no change in the doctrine enunciated by the Supreme Court in such cases as McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1957) under which confessions obtained during a period of delay longer than that permitted by rule 5(a) are excluded from evidence. (2) The committee has so far been unable to articulate any better standard than "without unnecessary delay" which will fit the wide variety of situations. and circumstances which exist in the various Federal districts. (3) The committee recognizes that special problems may exist in the District of Columbia because of the fact that the police in the District have general law enforcement jurisdiction. However, the committee has felt that special rules for the District should not be incorporated in the rules of criminal procedure. The committee, therefore, has not given special attention to the problems which are peculiar to the District. However, the committee does recommend to the Judicial Conference that it oppose 5. 1012 and similar bills which merely seek to abrogate the McNabb-- Mallory rule in the District of Columbia. Such proposals avoid, but do not solve, the fundamental problems of what procedures are appropriate to govern the police in the District. Instead, their thrust appears to be to permit the- police to avoid the present procedure in the course of securing confessions subject only to the controls imposed where the violations are so grave as to~ result in determinations that confessions are involuntary. Respectfully submitted. JOHN C. PICKETT, Chairn2 an. AD~sINIsVEATiv~ OFFICE OF THE U.S. CoURTs, Washington, D.C., January 10,1964. Mr. RICHARD JUDD, Professional Staff Member, District of Columbia Committee, Wew Senate Office Building, Washington, D.C. DEAR Mn. JUDD: In accordance with our telephone conversation of this after~ noon, I am enclosing a copy of the Report of the Proceedings of the Judicial Conference of the United States at its September 17-18, 1963, meeting. The record of the position taken by the Judicial Conference with respect to the case of Mallory v. United States and to S. 1012, 88th Congress, you will find begin- ningat the top of page 80. Sincerely yours, WARREN OLNEY III, Director. REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, WASHINGTON, D.C., SEPTEM~BER 17-18, 1963 ADMINISTRATIVE OFFICE OF THE U.S. COURTS Warren Olney III, Director * * * * * * * Rui~s OF PRACTICE AND PROCEDURE Senior Judge Albert B. Mans, Chairman of the standing Committee on Rules of Practice and Procedure, presented to the Conference a report of the activi- ties of the standing Committee and the Advisory Committee on Rules of Practice and Procedure. Judge Mans reported that the Advisory Committee on the Criminal Rules in connection with its study of the provisions of Rule 5(a): Federal Rules of Criminal Procedure, which requires that a person arrested be brought before PAGENO="0541" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 535 a commissioner without unnecessary delay, had considered the proposal con- tained in S. 1012, 88th Congress. The bill seeks to overcome the effect of the decision in the case of Mallory v. United States, 354 U.S. 449, under which confessions obtained during a period of delay longer than that permitted by rule 5(a) are excluded from evidence. Upon the recommendation of the stand- ing committee, the Conference voted to disapproved S. 1012 and similar bills which seek to abrogate the McNabb-Mallory doctrine. The Conference was informed that the committee had no definitive proposals ~to present to the Conference at this time for changes in the rules of practice and procedure. Tentative proposals for the amendment of certain of the Fed- eral Rules of Criminal Procedure have been widely circulated and are now being considered by the bench and bar. All five advisory committees now un- der appointment are actively engaged in the work to which they have been assigned. The CHAIRMAN. The record will be kept open until 5 p.m., Thurs- day, November 14. This completes the hearing record on all phases of H.R. 7525 with the exception of section 506, which is the section dealing with indecent publications. The Chair proposes, after the close of the hearing record and the reproduction of the testimony and the examination of it by my fellow committee members to proceed with that. We will stand adjourned subject to call of the Chair. (Whereupon, at 11:10 a.m., the committee was adjourned, subject to call of the Chair.) PAGENO="0542" PAGENO="0543" APPENDIX U.S. SENATE, COMMITTEE ON THE DISTRICT OF COLUMBIA, November 8, 1063. DEAR-: May I call your attention to title I (dealing with the Mallory rule) of H.R. 7525, the House-passed omnibus crime bill, on which you testified before this committee recently. In testimony on November 5, Deputy U.S. Attorney General Nicholas deB. Katzenbach said that if some corrective legislation is felt to be necessary in the Mallory area, that the Justice Department's recommendations were that a mini- mum of four essential safeguards of the defendant's rights should be incorporated in it. These safeguards and his comments particularly on this point are set out starting on page 681 of the enclosed transcript of the hearing that day. Mr. Katzenbach was questioned on these points by Senator Dominick at some con- siderable length starting on page 687. Senator Bible further questioned Mr. Katzenbaeh on these points on pages 716 and 717 wherein it was indicated that possibly only the first two safeguards might be required to meet the consti- tutionality test. Likewise, U.S. Attorney David Acheson discussed these safeguards in his statement starting on page 724 Enclosed is a copy of H R 5726 which sets thesesafeguards out in bill form in greater detail. I call your further attention to statements by Maj. Robert V. Murray, Chief of the Washington Metropolitan Police Department on the above points found on pages 738 to 749 and pages 757 to 760. It would be deeply appreciated by this committee in its examination of this complex subject if we could receive your written comments on Mr Katzenbach s suggested amendments to any legislation amending the Ilallory rule Since this committee has concluded its hearings on this section and is desirous of moving into an executive session in the near future, it would be appreciated if your written comments might be received by this committee no later than Monday, November 25 Your views will be valued and I believe most helpful in this corn irnttee s deliberations I am enclosing a self addressed envelope foi your use in sending your comments to the committee Again please accept my thanks on behalf of this committee for your time and effort in assisting in this important field Cordially, ALAN BIBLE - U.S. DIsTRICT COURT FOR THE DISTRICT OF COLUMBIA, Washington, D.C., November15, 1963. Hon. ALAN BIBLE, Chairman, Committee on the District 01 Colnmbia, * U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE This is in response to your letter of Novcmber 8 in which you request my comments on Mr. Kátzenbach's suggested amendments to the pending legislation to modify the rule of the Mallory case H R 7525 It gives me pleasure to comply with your request. Deputy Attorney General Katzénbach proposed four safeguards as amendments to the bill For reasons that I shall endeavor to state in sonic detail I am in favor of the first safeguard suggested by him, which in fact is already in the bill but am opposed to the remaining three Before discussing the individual proposed safeguards it seems desirable to be reminded of the background for this legislation. Prior to the decision of the Supreme Court in Mallory v. United States, 354 U.S. 449, June 24, 1957, the Federal rule, in fact the general rule, governing the admissibility of confessions 537 PAGENO="0544" ~538 AMENDMENTS TO CRIMINAL STATUTES OF D.C. at trials of criminal cases, was that any voluntary confession was admissible, while any involuntary confession, i.e., a confession obtained as a result of any physical, mental, or moral coercion, or improper inducement, was excluded. This has become a rule of constitutional law and is comprehended by the due process clause of the 5th and the 14th amendments. The Mallory case added a further qualification, that no confession, voluntary or otherwise, should be admitted in evidence if made after the expiration of an unnecessary delay between the arrest of the defendant and the time when he was brought before a committing magistrate. This additional limitation is not a rule of constitutional law, but purely a rule of evidence, and was intended as a sanction or a means of enforc- ing rule 5(a) of the Federal Rules of Criminal Procedure, which requires that an arrested person be brought before a committing magistrate without unneces- sary delay. The pending legislation would abrogate this additional limitation and would br.ing the law back to where it was prior to the decision in the Mallory case. Thus, it would seem clear that no constitutional question is involved in the pending legislation. As I read Mr. Katzenbach's testimony, he agrees with the foregoing postu- lates. He suggests, however, that the Supreme Court might possibly change its views on the constitutional aspects of the matter. Such a possibility always exists, for the history of Supreme Court decisions, ever since the creation of that tribunal, indicates that from time to time the Supreme Court has changed its views on various questions. I respectfully suggest, however, that it is futile to speculate on the possibility of a change of decisions in the future, and legisla- tion should be framed in the light of the law as it exists at the time. Mr. Katzenbach predicated his fears on the dissenting opinions in two cases: In re Gi'oban~ 352 U.S. 330, 337; and Anonymous v. Baker, 360 U.S. 287, 298. These cases, however, dealt with an entirely different subject and involved a wholly different principle than that presented by the pending legislation. In each case there was a State statutory proceeding at which a witness was com- pelled to answer questions. In each instance the official presiding at the hearing excluded counsel although the witness requested that his counsel be present. In each instance the witness was convicted of contempt of court for refusing *to answer questions when his demand for the presence of counsel was denied. The Supreme Court upheld the convictions. The dissenting Justices expressed the view that it was a violation of the due process clause of the 14th amend- ment, to compel a person to appear alone before any law-enforcement officer and give testimony against his will. Manifestly these views are not applicable to the legislation under consideration, as it does not contemplate compelling anyone to give testimony. It is observed that in the course of the hearing a question was asked whether the rule of the Mallory case has actually kept anyone from being punished for a crime that he has committed. From my observation of cases that have come before me, I can unequivocally say that this question should be answered in the affirmative. There have been quite a number of instances, although I have no statistics, in which a person who has committed a crime has received no punish- ment whatever because of the limitations of the rule of the Mallory case. Some judges of the district court on occasion have been constrained to exclude con- fessions and to direct judgments of acquittal because of the rule of the Mallory ease. Mallory himself was released and was not punished for the rape that he committed. As an irony of fate some time later he was apprehended by the local police in Philadelphia, for another crime that he subsequently committed there, and was sentenced to a long term of imprisonment by the Pennsylvania State courts. Then, too, there have been cases in which the U.S. attorney found it impossible to prosecute because of the limitations of the Mallory case. The four amendments proposed by Mr. Katzenbach will now be taken up by me individually. In dealing with these proposals it must be borne in mind that they would apply, not only to the Metropolitan Police Department of the District of Colum- bia, but also to Federal law enforcement agencies, such as the Federal Bureau of Investigation, the Federal Bureau of Narcotics, the Post Office inspectors, the Secret Service, and others, when they investigate crimes committed in the Dis- trict of Columbia. While the majority of cases that come before the U.S. Dis- trict Court for the District of Columbia, originate from the Police Department, there is a large minority of cases that are handled by Federal law enforcement agencies. PAGENO="0545" AMENDMENTS TO CRIMINAL STATUTES. OF D.C. I A warning to the prisoner immediately in advance of the interrogation that he is not required to make any statement at any time, and that any statement made by him may be used against him. I find no objection to this proposaL In fact this proposal is now included in section 101(b) of H.R. 7525 and, con- .sequently, no amendment to include it is needed. In this connection it might be said that the Supreme Court has held that no such warning is required TVs1 son v. United States, 162 U.S. 613, 623. It is the practice both of the 1 cal Police Department and Federal law enforcement agencies to give such a warning. There is no reason why the requirement should not be embodied in a statute. It should be made clear, however, either in the legislation or possibly in a committee report that it is not intended to exclude a voluntary statement made by a prisoner on his own initiative, and sometimes even blurted out by him, but that the warning is required only in connection with the questioning of prisoners. An extreme instance of a voluntary statement is found in Nance v. United States, 299 F. 2d 122, 112 U.S. App. D.C. 38, in which a person charged with a robbery was identified by his victim at a preliminary hearing before the U.S; cbmmis- sioner. The prisoner then asked the witness, "How do you know it was me when I had a handkerchief over my face ?" Naturally, this statement was ad- nutted in evidence at the trial. II That the arrested person be afforded a reasonable opportunity to notify a relativO or friend, and consult with counsel of his choosing. I am opposed to this amendment. As a practical matter, if the prisoner wants to consult with counsel. he will usually decline to answer any questions until he is given an opportunity for such a consultation. There is no reason why the police should be required to inform the prisoner of this right. There seems to be no doubt that an arrested person should be permitted to notify his family of the fact that he is in custody and also to consult with counsel of his choosing, if he expresses a desire~ to that effect. It is questionable whether he should be permitted to notify a friend be- cause the friend may be an accomplice. Under any circumstances this provision does not seem to have any place in the pending legislation. It must be borne in mind that the more restrictions and conditions that are included in the legislation, no matter how desirable some of theni may be, the more opportunity there is for the defendant to raise ~objections at his trial, and claim that the requirements were not complied with. III That the interval, between arrest and completion of a confession should not exceed a maximum of 6 hours. . . I am opposed to this restriction. Such a limitation would be purely arbitrary and there does not seem to be any basis for this specific figure. In many cases, indeed, the questioning of a prisoner is completed long before the expiration of 6 hours after his arrest. It is not nec- essarily always the case. The prisoner may give information to the police which, if true, would exculpate him and lead to his immediate release, but on investiga- tion it may be found to be false, as not infrequently happens. The prisoner may then decide to confess. Ordinarily, he first makes an oral confession and then it is reduced to writing on a typewriter, because the police department is not equipped with many stenographers. By the time the typing is finished more than 6 hours may have elapsed from the moment of the arrest. It would seem `unreasonable to exclude such a statement. Other situations can be conceived where 6 hours expires while a confession is being typed. Must the completion of the confession then be stopped? Such a requirement would likewise be un- reasonable and may well lead to a miscarriage of justice. IV That a responsible witness, other than the law enforcement officer, observe the questioning or that a verbatim transcript or a recording of the interrogation be made. I am opposed to this proposaL 25-260-64-pt. 1-35 PAGENO="0546" 540 AMENDMENTS TO CRIMINAL STATUTES OF D.C. First, it must be noted that sometimes a brief questioning takes place at the place of arrest at the time the arrest is made, or in an automobile on the way from the place of arrest either to a police station or to police headquarters. Manifestly it would be impossible to comply with either of the foregoing alterna- tives in such a situation. As to other situations, to bring in a responsible wit- ness on each occasion would seem impracticable. The police have to work 24 hours a day, 7 days a week. Very frequently arrests take place in the dead of iiietht. or in the early morning hours. Any questioning must take place forth- with, if at all. Ordinally it would not be practicable to get a witness of sub- stantial standing in the community immediately. Mr. Katzenbach states that this has been tried in one or two precincts in Chicago. He does not indicate, however, how successful the experiment was and whether it has become a perma- nent feature and, if so, why it has not spread to other precincts. There are occasions in which the local police will bring in the victim of a crime and if an admission has been made the prisoner may be asked to repeat it in the presence of the victim. This, too, cannot always be done because the victim may not be immediately available. The second alternative of a verbatim transcript or a recording of the inter- rogation would, of course, not be practicable in case the interrogation takes place at the place of arrest, or in an automobile on the way to the place of detention. But beyond that, it is not practicable for other reasons. It would be a very fine thing if it were possible to have a pool of Stenographers on hand at police headquarters, 24 hours a day every day in the year, and 2 or 3 stenographers similarly on duty at all times in every one of the 14 police stations. It would be equally desirable to have a core of stenographers on duty continuously in the offices of all Federal law enforcement agencies. The expense of such an arrange- ment would be prohibitive, and it is hardly necessary. Without such an arrange- ment it would be impossible to guarantee a verbatim transcript in every instance. As to recording every interrogation, again it would be necessary for the Govern- ment to make a large investment in tape recorders, so that a number of them would be on hand at police headquarters, and several at each police station, as well as a number at the office of every Federal law enforcement agency. Ques- tions and objections would arise if at a particular point the recording is not clear, as frequently happens with tape recordings if the person speaking does not enunciate well. In conclusion, I repeat that I find desirable the first proposal made by Mr. Katzenbach, but am opposed to the remaining three. Respectfully, ALEXANDER H0LTZ0FF, U.S. District Jvdge. R0cKvILLE, MD., November 12, 1963. Mr. CHESTER H. SMITH, Staff Director, Senate District Committee, Senate Office Building, Washington, D.C. DEAR Mn. SMITH: Pursuant to Senator Bible's very kind letter dated Novem- ber 8, 1963, I shall be pleased to comment upon the proposed amendment to title I (dealing with the Mallory rule) of H.R. 7525, as suggested by Deputy U.S. Attorney General Nicholas deB. Katzenbach. As these suggestions are set forth in detail in H.R. 5726, perhaps my comments will be more precise if directed to specific portions of that bill. SUGGESTED CHANGES (H.R. 5726) Section 1. No changes. Section 2. No changes. Section 3. Subsection (a), line 14. After the word "him" add: "to prove his guilt for the purpose of securing a conviction of crime in a subsequent criminal trial." Subsection (b). line 20. After the word "opportunity" add: "and was given the names and telephone numbers of Legal Aid Agency attorneys or other volun- tëer attorneys, if any, w-ho are available to advise indigent suspects." Subsection (c) No changes. Subsection (d). Rewritten as follows: Such questioning and warning and advice required by subsections (a) and (b) of this section were recorded by a wire, tape, or other sound recording which includes the arrested person's response that he understands the warning and PAGENO="0547" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 541 the advice, the times of beginning and interruption of all questioning, and a con- cluding statement by the arrested person that he has been subjected to no ques- tioning after his arrest, or threats or promises that are not upon recording. Subsection (e). New: Such recording was made available to the arrested person's counsel for in- spection, listening, and copying, a reasonable time prior to trial. DISCUSSION OF SUGGESTED CHANGES A. General Whether warranted or not the basic reason for Mallory-type restriction upon police interrogation lies in traditional American distrust of secret interrogation and an unwillingness to believe the police testimony regarding such interroga- tons. The historic choice between the differing versions regarding the interroga- tion of the suspect and the police has proven unpalatable to the courts. The risk of self-serving perjury by police interrogators has been deemed sufficiently great that judicial measures to eliminate the risk have been taken. The result has been restrictive upon interrogation itself. The suggestions herein are designed to eliminate the risk but not the questioning. Actually, the risk cannot be com- pletely eliminated, but it can be reduced. The military practice of keeping a complete tape recording of all interroga- tions seems a good model to follow. I am not aware of any inability to gain convictions as a result of this procedure. My suggestions are largely, but not entirely, patterned after the military experience. B. Specific The change in section 3, subsection (a), is designed to insure that the warning and advice to the arrested person would appear in the sound recording, thus eliminating the risk of challenge upon this point. The sound record also has the tangible proof concerning the actual questions and answers and the manner of interrogation. The concluding statement by the suspect reduces the possi- bility of "softening up" tactics which occur "off the record." Sectioi~ 3, subsection (e), is designed to facilitate a plea of guilty when ap- propriate and the avoidance of unnecessary trials. It also aids the defense if there is any suspicion of coercive tactics. I believe the bill is a good one, and I would support it with the suggested changes. Respectfully, GEORGE W. SHADOAN. P.S.-With reference to my testimony before the committee, I find Chief Mur- ray stating (p. 766 of November 5, 1063, transcript) : "I don't believe what that witness has to say and that is the one I want to rebut. I want to put a statement in, ifI may." I would appreciate a copy of the Chief's statement. It does not appear in the transcript. NATIONAL CAPITAL AREA CIvIL LIBERTIES UNION, Washington, D.C., November13, 1963. Hon. ALAN BIBLE, Chairman, Senate District Committee, U.S. Senate, Washington, D .C. DEAR SENATOR BIBLE: The National Capital Area Civil Liberties Union ap~ preciates the opportunity you have given us to comment upon the revisions of title I, of H.R. 7525, which have been proposed by Deputy Attorney General Nicholas deB. Katzenbach, and endorsed by U.S. Attorney David Acheson and by the President of the Board of Commissioners, Mr. Tobriner. The point of departure for our present comment is Mr. Katzenbach's testimony in which he declared his opinion that, "* The Mallory rule is a good one. Through it, the Supreme Court made clear its intentions to prevent law enforce- ment officers from delaying preliminary hearings for the purpose of eliciting confessions. This is as it should be." If this is as it should be, we cannot understand how the Deputy Attorney General can justify his recommendations to your committee. First, he would give police authorities, "a maximum of 6 hours elapsed time between arrest and completion of the confession," before they would be required to take their prisoner before the U.S. commissioner. This recommendation is a barefaced repudiation not only of the Mallory rule, but of rule 5 of the Federal Rules of Criminal Procedure because it plainly and explicitly allows the arrest- PAGENO="0548" 542 AMENDMENTS TO CRIMINAL STATUTES OF D.C. ing officers to delay preliminary hearings 6 hours for the "completion of a confession." Mr. Katzenbach's justification for this recommendation we believe is singu- larly unconvincing for it is nothing more than a recital of judicial decisions which excluded confessions which were given in periods varying from 15 minutes to 3~ hours after arrest. If it is a good rule to have which prevents delay for the purpose of eliciting a confession, it cannot make a difference whether the delay is for 15 minutes or for 6 hours. Any delay for this purpose would be forbidden. As the Supreme Court has explained, rule 5(a) of the Federal Rules of Crim- inal Procedure "contemplates a procedure that allows arresting officers little more leeway than the intervals between arrest and the ordinary administrative steps required to bring a suspect before the nearest magistrate," Mallory v. United States, 354 U.S. 449, 453 (1956). Second, Mr. Katzenbach would give to the police the duty to warn the "defend- ant, immediately in advance of the questioning, that he is not required to make any statement at any time and that any statement made by him may be used against him." The Supreme Court has more than once found, as laudable as these words of caution may be, coming from the lips of a police officer, that they are not ade- quate to assure persons under arrest of the rights they may wish toassert. "The lawful instruments of criminal law cannot be entrusted to a single functionary," the Supreme Court said in McNabb v. United States, 318 U.S. 332. It is for this reason that rule 5 of the Rules of Criminal Procedure commands that a person under arrest be taken to a U.S. commissioner, and gives to that judicial officer the function of advising the defendant of his rights. The decision in McYabb indicates that Mr. Katzenbach's proposal neither pro- rides protection for a person under arrest nor assures the prosecution of the admissibility of a confession obtained in violation of rule 5. Mr. Katzenbach's two remaining proposals deal with the conduct of the police interrogation. Inasmuch as we believe that no interrogation of persons under arrest is permissible until after they have been arraigned before a U.S. com- missioner, it is our belief that there is no warrant to establish procedures for conducting such questioning. To the extent that these procedures would estab- lish the proper safeguards, they would merely duplicate the preliminary hearings now prescribed by the Federal Rules of Criminal Procedure. To the extentthat they failed to provide such safeguards, it is our view, as It seems to be Mr. Katzenbach's, that the procedures would be unconstitutional. - If, nonetheless, your committee favors legislation to define procedures under which police officers may question persons unOer arrest, we- believe that there must be as a minimal requirement, a provision for representation by counsel. It would seem necessary to assert the need for such representation, in view of the importance which it has been given in the Constitution. The much-quoted statement of Justice Sutherland in Powell V. Alabama, 287 U.S. 68, 69 (1932), that "even the intelligent and educated layman * * * requires the guiding hand of counsel at every step in the proceedings against him" applies as much to the interrogation in the police station as to any other stage of his prosecution. This requirement has been underscored in at least two Supreme Court decisions: Crooker v. California, 357, U.S. 433 (1958) and Cicenia v. LaGay, 357, U.S. 504 (1958). The National Legal Aid Association has pointed out that "if the rights of the defendant are to be fully protected, the defense of a criminal case should begin as soon after arrest as possible" "Equal Justice for the Accused, 1959," p. 60). Obviously, the need for protection becomes all the more compelling if the police are to be given the authority to conduct interrogations of accused persons who are in their custody. In the light of these requirements, Mr. Katzenbach's proposal that persons under arrest be given, "a reasonable opportunity * * * [to) consult with coiin- se! of his choosing," is scarcely adequate. For counsel to be able to provide the "guiding hand" which Powell v. Alabama says is indispensable, the accused must have more than the right of consultation with counsel. Counsel must be present during interrogation. Moreover, for the indigent, the right to have "counsel of his choosing" is no more than an empty gesture. Mr. Katzenbach's proposal would perpetuate the phenomenon which Chief Justice William Howard Taft decried many years ago: "Of all the questions which are before the American people, I regard no one as more important than the improvement of the administration of justice. We PAGENO="0549" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 543 must make it so that the~ poor man will have as nearly as possible an equal op- portunity in litigating as the rich man, and under present conditions, ashamed as we may be of it, this is nOt the fact." We therefore believe that if interrogations are to be permitted of persons while they are in the custody of police officers, provision should be made for representation by counsel, and for those who are indigent, that counsel be ap- pointed on their behalf. With representation by counsel, Mr. Katzenbach's fourth proposal, we believe would be best' modified to eliminate the need for the presence of a "responsible witness" to observe the questioning. A verbatim transcript of the interrogation would constitute the best record of the proceeding. In conclusion, the National Capital Area Civil Liberties Union restates its belief that H.R. 7525, fails utterly to deal with the complex problem of crime in Washington. We believe that the enactment of the bill will serve no purpose other than to hobble the fair administrations of justice. We therefore urge that it be rejected. * Respectfully yours, DAVID CARLINER, Chairman. SHER, OPPENHEIMER & HARRIS, Washington, D.C., November 19, 1963. Mr. CHESTER H. SMITH, Staff Director, Senate District Committee, Senate Office Building, Washington, D.C. DEAR Mit. SMITH: This letter is in reply to Senator Bible's November 8, 1963, letter, with enclosures, requesting my comments upon the Department of Justice proposal to revise the Mallory rule as embodied in H.R. 5726. As the transcript of my testimony at the bearing on H.R. 5725 shows, I ap- peared as a witness for the National Capital Area Civil Liberties Union. That organization intends tO submit a single reply to Senator Bible's invitation to comment further on the record, and therefore I do not believe I should comment separately, except to say this: The protective' features proposed by the Department of Justice and written into Hit. 5726 deal only with the rights of a potential criminal accused who is arrested and questioned before his preliminary hearing. They provide no solu- tion to the other great evil which criminal rule 5A and Mallory were intended to eliminate, namely, the loss of basic liberty involved in an arrest and detention which has no judicial approval. This is the same loss of liberty which makes investigative arrests unconstitutional because there can be no judicial finding of probable cause prior to the preliminary hearing. For this reason alone I would oppose H.R. 5726. At any rate, I respectfully suggest that it is far too complex and important a proposal to be recommended for passage without a fuller hearing on its own terms. Thank you very much for the opportunity to submit these comments. Sincerely, JAMES H. HELLER, Secretary, National Capital Area Civil Liberties Union. OFFICE OF THE SUPERINTENDENT OF POLICE, Chicago, November 1.3, 1963. Hon. ALAN BIBLE, Chairman, Committee on the District of Columbia, ~7*5. Senate, Washington, D.C. DEAR SENATOR BIBLE: Thank you for again permitting me to comment upon proposed legislation pending before the U.S. Senate Committee on the District of Columbia pertaining to the Mallory rule. * It is my firm belief that there should be no exclusionary rule on confessions so long as they are voluntarily obtained. I have no objection to a requirement that an accused be advised that he is not required to make a statement and that any statement made by him may be used against him. * I think that a failure to so advise an accused should be considered with other evidence bearing upon the voluntariness or involuntariness of the confession but that such failure alone should not operate automatically to exclude an otherwise valid confession. PAGENO="0550" 544 AMENDMENTS TO CRIMINAL STATUTES OF D~C. My feeling is the same with respect to affording the accused an opportunity to notify a relative or friend or consult with counsel of his own choosing. There are some instances where it might be unwise to permit such notification because notification might jeopardize the life of a kidnaped child, or permit incriminating evidence to be hidden or destroyed, or valuable loot to be moved or disposed of, or material witnesses to disappear or be intimidated. Here again, I feel that the notification should be permitted within a reasonable time but not necessarily immediately. I am onposed to a 6-hour rule or any other arbitrary time limit between arrest and arraignment. What is a reasonable time depends entirely upon the circum- stances of the irdividual case. As I pointed out in my original statement, police require reasonable time to check on the accused's story. to check the accused's fingerprints, to bring witnesses in to see if they can identify him as the person who committed the crime, to interview and take statements from victims, wit- nesses, and the accused, to search for the murder weapon or loot or other physical evidence of the crime, and to make laboratory analyses of physical evidence. Some of these police actions can be conducted simultaneously hut the point is a reasonable time is required which may be more or less than 6 hours. Allow- ance must be made for these necessary actions between arrest and arraignment. Probable cause to arrest is not necessarily probable cause to formally charge or arraign. As to the fourth sugaeetion that the questioning of an accused be withessed by a responsible person who is not a law enforcement officer. I feel that this is a good idea in a few important murder cases but is impracticable when one considers the tremendous volume of criminal cases investigated daily in a large metropoli- tan city. In Chicago, for example, we investigate close to ~OO felonies a day. Again, I feel that this should not be an automatic precondition to the admissi- bilitv of a confession. To get a responsible outsider present to witness the ques- tioning of an accused may not always be practicable, particuiarly at odd hours, and may add to the very delay that the law is seeking to rectify. In instances where neutral observers were not available and statements were taken without the presence of observers, defense counsel would certainly use this fact to the dis- advantage of the prosecution in attempting to exclude confessions from evidence. If a. u-ire or tape recorder were used, it would be necessary that the accused be informed that his statements were being recorded electronically. It is in- evitable that many persons. through ignorance or suspicion, would immediately refuse cooneration. Moreover, confessions or admissions are often made sua sponte or in circumstances where outside witnesses or wire recorders are not immediately available. It annears to me that the introduetion of the safeguards proposed by Mr. Katzenhach and Mr. Adheson might well have the effect of not only codifying:the Mallory rule but introducing new automatic exclusionary rules that go beyond even the present requirements. As Senator Dominick has so aptly put it, "I have a basic feeling that the more legislative standards you put into the law which must be comulieci with prior to a conviction, the more shillelaghs you give to a defendant's attorney to say that they haven't been lived up to." It seems to me that anpe'late courts would inevitably add interpretive extensions to the statutory recmuirements that would lead to utter chaos. It is difficult enough as it is for a policeman to know how- to find his way through the maze of conflicting legal deci- sions ~n the law of arrest, search, and seizure. and the questioning of suspects. I think that we should stay away from arbitrary or automatic exclusionary rules and get back to deriding cases on the rule of reason, admitting or exclud- ing conf°ssions solely on the question of their voluntariness. Sincerely, 0. W. Wrisox, Superintendent of Police. UNIvERsITY OF MINNESOTA LAW ScHooL, Minneapolis, November 21, 1963. Hon. ALAN BIBLE, Chairman. Senate Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR SENATOR: I welcome your invitation of November 8 to comment on Deputy Attorney General Nicholas de B. Katzenbach's suggested amendments to any legislation amending the Mallory rule, and, I take it, to comment on the testimony of November 5 generally. I would greatly appreciate it if the follow- PAGENO="0551" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 545 ing statement could be included in the printed record of the Senate District of Columbia Committee hearings, perhaps as a supplement to my testimony of October 23. At the outset, let me say that the balanced, thoughtful, judicious testimony of Mr. Katzenbach, and David Acheson, U.S. attorney for the District of Colum- bia, who accompanied the Deputy Attorney General, is a refreshing change from some of the semihysterical outbursts some other law enforcement spokesmen have made. Assuming that a person is not taken into custody and questioned absent "probable cause," and I think this is assumed. (See Daily Report of Proceed- ings, Nov. 5, 1963, at p. 700.) Mr. Katzenbach's proposed safeguards do fulfill the main purposes of the il[cNabb-]llallory rule: to bypass conflicts over the nature of the secret interrogation and to minimize both the "temptation" and the "opportunity" to obtain confessions improperly; to effectuate or implement various constitutional rights, such as the right to counsel, the privilege against self-incrimination, and the protection against arbitrary arrest. I would be still happier with the proposal if the maximum time between arrest and confession were reduced from 6 hours to 4. I believe this could be done without significantly hampering police interrogation. In this connection, Mr. Acheson's comments are most illuminating (pp. 704-705) I think in some very high percentage of the cases a confession is made, if it is going to be made at all, within an hour or two, perhaps 3 hours after arrest. * * * In the great majority of cases a confession is made fairly promptly after arrest. Of course, a confession is withheld because the defendant thinks the police have nothing on him. When he finds out they do, he very frequently confesses. ~You get some cases like Kiilough in which the police cannot get anything on him and he will not confess even though he is held for a few days. We certainly don't suggest that there is any legislation that is practicable which would cope with a situation like that. [Emphasis added.] I share the doubts Senator Dominick (pp. 697-698) and, to a lesser extent, Senator Mcintyre manifested (p. 706) about the feasibility of locating and pro- ducing a "responsible witness other than a law-enforcement officer" to observe the questioning. Therefore, I would prefer the alternative: a verbatim re- cording of the interrogation. I think disputes about when and how the police issued the warning that the suspect is not required to make any statement at any time and that any statement made by him may be used against him, could be avoided by assuring that this too is recorded. Since, under Mr. Katzenbach's proposal, the recording would be the suspect's main protection against coercion, promises of special or favorable treatment and other deception, I do not think it unfair to make any editing or tampering of the recording a serious offense and, further, to take the position that once it is estab- lished that any such tampering has occurred, the confession must be thrown out. Whether such legislation would survive constitutional attack, especially on the ground that the suspect was subjected to interrogation without being per- rnitted to have the presence and aid of counsel, is, as Mr. Katzenbach has in- dicated, a matter of some speculation. His proposal would mean that persons accused of crime in the District would have significantly more protection than they do in many States, and I, for one, think such legislation would be sustained by the Supreme Court of the United States. However, if we are prepared to go this far to protect the rights of those accused of crime-and I think we ought to be-the persistent question I have is: Then why not stick with the McNabb-Maliory rule? Inasmuch as the Department of Justice's proposal requires that a suspect be plainly advised of his privilege against self-incrimination and permits him to consult with an attorney, I fail to see how it would "hurt" law enforcement one whit more if an arrested person were first brought before the nearest available judicial officer "without unnecessary delay," as rule 5(a) now requires; issued the warning by him, as rule 5(b) now requires (perhaps also permitted to consult briefly with an attorney), and then remanded to police custody for several hours of interrogation. I realize, of course, that in the District of Columbia, if the accused is com- mitted he is placed in the custody of first the U.S. marshal and next the prison warden and that prison regulations require the police to obtain the defendant's written consent (which they have managed to get in a number of recent cases) before they can pursue or resume interrogation. But I share the view that "the present practice of immunizing an arraigned person from interrogation does not rest on inviolable principles of law. The Constitution would appear to permit PAGENO="0552" 546 AMENDMENTS TO CRIMINAL STATUTES OF D.C. the suspension of bail pending a brief period of judicially authorized interrdga- tion." (Note, 68 Yale L.J. 1003, 1025-26 (1959)). "In fact, prior to the McNab~ decision, the U.S. marshals in the District of Columbia-under whose custody the great majority of federally accursed persons are placed pending trail-regu- larly returned them to police for interrogation," the same at 1026. The Supreme Court has sustained a confession obtained from ~a defendant after he had been duly committed to jail, United States v. Uarignan, 342 U.S' 36 (1951). Moreover, in Goldsmith v. United States, 277 F. 2d 335, 339 (D.C. Cir. 1958), a municipal judge, at the request of the police, signed an order per- Initting police interrogation after the defendants had been ordered held for the grand jury; the practice was not challenged and the resulting reenactment of the crime was sustained. True, the Carignan case is a long time ago, considering the tremendous strides taken by the Supreme Court in recent years. It is conceivable that postcom- mitment interrogation (a) without counsel's permission of one who has already retained counsel, or (b) of one who has not had the opportunity to consult counsel at any point, may be deemed constitutionally impermissible by the present Court. My own view is that it would not; that prior to the filing of an information or indictment, the absence of counsel, without more, is not likely to be considered a fatal defect in the near future. What if I am wrong? Then the measure proposed by the Department of Justice would also be struck down on constitutional. grounds. Although, as I have previously indicated, I think the Department of Justice proposal resolves, in the main, the "involuntary confession" problems which have long plagued the courts, I am troubled by a "right to counsel-equality of justice" aspect of the proposal. In the testimony pertaining to the proposal there are frequent statements about, permitting the arrested person to consult with "counsel of his own choosing.'~ But as Mr. Acheson observed (p. 706), "usually * * * these people don't know a lawyer." Usually, one might add, these people lack the financial resources to hire a lawyer, even if they did know one. But, as Mr. Acheson has also pointed out (p. 707), neither the Legal Aid Society nor any other legal agency is presently authorized to accept the call of the police to represent defendants in the custody of the police. What follows from this? A forceful argument may be made that to condition the availability of counsel at the crucial period shortly after arrest on the financial ability of the arrested person constitutes an "invidious discrimination" violative of 14th amendment equal protection and (in the case of Federal law enforcement) 5th amendment due process. To paraphrase Mr. Justice Douglas, speaking for a 6 to 3 majority in the recent landmark case of Douglas v. California, 372 U.S. 353, 355, 357-58 (1963): There can be no equal justice where the time an accused first enjoys the benefit of counsel depends on the amount of money he has. There is lacking that equality demanded by the 5th and 14th amendments where the rich man is fortified by the advice of counsel before he is interrogated but the indigent is forced to shift for himself. In your letter of November 8, you call my attention to the November 5 testi- mony of Maj. Robert V. Murray, Chief of the District of Columbia Police De- partment. You have been good enough to let me take issue with Major Murray at great length, but I cannot resist the temptation to comment briefly about some of the statements the Chief made on November 5. 1. Major Murray testified that "over the years if a man was arrested and said `I want a lawyer' he was given an opportunity to call a lawyer" (Daily Report of Proceedings, Nov. 5, 1963, p. 740) ; that this was the practice "when I worked in homicide 20 years ago that we had a person in there and he said, `I want a lawyer,' why there is no use wasting time with him. Just get him a lawyer" (p. 758). But at that same point, he states: "But I have never run into an attorney yet that would not advise his client not to talk to the police. We know when an attorney comes in that his client is not going to talk to the police about the case" (p. 749). It may be my shortcoming, but so far as I can make out, isn't Major Murray saying, in effect, that those persons who are wary enough and sophisticated enough-the experienced and professional criminals, if you will-to request an attorney as soon as they are taken into custody can commit crime with virtual impunity? PAGENO="0553" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 547. As Prof. William Beaney of Princeton has observed, Beaney, "The Right to Counsel in American Courts," page 207 (1955) "[T]he professional criminals, the `syndicate representatives,' the hired gun- men, and the veteran safecrackers, are well aware of their rights and will say nothing until they see their lawyers. In fact, it is not uncommon in some cities; for a `mouthpiece' to appear at precinct headquarters before the suspect is brought in. The undefended criminals, for the most part, are perpetrators of amateur crime, simple assault, petty larceny, or grand larceny involving slightly more than the statutory sum, or they are first or youthful offenders." 2. A fiat "6-hour" rule between arrest and completion of the confession troubles the Chief. "I think," he testified, "a time limitation should be decided by the judge, if it is a reasonable length of time" (p. 741). And be continues (p. 743) "[T]he trial judge can determine whether there was any unnecessary delay." This is what the judges are doing-right now. If. the Chief is willing to "leave it to the courts," what has he been complaining about so bitterly all these. years? 3. "Under the hampering effect of the Mallory ruling and corollary decisions," insists Major Murray, "our rate of offense clearance has decreased" (p. 726) .1 The clearance of crime, he tells us "started down * * * when the Mallory decision was handed down" (p. 747). "We feel kind of bad," he reveals, "be- cause our clearance rate is not 58 percent as it has been" (p. 768); and, he promises, it would be "back to 58 percent" if Mallory were "corrected" by enact~ ing legislation (ibid.). The facts-those supplied by Chief Murray's own department-are that the clearance rate dropped 7 full points (from 64.9 to 57.9) in the 2 years before. the Mallory case; rose two-tenths of 1 point the year after Mallory; and rose another 21/~ points to 60.7 2 years after that much-maligned case. See House Report 579 (to accompany H.R. 7525) (July 1963) at page 6. What then is the "readily apparent relationship". (p. 726) between Mallory and the clearance rate? At another point `(p. 727), Chief Murray seems to point the finger of blame for . declining clearance, rates (although the Chief nowhere notes this, the clear- ance rate first began to drop 3 years after the Mallory decision) not at Mallory after all, but at the "changed policies" on "arrest for investigation," starting from the time the Horsky committee first began its study of this practice. For. the reasons I gave in my testimony of October 23, and for the reasons spelled out at length in the Horsky report itself, I doubt this very much. But in any event, there is nothing this committee-or any other-can do about the ban on "arrests for investigation"-and the practice condemned by the Horsky committee was' not "field detention" but the actual "booking" and fingerprinting, of persons on "investigation." As you yourself so aptly summed up the situation, Senator (p. 761) : "I guess we will just have to give up that idea [of `arrest for investigation'] because we don't want to do anything that is not constitutional * `~* I don't think there has been one single solitary witness that has appeared before us that has said, it was constitutional." . , , . 4. Major Murray has .made much of, the "aggravated assault" category, where the District is No. 1, statistically. The District has always been high in this category. Although there were ~470 more cases of aggravated assault iii fiscal year 1963 than in fiscal year 1957 (the all-time low for crime under the Districts', modern reporting system), even with this increase there was still 1,583 fewer cases of aggravated assault in flscal year 1963 than in fiscal year. 1952 (the all- time .high for crime in the District under the current reporting system). See House Report 579 at page 5. This hardly suggests the "criminal army" is run-. ning rampant in the District. Why has time incidence of "aggravated assault" always been high in the Dis- trict? Chief Murray suggested the answer in a recent interview published in U.S. News & World Report, October 21, 1903, pages 92, 97: "Question. Can you give any reason for Washington being the No. 1 city in assaults? "Answer. I'll say this: In this list of cities that I mentioned-16 cities of.500,000 to 1 million population-we'll run pretty close with the other cities in homicides. There's no doubt about a homicide-if a person's dead, he's dead-or about stolen cars-you can tabulate those. But in aggravated assault, the figures are way off balance; we're way ahead of the others. Now, whether there is a different system of reporting- "Question. Different definition, maybe? "Answer. Could be." PAGENO="0554" 548 AMENDMENTS TO CRIMINAL STATUTES OF D.C. In any event, the increase in aggravated assaults has come about since June of 1959, not since June of 1957, when Mallory was decided. According to the graph on page 16 of the joint hearings before the House and Senate District of Columbia Committees (1963), there had been virtually no increase in th.i~ category at all as of 2 full years after Mallory. The incidence of robbery has risen, but the significant increase did not begin until 1960. See page 15 of the joint hearings. Homicide has increased slowly in the 5 years since Mallory, but not as rapidly as it did in the 2 years prior te Mallory. See page 13 of the joint hearings. And the incidence of rape started to drop at the end of 1957 and has continued to fall. See page 14 of the joint hearings. How apparent, then, is the relationship between Mallory and the incidence of crime? 5. A basic fallacy pervading Chief Murray's testimony is that the Mallory rule is something new. It is not. Even Prof. Fred E. Inbau-a stanch foe of the Mallory rule-admitted in his testimony of October 23 that the Mallory case sim- ply reaffirmed the T]psli aw case of 1948, which, in turn, reaffirmed the JifcNabb case of 1943. Indeed, 15 years ago, Professor Inbau criticized the MeNahb rule, see lnbau, "The Confession Dilemma in the Supreme Court," (43 Ill. L. Rev. 442 (1948)), on the very grounds he criticized the Mallory rule in his testimony before your committee last month. Questioning of Chief Murray on November 5 brought out that the District of Columbia metropolitan area population increased from 1,464,000 to 2,100,000 from 1950 to 1960 (pp. 750-751), an increase of over 40 percent. During this 10-year period, as Chief Murray pointed out in earlier testimony (joint hear- ings at p. 7), the total number of offenses in the District increased only 11 per- cent. No State in the Union had to operate under the McNabb-Upshaw-Mallory rule-only the District of Columbia did-during the 1950-60 decade but as Chief Murray also disclosed, the nationwide increase in crime during this period was a staggering 98 percent. (Ibid.) It is interesting to note that during 1950 to 1960, the overall felony rate in the three major Maryland and Virginia suburbs of the District for which gen- erally complete figures were available-and Maryland and Virginia law enforce- ment officers were "hampered" by neither the McNabb-Upsliaw-Mallory rule nor the exclusionary rule in search and seizure cases during this period- increased much more rapidly than did the District's. See Goshko, "Major Crime Rate Growing Faster in Suburbs than District of Columbia," Washington Post, March 11, 1962, page B5, column 1; Mintz, "Serious Crime Rate Down Here Despite Furor Raised by Congress," Washington Post, July 5, 1961, page Bi, column 6. 6. Nowhere does Major Murray come to grips with the information supplied by Deputy Chief John E. Winters, concerning juvenile crime in the District (joint hearings at p. 121) "The total crime picture in the District of Columbia for fiscal year 1962 reflected a 1.2-percent decrease as compared to fiscal 1061. Juvenile delin- quency increased 17.7 percent during the same year as compared to the year before. * * * A noteworthy decrease in crime in the District of Colvmbia would have occurred in fiscal 1902 if it had not been for the increase in offenses com- mitted by juveniles. [Emphasis added.] Are we supposed to believe that juvenile perpetrators of crime calculate nicely the length of time during which they may be interrogated by the police before deciding whether to beat up a person or snatch a purse, but that adult offenders do not? Sincerely, YALE KAMISAE, Professor of Law. THE DEMOCRATIC CENTRAL COMMITTEE OF THE DIsTRIcT OF COLUMBIA, Washington, D.C., November 29, 1963. Hon. ALAN BIBLE. U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: I write in response to your letter of November 8. 1963, enclosing a copy of H.R. 5726 and a transcript of the testimony of Novemher 5, 1063. Our comments on Deputy Attorney General Katzenbach's uroposed amend- ments to legislation regarding the McNabb-Mallory rule as embodied in H.R. 5726 and his November 5 testimony follow: PAGENO="0555" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 549 1. The Supreme Court has had two main purposes in mind in formulating and enforcing McNabb-Mallory. The first of these, of course, is to insure that the arrested person, the potential defendant, is not overborne as to his constitutional right to a fair trial and his constitutional right to refrain from incriminating himself. The safeguards proposed by Mr. Katzenbach are directed to this con- cern. Secondly, however, McNabb-Mallorij is meant to preserve the equally basic liberty of the citizen to be free from arrest and detention on less than probable cause as promptly found by an impartial judicial officer. The require- inent of a prompt preliminary hearing under criminal rule 5(a) contemplates not only that the magistrate shall advise the accused of his rights and insure that they are respected, but that he shall forthwith release those who have been improperly arrested. Mr. Katzenbach's proposals are not addressed to this second purpose at all. Indeed, on its face, H.R. 5726 would in effect license arrest and detention with- out magistrate approval for as much as 6 hours; moreover, at page 717 of the November 5 hearing transcript, Mr. Katzenbach appeared to suggest that the a-hour limitation could also be dropped. I agree that if you set a 6-hour limita- tion it is likely to become the minimum as well as the maximum (i.e., the standard) time of detention. On the other hand, Mr. Katzenbach was in error in stating that a time limitation was of no importance since the normal case "involves 1 or 2 hours" (transcript, p. 717), if the past practice of arrests for in~ vestigation provide any clue. The Horsky committee found that in 1960 out of 3,960 such arrestts, over 2,800 involved detention more than 2 hours and over 1,300 involved detention over more than 8 hours (Horsky committee report, table VIII-A, p. 97). It is no good saying that those figures have no relevance to arrests on specific charges, for H.R. 5726 really permits the police to revive investigative arrests substituting a specific charge for the former word "investigation." I cannot stress this point too strongly, especially since the committee members and all witnesses who appeared before it opposed section 301 of HR. 7525 because it purported to authorize the unconstitutional practice of making arrests on less than probable cause. But if the police can arrest a man on a specific charge and need not bring him before a magistrate without unnecessary delay, they can use the nominal charge as a device to do precisely what the Supreme Court for- bade in Mallory: "to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on `probable cnuse'" (354 U.S. at 456). With The best will in the world the police will surely use ths power if there is no sanction such as the Mallory rule to forbid them. What H.R. 5726 does is to remove that sanction, the only effective one to deter such practices. In sum: If H.R. 5726 or any substantial equivalent is enacted, the inevitable effect will be to revive what we formerly called investigative arrests. I urge the committee not to permit this result. 2. The foregoing objection is, for us, insuperable. On the score of providing Increased protection to the accused who is actually charged before a magistrate and made a defendant, H.R. 5726 does improve substantially on existing prac- tice. However, I do not agree at all that the Supreme Court will for that rea- son admit evidence taken in violation of rule 5(a) and the fourth amendment. I think it is an error to assume that the Court will allow Congress to dictate the admissibility of such evidence. Moreover, the safeguards in section 3 of HR. 5726 are not really satisfactory in these respects (apart from Mr. Katzen- bach's seeming agreement to drop subsections (a) and (c)) (i) It is meaningless to permit the friendless and indigent to call a relative or a lawyer. If a lawyer is not furnished to such a person, the statute merely gives him a theoretical right of no practical value. Moreover, a relative or friend is no substitute for legal counsel during questioning by the police. (ii) Six hours is more than enough time to overcome the resistance of a man detained in the police station and subjected to continuous questioning, not\vith- standing the other safeguards provided. Again and again the hopelessness of a criminal accused's proving the duress which he feels in such a situation has been pointed out to the committee and the courts. One man is weak, another strong. Rule 5(a) was intended to settle this issue by a fiat rule requiring in all cases a preliminary hearing "without unnecessary delay." If that rule seems too mechanical it is so precisely because any other rule is impossible to apply with fairness to the accused. The absence of third-degree tactics is not proof against compulsion during 6 hours of questioning. Of course, the hard- ened criminal will not be the victim of this sort of duress. PAGENO="0556" 550 AMENDMENTS TO CRIMINAL' STATUTES~ OFD.C. (iii) Unless the questioning is both witnessed and recorded, there' will be nO assurance against overbearing questioning. A tape recorder. can be turned off, and it does not reflect such matters as a policeman leaning over the.accused while he questions him. A witness, on the other hand can observe such acts but cannot hope to remember 6 hours of conversation. 3. We utterly reject the claim that such a sweeping revision of the rights of arrested persons in the District of Columbia, as opposed to all other Federal jurisdictions, is either necessary or wise because we have, more common-law crime here. By the same token we have more people arrested whose constitu- tional rights must be protected. We are not second-class citizens simply because we are the only big city controlled by the Federal Government. I also point out that rape or assault are equally serious whether they occur here or in an- other Federal enclave and that what the police do not. need elsewhere to solve such a crime they do not need here either.. To handle our crime problems we have a correspondingly larger police force. 4. Lastly, I submit that H.R. 5726, which was not the focus of the commit- tee's hearings prior to November 5, is not the sort of measure that should be reported out after only 1 day of hearing. It is far too complicated and explO- sive a proposal for that sort of consideration. I am confident that the com- mittee and its chairman, who have been unfailingly courteous to District citi- zens and attentive to their views, will want to search the issues posed by th~ bill more fully than can be done by written comments such as these. Sincerely yours, JosEPH L. RAtm, Jr., Acting Chairman. Washington, D.C., November 25,1963. Hon. ALAN BIBLE, .. . . Chairman, Committee on the District of Col~irnbia, .. U.S. Senate, Washington, D.C. . . . . DEAR SENATOR BIBLE: Undersigned furnishes herewith written comments upon Mr. Katzenbachs suggested amendments to any. legislation amending the Mal- lory rule, as per request contained in your November 18,. 1963, letter. . Undersigned, as chairman of the Due Process Committee' of the National Capital Area Civil Liberties Union, in its behalf and personally, cannot urge upon you any more strongly, graphically, `vividly, or vigorously `his own opposi- tion to any alteration whatsoever to the Mallory rule and, as well, the unalterable opposition of the Civil Liberties Union to such legislation. Testimony of Chief Robert Murray, of the Metropolitan: Police Department; contained in pages 738 to 749 in the transcript of the record of the hearings held by your committee, serves to `illustrate, in some particulars, sOme of. the vices inherent in the proposals of the highly'esteemed Assistant Attorney Gen- eral Mr. Katzenbach: While Chief Murray gives lipservice to the proposition that an arrested suspect should be advised of his right to counsel and he gives further lipservice to the proposition that the suspect `should be permitted to consult with counsel during incarceration and, presumably, during, and. prior. to, an interrogation, the true feelings of Chief Murray `are perhaps best put in his own testimony at page 741 of the transcript, wherein the Chief says: if a criminal knows that all he has to do is sit'tight for 6 hours, he may sit tight for 0 hours and not say anything. I think a time limitation should' be decided by the judge, if it is a reasonable length of time." What Chief Murray really seeks is the right to incarcerate for periods exceed- ing 6 hours persons arrested without probable cause; after having given a suspect merely a superficial assurance that he is entitled to counsel and for the sole purpose of facilitating a breach of the fifth amendment by causing the possible self incrimination of the suspect. The right to counsel is a very precious right that should be jealously guarded by the Senate of the United States of America. Personal experiences, while often germane to an issue, are not always acceptable in demonstrating or proving a point at issue. Nevertheless, undersigned will point out to you and to the committee that on an occasion, on a Good Friday afternoon in the early 1950's1 possibly 1953, 1954, or 1955, undersigned presented himself at the headquarters. of the Metropolitan Police Department, 300 Indiana Avenue NW., in the District of Columbia, on the fifth floor of that building, where the offices of the Gambling and Liquor Squad of the Morals Division were then housed, for the purpose of conferring with his client, one Kermit Mallette,. who had been arrested a matter PAGENO="0557" AMENDMENTS TO. CRIMINAL STATUTES OF D.C. 551 of 2 or 3 hours prior to that time by members of the Gambling Squad in the execution of a search warrant for the premises occupied by Mr. Mallette. Ar- rested along with Mr. Mallette, were four or five other individuals, all of whom were represented by undersigned and all of whom desired to see and confer with their counsel. The, now Deputy Chief, John D. Layton was in charge of the Gambling and Liquor Squad at that particular time and it was he, the then Capt. John D. Layton, who personally refused to permit undersigned to confer with, consult with, or even see his clients, until they had been subjected to the attention of Mr. Layton's subordinates in the securing of written or oral state- ments or confessions from these arrested suspects or in the attempting to secure same through intensive interrogation. Undersigned, who has been in the active practice of the law in the District of Columbia continuously for the past 19 years, and whose practice has con- sisted, perhaps, of 30 percent criminal practice, which practice has included some of the larger, more important and, perhaps, more publicized cases during that period of time since 1944, places no stock whatsoever in the reliability or upon dependability of police officers to properly advise arrested suspects when such advice would thwart the desires and intentions of such officers. In the mind of undersigned, the establishment of the mechanical means of facilitating the pure emasculation of the right guaranteed to every American citizen by the Founding Fathers in the fifth amendment, not to be compellable to give testimony against himself by the method of assigning the duty of protecting that right to he very same individual who a the very same time is interested primarily in having the citizen give up, waive, or lose that valuable right and give to the individual police officer a statement incriminating himself, and ascribing to such "protection". validity under the fifth amendment of the Constitution of the United States, is the very quintessence of sophistry. Senator Bible, the many reasons for the vigorous stand taken by the National Capital Area Civil Liberties Union in opposition to any legislation whatsoever seeking to amend or modify the Mallory rule are contained in our prepared statement, previously submitted, and in the oral testimony of undersigned and the oral testimony of James Heller before your committee, so that it is, perhaps, unnecessary tO reiterate these reasons in this letter. We are extremely grateful to you and to the committee for having extended to us this opporunity to present our views on the subject of Mr. Katzenbach's proposed amendment. As a footnote, we add that because a `copy of HR. 5726 was enclosed with your letter, that your committee was, or is, considering this bill as the embodiment or Mr. tcatzenbach's suggestions. Will you please, therefore, consider the fore- going statement as directed generally and specifically to the terms and provi- sions of HR. 5726. Sincerely yours, DR LONG HARRIS. CRAIGHILL, AIELLO, GASOII & CRAIGHILL, Washington, D.C., November 25, 1968. Hon. ALAN BIBLE, Chairman, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR Mn. CHAIRMAN: Your letter of November 8 requests my comments on certain suggested amendments to any legislation concerning the Mallory rule. 1 have read over the transcript which was forwarded to me by your office. Also, I have reread the cases on which Mr. Katzenbach's testimony was predi- cated, In re Groban, 352 U.S. 330, and Anonymous v. Baker. 360 U.S. 287. I have also reread Crooker v. California, 357 U.S. 433, and Cicenia v. Lagay, 357 U.S. 504. As I see this picture, four Justices of the Supreme Court have heretofore stated that interrogation of an arrested person without the presence of counsel or friends `or relatives may constitute a violation of the 14th amendment regardless of whether the jury subsequently makes a determination that con- fessions or admissions obtained as a result of such interrogation was voluntary and, therefore, entitled to credibility. No one knows the final answer to *this problem., The views of* the four Justices are clear. There have been changes on the Court and the Deputy Attorney General's conclusions with respect to how the new Justices might vote on this issuq are - likely to be more accurate than my own. I simply cannot say how Mr. Justice `White or Mr. Justice Goldberg or any other member of the Court would be likely to vote on this matter. PAGENO="0558" 552 AMENDMENTS TO CRIMINAL STATUTES OF D.C. In my experience, I have never encountered much success in relying upon dissenting opinions of the Supreme Court. The question of whether a lawyer should be permitted to advise an arrested person at the police station level was directly before the Supreme Court in both Crooker, supra, and Cicenia,1 supra. The majority ruled that the due process clause of the 14th amend- ment did not require the presence of counsel during interrogation by the police. In Urooker, Mr. Justice Clarke, speaking for the majority, said that such a requirement would have a devastating effect on law enforcement. For these reasons, I prefer the House-passed bill, H.R. 7525. It is noted that the motivation for the joint hearings conducted by Senators and Con- gressmen earlier this year was the desire to strengthen the public safety. There is no question but that the rights of the individual are scrupulously pro- tected by the judges who try and review the, case. There is question, however, as to whether the innocent victims of crime in this jurisdiction are given adequate protection by the Government. Interrogation of persons whom the police have reason to believe are involved in crime has long been regarded as the most useful single tool for the solution of crime.. Washington leads cities of the Nation of comparable size in aggravated as- sauts. Washington is second in the cities of the Nation of comparable size insofar a the crime of robbery is concerned. Most of these crimes take place on poorly lighted streets at late or unusual hours when the question of identity is difficult. These additional safeguards proposed in H.R. 5726 will render more difficult the solution of crime and the punishment of these numerous felons with whom the public is plagued in the Nation's Capital. Certainly in- ablity to solve and punish crimes of this character is not likely to aid~ law enforcement or increase the public's safety. Obviously, the opposite is true. A lawyer called in to advise a client during the course of interrogation has only one obligation, to protect his client. It would be unprofessional for him to act in any other capacity. This is so clear that the only advice to a client under these circumstances w-ould be the words "don't talk." If the committee, in the exercise of its legislative judgment. decides to follow the expert advice of the Deputy Attorney General, and I willingly concede that his sources of information and consequently his judgment on the matter are superior to mine, then I would say that it is preferable to limit asfar as possible the additional "safeguards" proposed in HR. 5726 to 3a and 3b. It is noted that 3a, in substance, is contained in the House-passed legislation. Subsection 3b does not require that the interrogation be stayed until either the lawyer or the friend or relative is present. It simply requires that the arrested person prior to questioning be told by his custodian that he should have the opportunity to notify a relative or friend and to consult with counsel of his own choosing. The additional safeguards 3c and 3d, which incidentally are. not strongly urged by the Deputy Attorney General, seem to be in addition to the rationale of the dissenting opinions contained mm re G~roban and Anonymous v. Baker, supra. Subsection 3c puts an arbitrary limit of 6 hours upon questioning. The arbitrary limitation would seem by implication to tell the police that any ques- tioning up to 6 hours is lawful. In many instances, the police can complete their procedures in less than 6 hours. I do not favor this provision. Take the case of Milton Mallory, 259 F. 2d 296, the nephew of Andrew Mallory. He was convicted of a sexual assault on a young girl. He was arrested and after some preliminary questioning, it was ascertained that he was too intoxicated to respond to questions. The detention was continued for approximately 13 hours before he had sobered up sufficiently to permit continuation of the questioning. Shortly after the commencement of this second period of interrogation, he con- fessed. Obviously, the 6-hour rule would preclude meaningful questioning of such a person. The court of appeals held that the conduct of the police under the circumstances in that case was proper and the conviction was affirmed. Subsection 3d which requires either a stenographic transcript of the interroga- tion or an electronic recording thereof, or that the interrogation be conducted in the presence of a "responsible person who is not a law enforcement officer" is in my experience impracticable. The police have very few, if any, employees who could record verbatim interrogations. Electronic recording devices require ex- perienced operatives and are always subject to the charge by defense counsel of tampering or splicing. Finding a "responsible person who is not a law en- 1 In what amounts to dicta, at p. 509 of 357 U.S., the Supreme Court said: "~ * * even in Federal prosecutions this Court has refrained from laying down (a rule that) police could not interrogate a suspect before giving him an opportunity to secure counsel." PAGENO="0559" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 553 forcement officer" in the middle of the night for the purpose of having him witness an interrogation presents real difficulties. Such a witness would be subject to rigorous cross-examination by defense counsel, to which no citizen seeking to perform a public duty should be subjected. It seems to me that upon proper instructions the jury is the best instrumen- tality for passing on the voluntariness of confessions or admissions. In my experience, in this jurisdiction, if there is factual issue as to the voluntariness of the confession, it must be submitted to the jury for the jury's determination. I would make this additional comment on section 4 of H.R. 5726. In the recent Killough case, 315 F. 2d 244, where our court of appeals was sharply divided, Judge Youngdahl, the trial judge, did make findings of fact, 193 P.S. 905, with reference to Killough's second confession to the police after he (Killough) had been judicially warned. Judge Youngdahl was in the best position to observe the witnesses on whose testimony he made these findings of fact, nevertheless, his determinations were overruled by the majority of the appellate court. (See dissenting opinion of Judge Danaher at p. 324 of 114 U.S. App. D.C.) If section 4 of H.R. 5726 which requires the trial judge to make findings is adopted, I would recommend that "such findings when predicated upon substan- tial evidence shall be deemed conclusive" be added. Respectfully submitted. OLIVER GASCH. NORTHWESTERN UNIVERSITY, SCHOOL OF LAW, Chicago, Ill., November 21, 1963. Hon. ALAN BIBLE, Chairman, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: I greatly appreciate the opportunity you have given me in your letter of November 8, to comment upon the testimony given before your committee on Tuesday, November 5. Attached hereto is my statement, in triplicate, regarding the testimony of November 5, and also outlining briefly my overall views regarding title I and title III of H.R. 7525. Since some of my views regarding the necessity for the police interrogation of criminal suspects have been set forth more fully in a recent book of mine, I am forwarding a copy thereof to you under separate cover with my compliments. After it has served your present purpose, perhaps you may wish to keep it avail- able for possible committee use on future occasions whenever this issue should again arise. Trusting that the enclosure may be of interest and value to you and your com- mittee, I am. Sincerely yours, FRED E. INBAU, Professor of Law. COMMENTS OF PROF. FRED B. INBAU, NORTHWESTERN UNIVERSITY SCHOOL OF LAW Title I, section 101 (a) is, in my opinion, an absolutely necessary law. It would nullify the McNabb-Mallory rule which makes it impossible for the police of the District of Columbia to give the people of the District the protection they so badly need from the criminal element in the District. At the same time, section 101 (b) will give to arrested persons a protection they do not now have as a matter of law, even though, as a practical matter, the prescribed warning is usually given to the arrestee at some time during his interrogation or before the taking of his confession. To add anything further to title I, as proposed by Deputy Attorney General Katzenbach and U.S. Attorney Acheson, would make matters worse than they are at the present time, and I say so for the following reasons: 1. It is unrealistic to fix a specific time limitation during which a confession could be lawfully obtained. The time that is reasonable or required in a given case will depend upon the particular factual situation of that case. In some instances a half-hour or 1 hour may be adequate; in others a much longer period would be required. I think it is dangerous to generalize on 6 hours. For one thing, the police may generally assume that they are entitled to 6 hours in all *cases, which obviously would be to the detriment of many arrested persons. Also, with a specific time limitation, an over zealous police officer may be induced PAGENO="0560" 554 AMENDMENTS TO CRIMINAL STATUTES OF D.C. to resort to interrogation methods which he would not use except for this run- ning out of the clock. I can also see the possibility of many informed criminals- and there are many informed criminals abroad today-deliberately waiting for the expiration of the 6 hours and then making a confession which would be un- usuable against him and at the same time the 6-hour expiration would nullify the validity of any derivative use being made of what he said. I think, there- * fore, that it is far better to omit any specific time limit. 2. It is impractical for the police to conduct the interrogation of criminal suspects in the presence of an observer, and it is also impractical to have trans- cripts and recordings made of all police interrogations. * An effective interrogation cannot be conducted except under conditions of privacy (the reasons for this are set forth in my book "Criminal Interrogation and Confessions," 1962) pages 1 to 5 and 203 to 210. Mr. Katzenbach, on page 698 of his reported testimony, was completely in error when he said that the police of Chicago (even in the area in which Mr. Katzenbach lived) "always secured, when somebody was arrested, an independent witness to look at the questioning * * **" Based upon my own experience and observation, when I was director of the Chicago police scientific crime detection laboratory, and my close familiarity with police practices since then, I can confidently report to the committee that this has never been and is not now the practice of the Chicago Police Department. What Mr. Katzenbach may have had in mind is a practice whereby in certain sensational murder cases the police would bring in some reputable citizen to witness the signing and acknowledgment of a written confession. This, however, occurred only after the individual had been interrogated and only after he had made an oral confession. Rarely, if ever, would the police have some nonpolice representative present at the time of the interrogation itself. Morover, considering the large volume of cases in which the police must question criminal suspects (including, of course, .those who are established, by the questioning itself, to be innocent), it is not feasible to arrange to have citizen observers present at all police interrogations. I am afraid that when Chief Murray was being questioned regarding this matter of an impartial observer, and he said that he had no objection to an impartial observer being present, that he had in mind the signing of a confession stage of an interrogation rather than a practice whereby all interrogations would be conducted in the presence of an impartial observer. I do not believe be meant to agree with Mr. Katzenbach's proposal. In any event, Chief Murray is being sent a copy of this statement so that he may clarify what he said if I am correct as to what I believe he actually intended to say. Almost as impractical as the impartial observer proposal is the one with * respect to stenographic or tape recordings of all police interrogations. The expenditure of time, manpower, and money would be tremendous in view of the large number of persons who are questioned by the police, and. it is not known in advance which ones are guilty and likely to confess. Then, too, a tape record- ing in itself would not be much more trustworthy than the police who are making it. Overlooked all too frequently is the fact that our only real safeguard against police abuses is to developa system whereby our police are selected and promoted on a merit basis, properly trained, adequately compensated, and accorded an opportunity to protect the public and enforce the law with a minimum of polit- ically inspired interference. Public opinion and an alert press would furnish .the required controls with respect to the issues of police abuses. In my judgment, title I is a constitutional proposal just as it now stands. The Mc1~1abb-Ma.iiory rule was established in the exercise of the Supreme Court's * supervisory, power over.lower Federal courts and was not based on constitutional considerations (see "Criminal Interrogation and Confessions," pp. 158 to 162) and the. State courts have uniformly refused to adopt a similar rule for their own jurisdiction, as. they were privileged to do since the i[cYabb-Mallory: rule was not founded upon constitutional considerations. Of significance, too, is the fact that .not one of the State cases has ever been reversed by the Supreme Court. Although there are some Justices on the Supreme Court who are in favor of raising the McNa.bb-Mallory rule to a constitutional status, the decisions of the Court up to the present time certainly have not done so, and it seems to me that Congress is privileged to proceed with the enactment of title I. With regard to the right to counsel during the arrest stage of a criminal case-that is, . before `the placing of a formal charge against the arrestee-~the committee should .be~r in mind that in two cases the U.S. Supreme Court upheld the admissibility of PAGENO="0561" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 555 confessions even though the police bad actually denied the arrestee the right to counsel. See Croolcer v. California 357 U.S. 433 (1958) and Cicenia v. LaGay 357 U.S. 504 (1958). I The committee's attention is also called to a recent decision of the Supreme Court of Illinois, People v. Escobedo, 190 N.E. 2d 825 (1963) in which the Illinois Supreme Court said: "Commonsense dictates that the presence of an accused's attorney would preclude effective police interrogation even though the questioning be fair. The law, of course, protects an accused whose will to confess has been overborne by excluding the use of the confession as evidence against him. It does not follow, however, that he is entitled to have someone present, who under the auspices of giving legal advice, warns and advises him against reacting to his first natural sensations to confess. As long as the questioning is fair, incriminating state- ments of an accused are not likely to result from any idea that he must answer, that is, as a result of his ignorance of his right against self-incrimination, but are likely to result from his free choice to make them. In any event, it is possible for someone other than his attorney to advise him of his right against self- incrimination and let the accused invoke the right rather than his attorney. The exclusion of a voluntary confession made outside the presence of counsel or the preclusion of effective interrogation by the presence of counsel is a high price to pay for whatever deterrent effect the presence of counsel would have on police abuses." (A discussion of the issue of the right to counsel at the arrest state of criminal case appears on pp. 167 to 173 of "Criminal Interrogation and Confessions.") In the light of the case law upon the subject, I do not feel that the committee should concern itself about the right-to-counsel aspect of title I. In my judgment, title I should be held constitutionally valid, and there is some reason for believing that if and when the issue is squarely presented to the Supreme Court, it would hold title I constitutional, although probably in another one of its 5-to-4 decisions. Title 3, which is essentially the Uniform Arrest Act, is in my judgment, neces- sary legislation and it is also constitutionally valid. 1 have reference particu- larly to subsections a, b, and c of section 301 which, as a practical matter, is of greater importance than section 302. Just as it is essential that the police have the opportunity to interrogate criminal suspects, it is necessary that they be given the opportunity to detain for a reasonable period of time persons they have reasonable grounds to believe are committing, have committed, or are about to commit a crime in order to identify these persons and inquire of them the reason for their presence in the particular place. The States of Delaware and Rhode Island have similar provisions in their laws and the supreme courts of both of these States have upheld their constitutionality. See Kavanagh v. Stenhouse 174 A 2d 560 (R.I. 1961), which was appealed to the U.S. Supreme Court, but the appeal was dis- missed for want of substantial Federal questions (368 U.S. 516). Also see Cannon v. State 168 A 2d 108 (Del., 1961). In the light of these two State supreme court decisions and in view of the dismissal of the appeal of one of them by the U.S. Supreme Court, I think the way is clear for Congress to proceed with the enactment of title 3 on the assumption that it is constitutionally valid. GEORGETOWN UNIvERsITY LAW CENTER, Washington, D.C., November 27, 163. Hon. ALAN BIBLE, Chairman, Committee on the District of Columbia, U.S. Senate, Washington, D~C. DEAR SENATOR BIBLE: Thank you for providing me with the opportunity of commenting on the proposals contained in H.R. 5726 and the testimony of Deputy Attorney General Katzenbach, U.S. Attorney Acheson, and Chief Murray. In the first place, I do not think that a need for legislation on the subject has been established. After declining in 1962, the crime rate again rose last year. The crime rates in adjoining counties which have no Mallory rule also has risen. Chief Murray has not presented any evidence, other than his own opinion, that the Mallory rule either has been a factor in the increasing crime rate, or that any substantial number of defendants has escaped cOnviction because of IL Mr. Katzenbacb stated that be did not know of any facts that could be cited which would lead to the conclusion that a substantial number of criminals have evaded punishment (II. 712). Mr. Acheson testified that there has been no substantial 25-260-64-pt. 1-36 PAGENO="0562" ~556 AMENDMENTS TO CRIMINAL STATUTES OF D.C. number of criminals who have evaded punishment although there may be some instances in which they received less punishment than they deserved (R. 713, 714). I do not think that Congress should legislate in matters of such obvious judicial cognizance as the admissibility of evidence in criminal trials unless a strong case is made for the need for a change and unless legislation is necessary in order to accomplish the change. Apparently neither Mr. Katzenbach nor Mr. Acheson object to the Mallory decision. They object to "extensions of the Mallory rule" in Elsie Jones' and the two Colenu~n' cases. In addition, Mr. Katzenbach referred to a dissenting opinion in the Muchette case3 and a ruling by a trial court in the Jones case. He did not mention that the trial judge who ruled in Jones was the same judge who dissented in Muc/tette. If the Department of Justice thinks that the Mallory rule has been inter- preted improperly by the court of appeals, it has a remedy in the writ of certiorari. I do not understand the basis for Mr. Katzenbach's conclusion that "there has been no disposition on the part of the Supreme Cdurt to review any of these cases" (R. 692). I have not checked all of the cases in which the court of appeals has interpreted the Mallory rule. It is clear that the Government did not seek certiorari in Jones or either of the Coleman cases. I do not think they have sought certiorari in any Mallory rule cases during recent years. It is particularly inappropriate at the present time for the Congress to legislate on the subject of pretrial interrogation of defendants in criminal cases. The law is in a state of flux and cases are presently pending before the Supreme Court which may have grave implications on the entire subject of pretrial interrogation. The Supreme Court has recently granted certiorari in Escobedo v. Illinois, 32 L.W. 3188; reported in the Supreme Court of Illinois as People v. Escobedo, 190 N.E. 2d 825. In the Escobedo case the Court will consider again the issue of whether a defendant has a right to counsel during a period of police interroga- tion. The prior decisions sustaining the right of the police to interrogate in the absence of requested counsel (Crooker v. California, 357 U.S. 433; Cicena v. LaGay, 357 U.S. 504) will be reexamined during the present term in the Escobedo case. The Court has also granted certiorari in Massiah v. United $tates, 31 L.W. 3407, reported below at 307 F. 2d 62, to examine the extent of the Federal right to counsel in pretrial police investigations. It is too early to know whether the Government will seek certiorari in Lee v. United &ates, 322 F. 2d 770, in which the Court of Appeals for the Fifth Circuit held that an indicted defendant was deprived of his right to counsel and due process of law when interrogated by Federal agents in his cell, although the record did not show that counsel was requested by the defendant. It is quite conceivable that the Court may determine that a defendant has a right to counsel during a police interrogation and that counsel must be fur- nished to the indigent. During the last term the Court stated: "But it is settled that where the assistance of counsel does not depend on a request." Carnley v. Cochran, 369 U.S. 506. I respectfully submit that it is wise to delay action on a statute which will permit intorrogation by the police in the absence of counsel, until the law is clarified by the Supreme Court. The study of prearraignment procedures recently undertaken by the American Law Institute is another reason to delay action. I do not agree with Mr. Katzenbach that it is desirable to pass legislation now because Congress "can always consider the recommendations subsequently, and amend any laws in the light of anything that they come up with" (R. 720). The institute's research will deal specifically with the Mallory rule as well as other matters. In a letter of November 8, 1963, Prof. Arthur Sutherland, reporter for the institute study, inquired of me concerning the effect of the Mallory rule within the District of Columbia and requested that I provide him with the names of persons knowledge- able in the field. I have suggested that he contact Professor Shadoan, Assistant U.S. Attorney Timothy C. Murphy, Chief Layton, and your staff before beginning his study. I anpreciate that some persons sincerely think that some legislation is desirable in this field. I agree with Messrs. Katzenbach and Acheson that title I 1 Jones v. United ytates, 307 F. 2d 397. 2 Coleman v. United ntates, 313 F. 2d 576; Coleman v. United ytates, 317 F. 2d 891. ~ No. 17410, July 25, 19~8. United states v. Jones, Crim. No. 366-63. PAGENO="0563" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 557 of the omnibus bill is undesirable. I cannot agree with them that H.R. 5726 is a satisfying substitute. In my opinion there are several deficiencies in the bill. The major deficiency in the bill is that it does not protect a citizen from an unlawful arrest and may, in fact, constitute an inducement to such arrests. The purpose of the Mallory rule is not limited to the prevention of conflicts over the nature of secret interrogations and the minimization of the temptation and opportunity to obtain coerced confessions. Of equal importance is the effectua- tion and implementation of a citizen's rights to be protected against an unlawful arrest, to be afforded an opportunity for release on bail, to consult counsel and to be informed of his right to remain silent. A citizen is protected against an unlawful arrest by the mandate that he be taken before a magistrate without unnecessary delay and that he be released from custody unless the Government can establish to the satisfaction of the magistrate that there is probable cause for believing that he is guilty. The proposed act would negate effectively this protection. An individual could be arrested without probable caflse, inter- rogated, and the statement given by him used to establish probable cause. There is every reason to expect that the police will use the statute as a substitute for arrests for investigation, where they suspect that an individual has committed an offense but lack probable cause. I think that is is also reasonable to expect that ultimately statements obtained during a 6-hour period of interrogation following an illegal arrest will be suppressed by the co~irts through the extension of the doctrine of Wong Sun v. United States, 371 U.S. 471. Such suppression will rest on constitutional grounds rather than the supervisory power of the Supreme Court over the administration of justice in the lower Federal courts. At the least, we can expect considerable litigation on this point if the bill is passed. The bill poses substantial problems of interpretation and administration. Initially we can expect considerable litigation concerning section 3(a), the requirement that police officers "plainly advise" a defendant "immediately prior to questioning" of his right to remain silent. I respectfully disagree with Chief Murray and Mr. Acheson that this warning by the police is "an absolutely unexceptional practice" which is done in almost every case (R. 702, 742). `Some detectives and officers do give the warning. It is contained at the top of written statements signed by a defendant. It frequently-and I suspect usually-is not given before an interrogation begins and before an oral state- ment is taken. Existing Federal law does not require such a warning and statements obtained in the absence of a warning have uniformly been held to be admissible (Morton v. United States, 147 F. 2d 28; United States v. Heitner, 149 F. 2d 105). Only in the military is such a warning required. The experience under the Uniform Code of Military Justice indicates that no other single provision has resulted in more appellate litigation. After 12 years, the meaning of article 31 of the military code, is still the subject of appellate court decisions. United States v. King, USCMA (No. 16,794, Nov. 15, 1963). Similar litigation will undoubtedly follow in the courts of the District of Columbia if the bill is passed. Section 3(b) of the bill provides that a defendant shall be advised that "he would be afforded reasonable opportunity * * * to consult with counsel of his choosing." This is a desirable safeguard but will be meaningless in most cases. Few defendants have retained counsel and few know the name of a lawyer who is willing to represent them in the middle of the night. Over half of the defendants are indigent. The Legal Aid Agency has no statutory au- thority to represent a defendant prior to preliminary examination. The pro- vision of the bill on its face affords a valuable right to a defendant; in reality it protects only those who need it the least. Whether the provision is required by the Constitution cannot be determined until the Supreme Court decides the Escobedo case. If the Court holds that a defendant has a right to consult counsel, it may be incumbent upon the Govern- ment to provide counsel for the indigent; or at least not interrogate him in the absence of counsel (cf. Lee v. United States, supra). I agree with Mr. Acheson that a 6-hour limitation is desirable if interrogation is permitted. Section 3(d) will provide serious problems of administration. Who consti- tutes a "responsible person?" What is meant by "whenever reasonably p05- sible" and "comparable means of verification ?" These terms pose substantial problems of interpretation. The only fair and effective method of verification PAGENO="0564" 558 AMENDMENTS TO CRIMINAL STATUTES OF D.C. is to record all that transpires from the moment the defendant is taken into custody. This seems extremely difficult to accomplish as a practical matter. I wish to apologize to the committee concerning certain aspects of my testimony which apparently were misleading. I thought that I had made it clear that my testimony concerning the crime rate and the rate of police resignations were based on fiscal 1962, which was the last year the statistIcs were available. Since my testimony I have received a copy of the hearings conducted by the subcommittee of the Committee on Appropriations on Sep- tember 28, 1963. The new statistics indicate that the crime rate increased in 1963 and that police resignations declined, although the rate was still con- siderably higher than in previous years. I did not intend to suggest that any police officers are specially detailed to the probation service. I intended to indicate that a more effective probation service would relieve the police of the duties of arresting violators and would result in a general reduction of the crime rate. I am taking the liberty of enclosing two judicial conference committee reports relating to the Mallory rule. Thank you again for providing me with the opportunity for expressing my- views. Yours very truly, A. KENNETH PYE, Associate Dean. THE METROPOLITAN WAsHINGTON BOARD OF TRADE, Washington, D.C., December 2, 1963. CHESTER H. SMITH, Staff Director, Senate Committee on the District of Columbia, New Senate Office Building, Washington, D.C. DEAR MR. SMITH: Pursuant to our conversation of Friday, November 27, 1903, concerning Senator Bible's letter of November 8 addressed to William K. Nor- wood, chairman of tl.e Board of Trade's Public Protection Committee, soliciting our comments upon the testimony of Deputy Attorney General Katzenbach on title I of H.R. 7525, I am happy to enclose a redraft of our previous correspond- ence of November 26 for inclusion in the record. The text of the enclosed letter was approved unanimously by our board of directors at a meeting earlier today. Please disregard the earlier reply and sub- stitute the enclosed to reflect our official comments. Again, please accept our. thanks for allowing us the opportunity to bring this matter before our board of directors for action and approval. Sincerely yours, HENRY P. LOSS, Manager, Community Affairs Department. THE METROPOLITAN WASHINGTON BoARD OF TRADE, Washington, D.C., December 2, 1963. Hon. ALAN BIBLE, Chairman, Senate Committee on the District of Columbia, New Senate Office Building, Washington, D.C. DEAR SENATOR BIBLE: The Metropolitan Washington Board of Trade appreci- ates the opportunity you have provided for us to comment on the testimony pre- sented by the Deputy Attorney General, Nicholas deB Katzenbach, at the recently concluded hearings on title I, H.R. 7525, the omnibus crime bill, concerning cor- rective legislation in the Mallory area. These comments we shall set forth rep- resent the best judgments of our public protection committee and have been re- viewed and endorsed by our board of directors. We have directed our comments, as you have requested, to a consideration of the safeguards suggested by Mr. Katzenbach to constitute appropriate legislation amending the Mallory rule. His recommendations would provide for the follow- ing four points: (1) A plain warning to the defendant, immediately in advance of the ques- tioning, that be is not required to make any statement at any time and that any statement made by him may be used against him; * (2) The arrested persons being afforded a reasonable opportunity to notify a relative or.friend and consult with counsel of his choosing; PAGENO="0565" AMENDMENTS TO CRIMINAL STATUTES OF. D.C.. 559 (3) A maximum of 6 hours elapsed time between arrest and completion of the confession; (4) A responsible witness, other than a law enforcement officer, observing the questioning, or a verbatim transcript or recording of the interrogation. We are commenting on the proposed safeguards in order. (1) We have no disagreement with the inclusion of this amendment if "im- mediately" is omitted. To insure a warning immediately in advance of question- ing. might require repeated warnings, for it could very possibly be difficult, or impossible, to determine exactly at what point the questioning may be considered to have begun. This is particularly pertinent as the definition of "immediately" is "without interval of time," and any general or miscellaneous remarks or ques- tions between the warning and the legal start of questioning might, by a stretch of the imagination, be used as an argument against the admissability of the confession. The proposed amendment, subject to the above comment, is generally in effect at the present time in the District of Columbia and would require no material change in present procedures. (2) We recommend a revision of the second proposed amendment to read as follows: "The arrested persons being afforded a reasonable opportunity to consult with counsel of his choosing, if such a request is made." We believe "notify a relative or friend" should be omitted. A friend or rela- tive could be an accomplice and notification to them could result in the destruc- tion or removal of evidence, or other action, preventing or hindering successful solution of the case. While consultation with counsel would most probably result in the arrested person being advised to make no statement whatsoever, and thwart the securing of necessary evidence for prosecution, we feel that this desire for counsel should not be denied, if requested by the suspect. However, we do not believe advice concerning the availability of counsel should be required. or in any way be a mandatory provision prior to proper interrogation. (3) The third proposed amendment should be omitted in its. entirety. The ~stabIishment of a 6-hour maximum may void confessions which under all other requirements are legally admissable. Such a time limit could result in a claim by the defense that the arrested persons were detained unreasonably solely because of the 6-hour time allowance. On the other hand, arrested persons could decide, or be advised, to wait out a 6-hour period without making any statement with the knowledge that any statement made after the expiration of this time limit would be inadmissible. We oppose the inclusion in any legislation of a time limit between arrest and completion of the confession and would prefer .that the determination of the rea- sonableness of any time interval be left to the iUscretion of the ~ (4) As regards the fourth suggested amendment, we fully recognize the de- sirability of corroboration, in one acceptable form or another, of a confession. Our recommended woraing to cover tiiis situation is as io~w%s: "A responsible witness observing the questioning, or if practical a verbatim transcript or recording of the interrogation." .1 We do not believe that a law enforcement officer should be prevented from qualifying as a responsible witness. Under some circumstances it may be impossible to secure some other witness. It would be a sad commentary on our police officers if we could not so qualify them.. We impose other and greater responsibilities on them in the conduct of their normal duties. We believe it should be recognized that a verbatim transcript or recording should be secured on a "when practical" basis. .111 preparing the above comments we have carefully weighed, on the one hand, reasonable and essential safeguards of the defendant's rights, and on the other hand, the rights of innocent and law-abiding society to be protected from criminal depredations. In our opinion, our comments reflect a reasonable balance be- tween these two requirements, and any further tipping of the scales of justice in favor of the accused persons would be. denying our law-abiding citizens their rights to safety and protection to which they are fully entitled. Again, we thank you for this opportunity to present our views on Deputy Attorney General Katzenbach's testimony concerning title I of HR. 7525. Sincerely yours, WILLIAM K. NomiwooD, Cli airman, Public Protection Committee. PAGENO="0566" 560 AMENDMENTS TO CRIMINAL STATUTES OF D.C. V~&nouTsos, KOUTOtTLAKOS & ARTHUR, Arlingtcm, Va., December 3, 1963. Hon. ALAN BIBr~, Chairman, Committee on the District of Uolumbia, U.S. Senate, Washington, D.C. (Attention Mr. Chester Smith). DEAR SENATOR BIBLE: I am writing in response to your letter of November 8, 1963, in which YOU ask for comments on the recommendations of Deputy U.S. Attorney General Nicholas deB. Katzenbach with regard to possible corrective legislation in the Mallory area. The Greater Washington Chapter of the Americans for Democratic Action are strongly opposed to these recommendations and stand squarely behind our origi- nal position upholding the Mallory rule as enunicated by the Supreme Court. The reasons for our opposition follow. The recommendations (most particularly, the third recommendation) would permit, and, in effect sanction, the reprehensible practice of dragnetting into the police station large numbers of persons, charging them all with the commis- sion of the same crime, pressing them all for a confession in the hope one will admit his guilt. This means that the police can engage in the en masse detention for investi- gation technique which we so vehemently deplored in our testimony before your committee on October 24, 1963, merely by placing a charge against each arrestee, rather than "detaining for investigation," regardless of the requirements of probable cause so ingrained in our jurisprudence. For 6 hours. therefore, any person whom the police remotely suspect has any connection with the commis- sion of a given crime, or even happened to be in the area of the crime, could be subjected to intensive interrogation. If no confession was forthcoming from an arrestee, he could be merely released without ever being brought before a magistrate. The essential crux of the issue is whether we are going to allow persons to be detained in police headquarters without judicial approval. Judicial approval can only be given if there is probable cause to believe that the arrested person com- mitted the crime of which he is accused. Probable cause must exist prior to the arrest. The Supreme Court reiterated in Mallory that prompt arraignment is one of the essentials of the procedural due process of law. Implicit in this view is the difficulty faced by the courts in insuring that this important step of pro- cedure is adhered to by the police. One method of enforcement the Supreme Court has is to emphatically make known to the police through its decisions that regardless of the actual guilt or innocence of the accused, if he is detained un- necessarily before arraignment then such detention is unlawful, and the "fruits" of such period of detention will be inadmissible ui a trial, and thus the convic- tion may well be unattainable if the other evidence is insufficient. Secondly, the Court restated in Mallory t.hat arrests must not be upon mere suspicion but only for probable cause and that the arraignment before a com- missioner is essential so that he can inform the accused of his right to counsel, right to remain silent and can allow the accused a reasonable opportunity to con- suit counsel (354 U.S. 1359 and rules 5 (b) and (c) of the Federal Rules of Criminal Procedure). Thus, if there is probable cause for arrest, prompt arraignment should not affect the police's case. If there is no probable cause, a 6-hour delay provides a ready pretext for police to search for probable cause by pressuring statements from any amount of arrestees the police can round up. Recommendation 3 makes the 6-hour rule an irrebuttable presumption of admissibility of otherwise admissable confessions or admissions regardless of the circumstances affecting the promptness of arraignment. We feel that the clear meaning of the philosophy underlying Mallory and of the constitutional require- ments of procedural due process make such a presumption untenable. The other three recommendations are all acceptable to us as normal elements of police practice. The first two recommendations, in substantial measure, are already basic to procedural due process of law, and the fourth might be a useful tool for the police in substantiating confessions. However, neither of these three pro- posals belong to any formula for a presumption of admissibility of confessions that would permit and encourage dragnetting of suspects and adversely affect PAGENO="0567" AMENDMENTS TO CRIMINAL STATUTES OF D~C. 561 the courts' major means of insuring that the police will comply with the require- ment for prompt arraignment. Thank you kindly for this opportunity to comment upon this important subject after your committee has terminated its hearings. Very truly yours, PHILIP SCHWARTZ, Member of 1~Jccecutive Board, Greater Washington Chapter, Americans for Democratic Action. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Washington, D.C., November 26, 1963. Re H.R~ 7525, H.R. 5726. Hon. ALAN BIBLE, Chairman, U.S. Senate Committee on the District of Columbia, Washington, D.C. DEAR SENATOR BIBLE: By letter of November 8, 1963, you have asked for my comments on H.R.. 7525, the bill designed to undercut the Mallory rule, and, in particular, for my comments on the November 5, 1963, testimony of Deputy Attorney General Nicholas Katzenbach and U.S. Attorney David Acheson. The most profitable starting point of any such discussion is the Mallory case itself and its background. The precise background of Mallory appears to stem from McNabb v. United States, 318 U.S. 332, in which the Supreme Court in- validated a confession made during a period of unlawful detention. Federal agents, prior to McNabb had virtually ignored the requirement of prompt ar- raignment which was, at that time, found in many places in the Federal criminal code. While the case went to the Supreme Court on the question of admissibility of the confession as tainted by coercion, the Court decided it on much narrower grounds, i.e., that the Government broke the law by failing to arraign promptly (in this case 18 U.S.C. 595), and "no Federal court can accept evidence obtained by a procedure expressly forbidden by Congress." Hogan and Snee, "The McNabb Mallory Rule: Its Rise, Rationale, and Rescue," 47 Geo. L. Rev. 1, 4 (1958). Although the Court, in McNabb, talked about "the circumstances in which the statements * * * were secured * * * a barren cell * * * for 14 hours * * * unremitting questioning by numerous officers," 318 U.S.. at 344, it is clear that these facts did not lead to the result. As Profes- sors Hogan and Snee put it: "The outcome of the case, it seems would have been the same had the presi- dent of the University of Tennessee been arrested and confined for 2 days in the best suite in Chattanooga's finest hotel; had he been served a menu which would have sent a gourmet into ecstacy; and had he been questioned for short periods by polite mild-spoken Federal agents while soft music was played in the back- ground." Hogan and Snee, supra. The rule emanating from McNabb, therefore, is one of evidence and one deemed necessary by the Court "to enforce the congressional requirement of prompt arraignment." Mallory v. United States, 534 U.S. 449, 453, explaining the McNabb holding.. The next step, it seems to me, once having determined that the Mallory rule springs from the holding in McNabb and that the McNabb rule is one of evi- dence designed to enforce congressionally dictated Federal police practices, is to determine what the congressional mandate the Court is enforcing really is. It is at this point that the constitutional overtones of this issue come into play. The fourth amendment to the Constitution of the United States, in prohibiting "un- reasonable * * * seizures," bans arrests made without probable cause. This is a fact which is quite often overlooked. Yet Mallory v. United States, 354 U.S. 449, 454, makes it quite clear: "The police may not arrest upon mere suspicion but only on `probable cause..'" It was clear, however, long before Mallory that the fourth amendment pro- hibition against "unreasonable * * * seizures" and the provision that "no warrants shall issue, but upon probable cause * particularly describing the * * * persons * * to be seized" applies to arrests and arrest warrants equally as to searches and search warrants. That was made clear in Albrecht v. United States, 273 U.S. 1, 5. It has since continually been reaffirmed, most recently in Giordenello v. United States, 357 U.S. 480, 485: PAGENO="0568" 562 AMENDMENTS TO CRIMINAL STATUTES OF D.C. "The language of the fourth amendment * * * of course applies to arrest as well as search warrants." The lower courts have consistently so held. In Wrightson v. United States, 229F.2d556, 559 (D.C. Cir. 1955): "Moreover that the fourth amendment covers warrants of arrest is estab- h~hed. The amendment protects the people against the seizure of their persons as well as against the search of their houses." And in Bynurn v. United States, 262 F. 2d 465, 467 (D.C. Cir. 1953) "The fourth amendment makes protection of the individual against illegal search or arrest a constitutional imperative." The District of Columbia Circuit has not been alone. The Third Circuit in United States v. Rabb, 141 F. 2d 45, 46 (3d Cir. 1941), at footnote 1, observed: "The history and development of the fourth amendment show that it guar- antees the right of the individual to be secure in his person against unreasonable arrests, as well as against unreasonable searches of houses and seizures of papers and effects." - Indentical language is found in Worthington- v. United States, 166 F. 2d557, 562 (6th Cir. 1948) and in Cohen v. Norris, 300 F. 2d 25, 28 (9th Cit. 1962). Since a person has a constitutiOnal right to be free from unreasonable seizures or arrests without probable cause, someone has to determine when the right is being violated. Quite obviously, neither the arrested person nor the arresting officer can make such a determination. This is a judicial function. Giordenello v. United States, supra- at 486, makes that clear: "The protection afforded by these rules when they are viewed against their constitutional background. is that inferences from the facts which lead to the complaint `* * * be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterpirse of ferreting out crime.'" [Emphasis supported.] See also United States v. Wallace ~ Tiernaw Co., 336 U.S. 793. In Wong Sun v. United States, 9 L. Ed 2d 441, 451, the Supreme Court put it this way: "The arrest warrant procedure serves to insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police to assess the weight and credibility of the information which the com- plaining officer adduces as probable cause." Earlier, in Wood v. United States, 128 F. 2d 265, 270 (D.C. Cir. 1942), our court of appeals described the Commissioner's function as being "to decide between the informer or prosecutor and~ the accused on the preliminary question Of his temporary restraint." Almost by definition, once the fourth amendment inhibition against unlawful seizure of the person or an arrest without probable cause is recognized, the decision on whether the right has been violated should be made promptly after arrest. And that, in reality, is all that rule 5(a), F.R. Crim. P., does, in pro- viding: "An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person with- out unnecessary delay before the nearest available commissioner * The next question is one of definition-when is an arrest made? The law in the District of Columbia is quite clear-an arrest is made, iii the constitutional sense, whenever a person is in fact "restricted in his freedom to proceed where he *ishes" ("Report and Recommendations of the Commissioners' Committee on Police Arrests for Investigation (1962) ," p. 25). In Coleman v. United States, 295 F. 2d 555 (1961), the court referred with approval (at pp. 563-564) to the jury instructions on the meaning of an "arrest" that had been given by the district court: "You are instructed that an arrest is the restraint of the right of locomotion, or a restraint of the person. It may be made without force or without touching the body. It is sufficient if the party arrested is within the power of the officer and submits to arrest, even as a result of a verbal command." "You are instructed that in order for there to be an arrest it is not necessary that there be an application of actual force, or manual touching of the body, or physical restraint which may be visible to the eye, or a formal declaration of arrest. It is sufficient if the person arrested understands that he is in the power of the one arresting, and submits in consequence." The court of appeals again considered the meaning of "arrest" in Keiley v. United States, 208 F. 2d 310 (D.C. Cir. 1961). There the ceurt held tMt the arrest of a person subsequently charged with possession of marijuana had occurred when he was ordered by police officers to leave a restaurant where he PAGENO="0569" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 563 had been sitting and to submit to a search outside. The court rejected the argument that the "arrest" took place only after the police officers had dis- covered the marijuana and. referring again with approval to the jury instructions given in the Coleman case, the court concluded (at p. 312) "That the appellant was restricted of his liberty and so understood can hardly be doubted as he left the restaurant with one officer leading the way and the other alongside or behind the appellant." The definition of arrest stated by the Kelley and Coleman decisions rests upon an earlier case which is frequently referred to as having established for the Dis- trict of Columbia that an arrest occurs when there is a detention that amounts to a restraint on liberty. In Long v. 4nsell, 69 F. 2d 386, 389 (D.C. Cir. 1934),. the court declared: "* * the term `arrest' may be applied to any case where a person is taken into custody or restrained of his full liberty, or where the detention of a person in custody is continued for even a short period of time" (see also Morton v. United States, 147 F. 2d 28, 30 (D.C. Cir. 1945) ; Price v. United States, 119 A. 2d' 718 (Mun. Ct. App. 1956)). All of this background, I believe, is necessary to a full understanding of what Mallory itself says. In Mallory v. United States, 354 U.S. 449, 453-454, the Su- preme Court excluded a confession, admittedly otherwise voluntary, because of a violation of rule 5(a). In so doing, the Court made two significant observa- tions: "The requirement of rule 5(a) is part of the procedure devised by Corigres~ for safeguarding individual rights without hampering effective and intelligent law enforcement. Provisions related to rule 5(a) contemplate a procedure that allows arresting officers little more leeway than the interval between arrest and~ the ordinary administrative steps required to bring a suspect before the nearest available magistrate." * * * * * * "The arrested person may, of course, be `booked' by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt." It is quite clear from a study of the cases cited by Deputy Attorney General Katzenbach that this is exactly what the police did-take a suspect to police headquarters, not solely for booking, but "to carry out a process of inquiry.'~ In Jones v. United States, 307 F. 2d 397, 399 (D.C. Cir. 1962), the facts speak eloquently of what occurred: "She was thereupon placed under arrest at approximately 4:25 a.m. on Sunday, July 3, 1960. After an additional hour of questioning the police returned appel- lant to the scene of the killing when, with her help, they found the weapon used, a knife. Thereupon, she was returned to homicide headquarters, where the questioning continued until about 8 a.m. when she signed a full confession claim- ing self-defense. She was not brought before the committing magistrate until the following day, Monday, July 4, at 9 a.m." It is clear, merely from this recitation, that Jones ~`a s not taken to the station for "booking" or for "ordinary administrative steps." She was brought for ques- tioning-a flagrant violation of Mallory. Under such circumstances, the time interval is insignificant; it is the conduct o.f the police within that interval which counts. The same is true in Charles Coleman v~ United States, 313 F. 2d 576, 577 (D.C. Cir. 1962), Tony Coleman v. United States, 317 F. 2d 891, 893 (D.C. Cir. 1962) and Mnsclvette v. United States, No. 17,410 (D.C. Cir. July 25, 1963). In each case, police officers took the accused to headquarters for the precise purpose of "carrying out a process of inquiry." This they may not do. It's just as simple as that. The fact that these are nighttime arrests is unimportant. A committing magistrate and an assistant U.S. Attorney are "available to the police 24 hours a day" (Jones v. United States, 307 F. 2c1 397, 399 (D.C. Cir. 1962)). "This. arrangement with the U.S. attorney and the municipal court has been in effect for several years" (id.. footnote 6). The unmistakable conclusion is that the police have intentionally ignored these procedures, preferring instead, to take their chances on the admissibility of any statements thereby obtained. I pointed out earlier that the McNabb-Mallory exclusionary rule is one of evi- dence. The obvious question, therefore, is whether the courts are justified in imposing such a rule as a means of enforcing proper police procedures (Mal- Zory v. United States, 354 U.S. 449, 453). An excellent discussion is found in PAGENO="0570" 564 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Hogan ~ Snee, supra, pages 21-33, and I would suggest that particular heed be paid to that section. They conclude: "The court must never confine itself to the question whether justice is being done; it must also take heed bow it is being done" (id., p. 30). The real answer is that no other way has been found effective to enforce proper police practices. As long ago as Neuslein v. District of Colvrnbia~ 115 F. 2d 690, 695 (D.C. Cir. 1940), our court commented: "The rights given by the fourth amendment are something quite distinct from the determination of whether the defendant was driving under the influ- ence of liquor. The two problems must be considered together, however, in effectuating either the protection of the Constitution, or the punishment of the guilty. When two interests conflict, one must prevail. To us the interest of privacy safeguarded by the amendment is more important than the interest of punishing all those guilty of misdemeanors. Happy would be the result if both interests could be completely protected. If this declaration is admissible and justice meted out on the issue of drunken driving, where is the defendant's remedy for the inexcusable entry into his home? The casuist answers-a civil action against the officers. That remedy has been found wanting. Such remedy scarcely satisfies the nonbelligerent, nonlegal mind of a person whose secu- rity has already been violated and who stands convicted. To follow that pro- cedure means delay, expense, unwanted publicity; it asks the individual to stake too much, and to take too great a chance, in the hope of compensating the inter- ference to his privacy. A criminal remedy is also possible, but it is likely to be too strict or too lax. If criminal actions are brought consistently against the enforcing officers, before long their diligence will be enervated. If no prosecutions are brought, which appears to be the case, it cannot be said that statutory criminal provisions afford any deterrent to the infringement of the fourth amendment. Even if the criminal and civil remedies worked, the pro- tection would not be complete. The amendment does not outline the method by which the protection shall be afforded, but some effective method must be administered; the protection granted by constitutional provisions must not be dealt with as abstractions. A simple, effective way to assist in the realization of the security guaranteed by the fourth amendment, in this type of case, is to dissolve the evidence that the officers obtained after entering and remaining illegally in the defendant's home." In adopting such an exclusionary rule, the Supreme Court of California, in People v. Gahan, 44 Cal. 2d 434, 282 P. 2d 905, 50 A.L.R. 2d 513 (1955), reviewed the entire history of the rule, pro and con, and concluded: "We have been compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers." * * * * * * * "Moreover, even when it becomes generally known that the police conduct illegal searches and seizures. public opinion is not aroused as it is in the case of other violations of constitutional rights. Illegal searches and seizures lack the obvious brutality of coerced confessions and the third degree and do not so clearly strike at the very basis of our civil liberties as do unfair trials or the lynchin.g of even an admitted murderer. `Freedom of speech, of the press, of religion, easily summon powerful support against encroachment. The nrohihition aeuinst unreasonnhl° seareh and seizure is normally invoked by those accused of crime, and criminals have few friends.' (Frankfurter, 3~. dissenting in Harris v. United States, 331 U.S. 145, 156; 67 S. Ct. 1098, 1104; 91 L. Ed. 1399). There is thus all the more necessity for courts to be vigilant in protecting these constitutional rights if they are to be protected at all. People v. Mayen (188 Cal. 237, 205 p. 435; 24 A.L.R. 1383) was decided over 30 years ago. Since then case after case has appeared in our appellate reports describ- ing unlawful searches and seizures against the defendant on trial, and those cases undoubtedly reflect only a small fraction of the violations of the consti- tutional provisions that have actually occurred. On the other hand, reported cases involving civil actions against police officers are rare, and those involving successful criminal prosecutions against officers are nonexistent. In short, the constitutional provisions are not being enforced." Certainly, this does not mean, as both Katzenbach and Acheson seem to imply, that no confessions while in custody are admissible. The so-called "threshold PAGENO="0571" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 565 confession," one made immediately upon apprehension, is always admissible (Loekley v. United States, 270 F. 2d 915 (D.C. Cir. 1959) (confession made with- in 15 minutes of arrest); Heidernanv. United States, 259 F. 2d 943 (D.C. Cir. 1958) (less than an hour and during booking procedure) ; Metoyer V. United States, 250 F. 2d 30 (D.C. Cir. 1957) (immediately upon transfer from Mary- land authoril los to metropolitan police) ; Day v. United States, 281 F. 2d 33 (D.C. Cir. 1960) (in police vehicle on way to station house). What is for- bidden is a delay in arraignment beyond that necessary for normal administra- tive procedures for the purpose of questioning. In respect of the precise legislative recommendations of Katzenbach and AchesOn, I see two basic obstacles. First, by providing for a 6-hour period (transcript, p. 681), Kotzenbach appears to be sanctioning the practice of in- vestigative arrests. I said, at the outset, that the MeNabb-Mallory rule is one of evidence. Actually, and more properly, it is a rule of procedure enforced by a rule of evidence. If, by the proposed legislation, Katzenbach would be establishing a new rule of procedure, i.e., an investigative arrest limited to 6 hours, serious constitutional problems are raised. For the reasons indicated earlier in this letter, I think such a rule would violate the fourth amendment. I am not alone in this belief. The Commissioners' Committee so concluded ("Re- port and Recommendations," suura, p. 44). And the Commissioners, acting on the report, outlawed the practice. The other criticism which I have goes to the proposition of legislating solely for the District of Columbia. Katzenha.eh bases the need for change on the high incidence of crimes of violence in the District (transcript, p. 678). Yet. he recommends legislation which would ~`nply to all crime in the District, including "frauds, mail thefts, narcotic violations, and the like" (transcript, p. 678). crimes which he implies can ably be prose- cuted without a change. The resulting distinction between the Federal prose- cution of crimes of violence in the District and in other Federal jurisdictions is an "invidious discrimination" within the meaning of the U.S. Constitution. It is geographic legislation with no sound basis for a geographic distinction. The applicability to Federal criminal defendants of the guarantee of animal protection. through the du& process cl'~use. was implied in Copned~ye m'. United States (369 U.S. 438, 447, and note 13~. The Court there indicated that "in- vidious discrimination" against pauper defendants, which had been held "incon- sistent with the guarantees of due process and equal protection of the laws of the 14th amendment" in Griffin V. Illinois (351 U.S. 12), and in similar cases, would also be prohibited to Congress in lerislating for Federal criminal c1e- fendants. Recently, in Koyee v. United Stales Board of Parole (306 F. 2d 759 (1962)), our Court proceeded on the premise-advanced by appellant and not disputed by the Government's brief--that the fifth amendment due process clause secures the guarantee of equal protection of the laws to Federal offenders with respect to conditions of. punishment. Applying this principle in Koyee, the Court upheld the distinction in treatment there in issue "because of the recog- nition by Congress that it is desirable and feasible for persons confined in [civilian prison] institutions * * * to be subject to certain specified and salu- tary parole conditions, notwithstanding like provisions have not been deemed desirable or feasible for those who serve their sentences in a military prison * * *" (306 F. 2d at 762). "But it is equally clear that the [congressional] power of selection for classi- fication is not an arbitrary one, but must have a reasonable foundation. It `must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis' (Gnlf, C. ~ S.P.1~. Co. v. Ellis, 165 U.S. 150, 155; 41 L. Ed. 066, 668; 17 Sup. Ct. Rep. 257" (Lappin V. District of Columbia, 22 App. D.C. 68, 79 (D.C. Cir. 1903)). In the leading case on point, Skinner v. Oklahoma (316 U.S. 535), the Supreme Court ruled that the equal protection guarantee of the 14th amendment prohibits a State from prescribing a mandatory punishment for certain defendants dras- tically more severe than could be imposed upon others for essentially identical conduct. The issue in Skinner concerned the constitutionality of a statute re- quiring sterilization of third felony offenders who had committed larceny but not similarly situated offenders who had committed embezzlement. The Court observed that larceny and embezzlement involved conduct essentially the same in nature and culpability. The equal protection guarantee was therefore vio- lated by the "invidious discrimination" entailed in applying the sterilization requirement to prior offenders convicted of the former but not those convicted PAGENO="0572" 566 AMENDMENTS TO CRIMINAL STATUTES OF D.C. of the latter offense. Careful scrutiny of such a law was es~sential. the CoUrt held, despite the latitude usually allowed to States iii equal protection cases; "lest unwittingly or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws" (id. at 541). The Oklahoma statute failed to withstand such scrutiny because of its unequal treatment of similarly culpable defendants~ "* * * The guarantee of `equal protection of the laws is a pledge of the pro- tection of equal laws' (Yick Wo v. Hopkins, 118 U.S. 356, 369). When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as, if it had selected a particular race or nationality for op- pressive treatment (Yiek Wo v. Hopkins, supra; Missouri co' reT. Gaines v. Canada, 305 U.S. 337)" (ibid.). The principle asserted in ~S'kinner, that the equal protection guarantee requires a rational basis for discriminating in the punishment and rights accorded like offenders, has consistently been applied by the Supreme Court. See Pennsyl- vania v. Aslie, 302 U.S. 51; Graham v. West Virginia, 224 U.S. 616; Finley v. California, 222 U.S. 28; McDonald v. Massachusetts, 180 U.S. 311: Moore v. Missouri, 159 U.S. 673. See also Er Parte Wells, 99 F. Supp. 320, 323-24 (N.D.. Cal. 1951), reversed, 201 F. 2d 503 (9th Cir. 1952), cert. denied, 346 U.S. 861 (1953) ; Re ATallon, 16 Idaho 737, 102 Pac. 374 (1909). In the foregoing Supreme Court cases, unlike Skinner, it was held that the statute in question created a reasonable classification of offenders and meted out the more severe penalty for all who were similarly situated. By contrast, in Skinner, unequal punishment results for "those who have committed intrinsically the same quality of offense." Substitute the word "treatment" for "punishment" and the provision espoused by Katzenbach would seem to be encompassed. Any attempt to uphold such a distinction is well answered by the language of Justice Black, in Berra v. United States (351 U.S. 131 (1956)) "The Government's contention here also challenges our concept that all people must be treated alike under the law. This principle means that no different or higher punishment should be imposed upon. one than upon another if the offense and the circumstances are the same. It is true that there may be differences due to different appraisals given the circumstances of different cases by different judges and juries. But in these cases the discretion in regard to conviction and punishment for crime is exercised by the judge and jury in their consti- tiltinrial camicities in the administration of justice" (Id. at 140 (dissenting opinion, discussing question not reached by the majority)). [EmphasiS supplied.] The basic rule governing the application of the equal protection guarantee is that, "a statutory discrimination must be based upon differences that are reason- ably related to the purposes of the act in which it is found." Mercy v. Doud (354 U.S. 457, 465~. "Of course, distinctions * * ~ may be justified by genuinely different characteristics * * ~ But distinctions cannot be so justified if the `discrimination has no reasonable relation to these differences'." Ibid., quoting from Hartford S.B.I. Ins. Co. v. Harrison (301 U.S. 459). The statutory classi- fication "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis." Lap pin v. District 0! Columbia, sunra, at 79. quoting with approval. Gulf. C. ~ S.F.R. Co. V. Ellis (105 U.S. 150, 155). To the foregoing principles, the Supreme Court has added a caveat, having particular bearing here: "`Discriminations of an unusual character especially suggest careful consider- ation to determine whether they are obnoxious to the constitutional provision? Louisville Gas c~ E. Co. v. Coleman (277 U.S. 32. 37. 38) ; Hartford S.B.T. Ins. Co. v. Harrison (301 U.S. 459, 462)." Morey v. Doud, supra, at 464. [Emphasis sunnlieu.1 If a State legislature were to enact a mandatory death sentence for murders committed in the State's capital city, while leaving the jury discretion whether to impose capital punishment for murders in other areas of the State, such a discrimination would almost certainly he held invalid on equal protection ground~. See United States v. Meyers (143 F. Supp. 1, 4 (D. Alaska 1956)) ; State er re~ WI? ite v. Wyandotte County Cominrs. (140 Kan. 744. 39 P. 2c1 286, 289-90 (1934)) State v. Fowler (193 NC. 270. 136 S.E. 709 (1927)) : l~r paste Falk (42 Ohi& St. 638 (1885)). Why then should a similar discrimination effected by Congress be held consistent with the guarantee of equal protection? PAGENO="0573" AMENDMENTS TO. CRIMINAL STATUTES OF D.C. 567 A more realistic distinction would be to treat all Federal crimes of violence alike. This, too, might fail to pass the test, but it certainly would come closer. Thank you for the privilege of allowing me to elaborate on the points under eonsideration. I hope these comments are of some assistance to you. With kind regards, I remain, Cordially yours, SIDNEY ZAGnI, Legislative Counsel. THE UNIVERsITY OF WIsCoNsIN LAW SCHOOL, Madison, Wis., November 22, 1963. CHESTER II. SMITH, Staff Director, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR MB. SMITH: This is a reply to your letter of November 15 in which you ask for such additional views as I may have relating particularly to the testimony of Deputy U.S. Attorney General Nicholas deB. Katzenbach. The major point which I tried to make in my previous letter is that it is important for the Congress to indicate whether in-custody interrogation is proper and, if it is, the circumstances under which an in-custody interrogation is proper. Title I of HR. 7525, as passed by the House of Representatives, does not achieve this objective but on the contrary, merely provides that a con- fession will be admissible even though it was given during a period of detention in violation of the requirements. of rule 5(a) of the Federal Rules of Criminal Procedure. The suggestions of Mr. Katzenbach do go further in the direction of specifying when an in-custody interrogation is proper. In my view the legislation ought to be even more explicit and provide substantially as follows: Delay for purposes of interrogation for a period not in excess of 6 hours following a lawful arrest is proper when such delay is reasonably required in order to decide whether to charge the person with a crime or to release him without prosecution provided that the arrested person is notified of his right to remain silent and of his right to counsel, and the interrogation is observed by a responsible witness or there is a verbatim transcript .or recording of the interrogation. I assume that this is not inconsistent with the Deputy Attorney General's objective. He says on page 680 of the transcript of the hearing of November ~, 1963: "Free of abuse, interrogation is a valuable investigative tool for arriv- ing at the facts." One of the major difficulties with the current state of the law in the Federal system is that it is at best doubtful whether police act prop- erly when they interrogate a person after his arrest, even when the interroga- tion is for a brief period and conducted under otherwise proper conditions. Unfortunately most of the attention given by legislatures and courts in the past has been in the direction of specifying improper police practices without giving enough attention to the specification of procedures which police can follow with assurance that they will be acting in conformity with the require- ments of law. In the long run, the specification of proper procedures may be more important than the identification of improper procedures. I would also go further, for much the same reason, and specifically authorize the common police practice of conducting a "field interrogation" of suspicious persons. By this I do not mean the detention provisions specified in title III nor the arrests for investigation discussed in the so-called Horsky report. Rather, I have in mind the more limited kind of imposition which results from a brief stopping and questioning of a person found under suspicious circum- stances on the street. This position was argued by the Department of Justice in lUos v. United States, decided by the Supreme Court on other grounds: Being stopped by a police officer for. purposes of inquiry may at times cause some inconvenience to the person stopped, but that temporary inconvenience is normally minor compared to the importance of such reasonable inquiry to effective law enforcement. Without the power, for example, to stop a suspi- ciously acting automobile to ask questions, the police might be forced to spend fruitless hours investigating actions which the occupant, had the police been able to ask him questions could readily have explained as being entirely inno PAGENO="0574" 568 AMENDMENTS TO CRD~fINAL STATUTES OF D.C. cent. In a fair balancing of the interests at stake, we submit that the rights of the person questioned are adequately protected by his privilege not to answer and that the police, having reasonable grounds for inquiry, ought not to be foreclosed from at least the opportunity, by asking questions, to determin~ whether further investigation is necessary. This point is made also by Judge Roger Traynor of the Supreme Court of California (in Mayp v. Ohio at Large in the Fifty States (1962 Duke L.J. 319, 333)) It might be possible, for example, to lessen the risk of arrest without probable cause by giving the police clear authorization to stop persons for restrained questioning whenever there were circumstances sufficient to warrant it, even though not tantamount to probable cause for arrest. Such a minor interference with personal liberty would touch the right to privacy only to serve it well. If questioning failed to reveal probable cause, it would thereby forestall invalid arrests of innocent persons on inadequate cause and the attendant invasion of their personal liberty and reputation. If it revealed probable cause, it would do no more than open the way to a valid arrest. In my judgment congressional enactment of a prearrest and postarrest inves- tigation procedure would make a very substantial contribution to effective and fair enforcement of the criminal law. Very truly yours, FRANK J. REMINGTON, Professor of Law. CANTER, MCLAUGHLIN & LTROW, Washington. D.C., December 12. 1068. Senator ALAN BIBLE, Chairman. Committee on the District of Columbia, ri.s. Senate, Washington., D.C. DEAR SENATOR BIBLE: I received your letter regarding the Mallory testimony after it resided about 3 weeks in a wrong pigeonhole, and I now hasten to send you my brief comments on the proposed amendments. A line of decisions has been initiated, following the Mallory rule, interpreting and construing rule 5(a) of the Federal Rules of Criminal Procedure and specif- ically the words "without unnecessary delay," in such manner as to alter radi- cally the traditional law on the admission of evidence concerning statements and confessions in criminal trials in the Federal courts. Rule 5 is statutory in nature and origin, and therefore is susceptible to amendment or interpretation and clarification by further legislation. Such is the purpose of section 101 of R.R. 7525. This section places no limitations on the extent to which the defense, in a criminal trial, may adduce evidence to show the circumstances under which. statements or confessions were obtained by law officers, or, of course, the actual nonexistence of such alleged statements. Cirëumstances may well warrant the court's exclusion of a statement or confession which it finds to have been ob- tained by unreasonable delays and circumstances amounting to coercion. Section 1 of H.R. 5726 is not inconsistent with the traditional law, nor with section 101 of H.R. 7525. and, taken in conjunction with the latter, is not objec- tionable. Section 2 of ll.R. 5726 merely restates the line of decisions above re- ferred to, and would serve only further to confuse the issues. It should be omitted. Section 3(a) is covered in section 101(b) of H.R. 7525, and is unneces- sary. Language should be included to give the accused a reasonable oppor- tunity to consult legal counsel; but he should not be permitted to consult with "a relative or friend," as provided in section 3(b), lest he advise and warn ac- complices in further obstruction of justice. I would oppose section 3(c) of H.R. 5726, as an encouragement to criminals to refuse to cooperate with peace officers in connection with their investigations of crime. Section 3(d) should be omitted as a matter of direct legislation, and left to the procedural orders of the Police Department where this principle should be utilized to strengthen evidence for presentation before the. grand jury and/or trial courts. Section 4 should be omitted as an intrusion upon the discretion of the court, and an encroachment upon the factfindthg prerogatives of the jury. The Citizens' Crime Commission believes that modification of the Mallory rule is of great importance to the criminal law enforcement picture of the Na- PAGENO="0575" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 569 tion's Capital. It was a few weeks after the Mallory decision that I was asked what the result of the rule would be. I said that the crime curve, that had descended at that time every month for over 5 years, would turn back upward. The ascent began with the next monthly report (July 1957) and has continued to rise for the past 6 years. My experience from 1928 to 134 in the U.S. at- torney's office was in this specific field, handling legal questions related to suppression of evidence, and I feel that we have a question of psychology and morale of the criminally inclined versus the psychology and morale of the in- dividual policemen in the performance of their duty, which has a real bearing on the efficiency of law enforcement. This consideration, combined with the technical disadvantages of the prosecutor in obtaining convictions, requires, in the opinion of the Citizens' Crime Commission, an effective modification of the Mallory rule, and it feels that such modification is contained in H.R. 7525; but that it would not be the result of passage of HR. 5726. Under HR. 5726 matters would only grow worse, and it is not felt that such hedging is required to stay within the limitations of the U.S. Constitution. I appreciate this opportunity to forward these comments for the Citizens Crime Commission. Respectfully yours, ROBERT B. MCLAUGHLIN, President, Citizens' Crime Commission of Metropolitan Washington. NOVEMBER 14, 1963. Prof. ARTHUR SUTHERLAND, &ehooi of Law, Harvard University, Cambridge, Mass. DEAR PRoFEssoR SUTHERLAND: This committee has before it for consideration legislation passed on August 12, 1963, by the House of Representatives which, under title I thereof, would substantially abrogate the MeNabb-Mailory rule in the District of Columbia. (Copy of this bill enclosed herewith and your atten- tion is directed to title I, starting on p. 1.) This committee has been advised that you are presently serving in a capacity as the reporter for a study by the American Law Institute of the rule in the Mallory case and related problems as they concern prearraignment procedures in criminal cases and the entire area dealing with an arrested person before he sees a magistrate. Because this is a complex question and since any action by `the Congress on such legislation even though this particular legislation concerns itself only `with the District of Columbia but, nevertheless, might have a far-reaching effect, could you advise this committee of the scope `of your assignment and the pos- sible date of its conclusion? This question has already been raised `and will probably be raised again as the committee continues its examination into this subject matter. This committee has held a series of hearings during the past 2 months on this and other criminal subjects contained in the enclosed bill. Any information you can provide to the committee, as requested, would be deeply appreciated. Cordially, ALAN BTBLE. LAW SCHOOL OF HAnVARD UNIVERSITY, Cambridge, Mass., November 19, 1963. Hon. ALAN BIBLE, Chairman, Committee on tke District of Columbia, U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: This letter is written to answer yours of November 14 1963, in which you ask about the scope and the expected time of conclusion of the American Law Institute's prearraignment study. The scope of this matter is quite wide. We have undertaken to study as comprehensively as possible the legal situation arising when some person is first suspected of crime until the time when he is first produced before a judicial officer. We are still in the early stages of this matter. This covers a number of areas as you will see, including at least surveillance by various means, me- chanical and otherwise; search and seizure; detention and arrest; interroga- PAGENO="0576" 570 AMENDMENTS TO CRIMINAL STATUTES OF D.C. tion and the various events characteristic of it; right to counsel at all these stages; and the first appearance before a judicial officer. The end product of this, beside a published study, will, we hope, be a model statute which may achieve enactment in a large number of States. The work has been paid for by a Ford Foundation grant which contemplates ~ 5-year period for completion. I hope that we may finish a little sooner than that, though there is a good deal to be done. Perhaps this rather general information will still give to you and to your committee an idea of what we are about. I shall await with great interest the result of the important deliberations of your committee. If you publish any reports or other documents, I shall be most grateful to you for sending me a copy. With every good wish, I am, Sincerely yours, ARTHUR E. SUTHERLAND. STATEMENT OF AMERICAN UNIvERSITY P2u~K CITIZENS' AssocIATIoN, WASHINGTON, D.C. Mr. Chairman and members, Senate District Committee, I am Mrs. Robert l3urns, president, American University Park Citizens' Association, representing an area west of Rock Creek Park covering about 1,400 families. This statement was to have been delivered in person but illness prevented, thus a resort to this second best method of sentiment expression on this serious problem. At a time when crime has increased in the District of Columbia for the 17th consecutive month and the month just ended had an all-time high, we of the American University Park Citizens' Association, protest further softness in the handling of criminals. How can officials glibly boast that the crime rate in the District of Columbia compares favorably with other cities of comparable size? In 1902 the Dis- trict* ranked 1st in aggravated assault; 2d in robbery; 4th in murder and nonnegligent manslaughter; 5th in housebreaking; 10th in forcible rape; 10th in auto theft; and 11th in larceny. We are called upon to set a pattern for the Nation, in other areas, so why not set the groundwork and uphold our police force, that they may be aided in giving us a city with the lowest crime rate in the Nation? As long as we hamstring our Metropolitan Police in the apprehension of sus- pects, continue making Washington attractive for criminals, the press continues to whip the public into a state of emotional sympathy for the criminal and criminals are continually freed on a psychiatric basis, we cannot expect crime to decrease. There is a printed pamphlet which says, "Crime Strikes-Anyone--Any- time-Anyplace." There is a phrase there that is not altogether true; if crime had struck close to any high official or even one just riding the "molly-coddling" bandwagon, drastic changes would already be history. Mr. Chairman, do you realize the one-sideness of a Nation's Capital that isn't safe to walk the dog at night, isn't safe for night meetings, isn't safe to sleep in one's own bedroom? Many, many of the loyal interested members of my own citizens' association tell me they cannot come to night meetings. They simply are afraid. It's not just a psychological hysteria either; they have seen crime, yes and been victims of crime, right here in American University Park. We of this association agree with the judge of the U.S. Court of Appeals of the District of Columbia, when he said: "In our concern for criminals we should not forget that nice people have some rights too." Therefore we urge that you pass titles 1, 2, 3, 4, and 5 of the omnibus crime bill. H.R. 7525. However, there is a crime area not mentioned in this bill, that has increased along with adult crime since 1957. Juvenlie crime is worse with each crime report. Many juveniles are seasoned criminals long before adulthood. Adults have set the pattern; crime-bent youth learn fast and follow with no fear of punishment. Will you please enact legislation to allow a tougher policy in the handling of adult criminals? The juvenile will be quick to learn here also and the number of future hardened criminals wifi be naturally reduced. Thank you for your attention. PAGENO="0577" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 571 WEST END CITIZENS ASSOCIATION, Washington, D.C., October 21,1963. Hon. As~N BIBLE, Chairman, District of Columbia Committee, U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: The West End Citizens Association, at its regular meet- ing on October 16, by unanimous vote, passed a resolution to endorse H.R. 7525, the omnibus crime bill, and to urge its early enactment. We will appreciate your efforts toward enactment of this legislation. Sincerely yours, PATRICIA M. KEEGAN, Secretary. CAPITOL HILL SOUTHEAST CITIZENS ASSOCIATION, INC., Washington, D.C., October15, 1963. Senator ALAN BIBLE, Chairman, Senate Committee on Crime, U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: The Capitol Hill Southeast Citizens Association definitely supports the strongest crime bill as brought over from the House District Com- mittee and House of Representatives as possible. Your wise judgment may suggest better means by which law and order can be restored in the U.S. Capital, but the House of Representatives tried very hard to give the police of Washington support, in order that crime may be decreased. Many discussions over the matter have taken place since the stadium riot oc- curred last fall. Crime can be controlled in Washington, D.C. Please do the best you can to make it safe for people to walk the streets of this city or work in their own gardens or be safe from attacks in shops and banks. So long as an. easy policy is provided for the criminal to operate in, just so long will danger lurk everywhere in the Nation's Capital. Thank you for your efforts. Please place this letter in the record. Sincerely yours, ELIZABETH DRAPER, Secretary. WASHINGTON, D.C., November 7, 1963. Re H.R. 7525, title I. Senator ALAN BIBLE, Chairman, Senate District Committee, Senate Office Building, Washington, D.C.: When conditions force citizens to hold meetings in their homes for the purpose of discussing ways and means to secure protection against criminals and pro- tection of their homes from housebreakers, it indicates a situation which merits, and usually secures, attention and help from our lawmakers. Is this taking place in a Washington slum area? No; instead, it is in the Spring Valley neighborhood, where the precinct 8 police station has approximately 37 unsolved bousebreakings reported in only 1 month, October 1963. The total for 1963, up to November 1, is 186. The police are working on this long list of cases, but the criminals responsible are still at large. We, District propertyowners, are worried and alarmed. The women of the neighborhood are especially stirred by the continuing danger. The police, in their efforts to protect persons and property from criminals, need all the assistance possible. They confirm the fact that the Mallory rule is a handi- cap. The Senate District Committee, by recommending modifications of the Mallory rule, in a manner satisfactory to the police department, will remove this im- portant stumbling block lying in the way of the conviction of the criminals who are daily adding to Washington's mounting crime rate. Several of our neighbors are U.S. Senators who can personally advise that they realize the danger that threatens their homes. Who knows where the housebreaker will strike next? ALBERT F. MURRAY. 25-260-64-Pt. 1-37 PAGENO="0578" 572 AMENDMENTS TO CRIMINAL STATUTES OF D.C. GOVERNMENT OF THE DISTRICT OF COLUMBIA, METROPOLITAN POLICE DEPARTMENT, November 18, 1963. Mr. CHESTER H. SMITH, Staff Director, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR Ma. SMITH: During my testimony before the committee on November 5, 1963, there were several items which I promised to furnish the committee. In a separate letter to the chairman, which I trust will be inserted in the record, I have replied to the charges made by Mr. Shadoan, and have also amplified my views on the suggestions of Mr. Katzenbach and have suggested an alternative to section 301 of H.R. 7525. In my statement, I promised to furnish the committee staff with copies of letters from other police chiefs outlining arrest procedures in various cities throughout the Nation. Copies of those letters are forwarded herewith. At one point during my testimony, there was a discussion of statistical changes in population of the District metropolitan area from 1950 through 1960. Some confusion developed during this discussion because of a misprint in the table from which we were reading. I am forwarding herewith a table giving com- plete, correct data. In response to a question by the chairman, I promised to furnish the commit- tee for the record a statement on the training program of this department. I am forwarding herewith a copy of my letter to you earlier this year which outlined in rather complete detail our various training programs and procedures. Also during my testimony, the chairman asked us to provide for the record the number of detectives in our force in 1957. There were during that year 330 detectives in comparisOn with the 370 we now have. Again, I want to thank you and the staff for the cooperation we have received in presenting to the committee our problems and needs for corrective legislation to assist law enforcement in the District of Columbia. Sincerely yours, ROBERT V. MURRAY, Chief of Police. Comparison of popviation, District of Columbia standard metropolitan area By civil divisions 1910 1960 Increase or decrease Percent increase or decrease District of Columbia Maryland: Montgomery County Prince Georges County Virginia: Alexandria City Falls Church City Arlington County Fairfax County Total, metropolitan area 802, 178 164,401 194, 182 61, 787 7,535 135, 449 98.557 763, 956 340. 928 357, 395 91,023 10,102 163.401 262,482 38.222 176, 527 163, 213 29. 236 2,657 27. 952 163, 925 -4. 8 107. 4 84. 1 47. 3 35,3 20. 6 166.3 1. 464.089 1, 989.377 525,288 35. 9 GOVERNMENT OF THE DISTRICT OF COLUMBIA. METROPOLITAN POLICE DEPARTMENT. illarcli 28, 1963. Mr. CuEs~ H. S~nT~, Staff Director, Committee on the District of Columbia, U.S. Senate, Washington, D.C. DEAR MR. SmTH: In response to your letter of March 25, 1963. I am furnishing the following information for Senator Hartke relating to the training programs of this Department. BASIC TRAINING The basic training and indoctrination processes of this Department are divided into two sections; namely, the primary indoctrination course and the advanced recruit training course. PAGENO="0579" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 573 I. PRIMARY INDOCTRINATION COURSE The primary indoctrination course, requiring approximately 2 weeks, provides 80 hours of indoctrination processes and instructions for the newly appointed recruit police officer. This is the minimum training requirement of this De- partment; no police officer is assigned to street duty until he has fully com- pleted and qualified in all aspects of this course. This minimum training and indoctrination process includes the following curriculum: A. Orientation 1. Administration of oath of office. 2. Welcome address by executive officer of the Department. S 3. Issuance of badges and equipment. 4. Recording of personal history data of the recruit. 5. Issuing of books, maps, and other study material. C. General instructions for new recruits. 7. Reading, discussing, and explaining of departmental orders -especially important to new recruits (including the code of ethics and the use and safety of the service revolver both on and off duty). Emphasis is placed on depart- mental orders and policies regarding courtesy on the part of police officers at all times and on use of service revolvers by members of this Department. I am attaching copies of those orders with this letter (General Order No. 3, series 1959, and Memorandum Order No. 28, series 1954). 8. Daily roilcall and inspections including the reading of teletype messages and dispatches. 9. Explanation of the various societies, associations, and organizations within the Department and explanation of the Government life and hospitalization insurance programs and the need for personal liability insurance for automobile owners. 10. A tour is conducted of the various units of Police Headquarters to famil- iarize the new recruit with departmental operations and procedures. 11. Issuance of uniforms and measurements of recruits for new clothing. 12. Instructions concerning departniental policies regarding outside employ- ment of police officers. 13. Securing of District of Columbia operators permits for new recruits. 14. Potographing of new recruits for Police Department records. 15. Physical training and explanation of fundamentals of self-defense. 16. Assignment of homework to be completed and returned while detailed to precinct duty. 17. Lectures on official conduct of police officers both on and off duty. 18. Procedures for operating departmental radios and switchboards. B. Classroom aiut range instruction The major portion of the classroom work during the primary indoctrinatioii course is devoted to the following subjects: 1. Instruction on care and `use of service revolvers-A 2-hour lecture and demonstration is given on the day that revolvers are issued to recruits before the students are permitted to leave the headquarters building with the revolvers. About 10 hours are spent on the pistol range in actual firing and instruction on the use and care of the service revolver in order to meet the prescribed qualification. If a satisfactory score is not obtained, the trainee is required to return and qualify on his own time and at his own expense. The number of hours necessary for qualification will vary according to the number of trainees involved. Additional instruction is also given by the instructors in the training classes on the policies of the Department relating to I)erlnissible use of service revolver. Every police recruit is required to qualify with the service revolver during the primary indoctrination course. For the calendar years 1961 and 1962 there were 45 experts (scoring 270 to 300 on the range), -235 sharp-shooters (scoring 240 to 269 on the range), and 434 marksmen (scoring 195 to 239 on the range) among newly appointed recruits. 2. The police manual-Approximately 8 hours of classroom time are spent on instructions and discussions of the police manual with particular attention to those chapters specifically relating to new police officers and their duties and responsibilities. - 3. Courtroom procedu-res.-The trainees are taken as a group to the court of general sessions of the District of Columbia so they may observe and familiarize themselves with the procedures of the criminal court Subsequently about 1 houi PAGENO="0580" 574 AMENDMENTS TO CRTh{INAL STATUTES OF D.C. is spent in the classroom discussing observations made during the trip to the court, and other instructions are given during classroom work concerning the jurisdiction and procedures of the various courts. 4. Arrest procedures.-An explanation is given of the authorities, duties, responsibilities, and limitations placed upon police officers in the process of making arrests. An explanation is given of the distinction between misdemeanors and felonies. Thorough instruction is given to the officer regarding his conduct and attitude in taking persons into custody, including the need for careful evalua- tion by the police officer of the situation for his own self-protection while at the same time recognizing the rights of the citizen being arrested. In connection with the law of arrest, an explanation is also given of the rules of evidence and rules of fresh pursuit pertaining to this jurisdiction. 5. Recording instructions.-Thorough instruction is given to the recruit regard- ing proper method of recording lookouts, complaints, and other notices given at roilcalls. 6. Traffic instruction.-About 4 hours of classroom instruction are devoted to instruction of the police recruits on traffic enforcement and on the need for courtesy in dealing with the public, and about 2 hours of classroom time are taken in instruction pertaining to the procedures relating to issuance of traffic violation notices. Instructions are also given on the methods of directing traffic and on procedures for investigating and reporting on traffic accidents. 7. City geography-Instructions are given on the physical geography of the city and the proper method of giving directions to citizens. Maps and city guides sire issued to all recruit police officers during the primary indoctrination course. 8. Report writing.-Instructiou is given stressing the importance of making complete, precise, and accurate reports, and an explanation is given of the various report forms used by this Department. 9. First aid.-Instruction is given in emergency first aid including treatment for stoppage of breathing, for bleeding, and for poisons, and instructions are given in methods for using mouth-to-mouth resuscitation. 10. Precinct assignments and discussion.-The Director of the Police Academy and Training Section gives assignments to precincts and final instructions. Re- cruit police officers are directed to report to the various precincts and to receive further instructions from their precinct commanders. The trainees are given further study assignments in the form of homework which must be completed while detailed to the precincts. Outlines are furnished that will require the trainee to thoroughly study the subject matter, and completed homework assign- ments are required to be turned in to the Police Academy and Training Section at regular intervals to insure that the training is continued. In addition to the homework assignments prescribed by the Police Academy and Training SectiOn, the precinct commanders, acting under instructions from this office, have established in-service classes for members of the force assigned to their units, designed especially to fill the needs of new men. These classes cover in detail the various regulations and orders applicable to police work and are supported by training films to the extent available. II. ADVANCED RECRUIT ThAINING counsn Following the primary indoctrination course, the new police officer is detailed to one of the precincts for on-the-job training purposes. He is assigned initially with an experienced police officer until, in the judgment of the precinct com- niander, he is competent to work alone in regular patrol or other police duty. As pointed out above, during this period of on-the-job precinct training, the new police officer is required to continue his study of various training material pro- vided him and is required to submit completed homework assignments to the Police Academy and Training Section for review. This Department has found that the assignment of new police officers to the precinct for on-the-job training following the primary indoctrination course and before completion of the advanced recruit training course serves to better fix in the mind of the new police officer the problems involved in police work and makes him more aware of the need for and more interested in the subsequent classroom training. The advanced recruit training course consists of an elaboration on the subjects presented during the primary indoctrination course. For example, classroom instruction is given in detail on the various regulations applicable to police work and on the background and principles underlying those regulations; more letailed first aid instruction is given, including advanced subjects, such an emer- PAGENO="0581" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 575 gency delivery of babies; a 10-hour course in radiological monitoring; the trainees are taken to visit the District of Columbia General Hospital, the morgue, and St. Elizabeths Hospital, where the procedures for committing a person for confinement and examination are explained; 1 week of the advanced training course is devoted to police-community relations; additional subjects, such as public speaking, are presented; lecturers from the Federal Bureau of Inves- tigation, the office of the U.S. attorney, the AlcohOlic Beverage Control Board, and similar other Government agencies discuss their work with the trainees; and detailed instruction is given on the Constitution of the United States with par- ticular emphasis on the Bill of Rights. I am forwarding herewith a copy of the weekly schedule of classes 160 and 161 which outline the curriculum of the complete advanced recruit training course. You will notice that the curriculum for those classes consisted of only 12 weeks; the proposed police-community relations program, which will require 1 additional week, is attached to that list and will be presented to all future advanced recruit training classes. It will be of interest to you to note that, during the 13-week advanced recruit training program, on several occasions the entire class is detailed back to the precincts for duty in connection with special events and emergencies. When the time required for such details prevents completion of the full schedule, addi- tional weeks are added to the course in order that the full schedule will be com- pleted by every police officer. Ideally, every newly appointed police officer should complete the advanced recruit training course within 6 months from the date of his appointment. Such a schedule would then give him an additional 6 months of street duty before completion of his probationary year. However, because of an acute lack of classroom space and also because of the prevailing high crime rates which require the assignment of as many men as possible to patrol duty, we have been unable to meet that ideal with respect to every police officer appointed to the Department. As of this date, we have a total of 276 police officers who have not yet completed the advanced recruit training course. ADvANCED IN5ERVICE TRAINING CouRsEs During my tenure as Chief of Police, I have placed as much emphasis as pos- sible on advanced training and have alloted to training schedules as much effort as available space and other needs of the police service have permitted. The following are some of our more significant accomplishments in providing ad- vanced training: 1. Every possible source of professional training for police personnel has been. used. The Department regularly bends officials to the FBI Academy, to the Northwestern University Traffic School, and to other training courses which become available. 2. Positive efforts have been taken to stimulate interest of Department per- sonnel in university-level training. In 1956, Police Department representatives met with officials of the American University and the University of Maryland and established police certificate programs including police-oriented university- level training. These programs continued on a voluntary, individually financed basis for several years. Last month, when it became apparent that some addi- tional stimulus was needed to revive interest in these programs, I directed that arrangements be made for the Department to finance a major part of the tuition costs of these programs. One hundred and seventeen men are now attending classes under that program. 3. In cooperation with the office of the U.S. attorney, this Department arranged for a series of training lectures by the U.S. attorney's staff on the ramifications of the Mallory ruling and its practical applications to police work. Because of the success of that program, arrangements were later made for similar lectures on the rules relating to search and seizure of evidence. To insure that the force was kept abreast of current rulings on Mallory, a second series of lectures on this subject was presented within the last year. 4. Special courses have been eaiablished within the Department to give in- service training to police personnel on proper methods of handling juveniles and a pamphlet on this subject has been issued to each member of the force. 5. To improve the efficiency of police handling of all aspects of traffic, a special in-service traffic training course was established and, in addition to that course, special instructions were issued to precinct personnel outlining proper methods for direction and control of traffic. PAGENO="0582" ~576 AMENDMENTS TO CRIMINAL STATUTES OF D.C. 6. Special arrangements were made with the Federal Bureau of Investigation for that organization to conduct a command-level training course for all senior officials of the Department arid a supervisors training course for sergeants and corporals of the force. Those courses were given in April and July 1962. 7. A special pamphlet was issued to the Department as "A Guide to Under- standing Race and Human Relations" and the course of training for police recruits was expanded to stress human relations. In addition, a special course in human relations is being planned for presentation to all personnel of the force. 8. To improve the general efficiency of the organization, a middle management acquaintanceship training program has been planned and will be instituted within the next few weeks for senior officials. - 9. A special course of training in techniques of crime detection was devised and presented to all detective personnel of the force. This course will be re- peated in the near future for presentation to newly assigned detective personnel. This Department fully recognizes that even more advanced in-service training courses are needed. Specifically, we would like to expand our training for supervisory and command personnel. we would like to be able to conduct courses in driver improvement, and we need expanded in-service courses for personnel in administrative, clerical, and technical assignments. Especially needed is a reactivation of the Washington Police Academy. Two factors have held back our advanced training programs. These are: (1) The acute lack of space for conducting training programs and (2) the signifi- cant increases in authorized police personnel during recent years have imposed a heavy load of recruit training on our training facilities and, with a backlog of men who have not yet completed advanced recruit training, it has been deemed unwise to divert existing training facilities for advanced in-service training. NUMBER OF POLICE OFFICERS TRAINED In specific response to your question pertaining to the number of Metropolitan Police officers who receive training in compliance with the prescribed minimum standards, you are advised, as I pointed out earlier in this report, that no newly appointed officer is permitted to perform patrol duty on the street until he has successfully completed all phases of the primary indoctrination course. Also, as I have pointed out heretofore, all but 276 of the police officers of this Department have also completed the advanced recruit training course. Although this train- ing is above the minimum standards, I deem it important for every officer and member of the force to complete the advanced recruit training course as soon after his appointment as the needs of police service will permit. My plan in this area was and is to assign a class of 100 men to the advanced recruit training course when daylight saving time goes into effect in the District of Columbia at the end of April 1963. Past experience has demonstrated that with the addi- tional hours of daylight during the evening under daylight saving time, there usually is a reduction in the number of street crimes and, consequently, more men can be spared at that time from preventive patrol. TRAINING OF PVT. ELMER L. HUNTER Pvt. Elmer L. Hunter was appointed to the Department on April 2, 1962, and was immediately processed through the 2-week primary indoctrination course. As I have pointed out earlier in this report, that course includes complete training on methods of making arrests and on the use of firearms. After completion of the primary indoctrination course, Private Hunter was detailed to the pawn office of the Detective Division in an undercover capacity for a special assignment lasting 2 weeks. At the conclusion of that detail, Private Hunter was detailed to the 11th precinct for on-the-job training. Upon reporting for duty at the 11th precinct, the commanding officer of the precinct gave Private Hunter instruction in the proper use of his service revolver and baton, in courtesy in dealing with the public, and general instructions re- garding methods of protecting himself while making arrests. Private Hunter was then assigned to plainclothes duty in the suppressiOn of vice offenses, and received detailed instructions in this phase of police work by officials of the precinct. Toward the end of June 1962, Private Hunter was relieved of his assignment to vice suppression and was assigned to various duties in the 11th precinct such as foot patrol duty, patrol wagon duty, and station house duty, all with experienced police officers who further instructed him in police procedures. PAGENO="0583" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 577 Beginning about the middle of September 1062, Private Hunter was permitted to work on foot patrol without being accompanied by an experienced officer. In addition to the specific training outlined above, the 11th precinct gives regular instructions to police officers on various aspects of police duty during the regular police rollcalls. It may be pertinent to point out that Private Hunter, like 72 percent of the police officers of this Department, was an ex-serviceman. He had 4 years' serv- ice in the U.S. Navy, during which he undoubtedly received some training in self-defense and was exposed to various disciplines which are often helpful in preparing a man for police work in a quasi-military organization. With respect to this question of yours, I want to reemphasize, as I have already pointed out, to others, that there is no indication that lack of training had anything to do with the unfortunate death of Private Hunter. Certainly it is possible that a more seasoned police officer faced with a similar situation might have (but, too, he might not have) recognized the danger and disarmed the person arrested. CoNcLusIoN Notwithstanding the fact that there is no indication that lack of training resulted in the death of Private Hunter, I am concerned with the overall need for expeditious completion of the advanced recruit training course by all per- sonnel of this Department and for considerably increased emphasis on all aspects of advanced in-service training for officers and members of the force. Because of our need for much more space for training facilities, and because of our current need for as many men as are available for patrol duty, I antici- pate that it may take as long as 10 years to bring the total training program of this Department up to what I would consider an ideal level. Along these lines, I have been seeking over the past 2 years to obtain additional space for our training facilities, and have recommended to the Board of Commissioners inclusion of new training facilities in the current public works program of the District. Notwithstanding the fact that I fully recognize the need for even more em- phasis on training within this Department, I am able to report to you with some pride that in May 1958 the Judicial Conference of the District of Columbia Circuit adopted a resolution commending me for my actions up to that time in emphasizing initial training courses and in instituting in-service training courses within this Department. I am also proud to be able to state that, notwithstand- ing our own recognized additional training needs, this Department is often called upon to assist other police departments in setting up their own training pro- grams and that the police personnel from the Armed Forces police department and from police departments of surrounding jurisdictions often attend our re- cruit and our advanced training courses. The U.S. Park Police sends selected park police personnel to our recruit training courses on a regular basis. In addition to the foregoing statements, I am forwarding for your informa- tion copies of the training pamphlets and materials furnished to every member of this Department for their personal study. (You undoubtedly have copies of the police and traffic regulations of the District; therefore, although copies of those publications are furnished every member of the force, I have not included them in the accompanying material.) I hope that you will convey to Senator Hartke my appreciation for his interest and the interest of his subcommittee in the training problems now facing this Department. I will appreciate whatever help the Senate Committee on the Dis- trict of Columbia can provide to assist me in attaining an ideal advanced training program as expeditiously as possible. Sincerely yours, ROBERT V. MURRAY, Chief of Police. GOVERNMENT OF THE DISTRICT OF COLUMBIA, METROPOLITAN POLICE DEPARTMENT, November 18, 1963. Hon. ALAN BInLE, Chairman, Committee on the District of Columbia, UJI. senate, Washington, D.C. DEAR Mu. CHAIRMAN: My purpose in writing this letter, which I hope you will include in the record of testimony regarding H.R. 7525, is threefold. PAGENO="0584" 578 AMENDMENTS TO CRIMINAL STATUTES OF D.C. First, 1 want to respond to your letter of November 8, 1963, pertaining to the four safeguards recommended by Deputy Attorney General Katzenbach as essential for incorporation in title I of the bill. Second, I want to respond to your request at the hearings for my comments on testimony given by some preceding witnesses on title I and title Ill of H.R. 7525. Third, recognizing that the preponderance of testimony before your committee has been opposed to section 301 of H.R. 7525, on the grounds that its provisions would be unconstitutional, I want to propose for your consideration some alterna- tive language which has come to my attention and which may meet the con- stitutional objections to section 301 as presently written. I. THE FOUR PROPOSED SAFEGUARDS Deputy Attorney General Katzenbach, in his testimony to the committee, recommended that any corrective legislation pertaining to the Mallory rule in- corporate four safeguards of rights of defendants. He briefly outlined these four safeguards in his written and oral statement to the committee, but modified these outlines by his statement that "the [same] safeguards are contained in * * * H.R. 5726." When I later testified, in response to specific questions from the chairman, I gave my comments on the four safeguards as condensed by Mr. Katzenbach. I have since had opportunity to compare those suggested safeguards with H.R. 5726. After making this comparison, I believe it would be well for me to amplify and, to a limited extent, modify my comments on these proposed safeguards. (1) A plain warning to the defendant, immediately in advance of the ques- tioning, that he is not required to make any statement at any time and that any statement made by him may be used against him: I find the requirement that a plain warning be given to the defendant in advance of the questioning to be reasonable. However, I would be apprehensive over the possible interpretations of the wording "immediately prior" in view of the severe time restrictions which have flowed from interpretations of the Mallory doctrine. If, for instance, a defendant is so warned at the time of his arrest, possibly at the scene of a crime, and then some time later, after being transported to. headquarters for routine fingerprinting and photographing, he makes admis- sions regarding the offense, it would seem that if an appreciable amount of time had passed, his confession might be invalidated unless another warning was given "immediately" prior to this confession. I would, therefore, oppose in- clusion of the word "immediately" and favor language providing for the warning simply prior to or in advance of the questioning. (2) The arrested person's being afforded a reasonable opportunity to notify a relative or friend and consult with counsel of his choosing: I testified before your committee regarding my objection to the notification of a friend, as provided by this section, because of the possibility that the ar- rested person might use this opportunity to warn a confederate or accomplice to escape or to dispose of evidence or the proceeds of crime. Even though I did not, in my oral testimony, object to the notification of a relative, I should call to your attention the fact that this same danger exists in permitting notification of a relative. In a great many cases, relatives have been found to be accomplices or accessories to the crime. Incidentally, our police manual already requires that such a notification be made unless "it will defeat the ends of justice." It would seem to me that a "reasonable" opportunity for notification should be limited to avoid the possibility that a defendant might thereby obtain an opportunity to initiate a message to a confederate or accomplice which would serve to defeat the ends of justice. In comparing Mr. Katzenbach's language with the wording of the safeguard proposed under HR. 5726, I find an additional basis for objection. H.R. 5726 includes not only a requirement that the arrested person be afforded a reasonable opportunity to notify a relative and to con~ult with counsel of his choosing, but also includes a requirement that the arrested person be advised of this opportunity by the police officers having custody of him. As I have testified to your committee, the current policy and practice of this Department is to permit an arrested person to communicate with an attorney upon his request, and I would not oppose writing this policy and practice into the law. On the other hand, I believe that the additional requirement that the PAGENO="0585" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 579 police specifically advise an arrested person of this opportunity must certainly incur a new handicap on police investigations. I believe that the testimony of witnesses before your committee has been unanimous that any attorney will immediately advise his client to make no statement whatever to the police, and to require the police to actively solicit this probability would operate to effectively preclude any in-custody questioning of a defendant. (3) A maximum of 6 hours elapsed time between arrest and completion of the confession: As I informed your committee, I believe that imposition of a specific time period, especially one as short as 6 hours, for obtaining an admissible confession would be harmful to police investigations in some cases. I know that there are those persons who argue that criminals, by and large, are not sophisticated and knowledgeable in matters of law and their basic rights and that they con- sequently fail to take advantage of legal limitations imposed on the police. I cannot agree with this position. Even though it may be demonstrated that some criminals are either simple, uneducated thugs, or are previously law- abiding citizens, naive in law enforcement procedures which never before applied directly to them, there remains a considerable proportion of the criminals who do have a rudimentary knowledge of these limitations obtained through their contacts with other criminal elements and, in fact, through their own experiences with the police and during confinements for previous offenses. During my own testimony before the committee, I explained bow one of our criminal repeaters had learned of the need to avoid leaving fingerprints at the scenes of his crimes. I am certain that the habitual criminal would quickly learn of any time limita- tion on police interrogations and would take advantage of it. (4) A responsible witness, other than a law enforcement officer, observing the questioning, or a verbatim transcript or recording of the interrogation: I testified that I would not have any serious objection to this fourth safeguard as presented by Mr. Katzenbach. However, when I compare this proposal by him with the full language of the proposal in HR. 5726, I am reminded of sev- eral very important points on which I should comment. It is worth mentioning the problem, which was brought out in your hearing, of obtaining a responsible witness other than a law en.forcement officer for observing the questioning of arrested persons at late and unusual hours of the night. This problem would arise even during daytime questionings if this pro- vision were required in all cases handled by this Department. One of the prob- lems of law enforcement today is the reluctance of witnesses, even complaining witnesses, to become involved in the criminal processes and the resulting re- peated appearances at hearings and trials, which impose on the time and even the livelihood of the innocent witness. I feel that we would encounter similar problems in seeking responsible persons to witness confessions and to thereby involve themselves in prolonged criminal processes. As I stated to the committee on this point, our current practice is to try to arrange for reenactment of a crime before a disinterested party such as an apartment house manager or an apartment janitor and we try, when possible, to have the accused repeat a confession before the complaining witness. How- ever, we have not heretofore made a concerted effort to have the entire ques- tioning of the subject witnessed by a disinterested person. One problem which would arise under a "responsible person" requirement is the need for insuring, before the questioning begins, that the witness selected will fully withstand a definition and test of his "responsibility" by a defense attorney later attacking the validity of the confession. However, it is likely that we can avoid these foregoing problems by resorting to the alternative transcribing or recording of questioning. These factors are mentioned here, therefore, for information of the committee and to demonstrate the real need for the alternative procedures. Having compared the fourth safeguard as briefly worded by Mr. Katzenbach with the more detailed wording of H.R. 5726, I believe it worthwhile to recom- mend that any provision of this sort be written along the lines of the latter to specifically allow recording by a wire, tape, or other sound recording, or a questioning conducted subject to other comparable means of verification. As you can well imagine, verbatim transcription of the questioning of all persons arrested could become quite expensive and, with present shortages of shorthand personnel, would very likely be difficult to obtain for hurried proceed- ings at late and unusual hours of the night. By comparison, electronic recording is inexpensive (after the purchase of original equipment) and can be made available at all hours without unreasonable problem. PAGENO="0586" 580 mMJi~rs TO CRIMINAL STATUTES OF D.C. Another major recommendation which I make regarding this fourth proposed safeguard is that any such provision include the words "whenever reasonably possible" as contained in H.R. 5726. Although we can certainly provide record- ing equipment for most questionings within headquarters and precinct offices, it must be foreseen that there will be some instances where questioning of sus- pects and their confessions will take place at times and locations where neither "responsible" third parties nor recording equipment are available. The inclusion of the "whenever reasonably possible" phrase should guard against loss of such confessions because of the exigencies of the moment and through no fault of the police. II. TESTIMONy OF OTHER WITNESSES At the hearings, you asked for my comments on testimony given by some preceding witnesses on title I and title III of H.R. 7525. I have had an Op- portunity to review the testimony of the various witnesses and am happy to furnish the following explanations and comments. On examination of the testimony of various witnesses who opposed these titles of the bill, I found a number of concepts and viewpoints with which I disagree. As my disagreement in those general areas will be readily evident from my own statement and testimony to the committee, I will not attempt in this writing to debate the major issues involved in this proposed legislation. However, there are a number of statements, offered by some witnesses, which are not a true representation of facts. To insure that the committee has a clear picture on which to base its judgments, I do want to offer some more accurate information regarding these statements. First, Mr. George W. Shadoan disputes our argument that we need time to detain and interrogate a suspect in order that we will be able to check out his story in cases of shaky identification, to verify his alibi, and to thus avoid placing a criminal charge against an innocent person. He argues that the common police approach is to secure enough evidence to meet the requirement of probable cause before a committing magistrate, to meet the evidentiary requirements of the prosecuting attorney, and to then stop the investigation. He characterizes this as the "clearance concept." In Support of his argument, he offers two criminal cases: namely, United States v. Joseph Taylor, and United States v. William Kemp. I think it may be illuminating to the committee to place in the record some facts of record which Mr. Shadoan did not relate. First, for example, in the case against Joseph Taylor, it was admitted that the complaining witness had been severely cut about the face with a broken bottle. In this connection, it is noteworthy that as a result of the injury the complaining witness was admitted to the hospital in an undetermined condition. We are not able to determine whether or not it is true that the defendant, at the time of his arrest, claimed that he had acted in self-defense against a drunken and unprovoked attack. Whether or not the defendant told the officer that he acted in self-defense, or whether he did in fact act in self-defense, the circumstances of such a case then and now would require that the defendant be taken into custody. There was no question then and there is none now that the defendant did actually severely injure the complaining witness with a broken bottle. It is not always possible to examine every possible extenuating circumstance in a case where the person arrested has clearly committed a criminal offense. On the other hand, had the identification of the accused been less than positive in this case, and had the accused claimed that he had not actually injured the complaining Witness, the policy of this department would have required the officer to examine the case further to insure that the real offender was being arrested. Incidentally, although the arrest records of the complaining witness and the defendant in this case obviously have no real bearing on the matter under exami- nation, those records were related in part in the original testimony to the com- mittee; I think the full record may be of even greater interest to the committee. Mr. Shadoan testified, "[The complaining witness] had been convicted of public drunkenness 17 times since 1945, disorderly conduct 4 times in that period, and had been charged with simple assault and assault with a deadly weapon him- self, both of which had been dropped for want of prosecution * * * the accused 1 think had had a charge himself of simple assault at South Carolina at some time." Interestingly enough, our records, show that the accused, prior to the offense in question, had been charged 15 times with drunkenness, 12 times with disorderly conduct, once with pandering, 3 times with miscellaneous misde- PAGENO="0587" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 581 meanors, 3 times with assault with a dangerous weapon (with 1 conviction), and had been convicted once for carrying a dangerous weapon. Subsequent to the offense referred to, he has been charged 13 times with drunkenness, twice with disorderly conduct, once with assault, once with vagrancy, and has been con- victed once for assault with a dangerous weapon. And to place this preceding case in its proper perspective for the committee, it may be worth mentioning that just 3 days prior to the offense mentioned by Mr. Shadoan, the defendant had himself reported that he was cut on the nose with a sharp instrument held in the bands of a man known to him as "Dynamite," but had subsequently refused to cooperate with the police in ascertaining the real identity of that reported assailant when our investigation produced what we thought was the probable offender. It is typical in assault cases for a com- plainant, in heat of anger, to identify his assailant and then later, when his temper has cooled, to refuse to cooperate in the criminal prosecution. A second case referred to by Mr. Shadoan is that of United States v. Williatm Kemp. In this case, Mr. Shadoan testified that the defendant had witnesses at home who could testify that he had been picked up by his codefendant at his home only a few minutes before his arrest. But his testimony, and that of the codefendant, was that he had left his home at about midnight, whereas the testi- mony and records of the department indicate that the arrest was made some 2 hours later at about 2:15 a.m. Mr. Shadoan suggests that, to be consistent with our statements, we should have checked his alibis at the time of arrest. Again, we have a situation where the defendant is immediately connected with the proceeds of the crime, and not a case where his guilt or innocence rests on a shaky identification by a witness. And again, not all of the facts in the case were related to the committee. Mr. Shadoan testified that "the defendant's evidence did come forward," in such fashion as to appear to imply that the trial produced alibi witnesses who cleared the defendant of guilt. On the contrary, the jury did in fact find him guilty of the offenses charged. However, the U.S. court of appeals did set aside the verdict and judgment because in its view there was insufficient evidence on which to reach a clear conclusion of guilt. Reference was also made to the case of United States v. Ernest Dubose, in which it is alleged that the officer testified that the complainant picked a picture of the accused from 13 photographs, whereas the complainant testified that she had been shown only one picture. As this case was not transcribed, we have been unable to check the accuracy of this alleged testimony. But one of the investigators in the case states that the witness was certainly shown more than one photograph and that she later posi- tively identified the defendant in a lineup. (The principal investigator in this case has since left the department for employment with the Central Intelligence Agency and is presently out of the city; therefore, we could not obtain a state- ment from him for this letter.) We must concede Mr. Chairman that, with the volume of crime we have, and with the number of policemen we have, there is a limit to the amount of investiga- tion that can be conducted. Not always is *there time or necessity to go into every detail of the defense offered by every person arrested. This is especially so in cases such as United States' v. Joseph Taylor, where there is no question that the defendant has committed a criminal offense, and in the case of United States v. William Kemp, where the defendant is arrested in immediate proximity of stolen propety and where the alibi offered has questionable bearing on the case. On the other hand, our position is that additional time allowed us before arraignment doe's permit us to check our alibi statements given by persons arrested when their arrest is based on shaky identifications or on barely suf- ficient probable cause. Since Mr. Shadoan, in his testimony, in effect stipulated that this procedure of checking is followed in some cases. no effort is being made here to enumerate examples where this has been done. We will, however, provide suitable examples to the committee if desired. Mr. Shadoan also referred to what he characterized among some policemen as a "conviction philosophy." To support his view regarding this philosophy, he ciuoted two criminal cases. The first example cited by him is United States v. Howard W. Lee and John Thomas Lee. In this case, he simply read a portion of the transcript of testi- mony between the U.S. attorney at the trial on direct examination of a wit- ness to the robbery. PAGENO="0588" 582 AMENDMENTS TO CRThIINAL STATUTES OF D.C. That witness, in effect, testified that at a lineup of prisoners she was coerced by a police officer into identifying the defendants and, in addition, that the po- lice officer stated "what difference does it make, it's just a couple more niggers." In this particular case, it is noteworthy that we did in fact, prior to the lineup, obtain a confession from one of the defendants. It is also pertinent, in connec- tion with other statements offered by Mr. Shadoan, that this confession was obtained (in front of a disinterested witness) after the investigating officers had checked out an alibi offered by the confessing defendant. With respect to the testimony read into the record by Mr. Shadoan, I am forwarding to the committee a confidential report by one of the investigating officers relating the views expressed by the assistant U.S. attorney regarding this witness, and his decision not to call her in the second trial. This report may reflect somewhat on the motive behind the testimony of that particular witness. Mi. Shadoan also discussed the case of United States v. Eugene Evans in which the investigating detective testified that the defendant confessed while in the police cruiser on the way to the station house, whereas the defense claimed, and was supported by testimony of a precinct officer, that the de- fendant was transported to headquarters in a patrol wagon. This conflict of testimony was brought to the attention of this department by the U.S. attorney, at the time, and although it could not be resolved, it was brought to the attention of all detective personnel and they were instructed to be very careful in keeping a chronological journal of their activities in each major arrest in order to prevent similar incidents in future cases. Notice is also taken of Mr. Shadoan's testimony that in 1960 there were 1,337 felony indictments, of which there were 140 acquittals, indicating an acquittal rate of about 5 perceiit of the indictments. He suggests that this compares favorably with the State jurisdictions who are not hampered by the Mallory rule. I think the committee should also have benefit of the following statistical in- formation. In the fiscal year 1960, there were 9,510 felony arrests in this city. At the end of the year, 590 were pending, 402 had been dismissed, 1,487 had been nolle prossed, 1,333 had been dropped with no papers, 1,851 had been referred to juvenile authorities, 605 had been committed to penal institutions by lower Lourts, and 3,242 had been referred to the grand jury. Taking Mr. Shadoan's statistic, apparently 1,197 had been convicted in the U.S. district court. Counting as convictions the 590 pending, the 1,851 juvenile, the 605 lower court commit- ments, and the 1,197 district court convictions, the overall rate totals a maximum of 45 percent. I. of course, would not argue that all of these cases are lost because of the Mallory rule. Some of them are, but many of them are weeded out under the procedure of presenting to the grand jury only the best cases, when multiple charges are placed against a defendant, in order to avoid clogging the courts with a great number of criminal charges finally resulting in concurrent sentences. Too, and I would be the first to admit it, some of these cases are lost because of inexperience, lack of judgment, or failure to follow proper procedures by investigating officers who are pressed, not only by procedural policies imposed by the courts, but also by heavy workloads during peak periods. I would also want to take issue with the statement by Prof. Yale Kamisar that 6,000 suspects were "picked up" in connection with t1~ree murders. It would seem that he is misinterpreting as arrests the interviews reported in newspaper articles regarding some spectacular cases. There have been a number of major cases in this city in which hundreds of suspects were checked out and interviewed without arrests being made. For example, in the case of the murder of Gordon C. Brown, there was a newspaper item relating to the fact that about 5,000 servicemen were ques- tioned. However, these interviews were in no sense arrests, but voluntary inter- views conducted on the base at Boiling Field. The defendant in the case was actually passed over during his first interview, but was later requestioned as a result of information obtained from other persons. He was eventually charged with the murder and convicted. There have been a number of similar cases where hundreds and on occasion more than a thousand persons were interviewed, but I have no recollection and there is no record of this department to substantiate such a statement as that made by the professor. With regard to the testimony of Mr. Kenneth Pye, it is worth noting that his quotation of crime statistics was not current. Actually, during the fiscal year 1963, crime in this city increased by 8 percent over the preceding. year, and as of PAGENO="0589" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 583 the end of September, crime in this city was at an alitime high and had increased 56 percent over the low point of June 1957. On another subject, Mr. Pye states that in the Miska Merson case, the police detained an individual for 60 hours before arraignment, and that one of the juveniles involved was subjected to an intensive interrogation for 35 hours. A narrative account of the investigation of this case is on record with your coin- mittee in the joint hearings before the Senate and House Committees on the District of Columbia earlier this year. That narrative outlines in detail the periods of detention of the various principals and the need for detention of each and, incidentally, will show that none of them was intensively questioned for 35 hours. Mr. Pye also mentioned a Leroy Pane case, which we have been unable to identify and, therefore, offer no comment here. III. PROPOSED ALTERNATIVE TO UNIFORM ARREST ACT During my testimony before the committee, the chairman remarked that to his recollection only one of the many witnesses appearing before the committee had supported section 301 of H.R. 7525 as a constitutional provision. In my own testimony to the committee, I noted that my understanding was that even some of the supporters of title I of the bill bad testified that section 301 would not be constitutional, and I informed the committee that, despite the acute needs of law enforcement, I would not want to reconunend any clearly unconstitutional provisions. Still, I feel a duty to impress upon the committee the acute need for some provision to authorize a police officer to detain and question a person found under "probable cause" circumstances without placing a permanent formal charge and arraignment against the person detained. Again I would remind the com- mittee that we have had a number of cases where formal, serious criminal charges have been placed on the records of persons arrested on probable cause who were later released, without trial, when further investigation of the facts by the police have proven them innocent. And under existing law, such a charge cannot be expunged from the record of the person arrested. Recognizing that section 301 might have been construed to be unconstitutional because of the breadth of its provisions, I should like to offer for consideration of the committee a more limited proposal which may be more in line with con- st~itutional requirements. A similar proposal has recently been considered in one of the State legislatures and is as follows: RIGHT OF DETENTION A. A peace officer may detain for a reasonable period of time any person who, he believes, on reasonable grounds, has committed, is committing, or is about to commit any offense, even though the nature of the offense may be unknown, and may conduct such investigation as he believes, on reasonable grounds, to be necessary. B. A period of detention in excess of 6 hours shall be prima fade unreasonable, At the end of the detention period the person so detained shall be released or shall be arrested. C. The release of the person detained does not render the detention unlawful. Sincerely yours, ROBERT V. MURRAY, Chief of Police. DIVISION OF POLICE, CITY OF MADISON, Madison, Wis., April13, 1961. Mr. ROBERT V. MURRAY, Chief of Police, Metropolitan Police Department, Government of the District of Columbia, Washington, D.C. DEAR SIR: It is my belief that the information you requested in your letter of April 4, 1961, governing arrests is well covered in citations from the 1959 Wisconsin statutes: 66.31 Arrests. Any peace officer of a city, village, or town may, when in fresh pursuit, following into an adjoining city, village, or town and arrest any person or persons for violation of State law or of the ordinances of the city, village, or town employing such officer. PAGENO="0590" ñ84 AMENDMENTS TO CRIMINAL STATUTES OF D.C. 954.03 Arrest without warrant. (1) When lawful. An arrest by a peace officer without a warrant for a misdemeanor or for the violation of an ordinance is lawful whenever the officer has reasonable grounds to believe that the person to be arrested has committed a misdemeanor or has violated an ordinance and will not be apprenhended unless immediately arrested or that personal or prop- erty damage may likely be done unless immediately arrested. This subsection is supplemental to section 62.09(13) and shall not in any way limit any powers to arrest granted by that section. (2) Arrest under warrant not in officer's possession. An arrest by a peace officer acting under a warrant is lawful even though the officer does not have the warrant in his possession at the time of the arrest, but, if the person arrested so requests, the warrant shall be shown to him as soon as practicable. An arrest may lawfully be made by a peace officer when advised by any other peace officer in the State that a warrant has been issued for the individual. I believe that what you refer to as investigation arrests would come under our classification of "suspicion" of a specific charge. We do not make arrests solely for investigative purposes. According to our statutes, an individual arrested on suspicion of a felony on information and belief, and probable cause, may be held incommunicado for a reasonable length of time. Ordinarily those incarcerated are held in the city jail until they can be arraigned at the next court session, which is the mornings of Monday through Friday. Trusting this information suffices, I remain, Very truly yours, WILBUR H. EMERY, Chief of Police. CHARLESTON, W. VA., May 17, 1961. ROBERT V. MURRAY, Chief of Police, Metropolitan Police Department, Washington, D.C. DEAR CHIEF MURRAY: In answer to your inquiry of April 4, 1961, I first want to apologize for my delay in replying. Your letter is of much interest to all law-enforcement agencies. We do not have any statute law of arrest for investigation of persons sus- pected of a crime. However, we have a practice of common usage in the State of West Virginia wherein we hold persons for investigation of felonies for 72 hours. Also, we have comparatively recently enacted a suspicious persons ordinance in the city of Charleston which we use, under these circumstances and which states as follows: "It shall be unlawful for any suspicious person to be found strolling, loitering, or lingering within the city. "For the purposes of this section, a `suspicious person' shall be deemed to be a person who, not being licensed or privileged by State and Federal law to possess it, is found with opium, opium pipe, cocaine, heroin, cannabis indica. cannabis sativa, marihuana, or other narcotic drug in his possession; and any person in whose possession shall be found concealed any device, tool, instru- ment. or thing for use in the commission of burglary, larceny, or other crime. or for picking locks or pockets, or for use in obtaining money or other property of value by swindle, trick, or false pretense; and any person who is known to obtain his living by criminal means and practices or who is known to be a com- panion and associate of criminals or other dissolute persons." Our investigation arrest is generally described in volume 1 of Alexander's "The Law of Arrest in Criminal and Other Proceedings," published by Dennis & Co., Inc.. Buffalo, N.Y., on probable cause and detain for questioning, and it is deemed. through common usage in the State `of West Virginia, that 72 hours' detention is not unreasonable. In view of your reference to the ~Supreme Court's opinion in the Andrew Mallory case, it would be absolutely impossible to have reasonable law enforce- ment and investigation if you were required to have all the evidence on a crim- inal before he is arrested, and I am afraid our departments would go wanting. We are continuing under our regular practice and will do so until it is ruled otherwise to be illegal in the State of West Virginia. Very truly yours, DALLAS W. BIAS, Chief of Police. PAGENO="0591" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 585 Cii~r OF DALLAS, PoLIcE DEPARTMENT, Dallas, TerD., April 14,1961. ROBERT V. MURRAY, Chief of Police, Washington, D.C. DEAR CHIEF MURRAY: The State of Texas is perhaps slightly more lenient with peace officers than are many States regarding the detention of prisoners arrested on suspicion or investigation. Actually, there are no statutes or city ordinances which set the particular time between an arrest and the filing of charges. It is our policy for detectives to interrogate persons in custody on investigative charges within 24 hours. This policy is not always strictly adhered to, though generally it is. When a person is held on an investigative charge in this department, and is released without a formal charge, the normal procedure is for the investigating detective to sign the investigative worksheet authorizing release of the prisoner. I am attaching some of the State statutes which may be of interest to you. Included are several court decisions relative to confessions and delays in taking defendant before a magistrate. I hope this information will be beneficial to you in your study. Sincerely yours, J. E. CURRY, Chief of Police. Article 212. Code of Criminal Procedure. State of Teaas, Offense Within View A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within, his view, if the offense is one classed as a felony, or as an "offense against the public peace." Article 214. Code of Criminal Procedure. State of TerDas, Authority of Munic- ipality The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws. Ordinance 4290. Dallas City Code All policemen In the city of Dallas, in the exercise of sound discretion, may arrest without a warrant therefor any person or persons found in suspicious places, or any person or persons found under circumstances reasonably tending to show that such person or persons have been guilty of some felony or breach of the peace or violation of some municipal ordinance, or are about to commit some offense against some State law or against some municipal ordinance. Article 215. Code of Criminal Procedure. State of Tewas, When Felony Has Been Committed Where it is shown by satisfactory proof to a peace officer, upon the representa- tion of credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused. Article 216. Code of Criminal Procedure. State of Tewas, Rights of Officer In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant. Article 217. Code of Criminal Procedure. State of Tewas, Must Take Offender Before Magistrate In each case enumerated in this chapter, the person making the arrest shall immediately take the person arrested before the magistrate who may have ordered the arrest, or before the nearest magistrate where the arrest was made without an order. DECISIONS The court knows that in the regular course of official business, magistrates before whom the statute requires the defendant arrested be immediately taken, cannot keep open offices at night. Hence, under the circumstances it was liii- PAGENO="0592" 586 AMENDMENTS TO CRIMINAL STATUTES OF D.C. practical for the officers to attempt literal compliance with the statute, and in the opinion of this court it is unreasonable to say that such was their duty. Under the foregoing circumstances pending return of the regular time for official business, we think the officers acted with legal propriety. What is a reasonable time depends upon the facts in each case, to be considered with regard, among other things, to such matters as judicial accessiblity and facility, intervention of a Sunday or a holiday, the intoxicated or mental condi- tion of the person detained. Fouraker v. Xidd Springs Boating and Fishing Clith (Civ. App., 65 S.W. 2d 796). Fact that defendant accused of nighttime burglary of private residence was not taken before magistrate, as is contemplated by this article, did not of itself require rejection of confession made while defendant was under arrest. Henson V. State (159 Cr. 11.647,266 S.W. 2d 864). Fact that defendant was confined in jail from time of his arrest at 8 p.m. until following morning did not show an unreasonable or unnecessary delay in taking him before a magistrate. Gilbert v. State (162 Cr. 11. 290, 284 S.W. 2d 906). Where defendant was arrested about 10:45 p.m. and taken to a hospital where a blood specimen was taken at 12:45 n.m. and then to the police station where be made a statement between 1 and 2 a.m. and complaint was filed after 2 :25 am. confessions of defendant were not required to be excluded because defendant was not taken before a magistrate or because of unreasonable delay in filing of a complaint. Mitchell v. State (Cr. App., 312 S.W. 2d 245). Where accused was arrested about 8 o'clock on Saturday night and made confession on Sunday morning, there was no unreasonable delay in taking accused before a magistrate. A confession made while under arrest is not inadmissible as a matter of law because officers failed to take accused before magistrate. Childress v. State (Cr. App., 312 S.W. 2d 247). Article 727. Code of Criminal Procedure. State of Texas, When Confession Shall 2~,Tot Be Used The confession shall not be used if, a.t the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Sec- ond, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circum- stances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name. and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness. DECI5IONS In absence of evidence of a long and continued questioning by reason of which confession resulted, or that 3% days' confinement or failure to take defendant before magistrate caused defendant to make confession, failure of officers to file charges against defendant or to take defendant before a magistrate before confession was made did not constitute denial of due process of law and did not render confession inadmissible. Dirnery v. State (Cr. R. 156, 197, 240 SW. 2d 293). The McNabb rule that a confession is inadmissIble If made during illegal de- tention due to the failure to promptly take prisoner before committing magis- trate, whether or not confession is result of torture, is not controlling in State trials. Golemon v. State (157 Cr. R. 534. 247 SW. 2d 119. certiorari denied 7.~ S. Ct. 60, 344 U.S. 847, 97 L. Ed. 659; rehearing denied 73 S. Ct. 174. 344 U.S. 882, 97 L. Ed. 683). Failure to take accused before magistrate does not invalidate a confession unless such failure, in some manner, causes or contributes to bring about the confession. Id. PAGENO="0593" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 587 Por~IcE DEPARTMENT, CITY OF NASHVILLE, Nashville, Tenn., April 19, 1061. Hon. ROBERT V. MURRAY, Chief of Police, Government of the District of Columbia, Metropolitan Police Depa'rtment, Washington, D.C. DEan CHIEF: In answer to your letter of April 4 we wish to jnform you that numerous cases decided by the Tennessee Supreme Court hold that there is no set time that a person may be held between arrest and arraignment before a magistrate when the arrest is made by an officer. However, the code does pro- vide that a private person who arrests another for a puhlic offense must take the arrested person before a magistrate or deliver him to an officer without unnecessary delay. Our city code provides that an arrested person must be taken before a magis- trate without unnecessary delay when arrested in the daytime or when the court is in session. When at nighttime and the court is not in session the arrested person may be placed in detention without a warrant until such time as the court is in regular session. The arrested person is allowed bail for bailable offenses. There is nothing in the State code to prohibit an officer from hold.ing a person incommunicado for the purpose of investigating him when there is reasonable grounds for believing he had committed a felony, even though it was later deter- mined he was not guilty and any confession obtained during that time can be used in evidence against him, provided he is not held for a period longer than 72 hours and was not mistreated during that time and no promises were made to him. I am enclosing several cases decided by our Tennessee Supreme Court relating to confessions obtained between arrest and arraignment. Very truly yours, DOUGLAS E. HossE, Chief of Police. SUBMITTED HEREWITH IS SOME AUTHORITY FOR THE POLICE DEPARTMENT TO DETAIN A PERSON AND TAKE HIS CONFESSION PRIOR To ARRAIGNMENT BEFORE A COM- MITTING MAGISTRATE OR JUDGE In the case of Wynn v. state, reported in 181 Tennessee, at page 325, the supreme court, speaking through Chief Justice Green, said: "The proprietor of a restaurant in Memphis, after closing his place of business about 11 o'clock at night, on his way home was held up by three Negroes at the point of a pistol and a small sum of money and a bunch of keys were taken from his person. He received a blow in resisting the assault. The Negroes left him and he reported the matter to the police telling them that the keys to his place of business were taken and that it was probably the intention of those assaulting him to enter it. The doors to the house and safe were opened with keys, without doubt the keys taken from the prosecutor's person. "They were detained in the police station 3 days without being taken before a magistrate. They were held incommunicado during this time. On the third day they were taken before a magistrate and in open court pleaded guilty. Shortly before he was taken into the magistrate's court, Wynn made a confes- sion, as did the other two Negroes. "At the conclusion of this preliminary hearing objection was made to the admission of the confessions solely on the ground that the defendant and the other Negroes were illegally detained for about 72 hours before they were brought into the magistrate's court. "Since there was no proof of any mistreatment of defendant, nor of whipping, nor of threats of whipping while in custody offered on the preliminary hearing the trial judge was right in admitting the confession, unless the mere fact of the detention of defendant during the 72 hours rendered the confession in- admissible. "Section 11544 of the code provides: `A private person who has arrested another for a public offense, shall, without unnecessary delay, take him before a magistrate or deliver him to an officer.' There is no such provision with respect to the duty of an officer making an arrest." In Ashcraft v. state (unreported 1943) and on appeal in the U.S. Supreme Court, 88 L. Ed. 858, this Court, with respect to the detention of the defendants for 36 hours prior to the time they were taken before a magistrate, said that, 25-260---64-----pt. 1-3S PAGENO="0594" 588 AMENDMENTS TO CR~1INAL STATUTES OF D.C. "there was a temporary holding or arrest for examination purposes, and this is not a committal to prison within the spirit of our statute. Such an examination precedes a committal and an accused may be released before a warrant is issued." "We do not understand that the Supreme Court reversed the Asheraft case because of his detention but owing to the treatment he received during his detention. We think the bare detention of this defendant is not sufficient to render his confession inadmissible." From the two above opinions, it appears that the police department has the full authority to detain, question, and take a confession from any person sus. pected of committing a crime prior to taking them before a magistrate or judge, and said detention can be for as much as 72 hours, so long as the person de- tained is not mistreated. In the case of Rosenthal v. State, 200 Tenn., page 178, the Supreme Court said: "In prosecution for homicide, record did not show that the defendant was prejudiced by being held incommunicado for 6 days after his arrest or by the fact that a preliminary hearing was held in the private office of an inspector instead of in the courtroom, and therefore there was no showing that the con- stitutional rights of the defendant were violated." POLICE DEPARTMENT, CITY OF COLUMBIA, S.C., April 20, 196!. lion. ROBERT V. MURRAY, Chief of Police, Metropolitan Police Department, Washington, D.C. DEAR CHIEF MURRAY: Please accept my apologies for not having answered your letter of April 4, 1961, until this time. The reason for the delay has been that I have discussed your problems several times with our city attorney. We are fortunate here in Columbia in having reasonable cooperation from our criminal lawyers, who, in most cases, will give us a reasonable amount of time to complete our investigations. It is also the rule in our jurisdiction that we will be allowed at least 4 days to make an investigation as that is the statutory time required for notice of a hearing before a circuit judge or county judge on a writ of habeas corpus. We, too, have been very much disturbed about the decision in the Mallory case, and our city attoriiey thoroughly disagrees with the opinion. However, as of this time, it has not affected our operations. This is about all the information I can give you in regard to our investigations. I certainly sympathize with you and feel that it is ridiculous to cause a court to be called in session during the nighttime and having all parties concerned attend the court. It would appear that the Supreme Court, sitting in its ivory tower has completely overlooked the practical aspect of law enforcement in this Nation and seems solely concerned with the welfare of the criminal element. Yours very truly, L. J. CAMPBELL, Chief of Police. PROVIDENCE POLICE DEPARTMENT, Providence, R.I., October 30, 1961. Chief ROBERT V. MURRAY, Chief of Police, Metropolitan Police Department, Washington, D.C. DEAR Cumr MURRAY: I am pleased to send you herewith a copy of the Provi- dence Police Academy's latest training bulletin which, coincidental with your recent request for same, has as its subject "The Rhode Island Arrest Law." This department publication, will, I am sure, provide some specific information you seek as study reference material in consideration of your interest in any adaptions of the provisions of the model Uniform Arrest Act. The department procedures followed in operation of this statute are~explained at some length with one exception: directing your attention to page 14, para- graph B, section 1, "Temporary Detension of Suspects," it is the practice of all enforcement units of this department to maintain a so-called 2-hour book in which a brief summary of the detention action is kept. This book is strictly an PAGENO="0595" AMENDMENTS TO CRIMINAL STATTJTES OF D.C. 589 unofficial record of a police activity and does not conflict with the provisions of the arrest statute. I hope that you will find the enclosed material helpful; if I can be of any fur- ther assistance in this or any other matter of mutual interest, please contact me. With kind personal regards, I am, WALTER E. STONE, Colonel, Chief of Police. IV. THE RHODE ISLAND ARREST LAW Up to this point in this manual we have been talking mostly about what a police officer cannot do. We will, in this section, cite the things a policeman can do. Before going into the actual arrest law as it is stated in the statutes, it is nece,ssary for each officer to understand the definition of the word "arrest :" An arrest is the taking into custody of a person for the actual purpose of bringing that person before a court or otherwise securing the administration of the law. Another definition that each officer should be thoroughly familiar with is the word "crime," and what constitutes a crime: A crime is an act of commission in violation of a law forbidding or com- manding it, and punishable only in a procedure brought by the Government. 1. In every crime there are two elements: (a) The objective element: The objective element is shown by an outward act or omission condemned by law. (b) The subjective element: The law is more concerned with the intent than with the act, because a malicious intent in the commission of a crime makes a person a menace to society, while a good intent in the commission of the same act could make the person innocent. 2. Example: The act of one person hitting another person with a heavy stick: A person with a malicious intent, the intent to injure the other person, for pur- poses of revenge or other similar reasons, would be arrested and charged with assault with a dangerous weapon. If the person hitting the other was a policeman, and it was necessary to strike the other person with his baton to affect an arrest, his intent is not,a malicious one, he would not be guilty of a crime. Even though the overt act was the same, one person hitting another with a heavy stick, the intent determines whether there was a crime committed. A. BACKGROUND OF THE RHODE ISLAND ARREST LAW The Rhode Island arrest law is essentially the same as the Uniform Arrest Act which was proposed in 1941 and 1942, as a result of the Interstate Crime Commission investigation. The principal drafter of the Uniform Arrest Act was Prof. Sam Bass Warner of the Harvard Law School. He was assisted by Prof. Tohn Barker Waite of the University of Michigan Law School. These two men, whose judgment and integrity were respected throughout the country, accompanied the police on their tours of duty in order to learn the true facts of police procedure. Their experiences gave them a sympathetic under- standing of the problems confronted by the police in consequence of antiquated rules governing the questioning and detaining of suspects, searching them for weapons when police safety is jeopardized, arresting them when conditions warrant such action, and the right of the suspect under some conditions forcibly to resist arrest by a uniformed policeman. As a result of their experiences and after a study of the various State laws they drafted the Uniform Arrest Act, which somewhat liberalized a policeman's arrest privileges, in the hope all the States would adopt a uniform arrest law. As of December 1960, only three States have adopted the principal provisions of the original Uniform Arrest Act. Those States are: Delaware, New Hamp- shire, and Rhode Island. The superintendent of the Chicago Police Department, O~ W. Wilson, has been fighting, for years, for all the States to adopt similar laws to the Uniform Arrest Act. So, in essence, Rhode Island has a reasonable amount of liberalism insofar as police arrest privileges are concerned. It then becomes necessary for the policemen of Rhode Island to maintain this reasonable degree of liberalism by not abusing any of the privileges set forth in the Rhode Island arrest law. PAGENO="0596" 590 AMENDMENTS TO CRIMINAL STATUTES.. OF D.C. B. THE STATUTORY PROVISIONS OF THE RHODE ISLAND ARREST LAW- (TITLE 12, CH. SEC. 1-17) AS CITED IN THE GENERAL LAWS OF RHODE ISLAND 1. Temporary detention of svs~ects (title 12, ch. 7, sec. 1) "A peace officer may detain any person abroad whom he has reason to suspect: is committing, has committed, or is about to commit a crime, and may demand of him his name, address, business abroad, and whither he is going; and any- such person who fails to identify himself and explain his actions to the satisfac-. tion of such peace officer may be further detained and further questioned and. investigated by any peace officer; provided, in no case shall the total period of such detention exceed 2 hours, and such detention shall not be recorded as an arrest in any official record. At the end of any detention period the person so detained shall be released unless arrested and charged with a crime." Eceplanation (a) A policeman may stop any person, not in his own home, whom he suspects is committing, has committed, or is about to commit a crime. You may not stop people indiscriminately without a reason. You must be prepared to answer why you suspected, or what you suspected. (b) If the person you stop can give you a reasonable explanation for his being: at that place at that particular time you may allow him to continue. (c) If the person you stop cannot satisfy you completely for his actions, you. may detain him further by bringing him to the station for further questioning.. (You must have a legitimate reason for stopping, or detaining, him in the first place.) (d) After bringing him to the station you relay your suspicions to the superior- in the office and the person may be questioned or investigated for up to 2 hours. (e) If after 2 hours nothing can be found to warrant charging him with an. offense he must be released. (This is not considered an arrest.) (1) If, after questioning, sufficient grounds are found to charge him, he may be arrested and held for the next session of the appropriate court. (1) Some actions that could be considered suspicious or questionable are: A. known police character prowling around an area where breaks are occurring. A young boy or girl out late at night. A group of men driving around aimlessly late at night. A person carrying bundles at night in a residential neighborhood,. etc. 2. Search of detained person far weapons (title 12, ch. 7, sec. 2) "A peace officer may search for a dangerous weapon any person he is ques- tioning or about to question concerning any crime or suspected crime, whenever he reasonably believes that he is in danger from such person carrying such weapon,. and if such person is carrying a dangerous weapon, such officer may take and keep it until the completion of such questioning, when he shall either return it or arrest such person." Eceplanation (a) Once again, you must have a reason for questioning and if you have reason to suspect the person you are questioning is carrying a weapon you may search him for that weapon if you reasonably believe you are in danger from that weapon. (b) In the event you are not satisfied with the person's explanation and you~ decide to convey that person to the station in a police vehicle be must be searched for weapons before he is placed in the vehicle. (c) It is this writer's opinion that anyone capable of committing a crime is: capable of carrying a weapon. 3. Arrest without warrant for misdemeanor (title 12, ch. 7, sec. 3) "A peace officer may without a warrant arrest a person for a misdemeanor,.. whenever: (a) The officer has reasonable ground to believe that a misdemeanor has: been or is being committed in his presence and that the person to be arrested has committed or is committing it. (b) The person to be arrested in fact has committed or is committing a mis- demeanor in the presence of the officer, and in such case it shall be immaterial that the officer did not believe him guilty or on unreasonable ground entertaineL belief in his guilt. PAGENO="0597" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 591 (c) The officer has reasonable ground to believe that the person to be arrested ~bas committed a misdemeanor and either has fled front the scene of the crime or is a nonresident of this State and cannot be arrested later. "Provided, an arrest under paragraph (a) or paragraph (b) of this section must be made within 24 hours after the commission of the misdemeanor, but, ;an arrest under paragraph (a) may be made at any time." £a~pianation A. Paragraph (a): Any of the officer's five senses that detect a misdemeanor would cover the "in his presence" phrase. For instance: A police officer sees a motor vehicle driving erratically in the highway, he hears shouting in the car, a disinterested person tells him he just saw that driver stagger into the car and it appeared that he' was being assaulted by another man who is now a passenger in the car. From what this officer has seen and heard it appears that the man is probably a drunken driver and he was also being assaulted. Certainly this officer has reasonable ground to believe that a misdemeanor is being committed in his presence (drunken driving and possibly assault). Paragraph (b) : Upon stopping the car and investigating he ascertains that the man driving is not drunk but sick, and the shouting was because of hi~ pain. (The other man couldn't drive, but was helping him to the car, and they -were on the way to the hospital.) But during the investigation a knife with a 4-inch blade was found on the driver. He was arrested for possession of the knife even though that was not the original reason for stopping him. Paragraph (a) : This paragraph allows a police officer to arrest for a mis- demeanor even though the offense wasn't committed in his presence, if he has reasonable grounds to believe that the person has in fact committed a misde- meanor. For example: At 12:30 a.m. there was a simple assault in the north end of the city and a police broadcast was made giving the name and description of the person wanted. At 2:15 a.m., same day, an officer in the south end of the city sees, and arrests the man responsible. The officer had reasonable ground to believe that the man committed an assault because of the police radio broadcast. B. A misdemeanor is a crime punishable by less than 1 year in prison or le~s than a $500 fine. Past decisions relative to this section 1. Where a police officer followed defendent as he operated his automobile in an erratic manner along a street and arrested him at his residence when he stopped, arrest without a warrant was valid. State v. Cambio (1945) 71 RI. 228,43 Atl. (2d) 307,44 Ati. (2d) 428. 2. One legally placed under arrest may be searched for evidence with which the crime has been committed and such as is found upon him may be legally taken from him. State v. Chester (1925) 46 RI. 485, 129 Atl. 596. It should be noted, in case No. 2, that the man was legally arrested and not just stopped indiscriminately and searched. Whenever you search a man be sure you are on proper ground. This is a good time to mention procedure when arresting a female. Unless it is absolutely and positively necessary, to protect your life, or to immediately secure evidence of a vital nature, no male police officer will search the person ~of a female prisoner. One of the policewomen, or one of the matrons, should conduct a search of the person of a female. If you consider it imperative that the female be searched immediately, you may appoint a disinterested, female bystander, or passerby to assist you. In most cases it is practical to have an officer bold each band and arm while the female is being transported to the station where a matron or policewoman is available. 4. Arrest withont warrant for felony (title 12, ch. 7, sec.4) "A peace officer may, without a warrant, arrest a person for a felony, whenever: "(a) The officer has reasonable ground to believe that a felony has been or is being committed and that the person to be arrested has committed or is committing it. ` ` "(b) The person to be arrested in fact has committed or is committing a felony, and in such case it shall be immaterial that the officer did not PAGENO="0598" 592 AMENDMENTS TO CRIMINAL STATUTES OF D.C. believe him guilty or on unreasonable ground entertained belief in his guilt." The same explanations as cited hi section 3, paragraphs (a) and (b) hold true for this section: A. "Reasonable ground" could be the fact that someone complained of a break, or an assault with a dangerous weapon, etc., and pointed out the man that did it. Or you could hear glass break and a man running away from a store with merchandise. This is not absolute proof but it is "rea- sonable ground." If, after arrest, you searched and found narcotics on him the fact that you didn't believe him guilty of the possession of narcotics wouldn't alter the fact that he did possess them, as long as you had reasonable ground to believe him guilty of a crime in the first place. B. A felony is any crime punishable by more than 1 year in prison or more than a $500 fine. 5. Arrest on improper ground (title 12, oh. 7, sec. 5) "If a lawful cause of arrest exists, the arrest shall be lawful even though the officer made the arrest on an improper ground." (a) This section means essentially the same as section 3, paragraph (b) and section 4, paragraph (b). 6. Arrest on warrant not in possession of arresting officer (titTe 12, oh. 7, sec. 6~ "A peace officer may, without having the warrant therefor in his possession, arrest any person for whose arrest a warrant has been issued, but after arrest, the warrant shall be shown to him as soon as practicable." (a) This section speaks for itself. An arrest with a warrant already issued is most desirable. (b) No arrest should ever be made except on the authority of a warrant of arrest if it is at all practicable to obtain one. This is not always possible, but when it is, one should be obtained. (c) The warrant orders the officer to act and is issued by a member of the judiciary such as supreme court justices, superior court, district court, or niuni- cipal judges. 7. Methods of arrest (title 12, oh. 7, sec. 7) "An arrest is made by the restraint of the person to be arrested or by his sub- mission of his person to the custody of the person making the arrest." (a) Marshall louts, in his book "Arrest to Release" writes: "An arrest requires the existence of three elements in combination: "First, there must be an intent on the part of the officer making it to place his subject under his actual control, to deprive him of his liberty and freedom of actiom-an intent to restrain him physically if he does not submit peacefully. This intent may develop at any time, either before the officer first approaches his subject or while he is conversing with him. "Second, there must be a communication of both the officer's intent and his authority. `You are under arrest,' `You are my prisoner,' `You will have to come with me,' are sufficient to communicate the officer's intent. * * * If the officer is in uniform and the subject is in a position to observe it, this in and of itself is sufficient to establish the officer's identity. "If it is practical the subject should be told the reason he is being arrested. If because of circumstances, telling the subject the reason, would jeopardize future investigation, it is probably advisable to tell him he is being brought to the station for investigation of a crime in which he is a suspect. "Third, the subject must actually be placed under the control of the officer, `taken in custody.' If he submits peacefully, this is sufficient. The officer need not touch him, although it is good practice for him to place his hand on the sub- ject's arm or shoulder since this symbolizes the officer's control over the subject. If the subject resists, the officer must be prepared to restrain him physically if necessary. This implies a power on the part of the officer to control his subject.. If, for example an officer while patrolling on foot yells to a speeding motorist, `You are under arrest for violating the traffic laws,' no arrest takes place since he did not possess the power to control the offender; and the courts have held consistently that mere words are never sufficient to constitute an arrest. "If any one of these three requisites is missing, no arrest takes place." PAGENO="0599" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 593 8. Restraint and force used (title 12, oh. 7, sec. 8) "No greater restraint than is necessary shall be used for the detention of any person, and no unnecessary or unreasonable force shall be used in making an arrest." (a) How much force may be used in making an arrest? The rule is usually stated rather glibly that as much force can be used as is absolutely, or reasonably necessary. This is essentially true, but it is a generality and could be misleading to an uninformed or nonthinking policeman. There are certain other conditions that must exist. (1) Unless the officer acts under a valid warrant or has legal grounds for ar- resting without a warrant, he cannot employ any force. Once again it cannot be emphasized too strongly that there must be a legitimate reason, according to law, for stopping, detaining, or arresting a person initially. (2) If the officer fails to identify himself properly, or to communicate his authority, he cannot use any force. (3) If the officer has legal grounds for making an arrest, the use of any force is unreasonable if the subjects submit peacefully: and the officer using unreason- able force may be subject to departmental charges, plus criminal and/or civil charges. (4) If the subject resists, the officer is entitled to stand his ground; "He need not retreat" as some courts phrase it-and make every reasonable effort to subdue him. (5) If the resistance actually places the officer's life in danger, he may kill in self-defense, regardless of the original offense charged against the subject. (6) If the officer's life is not threatened, he may kill a felon to complete his arrest if he has to; but he must stop short of taking the life of a misdemeanant. 9. Conditions justifying force dangerous to life (title 12, ek. 7, 500. 9) "A police officer may use force dangerous to human life to make a lawful arrest for committing or attempting to commit a felony, whenever he reasonably believes that such force is necessary to effect the arrest and that the person to be arrested is aware that a peace officer is attempting to arrest him." (a) This section is explained in the explanation for the previous section. 10. Resisting illegal arrest (title 12, oh. 7, sec. 10) "It shall be unlawful for any person to use force or any weapon in resisting an illegal arrest by a peace officer, if such person has reasonable ground to believe that he is being arrested and that the arrest is being made by a peace officer." (a) This section makes it unlawful for anyone to resist arrest even though he knows the officer has the wrong man. For instance, if an officer has a warrant for James Palmer and he approaches a man he thinks is James Palmer and attempts to place him under arrest, even though this man is not James Palmer he cannot resist arrest. Technically this is an illegal arrest but the man must submit and go along to the station where the mistake would be corrected. (b) Although there are no specific provisions in our statutes for resisting arrest under common law all persons must follow a lawful order of a peace* officer, and under title 11-32-1 every person who shall obstruct any officer in the performance of his duty shall be imprisoned not exceeding 1 year or fined not exceeding $500. 11. St~mmons instead of arrest (title 12, oh. 7, sec. 11) "In any case in which a peace officer is authorized to arrest without a warrant a person for a misdemeanor, he may instead issue to him a summons- "Willful failure to appear in answer to such summons may be punished by a fine of not over $50 or imprisonmentfor not over 15 days. Upon failure to appear, a warrant of arrest may issue." (a) The Providence Police Department recently instituted a policy whereby a police officer may issue a summons for a traffic violation. 12. Release of arrested person by officer in charge of police station (title 12, cli. 7, sec. 12) "The officer in charge of any police station may release any person in his station who has been arrested withouta warrant: "(a) Without requiring such person to appear in court, when he is satisfied that there is no ground for making a criminal complaint against such person or PAGENO="0600" 594 AMENDMENTS TO CRIMINAL STATUTES OF D.C. when such person has been arrested for drunkenness but in the judgment of the officer need not be brought before a magistrate; or "(b) If the arrest is for a misdemeanor, upon that person signing an agree- ment to appear in court at a time designated." (a) On occasion, a well meaning, but perhaps overzealous policeman will bring a person to the station whom he thinks should be charged with an offense. After investigation the officer in charge could release this person generally with a stern warning. Some officers, whose attitude is questionable, would become passively belligerent, and perhaps apathetic about his work, feeling he was let down by his superiors. While a certain disappointment in the young officer is understandable, apathy, lethargy, or undermining will not be tolerated. This officer must appreciate the long years of service, and the long years of experience accumulated by the officer in charge of the station. He knows from experience which cases are acceptable in court, and which cases the judge would criticize the police for bringing into court. Example: A slap in the face by one man to another; while this may technically and legally be considered an assault, there are many times this type of case is straightened out in the captain's office (of course, depending upon the complete circumstances). Example: The case where a policeman brings a man into the station and says, "I want this man charged with disorderly conduct," when asked why he would say, "He gave me a bad time." Investigation revealed that the officer was writing the man up for a traffic violation and they became involved in an argu- ment with one another, and if there was any disorderly conduct it was on the part of the officer. To save face for this young officer, the officer in charge must diplomatically and tactfully lecture the alleged offender who was operating the car and release him with a warning (the traffic offense would still stand). The officer in charge should then explain the reason the case was not sent to court to insure against discouraging or demoralizing the patrolman. There are isolated cases but they do happen occasionally, contrary to the opinion of some of the men involved in incidents of this nature that the superiors do not back them up. The superiors bend over backward to legally make a case for a policeman that has been subjected to abuse from a citizen. If it is at all possible your superiors will back you up in the case of unwarranted abuse, but don't ask them to do the impossible and make a case out of something that is 70 percent your fault. The policeman that continually has difficulty along these lines should thoroughly study the training bulletin on "Courtesy," which has a section on human relations. 13. Maximum period of detention (title 12, cli. 7, sec. 13) "Every person arrested shall be released either on bail or as provided in title 12-7-12 or shall be brought before a judge of the district court within 24 hours from the time of his arrest, unless a judge of the district court of the district where he is detained or of the district court of the district where the crime was committed for good cause shown orders that he be held for a further period of not exceeding (a) 24 hours, if he be a resident of this State or (b) 48 hours, if he be a nonresident." (a) In order to hold a person an additional 24 hours before sending him to court there must be a specific charge against him in the first place. Then the superior that requests the "hold" must justify wanting to hold the man to the judge. Generally there is some evidence to indicate that he is involved in crimes other than the one he is being charged with. The channels that a request to "hold" go through are: From the officer in charge of the unit requesting the hold~ to the chief of police, to the judge of the district court. 14. Punitive damages f or false arrest or imprisonment (title 12, eli. 7, sec. 61) "In an action for false arrest or false imprisonment, the plaintiff if successful, may be awarded punitive damages in addition to compensatory damages." (a) A policeman need not worry about false arrest or false imprisonment action if he detains, or arrests a person upon probable cause and that person is not held more than 2 hours without a charge being placed against him. It is when a person is detained or arrested by an officer that has no "reason to suspect" is committing, has committed, or is about to commit a crimo, that tho ofilcol! subjects himself to criticism, or even court action. (b) Be certain you are on proper ground when making an arrest. PAGENO="0601" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 595 15. S~everability of provisions (title 12, oh. 7, sec. 15) "If any part of title 12-7-14, inclusive, is for any reason declared void, such invalidity shall not affect the remaining portions of said sections." (a) This section merely means that if some subsequent court action should declare any one section of this chapter void or unconstitutional the rest of the chapter would remain in effect. (b) As of September 1961 this chapter has withstood and been upheld in the various courts (see $tate v. Kilday attached to this bulletin). 16. Arrest or seizure after commission of offense (title 12, oh. 7, sec. 16) "The authority given to anyone to arrest any person or seize anything, while such person is actually engaged or such thing is actually used or employed in the commission of any offense, shall not be so construed, as to prevent, if not so arrested or seized, the arrest of such person or the seizure of such thing after the commission of such offense, upon due process of law." 17. Arrest of escapees and parole violators withont warrant (title 12, ch. 7, sec. 17) "The director of the department of social welfare, the warden of the adult correctional institutions, any superintendent or employees connected with any institution under the management and control of the department of social wel- fare, or any police officer or constable, may arrest without a warrant any person who has escaped from any such institution or who, being absent from such institution, or who being absent from such institution on parole, has violated the conditions of such parole, for the purpose of returning such person to the institution from which the escape was made or from which such parole was granted." (a) This section speaks for itself and is explicit in stating no warrant is needed to arrest an escapee or a parole violator. C. SUMMARY OF TITLE 12, CHAPTER 7 We have just completed a verbatim account of the Rhode Island arrest law. It is sometimes referred to as the 2-hour law. In the study of the arrest laws of other States and jurisdictions our arrest law could be considered fairly liberal by comparison. But nowhere in these statutes are the police allowed to indiscriminately detain or arrest. There must be, at least a concrete suspicion, that the person to be detained or arrested has done some wrong. This must be remembered by our policemen in Providence. The arrest that causes less controversy than any other is the arrest made with a warrant. This warrant is signed by a judge who has considered the merits of the case and has decided there is sufficient grounds for further action. However, it is not always possible to secure a warrant and in this event this chapter allows the police officer to arrest without a warrant under certain con- ditions. Be certain those conditions are present when making an arrest or even detaining a person. Some important points to remember when contemplating an arrest are: 1. An officer must comply with the law fully, when conducting a search, to insure that evidence can be legally presented in a case. 2. Evidence obtained as the result of an illegal search, or by use of third- degree methods, force, coercion, or duress, is not admissable. 3. The officer has the right to conduct a search coincidental to an arrest. 4. The purpose of the search, conducted coincidental to an arrest, is for the seizure of weapons, fruits of a crime, or other evidence. 5. An abandoned vehicle can be searched at any time, provided it is not within a building. 6. Search of premises may be conducted coincidental to an arrest, with per- mission, or on authority of a search warrant. In fighting for the national adoption of a uniform arrest law similar to our present Rhode Island arrest law, 0. W. Wilson superintendent of the Chicago Police Department cites these reasons: 1. Public peace and security would be increased by enhancing the likelihood of discovering persons seeking an opportunity to attack. 2. The effectiveness of the administration of justice would be increased by facilitating the investigation of suspects the arrest of criminals and the collec tion of admissable evidence. By these means both clearance and conviction rates would be increased. PAGENO="0602" 596 AMENDMENTS TO CRIMINAL STATUTES OF D.C. 3. The security of the police would be increased by permitting them to dis- cover weapons that may be used to attack them and by making it illegal to resist arrest by a known police officer. 4. Higher standards of service and stricter adherence to the legal restrictions imposed on the police would result when a community or other political sub- division was penalized for abuse of authority by its police. If Rhode Island has an arrest law that many, many police administrators are hoping to get, it behooves each officer to adhere strictly to the letter of the statutes to avoid adverse criticism and publicity that could possibly lead to legislative changes that could tie our hands in fighting crime. V. SuMMARY AND CONCLUSIONS In this training bulletin we have discussed civil rights, human rights and police privileges all in relation to the Rhode Island arrest law. We tried to show that there are certain basic rights which the policemen of today must respect. There are certain human dignities which we must uphold. Ours is a difficult task. We are sworn to uphold the law, to repress crime, to detect the criminal, to charge the criminal, to preserve order. We must accom- plish these missions and not deviate from the l~ter of the laws ourselves. It can be done. Intelligent investigation, intelligent interrogation, and a dedication and devotion to duty along with knowledge and commonsense are the most important factors in accomplishing our mission. The modern policeman must shed his prejudices. He must treat all persons alike. He cannot arrest because a person's eyes are crossed, or his skin is a different color, or because he speaks with an accent. Any police officer that arrests for these reasons is making an unlaw-ful arrest and is subject to de- partmental and civil action. WTiIen a policeman makes an arrest he should make it and not stand in the middle of a street arguing with a person threatening to make an arrest. Arrests of this type could lead to mobs gathering and possible riot action. For that reason the cruiser personnel should stay in service except for emergency. The cruisers could be the difference between a riot developing or not developing when a policeman is making an arrest. If the policeman making the arrest and the person being arrested are made to wait out in the street for considerable time while a cruiser has to come from the other side of the city many things could develop because the cruiser in the area was out of service for some trivial reason. Because of the delay of the cruiser, tension could build up and serious consequences could result. This paper is intended in no way to discourage arrests. On the contrary the writer feels that if a police officer is arnied with the knowledge as to what he can do and what he cannot do, it will give him confidence to perform duties that he perhaps neglected because of uncertainty as to procedure or tactics. On the other hand we are not looking for a policeman to violate any civil or human rights. In this connection the head of the FBI. John Edgar Hoover, has said, "one of the quickest ways for any law enforcement officer to bring public disrepute upon himself, his organization, and the entire profession is to be found guilty of a violation of civil rights. Civil rights violations are all the more regrettable because they are so unnecessary. Professional standards in law enforcement provide for fighting crime with intelligence rather than force." PoLICE DEPARTMENT, Crrv OF PUILADELPRIA, Philadelphia, Pa., April14, 1961. Chief ROBERT V. MURRAY, Police Department, Washington, D.C. DEAR CHIEP MURRAY: Your letter of April 4, 1961, to Commissioner Brown has been referred to me for reply. When the Honorable Mayor Dilworth was district attorney for the city and county of Philadelphia, he established a 24-hour rule which, in essence, means that no one can remain in the custody of police for more than 24 hours without the benefit of a formal hearing. After the formal hearing, of course, the de- fendant is either discharged or held for court. For purposes of interrogation, etc., the department loses the defendant as he is transferred to the custody of the prison guards. Should we wish to formally interrogate him at a later date, PAGENO="0603" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 597 we must request the approval of a judge, and the practice in the recent past has been that the judges are reluctant to grant such requests and seldom do. The department has no procedure or practice by which it is able to charge a person for an offense, investigate, etc., and then, after a prescribed period of time. release him without benefit of a hearing. Anyone held for a period of time must be formally charged. This, of course, does not mean in those instances where a person may be interrogated for an hour or two as a suspect and then permitted to leave. hoping this is satisfactory, I remain, Sincerely yours, HOWARD R. LEARY, Deputy Commissioner. ~P.S.-Please give my regards to Howard Covel. POLICE DEPARTMENT, CITY OF PHILADELPHIA, Philadelphia Pa., March 16, 1961. EDGAR B. Scorr, ~Deputy Chief of Police, Chief of Detectives, Metropolitan Police Department, Washington, D.C. DEAR CI-IJEF SCOTT: This will reply to your letter of March 14, 1961, concerning the practices of holding people for purposes of interrogation prior to formal arrests. Usually we are able to offer sufficient testimony at the preliminary hearing, before a favorable magistrate, so that he (the magistrate) is able to continue the ease f or a day or two permitting us the time necessary to get additional information. However, this isn't the practice that is constanly indulged in hut is saved for those instances when it is advantageous for us to make the request of the magistrate. In some instances we interrogate people for a matter of a few hours and then permit them to go home, but those individuals are not formally charged with any crime. We also have what we call the 24-hour rule which requires us to give a person *a formal hearing within 24 hours after they are apprehended by the police. This procedure is religiously adhered to, and we allow for no deviations or exceptions to this policy. In those instances where we haven't sufficient information to hold the crime suspect, we usually do not Interrogate him formally but continuously keep him under surveillance, of course without his knowledge, until we are in a better position to take him into formal custody. We are also experiencing some resentment when our policemen stop automobiles in order to question the suspect for other reasons than motor vehicle violations. In fact. atthe moment it appears to begetting critical. Sincerely, ALBERT N. BROWN, Commissioner. THE CITY OF OKLAHOMA CITY, Oklahoma City, Okia., April 17, 1961. Mr. ROBERT V. MURRAY, Chief of Police, Washington, D.C. DEAR CHIEF MURRAY: Reference is made to your communication dated April 4, 1961; regarding information on investigation arrests prior to filing charges. We have no authority to certain specified periods of delay between the arrest and the arraignment for the purpose of fully investigating a criminal case before a felony charge is filed. The practice followed in our jurisdiction in an investigation arrest is that officers of our agency do not take the prisoner before a magistrate. We file our charges in county court and the sheriff's officers pick up the prisoner and arraign him or her in justice of peace court. In certain cases when an investigation arrest is made, the prisoner's attorney files a writ of habeas corpus before we have time to make the investigation. The prisoner is then taken before a district court judge for a hearing and if the case is of serious nature, the district judge will grant us a reasonable amount of PAGENO="0604" 598 AMENDME~f S TO CRIMINAL STATUTES OF D.C. time (not specified) to complete our investigation and file charges. All state- ments, written, recorded, or oral, can be used in the State court. We trust the above is the desired information, and if we can be of further assistance, please advise. Yours very truly, ED. E. RECTOR, Chief of Poice. HILTON GEER, Major, Commanding Bureau of Investigation~ CITY OF CINCINNATI, DEPARTMENT OF SAFETY, DIvIsION OF POLICE, Cincinnati, Ohio, Maij 3, 1961. Mr. ROBERT V. MURRAY, Chief of Police, Metropolitan Police Departnz.ent, Washington, D.C. DEAR CHIEF MURRAY: The following is submitted relative to your letter of April 4. After considerable research relative to precourt obtained confessions and the practice of police arresting and holding suspects for investigation, we found: 1. No specific case reported in the State of Ohio. 2. No mention of an allotted time a prisoner may be held before being taken. before the court. 3. Nothing on the question of admissibility of a confession gained prior to court. Section 2935.05 of the Ohio Revised Code specifies the obligation of a person wh& has effected an arrest and reads as follows: "When a sheriff, deputy sheriff, marshal, deputy marshal, watchman, or- police officer has arrested a person without a warrant, he must, without unneces- sary delay, take the person arrested before a court or magistrate having jurisdic- tion of the offense, and must make or cause to be made before such court or magistrate a complaint stating the offense for which the person was arrested. The crux of the question is the length of time police are permitted to hold a person in custody before taking him to court. In the absence of any law in the State of Ohio, such as the "Uniform Arrest Act" adopted in the States of Delaware, New Hampshire, and Rhode Island which permits police to hold a person in custody "for as long as 24 hours" the courts in Ohio seem to rely on the above mentioned clause-"unnecessary delay." The basis for a suspicious arrest, in our opinion, is the main factor determining the court's outlook on the arrest. What constitutes a "reasonable and probable" ground of suspicion is incapable of exact definition, beyond saying that the officer must not act arbi- trarily, but must exercise his discretion in a legal manner, using all reasonable means to prevent mistakes. In other words, he must be actuated by such motives as would influence a reasonable man acting in good faith. These standards have been attained in our department due to constant supervision of arrests and the education afforded the members of our department. We must consider the following dilemma created by a police officer's right to arrest on "probable cause" or "reasonable grounds" and the requirement that the arrestee be taken "without unnecessary delay" before the court for the placing of a criminal charge against him. In order to charge a person with a criminal offense, more is required than "probable cause" or "reasonable grounds" and unless there is evidence of guilt, the court would order the release of the arrestee. This suggests to us that our courts feel that the police should be given an opportunity to detain a person for a "reasonable time" for investigation or interrogation before taking him to court. As to the matter of admissibility of confessions in court, there is a definite stand on confessions gained through coercion. Every coerced confession has been inadmissible for generations in our courts. If a prevalent abuse of the right to question prisoners exists, the sounder remedy lies in police discipline, as has been our policy, with the result that we have been upheld by our courts when the question arises as to the admissibility of confessions gained during detention before arraignment in court. In answer to the inquiry as to our procedure in the case of an individual held for investigation and released without formal charge we follow a similar pro- cedure prescribed in section 10 of the "Uniform Arrest Act" which reads as follows: PAGENO="0605" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 599 "Any officer in charge of a police department or any officer authorized by him may release instead of taking before a magistrate any person who has been arrested without a warrant by an officer of his department." We hope this information will assist you. If we can be of further service, please call on us. Sincerely, S. R. SOHROTEL, Police Chief. Crvv ~F COLUMBUS, OHIO, April 10, 1961. ROBERT V. MtmnAy, Chief of Police, Metropolitan Police Department, District of Columbia. DEAR CHIEF MURRAY: Received your letter of April 4, 1961, relative to the use of investigative arrests. Our department has no statutory authorization for detaining a suspect for any period of time without obtaining a warrant. Previously, Ohio General Code, section 2935.05, said, in part, "A police officer who has arrested a person without a warrant must, without unnecessary delay, take the person before a court or magistrate, etc." The interpretation by our judges of the words "unnecessary delay" usually permitted us to detain a person fora reasonable period of time (1 to 3 days), as long as we were actively and continuously in the investigation of the case. However, effective January 1, 1960, an amendment to this section was made, requiring an officer to "undertake immediate steps to secure a warrant." Section 106.13, the Ohio General Code further states: "If the judge or magistrate has brought to his attention that a prisoner is held In jail in his jurisdiction without commitment from a court or magistrate, he shall, by summary process, cause such prisoner to be brought before him to be charged." More and more attorneys are resorting to the use of this section, forcing us to charge many persons that would perhaps have been freed without formal charges had we been given a few more hours to investigate. Any subject charged and found not guilty or held for investigation and re- leased without formal charge, may request that his photographs, fingerprints and other records be returned to him. This is authorized by State law. I think it is only a question of time until our department will be in much the same position as yours. I trust that this information will be of some help to you in your survey. Sincerely, GEORGE W. SCHOLER,, Chief of Police. CITY OF CONCORD, NEW HAMPSHIRE, April 10, 1961. ROBERT V. MURRAY, Chief of Police, Metropolitan Police Department, Washington, D.C. DEAR CHIEF: We have experienced no difficulty in our courts in New Hamp- shire, because of the more liberal New Hampshire statutes. Ramifications of the Mallory decision, apparently has not reached the New Hampshire courts, as yet. We experience no difficulty in detaining suspects for a period of 4 hours. To my knowledge, any confession or statement legally obtained during the first 4 hours, have not been questioned by the New Hampshire courts. We are enclosing a copy of some of the New Hampshire statutes that seem applicable in this case. Sincerely yours, WALTER H. CARLSON, Chief of Police. CHAPTER 594-AimEsrs IN CnIMINAL CASES 594:1 DEFINITIONS. As used in this chapter. "Arrest" is the taking of a person into custody that he may be forthcoming to answer for the commission of a crime. "Felony" is any crime that may be punished by death or imprisonment in the State prison. Other crimes are "misdemeanors." PAGENO="0606" 600 AMENDMENTS TO CRIMINAL STATUTES OF D.C. "Officer" or "peace officer" is any sheriff or deputy sheriff, mayor or city marshal, constable, police officer, or watchman, or other person authorized te make arrests in a criminal case. Sources: GS 236 :1, GL 254:1, PS 250:1 1941, 163 :1, PL 364 :1, RL 423 :1. 423 :20., Nom.-This section embraces the definition of "officer" found in RL 422 :1. ANNOTATION Cited in Park v. United States (1924) 294 F. 776. ARREST 594:2 QUESTIONING AND DETAINING SUSPECTS (a) A peace officer may stop any person abroad whom he has reason to sus- pect is committing, has committed, or Is about to commit a crime, and may. demand of him his name, address, business abroad and whither he is going. (b) Any person questioned as provided in subsection (a) who falls to identify' himself and explain his actions to the satisfaction of the peace officer stopping him may be detained and further questioned and investigated. (c) In no case shall the total period of detention provided for by subsections. (a) and (b) exceed 4 hours. Such detention shall not constitute an arrest and shall not be recorded as such in any official record. At the end of any such. detention period the person so detained shall be released unless arrested and charged with a crime. 594:3 SEARCHING FOR WEAPONS A peace officer may search for a dangerous weapon any person whom he is. questioning or about to question as provided in section 2, whenever he reasonably believes that he might be in danger if such person possessed a dangerous weapon. If the officer finds a weapon, he may take and keep it until the completion of the questioning, when he shall either return it or arrest the person. Sources: 1941, 163 :3 RL 423:22. 594:4 Pm~IIssIBLE FORCE (a) No unnecessary or unreasonable force or means of restraint may be used' in detaining or arresting any person. (b) A peace officer is justified in using force dangerous to human life in making' an arrest only when- (1) The arrest is lawful; (2) The arrest is on a charge of felony; (3) There is no other apparently possible means of effecting the arrest;' and (4) The officer has made every reasonably possible effort to advise the person to be arrested that he is a peace officer and is attempting to make an arrest and has reasonable ground to believe that the person is aware of' the fact. Sources: 1941, 163 :4 RL 423 :23. ANNOTATION ANico: Degree of force that may be employed in arresting one charged with. a misdemeanor (3 ALR 1170; 42 ALR 1200). ANNO: Effect on voluntariness of confession of violence used in making ar- rest (24 ALR 710). 594:5 RESISTING ARREST If a person has reasonable ground to believe that he is being arrested andl that the arrest is being made by a peace officer, it is his duty to submit to arrest and refrain from using force or any weapon in resisting it regardless of whether' there is a legal basis for the arrest. Sources: 1941, 163:5 RL 42.3:24. 594:6 AID TO OFFICERS Every officer in the execution of his office, in a criminal case may require~ suitable aid; and if any person, when required, shall not give such aid he shall be fined not more than SlO. . . Sources: RS 178:12, GS 189:12; GS 236:2, GL 254 :2; PS 250 :2, PL 264 :2,, RL423:2. . ` . . , ` PAGENO="0607" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 601 ANNOTATION A railroad police officer, in the execution of his office, has authority, by virtue )f this statute, to require suitable aid of any person. La Chance v. Berlin ~`treet B. Co. (1919) 79N11 291, 109 A 720. 94:7 ARREST ON WARRANT An officer to whom a warrant for the arrest of an offender may be addressed ias power to make the arrest at any time and in any place; and shall have, in tny county, the same powers in relation to the process as an officer of that ~ounty. Sources: RS 222 :10, CS 237:16, GS 230:9, GL 254:9, PS 250:9, PL 264:12, IL 423 :12. THE COMMONWEALTH OF MASSACHUSETTS, DEPARTMENT OF PUBLIC SAFETY, Boston, January 2, 1962. vir. ROBERT V. MURRAY, Thief of Police, Vashington, D.C. DEAR CHIEF: This will acknowledge your letter of October 24, 1961, requesting his department's experience with matters relating to the questioning and detain- *ng of suspects, arrest Without a warrant, release of persons arrested, and per- aissible delay in bringing a defendant before a magistrate. Our legislature has not enacted a version of the model Uniform Arrest Act. n this Commonwealth a police officer has the common law authority of sheriffs and constables to arrest without a warrant a person whom he has reasonable romids to suspect of having committed a felony CornS. V. Phelps 209 Mass. 396. Te may also arrest without a warrant a person who commits in his presence ny misdemeanor amounting to a breach of the peace Corn. v. Gorman 288 Mass. 94. For Statutory misdemeanors not amounting to a breach of the peace there s no authority to arrest without a warrant unless it is given by statute Corn. v. Vright 158 Mass. 149, 159. "Our law clearly requires that a defendant be brought into court as soon as easonably possible after arrest * * *~ We do not consider the delay in bringing this defendant into court to have been unreasonable" Corn. v. Banuchi 335 Mass. 649, 656. (Arrested at midnight on Sunday, brought into court Wednesday, 2 days and 9 hours later.) Officers arresting without a warrant had the "duty to bring him before the court as soon as reasonably could be done. It cannot be said as a matter of law that their delay for an hour and a quarter was reasonable" Keefe v. Hart 213 lass. 476, 482. (See footnote in Culombe v. Connecticut 367 U.S. 568, 584.) "It was the duty of the arresting officers to bring him without delay before the court * * ~. But the criminal session was closed for the day * * ~. The fact that civil sessions were~ still open is immaterial * ~ `~. No undue delay was shown." Corn. v. Difgtasio 294 Mass. 273,284. (Defendant arrested on warrant at about 1 p.m. in Boston. Questioned in Cambridge at about 3 p.m. and made confession. Arraigned next day at Cambridge.) An arrested person against whom no formal charges are brought is usually released after signing a voluntary agreement to waive all claims of damages. This is the option of the prisoner as "arrest can only be justified by bringing the prisoner before a magistrate. A complaint under oath is not required. It is sufficient to give the magistrate a full statement of the facts" Waco v. McGrath 255 Mass. 341. The following chapter 276, section 33A, Massachusetts General Laws may be of interest: "The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the, purpose of allowing the arrested to communicate with his family or friends, or to arrange for release on bail, or to' engage the services of an attorney. Any such person shall be informed of his right to so use the telephone immediately upon beingbooked, and such use shall be permitted within 1 hour thereafter Our records reflect that for the year endmg June 30 1961 only 2 arrests of ~ total of more than 22000 made by our Massachusetts State Police were booked as "suspicious person" and released without formal charges. PAGENO="0608" 602 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The policy of this department is to follow the procedure outlined in Was~ v. McGrath, supra. We are not aware of any dissatisfaction with this procedure. Sincerely, FRANK S. GtLES, Commissioner of Public &ifety. POLICE DEPARTMENT, Baltimore, Md., March 16, 1961. Mr. EDGAR E. SCOTT, Deputy Chief of Police, Metropolitan Police Department, Washington, D.C. Da~n Mn. Scorr: I have your letter of March 14, inquiring as to our procedure in holding persons under suspicion of having committed a crime, and must advise that we are allowed to hold such persons for a reasonable length of time pending investigation. Sincerely yours, TAMES M. HEPBRON, Police Commissioner. DEPARTMENT OF POLICE, New Orleans, La., May 22, 1961. Mr. ROBERT V. MURRAY, Chief of Police, Government of the District of Columbia, Washington, D.C. Da&i~ CHIEF MURRAY: I am submitting the enclosed information in response to your request for information pertaining to holding charges in this jurisdic- tion. The enclosures consist of (a) The excerpt pertaining to the Louisiana Revised Statutes, title 14, section 107 (R.S. 14:107, Vagrancy) from the "1UEIO Cumulative Annual Pocket Part" and (b) The excerpt from the Louisiana Statutes Annotated, 19~50 pertaining to R.S. 14:107, Vagrancy. Our basic procedure in this regard is as follows. Our vagrancy statute, as you will observe, is very broad in its coverage. When we find a person whom we strongly suspect of having committed a serious crime, we book him with vagrancy (specifying the particular misconduct of which he is in violation under the vagrancy statute), and the judges-by an informal or tacit working agree- ment-permit us to interrogate the prisoner and complete our investigation for a period of approximately 72 hours. In unusual cases requiring additional investigation, or in situations in which the release of the suspect would un- doubtedly tip off his confederates or coconspirators, the judges have been known to permit us to hold the prisoner for more than 72 hours. By and large, how- ever, our investigations must be completed and a charge of the serious offense either accepted or refused within 72 hours. This procedure has been an exceptionally valuable police tool in the interest of public safety and the detection of crime. We in the department naturally appreciate the consideration shown us in this regard, and we are ever ylgilant to avoid abuse of this procedure. If some attorney comes in and complains about a particular client's being detained, we immediately check with the in- vestigating officers, and if it should appear that the investigating officers are dragging their feet in the investigation, then we order expeditious completion of the investigation and assign additional men to assist in the investigation. In my opinion, this program has been most successful and has not worked an undue hardship on' any citizen. My staff and I would strongly urge the congressional committee investigating this matter to recommend that such a procedure be approved for the District of Columbia Metropolitan Police Department. As you know, so much investiga- tive work is required in many instances before a person can be either properly charged or properly released without a charge in connection with a particular serious crime. If you are going to require a police officer either to charge or release a suspect on the spot, then many persons will be charged who should not be charged, and many criminals will not be brought to justice. I submit to you that the Metropolitan Police Department of the District of Columbia has proven itself on many occasions to be highly competent and zealously respectful. o~, the.. civil rights of persons with whom it deals. Over the years this Department has earned the respect and confidence of police departments and the general public throughout the entire country. We respectfully submit that the Congress PAGENO="0609" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 603 would not be making a mistake in any way by vesting in the Metropolitan Police Department of the District of Columbia the authority and discretion for utilizing a 72-hour holding charge procedure. On the contrary, such an authori- zation by Congress would greatly improve the law-enforcement potential in the District. If we can be of any further assistance to you in securing additional inforina- tion, please call upon us. Very truly yours, JOSEPH I. GIARRUS50, Superintendent of Police. CITY OF DES MOINES, DEPARTMENT OF PUBLIC SAFETY, Divisiox OF POLICE, Des Moines, Iowa, April 10, 1961. Mr. ROBERT V. MURRAY, Chief of Police, Washington, D.C. DEAR CHIEF MURRAY: In reply to your letter of April 4, the only place in the Iowa code where the word "investigation" appears is in the chapter pointing out the duty of the chief of police and sheriff to take the fingerprints of persons arrested for the following: Investigation, etc. However, arrests are made for investigation and the courts allow a reasonable length of time to complete our investigation before filing charges or releasing the prisoner. Even in cases where writs of habeas corpus are served, when requested by the department, the judge will set the hearing far enough ahead to allow us to continue our investigation. We do not have any special procedure in the case of an individual held for investigation and then released without formal charge. Naturally in these cases the arresting officer can be sued for false arrest. However, in every suit filed, if the officer showed good grounds for making an arrest the court has ruled in his favor. I realize that this is not very much help to you but we have tried over the years to amend the chapter so that we could make an arrest for investigation and have it spelled out in the code, but our efforts have been unsuccessful. Very truly yours, YEAR V. DOUGLAS, Acting Chief of Police. HOWARD R. EIDE, Captain, Police Academy. Cir~ OF INDIANAPOLIS, Indianapolis, md., April 10, 1961. ROBERT V. MURPHY, Chief of Police, Metropolitan Police Department, Washington, D.C. DEAR Sin: We are happy to inform you that our courts are more liberal in the matter of admitting admissions of the accused into evidence. In felony cases we are permitted under section 9-704-a of Burns Indiana Statutes (1956 replacement) page 46 to slate a suspect on a preliminary charge and to hold such suspect 7 days. After the arrest on the preliminary charge and before we take a written statement of admission we are required to apprise the suspect of the charge and that he was entitled to council. That any admissions he made may be used in court at the time of his trial. These facts are stipulated in his written statement. We are required to slate the .suspect in the next regular session of our mu- nicipal court at which time the court again apprises the suspect of his rights relative to the charge. Our municipal courts have only preliminary jurisdiction in felony cases. If we present a prima fade case in municipal court, they set a bond and bind such charge over to the Marion ~unty grand jury. The grand jury hears the evidence and either returns a true bill or a no bill. If a true bill is returned the case is then set for trial by one of our two criminal courts. 25-260 0-64-pt. 1-39 PAGENO="0610" 604 AMENDMENTS TO CRIMINAL STATUTES OF D.C. We are enclosing a copy of our preliminary charge statute which we trust will be of assistance to you. Assuring you of our cooperation at all times we remain. Very truly yours. ROBERT E. REILLY, Chief of Police. By CARL C. SCHMIDT, Thspector of Detectives. BURNS INDIANA STATUTES 1956 REPACEMENT-BOOK 4, PART 1 9-704a. Preliminary cliarqe-Procedvre.-Whenever any law enforcement offi- cer shall have arrested and taken into custody any person reasonably believed to have committed a felony and said detained person(s) offers or advances any explanation, justification, alibi or excuse. or circumstances exist which might or could negative the presence at or participation in said crime by such person under detention. and said officer nevertheless because of reliable information or investigation still verily believes that such detained person is involved in a commission of the felony, there is hereby created an additional and alternative pleading and procedure to the criminal statutes of the State w-hich shall he known as the preliminary charge, and which may be filed against any arrested and detained person under such circumstances. When any person is so held and detained under such preliminary charge the law enforcement officers shall forthwith take such parson before the magistrate. justice, municipal, city, criminal or circuit judge, and shall cause to be prepared forthwith before the court hearing such matters, and if said court be not in session then for the next session of the court having jurisdiction in such matters. an affidavit entitled preliminary charge of (naming the felony in- volved) and said person so accused shall be entitled to a hearing thereon. Said affidavit shall otherwise follow the form of affidavit now or hereafter prescribed by statute for the felony on which the preliminary charge is filed. but may be in summary form, and the person so detained under said charge shall at said hearing be apprised of the facts concerning the felony with which he or she is charged, and said court shall apprise said person as to whom is accusing him, shall likewise advise said detained person that anything he may say may he used against him and shall also advise said person that he is entitled to legal counsel. Thereafter said person so charged shall after hearing the accusation against said detained person and any explanation offered by said detai~ed person be permitted to give any explanation, or offer any answer thereto. The court shall thereupon rule in discharge or commitment. If the court should find that the person so held under a preliminary charge should be committed. an order shall issue directed to the county sheriff, the superintendent or chief of police, the marshal, constable or other chief law enforcement officer ordering the holding and detention of any such person, committing said person for a period not exceeding 7 days from the date of said commitment. Said commit- ment shall be in the following form. IN COURT STATE OF INDIANA, County of To the SHERIEF OF COUNTY: To the MARSHAL of To the CHIEF or SUPERINTENDENT OF POLICE OF To the CONSTABLE OF TowNsHn': having been brought before me on the preliminary charge of is hereby committed to until the day of at o'clock __._m., at which time you shall produce said person before me in open court and if the said person be not charged with on or before said date said person will at said time be discharged. , Judge. Any person so committed on any such preliminary charge shall be entitled to bail upon providing sufficient surety in the amount now or hereinafter pro- PAGENO="0611" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 605 vided by statute for the felony concerning which the committed person is pre- liminarily charged, and if at the expiration of the commitment period no formal charge of felony is placed, said committed person shall be discharged, but otherwise shall stand trial if affidavit or indictment be filed against said person. (Acts 1949, ch. 273, - 1, p. 996.) CITY OF ATLANTA, DEPARTMENT OF POLICE, Atlanta, Ga., April 10, 1961. Chief ROBERT V. MURRAY, Police Department Headquarters, Washington, D.C. DEAR CHIEF: I enjoyed my visit with you very much and I am sure the inquiry will produce fine results. In reply to your inquiry of April 4, this is to advise that most of the arrests made by this department are made without warrants, because the Georgia law authorizes an arrest without warrant under the following conditions: (1) That the offense was committed in the presOnce of an officer. (2) That the perpetrator is attempting to escape. (3) That a miscarriage of justice is likely, because an authorized person, to issue a warrant, is not present. The chief of police or his agent, is authorized to arrest a person, book a case, assess a bond, and allow a prisoner to be released on bond without going before a judge. When a person is arrested and cannot post bond, we are required to schedule a hearing before the next session of the city court, where the city judge will assess a fine, dismiss the case, or bind the person over to a State or Federal court. Where a person is suspected of a crime and is detained for further investiga- tion, we have sufficient time to complete the investigation. Attached hereto are copies of the Georgia laws that authorize such detention. Those of us in the police department are just as anxious as the courts to protect the rights of a prisoner as we are to protect the community against his unlawful acts. The local courts, both city and State, have given us full coopera- tion in these cases. Trusting this is the information that you desire, I am, Sincerely yours, H. P. JENKINS, Chief of Police. CODE OF GEORGIA ANNOTATED-1956 SUPPLEMENT 27-210 (920 P.C.) Diligence of officer arresting.-Every officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the person authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing officer within 72 hours after arrest. The arresting officer shall notify the accused as to when and where the commitment hearing is to be held. The offender who is not notified of the time and place of the commitment hearing, before the hearing, shall be released. (Acts 1956, p. 796.) 27-212 (922 P.C.) Duty of person arresting without warrant.-In every case of an arrest without a warrant the person arresting shall without delay convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose and any person who is not conveyed before such office within 48 hours shall be released. (Acts 1956, pp. 796, 797.) GEORGIA DIGEST, WEST KEY NUMBER SYSTEM 63 (4). ~nspicion or reasonable grounds for belief that offense has been com- mitted Georgia 1860. Officer may, without warrant, arrest one on reasonable suspi- cion of his having committed felony, and he will be protected even though no felony has been committed, if he has reasonable ground for his belief (Johnson V. ytate, 30 Ga. 426). PAGENO="0612" 606 AMENDMENTS TO CRIMINAL STATUTES OF D.C. POLICE DEPARTMENT, Talia.hctsse~, Plc., April 12. 1961. Mr. ROBERT V. MURRAY. Chief of Police, District of Columbia. Washington, D.C. DEAR CHIEF MURRAY: In reply to your letter of April 4, 1961, this is to advise that we have not been affected by the decision in the Andrew Mallonj case or the Trilling case. - Our State statutes are silent as to the exact time between arrest and arraign- ment. Although our courts have recognized so-called investigation arrests or "arrests on suspicion," we do not have any statute regarding the same. In short, our statutes do not provide for the holdin~ of a suspect on suspicion alone. However, confessions otherwise freely and voluntarily given are accepted by our courts as conipetent and proper no matter when given. The great majority of our confessions are made between the time of arrest and arraignment. Our courts seem to operate on the theory that the question of the legality or illegality of the arrest or previous detention is not properly a part of the trial. There is no special procedure in the case of an individual held for investiga- tion and released without formal charge. Wording this another way, our statutes do not recognize any detention w-ithout formal charge. However, our courts recognize the holding of an individual for an investigation for a reasonable length of time. The facts of each case w-ould probably be considered by the court as to what a reasonable length of time would be. Yours very truly, FRANK STOTJTAMIRE. Chief of Poii~e. CITY OF MIAMI, ]Iiami, Fla., April 13, 1961. ROBERT V. MURRAY, Chief of Police, District of Columbia, Washington, D.C. DEAR CHIEF MURRAY: In reply to your mimeographed letter of April 4, we are very much interested in any information you may be able to obtain concern- ing lawful procedures in connection with "investigation arrests." The Mallory decision has been discussed at great length on numerous occasions by local judges and various meetings of local law- enforcement officers. According to the laws of the State of Florida, an officer w-ho has arrested a person without a warrant shall without unnecessary delay take the person arrested before the nearest or most accessible magistrate in the county in which the arrest occurs, etc. In all honesty, the law- is not adhered to and we realize we are jeopardizing our cases on occasion by making an arrest and then obtaining the necessary evidence. This we feel to be a necessary evil. On many occasions, when a person is held by us on an open charge his attorney usually obtains a writ of habeas corpus at w-hich time we are required to release the individual or to file charges. We are aware that the State of California has a law- which permits police to hold suspects without a formal charge for a stated number of hours. In pre- vious years we have attempted to have our State legislature enact a similar law, but so far have been unsuccessful in our efforts. To date we have never been in serious difficulty follow-ing the release, without charge, of a person originally committed on an investigation arrest. To this end we realize we have been fortunate but we don't know what course of action would be pursued if a suit were entered under such circumstances. The State attorney's office, who of course is also w-ell aware of the Mallory case, does assign a member of their staff to be available during weekends and holidays if it is deemed necessary to file charges without delay. Other than this no formal machinery has been established to take an arrested person before the nearest magistrate w-ithout unnecessary delay. We realize that we have not been of any ureat assistance to you but w-e would very much appreciate a copy of the results of your survey since we are faced with a similar problem. Sincerely yours, J. A. YOUEIL, Assistant Chief of Police. PAGENO="0613" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 607 Crr~ OF WILMINGTON, BUREAU OF POLICE, Wilmington, Del., November 1, 1961. ROBERT V. MURRAY, Chief of Police, Metropolitan Police Department, Washington, D.C. MY DEAR CHIEF MURRAY: In regard to your letter of October 24, 1901, relative to our uniform arrest law, I wish to advise you that this law has been one of our greatest tools to effective law enforcement in this city. I am enclosing a copy of this law and, as you can see, we are not permitted to make any record of the persons detained unless an arrest is made. It would be very difficult, indeed, to estimate the number of persons detained for questioning under this law, as it is used daily by our detective and uniform divisions. I would like to point out that once a person is detained, the officer or officers should detain the suspect only as long as they are interrogating and once the interrogation is complete, the subject is to be released or arrested, i.e., if the officer or officers pick up a suspect and he is detained for interrogation as a burglary suspect and the officers complete their interrogation in 45 minutes, this subject would then be released or arrested. In any event, the questioning could riot be more than 2 hours and the suspect would have to be released or arrested at that time. The following is a quote handed down from our attorney general's office in regard to police having the right to detain persons under 11 Del. C. 1902 when appropriate questions are directed to the detained person. "After the person is lawfully detained for questioning, he is not denied his constitutional guarantee of due process if he is refused the privilege of tele- phoning an attorney or family. In several cases directly on point in surround- ing States, the court directed that such actions by police officers were not a denial of due process. Commonwealth cx rd Lockoski v. Claudy, Warden, et al. (94 A. 2d 203, 172 Pa. Super. 330); Commonwealth, v. Agoston (72 A. 2d 575, Cert. Den. 71 S. Ct. 9, 340 U.S. 844,95 L. Ed. -). "The issue is different, however, after arrest. Pursuant to statute, the person arrested must be brought immediately to the nearest magistrate or to the municipal court. At this point, he should be permitted the privilege of tele- phoning an attorney or his family for, if the defendant is arraigned or given a preliminary hearing, the presence of counsel is usually deemed necessary con- comitant and a denial to him of such counsel would probably be deemed a denial of due process." I am also enclosing an opinion from the Supreme Court of the State of Dela- ware which may prove to be of value to you by answering some of the questions that may be directed to you. If further information is desired, please do not hesitate to write. Sincerely, JOHN J. SMITH, Chief of Police. CHAPTER 19, TITLE 11, SEcTIoN 1902, DELAWARE Conn or 1953 SEc. 1902. Questioning and detaining suspects. (a) A peace officer may stop any person abroad who he has reasonable ground to suspect of committing, has committed, or is about to commit a crime, and may demand of him his name, address, business abroad, and where he is going. (b) Any person so questioned who fails to identify himself or explain his actions to the satisfaction of the officer may be detained and further questioned and investigated. (c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime. PAGENO="0614" 608 AMENDMENTS TO CRIMINAL STATUTES OF D.C. IN THE SUPREME COURT OF THE STATE OF DELAWARE No. 68, 1959 WILLIAM J. DE SALVATORE, DEFENDANT BELOW, APPELLANT V. STATE OF DELAWARE, APPELLEE OPINION IN THE SUPREME COURT OF THE STATE OF DELAWARE No. 68, 1959 WILLIAM J. Dn SAIXATORE, DEFENDANT BELOW, APPELLANT V. STATE OF DELAWARE, APPELLEE (June 3, 1960) Southerland, C. J., Wolcott and Branihall, JJ., sitting. Appeal from the Superior Court in and for New Castle County. Robert C. O'Hora and John P. Daley, of Wilmington, attorneys for appellant. Clement C. Wood, Chief Deputy Attorney General, and Murray M. Schwartz, Deputy Attorney General, attorneys for appellee. Wolcott, J.: This is an appeal from a conviction before a Superior Court Judge, in the absence of a jury, of driving a motor vehicle under the influence of in- toxicating liquor. The bases of the appeal are the denial by the trial judge of the following defense motions: (1) to suppress intoximeter test results by reason of the State's failure to produce for inspection one component part of the intoximeter; (2) to suppress the testimony of the offiêers taking the defendant into custody by reason of an asserted lack of authority to make an arrest; (3) to suppress evidence on the basis of an asserted invalidity of the "Uniform Arrest Act" (11 Del. U., ~ 1902) ; and (4) an objection to questions addressed by the prosecution to the State Chemist designed to elicit an opinion concern- ing the physical condition of a man with 0.243 percent of blood alcohol by weight. The facts involved in this prosecution are briefly summarized. At approximately 1:00 A.M. on February 2, 1959, two uniformed Delaware Memorial Bridge guards, known generally to the community as "Bridge Police", were proceeding south on Route 13 appromiching the overpass of Basin Road, a point three or fdur miles south of the Delaware Memorial Bridge. The two officers noticed a car across the grass plot dividing the north and south lanes of Route 13 at a point where there was no legal crossover. The car, thus observed, drove into the parking lot of a diner immediately to the south of the Basin Road overpass and stopped. The two officers followed in the patrol car and pulled up alongside the observed vehicle. The driver of the car, who turned out to be this appellant, was requested to get out of his car. He did so slowly and leaned against the open door of his car. He emitted the odor of alcohol. He appeared unsteady on his feet. When asked for his registration and license, he fumbled in finding them. He admitted to having had some beer to drink. The officers concluded the appellant should be given a sobriety test, which he agreed to submit to. Before leaving the parking lot, and after the appellant bad given in response to questions his name and address, the officers told him he w-as being placed under a 2-hour detention for the purposes of the sobriety test and that at the end of that period he would either. be released or a charge would be placed against him. Appellant voluntarily went with the officers to the police station, although in no event, the officers testified. would they have permitted him not to have accompanied them. At the police station the appellant was administered physical coordination tests. . His attitude changed from cooperative to indifferent to insulting. His speech w-as confused. His eyes w-atery. his balance and walk were "swaying," and he was "uncertain" on the finger-to-nose and picking up coins tests. His language became abusive and obscene when he was told a charge. would be PAGENO="0615" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 609 placed against him. Prior to this, he had been given an intoximeter test which, on later analysis, showed a 0.243 percent of blood alcohol by weight. The above-described events were concluded within 40 minutes from the time the appellant first drove into the parking lot. The officers thea placed the appellant in formal arrest. At the time they had no warrant for his arrest. At 2:00 a.m. formal charges of driving a motor vehicle while under the influence of intoxicating liquor were placed against appellant before a local justice of the peace. Thereafter, the appellant was delivered to the county jail. In due course, he was tried and convicted in `the Superior Co'urt from whence comes this appeal. Appellant challenges the right of the State to use the evidence collected within 2 hours of his original detention citing Rickards v. State, 6 Terry 573, 77 A. 2d 199, for the exclusion of illegally obtained evidence at the subsequent trial. His attack is threefold. First, it is argued that the Bridge police, having only the powers of constables, have no power to arrest on view for violation of the Motor Vehicle Code, a Bridge policem~n may exercise such power only on the Bridge or its approaches, which appellant defines as ex- cluding the Basin Road overpass, and, third, that 11 Del. U., § 1902, the so-called Uniform Arrest Act, is unconstitutional as authorizing detention without probable cause. On the basis of these arguments, he urges us to rule that his detention was illegal, thus paving the way for the application of the rule of Rickards v. State. By 17 Del. U., Oh. 4, the Delaware Interstate Highway Division of the State Highway Department was created and charged with the duty of operating the existing Delaware Memorial Bridge. By § 409 the Division is authorized to establish regulations respecting the use of the Delaware Memorial Bridge and, to that end, is authorized by § 411 to employ such guards as are deemed advisable for the props~r operation of the Bridge. It is enacted that such guards shall have the powers of a constable in the performance of their duties. Thq guards, thus authorized, now constitute the uniformed police force main- tained by the Delaware Interstate Highway Division. Appellant argues that the Bridge police have only the powers of arrest of a constable which are limited by 10 Del. U., § 2723 to the power to arrest only for breaches of the peace committed in the constable's presence. He argues further that since 21 Del U., § 701, authorizing certain officers to make, arrests for violations of the Motor Vehicle Code, was amended by 48 Laws, Oh. 195 to omit constables from the listed officers having power to arrest for traffic viola- tions, it follows that the Bridge police have no authority to make an arrest for a traffic violation. We doubt that this technical argument is sound for the reason that the very nature of their employment requires the Bridge police to enforce the traffic laws on the Bridge, and we think they might well fit within the class described in 21 Del U., § 701 as "other police officers." We are not required to so hold, however, for there is another and complete answer to the argument. By 11 Del. U., Oh. 19, the so-called Uniform Arrest Law, a peace officer, defined as "any public officer authorized by law to make arrests in a criminal case" *is authorized by § 1902 to detain for investigation for a period of not in excess of 2 hours any person reasonably suspected of having committed a crime, and at the end of that time either release him or arrest him and charge him with a crime. It is specifically enacted that such detention shall not be an arrest. We think it axiomatic that constables, and thus Bridge police, are peace officers within the meaning of § 1902 since they have the authority to make arrests in a criminal case. Irrespective, therefore, of the right of the Bridge police to make arrests pursuant to 21 Del. U., § 701, they have the right to detain and arrest under 11 Del. U., § 1902. However, appellant argues that assuming 11 Del. U., § 1902 authorizes the Bridge police to detain and arrest, still that authority may be exercised only within the limited area over which the Delaware Interstate Highway Division has control, viz., the Bridge proper and, possibly, its approaches. Since the point at which the appellant was originally detained is admittedly outside of that limited area, it is argued that the detention was illegal. As a general rule, in the absence of statutory or constitutional authority, peace officers, including constables, cannot act outside of the territorial limits of the body from which they derive their authority. 80 U.J.S., Sheriffs and Uon- PAGENO="0616" 610 AMENDMENTS TO CRIMINAL STATUTES OF D.C. stables, § 36(b); Lawsem v. Bvzines, 3 Harr. 416. We note, however, that the authority conferred by 11 Del. U., § 1902 is not limited territorially by its terms, and that by 10 Del. U., § 2721 the jurisdiction of constables extends throughout the county of their appointment. We think, therefore, that the Bridge police as peace officers, are authorized by statute to make arrests and to detain suspects at least within the confines of New Castle County. Next, appellant argues that 11 Del. U., § 1902 is unconstitutional because it permits a peace officer to stop any person who he has "reasonable ground to suspect" has committed a crime, as distinguished from detaining upon `reason- able ground to believe", which appellant says is the constitutional requirement for lawful detention and arrest without a warrant. Appelant argues that arrests or d~tentions without warrant are constitutional only when made on "probable cause" and not on mere suspicion. He cites numerous Federal author- ities in support. We may assume that he is correct in arguing that arrests with- out warrant may be made only upon probable cause. We point out. however, that 11 Del U., § 1902 purports to govern, not arrests for crime which are governed by 11 Del.. U., § 1906, but detentions of persons in the course of the investigating of crime. Such police practice has long been recognized as valid by the courts when kept within reasonable bounds. Cf. U.S. v. Bonanno, 180 F. Supp. 71, and People v. Hennernan, 367 Ill. 151, 10 N.E. 2d 649. This court, also, has upheld the investigatory power of the police to detain for questioning. Wilson v. State, 10 Terry 37, 50, 109 A.2d 381, 388. We can find nothing in 11 Del. U., § 1902 which infringes on the rights of a citizen to be free from detention except, as appellant says, "for probable cause". Indeed, we think appellant's attempt to draw a distinction between an admittedly valid detention upon "reasonable ground to believe" and the requirement of § 1902 of "reasonable ground to suspect" is a semantic quibble. We point out that in Wilsom v. State, in referring to the arrest of the defendant, we said, "Nor can it be doubted that the arrest was legal, that is, upon reasonable suspicion of felony." Iii this context, the words "suspect" and "believe" are equivalents. We hold, therefore, that 11 Del. U., § 1902 is constitutional. We hold further that the recited facts concerning this detention more than satisfy the statutory requirement of grounds of belief or suspicion in the mind of the detaining officer. Not only did the appellant commit a violation of the Motor Vehicle Laws (cross- ing the grass plot) in the presence of the officers, but upon talking to him the officers had more than reasonable grounds to believe he had committed another violation in their presence (driving under the influence of liquor). We think the officers could have exercised their authority at that time under 11 Del. U., § 1900 and have placed the appellant under arrest. We, accordingly, hold that there is no taint of illegality in the detention and charging of the appellant, and tbot, therefore, the rule of Rickards v. State, supra, did not require the suppression of the evidence in question. Appellant argues, also, for the suppression of the results of the analysis of the percentage of alcohol in his blood made from the intoximeter test. The basis for the argument is the failure of the State to produce for appellant's inspection one component of the apparatus used in the test. That component is described as the ascarite tube. An intoximeter consists of three main parts, (1) a balloon with mouthpiece; (2) a fritted glass impregnated with sulphuric acid and potassium permanga- nate, and (3) a chemical train consisting of two connected glass tubes containing certain chemicals. The first tube, into which the breath is first passed, contains magnesium perchlorate which absorbs the moisture and alcohol from the breath. Thereafter, the breath passes into the second, or ascarite. tube which absorbs the carbon dioxide from the breath. The process of analysis requires the chemist by distillation to determine the amount of alcohol absorbed in the first tube. The chemical contents of the first tube are all used up in the distillation process. The quantity of breath in which the amount of alcohol was contained is determined by the chemist from the dif- ferential in weight of the ascarite tube before and after the taking of the intoxi- meter test. On the basis of these two items, it is then possible to compute the percentage of alcohol in the subject's blood. It appears that it is not the practice of the State Chemist who makes the re- quired analysis, to retain the ascarite tube used in a particular test for the reason PAGENO="0617" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 611 that it is thereafter unusable. Rather, the practice is to return the tube to the manufacturer in order to obtain a refund on the cost. Prior to the trial, appellant moved for production for his inspection of the ascarite tube. The State was unable to produce the tube because of the policy of returning the used tubes to the manufacturer. Appellant thereupon moved to suppress the analysis of the intoximeter test on the ground that his rights have been violated by the inability to examine the ascarite tube, and on the further ground that the tube, itself, was the best evi- dence and since it was destroyed by the State the State may not offer secondary evidence of the test. The results of the intoximeter tests are admissible in evidence in this State by reason of 11 Del. C., § 3507 authorizing the admission into evidence of a chemical analysis of the breath of any person in cases where the issue is whether such person was or was not under the influence of intoxicating liquor. Appellant does not argue, as of course he could not, that this analysis is inad- missible in evidence. The statute precludes that argument. He does argue that the State's failure to produce for his inspection one of the components has de- prived him of an important right-that of an opportunity to demonstrate, pos- sibly, the inaccuracy of the analysis. He cites several authorities in support of his argument that the failure to produce for inspection and analysis material, the character of which is in issue, is reversible error. Cf. state v. BramhaU, 63 S. 603, and an unreported case in the Federal District Court for Del:*iware, U.s. v. City Dressed Beef Co., Inc., Civil Action No. 1426. The authorities cited, however, are not in point, for in them it was possible to produce at least some of the material to be analyzed. In the case of intoximeter tests the material necessary to the making of the analysis is necessarily used up in the process. The only remaining element, the ascarite tube, furthermore sheds no meaningful light on the results since, by itself, it does not determine the final analysis. In the case before us it appears that the ascarite tube went out of the posses- sion of the State in accordance with the practice followed in several thousand such analyses before the appellant moved to produce for inspection. In our opinion the State has committed no error in disposing of an apparently useless tube in the absence of a request by the appellant to preserve it. Particularly is this so when chemical analysis of substances made by qualified chemists are as a matter of course received in evidence without the production in evidence of the substance itself. 2 Wharton's Criminal Evidence (11th Ed.), § § 788, 1002. We express no opinion, however, on what would result if timely application for inspection of the component parts had been made. Next, appellant argues that the ascarite tube was the best evidence of the result of the test, and that, therefore, the chemist's analysis should have been rejected. The answer to this contention is that, alone, the ascarite tube proves nothing with respect to blood alcohol content. The so-called Best Evidence Rule comes into play only when the secondary evidence offered, of itself, shows that better evidence exists of the fact sought to be proved. 1 Wharton's Criminal Evi- dence (11th Ed.), §~ 366, 387. Secondary evidence is excluded not .because it is necessarily inferior in probative quality, but because it, itself, presupposes that direct, primary evidence is held back. To state the rule is to show its inapplica- bility in this case. Finally, appellant argues that it was error to permit the State Chemist to testify in answer to a question as to whether or not in his experience he had seen any individual wih a 0.243 blood alcohol by weight reading who would not be under the influence of alcohol. Over the defense objection he answered that he had never found anyone wit.h a reading of 0.243 who was capable of oper- ating a motor vehicle. Appellant objects on the ground that the witness had not been qualified as an expert, and that the statute permits only the admission into evidence of the re- sults of the analysis without comment from the witness. We think the objection is without merit. Similar testimony has been given by qualified chemists in other jurisdictions and upheld oii appeal, even in trials before a jury which is not this case. Conrnmonwcaith v. Capalbo, 308 Mass. 376, 37 N.E. 2d 225; People v. Markham., 153 Cal. App. 2d. 260, 314 P. 2d 217; State v. Libby, 153 Me. 1, 133 A. 2d 877; State v. Cline, 339 P. 2d 657. And see 2 Whar- ton's Criminal Evidence (11th Ed.), § 1001. For the foregoing reasons, the conviction below is affirmed. PAGENO="0618" 612 AMENDMENTS TO CRIMINAL STATUTES OF D.C. STATE OF DF~AWARE, DELAWARE STATE Poraci~ HEADQUARTERS, Dover, Del., il,Tovember 1, 1961. Chief ROBERT V. MURRAY, Metropolitan Police Department,. Wasl~ington, D.C. DEAR Cnirr MtJRRAY: Enclosed is a COPY of the Uniform Arrest Act of the State of Delaware, including the history of the law and judicial opinions, which you requested. You will note that in section 1902, chapter 19 of title 11, the courts have up- held the constitutionality of the 2-hour detention period prior to arraignment for a specific charge or the release of a person without a charge being placed. You will note further that in a case of operating under the influence, the courts ruled that evidence obtained during the 2-hour period of detention was admissible; even though the person so charged was not arraigned at the conclu- sion of the 2-hour period but was held all night due to his intoxicated condition and arraigned the following morning. In section 1911, chapter 19, title 11, "Hearing Without Delay: Permissibl'~ Delay," you will note that a person not released at the conclusion of the 2-hour detention may be held for purposes of continued investigation for a period not greater than 24 hours following arrest, Sundays and holidays excluded. Further- more, the investigator, upon application to a resident judge of the county where he is detained or the county where the crime was committed, may request an additional period not to exceed 48 hours, which would give an investigator 72 hours, excluding Sundays and holidays, to complete his investigation after arrest but prior to arraignment. (This section of the statute has never been tested as to constitutionality.) However, all of our investigations, when necessary, are conducted under this provision of the statute. I sincerely hope that this information may assist your three-man committee in studying the problems of arrest and arraignment in your jurisdiction. If I can be of further assistance in any way, please feel free to call upon me. Sincerely yours, 3~OHN P. FERGUSON, ~S'vperind end en t. 11-DELAWARE LAWS, CHAPTER 19 SUBCHAPTER I. ARREST AND COMMITMENT Cross References Extradition, see section 2501 et seq. of this title. SEc. 1901. DEFINITIONS. As used in this subchapter- "Arrest" is the tak4ng of a person into custody in order that he may be forth- coming to answer for the commission of a crime; "Peace Officer" is any public officer authorized by law to make arrests in a criminal case. HISTORY AND SOURCE OF LAW DERIVATION: 48 Del. Laws, Cli. 30~ Code 1935, Sec. as covered by the general classification 5343-A. of crimes in section 101 of this title. RETIsIorc NOTE: 1951 AMENDMENT: Definitions of "felony" and "mis- 48 Del. Laws, Ch. 304, amended Code demeanor" were omitted from this 1935 by adding these provisions as sectipn. section 5343-A. SEC. 1902. QUESTIONING AND DETAINING SUSPECTS. (a) A peace officer may stop any person abroad who he has reasonable ground to suspect is committing, has committed, or is about to commit a crime, and may demand of hi~m his name, address, business abroad, and where lie is going. (b) Any person so questioned w-ho fails to identify himself or explain his actions to. the satisfaction of the officer may be detained and further questioned and investigated. (c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest PAGENO="0619" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 613 in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws. Ch. 304. Code 1935, 48 Del. Laws, Ch. 304, amended Code Sec. 5343-B. 1935 by adding these provisions as Section 5343-A. NOTES OF DECISIONS Arrest, acts as constituting 1 -. Sobriety test 2 Treatment of prisoner 3 7 Del. Code Ann.-19 1. Arrest, acts as constituting Where a uniformed officer merely approached defendant and asked him what he had a package, defendant was not thereby placed under arrest. Estate V. Gulezynski, 2 W.W. Harr. 120, 32 Del. 120, 120A.8 (1952). 2. Sobriety Test Action of state trooper who took defendant into custody following collision on highway in which defendant's automobile was involved, in insisting that defendant take sobriety test during first 2 hours, of defendant's detention was not a violation of defendant's constitutional privilege against self incrimina- tion, Del. Const. Art. I, Sec. 7, and evidence obtained as result of such tests was admissible in evidence against defendant in prosecution for operating motor vehicle while under influence of intoxicating liquor. Estate v. Smitlb, 91 A. 2d, 188 (1952) Where defendant was taken into custody by state trooper after collision occurred on highway in which defendant's automobile was involved and during first 2 hours of detention defendant submitted voluntarily to sobriety test, fact that defendant was not formally placed under arrest for operating motor vehicle while under influence of intoxicating liquor until following morning, notwith- standing statutory requirement that at end of 2-hour detention of person who fails to identify himself or explain his actions to satisfaction of peace officer who has reasonable grounds to believe such person has committed a crime such person should be arrested and charged, did not render inadmissible evidence relating to results of sobriety tests. Id. 3. Treatment of prisoner. Any cruel or unnecessary exposure of a prisoner to cold, or deprivation of suitable clothing or covering, while in the custody of the officer arresting him, is unlawful, rendering the officer liable. Petit v. Colmary, 4 Penn. 266, 20 Del. 266, 55 A. 344 (1903). SUPPLEMENTARY INDEX TO NOTES Constitutionality 1/2 Peace officers, who are 4 Reasonable grounds 5 1/2. Constitutionality This section, which permits a peace officer to stop any person who peace officer has "reasonable ground to suspect" has committed a crime, is constitu- tional, and is not void because it permits police officer to stop any person who peace officer has "reasonable ground to suspect" has committed a crime, as distinguished from detaining on "reasonable ground to believe", since words "suspect" and "believe" are equivalents in context of the statute. De Salvatore v. State, 163 A. 2d.,244 (1960). 1. Arrest, acts as constituting Where, in criminal proceeding, evidence was sufficient to establish that offi- cers bad not stopped defendant to demand his name, address, business abroad, and destination but had taken him at once to the police station, officers' taking of defendant in custody constituted an "arrest" within this section, and, there- fore, defendant's detention beyond 2-hour period was lawful, and statement PAGENO="0620" 614 AMENDMENTS TO CRIMINAL STATUTES OF D.C. made during such detention was admissible in subsequent criminal proceeding. Wilson v. state, 10 Terry 37, 49 Del. 37, 109 A. 2d 381 (1954), Certiorari denied 755. Ct. 574,348, U.S. 983,99 L. Ed. 765. Fact that defendant was under arrest at time he made statements to police officers would not, in itself, operate to exclude such statement in subsequent criminal proceeding nor would delay in placing formal charge against defendant necessarily exclude it, but this was circumstance which court and jury should consider in determining whether statement was voluntary. Id. Defendant's arrest upon reasonable suspicion of felony of rape was legal. Id. 4. Peace officers, who are Constables, and thus Delaware Memorial Bridge Guards, known generally to the community as Bridge Police, are "peace officers" within meaning of this section authorizing a "peace officer" to detain for investigation for a period of not in excess of 2 hours any person reasonably suspected of having committed a crime, and at the end of that time either release him or arrest him and charge him with a crime. Dc Ralvatore v. state, 163 A. 2d 244 (1960). 5. Reasonable grounds Where Delaware Memorial Bridge Guards, known generally to the commu- nity as Bridge Police, noticed automobile cross grass plot dividing north and south lanes at Route 13 at point where there was no legal crossover, and auto- mobile was then driven by defendant to a parking lot immediately to south of Basin Road overpass and was stopped, and when defendant got out of automo- bile he appeared unsteady while on his feet and he emitted odor of alcohol, and he fumbled in finding his registration and license, and he admitted having some beer to drink, officers had "reasonable ground to suspect" defendant within meaning of this section permitting a peace officer to stop any person who peace officer has "reasonable ground to suspect" has committed a crime. Dc Saivatore v. ~tatc, 162 A-2d 244 (1960). SEc. 1903. SEARCHING QUE5TI0Nun PERsoN FOR WEAPON A peace officer may search for a dangerous weapon any person whom he has stopped or detained to question as provided in section 1902 of this title, when- ever he has reasonable ground to believe that he is in danger if the person possesses a dangerous weapon. If the officer finds a weapon, he may take and keep it until the completion of the questioning, when he shall either return it or arrest the person. The arrest may be for the illegal possession of the weapon. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, 304. Code 1935, Sec. 48 Del. Laws, Oh. 304, amended Code 5343-C. 1935 by adding these provisions as sec- tion 5343-C. SEC. 1904. PunMIssmr~u FORCE FOR ARREST (a) No unreasonable force or means of restraint shall be used in detaining or arresting any person. (b) A peace officer who is making an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall he be deemed an aggressor or lose his right to self- defense by the use of reasonable force to effect an arrest. (c) A peace officer, who has reasonable ground to believe that the person to be arrested has committed a felony, is justified in using suchforce as may be necessary to effect an arrest, to prevent escape, or to overcome resistance only when- (1) There is no other apparently possible means of making the arrest or preventing escape; and (2) The officer has made every reasonable effort to advise the person that he is a peace officer and is making an arrest. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, Oh. 304. Code 1935, 48 Del. Laws, Oh. 304, amended Code Sec. 5343-P. 1935 by adding these provisions as see- tion 5343-P. PAGENO="0621" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 615 NOTES OF DECISIONS Oonduct of officer 3 Degree of force 2 Duty of officer 1 See, also, Notes of Decisions under section 1905 of this title. 1. Duty of officer it is the duty of a constable to execute a warrant of arrest in a lawful manner, and, when acting as a peace officer, he must not commit a trespass by exceeding his authority. Petit v. Colmary, 4 Penn. 266, 20 Del. 266, 55 A. 344 (1903). 2. Degree of force If officer shot by accused at the time he attempted to arrest accused had good grounds to suspect that accused had committed a felony, he had authority to make the arrest, and for that purpose had the right to enter accused's home iii a peaceable manner and use as much force as was reasonably necessary to effect the arrest, and accused had no right to resist, provided he had good reason to know that officer was a peace officer and was given to understand that he was under arrest. L~t ate v. Price, 7 Boyce, 544, 30 Del. 544 108 A. 385 (1919). A peace officer may use whatsoever force is reasonably necessary to prevent the escape or secure the arrest of any person he may find engaged in a breach of the peace or any criminal offense, but he must use no more force and violence than is reasonably necessary to secure the arrest and to convey him to a place of custody~ ~9tate v. Mills, 6 Penn. 497, 22 Del. 497, 69 A. 841 (1908). An officer in the discharge of a public duty may, if attacked by another, avail himself of the law of self-defense in the same manner as any other person, using such force as may be necessary to protect himself. Petit v. Colmary, 4 Penn. 266,20 Del. 266, 55 A. 344 (1903). The amount of force which a police officer may lawfully use in making an arrest is so much as is necessary to effect the arrest, and no more and when he uses more force than the occasion calls for, he is guilty of an assault and battery. state v. Mahon, 3 Harr. 568, 3 Del., 568 (1840). 3. Conduct of officer The conduct of a peace officer under a mistake of power or of propriety should not be severely punishable if there was an absence of malicious or reckless pur- pose. state v. Lafferty, 5 Har. 491, 5 Del. 491 (1854). Suci. 1905. REsIsTING ARREST If a person has reasonable ground to believe that he is being arrested by a peace officer, he shall refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for arrest. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, Oh. 304. Code 1935, 48 Del. Laws, Oh. 304, amended Code Sec. 5343-E. 1935, by adding these provisions as sec- tion 5343-E. NOTES OF DECISIONS See, also, Notes of Decisions under section 1904 of this title. 1. Unreasonable force or violence of officer If a public officer uses more force than is necessary to make an arrest, he is liable for assault, and the person arrested may in self-defense use such force as is necessary to repel the attack; but, if the force used be from motives of revenge, the person offending is guilty of assault and battery, State v. Wyatt, 4 Boyce, 473, 27 Del. 473, 89A. 217 (1913). Where an officer is resisted in making an arrest, and in retaliation uses more force than is reasonably necessary to effect the arrest, it is unlawful. Petit v. (Jolmary, 4 Penn. 266, 20 Del. 266, 55 A., 344 (1903). Although one was arrested with unlawful violence in the first instance, yet if he submitted to the arrest, and afterwards, while in the peaceful custody of the officer, forcibly attacked the officer, such attack was a resistance of a peace officer. State v. Dennis, 2 Mar-v., 433, 16 Del. 433, 2 Hardesty, 184, 43 A. 261 (1895). PAGENO="0622" 616 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Though a peace officer use unreasonable force in making an arrest, yet if the person assaulted resist, not in self-defense, but with intent of resisting arrest, he is guilty of an offense. Id. One may repel unreasonable violence used by a peace officer in arresting him by such force only as is reasonably necessary to repel it. Id. If an officer in arresting a prisoner in the first instance uses undue violence, the prisoner may, in self-defense, use so much force as is necessary to repel it, and no more. Id. SEC. 1906. ARREST WITHOUT WARRANT (a) An arrest by a peace officer without a warrant for a misdemeanor is law- ful whenever he has reasonable ground to believe that the person to be arrested has committed a misdemeanor- (1) in his presence; or (2) out of his presence and without the State, and if Law enforcement officers of the state where the misdemeanor was committed request an arrest and the accused will not be apprehended unless immediately~ arrested. (b) An arrest by a peace officer without a warrant for a felony, whether com- mitted within or without the State is lawful whenever- (1) he has reasonable ground to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed; or (2) a felony has been committed by the person to be arrested although before making the arrest the officer had no reasonable ground to believe the person committed it. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, Ch. 304. Code 1935, 48 Del. Laws, Ch. 304, amended Code Sec. 5343-F. 1935, by adding these provisions as sec- tion 5343-F. CROSS REFERENCES Arrest, see section 701 of Title 21, Motor Vehicles. Intoxicated persons, arrest with or without warrant; see section 611 of this title. NOTES OF DECISIONS Generally 2 . Intoxicated persons 7 Breach of peace 5 Justification for ai'rest 8 Common law 1 Presence of officer 3 Disorderly persons 6 Reasonable grounds 4 1. Common law At common law, peace officers had authority to arrest without warrant on reasonable suspicion that felony had been committed. Rickard$ v. State, 77, A.2d. 199 (1951). 2. Generally Where one person arrested another without a warrant it was at his own peril. State v. Clark, 2 Del. CAS. 210 (1804). 3. Presence of officer The words "in his presence," as used in connection with an officer's authority to make an arrest without a warrant for an offense committed "in his presence," cannot be construed technically or strictly; it being sufficient to justify an arrest if the officer knows the offense was committed, which knowledge he may obtain, not only by seeing but by accused's admissions before arrest. State v. Gulezyn- ski, 2 W.W. Harr. 120, 32 Del. 120, 120 A.88 (1922). An arrest without warrant being valid if for an offense committed in the of- ficer's presence or view, where accused upon being accosted by an officer and asked what he had in a package, finally replied "liquor, two gallons," his subse- quent arrest was valid. Id. A pojice officer may, without a warrant, arrest a person whom he finds engaged in a breach of the peace or any criminal offense within his view or within his hearing. State v. Mills, 6 Penn. 497, 22 Del. 497, 69 A. 841 (1908). See, also State v. Wyatt, 4 Boyce, 47389 A. 217 (1913). PAGENO="0623" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 617 An arrest by an officer without a warrant can only be made where the offense is committed in his presence and view, and at the time of its commission or in the immediate pursuit of the offender. Marshall v. Cleaver, 4 Penn. 450, 20 DeL 450, 56A. 380 (1903). A peace officer may arrest a person without warrant for an offense committed in his presence and view, for which he would have a right to make the arrest with a warrant if committed out of his presence. Id. An arrest for a breach of peace cannot be legally made without a warrant, if not committed in the presence of the officer making the arrest. State V. Crocker, 1 Roust. Cr.Cas. 434 (1874). 4. Reasonable grounds An officer needs no warrant to make an arrest, if he has reasonable cause to suspect a felony has been committed. State v Price, 7 Boyce, 544, 30 Del. 544, 108, A. 385 (1919). The burden is on an officer to show that there was reasonable ground for an arrest made without warrant, and, if he fails to make such showing, he will be liable for false imprisonment. Marshall v. Cleaver, 4 Penn. 450, 20 Del. 450, 56, A.380 (1903). A peace officer, such as a constable or sheriff may arrest, even without a war- rant, one concerned in a breach of the peace or other crime or when he has rea- sonable grounds to suspect the person of such offense. Stcte v. Bro~n~ 5 Har. 505, 5 Del. 505 (1854). 5. Breach of peace A public peace officer may arrest without a warrant any person found engaged or involved in a breach of the peace. State V. Dcanis, 2 Hardesty, 184, 2 Mary. 433, 16 Del. 433, 43 A. 261 (1805). 6. Disorderly persons A constable or police officer of a city may arrest at his own instance, without a warrant, one who is shouting and making a noise at a late hour of the night. State v. Russell, 1 bust. Cr. Cas. 122 (1862). 7. Intoxicated persons 14 Del. Laws, c. 418, Sec. 16 `(section 611 of this title), expressly authorized the arrest, with~ut warrant, of any person found drunk or excited by liquor, and noisy, in the street, highway or other public place of the county. Marshall v. `Cleaver, 2 Penn. 450, 20 Del. 450, 56 A. 380 (1903). A peace officer is justified in arresting and imprisoning without warrant, one whom be finds drunk on the streets, or engaged in or threatening a breach of the peace, or who commits an assault on him without just cause. Id. Where Delaware Memorial Bridge~ Guards, known generally to the com- munity as BridgePolice, noticed automobile cross grass plot dividing north and south lanes of Route 13 at point where there was no legal crossover, and auto- mobile was then driven by defendant to a parking lot immediately to south of Basin Road overpass and was stopped, and when defendant got out of a~nto- mobile he appeared unsteady while on his feet, and he emitted the odor of al- cohol, and he fumbled in finding his registration and license, and he admitted having some beer to drink, officers could, have arrested the defendant under this section dealing with arrests for crime. Dc Salvatore v. State, 163, A. 24 244 (1960). 8. Justification for arrest If no felony had been committed before the arrest, it was no justification that the person arresting was an officer. State v. Clark, 2 Del. Cas. 210 (1804). SEC. 1907. VALIDITY OF ARREST ON IMPROPER GROUNDS If a lawful cause of arrest exists, the arrest is lawful even though the officer charges the wrong offense or gives a reason that does not justify the arrest. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, Ch. 304. Code 1935, 48 Del. Laws, Ch. 304, amended Code Sec. 5343-G. 1935 by adding these provisions `as sec- tion 5343-G. PAGENO="0624" 618 AMENDMENTS TO CRIMINAL STATUTES OF D.C. NOTES OF DECISIONS 1. Generally Court, in a criminal action, will not inquire into the method by which de- fendant is brought before it, since proper tribunals and adequate laws exist for determining responsibility and liability of those who, in mistaken zeal, may willfully or ignorantly exceed their authority in making arrests. State v. Moore, 4 Terry 509. 43 Del. 509, 50 A.2d 791 (1947). SEC. 1908. PossEssioN AND DISPLAY OF WARRANT An arrest by a peace officer acting under a warrant is lawful even though the officer does not have the warrant in his possession at the time of the arrest, but, if the person arrested so requests. the warrant shall be shown to him as soon as practicable. HISTORY AND SOURCE OF LAW DERIvATION: 1951 AMENDMENT: 48 Del. Laws, Ch. 304, Code 1935, Sec. 48 Del. Laws, Ch. 304, amended Code 5343-H. 1935 by adding these provisions as sec- tion 5343-H. SEC. 1909. Su~n~roNs INSTEAD OF ARREST; FORM; PENALTY FOR NONAPPEARANCE (a) In any case in which it is lawful for a peace officer to arrest without a warrant a person for misdemeanor, he may, but need not, give him a written summons. (See sample attached.) (b) If the person fails to appear in answer to the summons or if there is rea- sonable cause to believe that he will not appear, a warrant for his arrest may issue. (c) Whoever willfully fails to appear in answer to the summons may be fined not more than $1~X~ or imprisoned for not more than 30 days or both. HI5TORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, Ch. 304. Code 193.5, 48 Del. Laws, Ch. 304, amended Code Sec. 5343-I. 1935 by adding these provisions as sec- tion 5343-I. SEC. 1910. REI~AsE OF PERSON ARRESTED WITHOUT WARRANT (a) Any officer in charge of a police department or any officer delegated by him may release, instead of taking before a magistrate, any person who has been arrested without a warrant by an officer of his department whenever- (1) He is satisfied either that there is no ground for making a criminal complaint against the person or that the person was arrested for drunkenness and no further proceedings are desirable; or (2) The person was arrested for a misdemeanor and has signed an agree- ment to appear in court at a time designated, if the officer is satisfied that the person is a resident of the State and will appear in court at the time designated. (b) A person released as provided in this section shall have no right to sue on the ground that he was released without being brought before a magistrate. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, ch. 304. Code 1935. sec. 48 Del. Laws, ch. 304, amended code 5343-J. 1935 by adding these provisions as see. 5343-J. SEC. 1911. HEARING WITHOUT DELAY; PERMISSIBLE DELAY If not otherwise released, every person arrested shall be brought before a magistrate without unreasonable delay, and in any event he shall, if possible, be so brought within 24 hours of arrest, Sunday and holidays excluded, unless a resident judge of the county where he is detained or of the county where the crime was committed for good cause shown orders that he be held for a further period of not exceeding 48 hours. PAGENO="0625" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 619 HISTORY AND SOURCE OF LAW DERIvATIoN: 1951 AMENDMENT: 48 Del. Laws, cli. 304. Code 1935, sec. 48 Del. Laws, ch. 304, amended code 5343-K. 1935 by adding these provisions as see. 5343-K. NOTES OF DECISIONS Defendant in custody 1 1. Defendant in custody In murder prosecution, where defendant was already in prison serving a sen- tence for another offense when he was taken from the prison to police head- quarters for questioning about the homicide, failure of the police to bring the defendant before a magistrate within 24 hours was not a violation of criminal rule 5(a) of the Superior Court Rules and of this section, since they do not apply to a case in which defendant is already in custody. Garner v. State, 1 Storey 301, 145 A. 2d 68 (1958). SEC. 1912. IDENTIFICATION OF WITNESS Whenever a peace officer has reasonable ground to believe that a crime has been committed, he may stop any person who he has reasonable ground to believe was present thereat and may demand of him his name and address. If the person fails to identify himself to the satisfaction of the officer, he may take tile person forthwith before a magistrate. If the person fails to identify himself to the satisfaction of the magistrate, the latter may require him to furnish bond or may commit him to jail until he so identifies himself. HISTORY AND SOURCE OF LAW DERIVATION: 1951 AMENDMENT: 48 Del. Laws, ch. 304. Code 1935, sec. 48 Del. Laws, ch. 304, amended code 5343-L. 1935, by adding these provisions as sec. 5343-L. Crrv AND COUNTY OF DENVER, DEPARTMENT OF POLICE, Denver, Cola., June 7, 1961. ROBERT V. MURRAY, Chief of Police, Metropolitan Police Depertment, Government of the District of Columbia, Washington, D.C. D1~R SIR: In reply to your letter of April 4, 1961, enclosed please find a brief manual on the laws of arrest hi the State of Colorado. Investigation arrests are permitted in our jurisdiction under a reasonable time rule. The "reasonable time" is dependent upon the type of case and circum- stances. Confessions must be voluntary, and the district attorney must prove that the confession was voluntarily given by the defendant without the use of force, threats, promises, or other inducements. A confession which was Voluntarily made is not inadmissible because the defendant was not informed his confession might be used against him, or because he was in police custody at the time, or because there was a delay between the arrest and the time of the confession, or because the defendant was not represented by an attorney, or because his friends and family were not allowed to see him until after the confession, or because he was accused of the crime charged and other offenses. See Cahill v. People, III Cob. 29, 38-39. We are given considerable latitude on length cif interrogation. In Downey v. People, 121 Cob. 307, at page 318, the Colorado Supreme Court said: "We hold that the law enforcement officers of the State in their effort to solve a murder case, in the interest of justice, must have a reasonable latitude in arresting and questioning one justifiably suspected of being the murderer, and 2~-260 O-64-pt. 1-40 PAGENO="0626" 620 AMENDMENTS TO CRIMINAL STATDTES OF D.C. if in so doing the investigating authorities give proper consideration to the comfort and well-being of the suspect person, and conduct themselves in a man- ner free from threats, promises, or mistreatment of the suspect, a confession thus secured may be received in evidence, even though it was the result of several extended periods of interrogation of the accused." The periods of interrogation referred to were these: On one day the suspect was taken on a trip to the scene of the crime and was questioned. This took 3 hours. The next day he was questioned for 6 hours and 45 minutes, as follows: ii a.m. to 12 noon; 2 to 3 p.m.; 4 to 6:15 p.m.; and 8 to 10:30 p.m. After 10:30 p.m., the accused talked. to one officer for an hour or so. On the following afternoon he confessed. On voluntariness of confession, see Bruner v. People, 113 Cob. 194. On information obtained from involuntary confessions, see Osbern v. People, 83 Cob. 4, 28. On compulsory submission, see Block v. People, 125 Cob. 136. We also suggest you see our Habeas Corpus Act, Colorado Revised Statutes 1953, 65-i-i, 65-1-3. In the case of an individual held for investigation and released without formal charge there is no special procedure other than his release from custody. If we can be of any further assistance, please call on us. Very truly yours, JAMES E. CHILDERS, Chief of Police. By W. G. NELSON, Division Chief, Commanding, C~riminai Investigation~s. PoLIcE DEPARTMENT, CITY AND COUNTY OF SAN FRANcISCO, ~an Francisco, Calif., April 14, 1D61. ROBERT, V. MURRAY, Chief of Police, Metropolitan Police Department, - District of Columbia, Washington, D.C. DEAR CHIEF MURRAY: The following sections I believe are pertinent to your inquiry and are quoted verbatim from the Penal Code of the State of Califoimia: SEc. 821: MAGISTRATE BEFORE WHo~f DEFENDANT ARRESTED FOR FELONY To BE TAKEN: DEFENDANT ARRESTED IN ANOTHER COUNTY. If the offense charged is a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate of the same county, as provided in Section 824. If the defendant is arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit him to bail in the amount specified in the endorsement referred to in Section 8i5a, and direct the defendant to appear before the court or magis- trate by whom the warrant was issued on or before a day certain which shall in no case be more than 10 days after such admittance to bail. If bail be forthwith given, the magistrate shall take the same and endorse thereon a memorandum of the aforesaid order for the appearance of the defendant. If the warrant on which the defendant is arrested in anothercounty does not have ball set thereon, or if the defendant arrested in another county does not require the arresting officer to take him before a magistrate in that county for the purpose of being admitted to ball, or if such defendant, after being admitted to bail, does not forthwith give ball, the arresting officer shall immediately notify the law enforcement agency requesting the arrest in the county in which the warrant was issued that such defendant is in custody, and thereafter such law enforcement agency shall take custody of such defendant within 5 days in the county in which he was arrested and shall take such defendant before the magistrate who issued the warrant, or before some other magistrate of the same county. SEC. 822: DISPOSITION OF PERSON ARRESTED ON MISDEMEANOR CHARGE WHILE IN ANOrHER COUNTY: ADMISSION TO Biu~: FIXATION OF TIME AND PLACE FOR APPEAR- ANCE. If the offense charged is a misdemeanor, and the defendant is arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit him to bail in the PAGENO="0627" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 621 amount specified in the endorsement referred to in Section 815a, and direct the defendant to appear before the court or magistrate by whom the warrant was issued on or before a day certain which shall in no ease be more than 10 days after such admittance to bail. If bail be forthwith given, the magistrate shall take the same and endorse thereon a memorandum of the aforesaid order for the appearance of the defendant. SEC. 825: TIME WITHIN WHICH DEFENDANT MUST BE TAKEN BEFORE MAGI5-. TRATE: ATTORNEY MAY VISIT PRIsONER: REFUSAL To PERMIT VISIT A Mis- DEMEANOR FORFEITURE FOR REFUSAL AND RECOVERY THEREOF. The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 2 days after his arrest, excluding Sundays and holidays; and after such arrest, any attorney at law entitled to practice in the courts of record of California, may at the request of the prisoner or any relative of such prisoner, visit the person so arrested. Any officer having charge of the prisoner so arrested who willfully refuses or neglects to allow such attorney to visit a prisoner is guilty of a misdemeanOr. Any officer having a prisoner in charge, who refuses to allow any attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of five kiundred dollars, to be recovered by action in any court of competent jurisdiction. SEC. 836: ARRESTS BY PEACE OFFICERS: ARREST UNDER WARRANT OR WITHOUT WAmwrr. A peace officer may make an arrest in obedience to a warrant, or may without a warrant, arrest a person; 1. Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. 2. When a person arrested has committed a felony, although not in his presence. 3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed. SEC. 842. NECESSITY THAT WARRANT BE IN POSSESSION OF ARRESTING OFFICER: WARRANT MUST BE SHOWN, WHEN. An arrest by a peace officer acting under a warrant is lawful even though the officer does not have the warrant in his posses- sion at the time of the arrest, but if the person arrested so requests it, the war- rant shall be shown to him as soon as practicable. SEC. 847: DUTY OF PRIVATE PERSON MAKING ARREST To TAKE PRISONER BEFORE MAGISTRATE OR DELIVER TO PEACE OFFICER. When peace officer not liable for false arrest or false imprisonment. A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him to a peace officer. There shall be no civil liability on the part of and no cause of action shall arise against any peace officer, acting within the scope of his authority, for false arrest or false imprisonment arising out of any arrest when- (a) Such arrest was lawful or when such peace officer, at the time of such arrest, had reasonable cause to believe such arrest was lawful; or (b) When such arrest was made pursuant to a charge made, upon reasonable cause, of the commission of a felony by the person to be arrested; or (c) When such arrest was made pursuant to the requirements of Penal Code Sections 142, 838 or 839. SEC. 849: ARREST WITHOUT WARRANT: PERSON ARRESTED To BE TAKEN BEFORE NEAREST MAGISTRATE: COMPLAINT To BE LAID: RIGHT OF PEACE OFFICER To RELEASE PERSON ARRESTED FROM CUSTODY. (a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person must be laid before such magistrate. (b) Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: (1) He is satisfied that there is no ground for making a criminal complaint against the person arrested. Any record of such arrest shall include a record of the release hereunder and thereafter shall not be deemed an arrest but a detention only. (2) The person arre~ted was arrested for intoxication only, and no further proceedings are desirable. PAGENO="0628" 622 AMENDMENTS TO CRIMINAL STATUTES OF D.C. (3) The person arrested was arrested for a misdemeanor, and has signed an agreement to appear in court or before a magistrate at a place and time desig- nated, as provided in this code. In a legal interpretation of the above-described section 825, it was held that this section, which declares that a defendant "must in all cases be taken before the magistrate without unnecessary delay, and, in any event, 2 days after his arrest, excluding Sundays and holidays," does not authorize 2-day detention in all cases, but places a limit on what may be considered necessary delay, and detention of less than 2 days, if unreasonable under the circumstances, is a violation of the statute. It has been generally held in this State that where the arrest is lawful, sub- sequent unreasonable delay in taking the person before the magistrate does not affect the legality of the arrest, although it could well subject the offending person to liability for so much of imprisonment as occurs after a period of necessary or reasonable delay. I trust the foregoing will be of some assistance to you. Very truly yours, THoirAs J. CAHILL, Chief of Police. LANSING POLICE, Lansing, Mich., April 11, 1961. Chief ROBERT V. MURRAY. Metropolitan Police Department, Washington, D.C. DEAR CHIEF MURRAY: Reference is made to your inquiry of April 4 concerning arrests and arraignments of persons apprehended by this department. The procedure which we follow can be found in section 157, "Arrest by Peace Officer Without Warrant," Michigan Criminal Law and Procedure, by Gillespie. There is no set time that a subject can be held; however, it must be reasonable. Sincerely yours, PAUL TAYLOR, Chief of Police. POLICE DEPARTMENT. CITY OF NEw YORK. New York, N.Y., March 27, 1961. EDGAR E. SCOTT, Depvty Chief of Police, Chief of Detectives. Metropolitan. Police Department, Washington, D.C. DEAR MR. Scorr: Your communication addressed to the police commissioner relative to the holding of persons for investigation or on suspicion of a crime has been referred to the undersigned for reply. Please be advised that there is no statutory authority in this State to hold a person for any period of time for investigation or on suspicion of a crime. Section 177 of the Code of Criminal Procedure outlines the broad powers of arrest by a peace officer without a warrant and should be of assistance in answering your queries. Section 177. In what cases allow-ed: A peace officer may, without a warrant, arrest a person- 1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has in fact been committed, and be has reasonable cause for believing the person to be arrested to have coninutted it; 4. When he has reasonable cause for believing that a felony has been committed and that the person arrested has committed it, though it should afterward appear that no felony has been committed, or, if committed, that the person arrested did not commit it; 5. When he has reasonable cause for believing that a person has been legally arrested by a citizen as provided in sections 185, 186, and 187 of this code. I trust this information will be of assistance to you. Very truly yours, LEONARD E. REISMAN, Deputy Conunissioner in Charge of Legal Matters. PAGENO="0629" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 623 SYNOPSIS OF COURT CASES PERTINENT TO MALLORY RULE Anonymous v. Baker (360 U.S. 287 (1959)) Qpestion: Whether due process clause of 14th amendment requires presence of counsel in hearing room with witnesses summoned in State judicial inquiry into improper practices at the bar. Brooklyn Bar Association presented petition charging ambulance chasing and other unethical practices by local bar; N.Y. State Supreme Court ordered an investigation. Justice Baker presided. Appellants were private investigators, not lawyers; subpenaed to testify, appeared with counsel. Justice Baker told appellants counsel not allowed in hearing room, but appellants would be free to leave room to consult counsel at any point. For that reason appellants refused to testify. Convicted of contempt. Appellants Division affirmed; N.Y. Court of Appeals dismissed appeals. U.S.S.C. treated appeal as cert. petition. Held: Affirmed. Weaker claim of denial due process than Groban, since judge conducted investigation and allowed free right of consultation of counsel. Doesn't matter that appellants might have been prosecuted as result of investigation. Dissent (Warren, Black, Douglas, Brennan) : Reaffirms dissenting view in Gro ban. IN RE GROBAN (352 U.S. 330 (1957)) Question was whether appellants had right, under due process clause of 14th amendment, to have counsel present in giving of testimony in fire marshal's investigation. Fire nmarshal investigating fire on premises of appellants, subpenaed appellant to appear. Refused to permit counsel to attend under authority of Ohio Code. Appellants declined to testify without counsel present. Under Ohio Code, fire marshal committed appellant to county jail until willing to comply. Habeas corpus denied - affirmed by Ohio Supreme Court. Held: Affirmed (5-4 vote, opinion by Reed). No more right to presence of counsel in fire marshal's hearing than in grand jury. Privilege of silence is protection of witness. Presence of counsel might encumber proceeding - State code not contrary to fundamental liberty and justice. Dissent: (Black, Warren, Douglas, Brennan.) Due process requires attendance of counsel at secret inquisition which holds possibility of incrimination of witness or citation for contempt. Tow~ A. COLEMAN V. UNITED STATES (317 F. 2D 891 (4-19-63)) Conviction on housebreaking count 7 affirmed. Conviction on housebreaking counts 1-6 reversed. (JJ. Danaher (writing), Burger, (Washington dissenting as to count 7).) 12 :25 a.m.-Defendant seen by police standing by store dOor, padlock broken, defendant carrying tire iron. Defendant claimed waiting for a friend, carrying tire iron for protection. 12 :30 a.m.-Defendant arrested at scene for housebreaking (count 7). De- fendant taken to precinct. 1 :00 a.m.-Two detectives sent from headquarters to interrogate defendant, questioning commenced. Defendant denied complicity in house- breaking (count 7). Detectives went back to store, got samples of paint and wood chips from door. Returned to defendant and told him laboratory test woiild compare samples with particles on tire iron. 1 :45 a.m. (approx.)-Defendant admitted guilt (count 7). 1:45-3:00 a.m.-Defendant questioned as to other unsolved housebreakings. 3 :00 am. (approx.)-Defendant admitted guilt in other cases (counts 1-6). 3:00-3:30 am-Defendant accompanied police to scene of other cases (counts 1-6). 3 :30-4:45 a.m.-Transcription of confession as to counts 1-6. 10 :00 a.m.-Defendant presented to magistrate. PAGENO="0630" 624 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Oral confession (count 7) and written confession (counts 1-6) received at trial. Held: Interrogation on count 7 was permissible, since delay for questioning was brief and purpose was not to get self-incriminating statements, but to check defendant's story against independent evidence (paint samples). Interrogation on counts 1-0 not permissible, since (a) enough evidence on count 7 to charge and present defendant promptly; (b) no evidence on counts 1-6 except subsequent confession; (C) purpose of delay on 1-6 was to build case from nuthing by interrogation; and (d) delay was protracted. CHARLES S. COLEMAN V. UNITED STATES (313 F. 2d 576 (12-20-62) .-Conviction for robbery and murder reversed. JJ. Edgerton (writing), Washington, Bastian (dissenting) Police questioned Coleman numerous times without arrest1 prior to date of arrest, 1-17-61 (following times on that date). 6:45 p.m.-Police arrested defendant, took him to police station and locked him up. 7:30-8:00 p.m.-Police interrogated defendant-non-incriminatory statements. 8:00-8:45 p.m.-Defendant locked up again. 8:45-8:50 p.m.-Further questioning; oral confession given by defendant. 9:10-10:50 p.m.-Coufession transcribed. 10:50 p.m.-Defendant booked. 10:00 a.m. (following day)-Defendant before magistrate. Oral and written confessions received at trial. Held: Unnecessary delay (court does not say what portion of delay was permissible), error to admit both confessions. Defendant should have been brought before magistrate instead of interrogated, no matter what hour. If magistrate is unavailable, questioning is still not permissible. UNITED STATES V. JAMES J. JONES (D.C.D.C. Crim. No. 366~-63, tried 7-22-63 before Wright, J.) Obarges: assault with dangerous weapon, assault with intent to kill, robbery, carrying concealed weapon. 10:45 a.m.-Defendant arrested on warrant. 10:55 a.m.-Defendant arrived precinct No. 3 with arresting officer. 11:00 a.m.-Detective started to question defendant. Defendant immediately confessed shooting, denied robbery. Oral confession offered at trial. No objection by defense counsel. Judge asked if it was necessary to take defendant to precinct, since warrant ap- parently valid. Government stated it was necessary after arrest to book defend- ant, fingerprint him and prepare lineup sheet. Judge asked defense counsel if he objected. Counsel did and confession excluded. Defendant found guilty of assault with dangerous weapon, not guilty on others. PAGENO="0631" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 625 TEXT OF CERTAIN CASES DECIDED BY THE U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT DURHAM V. UNITED STATES. No. 11859. United States Court of Appeals District of Columbia Circuit. Argued March 19, 1954. Decided July 1, 1954. Petition for Rehearing In Bane Denied Sept. 10, 1954. From judgment of the United States District Court for the District of Columbia, Alexander Holtzoff, J., con- victing the defendant of housebreaking after trial without a jury, the defendant appealed. The Court of Appeals, Baze- ion, Circuit Judge, adopting a new test of criminal responsibility, held that if defendant's unlawful act was the product of mental disease or mental defect, he was not criminally responsible. Reversed and remanded for new trial. 1. Criminal Law d~625 In prosecution for housebreaking, trial court's acceptance of waiver of pretrial lunacy hearing from defendant who stated he needed hospitalization and whose testimony showed confusion was error notwithstanding certification from acting superintendent of mental hospital that defendant was mentally competent to stand trial. D.C.Code 1951, §~ 22- 1801, 22-2201, 22-2202, 24-301. 2. Criminal Law ~331 In prosecution for housebreaking, psychiatrist's opinion that defendant had been of unsound mind on date when crime was committed was sufficient to satisfy "some evidence" test and there- by to shift to prosecution the burden of proving defendant's sanity, though psy- chiatrist could not state categorically that defendant had not known right from wrong. D.C.Code 1951, §~ 22- 1801, 22-2201, 22-2202, 24-301. 3. Criminal Law ~1168(1) Trial court's erroneous holding that there was no evidence of alleged house- breaker's mental state as of date when crime was committed, and that presump- tion of sanity therefore prevailed, was prejudicial and required reversal. D.C. Code 1951, § 24-301. 4. Criminal Law ~311, 331 When lack of mental capacity is raised as a defense to a charge of crime, the law presumes that the defendant is sane, but as soon as some evidence of mental disorder is introduced, sanity must be proved beyond a reasonable doubt as part of prosecution's case. D. C.Code 1951, § 24-301. 5. Criminal Law ~623 When issue of insanity is raised by introduction of "some evidence" so that presumption of sanity is no longer ab- solute, trier of fact must weigh the whole evidence, including that supplied Reprinted from 214 Federal Reporter, Second Series, No. 6. Copyright 1954 by West Publishing Company. PAGENO="0632" 626 AMENDMENTS TO CRIMINAL STATUTES OF D.C. by the presumption of sanity, on the is- sue of capacity in law of accused to commit the crime, and failure so to weigh the whole evidence on such issue is reversible error. D.C.Code 1951, § 24-301. 6. Common Law ~14 Former common law followed where changes have made it obsolete. 7. Criminal Law ~48 In District of Columbia, formula- tion of tests of criminal responsibility is entrusted to the courts, and they may adopt changes in such tests retroactive- ly. D.C.Code 1951, § 24-301. 8. Common Law ~10 Common-law procedure in all mat- ters relating to crime continues in force except where supplanted by special stat- utory provisions. 9. CrIminal Law ~48 An accused is not criminally respon- sible if his unlawful act was product of mental disease or mental defect. D.C. Code 1951, § 24-301. 10. Criminal Law ~48 Term "disease", as used in rule that an accused is not~ criminally respon- sible if his unlawful act was product of mental disease or mental defect, means condition which is considered capable of either improving or deteriorating, and term "defect" as so used means condi- tion which is ~hot considered capable of improving or deteriorating and which may be either congenital, or traumatic, or the residual effect of physical. or mental disease. D.C.Code 1951, § 24- 301. See publication Words and Phrases, for other judicial constructions and defi- nitions of `Defect' and `Disease. 11. Criminal Law (mT73(1) Whenever there is some evidence that the accused suffered from a dis- eased or defective mental condition at the time the unlawful act was commit- ted, trial court must provide jury with guides for determining whether accused can be held criminally responsible. D.C. Code 1951, § 24-301. 12. Criminal Law ~773(2) Instructions to jury relative to criminal responsibility must in sub- stance advise jury that they may find defendant guilty only if they find, beyond reasonable doubt,. from evidence and from facts fairly deducible, (1) that de- fendant was not suffering from diseased or defective mental condition at time of the act, or (2) that the act was not the result of such condition. D.C.Code 1951, § 24-301. 13. Criminal Law ~48 In determining whether accused was suffering from diseased or defective mental condition, and whether his act was caused by such condition, jury may consider symptoms, phases, manifesta- tions, testimony of psychiatrists as to nature of the disease or defect, and its range of inquiry may include but is not limited to whether accused knew right from wrong, whether he acted under compulsion of an irresistible impulse, or had been deprived of or lost the power of his will. D.C.Code 1951, § 24-301. 14. Criminal Law ~31i Mental Health cl~439 Accused person who is acquitted by reason of insanity is presumed to be in- sane and may be committed for indefi- nite period to a hospital for the insane. D.C.Code 1951, § 24-301. Mr. Abe Fortas, Washington, D. C., appointed by thi~ Court, with whom Mr. Abe Krash, Washington, D. C., was on the brief, for appellant. Mr. Gerard J. O'Brien, Jr., Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis A. Carroll and Arthur J. Mc- Laughlin, Asst. U. S. Attys., Washing- ton, D. C., were on the brief, for ap- pellee. Mr. William J. Peck, Asst. U. S. Atty. at time record was filed, Wash- ington, D. C., entered an appearance for appellee. should not be in conditions PAGENO="0633" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 627 Before EDGERTON, BAZELON and WASHINGTON, Circuit Judges. BAZELON, Circuit Judge. Monte Durham was convicted of housebreaking,' by the District Court sitting without a jury. The only de- fense asserted at the trial was that Dur- ham was of unsound mind at the time of the offense. We are now urged to re- verse the conviction (1) because the trial court did not correctly apply exist- ing rules governing the burden of proof on the defense of insanity, and (2) be- cause existing tests of criminal respon- sibility are obsolete and should be super- seded.2 * I. I. D.C.Code §~ 22-1801, 22-2201 and 22-. 2202 (1951). 2. Because the questions raised are of gen- eral and crucial importance, we called upon the Government and counsel whom we appointed for the indigent appellant to brief and argue this case a second time. Their able presentations have been of great assistance to us. On the ques- with psychopathic personality." After 15 months of treatment, he was dis- charged in July 1949 as "recovered" and was returned to jail to serve the balance of. his sentence. In June 1950 he was conditionally released. He violated the conditions by leaving the District. When he learned of a warrant for his arrest as a parole violator, he fled to the "South and Midwest obtaining money by passing a number of bad checks." Aft- er he was found and returned to the District, the Parole Board referred him to the District Court for a lunacy in- quisition, wherein a jury again found him to be of unsound mind. He was readmitted to St. Elizaheths in Febru- ary 1951. This time the diagnosis was "without mental disorder, psychopathic personality." He was discharged for the third time in May 1951. The house- breaking which is the subject. of the present appeal took place two months later, on July 13, 1951. Durham ha~ a long history of impris- onment and hospitalization. In 1945, at the age of 17, he was discharged from the Navy after a psychiatric examina- tion had shown that he suffered "from a profound personality disorder which renders him unfit for Naval service." According to his mother and the psy- In 1947 he pleaded guilty to violating chiatrist who examined him in Septem- the National Motor Theft Act ~ and was ber 1951, he suffered from hallucina- placed on probation for one to three tions immediately after his May 1951 years. He attempted suicide, was taken discharge from St. Elizabeths. Follow- to Gallinger Hospital for observation, ing the present indictment, in October and was transferred to St. Elizabeths 1951, he was adjudged of unsound mind Hospital, from which he was discharged in proceedings under § 4244 of Title 18 after two moi~ths. lit January of 1948, U.S.C., upon the affidavits of two psy- as a result of a conviction - in the Dis- chiatrists that he suffered from "psycho- trict pf Columbia Municipal Court for sis with psychopathic personality." He passing bad checks, the District Court was committed to St. Elizabeths for the revoked his probation and he com- fourth time and given subshock insulin menced service of his Motor Theft sen- therapy. This commitment lasted 16 tence. His conduct within the first few. months-until February 1953-when he days in jail led to a lunacy inquiry in was released to the custody of the Dis- the Municipal Court where a jury found trict Jail on the certificate of Dr. Silk, him to be of unsound mind. Upon com- Acting Superintendent of St. Elizabeths, mitment to St. Elizabeths, he was di- that he was "mentally competent to agnosed as suffering from "psychosis stand trial and * * * able to consult tion of the adequacy of prevailing tests of criminal responsibility, we received further assistance from the able brief and argument of Abram Chayes, amicus curiae by appointment of this Court, in Stewart v. United States, U.S.App. D.C. -, 214 F.2d 879. 3. 18 U.S.C. ~ 408 (1946). 1948 Revi- sion, 18 U.S.C. ~ 10, 2311-2313. PAGENO="0634" 628 AMENDMENTS TO CRIMINAL STATUTES OF D.C. with counsel t~ properly assist in his own defense." He was thereupon brought before the court on the charge involved here. The prosecutor told the court: "So I take this attitude, in view of the fact that he has been over there [St. Elizabeths] a couple of times and these cases that were charged against him were dropped, I don't think I should take the re- sponsibility of dropping these cases against him; then Saint Elizabeths would let him out on the street, and if that man committed a murder next week then it is my responsi- bility. So we decided to go to trial on one case, that is the case where we found him right in the house, and let him bring in the defense, if he wants to, of unsound mind at the time the crime was committed, and then Your Honor will find him on that, and in your decision send him back to Saint Elizabeths Hospital, and then if they let him out on the street it is their responsibility." Shortly thereafter, when the, question arose whether Durham could be consid- ered competent to stand trial merely on the basis of Dr. Silk's ex parte state- ment, the court said to defense counsel: "I am going to ask you this, Mr. .Ahern: I have taken the position that if once a person has been found of unsound mind after a lunacy hearing, an ex parte certificate of the superintendent of Saint Eliza- 4. Durham showed confusion when he testi- fied. These are but two examples: "Q. Do you remember writing it? A. No. Don't you forget? People get all mixed up in machines. "Q. What kind of a machine? A. I don't know, they just get mixed up. "Q. Are you cured now? A. No, sir. "Q. In your opinion? A. No, sir. "Q. What i~ the matter with you? A. You hear people bother you. "Q. What? You say you hear people bothering you? A. Yes. "Q. What kind of people? What do they bother you about? A. (No re- sponse.)" 214 F.2d-55 beths is not sufficient to set aside that finding and I have held an- other, lunacy hearing. That has been my custom. However, if you want to waive that you may do it, if you admit that he is now of sound mind." [1] The court accepted counsel's waiver on behalf of Durham, although it had been informed by the prosecutor that a letter from Durham claimed need of further hospitalization, and by de- fense counsel that "* * the de- fendant does say that even today he thinks he does need hospitalization; he told me that this morning."4 Upon be- ing so informed, the court said, "Of course, if I hold he is not mentally com- petent to stand trial I send him back to Saint Elizabeths Hospital and they will send him back again in two or three months."5 In this atmosphere Dur- ham's trial commenced. [2-4] His conviction followed the trial court's rejection of the defense of insanity in these words: "I don't think it has been estab- lished that the defendant was of unsound mind as of July 13, 1951, in the sense that he didn't know the difference between right and wrong or that even if he did, he was sub- ject to an irresistible impulse by reason of the derangement of mind. "While, of course, the burden of proof on the issue of mental capac- ity to commit a crime is upon the Government, just as it is on every Although we think the court erred in accepting counsel's admission that Dur- ham was of sound mind, the matter does not require discussion since we reverse on other grounds and the principles gov- erning this issue are fully discussed in our decision today in Gunther v. United States, - U.S.App.D.C. -, - F.2d 5. The court also accepted a waiver of trial by jury when Durham indicated, in response to the court's question, that he preferred to be tried without a jury and that he waived his right tO a trial by jury. PAGENO="0635" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 629 other issue, nevertheless, the Court finds that there is not sufficient to contradict the usual presumption of [sic] the usual inference of sanity. "There is no testimony concern- ing the mental state of the defend- ant as of July 13, 1951, and there- fore the usual presumption of san- ity governs. "While if there was some testi- mony as to his mental state as of that date to the effect that he was incompetent on that date, the bur- den of proof would be on the Gov- ernment to overcome it. There has been no such testimony, and the usual presumption of sanity pre- vails. * * * * * * "Mr. Ahern, I think you have done very well by your client and defended him very ably, but I think under the circumstances there is nothing that anybody could have done." [Emphasis supplied.] We think this reflects error requiring reversal. In Tatum v. United States we said, "When lack of mental capacity is raised as a defense to a charge of crime, the law accepts the general experience of 6. 1951, 88 U.S.App.D.O. 386, 389, 190 F. 2d 612, 615. 7. 88 U.S.App.D.C. at page 389, 190 F.2d at page 615, quoting Glueck, Mental Dis- order and the Criminal Law 41-42 (1925). 8. In its brief, the prosecution confounds the "some evidence" test with the "evi- dence sufficient to create a reasonable doubt" test, despite our explanation in Tatum that the "`evidence sufficient to create a reasonable doubt' test" applies only after the issue has been raised by "some evidence" and the burden is al- ready upon the Government to prove the defendant's sanity beyond a reasonable doubt. 88 U.S.App.D.O. at page 390, 190 F.2d at page 616. 9. Dr. Amino Perretti, who also examined Durham in connection with those pro- cedings and furnished an affidavit that Durham was of unsound mind, was un- able to testify due to illness. mankind and presumes that all people,. including those accused of crime, are sane."6 So long as this presumption prevails, the prosecution is not required to prove the defendant's sanity. But "as soon as `some evidence of mental disorder is introduced, * * * sanity, like any other fact, must be proved as part of the prosecution's case beyond a reasonable doubt.' "~ Here it appears that the trial judge recognized this rule but failed to find "some evidence." We hold that the court erred and that the requirement of "some evidence" was satisfied.8 In Tatum we held that requirement satisfied by considerably less than is present here. Tatum claimed lack of memory concerning the critical events and three lay witnesses testified that he appeared to be in "more or less of a trance," or "abnormal," but two psychia- trists testified that he was of "sound mind" both at the time of examination and at the time of the crime. Here, the psychiatric testimony was unequivocal that Durham was of unsound mind at the time of the crime. Dr. Gilbert, the only expert witness heard,9 so stated at least four times. This crucial testimony is set out in the margin.'0 Intensive questioning by the court failed to pro- 10. (1) "Q. [Mr. Ahern]. As a result of those examinations did you reach a con- clusion as to the sanity or insanity of the defendant? A. Yes, I did arrive at an opinion as to his mental condition. "Q. And what is that opinion? A. That he at that time was of unsound mind. "Q. Can you tell us what disorder he was suffering from, Doctor? A. The re- port of his case at the time, as of Oc- tober 9, 1951, I used the diagnosis of un- differentiated psychosis, but according to the record the diagnosis was at the time of commitment psychosis with psycho- pathic personality. * * * * * "Q. At that time were you able to. make a determination as to how long this condition had existed? A. According to the record I felt at the time that he had been in that attitude or mental disorder for a period of some few to several months." (2) "Q. {Mr.Ahernj. Directing your PAGENO="0636" 630 AMENDMENTS TO CRIMINAL STATUTES OF D.C. duce any retraction of Dr. Gilbert's tes- timony that the "period of insanity would have embraced the date July 13, 1951." And though the prosecution sought unsuccessfully in its cross- and recross-examination of Dr. Gilbert to es- tablish that Durham was a malingerer who feigned insanity whenever he was trapped for his misdeeds, it failed to present any expert testimony to support this theory. In addition to Dr. Gilbert's testimony, there was testimony by Dur- ham's mother to the effect that in the interval between his discharge from St. Elizabeths in May 1951, and the crime "he seemed afraid of people" and had urged her to put steel bars on his bed- room windows. Apparently the trial judge regarded this psychiatric testimony as "no testi- mony" on two grounds: (1) it did not adequately cover Durham's condition on July 13, 1951, the date of the offense; and (2) it was not directed to Durham's capacity to distinguish between right and wrong. We are unable to agree that for either of these reasons the psychiat- attention specifically to July 13, 1051, will you give us your opinion as to the mental condition of the defendant at that time? A. From my previous testimony and previous opinion, to repeat, it was my opinion that he had been of unsound mind from sometime not long after a previous release from Saint Elizabeths Hospital [i. e., May 14, 1951]." (3) "Q. [Mr. Ahern]. In nay event, Doctor, is it your opinion that that peri- od of insanity would have embraced the date July 13, 1951? A. Yes. My ex- amination would antedate that; that is, the symptoms obtained, according to my examinations, included that-the symp- toms of the mental disorder. "Q. Can you tell us what symptoms you found, Doctor? A. Well, he was trying to work for a while, he stated, and while he was working at one of these People's Drug Stores he began to hear false voices and suffer from hallucina- tions and believed that the other em- ployees and others in the store talked about him, watched him, and the neigh- bors did the same, watching him from their windows, talking about him, and those symptoms continued and were pres- ent through the time that I examined him in September and October. nc testimony could properly be consid- ered "no testimony." (1) Following Dr. Gilbert's testimony that the condition in which he found Durham on September 3, 1951 was pro- gressive and did not "arrive overnight," Dr. Gilbert responded to a series of questions by the court: "Q. [Court]. Then is it reason- able to assume that it is not possible to determine how far this state of unsound mind had progressed by July 13th? Isn't that so? A. [Dr. Gilbert]. As to the seriousness of the symptoms as compared with them and the time I observed him, that's true, except that his travels were based, according to his state- ment to me, on certain of the symp- toms and his leaving Washington, his giving up his job and work and leaving the work that he had tried to do. "Q. But you can't tell, can you, how far those symptoms had pro- gressed and become worse by the * * * "Q. [Mr. McLaughlin]. You were asked the specific Question, Doctor, whether or not in your opinion on July 13, 1951, this defendant was of unsound mind and didn't know the difference be- tween right and wrong. Can you express an opinion as to that? A. Yes. It is my opinion he was of unsound mind." (4) "Q. [Mr. McLaughlin]. Can you tell us-this is for my own information, I would like to know this-you say that this defendant, at the time you examined him in 1951 was of unsound mind and had been of unsound mind sometime prior to that; is that your statement? A. Yes, sir. "Q. Can you tell us how long prior to that time he was of unsound mind? A. Well, while he was working in Peo- ple's Drug Store the symptoms were present, and how long before that, I didn't get the date of that. "Q. When was he working in People's Drug Store? * * * * * "A. Sometime after his discharge from Saint Elizabeths Hospital. "Q. In 1947? A. Oh, no; 1951." PAGENO="0637" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 631 13th of July? A. No, not how far they were, that is correct." [Em. phasis supplied.] Thereafter, when the prosecutor on re- cross asked Dr. Gilbert whether he would change his opinion concerning Durham's mental condition on July 13, 1951, if he knew that Durham had been released from St. Elizabeths just two months before as being of sound mind, the court interrupted to say: "Just a minute. The Doctor testified in answer to my question that he doesn't know and he can't express a definite opinion as to his mental condition on the 13th of July." This, we think, overlooks thc wit- ness' unequivocal testimony on direct and cross-examination,11 and misconceives what he had said in response to ques- tioning by the court, namely, that cer- tain symptoms of mental disorder ante- dated the crime, although it was impos- sible to say how far they had progressed. Moreover, any conclusion that there was "no testimony" regarding Durham's mental condition at the time of the crime disregards the testimony of his mother. Her account of his behavior after his discharge from St. Elizabeths in May 1951 was directly pertinent to the issue of his sanity at the time of the crime. (2) On re-direct examination, Dr. Gil- bert w~s asked whether he would say that Durham "knew the difference between right and wrong on July 13, 1951; that is, his ability to distinguish between what was right and what was wrong." He replied: "As I have stated before, if the question of the right and wrong were propounded to him he could give you the right answer." Then the court inter- rupted to ask: "The Court. No, I don't think that is the question, Doctor-not whether he could give a right answer to a question, but whether he, him- self, knew the difference between right and wrong in connection with governing his own actions. * * * If you are unable to answer, why, you can say so; I mean, if you are unable to form an opinion. "The Witness. I can only answer this way: That I can't tell how much the abnormal thinking and the ab- normal experiences in the form of hallucinations and delusions-delu- sions of persecution-had to do with his anti-social behavior. "I don't know how anyone can answer that question categorically, except as one's experience leads him to know that most mental cases can give you a categorical answer of right and wrong, but what influence these symptoms have on abnormal behavior or anti-social behavior- "The Court. Well, your answer is that you are unable to form an opin- ion, is that it? "The Witness. I would say that that is essentially true, for the rea- sons that I have given." Later, when defense counsel sought elaboration from Dr. Gilbert on his an- swers relating to the "right and wrong" test, the court cut off the questioning with the admonition that "you have an- swered the question; Doctor." The inability of the expert to give categorical assurance that Durham was unable to distinguish between right and wrong did not destroy the effect of his previous testimony that the period of Durham's "insanity" embraced July 13, 1951. It is plain from our decision in Tatum that this previous testimony was adequate to prevent the presumption of sanity from becoming conclusive and to place the burden of proving sanity upon the Government. None of the testimony before the court in Tatum was couched in terms of "right and wrong." [5] Finally, even assuming arguendo that the court, contrary to the plain meaning of its words, recognized that the prosecution had the burden of prov- ing Durham's sanity, there would still be a fatal error. For once the issue of II. See note 10, supra. PAGENO="0638" 632 AMENDMENTS TO CRIMINAL STATUTES OF D.C. insanity is raised by the introduction of "some evidence," so that the presump- tion of sanity is no longer absolute, it is incumbent upon the trier of fact to weigh and consider "the whole evidence, including that supplied by the presump- tion of sanity * * ~" on the issue of "the capacity in law of the accused to commit" the crime.'2 Here, mani- festly, the court as the trier of fact did not and could not weigh "the whole evi- dence," for it found there was "no testi- mony concerning the menta] state" of Durham. For the foregoing reasons, the judg- ment is reversed and the case is re- manded for a new trial. II. It has been ably argued by counsel for Durham that the existing tests in the District of Columbia for determin- ing criminal responsibility, i. e.~ the so- called right-wrong test supplemented by the irresistible impulse test, are not sat- isfactory criteria for determining crim- inal responsibility. We are urged to adopt a different test to be applied on the retrial of this case. This contention 12. Davis v. United States, 1805, 160 U.S. 469. 488, 16 S.Ct. 353, 35S, 40 LEd. 499. 13. 1882, 12 D.C. 498, 550, 1 Mackey 408, 550. The right-wrong test was reaf- firmed in United States v. Lee, 1886, 15 D.C. 489, 490, 4 Mackey 489, 496. 14. 1929, 59 App.D.C. 144, 36 F.2d 548, 70 ALE. 654. 15. Glueck, Mental Disorder and the Crim- inal Law 138-39 (1925). citing Rex v. Arnold, 16 How.St.Tr. 695, 764 (1724). 16. Id. at 142-52, citing Earl Ferrer's case, 19 How.St.Tr. 886 (1760). One writer has stated that these tests originated in England in the 13th or 14th century, when the law began to define insanity in terms of intellect for purposes of de- termining capacity to manage feudal es- tates. Comment, Lunacy and Idiocy- The Old Law and Its Incubus, 18 U. of Chi.L.Rev. 361 (1051). 17. 8 Eng.Rep. 718 (1843). has behind it nearly a century of agita- tion for reform. A. The right-wrong test, approved in this jurisdiction in 1882,13 was the ex- clusive test of criminal responsibility in the District of Columbia until 1929 when we approved the irresistible impulse test as a supplementary test in Smith v. United States.14 The right-wrong test has its roots in England. There, by the first quarter of the eighteenth century, an accused escaped punishment if he could not distinguish "good and evil," i. e., if he "doth not know what he is doing, no more than * * * a wild beast." 15 Later in the same century, the "wild beast" test was abandoned and "right and wrong" was substituted for "good and evil." 10 And toward the mid- dle of the nineteenth century, the House of Lords in the famous M'Naghten case 17 restated what had become the accepted "right-wrong" test 18 in a form which has since been followed, not only in England 19 but in most American jurisdictions 20 as an exclusive test of criminal responsibility: * the jurors ought to be told in all cases that every man is to 19. Royal Commission on Capital Punish- ment 1949-1953 Report (Cmd. 8932) 79 (1953) (hereinafter cited as Royal Com- mission Report). 20. Weihofen, The M'Naghten Rule in Its Present Day Setting, Federal Probation 8 (Sept. 1953); Weihofen, Insanity as a Defense in Criminal Law 15, 64-68, 109- 47 (1933); Leland v. State of Oregon, 1952, 343 U.S. 790, 800, 72 S.Ct. 1002, 90 LEd. 1302. "In five States the M'Naghten Rules have been in substance re-enacted by statute." Royal Commission Report 409; see, e. g., "Sec. 1120 of the [New ~Tork State] Penal Law [McK.ConsoL Laws, c. 40] [which] provides that a per- son is not excused from liabifity on the grounds of insanity, idiocy or imbecility, except upon proof that nt the time of the commission of the criminal act he was laboring under such a defect of reason as (1) not to know the nature and qual- ity of the act he was doing or (2) not to know that the act was wrong." Ploscowe, Suggested Changes in the New York Lascs and Procedures Re- lating to the Criminally Insane and 18. Hall, Principles of Criminal Law 480, n. 6 (1947). PAGENO="0639" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 633 be presumed to be sane, and to pos- sess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satis- faction; and that, to establish a de- fence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring un- der such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." 21 As early as 1838, Isaac Ray, one of the founders of the American Psychia- Mentally Defective Offenders, 43 J. Crim.L., Criminology & Police Sci. 312, 314(1952). 2t. 8 Eng.Rep. 718, 722 (1843). "To- day, Oregon is the only state that re- quires the accused, on a plea of insanity, to establish that defense beyond a rea- sonable doubt. Some twenty states, how- ever, place the burden on the accused to establish his insanity by a preponder- ance of the eyidence or some similar measure of persuasion." Leland v. State of Oregon, supra, note 20, 343 U.S. at page 798, 72 S.Ct. 1002. Since Davis v. United States, 1895, 160 U.S. 469, 484, 16 S.Ct. 353, 40 LEd. 499, a contrary rule of procedure has been followed in the Federal courts. For ex- ample, in compliance with Davis, we held in Tatum v. United States, supra, note 8, 88 U.S.App.D.O. 386, 389, 190 F.2d 612, 615, and text, "as soon as `some evidence of mental disorder is introduced, * * * sanity, like any other fact, must be proved as part of the prosecution's Case beyond a reasonable doubt.'" 22. Ray, Medical Jurisprudence of Insanity 47 and 34 et seq. (1st ed. 1838). "That the insane mind is not entirely deprived of this power of moral discernment, but in many subjects is perfectly rational, and displays the exercise of a sound and well balanced mind is one of those facts now so well established, that to question it would only betray the height of igno- rance and presumption." Id. at 32. 23. See Zilboorg, Legal Aspects of Psychia- try in One Hundred Years of American Psychiatry 1844-1944, 507, 552 (1944). 24.. Cardozo, What Medicine Can Do For the Law 32 (1930). tric Association, in his now classic Medi- cal Jurisprudence of Insanity, called knowledge of right and wrong a "fal- lacious" test of criminal responsibility.22 This view has long since been substan- tiated by enormous developments in knowledge of mental life.23 In 1928 Mr. Justice Cardozo said to the New York Academy of Medicine: "Everyone concedes that the present [legal] defini- tion of insanity has little relation to the truths of mental life." 24 Medico-legal writers in large num- ber,25 The Report of the Royal Commis- sion on Capital Punishment 1949_1953,2C and The Preliminary Report by the Com- mittee on Forensic Psychiatry of the 25. For a detailed bibliography on Insanity as a Defense to Crime, see 7 The Record of the Association of the Bar of the City of New York 158-62 (1952). And see, a. g., Alexander, the Criminal, the Judge and the Public 70 et seq. (1931); Cardozo, What Medicine Can Do For the Law 28 at seq. (1930); Cleckley, the Mask of Sanity 491 et seq. (2d ed.1950); Deutsch, The Mentally Ill In America 389-417 (2d ed.1949); Glueck, Mental Disorder and the Criminal Law (1925), Crime and Justice 96 at seq. (1936); Guttmacher & Weihofen, Psychiatry and the Law 218, 403-23 (1952); Hall, Principles of Criminal Law 477-538 (1947); Menninger, The Human Mind 450 (1937); Hall & Menninger, "Psy- chiatry and the Law-A Dual Review, 38 Iowa L.Rev. 687 (1953); Overholser, The Psychiatrist and the Law 41-43 (1953); Overholser & Richmond, Hand- book of Psychiatry 208-15 (1947); Pbs- cowe, Suggested Changes in the New York Laws and Proccdures Relating to the Criminally Insane and Mentally De- fective Offenders, 43 J.Crim.L., Criminol- ogy & Police Sci. 312, 314 (1952); Ray, Medical Jurisprudence of Insanity (1st ed.1838) (4th ed.1860); Reik, The Doe- Ray Correspondence: A Pioneer Col- laboration in the Jurisprudence of Mental Disease, 63 Yale L.J. 183 (1953); Wei- hofen, Insanity as a Defense in Criminal Law (1933), The M'Naghten Rule in Its- Present Day Setting, Federal Probation 8 (Sept. 1953); Zilboorg, Mind, Medicine ~nd Man 246-97 (1943), Legal Aspects of Psychiatry, American Psychiatry 1844- 1944, 507 (1944). 26. Royal Commission Report 73-129. PAGENO="0640" 634 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Group for the Advancement of Psychi- atry 27 present convincing evidence that the right-and-wrong test is "based on an entirely obsolete and misleading con- ception of the nature of insanity." 28 The science of psychiatry now recognizes that a man is an integrated personality. and that reason, which is only one ele- ment in that personality, is not the sole determinant of his conduct. The right- wrong test, which considers knowledge or reason alone, is therefore an inade- quate guide to mental responsibility for criminal behavior. As Professor Sheldon Glueck of the Harvard Law School points out in discussing the right-wrong tests, which he calls the knowledge tests: "It is evident that the knowledge tests unscientifically abStract out of the mental make-up but one phase or element of mental life, the cognitive, which, in this era of dynamic psy- chology, is beginning to be regard- ed as not the most important factor in conduct and its disorders. In brief, these tests proceed upon the following questionable assumptions of an outworn era in psychiatry: (1) that lack of knowledge of the 27. The Committee on Forensic Psychiatry (whose report is hereinafter cited as Gap Report) was composed of Drs. Philip Q. Roche, Frank S. Curran, Law- rence Z. Freedman and Manfred S. Gutt- macher. They were assisted in their de- liberations by leading psychiatrists, ju- rists, law professors, a~id legal practition- ers. 28. Royal Commission Report 80. 29. Glueck, Psychiatry and the Criminal Law, 12 Mental Hygiene 575, 580 (1928), as quoted in Deutsch, The Mentally Ill in America 396 (2d ed. 1949); and see, e. g., Menninger, The Human Mind 450 (1937); Guttmacher & Weihofen, Psy- chiatry and the Law 403-OS (1952). 30. Holloway v. United States, 1945, 80 U.S.App.D.C. 3, 5, 148 F.2d 665, 667, certiorari denied, 1948, 334 U~S. 852, 68 SOt. 1507, 92 LEd. 1774. More recently, the Royal Commission, after an exhaustive survey of legal, medi- cal and lay opinion in many Western countries, including England and the United States made a similar finding. It reported: `nature or quality' of an act (as- suming the meaning of such terms to be clear), or incapacity to know right from wrong, is the sole or even the most important symptom of mental disorder; (2) that such knowledge is the sole instigator and guide of conduct, or at least the most important element therein, and con- sequently should be the sole criterion of responsibility when insanity is involved; and (3) that the capacity of knowing right from wrong can be completely intact and functioning perfectly even though a defendant is otherwise demonstrably of disor- dered mind." 29 Nine years ago we said: "The modern science of psychol- ogy * * does not conceive that there is a separate little man in the top of one's head called reason whose function it is to guide another unruly little man called instinct, emotion, or impulse in the way he should g'~~" 30 By its misleading emphasis on the cogni- tive, the right-wrong test requires court "The gravamea of the charge against the M'Naghten Rules is that they are not in harmony with modern medical science, which, as we have seen, is reluctant to divide the mind into separate compart- ments-the intellect, the emotions and the will-but looks at it as a whole and considers that insanity distorts and im- pairs the action of the mind as a whole." Royal Commission Report 113. The Commission lends vivid support to this conclusion by pointing out that "It would be impossible to apply modern methods of care and treatment in mental hospitals, and at the same time to main- tain order and discipline, if the great ma- jority of the patients, even among the grossly insane, did not know what is for- bidden by the rules and that, if they break them, they are liable to forfeit some privilege. Examination of a num- ber of individual cases in which a verdict of guilty but insaae [the nearest English equivalent of our acquittal by reason of insanityj was returned, and rightly re- turned, has convinced us that there are few indeed where the accused can truly be said not to have known that his act was wrong." Id. at 103. PAGENO="0641" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 635 and jury to rely upon what is, scien- tifically speaking, inadequate, and most often, invalid 31 and irrelevant testimony in determining criminal responsibility.32 The fundamental objection to the right-wrong test, however, is not that criminal irresponsibility is made to rest upon an inadequate, invalid or inde- terminable symptom or manifestation, but that it is made to rest upon any particular symptom.33 In attempting to define insanity in terms of a symptom, the courts have assumed an impossible role,34 not merely one for which they have no special competence.35 As the Royal Commission emphasizes, it is dan- 31. See Guttmacher & Weihofen, Psy- chiatry arid the Law 421, 422 (1952). The M'Naghten rules "constitute not only an arbitrary restriction on vital medical data, but also impose an improp- er onus of decision upon the expert wit- ness. The Rules are unanswevable in that they have no consensus with es- tablished psychiatric criteria of symp- tomatic description save for the case of disturbed consciousness or. of idiocy, * * **" From statement by Dr. Phil- ip Q. Roche, quoted id at 407. See also United States ax rel. Smith v. Baldi, 3 Cir., 1951, 192 F.2d 540, 567 (dissenting opinion). 32. In a very recent case, the Supreme Court of New Mexico recognized the in- adequacy of the right-wrong test, and adopted what it called an "extension of- the M'Naghten Rules." Under this ex- tension, lack of knowledg'e of right and wrong is not essential for acquittal "if, by reason of disease of the mind, defend- ant has been deprived of or lost the power of his will * * `p." State v. White, N.M., 270 P.2d 727, 730. 33. Deutsch, The Mentally Ill in America 400 ~(2d ed.1949); Keedy, Irresistible Impulse as e Defense in; Criminal Law, 100 U. of Pa.L.Rev. 956, 992 (1952). 34. Professor John Whitehorn of the Johns Hopkins Medical School, who recently prepared an informal memorandum on this subject for a Commission on Legal Psychiatry appointed by the Governor of Maryland, has said: "Psychiatrists are challenged to set forth a crystal-clear statement of what constitutes insanity. It is impossible to express this adequate- ly in words, alone, since such diagnostic jtalgments involve clinical skill and ex- gerous "to abstract particular mental faculties, and to lay it down that unless these particular faculties are destroyed or gravely impaired, an accused person, whatever the nature of his mental dis- ease, must be held to be criminally re- sponsible * * *~" 36 In this field of law as in others, the fact finder should be free to consider all information ad- vanced by relevant scientific disciplines.37 Despite demands in the name of scien- tific advances, this court refused to alter the right-wrong test at the turn of the century.38 But in 1929, we reconsidered in response to "the cry of scientific ex- perts" and added the irresistible impulse perience which cannot wholly be verbal- ized. * * * The medical profession would be baffled if asked to write into the legal code universally valid criteria for the diagnosis of the many types of psy- chotic illness which may seriously disturb a person's responsibility, and even if this were attempted, the diagnostic criteria would have to be rewritten from time to time, with the progress of psychiatric knowledge." Quoted in Guttmacher & Weihofen, Psychiatry and the Law 419- 20 (1952). 35. "~ * * the legal profession were in- vading the province of medicine, and at- tempting to install old exploded medical theories in the place of facts established in the progress of scientific knowledge." State v. Pike, 1870, 49 N.H. 399, 438. 36. Royal Commission Report 114. And see State v. Jones, 1871, 50 N.H. 369, 392-393. 37. Keedy, Irresistible Impulse as a De- fense in Criminal Law, 100 U. of Pa.L. Rev. 956, 992-93 (1952). 38. See, e. p., Taylor v. United States, 1895, 7 App.D.O. 27, 41-44, where we rejected "emotional insanity" as a dtifense, citing with approval the following from the trial court's instruction to the jury: "What- ever may be the cry of scientific experts, the law does not recognize, but condemns the doctrine of emotional insanity-that a man may be sane up until a moment before he commits a crime, insane while he does it, and sane again soon after- wards. Such a doctrine would be daa- gerous in the extreme. The law does not recognize it; and a jury cannot without violating their oaths." This position was emphatically reaffirmed in Snehl v. United States, 1900, 16 App.D.O. 501, 524. 25-260 O-64-----~pt. 1-41 PAGENO="0642" 636 AMENDMENTS TO CRIMINAL STATUTES OF D.C. test as a supplementary test for deter- mining criminal responsibility. With- out "hesitation" we declared, in Smith v. United States, "it to be the law of this District that, in cases where insanity is interposed as a defense, and the facts are sufficient to call for the application of the rule of irresistible impulse, the jury should be so charged." ~ We said: "~ * ~ The modern doctrine is that the degree of insanity which will relieve the accused of the conse- quences of a criminal act must be such as to create in his mind an un- controllable impulse tO commit the offense charged. This impulse must be such as to override t.he reason and judgment and obliterate the sense of right and wrong to the extent that the accused is deprived of the power to choose between right and wrong. The mere ability to distinguish right from wrong is no longer the correct test either in civil or criminal cases, where the defense of insanity is in- terposed. The accepted rule in this day and age, with the great advance- ment in medical science as an en- lightening influence on this subject, is that the accused must be capable, not only of distinguishing between right and wrong, but that he was not impelled to do the act by an irresist-. thie impulse, which means before it will justify a verdict of acquittal that his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane im- pulse to perpetrate the deed, though knowing it to be wrong." 40 39. 1929, 59 App.D.C. 144, 146, 36 F.2d 548, 550, 70 ALE. 654. 40. 59 App.D.C. at page 145, 36 F.2d at page 549. 41. 59 App.D.C. at page 145, 36 F2d at page 549. 42. Impulse, as defined by Webster's New International Dictionary (2d ed.1950), is: "1. Act of impelling, or driving on- 214 F.2d-5514 As we have already indicated, this hae since been the test in the District. Although the Smith case did not aban don the right-wrong test, it did liberat the fact finder from exclusive relianc upon that discredited criterion by allow. ing the jury to inquire also whether thE accused suffered from an undefinec "diseased mental condition [which] de prive[d] him of the will power to resisi the insane impulse * * **"41 ThE term "irresistible impulse," however, carries the misleading implication that "diseased mental condition [s]" produce only sudden, momentary or spontaneous inclinations to commit unlawful acts.~ As the Royal Commission found: "~ * * In many cases * * * this is not true at all. The sufferer from [melancholia, for example] experiences a change of mood which alters the whole of his existence. He may believe, for instance, that a fu- ture of such degradation and misery awaits both him and his family that death for all is a less dreadful alter- native. Even the thought that the acts he contemplates are murder and suicide pales into insignificance in contrast with what he otherwise expects. The criminal act, in such circumstances, may be the reverse of impulsive. It may be coolly and carefully prepared; yet it is still the act of a madman. This is mere- ly an illustration; similar states of mind are likely to lie behind the criminal act when murders are com- mitted by persons suffering from schizophrenia or paranoid psy- ward with sudden force; impulsion, esp., force so communicated as to produce motion suddenly, or immediately * "2. An incitement of the mind or spir- it, esp. in the form of an abrupt and vivid suggestion, prompting some unpre- meditated action or leading to unfore- seen knowledge or insight; a spontane- one inclination * * * * * motion produced by a sudden or momentary force * * [Emphasis supplied.J PAGENO="0643" 43. Royal Commission Report 110; for. additional comment on the irresistible impulse test, see Glueck, Crime and Jus- tice 101-03 (1936); Guttmacher & Wei- hofen, Psychiatry and the Law 410-12 (1952); Hall, General Principles of Criminal Law 505-26 (1947); Keedy, Irresistible Impulse as a Defense in Criminal Law, 100 Ti. of Pa.L.Rev. 956 (1952); Wertham, The Show of Violence 14 (1949). The New Mexico Supreme Court in recently adopting a broader criminal in- sanity rule, note 32, suprn, observed: "~ * * insanity takes the form of the personality of the individual and, if his tendency is toward depression, his wrong- ful act may come at the conclusion of a period of complete lethargy, thoroughly devoid of excitement." 44. As we recently said, "~ * * former common law should not be followed where changes in conditions have made it ob- solete. We have never hesitated to ex- ercise the usual judicial function of revis- ing and enlarging the common law." Lin- kins v. Protestant Episcopal Cathedral Foundation, 1950, 87 U.S.App.D.C. 351, 355, 187 F.2d 357, 361, 28 A.L.R.2d 521. Cf. Funk v. United States, 1933, 290 U.S. 371, 381-382, 54 S.Ct. 212, 78 LEd. 369. 45. Congress, like most State legislatures, has never undertaken to define insanity in this connection, although it recognizes the fact that an accused may be acquitted by reason of insanity. See D.C.Code § 24-301 (1951). And as this court made clear in Hill v. United States, Congress has left no doubt that "common-law pro- cedure, in all matters relating to crime * * * stifi continues in force here in all cases except where special provision is made by statute to the exclusion of [7, 8] B. In the District of Colum- bia, the formulation of tests of crim- inn! responsibility is entrusted to the courts ~ and, in adopting a new test, we invoke our inherent power to make the change prospectively.46 [9] The rule we now hold must be applied on the retrial of this case and in future cases is not unlike that fol- lowed by the New Hampshire court since 1870.~~ It is simply that an ac- cused is not criminally responsible if the common-law procedure." 22 App. D.C. 395, 401 (1903), and statutes cited therein; Linkins v. Protestant Episcopal Cathedral Foundation, 87 U.S.App.D.C. at pages 354-55, 187 F.2d at pages 360- 361; and see Fisher v. United States, 1946, 328 U.S. 463, 66 S.Ct. 1318, 90 L. Ed. 1382. 46. See Great Northern R. v. Sunburst Oil & Refining Co., 1932, 287 U.S. 358, 53 5. Ct. 145, 77 LEd. 360; National Labor Relations Board v. Guy F. Atkinson Co., 9 Cir., 1952, 195 . F.2d 141, 148; Con- curring opinion of Judge Frank in Aero Spark Plug Co. v. B. G. Corporation, 2 Cir., 1942, 130 F.2d 290, 298, and note 24; Warring v. Colpoys, 1941, 74 App.D.O. 303, 122 F.2d 642, 645, 136 A.L.R. 1025; Moore & Oglebny, The Su- preme Court, Stare Deaisis and Law of the Case, 21 Texas L.Rev. 514, 535 (1943); Carpenter, Court Decisions and the Common Lasv, 17 Col.L.Rev. 593, 606-07 (1917). But see von Mosch- zisker, Stare Deaisis in Courts of Last Resort, 37 Harv.L.Rev. 409, 426 (1924). Our approach is. similar to that of the Supreme Court of California in People v. Maughs, 1906, 149 Cal. 253, 86 P. 187, 191, where the court prospectively in- validated a previously accepted instruc- tion, saying: ~ * * we think the time has come to say that in nil future cases which shall arise, and where, after this warn- ing, this instruction shall be given, this court will hold the giving of it to . be so prejudicial to the rights of a defend- ant, secured to him by our Constitution and laws, as to call for the reversal of any judgment which may be rendered against him." AMENDMENTS TO CRIMINAL STATUTES OF D.C. 637 choses clue to disease of the wrong test. We conclude that a broad- brain."43 er test should be adopted.44 [6] We find that as an exclusive cri- terion the right-wrong test is inade- quate in that (a) it does not take suffi- cient account of psychic realities and scientific knowledge, and (b) it is based upon one symptom and so cannot validly be applied in all circumstances. We find that the "irresistible impulse" test is also inadequate in that it gives no rec- ognition to mental illness characterized by brooding and reflection and so rele- gates acts caused by such illness to the application of the inadequate right- 47. State v. Pike, 1870, 49 N.H. 399. PAGENO="0644" 638 AMENDMENTS TO CRIMINAL STATUTES OF D.C. his unlawful act was the product of mental disease or mental defect.48 [10] We use "disease" in the sense of a condition which is considered capa- ble of either improving or deteriorating. We use "defect" in the sense of a condi- tion which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease. [11, 12] Whenever there is "some evidence" that the accused suffered from a diseased or defective mental condition at the time the unlawful act was com- mitted, the trial court must provide the jury with guides for determining wheth- er the accused can be held criminally re- sponsible. We do not, and indeed could not, formulate an instruction which would be either appropriate or binding in all cases. But under the rule now announced, any instruction should in some way convey to the jury the sense and substance of the following: If you the jury believe beyond a reasonable doubt that the accused was not suffer- ing from a diseased or defective mental condition at the time he committed the criminal act charged, you may find him guilty. If you believe he was suffering from a diseased or defective mental con- dition when he committed the act, but believe beyond a reasonable doubt that the act was not the product of such 48. Cf. Statev. Jones, 1871, 50 N.H. 369, 308. 49. "There is no a priori reason why every person suffering from any form of mental abnormality or disease, or from any par- ticular kind of mental disease, should be treated by the law as not answerable for any criminal offence which he may commit, and be exempted from convic- tion and punishment. Mental abnormali- ties vary infinitely in their nature and intensity and in their effects on the char- acter and conduct of those who suffer from them; Where a person suffering from a mental abnormality commits a crime, there must always be aome likeli- hood that the abnormality has played reasonable doubt either that he was not suffering from a diseased or defective mental condition, or that the act was not the product of such abnormality, you must find the accused not guilty by rea- son of insanity. Thus your task would not be completed upon finding, if you did find, that the accused suffered from a mental disease or defect. He would still be responsible for his unlawful act if there was no causal connection be- tween such mental abnormality and the act.49 These questions must be deter- mined by you from the facts which you find to be fairly deducible from the tes- timony and the evidence in this case.5° [13] The questions of fact under the test we now lay down are as capable of determination by the jury as, for ex- ample, the questions juries must deter- mine upon a claim of total disability un- der a policy of insurance where the state of medical knowledge concerning the disease involved, and its effects, is obscure or in conflict. In such cases, the jury is not required to depend on ar- bitrarily selected "symptoms, phases or manifestations"5' of the disease as cri- teria for determining the ultimate ques- tions of fact upon which the claim de- pends. Similarly, upon a claim of crim- inal irresponsibility, the jury will not be required to rely on such symptoms as criteria for determining the ultimate question of fact upon which such claim mental abnormality, you may find him depends. Testimony as to such "symp- guilty. Unless you believe beyond a toms, phases or manifestations," along some part in the, causation of the crime; and, generally speaking, the graver the abnormality, * * * the more prob- able it must be that there is a causal connection between them. But the close- ness of this connection will be shown by the facts brought in evidence in individual cases and cannot be decided on the basis of any general medical principle." Royal Commission Report 99~ 50. The court may always, of course, if it deems it advisable for the assistance of the jury, point out particular areas of agreement and conflict in the expert tes- timony in each case, just as it ordinarily does in summing up any other testimony. 5'!. State v. Jones, 1871, 50 N.H. 3~9, 298. PAGENO="0645" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 639 with other relevant evidence, will go to the jury upon the ultimate questions of fact which it alone can finally determine. Whatever the state of psychiatry, the psychiatrist will be permitted to carry out his principal court function which, as we noted in Holloway v. U. S., "is to inform the jury of the character of [the accused's] mental disease [or de- fect]."~2 The jury's range of inquiry will not be limited to, but may include, for example, whether an accused, who suffered from a mental disease or defect did not know the difference between right and wrong, acted under the com- pulsion of an irresistible impulse, or had "been deprived of or lost the power of his will * * *"53 Finally, in leaving the determination of the ultimate question of fact to the jury, we permit it to perform its tradi- tional function which, as we said in Hol- loway, is to apply "our inherited ideas of moral responsibility to individuals prosecuted for crime * * *,"54 Ju... ries will continue to make moral judg- ments, still operating under the funda- mental precept that "Our collective con- science does not allow punishment where it cannot impose blame."55 But in mak- ing such judgments, they will be guided by wider horizons of knowledge con- cerning mental life. The question will be simply whether the accused acted be- cause of a mental disorder, and not whether he displayed particular symp- toms which medical science has long recognized do not necessarily, or even typically, accompany even the most seri- ous mental disorder.56 .52. 1945, 80 U.S.App.D.C. 3, 5, 148 F.2d 665, 667. 53. State v. White, see a. 32, supra. 54. 80 U.S.App.D.C. at page 5, 148 F.2d at page 4367. 55. 80 U.S.App.DC. at pages 4-5, 148 F.2d at pages 666-667. [14] The legal and moral traditions of the western world require that those who, of their own free will and with evil intent (sometimes called rnens rea), commit acts which violate the law, shall be criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not attach, and hence there will not be criminal responsibility.57 The rule we state in this opinion is designed to meet these requirements. Reversed and remanded for a new trial. KEY N UM B ER SYSTEM 57. An accused person who is acquitted by reason of insanity is presumed to be in- sane, Orencia v. Overholser, 1947, 82 U.S.App.D.C. 285, 163 F.2d 763; Barry v. White, 1933, 62 App.D.C. 69, 64 F.2d 707, and may be committed for an indefi- nite period to a "hospital for the insane." D.C.Code § 24-301 (1951). We think that even where there has been a specific finding that the accused was competent to stand trial and to assist in his own de- fense, the court would be well advised to invoke this Code provision so that the accused may be confined as long as "the Public Safety and * * * [his]welfare" require. Barry v. White, 62 App. D.C. at 71, 64 F. 2d at 709. 56. See text, supra, 214 F.2d 870-872. PAGENO="0646" 640 AMENDMENTS TO CRIMINAL STATUTES OF D.C. ThtitrIi ~`tati~ø (lhnwt uf tpi~at~ FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 17,019 ELSIE V. JONES, APPELLANT V. UNITED STATES OF AMERICA, APPELLEE Appeal from the United States. District Court for the District cf Columbia Decided July 19, 1962 Mr. John Paul Sullivan (appointed by the District Court) fOr appellant. Mr. Abbott A. Leban, Assistant United States Attorney, with whom Messrs. David C. Acheson, United States Attor- ney, and Nathan J. Paulson and Victor W. Caputy, Assist- ant United States Attorneys, were on the brief, for ap- pellee. Before EDGERTON, BASTIAN and WRIGHT, Circuit Judges. WRIGHT, Circuit Judge: Appellant was convicted of manslaughter. On appeal she alleges trial court error in failing to grant her motion for judgment of acquittal by reason of insanity. In the alternative, she asserts that her PAGENO="0647" AMENDMENTS TO CRIMINAL STATTJTES OF D.C. 641 conviction should be set aside and the case remanded for a new trial because a confession obtained in violation of Rule 5(a), F.R.Cr.P., was admitted into evidence. This case was tried in the District Court before our opin- ions in Naples v. United States, No. 16,436 (decided April 13, 1962, opinion rendered May 8, 1962), and Williams v. United States, No. 16,793 (decided May 4, 1962), were an- nounced. In those cases the defendants, after confessing orally at police headquarters, and prior to being taken "before the nearest available" committing magistrate, made additional incriminatory statements on being re- turned to the scenes of their crimes for further police in- vestigation. This we held to be "unnecessary delay" under Mallory1 and ruled the additional statements inadmissible on timely objection.2 Here the facts are substantially the same as in Naples and Williams. The police, having brought appellant and several witnesses to the killing of one Claude R. Smith to homicide headquarters for questioning, without undue de- 1 Mallory V. United States, 354 U.s. 449. 2 In Naples we reversed the conviction, timely objection to the admission of the additional statements having been en- tered. In Williams, where timely objection was not made, we stated: "Had there been timely and adequate objection at the trial, we could agree with the argument advanced by counsel appointed by this court that the trial judge should have excluded the statement attributed to Wil- liams when he was brought back to the store of the Na- tional Coin Company. By that time, the police already were possessed of ample evidence of probable cause upon which they could and should have brought Williams be- fore the Commissioner. Instead, they took the appellant to the~ scene of the crime. The statement then made could be said to have been elicited during a period of un- reasonable delay, and hence to have been erroneously re- ceived in evidence. * * `a" (pp. 4-5, slip opinion). PAGENO="0648" 642 AMENDMENTS TO CRTh~fl~AL STATUTES OF D.C. lay elicited an oral confession from her.3 She was there- upon placed under arrest at approximately 4:25 A.M. on Sunday, July 3, 1960~ After an additional hour of ques- tioning, the police returned appellant to the scene of the killing where, with her help, they found the weapon used, a knife. Thereupon, she was returned to homicide head- quarters, where the questioning continued until about 8:00 A.M. when she signed a full confession, claiming self de- fense. She was not brought before the committing mag- istrate until the following day, Monday, July 4, at 9:00 A.M.4 Since the time elapsed from arrest until the written confession was obtained and the police procedures used during that interval in this case were substantially the same as in Naples and Williams, in view of appellant's timely objection the ruling on the admissibility of the con- fession here must be the same.5 The Government attempts to distinguish this case from Naples and Williams, arguing that there the delay was daytime delay whereas here the delay until the confession was signed occurred between 4:30 and 8:00 o'clock in the morning, the suggestion being that a magistrate was not as available during that time. The record is barren of any evidence indicating that the police made any effort to de.. terrnine availability of a magistrate. And on argument the Government admitted that not only a magistrate, but ~ Appellant states that the admission of this threshold con- fession also violates Rule 5(a), but the point is not seriously urged, probably in view of our opinions in Naples, supra; Wil- liain~, supra; Lockley V. United States, 106 U.S.App.D.C. 163, 270 F.2d 915; Heideman V. United Stc1tes, 104 U.S.App.D.C. 128, 259 F.2d 943; Metoyer V. United States, 102 U.S.App. D.C. 62, 250 F.2d 30. 41n view of United States V. Mitchell, 322 U.S. 65, the ap- pellant makes no point of the delay subsequent to signing the confession. ~ See Note 2. Compare Metoyer V. United States, supra. PAGENO="0649" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 643 an Assistant United States Attorney, are, and were on July 3, 1960, available to the police twenty-four hours a day.6 The fact that it was more than twenty-eight hours after the arrest before the appellant was finally taken be- fore a magistrate indicates at least that getting her there "without unnecessary delay" was less than uppermost in their minds. The Government argues that, in any event, the admission of the written confession was harmless error,7 being merely cumulative. It may be seriously questioned whether any written and signed confession in a criminal case can ever be merely cumulative.8 A confession is a most persuasive form of proof. It is difficult to conceive its admission being non-prejudicial to the defendant under any circumstances.9 6 This arrangement with the United States Attorney and the Municipal Court has been in effect for several years. ~ R~ule 52(a), F.R.Cr.P. 8 With reference to a coerced confession, in Payne V. Ar- kansas, 356 U.S. 560, 568, the Court stated: "* * * But where, as here, a coerced confession consti- tutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment." See also, Lyons v. Oklahoma, 322 U.S. 596, 597, n. 1; Bram V. United States, 168 U.S. 532. ~ The right not to be a witness against one's self, like the right to counsel, is "too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of jrejudice arising from its denial." Gkisser V. United States, 315 U.S. 60, 76. PAGENO="0650" 644 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Here the written confession bore on appellant's claim of self defense, her oniy real defense. Unlike her oral con- fession, the statement "he was making his getaway" when she stabbed him appears onl7 in the written version, which she was unable to read. No language is better calculated to destroy a claim of self defense. And the jury during its deliberations, in spite of the "getaway" language in the written confession, was obviously concerned about the question of self defense because it requested additional in- structions on this very issue. Appellant's mental condition presented an issue for the jury. Two psychiatrists testified that her act was a prod- uct of mental disease or defect and one said it was not. Thus the jury was required to judge the credibility of the witnesses, a typical jury function. Judge Edgerton concurs in the court's disposition of the Mallory point, but dissents from its holding that a jury issue was presented as to mental disability. Reversed and remanded. BASTIAN, Circuit Judge, concurring in part and dissent- ing in part: I concur in the opinion of Judge Wright in its holding that the District Court did not err in refusing to grant appellant's motion for judgment of acquittal by rea- son of insanity. On the issue of insanity, the testimony of the psychiatrists at the trial of this case was in conflict as to the question of whether or not, at the time she com- mitted the crime charged against her, appellant was suffer- ing from a mental disease. In such circumstances, this is- sue was properly resolvable only by the jury and, in the instant case, the jury resolved it against appellant, as indeed they were entitled to do under our system of crirni- nal jurisprudence. My dissent is directed toward the majority's holding ap- PAGENO="0651" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 645 pellant's written confession inadmissible. While I recog- nize that the question is a close one, I do not think Rule 5(a) was violated here. I would affirm the judgment of the District Court. PAGENO="0652" 646 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Thtth~ ~`tati~ Q~Iniwt uf iprath FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 16,304 ERNEST MCDONALD, APPELLANT V. UNITED STATES OF AMERICA, APPELLEE Appeal from the United States District Court for the District of Columbia Decided October 8, 1962 Mr. Harry L. Ryan, Jr. (appointed by this court) for appellant. Mr. Nathan J. Paulson, Assistant United States Attor- ney at the time of argument, for appellee. Messrs. David C. Acheson, United States Attorney, Charles T. Duncan. Principal Assistant United States Attorney, and Arthur J. McLaughlin and Judah Best, Assistant United States At- torneys, were on the brief for appellee. Mr. Daniel J. McTague, Assistant United States Attorney, also entered an appearance for appellee. Mr. Abe Krash and Miss Selma Levine filed a brief on behalf of the American Orthopsvchiatric. Association, as anncu'? Curuie. PAGENO="0653" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 647 Mr. W~irren E. Magee filed a brief on behalf of the American Psychiatric Association, as amicus curiae. Before WILBUR K. MILLER, Chief Judge, and EDGERTON, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER and WRIGHT, Circuit Judges, sitting en banc. PER CURIAM: Appellant was convicted of manslaughter and sentenced to from five to fifteen years' imprisonment. He had been charged with second degree murder for aid- ing and abetting his employer, Davis, in the shooting of one Jenkins during an altercation. The District Court allowed this appeal in forma pauperis and we appointed new counsel. After the case was heard by a division of this court, a rehearing en banc was ordered sua sponte. In this appeal appellant urges that the court's charge to the jury was fatally defective in two respects. First, the court failed to state that, if acquitted by reason of insanity, appellant would be confined in a mental hospital until it was determined that he was no longer dangerous to himself or others. D.C.Code ~24-301(d). This state- ment is required unless it "appears affirmatively on the record" that the defendant did not want it. Lyles v. United States, 103 TLS.App.D.C. 22, 25, 254 F.2d 725, 728, certio- rari denied, 356 U.S. 961. Second, in its charge the court twice enumerated the alternative verdicts available to the jury. But both times it failed to include "not guilty because of insanity." Thus, before charging on the issue of insanity, the court in- structed the jury to return one of the following five pos- sible verdicts: (1) guilty of second degree murder, (2) guilty of manslaughter, (3) guilty of assault with a dan- gerous weapon, (4) guilty of assault, or (5) not guilty. (Tr. 275.) Later the court did charge the jury on criminal responsibility, concluding: "If you * * * are not satisfied beyond a reasonable doubt that the act was not a product of a mental defect, then your verdict must he not guilty because of insanity." (Tr. 288.) PAGENO="0654" 648 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Alter the charge was concluded, the court called a bench conference at which defense counsel expressed substantial' satisfaction with the instructions, making no reference to or request concerning the so-called Lyles instruction on mandatory commitment of persons found not guilty by reason of insanity. Thereupon the court told the jury: "I am going to repeat something that I said to you earlier and that is that you may return any one of five possible verdicts in this case. Your verdict may be either guilty of second degree murder or guilty of manslaughter or guilty of assault with a dangerous weapon or guilty of assault or not guilty." (Tr. 290.) The Government urges us to find from defense counsel's failure to object to the court's charge that it "appears affirmatively" that appellant did not want the Lyles im- struction on hospital confinement, and that the omission of an insanity verdict from the court's lists of alternatives must be deemed harmless because of reference to it else- where. The Government also urges that the evidence was insufficient to require an instruction on responsibility, hence any defects in the instruction are immaterial. We do not agree that the instruction was unnecessary. I. Tinder Davis v. United States, 160 U.S. 469, if there is "some evidence" supporting the defendant's claim of men- tal disability, he is entitled to have that issue submitted to the jury. Under Durham v. United States, 94 tT.S.App. D.C. 228, 214 F.2d 862, evidence of a "mental disease" or "mental defect" raises the issue. The subject matter being what it is, there can be no sharp quantitative or qualitative definition of "some evidence." Certainly it means more 1 Defense counsel requested a further charge upon a matter not relevant here. The court denied the request. PAGENO="0655" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 649 than a scintilla,2 vet, of course, the amount need not be SO substantial as to require, if uncontroverted, a directed verdict of acquittal.3 The judgment of the trial judge as to the sufficiency of the evidence is entitled to great weight on appeal, hut, since the defendant's burden is* merely to raise the issue, any real doubt should be resolved in his favor.4 In this ease a psychiatrist and a psychologist testified that the defendant had a "mental defect," principally be- cause his I.Q. rating shown by various tests was below the "average" intelligence range of 90 to 110. His overall I.Q. was 68. Neither witness was able to say whether appel- lant's mental defec.t stemmed from organic injury or from some other cause. But the psychiatrist testified that some organic pathology can oniy be established by autopsy and that McDonald's defect probably prevented him from pro- gressing beyond the sixth grade. The witnesses also explained generally how mental de- fect affects behavior. The psychologist testified that a 2 V. United States, 209 U.S. 36, 38. ~ Compare Tatum V. United States, 88 U.S.App.D.C. 386, 190 F.2d 612; Durham V. United States, 94 U.S.App.D.C. 228, 232, 214 F.2d 862, 866; Wright V. United States, 102 TJ.S.App. D.C. 36, 39, 250 F.2d 4, 7; Logan V. United States, 109 U.S. App.D.C. 104, 284 F.2d 238; Fitts v. United States, 10 Cir., 284 F.2d 108; United States v. Currens, 3 Cir., 290 F.2d 751, 761; Hall V. United States, 4 Cir., 295 F.2d 26. "In considering the quantum of evidence necessary to raise the issue of criminal responsibility, we cannot ignore our experience that in most cases the accused does~ not possess the knowledge and financial ability required to seek and obtain expert testimony in his behalf. Ordinarily such persons can only obtain examinations by psychiatrists employed in gov- ernment institutions, and if these examinations are inade- quate, "the [resulting] inadequacy of the evidence is not a point in favor of the prosecution." Williams V. United States, 102 U~.App.D.C. 51, 55-56, 250 F.2d 19, 23-24. PAGENO="0656" 650 AMENDMENTS TO CRIMINAL STATUTES OF D.C. person suffering from a mental defect would have less ability than, normal persons to distinguish between right and wrong in complex situations (Tr. 233); would tend to act impulsively under stress (ibid.); and would readily become dependent upon and be strongly influenced by someone who befriended him (Tr. 234-235). The witness testified further that McDonald had a mental defect, which she defined as "a state of mental development which does not reach the level of average intelligence," (Tr. 245) and that "if McDonald had a person on whom he was depend- ent ~ ~ * and if that person should produce a gun and threaten another * * ~ McDonald [would not] be as able as the average adult to assess and evaluate the situation and the consequences of whatever action he might take * `~ ~" (Tr. 235) .~ The psychiatrist stated ,that McDonald would lack the ability of normal persons to foresee the consequences of his acts and offered an opinion that ap- pellant's relationship to Davis was to some extent a product of his mental deficiency. Evidence of a 68 I.Q. rating, standing alone and without more, is not evidence of a "mental defect," thus involdng the Durham charge. Where, as here, other evidence of mental abnormality appears, in addition to the I.Q. rating, the Davis case would control and the instruction should be given. The introduction of competent evidence of mental disorder raises the issue of causality sufficient for jury (eonsideration. See Durham v.~ United States, 94 U.S.App. D.C. 228, 241, n.49, 214 F.2d 862, 875, n.49; Bloc7~er v. United States, 107 TLS.App.D.C. 63, 274 F.2d 572; Go forth v. United States, 106 U.S.App.D.C. 111, 269 F.2d 778; United States v. Amburgey, D. D.C., 189 F.Supp. 687. Cf. Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612. It does not follow, however, that whenever there is any testimony which may be said to constitute "some evidence" ~ McDonald's testimony suggests that he was financially and socially dependent upon Davis. (See Tr. 161-163.) PAGENO="0657" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 651 of mental disorder, the Government must present affirma- tive rebuttal evidence or suffer a directed verdict. A di- r~cted verdict requires not merely "some evidence," but proof sufficient to compel a reasonable juror to entertain a reasonable doubt concerning the accused's responsibility.6 Durham v. United States, 94 U.S.App.D.C. at 232, n.8, 214 F.2d at 866, n.8; Hall v. United States, 4 Cir., 295 F.2d 26. See 9 Wigmore, Evidence, ~2487; Abbott, Two Burdens of Proof, 6 llarv.L.Rev. 125. Whether uncontradicted evi- dence, including expert opinion evidence, which is suf- ficient to raise a jury question on the mental issue is also sufficient to require a directed verdict depends upon its weight and credibility. Douglas v. United States, 99 ilLS. App.D.C. 232, 239 F.2d 52. Davis v. United States, 160 11.5. 469, clearly supports this position. There the Su- preme Court said that tl.ie jury, in considering an insanity plea, must weigh all tue evidence, including the presump- tion of sanity. Id. at 488. Whether uncontradicted ex- pert testimony overcomes the presumption depends upon its weight and credibility~ and weight and credibility ordi- naril.y are for the jury. See Stewart v. United States, 94 TT.S.App.D.C. 293, 295, 214 F.2d 879, 882. II. Our eight-year experience under Durham. suggests a judicial definition, however broad and general, of what is included in the terms "disease" and "defect." In Durham, rather than define either term, we simply sought to dis- tinguish disease from defect. Our purpose now is to make it very clear that neither the court nor the jury is bound by 6 Wright V. United States, 102 U.S.App.D.C. 36, 250 F.2d 4; Douglas V. United States, 99 U.S.App.D.C. 232, 239 F.2d 52; Satterwhite V. United States, 105 U.S.App.D.C. 398, 267 F.2d 675; Hopkins V. United States, 107 U.S.App.D.C. 126, 275 F.2d 155; Campbell V. United States, D.C.Cir., F.2d (3/29/62). 25-260 0-64-pt. l-42 PAGENO="0658" 652 AMENDMENTS TO CRIMINAL STATUTES OF D.C. ad hoc definitions or conclusions as to what experts state is a disease or defect. What psychiatrists may consider a "mental disease or defect" for clinical purposes, where their concern is treatment, may or may not be the same as mental disease or defect for the jury's purpose in deter- mining criminal responsibility. Consequently, for that purpose the jury should be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls. Thus the jury would consider testimony concerning the development, adaptation and functioning of these processes and controls. We emphasize that, since the question of whether the defendant has a disease or defect is ultimately for the triers of fact, obviously its resolution cannot be controlled by expert opinion.7 The jury must determine for itself, from all the testimony, lay and expert, whether the nature and degree of the disability are sufficient to establish a mental disease or defect as we have now defined those terms. What we have said, however, should in no way be construed to limit the latitude of expert testimony.8 Carter v. United States, 102 tT.S.App.D.C. 227, 236, 252 F.2d 608, 617. m. Having determined in Part I hereof that the charge on criminal responsibility was required, we revert now té a consideration of the other contentions made by the parties with respect to that charge as given. The able and éxperi- enced trial court, in the course of the charge, failed to give the Lyles instruction concerning the disposition of a de- 7See, however, Isaac V. United States, 109 t.LS.App.D.C. 34, 284 F.2d 168, where the evidence required the direction of a judgment of acquittal by reason of insanity. 8 See Note 9, infrá. PAGENO="0659" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 653 fendant acquitted by reason of insanity, and we are un- able, from our study of the record, to say that this de- fendant affirmatively waived it. Lyles v. United States, supra, 103 TJ.S.App.D.C. at 25-26, 254 F.2d at 728-729. Since the case will have to be retried, it may he well simply to note two other inadvertencés in the court's charge which we are confident will not recur on retrial. As heretofore indicated, following a bench conference after the judge had concluded his charge, an additional in- struction was given the jury, outlining the alternative pos- sible verdicts, without including not guilty by reason of insanity. Also, in its concluding remarks relating to men- ta.l responsibility of the accused, the court charged as follows: "If you find that this defendant committed this* of- fense, that is, murder in the second degree or the les- ser included offenses and you further find that at the time he committed this offense he was suffering from a mental disease or defect which affected him, that he was incapable of distinguishing right from wrong or if he could tell right from wrong was incapable of controlling his actions, then you would find that the defendant's act was the product of the defendant's mental abnormality." (Tr. 283.) This is not an accurate statement of the test for criminal responsibility in this Circuit. We think the jury may be instructed, provided there is testimony on the point, that capacity, or lack thereof, to distinguish right from wrong and ability to refrain from doing a wrong or unlawful act9 may he considered in determining whether there is a re- ~ An expert may not be compelled to testify in these terms if he believes they are essentially moral or legal considera- tions beyond the scope of his special competence as a be- havioral scientist. Stewart v. United States, 101 U.S.App. D.C. 51, 53, 247 F.2d 42, 44. PAGENO="0660" 654 AMENDMENTS TO CRIMINAL STATUTES OP D.C. lationship between the mental disease and the act charged. It should be remembered, however, that these considera- tions are not to be regarded `in themselves as independently controffing or alternative tests of mental responsibility in this Circuit. They are factors which a jury may take into account in deciding whether the act charged was a product of mental disease or mental defect. Wright v. United States, supra, 102 U.S.App.D.C. at 44, 250 F.2d at 12; Mise~- heime~r v., United States, 106 U.S.App.D.C. 220, 271 F.2d 486, certiorari denied, 361 U.S. 971. Reversed and remanded. DANAHER, Circuit Judge,. concurring: I concur* in Parts 1,11 and Ill of the court's opinion. As to the Lyles point with respect to hospital confine- ment following a verdict of not guilty by reason of insan- ity, I have, not changed my view. Here the defense did nOt request such an instruction al- though various other requests were submitted. Rule 30 provides that no omission from the charge shall be as- signed, as error by the appellant unless before the jury re- tires, objection be made "stating distinctly the matter to which he objects and the grounds of his objection" `The judge specifically asked trial counsel if he had "any other objection to the charge, a.s given." He replied, "No other objection to the charge." Of `course the instruction, if requested, would have been `given. Cf. Bruno v. United States, 308 U.S. 287 (1939). But in view of the tual strategy the accused may not have wanted an instruction on the Lyles question We now seem to say that the defense could sit back, wait to see what verdict the jury might reach, and thereafter secure "réve~-' sal here because it does not "affirmatively" appear that the Lyles instruction `was waived. "Lyles thus becomes a legal PAGENO="0661" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 655 trap for the trial judge who relied upon the position voiced by counsel. I do not subscribe to that view. BASTIAN, Circuit Judge, concurring: I concur, except that I adhere to the view stated in my opinion in Lyles v. United States, 103 TLS.App.D.C. 22, at 29, 254 F.2d 725, at 732 (1957), cert. denied, 356 U.S. 1961 (1958), that the trial court should not he obliged to give, in its charge, a state- iiient as to the effect of a verdict of not guilty by reason of insanity. I believe Parts I and II of the majority opinion are cor- rect and will do much to relieve the natural uncertainty in the minds of the District Court as to the insanity question. WILBUR K. MILLER, Chief Judge, dissenting in part and concurring in part: Distilled to its essence, the majority opinion reverses McDonald's conviction because the trial judge did not tell the jury the "meaning" 1 of a verdict of not guilty by rea- son of insanity, as apparently required by Lyles v. United States.2 That is the only decisional conclusion reached by the majority, as clearly appears from the following excerpt from the latter portion of their opinion: The able and experienced trial court, in the course of the charge. failed to give the Lyles instruc- tion concerning the disposition of a defendant acquit- ted by reason of insanity, and we are unable, from our study of the record, to say that this defendant af- 1 That is, the consequences. 2 103 U. S. App. D. C. 22, 254 F. (2d) 725 (1957). PAGENO="0662" 656 AMENDMENTS TO CRIMINAL STATUTES OF D.C. firmatively waived it. Lijles v. United States, supra, 103 U. S. App. D. C. at 25-26, 254 F. 2d at 728-729. Since the case will have to be retried, it may be well simply to note two other inadvertences in the court's charge which we are confident will not recur on re- trial." Thus, the majority are saying that the case will have to be retried because the Lyles instruction was not given, i.e., that the judgment is being reversed for that reason. Having so ruled, they say "it may be well simply to note two other inadvertences in the court's charge . . .." (Em- phasis added.) The majority do not base reversal on either of those "two other inadvertences," nor could they reasonably have done so, as I shall show later in this dis- sent. I dissent from the reversal of McDonald's conviction on the ground that the Lyles instruction was not given because I am convinced that the majority opinion in the Lyles case is in that respect not an authoritative holding of this court and therefore is not binding on us in this or any other case; and that, if it is a binding precedent, it should be over- ruled as an incorrect statement of the law. I think, more- over, that if the Lyles requirement of the "meaning" in- struction is considered authoritative, and if it is not over- ruled, nevertheless McDonald's conviction should not be reversed for the failure to give it, because it appears affirmatively on the record that McDonald did not want the instruction. In that event, the Lyles opinion says it is not reversible error to omit the "meaning" instruction. First, as to my suggestion that the Lyles requirement of the "meaninq" instruction is obiter dictum. There the ma- jority correctly but unnecessarily say a verdict of not guilty by reason of. insanity "means the~ accused will be confined in a hospital for the mentally ill until the superin- tendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future he dangerous to himself or others." PAGENO="0663" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 657 Then this language fOllows, 103 U. S. App. P. C. at 25-26, 254 F. (2d) at 728-729: "Sometimes a defendant may not want such an in- struction given. If that appears affirmatively on the record we would not regard failure to give it as grounds for reversal. Otherwise, whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity in accord- ance with the view expressed in this opinion." The implication is clear that a failure to instruct on the "meaning" of such a verdict would be regarded as re- versible error, unless the accused had indicated he did not want the instruction. I suggest that Point I of the Lyles majority opinion, which includes the language just quoted, is not an authori- tative holding of this court, but is a gratuitous essay on the subject with which it deals. It decides a question which was not presented by the facts of the L'yles case, and was not suggested or discussed by the parties. Demon- strablv, it is obiter dictum which the court is not required to follow in this or any case. An analysis of the introductory paragraphs of the Lyles Opinion and its text under Point I will show the foregoing to be true. The Lijles majority said in an early paragraph, id. at 24-25, 254 F. (2d) at 727-728: "Our present consideration is addressed to several issues which can he stated as follows: `1. in cases where the defense of insanity is as- serted what, if anything, should the court instruct the .iury about the consequences of a. verdict of not guilty by reason of insanity, pursuant to P. C.' Code ~ 24-301V' (Three other t~issues~~ are stated, with which we are not concerned.) . Thus, they were careful not to say this "issue" was pre- sented by the parties or inherent in the record. Con- sciouslv, then, they stated an abstract question and pro- PAGENO="0664" 658 AMENDMENTS TO CRIMINAL STATUTES OF D.C. ceeded to give an advisory and directory opinion about it. This is not, I think, a function of an appellate court. The Lyles majority announced,.in effect, that failure to give the "meaning" instruction is reversible error; but they said it in a case in which the instruction had been given in lan- guage which they said was satisfactory! This is apparent from the text of the Lyles majority opinion under Point I which discusses the "issue" quoted above. The discussion begins thus, id. at 25, 254 F. (2d) at 728: "The judge told the jury: "If a defendant is found not guilty on the ground of insanity, it then becomes the duty of the Court to conmiit him to St. Elizabeths Hospital, and this the Court would do. The defendant then would remain at St. ,Elizabeths Hospital until he is cured and it is deemed safe to release him; and when the time arrives he will be released and will suffer no further conse- quences from this offense.'" Nobody criticized or attacked the foregoing statement in the court's charge and, as I have pointed out, the Lyles majority said it was satisfactory. Giving the instruction just quoted was not, therefore, one of the "Plain errors or defects affecting substantial rights" which Rule 52(b) of the Federal Rules of Criminal Procedure says "may be noticed although they were not brought to the attention of the court." Regardless of that, they said, after quoting from the charge: "This point arises under the doctrine, well estab- lished and sound, that the jury has rio concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the prob- lem before us. . . ." (Emphasis supplied.) But, as shown - above, there was no problem before the court of the sort which the Lyles majority stated and dis- cussed under Point I, except a so-called "issue" which they themselves posed as a problem, but which was not in the PAGENO="0665" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 659 case. I repeat that neither party had said the judge's charge in this respect was improper, inadequate or incom- plete, and point out again that the Lyles majority found it satisfactory. In those circumstances, it seems plain that the whole discussion under Point I is obiter dictum which should not be treated as an authoritative holding. It was not until Point II was reached that the Lyles ma- ;jority began to discuss an issue which was actually pre- sented. The discussion begins thus, id. at 26, 254 F. (2d) at 729: "Having made to the jury the statement above quoted and discussed, the trial judge immediately said: "~ `I think I should add that Dr. Cushard of St. Elizabeths Hospital testified, as you will recall,that on a prior occasion he found no mental disorder whatever in the defendant, and that the defendant was a man of average intelligence.' Dr. Cushard had so testified. The question is whether the trial judge erred in making the quoted remark at the time and in the context in which he made it. . . This was the portion of the judge's charge that was actual- ly attacked by the appellant. He called it a "gratuitous digression" which "conveyed to the jury that the Appellant would be promptly released due to the fact that Doctor Cushard testified that Lyles was `without mental disorder during his residence at St. Elizabeths Hospital.'" This, said Lyles, "effectively undermined the defense of insan- ity." With respect to this, the Government's brief said: "Appellant argues still further, not that the trial court failed to instruct in accordance with applicable legal principles, but only that the summarization viti- ated by innuendo the otherwise admittedly correct in- structions. . . ." Curiously enough, the Lyles majority refused to reverse on Point II. I discuss this Point only to emphasize the fact that Point I was not mentioned in either brief, and that PAGENO="0666" 660 AMENDMENTS. TO CRIMINAL STATUTES OF D.C. only the attack on the instructions, discussed in the Lyles case in Point II, was presented to the court. Second, as to my suggestion that the Lyles requirement of the "meaning" instruction is incorrect as a matter of law and should be overruled. As I have said, in the pres- ent case the majority depend entirely upon the gratuitous dictum of Point I of the T~yles opinion `as requiring re- versal. Of course they can, if they choose, adopt the pro- nouncements of Point I and authoritatively announce here that a failure to give the instruction there prescribed was reversible error, for this is a ease in which the instruction was not given and, according to the majority, was not af- Iirrnatively waived. But they have not made such an origi- nal announcement; apparently they have considered them- selves hound by the Lyles dictum, and have followed it without adopting it as their own holding. I think it should not he adopted here because, in my view, it is not a correct statement of the law. A verdict of not guilty by reason of insanity is covered by what the Lyles majority admitted is "the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or in the nature or extent of it, or in probation." If the Lyles majority's Point I discussion he regarded as an actual holding instead of a mere statement by the way, for the same reasons I think it should he overruled. In elaboration of those reasons, I reproduce here a portion of Judge Bastian's dissent from Point I of the Lyles opin- ion, in which Judge Danaher and I joined, id. at 29-30, 254F. (2d) at 732-733: "It seems to me unwise and unnecessary that a jury he told the result of their verdict of `not guilty by rea- son of insanity.' In Federal courts, as at common law, the' jury are not told the quantum of punishment which may be meted out if they convict, or that probation may be granted. For instance, they are not told that if a defendant ~s found guilty of manslaughter he may be PAGENO="0667" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 661 punished by a ime not exceeding $1,000 or imprison- ment not exceeding 15 years, or both. This is salutary, since their only function is to determine from V the evi- dence the factual issue of guilt or innocence, and in reaching a verdict they should not he swayed by an extra-evidenti arv consideration such as whether they approve of the possibility of probation or of the p~n- alty which may he imposed by the trial judge. The jury will probably know, as Judges Prettyman and Burger suggest. that a verdict of guilty will result in the imposition of punishment unless probation is granted. but they will not know what the punishment may be and, therefore, will not he influenced to acquit if they consider the possible penalty too severe. ~`The issue of insanity, fairly raised, does no more than present an other factual question to the jury: whether the defendant was mentally responsible when the criminal act was done. That issue also should be determined on the basis of the evidence only and, in deciding it, the jury should not be influenced by a con- sideration of the result of an acquittal by reason of insanity; that is an extraneous consideration wholly unconnected with the evidence from which the jury must reach a determination of the factual issue raised concerning the defendant's mental condition. "In short, the jury should he told nothing as to how the defendant will he dealt with in case of acquittal by reason of insanity. . . A strong statement which takes the -same position was made by the Fifth Circuit in Pope v. United States, 298 F. (2d) 507 (1962), where the court had an identical question before it. The only error specified by Pope was the refusal of the trial court to grant his request for the following in- struction to the jury, which he lifted from the Lyles opin- ion, 298F. (2d) at508: V V "Tf a defendant is found not guilty on the ground of insanity, it then becomes the duty of the Court to com- mit him to St. Elizaheths Hospital, and this the Court would do. The defendant then would remain at St. Elizabetlis Hospital until he is cured and it is deemed safe to release him; and when that time arrives he will PAGENO="0668" 662 AMENDMENTS TO CRIMINAL STATUTES OF D.C. be released and will suffer no further consequences * from this offense." The court said:* V V V V V "We have concluded tl1at the court properly refused V V the charge. It is nøt a correct statement of the law. V V "The primary question raised here relates in large measure to the province of the court and the duty and function of a jury in a criminal case where the statute imposes the duty upon the court to determine the sent tence to be given. Generally spealdng, jurors decide * the facts in accordance with the rules of law as stated in the instructions of the court. Unless otherwise pro- V V vided by statute, it is the dut~~ of the court to impOse sentence, or make such other disposition of the case as required by law, after the facts have been decided V1)V the jury. To inform the jury that the court may impose minimum or maximum sentence, will or will not grant probation, when a defendant will be eligible for V a V parole, or other matters relating to the disposi- tion of the defendant, tend to draw the attention of V the juryawav from their eluef function a.s sole judges of the facts, open the door to compromise verdicts, and V to confuse the issue or issues to he decided V Pope cited and relied upon the Lyles case, but the Fifth Circuit merely said. "Different rules and different statutes apply to the Court i.n the District of Columbia . . .." This was a polite way of rejecting the Lyles case as unsound. The statutes are not substantially different, and the rules are different only because a majority of this court an- nounced by way of dictum a rule which the Fifth Circuit thought incorrect. For the reasons given in Judge Bas- tian's Lyles dissent and in the Pope case, I vigorously pro- test against the adoption of the Tjyie,~ Point I dtctum as the law of this circuit. V Third, as to my suggestion that the Lyles instruction was waived. Even if the Lyles Point I is adopted by the present majority as the law of this circuit, or if it Is held by them to he an authoritative pronouncement instead of obiter dictu . I strongly urge that, nevertheless, they err PAGENO="0669" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 663 in reversing McDOnald's conviction because the Lyles in- struction was not given; for I think it "appears affirma- tively on the record" that he did not want such an instruc- tion given. With respect to this, the majority merely say, ". . . [W]e are unable, from our study of the record, to say that this defendant affirmatively waived" the Lyles instruction. Their only discussion of the record in this regard is the following: "After the charge was concluded, the court called a bench conference at which defense counsel expressed substantial satisfaction with the instructions, maldng no' reference to or request concerning the so-called Lyles instruction on mandatory commitment of per- sons found not guilty by reason of insanity. . . I think this is quite enough to justify the conclusion that defense counsel, who undoubtedly was familiar with the Lyles decision, deliberately decided lie did not want the in- struction given. The import of the majority's language is that the instruction is not "affirmatively waived" unless the trial judge says in effect, "I am required to give the Lyles instruction unless you do not want it," and defense counsel answers, "We do not want it given." This is, I think, a far too stringent restriction of the principle of waiver. My view is that, by hi~s approval of the charge without the Lyles instruction, and his failure to request that it be given, McDonald'~ counsel effectively and affirmatively indicated lie did not want it given. In passing, I suggest that it is unusual-to use a mild adjective-to permit a defendant to tell the trial judge whether or not to give an instruction said by the Lyles majority to be so necessary that its omission will require reversal. In addition to the omission of the Lyles' instruction which hO `assigned as' error, `McDonald argues the court's charge to the jury was fatally defective in a second respect which the majority describes as follows: ". . . [I]n its charge the, court twice enumerated the PAGENO="0670" 664 AMENDMENTS TO CRIMINAL STATUTES OF D.C. alternative verdicts available to the jury. But both times it failed to include `not guilty because of insan- ity.' Thus, before charging on the issue of insanity, the court instructed the jury to return one of the fol- lowing five possible verdicts: (1) guilty of second de- gree murder, (2) guilty of manslaughter, (3) guilty of assault with a dangerous weapon; (4) guilty of assault, or (5) not guilty. Later the court did charge the jury on criminal responsibility, concluding: `If you . . . are not satisfied beyond a reasonable doubt that the act was not a product of a mental defect, then your verdict must be not guilty because of insanity.' "After the charge was concluded, the court called a bench conference at which defense counsel expressed substantial satisfaction with the instructions Thereupon the court told the jury: "`I am going to repeat something that I said to you earlier and that is that you may return any one of five possible verdicts in this case. Your verdict may be either guilty of second degree murder or guilty of manslaughter or guilty of assault with a dangerous weapon or guilty of assault or not guilty." No further reference to McDonald's second attack on the instructions i.s made by the majority except the following comnient after the final announcement of reversal because of the omission of the Lyles "meaning" instruction: "Since the case will have to be retried, it may be well simply to note two other inadvertences in the court's charge which we are confident will not recur on retrial." The first of these "inadvertences" was thus described: ". . . [F]ollow- ing a bench conference after the judge had concluded his charge, an additional instruction was given the jury, out-. lining the alternative possible verdicts, with out including not guilty by reason of insanity. .. Thus, the fact that the trial judge, although lie instructed the jury carefully, correctly and at considerable length3 ~ The portions of the charge having to do with the possible verdict of not guilty by reason of insanity aggregate about five pages of transcript. PAGENO="0671" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 665 that it might find McDonald not guilty, by reason of insan- ity,"did not include that in a list of possible verdicts is de: scribed by' the majority as .an "inadvertence" only; it is not characterized as eiror, and certainly revetsal is not based upOn it. Nor could it logically have been. It is elementary that a judge's charge to a jury is .to be considered as a whole, and that parts of it are not to be picked out as so deficient as to require reversal when the supposed de- ficiency is remedied or supplied by another portion of the charge. To me, it is inconceivable that the jury could have been misled into thinking that it could not return a verdict of not guilty by reason of insanity when the judge had so emphatically and at such length, and at more than one place in the charge, instructed it that it might do so. Moreover, the listing of five possible verdicts in the charge plainly was not intended, to exclude the possibility of a verdict of not guilty by reason of insanity. This clear- ly appears from the j~idge's language when he first men- tioned the five possible verdicts: "What, then, do these lesser included offenses mean to you as members o. this jury~ They mean that you have the right to return any one of five possible ver- dicts in this case. You' may find this defendant guilty as indicted, which is guilty of murder in the second degree; or, you lilay find the defendant guilty of man- slaughter; or, you may find the defendant guilty of as- sault with a dangerous weapon; or, you may find the defendant guilty of assault, or you may find the de- fendant not guilty." It will he observed from the foregoing that the judge was discussing and tryi.ng to clarify the signicance of the term "lesser included offenses." To construe this as excluding a `~ eid~ct of not gullt\ by i cason of insanity, which he dis (ussed at such li n gth and wlth such cai e in other places in the charge, seems to me to he' not only illogical" but" also a decided undervaluation of the intelligence of the `average ]Ui~ I note also that McDonald's counsel did. not complain PAGENO="0672" 666 AMENDMENTS TO CRIMINAL STATUTES OF D.C. that the charge might give the jury the impression that ac- quittal for insanity was not a possible verdict. At the end of the charge, the judge asked, "Does the defendant re- quest any further chargeV', to which his counsel responded, "Yes. We renew our request for the charge on the right to recover stolen property." Thus, he approved of the por- tion of the charge now criticized by the majority. Quoted by the majority in this connection is the following statement by the trial judge after a bench conference which followed the conclusion of the charge: "I am going to repeat something that I said to you earlier and that is that you may return any one of five possible verdicts in this case. Your verdict may be either guilty of second degree murder or guilty of manslaughter or guilty of assault with a dangerous weapon or guilty of assault Or not guilty." As he expressly said, he was repeating an earlier statement ~l~ich was an explanation of the significance of the term "lesser included offenses." It was not intended to, and I feel sure it did not, expunge from the minds of the jurors the painstaking instiuction already given that a veidict of not guilty by reason of insanity might be returned. The second "inadvertence" in the court's charge is thus described and treated in the majority opinion: Also, in its concluding remarks relating to men- tal responsibility of the accused, the court charged as follows: "`If you find that this defendant committed this offense, that is, murder in the second degree or the lesser included offenses and you further find that at the time he committed this offense he was suffering from a mental disease or defect which affected him, that he was incapable of distinguishing right from wrong or if he could tell right from wrong was in- capable of controffing his actions, then you would ñnd that the defendant's act was the product of the. defendant's mental abnormality.' "This is not an accurate statement of the test for criminal responsibility in this Circuit. We think the PAGENO="0673" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 667 jury may be instructed, provided there is testimony on the point, that capacity, or lack thereof, to distinguish right from; wrong and ability to refrain from doing a wrong or unlawful act may be considered in determin~ ing whether there is a relationship between the mental thsease and the act charged. It should be remembered, however, that these considerations are not to be re- garded in themselves as independently controlling or alternative tests of mental responsibility in this Cir- cuit. They are factors which a jury may take into ac- count in deciding whether the act charged was a prod- uct of mental disease or mental defect. Wright v. United States, supra, 102 II. S. App. D. C. at 44, 250 F. 2d at 12; Misenheimer v. United States, 106 U. S. App. B. C. 220, 271 F. 2d 486, certiorari denied, 361 U. S. 971." The Wright opinion is wrong, as I think I demonstrated in dissenting from it. Judges Danaher and Bastian joined in my dissent, and Judge Burger concurred only in the re- sult reached by the majority opinion. I think the Wright case should be reexamined and repudiated. The Misenheimer case cited by the majority does not seem to me to support their conclusion. But I must admit that Campbell v. United States,4 which I think should be overruled as grossly erroneous, does support it. The lat- ter case makes specific a rule which the court had in effect adopted in the Durham case and subsequent decisions: that a defendant may be sane to the extent that he is able to distinguish right from wrong and to control his conduct SQ as to refrain from doing wrong, and yet have some other sort of mental infirmity which excuses him from criminal responsibility. For example, that he is "emotionally un- stable ;" that, as here, he may be. led by a dominant per- sonality; that he is a "sociopath," which really means that he cannot get along with other people. This rule has been developed over my repeated protests. £!No. 16, 414, decided March 29, 1962. 25-260 0-64--pt 1-43 PAGENO="0674" 668 AMENDMENTS TO CRIMINAL STATUTES OF D.C. I renew them here. The Campbell case should be overruled and the cases from which it sprang, including Durham v. United States,5 should also be repudiated or substantially modified. My view is that a person who deliberately chooses to do what he intelligently knows is a criminal act, although he has mental capacity enough to refrain from doing it, should not be excused from criminal responsibility because in some other respects he differs from ordinary men. If a defendant has mental capacity to understand the criminality of his act and to refrain from doing it, he is sane in the legal sense, even though he may have some eccentricities or limitations of ñiental ability in other re- spects whicli psychiatrists may say amount to a mental disease or defect. These are my reasons for dissenting from the reversal of McDonald's conviction. In the main, I agree with Part I of the majority opinion, particularly with that portion which discusses the "some evidence" holding of the Davis case.6 How much evidence is the "some evidence" referred to in that casey Unless and until the Supreme Court changes the Davis rule, which F hope it will do. the district and circuit courts will be forced to answer that question. The majority are correct, I think, in saying, "Certainly it [the Davis `some evidence' rule] means more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncon- troverted, a directed verdict of acquittal." But the ma- jority do not go far enough. They should expressly over- rule cases such as Tatnm v. United States, 88 U. S. App. D. C. 386, 190 F. (2d) 612 (1951); Clark v. United States, 104 TJ. S. App. D. C. 27, 259 F. (2d) 184 (1958); and Go- forth v. United States, 106 U. S. App. D. C. 111, 269 F. (2d) 778 (1959), which held the insanity issue was raised by 594U. S. App. D. C. 228, 214F. (2d) 862 (1954). 6Davis v. United States, 160 U. S. 469 (1895). PAGENO="0675" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 669 the defendants' self-serving statements which in my view did not constitute even a scintilla of evidence of insanity. In the Tatum case, this court said :~ "In essence, how- ever, the entire defense [of insanity] rested upon appel- lant's insistence that he remembered nothing of what hap- pened at the time the offense was committed." Tatum's trial counsel did not request, and the trial court did not give, an instruction on insanity, and the omission was not urged as error on appeal. But this court, acting under the "plain error" rule,8 held the instruction should have been given because the issue was raised by Tatum's statement that he did not remember committing the crime. In its Opifli on the court said :~ `[I] n criminal cases the defendant is entitled to have presented instructions relating to .a theory of de- fense for which there is any foundation in the evi- deuce, even though the evidence may be weak, insuf- ficient, inconsistent, or of doubtful credibility. He is entitled to have such instructions even though the sole testimony in support of the defense is his own.'~. . ." This statement is at variance with the majority's pro- nouriceinent in this case-in which I heartily join-that a scintilla is not enough, under which. Tatum's conviction could not have been reversed. It is essential, I think, that the Tatum case be overruled. The Clark case is of the same type and, pursuant to what the majority now says, should be repudiated. There, this court said: "Defense counsel's attempt to take the issue of insanity out of the case was error." 10 Defense counsel had ~88 U. S. App. D. C. at 388, 190 F. (2d) at 614. 8 Rule 52(b), Fed. R. Crim. P. ~ 88 U. S. App. D. C. at 391, 190 F. (2d) at 617, quoting 53 Am. Jr., Trial, § 580, p. 458. 10 J suppose the court meant to say this amounted to in- effective assistance of counsel. PAGENO="0676" 670 AMENDMENTS TO CRIMINAL STATUTES OF D.C. conceded that his client was guilty of some degree of homi- cide, although the trial judge told the jury Clark had raised the issue of insanity by merely saying from the stand, "I must have been insane." By holding that in such a setting defense counsel was ineffective because he did not argue the issue of insanity, this court approved the trial judge's ruling that Clark's statement was sufficient to raise the issue. I suggest that the statement was not "some evi- dence"~ of insanity and did not amount even to a scintilla. If a defendant may raise the issue of insanity by simply saying, "I must have been insane," the Government must he prepared to meet the issue in every criminal case. This court's approval of a ruling to that effect should be re- placed by disapproval. The Go forth case is equally inconsistent with the major- ity's holding in the present case as to the "some evidence" rule. As the dissenting judge said:" "There was not one word of testimony from any source to indicate that appellant was suffering from any mental disease or defect. At the most there was only his own testimony, totally uncorroborated, as to imaginings of his intoxicant-befuddled mind-a not unusual phenomenon of continued and continuous drinking, and a far cry from mental disease or defect." As to Part II of the majority opinion, I thoroughly agree with the majority that "...What psychiatrists may consider a `mental dis- ease or defect' for clinical purposes, where their con- cern is treatment, may or may not be the same as mental disease or defect for the jury's purpose in de- termining criminal responsibility. . . That is what I meant when I said earlier in this dissent that a person who chooses to do what he knows is a crimi- nal act, when lie is mentally able to control his conduct and refrain from doing the crimina.l act, is sane in the legal sense even though he has some aberration or emotional 11 106 U. S. App. D. C. at 113, 260 F. (2d) at 780. PAGENO="0677" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 671 disturbance which psychiatrists classify as a mental dis- ease or defect. In such a case, the psychiatrically diag- nosed "mental disease" could not possibly be the cause of the crime. It is therefore my conclusion that the judgment of con- viction should be upheld and I dissent from its reversal. But, with the limitations indicated, I concur in Parts I and II of the majority opithon, which could largely be retained in an opinion affirming the conviction. In fact, I think the court should go further than it does in those portions of the majority opinion, and should take the steps advocated by a minority of the court in Blocker v. United States, 110 U. S. A.pp. D. C. 41., at 61, 288 F. (2d) 853, at 873 (1961). But the court does take two important, much needed and long overdue steps: (a) it says, for the first time, what we mean by the term "mental disease or defect" in connection with criminal responsibility; (b) it rules quite clearly that the jury is the sole and final judge of the credibility of all witnesses, including those who testify as experts, and that it is ±o be so instructed. Heretofore, these two elements have been sadly lacking in this court's opinions. Taken together, these steps mean that hereafter the jury will know it is not bound by what experts say is a "mental disease or defect" if the abnormal mental condition de- scribed by them does not, in the jury's opinion, substan- tially affect the defendant's capacity to control his conduct in relation to the law. Under this important change, it will be for the jury to decide whether what the experts say in a given case amounts to a mental abnormality which substantially affects the defendant's capacity to control his conduct and conform to the law. These two steps have. long been urged. E.g., see the dissenting opinions in Blocker v. United States, supra, and Campbell v. United States, No. 16,414, March 29, 1962, and June 28, 1962. The rulings to which I refer have become especially nec- essary because of the frequent alteration and expansion of PAGENO="0678" 672 AMENDMENTS TO CRIMINAL STATUTES OF D.C. the definition of "mental disease" by those experts who ap- pear most frequently as witnesses in this jurisdiction. They suddenly reclassified psychopathic (sociopathic) personal- ity as a mental disease in In re Rosen field, 157 F. Supp. 18 (D.D.C. 1957); they reclassified emOtionally unstable per- sonality as a mental disease in Campbell v. United States, supra; they reclassified narcotics addiction as a mental dis- ease in United `States V. Carroll, Criminal No. 383-62 (D.D.C. June 28, 1962) and United States v. Horton, Crimi- nal No. 59-62 (D.D.C. July 12, 1962). 1 think it obvious that the new classifications were made by the doctors for clinical purposes only, for demonstration is not needed to make it plain that these conditions newly called "mental diseases" are not such in the legal sense. Until now, this court has allowed the shifting wind of expert nomenclature to control its decisions. In United States v. Spaulding, 293 U. S. 498 (1935), the Supreme Court said, at page 506: "The medical opinions that respondent became total- ly and permanently disabled before his policy lapsed are without weight. . . . [T]hat question is not to be resolved by opinion evidence. It was the ultimate is- sue to be decided by the jury upon all the evidence in obedience to the judge's instructions as to the mean- ing of the crucial phrase, and other questions of law. The experts ought not to have been asked or allowed to state their conclusions on the whole case. . . I think it follows from the foregoing that psychiatrists may not testify as to their conclusions as to the ultimate questions of insanity and causality which must be decided by the jury. Any lawyer or judge with trial experience will know how an expert witness can be properly ques- tioned to elicit admissible information which will help the jury in reaching its decision, without asking him for his conclusion on the ultimate jury question. The majority have made a worthwhile effoi~t to clarify the confusion engendered in the minds of trial judges by PAGENO="0679" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 673 the Durham case and subsequent decisions. The effort may succeed if the present majority opinion is not whittled away by this court in future cases. PAGENO="0680" 674 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Thtifrh ~tafr~ ~Iuurt nI App~ath FOR THE DISThICT OF COLUMBIA CIRCUIT No. 16637 EARL TATUM, APPELLANT V. UNITED STATES OF AMERICA, APPELLEE Appeal from the United States District Court for the District of Columbia Decided November 1, 1962 Mr. John W. Cragun (appointed by this court) for ap- pellant. Mr. Paul A. Renne, Assistant United States Attorney, with whom Messrs. David C. Acheson, United States At- torney, Victor W. Ca~uty, Assistant United States Attor- ney, and Nathan J. Paulson, Assistant United States Attor- ney at the time of argument, were on the brief, for appellee. Mr. Abbott A. Leban, Assistant United States Attorney, also entered an appearance for appellee. Before WIIJBUR K. Mu~r~n, FAHY, and BURGER, Circuit Judges. PER CURIAM: Appellant challenges the admissibility of a confession made within 20 minutes after he was taken into PAGENO="0681" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 675 police custody and makes other contentions which were not preserved for review by timely objection. Our review of the record in light of the contentions on the merits satisfies us that there was no error warranting reversal. For the reasons set forth in the case Tatum v. United States, No. 16773, D.C. Cir., Nov. 1, 1962, we remand the case to the District Court for resentencing pursuant to that opinion. Sentence set aside and case remanded for resentencing. PAGENO="0682" 676 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Thtitrb ~`taIri~ ~!Iunrt ut ~pp~atn FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 16881 CARL A. TATUM, APPELLANT V. UNITED STATES OF AMERICA, APPELLEE Appeal from the United States District Court for the District of Columbia Decided December 20, 1962 Mr. Dickson R. Loos (appointed by this court) for ap- pellant. Mr. Daniel Rezneck, Assistant United States Attorney, witl1 whom Messrs. David C. Acheson, United States Attor- ney, and Nathan J. Paulson, Assistant United States Attor- ney at the time the brief was filed, were on the brief, for appellee. Messrs. Frank Q. Nebeker, Assistant United States Attorney, and JOhn R. Schmertz, Jr., Assistant United States Attorney at the time the record was filed, also entered appearances for appellee. Before EDGERTON, WASHINGTON, and BASTIAN, Circuit Judges. EDGERTON, Circuit ~Judge: Appellant drove the car in- PAGENO="0683" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 677 volved in the Sheriff Road robbery-killing. Facts are stated in our opinion in Jackson v. United States, No. 16879, decided today. Appellant was arrested shortly after 8:00 p.m. on Janu- ary 17, 1961 and brought to the 14th precinct police station about 8:50. He was questioned for ten minutes in the lobby and denied all knowledge of the crime. He was then put in the celiblock. At 10:30 he was "booked". At 11:00 he was confronted by Coleman who had just made a written con- fession. Appellant still denied cornpl~city. He made a non-incriminating statement at 11:15 p.m. He was ques- tioned, partly in the absence of Coleman, from 11:15 till midnight. He still maintained his innocence. At 12:15 or 12:25 a.rn. 011 January 18, while Detective Shirley was pre- paring a "lineup sheet," appellant is said to have agreed to confess. His written confession was completed at 3 :00 a.m. He was brought before the United States Commissioner at 10:00 a.m. The confession should have been excluded under the Mc- Nahh-Upshaw-Mallory rule. F.R.CRTM.P. 5(a); Mallory v. United States, 354 u.S. 449 (1957). Probably when he de- nied all knowledge of the crime about 9:00 p.m. after ten minutes questioning, and certainly when he did so again upon confronting Coleman at 11:00 p.m., the police should have taken him before a magistrate or else released him. As we point out in Coleman v. United States, No. 16880, de- cided today, a magistrate is regularly available at any hour. The circumstances in which appellant's statements were obtained on the morning of January 18 are incon- sistent with the legislative purpose "to avoid all the evil im- plications of secret interrogation of persons accused of crime." McNabh v. United States, 318 U.S. 332, 344 (1943). Cf. Anderson v. United States, B18 U.S. 350, 355 (1943). "[T]he delay must not he of a nature to give opportunity for the extraction of a confession." Mallory v. United States, 354 U.S. at 455. We must apply the rule that "a PAGENO="0684" 678 AMENDMENTS TO CRIMINAL STATUTES OF D.C. confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a corn- roitting magistrate . . ." Upshaw V. United States, 335 U.s. 410, 413 (1948). V The judgment must he reversed and the case remanded for a new trial. V Reversed and remanded. PAGENO="0685" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 679 Thiitth ~tat~ ~wrt uf t4t~at~ FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 16880 CHARLES S. COLEMAN, APPELLANT V. UNITED STATES or AMERICA, APPELLEE Appeal from the United States District Court for the District of Columbia Decided December 20, 1962 Mr. David R. Peasback (appointed by this court) for appellant. Mr. Daniel A. Rezneck, Assistant United States Attor- ney, with whom Messrs. David C. Acheson, United States Attorney, and Nathan J. Paulson, Assistant United States Attorhey at the time of argument, were on the brief, for appellee. Mr. John R. Schmertz, Jr., Assistant United States Attorney at the time of argument, also entered an appearance for appellee. Before EDGERTON, WASHINGTON, and BASTIAN, Circuit Judges. EDGERTON, Circuit Judge: Appellant Coleman was a pas- senger in the car involved in the Sheriff Road robbery and PAGENO="0686" 680 4M~NDMENTS TO CRIMINAL STATUTES OF D.C. killing. Facts are stated in our opinion in Jackson v. United States, No. 16879, decided today. The police questioned Coleman on six or seven separate occasions, and as far as appears could have questioned him again at will, before they arrested him at 6:45 p.m. on January 17, 1961. They took him across town to a police station and locked him in a room. Between 7:30 and 8:00 p.m. he was interrogated and made a non-incriminatory statement about his whereabouts at the time of the crime. He was again locked up alone from 8:00 to about 8:45. Three officers then arrived who had been called for the admitted purpose of questioning him. Questioning was resumed, and a "`threshold'" confession was obtained at 8:50. From 9:10 to 10:50 p.m. it was reduced to writing. He was then "booked". He was not brought before a magistrate until 10:00 a.m. the next day. There was unnecessary delay. As long ago as 1946 we said that "both by law and practice" a prisoner may be brought before a committing magistrate "at any hour." Akowskey v. United States, 81 U.S.App.D.C. 353, 354, 158 F. 2d 649, 650. We recently said: "[N]ot only a magis- trate, but an Assistant United States Attorney, are, and were. . . available to the police twenty-four hours a day." Elsie V. Jones v. United States, 113 U.S.App.D.C. 307 F. 2d 397, 399 (1962). Cf. Ginoza v. United States, 279 F. 2d 616 (9th Cir. 1960). If because of some extraordinary circumstance no magistrate were available, it would not follow that questioning could continue. The time between arrest and confession was not, as we said it was in the Heideman case, "consumed only by the questions and by the preparing of papers, booking, photograph- ing, fingerprinting and transportation . . ." Heidernan v. United States, 104 U.S.App.D.C. 128, 131, 259 F. 2d 943, 946 (1958), cert. denied, 359 U.S. 959 (1959). The delay was "of a nature to give opportunity for the extraction of a confession." Mallory v. United States, 354 U.S. 449, 455 PAGENO="0687" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 681 (1957). Since the confessions were obtained during an un- necessary and therefore unlawful detention they should have been excluded. F.RCRIM.P. 5(a); McNabb v. United States, 318 U.S. 332 (1943). Other cases are cited in our opinion in Tatum v. United States, No. 16881, decided to- day. Failure to exclude the confessions was prejudicial error and the judgment must be reversed. Elsie T7. Jones v. United States, supra. Since there must be a new trial, we consider claims of error based on the contention that there was no evidence that appellant aided or abetted in the shooting and that, therefore, he could not be guilty of murder in the second degree. These claims must be rejected. "All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but in- cidental to that which was the object of the confederacy, are responsible . . . for the acts of each, if done in pursu- ance of, or as incidental to; the common design." Turber~ yule v. United States, 112 U.S.App.D.C. 400, 402-03, 303 F. 2d 411, 413-14 (1962), cert. denied, 370 U.s. 946 (1962).' The jury could reasonably regard the shooting as inci- dental to the common design of robbery. The court did not instruct specifically on "common purpose", but the general instructions on aiding and abetting were adequate and counsel for Coleman did not object to them. Reversed and remanded for a new trial. `Quoting 1 WHARTON, CRIMINAL LAW §258 (12th ed. 1932). PAGENO="0688" 682 AMENDMENTS TO CRIMINAL STATUTES OF D.C. BASTIAN, Circuit Judge, dissenting: My examination of the record indicates that the confession was freely and voluntarily given, and in no sense was it obtained in viola- tion of the Mallory rule. The police questioned appellant on several occasions prior to his arrest. Having additional information, they arrested him in the 2700 block of Wade Road, S. E., on January 17, 1961, at 6:45 P.M. He was taken to the Four- teenth Precinct, located at 42nd and Benning Road, S. E., arriving there at 7:20 P.M. and then being taken to an upstairs room at the precinct. Appellant was not ques- tioned on his way to the precinct, nor did he volunteer any statement. Detective Shirley testified that at about 7:30 P.M., after appellant had been advised of his rights and that anything he stated might be used against him, Coleman gave a statement claiming an alibi. He was then left alone until 8:45 P.M., when the officers familiar with the case, who had been called from downtown to the precinct, ar- rived to interrogate thim. Thus confronted, appellant ad- mitted his guilt within fIve minutes. Surely his oral ad- missions, at least, may be received. Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F~2d 30 (1957); and see Mitchell v. United States, 322 U.S. 65 (1944). Thereupon, the officers undertook to reduce those threshold admissions to writing, a process involving a reasonable time, before booking the appellant. He was given a preliminary hear- ing at 10:00 A.M. the next day. No confession or statement made by appellant after the confession was offered in evi- dence.' During tile interim between the giving of the alibi at 7:30 P.M. arid the interrogation of appellant at 8:45 P.M., `"A confession made during a period of necessary delay in arraignment is not inadmissible because that period was fol- lowed by a period of unnecessary delay." See Locicley V. United States, 106 U.S.App.D.C. 163, at 166, 270 F.2d 915, at 918 (1959). PAGENO="0689" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 683 the police were engaged in checking his story against those of others who were being interrogated and whose stories, as it turned out, shattered his alibi. The police can and in- deed should, in fairness to a defendant, check his story and, if it is contradicted-as it was here-confront the accused with the~ evidence against him. This may take time, and if that time is not so unreasonable as to bring it into conffict with the Mallory rule, it is proper. I think that the time here was not so unreasonable. If the accused's claim of an alibi had been found to be correct, after having been checked out, he should and would have been released. The police had the right and the duty to check the alibi to see if Coleman was the man to be charged with this cold-blooded murder, and it turned out that he was. It is to he remembered that the District Court properly submitted to the jury, after hearing the testimony out of the presence of the jury, the question of whether or not the confession was voluntary. Obviously, the jury found that it was. 25-260 0-64-pt. I-44 PAGENO="0690" 684 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Thiiti~ ~Iati~ø (!IrnwI uf App~atø FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 17183 BENJAMIN E. WHITE, APPELLANT, V. UNITED STATES OF AMERICA, APPELLEE. Appeal from the TJriited States District Court for the District of Columbia Decided November 21, 1962 Mr. J. E. Bindeman (appointed by this court) for ap- pellant. iWr. Robert A. Levetown, Assistant United States Attor- ney, with whom Messrs. David C. Acheson, United States Attorney, Frank Q. Nebeker and Tim Murphy, Assistant United States Attorneys, were on the brief, for appellee. Mr. Nathan J. Paulson, Assistant United States Attorney at the time the brief was filed, also entered an appearance for appellee. Before FAHY, DANAHER and BASTIAN, Circuit Judges. DANAHER, Circuit Judge: Appellant was convicted of housebreaking and larceny. He contends that the District Court erred in permitting police officers to testify as to PAGENO="0691" AMENDMENTS TO CRIMINAL STATUTES OF `D.C. 685 certain admissions and in denying his timely motion for mistrial when the prosecutor called to the attention of the jury that the defendant had failed to take the stand.1 About 1 P.M. on September 1, 1961, a stock clerk named Simmons was in the stockroom of Sears Roebuck & Com- pany at 4500 Wisconsin Avenue when the appellant entered. Outside the two main doors to the stockroom were signs reading "For Employees Only." Appellant was wearing a uniform of a type customarily worn by Sears' employees. He extended a greeting to Simmons who observed that the shirt worn by the appellant bore a blue Sears emblem. Simmons thought appellant was a new porter as the latter walked to the area where the television sets were stored. Appellant picked up a "TV" set in a sealed carton and went out through the store carrying the television set. The following day appellant again entered the Sears store wearing a Sears shirt. Appellant was on the base- ment level heading back toward the stockroom when Sim- mons first saw him. Simmons and two other employees ~ralked toward the appellant who then "started walking pretty fast up the steps," got on the escalator and went as far as the second floor where a store detective stopped him. After appellant told the detective he had found the shirt, appellant was asked to accompany the detective to the "security" room. Simmons was summoned and there iden- tified appellant as the "man who had taken the TV set the day before." The store detective then notified Precinct No. 8 nearby, and two Metropolitan police officers came over, arriving about 12:45 P.M. After ascertaining the foregoing and other facts, the Metropolitan police took the appellant back to the precinct. 1 On brief, he also had argued that the court erred, in ad- mitting into, evidence without proper identification a certain television set, the theft of which was charged in the second count. In view of our disposition of the case, we deem un- necessary any further reference to this particular point. PAGENO="0692" 686 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Upon arrival, appellant's name and appropriate informa- tion were entered in an arrest book, and a written charge was noted with the arresting officer's name. The officers then had in their possession obviously ade- quate evidence of "probable cause," not only to "support the arrest," but if believed by a jury, "ultimately his guilt." But without any justifiable excuse to be gathered from the record, the police did not then present White before a com- mitting magistrate. Instead, they took him to the second floor of their headquarters for the admitted purpose of questioning him in regard to the larceny.2 At the trial, defense counsel, retained by the appellant, objected to any statement made by White at the precinct "on the ground it was taken under duress and not volun- tarily made." The trial judge conducted a hearing to ascertain what if any "duress" might predicate the objection. During the hearing in the absence of the jury appellant did not testify. The testimony elicited from the officers supplied no evidence of "duress," and White's admissions were thereafter received in evidence be'fore the jury. Had de- fense counsel objected on Mallory grounds, we would have a grave question as to whether or not the appellant's admis- sions would be admissible in view of the opinions of this court on this point. After repeatedly denying the larceny, the appellant finally admitted his act and informed the offi- cers of the address where the television set might be found.3 The argument now for the first time advanced that the trial judge should have excluded such admissions on Mal- lory grounds comes too late considering the record as a whole. We frequently have pointed out that objections to 2 Mallory v. United States, 354 U.S. 449, 454 (1957); cf. Upshaw v. United States, 335 U.S. 410, 414 (1948). ~ One of the officers, not on September 2, but two days later, September 4, 1961, went to the location described by the ap- pellant and there found the set. PAGENO="0693" AMENDMENTS TO CRIMINAL STATUTES OF \D.C. 687 the receipt of evidence should be made in the trial court. Williams v. United States, U.S.App.D.C. 303 F.2d 772, 774, cert. denied, 369 u.S. 875 (1962) and cases cited. Appellant did not take the stand as the trial was re- sumed. His counsel had filed no requests for special in- structions. Government counsel, apparently intending to counter the argument of defense counsel, undertook to caution the jury "in advance" that the jurors always should keep in mind that the arguments of counsel are not evidence. He reminded the jury of the evidence before it, which included, of course, the appellant's admissions. The prosecutor pointed out that the Government's only exhibit was the television set, recovered pursuant to White's direc- tions. Then he stated: "The Government would also bring to your attention the fact that the defendant failed to take the stand. No inference at all is to be given to you by the fact [sic] that he exercised this right. This is a very im- portant right to the individual; it is an important right in our system of justice. "It is my job to prove to you-" (Emphasis added.) Defense counsel interrupted and asked for a bench con- ference. During that colloquy,4 counsel moved for a mis- trial because of the prosecutor's comment "on the failure of ~ After counsel had expressed his view respecting the Gov- ernment's "commenting on the defendant's failure to take the stand," the judge said to the prosecutor-but not then to the jury: "THE Counp: I don't think it is very wise to say that, [Prosecutor]. The Court in its charge to the jury will point out that no inference of guilt whatsoever arises from the defendant's failure to take the stand. "I do think it is better in these situations to refrain from such comment. It might sound as though you are, by in- ference, putting some suggestion or connotation on this fact. I recognize that that is not your intention. I would never mention this in the trial of a criminal case." PAGENO="0694" 688 AMENDMENTS TO CRIMINAL STATUTES OF D.C. the defendant to take the stand." The motion for mistrial was denied. We think there was error. Even if the judge had then admonished the prosecutor and had promptly instructed the jury on the point, we would have had a close question. At least in those circum- stances the jurors might have tried to eliminate from their thinking any possible inference of guilt from the appel- lant's failure to refute or explain his admissions5 or other- wise to counter what had been offered against him. Of course, the jury knew that White had not testified. Here the judge did neither. He made no reference to the challenged episode in his charge. Although later he correctly instructed the jury "that no inference of guilt arises against the defendant because of his failure to testify as a witness in his owim behalf" and properly ex- plained the rationale of the rule, we are not persuaded that no prejudice arose. The prosecutor's statement had been made openly in argument before the jury. The colloquy, the judge's comment and his ruling on the motion for mis- trial had occurred at the bench. The jury was without knowledge of what had there been said. How much "preju- dice" may be attributable to an occurrence of this sort we have no way of knowing. The Supreme Court has said "The minds of the jurors can only remain unaffected from this circumstance by excluding all reference to it." 6 lATe have noted that "strict observance [of this principle] has been many times commended to prosecuting attorneys." ~ 5We assume it to be unlikely that they will be offered at a new trial. 6 Wilson v. United States, 149 U.S. 60, 65 (1893). ~ Milton v. United States, 71 App.D.C. 394, 396, 110 F.2d 556, 558 (1940); cf. Stewart v. United States, 366 U.S. 1, 2 (1961): "Ordinarily, the effectuation of this protection is a relatively simple matter-if the defendant chooses not to take PAGENO="0695" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 689 We have carefully considered all aspectS of the case in our effort to determine whether or not there was harmless error. FED. B. CRIM. P. 52(a) reads: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." But it is beyond doubt that an accused is afforded a "substantial right" in deciding whether or not to take the stand.8 We find ourselves un- able to say with fair assurance and in the total setting here presented, that there was no prejudice.9 Reversed. the stand, no comment or argument about his failure to testify is permitted." (Emphasis added.) And see Turner v. Dis- trict of Columbia, 98 A.2d 786 (D.C. Mun. App. 1953) ; Brooks v. District of Columbia, 48 A.2d 339, 341 (D.C. Mun. App. 1946). 8 Bruno v. United States, 308 U.S. 287, 292 (1939). Indeed, if the accused decides not to testify, it is fatal to refuse an instruction that his failure to take the stand shall not tell against him. Ibid.; cf. Langford v. United States, 178 F.2d 48, 55 (9 Cir. 1949). ~ Kotteakos v. United States, 328 U.S. 750, 764-765 (1946); Starr v. United States, 105 U.S.App.D.C. 91, 94-96, 264 F.2d 377, 380-382 (1958), cert. denied, 359 U.S. 936 (1959). In any event, it does not "affirmatively" appear from the whole record that there was no prejudice. Bihn v. United States, 328 U.S. 633, 638 (1946). Cf. Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45 (1949). PAGENO="0696" 690 AMENDMENTS TO CRIMINAL STATUTES OF D.C. 1~nitth ~`tatr~ ~Irnwt nf n~ali~ FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 17,410 ROBERT A. MUSCHETTE, APPELLANT V. UNITED STATES OF AMERICA, APPELLEE Appeal from the United States District Court for the District of Columbia Decided July 25, 1963 Mr. Alfred L. Scanlon (appointed by this court) for appellant. Mr. William C. Pryor, Assistant United States Attor- ney, with whom Messrs. David C. Acheson, United States Attorney, and Frank Q. Nebeker and Harold H. Titus, Jr., Assistant United States Attorneys, were on the brief, for appellee. Before PRETTYMAN, Senior Circuit Judge, and WILBUR K. MILLER and WRIGHT, Circuit Judges. PER CURIAM: Robert A. Muschette and another were in- dicted May 8, 1961, for housebreaking and petit larceny. In a trial which began June 19, 1961, the jury was unable to reach a verdict, but a second trial in the following De- cember resulted in conviction. Muschette was sentenced PAGENO="0697" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 691 to imprisonment for a term of from two to six years to run concurrently with a four-to-twelve-year sentence im- posed in an unrelated case in ~June, 1961, which he was serving when he was tried in the present case. Muschette appeals, urging that his confession, without which he says he could not have been convicted, was ex- tracted from him by physical abuse during a period of unnecessary delay in presenting him to a committing magistrate following his unlawful arrest without a war- rant. Evidence for the prosecution showed that during the night of April 6-7, 1961, police were attracted to a cloth- ing store by the ringing of its burglar alarm. The store had been entered from an adjoining vacant building through a hole dug in the masonry wall, and a small safe had been carried from the first floor to a landing halfway up stairs leading to the second floor. The burglars set off the alarm as they ascended the stairs, so they aban- doned the safe on the landing and fled the scene. The officers found near the hole a sledge hammer, a watch, a crowbar and an army duffel bag containing a hacksaw and another crowbar. Imprinted on the duffel bag were a name and army serial number: "Jeffrey II. Matthews 13491323." It was revealed during a hearing out of the presence of the jury that Jeffrey H. Matthews, having been located and interviewed by the police, ac- knowledged ownership of the bag and stated he had last seen it about two weeks before when he was living with Robert A. Muschette at 403 M Street, N. E. At about 2:00 p.m. April 7, police officers went to that address with the obvious purpose of asking Muschette about the duffel bag Matthews had said he had left there. They interviewed him in his upstairs room, to which he invited them to get away from the noise of a party going on in the lower part of the house. The officers observed in plain view a pair of trousers on which brick and mortar PAGENO="0698" 692 AMENDMENTS TO CRIMINAL STATUTES OF D.C. dust was seen. When Muschette, who admitted he owned the trousers, was asked about the source of the brick and mortar dust, he appeared confused and told two conifict-. ing stories. Thereupon, at about 2:20 p.m. the officers arrested him and took him to the Safe Squad office in police headquarters, arriving there about 2:35 p.m. With- in ten minutes thereafter, Muschette made an oral con- fession which took about five or ten minutes. Typing the statement was somewhat delayed because the stenogra- pher assigned to that office was ill and arrangements had to be made for a typist from another office. However, it was completed and signed by Muschette and witnessed about 3:45 p.m. He was presented to the United States Commissioner a few minutes after 4:00 o'clock. Prior to the trial, Muschette made a pro se written mo- tion to suppress as evidence the articles taken from his room, contending that his arrest was illegal because the police did not have a warrant or probable cause and that therefore the seizure was unlawful. The motion was de- nied, but none of the articles seized was introduced as evidence in the subsequent trial. Testifying at the trial, Muschette fixed the visit of the officers at an earlier hour, thus enlarging the interval be- tween his arrest and his presentment to the Commis- sioner. He also claimed they arrested him before they had seen the soiled trousers. He denied committing the~ crime and repudiated the confession, saying the officers were repeatedly striking him on the sides of his head with a telephone directory' and he confessed to avoid the con- tinuance of this physical abuse. The question whether the confession was voluntary was submitted to the jury and its verdict shows it did not accept Muschette's state- ment that he had been coerced by police brutality. 1 The Washington telephone directory is so large and heavy that a lethal blow could be struck with it, PAGENO="0699" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 693 The discovery of Jeffrey Matthews' duffel bag contain- ing burglary tools and his statement about it fully justi- fied the police in going to 403 M Street and interviewing Muschette about it. Indeed, the information then in hand required that they inquire of Muschette whether the duf- fel bag had in truth ever been in his house, and if so how it happened to be at the scene of the crime. But clearly at that point they had no cause to arrest Muschette. Naturally Matthews assigned the incriminating bag to some place other than his own possession, but the probabil- ity of the truth of his immediate response was, to say the least, doubtful. There may have been, at that stage of events, cause to arrest Matthews but certainly none to ar- rest Muschette. And, moreover, even Matthews did not inculpate Musehette; he merely said he had left the bag at Muschette's house. So the officers went to Muschette's house. The officers knew the burglars had broken through a brick wall into the store where the duffel bag and the bur- glary tools were discovered; and, of course, they had seen the litter of shattered brick and mortar caused by break- ing the opening through which the burglars had crawled. On a chair in Muschette's room, in plain view, was a pair of trousers and on the trousers was telltale brick and mortar dust. Muschette admitted ownership but told con- flicting stories. Here, then, in the cumulated data, was probable cause, so they arrested him. As the jury determined, from evidence which amply justified their conclusion, that the confession had not been extracted by police brutality but was voluntarily given, we turn to consider whether, after Muschette's arrest, there was unnecessary delay in presenting him to a com- mitting magistrate which, under the Supreme Court's Mallory holding,2 rendered the confession inadmissible even though it was voluntarily given. 2 Mallory v. United States, 354 U. S. 449 (1957). PAGENO="0700" 694 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Muschette was arrested at 2:20 p.m., arrived at the Safe Squad office after a ride in a squad car at 2:35, and orally confessed not later than 2:45. So, the oral con- fession began about 25 minutes after the arrest. The confession was reduced to typewritten form and signed and witnessed by 3:45 p.m. Thus it took an hour for the oral confession to be given, a typist from another office to be located and secured, the statement to be typed, read, signed and witnessed. Then, about 20 minutes later, Muschette was taken before the Commissioner. Thus the total time lapse between arrest and presentment was about an hour and 35 to 45 minutes. Certainly the 25 minutes-which included the 15-minute ride to the station house-between Mnschette's arrest and the beginning of his oral admission of guilt involved no delay. And, a.s we said in the Heidernan case,3 "Delay after a confession is less crucial than delay before a con~ fession." Even so, the time here, which encompassed not only the typing, etc., but the administrative routine of charging, booking, fingerprinting, etc., indicates no delay. Evaluations of situations such as this should be real- istic. The extraction of a confession by whatever means is outlawed and its products are not admissible in a court of law. But the "Mallory Rule" is not a carpenter's meas- uring stick to be used by merely laying it alongside the material to be evaluated. It was not intended, we think, to be a mechanical rule that in all instances the mere passage of a given length of time would require the re- jection of a confession. The problem is not to be solved by watching the clock; the solution is to be reached by determining whether the delay which occurred was in fact unnecessary when the sum total of the circumstances shown is considered. 3 Heideman v. United States, 104 U. S. App. D. C. 128, 130, 259 F. (2d) 943, 945 (1958), cert. denied 359 U. S. 959 (1959). PAGENO="0701" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 695 We emphasize that this record contains no suggestion that the confessions were extracted by questioning. Muschette did not claim they were. He said they were beaten out of him; but the jury did not believe him, so that problem is not for us. We comment further that the typing and signing of a confession voluntarily given is not always and exclusively a detriment to the accused because, once written, his state- ment cannot be changed by his accusers. Written ver- sions of statements by prospective witnesses are well- nigh universal practice. What the witness-or an ac- cused-~-said is not thereafter the subject of convenient recollection. So the typing of a voluntary confession is neither unnecessary or unreasonable. We think that in the present case it was proper procedure. We think the one hour and 20 minutes occupied by the various activities described here was not, under the cir- cumstances, unreasonable and cannot properly be char- acterized as unnecessary. We are quite clear that there was no unnecessary delay in presenting Muschette to a committing magistrate within the meaning of Criminal Rule 5(a) as construed by the Mallory holding of the Su- preme Court. / Affirmed. WRIGHT, Circuit Judge, dissenting: In McNabb v. Unit- ed States, 318 U.S. 332, 343-344 (1943), the Supreme Court, in applying former 18 U.S.C. ~ 595, the predeces- sor statute to Rule 5(a), F.R.Crim.P.,' stated: "The purpose of this impressively pervasive re- 1 Rule 5(a), in pertinent part, provides: "An officer mak- ing an arrest * * * shall take the arrested person without unnecessary delay before the nearest available commis- sioner * * ~ PAGENO="0702" 696 AMENDMENTS TO CRIMINAL STATUTES OF D.C. quirement of criminal procedure is plain. * * * For this procedural requirement checks resort to those reprehensible practices known as the `third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substi- tuted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should nOt be heedless when appropriate situations call for its application." The : McNabb opinion closed with the observation that "[t]he history of liberty has largely been the history of observance of procedural safeguards. And the effective administration of criminal justice hardly requires dlisre- gard of fair procedures imposed by law." 318 U.S. at 347. This routine criminal case, coming some twenty years after the decision in McNabb, demonstrates not only the continuing validity of the McNabb-Mallory2 doctrine, but also the fact that its prophylactic command continues to be disregarded. The appellant here maintains that the police invaded his home without a warrant and without his permission, searched his bedroom, and subjected him to extensive, but fruitless, questioning there before taking him down to police headquarters and coercing him to con- fess through the administration of physical brutality. The police deny these allegations while admitting that they did indeed go to appellant's home to question him about a safe robbery. There, according to the police, they were invited to his bedroom where they discovered in- criminating evidence in open view. The police further state that, after some questioning in which the appellant refused to admit his participation in any crime, they 2Maflory V. United States, 354 U.s. 449 (1957). PAGENO="0703" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 697 arrested him and took him to the "Safe Squad Office"3 at police headquarters where he readily and voluntarily made a full confession in ten minutes. Thus we have presented a situation which McNabb, Upshaw,4 Mallory, and their progeny were intended to avoid: allegations of police brutality in abstracting a con- fession before the person arrested comes under the pro- tection of the committing magistrate, and a denial of the brutality by the police. Congress and the courts have realized that the testimony of a lone defendant under these circumstances is ordinarily no match for testimony from several police officers who could not, of course, be expected to admit brutality in any event, since one who would be guilty of such conduct would find little difficulty in denying it under oath.5 On the other hand, Congress and the courts have also recognized that many of the claims of police brutality have little substance, but, `never- theless, are sometimes given credence when arrested per- sons are unduly delayed in police custody before being transferred to judicial custody. These twin evils Rule 5(a) was designed to eliminate. Mallory,'in declaring an uncoerced confession obtained in violation of Rule 5(a) inadmissible in evidence, stated that an arrested person "is not to be taken to police head- quarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting, damag- ~ It appears that the "Safe Squad Office" is one of several rooms at police headquarters similar to the "Homicide Squad Office," the "Vice Squad Office," and the "Stolen Vehicle Office," where investigation and interrogation with respect to particular crimes are conducted by officers experienced in these specialties. ~` Upshaw V. United States, 335 U.S. 410 (1948). ~ See Hogan and Snee, The McNabb-Mailory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1, 27 (1958). PAGENO="0704" 698 AMENDMENTS TO CRIMINAL STATUTES OF D.C. ing statements to support the arrest and ultimately his guilt." 354 U.S. at 454. Here, instead of being taken to the nearest commissioner without unnecessary delay as required by Rule 5(a), appellant was taken to the Safe Squad Office at police headquarters "in order to carry out a process of inquiry" which resulted in a confession. That the police were able to obtain the confession quickly, once the defendant was in the Safe Squad Office, does not make the violation of his rights less objectionable. The important fact is that the police delayed until ap.. pellant confessed, and then brought him before the comrn missioner. I respectfully dissent. PAGENO="0705" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 699 PRESS RELEASE FROM DEPARTMENT OF JUSTICE OF MONDAY, AUGUST 18, 1958, CITING AN EXCERPT RE "MCNABB-MALLORY" QUESTION STATISTICS ON COMMITMENTS AT ST. ELIZABETHS HOSPITAL, SHOWING PRE- LIMINARY INFORMATION ON CURRENT STUDY BY STANDING COMMITTEE ON "PROB- LEMS CONNECTED WITH MENTAL EXAMINATION OF THE ACCUSED IN CRIMINAL CASES, BEFORE TRIAL," JUDICIAL CONFERENCE OF THE DISTRICT OF COLUMBIA CIRCUIT JUDICIAL CONFERENCE OF THE DISTRICT OF COLUMBIA CIRCUIT, January 3, 1964. CHAIRMAN, SENATE DISTRICT COMMITTEE, Senate Office Building, Washington, D.C. DEAR SIR: Pursuant to your request, we are pleased to advise that in the course of our research we have compiled statistical data relating to the length of time which elapses between the mandatory commitment in the District of Columbia which follows an acquittal by reason of insanity and subsequent release from St. Elizabeths Hospital, to which such persons are committed. For the period fiscal 1954 through fiscal 1962, St. Elizabeths Hospital received a total of 251 persons acquitted by reason of insanity. Approximately two-thirds of this number are still at the hospital, having received neither conditional nor unconditional release. Of the one-third who have received such releases, approx- imately 15 percent received such a release within 2 years, 31 percent within 3 years, and 35 percent within 4 years. It should be stressed that the foregoing figures represent raw data which has not been doublechecked or evaluated by the executive committee. Regrettably such research as we have done which might establish a relation- ship between these periods of time and the length of sentences which might be imposed during the same period in similar cases is so incomplete as to be of no value at this time. We are hopeful to do additional work in this area before our report is completed, but do not expect to be able to do this until late spring. If public release is to be made of the information we have furnished above, we would appreciate an indication that it was derived from raw data supplied by our committee. Respectfully yours, JOSHUA OKUN, Project Director, Standing Coimmiittee on "Problenls Connected Wit ii Mental Ewamination of the Accnsed in `Criminal Cases, Before Trial," Georgetown University Law Center. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, ST. ELIZABETHS HOSPITAL, Washington, D.C., January 14, 1964. Mr. FRED L. MCINTYRE, Counsel, Senate Committee on the District of Colvmbia, New Senate Office Building, Washington, D.C. DEAR MR. MCINTYRE: In answer to your telephone request of January 14 to Mr. Weinstein, the attached tables have been reproduced for your use. These tables show the number of patients admitted to St. Elizabeths Hospital as "not guilty by reason of insanity" from the U.S. District Court for the District of Columbia during fiscal years 1954-62, for each type of offense. These tables also show the numbers of patients granted unconditional or conditional releases, respectively, by the length of time from admission to release. The attached material `was assembled initially at the expense of th~ Judicial Conference of the District of Columbia Circuit, Standing Committee on "Prob- lems Connected With Mental Examination of the Accused in Criminal Cases, Before Trial," of which Prof. Joshua Okun is project director. Any use of these data should be accompanied by an appropriaate acknowledgment. At your request, the data related to unconditional releases will be brought up to date through fiscal year 1963. This information should reach you by~ Thurs- day, January 16. Comparable data related to con~litional releases through fiscal year 1963 would require considerable time to assemble. I hope this information is useful to you. If we can be~ of further assistance in any way, please call on us. Sincerely yours, DALE C. CAMERON, M.D., Superintendent. 25-260 O-64-pt. 1-45 PAGENO="0706" 700 AMENDMENTS TO CRIMINAL STATUTES OF D.C. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, ST. ELIZABETHS HOSPITAL, Washington, D.C., January 15, 1964. Mr. FERn L. MCINTYRE, Counsel, Senate Committee on the District of Columbia, New Senate Oflice Building, Was/i ington, D.C. DEAR MR. MCINTYRE: As I noted in my letter of January 14, tables showing the time from admission to unconditional release for patients "not guilty by reason of insanity" would be brought up to date through fiscal year 1963. These tables are attached along with two additional tables showing (1) the percentages of patients unconditionally released within specified length of time after admission and (2) comparable accumulative percentages. If I can be of further assistance, please call on me. Sincerely yours, DALE C. CAMERON, M.D., Superinten4ent. The Department of Justice made public today the fol1owin~g letter stating its position on several legislative measures pending in Congress: August 18, 1958. Hon. JAMES 0. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR: I understand that the Senate will soon consider various bills dealing with recent Supreme Court decisions. It may be helpful, therefore, if the views of the Department of Justice on these measures, are restated at this time. * * * * .* * * Another measure which has the virtue of attempting to meet only one problem, thereby avoiding the possibilities of varied, unanticipated, and undesirable conse- quences, is H.R. 11477, a bill to amend chapter 223 of title 18, United States Code, to provide for the admission of certain evidence, and for other purposes. It is directed to the law enforcement problem raised by the Supreme Court decision in Mallory v. United States, 354 U.S. 448. Its scope is narrow. It is aimed at one legal problem. Its effect may be anticipated. In the Mallory case, the Court ruled inadmissible a confession made during a delay between arrest and arraignment which the Court considered to be unnecessary. The bill would provide that evidence, including statements and confessions, otherwise admissible, would not be inadmissible solely because of reasonable delay in taking an arrested person before a commissioner or other officer empowered to commit persons charged with offenses against the laws of the United States. We have no objection to the enactment of this bill. * * . * * * * * The Bureau of the Budget has advised that there is no objection to the sub- mission of this report. Sincerely, WILLIAM P. ROGERS, Attorney General. PAGENO="0707" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 701 The following tables show, for fiscal years 1954 through 1963, (1) the number of persons committed to St. Elizabeths Hospital by the U.S. District Court for the District of Oolumbia, as a result of acquittal by reason of insanity; (2) the type of crime for which tried and committed; (3) the number granted "unconditional release," and (4) the time elapsed between commitment and unconditional release: Time until unconditional release approved ALL CRIMES Crime, fiscal year Admis- sion total 1 to 6 months 6 to 11 months 1 to 2 years 2 to 3 years 3 to 4 years 4 to 5 years 5 or more years Died Not ap- proved Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 320 16 13 14 9 8 1 1 3 255 4 8 14 8 18 33 35 64 67 69 3 1 3 2 2 1 1 2 1 .~ 1 4 2 4 2 1 1 1 1 3 2 4 1 1 1 5 2 1 1 2 1 1 4 1 1 1 1 2 3 14 17 30 55 65 68 ASSAULT Total 1955 1956 1959 1960 1961 1962 1963 30 2 3 3 1 2 19 2 7 6 4 1 1 2 1 1 1 1 1 1 1 1 1 2 2 6 ~ ~ - FORGERY Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 25 3 1 1 3 17 1 2 1 1 1 4 3 6 2 4 1 1 1 1 1 1 1 1 ---- - ~ ~ ~ ` l i I HOUSEBREAKING Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 50 1 3 1 2 1 42 1 1 2 2 2 6 9 5 13 9 1 1 1 1 1 1 1 1 1 1 6 7 ~ 13 PAGENO="0708" 702 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Time until unconditional release approved-Contjnu~ LARCENY Crime, fiscal year Admis- sion total 1 to 6 6 to 11 months months 1 to 2 2 to 3 years years 3 to 4 years 4 to 5 5 or years more Died years Not ap- proved Total 1956 1957 1958 1959 1960 1961 1962 1963 15 1 1 1 1 1 1 9 1 2 1 2 1 1 2 2 2 1 3 3 1 1 1 1 ~ 1 MANSLAUGHTER Total -~ 1958 1 1963 2 1 2 Total 1956 1957 1958 1959 1960 1961 1962 1963 51 3 MURD 2 ER 2 2 42 2 1 5 7 6 [5 10 5 1 1 1 1 1 1 1 1 1 1 4 6 12 10 ROBBERY Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 40 2 3 2 1 1 31 1 2 1 1 ~ 4 3 7 11 6 1 1 1 2 1 1 1 1 i 3 1 6 11 6 21 UNAUTHORIZED USE OF VEHICLE Total 1956 1958 190 1961 1962 1963 25 2 1 1 2 3 2 8 7 3 1 1 1 1 - 1 8 6 NARCOTICS Total 1961 1962 1963 19 1 18 5 7 - 7 1 4 PAGENO="0709" AMENDMENTS TO CRIMINAL STATUTES OF D.C. Time until unconditional release approved-Continued RAPE (FORCIBLE) 703 Crime, fiscal year Admis- sion total 1 to 6 months 6 to 11 months 1 to 2 years 2 to 3 years 3 to 4 years 4 to 5 *years 5 or more years Died Not ap- proved Total 1960 1961 1962 1963 12 12 3 3 4 2 2 RAPE (STATUTORY) Total 1961 1963 1 1 1 0 1 0 14 OTHER SEX OFFENSE Total 1956 1957 1959 1960 1961 1962 1963 20 2 4 1 1 4 1 7 2 4 1 1 1 2 1 2 1 ~ 2 ~ OTHER FELONIES Total 1954 1955 1956 1957 1960 1962 1963 11 2 1 1 1 1 1 3 2 2 1 1 1 1 ~ 2 2 8 Percent of admissions unconditionally released, fiscal .years 1954-63 Fiscal year admitted Admissions Time until 1st unconditional release approved Died No un- condi- tional release ap- proved Num- her Per- cent 1 to 6 months 6 to 11 months 1 to 2 years . 2 to 3 years 3 to 4 years 4 to 5 years * 5 or more years Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 320 100 5. 0 4. 1 4. 4 2. 8 2.5 0. 3 0. 3 0.9 79. 7 4 8 14 8 18 33 35 64 67 69 100 100 100 100 100 100 100 100 100 100 750 12.5 21. 5 11.1 6.1 2. 9 1.6 3.0 1.4 50. 0 28. 6 12. 5 9.1 2.9 25.0 25. 0 14. 3 12. 5 6.1 2.9 7.8 7.1 12. 5 121 2.9 3.1 7. 1 25. 0 12.1 2.9 7. 1 5.6 5.6 3.0 1.6 0 12. 5 14.3 37.5 77.7 51.5 85.5 85.9 97.0 98.6 PAGENO="0710" 704 AMENDMENTS TO CRTh{INAL STATUTES OF D.C. Cuniv lative percentage, unconditional release * Fiscal year ad- mitted Admissions Time until 1st unconditional release approved ~ Number Percent Less than 6 months Less than 12 months Less than 2 years Less than 3 years Less than 4 years Less than 5 years 5 or more years Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 320 100 5. 0 9. 1 13. 5 16.3 18.8 19. 1 19.4 4 8 14 8 18 33 35 64 67 69 100 100 100 100 100 100 100 100 100 100 75.0 12.5 21.5 0 11. 1 6. 1 2.9 1.6 3. 0 1.4 75.0 62. 5 50. 1 12. 5 11. 1 15. 2 5.8 1.6 3. 0 100.0 87. 5 64. 4 25. 0 11. 1 21. 3 8.7 9.4 100.0 87.5 71.5 37. 5 11. 1 33.4 11.6 100.0 87.5 78.6 62. 5 11. 1 45. 5 100.0 87.5 85.7 62.5 11. 1 100.0 87.5 85.7 62.5 The following tables show, for fiscal years 1954 through 1~2, (1) the number of persons committed to St. Elizabeths Hospital by the U.S. District Court for the District of Columbia, as a result of acquittal by reason of insanity; (2) the type of crime for which tried and committed; (3) the number granted "condi- tional release"; and (4) the time elapsed between commitment and conditional release: Time vntil 1st cond2tionai release approved ALL CRIMES Crime, fiscal year Admis- sion total lto6 months 6toll months lto2 years 2to3 years 3to4 years 4to5 years Sor more years Died Not ap- proved Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 251 8 12 23 13 5 4 2 184 4 8 14 8 18 33 35 64 67 1 1 1 2 3 2 2 2 2 3 1 1 1 1 7 6 6 1 1 2 5 4 1 4 1 1 2 1 1 1 3 8 11 3 7 17 22 51 62 ~ ASSAULT Total 1955 1956 1959 1960 1961 1962 26 3 1 1 1 2 3 6 2 7 6 1 2 1 1 1 2 3 5 1 6 3 FORGERY Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 21 2 4 1 14 1 2 1 1 1 4 3 6 2 1 1 2 1 1 1 1 2 1 1 2 5 2 PAGENO="0711" AMENDMENTS TO CRIMINAL STATUTES OF D.C. Time until 1st conditional release approved-Cofltinued HOUSEBREAKING UNAUTHORIZED USE OF VEHICLE 705 18 2 1 1 7 Crime, fiscal year Admis- stan total 1 to 6 6 to 11 months months 1 to 2 years 2 to 3 years 3 to 4 years 4 to 5 years 5 or more years Died Not ap- proved Total 1954 1955 1956 1957 1958 1959 1960 1962 41 1 1 3 1 2 33 1 1 2 2 2 6 9 s 13 1 1 1 1 1 1 1 1 1 1 2 4 7 ~ 13 8 LARCENY Total 1956 1957 1958 1959 1960 1961 1962 12 1 2 1 1 1 2 2 2 1 3 1 1 1 - 1 1 1 1 1 1 ~ MANSLAUGHTEJI Total 1958 1 1 MURDER Total 1956 1957 1958 1959 1960 1961 1962 46 1 5 3 5 2 1 29 2 1 5 1 7 6 15 10 1 1 1 2 2 1 ROBBERY 1 2 1 1 2 1 1 1 1 2 4 11 1 3 Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 2 34 1 2 1 1 4 4 3 7 11 1 1 1 1 1 27 1 1 1 1 1 2 1 1 3 2 6 11 Total 1956 22 2 1 1 2 1958 3 1 1 1960 2 1 1961 8 1 1962 7 PAGENO="0712" 706 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Time until 1st conditional release approved-Continued NARCOTICS Crime, fiscal year Admis- sion total 1 to 6 months 6 to 11 months 1 to 2 years 2 to 3 years 3 to 4 years 4 to 5 years 5 or years Died Not ap. proved Total 1961 1962 12 1 11 5 7 1 * RAPE (FORCIBLE) Total 1960 1961 1962 10 1 3 3 4 1 RAP E (STATUTORY) Total 1960 1 1 1 1 OTHER SEX OFFENSES Total 1956 1957 1959 1960 1961 1962 16 3 8 1 1 4 I 7 2 1 1 1 2 3 2 1 3 2 OTHER FELONIES Total 1954 1955 1956 1957 1960 1962 9 1 1 1 6 1 1 1 1 3 2 1 1 1 1 1 1 1 1 1 Uumnlative percentages, less than 1st conditional release Fiscal year admitted ~ Admissions Time until 1st conditional release Died Nocon- ditional release Num- ber Per- cent Less than 6 months Less than 12 months Less than 2 years Less than 3 years Less than 4 years Less than 5 years 5 or more years Total 1954 1955.~... 1956 - 1957 1958 1959 1960 1961 1962 1963 320 4 8 14 8 18 33 35 64 67 69 100 100 100 100 1CO 100 100 100 100 100 100 3. 1 12.5 5.6 3.0 3.1 ~. 2.9 7. 2 14. 3 37. 5 5. 6 9. 1 5.7 7.8 16. 3 25.0 14. 3 50.0 11. 1 30. 3 22.9 23.4 21. 6 25.0 14.3 62.5 22. 2 45. 5 40.0 24. 1 25.0 14. 3 62.5 44. 4 48. 5 25. 6 25.0 21.4 62. 5 55. 6 25. 6 25.0 21. 4 62. 5 . 0. 6 5.6 1.6 73. 8 75.0 ioo.o 78.6 37.5 38.8 45. 5 51.4 70.3 88.1 97.1 4 9 2 3 4 PAGENO="0713" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 707 Time until 1st conditional release Fiscal year Total ~ lto6 months Gtoll months lto2 years 2to3 years 3to4 years 4to5 years 5 or more years Died Nocon- ditional release Total 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 320 4 8 14 8 18 33 35 64 67 69 10 1 1 1 2 3 23 13 2 2 2 2 3 2 29 1 1 1 7 6 10 ~ 17 1 2 5 6 3 8 4 1 3 5 1 2 2 2 1 1 236 ~ 8 11 3 7 15 18 45 ~ 67 COUNCIL ON L&w ENFORCEMENT, DISTRICT OF COLUMBIA-REPORT OF AD Hoc COMMITTEE ON DETENTION AND RELEASE FROM ST. ELIZABETHS I. BACKGROUND It must be made clear at the outset that this report is not still another commentary on the Durham rule. At its September 10, 1963, meeting, the Coun- cil on Law Enforcement, District of Columbia, was giving attention to H.R. 7525, sometimes called the District of Columbia omnibus crime bill. Title 1.1 of that bill contains what the House Committee on the District of Columbia re- ported (H. Rept. 579) as "changes in Durham rule." Furthermore, in the course of the report there are some nine printed pages dealing with title II of H.R. 7525 under a caption called "Title Il-Durham Rule." It was pointed out at the September 10 meeting of the Council on Law En- forcement, District of Columbia, that there were provisions in title II of H.R. 7525 that are not, strictly speaking, covered by the Durham rule, hut that these provisions rather go to release or discharge. The Durham rule, it will be re- called, is the standard for determination of the legal defense of insanity in the District of Columbia. This rule is that an accused is not criminally responsible if his unlawful act was the product of mental disease or defect (Durham v. U.s., 214 F. 2d 862, D.C. Cir., 1954). The Durham rule does not treat of the question of release or discharge; so much of title II of H.R. 7525, therefore, as deals with release is not related to the Durham rule. At about the same time, local newspapers were carrying articles about those who had been at St. Elizabeths Hospital and who had been either discharged or had escaped, and who, during their discharged or fugitive status, bad been apprehended in additional offenses. As a consequence the Cbiiirman of the Law Enforcement Council, District of Columbia, appointed this ad hoc committee to report to the Council on the sub- jects of detention and release from St. Elizabeths. II. DETENTION Facilities of detention must satisfy the dual aspect of commitment: protection of society and treatment of the defendant. If one justifies indeterminate commitment on the grounds that a person will be treated, and cónditiQns his release on satisfactory treatment, then conditions should be such as to facilitate this end. But commitment also serves the func- tion of protecting society from a dangerous individual, and there comes a stage where the public must bear a degree of risk if the patient is to receive the degree of freedom necessary for therapeutic purposes. This conflict between the goals of commitment has recently come to the attention of the public with the news that 147 "prisoner-patients" have escaped from St. Elizabeths since January 1963. PAGENO="0714" 708 AMENDMENTS TO CRIMINAL STATUTES OF D.C. The term "prisoner-patients" applies to those persons who were committed to St. Elizabeths Hospital under section 24-301 as a result of a verdict of acquittal by reason of insanity. There are currently 738 "prisoner-patients" at St. Eliza- beths; 395 are in John Howard Pavilion, the maximum security ward for men; 30 women are at Dix, the maximum security ward for females; abo~it 100 per- sons are in medium-security wards; and 152 are given unaccompanied ground- leave privileges (minimum security). Fifty are on conditional release. Most of the 147 "prisoner-patients" who have escaped this year were on un- accompanied ground-leave privilege. Only two persons in the last 5 years have escaped from John Howard Pavilion. Twenty-nine criminal offenses were com- mitted by the escapees while at large. The offenses covered a range of murder, rape, robbery, assault, larceny, auto theft, housebreaking, traffic offenses, forgery, and unauthorized use of a motor vehicle. As a result of the publicity on the escapees, a special subcommittee of the House Committee on Education and Labor was fOrmed, with the title of Ad Hoc Subcommittee on the Investigation of the Administration and Operation of St. Elizabeths Hospital. The special subcommittee began hearings on November 12. Those testifying at the hearings were: Boisfeuillet Jones, special assistant to the Secretary of Health, Education, and Welfare for health and medical affairs; Dr. Dale Cameron, Superintendent of St. Elizabeths Hospital; Dr. Walter Barton, medical director of the American Psychiatric Association; Dr. Layton, head of the Bureau of Mental Health of the District of Columbia Department of Health; and John B. Layton, Deputy Chief of Detectives, Metropolitan Police Depart- ment. The hearings focused on the general problem and future of St. Elizabeths, and not merely the problem of detention of persons committed as a result of criminal proceedings. It appeared that the aim of the committee was to get a picture of what studies of St. Elizabeths were already underway-such as studies being carried on by the Department of Health, Education, and Welfare, and in the Health Department of the District of Columbia, which are focusing on the future role of St. Elizabeths in relationship to the mental health program of the District of Columbia-what future studies are needed, what form they should take, and what should be their goals. Particularly emphasized by Dr. Barton in his testimony was the need for a study of the mentally ill offender. The security aspects of St. Elizabeths were of particular interest to the com- mittee members. In his testimony, Dr. Cameron stated that the escapes from St. Elizabeths were due to (1) lack of personnel; (2) inadequacies of buildings; and (3) errors in judgment. As for lack of personnel, Dr. Cameron estimated that there is a realistic need for one employee per patient. Dr. Cameron said that the competence of the physicians immediately responsible for making judgments about a patient's readiness for increased responsibility was particularly important in connection with the escape problem. This is because most of the prisoner-patients have just walked off the grounds while unaccompanied on the campus. Dr. Cameron's long-range solution to the problem was a security hospital with a completely separate subcampus at St. Elizabeths. This would provide for continuity of care, flexibility of restrictions, and the necessary security to prevent elopements. "John Howard Pavilion is quite satisfactory as a maximum security unit. Needed are approximately 400 additional beds for medium and minimum se- curity, so located in relation to maximum security facilities that there can be a free and ready flow of patients among maximum, medium, and minimum se- curity areas without a change in the professional staff responsible for their treatment and supervision. This means that John Howard Pavilion should be so modified that it can provide all three levels of security within that building, and the staff involved take care of patients in that facility throughout their entire period of hospitalization. Two additional smaller, but comprehensive, units are required. To state more precisely the number of beds needed, a more definitive study than we have been able to make is needed. Such a study PAGENO="0715" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 709 should include such factors as the population trends of the District of Columbia, and the anticipated proportion of the population that we might expect to re- ceive as a result of criminal proceedings" (testimony before ad hoc subcom- mittee). Dr. Cameron said that the security hospital would be for those who were in need of this kind of environment, regardless of whether they came to St. Elizabeths by civil or criminal commitment. Certain prisoner-patients, de- pending on their illness, would not be kept in the security hospital. This program is aimed at a long-range solution. At the close of his testimony, Dr. Cameron devoted his attention to what can be done now to reduce the number of escapes by persons who are likely to commit acts of violence. Although 147 prisoner-patients have escaped, of whom 29 are still at large, Dr. Cameron em- phasized that this number is very small in relation to the total number of patients hospitalized. At the current time they are shifting a few nursing assistants from wards for civil patients to the services where prisoner-patients are treated outside the maximum security area. Dr. Cameron made the statement that "we can and are reducing the rapidity with which patients admitted as a result of criminal proceedings are allowed an opportunity to assume increasing responsi- bility for their own behavior." (This is contrary to the often-stated legal view that the purpose of those found not guilty by reason of insanity is not punitive but treatment. Such' a person is a patient, not a prisoner, Hough v. U.S., 106 U.S. App. D.C. 192 (1959).) From the testimony heard at the committee, it would appear that it will be some time before anything of a permanent nature is done regarding the escape of criminal offenders. This problem will no doubt be treated as one of many when the future of St. Elizabeths is carefully studied. In this connection, attention is invited to HR. 9072, which provides for the establishment of a commission On the improvement of St. Elizabeths Hospital. The commission would be composed of five members appointed by the President and would be authorized to appoint a full-time staff director. The purpose of the commission is to make a full and complete investigation and study of all phases of the operation of St. Elizabeths Hospital with a view to determining the steps which must be taken to accomplish the congressional policy, as stated in the bill, "so that such institution will provide an example to other institutions through the Capital and Nation which are engaged in treatment of the mentally ill." III. RELEASE PROVISIONS Title II of H.R. 7525 contains several subsections dealing with release or discharge which differ, from comparable provisions in section 24-301 of the District of Columbia Code. For the purpose of reporting to the Council, this committee does not feel it necessary for elaborate textual treatment, but feels, rather, that the accompanying chart adequately points out the differences be- tween the present law and the omnibus crime bill on release provisions. Respectfully submitted. CHESTER H. GRAY, HUGH F. RIVERS, MORRIS MILLER, Uhairn~an, Ad Hoc Committee. DECEMBER 1963. PAGENO="0716" Committed person as movant - - Time limitations Sec. 24-301, District of Columbia Code Superintendent of the hospital where the person is confined. Unconditional and conditionaL - -- 1. Recovery of sanity 2. That such person will not in the reasonable future be dangerous to himself or others. 3. In the superintendent's opin- ion, the person is entitled to unconditional release. Such person will not in the reasonable future be danger- ous. 2. Recovery need not be complete (Rough v. U.S.. 106 USCA DC 192 (1959)). Certification Prosecutor (U.S. Attorney or Corporation Counsel). The court may hold a hearing, in its discretion; it must upon ob- jection by the United States or District of Columbia. None provided HR. 7525 (omnibus crime bill) Superintendent of hospital or the committed person. Discharge and release on probation. 1. Recovery of sanity. 2. Such person may be discharged without danger to himself or others. 1. Such person may be released without danger to himself or others. 2. Recovery of sanity. Report to the court. Prosecutor and defense attorney. Court can no longer order release on report alone. There must be an examination by 2 psychia. trists and a report within 60 days. If the court is not satisfied with report of psychiatrists, a hearing is to be ordered at which the defendant may put on his own psychiatrists. The burden here is on defendant to prove he may be discharged. If he fails he may be released only by favorable application of superintendent and psychiatrists. Procedure same as in case of appli. cationby superintendent. When committed person is movant the court need not consider his application until at least 6 months after confinement. If the court is adverse, defendant may not apply again until 1 year after date of any preceding hearing on appliation. Yes. 710 AMENDMENTS TO CRIMINAL STATUTES OF D.C. Comparison of release provisions of sec. 24-301, Diatrict Of Columbia Code and H.R. 7525 (omnibus crime bill) Provisions Movant Types of release Standard for unconditional re- lease or discharge. Standards for conditional re- lease or release on probation. How application is made Who receives a copy Hearingand examination by psy- chiatrists before release. Further hearings -- Habeas corpus provided for Standards for release on a writ of habeas corpus. None 1. Recovery of sanity. 2. That defendant will not in the reasonable future be danger. ous. 3. The superintendent acted arbi- trarily and capriciously in re- fusing to certify the defend- ant (Overholser v. Russell, 108 USCA DC 400 (1960)). PAGENO="0717" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 711 U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE U.S. ATTORNEY, Washington, D.C., January 14, 1964. Hon. ALAN BIBLE, Chairnvin, Committee on the District of Colnmbia, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: I understand from Fred McIntyre that your committee is interested in the effect of the McDonald decision (McDonald V. United States, 114 U.S. App. D.C. 120 (1962), 312 F. 2d 847), upon the volume of acquittals by reason of insanity in criminal cases in the District of Columbia. McDonald was decided in the autumn of 1962 and the first full year which would reflect this decision is the calendar year 1963. The following comparison should give you the figures you need: Verdict, not guilty by reason of insanity Uncontested (trial by court) Jury verdict Directed verdict (jury trial) 1 Fiscal year ending- June 30, 1960 June 30, 1961 June 30, 1962 June 30, 1963 Calendar year ending Dec. 31,1963 36 66 67 50 33 19 47 42 35 22 17 19 25 15 11 1 This column included in jury verdict of acquittal by reason of insanity. This table would indicate that acquittals by reason of insanity, and par- ticularly directed verdicts, have fallen off pretty sharply since the McDonald decision. While I believe this is true, I do not think that McDonald alone is responsible for the sharp decrease in the figures in the last two annual horizontal columns. Part of the reason is that criminal trials have fallen off about 20 percent in volume because of the very much reduced criminal trial performance of the district court. Sincerely yours, 5 8 9 3 I DAVID C. ACHESON, U.S. Attorney. PAGENO="0718" PAGENO="0719" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 713 THE LIBRW~Y OF CONGRESS Legislative Reference Service COMPII.ATION OF DISTRICT OF COWMBIA AND STATE CRIMINAL STATUTES SHOWING A COMPARISON OF MANDATORY MINIMUM AND MAXIMUM SENTENCES THAT CAN BE IMPOSED IN CONNECTION WITH CERTAIN CRIMINAL OFFENSES. By Ruth H. Stromberg Grover S. Williams Legislative Attorneys American Law Division January 17, 1961+ PAGENO="0720" § 22-2~-I0l through 22-2~10~-F 1st Degree: Pre- medidated malice or the killing while perpetrating certain crimes. _________ be desth unless the jury by a unanimous vote recommends life imprisonment: if the jury is unable to agree the court impose a sentence of death or life imprisonment. 2nd Degree: Act with malice afore- thought except those defined as 1st degree. ~lt: ShaU be imprisoned for life or not less than ID years. Burgsary Grand Larceny §22-1801 §22-2201 Offense is termed "house- The feloniously taking and breaking". The entering carrying away of anything of any dwelling, etc. with of value in the amount of the intent to break and value of ~s00 and upwards. carry away anything connect- ed therewith, or to comit Penalty: shall suffer in- any criminal act. prisonment for not less Penalty: shall be impris- than one nor more than ten oned for not more than 15 years. years. § 22-901 § 22-801 Assault with the Maliciously burning intent to kill, rob, or attempting to rape, or poison, burn any dwelling, gjfl: Shall be etc. imprisoned for not ~g~gj~: be more than 15 years. imprisoned for not § 22-902. less than 1 year Assault with in- nor more than 10 tent to commit may- years. hem or with a dan- gerous weapon. ~gg~l~: Shnfl be imprisoned for not more thnn 10 years. Carrying Race E)c,~c~-ccc §22-1202 §22-2801 §22-32d+ Wrongful converting of The carnal knowledge of a Carrying either openly property to own use which female forcibly and a- or concealed, a pistol has come into contact or gainst her will, or carnal~ unless licensed, or any possession by virtue of em- knowledge and abuse of a deadly or dangerous weapon, ployment. female child snder 16 capable of being concealed. i~ssiftty: i be punished years, ~ggg3fl: Ijigil be imprisoned by a fine of not exceeding ~gj~glt: 1 be impris- for not more than ten years. 410,cXO or by imprisonment oned for not more than 30 lIr not more than ten years years. Death, if jury, or both, in their verdict, adds the words "with the death penalty." Murder DISTRICT OF COLUMBIA D.C. Code Robbery Agçp~avated Iissault § 22-2805 Without malice aforethought, sudden heat of passion. (63 F, Supl. 968). Penalty: Shall be punished by a fine not ex- ceeding $i,c~n or by imprison- ment not exceed- ing 15 years or both, Arson Habitual Offenders No general provision, § 22-2901 By force or vio- lence, whether against resistance or by sudden or stealthy seizure or snatching or by putting in fear shall take from the person or immediate actual possession of another, any- thing of value, Penalty: Shall suffer imprison- ment for not less than 6 months nor more than 15 years. PAGENO="0721" cm Cs 0 ALABAMA Code of Alabama Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders Title 11+ - § 318 1st Degree: Penalty shall be punishment by Death or Life Imprisonment, (Discretion of Jury). 2nd Degree: Penalty shall be punished by imprisonment for not less than 10 years. Title l~+ - § 322 Punishment shall be imprisonment for not less than 1 nor more than 10 years. (Discretion of Jury), ~ Title l~+ - § +15 Punishment shall be at the jur~i~Ts- cretion, by death or imprisonment for not less than 10 years. Title l~+ - § 38 Convicted shall be imprisoned not less than 2 years nor more than 20 years. Title l~+-~ 23 N 1st Degree: Penalty shall be imprisonment for not less than 2 years nor more than 20 years. Title i~+ § 2~+ 2nd Degree: Penalty shall be imprisonment for not less than 2 years nor more than 10 years. LArson resulting in death or maiming shall bring death or Life]. o general provision. * Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons Title i~-~- ~85 Penalty:(lst Degree) shall be not less than 10 years imprisonment or death. (Discretion of jury). 2nd Degree Title li-f ~86 Penalty: shall be not less than 1 year impris- onment nor more than 10 years. Title 11+ j33l Title i~+ §126 Title l~-f §395 Title l~+ §161 Penalty: be impris- Penalty: shall be not Penalty: shall be death Penalty: shall be not onment not more than ten less than 1 year nor more or impi~isonment for not less than~nor mare years nor less than 1 than 10 years. less than 10 years. (Dis- than $50 and j~g~ gj~g be year. cretion of jury) imprisonment in the county jail or sentenced to hard labor for the county for not less than 6 months. PAGENO="0722" AUSKA Alaska Compiled Laws § 65-5-31 § 65-5-41 1st Degree: Shall be imprisonment not Shall be imprisoned not less than one year nor more less than I nor more than ten years. than 10 years; if at night, not more than 15 years; if human in dwell- ing at time of burglary, not more than 20 years. § 65-5-32 - 2nd Degree: Burglary not in dwelling shall he imprisoned not less than 2 nor more than 5 years. 65-4-13 § 65-12-2 Shall be imprisonment Shall be fine of not not more than 20 nor more than $200 less than 1 year. nor less than $10; im- (Special exceptions for prisonment in county jail males under 19 - and in not less than 5 days nor case of females - relatives more than 100 days; or by under 16.) both in discretion of court. Cr1 0 Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders §~ 65Jf-l through 65._hi_3 1st Degree: shall § 65-1+-1f ~ be Imprisoned not more than 20 § 65_l+_21+ §Ji~J~. be imprisoned not exceeding 5 § 65_l+_22 With dangerous weapon shall be punished by § 65-5-1 j~~g~ree: Shall be Sefttenced to imprison- §~ 66-21-1 through 66_l+_5 Habitual Criminals after 1+ be sentenced to Imprisonment at nor less than 1 year. years nor less than 1 year. Imprisonment In peni- tentlary not more ment for not less than 2 nor more thsn 23 convictions - life imprisonment. hard labor for life or for any term of than 10 years nor less than 6 months; years. 2nd Degree: § 65-5-2 years. or imprisonment In ~j~gjj be sentenced to 2nd Degree: shall be imprisoned not less than 15 years. , county jail not more than 1 year nor less than 1 month or by fine of $100 to $1000. not less than 1 nor more than 10 years or by fine not more than $~J00 or by both. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons § 65-5-61 Shall be imprisonment not less than 1 nor more than 10 years. Ci CD CD 0 PAGENO="0723" ~l3-302 1st Degree: (Nightline) Penalty: punishable by not less than 1 nor more than 15 years imprisonment. 2nd Degree: (Daytime) Penalty: is punishable by imprisonment not to ex- ceed 5 years. ~l3_6ll+ ~l3-9ll Penalty: Offense is pun- .g.gflI: Carrying con- ishable by imprisonment for cealed weapons is pun- life, or any term not less ishable by fine - $20 to than 5 years. $300 end by imprisonment in county jail for not less than 10 nor more than 30 dayu. ARIZONA Arizona Revised Statutes Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § l3-J-F53 1st Degree: Shall be punished by Death or Imprison- mont for Life. (Discretion of jury unless plea of guilty makes it discretion of court). 2nd Degree: Shall be punished by imprisonment not less than 10 years. § 13-1f57 Shall be punished by imprisonment not to exceed 10 years. § 13- 6~3 Punishment shall be imprisOnment for not less than 5 years. ~ § 13_21÷5 Punishment ~j~.gjj be fine not less than ~ 120 nor more than $ 2000, imprisonment for not less than 1 nor more than 5 years or both, § 13-231 1st Degree: Shall be imprisoned for not less than'2 nor more than 20 years. 2nd Degree: Shall be imprisoned for not less than 1 nor more than 10 years. §~ l3-l&49 - l3-165D deal with increased sentences for subse- quest convictions. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons ~l3-662 and 13-671 Penalty: punishable by imprisonment for not less than one year nor more than 10 years. ~13-662 and 13-671 g~~t: Offense is pun- ishable by imprisonment for not less than 1 nor more than 10 years. PAGENO="0724" ARKANSAS Arkansas Statutes § 41-3927 Shall be same as In larceny - not less than 1 nor more than 21 years. 41-3403 Shall be death or by 43-2153, life im- prisonment at hard labor. (Jury's discretion.) §~ 41-4501, 41-4503 Shall be punishment by fine of not less than $50 nor more than $200 or by imprison- ment in county jail for not less than 30 days nor more than 3 months, or both. Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § 41-2227 § 41-2229 § 41-3602 § 41-600 41-501 No general provisions. Wt Degree: Shall Whoever convicted Punishment shall be Punishment shall be Penalty shall be suffer death or shall undergo imprisonment for fine not less than imprisonment for life imprisonment imprisonment in not less than 3 nor $100 nor exceeding not less than 1 at hard labor. "said jail and more than 21 years. $1000 and imprison- nor more than 10 § 43-2153 allows penitentiary ment not exceeding years. life imprisonment house" for not 1 year. at jury's discre- less than 2 nor tion. more than 7 years. 2nd Degree: Shall be~ sentenced to imprisonment not less than 5 nor more than 21 years (Jury to find . degree). llurglary . Grand Larceny Embezzlement Rape Carrying Dangerous Weapons § 41-1003 § 41-3907 Shall be imprisonment Shall be imprisonment not not less than 2 nor more less than 1 nor more than than 21 years. 21 years. P1 H 00 H 0 (3 00 H H H 0) 0 PAGENO="0725" CALIFORNIA Westts Annotated California Codes Penal Code Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders §~ 190 & 190.1 1st Degree: Penalty shall be death or imprisonment for life at juryTs or courtTs discretion. (Penalty verdict if by jury must be unanimous). No death penalty for one under 18 at time of crime. 2nd Degree: Is punishable by imprisonment from 5 years to life . § 193 Penalty is impri- sonment for not exceeding 10 years. . V § 213 1st Degree: Penalty is imprisonment for not less thaa 5 years. 2nd Degree:Penalty is imprisonment for not less thaa 1 year. § 220 Assault with intent to commit mayhem is punishable by im- prisonment not less than 1 nor more than 20 years. § »=-i5 Assault with deadly weapon is punishable by imprisonment not exceeding 10 years or in county jail not exceeding I year or by fine not exceeding $5J00 or by both fine and impri- sonment. § ~f7a Penalty shall be imprisonment for not less than 2 nor more than 22 years. § 6~+ Habitual criminals. After two previous felony convictions life imprisonment. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons z CD 0 CD z CD L~j CD 0 CD §~46l ~t89 ~51)+ ~26?+ ~l2022 1st Degree Penalty: is imprisonment j~g~gjfl: is imprisonment Penalty: is imprisonment Penalty: Punishment shall be Penalty: is imprisonment for not less than 5 years. 2nd Degree: Penalty: is imprisonment for not less than 1 year for not more than 10 years or imprisonmest in county jail for not more than one year. for not more than 10 years or imprisonment in county jail for not more than 1 year. (Reference back to §~+89.) for not less than three years (special exceptions where girl is under 18). imprisonment in county jail not exceeding 1 year or in state prison for not less than 1 nor more than 5 years. nor more than 15 years or imprisonment in county jail not exceeding 1 year. PAGENO="0726" cI~ C CA ci Ci) 0 ~Tj p COLORADO Colorado Revised Statutes Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § ~30-2-3 1st Degree: Penalty shall be death or imprisonment for life at hard labor. (JuryTs discretion), 2nd Degree: Penalty ~iiJJ be imprisonment for a term not less than 10 years and § tio~2~8 Penalty ~)ìiJJ be inprisonment for not less than 1 year which may extend to 8 years. * - § 10-5-1 Penalty ~j~g3j be imprisonment for not less than 1 nor more than 11+ years unless he or confederate armed with dangerous weapon in which case penalty AJiRJ) be 2 years or life. (Ex- § 1-1O-2-31F Penalty shall be imprisonment for not less than 1 nor more than l~-3- years. § 10-3-1 1st Degree: Penalty shall be imprison- meat for not more than 2D years. 2nd Degree: § 40-3-2 Penalty shall be imprisonment for not more than 10 years. §~ 39-13-1 through 39-13-3 Habitual Crininal Act. After 3 pre- vious felony con- victions - life imprisonment. which may extend to life. ception for under 21). . Burg1~ry Grand Larceny Embezzlement Rape Carrying Dangerous Weapons ~0-3-6 p10-5-2 §~0-5-i6 ~40-2-28 Penalyy: Punishment shall Penalty: shall be impris- Penalty: ljj.~jl he impris- Pea~ity: is at the dis- be imprisonment for not les~j4nment not less than 1 nor onment not less than 1 nor cretion of the court - than 1 nor more than 10 more than 10 years. more than 10 years by pun- imprisonment for life years. :ishing as for larceny, or for not less than (~0-5-2) 3 years. ~40-ll-l Penalty: .~iiii1 be impris- onment in jail for not more than 1 year or by fine not more than $5cxJ or by both. PAGENO="0727" CONNECTICUT Murder Manslaughter General Statutes of Connecticut Arson Habitual Offender Robbery Aggravated Assault § 53-10 1st Degree: Penalty .IJ1AJ.J.. be death un- less juryTs verdict recommends life imprisonment, § 53-11 2nd Degree: Penalty shall be imprison- ment during his life. § 53-13 Penalty shall be fine of not more than $1000 or imprisonment not more than 15 years or both, § 53-67 Penalty shall be imprisonment for not more than 7 years. § 53-16 Penalty shall be fine of not more than $5~o or im- prisonment not more than 5 years or both, § 53-82 Penalty shall be imprisonment for not less than 2 nor more than 20 years. . §~ 5~+-ll8, deal with punishment for second and third convictions. Penalty: may be imprisoned for not exceeding twice the maximum for offense. Carrying Burglary Grand Larceny ____________________ Qg-~--~ Weapons §53-68 §53-63 §53-355 §53-238 §53-206 Penalty: be impria- 1st Degree:(over $2,oco) ~gj~y: shall be impris- Penalty: ~j~gjj be impris- Penalty: ~j~gjj. be fine of onment for not more than 20 Penalty: iJi~fl be impris- onment not more than 10 onment for not more than not more than $5~o or im- years. onment for not more than years or fine not more 30 years. prisonment for not more 20 years or fine not more than $1,000 or both, than 3 years or both. than $2,000 or both, 2nd Degree: (over $25~) Penalty: ~j~gjJ be impris- onment not over 5 years or fine not more than $200 or both. Embezzlement u~w~ t~1 C/) 0 CI) LTj CI) 0 C) PAGENO="0728" DELAWARE Delaware Code, Annotated Title 11 Murder Robbery Aggravated Assault Arson Habitual Offenders 571 575 811 No aggravated assult ~ 351 No general provisions. 1st Degree: Penalty Penalty lj~ll be Penalty ~j~1ll be as such. Penalties lot Degree: Penalty shall be death, T~ 2nd Degree: Penalty 1jul11 be imprisonment for life and fine in courtts discretion, fine not more than $io,oco or impris- onment not more than 30 years or both. fine not less than $500 or imprison- mont not less than 3 nor more than 25 years and may be whipped. for assault with in- 1 be imprison- tent to murder, ment not less than 577 fine not less 2 nor more than 20 than ~ nor more years. than $1,002 or in- ~ 352 prisonnent for not 2nd Degree: Penalty more than 20 years; 110111 be fine not with intent to rob, less than $500 nor 812, shall be fined more than $5,cOo not less than $300, and imprisonment imprisoned not loss not less than 2 than 1 year, and nay nor more than 10 be whipped; with in- years. tent to rape, ~ 782, shall be fined not less than $200 nor more than $920, imprisoned for not more than 10 years and nay be whipped. 105 - com- mon law assault, pen- alty shall be fine or imprisonment or both at court~s discretion. ~,, ~ ~ . H 0 ~ ~ ~ ~ ~ ~. ~`4 CI) ~ H ~ H * Burglary Grand Larceny Embezzlement Race Carrying Dangerous Weapons § 392 1st Degree ~jjj~jj, be imprisoned not less than 25 § 631 Shall be for not years and imprisoned more than 3 may be 635 ~julh1 be fined or im- prisoned or both in Court's discretion. 781 ~~jj be life im- prisonment unless jury recommends ~63 Shall be fined not less than ~5~~or more than $2900 or imprisoned for not less than 0 ~ ~ ` years nor more than years. 393 whipped. mercy, then any time not/less than 3 years. 20 days nor more than 7 days, or both. . 2nd Degree ~~jl be imprisoned not less than 5 nor more than 20 years. PAGENO="0729" FLORIDA Florida Statutes. Annotated Murder ~8l0.o1 1st Degree: (Dwelling house) (armed) Penalty: shall be im- prisonment for life or for tern of years determined by the Court. Penalty for unarmed offender shall be imprisonment not ex- ceeding 20 years. 2nd Degree: (Other buildings) Penalty: be impris- onment not exceeding 15 years unless high explos- ives involved - then pen- alty not exceeding 20 years. Robbery ~8l 1.021 Penalty: shall be im- prisonment not exceed- ing 5 years or in the county jail not exceed- ing 12 months or by fine not exceeding $l,ocx. ~8l2.ol Same as larceny. Aggravated Assault -~ Arsr ~79~+.0l Penalty: shall be death unless jury recommends mercy. If mercy, life imprisonment or for any tern of years in discre- tion of judge. i-li~hite~1 (1ff der~ ~790.0l (Concealed weapons) Penalty: shall be imprisonment for not less than 3 months nor more than 6 months or by fine not less than $100 nor more than $522. 782.0~-F 782.07 813.011 78~+.d+ 806.01 (dwelling) 775.10 1st Degree: Penalty 1j113j be Penalty ~j~jJ be Penalty lj~g.fl be 1st Degree: Penalty After 3 previous Penalty: Shall be punishable by death, 2nd Degree: imprisonment not exceeding 20 years or imprisonment in life imprisonment or for any lesser term in courtts imprisonment not exceeding 5 years or in the county ~j~gjJ be punished by impridonment for not more than 20 felony convictions -- life imprisonment. Penalty: Shhll be imprisonment for life or for any number of years county jail not exceeding 1 year or by fine not exceeding $5,000. discretion, jail not exceeding 1 year or by fine not exceeding $3,cx2J or by both, years. 806.02 2nd Degree: (other buildings) not less than 20. (~r!~,,d F Penalty ~j~.gjJ~ be imprisonment for not more than 10 years. re,~e F~he~1eee,~t Rane Carrying Dannerous Weanons PAGENO="0730" GEORGIA Code of Georgia §26-2~402 Penalty: .1.11111 be impris- onment for not less than 1 nor more than 20 years. Robbery § 26-2532 Penalty for robbery by force or weapon- Shall be death or life imprisonment or imprisonment and labor for not loss than 4 nor more than 20 years. §~ 26-2503, 26-2504 Penalty for robbery by intimidation or sudden snatching shall be imprison- ment and labor for not less than 2 nor more than 20 years. Grand Larceny ~26-2627 Larceny from the person ________ Penalty ~Ji~Ji be impris- onment for not less than 2 years nor more than 5 years. 126-2630 Larceny from house: Penalty iJi.~JJ. be impris- onment and labor for not less than 1 nor more than 10 years. Aggravated Assault Arson No aggravated assault, § 26-2208 Assault with intent 1st Degree: (Dwelling) to murder-- 2-10 §~~ggj~: ~g.fl be years; with intent to imprisonment for not rape-- 1-20 years; less than 2 nor more with intent to rob than 20 years unless -- imprisonment and arson results in labor-- 2-4 years. death or maiming of another - when penalty same as murder statute §26-1005 2nd Degree (other than dwelling) ~ be Imprisonment for not less than 1 nor more than 10 years unless death or maiming as in 1st Degree. Rape ~26-l302 Crime 1 be punished by death unless jury rec- ommends mercy, in which event life imprisonment. Jury may fix punishment by Imprisonment and hard labor for not less than 1 nor more than 20 years. ~26-5l0l Anyone currying con- cealed weapons shall be guilty of a misdemeanor. 27-2506 ~Jiiui! be punishable by a fine not to exceed $1,000 or imprisonment in county jail not to exceed six months or work in public works not to exceed 12 months, in discretign of judge. Murder § 26-1005 Penalty shall be death but may be life imprisonment at court or jury's discretion. § 26-1008 Punishment shall be imprisonment and labor for not less than 1 nor longer than 20 years. Habitual Offenders No general provision. ~26-2809 Penalty: .IJ111JJ,, be impris- onment and labor for not less than 1 year nor more than 5 years. H ci H t1l 0) 0 PAGENO="0731" HAWAII Revised Laws of Hawaii 1'l H 0) ______ H ____ 0 C) CI) H H ci H CI) ____ 0 ____ ~rj C) Murder §291.5 1st Degte.e. ~g~JtY: ~Jllfl be imprisonment at hard labor for life not subject to parole. 2nd Degree. Penalty: ~jj~jJ. be imprisonment at hard labor for a term of any number of years not less than 20. §291.8 ~oaity: ~j~JJ. be Imprisonment at hard labor for not more than 10 years. ~ §306.11 ~st Degree.: Penalty: ~~yj1 be imprisonment at hard labor for life or any number of years at court's discretion, 2nd Degree.: j~j~,y: ~j~gJJ. be imprisonment at hard labor for not more than 20 years. §264.3 Aggravated assault offenders~~jj. be fined not less than $5,000 or imprisoned at hard labor not more than 10 years or both. §263.3 1st Degree.: Penalty: Shall be imprisonment at hard labor for life. ~g~I Degree.: ~g~~g~lty: j~fl be imprisonment at hard labor for life or any term of years. . no general provisions. . ~ Carrying Burglary Grand Larceny Embezzlement Rape Dangerous Weapons ~266-~ ~293-i9 lot Degiee (nighttime, ~g~jt: aJ~aJ.i be impris- or by one armed with onment at hard labor not deadly weapon, or inhabited~ more than 10 years. Penalty uji.aJi be impris- onment st hard labor not more than 20 years. 2ndJ~.eoree. (All other) Penal~y: shall be in- prisoncsent not more than 10 years. `~281-6 .11.1: ~j~~jj be fine not more than five times value of property embezzled or imprisonment at hard labor nat more than ten years. ~mbezzler under 16 - court may mitigate.) ~309-3l ~267-25 Penaity .ajial3. be impris- Carrying deadly weapons - onment for life at hard Pen~ty: ~j~jj. be fine of labor not subject to par- not more than $2~ or ole1or subject to parole? imprisonment not more than or for any number of 1 year or both. years. 01 PAGENO="0732" IDAHO General Laws of Idaho ~l8_ll103 ~i8-1~6o6 1st Degree (Nighttime) j~egglty: is imprisonment Penalty: is imprisonment for not less than 1 nor for not less than 1 nor more more than 11+ years. than 15 years. 2nd Degree: (Daytime) j~~lfl~: is imprisonment for not more than 5 years ~l8_lLio5 Burglary with explosives s]~y: 11.iAJi be impri s- onment for not less than ten nor more than 25 years. ~18-3302 ~gggjt: 1 be fine of not less than $2500 nor more than $200.00 snd by impris- onment in county jail not less than 20 days nor more than 90 days. Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders l8-1i~+ 1st Degree: § l8J1tl07 Penalty is Inpri- § 18-6523 Penalty Is Inpri- § 18-912 § 18-801 Aggravated assault 1st Degree: § l9-25-l~+ On third felony ~ggg~t: Shall be death or life imprisonment, (Juryrs discretion) sonment not cx- ceeding 10 years or SIne not more than $2,000 or sonment for not less than 5 years which may be cx- tended to life, and battery offenders Penalty: Shall be shall be punished Imprisonment for by fine of not less not less than 2 than $100 or by nor more than 20 conviction, sentence shall be not less than 5 years and may extend to life. 2nd Degree: ~p~gjt: Shall both, imprisonment in years. county jail for not § 18-802 be imprisonment not * less than 3 months 2nd Degree: for:less than 10 nor more than 1 ~ggglj,y~: Shall be years sad may year or by Imprison- imprisonment for extend to life, . nent in penitentiary not less than 1 not over 3 years or by nor more than 10 fine over $1,000. years. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Wespoas ja8-2~i-l3 Same as larceny `h8-6id+ Penalty: is imprison- meat not less than 1 year which may be extended to life, (Discretioo of judge). I I PAGENO="0733" Ch. 38, ~ll-1 Penalty: shall be im- prisonment for indeter- minate term with a mini- mum of not less than one year. Ch. 38, ~2~+-l Penalty: shall be fine not to exceed $500 or imprison- ment in a penal institution other than penitentiary not to exceed 1 year or both, un- less weapon involved may dis- charge more than 8 shots with single firing when imprison- ment shall be in penitentiary from 1 to 5 years. H Ill H 0 ILLINOIS Smi th-Hurd Tilinnis Statits Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders Ch. 38 § 9-1 Ch. 38 § 9-2 Ch. 38 §~ 18-1 and Ch. 38 § 12-2 Ch. 38 § 20-1 No general provision. Shall be death or imprisonment for Shall be imprison- ment from 1 to 18-2 Shall be imprisonment Shall be fined not to Shall be imprison- exceed $1000 or imprisoned meat for any in- indeterminate 20 years. from 1 to 20 years. in a penal institution determinate term term with a Armed robbery shall other than the peniten- with a minimum of minimum of not be imprisonment for an tiary not to exceed 1 not less than 1 less than 14 indeterminate term year or both. year. years. Accused with a minimum of not found guilty by less than 1 year. jury sentence of death must be in jury's verdict. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons Ch. 38, ~i9-l Penalty: shall be imprison- Ch. 38, §16-1 ment for any indeterminate Penalty: shall be im- term with a minimum of 1 prisonment from 1 to 10 year. - years. Same as larceny. CI) H H ci H CI) 0 0 PAGENO="0734" IND lANA Burn's Indiana Statutes Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § l0-3~Kll 1st Degree: Penalty: Shall be death or life imprisonment, 2nd Degree: Penalty: Shall be imprisonment during life, § l0-3~05 Penalty be imprisonment not less than 2 nor more than 21 yrs. ~ § ioi+ioi Penalty be imprisonment for not less than 10 nor more than 25 years and diafran- chiaement for period. For physical injury inflicted during robbery penalty shall be life Imprisonment. § io-J+1o Aggravated assault and battery offender shall be imprisoned for not less than 1 year nor more than 5 years and may be fined not to exceed $i,cXJO. § 10-301 § 9-2207 1st Degree: (dwelling) habitual criminals ~gggjfl: .~gfl be Act, After two imprisonment not less previous felony con- than 2 nor more than victions, a third ltF years. felony conviction § 10-302 AJiitLl be punished 2nd Degree (not by imprisonment for dwelling) liCe. ~gpj~j~~: ~J~3j be imprisonment not less than 1 nor more than 10 years. Busriary Grand Larceny Embezzlement Carrying Rape ~s0-70l 1st Degree (Dwelling) Penalty: ijijil be impris- hO-320l Penalty: l~il he impris- oned for not less than 1 ~l0-l70~+ Penalty: ~j~al1 he impris- oned for not lass than 2 ~lO~+2Ol Penalty: l~ji be impris- oned for not less than 2 §l0-~f706 Penalty: .l.~ll be fined not exceeding $~. In oned not less than 10 nor more than 20 years, and be disfranchised for period. 2nd Degree (Non-dwelling) year nor more than 10 years and fine not exceed- iag $~o and disenfran- chisement for determinate nor more than 20 years and fined sot less than $1 nor more than $i,xo and be disfranchised for nor more than 21 years. (Female - child snder 12, punishment .zji.~j~l be life imprisonment. case of three such con- victions within two years penalty shall be impris- onment for not mare than Penalty: ~j1gj~1 be impris- period, determinate period. * one year. oned not less than 2 nor . more than 5 years and dis- franchised for period. hi hi H CI) H 0 t-4 Cl) H H ci H hi Cl) 0 p PAGENO="0735" IOWA 81 Iowa Code Annotated 81 H Cl) H 0 (.3 81 Cl) H H 81 Cl) 0 Murder Manslaughter Robbery Aggravated §690.2 1st Degree: Penalty: ~jtBj]. be death or life imprisonment at hard labor. (jury or court's discretion). §690.3 2nd Degree: Penalfl: ~~gJj be punishment by imprisonment for life or for a term not §690.10 jjgJ,~y: ~n.l,], be imprisonment not exceeding 8 years and fine not exceeding $1,000. §711.2 ~ for robbery with aggravation (armed) ~~gfl be imprisonment for a term of 25 years. §711.3 Penalty f or robbery without aggravation ~ be imprison- ment not exceeding 10 years. §694.6 Assault with intent to inflict bodily injury shall be punished by impris- onment in county jail not exceeding 1 year or fine not exceeding $500. §707.1 §~7471through Penalty for 747.7 burning dwell- Habitual Criminals ing house and Act. After two parcels there- previous felony of shall be convictions, a imprisonment third felony con- for not more viction ijiBJi. be than 20 years. punished by im- §707.2 prisonment for ~n.aity: (Miscel-any term not more aneous Buildings)than 40 years. 1JJBJ]. be imprison- for not less than 10 years. more than 10 years. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons §708.2 *709.2 *710.5 Penalty: (if armed) ~jj~jj Penalty: iji.njj. be impris- Same as larceny be imprisonment for life or onment not more than 5 any term of years. years or in county jail (Burglary- defined, night- not more than 1 year or time), by fine of not more than *708.3 $1000 or by both. Penalty: (if not armed) ~j~~jj be imprisonment not exceeding 20 years. (Also Burglary by exploe- ives and by means of elec- tricity.) *698.1 §595.3 Penalty: iJ~jL be impris- Carry concealed weapons onment for life or any ,~j~gjj be punishable by term of years not less fine of not more than than 5. $i000 or by imprisonment of not more than 5 years or by both in Courtts dis- cretion may also order surety to keep peace and reduce penalty for first offense. e,c PAGENO="0736" KI~INSJ~S General Statutes of Kansas Robbery Aooravated Assault Arson habitual Offenders 21-1f2l 1st Degree: Penalty: Shall be confinement and hard labor for a term not less than 5 years nor more than 21 years. 2nd Degree: Penalty: Shall be confinement and hard labor for a term not less than 3 years nor more than 5 years. § 21-5~ 1st Degree: Penalty: Shall be confinement and hard labor not less than 10 nor more than 21 years. 2nd Degree: Penalty: Shall be confinement and hard labor not exceeding 10 nor less than 5 years. § 2l-1f31 Penalty for assault with felonious intent shall be confinement and hard labor for a term not exceeding 10 years. § 2l-~l03 1st Degree: Penalty: Shall be death or life imprisonment at hard labor. (Jury or court T5 discretion)(No death penalty for 1 under i8 at time of crime). 2nd Degree: ~: Shall be confinement and hard labor for not less than 10 years. 3urctl sry 21-523 1st Degree Shall be sot less thsn 10 nor more than 21 years. (Nighttime - dwelling) 2nd Degree Shall be not less than 5 nor more than 10 years (dwelling - daytime) § 2l-lO7a Second felony convictions shall be confinement not less than double the penalty of 2nd conviction. Third felony conviction g~gj1 be Imprisonment for not less than 15 years. § 21-581 1st Degree: Penalty: (Dwelling) Shall be confinement and hard lsbor *for not less than 2 nor more than 22 years. ~. 21-582 2nd Degree: ~gggjt: (Other buildings) Shall be confinement and hard labor for not less than 1 nor more than 10 years. z C)) 0 Carrying Grand Larceny Hans Danoerous Wesnons § 2l-53~+ ~iiaU be at hard ceeding confinement labor not cx- 5 years. § 2l~5L8+ 1 be fine of not more thss $%0 or impris- onment in county jail not more than 1 year or both, § 2l~~i2~+ (female snder 18 years) shall be confinement sod hard labor not less than 1 nor more than 21 years. (any female) Shall be confined and hsrd labor not less than 5 years nor more than 21 years. § 25-2~+l1 ~jygjj. se file not cx- seeding 4~l00 or impris- onment in county jail not exceeding 3 months or both. (Discretion of court). CA ~ ~ ~ -~ t~i Cl) ~ ~ PAGENO="0737" 0 KENTUCKY Kentucky Revised Statutes Murder Manslaughter Robbery Ac~gravated Assault Arson H.obitual Offenders +35-010 +35-020 +33-120 +33.150 l+33_010 +31-190 ~ii.sU be death or ~J~gjj be confine- Shall be con- (Armed) (Dwelling) After two previous confinenent for cent for not less finement for not ~.l1l be impris- ~Ji1JJ he con- felony convictions, life, than 2 years nor more than 21 years. less than 2 nor more than 10 years. +33-l~-i0 Armed robbery shall be confine- mont for life or death. oned for life, or by death, * finement for not less than 2 nor more than 20 years. +33-020 (Non-dwelling) Shall be con- finement for not less than 1 nor more than 10 years. third felony convic- tion 1 be punished by confinement for life. Burglary Grand Larcen~y, Embezzlement Rape Carrying Dangerous Weapons H 02 H 0 t~4 CI) H H ci H L~Ij CI) 0 §433-120 §433-220 §434-010 §435-090 §435-230 shall be confinement shall be confinement shall be confinement shall be death shall be confinement for sot less than 2 for not less than 1 for not less than 1 or confinement for for nor more than 10 nor more than 5 years. nor more than 10 life without privilege not less more than 5 than nor years. §433-140 ` years. * of parole, or life confinement, or con- years. . Armed burglary , finement for not less shall be confinement than 10 nor more than for life or death. 20 I. PAGENO="0738" LOUISLINA Louisiana Revised Statutes M~~~,nhtv Rnhhurv Anornvated Assault Arson Habitual Offenders Murder iIi:-~ 30 Penalty shall be death, lure 1 arv i1~T 31 i'T6'~~ l5f § 37 1LF § 51 15 i 529.1 Under Penalty shall be Penalty for armed Penalty for aggra- Penalty for aggra- sentencing are imprisonment at hard labor for not more than robbery shall be imprisonment at hard labor for not vated assnult shall be fine of not more than vated arson shall be imprisonment for not less than 2 nor provisions in- creasing sentences for second and sub- 21 years. less than 5 and not more than 3D yesrs. 11f § 65 Penalty - simple robbery - shall be Imprisonment with or without hard labor for not more than 5 years. $300 or Imprison- meat for not more than 2 years or both, more than 20 years. l1f § 52 Penalty for simple arson ($~0 or more damage) shall be fine not more than $5,000 and imprisonment at hard labor for not more than 10 years. sequent offenses. (Also under mdlvi- dual sections - provisions for mc- ressed penalties for second and subsequent offenses.). Carrying D,~.1~rniis wannns Grand Larceny l~ ~6O Aggravated burglary Penalty: .ijig!i be imprison- ment at hard labor for not less than 1 nor more than 30 years. 11+ §62 . Simple l)ur4jlary Penalty: shell be impris- onment at hard labor for 11+ §67 .pensit.y:(for tskin9 some- thing of value of $190 or more) gjg~jj be impris- onment with or without hard labor, for not more than 10 years. Penalty: ($20 - $100 value) shall be fine not more th~~1~00 or impris- l~ §67 Same as (Greater offense, l~+ ~+2 larceny Penskty: for sggrsvsted penalty for 2nd rape l~l.i be death, etc.) l1f §1+3 Penalty: for rape .l~ll be imprisonment at hard libor for not less than 1 nor more than 20 years. 1~e §95 ~gj4lt: for illegal carrying of weapons ~j~gjl be fine of not more than $500 or imprisonment for not more than 1 year or both. (Additional penalties for second and third convictiuns provisions), - not more than 9 years. onment with or without hard labor, for not more than 2 years, or both. . t~i 24 H CD H 0 CI) H H H LI CI) PAGENO="0739" H 112 H 0 0) H H ci H L*T1 CI) 0 MAINE Revised Statutes of Maine Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders Ch. 130 §1 Penalty shall be Ch. 130 8 Penalty shall be Ch. 130 ~l6 Penalty be Ch. 130 §21 Penalty ~jjgjj be Ch. 131 §1 Penalty .l~.lfl. (for No general provisions. life imprisonment, fine of not nore than $1,000 or inprisonnent for not more than 20 years. inprisonment for any tern of years. fine of not nore than $1,000 or imprisonment for not more than 5 years. Ch. 130 ~ 19 Penalty for assault with intent to maim (if armed with dan- gerous weapon) ~j~3j be imprisonment not less than 1 year nor more than 20 years. burning dwelling house) be imprison- ment for not less than 1 nor more than 20 years. (Loss of life in consequence of burning makes offender guilty of murder). . Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons Ch. 131 §8 Ch. 132 §i Ch. 132 §7 Ch, 130 §10 Ch. 137 §19 Penalty: shall be impris- onment for any term of Penalty: onment for shall be impris- not more than Same as larceny Penalty: onment 111.111 for any be impris- term of Penalty: shall be fine of not more than $100 or years. Ch. 131 §9 5 years. years. imprisonment for not more than 90 days. Penalty: (burglary with explosives) iJi.~fl be im- prisonment for not less than 20 years nor more than -10 years. PAGENO="0740" ~30 Shall be restoration or payment of value to owner and imprisonment in jail or in Maryland House of Correction or in Maryland penitentiary for not more than 20 years. ~l29 1 be restoration ~j~gjl he imprisonment of thing to owner or pay- in the jail or house of mint to him of full value correction for not more thereof and fine not more than 3 years or in the than $l,lX~0 or imprison- penitentiary for not more mont not more than l~ years than l~ years. or in house of correction or jail for not more than 10 years or both fine and imprisonment. 161 Shall be death or im- prisonment for life or for a term not less than 18 months nor more than 21 years. (Discretion of court or jury). tn CI) H 0 MARYLAND d Code of Maryland Art. 27 Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § 413 1st Degree: Shall be (loath or life imprisonment (court or jury's dis- cretion) 20(1 l)egree: Shall be imprisonment for not less than 5 nor § 307 Shall be imprison- mont for not more than 10 years or in court's discretion may he fine not more than $500 or imprison- ment in jail for not more than 2 years or §~ 406, 400 11 be restoration of or full value of thing taken from owner md imprison- mont for not less than 3 nor more than 10 years. (Armed robbery - restora- § 12 (With intent to § 6 (Dwelling) No general provision. murder, rape, etc.) Shall be imprison- ranging from imprison- mont for not less mont not less than 2 than 2 nor more years to death, than 20 years. 7 (Other buildings) shall he imprison- mont for not loss than 1 nor more than more than 10 years. both. tion and imprisonment for not more than 20 years. 7 years. Ru~Iyry Grand Larceny l0iilwzzlement Rape Carrying Dangerous Weapons § 36 ~.gjl 1)0 fine not more than $1000 or imprison- m~nt in jail or the Mary- land house of Correction for not more than 2 years. C) CI) H H d H Cl) 0 PAGENO="0741" Murder MASSACHUSETTS Massachusetts General Laws Annotated Manslaughter Robbery Aggravated Assault Arson Habitual Offenders Ch. 265 § 2 1st Deç~ree: Shall be death unless jury~s Ch. 265 § 13 Shall be imprison- ment for not more Ch. 265 § 17 Shall be imprisonment for Ch. 265 § 15 Penalty for assault to murder or maim Ch. 266 § 1 (dwelling) be imprisonment Many individual crimes carry individual penalties for habitual verdict recommends life imprisonment, (No recommendation than 20 years or by fine not more than $1,000 and impri- life or for any term of years. shall be imprison- meat for not more than 10 years or by for not more than 20 years or impri- sonment in jail or criminals but no habi- tual offender act as such. permitted in case of rape or attempted rape). 2nd Degree: Shall be imprisonment for sonment injail for not more than 26 years. fine not more than $1,000 and imprison- ment in jail for not more than 26 years. house of correction for not more than 26 years. Ch. 266 § 2 (other than dwelling) . life, shall be imprisonment for not more than 10 years or by imprison- meat in jail or house of correction for not more than 26 years. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons t~1 111 H H C 0 ci) H H H (1) 0 Oh. 266 § 15 For unarmed burglary shall be imprisonment for not more than 20 years, and if pre- viously convicted of unarmed 1~urglary, not less than 5 years. Gb. 266 i 30 Shall be imprisonment for not more than 5 years or by fine of not more than $600 and in- prisonment in jail for not more than 2Y2 years. * Ch. 266 § 52 Shall be imprisonment for not more than 15 years or fine not more than $2000 and imprison- ment in jail for not more than 26 years. (Bask official or agent.) Ch. 265 i 22 Shall be imprisonment for life or for any term of years. ~ Ch. 269 § 10 Shall be imprisonment for not less than 2~'~ years nor more than 5 years, or for not less than 6 months nor more than 2ii years in a jail or house of correction, PAGENO="0742" MICHIGAN Michigan Statutes Annotated Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § 28.~+8 1st D ire~: ~j~g~j be solitary con- finement at hard labor for life, § 28.5'-+9 2nd Degree: ~g)j be imprisonment for life or any term of § 28.553 ~gll be imprisoned not more than 15 years or by fine not more than $7,530, or both, § 28.797 (armed) ftg)j be punishable by imprisonment for life or for any term of years. § 28.798 (unarmed) §jigjl be punishable by § 28.276(1) ~igfl be punishable by imprisonment In the county jail or the state prison not more than a year or fine of $530 or both. § 28.267 § 28.1082 Ct seq. (dwelling) Shall Hsbltual offender act be punishable by prescribes longer imprisonment not penalties for second more than 23 years. and subsequent felony § 28.268 (nondwelling) convictions ranging Shall be punishable from li~ times longest by Imprisonment not term to life Imprisonment. more than 10 years. years (Courtts dia- cretioa). imprisonment not more than i5 years. Ilsrglary Grand Larceny Embezzlement Carrying Rape Dangerous Weapon §28.305 If convicted (night- time) j~gyit: §28.588 If convicted, Penalty: ~j~gll be gsilty of a fel- §28.371 If convicted, Penalty: .~jjyl1 be gsiity of a fel- §28.788 If convicted, Peaalty: ~jl be guilty of a fel- §28.1+23, 28.1121f If convicted, of carry- iag with unlawful intent ~j~ll be guilty of a Oil- any punishable by impris- ony punishable by impris- omment not more than 5 ony punishable by impris- omment not more than 10 ony punishable by impris- onment for life or for any or carrying concealed without license, penalty onment for mot more than 15 years. §28.306 years or ly fine of not more than $2530. years or fine not exceed- isp $5,000. term of years. ~y~1 be guilty of a fel- any punishable by impris- onment for sot more than If convicted (daytime) ~jyggj~y: yjypll be guilty 5 years or fine not more than $2530, of a felony punishable by imprisonment for not more than 5 years or fine of sot more than $2530. t~1 H (`I H 0 C) PAGENO="0743" MINNESOTA Minnesota Statutes Annotated Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § 619.07 1st Degree: Penalty: Shall be imprisonment for life, § 619.08 2nd Degree: Penalty: Shall be imprisonment for not less than 15 nor more than years (Exception involving rape and sodomy-life impri- sonment,) § 619.17 1st Degree: Penalj~y: Shall be imprisonment not less than 5 nor more han 20 years. § 619.26 2nd Degree: Penalty: Shall be imprisonment for not less than 1 nor more than 15 years or fine not more than $l,cfXl or both, § 619)+2 1st Degree: Penalty: Shall be imprisonment not less than 5 nor more than 40 years. § 619)+3 2nd Degree: Penalty: Shall be imprisonment for not less than 2 nor more than 15 years. § 619.37 1st Degree: Penalty: Shall be imprisonment for not less than 5 nor more than 10 years. § 619.38 2nd Degree: Penalty: Shall be imprisonment for not more than 5 years or fine not more than $i,cxJo or both. § 621.021 1st Degree: ~y: (dwelling) ~jj be imprison- ment for not less than 2 nor more than 20 years. § 621.025 2nd Degree: Penalty: (other buildings) shall be imprisonment for not less than 1 nor more than 10 years.~ § 610.29 et seq. Mter three previous felony convictions, fourth felony con- viction - life impri- sonment under specified conditions. Burglary Grand . Larceny Embezzlement Rape Carrying Dangerous Weapons L~l ~Ij z H Dl H 0 CI) H H Cl H t~i CI) 0 §621.07 §622.05 Same as larceny. §617.01 §6l6)+l 1st Degree 1st Degree Penalty: all be impris- Penalty: 1J1131 be guilty Penalty: shall be impris- onment for not less than Penalty: shall be impris- onment not less than 1 nor onment not less than 7 nor more than 30 years. of a gross misdemeanor and punishable under ~6l0.20 10 years §621.09 more than 10 years. §622.06 by imprisonment in county jail for not more than 1 2nd Degree Penalty: shall be impris- 2nd Degree Penalty: li!Qfl be impris- year or by fine of not more than $1000. onment for not more than onment for not more than 10 years. 5 years, imprisonment in the county jail for not more than 1 year or fine of not more than $500. PAGENO="0744" MISSISSIPPI Mississippi Code Annotated Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders - § 2217 Shall be death or life impris- onment. (Courtts or jury's discre- tion.) § 2233 Shall be impris- earnest not less than 2 nor more than 22 years or imprisonment in county jail not more than 1 year or fine not less than $5~o or both, § 2361+ Shall be impris- onr.ient not more than 15 years. § 2211 (armed) shall be Imprisonment for not more than 10 years or fined not more than $1,020 ar impris- oned in county jail not more than 1 year, or both, § 2)06 1st Degree: (dwelling) shall be Imprisonment not less than 2 nor more than 22 years. § 2207 2nd Degree: (non dwelling) l.~gj.j be Imprisonment not lesa than 1 nor more than 10 years. No general provision. llurglary GrandJ~rcenpy Embezzlement Rape Carrying Dangerous Weapons §2036 §2240 §2115 §2350 §2079 (inhabited dwelling) ~j~gjl be imprisonment not less than 7 nor 111.11 be imprison- nest for term not exeeding 5 years. .iJi~3i be imprison- mont for not more than 10 years or a ~ji~gjj~ be or life ment. death imprison- .lJ~.U be fined not less than $25.00 nor more than $100 or imprisonment in more than 15 years. fine of not mere than county jail nor more than §2030 $1000 and imprison- 3 months or both. (dwelling gem- meat in county jail orally) .ljjgjj~, be not more than 1 year imprisonment not or either. more than 10 years. tTI tn H Co H 0 CD in C-4 Co H H ci H CI) 0 PAGENO="0745" MISSOURI Murder §~ 559.010-559.033 1st Degree ~t: Shall suffer death or life imprisonment. 2nd degree Penalty: Shall be imprisoned for not less than 10 years. Vermon1s Ann. Mo, Statutes Robbery Hnhiti,nl §~559.080-559.l~0 Penalty: Shall be imprisoned for not §~ 560.120-560,135 1st Degree (with deadly weapon) § 559.190 Intent to kill, rob, rape, burglary, etc. § 560.010 Penalty: Shall be imprisoned for a § 556.280 A general statute which provides special provisions less than 2 nor Penalty: Shall Penalty: Shall be term of not less relating to punishment of more than 10 years or by imprisonment in county jail not less than 6 months, or by a fine not less than $560 or by both a fine not less than $100 and impri- suffer death, or imprisoned for not less than 5 years. 1st Degree (by other means), Penalty: Shall be imprisoned for not less than 5 years. imprisoned for not exceeding 5 years, or in county jail not less than 6 months, or by a fine not less than $100 and imprison- ment in county jail than 2 years. second offenses. sonment in county 2nd Degree: not less than 3 jail not less than 3 months, Penalty: Shall be imprisoned for not exceeding 5 years nor less than 3 years. months, or a fine not less than $lco. § 559.220 (common assault). Penalty: Shall be fined not exceeding $lco, or imprisoned in county jail not exceeding 6 months, or both. tyj H CD H 0 (3 Ci) H H cl H- Ci) 0 3 Rane Carrying Danoerous Weasons §560.035 - 560.095 §560.155 - 560.161 No specific provisions §259.060 §56~.6l0 1st Degree Penalty: imprisonment for Same as Larceny Penalty: ~j~jJ suffer Penalty: imprisonment not Penalty: be impris- oned for not less than five years nor more than not more than ten years nor less than two years, or imprisonment in county death, or be imprisoned -for not less than two years, in the discretion - exceeding two years or by fine not less than $109 nor more than $1,000 or by twenty years. 2nd Degree Penalty: be impris- jail for not more than two years, or by a fine of not more than $l,oco of the jury. imprisonment in county jail not less than 50 days nor more than 1 year or both. soaed for not less than or both, two nor mre than tea . years. PAGENO="0746" MONTANA ~,y,,,ç,odes of Montana Aanravr -~ Assault Murder Manslaughter Robbery §~ 91f-252l through 91l.2~D5 lstD~g,yp,g ~ Shall §~ 9l+~25J7, 91f-2%8 Penal~,y: Imprison- ment not exceeding 10 years. §~ 91+~1+3Jl through 91f-1+603 Penp,i,l,y~: Imprison- meat for not less § 91f-601 1st De~gree: Intent to kill or commit felony, §~ 91+-5J1 through 91+-~D5 )~gre~ (dwell- lags). - Imprison- No general statute found. suffer death, in discretion than 1 year. ~y: Imprison- meat for not less meat for not less 2 of jury, or if , than 5 nor more years nor more than ~ left to court, life imprisonment. 2nd Decireg Penaitj!1: Imprison- meat for not less years, gg~~e: Intent to Injure. ji.gj~t: Imprison- meat for not less 2g~jjgj1!~~: (build- ings other than dwol- lings). Pena~y: Imprison- mont for not less . than 10 years. than 1 nor more than 5 years, or than 1 nor more than 10 fine not exceeding $2,000, or both. ~ years. Burglary Grand Larceny Emb ezzl,ement Rape - Carrying Elangerous Weapons §~9uI.9o2, 9~s-903 `9~-270~, 91_2706 `~9~l-l~l `~~+~l+lOl - jP~gi~e (Nighttime) Penalty: Imprisonment for (Public officers) j~.g.git: Imprisoament for Penalty: Imprisonment for not less than one nor more Penalty: Imprisonment not less than 2 nor more not less than 1 nor more than l1f years. for not less than one nor than 99 years. than 15 years. more than 10 years. 2nd Degree (Daytime) Penalty: Imprisonment for not more than five years. tTl H (`I H 0 0 ~9~49G9 (With intent to assnull Penalty: Imprisonment *for not less than 1 year nor more than 5. ~9~i-3525 (Carrying in cities or towns) Penalty: fine not exceeding or by imprisonment in county jail not exceeding 6 months, or both, or impris- onment in penitentiary not exceeding five years, ~9~3526 (Outside citieS and towns) Penalty: Inprisooment in county jail not less than 6 months nor more than 1 year, or by fine not less than $25 nor' more than $300 or both, PAGENO="0747" ~28-532 ~28-535 Pypy33~y: shall be imprisoned Penalty: IJJ.lfl be im- for not more than 10 years prisoned for not less nor less than one year or than 1 nor more than by fine not-exceeding ~%0 7 years. or imprisoned in county jail not exceeding six months. ~28-533 (Feloniously entering buildings) Penalty: shall be impris- oned for not more than 20 years nor less than 3 years. ~28-538 ~28_1407 ~28-l0l same as felon- Penalty: lJi.lJJ~ be impris- ~enalty: shall be fined not iossly stealing property. oned not more than 20 nor exceeding $1,000 or impris- (See grand larceny), less than 3 years. oned for a period not ex- ceeding 2 years. NEBRASKA y,~tat. of Nebraska Aaaravated Assault Murder Manslaughter § 28~4o1 1st D~g~pç ~gggjt: Shall suffer death or § 28~1103 Penal~~y~: Shall be imprisonbd not more than 10 Robbery § 28~+l~f P~fl: Shall be imprisoned for not less than - § 29-~09 (Felonious) ~gg~jfl: Shall be imprisoned for not Arson § 28~50~+.0l 1st Degree (dwelling) Penalty: Shall be Habitual Offenders § 29-2221 A two time offender of felony upon conviction a imprisoned during years nor less thnn 1 3 nor more than 51 more than 15 nor less imprisoned for not of another felony. life in discretion of jury. § 28-~Ol year. years. years. less than 2 nor more than 20 years. 2nd Degree: (other Penilty: Shall be in- prisoned for not less than 10 nor more than 2nd Degree buildings) 23 years unless greater Pe~~y~: * Penalty: Shall be punishment may be given be imprisoned not less than - imprisoned for not less than 1 nor more for felony committed, 10 years, or * than 10 years. during life. Burglary Grand . Carrying z H w H 0 CD (12 H H H (1) 0 CD PAGENO="0748" §~ 2D0.OlO--200.03J 1st Degree Penalty: Death or imprisonment for life in discretion of jury. 2nd Degree ~: Shall be imprisoned for a term not less than 10 years, which may be extended to life. Burglary~ §205.060, 1st degree: (nighttime) ~pjiaj~y: imprisonment for net less than 1 nor more than 15 years. 2nd degree: (daytime) §~ggg3fl: imprisonment for not more than five years. §~ 20o.0~~o--2oo.o8o Penalty: Shall be imprisoned for a term not exceeding 10 years. _Grand Larcen~y §205.220. Pena~,ty: imprison- mont not less than 2 years nor more than 14 years. NEVADA Nevada Revised Stntutes Aggravated Assault § ~~400 (Assault with intent to commit crime). Penalty: Shall be imprisoned for not less than 1 nor more than 114 years. (Assnult with deadly weapon). ~: Shall be Imprisoned for not less than 1 nor more than 2 years, or a fine of not less than $l,coo nor more than $5,000, or both. §205.300. §~g.ggit: See Grand Larce soy. Arson _____________________ §~ 2D5.0l0---205.055 1st Degree (dwellIng) ~ be imprisoned for not less than 2 nor more than 20 years. 2nd Degree: (other buildingsj. ~ Shall be imprisoned for not less than 1 nor more than 10 years. Rap~e ~r~r~yipg Dajigerous We~pons §200.360. §202.350 ~ggjJ~y: gj.~gfl be ?444i44if~lt: shall be im- imprisoned for net prisoned for not less less than 20 years, than one year nor more or death in dis- than five. cretien of the jury. § 200.380 Penalt~y: Shall be imprisoned for not less than 5 years. Habitual Offenders § 207.010 General law for mulitple offenses providing penalties ranging from im- prisonment for not less than 10 years to life. fJ) H ci H t~j 05 0 PAGENO="0749" NEW HAMPSHIRE N.H. Rev, Stat, Ann. Auarav--'~ Assault Murder Manslaughter Robbery Arson Habitual §~ 585:l-585~+ 1st Degree: Penalty: Shall be death or imprison- ment for life in discretion of jury. 2nd Degree; Penalty: Shall be imprisoned for life or for such term as the court may order, §~ 585.8-585:11 1st Degree: Penalty: Shall be imprisoned fornot more than 30 years. 2nd Degree: Pe~)~y~: Shall be imprisoned for not more than 10 years, or fine not more than $l,cOO, or both, § 585:18 Penalty: Shall be imprisoned for not more than 3) years. . § 585'22 Penalty: Shall be fined not more than $5X~, or imprisoned for not more than 3 years, or both. ~ § 58~:i Penalty: (dwelling) Shall be imprisoned for not sore than 30 years. (Personal property) Penalty: Shall be imprisoned for not more than 3 years, or fined not more than $l,cXJO and imprisoned not more than 1 year. § 591:1 General provisions relating to third or more convictions on certain offenses. Penalty: Shall be imprisoned for not more than 15 years. Burglary Grand Larcen~y Embezzlement Rape Carrying z H 02 H 0 (12 H H ci H L~mj (/2 0 §583:1, (intent to commit certain crimes in nighttime). Penalty: shall be im- prisoned for not more than 25 years. §SuO.3, ~~ggjt: ~ji~JJ be prisoned not more five years. ` im- than §580-23, ~ggjfl: ijigjj be fined not more than $2,000, sr imprisoned not more than 5 years, or both, §585:15, ~pgj3.y: lJaU be imprisoned for not more than 30 years. §535:27. Penal~y: ljig.1J. be fined not more than $100, or imprisoned not more than one year, or both. (other criminal intent Sin nighttime). . Penalty: imprisoned not more than 15 years. PAGENO="0750" NEW JERSEY N.J. Statutes Ann, Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders §~ 2A:113-l through 2A:1l3-1f. 1st Degree: Penalty: Death, on- § 2A:113-5 Penalty: Shall be fined for not more than $1,000, or by § 2A:l1+l-l Penalty: Shall be a fine not more than $5,000, or § 2A:90-l (Attrocious Assault) ~ggglt: Fine of not more than $2,000, or §~ 2A:89-l, 2A:85-6 ~~gjfl~: Fine of not more than $2,000, or by imprisonment §~ 2A:85-8 through 2A:85-12, General law relating to certain crimes and less jury recommends life imprisonment, Imprisonment for not more than 10 Imprisoned for not more than 15 years, by imprisonment for not more than 7 years, for not more than 7 years, or both. misdemeanors. Penalties: 2nd Degree: Penalty: Shall be years, or both, or both, or both, § 2A:90-2. 2nd offense1 doubly maximum punishment. imprisoned for not Assault with intent 3.od offense, triple more than 30 years. to kill, rob, rape, etc. gIlt: Shall be a maximum punishment. ~+th offense, or sub- sequent offense, life . fine not more than $3,000, or by impri- sonment of not more than 12 years, or both, imprisonment. Burglary Grand Larcenøy Embezzlement Rape Q~~j~nq~Dangerous Weapons §24:94-1. ~gggjty: fine not more than $2,000, or by in- prisonment for not more than seven years, or both. §2A:1l9-2. ~gpgJ~y: guilty of a high misdemeanor, lJ!1JJ be punished by a fine not more than $2,000, or by imprisonment for not more than seven years, or both. §~2A:l02-l through 2A: 102-12. EanaLty: ranges in a scale of various offioers being guilty of a high misdemeanor or a mis- demeanor, §2A:133-l, Penalty: shall be fined not more than $5,000, or by im- prisomment for not more than 30 years, or both. §2A:lll-41. Penal5y: guilty of a mis- demeanor, punished by a fine of not more than $1,000, or by imprison- meat for not more than 3 years, or both. High misdemeanor - §~gggjgy: fine of not more than $1,000 or by imprisonment not more than seven years, or both. ~gg~~y: Mlsdemeanor:/fine of not more than $1,000, or by imprisonment for not more than 3 years, or both. 0 PAGENO="0751" ~j~.gjJ. be imprisoned for not less than 3 nor more than i5 years. 10-9-2 (Armed) ~jjgjj~ he imprisoned not more than 25 years nor less than 3 years. (Unarmed) ~!i~U be imprisoned for not more than 5 years nor less than one year. ~10J~51 to ~j~gj1 be imprisoned for not more than 10 years. 110~~+5~l9 (If exceeds $50) ~iiiJi be imprisoned for not less than 1 year nor more than 10 years or fined not to exceed $l,COJ or both. ~1O-39-l Imprisonment for not less than 1 year nor more than 99 years. 10-17-1 Shall be fined not less than $50 nor more than $300 or by imprisonment for not less than 60 days nor more than 6 months, or both. NEW MEXICO New Mexico Statutes Robbery Ilssnult Murder Manslaughter § lO~6J+ Penalty: (intent to commit felony), Arson §~i0-2~+-~+ through I0_31l_lO 1st Degree: § l0-~+-l0 PeJ~gj~y~: Shall be imprisoned for a §~ 10J+2-l, ~1ü-J+2-3, Per~gjfl: (unarmed). Sisall be imprisoned § 10-5-1 Penalty: Shall be imprisoned for not Habitual Offenders §~ +1-16-1 through +l-l6-~+ 2nd conviction - term Penalty: Shall periodmt less than for not less than Shall be imprisoned less than 2 years not less them half the suffer death un- 1 year nor more than 3 years nor more than for not more than 3 nor more than 20 longest term of first less the jury shall specify life 10 years. i5 years. Penalty: (armed) years nor less than 6 months, or by a - years. conviction. 3rd conviction - not imprisonment. 2nd Degree: Penalty: ~!ig.i1 be imprisoned for any period not Shall be imprisoned for not more than 25 years, nor less than 3 years. fine not exceeding $1,110 nor less than $1130. § 110_6~6. Penalty: (intent to . less than the longest term, nor more than 3 times the longest term for s first conviction. -1-th conviction - im- less than 3 years, kill). Shall be imprisoned for not more than 25 years nor less than 1 yearS or fined not exceeding $1,000 or both. prisoned for life. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons ci 0) 0 p PAGENO="0752" ~3O5, 1935 (Dank employees) Penalty: Imprisonment not more than 7 years or by fine not more than $1,000 or both. ~20l0 1st Degree J~on.alt: Imprisonment for not more than 20 years. 2nd Degree Penalty: Imprison- meat for not more than 10 yearo. ~l897, 1935 (Certain weapons) Penalty: A felony, imprisonment not more than 7 years, or by fine not more than $1,000 or both. (Other weapons) Penalty: A misdemeanor, but is a felony if person has been previously con- victed of a crime. Misdemeanor - imptisonment for not more than 1 year or by fine not more than or both. NEW YORK McKinneyts Consolidated Laws of New York, Penal Law Murder Manalaughter Robbery Aggravated Assault Arson §~1o}~~~10t3 1st Degree: Death unless the jury recommends life §~ l0~-l053 1st Degree: In- prisonment for not more than 20 §~ 2l~-2l27 1st Degree: Im- prisonment for not less than 10 years §~ 2140-21f3 §~ 2~-227 1st Degree: (intent 1st Degree: (night- to kill, , , ,arned) time) Imprisonment for not Esggit: Imprison- [abitual Offenders §~ 19141, 19~f2 2nd & 3rd conviction of - if crime Is punishable for less than imprisonment. 2nd Degree: Shall be imprisoned for not less than 20 years, the maxi- mum is life, years. 2nd Degree: In- prisonment for not exceeding 15 years, or a fine not more than $i,coo or both. nor more than 3D years. 2nd Degree: In- prisonment not exceeding 15 years. ~ exceedIng 10 years. mont for a tern not 2nd Degree: Imprison- exceeding 110 years. meat for not exceeding 2nd Degree (daytime) 5 years or n fine not Penalty: Imprison- more than $1,000 or meat for a term not both, exceeding 25 years. life - person must be imprisoned the minimum not less than half the longest tern prescribed for a first conviction and the maximum not longer than twice auch longest term. Provides that the minimum not be less than 5 years. +th conviction of felony - not less than 15 years and maximum Is life. [lurylary Grand Larceny Eml)ezzlement Carrying ~i00-~i07 ~l291f 1st Degree (Nighttime) lot Degfp~ (Nighttime) Penalty: The minimum of Imprisonment for a term which ~.~g1l not be less not exceeding 10 years. than 10 years nor more than 2nd Degree 30 years. Penalty: Imprisonment 2nd Degree (Daytime) for a term not exceeding For a term not exceeding 5 years. 15 years, PAGENO="0753" 0 NORTH CAROLINA ~ St~tt~ of Nnrth Cnrnlins Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders lI+~l7 lot Degree: ~gjj* § l~+-l8 Sh~jj. be imprisoned § l~+-87 (with weapon) § l~+-32 (with deadly weapon) § i~-~--~ Shall suffer death. No general provision. be punished with death, 2nd Degree: Shall be imprisoned not in county jail or state prison for not less than four months nor more than 20 Shall be punished by imprisonment for not less than 5 nor more than 33 years. Shall be imprisoned or work for Highway Dept. for not less than -F months nor less than 2 years years. more than 10 years. nor more than 30 years. Burglary Grand Larceny Embezzlement Rape Carrying Dangerous Weapons H H 0 §~l~+-5l, l~+-52 First Degree -(Occupied, sleeping, dwelling) Penalty: shall suffer death. 2nd Degree (Building not occupied) im- ~ft~-s-70 Penalty: See Burglary for goods over value of $lcxJ, In cases of aggravation or hardened offenders, the court may in its discre- ~l~F-90 ~agjt: same as larceny. ~1~-F-2l Penalty: ~jjgjj~ be pun- ished with death, ~lLs~~269 Penalty: Guilty of a misdemeanor and fined or imprisoned at dis- cretion of court. Cl) ~ H ~ H ~ ~ Penalty: shall be4risoned for life, or for a term of years in discretion of tion imprison for a period not exceeding ten years. Less than $ico value - in - ~j court, discretion of court. PAGENO="0754" Os H H ci H tn C's 0 NORTH DAKOTA North Dakota Century Cod ._~ag~la~!eL~ Robbery Aggravateti Assault §~ 12-27-12 through l2~27_ll+ lstDeqrgg~: §jig$1 §~ 12-27-16 through 12-27-20 - §~ 12-31-01 through 12-31-09 § 12-26-10 Shall be fined not Arson §~ 12~3hl~01, 12_3h1_02 (Dwelling) Habi tual Offenders §~ 12-06-18, 12-06-22 2nd offense- if first be confined at hard j~LQeree: ~gfl be ~~j~j~egree: Shall be more than $1,000 Shall be Imprisoned conviction exceeds 5 labor for life, imprisoned for not imprisoned for not or b~ imprisoned for not more than 20 years, shall be impri- 2nd Degree: Shall be imprisoned for not less than 10 less than 5 nor more than 15 years. Qe~ee: Shall be less than 1 year. 2ndDeg~gg: Shall be Imprisoned for not for not more than 1 year, or both. years nor less than 2 years, (other buildings) soned for not less than 10 years. 3~offense - shall be nor more than 3) imprisoned not less less than 1 year Shall be imprisoned Imprisoned for not more years. 1 year nor more than 5 years, or in county jail for not more than 1 year or by fine of not more than $1,000, nor more than 10 years. ~ for not less than one and not more than 10 years. thom twice the maximum for first conviction. 11th offense - nay be punished by life In- prisonment. or I Carrying ~- ii(U~arceny Eml)ezzlement If) ~_ _900111 af~ §~l2-35-0l, 12-35-02 ~l2-~0-0l - 12-1i0-d+ ~12-360l - 12-36-06 ~l2-30-0l - 12-30-06 §62-03-01 - 62-03-06 enal~y: 1 be irspris- ~ggjt: ijiall be impris- j~Q~5jfl: same as larceny. L~J~CgiQQ - ~ji~jll be in- j~na1t: ljigjj be in- omed for not less than one oned for not less than 3 prisoned for not less than prisoned for not more than year nor more than 10 years. months in county jail, or one year. 2 years or in county jail not more than 10 years in 2n~LDe roe - lJif).U be in- for not sore than one year - State prison, or by a fine prisoned for not less than or by a fine not more than of not less than $~)0 nor one year if not a minor. $100, or both. more than $1,000, or 1)0th. PAGENO="0755" H CI) H 0 C) CI) H H LTI CI) 0 h OHIO PageTs Ohio Revised Code Assault Murder Manslaughter Robbery Arson Habitual Offenders § 2901.01 1st Degree: death unless jury recommends mercy, then shall be life imprisonment. § 2901.05 2nd degree: § 2901.06 1st Degree: Shall be imprisoned for not less than 1 nor more than 20 ~ars. 2nd Degree (motor vehicle) § 2901.12 Shall be imprisoned not less than 1 nor more than 25 years. § 2901.13, (armed) Shall be imprisoned for not less than § 29Ol.2~+ § 2907,02 (intent to kill, rape, Shall bqimprisoned or rob) shall be not less than 2 imprisoned for not nor more than 20 less than 1 nor more years. than 15 years. §~ 2961.11, 2961.12 Provides that anyone who has been three times previously convicted of various crimes shall be ad- judged an habitual crimin~l and ik~Ji Shall be imprison- ment for life. ten nor more than 25 years. be sentenced to in- prisonment for life. Burglary Grand Larcenly Embezzlement Rape §2907.09 §2907.20 ~gggfly: (inhabited dwelling) ~gggj~y: gj~gfl be im- ~j~gjJ. be imprisoned not less prisoned for not less than five nor more than 30 than one nor more than years. 7 years. §2907. 10 Pemaliy: (uninhabited dwell- ing) gjigjj. be imprisoned not less than one nor more than 15 years. §2907.34 Pegg]~y: ~Ji~JJ~ be im- prisoned not less than 1 nor more than 10 years. -_--~~ udmgerous Carrvin~ `---~ §2905.01 §2923.01 ~gggj~y: gj~gfl be Penalty: shall be fined not imprisoned not less more than $500, or imprison- than 3 nor more than ed in county jail not less 20 years. than 30 days nor more than six months. PAGENO="0756" OKLAHOMA Oklahoma Statutes Ann, ~ob~Qry~~ Title 26 §~ 701-727 ~suffer Title 21 §~ 7ii-~ Title 21 ~ 791-801 Ag~ravatedAssau~t Title 21 §~ 645, 64~, 61f7 ~A~raon Title 21 §~ 1381-1392 Uabitual O~enders Title 21, § 51, General law providing or imprisonment for life at hard labor in discretion of ~gg~ge: Punish- able by imprisonment for a term not less i~ 1st Degree: Punish- able by imprison- mont not less than (with weapon) Imprisonment not exceeding 5 years, J~~Qe~ge: Impri- sonment for not loss than 1 nor more double penalties for second and subsequent offenses, Jury. than years. 2nd Deg~~: Punish- able by imprisonment for a term not more than f years nor less than 2 years, or by imprisonment in county jail not exceeding 1 year, or by fine not ox- ceeding $l,cCO or both, 10 years. 2nd Degree: Punish- able by imprison- mont not exceeding 10 years. or by imprisonment in county jail not exceeding 1 year, (without weapon) Imprisonment in a county jail not exceeding 1 year, or by a fine of not more than $%o, or both, than 32 years. ~ Impri- sonment for not less than 1 nor more than 5 yeara. * __________________________________________ Carrying __________ Bur lar Grand Larç~qy_ erous Plea ens latle 21 Il 31-1+36 `sue 21 i7~, 1705 Title 21, ilL+5l_lLI62 "tie 2lU-J116 `sue 21 1271, 1272, 1276 1sgalt: punishable by in- i~s~gjfl~y: same as felom- ~.~ggree I Conviction ~~gglt: any term not less prisonment not exceeding iously stealing according i~enq~t: punishable by *~ogjj~: fine not less than thom seven years nor more 5 years. to value (see larceny), death or imprisonment for $25 nor more than $50 or than 20 years. not less than 15 years in by imprisonment is county 2gsLQeirsie discretion of jury. jail net to exceed 30 days j~jg~glJ1~; imprisonment sot 2gLQeai.ge or both, exceeding 7 years and net iegflj~: punishable by im- 7~idor Subseauent ~onvicthns less than 2 years. prisonment not less than jns~t: fine not less than one year nor more than 15 $50 nor more than $250 or years. imprisonment in county jail not less than 30 days nor mere than 3 months or both, ~- ~~~i~ZZl Ra0e van PAGENO="0757" OREGON Oregon Revised Statutes Murder Ruhh.r,, Annravated Assault Arson . § 163.010 1st Degree: Death unless jury re- commends life imprisonment, 2nd Degree: §j~gfl be punished by life imprisonment. § 163.080 Shall be imprisoned for not more than 15 years and a fine not exceeding $5,000. * § 163.280 (While armed) ~g~l be imprisoned for life or for any lessor term, § 163.290 (unarmed) ~jjg3j* be imprisoned for not more than 15 years. § l63.2~0 (Assault while owned) §j~.gfl be imprisoned for not more than 20 years. § 163.250 (Unarmed) Shall be imprisoned for not mere than 5 years. § l6~-.O2o 1st Degree: Shall be impaisoned for not less than 2 years nor more than 20 years. § l6~+.03~. 2nd D~g~~: Shall be imprisoned for not less than 1 nor more than 10 years. Habitual Offenders §~ l68.Oll--168.03l 2nd Conviction_ - may be sentenced for a period not exceeding twice the longest term prescribed for 1st conviction. 3rd Convictioriion - Shall be sentenced to a term not less than, nor more then 3 times, the longest term prescribed for offense last con- victed. 1-I-th Conviction - Shall be not less than twice the longest term prescribed for last offense, or may be sentenced for life, Carrying Danuerous Weagons Burglary Grand Larceny §l&+.230 §i&+.030 (Dwelling) (Exceeds $75) Pen~ity: ~jjg~j be impris- Penally: ~jjgjj. be impris- oned for not more than i5 oned for not more than 10 years. years. (Other buildings) (Under $75) Penalty: ~j~g.jj be impris- Peiinfly: 1jjgjj~ be impris- oned for not more than 3 oned in county jail not years. more than 1 year, or by fine not more than $100 or both. §i65.005 see larceny lxi H CI) H 0 cA CI) H H LTj CI) 0 * §163.210 Penalty: .iii~~ii be impris- oned for not more than 20 years. §166.220 (With intent to ixie Penalty: lull be fined not leis than $50 nor more than $522, or by im- prisonment in county jail not less than 1 month nor more than 6 months or by imprisonment in the State prison not exceeding 5 years. (Just carrying) P~g.gfly: shall be fined not less than1~iönOr more than $200, or by imprisonment in county jail not less than 5 days nor more than 100 days, or both. PAGENO="0758" PENNSYLVANIA Purdons Penn, Statutes Ann,, TItle 18 ~ § ~0l § `f?03 § `f?01+ § ~O9 § i9o5 § 5io8 lstfleqree: Denth, or Imprisoned Shall be fined not exceeding $6,Oco ~j~gjj be fined not exceeding $5,Oco ~j~jj~ be fined not exceeding $2,000 or Shall be imprisoned for not exceeding Second & third offenses if within 5 years of for life at discretion and imprisoned tint or imprisoned not imprisoned not 20 years, or fined first conviction ~gjj~ of jury, 2nd Degree: exceeding 12 years. exceeding 10 years, or both, exceeding 3 years, or both. not exceeding $10,000, or both, be imprisoned for a term of which shall first offense Impri- sonment not exceeding not be more than twice the term prescribed 20 years, or fined not more than $10,000 or both, for second for a first conviction. Fourth offense - be Imprisoned for life. offense - shall be Imprisoned for life. Riirolarv (rsnd 1areen~v FmhP77lPmanf Sn, ~ §4901. §4807. §4827. §4721. ~gj~gj~t: g~gJJ~ be fined not exceeding $10,000, or ~g~j~y~: iji.~Ji be fined not exceeding $2,000, or ~eaall~y: ~j~jl be fined not exceeding $2,000 or ~y: shall be fined not cx- imprisoned not exceeding 20 years, or both, imprisoned not exceeding 5 years, or both. mprisoned not exceeding 5 years, or both, ceeding $7,000, or imprisoned not exceeding 15 years, or both. ~TI t~I H CI) H 0 CD CI) H H H CI) 0 §4416. ~gggjt: Aj~JJ be fined not exceeding $500 or imprisoned not exceeding one year, or both. PAGENO="0759" RHODE ISL4~ND General Laws of Rhode Islaixi Burglary § 11-5-1. Penalty: iJi~JJ. be im- prisoned for life or for any term not less than five years. Grand Larceniv §~ll-4l-l through 11- 41-5. (over $500). P~gl~y: shall be imprisoned for not more than 5 years, or fined not more than $1,000, or both. 11-37-1. be imprisoned for life or for amy term not less than 10 years. L~1 H Dl H 0 CD (under $500) EE.1L~lJiBfl be im- prisoned for not more than one year or fined not more than $500 or both. 0 I,~1 Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders §~ 11-23-1 through 11-23-2 1st Degree: Shall be imprisoned for life. 2nd Degree- Shall § 11-23-3 Shall be imprisoned fornot exceeding 20 years. § 11-39-1 Shall be imprisoned for any term not less than 5 years. §~ l1-5~-l through 11-5-2 (intent to commit certain crimes) Shall be imprisoned not exceeding 20 §~ ll-~+l through iiJ+-3 (dwelling) Shall be imprisoned for not less than 2 nor more than 20 § 12-19-21 (two or more eonvictioss) ~gjl be imprisoned for a term not exceeding 25 years in addition to penalty for crime, be imprisoned for not les?than 10 years and may be imprisoned for - life, years nor less than 1. (with dangerous weapon). Shall be punished by imprisonment for not more than 10 years. years. (building other than dwelling). ~j~gj) be imprisoned for not less than 2 nor more than 20 years. * * Embezzlement Rape Carrying Dangerous Weapons See Larcency 11-47-42. P~~gj~y: .IJIBJJ. be fined not more than $500, or by im- prisonment not more than a year, or both. (I) H ci H t~Tj Dl PAGENO="0760" SOUTH CAROLINA Code of Laws of South Carolina Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders §~ 16-51, 16-52 ~gjj suffer death, or life Imprisonment § 16-55 Shall be Imprisoned net exceeding 30 § 16-333 (While armed) §j~gjJ be Imprisoned § 16-93 (with concealed weapons) § 16-311 Shall be Imprisoned for not less than 2 No general provision in the discretion of the jury, years nor less than 2 years. lbr not exceeding 25 years. suffer addi- tional punishment of Imprisonment for not less then 3 months nor more than 12 months. nor mare than ~ years. * Riivnlniv QggtIurt~n~v §16-331. ~j~.gjt: AflgU be im- prisoned for life unless jury recommends mercy, whereon the punishment shall be reduced to im- prisonment for a tern net §16-352, 17-552. ~gj~)j~y: Confinement in Penitentiary workhouse, or penal farn for a period not less than 3 months nor more than 10 years. §16-363. (Public funds) ~~g~fly: fine and imprisonment in discretion of court proportioned to amount of embezzlement. §~l6-7l, 16-72. Penalty: shall suffer death unless jury recommends mercy, imprisoned not ex- ceeding 40 years nor less than five less than five years. years. Embezzlement Rape Car~ylng Dangerous Weapons 1'l H CI) H 0 C) Cli H H 0) 0 C) §16-145. Penalty; shall be fined not more than $100 and not less than~2O, or imprisoned not more than 30 nor less than 10 days. PAGENO="0761" §13.3705. Penalty: 1st degree- imprisoned not less than 10 years. 2nd degree - im- prisoned not ex- ceeding 15 years and not less than 5 years. SOUTH DAKOTA South Dakota Code §13.2303. ~St.y: §13. 1609 1st degree - Penalty: ~j~gjj be fined punishable by im- not exceeding $500 or be prisonment not imprisoned in county jail less than 10 years. not exceeding one year or in State Prison not ex- 2nd degree - ceeding one year, or by punishable by in- both. prisonment not exceeding 20 years. t~j lii H 01 H 0 0 Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders § 13.2012 Shall be death or to hard labor for life, § 13.2013-13.2023 1st Degree: Punish- able by imprisonment for not less than -f years. 2nd Degree: Punish- § 13.2603 1st Degree: Punish- able not less than 1 nor more than 20 years. 2nd Degree: Punish- § 13.2302 (with weapon) Punishable by im- prisonment not exceeding 5 years or in county jail §~ 13.3601, 13.3602 (dwelling) Shall be imprisoned for not exceeding 20 years. (non-dwelling) § 13,0611 Second & third convictions may be sentenced to a term not more then twice the longest term prescribed for a first conviction. able by imprisonment not more than f years nor less than able not exceeding 7 years nor less than 1 year. not exceeding 1 year, or fine not exceeding ~5J0, Shall be imprisoned not exceeding 10 years. Fourth and subseguent may be sentenced for life. 2 years, or in or both. county jail not ex- ceeding 1 year, or fine not exceeding $1,000 or both, Burglary Grand Larcen(y Embezzlement Rape Carrying Dangerous Weapons §13.3303. Ennali.y: imprisoned not exceeding 10 years or in county jail not exceeding one year'. §13.4008. See Larcency. PAGENO="0762" TENNESSEE Tennessee Cdde Ann, §~39-~i02 through 39-~i08 1st Degree- Shall suffer death or imprisonment for Manslaughter § 39-~+l0 Shall be confined In penitentiary not less than 2 years nor more Robbery § 39-390' Shall be imprisoned not less than 5 nor more than 25 years. Aggravated Assault § 39-601 (deadly weapon) ~jj~~l be Imprisoned not less than 2 nor Arson § 39-901 Shall be Imprisoned for not less than 1 nor more than 21 habitual Offenders §~ 1~0-280i through 10-2807 A habitual criminal is one who has been life or over 20 than 10 mare than 10 years, years. convicted of three years as the jury years. felonies, Punishment may determine, except where death is 2nd Degree: Shall imposed Is life impri- be imprisoned not . sonment and Ineligible more than 20 nor . for parole. less than 10 years Burglary Grand Larce4y Embezzlement §39.~90l (Nighttime). )~gggjj~y: iJ.igjJ be imprisoned for not less than five nor more than 15 years. §39-903, §39-4204. PenaltX: punishable by in- prisonment not less than 3 years nor more than 10 years. §39-4232. See §~g~g~nc, §39-3702, enalty: ~jjg3j~ suffer death, or life imprisonment or not less than 10 years in the §39-4901. fi3ngjty: aJ~fl be fined $50 and imprisoned in county jail with im- prisonment only in the discretion of the court. 3 ~ 2nd degree (daytime) Penalty: .ijigjJ. be im- * discretion of the jury. co 0 prisoned not less than 3 years nor more than 15 , years. , PAGENO="0763" TEXAS Vernnn1s Texas Penal Code Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders Art. 1257 ~j~p3j. be death or imprisonment for life or for Art. 1237 (negligent homicide) Shall be punished by confinement in Art. 11408 Shall be imprisoned for life or a term not less than 5 Mt. 11148 ~ be fined not less than $25 nor more than $1,000 or imprisonment in Mt. l3l1F ~jJ, be imprisoned not less than 2 nor more than 2D years. Mt. 62, 63, 6~ Second and subseguent convictions - pj~jj. be highest punishment affixed for such of- any term not less than 2 years. jail not exceeding 1 year or by fine not exceeding $1,000. years. (with weapon) Shall be death or imprisoned for not less than 5 years. jail not less than 1 month nor more than 2 years, or both. fenses, Third conviction for - If less than capital, punishment shall be imprisonment for life. Second conviction of capital offense - shall not be less than life impri sonment. Burglary Grand Larcendv Embezzlement Rape Carrying Dangerous Weapons Art. 1391 (residence at nighttime). Penally: shall be im- prisoned for any term not less than five years. Art. 1397. ~p.gg1t: ~Ji~fl be im- prisoned not less than two nor more than 12 years. Art. 1421. (Felony theft). ~p~gJ.~: ~j~gfl be im- prisoned for not less than two nor more than 10 years. Art. 1534. See Larcency. tn H CI) H 0 0 z Ci) H H H (I) 0 hi Art. 1189. Pegalty: liltil be punished by death or imprisoned for life, or for any term not less than five years. Art. 483 ~gpgj~~y: ~gjj, be fined not less than $100 nor more than $500 or by im-' prisomnent in jail for not less than one gonth, nor more than one year. PAGENO="0764" Murder Rnhh~ru § 76-30J+ k1~P~!9Q: Death or life imprisonment on recommendation of Jury, in discretion of court, ~p~p~gr~: ShaU be imprisoned not loss then 10 years, and which may be for life. UTAH Utah Cede Aaaravated inn~,ie § 76-51-2 Punishable by imprisonment for not less than 5 years, and may be for life. § 76-33-6 Punishable by Imprisonment not less then 1 nor more than 10 years, Grand ~ § 76-7-6 (with deadly weapon) Punishable by im- prisonment not ex- ceeding 5 years, or by fine not exceeding $i,coo, or both. Arson § 76-6-1 §J~gjj be Imprisoned for not less than 2 nor more than 20 years. Habitual Offenders § 76-1-18 Whoever has been twice previously convicted of a felony is a habitual criminal - shall be Imprisoned for not lOss than 15 years (other than murder), §76-9-2, a]4~: First Degree - punishable by imprisonment for not less than 25 years nor more than 40 years, PenaJ,~1: 2nd Degree -fpunishable by imprisonment for not less than one nor more than 20 years. 1~1 H CD H 0 CD H H H LII CI) 0 t~rj §76-38-6, Pena~y: §76-17-li. ~76-53-l8. §~76"23-4; 76-1-16. pnlshable by im- (under 13 years) )~nnn1~ty: punishable by prisonisent for not less Same as Larcency. j~jjy: imprisoned imprisonment in county than one year nor more fo~' not less than 20 jail not exceeding 6 than 10 years, and by years, and may be months or by a fine in a fine not less than for life, any sum less than $300, $50 nor more than $1,000, or both. or by imprisonment only. (others). j~j~gj~.y: im- prisonment sot less than 10 years. PAGENO="0765" VERMONT Vermont Statutes Ann., Title 13 Murder Manslaughter Robbery Aggravated Assault Arson Habitual Offenders §233 1st Degree: Shall be death or life imprisonment as §23Ck Shall be imprisoned for not more than i5 years or for not §603 (Armed) Shall be imprisoned not more than 20 §605 (With weapon~ intent to rob) Shall be inprisoned not more §5)2 1st Degree: Shall be imprisoned for not more than 10 §11 Fourth conviction of ~5iB.!1~L may be sentenced to imprisonment for jury shall deter- mine, 2nd Degree: Shall be imprisonment less than 1 year or fined not more than $1,000 years and fined not more than $1,000. than 10 years nor less than 3 years. years nor less than 2 years or fined not more than $2,000. § 5)3 life. for life or such 2nd Degree: Shall term as court shall order, be imprisoned not more than 5 years nor less than 1 year or fined not more than $1,000. Burglary - Grand Larcenèy - Embezzlement Rape Carrying Dangerous Weapons t~l H ON H 0 (`3 §1201. (nighttime). Penalty: ,~j~gjJ~ be im-' prisoned not more than fifteen years or fined not more than $1,000, or both, §2501. ~gJ~: ~pjj be in-' prisoned not more than 10 years or fined not more than $500, or both, §2531. ~ j~gfl be imprison- ed not more than 10 years or fined not more than $500, or both, §3201. ~g,gg3t: ~j~gfl be imprisoned for not more than 20 years or fined not more than $2,000, or both. §4003. Penalty: be in- prisoned not more than 2 years or fined not more than $2Q0, or both. * ~ ~O' H -` LTj CI) §1202. 0 ~mJ (daytime). ~,gg~t: iJi~JJ, be in- prisoned not more than 10 years or fined not more than $1,000. . ~ . . (`3 PAGENO="0766" §113.1-06. (nighttime) ~p~5lty: lji~gJJ. be death, or in discretion of court or jury imprisonment for life or any term not less than 5 years. §18.1-100. §10.1-109. ~gggjt: ~j~gfl be im- prisoned not less than deemed Larc~g~y one nor more than 20 years, or in dis- cretion of jury or court, imprisonme~t in jail not exceed- ing 12 months, or by fine not exceeding $1,000, or both. §10.1-44. ~lj~y: shall be death or imprisoned for life or for any term not less than five years, in dis- cretion of the court or jury. §18.1-269. Penalty: li!gjj be fined not less than $20 nor more than $500 and in the discretion of jury or court imprisoned in jail for not more than 12 months. VIRGINIA Codeof Virginia § 18.1-22 1st Degree: Shall be death or by imprisonment for life, or for any term not less than 20 years. § 18.1-23 2nd Degree: Shall be inpri- soned not less than 5 nor mare than Manslaughter § i8,i-~+ Shall be imprisoned for not less than 1 nor more than 5 years. Robbery § i8.i-88 Housebreaking with intent to rob, etc, Shall be imprisoned for not less than 1 nor more than 23 years, § 18. 1-91 (deadly weapon) Aggravated Assault § 18.1-65 Shooting, stabbing, etc. with Intent to inflect bodily harm, Shall be imprisoned for not less than 3 nor more than 23 years. Arson ~ 18.1-75 (nighttime) Shall be death, or in discretion of court or jury, Imprisonment for life or term not less than 5 years. (daytime) Sholl be imprisoned Habitual Offenders § 53-296 Permits furth~ confine- meat not exceeding 5 years for previous offender. If he has been twice sentenced the court may give additional time as the case nay deem proper. 20 years. Shall be death or Imprisoned for life or for any term not less than 5 years. not less than 3 nor nero than 10 years. .___!iMIilliiLY.~Grandj~,arce~y H H ci H t3'i CII 0 PAGENO="0767" WASIINGTON Murder Manslaughter Revised Code of Washington Arson Habitual Offenders Robbery Aggravated Assault § 9)48.03~ 1st Degree: Shall be imprisoned for life unless jury finds that the punishment be death, 2nd Degree: § 9)-f8.0~-10 Shall be imprisoned for not less than 10 years. § 9)f8.060 Punishable by impri- sonment for not more than 20 years, or in county jail for not more than 1 year, or fine not more than $ 1,000, or both, . § 9.75.010 Shall be imprisoned for not less than 5 years. § 9. 11.010 (deadly weapon) 1st Degree: Shall be imprisoned for not less than 5 years. 2nd Degy~e: Shall be imprisoned for not more than 10 years or fine not more than $1,000 or both. § 9.09.010 1st Degree: Shall be imprisoned for not less than 5 years. § 909.020 2nd Degree: Shall be imprisoned for not more than 10 years, or by fine not more than $5,000, or both. § 9.92.090 General provisions providing imprisonment for not less than 10 years for three mis- demeanors to life im- prisonment for three felonies and four misdemeanors which fraud or intent to defraud is an element. Burglary Grand Larcen~y Embezzlement Rape Carrying Dangerous Weapons tyl z 1/2 0 §9.19.010 1st degree - (nighttime) ~ggjt: lji.5)jbe imprison- ed for not less than five years. §9.54.090 ~ç.ne1ty: lJiRJJ~. be im- prisoned for not more than 15 years. no specific provisions found, covered by larcency provisions, §9.97.010. ~~g~fly: ~j~pfl imprisoned for less than five years. be not §9.41.160. ~ngily: a fine of not more than $500 or im- prisonment for not more than one year in county 2' `-~ ci ~ §9.19.020. jail, or imprisonment in State Prison for not less 1/2 Penalty: 2nd degree- than one year nor more 0 .ijiiJJ. be imprisoned for . than 10 years. not more than 15 years. p PAGENO="0768" WEST VIRGINIA West Virginia Code Robbery §~ 5917, 62D1+ 1st Degree: Shall be death or Imprisonment for § 5919 Shall be not less imprisoned than 1 nor § 5927 (armed) Shall be imprisoned § 59~+ (Malicious Shall be ~~flyatedault Assault) imprisoned Arson § 5951(1) 1st Degree: Shall be Imprisoned for Habitual Offenders § 6130 2nd Offenses: Shall add ~i~s to maximum for life in discretion of jury, more than 5 years. for not less thsn 10 years. not less more than than 2 nor 10 years. not less than 2 nor more than 2J years. such offense, 3!~((~9.l~: Shall be 2nd ~ç~ygg: Shall be imprisoned not less than 5 nor (Unarmed) Shall be Imprisoned for not less than * § 5951 (2) 4Q.~~y~: ~j~~jj be imprisoned for imprisoned for life. more than 18 years. 5 years nor more than 18 not less than 1 years. nor more than 2D years, §5952. Pena1~y: 1)1.111 be im- prisoned for not less than one nor more than 15 years, §5954. ~jj~ity: ~j~fl be Im- prisoned for not less than one nor more than tea years, §5961. sitjitrallv made~ggfl~y ~LLarc~gçy. §5930. ~na1ty:~2il be death or confine- meat for life in discretion of court, If jury recommends mercy shall be imprison- ed not less than five nor more than 20 years. §6043. fllJ~t~y: ~jj~JJ, be con- fined In county jail not less than 6 months nor more than 12 months for first offense. sc~cond or subse~ja ~ shall be im- prisoned not less than one nor more than five years and fined not less than $50 nor more than $200 In oiscretion of court. PAGENO="0769" 0 WISCONSIN Want! Murder Manslaughter § 91f0.Ol 1st Degree: Shall be imprisoned for life. § 9~0.02 2nd Degree: May be imprisoned not less than 5 nor more than 25 years. § 91f0.05 May be imprisoned not more than 10 years. § 9~+3.32 May be imprisoned not more than 10 years. Aggravated Assault § 9~0.22 (Aggravated battery) May be fined not more than $2,%0 or impri- soned not more than 5 years, or both. Arson § 9~+3,C2 May be imprisoned not more than i5 years. Habitual Offenders § 939.62 Provides a scale of increased penalties for habitual offenders, ranging to 10 years. Burglary §943.10. Penalty: may be imprison- ed for not more than 10 years. ~. Embezzlement Rape Carrying Dangerous Weapons Grand 1.svapngv §943.20. (theft) ~nait: Penalties range in a scale from a fine not exceeding $200 or im- prisonment for not more than 6 months if value of property is not more than $100 to a fine not more than $10,000 or imprisonment for not more than 15 years or both if value of property exceeds $2,500. No general provisions §944.01. §941.23. See larcency. Penalty: be . may imprisoned not more than 30 years. Pe~ij~y: may be fined not more than $500 or imprisoned in county jail not more than one CI, 0 C) CI, LTi CI) 0 PAGENO="0770" Miirifr~v WYOMING Wyoming Statutes § 6-~+ 1st Degree: Shall be Imprisoned for life. § 6-55 2nd Degree: Shall be Imprisoned for not less than 20 years, or during life. Robbery §6-58 §6-65 Shall be Imprisoned Shall be Imprisoned for not more than not more than 11+ 20 years.., years. Aggravated Assault Shall be fined not more than $1,000 or Imprisoned in county jail not more than 1 year, or both, Buralarv Grand 1ar~~n&v Arson § 6-121 igtPggree: Shall be imprisoned not less than 2 nor more than 20 years. §6-122 2nd Degree: Shall be imprisoned for not less than 1 nor more than 10 years, Habitual Offenders § 6-9 Felony, 3 convictions: §j~jj be imprisoned not less'than 10 years not more than 58 years, § 6-to +th Conviction: be Imprisoned for not less than life. §6-129. §6-132. §6-141. ~gg~fl: may be imprison- ed not more than 14 years, ~gggj~y: prisoned 10 years. ijigU be not more im- than ~ggg1~y: gjigfl prisoned for not 14 be Im- more than Rape Carrying Dangerous Weapons §6-63. §6-239. ~j~gfl be ~ggfly: lji.lJj be fined Imprisoned for any , not exceeding $100, term not less than 050 year, or during life. PAGENO="0771" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 765 SUPREME COURT OF THE UNITED STATES No. 521.-OCTOBER TERM, 1956. On Writ of Certiorari Andrew R. Mallory, Petitioner, to the United States V. Court of Appeals for United States of America. the . District of Co-S lumbia Circuit. [June 24, 1957.] MR. JUSTICE FRANKFURTER delivered the opinion of the Court. Petitioner was convicted of rape in the United States District Court for the District of Columbia, and, as authorized by the District Code, the jury imposed a death sentence. The. Court of Appeals affirmed, one judge dissenting. 236 F. 2d 701. Since an important question involving the interpretation of the Federal Rules of Criminal Procedure was involved in this capital case, we granted the petition for certiorari. 352 U. S. 877. The rape occurred at six p. m. on April 7, 1954, in the basement of the apartment house inhabited by the victim. She had descended to the basement a few minutes pre- vious to wash some laundry. Experiencing some diffi- culty in detaching a hose in the sink, she sought help from the janitor, who lived in a basement apartment with his wife, two grown sons, a younger son and the petitioner, his nineteen-year-old half-brother. Petitioner was alone in the apartment at the time. He detached the hose and returned to his quarters. Very shortly thereafter, a masked man, whose general features were identified to resemble those of both petitioner and his two grown nephews, attacked the woman. She had heard no one descend the wooden steps that furnished the only means of entering the basement from above. PAGENO="0772" 766 AMENDMENTS TO ~RIMINAL STATuTES OF D.C. Petitioner ~and one' of his grown nephews disappeared from the apartment house shortly after the crime was committed. The former was apprehended the following afternoon between two and two-thirty p. m. and was taken, along with his older nephews, also suspects, to police headquarters. At least four officers questioned him there in the presence~ of other officers for thirty to forty-five minutes, beginning the examination by telling him; according to his testimony, that his brother had said that he was the assailant. Petitioner strenuously denied his guilt. He spent the rest of the afternoon at head- quarters, in the company of the other two suspects and his brother a good part of the time. About four p. m. the three suspects were asked to submit to "lie detector" tests, and they agreed. The officer in charge of the poly- graph machine was not located for almost two hours, during which time the suspects received food and drink. The nephews were then examined first~ Questioning of: petitioner began just after eight p. m. Only he and the polygraph operator were present in a small room, the door to which was closed. Following almost an hour and One-half of steady inter- ro~ation, he "first stated that he could have done this crime, or that he might have done it. He finally stated that he was responsible. . . ." (Testimony of polygraph operator, R. 70.) Not until ten p. m., after petitioner had repeated his confession to other officers, did the police attempt to reach a United States Commissioner for the purpose of arraignment. Failing in this, they: obtained petitioner's consent to examination by the deputy coroner, who noted no indiciaof physical or psychological coercion. Petitioner was then confronted by the complaining wit- ness and "[pjracticaliy every man in the Sex Squad," and in response to questioning by three officers, he repeated the confession. Between eleven-thirty p. m. and twelve- thirty a. ITh he dictated the confession to a typist.~ The PAGENO="0773" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 767 next morning he was brought before a Commissioner. At the trial, which was delayed for a year because of doubt about petitioner's capacity to understand the proceedings against him, the signed confession was introduced in evidence. The case calls for the proper application of Rule 5 (a) of the Federal Rules Of Criminal Procedure, promulgated in 1946, 327 U S 821 That Rule provides "(a) APPEARANCE BEFORE THE CoMMIssIoNER An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest avail- able commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States When a per- son arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith" This provision has both statutory and judicial ante- cedents for guidance in applying it. The requirement that arraignment be "without unnecessary delay" is a compendious restatement, without substantive change, of several prior specific federal statutory provisions (E g, 20 Stat. 327, 341; 48 Stat. 1008; also 28 Stat. 416.) See Dession, The New Federal Rules of Criminal Procedure I, 55 Yale L. J. 694, 707. Nearly all the States have similar enactments. In McNabb v. United States, 318 U. S. 332, 343-~-344, we spelled out the important reasons of policy behind this body of legislation: "The purpose of this impressively pervasive re- quirement* of criminal procedure is plain. . . . The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated PAGENO="0774" 768 AMENDMENTS TO CRIMINAL STATUTES OF D.C. process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with rea- sonable promptness show legal cause for detaining arrested persons, constitutes an important safe- guard-not only in assuring protection for the in- nocent but also in securing conviction of the guilty by methods that commend themselves to a progres- sive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the `third degree' which, though universally rejected as indefensible, still find their way into use. It aims to. avoid all the evil implica- tions of secret interrogation of persons accused of crime." Since such unwarranted detention led to tempting utilization of intensive interrogation, easily gliding into the evils of "the third degree," the Court held that police detention of defendants beyond the time when a com- mitting magistrate was readily accessible constituted "wilful disobedience of law." In order adequately to en- force the congressional requirement of prompt arraign- ment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention. In Upshaw v. United States, 335 U. S. 410, which came here after the Federal Rules of Criminal Procedure had been in operation, the Court made it clear that Rule 5 (a)'s standard of "without unnecessary delay" implied no relaxation of the McNabb doctrine. The requirement of Rule 5 (a) is part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforce- PAGENO="0775" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 769 ment. Provisions related to Rule 5 (a) contemplate a procedure that allows arresting officers little more leeway than the interval between arrest and the ordinary admin- istrative steps required to bring a suspect before the near- est available magistrate. Rule 4 (a) provides: "If it ap- pears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue. . . ." Rule 4 (b) requires that the warrant "shall command that the defendant be arrested and brought before the nearest available com- missioner." And Rules 5 (b) and (c) reveal the function of the requirement of prompt arraignment: "(b) STATEMENT BY THE COMMISSIONER. The commissioner shall inform the defendant of the com- plaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made - by him may be used against him. The commissioner shall allow the defendant reasonable time and op- portunity to consult counsel and shall admit the defendant to bail as provided in these rules. "(c) PRELIMINARY EXAMINATION. The defend- ant shall not be called upon to plead. If the defendant waives preliminary examination, the com- missioner shall forthwith hold him to answer in the distriet court. If the defendant does not waive examination, the commissioner shall hear the evi- dence within a reasonable time.. The defendant may cross-examine witnesses against him and may intro- duce evidence in his own behalf. If from the evi- dence it appears to the commissioner that there is probable cause to believe., that an offense has been cOmmitted and that the defendant has committed it, PAGENO="0776" 770 AMENDMENTS TO CRIMINAL STATUTES OF D.C. the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him. The commissioner shall admit the defendant to bail as provided ~in these rules." The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on "probable cause" The next step in the proceeding is to arraign the, arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested per- son may, of course, be "booked" by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt. The duty enjoined upon arresting officers to arraign "without unnecessary delay" indicates that the command does not call for mechanical or* automatic obedience. Circumstances may justify a brief delay between arrest and arraignment, as for instance, where the story volun- teered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession. The circumstances of this case, preclude a holding that arraignment was "without unnecessary delay." Peti- tioner was arrested in the early afternoon and was de- tained at headquarters within the vicinity of numerous committing magistrates. Even though the police had ample evidence from other~ sources than the `petitioner for regarding the petitioner as the chief suspect, they first questioned him for approximately a half hour. When this inquiry of a nineteen-year-old lad of limited intelligence produced no confession, the police `asked him PAGENO="0777" AMENDMENTS TO CRIMINAL STATUTES OF D.C. 771 to submit to a lie-detector test. He was not told of his rights to counsel or to a preliminary examination before a magistrate, nor was he warned that he might keep silent and "that any statement made by him may be used against him." After four hours of further detention at headquarters, during which arraignment could easily have been made in the same building in which the police head- quarters were housed, petitioner was examined by the lie-detector operator for another hour and a half before his story began to waver. Not until he had confessed, when any judicial caution had lost its purpose, did the police arraign him. ~Te cannot sanction this extended delay, resulting in confession, without subordinating the general rule of prompt arraignment to the discretion of arresting officers in finding exceptional circumstances for its disregard. In every case where the police resort to interrogation of an arrested person and secure a confession, they may well claim, and quite sincerely, that they were merely trying to check on the information given by him. Against such a claim and the evil potentialities of the practice for which it is urged stands Rule 5 (a) as a barrier. Nor is there an escape from the constraint laid upon the police by that Rule in that two other suspects were involved for the same crime. Presumably, whomever the police arrest they must arrest on "probable cause." It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on "probable cause." Reversed and remanded. 0 PAGENO="0778"