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In accordance with the recommendations of the U.S. attorney, members of the force are directed that
(a) After an arrested person is brought to a precinct station or to headquarters and prior to questioning there about alleged criminal offenses, he shall be clearly warned in the following terms:
1. You have been placed under arrest. You are not required to say anything to us at any time or to answer any questions. Anything you say may be used as evidence in court.
2. You may call a lawyer, or a relative, or a friend. Your lawyer may be present here and you may talk with him.
3. If you cannot obtain a lawyer, one may be appointed for you when you first go to court.
If necessary, this warning will then be given in writing or explained in language which the arrested person can readily understand. If the arrested person is incapable of understanding any warning, by reason of alcohol, drugs, injury, or other reason, the warning may be postponed until the arrested person is capable of understanding the warning and questions put to him. notation shall be made of the fact that the warning was given.
(b) In accordance with provisions of chapter VI, sections 8, 9, and 10 of the manual, every reasonable effort shall be made to communicate with the person or persons whom the arrested person wishes to notify of his arrest, including use of the telephone. A record shall be made of any request of an arrested person to communicate with another person. If there is no request, the officer shall so note.
If a lawyer requested by the arrested persons come to the precinct station or headquarters, the arrested person shall be afforded every reasonable opportunity for confidential consultation consistent with safeguards against escape or the commission of an un lawful act. If no lawyer appears, and if a relative or friend requested by the arrested person comes to the precinct station of head
quarters, it is advisable that one such person be permitted to talk for a reasonable time with the arrested person, though officers, in their discretion, may admit others.
Communication and access to an arrested person by a person other than a lawyer may be denied or postponed where there is a reason to believe that it is sought for the
purpose of destroying evidence, concealing stolen property, intimidating witnesses, warning an accomplice, or arming or facilitating escape by the arrested person. If such communication or access is denied, a record shall be made stating the reason.
(c) Members of the force are reminded that a person may be arrested only on probable cause to believe he has committed one or
more offenses. Arrested persons may be ques
tioned in a reasonable and noncoercive manner concerning their knowledge of any alleged offense. The total period of actual
questioning, exclusive of interruptions,
should be limited to 3 hours except where an arrested person consents in writing to a polygraph examination. In pursuing an inIn pursuing an investigation, members of the force have a duty not only to ascertain the facts of alleged offenses (beyond the level of probable cause required for arrest) but also to protect arrested persons from false, mistaken, or exaggerated accusations of crime. Investigating
officers should keep in mind that frequently these purposes can be fulfilled before the end of 3 hours of questioning and that in any event questioning should be as brief as is consistent with these objectives.
(d) Members of the force are also reminded that they are required to take arrested persons before a committing magistrate, without unnecessary delay, for the proceedings
prescribed by rule 5(a) of the Federal Rules of Criminal Procedure. This Department has been advised that presentment should con
form to the business hours of the District of Columbia Court of General Sessions and the U.S. Commissioner. A person arrested before
the end of such business hours should normally be presented to a judge in the Court of General Sessions or the U.S. Commissioner at a regular sitting of such magistrate on the same day, but where it appears likely that presentment will not take place before the end of such sitting, the officers involved should consult an assistant U.S. attorney.
(e) It is important that records be kept to show times of commencement and ending of any administrative or investigative procedure involving the presence of the arrested person (lineups, fingerprinting, etc.), the time, circumstances, and duration of any questioning of the arrested person and of any statement made by him, whether or not persons other than police are present, and whether any warning, questioning, or statement is sound recorded.
Close cooperation and consultation with the office of the U.S. attorney and representatives of the Department of Justice will continue including review and examination of records and directives in the implementation and development of these procedures.
JOHN B. LAYTON,
Chief of Police.
Mr. BIBLE. Mr. President, the real question we have before us today is: Should the Congress enact a positive statutory law for the District dealing with the vitally important subject of arrest and detention of accused persons?
Or, should that area of the law be left to administrative directive or court interpretations of other court interpretaterpretations of other court interpretations? Or, if you please, as Attorney General Katzenbach said recently in the publicized exchange of letters on this complex complex subject subject with Chief Judge Bazelon, of the U.S. Court of Appeals for the District of Columbia, and I quote:
In your own court of appeals, the result is too often determined by the particular is too often determined by the particular panel which hears a case. Thus the consistency, the efficiency, and consequently the fairness of justice have suffered.
It is the committee's conviction that legislatively enacted law must be what the courts should be guided by; not adthe courts should be guided by; not administrative arrest directives, changing as they have been in the last several years here, and not by judge-made case law since the judges themselves are in in courts above them mean, or what a a complete quandary over what judges Supreme Court decision above that appeals court really means.
That is the cardinal reason why the Congress itself exists, to make the laws, Congress itself exists, to make the laws, as section 1, article 1 of the Constitution requires.
The further argument is made that a legislative enactment in the Mallory area is risky at this time because, without information that additional studies would bring, such an enactment might be declared unconstitutional. If that occurred, the argument goes, then the difficult process of having to amend the Constitution is at hand, insofar as laws dealing with arrest and investigation are concerned in the District and throughout all States. It is recalled that the Mallory decision was not on constitutional grounds but an interpretation of rule 5(a) of the Federal Rules of Crimi
When the Department of Justice testified before the committee in support of
title I in 1963, no inference of any constitutional question was raised about it. Instead, the four safeguards built into the "unnecessary delay" requirement were designed purposely by its authors, the U.S. attorney for the District and the Justice Department, to meet those constitutional tests.
It is the committee's judgment that the only proper method for putting into orderliness the Mallory rule dilemma of judges, prosecutors, defense lawyers, and police, is to do it by positive legislative enactment, and that dilemma, stemming from a District case, is nationwide in impact. I submit, any basic change in the interpretation of rule 5(a) can only be made by statutory law, as the Justice Department well knows.
Administrative directives on arrest can come before the courts for interpretation against the conglomeration of Mallory rule guidelines of the various courts just as easily as will cases under a positive law. As a result, the police will be just as much in the dark as to what they can or cannot do as they are today. And the parties who really suffer meanwhile are the law-abiding men, women and children who are victims of the increasing crime crisis.
These administrative arrest directives cannot possibly assist the trial courts, which must rule day to day on the admissibility of confessions pursuant to the guidelines laid down by the appeals court here.
Congress must set into positive law what that law is, so all of the courts and all of the judges will know what it is today, tomorrow and next week.
Mr. President, what Congress approved by the language of rule 5 of the Federal Rules of Criminal Procedure, Congress can now disapprove by statutory enactment for the District of title I. It is not contended that this enactment, designed to alter the severe application of the Mallory rule, alone will curb the crime rate which has risen steadily in the District since that Supreme Court decision in 1957. It will help. The Department of Justice, the U.S. attorney, police officials, a respected member of the U.S. district court, the District of Columbia Council on Law Enforcement, and members of the bar have testified that a change in the Mallory doctrine should provide assistance in combating crime. Certainly, it cannot be disputed, that proper interrogation free of abuse and with the safeguards against abuse provided by this title, would provide a valuable tool for better law enforcement in Washington.
Mr. President, I submit that studies, restudies, and more studies cannot help to deal with the crime we find on Washington's streets today. I urge the Senate to reject the amendment offered by from Maryland [Mr. the Senator
TYDINGS]. Mr. SALTONSTALL. Mr. President, will the Senator yield?
Mr. BIBLE. I yield.
Mr. SALTONSTALL. Mr. President, as I understand the position of the distinguished Senator from Nevada today,
it is to the effect that there is an opportunity at present for Congress to enact a law that will stimulate the morale of
the police and afford a greater opportunity for safety on our streets and homes in the District of Columbia, even though it may possibly delay a Supreme Court decision on the important question concerning the policy of police questioning of suspects.
Mr. BIBLE. I do not believe that is a completely correct statement. I say to my friend the Senator from Massachusetts that it is hoped that the proposed legislation will strengthen the position of the Police Department and that it will give them a guideline to assist them in making arrests.
I do not believe that it would delay a Supreme Court decision. On the contrary, as has been stated by the senior Senator from Oregon, it would place us in a position in which we could obtain a Supreme Court decision as to whether it is constitutional. The senior Senator from Oregon would disagree with my viewpoint. He thinks it is unconstitutional, and I think it is constitutional.
If it is constitutional, I believe that the Supreme Court ought to have an opportunity to say so.
If it is unconstitutional, I think the Supreme Court ought to say so.
Mr. SALTONSTALL. If the Senator will yield further, that is the issue which I raised in my question. The proposed congressional action would do what we believe is necessary at the present time,
even though it may possibly delay a final decision on the part of the Supreme Court.
a bill almost identical to H.R. 5688 last
Mr. BIBLE. I do not believe it would are perpetrated by ducking the issue and
delay it. I believe it would speed it.
Mr. BIBLE. I promised I would yield to our distinguished colleague on the committee, who has long had an interest in this subject.
Mr. President, I yield 3 minutes to the Senator from Colorado [Mr. DOMINICK].
Mr. DOMINICK. I appreciate the courtesy of the distinguished Senator. I wish we could have had this question before the Senate at the time we had an almost identical bill which I introduced earlier and one which the commit
tee considered last year. This bill, with a few minor exceptions, is the bill approved by the committee last year and it is the bill as originally sponsored by me earlier in this session.
Mr. President, the enactment of H.R. 5688, the District of Columbia crime bill, will be a landmark as far as the Nation's Capital is concerned. It will also have broad implications throughout the entire country.
I have worked hard for this legislation since becoming a member of the Senate Committee on the District of Columbia over 22 years ago. The increased crime rate in the Nation's Capital continues to shock and amaze not only those of us who live, work, or visit here, but also all law-abiding citizens citizens throughout the Nation.
The House has passed two strong crime bills in the last 22 years; but unfortunately, nothing of any consequence has yet passed the Senate, As my colleagues will recall, the Senate Committee on the District of Columbia reported
thing so far as the procedures are concerned. This fact was pointed out ably by the Senator from Oregon [Mr. MORSE]. Administratively, the U.S. attorney and the police have the procedures that are required by the bill in administrative practice without having to come to the committee, without having to have legislative authority or any change in the rules of criminal practice.
If the Senate were to adopt the Tydings amendment, we would be back in what I consider to be a very untenable position.
It seems to me, since we have felt in the committee that the police should have this right formally and should have the persuasion, legislatively and psychologically and publicly, in order to control crime which is so rapidly increasing in the District of Columbia, that we should go forward and put it into legislation. If it is not constitutional, it will be so held shortly.
Mr. PASTORE. Mr. President, will the Senator yield on that point? Mr. DOMINICK. I yield.
Mr. PASTORE. The question that is not clear in my mind is this: If title 1 is designed to strengthen the hand of the police, why has the Chief of Police
Mr. DOMINICK. The Chief of Police is not against it, so far as I know. Mr. PASTORE. That is what has been said here.
said it is in effect and he did not see any Mr. DOMINICK. The Chief of Police use in going further. As the U.S. Attorney said, the procedure has been put into practice. The only question is whether it should be done legislatively or administratively. I do not see that the amendment changes the rule of criminal procedure. It is in the Federal Rules of Criminal Procedure now.
There are those who would urge that
I am certainly aware of the other con-
I wish to commend the distinguished chairman of our committee [Mr. BIBLE], and other Senators on the committee who have worked so diligently to make this bill a reality.
I wish to say a few words on the particular amendment in the short time I have remaining. If the amendment of the Senator from New York and the Senator from Maryland should adopted, we would not have changed a
Mr. CLARK. Mr. President, will the Senator yield?
Mr. DOMINICK. I yield.
Mr. CLARK. Is it not true that if the committee bill is approved and the amendment is defeated, the Supreme Court will have a reasonably prompt opportunity to pass on whether changes in the Mallory rule are or are not binding?
Mr. DOMINICK. That is true. Mr. President, I oppose the Tydings amendment and support the bill.
Mr. BIBLE. Mr. President, I yield 1 minute to the Senator from South Carolina.
Mr. THURMOND. Mr. President, one of the most important provisions contained in H.R. 5688, the Omnibus Crime bill for the District of Columbia, is title I. This title provides a rule of evidence for the courts of the District of Columbia, governing the admissibility of statements obtained from an accused after a lawful arrest and prior to an appearance before a U.S. Commissioner. The major purpose of this title is to modify the Mallory rule in order to provide the law enforcement officials of the District with a reasonable and realistic rule governing the interrogation of suspects before arraignment. Under title I, 3 hours is allowed between the arrest and arraignment.
The Committee on the District of of Columbia has labored diligently on this section of the bill, and it deserves the approval of the Senate. No one will contend that establishing a 3-hour statutory period of time is the perfect solution to the problems posed by the extreme applications of the Mallory rule. It is obvious that under some conditions 3 hours may be too long and under different conditions it may not be long enough. However, this provision does recognize the problem, and attempts to come to grips with it as best as is possible under the circumstances. For too long, unreasonable applications of the Mallory rule have allowed admittedly guilty and dangerous criminals to escape punishment altogether.
For these reasons, I support title I of H.R. 5688 and oppose the pending amendment which would eliminate it from the bill.
Mr. BIBLE. Mr. President, I yield the remainder of my time to the Senator from Mississippi [Mr. STENNIS].
Mr. STENNIS. Mr. President, I rise in strong support of the position of the chairman of the committee and in opposition to the amendment of the Senator from Maryland and the Senator from New York. I have been concerned since the Mallory rule was handed down by the Court in 1957. Some years ago I had a former Chief of Police in my office and asked him, "How many additional men and how much additional money do you need?" He said, "It is not a question of men or money. I need some authority." Meaning the Mallory rule had his men so severely restricted and handicapped that they could not
handle the cases.
In all those years since the Mallory decision was handed down this is the first time the Senate has had an opportunity to restrict or alter its application. We had better act on this measure while we have it before us rather than merely have an academic debate over whether the procedures should be adopted by Executive order or through a congressional act. An administrative order can be changed next week or next month. Particularly, if there is pressure from civil rights groups, it may be changed. We have a duty to protect the women of this city, white women, colored women, all women from roaming rapists and roaming robbers who go up and down the streets and in the homes
in the daytime and the nighttime.
This is a chance to do something about it.
I hope the Senate will overwhelmingly defeat this weakening amendment.
The PRESIDING OFFICER. The time of the Senator has expired. Mr. TYDINGS. Mr. President, how much time have I remaining?
The PRESIDING OFFICER. The Senator has 42 minutes remaining.
Mr. TYDINGS. Mr. President, let me emphasize again the reason the Deputy Attorney General, the chief law enforcement officer of the District of Columbia, the U.S. Attorney, and the Chief of Police gave when they asked us not to freeze their administrative procedures into law. They have only recently start
ed this procedure. They are working on tests of it. They want flexibility. This is a very important area of activity. The American Bar Association and the American Law Institute are doing research on this subject, trying to obtain facts to justify any proposed legislation in this
The Chief of Police wants to maintain law and order. The U.S. Attorney wants to maintain law and order. The Justice Department wants to maintain law and order. Yet they each oppose freezing the Police Department's administrative procedures into law at this time.
I believe one relevant answer of the Deputy Attorney General is found on pages 511 and 512 of the hearings. Senators will recall the question as it was directed to the Deputy Attorney General:
It is not inconceivable, and in fact might be very probable that when you have completed your study and have the facts before you, you then come to Congress with the request for legislation in this field. But in the interim period legislation in this area would not be of any great assistance, and might in fact hinder your efforts to ascertain the probable effects of the Mallory rule.
The Deputy Attorney General answered:
important to recognize that in the meantime That is exactly right and I think it is
the public safety is not jeopardized because
the police under this administrative regulation will be authorized and instructed to engage in the same type of questioning as with the statute but with greater flexibility.
We have a crime problem. This is admitted by everyone concerned. The question is simply one of method-how best to proceed, in our fight against crime. I would simply ask that we not proceed legislatively at this time. I would ask that we delay legislating in this area, pending the results of the studies which the American Law Institute, the American Bar Association, and the Justice Department are now conducting.
By deciding not to legislate in this area at this time we will not be impeding the fight against crime. We will not be giving aid and comfort to lawbreakers, for title I simply codifies what is already present police procedure.
By deciding not to enact title I at this time we simply heed the judgment of the law enforcement officers who must work in this area, and who would prefer the flexibility of administrative guidelines to the inflexibility of legislative flat, at least until adequate data exist to support the legislative judgment.
Mr. CLARK. Mr. President, will the Senator yield?
Mr. TYDINGS. Mr. President, how
much time have I left?
The PRESIDING OFFICER. One minute.
Mr. COOPER. Mr. President, will the Senator yield for one question? Mr. TYDINGS. I yield.
trict of Columbia? I do not believe we have any such authority.
Mr. TYDINGS. No. The rule laid down by the Court would be a rule that would be applied anywhere.
Mr. COOPER. We cannot lay down a special rule in the District of Columbia with respect to the Mallory decision.
Mr. TYDINGS. That is correct. We cannot legislate in a vacuum.
Mr. KENNEDY of New York. Mr. President, in regard to the point made by the Senator from Mississippi, I do not believe that any of us wish to have the women of the District of Columbia attacked. The problem is whether we are going to enact a statute which raises serious constitutional questions, serious questions regarding the rights of those accused of crime. We all believe that this question needs to be dealt with. But we should not take steps which may well violate the Constitution. We should not enact a statute which might make Senators feel good because we would have done something about crime in the District of Columbia, only to have the
"statute declared unconstitutional within a year.
It does not seem to me that we are taking any kind of forceful action, or to deal with crime, if we pass a statute the kind of steps which need to be taken for which the Senator from Oregon is not going to vote because he feels that it is unconstitutional.
We believe that we should give this problem the kind of study it needs, and then come forth with the kind of statute which will be upheld by the courts. Then we shall really have done something to deal with the problem. We can do this if we act on the basis of experimental data and careful study.
The PRESIDING OFFICER. All time on the amendment has now expired.
The question is on agreeing to the amendment of the Senator from Maryland [Mr. TYDINGS).
On this question the yeas and nays have been ordered; and the clerk will call the roll.
The legislative clerk called the roll.
that the Senator from Alaska [Mr. BARTLETT], the Senator from Idaho [Mr. CHURCH), the Senator from Louisiana [Mr. ELLENDER], the Senator from Tennessee [Mr. GORE], and the Senator from Wyoming [Mr. MCGEE] are absent on official business.
I also announce that the Senator from Minnesota [Mr. MCCARTHY] is necessarily absent.
I further announce that, if present and voting, the Senator from Louisiana [Mr. ELLENDER] and the Senator from Wyoming [Mr. MCGEE] would each vote “nay.”
Mr. KUCHEL. I announce that the Senator from South Dakota [Mr. MUNDT] is necessarily absent and, if present and voting, would vote "nay."
The result was announced-yeas 26, nays 67, as follows:
Mr. COOPER. As concerns Federal jurisdiction and Federal procedure, do you consider that the Congress, by legislation, can set apart the District of Columbia or other areas from the remainder of the country, and so prevent Brewster the application of the Mallory decision by the courts to cases arising in the Dis
Burdick Case Cooper
So Mr. TYDINGS' amendment (No. 427) was rejected.
Mr. MORSE. Mr. President, I move to reconsider the vote by which the amendment was rejected.
Mr. BIBLE. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The question is on the engrossment of the amendment and the third reading of the bill.
The amendment was ordered to be engrossed and the bill to be read a third time.
The PRESIDING OFFICER. The bill The bill having been read the third time, the question is, Shall it pass?
The yeas and nays have been ordered, and the clerk will call the roll.
The legislative clerk called the roll. Mr. LONG of Louisiana. I announce that the Senator from Alaska [Mr. BARTLETT), the Senator from Idaho [Mr. CHURCH), the Senator from Tennessee [Mr. GORE], the Senator from Wyoming [Mr. MCGEE], the Senator from Florida [Mr. SMATHERS] are absent on official business.
I also announce that the Senator from Minnesota [Mr. MCCARTHY] is necessarily absent.
I further announce that, if present and voting, the Senator from Alaska [Mr. BARTLETT], the Senator from Idaho [Mr. CHURCH], the Senator from Tennessee [Mr. GORE], the Senator from Wyoming [Mr. McGEE], and the Senator from Florida [Mr. SMATHERS] would each vote "yea."
Mr. KUCHEL. I announce that the Senator from South Dakota [Mr. MUNDT] is necessarily absent and, if present and voting, would vote "yea."
Tower Tydings Williams, N.J. Williams, Del. Yarborough Young, N. Dak. Young, Ohio
So the bill (H.R. 5688) was passed. Mr. MANSFIELD. Mr. President, I move to reconsider the vote by which the bill was passed.
mittee is of the opinion that the right of the law-abiding citizen to be secure in his person and property suffers when the guilty go unconvicted and that a reasonable concern for the right of the law-abiding citizen to be free from fear in his home and in the streets requires that this special local problem must be met by legislative action.
Background of rule 5 of the Federal Rules of Criminal Procedure
The complete text of the rule is as follows:
"Proceedings before the Commissioner
"(a) Appearance before the commissioner: An officer making an arrest under a warrant issued upon a complaint or any preson 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 United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith. "(b) Statement by by the commissioner: The commissioner shall inform the defendant of the complaint 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 opportunity
Mr. BIBLE. Mr. President, I move to to consult counsel and shall admit the delay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BIBLE. Mr. President, I have a detailed analysis of title I, which is really the heart of the bill which the Senate has passed. It is a detailed analysis of court decisions related to the Mallory case. It states in detail the congressional background of the case for a legislative change, and sets out each of the subsections of title I of the bill which was just passed. I ask unanimous consent that it be printed in the RECORD at this point.
There being no objection, the excerpts were ordered to be printed in the RECORD, as follows:
TITLE I-ADMISSIBILITY OF STATEMENTS MADE
BETWEEN ARREST AND APPEARANCE BEFORE
The purpose of title I is to provide a rule of evidence for the courts of the District of Columbia governing the admissibility of statements obtained from an accused after a
lawful arrest and prior to an appearance before a U.S. commissioner. The title provides standards and safeguards for incustody interrogation of persons arrested on probable cause and makes clear and certain the maximum period of time after arrest and prior to arraignment before a U.S. commissioner, during which such in-custody interrogation may take place.
rule 5 of the Federal Rules of Criminal The U.S. Supreme Court's interpretation of Procedure in the case of Mallory v. United States, 354 U.S. 449 (1957) has created special problems for law enforcement in the District of Columbia because only in the District do Federal courts have broad jurisdiction over crimes of violence which usually lack eyewitnesses, and because the courts of the Dis
fendant to bail as provided in these rules.
"(c) preliminary examination: The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the commissioner shall forthwith hold him to answer in the district court. If
the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence 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,
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. After concluding the proceeding the commissioner shall transmit forthwith to the clerk of the district court all papers in the proceeding and any bail taken by him."
On June 29, 1940, Public Law 76-675, 54 Stat. 688, was approved which gave the Supreme Court of the United States authority to prescribe rules of procedure for criminal proceedings in the courts of the United States and provided that such rules "shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session ***"
The Supreme Court thereafter appointed an Advisory Committee whose function it was to draft new rules of Federal criminal mittee, rule 5 excluded from evidence any procedure. In the early drafts of this Comstatement made by a defendant while the defendant was held in custody in violation of the rule. However, during the deliberations of the Advisory Committee, the Supreme Court decided McNabb v. United States, 318 U.S. 332 (1943). The ruling of his case excluded a confession obtained from an accused unlawfully detained in custody. Also decided during this period was United States v. Mitchell, 322 U.S. 65 (1944).
The Mitchell case qualified the McNabb case by holding that a voluntarily given confession would not be excluded from evidence because of the illegal detention of the
accused, unless the confession resulted from to speak briefly to his wife, after which he such illegal detention. returned to the police and confessed the crime.
With the law relating to admissibility of statements obtained during illegal detention in this posture, the Supreme Court promulgated the Federal Rules of Criminal Procedure on December 26, 1944, without any mention of any sanction against noncompliance with rule 5. Subsequently, the rules were duly reported to Congress, no objection was raised, and the rules became effective on March 21, 1946. It must be noted that following the McNabb case, there was a flurry of unproductive legislative activity aimed at altering the effect of the case.
Mallory v. United States and related cases
In 1957 the Supreme Court of the United States decided the case of Mallory v. United States, 354 U.S. 449 (1957). Andrew Mallory was convicted of rape in the U.S. District Court for the District of Columbia. Court of Appeals for the District of Columbia affirmed the conviction (98 U.S. App. D.C. 406, 236 F. 2d 701). The Supreme Court reversed the conviction and held that if an arrested person is not brought before a U.S. Commissioner without unnecessary delay but is held and interrogated by officers for the purpose of obtaining incriminating statements, then any statements so obtained may not be received in evidence at a subsequent trial.
In so doing, the Supreme Court restated the sanction of the McNabb and Mitchell cases but extended the ruling of those cases to cover situations where there was no showing of any causal relationship between "unnecessary delay" and the incriminating statement.
Mallory had the further effect of creating confusion within the legal ranks of the bench and bar about what constituted an “unnecessary delay." In the Mallory case, the accused was arrested on a rape charge between 2 and 2:30 p.m. His first statement of admission was made about 9 p.m., and he dictated his confession between 11:30 p.m. and 12 midnight. He was brought before the U.S. Commissioner on the following morning.
Recent cases in the District of Columbia have demonstrated that there is great un
certainty among the judges on the appellate
and district courts about how much delay is permissible between arrest and arraignment before a commissioner.
For instance in Spriggs v. United States (335 F.2d 283 (D.C. Cir. 1964)), a conviction was reversed because of the admission in evidence of a confession made during booking some 30 minutes after arrest when the officer told the suspect three witness had seen him shoot another person.
In United States v. James J. Jones, Criminal No. 366-63 (U.S. District Court for the District of Columbia, 1963), 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 headquarters for booking and fingerprinting, but is to be taken before a magistrate forthwith. Thus "without unnecessary delay" was considered to mean "without any delay."
In Alston v. United States (District of Columbia Cir. No. 18750 (May 6, 1965)), appellant was arrested at 5:51 a.m., on February 22, 1964, and arrived at police headquarters, with his wife at 5:30 a.m. Appellant's wife then sat in the homicide squad
office while appellant was taken into an adjoining room where police questioned him "for at least 5 minutes." During this questioning, appellant "stated he didn't know anything about [the offense] or words to that effect." Appellant was then permitted
The U.S. Court of Appeals for the District of Columbia Circuit reversed the case for a new trial on two grounds, (1) that the questioning violated rule 5(a) because the arresting officers failed to take appellant before a committing magistrate "as quickly as possible," and (2) that appellant was not informed of his right to remain silent prior to his being interrogated.
In Elsie V. 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 31⁄2 hours later, and was brought before a committing magistrate at 9 Monday morning. A divided court held her confessions inadmissible.
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 (317 F.2d 891 (1963)), a divided court permitted the conviction on one count to stand al
though based upon a confession given 1 hour after the arrest, but reversed the conviction on other counts based upon confessions given 2 or 3 hours after arrest.
In a dissenting opinion in Robert A. Muschette 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.
Testimony before the committee indiIcated that in each of these cases, the confession was clearly voluntary and admissible under all of the usual legal and constitutional criteria. The exclusion of these confessions except for Alston case was based solely on the lapse of time after arrest and prior to appearance before the U.S. Commissioner and the finding of the courts that such lapse of time constituted an unnecessary delay within the meaning of rule 5(a) of the Federal Rules of Criminal Procedure. Underlying Reasons for Rule 5 and the De
cisions of Mallory and Related Cases The courts have long been plagued by the troubling situation where an accused who
has been interrogated in the privacy of the police station alleges that his confession was coerced from him by unfair physical or mental pressures. In almost every instance, of course, his allegations are denied by the officers whose word is usually accepted by the court and jury. To end these insoluble conflicts over the nature of such interrogations and to minimize the opportunity for the use of improper methods in obtaining such confessions, are two basic underlying reasons for rule 5(a) and the Mallory v. United States decision. There are, of course, other underlying reasons, such as the implementation of the constitutional rights of the accused, such as his right to counsel, and his right against self-incrimination.
The difficulty of the Mallory rule and its interpretation of rule 5 is that even where it can be demonstrated that there was no coercive conduct on the part of the police, and where all of the constitutional rights of the accused were protected, the Mallory ruling, as it has been interpreted in the District of Columbia, still requires the exclusion of a voluntarily given statement on the basis of very minimal delay alone.
The purpose of title I, as amended, is to fill in this gap in the protection which is afforded to the life and property of the lawabiding citizen by the criminal laws of the District of Columbia.
Problems associated with rule 5(a) and the Mallory decision are not new to Congress. Language substantially the same as that contained in this bill, when it was passed
by the House of Representatives, has been before Congress before. The first legislative attempts to meet this problem took the form of proposed amendments to rule 5(a) and would have had application to all Federal jurisdictions.
In the 85th Congress, H.R. 11477 was passed by the House and amended and approved by the Senate.
As a result of the Senate amendment, the bill went to conference where the conferees accepted the Senate amendment but added certain new language. The House adopted the conference report but adjournment prevented final action by the Senate after a point of order was raised concerning the new language added by the conferees.
In the 86th Congress, the House Committee on the Judiciary again reported similar legislation, H.R. 4957, but it was not enacted.
In the 87th Congress, the House Committee on the District of Columbia reported H.R. 7053, a similar bill limited in its application to the District of Columbia, which was passed by the House. The Senate did not act on this bill.
In the 88th Congress, the House Committee on the District of Columbia reported and the House passed H.R. 7525, the so-called omnibus crime bill. The Senate Committee on the District of Columbia considered that bill during lengthy hearings and 1 year ago reported an amended version, recommending substantial changes including those in title 1 (the so-called Mallory section). No action was taken by the Senate on the bill.
Early in the 89th Congress, the House Committee on the District of Columbia reported and the House passed H.R. 5688, whose title 1 is identical with that of H.R. 7525, as the latter bill passed the House in the last Congress.
Presently, this committee's recommendations to amend title 1 are substantially the same as those contained in its report to the Senate in the 88th Congress. The differences are set forth in detail hereafter under subtitle "Action Recommended by Committee." The case for a legislative change in Mallory
In essence, the committee recommendations would legislate into a statutory rule of evidence for the District of Columbia only desirable and proper guidelines for the courts that would provide:
(1) Safeguards for accused individuals from improper police interrogation.
(2) Protection for the public in keeping law and order by permitting the police to carry on necessary questioning of arrested individuals under clearly defined criteria.
The committee rejected title I of the House-approved bill (H.R. 5688)
grounds that such provision would not withstand constitutional attack because protective devices were not written into it to safeguard the rights of accused individuals from improper interrogation and delay from the time of arrest until arraignment before a magistrate. The committee has approved recommended safeguards that it believes will meet constitutional requirements and will provide better law enforcement tools for the police to protect the public.
Rule 5(a) and Mallory v. United States-A special problem for the District of Columbia
On November 5, 1963, while testifying before the Senate District Committee in the 88th Congress, the Honorable Nicholas deB. Katzenbach, presently Attorney General of the United States, and then Deputy Attorney General of the United States, summed up the special significance of the Mallory rule for the District of Columbia in the following language: 1
"The Mallory rule is not frequently invoked in Federal criminal cases in jurisdic
1 P. 432, committee hearings, H.R. 7525 (88th Cong.).