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In accordance with the recommendations form to the business hours of the District of title I in 1963, no inference of any conof the U.S. attorney, members of the force Columbia Court of General Sessions and the stitutional question was raised about it. are directed that, U.S. Commissioner. A person arrested before
Instead, the four safeguards built into (a) After an arrested person is brought to the end of such business hours should nor
the "unnecessary delay” requirement a precinct station or to headquarters and mally be presented to a judge in the Court prior to questioning there about alleged crim- of General Sessions or the U.S. Commissioner
were designed purposely by its authors, inal offenses, he shall be clearly warned in at a regular sitting of such magistrate on the
the U.S. attorney for the District and the the following terms:
same day, but where it appears likely that Justice Department, to meet those con1. You have been placed under arrest. You presentment will not take place before the stitutional tests. are not required to say anything to us at any end of such sitting, the officers involved It is the committee's judgment that time or to answer any questions. Anything should consult an assistant U.S. attorney.
the only proper method for putting into you say may be used as evidence in court.
(e) It is important that records be kept to
orderliness the Mallory rule dilemma of 2. You may call a lawyer, or a relative, or show times of commencement and ending of a friend. Your lawyer may be present here any administrative or investigative procedure judges, prosecutors, defense lawyers, and and you may talk with him. involving the presence of the arrested person
police, is to do it by positive legislative 3. If you cannot obtain a lawyer, one may (lineups, fingerprinting, etc.), the time, cir
enactment, and that dilemma, stemming be appointed for you when you first go to cumstances, and duration of any questioning from a District case, is nationwide in imcourt.
of the arrested person and of any statement pact. I submit, any basic change in the If necessary, this warning will then be made by him, whether or not persons other interpretation of rule 5(a) can only be given in writing or explained in language than police are present, and whether any made by statutory law, as the Justice which the arrested person can readily under- warning, questioning, or statement is sound stand. If the arrested person is incapable
Department well knows. recorded. of understanding any warning, by reason of Close cooperation and consultation with
Administrative directives on arrest can alcohol, drugs, injury, or other reason, the the office of the U.S. attorney and representa
come before the courts for interpretation warning may be postponed until the ar- tives of the Department of Justice will con- against the conglomeration of Mallory rested person is capable of understanding tinue including review and examination of rule guidelines of the various courts just the warning and questions put to him. A records and directives in the implementation as easily as will cases under a positive notation shall be made of the fact that the and development of these procedures. law. As a result, the police will be just warning was given.
JOHN B. LAYTON,
as much in the dark as to what they can (b) In accordance with provisions of chap
Chief of Police. ter vi, sections 8, 9, and 10 of the manual,
or cannot do as they are today. And the every reasonable effort shall be made to com
Mr. BIBLE. Mr. President, the real parties who really suffer meanwhile are municate with the person or persons whom question we have before us today is: the law-abiding men, women and chilthe arrested person wishes to notify of his Should the Congress enact a positive dren who are victims of the increasing arrest, including use of the telephone. A statutory law for the District dealing crime crisis. record shall be made of any request of an with the vitally important subject of These administrative arrest directives arrested person to communicate with an
arrest and detention of accused persons? cannot possibly assist the trial courts, other person. If there is no request, the
Or, should that area of the law be left which must rule day to day on the admisofficer shall so note.
If a lawyer requested by the arrested per- to administrative directive or court in- sibility of confessions pursuant to the sons come to the precinct station or head- terpretations of other court interpreta- guidelines laid down by the appeals court quarters, the arrested person shall be afforded tions? Or, if you please, as Attorney here. every reasonable opportunity for confidential General Katzenbach said recently in the Congress must set into positive law what consultation consistent with safeguards publicized exchange of letters on this that law is, so all of the courts and all of against escape or the commission of an un.
complex subject with
with Chief Judge the judges will know what it is today, lawful act. If no lawyer appears, and if a Bazelon, of the U.S. Court of Appeals for tomorrow and next week. relative or friend requested by the arrested person comes to the precinct station of head- the District of Columbia, and I quote: Mr. President, what Congress approved quarters, it is advisable that one such per- In your own court of appeals, the result by the language of rule 5 of the Federal son be permitted to talk for a reasonable is too often determined by the particular Rules of Criminal Procedure, Congress time with the arrested person, though offi- panel which hears a case. Thus the consist- can now disapprove by statutory enactcers, in their discretion, may admit others. ency, the efficiency, and consequently the ment for the District of title I. It is not Communication and access to an arrested fairness of justice have suffered.
contended that this enactment, designed person by a person other than a lawyer may
It is the committee's conviction that to alter the severe application of the Malbe denied or postponed where there is a reason to believe that it is sought for the legislatively enacted law must be what lory rule, alone will curb the crime rate purpose of destroying evidence, concealing the courts should be guided by; not ad- which has risen steadily in the District stolen property, intimidating witnesses, ministrative arrest directives, changing since that Supreme Court decision in warning an accomplice, or arming or facili- as they have been in the last several 1957. It will help.
1957. It will help. The Department of tating escape by the arrested person. If such years here, and not by judge-made case Justice, the U.S. attorney, police officials, communication or access is denied, a record law since the judges themselves are in a respected member of the U.S. district shall be made stating the reason.
a complete quandary over what judges court, the District of Columbia Council (c) Members of the force are reminded that
in courts above them mean, or what a on Law Enforcement, and members of a person may be arrested only on probable cause to believe he has committed one or
Supreme Court decision above that ap- the bar have testified that a change in the more offenses. Arrested persons may be ques- peals court really means.
Mallory doctrine should provide assisttioned in a reasonable and noncoercive man- That is the cardinal reason why the ance in combating crime. Certainly, it ner concerning their knowledge of any al- Congress itself exists, to make the laws, cannot be disputed, that proper interroleged offense. The total period of actual
as section 1, article 1 of the Constitution gation free of abuse and with the safequestioning, exclusive of interruptionsrequires.
guards against abuse provided by this should be limited to 3 hours except where an arrested person consents in writing to a
The further argument is made that title, would provide a valuable tool for polygraph examination. In pursuing an in- a legislative enactment in the Mallory better law enforcement in Washington. vestigation, members of the force have a area is risky at this time because, with
Mr. President, I submit that studies, duty not only to ascertain the facts of al- out information that additional studies restudies, and more studies cannot help leged offenses (beyond the level of probable would bring, such an enactment might to deal with the crime we find on Washcause required for arrest) but also to protect be declared unconstitutional. If that oc- ington's streets today. I urge the Senaggerated accusations of crime. Investigating curred, the argument goes, then the diffi- ate to reject the amendment offered by
Maryland (Mr. officers should keep in mind that frequently cult process of having to amend the the Senator from these purposes can be fulfilled before the end Constitution is at hand, insofar as laws
TYDINGS). of 3 hours of questioning and that in any dealing with arrest and investigation are Mr. SALTONSTALL. Mr. President, event questioning should be as brief as is concerned in the District and through- will the Senator yield? consistent with these objectives. out all States. It is recalled that the
Mr. BIBLE. I yield. (d) Members of the force are also reminded Mallory decision was not on constitu- Mr. SALTONSTALL. Mr. President, that they are required to take arrested per- tional grounds but an interpretation of as I understand the position of the disout unnecessary delay, for the proceedings rule 5(a) of the Federal Rules of Crimi- tinguished Senator from Nevada today, prescribed by rule 5(a) of the Federal Rules nal Procedure.
it is to the effect that there is an opporof Criminal Procedure. This Department has When the Department of Justice tes- tunity at present for Congress to enact been advised that presentment should con- tified before the committee in support of a law that will stimulate the morale of the police and afford a greater opportu- a bill almost identical to H.R. 5688 last thing so far as the procedures are connity for safety on our streets and homes year; but, unfortunately, the bill was cerned.
cerned. This fact was pointed out ably in the District of Columbia, even though never called from the Senate Calendar by the Senator from Oregon (Mr. it may possibly delay a Supreme Court for debate and action. Because of my
for debate and action. Because of my MORSE). Administratively, the U.S. atdecision on the important question con- concern and the concern of many peo- torney and the police have the procecerning the policy of police questioning ple both here in the District of Colum
ple both here in the District of Colum- dures that are required by the bill in of suspects.
bia and throughout the Nation, I intro- administrative practice without having Mr. BIBLE. I do not believe that is duced S. 1526 which was identical with to come to the committee, without hava completely correct statement. I say to the bill reported from the Senate com- ing to have legislative authority or any my friend the Senator from Massachu- mittee last year. Senator BIBLE, the dis- change in the rules of criminal practice. setts that it is hoped that the proposed tinguished chairman of our committee, If the Senate were to adopt the Tydlegislation will strengthen the position again held hearings on this bill and we ings amendment, we would be back in of the Police Department and that it will worked long and hard in order to im- what I consider to be a very untenable give them a guideline to assist them in prove it and to insure that it would come position. making arrests.
to passage this year. We have incor- It seems to me, since we have felt in I do not believe that it would delay a porated into the bill all of the more work, the committee that the police should Supreme Court decision. On the con
able and practical features of the guide- have this right formally and should have trary, as has been stated by the senior lines recently set out by the Honorable the persuasion, legislatively and psychoSenator from Oregon, it would place us
Ramsey Clark, Assistant Attorney Gen- logically and publicly, in order to control in a position in which we could obtain a eral of the United States. This bill pro- crime which is so rapidly increasing in Supreme Court decision as to whether it vides a workable balance between the
vides a workable balance between the the District of Columbia, that we should is constitutional. The senior Senator rights of those accused of crime and the go forward and put it into legislation. from Oregon would disagree with my rights of innocent citizens upon whom
rights of innocent citizens upon whom If it is not constitutional, it will be so viewpoint. He thinks it is unconstitu- these crimes are perpetrated. It pro
It pro- held shortly. tional, and I think it is constitutional. vides a period of questioning of those ac- Mr. PASTORE. Mr. President, will
If it is constitutional, I believe that the cused of crimes, together with the most the Senator yield on that point?
reasonable and practical safeguards that Mr. DOMINICK. I yield.
Mr. PASTORE. The question that is There are those who would urge that not clear in my mind is this: If title 1 If it is unconstitutional, I think the
we delay this legislation because of the is designed to strengthen the hand of Supreme Court ought to say so.
grave constitutional points that are in- the police, why has the Chief of Police Mr. SALTONSTALL. If the Senator
volved. I would be the first to admit that been against it? will yield further, that is the issue which
we are dealing with an area of the crimiI raised in my question. The proposed
Mr. DOMINICK. The Chief of Police nal law where the legal precedents, con- is not against it, so far as I know. congressional action would do what we
stitutional or otherwise, are not well believe is necessary at the present time,
Mr. PASTORE. That is what has settled. However, I do not feel that we been said here. even though it may possibly delay a final
can do justice either to those accused of decision on the part of the Supreme
Mr. DOMINICK. The Chief of Police crime or to those against whom crimes said it is in effect and he did not see any Court. Mr. BIBLE. I do not oelieve it would proceeding by administrative action. We
are perpetrated by ducking the issue and use in going further. As the U.S. Attordelay it. I believe it would speed it.
must remember that prior to Mr. Clark's ney said, the procedure has been put into Mr. PASTORE. Mr. President, will recent guidelines, which provide the it should be done legislatively or admin
practice. The only question is whether the Senator yield to me?
basic outline for title I of this legislation, istratively. I do not see that the amendMr. BIBLE. I promised I would yield the District of Columbia police were un
the District of Columbia police were un- ment changes the rule of criminal proto our distinguished colleague on the der instructions from the U.S. attorney cedure. It is in the Federal Rules of committee, who has long had an inter
for the District of Columbia to refrain est in this subject.
Criminal Procedure now. from any questioning of criminal susMr. President, I yield 3 minutes to the pects between the time of arrival at the
Mr. CLARK. Mr. President, will the Senator from Colorado [Mr. DOMINICK).
Senator yield? station house and arraignment before a Mr. DOMINICK. I appreciate the magistrate. This directive, placed in ef
Mr. DOMINICK. I yield. courtesy of the distinguished Senator. fect because of the Court's interpretation
Mr. CLARK. Is it not true that if the I wish we could have had this question of the Mallory rule, inevitably hampered committee bill is approved and the before the Senate at the time we had the police in the investigation and prose- amendment is defeated, the Supreme an almost identical bill which I intro- cution of the rising crimes in the District Court will have a reasonably prompt opduced earlier and one which the commit- and may well have been a prime and con- portunity to pass on whether changes tee considered last year. This bill, with tributing factor to
factor to the skyrocketing in the Mallory rule are or are not binda few minor exceptions, is the bill ap- crime rate.
ing? proved by the committee last year and I am certainly aware of the other con- Mr. DOMINICK. That is true. it is the bill as originally sponsored by tributing factors to the rising crime rate Mr. President, I oppose the Tydings me earlier in this session.
not only in the District of Columbia but amendment and support the bill. Mr. President, the enactment of H.R. throughout the country as well. We Mr. BIBLE. Mr. President, I yield 1 5688, the District of Columbia crime bill, must continue to seek out social solutions minute to the Senator from South will be a landmark as far as the Nation's and continue to try to improve upon Carolina. Capital is concerned. It will also have other underlying conditions. However, Mr. THURMOND. Mr. President, one broad implications throughout the entire until we have some practical and work- of the most important provisions concountry.
able legislative guidelines in the District tained in H.R. 5588, the Omnibus Crime I have worked hard for this legislation of Columbia under which law enforce- bill for the District of Columbia, is title since becoming a member of the Senate ment officials and law-abiding citizens I. This title provides a rule of evidence Committee on the District of Columbia alike can operate, I am afraid we will be for the courts of the District of Columover 212 years ago. The increased crime faced with more of the same.
bia, governing the admissibility of staterate in the Nation's Capital continues to I wish to commend the distinguished ments obtained from an accused after a shock and amaze not only those of us chairman of our committee (Mr. BIBLE), lawful arrest and prior to an appearance who live, work, or visit here, but also all and other Senators on the committee before a U.S. Commissioner. The major law-abiding citizens throughout the who have worked so diligently to make purpose of this title is to modify the MalNation. this bill a reality.
lory rule in order to provide the law enThe House has passed two strong crime I wish to say a few words on the par- forcement officials of the District with a bills in the last 242 years; but unfor- ticular amendment in the short time I reasonable and realistic rule governing tunately, nothing of any consequence have remaining. If the amendment of the interrogation of suspects before arhas yet passed the Senate, As my col- the Senator from New York and the raignment. Under title I, 3 hours is alleagues will recall, the Senate Commit- Senator from Maryland should be lowed between the arrest and arraigntee on the District of Columbia reported adopted, we would not have changed a ment.
The Committee on the District of ed this procedure. They are working on trict of Columbia ?
trict of Columbia? I do not believe we Columbia has labored diligently on this tests of it. They want flexibility. This is have any such authority. section of the bill, and it deserves the a very important area of activity. The Mr. TYDINGS. No. The rule laid approval of the Senate. No one will con- American Bar Association and the Amer- down by the Court would be a rule that tend that establishing a 3-hour statutory ican Law Institute are doing research on would be applied anywhere. period of time is the perfect solution to this subject, trying to obtain facts to Mr. COOPER. We cannot lay down a the problems posed by the extreme ap- justify any proposed legislation in this special rule in the District of Columbia plications of the Mallory rule. It is ob- area.
with respect to the Mallory decision. vious that under some conditions 3 hours The Chief of Police wants to maintain Mr. TYDINGS. That is correct. We may be too long and under different con- law and order. The U.S. Attorney wants cannot legislate in a vacuum. ditions it may not be long enough. How- to maintain law and order. The Justice Mr. KENNEDY of New York. Mr. ever, this provision does recognize the Department wants to maintain law and President, in regard to the point made problem, and attempts to come to grips order. Yet they each oppose freezing the by the Senator from Mississippi, I do not with it as best as is possible under the Police Department's administrative pro- believe that any of us wish to have the circumstances. For too long, unreason- cedures into law at this time.
women of the District of Columbia atable applications of the Mallory rule I believe one relevant answer of the tacked. The problem is whether we are have allowed admittedly guilty and dan- Deputy Attorney General is found on going to enact a statute which raises gerous criminals to escape punishment pages 511 and 512 of the hearings. Sen- serious constitutional questions, serious altogether.
ators will recall the question as it was questions regarding the rights of those For these reasons, I support title I of directed to the Deputy Attorney General: accused of crime. We all believe that H.R. 5688 and oppose the pending It is not inconceivable, and in fact might this question needs to be dealt with. amendment which would eliminate it be very probable that when you have com- But we should not take steps which may from the bill.
pleted your study and have the facts before well violate the Constitution. We should Mr. BIBLE. Mr. President, I yield you, you then come to Congress with the re- not enact a statute which might make the remainder of my time to the Senator quest for legislation in this field. But in the
Senators feel good because we would interim period legislation in this area would have done something about crime in the from Mississippi (Mr. STENNIS).
Mr. STENNIS. Mr. President, I rise fact hinder your efforts to ascertain the District of Columbia, only to have the in strong support of the position of the probable effects of the Mallory rule.
statute declared unconstitutional within chairman of the committee and in op
a year. position to the amendment of the Sena
The Deputy Attorney General an
It does not seem to me that we are tor from Maryland and the Senator swered:
taking any kind of forceful action, or
That is exactly right and I think it is the kind of steps which need to be taken from New York. I have been concerned important to recognize that in the meantime to deal with crime, if we pass a statute since the Mallory rule was handed down
the public safety is not jeopardized because by the Court in 1957. Some years ago the police under this administrative regula- for which the Senator from Oregon is not I had a former Chief of Police in my of- tion will be authorized and instructed to en- going to vote because he feels that it is fice and asked him, “How many addi- gage in the same type of questioning as unconstitutional. tional men and how much additional with the statute but with greater flexibility. We believe that we should give this money do you need?” He said, "It is not
We have a crime problem. This is ad- problem the kind of study it needs, and a question of men or money. I need mitted by everyone concerned. The then come forth with the kind of statute some authority.” Meaning the Mallory question is simply one of method–how which will be upheld by the courts. rule had his men so severely restricted best to proceed, in our fight against Then we shall really have done someand handicapped that they could not crime. I would simply ask that we not thing to deal with the problem. We can handle the cases.
proceed legislatively at this time. I do this if we act on the basis of experiIn all those years since the Mallory would ask that we delay legislating in mental data and careful study. decision was handed down this is the this area, pending the results of the
The PRESIDING OFFICER. All time first time the Senate has had an op- studies which the American Law Insti- on the amendment has now expired. portunity to restrict or alter its applica- tute, the American Bar Association, and
The question is on agreeing to the tion. We had better act on this measure the Justice Department are now con
amendment of the Senator from Mary
land [Mr. TYDINGS). while we have it before us rather than ducting. merely have an academic debate over
On this question the yeas and nays
By deciding not to legislate in this area whether the procedures should be at this time we will not be impeding the have been ordered; and the clerk will adopted by Executive order or through fight against crime. We will not be giv- call the roll, a congressional act. An administrative ing aid and comfort to lawbreakers, for
The legislative clerk called the roll.
Mr. LONG of Louisiana. I announce order can be changed next week or next title I simply codifies what is already month. Particularly, if there is pres- present police procedure.
that the Senator from Alaska (Mr. BARTsure from civil rights groups, it may be By deciding not to enact title I at this LETT), the Senator from Idaho (Mr. changed. We have a duty to protect time we simply heed the judgment of the CHURCH), the Senator from Louisiana the women of this city, white women, law enforcement officers who must work
[Mr. ELLENDER), the Senator from Tencolored women, all women from roaming in this area, and who would prefer the
nessee [Mr. GORE], and the Senator from rapists and roaming robbers who go up flexibility of administrative guidelines to Wyoming [Mr. McGEE] are absent on and down the streets and in the homes the inflexibility of legislative fiat, at official business. in the daytime and the nighttime. least until adequate data exist to support
I also announce that the Senator from
Minnesota (Mr. MCCARTHY] is necesThis is a chance to do something the legislative judgment. about it.
Mr. CLARK. Mr. President, will the I hope the Senate will overwhelmingly Senator yield?
I further announce that, if present and defeat this weakening amendment. Mr. TYDINGS. Mr. President, how voting, the Senator from Louisiana (Mr.
ELLENDER) and the Senator from WyoThe PRESIDING OFFICER. The much time have I left?
ming (Mr. McGEE] would each vote time of the Senator has expired.
The PRESIDING OFFICER. One
“nay.” Mr. TYDINGS. Mr. President, how minute.
Mr. KUCHEL. I announce that the much time have I remaining?
Mr. COOPER. Mr. President, will the Senator from South Dakota (Mr. MUNDT] The PRESIDING OFFICER. The Senator yield for one question?
is necessarily absent and, if present and Senator has 42 minutes remaining.
Mr. TYDINGS. I yield.
voting, would vote “nay." Mr. TYDINGS. Mr. President, let me Mr. COOPER. As concerns Federal
The result was announced-yeas 26, emphasize again the reason the Deputy jurisdiction and Federal procedure, do
nays 67, as follows: Attorney General, the chief law enforce- you consider that the Congress, by legis
[No. 242 Leg.] ment officer of the District of Columbia, lation, can set apart the District of Cothe U.S. Attorney, and the Chief of Po- lumbia or other areas from the re
YEAS-26 lice gave when they asked us not to mainder of the country, and so prevent
Javits freeze their administrative procedures the application of the Mallory decision
Kennedy, Mass. into law. They have only recently start- by the courts to cases arising in the Dis- Cooper Hartke
Long, Mo. Moss
mittee is of the opinion that the right of the Magnuson Nelson
law-abiding citizen to be secure in his perMcGovern Neuberger Tydings
son and property suffers when the guilty go
unconvicted and that a reasonable concern Mondale Pell
Kennedy, Mass. Ribicoff
for the right of the law-abiding citizen to be NAYS-67
free from fear in his home and in the streets
Russell, Ga. requires that this special local problem must
Dominick Long, Mo. Saltonstall be met by legislative action.
Eastland Long, La. Scott
Background of rule 5 of the Federal Rules
of Criminal Procedure
The complete text of the rule is as fol-
Fulbright McIntyre Symington Byrd, Va. Jordan, Idaho Simpson
"Proceedings before the Commissioner Byrd, W. Va. Kuchel
“(a) Appearance before the commissioner:
An officer making an arrest under a warrant
issued upon a complaint or any preson makStennis
ing an arrest without a warrant shall take
Yarborough the arrested person without unnecessary de-
Young, N. Dak. lay before the nearest available commisDominick Miller
Young, Ohio sioner or before any other nearby officer emEastland Monroney Williams, Del. Inouye
powered to commit persons charged with ofErvin Montoya Yarborough
fenses against the laws of the United States. Fannin Morse
Young, N. Dak.
When a person arrested without a warrant
is brought before a commissioner or other Gruening Muskie McNamara
officer, a complaint shall be filed forthwith.
“(b) Statement by the commissioner: NOT VOTING—7
The commissioner shall inform the defendBartlett Gore
ant of the complaint against him, of his Church McCarthy Mundt
right to retain counsel, and of his right to Ellender Gore
have a preliminary examination. He shall So Mr. TYDINGS' amendment (No. 427) So the bill (H.R. 5688) was passed. also inform the defendant that he is not was rejected.
Mr. MANSFIELD. Mr. President, I required to make a statement and that any Mr. MORSE. Mr. President, I move move to reconsider the vote by which
statement made by him may be used against
him. The commissioner shall allow the deto reconsider the vote by which the the bill was passed.
fendant reasonable time and opportunity amendment was rejected.
Mr. BIBLE. Mr. President, I move to
to consult counsel and shall admit the deMr. BIBLE. Mr. President, I move to lay that motion on the table.
fendant to bail as provided in these rules. lay that motion on the table.
The motion to lay on the table was "(c) preliminary examination: The deThe motion to lay on the table was agreed to.
fendant shall not be called upon to plead. agreed to.
Mr. BIBLE. Mr. President, I have a
If the defendant waives preliminary examiThe PRESIDING OFFICER. The
nation, the commissioner shall forthwith detailed analysis of title I, which is
hold him to answer in the district court. If question is on the engrossment of the really the heart of the bill which the
the defendant does not waive examination, amendment and the third reading of the
Senate has passed. It is a detailed
a detailed the commissioner shall hear the evidence bill.
analysis of court decisions related to the within a reasonable time. The defendant The amendment was ordered to be en
Mallory case. It states in detail the con- may cross-examine witnesses against him grossed and the bill to be read a third gressional background of the case for a and may introduce evidence in his own betime. legislative change, and sets out each of half. If from the evidence it appears to the
commissioner that there is probable cause to The PRESIDING OFFICER. The bill the subsections of title I of the bill which
believe that an offense has been committed having been read the third time, the was just passed. I ask unanimous con
and that the defendant has committed it, question is, Shall it pass? sent that it be printed in the RECORD at
the commissioner shall forthwith hold him The yeas and nays have been ordered, this point.
to answer in the district court; otherwise and the clerk will call the roll.
There being no objection, the excerpts the commissioner shall discharge him. The The legislative clerk called the roll.
were ordered to be printed in the RECORD, commissioner shall admit the defendant to Mr. LONG of Louisiana. I announce as follows:
bail as provided in these rules. After con
cluding the proceeding the commissioner that the Senator from Alaska (Mr. BARTTITLE I-ADMISSIBILITY OF STATEMENTS MADE
shall transmit forthwith to the clerk of LETT), the Senator from Idaho (Mr.
BETWEEN ARREST AND APPEARANCE BEFORE
the district court all papers in the proceeding CHURCH), the Senator from Tennessee A COMMISSIONER
and any bail taken by him." [Mr. GORE], the Senator from Wyoming The purpose of title I is to provide a rule On June 29, 1940, Public Law 76-675, 54 [Mr. McGEE], the Senator from Florida of evidence for the courts of the District of Stat. 688, was approved which gave the Su[Mr. SMATHERS) are absent on official Columbia governing the admissibility of preme Court of the United States authority business.
statements obtained from an accused after a to prescribe rules of procedure for criminal
lawful arrest and prior to an appearance proceedings in the courts of the United I also announce that the Senator from
before a U.S. commissioner. The title pro- States and provided that such rules "shall Minnesota (Mr. MCCARTHY] is necessar- vides standards and
and safeguards for in- not take effect until they shall have been ily absent.
custody interrogation of persons arrested on reported to Congress by the Attorney General I further announce that, if present and probable cause and makes clear and certain at the beginning of a regular session thereof voting, the Senator from Alaska [Mr. the maximum period of time after arrest and and until after the close of such sesBARTLETT), the Senator from Idaho (Mr. prior to arraignment before a U.S. commis
sion * * *." CHURCH), the Senator from Tennessee sioner, during which such in-custody inter
The Supreme Court thereafter appointed
an Advisory Committee whose function it [Mr. GORE), the Senator from Wyoming rogation may take place.
The U.S. Supreme Court's interpretation of [Mr. McGEE], and the Senator from rule 5 of the Federal Rules of Criminal
was to draft new rules of Federal criminal
procedure. In the early drafts of this ComFlorida [Mr. SMATHERS] would each vote Procedure in the case of Mallory v. United mittee, rule 5 excluded from evidence any "yea."
States, 354 U.S. 449 (1957) has created special statement made by a defendant while the Mr. KUCHEL. I announce that the problems for law enforcement in the District defendant was held in custody in violation Senator from South Dakota (Mr. MUNDT]
of Columbia because only in the District do of the rule. However, during the deliberais necessarily absent and, if present and Federal courts have broad jurisdiction over tions of the Advisory Committee, the Su
crimes of violence which usually lack eyevoting, would vote "yea."
preme Court decided McNabb v. United witnesses, and because the courts of the Dis- States, 318 U.S. 332 (1943). The ruling of The result was announced-yeas 86, trict of Columbia have made extreme applica- his case excluded a confession obtained from nays 7, as follows: tion of the Mallory decision. The result of
an accused unlawfully detained in custody. (No. 243 Leg.]
this special local situation has been to allow Also decided during this period was United YEAS—86
guilty and dangerous criminals to escape States v. Mitchell, 322 U.S. 65 (1944).
punishment altogether receive lesser Alken
The Mitchell case qualified the McNabb
punishment by pleading guilty to lesser of -
case by holding that a voluntarily given conAnderson Bible
Byrd, W. Va.
fenses even though they may have volun- fession would not be excluded from eviBass Boggs Cannon
tarily confessed to their crimes. This com- dence because of the illegal detention of the
accused, unless the confession resulted from to speak briefly to his wife, after which he by the House of Representatives, has been such illegal detention.
returned to the police and confessed the before Congress before. The first legislative With the law relating to admissibility of
attempts to meet this problem took the form statements obtained during illegal deten- The U.S. Court of Appeals for the District of proposed amendments to rule 5(a) and tion in this posture, the Supreme Court of Columbia Circuit reversed the case for a would have had application to all Federal promulgated the Federal Rules of Criminal new trial on two grounds, (1) that the ques- jurisdictions. Procedure on December 26, 1944, without any tioning violated rule 5(a) because the ar- In the 85th Congress, H.R. 11477 was mention of any sanction against noncom- resting officers failed to take appellant be- passed by the House and amended and appliance with rule 5. Subsequently, the rules fore a committing magistrate "as quickly proved by the Senate. were duly reported to Congress, no objection as possible," and (2) that appellant was not As a result of the Senate amendment, the was raised, and the rules became effective on informed of his right to remain silent prior bill went to conference where the conferees March 21, 1946. It must be noted that fol- to his being interrogated.
accepted the Senate amendment but added lowing the McNabb case, there was a flurry
In Elsie v. Jones v. United States (113 certain new language. The House adopted of unproductive legislative activity aimed at U.S. App. D.C. 256, 307 F. 2d 397 (1962)), the conference report but adjournment prealtering the effect of the case.
the defendant was arrested at 4:25 of a vented final action by the Senate after a Mallory v. United States and related cases
Sunday morning, confessed 312 hours later, point of order was raised concerning the new
and was brought before a committing mag- language added by the conferees. In 1957 the Supreme Court of the United istrate at 9 Monday morning. A divided In the 86th Congress, the House CommitStates decided the case of Mallory v. United court held her confessions inadmissible. tee on the Judiciary again reported similar States, 354 U.S. 449 (1957). Andrew Mallory In Charles S. Coleman v. United States legislation, H.R. 4957, but it was not enacted. was convicted of rape in the U.S. District (114 U.S. App. D.C. 185, 313 F. 2d 576 (1962)), In the 87th Congress, the House CommitCourt for the District of Columbia. The a delay of 2 hours and 5 minutes was, again tee on the District of Columbia reported Court of Appeals for the District of Columbia by a divided court, held fatal to the ad- H.R. 7053, a similar bill limited in its apaffirmed the conviction (98 U.S. App. D.C. missibility of the conviction.
plication to the District of Columbia, which 406, 236 F. 2d 701). The Supreme Court In Tony A. Coleman v. United States (317 was passed by the House. The Senate did reversed the conviction and held that if an F. 2d 891 (1963)), a divided court permitted not act on this bill. arrested person is not brought before a U.S. the conviction on one count to stand al- In the 88th Congress, the House CommitCommissioner without unnecessary delay but though based upon a confession given 1 hour tee on the District of Columbia reported and is held and interrogated by officers for the after the arrest, but reversed the conviction the House passed H.R. 7525, the so-called purpose of obtaining incriminating state- on other counts based upon confessions given omnibus crime bill. The Senate Commitments, then any statements so obtained may 2 or 3 hours after arrest.
tee on the District of Columbia considered not be received in evidence at a subsequent In a dissenting opinion in Robert A. Mus
that bill during lengthy hearings and 1 year trial.
chette v. United States (D.C. Cir. No. 17410 ago reported an amended version, recomIn so doing, the Supreme Court restated (July 25, 1963)), it was contended that a mending substantial changes including those the sanction of the McNabb and Mitchell confession obtained 25 minutes after arrest in title i (the so-called Mallory section). No cases but extended the ruling of those cases and 1 hour and 50 minutes before the ar- action was taken by the Senate on the bill. to cover situations where there was no show- rested person was presented to the commit- Early in the 89th Congress, the House ing of any causal relationship between "un- ting magistrate should be excluded.
Committee on the District of Columbia renecessary delay" and the incriminating Testimony before the committee indi- ported and the House passed H.R. 5688, whose statement.
cated that in each of these cases, the con- title 1 is identical with that of H.R. 7525, as Mallory had the further effect of creating fession was clearly voluntary and admissible the latter bill passed the House in the last confusion within the legal ranks of the bench under all of the usual legal and constitu- Congress. and bar about what constituted an "un- tional criteria. The exclusion of these con- Presently, this committee's recommendanecessary delay.” In the Mallory case, the fessions except for Alston case was based tions to amend title 1 are substantially the accused was arrested on a rape charge be- solely on the lapse of time after arrest and
same as those contained in its report to the tween 2 and 2:30 p.m. His first statement prior to appearance before the U.S. Commis- Senate in the 88th Congress. The differences of admission was made about 9 p.m., and he sioner and the finding of the courts that such are set forth in detail hereafter under subdictated his confession between 11:30 p.m. lapse of time constituted an unnecessary de- title “Action Recommended by Committee." and 12 midnight. He was brought before lay within the meaning of rule 5(a) of the
The case for a legislative change in Mallory the U.S. Commissioner on the following Federal Rules of Criminal Procedure. morning. Underlying Reasons for Rule 5 and the De
In essence, the committee recommendaRecent cases in the District of Columbia
cisions of Mallory and Related Cases
tions would legislate into a statutory rule of have demonstrated that there is great un
evidence for the District of Columbia only
The courts have long been plagued by the certainty among the judges on the appellate troubling situation where an accused who
desirable and proper guidelines for the courts and district courts about how much delay
that would provide: is permissible between arrest and arraign- police station alleges that his confession was has been interrogated in the privacy of the
(1) Safeguards for accused individuals ment before a commissioner.
from improper police interrogation. coerced from him by unfair physical or menFor instance in Spriggs v. United States
(2) Protection for the public in keeping (335 F. 2d 283 (D.C. Cir. 1964)), a conviction course, his allegations are denied by the offi
tal pressures. In almost every instance, of law and order by permitting the police to was reversed because of the admission in
carry on necessary questioning of arrested cers whose word is usually accepted by the evidence of a confession made during book
individuals under clearly defined criteria. court and jury. To end these insoluble coning some 30 minutes after arrest when the flicts over the nature of such interrogations House-approved bill" (H.R. 5688) on the
The committee rejected title I of the officer told the suspect three witness had
and to minimize the opportunity for the use seen him shoot another person. of improper methods in obtaining such con
grounds that such provision would not In United States v. James J. Jones, Criminal
withstand constitutional attack because professions, are two basic underlying reasons for No. 366–63 (U.S. District Court for the Dis
tective devices were not written into it to rule 5(a) and the Mallory v. United States trict of Columbia, 1963), the trial judge ex
safeguard the rights of accused individuals decision. There are, of course, other undercluded a confession which occurred within
from improper interrogation and delay from lying reasons, such as the implementation of 15 minutes after arrest and prior to present
the time of arrest until arraignment before the constitutional rights of the accused, such ment of the arrested person to the com
a magistrate. The committee has approved as his right to counsel, and his right against mitting magistrate. The dissent in the for
recommended safeguards that it believes self-incrimination. mer case and the ruling in the latter case
will meet constitutional requirements and
The difficulty of the Mallory rule and its were based on the ground that no interro
will provide better law enforcement tools for interpretation of rule 5 is that even where it gation of any length is permissible and,
the police to protect the public. can be demonstrated that there was no coindeed, an arrested person is not to be taken
ercive conduct on the part of the police, and Rule 5(a) and Mallory v. United States—A to the precinct or headquarters for booking where all of the constitutional rights of the special problem for the District of Columand fingerprinting, but is to be taken before accused were protected, the Mallory ruling,
bia a magistrate forthwith. Thus "without un
as it has been interpreted in the District On November 5, 1963, while testifying benecessary delay" was considered to mean
of Columbia, still requires the exclusion of a fore the Senate District Committee in the “without any delay."
voluntarily given statement on the basis of 88th Congress, the Honorable Nicholas deB. In Alston v. United States (District of Covery minimal delay alone.
Katzenbach, presently Attorney General of lumbia Cir. No. 18750 (May 6, 1965)), ap
The purpose of title I, as amended, is to the United States, and then Deputy Attorney pellant was arrested at 5:51 a.m., on Febru- fill in this gap in the protection which is General of the United States, summed up the ary 22, 1964, and arrived at police head
afforded to the life and property of the law- special significance of the Mallory rule for quarters, with his wife at 5:30 a.m. Ap; abiding citizen by the criminal laws of the the District of Columbia in the following pellant's wife then sat in the homicide squad District of Columbia.
language: 1 office while appellant was taken into an ad
Congressional background joining room where police questioned him
"The Mallory rule is not frequently in"for at least 5 minutes.” During this ques- Problems associated with rule 5(a) and the
voked in Federal criminal cases in jurisdictioning, appellant "stated he didn't know Mallory decision are not new to Congress. anything about [the offense] or words to Language substantially the same as that 1 P. 432, committee hearings, H.R. 7525 that effect.” Appellant was then permitted contained in this bill, when it was passed (88th Cong.).