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Clellan from various law enforcement officers throughout the Nation pointing out the problems that have been created by the Miranda case.
I might say in the outset that in proposing a legislative approach to the problem it's not my intention to throw down the gauntlet to the Supreme Court, instead I propose that we establish clearer standards than the rules laid down by the Supreme Court and Miranda and other cases and yet ones which I believe will better protect the rights of the criminally accused, while reducing the possible deleterious effects that some interpretations of Miranda are having on effective law enforcement and the morale of our law enforcement officers.
My concern with the need for a comprehensive interrogation law stems from the conviction that the rules or lack of them set out in Miranda are inadequate to protect either society or the criminally accuses. It is a matter of common belief that police investigations are presently hampered by the vague rules of Miranda, and there are those who believe that, out of frustration, they might eventually have the effect of outlawing the use of all confessions unless Congress and the States act to rectify the situation.
Now what was Miranda aimed at? Well as we read the Miranda opinion I think we find that primarily that within the fifth amendment and the privilege against self-incrimination that the Miranda case was aimed at a situation in which an accused is brought into custody alone and mental coercion is used upon him, and the examination takes place in a police dominated atmosphere of compulsion.
I think that we ought to recognize that at the outset. It's also true that Miranda doesn't even accomplish its major goal which is to assure that the ordinary criminally accused (not the professional) is interrogated in an atmosphere free from coercion. Miranda, in practice, doesn't help these people, because it continues to permit the waiver of all rights, both as to the initial stop in questioning as well as to an interrogation that takes place in custody and in private, without the assistance of any neutral or third person.
In the first phase of criminal investigation, my bill, I might say, is directed to two different situations. First of all to the stop in interrogation that takes place in the street when a crime has been committed or there is reason or cause that a crime has been or is about to be committed. The second phase deals rather with the interrogation that takes place after the individual is in custody and being interrogated at more lengths.
In the first phase of criminal investigation, the District of Columbia law enforcement officer is granted express authority to request information from any person in connection with the prevention or investigation of a crime. This request need not be preceded by the explanation or warning of Miranda but any refusal to cooperate on the part of the person requested may not later be used against him in evidence. If an officer has reasonable cause to believe there has been a crime committed and that the person has knoweledge which may be of material aid, he may direct the person under the provisions of this bill, to remain in his presence for a period of not more than 20 minutes. I might say this 20-minute period is not original with any thinking on my part or the attorney's with whom I've consulted in trying to draw up this proposal, rather it has been studied and is included in a draft of the American Law Institute studies on this subject.
I might say also that the Miranda case, I believe, does not really apply and it's not intended to apply to this initial questioning, the stop and interrogation on the street at the scene of the crime. I think the language of the case is pretty clear in that effect and I quote from the Miranda casegenerally on the scene questioning as the facts surrounding a crime or other questioning of citizens in the fact finding process is not effected by our holding. It is an act of responsible citizenship, to give whatever information they may have to aid law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.
I think the same would be true—and that's the end of the quote. I think the same would be true in any situation where the officer observed a person in circumstances which suggest that the person has committed or is about to commit a crime. While the officer is given the power to impose the temporary minimal restraint without the mechanical warning provided in Miranda, there are strict limits also under the bill as to the purposes for which the stop and interrogation on the street may take place. It can only be used for these purposes: to identify the person by readily available information; to request his cooperation in the investigation of a crime; or to ascertain his explanation for his presence or conduct by readily available information. Thus, if an officer observes a man running down a dark alley behind a series of stores, he can be stopped and asked to explain his presence without going through the warnings set up by Miranda. If any voluntary, but incriminating, statements are elicited during this period they would be admissible in evidence.
In carving out this specific area for on-the-street police investigation, I have proposed to limit it to a 20-minute period to minimize possibilities of abuse. In most cases this period should be sufficient to enable the officer to find out quickly what is needed so that he may respond to the situation.
Thereafter, the officer must decide if he is going to make an arrest. If not, the individual must be informed he is free to go. If arrested, the officer must give the arrested person a statement of his rights, including the right to remain silent, the fact that the accused has a right to communicate with counsel, relatives or friends, and that anything he says can be used against him at a trial. The arrested person must then be transported immediately and directly to the police station if any further interrogation is desired. I might say that an immediate arraignment under the present Federal rules is required as a matter of evidence, during the trip, however, the interrogation may continue without the presence of counsel, but any statement, to be admissible later, must be wholly voluntary. This is the sum total of really the nut of the bill.
Now the second phase of the proposed bill comes into effect upon reaching the police station or place of custody. Thereafter, any further interrogation that takes place must take place before a courtappointed official known as a master of examination.
This official is an officer of the court and not a part of the law enforcement agency involved. He is charged with recording or transcribing the interrogation, with supervising and limiting the questions and the manner in which the interrogation continues, and with carry. ing out the responsibility for securing counsel for the arrested person and seeing to it that his family is put into communication with him.
However, because of the sweeping powers and rights given the master of examination, powers which insure that a person's privilege against self-incrimination will not be dispelled by the compelling atmosphere, referred to in the Miranda case, before the master can continue the interrogation for the master can continue for only about 3 hours without the presence or specific waiver of an attorney. If the attorney, or any friend or relation is available, and asks to be present during the investigation or if the person being interrogated asks for them to be made available, they may be present during the interrogation. Furthermore, if the arrested person desires to assert his right to remain silent pending the arrival of the attorney or a relative or a friend, the master of examination will insure the free exercise of such a right. However, a mere indication that the accused desires not to be questioned will not terminate interrogation as it would be required under the dictum, at least, in the Miranda case. And, if the arrested person is willing to talk, his statements would be admissible even though previously or simulaneously he has asked for, and will receive, the services of an attorney at the earliest availability.
The final provision of my proposal is a very explicit provision making it a misdemeanor for a police officer to use coercion, threats, or promises of leniency to elicit a confession. This provides a safeguard and sanction against police abuse that does not exist today where the remedies are by and large in the false arrests area.
I firmly believe that my proposal satisfies the fifth amendment and the command found therein that has been found by the courts that no person shail be compelled in any criminal case to be a witness against himself, and it will also meet the sixth amendment guarantee of effective assistance of counsel, which incidentally the Miranda case did not rely upon. They relied on the fifth amendment there.
We have taken a comprehensive approach to the problems of out-ofcourt statements and attempted to provide in the bill for appropriate safewards for each of these situations.
I'd like to talk for a few minutes as to why I believe this will come within the Miranda case and the language of the Miranda case. I believe that it is proper for the Congress, as a coordinate equal of the Supreme Court, to make rational distinctions in determining the requirements of the fifth amendment; and the Miranda decision itself, and its language, is replete with recognition of this fact. For example, the Miranda decision held that for purposes of preventing a compulsive atmosphere, the safeguards must apply when one is deprived of his freedom of action in any significant way. I can foresee that the application of this test creates many problems and have thus attempted to provide some specificity of some degree about the situation. But my proposal provides that the 20-minute stop for preliminary exploratory questioning is not custody, nor such a significant restriction of liberty as to require a warning or the presence of neutral observers or attorneys. As I have mentioned the language, the language, I've already quoted from the Miranda case, seems to me to apply that. However, once the investigation shifts from a general exploration of what has happened, to a focusing in on a particular individual, the interrogation changes from noncustodial to custodial and the accused is guaranteed his warning rights and the supervision of the master of examination. This point is reached goes beyond the lim
ited objects permitted during a stop. On the other hand, once a person is arrested and taken into police custody, substantial safeguardswhich include the introduction of elements of neutrality--must be provided. This removes the need for the absolute right to an attorney, is set out in the Miranda case otherwise. As is pointed out in the recent Harvard Law Review, November 1966, and I quote:
If appraisal of right to counsel and the right itself are necessary only to insure that the subject fully understands his right to remain silent, they may be replaced by some equally effective way of delivering the admonition-perhaps by a magistrate. Even if the right to counsel during interrogation is granted to protect against abuses not easily proven, it would be unnecessary if the accused could be protected by a sound recording or a neutral observer.
And we have provided for that in this bill.
The Supreme Court in Miranda stated clearly that the Constitution did not require adherence to any particular solution; and the decision was not intended to create a constitutional straitjacket, as the Supreme Court calls it, to handicap efforts at reform in the interrogation process.
There are, naturally, some minimal technical differences in the proposals that I've made from the literal rules laid down in Miranda; but I think that in general we do follow the rules of the Court. The most significant difference is that under my proposal the mere indication by an accused that he does not wish to answer, or that he wishes to have an attorney, does not necessarily require a halt to further interrogation if the master believes it proper to proceed with the interrogation.
While the Miranda case did expound exact conditions for calling a halt to interrogation where an accused so indicates, I don't think that my proposed legislative reversal of such rules would be thrown out by the Court.
For one thing, these particular requirements of cessation of questioning were not necessary to reach the decisions on the facts in Miranda and its related cases, as I mentioned before this was dictum only by the Court.
I think that the Court would recognize that while it fashioned rules to prohibit prolonged questioning in a police dominated atmosphere, under my proposal such questioning would be limited to a specified period (of which the accused would be informed before it commerced) in a judicially controlled atmosphere of neutrality. The Court would be faced with a situation where the accused would be guaranteed the right immediately to contact family, friends or an attorney and such persons would have immediate access to the accused. The Court would see that instead of the so-called manipulated coercive atmosphere with which it was concerned, there would be a controlled atmosphere, under the master's supervision guaranteed to prevent psychological coercion, that the Court was concerned with. The Court would also find a new criminal sanction in adding to the exclusionary rule to enforce the voluntariness of all proceedings.
In other words, the very premises and assumptions upon which the Court acted it enunciated its Miranda would be removed. I think the Court might then recognize society's interest in being able to continue questioning without the fear that a request by the accused to stop the
questioning or for the presence of counsel might throw out an otherwise voluntary confession, or information that might be obtained.
In making this proposal, I am relying upon the Court itself when it said in Miranda:
It is impossible for us to foresee the potential alternatives for protecting the privilege which ght be devised by Congress or the States in the exercise of their creative rule making capacities. Therefore, we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.
And then they set out the safeguards.
This legislation that I propose is an attempt to provide effective safeguards for our people without unduly diminishing the effectiveness of our law enforcement agencies. It involves the traditional American approach of balancing important interests to advance the public good. This summarizes the text of the bill that I have proposed here today. I think it would be a landmark type of proposal, setting out new rules in a whole new direction for interrogation of the accused and the protection of the accused in crime. And I think it would do much to restore the support and the interest of the police in trying to do something about this problem. I have consulted with a good many individyals informally, those in the law enforcement process, those on the bench and others and I've received in general a pretty good reaction and good support for this particular proposal.
I have not as yet, at any rate, received any particular criticism from civil liberties groups or any others that have asked for copies of the bill and I will admit that the time has been short that the bill has been available for them to considerate it. So we may have reactions from them that we have not as yet had.
That summarizes, Mr. Chairman, the testimony that I would like to present. I would be most happy to try to answer any questions of the committee.
Mr. WHITENER. Thank you, Mr. Taft. Mr. Sisk. Mr. Sisk. I have no questions, but I would like to commend the gentleman from Ohio for a very well thought out statement. We certainly share with him our concern for the crime situation that exists today, and share in his concern about protecting the public as well as the accused.
Mr. WHITENER. Mr. Dowdy.
Mr. Taft, I particularly want to commend you on bringing forth this bill. I think it is beginning to demonstrate that we are getting some movement now in the criminal law field. Yesterday we had Mr. Hagan's bill on what can be done with alcoholics in terms of moving them out of the criminal process, which I think is an excellent step and I am particularly pleased you have brought this forward.