such statements. To guard accused persons against the danger of being forced to confess, the law admits confession of guilt only when they are voluntarily made. While the connotation of voluntary is indefinite, it affords an understandable label under which can be readily classified the various acts of terrorism, promises, trickery, and threats which have led this and other courts to refuse admission as evidence to confessions. The cases cited in the Court's opinion show the broad coverage of this rule of law. Through it those coerced into confession have found a ready defense from injustice.

Were the Court today saying merely that in its judgment the confessions of the McNabbs were not voluntary, there would be no occasion for this single protest. A notation of dissent would suffice. The opinion, however, does more. Involuntary confessions are not constitutionally admissible because violative of the provision of self-incrimination in the Bill of Rights. Now the Court leaves undecided whether the present confessions are voluntary or involuntary and declares that the confession must be excluded because in addition to questioning the petitioners, the arresting officers failed promptly to take them before a committing magistrate. The Court finds a basis for the declaration of this new rule of evidence in its supervisory authority over the administration of criminal justice. I question whether this offers to the trial courts and the peace officers a rule of admissibility as clear as the test of the voluntary character of the confession. I am opposed to broadening the possibilities of defendants escaping punishment by these more rigorous technical requirements in the administration of justice. If these confessions are otherwise voluntary, civilized standards, in my opinion, are not advanced by setting aside these judgments because of acts of omission which are not shown to have tended toward coercing the admissions. Our police officers occasionally overstep legal bounds. This record does not show when the petitioners were taken before a committing magistrate. No point was made of the failure to commit by defendant or counsel. No opportunity was given to the officers to explain. Objection to the introduction of the confession was made only on the ground that they were obtained through coercion. This was determined against the accused both by the Court, when it appraised the fact as to the voluntary character of the confession, preliminarily to determining the legal question of its admissibility, and by the jury. The Court saw and heard witnesses for the prosecution and the defense. The defendants did not take the stand before the jury. The uncontradicted evidence does not require a different conclusion. The officers of the Alcohol Tax Unit should not be disciplined by overturning this conviction.

It is most interesting to note, in connection with the McNabb decision, that no point was made by the defendants nor by their counsel of any failure on the part of the arresting officers to arraign the defendants promptly. The decision is grounded solely upon the assumption indulged by the court that the petitioners had not been promptly arraigned. The record was silent on this most important point. The petitioners and their counsel did not claim that the petitioners had not been promptly arraigned. The truth is that the petitioners had been promptly arraigned. The prisoners were arrested early Thursday morning on the charge of operating an illicit still. They were properly and promptly arraigned and committed on that charge between 8:30 and 10:30 the same morning. During the raid on the distillery, or shortly thereafter, the murder had been committed in an adjacent cemetery in the darkness of night. No one had been seen, nor apprehended. There was no clue as to the identity. of the murderer or murderers. There was a strong suspicion that the McNabbs who had been operating the illicit distillery, or some of them, were also guilty of the murder. However, there was no evidence sufficient to justify a committing magistrate in binding them over on the murder charge. So there was no arraignment on the murder charge until after three of them had confessed; but every question put to any one of the prisoners was put after they had been promptly arraigned, and committed.

Almost immediately after the decision in the McNabb case was handed down, the administration of justice in criminal courts was thrown into confusion because of the McNabb decision, and in case after case defendants were, solely because of the rule promulgated in the McNabb case, freed by orders of the courts nolle prossing, or reversing, or directing verdicts, in pending cases. Many of such cases are cited in the hearings on H. R. 3690, pages 21 (cited by the author of the bill), 31, 32, 33 (cited by the Attorney General), and 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, and 60 (cited by members of the Metropolitan Police Department of Washington).

In one of these cases, Mitchell v. United States, the Court of Appeals of the District of Columbia (138 Fed. 2d 426) reversed convictions and upon certiorari granted by the Supreme Court the decision of the Court of Appeals was reversed by the Supreme Court, April 24, 1944, although the Supreme Court said in part: "We adhere to that decision" (McNabb v. United States), "and to the views on which it was based."

The history of the Mitchell case is bad enough, but that of the Wilborn case is infinitely worse. While the convictions of Mitchell were reversed by the court of appeals, yet this reversal has now been reversed by the Supreme Court, so Mitchell may now be punished. In the Wilborn case, however, Judge Pine is quoted as having stated from the bench on the trial, that, although his acquittal would constitute a "miscarriage of justice," nevertheless he must be acquitted because of the Supreme Court's decision in the McNabb case. So, Judge Pine directed a verdict of acquittal, and Wilborn walked out of the court a free man. The Constitution prohibits another trial, because a second trial would constitute double jeopardy, so he is as free and clear an anyone could be. What was his self-confessed crime? About 1 a. m. of March 18, 1943, he broke into the apartment occupied by three girls, where he assaulted one of them, inflicting lacerations requiring 11 stitches, though he did not complete the rape because of the screams of the other girls. He was arrested about 2 a. m. on the same night. About 4 a. m. he confessed. About 5 a. m., in the presence of the arresting officers and his victim, he reenacted the circumstances. About 11:30 of the same day he signed a written confession, and was arraigned about 3 o'clock that afternoon. But the McNabb decision held that no confession could be used as evidence if the selfconfessed criminal had not been arraigned promptly, and the judge construed this to mean just that. So, Wilborn, not having been arraigned for several hours after he might have been, was freed by a reluctant jury, because of the courts' direction, made solely because of the McNabb decision! Is this only a "miscarriage of justice" or is it a license to rape?

WHAT H. R. 8690 WOULD DO

It would merely nullify the new rule of the McNabb decision. It would declare that no such policy as that indicated in the McNabb decision underlies the laws Congress passed requiring prompt arraign

ment.

It would leave the law exactly as it was before the turmoil and confusion caused by the McNabb decision, and wipe out the attempt

to bypass and ignore the Bill of Rights, restoring to the full the protective guaranty that no person shall "be compelled in any criminal case to be a witness against himself."

MERELY A TEMPORARY EMERGENCY MEASURE

The bill H. R. 3690 is not designed to be a complete nor permanent solution of the problems involved in arrest, detention, and interrogation of criminal suspects. These problems are many, varied, and important. They cry for adequate remedies for full, painstaking study and solution.

All of us favor prompt arraignment. Failure to observe the legal requirement thereof should be punished. The punishment, however, should be inflicted upon the guilty-not the innocent! The arresting officers are the guilty when they fail to see to it that prisoners are promptly arraigned. The public "We, the people" are the innocent! Yet, under the McNabb decision only the law-abiding, innocent citizens, whose safety is jeopardized by turning self-confessed criminals loose, are punished!

A part of the solution should be the enactment into law of the requirement that all arresting officers be bonded, so that any failure on their part to observe the law would make them not only subject to suit, as they are now, but also able to respond in damages.

THE UNIFORM ARREST ACT

The Uniform Arrest Act, by Hon. Sam B. Warner, is a suggested solution that should have careful study.

The suggestion given by the Attorney General of the United States (see his testimony in the hearings, pp. 35, 36, and 37) that the arraignment statutes should be made uniform and should have but one requirement as to time, to wit: "within a reasonable time," also demands full consideration.

As suggested in the McNabb decision, the English rules for the interrogation of prisoners while in custody prescribed by the judges of the King's Bench should also be studied diligently and constructively with a view to seeing how they may be adapted to the administration of the criminal law in the United States. As so adapted, similar rules should be made by law a part of the solution of this problem.

The bill of rights committee of the American Bar Association, under date of May 15, 1944, has furnished the subcommittee that held the hearings on H. R. 3690 with a splendid brief showing clearly and fully the need for protracted and indefatigable study of this whole problem and for the enactment into law of its proper solution. They very kindly offer the services of this committee in collaboration toward these objectives.

CONCLUSION

Therefore, it is manifest that this bill is but an emergency measure, the sole purpose of which is to stop immediately the wrecking of our law-enforcement machinery resulting from the McNabb decision.

The enactment of this bill would do this and give your Committee on the Judiciary time, without the pressure and penalty of suspended law enforcement, within which to study these delicate and difficult problems, and for the preparation of such a bill as may be then agreed

upon.

MINORITY REPORT

This bill (H. R. 3690) is designed to overturn the decisions of the United States Supreme Court in McNabb v. United States (318 U. S. 332), recently clarified by the Court in United States v. Mitchell (Nos. 514-515), decided April 24, 1944. In our view there is neither necessity nor justification for passage of the bill recommended by the majority of the committee, which would prejudice certain fundamental civil rights and would negative the duties which Congress itself has imposed upon officials charged with the enforcement of the criminal law.

THE SUPREME COURT DECISION

When a Federal officer makes an arrest it is his duty under the law to take the arrested person before a United States commissioner or other judicial officer authorized to determine the sufficiency of the charge, to advise the defendant of his rights and, if the offense is bailable, to admit him to bail (U. S. C., title 18, secs. 593, 595; U. S. C., title 5, sec. 300 (a); U. S. C., title 16, secs. 10, 415, 706; U. S. C., title 33, secs. 413, 436, 446, 452, 499; U. S. C., title 46, sec. 708). While the statutes differ in their language, they require at the least that the officer produce his prisoner before such judicial authority without unnecessary delay. A similar requirement obtains under the laws of the several States. The purpose of this historic rule is to afford to all persons prompt judicial protection against unlawful arrest or detention by executive authority on charges of crime. The right to prompt arraignment is one of the great safeguards accorded to accused persons under our system of law. It gives effect to the provision of the fourth amendment that "no warrants shall issue but upon probable cause supported by oath or affirmation" and extends equivalent protection when an arrest is without a warrant.

The decisions in the McNabb case, which this bill proposed to set aside, held that confessions are inadmissible in evidence in a Federal criminal prosecution if they are obtained by law-enforcement officers from prisoners held in custody in flagrant violation of the arraignment statutes. Language was used in the McNabb case which indicated. the court might go so far as to hold any and all evidence inadmissible unless the defendant had been arraigned. However, the opinion in the Mitchell case clarifies the holding considerably and indicates that the court is getting back to the rule requiring arraignment within a reasonable time; which in our opinion is a correct criterion.

Following the McNabb decision a number of rulings in lower courts gave rise to the fear that any minor or technical violation of the arraignment statutes might lead to immunity for the defendants. The recent decision in United States v. Mitchell makes clear, however, that the rule of the McNabb case does not justify this fear. Not only did the Mitchell case hold that for the confession to be rendered inadmissible "it must be induced by illegal detention" but also that the illegality must be

accompanied by aggravating circumstances in the length of the illegal detention or in the psychological pressure to which the detention gives rise. As the Court said:

* Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand.

We do not believe that Congress should set itself against a rule of evidence enunciated by the Supreme Court of the United States in these terms. We believe on the contrary that the latest decision of the Court is correct and that the rule declared in it when properly construed should receive the approval and support of Congress.

Apart from the merits of the McNabb rule we doubt the wisdom of this bill because it departs from what we believe to be the sound policy of Congress in leaving to the United States Supreme Court the development of the law of criminal evidence. This is in substance the policy that has obtained since the establishment of the Federal courts. In recent years it has been extended to the entire field of procedure by the various acts of Congress vesting rule-making power in the United States Supreme Court. As Attorney General Biddle suggested in testifying on this bill, we should "be hesitant to qualify that policy in a matter which involves, as this does, the traditional requirement of our law that detention be judicially sanctioned which, after all, is a fundamental element of our historic civil rights." Should experience show that the rule of the McNabb case imposes too rigorous a limitation on the admissibility of otherwise relevant evidence, we are confident that the Supreme Court will modify the doctrine to the extent that modification may be wise. Such modification in response to the pressure of individual cases would be preferable on any theory to the enactment of a bill which declares, as in effect this does, that illegal detention however protracted it may be may never in itself constitute a ground for excluding a confession elicited by means of such detention.

THE ARRAIGNMENT STATUTES

If the McNabb rule points to the existence of a problem it is, in our view, not in the rule of evidence declared by the Supreme Court but rather in the nature of the duty prescribed by Congress in the various arraignment statutes. Under the general provision of section 595 of title 18 the duty of the marshal or other officer is to "take the arrested person before the nearest United States Commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial." This provision has been interpreted to require arraignment "without unnecessary delay." Section 300 (a) of title 5 embodies a special provision applicable to members of the Federal Bureau of Investigation which requires a person arrested without a warrant by an officer of that Bureau to be arraigned "immediately" before a committing officer. Section 593 of title 18 applicable to the arrest of persons found operating an illicit distillery requires arraignment "forthwith" before a committing officer in the county of arrest or the county nearest the place of arrest. Sections 4-140 of the District of Columbia Code require a member of the police force to take a person arrested without a warrant for a