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HEARINGS

BEFORE THE

COMMITTEE ON

THE DISTRICT OF COLUMBIA

UNITED STATES SENATE

EIGIITY-NINTH CONGRESS

FIRST SESSION

ON

H.R. 5688 and S. 1526

RELATING TO CRIME AND CRIMINAL PROCEDURE IN THE

DISTRICT OF COLUMBIA

PART 2

r9 JULY 15 AND AUGUST 5, 1965

Er Printed for the use of the Committee on the District of Columbia

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r9

CRIME IN THE DISTRICT OF COLUMBIA

HEARINGS

BEFORE THE

COMMITTEE ON

THE DISTRICT OF COLUMBIA

UNITED STATES SENATE

EIGHTY-NINTH CONGRESS

FIRST SESSION

ON

H.R. 5688 and S. 1526

RELATING TO CRIME AND CRIMINAL PROCEDURE IN THE

DISTRICT OF COLUMBIA

PART 2

JULY 15 AND AUGUST 5, 1965

Printed for the use of the Committee on the District of Columbia

II S. GOVERNMENT PRINTING OFFICE

47-891 WASHINGTON: 19194
COMMITTEE ON THE DISTRICT OF COLUMBIA

ALAN BIBLE, Nevada, Chairman

WAYNE MORSE, Oregon

THOMAS J. McINTYRE, New Hampshire

ROBERT F. KENNEDY, New York

JOSEPH D. TYDINGS, Maryland

CHESTER H. SMITH, Staff Director

II

WINSTON L. PROUTY, Vermont

PETER H. DOMINICK, Colorado

A.
CONTENTS

Statement of— Page

Acheson, David C., U.S. attorney for the District of Columbia 494

Clark, Hon. Ramsey, Deputy U.S. Attorney General 494

Layton, John B., Chief, District of Columbia Metropolitan Police

Department 515

Wilson, Jerry V., Inspector, District of Columbia Metropolitan Police

Department 515

Letters, reports, exhibits, and memorandums:

Acheson, David C., U.S. attorney for the District of Columbia, letter

dated July 14, 1965, to Chief John B. Layton, outlining proposal of

the practice that should be followed in questioning persons arrested

on probable cause and brought to station house 497

Metropolitan Police Department, General Order No. 9—B, dated.

August 11, 1965, from Chief Layton to the force. Subject: Questioning of persons arrested on felony charges 499

•President Johnson's crash anticrime program as presented to Senate

District Committee by Commissioner Tobriner on May 13, 1965,

and status of program as of August 5, 1965 531

Rocky Mountain News, Denver, Colo., article of May 31, 1965,

entitled "To Keep the Balance True" 527

Washington metropolitan area jurisdictions:

Police employees, December 31, 1964 522

Offense rate, calendar year 1964 523

Washington Star, article of July 13, 1965, entitled "Serious Crime in

the District increases for 37th Month" 512

Proceedings of:

July 15, 1965 493

August 5, 1965 515

III
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CRIME IN THE DISTRICT OF COLUMBIA

THURSDAY, JULY 15, 1965

U.S. SENATE,

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D .0 .

The committee met at 10 a.m., pursuant to recess, in room 6226,

New Senate Office Building, Senator Alan Bible (chairman of the

committee) presiding.

Present: Senators Bible, McIntyre, Tydings, and Dominick.

Also present: Chester H. Smith, staff director; Fred L. McIntyre,

counsel; Robert T. Hall, assistant counsel; Richard E. Judd, professional staff member.

The CHAIRMAN. The committee will come to order.

Before we begin our formal testimony this morning, I think it

might be helpful if we try to put in proper context the purpose of

the hearing. It will be recalled that when the Deputy Attorney

General of the United States, Mr. Ramsey Clark; Director of the Office

of Criminal Justice, Department of Justice, Mr. Vorenberg ; the U.S.

attorney for the District of Columbia, Mr. Acheson, were before this

committee on April 27, the hope was expressed that the session of advisers to the American Law Institute's prearraignment procedures

project in Atlantic City on June 4, 5, and 6, might develop some concrete proposals for your Department to make to this committee with respect to what I might call the Mallory rule problem.

I believe that the Deputy Attorney General indicated that fact

studies were being conducted by the Office of Criminal Justice to

develop conclusions that might warrant a firm legislative proposal to

this committee.

I further recall that Deputy Attorney General indicated that a stay

of a few months from the April date might afford an opportunity to

the Justice Department to come up with some constructive suggestions.

I believe the record will show that the Department chose to oppose

the title I or Mallory provisions of H.R. 5688, the House passed omnibus crime bill, and desired not to support the title I provisions of S.

1526, as approved by this committee 1 year ago in H.R. 7525 and as

supported by the now Attorney General of the United States, Mr.

Katzenbach, in testimony before this committee 3 years ago.

In the intervening 3 months the crime rate has continued to climb

in the District of Columbia and I for one am hopeful something affirmative can be accomplished at the earliest time if legislation is

needed to help make the streets of the Nation's Capital City a little

safer and remove the city of Washington from its infamous rank

493
494 CRIME IN THE DISTRICT OF COLUMBIA

•as first among the 16 cities of its size in this country in the rate of ,aggravated assault and robbery.

I realize that President Johnson proposed through the District Commissioners a crash program to help reduce crime. The com- mittee is working on the only two legislative proposals contained therein. The District budget for the 1966 fiscal year approved by the Congress this week contains money to implement other areas of that request.

I feel that that is going to be of some assistance in this very diffi- cult field. I plan to call hearings on the two bills introduced by myself and the senior Senator from Oregon, Senator Morse, very

soon, in the next week after that, to increase the District of Columbia

court of general sessions by three judges.

In his case, he indicates five judges, I believe. This should help clear the criminal calendar and bring those with criminal inclinations

to swifter justice.

Our first witness this morning, unless the distinguished Senator from Colorado has any observations to make—the Chair will be very happy to yield to the Senator from Colorado for any observations he might make.

Senator DOMINICK. I just want to make one comment, Mr. Chair-.

man. Recent statistics which have been obtained from the police, I

guess, indicate that our crime rate is still going up. While we wait for recommendations from various executive agencies, crime keeps soaring in the District. It seems that it is time that we took steps, either administratively or legislatively, or preferably both, to try to do something to solve this problem.

The CHAIRMAN. I am in accord with the sentiments of the gentleman from Colorado. After we have heard the witnesses today, after they have presented their case, I propose to have an executive session of the committee at the very earliest moment, either tomorrow or early next week. I assume I will not have it tomorrow.

I better correct that. I believe there are to be services for Adlai Stevenson tomorrow. So I will not attempt to set a hearing tomorrow morning. But I will attempt to set an executive session at the earliest moment next week.

Our first witness is Mr. Ramsey Clark, the Deputy Attorney General of the United States, accompanied by Mr. Acheson.

STATEMENT OF RAMSEY CLARK, DEPUTY ATTORNEY GENERAL;

ACCOMPANIED BY DAVID C. ACHESON, U.S. ATTORNEY FOR THE

DISTRICT OF COLUMBIA

Mr. CLARK. I have a brief prepared statement, Mr. Chairman.

The CHAIRMAN. It appears to be very short. I think you should read it in full, Mr. Attorney General, if you will. You may pro- ceed.

Mr. CLARK. Thank you, sir.

The Department of Justice has been asked for its recommendation for a legislative resolution of the problems in the investigation of crime which have resulted from certain interpretations of United States v. Mallo (354 U.S. 449 (1957) ).
CRIME IN THE DISTRICT OF COLUMBIA 495

Before addressing that subject, and without minimizing its importance it should be noted that there is no single formula that can

appreciably lessen the incidence of crime in the District of Columbia

and there is no evidence that the Mallory interpretations are a direct

causative factor in crime or its increase. At the same time, it is clear

that Mallory as applied has impaired effective police investigation.

Mallory addressed itself to police questioning and the admissibility

of confessions in trial. Involved is a most delicate balance between the

security of society on the one hand and the liberty of the individual on

the other. Care and understanding are essential to perfection of this

balance.

In other theaters of the war on crime, there is clear and present

opportunity for legislation to reduce the incidence of crime and protect

the citizen in the streets.

We are particularly happy with the committee's action recently in

these fields.

One example would be passage of Senator Tydings' bill S. 1632, to

tighten the law in the District relating to the possession of firearms.

Another is approval for additional judges in the court of general

sessions for which Senators Bible and Morse have asked. A third is

provision of the data processing equipment and the Planning and

Development Bureau for which the Police Department seeks. A

fourth would be immediate expansion of the Department of Recreation's roving leader program. Others include increases in police manpower, training compensation, and career incentive. More adequate

laws dealing with alcoholism, narcotics addiction, and rehabilitation

are essential to success.

The approaches afford immediate protection from crime and the

opportunity to attack its underlying causes; poverty, ignorance, unequal opportunities, and moral erosion.

As for the problems raised by the Mallory rule in the District, our

further study since your hearing of April 27 has led us to a plan which

affords an immediate opportunity for a fairer and more effective police

investigation and adequate protection of the rights of the suspects,

while permitting the police to develop facts and avoid a premature

test of the constitutionality of proposed procedures. The plan has

been implemented by a letter of July 14, 1965, from U.S. Attorney

Acheson to Chief Layton. Copies of this letter have been provided the

committee.

Under this plan, after an arrest based upon probable cause and prior

to the filing of a charge, a suspect may be questioned concerning his

knowledge of a crime. As a prerequisite to questioning he must be

clearly advised that he need not answer any question, that any statement given may be used against him, that he may consult counsel, a

relative

'

or a friend, and that if he is charged and cannot afford a

lawyer the court will appoint one for him.

Police officers are instructed to keep records of the time, duration,

and circumstances of all questioning. Questioning will be sound

recorded or otherwise preserved where possible, and steps will be taken

to improve technology in this area. Any questioning will be of

limited duration and should not exceed 3 hours in total. It will not,

of course, be coercive or oppressive in manner • and will be avoided

where it does not advance the investigation of crime.
496 CRIME IN THE DISTRICT OF COLUMBIA

The arraignment of suspects who are charged after arrest will not be delayed except in unusual circumstances. Committing magistrates have arraigned at 10 a.m., on weekdays in the District for decades. This is typical of most jurisdictions. Any questioning of a suspect will be done, and the decision whether and what to charge will be made, between the time of arrest and the time next available for arraign- ment except when the time and circumstances make this unfair or inadequate.

In no event will questioning cause "an unreasonable delay" in pre- sentment to a committing magistrate.

While we cannot be certain that statements made in compliance with this procedure will be admitted in evidence by every judge in

every case, the courts will be given the opportunity to pass upon state- ments made under such conditions and may well find that Mallory does not require their exclusion. Careful police implementation and sound prosecutorial discretion will assure the development of a solid basis for legislation.

The plan starts with the proposition that "questioning is often in- dispensable to crime detection" Culombe v. Connecticut, 367 U.S. 568, 571 (1960). It simultaneously demands full and effective recogni- tion of the rights of the suspect: to remain silent; to be warned that his statements may be used against him; to consult relative, friend, or lawyer to be released or charged and arraigned without unreasonable delay.

It seeks to preserve a record of questioning so that it can be deter- mined whether it is free from coercion.

Questioning will be avoided where it does not advance the investiga- tion of crime.

Persons who are charged will be presented to a committing magis- trate at the next available session. This is at least as prompt as has

ever been the case in our jurisdiction.

Chief Layton and his staff have participated in the formulation of this procedure and fully concur in it. The U.S. attorney believes that it will best serve his needs for the present. It will be improved by detailed• police regulations based on experience and can take into account the work of the American Law Institute and the American Bar Association as it becomes available.

It is more useful at this time than legislation incorporating the same features. It does not; run the risk of constitutional invalidation of the standards involved, as would a statute. Most important, while af- fording the police the opportunity for questioning which we deem essential, it is flexible and permits the development of facts, technology, and comprehensible language to guide police and courts through the complex, varied, and critical processes of criminal investigation in

a large city such as Washington.

Accordingly, the Department urges this committee to act upon the specific measures outlined at the beginning of this statement which strike at the occurrence of crime, and to refrain from action in the Mallory area pending a review of experience under the police pro- cedures initiated yesterday.

There is attached a copy of Mr. Acheson's letter to the Chief of Police. I think it would be most helpful to the committee if I read it at this time.
CRIME IN THE DISTRICT OF COLUMBIA 497

The CHAIRMAN. I agree with you. I think we should know exactly

what this letter says, Mr. Attorney General.

Mr. CLARK. It is a three-page letter dated July 14, 1965, addressed

to:

Hon. JOHN B. LAYTON,

Chief of Police, Metropolitan Police Department,

Washington, D.C.

DEAR CHD3IF LAYTON : This letter is intended to summarize the understandings

we reached in our recent discussion to outline the practices which we believe

should be followed in questioning persons arrested on probable cause and brought

to a station house. Of course, the starting point is rule (5) ( a) of the Federal

Rules of Criminal Procedure requiring judicial appearance "without unnecessary

delay"; the purpose of this letter is to specify practices with respect to questioning pending the time when such appearances take place.

In our judgment, some station house questioning of such persons is urgently

required by the demands of fair and effective law enforcement and is not

inconsistent with the present state of the law, provided that the safeguards

discussed herein are observed and there is no unnecessary delay in arraignment.

Before setting forth the proposed specific guidelines which we recommend to you,

it may be worthwhile to refer to developments in recent months which make

the formulation of such guidelines at this time particularly appropriate.

First, the Office of Criminal Justice, in collaboration with your Department

and my office, has again made a careful analysis of police questioning, its purposes, circumstances, limitations, and methods. It is clear from this study that

some questioning to determine whether to proceed with a criminal charge and

precisely what crime to charge is essential to law enforcement and consistent

with the legitimate interests of the person under arrest. Concurrently the

American Law Institute and the American Bar Association project on minimum

standards of criminal justice have commenced intensive studies of police questioning, its legal framework and relation to a fair administration of the criminal

law.

Second, there are several legislative proposals before the Congress at present

which are designed to give the police affirmative statutory authority to question

persons under arrest. In analyzing these proposals, it has become clear to

the Department of Justice that safeguards of the sort proposed in this letter

should be part of any procedure whether or not governed by statute.

The CHAIRMAN. What statutes are you referring to there? Is that

the bill that was introduced by Senator Dominick, the omnibus crime

bill?

Mr. CLARK. Yes, sir; that would be quite particularly S. 1526, Senator Dominick's bill, and any future legislation that might be proposed which would contain similar statements.

Third, recent court decisions in our own circuit and other circuits have

further emphasized the division of view among judges as to what time limitations and other circumstances make questioning permissible under the Mallory

'decision. It is particularly difficult to find any consensus on these matters in

a reading of the opinions in the Spriggs, Ricks, Perry, Copeland, and Alston cases.

On the other hand, there appears to be a wider judicial agreement on the

necessity of a careful and complete warning of the rights to silence and to

counsel before a person under arrest at a station house is questioned. We think,

therefore, that questioning procedures may be formulated which make use of

judicial guidance where it exists and which leave procedures flexible in the

phases where such guidance from the courts or the Congress is not now available.

In short, we think that the public responsibilities of our respective departments require an affirmative formulation of police questioning procedures, and

that this may be done consistently with constitutional requirements of voluntariness of statements and notice to arrested persons of their legal rights. These

views are not only our own. They are supported by the Department of Justice,

which has carefully considered the problem and authorized this letter. Accordingly, we recommend to you the following guidelines:

1. Consistent with what we understand to be your Department's general

practice, persons arrested and brought to a station house should there be clearly

47-801-65—pt. 2--2
498 CRIME IN THE DISTRICT OF COLUMBIA

warned before any questioning that they may remain silent and that they may

consult with a lawyer, a relative, or friend. A recommended form of warning

is attached.

2. One under arrest should be permitted to communicate with a lawyer, relative, or friend and such persons should be given access to him. Such communication or access should not, however, be allowed where there is reason to believe

it is sought for the purpose of concealing or destroying evidence or otherwise

defeating the ends of justice.

3. Police officers should regularly keep records relating to frequency and

duration of questioning. These records would not only be helpful as evidence

of disputed facts in a criminal case, but should be of great help as a factual

experience background for legislation. In addition, I understand that you will

explore the possibilities of making sound recordings of questioning, and that

these possibilities will be pursued with persistence and every effort made to

devise a practical method of preserving questioning.

4. Questioning should be of limited duration and should, of course, be reasonable and unoppressive in manner. While it is impossible in the present state

of the case law in the District of Columbia to ascertain a specific permissible

time limit for questioning, I believe it would be advisable to avoid having the

aggregate period of questioning, exclusive of interruptions, exceed 3 hours.

Interruptions will inevitably occur, for the purpose of verifying facts stated

by the arrested person, questioning the complainant or other witnesses, checking out evidence and records which may indicate the truth or falsity of statements, and confronting persons making statements with inconsistent facts.

And in the case where a suspect requests a polygraph examination it may

occasionally be impracticable to operate within the suggested limitation on

questioning time. The time taken for the whole investigation should, of course,

not be such as to conflict with the requirement of rule 5(a) calling for appearance before a magistrate without unnecessary delay.

The shorter it is, the better. Questioning should be avoided where it is

without investigative purpose or is likely to weaken a case by exposing it to

legal challenges.

It is difficult at best to devise a procedure which will insure the admissibility

at trial of every incriminating statement made by persons under arrest. But,

pending legislative or judicial clarification of the governing law, I believe

that our public responsibilities will best be served if the course outlined herein

is followed. As we have discussed, representatives of my office and your

Department will continue to woTk closely together to insure fair implementation of these guidelines, and hopefully, as we see how these procedures work in

practice, to develop more detailed operating provisions for the guidance of

your personnel.

Sincerely,

[Attachment'

PROPOSED WARNING

DAVID C. ACHESON,

U.S. Attorney.

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 have a right to call a lawyer, relative, or friend. He may be present

here and you have a right to talk to him.

3. If you cannot afford a lawyer, one may be appointed for you when you first go to court.

The CHAIRMAN. Thank you, Mr. Attorney General. You have

attached to that the proposed warning that you referred to in the

letter.

Mr. CLARK. Yes, sir.

(Subsequent to U.S. Attorney David Acheson's letter of July 14,

1965, to Metropolitan Police Chief John B. Layton, General Order

No. 9—B was issued by Chief Layton on Aug. 11, 1965, to conform
4

CRIME IN THE DISTRICT OF COLUMBIA 49g

police questioning of persons arrested on felony charges to the U.S..

attorney's letter of instruction. The general order follows:)

GOVERNMENT OF THE

DISTRICT OF COLUMBIA,

METROPOLITAN POLICE DEPARTMENT,

August 11, 1965.

General Order No. 9—B. series 1964.

Subject: Questioning of persons arrested on felony charges.

To the Force:

Under date of July 14, 1965, a letter was received from the U.S. attorney in

which he concluded that some "station house questioning" of persons arrested

on probable cause is often necessary and desirable for effective law enforcement

and for fair treatment of an arrested person and is not inconsistent with the

present state of the law, provided that certain safeguards are taken, proper

warning of constitutional rights is given, and no unnecessary delay occurs

between arrest and arraignment.

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. A 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 person comes 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 unlawful act. If no lawyer appears, and if a relative or friend

requested by the arrested person comes to the precinct station or headquarters, 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 questioned 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 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.
500 CRIA/M IN Tli1i DISTRICT OF COLUMBIA

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 conform

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.

The CHAIRMAN. I think it might be helpful before we start our

questions, if you would have any additional statement that the U.S.

attorney might care to add to what you have said, Mr. Attorney

General.

Mr. ACHESON. I don't have a statement, Mr. Chairman. I am here

primarily to answer any questions the committee may have.

The CHAIRMAN. Very well.

Could one or the other of you point out in what respects the method

that you are proposing to this committee at this time differs from

the legislation which this particular committee passed out in the

bill of last year?

It seems to me that they are somewhat similar. I would like to have

you distinguish between them.

The reason for the questioning, Mr. Attorney General and Mr.

Acheson, is that the bill that we reported out in our last session of

Congress was one which had the endorsement and which was designed primarily by the U.S. attorney here in the District of Columbia, with the approval of the present Attorney General of the United

States, Mr. Katzenbach.

He said that he thought this would take care of the title 1, the

so-called Mallory rule. How does your statement and the directive

to the Chief of Police differ from the title 1 of S. 1526 or H.R. 7525 of

the last Congress?

Mr. CLARK. The apparent differences in language are not great.

We think the advantages of the administrative procedure are substantial. In terms of the specific language, the proposal administratively that we are operating under today is substantially more flexible

as to the period of questioning. We have provided for a period of

questioning up to 3 hours. Then it need not be continuous. This

questioning could take place between the time of arrest and the time

of arraignment, the time that the suspect is taken before the committing magistrate in the normal course.

On matters such as sound recording, we have found from experience

that the technology of that is extremely difficult. This was a matter
CRIME IN THE, DISTRICT OF COLUMBIA 501

that was discussed at the ALT meeting where members of your staff

were present.

While I was not there, I understand that the almost unanimous view

was that the technological difficulties of transcription were such that

we needed to go forward carefully in that area. If we had a specific

requirement that a transcription be made in every case this might be

a very severe limitation, both upon the police investigators and also

upon the rights of the individual who is in police custody.

The administrative procedure has other advantages. It has an

immediate effectiveness. It can be implemented today. It can be

modified as experience indicates is necessary. And it avoids the risk

of a constitutional test on the broad standards that a statute would

face.

As we view a review by a court of this procedure, the standard would

still be under rule 5(a) and we would not risk, at a time when our

experience may be inadequate to fully resolve all the questions, a holding that this is an unconstitutional approach.

It is in those areas that we feel the administrative procedure is better.

The CHAIRMAN. Insofar as title 1 is concerned in S. 1526, it provides

that immediately prior to any such questioning the defendant is

plainly advised by the officers having custody of him, in addition to a

previous warning, that he is not required to make a statement at any

time, and that any statement made by him may be used against him.

Is there any difference between this and your proposal?

Mr. CLARK. I think they are essentially the same.

The CHAIRMAN. Paragraph No. 2 of section 103 of title 1 of S. 1526

and also of H.R. 7525 (88th Cong.) provides:

Prior to any such questioning the arrested person was advised by the officers

having custody of him that he would be afforded reasonable opportunity to

notify a relative or friend and consult with counsel of his choosing, and was in

fact afforded such opportunity.

How does your directive compare with this provision?

Mr. ACHESON. That is essentially the same provision as in the bill.

Senator DOMINICK. Could I interrupt there?

The CHAIRMAN. Certainly.

Senator DOMINICK. It does not seem to me it is exactly the same,

because in your letter you say he should have the rights to consult

with a relative or friend. In the bill we say he has a right to consult

with counsel. I was going to bring that up with the police.

Why in the world should a right be given to have a meeting with

a relative or friend, who are much more likely to be in cahoots with

a guy that was arrested than a lawyer?

A lawyer at least is under the sanction of being an officer of the

court and subject to all kinds of punishment if he does something that

is out of line. This is not true of a relative or friend.

The CHAIRMAN. The letter as I read it, Senator, does include a

lawyer.

Senator DOMINICK. It includes a lawyer but it also adds a relative

or friend. In our bill we simply say that he can notify a relative

or a friend but it does not give him the right of meeting.

The CHAIRMAN. Will you make that point for me again?

Senator DOMINICK. We say that they can notify a relative or friend

or lawyer.
502 CRIME IN THE DISTRICT OF COLUMBIA

The CHAIRMAN. And consult with counsel.

Senator DommcK. And consult with counsel. The letter of the

Attorney General, of Mr. Acheson, says that they can consult with a

relative, friend, or counsel.

The CHAIRMAN. Should be permitted to communicate with a lawyer,

relative, or a friend, and such persons should be given access to him.

Your point of difference is what?

Senator DOMINICK. My point is I gather what they are going to

do is to say the police must let the accused call a relative or friend

and if they should come down to the station house wherever he is,

they should have immediate right of access to him.

The CHAIRMAN. Would you comment on the difference between the

statute and your lawyer?

Mr. ACHESON. There is that difference between the two. The notion

underlying the provision in the letter, Senator, is that where the prisoner does not have counsel, does not know counsel, cannot communicate with counsel for that reason, he should have some means of

consulting with somebody so that you don't get the question of whether

the detention violated due process or fundamental fairness, or something of that kind.

We don't want to get into a situation where, if the prisoner does 

not know a lawyer, he is really being held incommunicado.

Senator DOMINICK. How do you figure he is going to be held

incommunicado if he has a right to notify someone that he has been

picked up by the police and is in jail?

A person has a right to do whatever they want to do on the outside.

get a lawyer for him or anythinE else.

Mr. ACHESON. That is true but it is not the same thing as an immediate face-to-face consultation. I suppose if the prisoner wants to

consult with a relative, on the question of whether the relative can get

a lawyer for him, they don't want to talk on the telephone with the

police in the room there is something to be said for letting the relative or friend come to the lockup and talk to him face to face.

Senator DOMINICK. Do you have any objection on this portion of

the bill?

Mr. ACHESON. To meet your earlier point, we do have a provision

in that paragraph of the letter that is designed to take care of the

confederate who comes down to get instructions from the prisoner

about how to dispose of stolen property or something of that kind.

We say where the consultation is believed to be for the purpose of concealing or destroying evidence, or defeating the ends of justice,

then it should not be permitted.

Senator DOMINICK. Excuse me, Mr. Chairman.

The CHAIRMAN. I think you asked one question of Mr. Acheson

that he did not answer. I think you asked whether or not this particular provision met the approval of the police. I don't think he

has responded on that matter.

Mr. ACHESON. The police have made the point, of course. Senator,

that there is a chance that when these face-to-face consultations take

place with a lawyer or with anyone else, then it may reduce the chance

of the prisoner making any incriminating statement. They made that

point and we are aware of the point. They have not objected on

that ground to these instructions.
CRIME IN THE DISTRICT OF COLUMBIA 503

They have simply cautioned us that it might have the effect of

reducing the number of incriminating statements we get. Frankly,

neither the police nor we know whether it would have that effect in

5 percent of the cases or 95 percent of the cases.

One of the reasons for following this administrative instruction

route instead of a statutory route at this point is to see how these

procedures work before we lock them into the statute books.

Senator DOMINICK. IS it contemplated in your letter that this consultation with a relative or friend would be without the presence of

police or within the presence of police?

Mr. ACHESON. The letter does not state. The court decision seems

to look toward a confidential consultation with counsel. I frankly

don't know whether the courts would require a confidential consultation with a relative or friend.

Senator TYDINGS. We are talking about people who are not charged

with a crime or being held for investigation?

Mr. ACHESON. No.

Senator TYDINGS. What are we talking about?

- Mr. ACHESON. We are talking about people who have been arrested

on probable cause to make them guilty of a felony.

The CHAIRMAN. The Senator from COlorado.

Senator DOMINICK. This is the point: I had assumed, and this is

why I asked the question, that you were putting the relative or friend

in the same capacity as a lawyer, and, therefore, had confidential access to the prisoner. I wondered why you had done that, what legal

requirement there was that this be done, or whether this confidential

access would not create more problems than it solves.

Mr. ACHESON. If it turns out that way, Senator, we can make a

change in this procedure.

This again is another reason for having some flexible instructions

that we can change fairly readily. If the police have problems in

permitting confidential consultations with a relative or a friend, then

if there are reasons to change it we ought to change it.

I frankly don't know whether they will have problems with it or

not. I think we all have to be candid in admitting that we are sort

of feeling our way along. We are trying to collect data, some solid,

factual experience, on how these procedures work.

The CHAIRMAN. The next section of the bill under paragraph 3 that

was reported out by this committee in the last session says:

Not more than six hours shall elapse between the arrest and the completion

of the confession, statement, or admission.

However, you say 3 hours in your proposed letter. Would you

point out what the differences are between the letter that you have

(riven to the Chief of Police and the bill that we reported out last year

in that respect?

Mr. ACHESON. The purpose, Mr. Chairman, is to allow a more

flexible and useful type of questioning procedure. We have come

to the conclusion, a tentative conclusion, that it is much more useful

to have a period of time that you can divide up into pieces to question

than to have one flat period in which you must compress all of your

questioning.
504 CRIME IN THE DISTRICT OF COLUMBIA

We rather thought that 3 hours divided up over a longer period

of time for questioning would be more useful than a rigid 6-hour

period. The reason for that is because the way the situation is usually

handled, the police will ask a few questions of the prisoner, perhaps

not get any satisfactory answers, will then find another witness or

discover another piece of evidence an hour or two later which they can

bring back and confront to the prisoner.

Confronted with this new information, the prisoner may say something that is more illuminating. There ought to be time for the police

to divide up these interviews with the prisoner rather than have to

compress their whole investigation into a 6-hour period.

In other words, 3 hours spread out seemed to us more useful than

6 hours compressed into a continuous rigid period.

The CHAIRMAN. The fourth paragraph of last year's bill and also

of S. 1526 stated:

Such questioning and the warning and advice required by paragraphs 1 and

2 of this section where, whenever reasonably possible, witnessed by a responsible

person who is not a law officer, transcribed verbatim, recorded by wire, tape, or other sound recording, or conducted subject to other comparable means of verification.

What is the difference between that requirement and your directive

to the Chief of Police?

Mr. ACHESON. There are two major differences, Mr. Chairman.

One is that we are, in the letter, leaving it more to the discretion of

the police as to what kind of records they should keep. We do want

a solid, reliable record of these interrogations, and so do the police.

We are not sure whether this is best achieved by sound recordings or

transcripts or quite how.

The statute gave the police an alternative. Frankly, in the bill

the language "wherever reasonably possible" suggested to us that

the courts might review that and try to decide for themselves when

a recording was possible and when it was not, and then throw a confession out of evidence if they thought the recording was possible and

was not made.

In our letter, we simply ask the police to keep records and invite

their experimqntation with sound recordings so that we can see

whether they Are workable as a device for regular uniform recording.

There will be problems, I am sure.

Senator DOMINICK. May I interrupt?

The CHAIRMAN. Yes.

Senator DOMINICK. I just don't understand this at all, Mr. Acheson.

I am not trying to be disagreeable about this. But if you read that

bill, which I am sure you have before, because a large part of it

is based 

The CHAIRMAN. 

on the recommendations 

I think it was 

given 

his 

by youlanguage and the Attorney General's language of a year and a half ago.

Senator DOMINICK. It says "such questioning and warning and advice required by paragraphs 1 and 2," which refer to the fact that

any statement can be used against him and he has a right to notification, where, whenever reasonably possible, witnessed by a responsible

person who was not a law-enforcement officer, or transcribed verbatim,

or recorded by a wire, tape, or other sound recording, or conducted subject to other comparable means of verification.
4

CRIME IN THE DISTRICT OF COLUMBIA 505

It doesn't require that you do it by recording. It doesn't require

that you do it by court-reporting procedures. It says that you do,

wherever possible, reasonably possible, have some method of

verification.

Mr. ACHESON. That is right, Senator. But it does make one or

another means of recording a condition of admissibility.

Senator DOMINICK. Recording in the broad generic sense.

Senator TYDINGS. You are saying that this paragraph would not

help the police officers but would, in effect, hinder them.

Mr. ACHESON. I think that paragraph in the bill would make it

a condition of admissibility and might make it impossible for us to

offer many confessions in evidence. But the letter doesn't set conditions of admissibility. The letter simply sets ways in which the

police are going to try to operate. I think it is best not to be pinned

to a recording as a condition of admissibility until we can find out

whether sound recordings do work and in what circumstances they

can be made, and how regularly they can be kept.

The CHAIRMAN. Further questions from the Senator?

Senator DOMINICK. I have a lot more.

The CHAIRMAN. I was just trying to develop those four points. I

have a few more questions based upon your statement, Mr. Attorney

General.

You say on page 2:

Careful police implementation and sound prosecutorial discretion will assure

the development of a solid basis for legislation.

I will ask you this question: If we were to take this letter which

the U.S. attorney has written to the chief of police and couch it in

statutory language, what would be the position of the Attorney General of the United States?

It seems to me the biggest difference is in the time element, the

3 versus the 6. It may well be that you need more flexibility in the time

for questioning. I am not clear yet as to whether your position is

that that is a total of 3 hours or whether it is a continuous 3 hours.

Mr. CLARK. It is a, total of 3 hours.

The CHAIRMAN. It could be 1 hour now and 2 hours later this afternoon; is that the way it works?

Mr. CLARK. That is the way it works. As a practicality, it probably never would be as long as 2 hours.

The CHAIRMAN. I understand. I was using that as an example.

But it isn't a solid 3 hours but a total of 3 hours.

Mr. CLARK. Yes, sir.

The CHAIRMAN. It seems to me that is the main difference. What

would the position of the Department of Justice be if we took the

letter, if we took your statement, put it in statutory language and reported it out as a bill?

Mr. CLARK. We would feel that it would place limitations on the

police that could only be altered or modified by the Congress; that

these limitations might result in the loss of confessions and what flows

from the loss of confessions; that the police would be placed in a

rigid requirement; and these confessions taken under the statute

would then be tested in the courts and the statute, itself, might fail.

At this time we really don't have a pattern of experience, and an ob47-891-65—pt. 2 3
506 CRIME IN THE DISTRICT OF COLUMBIA

jective and studied determination of all factors in police interrogation,

when we really don't have an adequate, in our judgment, fact basis

to promulgate a final rule. We believe that all the advantages of the

statute, plus flexibility, can be secured from the administrative procedure without the inflexibility and the risks that are inherent in

statutory implementation at this time.

The CHAIRMAN. May I explore that just a bit further? That was

the next question I was going to ask. I am not clear on it. This is on

page 3, where you say it is more useful at this time than legislation

incorporating the same features, which really answers the question I

just asked you, and which is the same thing you just said. The next

sentence says it does not run the risk of constitutional invalidation of

the standards involved as would a statute.

Would you elucidate and clarify that for me? If a defendant feels

that his constitutional rights have been violated by means of this letter

from the U.S. attorney to the chief of police, isn't there some method

that he can test that in court, as to whether this did or did not violate

his constitutional rights?

Mr. CLARK. Certainly the individual under arrest would have full

opportunity to test the legality of his arrest. But the standard on

which the court would pass would be rule 5(a) as it reads today, and

not the broad standards of this police regulation which is really merely

instructions to police as to how they should conduct themselves.

Therefore, the setting aside of a confession under this administrative procedure would not have the result of invalidating all questioning that the police may engage in anymore than the decisions of the

courts heretofore setting aside such confessions have had that result.

On the other hand, if we had a statute, then the court would be

forced to construe the statute. It would be confronted directly with

the constitutional question: Is this statute constitutional? It might

arise at a time when we have had inadequate experience to reach the

best balance that we can between the necessity for police interrogation

and the protection of the rights of the individual, and the statute might

fall as being unconstitutional. The Congress would then be in a much

more difficult position to face this problem than it would be after an

implementation and study and court review of this administrative

order.

One of the more significant developments in this area on law in the

last month, really, and even to some extent since our last hearing, is

the role of the issue of the right to counsel in the Mallory field. The

cases that have gone up in the District of Columbia, the cases that have

been referred to, courts of appeals cases, in my statement, do not address themselves to the effect of the right to counsel on Mallory.

This can make a big difference. We think it would be most helpful

to give courts an opportunity to address themselves to the question

with that big difference in there, and we could do that without avoiding the risks that would be involved in a statute and we would have

a much more flexible opportunity for effective police questioning in

the interim.

The CHAIRMAN. I am just asking for edification, but if I understand you correctly there might never be any real need of the Congress enacting a statute in this field, if you could do it better, by means
CRIME IN THE DISTRICT OF COLUMBIA 507

of an administrative order and have more flexibility and have less

possibilities of being thwarted by court cases of one kind or another,

either in the original jurisdiction or appellate or Supreme Court.

Mr. CLARK. I consider that a possibility but not a probability. I

think probably legislation will be deemed beneficial at some time in

the future. But I think the opportunity today to have a direct experience with the same police techniques that the statute would impose

would be very advantageous to the police, the public, the courts, and

this Congress and this committee at a subsequent time when they

review that experience.

The CHAIRMAN. What you are saying is that you are asking us to do

nothing with title I at the present time, but to permit you to proceed

by means of administrative orders to handle this problem, to see what

your experience develops in this area.

Mr. CLARK. That is our recommendation to the committee; yes.

The CHAIRMAN. The Senator from Colorado.

Senator DOMINICK. Am I correct that an order was issued to the

police sometime ago that police should not conduct any, at least, extensive questioning before arraignment?

Mr. CLARK. That is correct; October 1964.

Senator DOMINICK. That went in in October 1964?

Mr. CLARK. Yes.

Senator DomiNics. That was the so-called hold order, or whatever

we called it, the stop order?

Mr. ACHESON. This was not an order, Senator. It was one of a series

of communications that I have been sending to the Chief of Police

every several months, giving him our evaluation of the effect of court

decisions in the field of interrogation of prisoners.

This particular letter in October 1964 pointed to some changes that

had been made in the law recently, and said that at the present the

best we could say was that great caution should be employed by arresting officers and duty officers at precincts and headquarters in interrogating persons under arrest.

I said that I thought probably at that time only a statement volunteered at headquarters or taken immediately at the scene of arrest would

be admissible.

The Chief of Police who was then in office circulated that letter to the

force and it had the effect, I think, of greatly restricting the interrogation practice which had been the custom in the Police Department.

Senator DOMINICK. If I may, I would like for the record to cite the

first sentence of the last paragraph of your letter of October 27, which

reads:

As a simple rule of thumb, I should think it would suffice to instruct your men

that persons under arrest are not to be questioned regarding the facts of the

offense following their arrival at a precinct or headquarters until after their

appearance before the magistrate and appointment or retention of counsel.

That is the so-called stop order.

Mr. ACHESON. Yes, that is right.

Senator DOMINICK. You have changed your viewpoint, then?

Mr. ACHESON. I have Senator. And for two reasons. I think there

are some indications, although they are far from clear and they are not

statistically demonstrable, that the restrictions on questioning that the
508 CRIME IN THE DISTRICT OF COLUMBIA

police followed after receipt of this advice did limit or reduce the clos- ing of some investigations.

I can't be sure of that, but I think there are some indications that it did. Therefore, it seemed to us that perhaps we are paying a price that was a little too high in return for an attempt to follow the case law. Second, and I think more importantly, the case law began splitting all over the place in recent months, and after the Copeland decision and the Perry decision, it became clear that there really wasn't

any reliable guideline in the court of appeals as to a time period which would be permissible for questioning under rule 5(a). Therefore I

concluded, and the Department concluded, that there was—that we

were trying to achieve illusory, certainly, in following case law when there really wasn't any governing standard as to the time period, and, therefore, the police should be given the benefit of the flexibility that there was in case law and should, of course, adhere to the case law where the standards were clear, as they are becoming clearer, and the right to counsel.

Therefore, the sensible thing to do, it seemed to us, was to change the instructions to the police.

Senator DOMINICK. When were these recent cases decided that you referred to?

Mr. ACHESON. I have the dates here, Senator. I will look them up. The Perry case was decided in November the Copeland case was decided in December. The Alston case was decided in May. The CHAIRMAN. What years were those?

Mr. ACHESON. November and December of 1964, and May of 1965. The CHAIRMAN. Thank you.

Senator DOMINICK. Your letter to the police is dated July 14.

Mr. ACHESON. That is correct.

Senator DOMINICK. I have some concern over your statement to the committee saying it is more useful at this time than legislation incor- porating the same features. In other words, your recommendations

to the police. In effect, you are advising us that we should not go ahead legislatively on the Mallory rule.

Then in your letter to the police, in the last paragraph, you say:

Pending legislative or judicial clarification of the governing law, I believe that our public responsibilities will best be served if the course outlined herein is followed—

Indicating we should have some legislative clarification. How do

you fit those two comments together?

Mr. ACHESON. Senator, when I say pending legislative or judicial clarification, we have to, I think, admit the theoretical possibility that

we may get a court decision which makes it clear, for example, that 4 hours of questioning, divided over an afternoon or half a day, is compliance with rule 5.

I would be rather surprised if we got it, but if we should get it, I

think it would have a significant effect on our feeling of need for legis- lation. If the Supreme Court of the United States, for example, should give us that decision, I think it would change the premise we

are working from.

Senator DOMINICK. Many of us have felt for some time, as you probably are aware, that the courts have been judicially legislating in quite a large number of cases that perhaps the Congress, itself,
CRIME IN THE DISTRICT OF COLUMBIA 509

should start doing the legislating instead of the courts. Are you

advising us, in effect, that you would prefer to have the courts do it?

Mr. XCHESON. No, Senator, certainly not. Even if we were to come

back 3 months from now and say we have concluded that S. 1526 is

exactly the right solution to our problem and we want that bill passed,

I still think as sensible people we would be in a much better position

if we had worked for 2 or 3 months with this procedure that the police

have been given in the letter so we know what the problems of recordings are, and the problems of access to counsel and relatives and

friends.

The procedures we are experimenting with here may work and they

may not. I think we ought to know whether they will and what the

problems are before we ask the Congress to put them on the statute

books.

Senator DOMINICK. This problem has generally arisen in the District, as I understand it, largely because we are under Federal Criminal

Rules of Procedure, rule 5(a). Let me ask you what would be the

effect if the home rule bill is passed? What will be the effect? Will

we still be under this rule 5(a) of the Federal Rules of Criminal

Procedure, or will we not?

Mr. CLARK. I would have to guess. I think we would still be under

the Federal Rules of Criminal Procedure, particularly in the U.S.

district courts. That is where Mallory is involved. I don't think the

home rule bill would intend to delegate to the city government the

power to make rules for U.S. district courts.

Senator DOMINICK. I am frank to say that I am at least perplexed.

We received recommendations to pass this bill before from the U.S.

attorney's office and we did pass it, as far as this committee was concerned. We put it back in again.

Then you say we need clarification by legislation. Then you say

it won't do any good to put legislation in, or it won't do much good.

I am confused, to say the very least. If we are trying to do something

which will give the police investigative powers which will enable

them to prosecute an arrested person it seems to me that the proper

way to go about it is to pass legislation which will apply on these

procedural points.

What you are saying is that we can escape the effect of rule 5(a)

by administrative procedures far easier than we can legislative. Isn't

that really what you are saying?

Mr. CLARK. No, I don't believe I would categorize it that way. I

think what we are saying is that we do not believe that we have adequate experience with the practicalities of police questioning at this

time to risk a commitment through legislation that will be inflexible

as far as the police are concerned and can have such far-reaching

consequences in terms of release of the guilty, or otherwise. We feel

most of the benefits, if not all, of that legislation, can be tested, appropriately tested, under an administrative procedure, and through that

testing this can be determined.

The CHAIRMAN. Would you defer to the Senator from New Hampshire?

Senator DOMINICK. Certainly.

Senator MCINTYRE. In view of the differences and the changes that

you propose today, do either of you gentlemen have any feeling that

section 103, as written, might be unconstitutional.
510 CRIME IN THE DISTRICT OF COLUMBIA

Mr. CLARK. Possibly, yes, sir. I can see the case where—and I

realize there are many considerations to be taken—I can see the case

where 6 consecutive hours of questioning would not be deemed coercive

by the police, perhaps, at the time they engaged in it, would subsequently be found, with all the circumstances that surround it, would

be found to be coercive and set aside. If it were that 6 hours were

authorized by statute, and the statute would be found inconsistent with

the process clause of the Constitution.

Senator MCINTYRE. I have to go. I want to express my appreciation. I share the feeling of the Senator from Colorado of disappointment, because I think the majority of the committee would like to do

something to cure what seems to me to be the harmful effect of the

Mallory rule in the District.

I have appreciated your testimony. I see you have come smack up

against the constitutional rights of the accused. The more you probe,

the more it seems to me they come to the surface. It is a very delicate

problem.

Senator DOMINICK. Are you saying that this would be unconstitutional or are you saying any confession you got would be set aside

because the confession would be involuntary or coercive?

Mr. CLARK. I said both, the Court could go either way depending

on the circumstances. The Court could read from one part of the

statute it can't be coercive and only this confession is set aside.

This confession, on the other hand it might see a fair connotation,

did this statute authorize this questioning and was it under these

circumstances a denial of due process?

If it answered the first question no, and the second question yes, you

have an invalidation.

The CHAIRMAN. Might I just go one step further in line with the

questions of the Senator from New Hampshire? What have you built

into this statute in the third provision of section 103, exactly the same

language that you have on page 2 of the U.S. Attorney General's

letter to the Chief of Police, specifically that the aggregate period of

time for questioning exclusive of interruptions should not exceed 3

hours?

I assume that it is your position that that would be constitutional

because this is the decision you have come to in the statement you

make and carried out in the letter the U.S. attorney writes to the Chief

of Police. If that were made 6 hours would it then be constitutional?

Mr. CLARK: I think the question would be essentially the same. It

would be a matter of degree.

The CHAIRMAN. Thank you, I did not mean to interrupt, Senator.

Senator DOMINICK. It would be unconstitutional?

Mr. CLARK. It could be. I am not saying in my judgment this bill,

if it became law, would be unconstitutional and I certainly would hope

it would not be. I believe it is most important that the police have

an opportunity to question.

I think we risk quite a bit getting into it without a full understanding of all the preliminary problems with interrogation.

Senator DOMINICK. I gather, Mr. Chairman, we are going to have

time for Chief Layton?

The CHAIRMAN. I have been advised, for the information of the

other committee members, we are operating under unanimous consent
CRIME IN THE DISTRICT OF COLUMBIA 511

agreement, and we are in session. There was an objection to any meeting afterward, and an objection has been lodged as to any committee meetings so I would hope that we might conclude with the present

witnesses and then we again may be required, because of the objections

that have 'been raised, to ask Chief Layton to return earlier next week.

Any further questions?

Senator DOMINICK. No further questions.

The CHAIRMAN. Senator Tydings.

Senator TYDINGS. I just wanted to see if I got the thrust of your

testimony this morning. As I understand that your primary concern

in this matter is to give assistance to the Police Department by giving

them the greatest amount of flexibility in the conduct of their investicrations.

Your reason for cautioning the committee against legislating in this

area at this time is you held that rather than assisting the police, legislation might conceivably cause a court test. Such a test case involving

one action or arrest under the new law might simply throw more confusion into an area in which the law is already greatly confused.

Administrative procedures, on the other hand, would give the police

more flexibility, with less risk of a judicial test of established police

procedure. Is that a fair statement?

Mr. CLARK. Well, very generally, yes, that is true. The need for

flexibility is to afford an opportunity for, empirical data, we can't

really say today, and the police can't say, how much questioning goes

on in a typical case 'and we might be imposing by statute restrictions

on effective police investigations that would be very difficult for them

to operate efficiently under with their own administrative procedure

which is flexible.

I think empirical data can be obtained and we can learn more.

Senator TYDINGS. It is also my understanding there are presently

being undertaken several large-scale studies in this area by the De-.

partment of Justice, with the assistance of the police department and

by the American Law Institute. There should be within a reasonable

amount of time a great deal more information available as to what

the actual needs of the police are in this area. What you need now

are the data as to the effect of the Mallory rule on police work, correlated data upon which a course of action can be based, facts and information which you do not now have available, is that right?

Mr. CLARK. That is true. I would like to say I have only lived

officially with this problem a few months, but in looking back over

the history it appears to me there has been a very great tendency to

deal with the Mallory problem in terms of theory and abstractions

and we have never gotten down to the hard cases 'and practicalities

of police investigations.

Now in the last 6 months we have worked with the police at great

length and tried to face and understand their practical problems of

investigation and questioning of suspects and we feel that that is

the real way to get to the heart of the problem and that if we establish,

if we can establish a pattern of experience then this Congress can come

much closer to what is needed to perfect this bill.

Senator TYDINGS. 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
512 CRIME IN THE DISTRICT OF COLUMBIA

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 ascertainn the probable effects of the Mallory rule.

Mr. CLARK. That is exactly right and I think it is important to recognize this in the meantime 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..

The CHAIRMAN. I think it is important you emphasize that, I am

sure it is—the view I have, and I am sure other members share it,

we want the streets of Washington to be safe and we want whatever

methods can be devised legislatively or otherwise to see that the

streets are safe. If this does part of the job, fine. I hope we can do

the complete job and in some measure reduce the problems that have

been raised by the Mallory decision.

I would like to have the chief of police back next week. Chief

Layton, we can't hear him this morning but I think this is a step

in the right direction and we ought to go as far as possible.

Senator TYDINGS. It is my understanding from the testimony that

essentially there is nothing which the statute would permit in the field

of police investigation and interrogation which the police could not

do under the letter of July 14, under the administrative procedure.

The administrative procedure, however, has the additional advantage

of according the police more flexibility in their operations, at least in

the area of aggregate time for questioning of a witness.

My question is only to emhpasize the chairman's question which I

think was the most important asked here today, namely, will the police

be able to do all the investigatory work under your letter of July 14,

under the administrative procedures set forth in that letter that they

would be able to do under this proposed legislation which is the

subject of the hearing today?

Mr. ACHESON. Is that addressed to me, sir?

Senator TYDINGS. Yes, sir.

Mr. ACHESON. I believe so, the question of course does not solve the

problem to disagree as to what rule 5 means, and a bill would settle

that question. The answer to the question why we don't prefer the bill

right away is that:we want to see how these procedures work.

The CHAIRMAN. Senator Dominick?

Senator DOMINICK. Just to point out the seriousness of this to the

average person living in the District, I would like to have included in

the record at this time a short box article from the Washington Star

dated July 13, 1965, showing for the 37th consecutive month that

serious crimes have increased sharply every month.

The CHAIRMAN. Without objection it will be included in the record

at this point.

(The article referred to follows:)

[From the Washington Star, July 13, 1965]

SERIOUS CRIME IN THE DISTRICT INCREASES FOR 37TH MONTH

Serious crime in the District increased last month by 26.3 percent over June

1964, police reported today.

It was the 37th consecutive month in which the number of local crimes showed

a rise over the comparable period a year earlier. The June figures brought the

total offenses for the fiscal year to 32,545, an increase of 12.4 percent over the

12 months ending in June 1964.
CRIME IN THE DISTRICT OF COLUMBIA 513

Compared to June 1964, robberies showed the greatest rate increase last month,

rising to 275 from 139, or 97.8 percent. Housebreakings increased by 82 to 644;

grand larcenies by 38 to 147; petty larcenies by 165 to 873; auto theft by 139 to

496; rape by 4 to 15, and aggravated assault by 1 to 246.

Criminal homicide, which dropped from 13 to 11, was the only category to show

a decrease.

The CHAIRMAN. Any further questions of the witness?

Gentlemen, I do appreciate your appearance here this morning, I

think we have come somewhere along the way and I think this letter

will be helpful and of benefit to the police. We will recess and, convene again at a later date.

We hope to move forward quickly there and go into executive session.

(Whereupon, at 1 :20 p.m., the committee adjourned subject to call.)

4

CRIME IN THE DISTRICT OF COLUMBIA

THURSDAY, AUGUST 5, 1965

U.S. SENATE,

( '0311\ EITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D.0 .

The committee met at 10 a.m., pursuant to recess, in room 6226, New

Senate Office Building, Senator Alan Bible (chairman of the committee) presiding.

Present: Senators Bible, Morse, Kennedy of New York, and

Dominick.

Also present: Chester H. Smith staff director; Fred L. McIntyre,

counsel; Robert T. Hall, assistant counsel; and Richard E. Judd,

professional staff member.

The CHAIRMAN. The committee will come to order.

This is the continuation of the hearings on S. 1526 and H.R. 5688.

Our last witness on these bills is the Chief of Police of the Metropolitan

Police Department, Chief Layton. We are very happy to have you

with us today. We are sorry that circumstances developed at our last

hearing that you weren't able to complete your testimony at that time.

Senator MORSE. Mr. Chairman, may I say before the Chief starts

his presentation this morning, that the Senate Labor and Public Welfare Committee is waiting for me downstairs to make a quorum on its

poverty markup. I shall be shuttling back and forth, but every word

that you put into this transcript you may be sure I shall study very

carefully. I am going to see you tomorrow morning, anyway.

The CHAIRMAN. Thank you.

STATEMENT OF CHIEF JOHN B. LAYTON, ACCOMPANIED BY INSPECTOR JERRY V. WILSON, DISTRICT OF COLUMBIA METROPOLITAN

POLICE DEPARTMENT

Chief LAYTON. Thank you Senator.

The CHAIRMAN. Very well. We are happy to see you, sir. You may

proceed.

Chief LAYTON. Thank you, Mr. Chairman.

The CHAIRMAN. Each of us has a prepared statement in front of us.

Chief LAYTON. Mr. Chairman, my appearance today is at your request and with reference to the July 15 statement of the Deputy Attorney General in which he presented to the committee the revised

questioning procedures recommended to the Metropolitan Police

Department by the U.S. attorney the day previous.

However, I should like to take a moment to express through this

committee to the Congress my appreciation for the rapid response to

our requests for additional manpower and equipment to strengthen the

Department.

515
516 CRIME IN THE DISTRICT OF COLUMBIA

The Congress has provided in our 1966 budget the 235 police positions needed to experiment with saturation patrol techniques, the

additional automobiles we requested for investigators, and for establishment of a one-man scout car program, the additional school crossing

guards to relieve police officers, and the immediate expansion of our

two-way footman radio system.

Senator DOMINICK. Mr. Chairman, I wonder if I may interrupt

here.

The CHAIRMAN. Certainly. You may interrupt at any time.

Senator DOMINICK. When you refer to a two-way footman radio

system you are talking about two patrolmen on a beat with a radio

interchange through a walkie-talkie or some system of that kind.

Chief LAYTON. No, Senator the operation of this is primarily between a precinct station, base radio station, and the footman on the

beat.

In other words, in each of the precincts that we have equipment

now we have 10 footman radios. This means that each 1 of 10 footman on the beat carry a radio which puts him in communication with

the base station at the precinct station house, so that they can be called,

can be directed to happenings on their beat, calls for service. They

can in turn call the precinct station if they should discover premises

open and need additional help to search the premises, or if they should

get into some difficulty and find a situation developing to require the

need for more police help.

Senator DOMINICK. And this is in addition to your patrol cars?

Chief LAYTON. That is correct, sir.

Senator DO1VIINICK. Thank you.

Chief LAyroisr. We have now four precincts equipped and with the

additional funds that were made available during this coming year

we will be able to equip five additional precincts and we hope to

complete that and equip the other five early next year.

Senator DO1VIINICK. Thank you.

Chief LAYTON. Although I was disappointed that our Plannino•

b

and

Development Bureau and computer proposals were not included,I am

hopeful that we may be able to resubmit these programs in the 1966

supplemental, with sufficient justification to convince the Congress

of the extremely, high potential value of these programs.

The CHAIRMA.N. At that point, Chief, are you making a submission

of these programs that were denied in the regulation District of Columbia appropriation?

Chief LAYTON. Yes, sir.

The CHAIRMAN. Is that being made?

Chief LAYTON. Yes, Mr. Chairman. I have discussed this with the

Commissioners. They are receptive to this and our Budget Office also is picking this up and it will be included in the supplemental.

The CHAIRMAN. Because I am advised that before we complete this

session of the Congress there will be, as usual, a final supplemental bill,

and what you are saying is that you are going to make your presentation to have these items included in the supplemental appropriation

which were previously denied in the regular appropriation bill a part

of the last supplemental?

Chief LAYTON. That is correct, Mr. Chairman.
CRIME IN THE DISTRICT OF COLUMBIA 517

The CHAIRMAN. Roughly, what is the amount involved in this particular program?

Chief LAYTON. $214,000 approximately, Mr. Chairman.

The CHAIRMAN. Why is this so important in strengthening the arm

and hands of the police?

Chief LAYTON. On the one hand, we feel that the volume of crime

here is such that we need the procedures that we see in computer

processing, both to store information and to retrieve it quickly. We

feel that this will be very useful in assigning of our manpower, determining quickly where the critical areas are, and also many other

procedures, the checking of records, wanted notices, warrants, automobile records, and even to the extent of storing and retrieving information relative to the identity and modus operandi of members of the

criminal element in order to identify suspects.

The CHAIRMAN. IS this the first-year cost?

Chief LAYTON. Yes, sir.

The CHAIRMAN. The $214,000?

Chief LAYTON. Yes, Mr. Chairman • this is the first-year cost.

The CHAIRMAN. Then there is a continuing cost of a lesser amount?

Chief LAYTON. Yes. There would be probably rental equipment,

rental expenses, in connection with it that would be continuing costs.

The CHAIRMAN. I, for one, as a member of the Appropriations Committee, can assure you I will certainly take an added interest in this

item. I am sorry it was lost in the regular budget, but there is another chance within a short time of saving this item for you, and I hope

we can do it.

Chief LAYTON. Thank you, Mr. Chairman. I am hopeful, too, that,

the Congress will give early approval to the proposed overtime legislation, which not only is a factor in police morale, but which is sorely

needed to provide a source of manpower for large details of polic&'nen

to special events and emergencies.

The CHAIRMAN. As I think you probably know, we have had a

hearing on the bills for overtime pay. It is on our executive agenda

today. If we do have a sufficient membership here to constitute a

quorum so we can proceed in executive session, this is one of the items

that we will consider.

Chief LAYTON. Thank you, Mr. Chairman.

Additionally, we have been in consultation and working closely

with the staff agencies of the District government in working out proposals which we hope will provide recruiting incentives to enable us

to meet and maintain the strength authorized by the Congress.

The CHAIRMAN. What is your strength today, Chief?

Chief LAYTON. Our current strength is 2,905 members of the force.

The CHAIRMAN. And your authorized strength is 3,000.

Chief LAYTON. 3,000; yes, sir.

The CHAIRMAN. You are able to recruit how many men per year?

You testified to this before, but just to bring it up to date.

Chief LAYTON. Yes. We have recruited as many as 400 men in a

year. As I have testified before, our average loss in separations from

the Department through retirements and resignations is about 20 per

month. It so happens that during the month of July and so far this

month, just a little over a month, we have had a fairly large number

of separations.
518 CRIME IN THE DISTRICT OF COLUMBIA

Since the 1st of July we have lost 48 men, 23 resignations and 25

retirements, and during that same period we have been able to appoint

41 men.

I am advised that we have 12 more applicants who we are ready to

appoint, and we have 226 applications under investigation.

Now, we won't get all of those 226, of course. We do lose quite a

large percentage of them along the way, but I did take notice, and I

thought it would be interesting to this committee, Mr. Chairman, that

it so happens during the past month we have had a larger than usual

loss from the Department.

The CHAIRMAN. What are the reasons for the separations? I am

not concerned with the retirements, but I think you said you had 23

resignations. Why are these people leaving the police force? Is the

pay inadequate, or the retirement inadequate, or the work too hard or

too long hours, or too difficult?

Chief LAYTON. As to some of the reasons, Mr. Chairman, that are

assigned for leaving the force, in some cases it is to take other employment. I am sure from the inquiries that we make of men leaving the

Department some of them are not happy with the necessity in the

Police Department of working three tours of duty, working around

the clock.

We do have some cases where men find that living costs here in the

District are higher and their salary then is not as attractive as it looked

to them before they came here.

Also, one of the items I think that we can mention to your committee is that one of the incentives that we hope to obtain is that of in- creasing the salary, the beginning salary particularly.

The CHAIRMAN. Your beginning is where now? About $6,000?

Chief LAYTON. $6,010; yes, sir.

Thd,CHAIRMAN. Is it correct that this is one of the highest starting

salaries of any of the police forces in the United States? I think you

at one time said San Francisco was the only one ahead of you.

Chief LAYTON. There are several, Mr. Chairman. New York City

on the east coast is above our starting salary.

The CHAIRMAN. HOW much?

Chief LAYTON. They are $7,000.

The CHAIRMAN. They start at $7,000 in New York City?

Chief LAYTON. Above $7,000.

Mr. WILSON. We are in seventh place.

The CHAIRMAN. Seventh place in starting salary?

Chief LAYTON. That is correct. Los Angeles and San Diego on the

west coast in particular, and there are several others, New York in particular on the east. coast., but the standing now, as Inspector Wilson informs me, is about. seventh place in starting salary.

Senator DomiNicK. Chief, I wonder if I may ask one more question

along this line?

Chief LAYTON. Yes, sir.

Senator DOMINICK. You have, I think, you had 2,914.

Chief LAYTON. 2,905 at the present time.

Senator DOMINICK. 2,905. How does that compare on a percentage

basis or how does it compare per thousand of population with other cities?
I

CRIME IN THE DISTRICT OF COLUMBIA 519

Chief LAYTON. We stand, now, first, Senator Dominick. We were

running behind Boston, but we now are in first place in the percentage

of police officers per thousand population.

Senator DOMINICK. Thank you. I think that is significant, Mr.

chairman, because it indicates what a problem we have.

The CHAIRMAN. It certainly is significant.

Senator DOMINICK. We have more policemen per thousand inhabitants than any other city in the country and our crime rate is going

up faster than any other city in the country despite the efforts of the

Police Department.

It strikes me that we really have the need to do something more.

The CHAIRMAN. I couldn't agree more. Of course when you get to

do something, I would like to have you spell out what that is—one, two,

three, four, five.

Senator DOMINICK. We have a bill before us which might help.

The CHAIRMAN. We hope it will. There are a number of bills that

we have that we hope will be of assistance in that area. I have asked

you this question before. I think it is a difficult question to answer.

How many more men do you need? How many more can you use?

You have the training problem and the recruiting problem. When we

read of this increasing rate of rapes, of robberies, of other crime, it

disturbs each and every one of us. I certainly don't envy you in your

position as Chief of Police.

There seems to be a fair amount of crime occurring in the daytime,

which is an amazing thing it seems to me. These are facts ones we

must face. What would happen if we gave you another 1;000 men,

if you could recruit and train them.

Chief LAYTON. Yes, sir. As you have indicated, there are variables

and there are factors that control the matter of recruitment, the matter

of training. There are some limitations there, but it is my feeling, as

I testified before both your committee and the Appropriations Committee here earlier this year, that the addition of police officers and the

availability of sufficient numbers of policemen to place them closely on

the streets, such as we are doing now with the tactical force, must have

a deterrent effect.

In other words, if a policeman is visible in sight, someone who is

inclined to commit a crime is not so likely to do it. The real problem.

is obtaining a sufficient number of men and spreading them throughout the city. If you don't mind my taking the time 

The CHAIRMAN. I wish you would. I mean this is Very important 

Chief LAYTON. During the latter part of July, for instance, we actually got the tactical force in operation on the 20th of July and for

the last 12 days of July we see an effect from the effort that is being

put here.

Now, of course with the limitations that have already been referred

to we settled on the figure of 235 positions. We have used those men

available in particular areas, the areas of high crime incidence, and

during the hours of the day. During those hours of the day and in

those areas of the city where these men have been deployed we have

seen a decline in the number of street cases and in the number of robbery cases.
520 CRIME IN THE DISTRICT OF COLUMBIA

I have taken a preliminary look at our preliminary statistics. We don't yet have our final figures on the number of cases during the month

of July. Our part 1 crimes are going to be up again for the month of

July, despite the fact that -lye have had the tactical force in effect.

The CHAIRMAN. Part 1 is again what for the record?

Chief LAYTON. Homicide, robbery, rape, auto theft, grand larceny,.

and housebreaking.

The CHAIRMAN. They are going to be up again for the month of

July as compared with the month of July last vear.

Chief LAYTON. July of last year, that is correct, and we find that in the robbery category we are going to have a pretty big increase in this, but we have examined the figures and, as you have made reference to,

we have had a number of holdups of business establishments during the daytime even during this latter part of July.

The CHAIRMAN. And you saturated certain areas during that period cif time.

Chief LAYTON. No, sir; we have not during that period of time. We

expect to use this tactical force and move them as the pattern of crime indicates we should to meet the trends, but what we have done so far in the couple of weeks that we have had this force on the street is to

use them during the evening hours which historically have been the high crime areas, and during these hours and in this area of the city we have seen an effect.

We had during the beginning of July a tremendous upsurge in the number of robbery cases and this has carried over. In attempting to evaluate this we have compared the daily rate for the last 12 days of July with the daily rate for the first part of July and we find that in the robbery category for the last 12 days we have a decline of 30 percent

per day.

This is comparing the latter 12 days of the month with the first part of the month, so that we had a big buildup in the robbery category in particular during the early part of the month, and it means that we will have probably about a 50-percent increase for the month of July of 1965 over July of 1964.

The CHAIRMAN. What was that percentage again?

Chief LAYTON. About a 50-percent increase. In the robbery categoryonly that is.

The CHAIRMAN. Fifty-percent increase?

Chief LAYTON. Yes, sir. But as I relate, this appears to be a build--

up that we had the first part of July, the first 18 days of the month.

Senator DOMINICK. Mr. Chairman, I think it might be pertinent to

say at this time that I had a discussion with some of the members of the

FBI the other day and they indicated that the number of crimes cleared, in their terminology, by the Metropolitan Police force was about as high as any place in the country, and as they talk in terms of the clearance they are saying by arrests.

I think it was 49 percent, they said of the crimes have been cleared by arrest, in their terminology. This was a surprise to me because I

thought we did better than that all over the country, but they say no,

we have not, and that this is very high.

Is this pattern of clearance by arrest still going on?

Chief LAYTON. Senator, over a period of time we have had a good record, for many years, in the matter of clearance of crime. We have-
4

CRIME IN THE DISTRICT OF COLUMBIA 521

had a higher percentage than that. We are in the midstreet of a

declining trend in the rate of offenses cleared.

For instance, going back to 1958, our rate of clearance during that

year was 56.8 percent and it has been declining since that time. My

records that I have here, Senator Dominick, only carry me up to 1963,

and our rate in 1963 was 42.4 percent, so that we are in the midstreet of

a declining trend in the rate of clearance.

This is a concern to me also and has been for some time.

The CHAIRMAN. YOU may proceed.

Chief LAYTON. At the request of the Department of Justice, Mr.

Chairman, my staff and I have cooperated, particularly with staff

members of the Office of Criminal Justice in their effort to become

better acquainted with the problems of our Department and the practical aspects and effect of legal decisions on police work.

The new policies recommended by the U.S. attorney will provide

relief from the procedures under which we have been operating since

last October. As your committee noted at the July 15 hearing, since

October 1964 our personnel have been under instructions and I quote,

and this is a quotation from the letter of the U.S. attorney:

That persons under arrest are not to be questioned regarding the facts of the

offense following their arrival at precinct or headquarters, until after their

appearance before the magistrate and appointment or retention of counsel.

As to specific aspects of the new policies, I would offer the following

.comments:

As the U.S. attorney notes in his proposal, it has been the general

policy of this Department that persons arrested and questioned regarding crimes shall be clearly warned that they may remain silent and

that any statement made by them may be used as evidence in court.

This proposed condition in the new policy should not pose an insurmountable problem as a general rule in the investigation of criminal

offenses.

Senator DOMINICK. You have been doing that already, I gather.

Chief LAYTON. Yes, Senator, we have.

With reference to the warning that an arrested person may consult

a lawyer, relative, or friend, I would refer to the testimony given your

committee by myself on S. 1526 and to the unanimous opinion of experts to the effect that any attorney contacted by an arrested person

would automatically and immediately advise his client to make no

statement whatever to the police. It has been Department policy that

whenever a defendant requested an opportunity to consult with an

attorney he was given this opportunity, but it is difficult to predict with

any certainty the extent to which arrested persons may make such

requests when their attention is specifically directed to this opportunity by the police prior to questioning the individual regarding a

particular offense.

This requirement seems to me to go beyond the requirement in current court decisions as I understand them and therefore affords greater

protection than provided by such decisions. However, to operate

under an administrative policy in this area until clarifying court decisions are handed down is preferable to the strict requirement of

statutory provisions.

As I reported in my statement on S. 1526, this Department has for

many years made use of third party witnesses to confessions and in

recent times we have taken some sound recordings of confessions.
522 CRIME IN THE DISTRICT OF COLUMBIA

Consequently, I have no objection to further experimentation in the making of sound recordings of questioning whenever reasonably pos- sible. Experimentation under an administrative policy allows flex- ibility not available in a statutory requirement, in order to determine

the feasibilty of such procedures and to determne where problem areas

may develop.

Mr. Acheson points out in his letter that court decisions in our own circuit court of appeals and in other circuits have emphasized the division of view among judges as to what time limitations and other circumstances make questioning permissible under rule 5—A and the

Mallory decision.

From the language of his letter, it seems clear that the U.S. attorney intends the proposed procedures as only an interim provision and I

quote him, "pending legislative or judicial clarification of the law,"

and I, of course, am not in a position to predict whether or not these

procedures will stand the test of interpretations by our court of

appeals.

The lack of consensus in the decisions referred to, in my judgment,

underscores the need for clarifying legislation on the subject.

On the other hand, in view of the length of time this subject has

been under study, the continuing and intensive study being given by

the agencies mentioned in Mr. Acheson's letter, and while I have some

concern and reservation with regard to some of the provisions, I would

say to your committee, Mr. Chairman, that the overall effect of the

recommended procedures would appear to be an improvement over

these under which we have operated since last October.

The CHAIRMAN. Thank you, Chief. I am wondering if any comparison has been made as to the percentage of police officers to population in the District of Columbia with the surrounding area.

After all, it is very difficult to separate the District of Columbia

proper from the metropolitan area, as we are all aware, because it does

spill into Maryland on the north and to Virginia on the south, and I

don't know whether any comparison has been made as to the number of police officers used here in downtown Washington as compared with

those in the metropolitan area, over in Arlington, or Alexandria, Falls

Church, Silver Spring, Bethesda, and the outlying areas.

Chief LAYTON. I don't have those figures with me, Mr. Chairman.

I will be glad to get them and submit them to your committee.

(The information referred to follows:)

Washington metropolitan area jurisdictions, police employees, Dec. 31, 1964

Estimated Full-time Employees Jurisdiction population police

employees 1

per 1,000

population 1

Montgomery County 410,234 441 1.1 Prince Georges County 358,448 325 .9 Alexandria 117,972 158 1.3 Arlington County 184, 736 230 1.2 Fairfax County 324,197 253 .8 District of Columbia 808,000 3, 113 3.9

1 Full-time police employees, including civilians, as of Dec. 31, 1964.

Source: Federal Bureau of Investigation.
I

CRIME IN THE DISTRICT OF COLUMBIA 523

I would say from general observation that the percentage that you

refer to, the number of police officers to 1,000 population, is lower in

the surrounding areas than in the District of Columbia.

The CHAIRMAN. What are the incidences of crime there on a comparable basis? You say, if I understand you correctly, that there

has been an alarming 50-percent increase in robberies—your statistics

will show this when they are released—in July 1965 compared to

July 1964.

What would be the situation in the outlying Virginia metropolitan

communities and in the Maryland outlying communities? In reading the papers and listening to the television and radio I think we are

very well aware they are having a lot of crime problems there as well.

How do they compare percentagewise with, the percentage of crimes

here in the District of Columbia?

Chief LAYTON. The one jurisdiction that has a very favorable picture is Arlington, Va. They, I think in the last year, had a slight

decline. In Montgomery County the crimes against property in

particular in Montgomery County have increased at a very sizable

rate.

If I recall correctly, I think I recall seeing figures of 50-percent

increase in property crimes. This would be housebreaking, thefts of

property, and this sort of thing. They do not have the high percentage or high rate of offenses against the person that we have in the

District. This would be assaults and robberies, cases where there is

personal contact. I can't give you from recollection just what the

picture is in Prince Georges County. There has been some increase,

but this we can also submit to your committee, Mr. Chairman.

(The information referred to follows:)

-Washington metropolitan area jurisdictions, offense rates, calendar year 1964

Jurisdiction

Estimated

population

1964 offenses

per 100,000

population 1

Montgomery County 410,234 1, 265. 1

Prince Georges County 358,448 2, 211. 5

Alexandria 117,972 1, 790. 3

Arlington 184, 736 1, 555. 7

Fairfax County 324, 197 1, 070. 0

District of Columbia 808,000 2,838. 1

1 Crime index offenses: includes murder, nonnegligent manslaughter, forcible rape, robbery, aggravated

assault, burglary, larceny ($50 and over), and auto theft.

Source: Federal Bureau of Investigation.

The CHAIRMAN. I think it might be helpful because we have to look

at this almost as a unit, as an area I guess of 2.3 million people now,

maybe more than that.

Do we have court cases in the outlying areas, Montgomery County,

Prince Georges County, or in the Virginia communities, that are comparable to the restrictions of the Mallory decision?

Do they follow that, or do they follow some other administration

of confessions in those areas?

Chief LAYTON. I am sure, Mr. Chairman, that the effect of the

Mallory rule which, as you know, is an interpretation of rule 5—A of

the Federal rules of procedure, has not become as critically applicable
524 CRIME IN THE DISTRICT OF COLUMBIA

to the State jurisdictions, including the surrounding jurisdictions, as

they are here in the District of Columbia where all of our felony cases,

all of our serious crime cases, do go through the Federal courts and are

subject to the Federal rules of procedure.

The CHAIRMAN. Yes; I recognize that distinction and I did not

know, whether or not the Maryland courts as a State court system

followed the Mallory decision or not, because some State courts have,

even though they are not Federal courts.

Chief LAYTON. I think there is some recognition of this, Mr. Chairman, and some decisions I am sure that have taken this into account,

but I am sure it is not as applicable and not as critical in the State

courts as it has been interpreted here by our circuit court of appeals.

The CHAIRMAN. Thank you, Chief. I have no further questions.

If you have anything else that you want to tell this committee as to how

this committee legislationwise can be of some assistance to you or

verbal assistance to you, certainly don't hesitate to speak up if there

are any further observations you might have to make.

Is there anything further that this committee can do as a legislative

committee? We are not an appropriations committee.

Chief LAYTON. Yes, sir.

The CHAIRMAN. We are a legislative committee.

Chief LAYTON. I did appear before your committee, Mr. Chairman, as you know, sometime earlier and testified specifically on the

various sections of the proposed bills that were before your committee

and I would just emphasize that those views presented then are my

views yet. I feel strongly that there is a need for an opportunity to

talk to defendants, that is, an opportunity for police officers to talk to

defendants, to clarify the facts of a case.

We have cases many times, and we have cases that can be cited and

have been cited in the past, where the opportunity to talk to an arrested person has clarified an accusation to the point where it was determined that the suspect or the arrested person was not in fact

guilty of the crime which had been alleged, sometimes by a complainingwitness who had identified him or in other ways he had been connected originally with the crime.

In addition to that, while we do and must operate on the proposition

that arrests can be made only on probable cause to believe that a person

has committed an offense, this probable cause does not always satisfy

the requirements for proof of guilt beyond a reasonable doubt and we

know from past experience that this kind of clarification can be obtained during a period of proper questioning and an opportunity to

discuss the facts and the evidence with an arrested person.

There is a need for this if we are to be effective in attempting to

control the serious crime problem we have in the District of Columbia.

The CHAIRMAN. Thank you Chief. I hope this committee can be of

some help in that legislative clarification. This is not an easy problem,

as we well know. We are also very well aware of the American Law

Institute study which made some type of recommendation, and as a

lawyer and as a former Attorney General I know how difficult it is to

bring a consensus particularly among lawyers and jurists.

I don't know Whether we are talking in ranges of next January or

February, or a year from then, but knowing of this difficult field—how

hard it is to bring legal minds together in agreement and writing a

statute—we must take some action as a legislative committee.
CRIME IN THE DISTRICT OF COLUMBIA 525

However, we have the responsibility to make the streets of Washington safe and I think it is just that simple and I think we will do

everything we can to try to do it wherever we can.

Senator DOMINICK. Mr. Chairman?

The CHAIRMAN. The Senator from Colorado.

Senator DOMINICK. I just want to comment on your last statement

that even Santa Claus, I think, will be coming more often where we will

get an agreed decision from the ALT or a group of lawyers on the

exact wording on a change in the Mallory rule.

It just seems to me, in view of the evidence that we have had not

only in the newspapers and radio nad television, but the detailed evidence from the Chief, that it is imperative that we take some action.

'Chief, I wanted to ask you this: I gather from your statement

that this administrative procedure of having at least 3 hours over a 24-

hour period is better than the situation that you had in October, even

though it may not be perfect for you.

Do you feel that this 3 hours out of a total of 24 is more helpful than

the 6-hour limitation that is in the bill because of the flexibility?

Chief LAYTON. Yes, Senator. I do feel that because of the flexibility there that it would be more helpful. I don't interpret Mr.

Acheson's letter to mean that we have 3 hours during a 24-hour period.

We still will have to be bound by the Federal rules; that is, a prompt

presentment.

Senator DOMINICK. Yes; I understand that. This is a maximum

limitation.

Chief LAYTON. Yes, sir. The flexibility is the thing that makes the

3 hours attractive over the 6-hour period for the reason that there are

occasions when an individual is identified sufficiently and there is sufficient probable cause even to justify the issuance of a warrant.

This person may be arrested at a time when the officer most familiar

with the case is not readily available. His arrest would be effected and

if the time began running from that time on there would be some

time that would be lost, that would not be available to us for proper

interrogation.

Senator DOMINICK. Then a change in the bill to conform to this administrative procedure you think would be helpful?

Chief LAYTON. I certainly do, Senator.

Senator DOMINICK. We have taken up quite a few other matters in

the bill itself. Are there any matters that are apparent to you which

would be of assistance to you in clearing up this crime situation which.

are not in the bill at the present time—additional punishments, or additional criminal action, or changes in existing statutes that aren't dealt

with in this legislation?

Is there anything that leaps into your mind that has been left out

of the bill?

Chief LAYTON. I would refer back to the testimony that I gave on

material witnesses, Senator Dominick, and I prefer the language of

the House bill over that of the Senate bill because I think it provides

for those times and places where a material witness would be found

outside of the court proceeding.

Senator DOMINICK. I don't blame you for wanting it, Chief, but I

think there is a good indication it is unconstitutional. That would

make it difficult here to write into law.
526 CRIME IN THE DISTRICT OF COLUMBIA

Chief LAYTON. It certainly would. I have said before that those

areas where we have a constitutional question, that naturally we recognize as controlling.

Senator DOMINICK. But other than the material witness you think

that the bill covers at least a good number of the sore spots by which

you are affected.

Chief LAYTON. Yes, Senator. The effort to obtain an allowable

period of time during which persons who are arrested on probable

cause for a criminal offense can be questioned in my judgment would

be helpful. I have given testimony here this morning and I did

previously on the section and particularly the statutory requirement

that the defendant be advised by the police that he may call an attorney has the real possibility of precluding the obtaining of any admissions, and this sort of thing because it is putting him on notice at

that stage that he has this opportunity, and, as I have indicated, in

my judgment at least, and as I understand the decisions that have been

brought to my attention, this goes somewhat beyond the decisions that

we have at the present time.

Senator DOMINICK. Thank you, Chief.

The CHAIRMAN. The Senator from Oregon.

Senator MORSE. Mr. Chairman, I am not going to ask any questions

this morning. This is a matter we will discuss in executive session

and on the floor of the Senate at great length. The Chief—and I have

an exceedingly high regard for him, as he knows—and I simply differ,

as I differ now with the Attorney General of the United States, and

the Deputy Attorney General of the United States, and the U.S. attorney for the District of Columbia, in regard to the handling of this issue

as to police powers prior to a preliminary hearing.

In my judgment everything that the Attorney General of the United

States, and the Deputy Attorney General of the United States, and the

U.S. district attorney, and the Chief himself have said in regard to

this matter cries out loud for legislation and not for administrative

procedures. There is the admission throughout their statements that

they seriously question the constitutionality of their procedure.

To me it is shocking that people entrusted with the sovereign responsibility of law enforcement should prefer administrative procedures

in lieu of legislation when they have serious question as to whether

or not their procedures would be constitutional if put into legislation.

I have told the chairman that I am willing to cooperate in voting

out legislation determined by the majority of this committee. I shall

be no party to giving any support to the administrative processes that

the Attorney General of the United States, the Deputy Attorney

General of the United States, and the U.S. attorney, and the Chief

of Police, and any others connected with law enforcement in the

District advocate by way of administrative procedures and I shall

discuss it at great lengths in the days ahead on the floor of the Senate.

I announced last night in the Senate that I intended to analyze the

position of the Attorney General of the United States in his letter

exchange with Judge Bazelon, a philosophy in regard to law enforcement that simply shocks me. To think that we have an Attorney

General of the United States that is willing to waive precious rights

of individuals in connection with law enforcement, as he obviously is,

is just beyond my power of comprehension.
CRIME IN THE DISTRICT OF COLUMBIA 527

Senator DOMINICK. Mr. Chairman, before this is closed I would like

to include in the record, if I may, an editorial from the Rocky Mountain News of May 31, 1965, entitled "To Keep the Balance True."

The CHAIRMAN. Without objection the editorial of the Rocky

Mountain News will be made a part of the record.

(The information referred to follows:)

[From the Rocky Mountain News, May 31, 1965]

To KEEP THE BALANCE TRUE

Unless a trend started by the Supreme Court's Mallory decision of 1957 is

reversed, we are close to the time when police will not be able to make any use

of a confession involving clandestine crime.

The most recent ruling is by the Third Circuit Court of Appeals—the court

level second only to the Supreme Court itself.

The appeals court has just overturned the conviction of two men accused

of killing a Newark, N.J., policeman while they were trying to rob a tavern.

It said the police before questioning the pair had not advised them of their

right to a lawyer or their right to remain silent.

The appeals court went three steps beyond any previous Supreme Court

ruling.

It said the suspects did not have to request counsel, that they should have

been furnished counsel if they could not pay and that such a defense could be

raised on appeal even if not raised at the trial.

If the Supreme Court permits this to stand, it would nail down the right of

any arrested person to see his lawyer before the police question him.

Police believe this will end confessions. This seems a reasonable conclusion for

any lawyer worth his salt certainly would advise a client arrested in an unsolved

crime to keep his mouth shut.

Police contend there are many crimes where there are neither witnesses nor

fingerprints and that questioning of logical suspects is the only practical route

toward solving them.

Certainly there would seem to be a place in crime investigation for proper

police questioning of suspects.

Justice Cardozo, one of the Supreme Court liberals in the Holmes-BrandeisStone-Cardozo era, in an opinion once said:

"Justice, though due the accused, is due to the accuser also. The concept of

fairness must not be strained till it is narrowed to a filament. We are to keep

the balance true."

"To keep the balance true," police rights—which are so necessary for public

protection—need to be set out just as clearly as police limitations have been.

The CHAIRMAN. The Senator from New York.

Senator KENNEDY. Mr. Chairman, I just have a few questions. As

I understood, Chief, you said before I came in that crime in the District of Columbia had gone up 50 percent in July over what it had

been in the prior year.

Chief LAYTON. In one category, Senator. The category that I was

referring to was that of robbery, the offense of robbery, and when

our figures are completely tabulated and released they will show an

increase in the part 1 offenses for July of 1965 over 1964.

The sharpest rise is in the category of robbery and it appears now

from our preliminary figures that for July of 1965 over July of 1964

we will have a 50-percent increase in the number of robbery cases.

Senator KENNEDY. What percentage of those who are involved in

robbery and these other criminal offenses are repeaters who have been

in difficulty with the law on prior occasions or have been convicted on

prior occasions ? First let's take the percentage of those who have

been convicted on prior occasions.
528 CRIME IN THE DISTRICT OF COLUMBIA

Chief LAYTON. There is a pretty high percentage of repeaters,

Senator. I don't know that I have the figures with me this morning,

but we do know from general experience that the percentage of repeaters in this category of crime is pretty high.

For instance, oh, a year ago I remember a group of men who were

holding up business establishments at that time, grocery stores and

liquor stores in particular, and some others. A group of them were

arrested and charged and then we had another series, another rash, of

the same type of offenses before they were tried, and they were identified separately and apart from the previous offenses, but there were

a number of the same group, and then we even had some of them that

were arrested again later for another series of similar cases.

Senator KENNEDY. I had understood here in the District of Columbia that of those who are responsible for crimes, approximately 75

percent of them had been convicted on previous occasions. Would

that appear to be about right?

Chief LAYTON. That figure, Senator, sounds to me like a figure that

came from the penal institution and my recollection is that that is

approximately correct, that the people who are committed to the

penal institutions runs about 75 percent with previous convictions.

'Senator KENNEDY. I wonder in view of that whether we should

place greater emphasis on the rehabilitation and probation programs

that exist in the District of Columbia. I think that perhaps we need

more emphasis on the procedures that we have in the District of Columbia for checking on those who are convicted of a crime, on what

happens to them, and what kind of lives they lead.

Chief LAYTON. I believe there has been testimony, Senator, on the

large workload that the probation and parole officers have here in the

District of Columbia and I think this certainly is a factor.

Senator KENNEDY. I am also wondering whether we shouldn't place

greater emphasis on the training of probation officers, whether that

also wouldn't be of great help to the police in the effort that you are

making. If 75 percent of the people who are convicted of crime have

been convicted before and they go to an institution and they come out

and start all over again, it seems to me that somewhere our process of

law and justice is breaking down.

One of the reasons that people are incarcerated is to try to train

them so that they Will not return to crime. If 75 percent of them do,

return to crime it means that we are not really doing what we should

be doing in dealing with these problems.

Senator Morse's committee is going to go into this whole area when

it meets; perhaps we ought to take a look at that. Would you fed

that that is an area in which you could use some help in meeting your

responsibility?

Chief LAYTON. I would feel, Senator, that with the heavy workload

that the probation officers have, and I am not sufficiently familiar to.

know just what type of training they have to give you a satisfactory

answer on that, but certainly the workload that they have with the

large number of cases I think makes it difficult for them to do a good

job.

Senator KENNEDY. Is there any central authority for the probation

officers here in the District of Columbia?
CRIME IN THE DISTRICT OF COLUMBIA 529

Chief LAYTON. We have two separate forces really, one under the

district court and the other from the court of general sessions, the

District probation office, and the other is the Federal system under the

District court.

Senator KENNEDY. Is there one central authority for both of them,

or for either one of them?

Chief LAYTON. No, sir. One is controlled from the District of

Columbia and the other through the Federal system. Mr. Garrett is

the chief probation officer in the District court.

Senator KENNEDY. Do you know if they have any special training,

either group of probation officers, and do you know how long that

training is?

Chief LAYTON. I am not able to tell you what their training consists of, no sir.

Senator 

no,

Do you work closely with the probation officers?

Chief LAYTON. Yes, sir our personnel do work closely with them.

We have occasion to consult with them from time to time. There are

occasions:of course, when some of the probationers get into difficulty,

are identified in crimes. We have a good working relation with them,

yes_, sir.

Senator KENNEDY. Perhaps we could look at that at another time

with your committee, Senator Morse. I also want to join with Senator

Morse in saying I have the greatest respect for what you are doing,

and what you are attempting to do here in the District of Columbia.

Whatever help this member of the committee can be of to you I would

like to assist.

Chief LAYTON. Thank you, Senator.

The CHAIRMAN. I thank the Senator from New York. Chief, I have

one question that I overlooked. It is rather collateral to the problem

at hand, but either yesterday or the day before yesterday we had two

bills before us to increase the staffing of the court of general sessions,

one that I introduced that increased it by three judges, one that the

Senator from Oregon introduced that increased it by five judges.

I think they made a very fine case for the higher figure of five.

Senator Morse's bill provided for the creation of a traffic court and it

seemed to me that that was a good idea.

Dining the course of the questioning it was indicated that they

should have some of these traffic courts at night.

I read from the record, from the testimony of Mr. Miller, as to the

question of releasing police officers to come into the traffic court, I

presume primarily as witnesses and some indication was made that

in preliminary discussions on this subject you may have had some

reservations as to releasing police officers during the hours, say, 6 to 9

o'clock in the evening, or whatever the range might be for holding a

night court. Is that correct? They are needed on the streets because

of this crime probleem.

I did indicate that I would ask you for an expression on that. It is

rather collateral to the problem we have, and I am convinced that we

should give the court of general sessions more manpower and I think

the idea of traffic court is excellent.

My only question of you is your views as to whether or not having

a night traffic court, either on a mandatory basis or in the discretion
530 CRIME IN THE DISTRICT OF COLUMBIA

of the chief judge of the court of general sessions, would take valuable

police manpower off the streets during these evening hours?

Chief LAYTON. Mr. Chairman, the hours suggested, 6 to 9 or 7 to 9,

would be during the critical crime period for us, which has been

operating from about 6 p.m. to 2 a.m. or 7 p.m. to 3 a.m. These are

the high crime areas. I would be sympathetic to the opportunity

granted to citizens to come into court to contest a case that they

thought they were justified in doing, but it is true that this period

of time would be a critical time for the Police Department so far as

the serious crime is concerned in the District.

The CHAIRMAN. Would it be your feeling that it would be better at

least as we initiate and move in this field to leave that discretion to the

holding of night courts with the chief judge rather than making it

mandatory in a statute?

Which would be your preference? I assume you would rather have

it discretionary. Personally, I think Senator Morse's bill is an excellent one.

Chief LAYTON. My personal reaction, Mr. Chairman, would be that

it might be better to leave it discretionary with the chief judge. I

would feel that he would certainly take notice of the. committee's wishes

in that respect, and he has taken some steps already in the matter of

treatment of traffic offenses, and it might be better to leave it discretionary with the chief judge. 

The CHAIRMAN. It is something of course the committee will consider, but I did say that I would get your viewpoint.

The Senator from Oregon.

Senator MORSE. Just a question or two.

The CHAIRMAN. Certainly.

Senator MORSE. Chief, it seems to me that we are talking about a

matter of procedure of handling your testifying officers. Night traffic

court does not mean that someone that has received a ticket at 6:30 goes

to traffic court that night, but a night traffic court does give people

who have been ticketed during the day an opportunity to appear before

the court at night.

What about your hours schedule? An officer goes on the beat at

8 o'clock in the morning. He is certainly not on the beat at 7 o'clock

at night.

Chief LAYTON. That. is correct.

Senator MORSE. And, as you know, I am a strong advocate of overtime pay for policemen when they are called to carry out their official

duties during off hours. The system that.. I am advocating is very

common in many of the large metropolitan cities of this country

where you have night courts at the convenience of the citizenry. It is

a great loss to the citizen, sometimes results in his losing his job, when

he has to be called into court on a traffic ticket during working hours,

and I think it is true that many times people pay it when they think

they could really win their case if they went to court. I don't

think that is very fair to citizens to put them in that position, so what

I ha ve in mind is what I think you will find is a scheduling of the

handling of your ticket so that. at a given night court, we will say

tonifrht only those tickets that have been, say. handled up until 2 p.m.

or 3 p.m. that day, and precediP days. would be brourrht before the

judge, and anything after a fixed hour, 2 p.m. or 3 p.m., can go to court
CRIME IN THE DISTRICT OF COLUMBIA 531

the next day, or the next night, depending- upon the individual's

schedule.

That isn't going to take anyone off the beat that is on the beat

the night that the court meets.

Now, you will have a problem with the individual who gets a

ticket at 8 o'clock tonight and wants to go to court tomorrow night,

say at 7 o'clock, but it seems to me that what you have to work out

procedurally is what we call a shift force or shift squad.

You are going to know in advance what officers are going to be

required to testify at 7 o'clock tomorrow night and your shift squad

can serve as a substitute for those officers for that occasion.

Lastly let me say it is a question of a shortage of manpower, you

have no trouble with the senior Senator from Oregon. Whatever

police manpower we need in order to have an efficient police department in the District of Columbia I am for, but I am also for having

a police department large enough so that the citizens can be adequately and fairly dealt with, and I happen to think that a lot of

injustices accrue to individuals by a denial to them of a night court

in regard to traffic, and I think we ought to try to work out a procedure here whereby the people know that there is going to be that

night court, and subject to the discretion of the judge in arranging

his own calendar. Of course they are not entitled if they get ticketed

this afternoon, necessarily to get to that traffic court tonight if the

judge can't work out such an agenda.

We might very well schedule them into next Monday night, and

if a traffic ticket happens to be assessed during the night then I think

we have to have a police department large enough so that that particular officer can be released to testify before the court, and a substitute

with overtime pay, if he is on regular duty some other time, will take

his shift while he is in court.

The CHAIRMAN. At this point in the hearing record I will insert

President Johnson's crash anticrime program for the District of Columbia as presented to the Senate District Committee by Commissioner

Tobriner on May 13, 1965, and the status of the program as of today,

August 5, 1965.

President Johnson's crash anticrime program for the District of Columbia as

presented to the Senate District Committee by Commissioner Tobriner on May

13, 1965

Appropriation

1965 1966 Later

1. Implementing of saturation patrol techniques 

2. Overtime legislation for police and firemen I 

3. Additional scout cars, additional automobiles for investigators

and establishment of 1-man scout cars 

4. Increase in school-crossing guards and review of all assignments of

police officers to administrative, clerical, and technical duties

5. Establishment of Planning and Development Bureau and applications of computers to police work 

6. Immediate expansion of 2-way radio system for footmen 

7. Early construction of police training facilities 

8. Development of plans for installation of a Police Department

television network 

I Requires legislative as well as appropriation action for 1966 financing.
532 CRIME IN THE DISTRICT OF COLUMBIA

STATUS OF EIGHT-POINT PROGRAM AS OF TODAY, AUGUST 5

1. (As above). This being carried out with 235 officers on a 5-day week

basis.

2. (As above.) Legislation presently before this committee for final consideration.

3. (As above.) Officers will begin this specialized training next Monday,

August 9. Delays were caused by the necessity that equipment be purchased.

Such could not be carried out until approval of the 1966 District of Columbia

appropriations bill. Vehicles will be totally operable by September 15, 1965.

4. (As above.) Additional school-crossing guards will be used starting at the

beginning of the school term this fall. Review of police assignments to bring

about possible reassignment of police officers from administrative, etc., details

to patrol and enforcement work will start before September 30, 1965.

5. (As above.) This item was denied by the District of Columbia Appropriations Subcommittee of the Senate. However, it is included in a suppplemental

request of the District of Columbia government that may come before the Congress in the supplemental budget before adjournment this year.

6. (As above.) Contracts are now being advertised for purchase of these

radios.

7. (As above.) Request for funds is contained in the 1967 District of Columbia budget that will come to the Congress in January 1966. Likewise, the District government's request for a site at the National Training School, being

abandoned by the Department of Justice, is now before the National Capital

Planning Commission. The District government has been unable to get a decision from the Planning Commission.

8. (As above.) Funds contained in the 1967 District of Columbia budget •

coming to Congress in January 1966.

The CHAIRMAN. Any further comments or questions?

The hearing is concluded. We will go into executive session.

(Whereupon, at 11:17 a.m., the hearing was concluded.)

•