Evening star. [volume] (Washington, D.C.) 1854-1972, 1962-11-05
Story of Rule 5 (o)

cedure. S. y.,,.e tE-.*
This is the rule which states that
an arrested suspect must be arraigned
before magistrate without unnecessary
delay, and 1t forms the basis Of what
has come to be known as the Mallory
rule. &
There is one point that is highly
significant. Judge Alexander HoltZoff,
who was secretary of the Advisory Com
mittee, says there was proposal that
Rule 5 (a) should provide for the in
valuation of confessions where there
had been an unnecessary delay in ar
raignment. This was rejected on the
ground that it was too drastic penalty
and would be unfair to- the public. It
was against this background that Con-
greSS permitted Rule 5 (a) to go into
effect 2 y ~
What happened? In 1857 the Su-
preme court did what its advisory Com
n1ittee had refused to do-namely, it
outlawed confessions, no matter how
truthful or voluntary, II there was
an unnecessary delay In arraignrnent.
Would Congress have sanctioned the
rule with this in 1t? We doubt it very
much. 'gs
The Mallory rule was bad enough.
But it has been carried to fantastic
lengths in subsequent appellate deci-
SionS. Now, voluntary confession is
inadmiSSible even If made after the
suspect has been arraigned, after he
has been warned Of his right to remain
silent and after he has had opportunity
to obtain counsel. Five of the nine
judges of the Court of Appeals have
said that such a confession is hope
lessly tainted If the suspect had con-
fesSed earlier during a period OF Illegal
detention. iae
We think this is wrong and grossly
unfair to the public. But it is suggested
on the other side that to alter the
Mallory rule and It's offspring would
be to return to the days Of the in
QUESTION, the third degree and the police
state. This is utter nonsense.
In 1912 one Jarvis Catoe was con-
Z, victed here Of murder. and rape. The;
Court Of Appeals upheld the conviction
and death sentence, although, had the
Mallory rule been in effect at the time,
it would have been necessary to re-
lease Catoe. The opinion was written
by Judge VinSon later to become Chief
Justice of the United States; Judge
Rutledge, who was to serve with dis
tinction on the. Supreme Court, and
Chief Judge Groner. Would anyone
suggest. that these men; In holding that
Catoe's disputed confession was properly
submitted to the jury, were Indifferent
to his rights?
What have some other eminent
turists had to say about the rights of
accused persons and the rights Of the
public? The late Supreme Court Justice
Cardozo, a highly respected liberal, has
said; Justice, though due to the ac-
cuSed, Is due to the accuSer also. The
concept of fairness must not be strained
till it has been narrowed to a filarnent.
We are to keep the balance true" The
late Judge Learned Hand, certainly no
champion Of the star chamber, once
said: 60. ;. The, victim of the crime
must not become a forgotten man. His
rights are much greater than those of
the criminal When the criminal law
ceases to protect the public, it has failed
of its purpose.
The balance, In our Judgment, has
not been kept true in Washington.
The scales of justice have been heavily
weighted against the public and the
victims of crime especially crimes of
violence. Everywhere else in hisscoutntry
confession, If voluntary, can be used
against defendant That used to be,
and still ought to be, the law here.
Since this probably is unattainable,
however, we have advocated legislation
which would provide that confessions
which are otherwise valid should not
be excluded at the trial merely because
of reasonable delay in arraignment.
"A letter appearing elsewhere on this
page contends, quite mistakenly, that
there is no difference between this and
the Mallory rule. There is a great diff
ference. Under the suggested legislation,
which came very close to being en-
acted a few years ago, the police, after
arresting suspect, would have a
reasonable period of time in which to
question him, check his story, etc If
a voluntary confession should be OBJ
tanned in this process 1t could be used
This is prohibited now, and, as result,
there is strong probability that at
least two men, clearly guilty OF recent
murders, soon will be free and walking
the streets Of this city. The comments
of Justice Cardozo and Judge Hand, If
they we're alive, would be interesting.
q.
r II a. EIo