liable under this section, any evidence legally obtained by the Federal Officer will be admissable in a State proceeding if such evidence could have been obtained in accordance with the requirements of this section.

(D) A commission on electronic surveillance shall be created. Its members shall consist of the chief judge of the supreme judicial court, or his appointed representative, who shall be the chairman; the governor, or his appointed representative; the attorney general, or his appointed representative; a representative appointed by the Massachusetts bar association; and a member of the faculty of a Massachusetts law school, to be appointed by the chairman. The commission shall meet at least once every year following the passage of this section and by the end of the fifth year after passage, it shall file a written report to the general court giving its evaluation of how well the provisions of sections 99, 99A and 99B have been carried out in practice, and recommending any changes it believes will improve the functioning of these sections. The commission shall have subpoena power, including the power to inspect all applications and orders under this Act. One year from the date of submission of such report, the commission shall terminate as an official body, unless renewed at that time by act of the general court.

SECTION 2. This act shall take effect ninety days after passage.

Mr. RICHARDSON. Briefly, this legislation begins by the prohibition of both eavesdropping and wiretapping and makes it a crime to violate these provisions of the law, punishable by not more than 5 years of imprisonment or a fine of no more than $10,000, or both. It provides a right of civil action for treble damages against any person who has been damaged by violation of these prohibitations. It then goes on to provide for court orders authorizing eavesdropping or wiretapping for law-enforcement purposes, and here the search-warrant analogy already described by Mr. Martin in his specifications for his legislation on this subject is followed in our own pending bill.

The applicant for a court order must be either a district attorney or the attorney general of the commonwealth. The application mus contain a full and complete statement of the facts and circumstances relied on by the applicant, including but not limited to the crime or crimes involved, the information expected to be obtained, the results of previous investigation which led to the application, the sources of the information leading to the application, unless such sources are confidential. It must state the nature and location of the premises which are to be eavesdropped upon or the wire to be tapped and the person or persons whose conversations are to be overheard or intercepted. It must also state all of the previous applications in the same matter which involve the same premises, facilities, or individuals. It must allege, and this was a point also touched on by Mr. Martin, that other methods of investigation have proven to be or are presumptively inadequate and that there is a reasonable cause to believe that eavesdropping or wiretap will be successful. If the judge is not satisfied that the application substantially complies with these requirements, he may direct the applicant to furnish additional information. If the judge is satisfied, he may enter an ex parte order granting the application but only where there are reasonable grounds to believe that it is necessary to sae a human life, where, in the case of a wiretap, communication facilities themselves are an instrumentality of the crime alleged. where evidence of a felony may thus be obtained, or where the security of the commonwealth or the public safety is endangered. The order would be limited in effect to 60 days, after which it would have to be renewed by the judge. It further would be provided that before any evidence thus obtained could be used, notice would have to be given to

the defendant in order that it could be considered with reference to any possible motion to suppress.

In conclusion, Mr. Chairman and members of the committee, I would like to touch just briefly on the question of Federal versus State authority in this field. It seems to me, most basically, that it should be approached in the recognition that there must necessarily be concurrent responsibility for law enforcement as between the Federal Government and the States and their local subdivisions. It would therefore seem to me to follow that regulation of this subject should contemplate the availability to State and local law enforcement authorities of appropriate court-granted authority to engage in electronic surveillance on essentially the same basis that we now have Federally authorized search warrants and State-authorized warrants. It seems to me, further, that while there should be concurrent jurisdiction and concurrent regulation, this regulation should, as largely as possible, be consistent in approach. Insofar as there is an area available for preemption by the Federal Government, it would seem to me that within that area any exercise of concurrent authority by the States acting under their own legislation should be circumscribed in a manner requiring consistency with the standards set forth in the Federal legislation. But within those limits, it seems to me appropriate that both State and Federal legislation should be enacted and coexist side by side.

For this reason, finally, I believe, that we at the State level should be seeking to enact legislation that does, so far as possible in our own best judgment, safeguard the two major public concerns with which such legislation must be involved; protection, on the one side, of the right of privacy and, the enhancement, on the other, of the efficacy of law enforcement.

Mr. ROGERS. Thank you. Are there any questions?

Mr. McCLORY. Yes. Thank you, Mr. Chairman. I compliment you, Mr. Richardson. I would like to ask your opinion as to the comment that the Attorney General made when he appeared before the committee here, indicating that in those jurisdictions where wiretapping authority was in effect and where wiretaps were utilized that there appeared to be a less effective elimination of organized crime than in those jurisdictions where they did not use wiretaps. Now, you mentioned in one part of your testimony that without the use of the wiretap you could not have secured the conviction of a narcotics ring. How would you appraise the U.S. Attorney General's view of the efficacy of wiretap evidence?

Mr. RICHARDSON. Congressman McClory, I would say as to this there are, it seems to me, two pertinent observations to be made. First of all, as has been pointed out in the brief Mr. Martin referred to in the Berger case, in which I joined with the attorney general of the State of Oregon and with the National District Attorneys Association in urging essentially the position that I have stated here-it is pointed out in this brief, which was in fact written, as Mr. Martin said, by Professor Blakey of the Notre Dame Law School, that it is extremely difficult, indeed virtually impossible, to develop adequate statistical data with respect to the efficacy of electronic surveillance. This is true because of the variables that apply to differing situations.

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These variables are so numerous and so complex that comparison between such distinctions is essentially meaningless.

This leads me to the other half of my comment: One would have to know a lot about what kind of an effort was being conducted to deal with organized crime not only through the utilization of elec tronic surveillance but in other respects also, to be able to make any real judgment as between jurisdictions.

Again, the most significant thing to be said here, as the National Crime Commission report itself makes clear and as I believe virtually anyone who has spent any considerable amount of time dealing with the problem of organized crime would corroborate, law enforcement generally has not been effective against organized crime at all. What we are faced with, therefore, is the necessity for assembling a combination of weapons against it. In my own State, for example, while I can point to an example of electronic surveillance in uncovering a narcotics ring, I could equally point to the fact that no really major racketeer in the Commonwealth has been convicted of anything, in my memory. I have just appointed the assistant director of the National Crime Commission for Organized Crime as the chief of the organized crime unit in my department. I hope with the help of an additional appropriation from the State legislature to be able to make this an effective unit. If I succeed in this, it will be the first time there has ever existed at the State level in the Commonwealth any law enforce ment unit concerned primarily with the problem of organized crime. I say this simply to emphasize that I find persuasive the testimony of people such as the district attorney, Mr. Hogan, of New York. County. I might add that special counsel to Governor Rockefeller of New York, Eliot Lombard, also former counsel to the Special Commis sion on Crime in New York-which largely devoted itself to the problem of organized crime-has said that wiretaps strike right at the heart of the relationship between organized crime and political corruption. His own investigation made extensive use of them. Perhaps. if he hasn't already testified before this committee, he might be a useful witness on this subject, since his experience with it is very wide and very deep. He is the organizer of the so-called Oyster Bay Conferences on Organized Crime.

What it amounts to is that I do not believe one can respond directly to statements about the efficacy of electronic surveillance. I believe one must put substantial weight upon the experience of those law enforcement authorities who have accomplished most, and I think. finally, we must recognize that if this Nation and its States and local authorities are effectively to do anything in this area they must as semble a more effective arsenal of weapons, including this one, than any they have heretofore brought to bear.

Mr. McCLORY. It is true, I gather, from your testimony and from your quotation or reference to the statement of District Attorney Hogan of New York, that organized crime operates in a way which makes it necessarily essential to employ electronic surveillance devices? In other words, these conspirators do not get together in a single room or do their business in face-to-face conversation or written messages, but they employ the telephone, they employ other means for com municating so that you need this type of authority in order to combat. in order to detect, in order to investigate the activities of these characters who are carrying on these activities.

Mr. RICHARDSON. I believe that is an entirely valid statement, Congressman McClory. I would add one other observation: We are in this context talking about a balance of interests as between law enforcement, on the one hand, and the right of privacy, on the other. I served as a law clerk a number of years ago for Judge Learned Hand of the Second Circuit. I also served as a law clerk the following year for Mr. Justice Frankfurter, and if I learned anything from those experiences it is that all hard questions of constitutional law must inevitably require at some point this kind of balancing of competing

considerations.

I noticed just today that Professor Blakey briefly quotes Judge Hand, as having said, "There is no escaping in each situation from balancing the conflicting interests at stake with as detached a temper as we can achieve, in the spirit of liberty." In this instance you refer to the fact that the top bosses in organized crime do not assemble in the same room. If they did assemble in the same room at any time, or any two of them, certainly it would be helpful to law enforcement to have planted a bug in the room in advance. I would not, however, advocate the extension of legal authority to engage in electronic surveillance to that point because I think where trespass is involved, there is a violation of the fourth amendment.

On the other hand, if it were possible technically to overhear the conversation in that room through some device that did not require any trepass on the premises, it would seem to me that that should be regarded as legitimate.

In other words, I think we have here epitomized the kind of balancing of competing claims that seems to me inevitable and necessary in this field.

Mr. McCLORY. It seems to me, Mr. Richardson, that you have provided that sort of balance through the legislation to which you make reference and you have testified in support of in the State of Massachusetts, and that you would recommend to this committee. I would also say that that carries out a further balance, and that is something which this committee is deeply concerned with, and that is the balance between the interests of the law abiding citizens whom we are trying to protect and the criminal elements against whom we are trying to wage an increased attack and against whom we are trying to find new and better weapons for deterring and reducing their extremely damaging influence on society.

Mr. RICHARDSON. I could not agree with you more, Congressman. I would like in that connection, if I may, to take an additional moment to allude to another point which, it seems to me tends, to be overlooked. We often hear quoted Mr. Justice Brandeis on the proposition that the law and the courts can have a powerful educating influence, and this is a point sometimes cited by those who would oppose any form or legally authorized electronic surveillance, on the basis that this is not the kind of example that the Government ought to be setting. They tend, I think, to overlook the other side of that coin, which is that organized crime itself deeply corrodes public confidence in the integrity of Government and in its capacity to protect the citizen and to maintain order. This, indeed, I believe to be the most destructive aspect of organized crime. It operates through the infiltration of law enforcement agencies and their corruption and, through political corruption generally. Such a spectacle also has educational signifi

cance-a negative significance. It seems to me that when we consider the relative interests that are at stake here we must recognize among them the preservation of respect for Government itself. Mr. McCLORY. Thank you

Mr. RAILSBACK. No questions.

Mr. BIESTER. No questions.

Mr. ROGERS. Thank you so much, General Richardson. We appreci

ate your comments.

Mr. RICHARDSON. Thank you.

Mr. ROGERS. Our next witness is Prof. Herman Schwartz who is Professor of Law at the State University of New York at Buffalo. You have submitted a statement which is rather lengthy. I wonder if it would be all right with you to recess until 2 o'clock.

Mr. SCHWARTZ. I am at the pleasure of the committee.

Mr. ROGERS. Let us proceed, then, for about 30 minutes.

Mr. GRUMET. I heard you say that you were planning to recess after this witness is through until 2 o'clock. I assume you are going to do this after this witness is through.

Mr. ROGERS. Yes.

Mr. GRUMET. I assume you will probably recess

Mr. ROGERS. We will start with him and then, if we get through with him, that would be fine. You are to be the next witness. Mr. GRUMET. May I make a statement?

Mr. ROGERS. Would you like to proceed the way I have indicated? Mr. GRUMET. Well, I am planning to get back to New York this

afternoon.

Mr. ROGERS. We will do our best.

Mr. GRUMET. Thank you.

Mr. ROGERS. We will get to you as soon as possible.

Mr. SCHWARTZ. It is a lengthy statement. I would be very happy to answer any questions if this would not in any way cut into the gentleman's plans. I would be willing to accommodate myself to them in some other way if there is a problem. If you want, I am willing to go on at 2 o'clock."

Mr. ROGERS. Would you finish now, Mr. Grumet?

Mr. SCHWARTZ. I have a feeling that the committee may want to ask some questions and I would not like to deny them the opportunity Mr. MCCLORY. May I suggest that we hear Mr. Grumet now, if that is agreeable, and then we recess until 2 o'clock and then hear Mr. Schwartz at 2.

Mr. GRUMET. As a matter of fact, I have my colleague here too, and I am very grateful to Professor Schwartz and the committee for permitting us to do this.

STATEMENT OF JACOB GRUMET, COMMISSIONER, COMMISSION ON INVESTIGATION, STATE OF NEW YORK, N.Y., ACCOMPANIED BY MYLES J. LANE, COMMISSIONER

Mr. GRUMET. We, too, have filed a statement. If you feel we can dispense with the reading in the interest of saving time, I am perfectly willing to do that.

Mr. ROGERS. Go right ahead. We will file the statement for the

record.

(Mr. Grumet's prepared statement follows:)