their duties? It simply undermines their best efforts to enforce the law and protect society. Mr. BRODERICK. Well, of course, on that case, which I am not familiar with, Senator Senator MCCLELLAN. Well, maybe you are not familiar with it, but I am, and I am familiar with the record in it. Mr. BRODERICK. Well, on that case it seems to me that there was superimposed on Miranda something more. There was superimposed Senator MCCLELLAN. Well, every time we get these things something more is imposed. That is what I am talking about. You cannot rely on the traditions and on the precedents of the past any more in the enforcement of criminal law. Everything has something else imposed on it. I do not know where we will find the end of it. I do not know how society is going to protect itself. But, go ahead with your statement. Mr. BRODERICK. Well, in the search and seizure area it seems to me that there are many searches and seizures which may be technically illegal but are not deliberate violations of the fourth amendment, and if other sanctions were available than exclusion in serious cases it seems to me that they could be enforced and that the trial court could have discretion, not to impose exclusion. Mr. BLAKEY. Mr. Broderick, could I explore with you for a moment some of the implications of your suggestion? As you know, this country has experienced varying policies in the area of electronic surveillance over the last 10 or 15 years. Up until June 19 of last year, for example, there was a diversity of policy on the Federal and State level. We are now experiencing, moreover, the consequences of changes in these rules. I wonder if it would be possible, in line with your suggestion, for the Congress to pass a statute setting up an alternative civil remedy for past violations of electronic surveillance standards, so that the defendant could be given a civil remedy rather than the suppression remedy. New York, for example, would not have to experience what it did in the Berger case,1 when it operated under a New York statute which was thought to be constitutional. It then indicted and tried an individual, but suddenly found in Berger that what it had done was unconstitutional, and the use of electronic surveillance pursuant to New York law was illegal. I am sure you are aware of the situation involving Leonard Grossman, who was a New York City policeman, and who was overheard plotting murder of a Federal informer. The police department in New York is now litigating whether Mr. Grossman will be reinstated, because the evidence indicating that he participated in the murder was illegally obtained, since the Berger case controlled the situation. I wonder if in line with your suggestion it would be possible for the Congress to set up a civil remedy in this situation and thus make legal, for the purposes of admissibility, that which happened prior to June 19? Mr. BRODERICK. I do not think I would be prepared to suggest that Congress could do something now which would retroactively legalize something which was illegal at the time. What I am suggesting is that there should be a pattern of alternative remedies available which 1 388 U.S. 41 (1967). 2 People v. Grossmon, 283 N.Y.S. 2d 12, 20 N.Y. 2d 346, 229 W.E. 2d 589 (1967). would really be remedies which are much broader than the present remedy or the present sanction of exclusion. Exclusion works only in the case that comes before the court. If somebody, if some law enforcement officer searches my house without a warrant and then does nothing about it, does not arrest me or does not bring charges against me, or does not seize evidence, there is nothing I can do about it as a practical matter. It is only when he acts on the illegal search that the court has a chance to review the thing, and then the only sanction available to the court is to suppress whatever evidence he seized. Now, what I am suggesting is that there be consideration given to a pattern of remedies which would apply not only with respect to cases that come into court, but with respect to all cases, remedies for illegal search, liquidated money damages for the victim of the search, which would be paid not by an individual police officer, but by the agency which employs him, because this would encourage the agency to maintain proper standards of search. Senator MCCLELLAN. Well, would you make the city, the municipality, liable for the illegal search by a police officer? Mr. BRODERICK. I would in the case Senator MCCLELLAN. And make the taxpayers liable for it? Mr. BRODERICK. In a case where he is acting, you know, within the scope of his duties Senator MCCLELLAN. Well, if an officer goes out and acts beyond the law, knowing that he has no right to do it, he is not acting within the scope of his duty. Why should the taxpayer be penalized? Mr. BRODERICK. Well, because, Senator, the fact of the matter is that for years and years and years, police officers made searches without warrants even though this was in violation of the law because at that time there was no remedy at all. Even exclusion was not applied to the States, so there was no remedy at all, and even though the law required a search warrant before a search, no search warrant was secured. Now, I certainly would not be prepared to say that he was acting outside of the scope of his employment. He was doing what he thought served the purpose of the law Senator MCCLELLAN. Well, it has been established now that that is illegal and, of course, it was then. Mr. BRODERICK. That is right. Senator MCCLELLAN. Should the taxpayers be held responsible? Mr. BRODERICK. I think they should, because I think the taxpayers should be responsible for the quality of the people who serve them as police officers Senator MCCLELLAN. I just want to get your reaction. Mr. BRODERICK (continuing). And for the behavior of those police officers, and I think if this burden is put on the taxpayer you are going to see fairly rigid policies of what is right and what is wrong in this area will be laid down by police agencies, just as Senator MCCLELLAN. Well, let us carry it a little further. We are having a lot of disorders in the country, have had, and are still having some, riots and so forth, and the charge is made that police officers use excessive force sometimes. Well, it is in violation of the law when you use excessive force; that is, make an assault upon someone unnecessarily. Would you make the taxpayers of the country liable for those damages? Mr. BRODERICK. Well, I think there is no question. I am not suggesting that at this point, but I think there is no question that in a civil action for damages stemming out of police behavior in a riot situation that the city is going to be responsible for excesses on the part of the police. I would like to say something, and this is off the subject, Senator, but I would like to say Senator MCCLELLAN. Well, there are so many ramifications to this problem of trying to find a way to protect society against crime. Mr. BRODERICK. I would just like to say something on this business of excesses by police officers. We highlight the situation where there has been an excess, and we completely ignore, and television and radio and newspapers do not cover the hundreds and thousands of situations where police officers have very responsibly and very calmly, and without any excesses, handled situations very well, and this gets completely out of proportion in my judgment. But, I would suggest that this remedy be considered, the remedy of damages for illegal searches. I would also suggest that there be statutory provision for the possibility of enjoining in proper searches. You would then have a pattern of alternative remedies, remedies alternative to exclusion, and you could statutorially give to the judge the power to use his discretion as to whether this particular search, technically illegal, should or should not result in suppression. Right now he has no discretion at all. Senator MCCLELLAN. Well, of course, that would be subject to review, would it not? Mr. BRODERICK. Well, of course, Senator, everything that Congress does is, in one way or another Senator MCCLELLAN. Well, I know. I just point it out, that that would not be final necessarily, it would be subject to review. Mr. BRODERICK. It would be subject to review, but we have to reach for different approaches, we have to try new approaches, and I do not think we should be deterred by the fact that what Congress does will be reviewed, because I think we Senator MCCLELLAN. Well, I did not say that Mr. BRODERICK. No; I know you did not. Senator MCCLELLAN. I say to you that I think you are absolutely correct on that, anything that the Congress does, or anything that the lower court does, should be subject to review. Mr. BRODERICK. But, I think there is a tendency to think in this whole area of law enforcement that because the Supreme Court has had a particular opinion in a particlar area, has made a particular interpretation, that experimentation in other directions in the same area is foreclosed, and I think this is thinking that we should avoid. Senator MCCLELLAN. Well, in other words, you feel there are court decisions that require attention, and we should try to alleviate their impact on law enforcement? Mr. BRODERICK. Oh, I think there is no question about that. I think there is no question about that. Now, similarly, in the area of interrogation, our committee has suggested that there is room for a new approach here. At the present time if a witness refuses to testify, refuses to make a statement, there is no comment that can be made on this in the course of a trial. Now, we suggest that it at least be considered that a pattern of interrogation before a judicial officer be prescribed with no sanction for failure to answer a question except the sanction that comment may be made on the failure to answer the question. Senator MCCLELLAN. Well, would that not open up the right of the prosecution to comment upon an accused's failure to take the stand and deny the charges? Mr. BRODERICK. No. I would circumscribe this. Our suggestion is that it be considered that an accused may be brought before a judicial officer, represented by counsel, and questioned. The problem is that Senator MCCLELLAN. Under the Miranda rule, how can you question them? They have a right to be silent. Mr. BRODERICK. Well, in the Miranda case, the Miranda case Senator MCCLELLAN. Now, if they have a right to be silent, they should not be condemned for being silent. Mr. BRODERICK. No; that is correct, but the Miranda case says that the questioning, it lays down a prescription for what must happen on a station house level where there is no judicial officer present and where there is no representation by counsel. I am suggesting a pattern where there is representation by counsel, where the man is before a judicial officer, where he is not faced with the threat of perjury or contempt, where the only sanction against him if he fails to answer Senator MCCLELLAN. You would let them, as I understand you, take the accused before a court and question him, not under oath, but just in the presence of counsel? Mr. BRODERICK. No; I think I would have him questioned under oath. I am not really concerned about the oath. Senator MCCLELLAN. Now, the question is: If you force him to take an oath, and you question him, and he fails to tell the truth, or he willfully misrepresents the facts, is he not guilty of perjury? Mr. BRODERICK. Well, I am not concerned about the oath and perhaps he should not be under oath because I do not think perjury should be a sanction here. I do not think perjury should be a sanction, I do not think contempt should be a sanction. I do not think there should be any sanction at all, but I think that there should be comment, there should be permitted in this particular situation comment on his failure to answer questions. I think you have provided his safeguards which Miranda was pointing to, the safeguards of representation by counsel, the safeguards of having a judicial officer present when he is questioned. It may well be, Senator, that this will not pass muster before the courts. Senator MCCLELLAN. Well, that is what concerns me about your position. Counsel calls my attention to Griffin v. California, decided in 1965, where the Court held invalid a California procedure permitting comment on failure of a defendant to take the stand at his trial. Mr. BRODERICK. Well, this would be designed to meet the very problem Senator MCCLELLAN. When they hold it is unconstitutional, how can you meet it by statute? That is what I am getting at. How can 1380 U.S. 609 (1965). you meet it by statute if they hold that it is unconstitutional? I would like to hear you explain how you could meet it with a statute. Mr. BRODERICK. Well, there are so many pressures on a man in court. He cannot take the stand, for example, because he is afraid if he takes the stand he will be cross-examined on his past record. So, in this proceeding you would protect him against any possibility of being crossexamined on his past record. You would relieve him of all of the pressures or as many of the pressures as you could of the consequences of his answering questions, and then you would ask him the questions, with no compulsion to answer, but the right on the part of the Government to comment on his refusal to answer. Senator MCCLELLAN. Well, then, you are going to permit comments though if he does not answer the questions? Mr. BRODERICK. That is right. Senator MCCLELLAN. In other words, when you get to the trial, you say that you can tell it to a jury? How are you going to get it before the jury that you had him up before the court and asked him these questions and he did not answer them? I do not quite follow you. Mr. BRODERICK. Well, that would be in substance it, yes. Senator MCCLELLAN. Sir? First you are going to have him before a judge with his lawyer there and try to question him. Later you are going to try him. Now, how are you going to comment in the trial that you had him down before a judge trying to question him and he did not answer? Mr. BRODERICK. Well, let me put it in this context, Senator. A man is called before the grand jury and he refuses to answer. The prosecution is stymied by this refusal to answer. It wants to proceed further. It goes down to the judge. He is now represented by counsel and counsel has the right to make any objections. The judge passes on the questions, passes on the propriety of the questions. If he refuses to answer there is no contempt sanction. I mean, this is specifically provided, so there is no penalty, no direct penalty on him in this situation for refusing to answer. Senator MCCLELLAN. Suppose he does answer, then can it be used against him in the court in the trial? Mr. BRODERICK. If he does answer it could be used. Senator MCCLELLAN. Well, why? He was brought down there and compelled to testify. Mr. BRODERICK. Well, he can always refuse to answer. Mr. BRODERICK. If he testifies falsely, perjury will be specifically provided against in the pattern of legislation, that he would not be subject to perjury, but that the answers he gives and their falsity can be considered as a part of the total picture in guilt or innocence. Now, this is a pattern which it seems to me avoids many of the problems that Miranda was concerned with, particularly the problem of questioning a man with no intervention from the judicial officer in the preliminary stages of an investigation. Senator, I would like to move now to S. 30 and briefly discuss the comments of our committee on it. Senator MCCLELLAN. Very well. Mr. BRODERICK. Title I pertains to the grand jury, and our committee approves the provisions which would extend the terms of the grand |