Immunity. At page 140 of the Crime Commission's general report, the following is stated:

"A grand jury subpoena can compel the attendance of a witness and the production of books and records, but the grand jury has no power to compel a witness to testify or to inspect private books and records if their owner demurs. However, it is constitutionally permissible under proper conditions to displace a witness' privilege against self-incrimination with a grant of immunity from criminal prosecution. On the Federal level immunity is available only in prosecutions under specific statutes, such as those dealing with narcotics, antitrust, and Communications Act violations. Some States follow a similar pattern, while others have enacted general immunity statutes permitting the prosecution to grant immunity in any criminal case.

"Immunity provisions are particularly necessary to secure testimony in cases of official corruption, and the special need for the power to grant immunity in organized crime cases is discussed in chapter 7.

"One serious danger, in the light of court decisions with respect to the application of immunity given by one jurisdiction to prosecutions in other jurisdictions, is that the grant of immunity to a witness in one proceeding will interfere with investigations elsewhere. Since facilities for communication between elements of the Federal Government are better developed than those at State and local levels, the problem is greater in State courts and grand jury investigations. The creation of interagency communication procedures where none now exist and the improvement of existing procedures are most important if grants of immunity are to be intelligently made. The Attorney General or other chief law enforcement officer must be in a position to ascertain whether other investigations are pending if he is to have the perspective necessary for him to choose which investigation is most important to the overall administration of justice.

"Filing with the court a notice of the grant of immunity would reduce the possibility of abuse of authority by prosecutors as well as the danger of hidden immunization for corrupt purposes.

"The Commission recommends.-A general witness immunity statute should be enacted at Federal and State levels, providing immunity sufficiently broad to assure compulsion of testimony. Immunity should be granted only with the prior approval of the jurisdiction's chief prosecuting officer. Efforts to coordinate Federal, State, and local immunity grants should be made to prevent interference with concurrent investigations."

See also pages 200-201 of The General Report.

I am satisfied from recent United States Supreme Court cases that the suggestion in Counselman v. Hitchcock, 142 U.S. 547 (1892) of the need for immunity from further prosecution has been rejected. The Supreme Court in strong dicta has now stated that sufficient self-incrimination protection is provided by an immunity statue that prevents the future use of an immunized witness' testimony and the fruits thereof. Murphy v. Waterfront Commission, 378 U.S. 52 (1964) (see especially the concurring opinion of Justice White); Malloy v. Hogan, 378 U.S. 1 (1964); and Gardner v. Broderick, 392 U.S. 273 (1968) (statement of scope of immunity by Justice Fortas). If a state, independent of a witness' immunized appearance before a federal tribunal, develops, evidence against that witness as to the same transaction testified to by the witness in the federal tribunal, the self-incrimination clause has not been violated by a subsequent state prosecution. Thus, the federal statute need not immunize the witness from future prosecution. If the state prosecution proceeds independent of benefit from what the federal government compelled from the witness' mouth, that witness has not been forced to incriminate himself and the witness' testimony in the federal proceeding is not being used against him in any way in the state proceeding. The fruits issue raises many proof problems, upon which the state government will have the burden. But that is a separate issue from whether or not the state should be foreclosed from prosecution merely because of a federal immunity grant from which the state derived no use or benefit.

The coordination problem raised in the Commission report can be handled administratively. The federal government, before granting immunity, probably will want to check with pertinent state and local officials to determine the appropriateness of the grant of immunity. This is a matter of law enforcement cooperation.

Recalcitrant witness.-Title III merely codifies existing procedures and is a loglcal step in enforcing the immunity process. The provision establishes a civil con

temp procedure that does not require indictment and jury trial. The procedures comport with those suggested in Shillitani v. United States, 384 U.S. 364 (1966). Even though bail on appeal is not subject to Eighth Amendment protection, the absolute denial of bail in Title III suggests to me the desirability of a provision for a time limit within which the appeal must be heard.

False statements.—At page 141 of the Crime Commission's General Report, the Commission stated:

"The criminal law must offer more effective deterrents against false statements. The integrity of the trial depends on the power to compel truthful testimony and to punish falsehood. Immunity can be an effective prosecutive weapon only if the immunized witness then testifies truthfully. Perjury statutes provide criminal penalties for false testimony under oath, but the infrequency of their use and the difficulty of securing convictions in perjury cases has limited the effectiveness of this criminal sanction.

Perjury has always been widespread; according to Pollock and Maitland's standard history of English law, 'our ancestors perjured themselves with impunity.' The requirements for proof in perjury cases are complicated by special common law rules of evidence, particularly the two-witness rule and its corollary, the direct evidence rule. In essence the former requires that the falsity of the testimony of the defendant charged with perjury be established by more than the uncorroborated oath of one witness and the latter that circumstantial evidence, no matter how persuasive, will not alone support a conviction for perjury. There are, in addition to the direct evidence rule, decisions which hold that contradictory statements under oath may not be the subject matter of a perjury prosecution without additional proof of the falsity of one of the statements. Dissatisfaction has led to changes by statute in some jurisdiction; however, the common law rule prevails in Federal proceedings and in a number of States. These restrictive evidentiary rules are an unwarranted obstacle to securing legitimate perjury convictions.

There is no apparent reason for the distinction between perjury and other crimes. Sound prosecutive discretion, proof beyond a reasonable doubt to a judge and jury, and the other traditional safeguards applicable to every criminal case provide adequate protection against the unwarranted charge and conviction of perjury.

The Commission recommends.-Congress and the States should abolish the rigid two-witness and direct evidence rules in perjury prosecutions although maintaining the requirement of proving an intentional false statement." See also page 201 of the General Report.

Title IV of S. 30 implements the Commission's recommendations. The existing two-witness and direct evidence rules developed from the ancient quantitative concept of evidence and were retained for policy reasons having to do with a fear of spiteful and mistaken charges. The United States Supreme Court has affirmed such rules partly for these policy reasons but also partly because the Court felt that legislative failure to change the common law concepts indicated general acquiescence towards their soundness. Hammer v. United States, 271 U.S. 620 (1926); see also Weiler v. United States, 323 U.S. 606 (1945). Wigmore equivocates somewhat on the desirability of the two-witness and direct evidence rules but seems to say that they have outlived their usefulness. Wigmore on Evidence, section 2041 (3d ed. 1940). I believe that the normal checks of prosecutorial discretion, the reasonable doubt standard and judicial power to dismiss a charge upon which no reasonable man could find guilt provide sufficient safeguards.

Title IV is narrower than section 1621 of Title 18 in its limitation to court and grand jury proceedings. But it is also broader in eliminating in section 1623 (a) the requirement of materiality. I would like to explore with the Committee why this was deemed necessary; I would tend towards retaining the materiality requirement. This is especially crucial in light of the elimination of the two-witness and direct evidence safeguards. I would also like to explore with the Committee what is intended by the use of the term "fraudulent". Does it add anything beyond "false" or "fictitious"?

Section 1623 (d) is in accord with Commission statements and I note that the materiality requirement is included in this subsection.

Depositions.-Title V is a companion measure to Fed. R. Cr. Proc. 15, which permits depositions of prospective witnesses upon defendant's motion if it appears that the witness may be unable to attend or prevented from attending a trial or hearing, that the testimony is material and that the deposition is necessary to pre

vent a failure of justice. Although the Crime Commission made no recommendations as to prosecutorial depositions, the Task Force on the Courts did state at page 43 of their report:

"Another device for discovering and recording evidence which has received limited use in criminal cases is the deposition. In civil cases depositions and other forms of pretrial examination of witnesses have been increasingly and successfully used. A criminal defendant in almost all jurisdictions may take the deposition of a witness who may be unavailable to testify at trial, and the prosecution has the same right in about half the States. But depositions for broader discovery purposes in criminal cases are available only in three States.

It is undesirable to confine the use of depositions only to the preservation of testimony of witnesses who may be unavailable at trial. Depositions may be used to find facts as well as to preserve testimony. A deposition could resolve a factual dispute during the negotiating stage, and it could provide the basis for a stipulation of witnesses' testimony at trial. In cases where it is not necessary to conduct a full preliminary hearing before a judge, depositions may be submitted to the court for determination of probable cause. Finally, the depositions of certain witnesses may be made a part of the record in order to demonstrate in court the basis for a negotiated guilty plea.

Depositions would be valuable in preserving the testimony of witnesses even when a trial is not immediately contemplated. When a consent decree is permitted, for example, the prosecutor might need a means of preserving his case against a defendant in the event that he violates the conditions agreed upon. In such cases key witnesses might be deposed and their testimony filed as part of the decree, with an agreement that the depositions may be used as testimony if trial becomes necessary.

With the exception of a few jurisdictions neither the prosecutor nor defense counsel has legal power to compel the appearance of witnesses for pretrial exami nation after indictment. Defense counsel often encounter difficulties in getting potential witnesses to discuss a case with them. The prosecutor's official status is such that most witnesses will cooperate with him while he is investigating the case, although in some places subpoenas and the grand jury process are used for these purposes without legal authority.

The flexibility and utility of the deposition make it an extremely valuable factfinding procedure in the criminal process. Jurisdictions should amend their statutes or rules to permit the taking of a deposition whenever the prosecutor and defense counsel agree, and a compulsory process should be made available for this purpose. Even when they cannot agree, it would be desirable to allow prosecutors and defense counsel, with the permission of the court, to take depositions."

Five members of the Commission participated in the formulation of this Task Force Report.

The Sixth Amendment to the United States Constitution affords an accused in all criminal prosecutions the right "to be confronted with the witnesses against him." Wigmore believes that the taking of such witness depositions by the prosecution, with full cross-examination rights by defendant and counsel does not involve a Sixth Amendment violation so long as, when the deposition is used at trial, the usual requirements of present unavailability of the witness are met. Wigmore on Evidence, secs. 1397 et seq (3d ed. 1940). The recent Supreme Court cases, discussed infra in reference to co-conspirator declarations. would not appear to me to interfere with use at trial of section 3501 depositions under the conditions established in 3501 (c).

This title affords the government greater deposition rights than Fed. R. Cr. Proc. 15 affords to defendants. This is undesirable from a policy standpoint and also possibly from a due process standpoint. This inequality could be cured by including the defendant within section 3501. In addition, the standards in Rule 15 for allowing depositions could be incorporated into section 3501 to replace that section's vague and broad guidance: "whenever it is in the interest of justice. . . ." The existing Rule 15 standards could be expanded to include those situations where the government or a defendant believe that a witness may flee before trial.

In section 3501(c), the standards for use of deposition at trial could also be expanded to include those situations where a witness is "unavailable" because of his invocation of the self-incrimination privilege. I believe such would be constitutional even in light of Pointer, Douglas and Barber, infra.

In light of the fact that this deposition procedure will be used in comparatively

few situations, I would include a provision that in a deposition upon the government's motion, the government will pay reasonable attorney's fees of the defendant for attendance (not preparation for) at the deposition. The statute probably should also deal with the situation where the government obtains statements from the witness after deposition and then the witness is not available at the trial.

Protected facilities.-At page 203 of the Crime Commission's general report, it is stated:

"No jurisdiction has made adequate provision for protecting witnesses in organized crime cases from reprisal. In the few instances where guards are provided, resources require their withdrawal shortly after the particular trial terminates. On a case-to-case basis, governments have helped witnesses find jobs in other sections of the country or have even helped them to emigrate. The difficulty of obtaining witnesses because of the fear of reprisal could be countered somewhat if governments had established systems for protecting cooperative witnesses.

The Commission recommends.-The Federal Government should establish residential facilities for the protection of witnesses desiring such assistance during the pendency of organized crime litigation.

After trial, the witness should be permitted to remain at the facility so long as he needs to be protected. The Federal Government should establish regular procedures to help Federal and local witnesses who fear organized crime reprisal, to find jobs and places to live in other parts of the country, and to preserve their anonymity from organized crime groups."

Title VI implements this recommendation, and in fact gives greater flexibility in allowing the rental of facilities. The problem of government assistance to a witness before trial presents ethical and legal problems as to the permissible extent of such help. In order to clarify matters, this title could be amended to include a provision as to whether or not the witness and his family may enjoy such facilities rent-free and as to other items such as availability of food and other necessaries of life. Often, a witness has lost his means of livelihood because of cooperation with the government in organized crime investigations. The amount of aid to him must be explored carefully, but at least some form of lowinterest loans might be statutorily authorized until the witness can once again find employment.

Declarations of Coconspirators.-The Crime Commission report did not make a recommendation on this subject. Existing law as to admission against other conspirators of co-conspirator statements requires generally that the declarant's statement be during the pendency and in furtherance of the conspiracy and that, as to each conspirator against whom the statement is sought to be admitted, there be some independent proof of the existence of the conspiracy and of his participation in it. Title VII eliminates the furtherance requirement and adds a trustworthiness requirement. Title VII also limits existing law by requiring that the affected defendant be a participant in the conspiracy at the time the declaration is made; existing law in some states admits co-conspirator declarations prior to the affected defendant's joining of the conspiracy on the theory that a defendant adopts what transpired up to the time of his joinder. Existing law as to co-conspirator statements is founded upon the common law and in effect is a substantive extension of the agency doctrine that each conspirator is responsible for the acts of other conspirators in furtherance of the conspiracy. The theory rests upon a vicarious admission philosophy that each conspirator is an agent for the others and those others thereby adopt whatever each conspirator does and says in furtherance of one plan. Wigmore supports this theory against strong opposition from Morgan. See Wigmore, secs. 10791080a (3d ed. 1940). The furtherance principle was also retained in the California and New Jersey evidence codes adopted in 1965 and 1967 respectively. On the other hand, the Model Code of Evidence and the Uniform Rules of Evidence omit the furtherance requirement in their practically identical Rules 508(b) and 63 (9) (b) respectively. The Model Code provides:

"Evidence of a hearsay declaration is admissible against a party to the action if the judge finds that

"(b) the party and the declarant were participants in a plan to commit a crime or civil wrong and the hearsay declaration was relevant to the plan or its subject matter and was made while the plan was in existence and before its execution was complete. ***”

Four recent United States Supreme Court cases have re-examined hearsay exceptions insofar as admissibility at trial may conflict with the Sixth Amendment right to confrontation of witnesses at trial, a provision now applicable to the states. See Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965); Barber v. Page, 390 U.S. 719 (1968); and Bruton v. United States, 391 U.S. 123 (1968). In addition, the Court has just granted certiorari in Evans v. Dutton, 400 F. 2d 826 (5th Cir. 1968). Each of the cases involve coconspirator statements, but in each the statement sought to be admitted was made following the termination of the conspiracy. Thus, there is only a portent that the Supreme Court may be moving towards re-examination of admissibility of co-conspirator statements as vicarious admissions. The above cases do reveal applicable principles: (1) the confrontation doctrine is at the heart of a fair trial; (2) confrontation does not mean merely the right to cross-examine at some point of time; it includes a right of confrontation at trial where the jury can see the witness' demeanor; (3) the Sixth Amendment still permits some traditional hearsay exceptions, based upon necessity and trustworthiness; but a witness' unavaliability at trial must be based upon cogent reasons and other indicia of strong reliability must be present.

Rejection of the furtherance requirement makes much sense to me. That requirement is necessary if one retains the vicarious admission theory. But that theory is quite strained in that authority to act for another does not necessarily imply authority to speak for another in those circumstances where such speaking is not in effect conduct in furtherance of the conspiracy. Reliability of the declarant seems really to be based upon a finding that a conspirator's statement is against his interest, whether that interest be penal, social or economic. And Title VII, in requiring the declaration to relate to the existence or execution of the conspiracy during the declarant's participation in it, moves towards this reliability. The further requirement of facts and circumstances implying trustworthiness builds upon the need for reliability.

However, in light of the recent Supreme Court decision, supra, I would include a requirement that the witness be unavailable. The definition of "unavailability" could include the situation wherein the declarant has exercised his self-incrimination privilege or expresses the irrevocable intent to exercise that privilege at trial.

There is a suggestion in the Barber case that even if the declarant there had truly been unavailable at trial, his preliminary hearing testimony, though crossexamined by defense counsel, may still have been inadmissible at trial. If such suggestion were to rise to the level of a holding, the entire co-conspirator doctrine of Title VII would be in jeopardy. One would then have to return to the agency, adoptive admission theory, including the furtherance requirement, and have that tested under the expanding concept of the confrontation clause.

Special offender sentencing.-The Crime Commission report supported the general concept of extended prison terms for persistent habitual offenders and for those occupying management positions in organized criminal enterprises. However, no specific formulation was offered. The Commission also suggested that the right of a prosecutor to appeal sentences should be explored with careful considration of possible constitutional objections. These suggestions should be read in light of the Commission's call for a broad re-examination of all sentencing provisions and I think it fair to state that the Commission saw that broad reexamination as essential to recommendation of any major individual alteration of present provisions. The following excerpts from the Commission's general report, at pages 203 and 143 respectively, should be read in that context:

"Criminal statutes do not now authorize greater punishment when the violation was committed as part of an organized crime business. The Model Sentencing Act creates a separate category for such violations. It provides for 30 years' commitment of any felony offender who is so dangerous that the public must be protected from him and whose felony was committed as part of a continuing criminal activity in concert with one or more persons. The Model Penal Code also contains separate provisions for heavier sentences of defendants connected with organized crime.

The Commission recommends.-Federal and State legislation should be enacted to provide for extended prison terms where the evidence, pre-sentence report. or sentence hearing shows that a felony was committed as part of a continuing illegal business in which the convicted offender occupied a supervisory or other management position.