Senator ERVIN. And that provision became part of the Constitution in about 1791.

Chief MONAHAN. It did indeed.

Senator ERVIN. And for approximately 170 years the Supreme Court interpreted that provision in such a way that it only applied to the Federal Government and not to the States. And during that 170 years there were a good many States of the Union that felt that although a search and seizure may have been made under circumstances that wouldn't comply with the Bill of Rights of the United States, evidence thus obtained should be excluded in the search for truth. Therefore these States adopted rules that permitted the introduction of such evidence, for whatever the jury might find it to be worth.

And then suddenly, overnight, after the interpretation of the Constitution had been one way for 170 years, the Supreme Court of the United States suddenly took a constitutional somersault and nullified the laws of many States. They took this action without consulting the only people authorized by the Constitution to change the meaning of the Constitution; namely, the Congress, by proposing amendments to the Constitution, and the States, by ratifying amendments proposed by Congress.

Chief MONAHAN. They did because we could introduce this evidence even though it was obtained unreasonably in accordance with the provisions of the States' rules prior to the Mapps v. Ohio case.

Senator ERVIN. And the evidence might have been the truest evidence that was in there.

Chief MONAHAN. It could very well have been.

Senator ERVIN. So the result of the Mapps case was that the Constitution of the United States suddenly changed its meaning, according to the Supreme Court, after 170 years. The Court said that even though this evidence may be the absolute truth, we are not going to permit to be used by the States in the prosecution of residents of the States in the courts of the States for violation of the State's laws. That is the effect in that case.

Chief MONAHAN. Yes.

Senator ERVIN. And this all happened under the Constitution that was said to be designed in all of its provisions to create an indestructible Union composed of indestructible States. Don't you agree with me that you are destroying the States when you undertake to deprive them of the power they enjoyed under the Constitution for 170 years? Chief MONAHAN. We would naturally be prejudiced that way, Senator Ervin.

Senator ERVIN. Well, thank you. I appreciate the comments you have made and I especially thought that was a very apt quotation of District Attorney Joseph to the effect that when the courts formulate rules for determining the guilt of persons charged with crimes, they ought to recognize the realities of the situation and not view it as it might be viewed from the objectivity of an ivory tower.

Chief MONAHAN. It has been referred to as an ivory tower, Senator, yes.

Senator ERVIN. Now, the primary function of police officers is to protect society against those who would prey on society by committing

crimes.

Chief MONAHAN. That is correct.

Senator ERVIN. And when we have unrealistic rules adopted, they might vindicate some notions about abstract justice in a vacuum, but they certainly do seriously impede the practical enforcement of the criminal law, do they not?

Chief MONAHAN. They do indeed. In fact, most decisions that have been rendered in recent years have caused responsible law enforcement officials to concern themselves with where this pendulum is going to stop, so to speak, and are we on our way to a national police force. That is what concerns most responsible officials in our professional organizations.

Senator ERVIN. And the people who suffer by reason of the courts engaging in sentimentality on behalf of people charged with crime are those who do not wish to be murdered or raped or robbed or suffer similar experiences.

Chief MONAHAN. It has been known that bribery and force have contributed largely to public indifference. It is also a matter of fact that to recapture public confidence, law enforcement has to begin to act professionally. This I presume we have been a little guilty of, some rather haphazard application of the rules and techniques and procedures in the past, but after all, we have been hamstrung by indecisiveness, indecisions, ineptitude, the confusion that has been caused by the rendering of certain decisions that have taken the traditional tools of law enforcement and blunted them.

Senator ERVIN. Well, your police forces still rule throughout the Nation. Their efficiency and their training in large measure depend on what the legislative bodies make available for those purposes.

Chief MONAHAN. In large measure; yes.

Senator ERVIN. And after all, it is the law enforcement officers who often almost daily place their lives in jeopardy, who make it possible for us to enjoy such things as sanctity of our homes free from invasion, and rights of personal property, isn't that true?

Chief MONAHAN. That is true, Senator. We question our ability to guarantee this measure of safety and sanctity in our homes and in our person insofar as this area of confusion that we operate in today. We question our ability to continue. We question the ability of the future generations that will man these clean blue ranks, so to speak, if we continue to run into the problems of recruitment that the present state of confusion contributes to.

Senator ERVIN. Of course, sometimes law enforcement officers are just like other human beings. They get overzealous in certain particuIar instances and it results in these new rules, like the rule in the Mapps case. Here is where we take the supposed sin of the law enforcement officer and visit the penalty upon society in general rather than upon the people who are offending against society.

Chief MONAHAN. Well, the question is, Are the rules too rigid? Should the rule be more flexible? We can operate within the rules, so to speak. We hope to. This is a guarantee. But there is a galaxy of rules that we don't understand today and that haven't been adequately defined for us and we cannot perform effectively, as I say, in this area of confusion.

I think it is a very fine provision in there. We had an instance of a man who had been arrested for killing a young person. He was in jail. And the father of the deceased went back to the jail to talk to this person, and he just said, "Why did you do this?" And he voluntarily told him that he did it and why he did it, and that was admissible in our courts because it was voluntarily given, spontaneously given. And I think it would fit right within this proviso, and be a very effective part of the law.

I believe this bill is reasonable in both of its provisions. The viewpoint that a confession is inadmissible merely because of delay by the officer in taking the arrested person before a magistrate is to me unsound. It has never been adopted in my State and our court of appeals has been extremely zealous in guarding individual rights. I see no reason why the rights of an individual cannot be safeguarded, irrespective of delay, by the conditions set out in subsection (b) of the bill. If, indeed, those conditions are found to exist by a court after a fair hearing, it is inconceivable that delay alone could have operated to the substantial detriment of a person in custody.

There is one part of this bill which I believe could be clarified. I am sure the committee intended that the right of reasonable opportunity to retain and consult with counsel under subsection (b) include the advice to an individual of his right to counsel. However, I believe this should be made absolutely clear and suggest that such could be done by adding between lines 17 and 18 on page 2 of the bill the following: "advised of his right to counsel and." Under these circumstances, no individual would be subjected to the use of a confession unless obtained under circumstances where he was accorded all of his substantial rights.

It is my opinion that this bill will not unduly hamper law enforce

ment.

I was privileged to sit here this morning while the chief of police from Rochester was testifying, and I listened with a great deal of interest to the purposes of why these provisions were put in the bill. Whether we think they are appropriate or not, they reflect the Supreme Court's thinking on the matter, so you might as well put them in in order to give some substance to what the law is, and let them be on guard as to what it is.

I might add, as a matter of pertinent interest, that we have a good example in our recent appellate reports of what would be an admissible confession under the provisions of this bill. In Carson v. Commonwealth, Ky., 382 S.W. 2d 85 (Oct. 2, 1964), certiorari denied 380 U.S. 938, 13 L. ed. 2d 825, 85 S. Ct. 949, appellant was convicted of willful murder and sentenced to death largely on the basis of his confession to the Kentucky State Police. The confession was completed within approximately an hour after the arrest of appellant and after he had been advised of his right to have counsel, that he was not required to make a statement, and that any statement made could be used against him in a criminal prosecution. There was no question as to whether appellant was aware of the charge for which he was arrested and it was affirmatively shown that the confession was freely and voluntarily made.

The Carson case was decided very shortly after the Massiah (Massiah v. United States, 377 U.S. 201, 12 L. ed. 2d 246, 84 S. Ct. 1199)

and Escobedo (Escobedo v. Illinois, 378 U.S. 478, 12 L. ed. 2d 977, 84 S. Ct. 1758) decisions of the Supreme Court and effectively distinguished them. This case is a good illustration to show on the one hand that this bill will not unduly hamper law enforcement and on the other that substantial rights of those accused of crime will be protected under it.

There was a question about delay in taking him before a magistrate. Our court said there was no constitutional problem-unless it can be shown that the delay itself was instrumental in coercing a confession, then there is no denial of due process or of any constitutional right or any other thing. I understand the Supreme Court in the Mallory case placed it on the basis that the Federal rule itself-not a constitutional problem-but a Federal rule itself was involved. So I think with the changing of this rule, it would be very helpful.

Senator MCCLELLAN. This would change the rule by statute.
Mr. MATTHEWS. Yes; which I think is very fine.

Senator MCCLELLAN. And they would not be permitted to make a rule contravening the statute.

Mr. MATTHEWS. That is right. So the only way they are going to be able to change this is to go back to the Constitution.

I might say in closing that statistics, we know, can be used to prove almost anything; but crime statistics apparently are used to prove, primarily, one of several things: (1) that a city, county, or State needs to spend more money for more men and more equipment to combat crime; or (2) that, in the futile pessimism that such additional funds cannot be obtained from the appropriating sources, the city, county, or State law enforcement authorities are doing a fine job of combating crime with the manpower and facilities available; or (3), to combat public apathy.

Uniform crime reports are a necessity, and, in my opinion, should be used more to prevail upon public opinion to give greater support and cooperation to local law enforcement authorities than merely to inform our law enforcement agencies of the trend and rise in crime and to rate cities according to their incidence of crime. Because of the many varied factors which contribute to the incidence of crime vary from city to city, unjust comparisons may be hastily drawn from the crime ratings.

One such injustice, in my opinion, exists with respect to one of the largest cities in Kentucky-Lexington. It is rated fifth in the Nation in crime statistics of the Federal Bureau of Investigation. With a population in excess of 75,000, this city's police force has 92 uniformed patrolmen. There are times when residents from adjacent counties coming to work nearly double that population, and frequent sports events also nearly double it.

The police department of that city operates on a 40-hour workweek while the fire department operates on a 56-hour workweek. The records show that for every $5 property loss from traffic accidents alone there is only a $1 loss from fire. And yet, the annual police budget is $1,046,000 whereas the fire department budget is $1,166,000. In 1952, with a population of 56,700, this city had a crime rate of 4 persons per 1,000 population, that is, major crimes against persons, and only 50 uniformed patrolmen. In 1965 it also had a crime rate of

4 persons per 1,000 population and 92 uniformed patrolmen. In the same period, the rate of crime against property went from 26 per 1,000 population to 59.

Police force strength often means little if anything in relation to crime or rate of crime. Louisville, Kentucky's largest city, with a population approximately 4 times that of the city we have just discussed, has a uniformed police force strength of 538, or almost 6 times the size of the one of the city that is rated fifth in crime rate in the United States. Yet, the crime rate in Louisville last year rose 7 percent to 1.991 per 1,000 population.

St. Matthews, an incorporated city and suburb of Louisville, with population of about 25,000, has a police force of only 9 employees. Frankfort, the State capital with about the same population as St. Matthews, has 38 police employees, or nearly 4 times as many.

A study of the statistics on crime and the size of police forces compels me to the opinion that all of the criminal laws on our books enforced rigidly by investigations, arrests and prosecutions, with dedicated law enforcement agencies and personnel fully and adequately manned and equipped, cannot in and of themselves solve our rising

crime rate.

We must upgrade our jury selection standards, and we must somehow instill in the general public an acute awareness that crime is a cancer in which each member of society has a stake and a responsibil ity to respect and support our law enforcement agents in stamping it out.

I think so far as the TV goes-to me it is ridiculous that the defense counsel always plays the great humanitarian, and the poor old prosecutor is always belittled. Perry Mason ought to lose a case now and then, I think, to help support the image of law enforcement agents in this country.

We have got to start tightening our parole and probation laws. Senator MCCLELLAN. It may be well for those media to develop some series that would show or indicate the necessity for protecting society as well as seeing that every criminal or crook got his individual rights.

Mr. MATTHEWS. I agree with you thoroughly.

Senator MCCLELLAN. I think they could do a great public service. Mr. MATTHEWS. I do. And they can portray a series just as easily that way, and bring in the interest of society as a whole, and tie it to the acts of the prosecutor and make people more aware of the needs and efforts of the prosecutor.

Senator MCCLELLAN. From the little experience I had-and you know certainly-law enforcement officers sometimes get very little credit for the sacrifices they make in an effort to serve their community and to protect society.

Mr. MATTHEWS. I agree with you. And they are dedicated public

servants.

Senator MCCLELLAN. If you are a prosecutor, you have to be dedicated. You just simply would not go through with what you have to tolerate unless you were dedicated. If you are a good prosecutor, you have to be dedicated.

Mr. MATTHEWs. You have to have a thick skin and a lot of patience.