that testimony could be compelled under state immunity statutes even though the state could not preclude federal prosecution, because the Court held the compelled testimony or its fruits could not be used against the witness in such a federal prosecution if brought. Present statutes giving blanket immunity to witnesses even against prosecution based on entirely extrinsic evidence are a "gratuity to crime" in view of the Murphy v. Waterfront Commission ruling and should be superseded by provisions such as those in Title II of S. 30. 3 We believe that the provisions in Title II that the Attorney General must specifically authorize all proceedings under the Title are extremely important, inasmuch as otherwise testimony might be compelled in such a manner as to prejudice pending cases by requiring a hearing as to the source of much evidence in such pending cases even though the compelled testimony could not in fact be used. Title II as proposed should be amended to provide that, where a witness is to be questioned under the authority of Title II, he may be informed of the applicability of Title II, at or before the time he is questioned, in which event other "automatic" immunity statutes would be superseded. This is important inasmuch as under present law a witness called in certain types of cases receives blanket immunity even where he does not invoke the privilege against self-incrimination.* The suggested amendment to Title II would prevent this anomaly. TITLE III-RECALCITRANT WITNESSES Title III of the bill provides that where a witness fails or refuses to comply with an order of a court to testify in court or before a grand jury, the court may summarily order him confined until he is willing to testify. We approve that aspect of Title III which would permit a witness to be held until he is willing to testify. We cannot approve, however, the summary incarceration of a witness without notice, counsel, hearing and the other procedural safeguards associated with due process, merely upon the failure of the witness to testify being "brought to" the "attention" of a Court. In our view the ordinary procedures for determining guilt should apply here as in cases of other violations of court orders. Bail pending appeal may properly be denied at present where the appeal is frivolous. The question of bail pending appeal should be handled as in other cases. We see no need for a statutory exclusion of all bail in such cases. TITLE IV-FALSE STATEMENTS Title IV of S. 30 would abolish the requirement that two witnesses establish the falsity of a perjurious statement by making the penalties for false statements to governmental agencies generally, which contain no such requirement (18 U.S.C. § 1001), applicable to false statements before a Grand Jury or court. We see no reason for this anomaly and approve this change, if the false statement is material. Likewise we approve the provision that inconsistent statements may be used to establish falsity without proving which one is true. The provision that an admission of falsehood in "the same continuous trial" bars prosecution, however, should be expanded to refer to "the same continuous trial, hearing, or proceeding" to encompass Grand Jury investigations and court proceedings other than trials, as well as trials. TITLE V-DEPOSITIONS Title V of S. 30 would permit the Government to obtain a deposition of a witness in a criminal case, with the defense entitled to be present and crossexamine the witness, to protect against situations where the witness is afraid of reprisals prior to trial. This would preserve the basic rights of confrontation and we approve the change as desirable. We believe, however, that caution is in order in granting such depositions inasmuch as they deprive the trier of the facts of the opportunity to observe the demeanor of the witness, often of great aid in assessing his credibility. The court should also be empowered to grant relief from unduly burdensome discovery. a Shapiro v. United States, 335 U.S. 1, 7, 15 (1948). See United States v. Monia, 317 U.S. 424, 425 (1943); 15 U.S.C. § 32, 49, 155; 18 U.S.C. 835; 26 U.S.C. § 4874; 46 U.S.C. § 827, 49 U.S.C. § 9, 43, 46-48; 50 U.S.C. App. 1896. 30-902-69-15 TITLE VI-FACILITIES FOR HOUSING GOVERNMENT WITNESSES Title VI is also designed to deal with intimidation of witnesses. It would provide that the Attorney General may arrange for housing and protection of such witnesses and their families in order to prevent reprisals against them. We recognize that this is indispensable to the safety of witnesses in important cases and therefore support the enactment of Title VI. However, there is a danger that continuous Government custody of a witness and his family may lead the witness, in an excessive desire to please those responsible for his welfare, to color his testimony, perhaps without the knowledge of the prosecutor. To lessen this risk, we believe that (a) the procedure should be applied with caution and only where clearly necessary to protect the witness, (b) the defense should be notified when this procedure is used concerning a witness to testify at a trial, and defense counsel should also be entitled to take the deposition before trial of witnesses so housed, (c) the number of persons so housed should be reported to Congress annually, and (d) the matter should be a proper subject for cross-examination at trial. For the purpose of protecting witnesses, we believe that it is also desirable to protect federal witnesses in federal proceedings of all kinds against threats by amending 18 U.S.C. § 1503 to accomplish this. TITLE VII-ADMISSIBILITY OF DECLARATIONS OF CO-CONSPIRATORS Title VII of S. 30 restates the generally accepted rule that declarations of conspirators in furtherance of a conspiracy are admissible in evidence against all persons then parties to the conspiracy in appropriate cases. In the absence of indications that the courts are refusing to admit such evidence in a significant number of cases, we doubt the necessity of this legislative restatement of a rule of evidence and would not recommend its adoption. TITLE VIII-SPECIAL OFFENDER SENTENCING Title VIII would permit greater sentences than those now authorized to be imposed on certain multiple offenders and others found after hearing to be “professional offenders" or "organized crime offenders." We do not approve these provisions. There is little evidence that the many-time-loser statutes in the various states have been effective in deterring recidivism or that a similar federal statute would be helpful. Rather, we urge greater attention to the sentences now given by the courts within the authority they now have, and a Congressional study of the adequacy of sentences in serious cases, perhaps leading to recommended but not mandatory sentences for various types of cases. The fines now authorized, e.g., $1000 for mail fraud (18 U.S.C. § 1341) are also often absurdly low and outdated. Recommendations in these and other respects are set forth in Part VII, p. 14-15 of our October 1968 report. The provisions of Title VIII which would authorize greater sentences for "professional" and "organized crime" offenders run afoul of the American distaste for "crimes of status" which punish a person for what he is rather than for what he is proved to have done. We believe that this is dangerously subject to abuse and urge its deletion from the bill. CONCLUSION With the exceptions indicated, we believe that S. 30 would represent a constructive step forward in fairness and effectiveness of law enforcement. We urge its revision in the respects indicated, and the consideration of additional steps as set forth in this report. Respectfully submitted, Vincent L. Broderick, chairman; Richard A. Givens, secretary; Alan See also Committee on Criminal Law, Federal Bar Association of New York, New Jersey and Connecticut, "New Approaches to Sentencing," 3 Criminal Law Bulletin 682 (Dec. 1967). Senator MCCLELLAN. Since we only received it this morning, I have not had an opportunity to read it, but I would be very glad to have you highlight the statement. Senator Thurmond, do you have any statement before we proceed? Senator THURMOND. No, sir; I do not think so, Mr. Chairman. Senator MCCLELLAN. Thank you very much. All right, Mr. Broderick, you may highlight your statement. Mr. BRODERICK. Senator McClellan, we incorporated in our Report No. F-2, that you have just authorized to be included in the record, a report Senator MCCLELLAN. You may proceed. Mr. BRODERICK (continuing). A report, No. F-9, which is a recom mendation for Senator MCCLELLAN. Are you referring to the report? Will you call out the page so we can follow it? Mr. BRODERICK. Yes, Senator. On Report No. F-2 we referred to Mr. BRODERICK. On page 1 in the first paragraph. Senator MCCLELLAN. All right; go ahead. Mr. BRODERICK. We refer to a report previously prepared by our committee which is made a part of F-2, and so I would ask that the inclusion of that F-2 in the record also encompass Report No. F-9 of October 1968. Senator MCCLELLAN. Do you want it printed in the record or do you just wish to refer to it? Let me ask, is your latter report a modification of your first report? Mr. BRODERICK. No, Senator. The first report was a report in the wake of the safe streets bill, a report which suggests further legislation to strengthen the effectiveness in law enforcement. Senator MCCLELLAN. Very well, then, it may also be printed in the record at this point. (The report referred to follows:) [From the New York County Lawyers' Association, Report No. F-9, October 1968] RECOMMENDATION: FURTHER REVISION OF PUBLIC LAW 90-351 Report of Committee on Federal Legislation on legislation to strengthen fairness and effectiveness in law enforcement 1 INTRODUCTION 1 The Omnibus Crime Control and Safe Streets Act of 1968 (Public Law 90-351) makes only the barest beginning at using the reservoir of federal power to control crime. At the same time, in some respects it requires rethinking to assure that both individual rights and effective law enforcement are advanced. We have therefore chosen to assume that the issues raised by the Act in the 90th Congress will still be pending before the 91st and to submit the following suggestions for further steps to control crime. A comprehensive overhaul of our system for handling criminal justice is necessary. Most of our procedures have been inherited from more than a century and a half ago, and carried forward without fundamental rethinking. This task must be approached on the basis of carefully balanced consideration, so that both law enforcement and individual rights will gain. Indeed, each 1 Members of this Committee are prepared to assist in drafting language to achieve the objectives set forth in this report, but the Committee does not believe its function to include drafting by the Committee. is dependent on the other. Without law enforcement, none of our rights would be secure. Without order, none of us can safely enjoy any of our rights. And without security from arbitrary action by law enforcement authorities, we would be living in a state reminiscent of 1984. Law enforcement alone, of course, will not suffice. Order in a free society requires justice, hope and opportunity for all. Fair and effective law enforcement can contribute to a climate in which these become possible. In framing new approaches we must take account of the new conditions of the last third of the twentieth century, including advances in technology available to both criminals and law enforcement authorities. We cannot assume that procedures adequate decades or centuries ago will do today. The basic purposes of our constitutional guarantees must be protected and extended. This requires changing measures in different times. Thus, in looking to the future we should be mindful of, but not mechanically controlled by, interpretations of the past. The founding document of our country, ". . . intended to endure for unnumbered generations, is concerned with substance and not with form. . . ." Dimick v. Scheidt, 293 U.S. 474, 490 (1935) (Stone, J. dissenting). In considering the interpretations of our great guarantees, we should “. . . turn to the words of the Constitution read in their historical setting as revealing the purpose of its framers and search for admissible meanings of its words, which in the circumstances of their application, will effectuate those purposes." United States v. Classic, 313 U.S. 299, 317-18 (1941). See Freund, New Vistas in Constitutional Law, 112 U. Pa. L. Rev. 631 (1964); Broderick, Evolving Due Process and the French Institutionalists; Reflections on the Right to Counsel and the Adamson Dissent, 13 Cath. U.L. Rev. 90 (1964). The fact that statements made by the Supreme Court in an opinion or series of opinions may seem contrary to an approach which has never been directly considered by the Court should not prevent its consideration. The judiciary can only consider issues presented to it, and if viable alternatives are not put forward, the result is bound to be unfavorable.1 Unless new approaches are enacted and placed before the courts, the courts will not have the opportunity to pass upon them. The fullest dialogue between the legislative and judicial branches and the people thus requires that the most constructive proposals which can be found be submitted for judicial determination. The responsibility of taking up that challenge can no longer be evaded. This is a task of working constructively with the judiciary, and not of attacking or seeking legislatively to overrule any particular decisions which one may or may not like. Only as each branch of our great system of government, including the people, performs its obligations to the fullest, can the results we seek be obtained. I. FIREARMS CONTROL The murder of John F. Kennedy on November 22, 1963 shocked the conscience of the world. Since that time Medgar Evers, Lemuel Penn, Mrs. Viola Gregg Liuzzo, Malcolm X, Dr. Martin Luther King, Senator Robert F. Kennedy and some 75,000 other Americans have been slain by firearms in these United States, and some 400,000 persons have been injured by firearms. Over 55,000 robberies with guns were committed in 1966 alone. More people have been killed by misuse of firearms and through gun accidents (since 1900 a total of nearly 800,000) than in all of our wars; 322 of 335 police officers killed in the line of duty between 1960 and 1966 were killed by guns. The gun not only epitomizes violence in our modern urban societies, but it has become a wanton and apparently uncontrollable instrument of wholesale murder and mayhem. And yet, firearms flow freely in the United States to everyone who wants them to the mentally sick, to the criminal, to the child, to those who do not 1 The Court has not hesitated to reverse itself when intervening events and further consideration disclosed that previous statements or even decisions could no longer stand; e.g. Gideon v. Wainwright, 372 U.S. 335 (1963) (expansion of right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (in absence of effective remedies illegally seized evidence inadmissible in State trials); Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment privilege against self-incrimination applicable to the States); United States v. Darby, 312 U.S. 100 (1941) (federal child labor laws valid); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (minimum wage laws upheld). For this reason alone, it would be improper to take statements in judicial opinions at any given time as controlling future legislation which should be presented to the judiciary for future rulings. See Bickel, The Least Dangerous Branch, 258-64 (1962), discussing Abraham Lincoln's position on Dred Scott v. Sanford, 19 How. 393 (1857). know how to use them. Where efforts have been made to check this free flow, such as here in the City of New York, they have been frustrated by the lack of checks in other areas. We long ago needed effective firearms control-it is as imperative today. There is no right to bear arms in other nations of the world-in Japan, in England, in the Netherlands, in Italy, and each of these countries has avoided the tragedy of mass death and mayhem by firearms which has become a part of the American scene. There is no individual right to bear arms, constitutional or otherwise, in the United States. Obviously, there are proper uses of firearms, and persons should be allowed to have them for purposes of official duty, protection, and appropriate sports. Farmers have legitimate needs for guns for killing destructive animals that eat their crops or attack their stock. But a gun is by definition dangerous to others. Unlike a motor vehicle, its very function is destruction. We require licensing of drivers of cars. We require in many cases that such drivers be insured. We require registration of cars so that stolen or improperly used cars can be traced. We should do the same with guns. A person having a legitimate use for a gun, such as a rifle for hunting, should support gun control laws as a protection to him and all others against abuse by criminals, the mentally ill and those who are not qualified to have guns. In the field of firearms controls as in that of control of electronic surveillance, any activity which, taken in the aggregate, affects interstate commerce may be regulated even if the individual case itself has only local ramifications. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Polish National Alliance v. NLRB, 322 U.S. 643, 648 (1944); Wickard v. Filburn, 317 U.S. 111 (1942), unanimously followed in United States v. Haley, 358 U.S. 644 (1959); United States v. Ricciardi, 357 F. 2d 91 (2d Cir.), cert. denied 385 U.S. 814 (1966). This power should be fully exercised. Gun control alone cannot prevent tragic events if the would-be killer is sufficiently determined, but it is an essential element in an overall effort to work toward effective law enforcement. Certainly, if one can be required to have a license and insurance to drive a car, the same should be required before one can have access to a gun. One difficulty involves the large number of firearms running into the millions in the hands of legitimate hunters and other citizens throughout the country. Regardless of what is done concerning rifles and shotguns obtained prior to the effective date of new controls which should be adopted, a permit can readily be required for anyone to obtain a new firearm of any kind. Likewise, possession, use of or dealing in any destructive device, such as a machine gun, bazooka, etc., or weapon which can readily be concealed, such as a pistol, can be made a crime unless covered by a valid permit. Permits should be issued only on the basis of an affirmative showing of need for the weapon, which in the case of rifles and shotguns may properly include hunting and sportsmen's activities if the person is of proper age, knows how to use the weapon, and there is no reason to believe that issuance of the permit would pose a danger to the community. Although such controls will not be fully effective, they would facilitate prosecution for illegal possession of firearms for those who have them for wrongful purposes, where those purposes themselves can be directly proved. Further requirement of permits and identifying marks on all firearms hereafter distributed would make it easier to trace weapons found at the scene of a crime. Investigation of what happened to such a weapon subsequent to its last valid possession would provide assistance to the police in such cases. Today we place an imposing burden upon our law enforcement officers by requiring them to be armed at all times-on duty and off, on patrol and at home. Every municipal police officer lives with his revolver all the days of his working life-his family lives in its shadow. The police officer is required to bear this burden to protect all of us, because we do not withhold firearms from persons who cannot or will not use them responsibly. When we in this country have developed effective firearms controls, then perhaps we shall be able to relieve our law enforcement officers of this terrible burden. We seek in the United States an ordered society, not as an end in itself, but so that the members of that society can enjoy individual liberty. Effective gun control legislation is necessary to minimize the disruption of individual liberty by those who, using guns wilfully, ineptly, or with wanton recklessness, deny life or liberty to others. It is necessary to protect some of us from ourselves. |