like to see enacted into law, but in this is the way get the best contribution and the best assistance. We appreciate the help we are getting from you and from others who are competent in this field and who make constructive suggestions for revisions.

Thank you very much.

Did you wish to say something?

Mr. LAUGHLIN. No, Senator.

Mr. GREENHALGH. Thank you, sir.

Senator MCCLELLAN. We will call the next witness.

Professor Ruth, will you come around please?

STATEMENT OF HENRY S. RUTH, ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL

Senator MCCLELLAN. Would you identify yourself for the record, please?

Mr. RUTH. Yes, sir. My name is Henry S. Ruth, Jr., and I am associate professor of law, University of Pennsylvania Law School. I was Deputy Director of the President's Commission on Law Enforcement and Administration of Justice, and I was at one time in the Organized Crime and Racketeering Section of the U.S. Department of Justice. In addition to teaching at the Pennsylvania Law School, I am now a member of the Governor's Crime Commission in the Commonwealth of Pennslyvania.

Senator MCCLELLAN. Thank you very kindly.

I note you have a prepared statement of some length.
Would you like to insert that in the record in full?

Mr. RUTH. Yes, sir. I would prefer not to read it; at your discretion?
Senator MCCLELLAN. I beg your pardon?

Mr. RUTH. I would prefer not to read the whole thing-in your discretion and just answer questions.

Senator MCCLELLAN. Very well, let it be inserted in the record, in full, at this point.

(The prepared statement submitted by Mr. Ruth read in full as follows:)

STATEMENT OF HENRY S. RUTH, JR., ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL

Mr. Chairman, I appreciate your invitation to testify as to the manner in which the provisions of S. 30 relate to the recommendations of the President's Commission on Law Enforcement and Administration of Justice. The Commission made recommendations pertinent to Title I (grand juries), Title II (immunity), Title IV (false statements), Title VI (protected facilities) and Title VIII (special offenders). I will deal with these titles insofar as they bear upon Commission recommendations. However, each of the eight titles in S. 30 deserves extensive individual attention from a policy and legal standpoint. Naturally, it is impossible for one witness to perform this function. But as to each title, I would like to raise some questions for discussion during oral testimony.

Grand Juries.-On page 200 of the Commission's general report, The Challenge of Crime in a Free Society, the following analysis and recommendations were offered:

"A compulsory process is necessary to obtain essential testimony or material. This is most readily accomplished by an investigative grand jury or an alternate mechanism through which the attendance of witnesses and production of books and records can be ordered. Such grand juries must stay in session long

enough to allow for the unusually long time required to build an organized crime case. The possibility of arbitrary termination of a grand jury by supervisory judges constitutes a danger to successful completion of an investigation. The Commission recommends.-At least one investigative grand jury should be impaneled annually in each jurisdiction that has major organized crime activity.

If a grand jury shows the court that its business is unfinished at the end of a normal term, the court should extend that term a reasonable time in order to allow the grand jury to complete pending investigations. Judicial dismissal of grand juries with unfinished business should be appealable by the prosecutor and provision made for suspension of such dismissal orders during the appeal.

The automatic convening of these grand juries would force less than diligent investigators and prosecutors to explain their inaction. The grand jury should also have recourse when not satisfied with such explanations.

The Commission recommends.-The grand jury should have the statutory right of appeal to an appropriate executive official, such as an attorney general or governor, to replace local prosecutors or investigators with special counsel or special investigators appointed only in relation to matters that they or the grand jury deem appropriate for investigation.

When a grand jury terminates, it should be permitted by law to file public reports regarding organized crime conditions in the community."

With some minor procedural variations, S. 30's Title I implements these Commission proposals. The principal thrust of the proposals was an effort to give the grand jury a measure of independence, authority and flexibility so that the present tight control by prosecutor and judge could not become an absolute, arbitrary power. These goals are particularly served in organized crime matters where the traditional wide sweep of grand jury investigative power must be exercised. Regular summoning of grand juries, extensions of normal terms and appeals to higher executive and judicial levels for action relevant to continued, high-quality investigation will provide a check in those extraordinary circumstances when the grand jury members find themselves in disagreement with the local United States Attorney or a dismissal action by a District Court judge. These powers will not have to be utilized often. However, they should be available in order to implement the broad role of the grand jury as expressed in Hale v. Henkel, 201, U.S. 43 (1906). See also, United States v. Smyth, 104 F. Supp. 283 (N.D. Cal. 1953).

Sections 3322 and 3330 go beyond Commission recommendations. The following are matters that I would like to raise in discussion with the Committee.

(a) Section 3322 does not satisfactorily resolve the possible stalemate that may result between grand jury, court and prosecutor. Can the prosecutor refuse to present evidence? Can the court refuse to permit its subpoena power to be used (See Fed. R. Cr. Proc. 17)? Must the grand jury continue even though the Circuit Court of Appeals decides otherwise? Can the grand jury hire its own investigators? Are there no standards for court check upon abuse of power by the grand jury itself? It should be kept vividly in mind that Title I applies to any crime against the United States, not just organized crime. The situation presented in United States v. Cox, 342 F.2d 167 (5th Cir. 1965), wherein obvious racial problems existed, provides a good example of this clash of powers. (b) The grand jury reports were questioned constitutionally and on policy grounds in Application of Electrical Workers, 111 F. Supp. 858 (SDNY 1953). See also, Matter of Petition for Disclosure of Evidence, 184 F. Supp. 38 (ED Va. 1960). The S. 30 proposal also goes beyond the New York statute upon which it was based by permitting public reports supported by a preponderance of the evidence, whereas New York requires a preponderance of credible, legally admissible evidence. Finally, possible equal protection problems are raised by Beck v. Washington, 369 U.S. 541 (1962) (dissenting opinions) and Sweeney v. Balkcom, 358 F.2d 415 (4th Cir. 1966). I would like to explore with the Committee possible checks on the grand jury power to cite non-criminal conduct of public officials and to make recommendations for legislative, executive and administrative action. My particular concerns are preservation of grand jury secrecy, extension of investigation beyond a search for violations of law and public accusation without sufficient basis for challenge in an adversary setting. The report power coupled with the independence given to the grand jury in earlier sections of Title I calls to mind the current national ferment over a wide range of social problems and the public search for scapegoats.

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 logical 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 examination 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