"One of the functions of government, based on long experience, is at times to protect the citizen against the government. This function has been performed, to some extent, by the Fifth Amendment, although not always perfectly, and not always without some loss to legitimate government interests. While protecting the citizen against the government, The Fifth Amendment has been a firm reminder of the importance of the individual.

"*** [T]he Fifth Amendment can serve as a constant reminder of the high standards set by the Founding Fathers, based on their experience with tyranny. It is an ever-present reminder of our belief in the importance of the individual, a symbol of our highest affirmations* * * p. 81.

Finally, in weighing the value of continued derogation of this Constitutional protection one must consider carefully and in very practical terms what is really likely to be gained. It appears universally agreed that this bill, is aimed at "La Cosa Nostra." We do not believe that immunity statutes will lead to the conviction of the leaders and more powerful members of (that organization) for crimes they have committed. Rather it appears probable that only so-called "little fish" will be punished and then not for their crimes but for continued refusal to give evidence. The current trials of alleged Mafia members in New York for refusal to give testimony after having been given immunity are indicative of the harsh reality that grants of immunity are more likely to result in defiance or perjury than in production of evidence. Organized crime has institutionalized and enforces a conspiracy of silence. As former Attorney General Katzenbach stated in his testimony on S. 2190, the anti-racketeering bill, that conspiracy of silence is "secured most dramatically through terror. When the tortured body of an underling is found hanging from a hook in a meat freezer, he cannot talk and his associates are not likely to."

It is difficult to see how this proposal can in any way help to pierce this kind of silence.

S. 2122

Our objections to the immunity provisions in S. 30 also apply to S. 2122, which proposes a general federal immunity statute applicable to grand jury, court, administratve agency and Congressional proceedings, obviating the necessity for a variety of specific provisions, to cover specific situations, now existing or proposed. Like the immunity section of S. 30, S. 2122 does not provide a broad enough grant to meet the constitutional standards of Counselman. It provides that "no testimony or other information compelled *** (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case * * *." This is not an absolute bar to state or federal prosecution regarding any matter about which testimony or information has been compelled.

In addition the procedure provided by S. 2122 for compelling testimony in court and grand jury proceedings differs from the procedure proposed in the other bills under consideration as well as that in existing federal immunity statutes (see, e.g., 18 U.S.C. 1406). It contemplates that on the request of the U.S. Attorney with the approval of the Attorney General, having determined that the testimony or other information sought (1) may be necessary to the public interest, and that (2) the individual has or is likely to refuse to testify or provide the information on Fifth Amendment grounds, the U.S. District Court shall issue an order requiring the individual to give testimony or information. Apparently there is to be no check on the propriety or relevance of the questions to be posed or information sought by the U.S. Attorney. Placing such totally unrestricted power to grant a limited immunity in the hands of the prosecutor is unwarranted, and reduces the requirement of a court order to a mere paper procedure. Similarly, the provision for compelling testimony in Congressional proceedings requires a court order, but it is mandatory on the asking.

Finally, a general immunity provision, barring only the use of compelled evidence rather than granting total immunity from prosecution, as a practical matter, provides actual incentive for circumvention of the Fifth Amendment while now immunity provisions are invoked as a last resort. A less than energetic prosecutor might be quick to rely on the limited immunity provision rather than another means to secure investigatory leads while loath to rely on a total grant for fear of immunizing the subject from any future prosecution. Similiarly Congressional investigating committees which hesitate to compel testimony for fear of immunizing witnesses from prosecution for acts about which information is sought, would be less hesitant to call controversial witnesses and use this power to expose and harass.

Title III-Recalcitrant Witnesses

Title III of S. 30 purports to codify existing law as to the civil contempt power of the courts summarily to imprison witnesses in order to coerce them to testify. If that is all that it does then it is totally unnecessary. Our difficulty with the Title is that the proposed statutory language may do more.

The proposed provision permits confinement "until such time as the witness is willing [to testify]." Traditionally, such summary confinement may not last beyond the term of the grand jury before which the witness has been ordered to testify. Shillitani v. United States, 384 U.S. 364 (1966). No such limitation is stated here, however.

If this lack of limit is merely inadvertence that is one thing, but if it is intended to authorize confinement beyond the life of the grand jury then it is clearly unconstitutional. See, Shillitani v. United States, supra; United States v. Coplon, 339 F. 2d 192 (AG 1964); Brown v. United States, 359 U.S. 41 (1959). Moreover, Title I of the bill extends the potential life-time of a grand jury from the traditional 18 months to up to 36 months. If Title III is intended to limit confinement for the life of the grand jury, as a result of Title I, it would authorize confinement without possibility of bail for as long as 3 years double the length of time now permitted. This is inconsistent with the accepted rationale for the court's summary civil contempt power, which has been long allowed on the theory that the confinement is coercive, not punitive, and that contemnor holds "the keys of the prison in his own pocket." In Re Nevill, 117 Fed. 499, 461 (8th Cir. 1902). It is to be contrasted with the court's power to imprison for criminal contempt. Since that is viewed as punishment, confinement is limited to 6 months unless a jury trial on the contempt charge is provided. See Frank v. United States, 37 L.W. 4437 (May 20, 1969). Where a witness is subjected to a 3 year confinement and is willing to suffer that, rather than testify, it becomes clear that the coercion is inadequate, as in the case of a mobster who, though imprisoned for years, refuses to testify for fear of torture and death. The imprisonment has ceased to be coercive and has become punitive. See Goldfarb, The Contempt Power, 266-67 (1963); The Coercive Function of Civil Contempt, 33 U. Chi. L. Rev. 120 (1965). As punishment, a three year confinement without possibility of bail, well may run afoul of both the prohibition in the Eighth Amendment against cruel and unusual punishment and the Fifth Amendment requirement of due process.1

Also objectionable is the prohibition against admitting a contemnor to bail under any circumstances. Although there may be no traditional right to bail in civil contempt cases, the discretion of the courts should not be so rigidly circumscribed as to prevent admitting a contemnor to bail when, for instance, his appeal raises substantial legal or factual issues going to the validity of the finding of contempt. In such cases either the trial judge or the appellate courts should retain the power to set bail. Moreover, prohibiting bail may be selfdefeating in that judges who entertain any doubts at all as to the legality of the imprisonment may choose to err on the side of caution.

Title IV-False Statements

Section 401 of S. 30 would create a new statutory offense consisting of knowingly falsifying fact or making any false, fictitious or fradulent statement or representation, or making or using any false writing or document while under oath in any proceeding before a court or grand jury. This would appear to encompass only acts which are already criminal under 18 U.S.C. 162, and 1622, which define the offenses of perjury and subornation of perjury. Nevertheless, it is urged in that as a new statutory offense it would be free from limiting common law evidentiary requirements applicable to perjury. In addition, it increases existing perjury penalties of up to 2 years and/or $2,000 fine to up to 5 years and/or $10,000 fine where the false statement is before a grand jury or court.

The common-law evidentiary rules applicable to perjury prosecutions which Title IV would eliminate are specifically intended to make perjury convictions difficult to obtain. Proponents of change emphasize the importance of securing honest and truthful testimony, especially in the context of organized crime in

1 Cf., the limited periods of imprisonment for contempt of grand juries set forth in footnote 11, Brown v. United States, 359 U.S. 41, 57 (1959), generally no longer than a few months. The longest contempt sentence ever sustained by any appellate court in the federal system for a refusal to answer questions of a court or a grand jury up until Brown was the fifteen months in that case.

vestigations where the pressures to lie may be great. While we do not question the desirability of attempting to guarantee truthful testimony, it is our view that this is outweighed by the desirability of continuing the present protection of witnesses from harassment and retributive prosecution afforded by these traditional rules.

The so-called "two witness" rule, which would not apply to offenses under proposed Title IV, simply stated is that "in prosecutions for perjury the uncorrobated oath of one witness is not enough to establish the falsity of the testimony of the accused ***." Hammer v. United States, 271 U.S. 620, 626 (1926). In Weiler v. United States, 323 U.S. 607 (1944), a unanimous Supreme Court reexamined and affirmed the rule as against the argument that it was an "incongruity in our modern system of justice and that it raise[d] an unjustifiable barrier to convictions for perjury." At 608. Pointing to the deep historical roots of the rule, the Court acknowledged that it obviously made prosecutions for perjury more difficult than otherwise, but concluded that, nevertheless, the rule was justified, reasoning as follows:

"The crucial role of witnesses compelled to testify in trials at law has impelled the law to grant them special considerations. In order that witnesses may be free to testify willingly, the law has traditionally afforded them the protection of certain privileges, such as, for example, immunity from suits for libel springing from their testimony. Since equally honest witnesses may well have differing recollections of the same event, we cannot reject as wholly unreasonable the notion that conviction for perjury ought not to rest entirely on an oath against an oath! The rule may have originally stemmed from quite different reasoning, but implicit in its evolution and continued vitality has been the fear that innocent witnesses might be unduly harassed or convicted in perjury prosecutions if a less stringent rule were adopted."

We agree that a case has not been made for abandoning this rule. However great the dangers of perjured testimony in the organized crime context, they afford no justification for increasing the difficulties of presenting a defense, asserting a claim, or securing willing witnesses in all contexts, which is what Title IV would do.

Similarly, we are not persuaded that a new statutory crime of perjury should be created to which the "contradictory oath rule" would not apply. Under that rule, contradictory statements under oath may not be the subject of a perjury prosecution without the additional proof of the falsity of one of the statements. Proposed Section 1623 (d) of Title IV would statutorily abrogate this rule in perjury prosecutions. It would presumptively establish the falsity of testimony by proof of "manifestly contradictory statements or testimony material to the issue or point in question" made under oath in any trial, hearing or grand jury proceeding.

Proponents of this provision argue that allowing the prosecution to show perjury by merely setting forth logically inconsistent statements under oath without proving the falsity of one of these will expedite perjury convictions, and will not work an injustice on the defendant since if he can explain the inconsistency he may do so. We disagree. Such a procedure is inconsistent with the presumption of innocence which underlies our criminal process and places the burden of proof on the prosecution rather than the accused.

Title V-Depositions

In proposing to the Supreme Court the Federal Rules of Criminal Procedure which the Court adopted in 1946, the Advisory Committee which drafted the new rules provided for the taking of depositions by both prosecution and defense in certain situations. The Supreme Court rejected prosecution depositions, perhaps, a member of the Advisory Committee suggests, out of "a feeling that the government could better afford to lose a few cases than make even a gesture which might be interpreted as favoring a trial on a paper record." (Decision, The New Federal Rules of Criminal Procedure: II, 56 Yale L.J. 197, 218 (1956)). In our view, Title V is a major step toward a paper-record trial. It would allow for the taking of depositions of a government witness whenever required "in the interest of justice" and provide for the admissibility into evidence at a trial or hearing of such deposition when the witness is unavailable to testify. Care is taken to afford the defense adequate notice and opportunity to confront and cross examine the deponent, even to the extent of absorbing the costs to the defendant not in custody and his attorney. Nevertheless, we do not believe that these provisions can adequately preserve a defendant's Sixth Amendment

rights. Only the establishment of a full-scale criminal discovery procedure can afford the meaningful protection which the Sixth Amendment demands.

The procedures in Title V would force defendant's counsel to cross-examine effectively, on pain of loss of the life, liberty or property of his client, long before trial, long before the surrounding evidence is in, long before a pattern of testimony has emerged, long before the impact of other events and other witnesses' testimony may be assessed. Questions regarding the scope of examination, crossexamination, re-direct and re-cross are raised out of the context of trial, when the issues may not have been completey joined, when there exists greater doubt about the ability to connect-up testimony to other testimony in the trial, etc. As a result the right of cross-examination and confrontation is considerably less useful as a means of discovering truth, of impeaching witnesses and so forth than it would be if exercised at trial. Only full scale criminal discovery can assure that defendant's counsel will be familiar enough with the government's case to meaningfully exercise the rights which Title V now purports to preserve. Because Title V is concerned only with securing and preserving testimony in the face of threats of retaliation to witnesses by criminal organizations it focuses on only one aspect of the critically important law of pretrial discovery. The problem, however, cannot be viewed in so narrow a context. If this kind of deposition is desired then this Subcommittee must be willing to inquire into, and should report out a provision which provides for, an effective overall system of pretrial discovery.

This is by no means a new problem. As long ago as 1893 a noted legal scholar of the day wrote:

"The old theory was that a prosecution for crime was a contest between the injured person, or his relatives, and the accused. That theory has gradually yielded to the milder view that the contest is between the public and the accused. We ought now be ready for the theory that a criminal prosecution is not a contest at all, but an investigation, conducted by the State, before a tribunal of its own appointment, with as great desire to clear the defendant, if not guilty, as to convict him, if guilty. "(Chaplin, Reform in Criminal Procedure, 7 Harv. L. Rev. 189, 199 (1893), quoted in Decision, op. cit. supra at 219).

More general pretrial discovery, such as has successfully been used for years in civil matters, represents a vital step toward the impartial investigation which was being called for as early as 76 years ago, and which we do not yet have. We lag far behind Great Britain and Canada in this regard.

Heretofore in the area of criminal law the ultimate burden of adjusting the State-versus-accused balance of fairness in getting at the truth-i.e., in regulating pretrial discovery and other elements of criminal due process-has been the Supreme Court's through the vehicle of constitutional interpretation. You are all aware that the Court has met with some criticism of its work, often for moving too quickly. But one area that has been developed painfully slowly so far is that of pre-criminal trial discovery. Recently, however, that has been substantial pressure for change. Seventy-three scholarly articles, all calling for new developments in this area, were published between 1960 and 1968 (Bibliograph: Criminal Discovery, 5 Tulsa L.J. 207 (1968)), and this pressure for better, more fairly balanced criminal procedure will be recognized and acted upon by the courts if legislatures are unable to make progress.

A proper discovery system would not only facilitate the government in areas such as the proposed legislation suggests, but also would speed up the conviction process and make it more economical, would convert criminal trials from games of chance and surprise to procedures designed to cut through to the truth of the matter, and could ultimately reduce the need for Supreme Court involvement in the area of criminal due process by eliminating the need for strategies and tactics designed to entrap, coerce and beguile, on the one hand, and to delay, deceive and evade on the other. The former are being struck down as unconstitutionally devoted to convictions at any cost. The latter sometimes unnecessarily enable the guilty to defeat, or at least to avoid the full effect of, our system of criminal justice.

Title VI-Protected Facilities For Housing Government Witnesses

Obviously it is not the intent of Title VI that the Attorney General be authorized to commit persons to witness facilities or to detain persons in such facilities against their will. Thus Section 602 merely authorizes the Attorney General to "offer" the use of witness facitities and goes on to provide that any person availing himself of such "offer *** may continue to use such fa

cilities for as long as the Attorney General determines the jeopardy to his life or person continues." Nevertheless at the present time, when apparently there is widespread concern over preventive detention in a variety of contexts (cf. Emergency Detention Act of 1950), we think it would be useful to add to Title VI a provision which expressly precludes the Attorney General from ordering the incarceration of individuals against their will or refusing release of facility residents on the ground that such action is "necessary to assure the security of *** the persons residing therein." This can be accomplished simply by modification of the first sentence of Section 602 as follows:

"The Attorney General may offer the use of such facility, but shall not require that any individual be committed to or remain in witness facilities against his will, to any **

As clarified we can support Title VI. By providing additional and reliable government protection it well may prove a useful tool in securing testimony from witnesses in organized crime cases where fear of retaliation by the criminal organization is a powerful deterrent to their cooperation.

Title VII-Declarations of Co-conspirators

Title VII purports to "codify" an exception to the evidentiary rule which precludes the introduction into evidence of extra-judicial hearsay statements. This exception covers statements made by co-conspirators and it permits the introduction-of out-of-court declarations made by one co-conspirator in a trial of his colleagues, where the declaration was made in furtherance of the conspiracy and during its pendency and where an independent foundation of the existence of the conspiracy and the accused's participation in it has been laid. We have two problems with proposed Title VII. First, Senator McClellan has suggested in his statement on the Senate floor that, as is required by the traditional hearsay exception, the admissibility of co-conspirator declarations would be subject to "the laying of an independent foundation for the existence of the conspiracy." The problem is that the bill does not so provide; it permits introduction into evidence of a co-conspirator declaration under certain circumstances, in an "action in which it is alleged that two or more defendants participated as co-conspirators."

We believe that Section VII should be expressly limited to cases in which an independent foundation has been laid. It has been repeatedly recognized that such a requirement is an essential condition to the admissibility of coconspirator declarations. Thus, the Supreme Court has ruled that "it is necesessary to show by independent evidence that there was a combination between them and [the defendant] **." Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249 (1917). Moreover, this requirement of "proof aliunde that [a defendant] * # * is connected with a conspiracy," Glasser v. United States, 315 U.S. 60, 74 (1942), may not be satisfied by evidence of acts and extrajudicial declarations of alleged conspirators; there must be "substantial independent evidence," Standard Oil Co. v. Moore, 251 F. 2d 188, 219 (9th Cir. 1958). Both the motive of the conspiracy and the particular defendant's participation therein must be established by such independent evidence. "Otherwise," as the Supreme Court noted, "hearsay would life itself by its own bootstraps to the level of competent evidence." Glasser v. United States, supra, at p. 75. In order to make it clear that Title VII is subject to the independent foundation requirement we propose that Section 701 on p. 18 line 2 read as follows:

"*** evidence against any other defendant provided substantial independent evidence of the conspiracy is produced, and if the court determines *

Our second concern has to do with the proposal to discard the requirement that co-conspirator declarations must be made "in furtherance of the conspiracy" if they are to be admitted into evidence. The so-called "furtherance" requirement has been part and parcel of the co-conspirator declaration exception for centuries and, as documented by recent Supreme Court decisions, it has retained its vitality to the present time. See, Wong Sun v. United States, 371 U.S. 471, 490 (1963); Krulewitch v. United States, 36 U.S. 440, 444 (1949). We do not believe that this requirement should be cast aside. As the Supreme Court has recently observed: "We have consistently refused to broaden that very narrow exception to the traditional hearsay rule which admits statements of a co-defendant made in furtherance of a conspiracy or joint undertaking." Wong Sun v. United States, supra, at p. 490 (Emphasis added).