Federal figures, we see that only 52.7 percent of the defendants in perjury cases were found guilty in the 10-year period from 1956 through 1965. In all other criminal cases, however, 78.7 percent of the defendants were found guilty. The difference is striking. Indeed, out of 307,227 defendants only 713 were even charged with perjury during this period. The threat of a perjury conviction today thus offers little hope as a guarantee of truthfulness in the evidence gathering process in organized crime investigations. Indeed, it seems apparent that virtually every organized crime investigation and prosecution is characterized by false testimony. Whatever the situation elsewhere in the administration of justice, here false testimony begins in the field with interviews, extends into the grand jury, and ultimately infects the trial itself. Convictions for perjury based on this false testimony, nevertheless, are the exception instead of the rule. It is, moreover, a failure directly attributable to the law itself. Consequently, it can be relatively easily remedied.

For centuries perjury was not the false testimony of a witness, but the false verdict of a jury. It was the incidental result of the process of attaint, whose main object was to set aside such verdicts. The process was so objectionable that it was little used. During the 14th century, however, witnesses began to be used in trials, and the function of the jury shifted from returning verdicts based on their own information to finding facts based on testimony presented to them. This change gave rise to the need for a sanction when false evidence was presented to the jury. A large gap was left in the law.

The first statutory reference to the crime of perjury appeared in 1540. The Star Chamber read this act as authorizing punishment for perjury. Although the crime was theoretically cognizable in the ordinary criminal courts, it was dealt with almost exclusive in the Star Chamber, where the proceedings were presided over by the Lord Chancellor and conducted according to the ecclesiastical law under which a quantitative notion obtained of the credit to be accorded to the testimony of a witness under oath. From this notion, the so-called two witness rule developed, that is, two witnesses to the same fact are necessary to establish it. Lord Chief Justice Hardwicke in Rex v. Nunez, Cas. T. Hard 265, 95 Eng. Rep. 171 (K.B. 1736), summed up the rule:

One man's oath is as good as another's. When the Star Chamber was abolished in 1641, the principles it had established in perjury prosecutions were carried over into the common law.

Federal courts today still follow the two witness rule and its corollary, the di

rect evidence rule. Actually, the two witness rule is misnamed. Under modern law, it no longer requires the testimony of two witnesses; it merely provides that the uncorroborated 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). The corroborating evidence, moreover, need not independently establish the falsity of the testimony; it is enough if it furnishes a basis to overcome the oath of the accused and his presumption of innocence. The rule has no application to elements of perjury other than falsity.

Closely related to the direct evidence rule are the cases holding that contradictory statements under oath may not be the subject matter of a perjury prosecution without the additional proof of the falsity of one of the statements. Dissatisfaction with this result led to the adoption of remedial statutes in some States. At the Federal level, however, the rule today remains viable.

It seems clear that the two witness and direct evidence rules ought to be abolished, at least in some areas. This was the conclusion of the President's Crime Commission. Suggestions that the existing rules are necessary "to protect honest witnesses from hasty and spiteful retaliation in the form of unfounded perjury prosections," Weiler v. United States, 323 U.S. 606, 609 (1945), are unconvincing. Note first that the adopted remedy is broader than the alleged abuse. The existing rules apply across the board. They are not limited to situations where it might be reasonably supposed retaliation was involved. Further, it is obvious that the remedy is hardly adequate even as adopted. It can easily be circumvented merely by acquiring a spiteful accomplice. Thus, it is a bad rule even if you grant the possibility of the evil. The law, moreover, ought to encourage not testimony, but truthful testimony. The existing rules run counter to this goal; perjury, not truth, is protected. More importantly, the rules constitute an unwarranted slander on the power of discernment of prosecutors, grand juries, trial judges and the petit jury. The rules seem to assume that somehow the spiteful prosecution can be brought and a conviction obtained without the support of anyone other than the complainant.

The existing rules are, in short, an unwarranted obstacle to securing legitimate perjury convictions. There is ample protection against spiteful retaliation in the traditional safeguards applicable to every criminal case. There is no good reason why perjury-at least before grand juries and courts-should not be treated like any other crime. Sound prosecutive discretion and proof beyond a

reasonable doubt of a judge and jury constitute ample protection against the unwarranted charge and conviction of perjury.

On the Federal level, a statute dealing with contradictory oaths should also be adopted. There is much merit in the observation that consistency alone should not be a legislative goal. There is, however, a legitimate goal in allowing the prosecution to plead and prove its case in the alternative, showing the falsity by inherent logical inconsistency. Those who give false testimony ought not to be able to escape by placing the prosecution in a logic dilemma. It should be sufficient for conviction if the evidence shows either statement is false without specifying the false statement. There is no good reason why such proof should not be sufficient.

Title IV of S. 30 thus creates a new Federal crime dealing with false statements before grand juries or in trial proceedings, and since it is a new offense, the common law rules of evidence applicable in perjury prosecutions generally will not be applicable to it. It also eliminates the applicability to the new offense of the contradictory oath rule by establishing a special presumption of falsity where two materially inconsistent statements are made.

WITNESS FACILITIES

Each step in the evidence gathering process I have so far described moves toward the production of live testimony, for to bring criminal sanctions into play, it is necessary to develop legally admissible evidence. Criminal sanctions do not enforce themselves. Yet it must now be obvious to all concerned that witnesses in organized crime cases simply do not volunteer to testify or to turn over relevant books and records. Attorney General Nicholas deB. Katzenbach testified in 1965 that, even after the cases had been developed, it was necessary to forego prosecution hundreds of times because key witnesses would not testify for fear of being murdered. Indeed, the Attorney General indicated that such fear was not unjustified; he testified that the Department lost more than 25 informants in the period of time between 1961 and 1965.

In this connection the President's Crime Commission, tragically concluded:

No jurisdiction has made adequate provision for protecting withòises in organized crime cases from reprisal. In a few taste.moes where guards are provided, resouross 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 dimoulty of obtaining witnesses because of the fear of reprisal could be countered somewhat if gov

ernments had established systems for protecting cooperative witnesses.

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 permit ted to remain at the facility so long as he needs to be protected.

It was to meet this responsibility that titles V and VI of 8. 30 were drafted.

Title VI authorizes the Attorney General to rent, purchase or construct such facilities as are necessary to provide secure housing for Government witnesses in organized crime investigations and prosecutions on the State or Federal level. This provision should not only help meet our responsibilities to citizens, but also aid States in meeting their responsibilities, since providing protection is such an expensive proposition.

Title V, on the other hand, authorizes the taking of pretrial depositions. I thus now turn to a consideration of the legal background of depositions in criminal cases.

DEPOSITIONS

With the development of the witness in the common law trial in the 1600's, there developed a series of rules, each seeking to establish the truth of his testimony. The witness must, as Chief Justice Vaughn put it in Bushel's Trial (1670) 6 How. St. Tr. 999, 1003, speak to "what hath fallen under his senses." The law then rightly wanted no part of second-hand information. Closely allied to this principle was the rule that demanded confrontation-cross examination. Too many knew of the injustice done in Raleigh's Trial (1603), 2 How. St. Tr. 16, when Chief Justice Popham refused to produce Lord Cobham, the accuser. No precise date or ruling stands out as decisive, but the rule seems to have become fixed between 1675 and 1690.

This rule against hearsay, however, was not without exceptions. Sworn depositions could be used, as Raleigh himself conceded, "where the accuser is not to be had conveniently" (1603) 2 How. St. Tr. 16, 18. Nevertheless, with firm establishment of the exclusion of extra judicial unsworn statement, the anomaly of the sworn statement stood out, and in Fenwick's Trial (1696), 13 How. St. Tr. 537, 618, the principle if not the rule carried the day, for it soon became "a fundamental rule (of) law that no evidence shall be given against a man, but in the presence of the prisoner, because he may cross-examine him who gives such evidence."

Today, of course, this rule is embodied in our sixth amendment, which guarantees "the accused the right to be confronted with the witnesses against him." Unfortunately, however, an early Vir

ginia case confused the historic right of confrontation with a demand that all testimony in criminal cases be face to face, viva voce. This led to a constitutional doubt that showed itself in the general omission in State deposition statutes of permission to the prosecution to take depositions, subject to confrontation cross-examination, in criminal cases, even though the courts themselves, including the Supreme Court in Mattox v. United States, 156 U.S. 237 (1895), made it clear that on principle such provisions were unobjectionable.

Title V of S. 30 is thus but a natural complement of title VI. Title VI authorizes the physical protection of witnesses before, during, and after trial. Title V authorizes the prosecution to take depositions in criminal cases whenever it is in the interest of justice. Accordingly, once the witness' testimony has been secured, in most cases, the motive to harm the witness is at an end. The evidentiary damage has been done. Under these circumstances, it may be, therefore, possible to release the witness from protective custody and allow him to return to a normal life, even though the trial has not yet begun. Given the delay associated with criminal prosecutions today, this will be no small benefit to the witness and his family.

Title V scrupulously provides for the defendant's rights. The deposition can only be taken after the issues between the Government and the accused are joined by the return of an indictment or the filing of an information. Reasonable notice must be given to the accused, and he must be accorded the opportunity, with counsel, to confront and cross-examine the witness. Finally, provision is made in the present form of the statute for use of the deposition at trial subject to the present rules of evidence.

COCONSPIRATOR DECLARATION

In the area of the investigation and prosecution of organized crime, the existence and scope of covert conspiratorial activity is usually shown either by circumstantial evidence, the testimony of a coconspirator who has turned state's evidence, or the evidence of the out of court declarations or acts of a COconspirator or of the defendant himself. Termed "firmly established" by the Supreme Court in Krulewitch v. United States, 336 U.S. 440, 443 (1949), the coconspirator declaration rule, an exception to the usual exclusion of extrajudicial statements, is thus central in any attack on the menace of organized crime.

While the hearsay rule developed in the last half of the 1060's, it was but a short period of time following that this exception developed in the law. The first reliable instance occurred in the Trial

of Lord Gordon, (1781) 21 How. St. Tr. 485, where the cries of the mob in the infamous Gordon Riots of 1780 were admitted against the defendants. Building on this decision as a precedent, English courts in the treason trials of the fellow travelers of the French Revolution soon matured the rule if not its rationale in England, while it was accepted in 1827 into American jurisprudence and rested on agency principles by no less of an authority than Mr. Justice Story in United States v. Gooding, 25 U.S. (12 Wheat) 460 (1827).

Today the rule is usually framed in these terms: Any declaration by one coconspirator, voiced in furtherance of the conspiracy and during its pendency, is admissible against each coconspirator, subject to the laying of an independent foundation of the existence of the conspiracy and the accused's participation in it.

Title VII of S. 30 is a codification in all but one respect of the existing law. The rule presently requires the court to find, not only participation and pendency, but also "furtherance," a requirement of somewhat ill-defined meaning, apparently an outgrowth of the early agency rationale. Sometimes, too, "furtherance" has been stated in res gestae language. Other courts, however, while ostensibly retaining the requirement have applied it so broadly that anything relating to the conspiracy is found to be in furtherance of its objectives.

Building on the recommendations of the Model Code of Evidence, Title VII shifts the foundation on which the coconspirator declaration exception to the hearsay rule rests from agency to trustworthiness. All aspects of the present rule are thus retained save that of "furtherance." With Judge Learned Hand in Von Riper v. United States, 13 F. 2d 961, 967 (2d Cir 1926), the proposed statute would recognize frankly that such "declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime." Vicarious responsibility is but one of the risks an individual must run when he associates for the commission of a crime. Nevertheless, the risk must be defined in terms of the underlying purpose of the trial itself rather than in terms of the principles of agency. Only those vicarious admissions where there are in existence facts and circumstances from which trustworthiness may be inferred may be vicariously admitted. It may well be expected that this rule will enlarge the category of admissible evidence, but surely this cannot be objected to where the new foundation of the rule guarantees that all such evidence admitted will lead to the establishment of the truth,

however hard that truth may be in the individual case. It is not too great a risk to impose on those who associate to subvert our society.

SPECIAL OFFENDER SENTENCING

Mr. President, the last aspect of S. 30 deals with the special offender sentencing.

There is no doubt that whatever view one holds about the criminal law, its importance in our society cannot be questioned. Here each places his ultimate reliance for security. Nevertheless, we must recognize, too, that the penal law contains the strongest force known to our society, a force which in the past has too often tended toward brutality. Exercised well, it accords to each security. Exercised ill, it accords to none security. How that power should be exercised is thus a question of capital importance.

Traditionally, two tendencies have manifested themselves in the penal law in reaction from the brutality of another day, perhaps best illustrated by the philosophy of Draco, who, it should be recalled, once lamented that he knew of no penalty harsher than death, for he felt the smallest crime merited it.

The first tendency, going back in modern times to Beccaria's historic 1764 essay, "On Crimes and Punishments," seeks to fit the punishment to the crime. This tendency was, of course, rooted in a desire to limit the fearful application of the death penalty, at one time the punishment for numerous, some very petty, offenses. Its overall effect has been to narrow not only the application of the death penalty, but also to eliminate long prison terms.

The second, stemming from contemporary theories of criminology, seeks to fit the punishment to the offender. This tendency, of course, is rooted in a desire to rehabilitate. Those who generally espouse this view, however, have tended to the conclusion that crime can best be dealt with only by broad changes in our society and through intensive work with juveniles. Unfortunately, this view has shown, as an American Bar Association study concluded, "little realistic concern about the organized and wellhabituated criminals who incessantly exploit the community."

The penal codes of most jurisdiction, however, reflect little of either approach. Indeed, save for attempts to abolish the death penalty, little attention at all has been given to the penalty structure of most penal codes since the turn of the century. Penalties vary from one offense to the next without seeming rhyme or reason. Inconsistencies abound throughout. Other than the "sexual psychopath" laws, the only general movement dis

cernible has been the growth of recidivist or habitual offender statutes, a growth which occurred primarily in response to the emergence of mob activities following the First World War and the prohibition era, and which was premised on the hope that severer sentences on criminals that repeat would keep them out of circulation and protect the public.

It is less than clear, however, that these laws, in their present form, have been successful in achieving their objective. Often they have been too strictly construed by the courts. Both judges and prosecutor considering them too rigid and harsh, have refused to employ them, despite their seeming mandatory character. Courts especially have resisted attempts to restrict their sentencing discretion. Often, finally, the prosecutors have merely used the laws as tools to obtain guilty pleas in return for promises to reduce the charges. Ironically, of course, this has meant in practice that laws designed to get tough with the recidivist have served only to secure him lenient treatment.

This experience has led reform-minded groups to seek other means to achieve the same goals. Apart from the recommendations of a special committee of the American Bar Association and the President's Crime Commission, the two most important proposals have come from the American Law Institute in its Model Penal Code and the Advisory Council of Judges of the National Council on Crime and Delinquency in its Model Sentencing Act. Each seeks to respond to the special offender with a special term, yet each sets out differing conditions for its position.

The Model Penal Code states three prerequisites for its extended term. First the offender must be over 21. Second, the court must conclude that the protection of the public calls for an extended term. Finally, the code, in the alternative, calls for a finding that the circumstances of the offense show that the offender has knowingly devoted himself to criminal activity as a major source of livelihood or has substantial income or resources not explained to be from a legal activity.

The Model Sentencing Act begins with the second requirement on dangerousness of the code. It then requires that a felony be committed as a part of a continuing criminal activity in concert with at least one other person.

Both proposals provide elaborate procedures for imposing these special terms.

Both the Special Committee on the American Bar Association and the President's Crime Commission reached similar conclusions in the area of the special term for dangerous offenders, although neither attempted to offer specific statutory language.

The President's Crime Commission expressed its conclusion in these words:

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

It also followed this recommendation with this suggestion:

There must be some kind of supervision over those trial judges who, because of corruption, political considerations, or lack of knowledge, tend to mete out light sentences in cases involving organized crime management personnel. Consideration should therefore be given to allowing the prosecution the right of appeal regarding sentences of persons in management positions in an organized crime activity or group. Constitutional requiremnets for such an appellate procedure must first be carefully explored.

Mr. President, S. 30 was drafted with the history of the habitual offender legislation and the proposals of these distinguished bodies in mind. It is our hope now to explore the constitutionality, wisdom, and feasibility of these various suggestions in our forthcoming hearings, for our opinion on the merits of these proposals is at this time reserved.

A number of serious questions need to be considered in greater detail than they have as yet. We are concerned, for example, that these proposals meet the constitutional test of definiteness found in such cases as Minnesota v. Probate Court, 309 U.S. 270 (1940). We are concerned that the concept of the special term will withstand attack as a reasonable classification in light of such cases as Oyler v. Boles, 368 U.S. 448 (1962), and that it will not be considered an unpermissible attempt to punish status under Robinson v. California, 379 U.S. 660 (1962). We are concerned, too, that the procedure employed in the imposition of the term meets the test of due process under Williams v. New York, 337 U.S. 241 (1949) and Specht v. Patterson, 386 U.S. 605 (1967). And, finally, we are concerned that affording the prosecution the right to appeal, as the President's Crime Commission suggested, might not run afoul of the concept of double jeopardy in Kepner v. United States, 195 U.S. 100 (1904).

These are, of course, as yet unresolved questions. But I am hopeful that through a full and fair hearing process that we will be able to work out a fair and effective sentencing structure that will meet the special challenge of organized crime.

CONCLUSION

Mr. President, I do not suggest that 8. 30 is the only proposal dealing with

organized crime that merits consideration. Others will surely be forthcoming from my colleagues and the new administration. But 8. 30 is a beginning-a good beginning.

The President's Crime Commission concluded its chapter on organized crime with these words:

The extraordinary thing about organized crime is that America has tolerated it for so long.

I suggest, Mr. President, that the extraordinary is fast becoming tragic. It is time to move forward now.

Mr. President, I hope I am justified in the encouragement I find from various articles in the press with respect to the attitude of the present administration in relation to crime, and particularly organized crime and methods to combat it.

I read in yesterday's Evening Star an article, written by Miriam Ottenberg, entitled "Top Officials Gear Up Machinery."

Evidently, after talking with the top officials in the administration, and particularly those in the Department of Justice, Mrs. Ottenberg wrote this article. If I understand correctly, the administration is deeply concerned with the problem, as much, no doubt, as I am. It appears from her article that the administration is anxious that appropriate legislation in the field be enacted into law.

I am encouraged, therefore, to belleve that the major provisions of S. 30 will have the support of the Justice Department, although it has made no commitment to me to that effect. I believe, too, that the administration will submit within the next few weeks some additional proposed legislation that it would like to see enacted.

It shall be my purpose as chairman of the Judiciary Subcommittee on Criminal Law and Procedures to hold extensive hearings on S. 30 and such other important measures dealing with crime and criminal procedure that are introduced during this session of Congress.

I assure the administration that any measures it sponsors or any recommendations that it may make in this field will receive the committee's earnest attention and consideration. For I sincerely hope that a new day is dawning in the field of law enforcement and that there will be cooperative and concerted effort on the part of the administration and Congress to enact legislation and to take appropriate and effective action wherever necessary to combat organized crime, this great and most destructive menace from within.

It is my hope, too, that our course, and particularly the Supreme Court of the United States, will begin to think more in terms of the right of a society to be