Sextiun 37.

Section 3712.

in the district courts of the United States or before United States magistrates. This section also provides, as does existing law, that any provision of law that is in conflict with a rule adopted pursuant to the section shall be of no further effect after the rule takes effect. Subsection (b) provides that the Chief Justice shall report the rules prescribed under the authority of this section to the Congress at or after the beginning of a regular session, but not later than the first day of May, and that the rules shall take effect one hundred and eighty days thereafter, unless a later effective date has been set by the Court. The Court is also authorized to fix the extent to which the rules shall, upon taking effect, apply to pending proceedings. Under existing law, rules take effect ninety days after they have been reported to the Congress. In the opinion of the Committee, a ninety-day period does not allow sufficient time for Congress to review the rules; consequently, the time has been enlarged to one hundred and eighty days.

SUBCHAPTER B.-EVIDENCE

(Sections 3711-3714)

This subchapter sets forth the statutory basis for the Supreme Court's rulemaking power as to evidentiary rules and carries forward from current law several specific statutes dealing with evidentiary matters.

SECTION 3711. EVIDENCE IN GENERAL

This section is introductory only. It merely sets forth the source for rules concerning the introduction, admission, and use of evidence in criminal cases in the district courts of the United States and before United States magistrates. Such rules are found in the provisions of title 18 and the Federal Rules of Evidence.

SECTION 3712. RULEMAKING AUTHORITY OF SUPREME COURT FOR RULES

OF EVIDENCE

1

This section parallels sections 3702, concerning rules of pretrial and trial procedure, and section 3722, concerning rules of appellate procedure, and, like the enactment in the 93d Congress, it grants the Supreme Court authority to prescribe amendments to the Federal Rules of Evidence. It further provides that any provision of law in conflict with an amendment prescribed pursuant to this section shall be of no further force or effect after such amendment has taken effect. Subsection (b) provides that the Chief Justice shall report the rules prescribed under the authority of this section to the Congress at or after the beginning of a regular session, but not later than the first day of May, and that the rules shall take effect one hundred and eighty

No. 93-595.

Section 3713.

days thereafter unless a later effective date has been set by the court. If, however, either House of Congress within the one hundred and eighty day period by resolution disapproves or postpones any amendment so reported, then such an amendment will not take effect. Also, if any reported amendment creates, abolishes, or modifies a privilege, such an amendment must be approved by act of Congress before it takes effect. The Supreme Court may also fix the extent to which the proposed rules shall apply to proceedings then pending.

SECTION 3713. ADMISSIBILITY OF CONFESSIONS

This section, except for minor word changes, carries forward the provisions of 18 U.S.C. 3501. Subsection (a) provides that the test to determine whether a confession is admissible in evidence in a Federal criminal case is whether the confession was made voluntarily.2

Subsection (b) sets out the procedure to determine the issue of the voluntariness of the confession. The judge is to hold a hearing out of the presence of the jury to determine the issue. If he determines that the confession was made voluntarily, he is to admit the confession in evidence and is to permit the jury to hear relevant evidence on the issue of voluntariness. He is also to instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. Where the defendant, however, makes no issue as to the voluntariness of his confession the trial judge is not required to instruct the jury as to the weight to be given to the confession.*

Subsection (c) provides the factors to be taken into consideration in determining the issue of voluntariness. These factors include: (1) the amount of time that elapsed between the arrest of the person and his initial appearance before a judicial officer as required by Rule 5 of the Federal Rules of Criminal Procedure if the confession was made. after arrest and before such appearance; (2) whether the person knew the nature of the offense with which he was charged or of which he was suspected at the time of the confession; (3) whether the person was advised or knew that he was not required to make a statement and that the statement could be used against him; (4) whether the person had been advised prior to questioning of his right to assistance of counsel when questioned and when making the confession; and (5) whether the person was without assistance of counsel when questioned and when making the confession. This subsection specifically provides, however, that the presence or absence of any one or more of the listed factors is not conclusive as to the voluntariness of the confession.5

Subsection (d) provides that a confession made between the time of arrest or other official detention and the time of the initial appearance before a judicial officer required by Rule 5 of the Federal Rules of Criminal Procedure shall not be considered inadmissible solely because of delay in bringing the person before such judicial officer if the judicial officer finds that the confession was made voluntarily; if the weight to be given the confession is left to the jury; and if the confession was made or given by the person within six hours immediately

2 For a detailed discussion of the definition of "voluntarily," see Schneckloth v. Bustamonte, 412 U.S. 218, 223-226 (1973).

A preponderance of the evidence standard is used to determine whether the confession was made voluntarily, as under present law. See United States v. Cox, 487 F.2d 634 (5th Cir. 1973). The constitutionality of such a standard was upheld in Lego v. Twomey, 404 U.S. 477. 486 (1972).

4 United States v. Goss, 484 F.2d 434 (6th Cir. 1973).

5 See Schneckloth v. Bustamonte, supra note 2; Michigan v. Tucker, 417 U.S 433 (1974).

Section 3714.

Section 3715.

following arrest or other official detention, or within such additional time as is found by the judge to be reasonable in view of the distance that was required to be traveled to the nearest available judicial officer and in view of the means of transportation that was available. The intent of this provision is to limit somewhat the discretion of trial judges under subsection (b). In other words, if a confession was made within six hours of arrest, a judge cannot hold that the confession was made involuntarily on the basis of delay between arrest and the person's initial appearance before a magistrate. On the other hand, while a confession made within six hours of arrest, absent some showing of involuntariness, is admissible, this section does not automatically preclude admissibility if the delay was longer." This is only a factor which is to be considered on the issue of whether the confession was made voluntarily.

It should be noted that in subsection (d) the term "official detention" is substituted for the words "other detention in the custody of any law enforcement officer or law enforcement agency." The term "official detention" is defined in section 111 and such definition is coextensive with the current law phrase. Detention by State authorities would come within the definition of "official detention."

Subsection (e) makes it clear that this section does not apply in those cases where a confession was made voluntarily without interrogation-the so-called "spontaneous" confession-or was made when the person was not under arrest or held in official detention.

Subsection (f) sets forth the definition of the term "confession." A "confession" is any oral or written statement indicating the declarant's guilt, responsibility, or incrimination in regard to the commission of an offense.

SECTION 3714. ADMISSIBILITY OF EYEWITNESS TESTIMONY

This section is an almost verbatim reenactment of 18 U.S.C. 3502. It merely provides that the testimony of a person who witnessed a defendant commit, or participate in the commission of, an offense with which the defendant is charged is admissible in evidence in a criminal case in a district court or before a United States magistrate.s

8

SECTION 3715. ADMISSIBILITY OF EVIDENCE IN SENTENCING

PROCEEDINGS

This section carries forward, in substance, the provisions of 18 U.S.C. 3577. It provides that a Federal judge, when determining an appropriate sentence, may consider any information concerning the history, characteristics, and conduct of a defendant regardless of the admissibility of the information under the rules of evidence at criminal trials. If, however, the receipt and consideration of such information is precluded by a section of this title relating to sentencing it, of course, cannot be considered.

This section recognizes the importance of having as much information before the judge as possible when he is considering an appropriate

6 See United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970).

See United States v. Marrero, 450 F.2d 373 (2d Cir. 1971), cert. denied, 405 U.S. 933 (1972). See generally United States v. Ash, 413 U.S. 300 (1973), and cases cited therein.

Section 3722.

sentence to impose. Thus, under this section, it would be perfectly proper for a judge, when imposing sentence, to consider that a defendant is under indictment for other offenses. 10 However, reliance on a prior, void conviction-as opposed to reliance on independent information concerning a prior offense-would not be permissible.11

SUBCHAPTER C.-APPELLATE REVIEW

(Sections 3721-3726)

This subchapter sets out the basic rules for appellate review of lower court decisions under the new Code. It includes one of the major innovations of the Code-a systematic approach to the troublesome issue of disparity in sentencing by making available a limited right to appellate review of sentences.

SECTION 3721. APPELLATE REVIEW IN GENERAL

This section is introductory only. It provides that appellate review by the courts of appeals and the Supreme Court of decisions, judgments, and orders entered by the district courts in criminal cases are to be governed by the provisions of this title and by the Federal Rules of Appellate Procedure.

SECTION 3722. RULEMAKING AUTHORITY OF THE SUPREME COURT FOR RULES OF APPELLATE PROCEDURE

1. Present Federal Law

This section sets forth the authority of the Supreme Court to promulgate rules of appellate procedure in criminal cases. The Congress first conferred such authority upon the Supreme Court of the United States by the Act of February 24, 1933,1 one of the principal purposes of which was to eliminate delays in taking appeals in criminal cases.2 The first Criminal Appeals Rules adopted under the Act were the 13 rules effective September 1, 1934.3 Currently in effect (since July 1, 1968) are the Federal Rules of Appellate Procedure, which govern in both criminal and civil cases. These rules were promulgated by the Supreme Court under the authority of 28 U.S.C. 2072 and 2075 and 18 U.S.C. 3771 and 3772.

2. Provisions of S. 1, as Reported

Section 3722 is based upon portions of existing 18 U.S.C. 3771 and 3772. Subsection (a) constitutes the authority for the Supreme Court

See Williams v. New York, 337 U.S. 241 (1949).

10 See United States v. Metz, 470 F.2d 1140 (3d Cir. 1972), cert. denied, 411 U.S. 919 (1973).

11 See United States v. Tucker, 404 U.S. 443 (1972).

1 47 Stat. 904 (now 18 U.S.C. 3772).

2 H. Rept. No. 2047, 72d Cong., 2d Sess. ; see also United States v. Robinson, 361 U.S. 220, 226 (1960).

3 292 U.S. 661-670 (1934).

Section 3723.

Section 3724.

to prescribe amendments to the Federal Rules of Appellate Procedure and otherwise to prescribe rules of pleading, practice, and procedure in appeals from decisions, orders, and judgments entered in criminal cases in the Federal district courts. The section provides (as does existing law) that any provision of law that is in conflict with a rule adopted pursuant to the section shall be of no further effect after the rule takes effect.

Subsection (b) provides that the Chief Justice is to report the rules prescribed under the authority of this section to the Congress at or after the beginning of a regular session, but not later than the first day of May, and that rules are to take effect one hundred and eighty days thereafter, unless a later effective date has been set by the Court. The Court is also authorized to fix the extent to which the rules shall, upon taking effect, apply to pending proceedings. Under existing law, the rules take effect ninety days after they have been reported in Congress. In the opinion of the Committee, a ninety-day period does not allow sufficient time for Congress to review the rules; consequently, the time has been increased to one hundred and eighty days.

SECTION 3723. APPEAL BY THE DEFENDANT

1. Present Federal law

The right of defendants to appellate review in Federal criminal cases is of relatively recent origin. There was no jurisdictional provision for appeal or writ of error in Federal criminal cases prior to enactments on the subject in 1889 and 1891.5 It is only to the extent that appellate jurisdiction is specifically conferred by statute upon specific courts for given types of cases that Federal appellate jurisdiction

exists.6

At present, the basis for Federal appellate jurisdiction in criminal (and civil) cases is 28 U.S.C. 1291. Present Federal law has made appeal from a district court's judgment of conviction a matter of right, and the defendant need not petition the court of appeals to allow him to bring his case before the court."

2. Provisions of S. 1, as Reported

This section simply continues existing law. It provides that a defendant may appeal to a court of appeals from a final judgment or order of a district court in a Federal criminal case.

1. In General

SECTION 3724. APPEAL BY THE GOVERNMENT

Section 3724 sets forth the limited circumstances under which the government may appeal in a Federal criminal case, as a matter of right, to a United States Court of Appeals. The section is patterned closely upon 18 U.S.C. 3731.

For a brief history of Federal laws on appellate jurisdiction, see Carroll v. United states, 354 U.S. 394 (1957). See also Frankfurter & Landis, The Business of the Supreme Court (1928).

5 See Carroll v. United States, supra note 4.

6 United States v. More, 7 U.S. (3 Cranch) 159 (1805); United States v. Sanges, 144 U.S. 810 (1892).

7 See Coppedge v. United States, 369 U.S. 438, 441-442 (1962).