Mr. TAFT. Yes, I believe so. I think that at any time an accused can insist upon his right to counsel. I think that is true under the present law. There is nothing in the bill that affects that.

Mr. POLK. Does the questioning stop at the point when the defendant demands his right to counsel?

Mr. TAFT. If counsel is agreeable to proceeding, it could proceed. But if he demands counsel-no, it does not cease. You immediately send for counsel. The magistrate gets the first available counsel for the individual. But the questioning continues.

Mr. PoFF. I believe you mean to say, and I wouldn't want to put words in the gentleman's mouth, that after the arrestee recants his waiver and insists upon counsel, at that point interrogation would be suspended until counsel was in the presence of the magistrate?

Mr. TAFT. Not during the 3-hour period under the way the bill is drafted.

Mr. POFF. I beg your pardon.

Mr. POLK. Mr. Taft, you say that is a deviation from the Miranda dictum. Why do you take that chance? Why do you risk unconstitutionality there?"

Mr. TAFT. It is the same question really as to whether or not the interrogation may commence or continue, for instance, after the 20minute period, but during the transportation. It is a question of what the interest of the public is in getting more rapid information in order to be able to take proper steps to pursue the prosecution of the crime. Mr. POLK. But it does seem a bit inconsistent, doesn't it, to offer the Miranda rights to the accused and to allow the accused to demand them and then to ignore them?

Mr. TAFT. You may well have a good point there.

Mr. POLK. Thank you.

Mr. TAFT. It may well merit change.

Mr. ZELENKO. I want to return to the questions the chairman raised earlier. This has to do with the application of your bill on the street, within 20 minutes after detention.

Let me restate what you have said in your prepared statement. A statement made by the accused after he is arrested is inadmissible under Miranda unless various rights, considered to be of a constitutional dimension are extended, including the right to remain silent, the right to counsel and so forth. But before he is arrested there may be a shadow area. Particularly if the period before arrest is on the street, and not in the confines of a police station.

Mr. TAFT. Or confines of his own bedroom, according to the Orozco

case.

Mr. ZELENKO. Congressman, in your bill, if a confession, is voluntarily made within a period of 20 minutes of detention, no Miranda protections need be given and no challenge on the basis of admissibility can be made. Is that right?

Mr. TAFT. That is correct, insofar as the warning is involved.

Mr. ZELENKO. Is it possible for us to conceive of a law enforcement officer who would delay his arrest of individuals in order to extract statements against interests and thereby circumvent the Miranda protections?

Mr. TAFT. First of all, the question is, of course, whether on the street Miranda ever applies, as you recognize, I am sure. I don't know

whether it does or whether it doesn't. This law would make it clear that it doesn't.

Mr. ZELENKO. This bill would try to make it clear that it doesn't. Mr. TAFT. This bill would have to be put to the test of the court when it becomes law. I am confident, however, that under the interpretations of the court that when you get to this point, the courts would uphold the provisions of this bill. It is a very good chance under the cases as you read them today.

Mr. ZELENKO. But my question is this, Mr. Taft: After arrest, an individual is entitled to protection. Before arrest, he is not. When we set any time limit, in this case, 20 minutes, are we inviting the police to delay arresting people that they have grounds to arrest in order to obtain statements against interest without having to observe Miranda. that could not be admissible if given after the individual was arrested? Mr. TAFT. I suppose that there is that danger but there is the same danger today that he is put under arrest and that he doesn't have the rights, I suppose. It is happening anyway. I think we are merely codifying what the practical situation is.

If that officer is going to delay arresting the individual, he can delay today. I suppose that this bill would perhaps take control during that period, as you say. It may raise some question.

Mr. ZELENKO. But by putting in a time limit, perhaps we are giving encouragement to law enforcement officials to delay arrests that they have probable grounds to make in order to make their jobs easier.

Mr. TAFT. I think it is the same whether there is or is not an arrest, I think you have gotten off the point on the arrest question, I would like to clear this up. I don't think whether or not there is an arrest has any implication with regard to Miranda today. What you do or don't have to do is give the warning. All I am saying is that in the first 20 minutes, you don't have to give the warning regardless of whether it is an arrest or not. It doesn't turn on the arrest.

Mr. ZELENKO. But after 20 minutes, he is either arrested or released. Mr. TAFT. Today you can give the warning, not arrest the man, and take the confession, and the confession is admissible. He has no protection at all other than that.

Mr. POFF. Would counsel yield?

Mr. ZELENKO. Yes.

Mr. POFF. I recognize the point counsel is making. He is suggesting. if I understand him correctly, that the establishment of a 20 minute period might encourage an officer to delay an arrest he would otherwise make for a period of 20 minutes in order that during the 20 minute period he might interrogate in the absence of counsel and thereby hopefully obtain some damaging statement.

But in response to that, isn't it also true that during that 20 minute period, the witness could protect himself fully simply by remaining mute for a 20 minute period?

Mr. TAFT. If he desired to do so, I am sure he could.

Mr. ZELENKO. Mr. Taft, does the requirement of your bill for a "Master of Examination" acknowledge in any way a lack of confidence in the abilities of the assistant U.S. attorneys to obey the teachings of the Supreme Court opinions?

Mr. TAFT. I am not reflecting on the US. attorneys in this bill. I do think that the questions that have been raised with regard to cor

fessions merit that Congress take a look at this question whether or not it is desirable that there should be an intervention of a neutral party in these investigations. This is what the courts in effect have said. The U.S. attorney is not a neutral party.

Mr. ZELENKO. I gather the bill contemplates that the court would appoint a standing master of Examination before whom any accused tween bringing a man in and the appointment of a master of Examination. It would be a standing official.

Mr. TAFT. I have that in mind.

Mr. ZELENKO. Thank you.

The CHAIRMAN. Mr. Hutchinson.

Mr. HUTCHINSON. In view of this questioning that counsel has put forth, in response to that I guess I misunderstood just exactly what the limitations of this interrogation during the 20 minutes were to be. I thought that the bill on page 4 rather severely limited the scope of any interrogation during the 20 minutes. All he could do is find out who the man is and ask his cooperation and determine by readily available information any account of his presence.

Mr. TAFT. That is true, and that was related to the question of constitutionality raised by counsel. That is one reason the limitation was put in there. I think it was felt if we went far beyond this in almost any area of investigation you might have constitutional questions that would otherwise be avoided.

Mr. HUTCHINSON. I could well understand that if during that 20 minute period the arrestee simply said, "I did it" that would be a confession that probably would be admissible under this bill.

On the other hand, I can't conceive of any kind of a pattern of holding up everybody for 20 minutes and putting them through the third degree in order to get admissions against interest, at that point, because of the rather narrow area of interrogation that would be available on the street.

Mr. TAFT. I think the gentleman is correct.

Thank you very much.

The CHAIRMAN. Thank you very much, Mr. Taft. You have been very, very helpful and you have given us a very intelligent and cogent statement.

(The following communication was submitted subsequently :)

CONGRESS OF THE UNITED STATES,

HOUSE OF REPRESENTATIVES,
Washington, D.C., June 24, 1970.

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,
Washington, D.C.

DEAR MR. CHAIRMAN: On Wednesday, May 27, 1970, I testified before Subcommittee 5 regarding pending crime legislation. Subsequent to this testimony, the Supreme Court has released an opinion which I would like to add to the transcript of my testimony. The addition would read as follows:

On May 4, 1970, the Supreme Court clearly stated that Miranda permitted the use of "other safeguards" to remove the possibility coercive atmosphere of the police station. In the case of Brady v. United States, U.S. 90 S. Ct. 1463 (1970) the Court stated that:

But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona 384 U.S. 436, 86 S. Ct. 1602 (1966) held that

the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards. (Emphasis added) (at Page 1472).

Thank you very much for your assistance in this matter.

Sincerely,

ROBERT TAFT, Jr.

Our next witness is a member of our committee, Mr. Andrew Jacobs of Indiana.

STATEMENT OF HON. ANDREW JACOBS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA

Mr. JACOBS. Mr. Chairman, I appreciate the opportunity to appear before this subcommittee to testify in behalf of II.R. 16304, a bill to make bribery of State and local officials a Federal offense punishable to the same extent as bribery of Federal officials.

The perennial question, Mr. Chairman, is who shall prosecute the prosecutor when he violates the law. When public officials solicit or accept bribes, a negative incentive to prosecute those who would bribe results.

Article 4 section 4 of the U.S. Constitution says, "The United States shall guarantee to every State in this Union a Republican form of Government, . . ."

When local governments, Mr. Chairman, reach their decisions through the machinery or corruption and bribery, a republican form of government has ceased to exist, thereby placing a certain responsibility for the correction of this problem on the Federal Government. The CHAIRMAN. Mr. Jacobs, the import of your bill is to make the bribery of State and local officials, which is now a State crime, a Federal crime.

The question is how far shall Congress go to make the State crimes Federal crimes? Where should the line be drawn? If we open the door wide, of course, we are going to open up a can of worms, as it were. I would like to ask you to give us your views on that general subject. Mr. JACOBS. I think, Mr. Chairman, you can distinguish this kind of activity from other activity that is proscribed by criminal laws on the local level by the very standard which I have enunciated.

In the case of corruption or bribery of local officials, particularly prosecuting authorities, there is no logical nor realistic machinery with which to initiate prosecution. That is the thing that concerns me very much.

One does not become super human when he becomes a prosecuting authority. I think there is great danger to our system when things of that kind occur and there is as a practical matter very little redress. The CHAIRMAN. Have there been any flagrant cases where the States have failed to prosecute bribery?

Mr. JACOBS. I would concede that I am not prepared to document that.

The CHAIRMAN. What would be the need, then, for us to intervene?

Mr. JACOBS. Well, the very fact that it is difficult to find out such cases would indicate what I am talking about, Mr. Chairman. There is no machinery really that I know of when the prosecutor is the head man in the county to make an investigation of his own activities. That is the problem that I see.

The CHAIRMAN. This will cover all State and local officials, not those who would be in the prosecuting arm of the State of local governments.

Mr. JACOBS. That is correct. That is a judgment, of course, for the committee to make.

The CHAIRMAN. Let me tell you my problem as chairman. There isn't a day that goes by that there isn't passed over my desk a plethora of bills making State crimes Federal crimes. I am just bewitched and bothered as to what to do. We get into a position finally where we would obliterate State lines. It is a problem we have to consider.

When I speak to the authors of these bills, and I offer the objection that I have raised now, the answer is always the same. "My proposal is different. My proposal is paramount. It rises above all the others." What can you say on a thing like that?

Mr. JACOBS. Here I go. I think my proposal is different. I am dealing with a very limited classification, a very limited number of persons, public officials, people who have inherently the power to conceal activities while in public office.

The CHAIRMAN. Would there be any better enforcement if it were turned over to the Federal Government?

Mr. JACOBS. All I know is there are many guilty pleas over in Federal court in Indianapolis than there are in the State court. I think the FBI is equipped to make investigations of this nature. In most instances, it is equipped better and has less conflict in interest than is the natural case of local officials in many instances.

If you want to presuppose everybody is an alien, then we are all right.

The CHAIRMAN. How far should we go in building up the FBI for enforcement purposes of those crimes which were formerly under State laws and now made Federal crimes?

Mr. JACOBS. I am not very concerned about a township trustee, because he is already dealing on an unpopular subject in the first place. I am not worried about the scrutiny of his activities.

What I am worried about is precisely what my testimony referred to. I would settle here and now for legislation that would cover those prosecuting officials where there is no machinery to test their own conduct on the questions of bribery. I think at a very minimum, the Federal Government should act there along the lines I have indicated, guaranteeing a republican form of government. There is no logical authority to make such an investigation and make such a prosecution. The CHAIRMAN. Mr. McClory.

Mr. McCLORY. Thank you, Mr. Chairman.

I want to commend the gentleman. I think he has touched on an area of criminal activity that perhaps we have not covered adequately and certainly by Federal law.

On the other hand, I would like to make two observations, and one is that I believe that through possibly the implementation of the state law in the State of Indiana or the state statutes and augmenting the