The Journal of Criminal Law, Criminology, and Police Science, Vol. 63, No. 1 (Mar 1972)

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Publishedby NorthwesternUniversitySchool of Law VOLUME63 / NUMBER 1 / MARCH1972

* The Co-Conspirator's Exception to the Hearsay Rule. Norman J. Garland a

The Police Internal System of Justice in New York City. Bernard Cohen

* The Police Personality: Fact or Fiction. Robert W. Balch (complete contents inside)

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Marie D. Christiansen 105

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE Copyright O 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U7.S.A.

CRIMINAL LAW THE CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE: PROCEDURAL IMPLEMENTATION AND CONFRONTATION CLAUSE REQUIREMENTS NORMAN M. GARLAND*ANDDONALD E. SNOWt One of the most confusing aspects of the conspiracy crime is the evidentiary principle known as the co-conspirator's exception to the hearsay rule. Simply formulated, the co-conspirators exception allows a conspirator to testify against his fellows regarding words spoken or acts performed in furtherance of the conspiracy and during its pendency, provided there exists independent proof to establish the conspiracy. This article will first focus on the issues related to the independent proof requirement, including the critical issue of whether the judge or the jury shall make the finding of independent proof. Second, the validity and prospective vitality of the co-conspirators exception, and the admission of hearsay generally, will be considered in light of recent decisions involving the hearsay rule and the sixth amendment right of confrontation. Before turning to these two areas, it may be helpful to lay a foundation by briefly reviewing the crime of conspiracy, the hears- y rule, and the co-conspirator's exception.

INTRODUCTION

Publicity surrounding the recent political con-' spiracy trials1 has made laymen aware that the conspiracy charge is a powerful, if somewhat illdefined, prosecutorial tool.2 Both bench and bar, however, recognized long ago the importance of conspiracy indictments to prosecutors and the need to protect defendants from special dangers inherent in conspiracy prosecutions.3Despite such recognition and the plethora of law review articles on the subject,4 conspiracy remains one of the least understood of all criminal offenses.5 * J.D., Northwestern University, 1964; L.L.M., Georgetown University, 1965. Presently Associate Professorof Law and Dean of Admissionsat NorthwesternUniversitySchoolof Law. t J.D., NorthwesternUniversity,1970. See, e.g., United States v. Spock,416 F.2d 165 (1st Cir. 1969); United States v. Dellinger, 69 CR 180 (N.D. Ill. 1969). 2 Underthe ShermanAntitrustAct, 15 U.S.C.??1-7 (1964),the conspiracyprosecutionwas used frequently to thwartthe organizationand growthof laborunions. The enactmentof the Norris-LaGuardia(Anti-Injunction) Act, 29 U.S.C. ?? 101-15 (1964), in 1932 finally discouragedthis practice. 8In 1925, Chief JusticeTaft condemnedthe prevalent use of conspiracychargesbrought"forthe purpose -or at least with the effect-of bringingin much improper evidence,"and emphasizedthat "the rules of evidencein conspiracycases make them most difficult to try without prejudiceto an innocent defendant." Reportof the AttorneyGeneralfor 19255-6. See also JudgeHand speakingfor the courtin United States v. Falcone,100 F.2d 579, 581 (2d Cir. 1940): [Today]manyprosecutorsseek to sweepwithinthe drag-net of conspiracyall those who have been associatedin any degreewhateverwith the main offenders.That there are opportunitiesof great oppressionin such a doctrineis very plain, and it the scopeof suchall comis only by circumscribing prehensiveindictmentsthat they can be avoided. See Hudspethv. McDonald, 130 F.2d 962 (10th Cir. 1941);see generally,O'Brian,LoyaltyTestsand Guiltby L. REV.592, 599 (1948).Perhaps Association,61 HARV. one of the best statementsof the fear of misuseof conspiracyprosecutionsappearsin Justice Jackson'sconcurring opinion in Krulewitchv. United States, 336 U.S. 440, 446-47 (1946),quotedinfranote 5.

CONSPIRACY CRIMINAL A criminal conspiracy is said to be a "partnership in crime." 6 More specifically, a criminal conspiracy is "an agreement between two or more persons to achieve an unlawful object or to achieve a lawful object by unlawful means." 7 While many Penal Code of the AmericanLaw Institute:Attempt, L. REV. 957 Solicitation,and Conspiracy,61 COLUM. (1961);Note, The ConspiracyDilemma:Prosecutionof GroupCrimeor Protectionof IndividualDefendants,62 HARV.L. REV. 276 (1948). 6 "The modern crime of conspiracy is so vague that

it takes it almostdefiesdefinition.... [C]hameleon-like, on a special colorationfrom each of the many independentoffenseson which it may be overlaid."Krulewitch v. United States, 336 U.S. 440-47 (1946) (Jackson, J., concurring). "In the long category of crimes there is none, not excepting criminalattempt, more difficultto confine within the boundariesof definitivestatementthan conspiracy."Harno,supranote 4, at 625. 6 United States v. Kissel, 218 U.S. 601, 608 (1910); 4See, e.g., Arens, Conspiracy Revisited, 3 BUFFALO L. REV.242 (1954); Goldstein, The KrulewitchWarning: Van Riper v. United States, 13 F.2d 961, 967 (2d Cir. 1926). Guilt by Association, 54 GEO. L.J. 133 (1965); Harno, 7 Developments in the Law-Criminal Conspiracy,72 Intent in Criminal Conspiracy, 89 U. PA. L. REV. 624 922 (1959) [hereinafter cited as REV. L. HARV. 920, Prosecutor's Darling, Klein, Conspiracy-The (1941); see Pettibonev. United States, 148 U.S. L. REV. 1 (1957); Wechsler, Jones, & Developments]; 24 BROOKLYN Korn, The Treatment of Inchoate Crimes in the Model 197, 203 (1893). 1

2

N. M. GARLAND AND D. E. SNOW

jurisdictions require an overt act8 as an element of the offense,9agreement is the gist of a conspiracy.10 The requisite agreement need not even be express; it may be only a tacit, mutual understanding." Moreover, criminal conspiracy is an independent crime, a distinct offense, separate from its object and from any substantive offenses committed in pursuance of the conspiratorial agreement.12 Because it often punishes conspirators for their uncompleted acts, conspiracy finds justification as 8 See 1 E. DEVITT& C. BLACKMAR,FEDERAL JURY ANDINSTRUCTIONS PRACTICE ? 29.07 (2d ed. 1970): An 'overt act' is any act knowingly committed by one of the conspirators, in an effort to effect or accomplish some object or purpose of the conspiracy. The overt act need not be criminal in nature, if considered separately and apart from the conspiracy. It may be as innocent as the act of a

man walkingacrossthe street,or drivingan auto-

mobile, or using a telephone. It must, however, be an act which follows and tends toward accomplishment of the plan or scheme, and must be knowingly done in furtherance of some object or purpose of the conspiracy charged in the indictment. See, e.g., Jordan v. United States, 370 F.2d 126 (10th Cir.), cert. denied, 386 U.S. 1033 (1967); Hansen v.

[Vol.63

a criminal offense in the assumption that group action toward an unlawful end presents a special danger to the general public.1 Under this assump-

tion, not only does concerted action increase the chances of success, it also increases the extent of potential harm.14 Group action can expand both the scope and the complexity of the criminal undertaking. Group pressure also tends to prevent withdrawal and to inhibit disclosure.'5 Although the more participants in an activity, the greater the chance for infiltration by informers, or "leaks," the secret nature of a conspiracy16 is thought to mini-

mize possible detection by such "leaks." It is precisely this difficulty of detection and proof which has given rise to the flexibility and latitude accorded the judge in admitting evidence in a conspiracy trial.7

A second justification for conspiracy is derived

13 See Developments,supra note 7, at 923-25. As Judge Coffin summarized in his dissent to United States v. Spock, 416 F.2d at 184: [T]he core idea underlying the conspiracy theory is that disciplined, concerted action poses a greater threat to society than does individual or uncoorUnited States, 326 F.2d 152 (9th Cir. 1963).Verylittle is needed to constitute an overt act. See, e.g., Bartoli v. dinated group effort in that larger numbers permit a division of labor, and discipline makes withdrawal United States, 192 F. 2d 130 (4th Cir. 1951) (telephone from the enterprise less likely. conversation). 9 See, e.g., 18 U.S.C. ? 371 (1964); ARIZ.REV. STAT. 4 See Woods v. United States, 240 F.2d 37 (D.C. Cir. 1957). ANN. ? 13-332 (1956); CAL.PENALCODE? 184 (West 15On the difficulty of detection of conspiracies, the 1970); ILL.REV. STAT.ch. 38, ? 8-2 (1969); N.Y. PENAL LAW ? 105.20 (McKinney 1967). See generally Note, Supreme Court noted in United States v. Rabinowich,

CriminalConspiracy:Bearing of OvertActs upon the

Nature of the Crime, 37 HARV.L. REV. 1121 (1924); Comment, The "OvertAct" in Conspiracy, 18 BROOKLYNL. REV. 263 (1952) (discussion of overt act requirement under New York law). 10See Black v. United States, 252 F.2d 93, 94 (9th

Cir. 1958),wherethe court stated: "Whilethe law requiresovert acts to completecriminalconspiracies,the essenceof the offenseof the conspiracy,that which is

punished, is the 'agreement.' " The agreement represents the actualization of the intent. It is the act which expresses in concrete form the threat to society of an intent shared by two or more persons. Vicarious liability is imputed and hearsay evidence admitted, statute of limitations tolled and venue attained-all by virtue of the terms of that agreement. 11See, e.g., Rizzo v. United States, 304 F.2d 810 (8th Cir. 1962); Isaacs v. United States, 301 F.2d 706 (8th Cir.), cert. denied, 371 U.S. 818 (1962). See generally

238 U.S. 78, 88 (1915):

For two or more to confederate and combine together to commit or cause to be committed a breach

of the criminallaws, is an offenseof the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the con-

spiratorsfor further and habitual criminalpractices. And it is characterizedby secrecy,rendering it difficultof detection,requiringmoretime for its

discovery, and adding to the importance of punishing it when discovered. 16 "Secrecy and concealment are essential features of

successfulconspiracy.The more completelythey are

achieved, the more successful the crime." Blumenthal v. United States, 332 U.S. at 557. But see United States v. Spock, 416 F.2d 165, where the First Circuit stated that secrecy is not an essential element of a conspiracy. The Comment,Conspiracy-Character of Agreement-Tacit purpose may be to commit open violations of the law. 17For example, circumstantial evidence of conConsent, 2 VILL.L. REV. 230 (1957). 12See Blumenthal v. United States, 158 F.2d 883 spiracies is said to be much favored by the courts: Cir. 539 It should be borne in mind that in a conspiracy (9th (1947). In United 1946), aft'd, 332 U.S. States v. Bazzell, 187 F.2d 878, 884 (7th Cir.), cert. case wide latitute is allowed in presenting evidence 342 849 U.S. the Seventh Circuit stated: and it is within the discretion of the trial court to denied, (1951), The conspiracy remains none the less a crime beadmit evidence which even remotely tends to cause by its success an additional crime has been establishthe conspiracycharged. committed.... Consequently, the substantive ofShinev. UnitedStates,209 F.2d 67, 74 (9th Cir. 1954). fense is not merged in the charge of conspiracy... See also Levie, Hearsay and Conspiracy, 52 MICH. L. and the parties may be punished for their agreeREV. 1159, 1160 (1954); see generally Eastern States ment to commit a crime as well as for the comRetail Lumber Dealers v. United States, 234 U.S. 600 pleted crime. (1914).

1972]

CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE

from agency principles. In defining conspiracy as a "partnership in criminal purposes," 18 courts have held that each conspiratorbecomes the agent of his fellow conspirators upon joining the conspiracy.l9 The agency theory in conspiracy "partnerships" imposes a stricter vicarious liability upon the "partners" than the law of agency imposes upon legitimate partnerships. Thus, a defendant may be a co-conspirator of persons whom he does not know.20He need not know the full extent or the entire scope of the conspiracyin order to be guilty.2 Furthermore, by joining the conspiracy, a defendant may be deemed responsible for an act which preceded his entry, even if he had no knowledge of the act.22 These, then, are the two theories--difficulty of proof of conspiracies and the application of stringent principles of partnership and agency lawwhich underlie the conspiracy crime and the coconspirator's exception to the hearsay rule. Inherent in the exception is the assumption that when a conspiracy is established, everything said, written, or done by any of the conspirators in furtherance of the common design is deemed to have been said, done, or written by every one of them and may be proved against each.23It is through this door that much hearsay testimony is admitted into evidence in a conspiracy trial. 18 See Pinkertonv. United States, 328 U.S. 640, 644 (1946); United States v. Kissel, 218 U.S. 601, 608 (1910). 19See Van Riper v. United States, 13 F.2d 961, 967 (2d Cir. 1926). 20See Lefco v. United States, 74 F.2d 66, 68 (3d Cir. 1934). 21 See UnitedStates v. Manton,107 F.2d 834, 848-49 (2d Cir. 1938);Marinov. United States, 91 F.2d 691, 696 (9th Cir. 1937). 22See cases cited at note 23 infra. 23 See Van Riper v. United States, 13 F.2d 961, 967 (2d Cir. 1926): Suchdeclarationsareadmitteduponno doctrine of the law of evidence,but of the substantivelaw of the crime.When men enter into an agreementfor an unlawfulend, they becomead hocagentsfor one another,and have made 'a partnershipin crime.' Whatone doespursuantto theircommonpurpose, all do, and, as declarationsmay be such acts, they are competentagainst all. See also Agnellov. United States, 269 U.S. 20 (1925); Wiborgv. UnitedStates,163 U.S. 632 (1896).

FED. R. CRIM. P. 8(b) provides:

Two or more defendantsmay be chargedin the same indictmentor informationif they are alleged to have participatedin the sameact or transaction or in the same series of acts or transactionsconstituting an offense or offenses.Such defendants may be chargedin one or morecountstogetheror separatelyand all of the defendantsneed not be chargedin each count.

3

THE HEARSAYRULE The hearsay rule as conventionally stated24 excludes out-of-court assertions25offered as evidence to prove the truth of the matter asserted.26 For example, suppose that in the trial of Jones for the murder of Smith, a witness testifies that the deceased, shortly before his death, stated that "Jones shot me, my time is up." If the issue is the identity of Smith's murderer, the witness' testimony is hearsay and inadmissible unless it belongs within one of the exceptions to the hearsay rule. The hearsay rule reflects the belief that some evidence which might be of probative value should not be admitted unless the declarant has actually appeared in court and has been cross-examined under oath with regard to his sincerity, memory, perception and ability to communicate.27 As McCormick points out, the exclusionary rule is predicated on the fear that hearsay evidence is untrustworthy because any one or more of three guarantees of trustworthiness may be lacking: 1) the administration of an oath; 2) the opportunity to cross-examine; and 3) the opportunity for the trier of fact to observe the demeanor of the declarant if hearsay evidence is used.28 24 The authors of a recent casebook devote approximately forty pages to the rationale and meaning of the D. KAPLAN & rule. LOUISELL, WALTZ, J. J. hearsay 50-99 (1968). ONEVIDENCE CASESANDMATERIALS

25The word "assertion"is used instead of "statement" to emphasizethat hearsaymay be non-verbal.

C. MCCORMICK,HANDBOOKOF THE LAW OF EVIDENCE ? 225 (1954) [hereinaftercited as MCCORMICK]. Cf. COMMITTEEON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIALCONFERENCEOF THE UNITED STATES, 1971 REVISED DRAFT OF PROPOSED RULES OF EVIDENCE FOR THE UNITED STATES DISTRICT COURTS AND MAGISTRATES,Rule 801(a) (2) (1971) [hereinafter cited

as PROP.FED. R. EVID.]. 26The

definitionused is essentially that found in

et al., supra note 24, at 56. See also CAL. EvID. CODE ? 1200 (West 1966). Wigmore does not attempt to define hearsay in his treatise on evidence. 5 J. WIGMORE,EVIDENCE ?? 1360-66 (3d ed. 1940) [hereinMcCormick offers a definition, after cited as WIGMORE].

LOUISELL,

but warnsthat not too much shouldbe expectedfrom ? 225. PROP. FED. R. any definition. MCCORMICK EvID. 801(c) defines hearsay as "a statement other than one made by the declarant at the trial or hearing

offeredin evidence to prove the truth of the matter asserted." 27 See PROP. FED. R. EVID., IntroductoryNote to Article VIII; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 HARV. L. REV 177 (1948); Strahorn, A Reconsiderationof the Hearsay Rule and Admissions, 85 U. PA. L. REV. 484, 485 (1937); Weinstein, ProbativeForce of Hearsay, 46 IOWAL. REV.

331 (1961).

28MCCORMICK? 224. See also PROP.FED. R. EVID., Introductory Note to Article VIII; Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 495-96 (1951); see

4

N. M. GARLAND AND D. E. SNOW

Of these three indicia of trustworthiness, the absence of an opportunity to cross-examine is the principal justification for the rule excluding hearsay evidence.9 Cross-examination is the primary legal instrument for testing the accuracy of a declarant's perception, memory, and ability to communicate.30 While undergoing cross-examination, the declarant may be required to explain ambiguous, unclear or inconsistent testimony. Personality traits that influence his thinking and judgment may be disclosed. Questions may probe his state of mind at the time of perception, and numerous other factors which affect a declarant's mental processes may be investigated. The witness who reports hearsay statements can usually provide the judge and the jury with none of this information.31Thus, the fear of untrustworthiness upon which the hearsay rule is founded seems to require the exclusion of all out-of-court assertions offered as proof if the declarant does not appear in court. Although the hearsay rule is founded upon the notion that "a mere hearsay is no evidence," 32 exceptions to the hearsay rule have been recognized by the law for as long as the rule itself has existed.33Indeed, the nature of the hearsay rule is difficult to ascertain because there are so many exceptions. Many legal scholars have offered explanations of the rule and its exceptions, some with an eye to rationalization. Wigmore suggested that the exceptions attempt to accommodate two interests: the reliability of34 and necessity for35 particular evidence. Maguire adds a third interest, one which is said to reflect the demands of the adversary system.36

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It is beyond the scope of this article to rationalize the hearsay rule and its exceptions. It may be said, however, that the rule exists in the context of an adversary system which requires that proof of disputed facts be of a quality which satisfies the litigants that the means of reaching a decision are fair.37This need not require determination of anything approaching "truth" in an absolute sense. In this context, the hearsay rule may be viewed as predicated upon one or more of four considerations :38 1. To exclude evidence because, although relevant, its probative value is too slight to justify the time and expense to be spent in receiving it; 2. To exclude evidence because it has such a tendency to prejudice or to confuse that its use would probably do more harm than good; 3. To exclude evidence because it may be false, and because the opposite party could not be prepared to meet and rebut it; 4. To exclude evidence because it is inferior to other evidence which could have been produced. Not all exceptions to the hearsay rule may be rationalized by any single one of these theories, but it is submitted that any exception may be rationalized by one or more of them. THE CO-CONSPIRATORS EXCEPTION

The co-conspiratorsexception, like other exceptions to the hearsay rule, is purportedly founded on considerations of the declaration's probable reliability and the need for it as evidence. As the generally Sahm, Demeanor Evidence: Elusive and Inexception is usually formulated, "any act or tangibleImponderables,47 A.B.A.J. 580 (1961). declaration by one co-conspirator committed in 29Californiav. Green, 399 U.S. 149, 158 (1970); MCCORMICK ? 224; 5 WIGMORE? 1367; Morgan, supra furtherance of the conspiracy and during its pendnote 27; PROP.FED. R. EVID., Introductory Note to ency is admissible against each and every coArticleVIII. conspirator provided that a foundation for its 30 See authoritiescited at note 29 supra. 31See, e.g., Colemanv. Southwick,9 John. 50 (N.Y. reception is laid by independent proof of the con1812), quoted in 5 WIGMORE? 1362: spiracy." 39 According to this definition, three A personwho relates a hearsayis not obliged to conditions must be satisfied before hearsay evienterinto any particulars,to answerany questions, to solve any difficulties,to reconcileany contradicdence is deemed admissable: 1) furtherance;40 tions, to explain any obscurities,to remove any 37See Weinstein, ProbativeForce ambiguities;he entrencheshimself in the simple of Hearsay, 46 IOWA assertionthat he was told so, andleavesthe burden L. REV.331, 335 (1961). 8 See James, The Role of Hearsay in a Rational entirelyon his dead or absent author. 32B. GILBERT, EVIDENCE 152 (2d ed. 1769). 335 WIGMORE? 1397. See also Morgan, supra note 27.

Schemeof Evidence,34 ILL.L. REV. 788, 790-91 (1940). 39Levie, supra note 17, at 1161. See also Carbo v.

36J.

1963), cert. denied, 377 U.S. 953 (1964); Developments, supra note 7, at 985.

345 WIGMORE ? 1422. 35Id. ? 1421.

MAGUIRE, EVIDENCE: COMMON SENSE AND

COMMON LAW140-44 (1947). Maguire offers "adversary

United States, 314 F.2d 718, 735, 735 n. 21 (9th Cir.

40Under the furtherancerequirement,the declarapractice"as a third"motive"or reasonfor the "fabrica- tion must relatein contentto the conspiracy,andmust tion" of commonlaw hearsayexceptions.5 WIGMORE be madewith the intent to advancethe objectsof the ?? 1430-52;McCORMIcK ??258-64. conspiracy.Many jurisdictionshave applied the re-

1972]

CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE

5

2) pendency;41and 3) foundation or independent proof of the existence of the conspiracy and the connection of the declarant and defendant with it.42 This hearsay exception has long been accepted,43 and its continued vitality is amply illustrated by the reported cases.44 One justification offered in support of the coconspirators exception is that, because the crime of conspiracy is difficult to prove, a co-conspirator's direct testimony is needed. Frequently, the only direct evidence of a conspiracy is the individual conspirator's words and deeds during the conspiracy. Thus, unless a conspirator is willing to testify against his co-conspirators, the prosecution must rely heavily on circumstantial evidence. In such cases the jury is asked to draw an inference of agreement from conduct which seems to follow some plan. However, the use of circumstantial evidence is subject to inherent limitations. If the conspiracy is discovered early or is discontinued, there may be very little conduct from which to draw an inference. Moreover, the alleged conspirators may present reasonable explanations for their conduct, thereby making it difficult to prove guilt beyond a reasonabledoubt.45 Because it is usually more difficult to establish a conspiracy inferentially from circumstantial evi-

dence than to establish a conspiracy by direct or testimonial evidence, need for direct evidence is relied upon as a principal justification for the coconspirator's exception. A second justification for the co-conspirators exception is the belief that a co-conspirator'stestimony is probably reliable. In arguing for the admission of co-conspirators' hearsay statements on the basis of trustworthiness, some courts and authorities have analogized to other hearsay exceptions.46Such comparisons have been criticized, however.47 One criticism is that treating these statements as vicarious admissions48confuses the relationship among conspirators with that of principal and agent. Courts generally admit into evidence vicarious admissions on the ground that a principal's substantive responsibility for his agent's acts involves an evidential responsibility for his agent's statements.49 But the practical considerations which justify forcing a principal to adopt, for business and evidence purposes,50the statements of his authorized agent51do not apply to a conspiracy because its members often lack the power to control or authorize other members' actions.52Even though the substantive law of conspiracy holds one conspirator accountable for all

quirementso broadlythat anythingrelatedto the conspiracyis found to be in furtheranceof its objectives. Levie, supranote 17, at 1168.The SeventhCircuithas interpretedthe requirementto mean only that the act with which the declarationis concernedmust be in furtheranceof the conspiracy.InternationalIndemnity Co. v. Lehman,28 F.2d 1 (7th Cir.), cert.denied,278 U.S. 648 (1928), discussedin Developments, supranote 7, 985-86. 41Under the pendencyrequirement,the declaration musthavebeenmadeafterthe formationandbeforethe terminationof the conspiracy.Levie, siupranote 17, at 1172-75;Developments, supranote 7, at 986-87. Compare this with the Georgiaexception,which encompassesdeclarationsmadeduringthe concealmentphase of the conspiracywhichwas the subjectof the Supreme Court's decision in Dutton v. Evans, 400 U.S. 74 note 181infra. (1970).Seediscussionaccompanying

46See, e.g., Van Riper v. United States, 13 F.2d 961 (2d Cir. 1926) (vicarious admissions); Shea v. United States, 251 F. 440 (6th Cir.), cert. denied, 248 U.S. 581 ?? 1077, 1079, 1080a (1918) (res gestae); 4 WIGMORE

42Levie, supra note 17, at 1176-78; Developments,

(agency,vicariousadmissions).

47See Levie, supra note 17, 1161-67; Morgan, The Rationale of Vicarious Admissions, 42 HARV. L. REV. 461 (1929); Developments, supra note 7, at 988-89; Note, The Hearsay Exception for Co-Conspirators' Declarations, 25 U. CHI. L. REV. 530 (1958); PROP. FED. R. Evm. 801(d)(2)(v), Adv. Comm. Note, at 104. 48The usual phrasing of the rule makes admissible against the principal the utterances of the agent made

within the scope of his authorityor employment.As Wigmorestated: So far as one person is privy in obligation with another, i.e., is liable to be affected in his obligation under the substantive law by the acts of the other,

thereis equalreasonfor receivingagainsthim such

admissions of the other as furnish evidence of the act which charges them equally. 4 WIGMORE? 1077. See, e.g., Gambino v. United States, 108 F.2d 140, 142 (3d Cir. 1939). 49See 4 WIGMORE? 1079. 50The test of admissibility is whether the agent was authorized to make, on the principal's behalf, statements concerning the subject matter. The policy behind the exception is to prevent businessmen who act through agents from avoiding liability which would be imposed (N.D. Ill. 1969) (Defendant's state arrest for illegal on businessmen acting on their own behalf. Note, supra possessionof narcoticswas not a withdrawalfrom a note 47, at 535. narcotics conspiracyso as to render co-conspirators' 51See United States v. Miller, 246 F.2d 486 (2d Cir.), subsequent declarations inadmissible against defen- cert. denied, 355 U.S. 905 (1957). See generally Morgan, supra note 47. dant). 52See id. at 481; Note, supra note 47, at 535. 45See Levie. subra note 17. at 1160.

supranote 7, at 987. 43See United States v. Gooding,25 U.S. (12 Wheat.) 460 (1827). 44It is difficultto finda conspiracycasein whichsome questioninvolvingthis hearsayexceptionis not raised by one of the defendants.See, e.g., United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969) (Independent proof of the conspiracyis establishedby a fair preponderanceof the evidenceindependentof the hearsay utterances);Howellv. UnitedStates,300 F. Supp.1017

6

N. M. GARLANDAND D. E. SNOW

acts done during the conspiracy,53it does not follow that the hearsay statements of one conspirator are inevitably trustworthy. Wigmore justified the admission into evidence of co-conspirators' hearsay statements on the premise that all participants in a conspiracy have an "identity of interest." 54He stated that: A conspiracymakes each conspiratorliable under the criminallaw for the acts of every other conspirator done in pursuance of the conspiracy. Consequently,by the principlealreadyexemplified in other relations..., the admissionsof a co-conspiratormay be usedto affectthe proofagainstthe others, on the same conditionsas his acts when used to create their legal liability.65 Wigmore's mention of "other relations" refers to those situations where "one person is privy in obligation with another."66 As an additional ground, Wigmore would admit co-conspirators' hearsay statements on the theory of vicarious liability. Moreover, he argued that an admission of one conspirator against his interest is against the interest of all conspirators.57But as one writer has said: [Wigmore'sexplanation]fails to distinguish between declarationsshowingthe existenceof a conspiracy and declarationsconcerningmembership or aims.Of coursesanemendo not falselyadmitto conspiracy.Conspirators'declarationsare good to prove that some conspiracyexists but less trustworthyto showits aimsand membership.The conspirator'sinterestis likely to lie in misleadingthe listenerinto believingthe conspiracystrongerwith moremembers(and differentmembers)and other aimsthanit in fact has. It is no victoryforcommon sense to makea belief that criminalsare notorious for theirveracitythe basisfor law.58 While these justifications supporting the coconspirator's exception can be criticized, it does seem that the requirement of independent proof of the conspiracy supplies a probability of trustworthiness. Important issues remain, however. Ultimately there is a question whether the independent proof requirement supplies sufficient trustworthiness to obviate the necessity of affording defendant an opportunity to cross-examine the declarant. Another crucial issue is whether "3See Van Riperv. United States, 13 F.2d at 967. 44 WIGMORE ? 1079. 5 Id.

? 1077. ? 1080a. 58Levie,supranote 17, at 1165-67. 66Id. 7 Id.

[Vol.63

judge or jury should make the determination of independent proof. Finally, additional issues to be resolved are the standard of proof to be used by the trier of fact and the proper time for the determination to be made. These issues are the primary focus of the discussion which follows. Since the problems raised by the requirementof independent proof begin at the trial level, the next section starts with an examination of the judge's instructions to the jury. I. THE ROLE OF THE JUDGE AND THE JURY IN MAKING THE PRELIMINARY FACT DETERMINATIONS

One of the most significant decisions dealing with the co-conspiratorsexception to the hearsay rule is Carbo v. United States.59There the appellants, defendants below, argued that the district court had erred in rejecting the following instruction to the jury: You will recallthat testimonyof acts and statements made by allegedco-conspirators in the absence of a defendantwas receivedon a tentative basis in evidence. Such testimony was received subjectto independentproofof the existenceof the conspiracyand the absent defendant'sknowing participationin the conspiracy.If you do not find, on independentproof, that a conspiracyexisted and the absent defendantknowinglyparticipated in the conspiracy,the tentative basis is destroyed andall suchtestimonymustbe ignoredas to him. A defendant'sconnectionwitha conspiracymust be establishedbeyonda reasonabledoubt,accordingly, by his own conductand his own statements or declarations.60

The Ninth Circuit affirmed the district court's rejection of appellants' proposed instruction. The main issue in Carbo was whether the finding of independent proof of a conspiracy and the de69314 F.2d 718 (9th Cir. 1963),cert.denied,377 U.S. 953 (1964). The appellants,Carbo,Palermo,Dragno, Sica and Gibson,were convictedof extortionaffecting interstatecommerce,and conspiracyto extort, in the SouthernDistrict of California.The statutes involved

were: 18 U.S.C. ?? 875(b) (1964) (interstate transmission of threats and conspiracy to transmit threats), 1951 (extortion affecting interstate commerce), and 371 (conspiracy to commit an offense against the United States). The appellants had attempted to gain managerial control of a well-known professional boxer, who at that time was a top contender for the welterweight

crown. By bringingpressureto bear on this fighter's manager,the appellantswouldcontrolthe welterweight crown,sincethey alreadydominatedthe othertop contenders. 60 Id. at 735.

1972]

EXCEPTION TO THE HEARSAY RULE CO-CONSPIRATORS

fedant's participation in it was to be made by the judge or by the jury.61 Appellants argued that before the jury could integrate the challenged hearsay testimony and weigh it with the other evidence, it must first make an independent finding both that a conspiracy existed and that the declarant and the other defendants were parties. Moreover, appellants contended that the jury must make such findings beyond a reasonable doubt. The Ninth Circuit rejected appellants' contentions. Judge Merrill, writing for the court, held that to require the jury to make findings of the existence of a conspiracy and the accused's participation in it beyond a reasonable doubt, without relying on the hearsay evidence, would render consideration of the hearsay evidence unnecessary.62To do so would be tantamount to the trial judge telling the jury "you may not consider this evidence unless you first find the defendant guilty." 63Instead of treating it as a question of the required burden of proof, the court characterized the issue as one of "admissibility of evidence." If it was required that the jury, applying the reasonable doubt test, must make the preliminaryfinding of independent proof of conspiracy, then the preliminary question and the ultimate question of guilt or innocence on the conspiracy charge would coincide, with the result that the co-conspirators' hearsay testimony would not be considered on the question of guilt. The court rejected that result, saying: "the declarations, if admissible, shall be considered by the jury in reaching its determination upon the issue of innocence or guilt." 64 The Carbocourt also rejected appellants' further contention that the jury should have decided the preliminary question of the existence of sufficient independent proof of the conspiracy, and of declarant's and defendant's connection with it, on the basis of a prima facie case rather than proof beyond reasonable doubt. The court noted: The jury is alreadyconcernedwith the evidenceweighing standardsinvolved in proof beyond a 61 See, e.g., Rizzo v. United States, 418 F.2d 71 (7th Cir. 1969);United States v. Lawler,413 F.2d 622 (7th Cir. 1969). 62

314 F.2d at 736.

63Id. The court in Carbonoted that an identical argumenthad been rejectedpreviouslyby the Second Circuitin UnitedStatesv. Dennis,183F.2d 201,230-31 (2d Cir. 1950), aff'd, 341 U.S. 494 (1951), where the court stated that such requirementof an independent findingby the jury "altogetherwithdrewthe declarations from the jury, and it was idle to put them in at all." 64314 F.2d at 736.

7

reasonabledoubt.To expectthemnot only to compartmentalizethe evidence separatingthat produced by the declarationsfrom all other, but as well to apply to the independentevidencethe entirely different evidence-weighingstandards requiredof a primafacie case, is to expect the impossible.65 In rejecting appellants' argument that the jury should decide the preliminary question, the court held that the judge, not the jury, is to determine admissibility of co-conspirators' hearsay statements.66 Once hearsay statements are admitted into evidence by the trial judge, the jury can consider them together with any other evidence on the issue of guilt. Carbo thus reaffirmed the socalled orthodox rule on allocation of functions between judge and jury. According to this view, the judge decides preliminary questions of fact upon which competence depends, and the jury determines the weight to be given the evidence once admitted.67 In affirming the district court's rejection of appellants' proposed instruction, however, the Ninth Circuit failed to clarify the confusion arising from the similarity between the rejected instruction and the instruction actually given.8 For example, as to appellant Gibson, the lower court charged the jury: You are instructedthat in consideringthe guilt or innocenceof the defendantGibsonyou may not considerthe words or conduct of any other defendantnot in the presenceof Mr. Gibsonunless you find that the prosecutionhas provedbeyonda reasonabledoubt that Mr. Gibsonenteredinto a conspiracywith that defendantas chargedin the indictment,and that the words of the other de66Id. at 737. 66 Id.

67Id. The Carbocourt again cited Judge Learned Hand's opinion in United States v. Dennis with approval on the questionof allocationof functionsbetweenjudgeand jury,wherehe stated: The law is indeednot whollyclearas to who must decidewhethersucha declarationmaybe used;but we thinkthat the betterdoctrineis that the judgeis alwaysto decide,as concededlyhe generallymust, any issuesof fact on which the competenceof evidencedepends,and that, if he decidesit to be competent, he is to leave it to the jury to use like any other evidence,without instructingthem to considerit as proofonly after they too have decideda preliminaryissuewhichalone makesit competent. Indeed, it is a practicalimpossibilityfor laymen, and for that matter,for most judges,to keep their mindsin the isolated compartmentsthat this requires. UnitedStates v. Dennis, 183F.2d at 231. 68 314 F.2d at 735 n. 20.

8

N. M. GARLAND AND D. E. SNOW

fendantwere spokenin aid of and to furtherthe purpose of the conspiracy.69 And, with regard to appellant Palermo, the trial court charged: Now, beforeyou can hold any one of these defendantsto be boundby this conversationwith Mr. Palermo,if you believethat therewas such a conversation,it would be necessaryfor you to find fromother evidencethat suchperson,as to whom you are makingapplicablethat conversation,was in fact a conspirator.70

[Vol.63

more recent case, however, the Second Circuit ignored the prima facie test and instead phrased the standard in terms of "preponderance"of the evidence: [Tjhejudgemust determine,whenall the evidence is in, whether in his view the prosecutionhas provedparticipationin the conspiracy,by the defendantagainstwhomthe hearsayis offered,by a fair preponderance of the evidenceindependentof the hearsay utterances.5

The question thus raised is whether it makes a difference if the "preponderance" as opposed to prima facie standard is used. Prima facie evidence is that which, unless rebutted by sufficient evidence to the contrary, is adequate to support but does not compel a conclusion based on it.76 In a conspiracy case, it is independent proof of a defendant's participation in the conspiracy which creates a reasonableinference sufficient to support a finding of guilt. On the other hand, the "preponderance"of the evidence standard requires that evidence in support of a proposition be of greater weight or more convincing than that offered in opposition. The "preponderance" test is met if the evidence on the whole shows that the fact or causation sought to be proved is more probable than not.77 Comparing the two standards, the "preponderance" test seems to place a more difficult burden on the prosecutor because it requires the judge to "weigh" the evidence and determine that proof that a defendant was a conspirator is more convincing than evidence to the contrary. In addition it should be noted that since there must be contradictory evidence for the judge to "weigh," use of the "preponderance"standard may shift to defendant the burden of going forward with the evidence. In this way, the "preponderance" standard can create additional burdens for both 69Id. 70 Id. prosecution and defense. 71Id. Unlike the "preponderance" standard, the 72 Id. at 737-38. 73See, e.g., Orser v. United States, 362 F.2d 580 (5th prima facie standard does not seem to call for a Cir. 1966);National Dairy ProductsCorp. v. United weighing of the evidence offered to prove defendStates, 350 F.2d 321 (8th Cir. 1965), vacatedand remanded on other grounds, 384 U.S. 883 (1966); United as credible,the judgeis satisfiedthat a primafacie States v. Borelli, 336 F.2d 376 (2d Cir. 1964), cert. case (onewhichwouldsupporta finding)has been made.Thereafterit is the jury'sfunctionto deterdenied,379 U.S. 960 (1965). 74 314 F.2d at 737 mine whetherthe evidence,includingthe declara(emphasisadded): It is for the judge then, and not for the jury, to tions, is credibleand convincingbeyonda reasondeterminethe admissibilityof the declarations.In able doubt. makingthis determinationthe test is not whether 76 United States v. Geaney,417 F.2d 1116, 1120 (2d the defendants'connectionhad by independent Cir. 1969) (emphasisadded). 76 MCCORMICK 53. evidencebeen provedbeyonda reasonabledoubt, ? 77Id. ? 319. but whether,acceptingthe independentevidence If the words "from other evidence" in the above instruction have substantially the same meaning as the phrase "on independent proof" in the rejected instruction,71and a literal interpretation indicates that they do, the two sets of instructions are identical. Therefore, the criticism of the proposed instruction could also be leveled at the instruction actually given. But although the Ninth Circuit affirmed, it did not necessarily approve the lower court's instruction. Instead, it noted only that while such an instruction was not necessary, it was nevertheless not error to include it in the charge to the jury because it was in appellants' favor.72 Not only was there still considerable confusion as to the proper content of a trial court's instruction, but Carbo also left two additional problems unresolved: the standard to be used by the trial judge and the proper time for the judge to determine the admissibility of co-conspirators' testimony. As to the proper standard for admissibility, it has been held that a prima facie showing of a defendant's membership in a conspiracy by independent evidence is sufficient to allow the jury to consider an alleged co-conspirator's acts and statements as evidence against the defendant.73 The Carbodecision approved this approach.74In a

1972]

CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE

ant's participation in a conspiracy. Instead, the prosecutor need only present independent evidence tending to show that defendant was a conspirator. On the basis of this evidence alone, the judge decides whether to admit the challenged co-conspirators' hearsay testimony. If the judge admits the hearsay evidence, the alleged conspirator must then contradict it.78Therefore, because no weighing of defendant's contradictory evidence is involved, the prima facie requirement resembles the first stage of the "preponderance"test. Despite these distinctions, however, there may be no real difference between the two standards as they are applied. When viewed from the position of the trial judge, it may be difficult to say more than that he must satisfy himself, as a reasonable man, of a defendant's participation in the conspiracy on the basis of non-hearsay evidence.79 The second unresolved problem in Carbois the question of the proper time for the judge to decide that co-conspirators' hearsay testimony will be admitted into evidence. Because the judge has discretion as to the order of trial, most courts hold that hearsay can be admitted without a prior prima facie showing of conspiracy and the declarant's and the defendant's connection to it.80 Generally the judge will either admit the hearsay statements, subject to a later motion by the prosecutor to apply them to all or certain defendants, or admit the hearsay statements as to all defendants, subject to a motion to strike if not "connected up" by independent proof with all or certain defendants.81Thus, the judge may postpone his determination of the admissibility of co-conspirators' hearsay testimony until all the evidence has been presented.82 Despite the Ninth Circuit's disapproval of appellants' proposed instruction, conspiracy cases subsequent to Carbo reveal that other federal courts continue to charge juries with instructions 78 If the government fails to presentprimefacieproof of a defendant'sparticipationin a conspiracy,it seems that the criminalproceedingagainst defendantshould be dismissed. 79 United States v. Geaney,417 F.2d 1116, 1120 (2d Cir. 1969). 80See, e.g., United States v. Halpin, 374 F.2d 493, 495 (7th Cir.), cert. denied, 386 U.S. 1032 (1967); Parenti v. United States, 249 F.2d 752, 754 (9th Cir. 1967);United States v. Sansone,231 F.2d 887, 893 (2d Cir.),cert.denied,351 U.S. 987 (1956). 81See United States v. Acuff,410 F.2d 463, 465-66 (6th Cir. 1969); Enriquezv. United States, 314 F.2d 703 (9th Cir. 1963). 2United States v. Geaney,417 F.2d 1116, 1120 (2d Cir. 1969).

9

similar to the rejected instructions in Carbo.8The continued use of such instructions suggests that Carbois not being followed and that there must be some justification for allowing the jury to decide the preliminary questions of conspiracy on which the admissibility of evidence depends. To seek such a rationale it is necessary to reexamine the role of the judge and jury in light of the cases subsequent to Carbo and other recent developments in the law. Recent appellate court decisions indicate that Carbo is followed in the Second84and Ninth Circuits.85Conspiracy cases in other federal jurisdictions, however, illustrate that juries continue to be charged with instructions similar to those rejected in Carbo.86For example, in United States v. Rizzo,87the Seventh Circuit approved instructions which advised the jury that it must first determine whether the existence of a conspiracy was proved, and then determine "from the acts and declarations of each defendant whether he became a participant in that conspiracy..... " 8 Further, the instruction stated that "contingent upon the jury's finding, beyonda reasonabledoubt,"that both facts were proved, then all acts and declarations of each co-conspirator could be admitted against all persons whom the jury found to have joined in the conspiracy.89 83 See, e.g., Rizzo v. United States, 418 F.2d 71 (7th Cir. 1969); United States v. Lawler, 413 F.2d 622 (7th Cir. 1969); United States v. Kahn, 381 F.2d 824 (7th Cir.), cert.denied,389 U.S. 1015 (1967);National Dairy ProductsCorp. v. United States, 350 F.2d 231 (8th Cir. 1965); United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff'd, 385 U.S. 293 (1966); Dennis v. United States, 346 F.2d 10 (10th Cir. 1965),rev'dand remanded onothergrounds,384U.S. 855 (1966). 84SeeUnited States v. Ragland, 375 F.2d 471, 479 (2d Cir.), cert. denied,390 U.S. 925 (1967); United States v. Nuccio, 373 F.2d 168 (2d. Cir.), cert.denied, 387 U.S. 906 (1967). 86314 F.2d at 735-38; see United States v. Knight, 416 F.2d 1181, 1186 (9th Cir. 1969);White v. United States,394 F.2d49, 54 (9th Cir.1968);UnitedStatesv. Ragland,375 F.2d at 478-79; United States v. Nuccio, 373 F.2d at 173; United States v. Dennis, 183 F.2d at 230-31. 86 See cases cited at note 83 supra. 87418 F.2d 71 (7th Cir. 1969). 88Id. at 82. 89Id. (emphasisadded). See also Dennis v. United States, 346 F.2d 10, 16 (10th Cir. 1965), rev'dand remandedon othergrounds,384 U.S. 855 (1966),where the Tenth Circuitstated: The jury was told they must first determinethe existenceof the conspiracycharged,and if they entertaineda reasonabledoubt of the conspiracyas charged,theirtask was at an end, and they should acquitall the defendants.But, if on the otherhand, they were convincedbeyonda reasonabledoubtof

10

N. M. GARLANDAND D. E. SNOW

Another decision which left a preliminary question to the jury is United States v. Hofa,90 where the Sixth Circuit approved instructions restricting the jury's consideration of out-of-court statements as to the particular defendant who made the statement, "until and unless the jury was satisfied from other evidence in the case that the defendant making the statement was a co-conspirator of one or more of the other defendants .... " The instructions made it clear that the other evidence could not consist of hearsay declarations.9' Finally, in the existenceof a conspiracy,they shouldthen proceed to considerwhich, if any, of the appellants weremembersof it. And,they shoulddeterminethe participationof any defendantin the conspiracy fromthe evidencerelatingto his own acts, declarations and conductwith the actionsand conductof others;that guilt was personaland individual,but oncea conspiracywasformedeachmemberbecame the agent of the otherin all things done or said in furtheranceor in promotionof the unlawfulpurpose. [emphasisadded]. SeealsoUnitedStates v. Lawler,413 F.2dat 628;White v. United States, 394 F.2d at 54; National Dairy ProductsCorp.v. UnitedStates,350 F.2d 231. 90349 F.2d 20 (6th Cir. 1965). 91Id. at 41. See also United States v. Stromberg,268 F.2d 256, 265, 265 n. 10 (2d Cir.),cert.denied,361 U.S. 863 (1959),wherethe SecondCircuitquotedfrom the trialjudge'sinstructions: 'In yourconsideration,then, of the evidenceyou should first determinewhether or not the conspiracyto importand distributeexistedas charged in the indictment.If you concludethat such conspiracydid exist, you shouldnext determineas to eachdefendantseparatelywhetheror not he or she was a party to or memberof the conspiracywith knowledgeof its illegalpurposeand with the intention to assist the conspiracyto achieve its illegal objective. 'In consideringwhetheror not a particulardefendantwas a memberof the conspiracy,you must do so withoutregardto and independentlyof the statementsor declarationsof others.That is to say, you mustdeterminethe issueas to his or her membershipin the conspiracyfrom his or her own statementsor declarationsor acts or conduct. 'If and when the existence of the conspiracy chargedin the indictmentand the membershipof any or all of the defendantsin suchconspiracyhas beenfound,then the acts doneand the statements or declarationsmadeby any personfoundby you to be a memberof the conspiracymaybe considered in connectionwith the case as to any defendant whomyou find to have been a memberof the conspiracy even though such acts and declarations may have been madein the absence and without the knowledgeof such defendant,providedsuch acts weredoneand suchstatementsor declarations were made during the continuanceof such conspiracyand in furtheranceof an objectiveor purpose of the conspiracy. 'So,if you concludefromthe evidencethat a defendantwasa memberof the conspiracyand you do so basedupon the independentevidence,as I have alreadytold you, based upon his own acts or her own acts or her declarations,or her or his conduct,

[Vol.63

United States v. Ragland,92 the Second Circuit noted with approval that the trial judge, without expressly finding that a conspiracy had been proved, told the jury that it could consider coconspirators' hearsay statements "if it first found a prima facie case of conspiracy to have been established." 93 Because they allow the jury to decide the preliminary question upon which admissibility depends, the above instructions reject the belief expressed in Carbothat the jury should not become involved in the technical niceties of foundational questions. It is therefore disappointing that the federal courts which have continued to use such instructions seldom attempt to explain why. The cases and the commentators, however, do suggest three possible reasons. First, the use of such instructions is merely "harmless error." 94 Second, the admissibility of the co-conspirators' hearsay evidence turns on relevancy, rather than competency, and therefore the existence of the preliminary fact (essential for the disputed evidence to be relevant) is for the jury to determine.95Third, to allow the judge finally to determine the existence of the preliminary fact would deprive an alleged conspirator of his constitutional right to trial by jury.96Each of these suggested reasons will be considered separately. HARMLESS ERROR Some courts, while affirming the use of instructions which require that the jury find a conspiracy before it considers the hearsay statements, have stated that such instructions constitute mere "harmless error."97 Since the trial judge has alyou may then consideras if made by him or her any statementsor declarationsof othermembersof the conspiracy,even thoughthey are not namedas defendantsin the indictment,providedsuch statementsor declarationswere made duringthe existenceof the conspiracyand in furtheranceof an object or purposeof the conspiracyas chargedin the indictment.' See United States v. Schneiderman,106 F. Supp. 892, 903 (S.D. Cal. 1952). 92375 F.2d 471 (2d Cir. 1967). 93 d. at 478-79. 94Id. See also United States v. Knight, 416 F.2d at 1186;White v. United States, 394 F.2d at 54; United States v. Nuccio, 373 F.2d at 173; United States v. Stadter,336 F.2d326,330 (2d Cir.1964);UnitedStates v. Stromberg,268 F.2d at 266. 96See PROP.FED. R. EvD. 104, Adv. Comm. Note

at 11-14 (1971);CAL.Evm. CODE ? 403, Assem.Comm. Comment(West 1966). 96Seeauthoritiescitedat note 95 supra. 97See cases cited at note 94 supra.

1972]

EXCEPTION TO THE HEARSAY RULE CO-CONSPIRATORS

ready determined the admissibility of the challenged co-conspirators' hearsay testimony, these instructions unnecessarily give the jury an opportunity to "second-guess" his decision, and are "unduly generous" to a defendant.98 Thus, the courts have held that "[a]n error of this sort, so favoring a defendant, provides no basis for a reversal of a judgment of conviction entered upon the jury verdict." 99 RELEVANCYVERSUS COMIPETENCY

This rationale takes issue with the Ninth Circuit's statement in Carbo that co-conspirators' hearsay evidence is "concededly relevant but challenged under a technical evidentiary rule of competence.... "00 Its proponents argue that the relevancy,101rather than the competency,102 of co-conspirators' hearsay evidence depends on the existence of the preliminary fact.'03Relevant evidence is evidence which has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.l04 In the context of the co-conspirators exception to the hearsay rule, one might view the independent proof requirement as a parallel to the preliminary fact requirement in a relevancy problem. In other words, if there is no conspiracy proven and if the declarant is not shown to be a party to it, then his declarations are not probative of conspiracy as to alleged co-conspirators. Proponents of the relevancy rationale admit that where the competency of an item of evidence depends upon the existence of a disputed fact, the orthodox rule applies and the question is one of admissibility to be deter-

11

mined by the judge.'05They also point out, however, that where the relevancy of the evidence turns on the existence of a preliminary fact, the authorities generally agree that the question of the existence of the preliminary fact is for the jury.'06 Support for this rationale is found in the Assembly Committee's Comments to Section 403 of the California Evidence Code.'07Section 403 provides in part: (a) The proponentof the profferedevidencehas the burdenof producingevidenceas to the existence of the preliminaryfact, and the profferedevidence is inadmissibleunless the court finds that there is evidencesufficientto sustaina findingof the existenceof the preliminaryfact, when: (1) The relevanceof the profferedevidencedependson the existenceof the preliminaryfact; (c) If the court admits the profferedevidence under this section, the court: (1) May, and on requestshall,instructthe jury to determinewhether the preliminaryfact exists and to disregardthe profferedevidenceunless the jury findsthat the preliminaryfact does exist. (2) Shall instruct the jury to disregard the profferedevidenceif the courtsubsequentlydeterminesthat a jurycouldnot reasonablyfindthat the preliminary fact exists....108

In its Comments, the Assembly Committee offers the admission of co-conspirators'hearsay evidence as an example of the type of preliminary fact questions that should be decided under Section 403.1'9 It is unclear whether the preliminary fact question of the existence of a conspiracy and a defendant's participation in it is one of relevancy or competency. The Assembly Committee notes that it is often difficult to distinguish preliminary questions of fact on this basis.10 However, the rule stated in Section 403 does eliminate uncertainty."'

9 See cases cited at note 94 supra. 99United States v. Ragland,375 F.2d at 479. 100314 F.2d at 736. 105See authorities cited at note 73 supra. 101Relevant evidenceis evidencewhich is pertinent 106 Id. or applicablein determininga fact in question.It is 107CAL. EVID. CODE? 403 (West 1966). evidencehavingprobativevalue in provingor disprov108Id. ing a point. It is evidencewhichtendsto renderprobable a certaininferenceinvolvedin a case. MCCORMICK 109Id. Assem.Comm.Comment. 110Id. The AssemblyCommitteenotes that: ?? 151 et seq. See also PROP. FED. R. EvID. 401, at 28. 102Competentevidenceis evidencewhich is legally It is difficult, however, to distinguish all preliminary fact questionsupon this principle.And emiadequateand sufficient.Competencyof evidenceconnent legal authorities sometimes differ over cerns its reliabilityrather than its bearingupon the whethera particularpreliminaryfact question is ?? 151 et seq. issues.MCCORMICK one of relevancy or competency. For example, 103See CAL.EVyD.CODE? 403, Assem. Comm. ComWigmoreclassifiesadmissionswith questions of ment (West 1966). See generally Maguire & Epstein, theAdmisrelevancy(4 Wigmore,Evidence1 (3d ed. 1940)) PreliminaryQuestionsof Factin Determining while Morganclassifiesadmissionswith questions sibility of Evidence, 40 HARV. L. REV. 392 (1927); to be decidedunder the standard Morgan,Functionsof JudgeandJury in theDetermina- of competency prescribedin Section405. (Morgan,BasicProblems tion of PreliminaryQuestionsof Fact, 43 HARV.L. of Evidence244 (1957)). REV. 165 (1929).

104PROP.FED.R. EVID.401.

But see CAL.EVID.CODE? 405 (West 1966):

12

N. M. GARLAND AND D. E. SNOW

Additional support for the "relevancy"rationale appeared in the Preliminary Draft of the proposed Rules of Evidence for United States Courts and Magistrates.112Rule 1-04 and the Advisory Committee's note adopted and cited Section 403 of the California Evidence Code with apparent approval.1 Rule 1-04 provided in part: (a) General Rule. Preliminary questions concerning... the admissibility of evidence shall be determined by the judge, subject to the provisions of subdivision (b)....

on Fact. Whenthe rele(b) RelevancyConditioned vancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition. If under all the evidence upon the issue the jury might reasonably find that the fulfillment of the condition is not established, the judge shall instruct the jury to consider the issue and to disregard the evidence unless they find the condition was fulfilled. If under all the evidence upon the issue the jury could not reasonably find that the condition was fulfilled, the With respect to preliminary fact determinations not governed by Section 403 or 404: (a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises. (b) If a preliminary fact is also a fact in issue in the action: (1) The jury shall not be informed of the court's determination as to the existence or nonexistence of the preliminary fact. (2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court's determination of the preliminary fact.... 1 Id. The California Committee states that: To eliminate uncertainties of classification, subdivision (a) lists the kinds of preliminary fact questions that are to be determined under the standard prescribed in Section 403. And to eliminate any uncertainties that are not resolved by this listing, various Evidence Code sections state specifically that admissibility depends on 'evidence sufficient to sustain a finding' of certain facts. See, e.g., Evidence Code ?? 1222, 1223 [Admission of co-conspirator], 1400.

112COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED OF EVIDENCE FOR THE STATES, PROPOSED RULES UNITED STATES DISTRICT COURTS AND MAGISTRATES,

46 F.R.D. 161 (Preliminary Draft, 1969) [hereinafter cited as PRELIM. DRAFTPROP.FED.R. EVID.]. "' Id. Rule 1-04, at 186-87, Adv. Comm. Note, at 187-90.

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judge shall instruct the jury to disregard the evidence.... .114 The Revised Draft deleted everything from sub-

section (b) after the first sentence and the Advisory Committee's Note reflects the deviation from the California rule.l5 Thus, the California rule will not become the accepted procedure in all federal jurisdictions if the Revised Proposed Rules are adopted. Moreover, Proposed Federal Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." 116 If, in order to be considered relevant, an item of evidence must merely "tend to prove the matter sought to be proved," 117co-conspirators' hearsay evidence is relevant, and Rule 104 (the Revised Draft version of Rule 1-04 of the Preliminary Draft) would not apply. TRIAL BY JURY

The possible denial of a defendant's constitutional right to a trial by juryl8 is advanced as an additional justification for the procedure outlined

in the Californiarule and the Preliminary Draft of the Proposed Federal Rules (i.e., to commit the "preliminary fact" or "independent proof" questions to the jury).l" The California Assembly Committee stated that the preliminary fact questions of the existence of a conspiracy and a defendant's participation in it should not be finally decided by the trial judge "because they have been traditionally

regarded as jury questions." 120 The

Committee concluded that: The questionsinvolve... the probative value of evidencethat it is admittedon the ultimateissues. It is the jury'sfunctionto determinethe effectand value of the evidence addressed to it....

Hence,

the judge's function on questionsof this sort is merely to determinewhether there is evidence sufficient to permit a jury to decide the question. 114 Id. at 186-87. 116PROP.FED.R. EVID.104, Adv. Comm. Note, at 13. 16 Id. Rule 401, at 28. 117 Id. Adv. Comm. Note to Rule 401, at 28.

118

U.S. CONST. amend. VI. "In all criminal prosecu-

tions, the accused shall enjoy the right to a speedy and

publictrial,by an impartialjury...."

19 CAL. EVID.CODE ? 403, Assem. Comm. Comment (West 1966); PRELIM. DRAFTPROP. FED. R. EVID.,

Adv. Comm.Note to Rule 1-04,at 190. 120

CAL.

EVID.CODE ? 403, Assem. Comm. Comment

(West 1966).

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EXCEPTION TO THE HEARSAY RULE CO-CONSPIRATORS

13

fact questions. The Ninth Circuit in Carbo and the drafters of Section 403 and Rule 104 agree that the judge must determine the admissibility of co-conspirators'hearsay evidence.28This approach finds analogous support in SupremeCourt decisions The drafters of the Preliminary and Revised requiring the judge to make a preliminary deterDrafts of the Proposed Federal Rules of Evidence mination of the voluntariness of a confession.12 the absence of a prereached a similar conclusion. The Advisory Com- These cases suggest that in of finding admissibility by the trial judge, liminary mittee noted that the trial judge does not make issues of the of the of a consubmission existence to the final determination with respect preliminary and a defendant's connection with it to spiracy If he of conditional did, relevancy.l22 questions the jury does not afford a defendant a reliable "the functioning of the jury as a trier of fact would of these issues and is therefore an be greatly restricted and in some cases virtually determination denial of due process.'3 unconstitutional that destroyed." 123 The Revised Draft provides 128 fact shall commit the judge questions preliminary 314 F.2d at 736-37; see CAL. EIDr. CODE ? 403, to the jury if he concludes there is sufficient proof Assem. Comm. Comment (West 1966); PROP.FED. R. Adv. Comm.Note to Rule 104,at 11-14. to take the questions to them; however, the jury EVm., 129See, e.g., Sims v. Georgia, 385 U.S. 538 (1967); the will not be specially instructed to disregard Jacksonv. Denno, 378 U.S. 368 (1964).In Jacksonthe evidence if the conditions are found by them not SupremeCourt held that in the absence of an indefindingof the voluntarinessof a confessionby to be fulfilled.l24In effect, then, the Revised Draft pendent the trial judge,submissionof the questionof voluntariwithdraws from the jury the preliminary fact ness to the jury which also adjudicatesguilt does not afforda defendanta reliabledeterminationof the volunquestion. This, of course, is consistent with the tarinessissueandis thereforean unconstitutionaldenial Carbodecision. of due process.378 U.S. at 376-78. The Courtwas inby the possibilitythat even when the jury deDespite the concern that the jury's role not be fluenced cides that the confessionwas involuntary,it would be reduced, allowing the judge to decide preliminary unableto disregardwhat it believesto be an involunfact questions does not appear seriously to restrict tary, but truthful,confessionin makinga decisionas to or guilt. Id. The Courtnotedthat thereis no the jury's function. As the Ninth Circuit pointed innocence "indicationof how the jury resolveddisputes in the out in Carbo,the conspiracy situation is confusing evidenceconcerningthe criticalfacts,"and that it canbecause the preliminary fact question, upon which not be discovered"whetherthe jury found the confession voluntaryand reliedupon it, or involuntaryand the admissibility of co-conspirators' hearsay evisupposedlyignoredit." Id. at 379. When the issue of the ultimate with coincides dence depends, ques- voluntarinessis resolvedby the jury, findingsof fact tion for the jury on the issue of guilt.125Since the cannotbe ascertainedfromthe generalverdict.Consean appellatecourt can only speculate as to decision on the ultimate issue is entrusted to the quently, whichevidenceactuallyled to the verdictof guilty. Id. jury, it should also decide preliminary questions.l26 at 380. Thus, the voluntarinessissue cannot be subto the jury unlessthere has been a preliminary In fact, however, the judge only decides the pre- mitted determinationby the trial court that the confessionis liminary questions of the existence of a conspiracy voluntary. 130Theconspiracycases illustrate that defendants and a defendant's connection with it for purposes raisethis issue. See, e.g., Whitev. United States, often not does of admissibility. The judge's decision 394 F.2d at 54; United States v. Ragland,375 F.2d at prevent the jury from giving the ultimate decision 479; United States v. Hoffa, 349 F.2d at 41. But no has arguedthat the absenceof a preliminary on the basis of all the evidence. Moreover, the sixth defendant of a conspiracyand a defendant'sconnection finding amendment does not seem to require a jury deter- with it by the trialjudgeconstitutesan unconstitutional mination of all questions of fact in a criminal denialof dueprocess.However,suchan argumentseems destinedto fail, sincewherethere is no clearrulingby trial.127 the trialjudgeon this issue,the appellatecourtsassume One conclusion to be drawn is that the jury that he madethe essentialpreliminaryfinding,andwill should play a limited role in deciding preliminary affirmif there is evidenceto supportthe finding.For example,the Sixth Circuitstated in Hoffa: 121Id. We think therewas sufficientevidenceto make out a primafacie case linkingAppellantswith the 122PROP.FED. R. Ev)., Adv. Comm.Note to Rule DRAFTPROP.FED.R. EVID.at 190. conspiracyand the Courtwouldhavebeenjustified 104, at 13; PRELIM. 123Id. in so holdingin accordancewith the rule of Carbo 124See note 122 supra. and Dennis. 125 314 F.2d at 736. 349 F.2d at 41 (emphasisadded). And, in White,the 126See MAGUIRE,supra note 36, at 220; MAGUIRE & Ninth Circuitconcluded: The fact that the trial judge denieda motionfor EPsTEIN, supra note 103, at 418. 127 See note 114 acquittal... indicatesthat he did find that there supra. ... If the judge finally determined the existence

or non-existenceof the preliminaryfact, he would deprivea party of a jury decisionon a question that the party has a right to have decidedby the jury.121

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[Vol.63

If you concludethat a conspiracydid exist, you While the division of responsibility between shouldnext determinewhetherthe defendantwas is and it is more diffijudge jury reasonably clear, a memberof the conspiracy.In makingthis detercult to reach conclusions as to the correct jury mination,you may consideronly the statements instruction. There is substantial disagreement over and conductof the defendant.If you do not find instructions between the Carbo court and the that the defendantwas a memberof the conspirdrafters of Section 403.181However, the possibility acy, you must acquithim. However,if you do find that a defendant's sixth amendment right to a jury that the defendantwas a memberof the conspirtrial may be violated if the jury is not permitted acy, you may consideragainst the defendantthe to reconsider the judge's determination of the statementsof any otherpersonfoundby you to be a memberof the conspiracy. preliminary fact questions seems to outweigh any argument based on jury confusion, particularly This instruction is consistent with current fedwhen the courts which have followed the Carboraeral practice, although it goes further than Carbo tionale characterize such a procedure as "harmless would strictly require. Moreover, it adopts the error." 132 approach of the Revised Draft of the Proposed On the other hand, instructions similar to those Federal Rules by giving the jury an affirmative found in Rizzo v. United States,133 which require the function only--i.e., the jury is not told to disregard jury to decide the preliminary questions of the the evidence if the preliminary facts are not found existence of a conspiracy and a defendant's parthem to exist. by ticipation in it upon proof beyond a reasonable Despite the care with which the instruction is doubt, seem clearly erroneous.As the Ninth Circuit drawn, there is a real possibility that the jury may pointed out in Carbo, be confused by the instruction and will utilize the co-conspirators' hearsay statements regardless of [I]f by independentevidencethe defendant'sposiits preliminary finding.l13Other courts have question as a co-conspirator is to be establishedby the tioned the ability of a jury to follow limiting injury beyonda reasonabledoubt, there is no occasion ever to resortto the declarationsat all.134 structions.l37 This likelihood of jury confusion emphasizes the importance of the trial judge's Since the procedure set forth in Section 403 does decision to admit the co-conspirators' hearsay not specify any particular standard of proof for statements into evidence. His preliminary deterthe jury,135it may be presumed that it calls for a mination of admissibility is said to provide a lesser standard-e.g., "prima facie" proof or "pre- circumstantial guarantee of the trustworthiness of ponderance" of the evidence. the co-conspirators' hearsay statements, thereby Consequently, if the trial judge concludes that obviating the necessity of affording the defendant the jury might reasonably find, on the basis of the an opportunity to cross-examine the declarants.l38 independent evidence presented, that there was a Recent Supreme Court decisions139 dealing with conspiracy and that the defendant was a conspira- hearsay and confrontation bear upon the validity tor, he should admit the challenged co-conspira- of this assumption and provide an interesting tors' hearsay statements. He then should instruct vehicle for consideration of the interplay between the jury to disregard the co-conspirators'hearsay the hearsay rule and the confrontation clause. evidence unless they also find, from the other eviII. CONFRONTATION AND THE COdence, a conspiracy and the defendant's participaCONSPIRATORS EXCEPTION tion in it. Accordingly, a proper instruction would the admission of hearsay stateread: By definition, ments into a evidence denies criminal defendant was sufficientother evidence,otherwisehe would 136 314 F.2d have been boundto grant the motionpursuantto at 737. 37See, e.g., Bruton v. United States, 392 U.S. 123 FederalRules of CriminalProcedure,Rule 29. We agree that there was sufficientother evidence, (1968), where the instruction challenged directed the whichif believed,wouldestablishthe existenceof a jury to consider a confession of one defendant which conspiracy.It was not errorto submitthis issue to implicated another only against the defendant who the jury. made the confession. The Court held that the instruc394 F.2d at 54. tion was ineffectiveto carryout its purportedpurpose 131Carbov. United States, 314 F.2d at 736-37; CAL. and thus did not safeguardthe accused'sright to conEvID. CODE? 403, Assem. Comm. Comment (West frontation.Id. at 137.See also United States v. Grune1966). wald, 233 F.2d 556, 574 (2d Cir. 1956) (dissenting 132 See casescited at note 94 supra. opinionof Frank,J.); Nash v. United States, 54 F.2d 133Seenote 88 supraandaccompanying text. 1006, 1007 (2d Cir. 1932). 138See4 WIGMORE 134 314 F.2d at 736. ? 1080a; 5 WIGMORE ?? 1420-22. 139See cases cited at note 152 text. 13"Seenote 93 supraandaccompanying infra.

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CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE

an opportunity to cross-examine the witnesses against him.140The confrontation clause of the sixth amendment provides that "in all criminal prosecutions the accused shall enjoy the right... to be confronted with the witnesses against

15

The relationship between the hearsay rule and the sixth amendment confrontation requirement has always been elusive, yet the Supreme Court has but recently begun defining it.148The Court, moreover, has expressly declined to develop the "141 Cross-examination him.... is an essential entire relationship at one time,149 but rather has element of the right of confrontation.142However, left its development to a case-by-case unfolding. neither the hearsay rule141nor the confrontation The unfolding scheme, confined to a mere six years clause44 guarantees an absolute right that all evi- of decisions, has failed to disentwine hearsay dence against an accused be presented by first- principles from the confrontation clause. The rehand testimony with its originator available for sulting overlap, an ill-defined congruence of the cross-examination. two doctrines, has stultified the emergence of an Since both the hearsay rule and the confronta- independent confrontation standard,'65as well as tion clause are primarily concerned with the op- hopes of applying it consistently. the Supreme Court rendered portunity for cross-examination, some federal Beginning in 1965151 which suggested, not unlike courts have held that the admission of evidence a series of decisions"52 under an established exception to the hearsay rule Wigmore, that the confrontation clause and the satisfies the confrontation requirement.'45 hearsay rule with its exceptions are closely interIn so linking hearsay and confrontation, these twined, perhaps equivalent.53 In Pointer v. Texas6" courts approximated the views of John Henry the Court held that the admission of testimony at Wigmore. Wigmore conceived cross-examination defendant's trial taken at a preliminary hearing, to be the root concern of both doctrines. For him where the defendant was unrepresented, violated the confrontation clause was intended to guarantee the confrontation clause. The Court ruled that a criminal defendant the same opportunity to the lack of opportunity to cross-examine the cross-examine adverse witnesses that the hearsay declarant at the hearing and the declarant's unrule had afforded.'46The sixth amendment might availability at trial rendered the testimony inadhave contained a hearsay clause or a cross-exami- missible against the defendant.155 In Douglas v. Alabama,l5 decided with Pointer, nation clause. Although Wigmore believed that the confrontation clause endorsed the principles of the confession of an alleged accomplice, which the hearsay rule and its common law exceptions, implicated the defendant, was admitted against the he did not see this "constitutionalization" of defendant at trial. The accomplice invoked his common law doctrine as a bar to the progressive privilege against self-incrimination, refusing to development of hearsay exceptions.147 148InPointer v. Texas, 380 U.S. 400 (1965), the 140 See text Court applied the confrontationclause, through the notes 27-31 supra. accompanying 141U.S. CONST. fourteenthamendment,to the states. Priorto 1965,the amend.VI. 42Pointer v. Texas, 380 U.S. 400, 404-05 (1965). relationshipbetweenconfrontationand the hearsayrule See 5 WIGMORE ? 1397; see also Salinger v. United was never squarelyfaced by the Court,and otherwise States, 272 U.S. 542 (1926);Diaz v. United States, 223 only casually alludedto in dictum. See, e.g., Stein v. U.S. 442 (1912);Dowdellv. UnitedStates, 221 U.S. 325 New York,346 U.S. 156, 196 (1953);Snyderv. Massa291 U.S. 97, 107 (1934). (1911); Motes v. United States, 178 U.S. 458 (1900); chusetts, 149Californiav. Green,399 U.S. 149, 162 (1970). Kirbyv. United States, 174 U.S. 47 (1899);Mattox v. 160Conversely, UnitedStates, 156 U.S. 237 (1895). 43See note 26 supra. If [theCourt]has readinto the Constitutiona hearsay rule of unknownproportions,reformersmust 144See,e.g., Mattox v. United States, 156 U.S. 237 grapplenot only with centuriesof inertiabut with (1895); Campbellv. United States, 415 F.2d 356 (6th a constitutionalprohibitionas well. Cir.1969). Note, infranote 153, at 1436. 146 See, e.g., Campbellv. UnitedStates, 410 F.2d 21 151 See note 148 supra. (2d Cir. 1970). 62See, e.g., Nelson v. O'Neil, 402 U.S. 622 (1971); 1465 WIGMoRE ? 1397at 130-31. 147The revisionand extensionof [thehearsayexBrutonv. United States, 391 U.S. 123 (1968); United States v. Wade, 388 U.S. 218 (1967); Douglas v. ception]is graduallyprogressing,and it is well to Alabama,380 U.S. 415 (1965); Pointer v. Texas, 380 appreciate fully that there is in this progress U.S. 400 (1965). nothinginconsistentwith constitutionalsanctions. and the HearsayRule, 75 13See Note, Confrontation So bold are nowadaysthe attempts to wrest the YALEL.J. 1434 (1966). Constitutionin aid of crime, and so complaisant 164380 U.S. 400 (1965).The Courtalso held that the are some Courtsin listeningto fantastic and unconfrontationclauseappliedto the states throughthe foundedobjectionsto evidence,that the permisfourteenthamendmentdueprocessclause. sibility of such changesshouldnot be left in the 166 380 U.S. at 408. slightestdoubt. 156380 U.S. 415 (1965). Id. at 135.

16

N. M. GARLANDAND D. E. SNOW

answer questions about the confession. The Court held: In the circumstancesof this case, petitioner's inability to cross-examineLoyd as to the alleged confessionplainly denied him the right of crossexaminationsecuredby the ConfrontationClause. ... Hence, effective confrontation of Loyd was

possible only if Loyd affirmedthe statement as his.167 Pointer and Douglas were consistent with the position that the hearsay rule and its exceptions are coextensive with the scope of the confrontation clause.l'8 Thus the denial of confrontation in Pointer was merely the erroneous admission of hearsay testimony, which resulted from the failure of the testimony at the preliminary hearing to qualify under the previously recorded testimony exception to the hearsay rule.159 Though the Pointer Court never mentioned hearsay in finding the confrontation violation, it acknowledged that dying declarations and testimony of "deceased witness[es] who [have] testified at a former trial" have been held constitutionally admissible against an accused.'60Such statements fall squarely within the "traditional" hearsay exceptions for dying declarations and previously recorded testimony. Moreover, the Court suggested that: The case beforeus wouldbe quite a differentone had [the witness']statementbeen taken at a fullfledgedhearingat whichpetitionerhad beenrepresentedby counselwho had been given a complete and adequate opportunityto cross-examine.l6l

[Vol.63

exception. The statement could only be an admission as to the declarant.162The statement could not qualify as a declaration against interest because it was against penal, not pecuniary or proprietary interest.63 Thus, one might conclude that if a hearsay statement is offered which does not fit within a traditional exception to the hearsay rule, the Supreme Court would find its admission violative of the confrontation clause. A less secure conclusion is that the Court would uphold the admission of hearsay evidence satisfying the requirements of a traditional hearsay exception. The latter conclusion was the first to be rejected by the Court. In Barberv. Page14 the Court held that the admission of prior recorded testimony violated the confrontation clause where the declarant was available to testify, though imprisoned in another jurisdiction. Under the traditional hearsay exception, unavailability was satisfied where the witness was beyond a court's power of service of process.65 The Supreme Court ruled that today's increased cooperation between the states and the federal government, and among the states, required an updating of a prosecutor's burden of showing unavailability.l66 Confrontation required the prosecu162McCoRMaCK ? 239 (emphasisadded): Admissionsare the words or acts of a partyopponentor of his predecessoror representative, offeredas evidenceagainst him. The Proposed Federal Rules, PROP.FED. R. EVID.

801(d) (2) takes a new approachto admissions.Instead of makingadmissionsadmissiblewithinan exceptionto the hearsayrule,they are excludedfromthe definition of hearsayand are thus admissible.However,to qualify the declaration must be "offered Similarly, in Douglas the inability to cross- as an admission a party...." examine the declarant rendered the statement against 163See MCCORMICK ? 255. The scope of the hearsay incapable of being fit into any traditional hearsay exceptionfor declarationsagainstinteresthas beennarrowed to exclude declarationsagainst penal interest 167Id. at 419-420. from the exceptionand from admissioninto evidence. 168The dangersof this view were ably presentedin For an excellentreviewof the backgroundof this rule, Note, supranote 153,whicharticlethe SupremeCourt see McClainv. AndersonFree Press,232 S.C. 448, 102 subsequentlycitedin Californiav. Green,399 U.S. 149, S.E.2d 750 (1958).However,the limitationseemsto be 156 n. 8 (1970),and quotedfromin Dutton v. Evans, withering.See, e.g., People v. Spriggs,60 Cal. 2d 868, 400 U.S. 74, 86 n. 17 (1970). 389 P.2d 377, 36 Cal. Rptr. 841 (1964); CAL.EVID. 169 Testimony given as witness at anotherhearCODE ? 1230 (West 1966); PROP. FED. R. EVID. ing of the same or differentproceeding,or in a 804(b) (4). 64390 U.S. 719 (1968). taken in deposition compliancewith law in the courseof anotherproceeding,at the instanceof 16 See 5 WIGMORE? 1404; MCCORMICK? 234: or against a party with an opportunityto de"Permanent or indefinite residence without the state velop the testimonyby direct cross or redirect should always suffice" to satisfy the unavailability rewith motive and interest similar examination, quirement of the previously recorded testimony excepto those of the party againstwhomoffered. tion. The Proposed Federal Rules, PROP. FED. R. PROP.FED. R. EVID.804(b)(1). See generallyFalknor, EvID. 804(a)(5) defines "unavailability," a requisite FormerTestimonyand the UniformRules:A Comment, for the illustrated by Rule 804(b), to mean 38 N.Y.U.L. REV.651,651n. 1 (1963).Cf.MCCORICK that theexceptions declarant: ? 231-32. Is absent from the hearing and the proponent of 160380 U.S. at 407, citing Mattox v. United his statement has been unable to procure his atStates, 156 U.S. 237 (1895) (former testimony); Mattox v. tendance by process or other reasonable means. 166The Court noted, in UnitedStates, 146U.S. 140 (1892)(dyingdeclarations). reaching this conclusion, the 161380U.S. at 407.

power of federal courts to issue writs requiring attend-

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CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE

tor's good faith effort167to secure presence of the witness in light of available contemporary procedures.16 Subsequently, in Californiav. Green,'69the Court eclipsed the first conclusion that non-traditional hearsay exceptions would be found unconstitutional. In Green,the Court considered the admissibility of prior testimony of a witness who claimed a lapse of memory at trial. Unlike most other jurisdictions, California permits the introduction of prior inconsistent statements into evidence to prove the truth of the matter asserted,170not merely to impeach credibility.171The Supreme Court held that the California rule is not inconsistent with the confrontation clause. In Green, after the chief prosecution witness, Porter, claimed a lapse of memory, the state introduced his sworn, cross-examined testimony taken at a preliminary hearing in which he stated that Green had sold him marijuana. A police ance of witnessesfrom outside their jurisdiction.390 U.S. at 724. The Court also held that the defendant had not waived his right to cross-examineat the preliminary hearing,but noted that even had he done so, the decision would have been the same. Id. at 725. This point was reaffirmedin Berger v. California,393 U.S. 314 (1968), which held Barberto apply retroactively.In Bergerthe defendanthad been affordeda full opportunity at a prior hearingto cross-examinethe subsequentlyunavailablewitness.The Courtagainheld that absent a showingof a good faith effortby the prosecution to producethe witnessfor trial, the confrontation clauseprecludesthe admissionof suchevidence. 167Barberhas been viewed as a case of prosecutorial misconduct.400 U.S. at 87. 168 Mr. Justice Marshall,speakingfor the Court in Barber,notedthat "[t]herightof confrontationmay not be dispensedwith so easily."390 U.S. at 725. He suggested that under 28 U.S.C. ? 2241(c)(5) the federal courts had power to issue writs of habeas corpus ad at the requestof state prosecutionauthoritestificandum ties, in orderto providethe state with a federallyincarceratedwitness.

17

officer testified that Porter had recounted a similar story to him. These two out-of-court statements, admitted for their truth under the California statutory definition of hearsay, constituted the case-in-chief against Green. The Supreme Court stated that the issue was "whether a defendant's constitutional right 'to be confronted by the witnesses against him' is necessarily inconsistent with a State's decision to change its hearsay rules to reflect the minority view."

172

In holding that the confrontation clause had not been violated the Court stated: Whileit mayreadilybe concededthat hearsayrules and the ConfrontationClause are generally designedto protectsimilarvalues,it is quite a different thing to suggest that the overlapis complete and that the ConfrontationClauseis nothingmore or less than a codificationof the rules of hearsay and their exceptionsas they existedhistoricallyat commonlaw. Ourdecisionshave neverestablished such a congruence;indeed, we have more than oncefounda violationof confrontationvalueseven thoughthe statementsin issuewereadmittedunder an arguably recognizedhearsay exception. See Barberv. Page... Pointer v. Texas.... The converse is equally true: merely becauseevidenceis admittedin violationof a long-establishedhearsay ruledoesnot lead to the automaticconclusionthat confrontationrights have been denied. [citations omitted]"7

The specific holding of Greenwas twofold. First, the Court ruled that if a declarant was available for cross-examination at trial, the confrontation clause did not bar admission of out-of-court statements made by the declarant.174Though a state's evidentiary rules might bar substantive use of prior inconsistent statements, the confrontation clause was satisfied so long as the defendant could 169399 U.S. 149 (1970). "confront" the declarant as to any statements he 170CAL. EVID. CODE? 1235 (West 1966). The Prohad made. Second, the Court held that where the posed FederalRules also permitthe use of priorincondeclarant was not present at trial, the sixth amendsistent statements as substantive proof. PROP.FED. R. EvID. 801(d)(1). The SupremeCourt of Illinois re- ment was satisfied if the opportunity to crosscently held that priorinconsistentstatementsmay be examine was present when the declarant made the used for impeachmentpurposesonly, decliningan invitation to follow the Californiaand ProposedRules' incriminating statement.'7 Consequently, in "reform."See People v. Collins, 49 Ill. 2d 179, 274 72 399 U.S. at 155. N.E.2d 77 (1971)(opinionof Mr.JusticeSchaefer).The 17Id. at 155-56. SupremeCourtsof Wisconsinand Kentuckyhave permitted the use of priorinconsistentstatementsas sub174TheCourt noted that prior consistenttestimony stantiveproof.See Gelhaarv. State, 41 Wis.2d 230, 164 was not susceptibleto effective cross-examinationat N.W.2d 609 (1969); Jett v. Commonwealth,436 trial because it tended to "harden"with time. This S.W.2d788 (Ky. 1969). danger,felt the Court,was not presentin Greenwhere 171See, e.g., Ellis v. UnitedStates, 138 F.2d 612, 616"the witnesshas changedhis testimonyso that... his 21 (8th Cir. 1943); State v. Saporen,205 Minn. 358, priorstatementhas softenedto the point wherehe now 361-62, 285 N.W. 898, 900-01 (1939). For a collection repudiatesit." 399 U.S. at 159. 175Id. at 165. of cases see 3A WIGMORE ? 1018.

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N. M. GARLANDAND D. E. SNOW

[Vol.63

Green, Porter's failure to cooperate at trial, if state court for arraignment on the murder charges found to preclude effective cross-examination, involved in Dutton. Shaw testified that when Wildid not render his prior statement inadmissible. liams returned to the prison from the arraignment As in Douglas, the confrontation clause was satis- Shaw asked Williams, "How did you make out in fied by "a complete and adequate opportunity to court?" and that Williams responded: "If it hadn't cross-examine"at the preliminary hearing.176 been for that dirty son-of-a-bitch Alex Evans, we In Green,the Court laid to rest speculation that wouldn't be in this now." the confrontation clause was defined by the hearDefense counsel's objection that this statement say rule and its traditional exceptions. More was hearsay and violative of Evans' right of exactly, the Court disclaimed that the sixth amend- confrontation was overruled by the trial court. ment codified hearsay rules "as they existed his- The Georgia Supreme Court'81upheld the ruling torically at common law."177 This disclaimed on the basis of a Georgia statute which provides: congruence would define confrontation narrowly After the fact of conspiracyshall be proved, the by the state of the common law, always confused,178 declarations by any one of the conspiratorsduring at some arbitrary, historic time. Thus the Green the pendencyof the criminalprojectshallbe admisCourt merely disassociated the confrontation sibleagainstall.182 clause from some arbitrary set of hearsay rules and exceptions. The Court, however, did not This statute differs from the generally accepted divorce confrontation requirements from the co-conspirator's exception, and that existing in strictures of hearsay principles. Green left unan- the federal system, in that it permits admission of swered the extent to which the confrontation out-of-court statements made after the commission clause borrowed from common law notions of of a crime and while the conspiratorsare concealing necessity, availability of witnesses, opportunity their guilt.'83 to cross-examine and testimonial reliability. Yet Speaking for the Court in a plurality opinion, to the degree that a confrontation standard par- Justice Stewart first dimissed the defendant's takes of hearsay principles, a congruence is estab- claim that the Georgia hearsay exception violated lished, albeit not so narrowly defined an equation the confrontation clause by exceeding the scope as Green disclaimed. The Court should not be of the common law or federal co-conspiratorhearquick to establish such a congruence, for it sug- say exception. Justice Stewart noted that Green gests that the Court will be in the business of re- explicitly denied that common law hearsay excepviewing a trial court's determinations of eviden- tions defined the limits of admissibility under the tiary trustworthiness and weight, a task for which sixth amendment.l84Furthermore, he pointed out that the narrow scope of the co-conspirators it is ill-suited.179 Within six months of deciding Green,the Court hearsay exception was a product of the "Court's faced just such a task in Dutton v. Evans.'80The 'disfavor' of 'attempts to broaden the already defendant, Evans, was tried for the murder of pervasive and wide-sweeping nets of conspiracy three police officers in Georgia. Two other men prosecutions.' "185 Since Dutton did not involve allegedly participated in the crime, Truett and the substantive offense of conspiracy, the Court Williams. Truett was granted immunity and concluded that such policy questions as might testified against Evans and apparently against arise from this "disfavor" were not present.'86 Williams, who was tried separately. At Evans' xn 222 Ga. 392, 150 S.E.2d 240 (1966). The district trial the prosecution called a man named Shaw as court's denial of habeas corpus was reversed by the a witness. Shaw testified that he and Williams Fifth Circuit. Evans v. Dutton, 400 F.2d 826 (5th Cir. were fellow prisoners in the federal penitentiary 1968). 182GA. ANN. CODE? 38-306 (1954). in Atlanta at the time Williams was brought to '83 See 18 U.S.C. ? 3771 (1968); FED. R. CRIM. P. 26. See also note 47 supra. For a criticism of the traditional 17 Justice Brennan, dissenting in Greenfelt that co-conspirator exception, see Comment, Preserving the Barberunderminedthe view that cross-examination at Right to Confrontation-ANew Approachto Hearsay a preliminaryhearing could satisfy the confrontation Evidence in Criminal Trials, 113 U. PA. L. REV. 741, clause.Id. at 195. See Peoplev. Green,70 Cal. 2d 654, 755-56 (1965). 184400 U.S. at 82. 663, 451 P.2d 422, 428, 75 Cal. Rptr. 782, 788 (1969) 185Id. betweena trialand a preliminaryhearing). (differences 177399 U.S. at 155-56. 186Id. at 83. The Court thereby reserved considera8 MCCORMICK ? 231. tion of whether the co-conspiratorexception to the 179SeeNote, supranote 153,at 1436. hearsay role violates the confrontation clause in con180400

U.S. 74 (1970).

spiracy prosecutions. But there is little reason to sus-

1972]

CO-CONSPIRATORS EXCEPTION TO TEE HEARSAY RULE

The Court then turned to its recent decisions to determine whether Evans' conviction had to be set aside under their "impact." Pointer was distinguished with Pointer's own words that use of the transcript there "'denied petitioner any opportunity to have the benefit of counsel's crossexamination of the principal witness against him.' "187 Douglas was said to involve "an even more flagrant violation of the defendant's right of confrontation," referring to the fact that the outof-court statements had been read to the jury by the prosecutor and that the Douglas Court considered these statements to be of "crucial importance" in the case.88 Barberwas distinguished because it turned upon an "unavailability" issuethe Court stating that Barber was "even further afield." 189 The Court then asserted that it would confine itself to a determination of the case before it.190It affirmed the conviction upon two grounds. First, it found that the disputed evidence was not "in any sense 'crucial' or 'devastating'" as in the cases it had distinguished.191Second, application of the Georgia evidentiary rule in the "circumstances of this case" was not found to violate the sixth amendment.'92 In concluding that Shaw's testimony was not

19

critical, the Court noted that the prosecution in Dutton had presented nineteen witnesses other than Shaw and that all were available for cross-examination at Evans' trial. The Court concluded that the disputed evidence consisted of "a brief conversation," that the evidence "was of peripheral significance at most," and "was admitted under a co-conspirator exception to the hearsay rule long established under state statutory law." 193 The Court's conclusions as to the brief and peripheral nature of the testimony relied on the presumption that the jury was not unduly influenced by Shaw's statement. This presumption, the Court suggested, arose from the vague nature of Shaw's assertion which "carried on its face a warning to the jury against giving the statement undue weight." 194But surely such judicial secondguessing is an unseemly basis for a constitutional decision. Indeed, as Mr. Justice Marshall pointed out in his dissent in Dutton, "' the impropriety of such speculation appeared to provide the basis for the Court's decision in Bruton v. United States.l96 The Court's additional notation that Shaw's statement was admitted under a long-standing state rule of evidence must be deemed gratutitous. There was no dispute that the statement was within the Georgia co-conspiratorsexception. The longevity of the statutory exception does not bear upon whether the evidence admitted under it is crucial or devastating, or whether it violates the sixth amendment.197 The Court's analysis would support the conclusion that admission of the disputed evidence was harmless error, but the plurality opinion never used that language.'9 Thus the Court left unanswered what weight it gave its finding that the disputed statement was not crucial evidence in determining that there was no confrontation violation. Whatever Justice Stewart's opinion was intended to communicate on the "devastating and crucial" issue, it disturbingly recalls the justification given for the admission of the hearsay evidence at the trial of Sir Walter Raleigh. As Mr. Justice

pect that the Courtwouldfashiona generalrulefinding such a violation. The case-by-caseapproachto confrontationclause issues adoptedby Duttonprecludessuch a possibility. Moreover,the policyconsiderationsin conspiracytrials are likelyto be resolvedin favorof admissionof co-conspirator's hearsay statements by the current and prospective"lawand order"Court.Giventhe secretive nature of most conspiraciesand the problems encounteredwith circumstantialproof of them, co-conspirator'shearsay testimony will likely be viewed as necessaryfor conviction-more necessary,on balance, than defendants'rights to confrontation.Even Mr. Justice Harlan, balancing the problemsof proof of conspiracyagainst a defendant'sright to a fair trial, resolvesthe issuein favorof admittinghearsayevidence. See Dutton v. Evans, 400 U.S. 74, 99-100 (1970) (concurringopinionof Harlan,J.). 87Id. at 84, quotingPointer,380 U.S. at 403. 88400 U.S. at 84, quotingDouglas,380 U.S. at 417. 189400 U.S. at 85. Other cases distinguished,concededly of little significancein the determinationof Dutton,wereBrookhartv. Janis,384 U.S. 1 (1966) (involving the issue of waiverof the right to cross-exam193 Id. at 87. ine); Brutonv. United States, 391 U.S. 123 (1968) (in14 Id. at 88. volvingthe ability of a jury to followinstructions,in a 195Id. at 103-04. joint trial, not to considerone defendant'sstatements 196391 U.S. 123 (1968). in determiningthe guilt of another defendant,there 197As Justice Marshallnoted, the pluralityopinion being no disputethat the declarant'sstatementswere inadmissibleagainstthe co-defendant);and Robertsv. "surely does not mean that a defendant's constitutional Russell,397 U.S. 293 (1969) (holdingBrutonapplicable right must give way to a state evidentiaryrule." 400 U.S. at 105. to the states and retroactive). 190400 U.S. at 86. 198But see Justice Blackmun'sconcurringopinion 191Id. at 87. findingthe statement'sadmission"harmlesserrorif it 192Id. at 88. was errorat all."Id. at 90.

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N. M. GARLANDAND D. E. SNOW

Stewart notes in his opinion in Dutton, "It has been suggested that [the confrontation clause] is based on a common-law principle that had its origin in a reaction to abuses at the trial of Sir Walter Raleigh.... "199 At Sir Walter Raleigh's trial for treason, the confession of an alleged coconspirator, Lord Cobham, implicating Raleigh, was admitted into evidence. Lord Cobham was not called to testify, although he was "in the house hard by, and may seen [sic] be brought hither.

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Justice Stewart, speaking for the Court, denied that a confrontation issue underlay the question whether the declarant made the statement Shaw related at trial. Shaw, assured the Court, was available for effective cross-examination on that issue.204 The confrontation issue, according to Justice Stewart, arose instead because "the jury was being invited to infer that Williams had implicitly identified Evans as the perpetrator of the murder when he blamed Evans for his predica, 200 ment." 205 Justice Stewart gave four reasons206 why In response to Sir Walter Raleigh's demand that this invitation, involving a "question of idenCobham be produced as a witness at the trial, tity," 207 did not violate the confrontation clause. Chief Justice Popham explained why this could First, the statement contained no express assertion about past fact and consequently carried with it, not be done: on its face, a warning to the jury against giving it Whereno circumstancesdo concurto makea matundue weight. Second, declarant-Williams' perter probable,then an accusermay be heard;butso sonal knowledge of the identity and role of the manycircumstances agreeingand confirmingthe accusationin thiscase,theaccuseris notto beproduced; other participants in the murder was "abundantly established" by other evidence. Third, the possifor, having first confessedagainst himself voluntarily, and so chargedanotherperson,if we shall bility that Williams' statement was "founded on nowhearhim againin person,he may for favouror faulty recollection is remote in the extreme." fear, retractwhat formerlyhe hath said, and the Finally, there was reason to "suppose" that Wiljury may, by that means,be inveigled.[emphasis liams "did not misrepresent Evans' involvement added]201 in the crime" because he "had no apparent reason Yet Mr. Justice Stewart stressed that the Dutton to lie," his "statement was spontaneous, and it was decision rested weightedly on the "not crucial or against his penal interest to make it." devastating" conclusion.22 This so, the difference The Court's first two reasons support the conbetween this justification for Dutton and the long clusion that the evidence was not crucial or devcriticized thinking behind Lord Popham's decision astating, rather than establish any standard for in Sir Walter Raleigh's case disappears. determining when the confrontation clause is vioThe second ground for the Dutton decision was lated by admision of evidence for some other that admission of the disputed evidence did not reason. The Court's conclusion that the statement violate the confrontation clause. The Court ex- itself adequately aroused a jury against giving it plained that this decision was reached under a undue weight means that the evidence was preconstitutional standard of confrontation which sumptively of little weight or importance. Simiwas not defined by hearsay doctrine. It reasserted larly, that there was other evidence which "abunits position in Green that the Court had never dantly established" the declarants'personal knowlequated confrontation with the rules of hearsay edge of the identity and role of the other particiand their exceptions and that "we decline to do pants in the murder indicates that the disputed so now." 203 evidence was of no consequence in deciding those 199Id. at 86 n. 16. (citationomitted). issues. 200 J. G. PHILMORE, HISTORY AND PRINCIPLES OF THE Thus, the first two reasons supporting no conLAW OFEVIDENCE 157 (1850), as quoted in D. LOUIsELL,J. KAPLAN&. J. WALTZ,CASESANDMATERIALS frontation clause violation suggest the presumpONEVIDENCE 50 (1968). tion that the jury gave the evidence little or no 201Id. In other words, admission of the evidence 202The plurality opinion closed with a quotation weight. from an opinion written by Mr. Justice Cardozoin was harmless error at most.208But the Court never which the Courtdeclinedto set aside a state criminal 04Id. at 88. convictionon confrontationgrounds.Cardozostated: 206Id. There is danger that the criminal law will be 20 Id. at 88-89. broughtinto contempt... if gossamerpossibilities 207Id. at 88. of prejudiceto a defendantare to nullify a sen208As noted tence... and set the guilty free. previously,supranote 198 and accom400 U.S. at 89-90, quoting Snyder v. Massachusetts, panying text, Mr. Justice Blackmunasserts harmless, 291 U.S. 97, 122 (1934). erroras a separategroundfor reachingthe same deci203400 U.S. at 86. sionas the pluralityin the case-a groundwhichBlack-

1972]

CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE

used the term "harmlesserror."Since the Court repeated itself, and again hammered at the inconsequence, though not harmlessness, of Shaw's testimony, it seems fair again to question what bearing that conclusion had on the confrontation issue. If the Court meant to incorporate a test of importance or weight in the confrontation standard, it reintroduced an abuse the confrontation standard was intended to correct.20 If the Court meant instead to distinguish Dutton from previous decisions finding confrontation violations, that distinction alone failed to resolve the confrontation issue in Dutton. Summed up, none of the Court's variations on the "not crucial or devastating evidence" theme disposed of the defendant's constitutional argument. The third and fourth reasons advanced by Justice Stewart for the conclusion that the confrontation clause was not violated spoke to the reliability of Williams' statement. He asserted that there was reason to conclude that the declarant's recollection was accurate. Certainly, circumstantial guarantees of such accuracy may substitute for testing accuracy by cross-examination, thus making the evidence admissible without producing the declarant at trial. This reasoning is consistent with the traditional approach to determining whether hearsay evidence should be admitted; that is, whether there should be an exception from the exclusionary rule because of the inherent reliability of the statement.210 Unfortunately, the plurality opinion failed to state why it found circumstantial guarantees of accuracy present in the case before it. Finally, Mr. Justice Stewart stated that since Williams had no apparent reason to lie and his statement was spontaneous and against his penal interest, there was no reason to conclude that the statement was inherently untrustworthy. Stewart declared that such circumstances "are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant." 211 Presumably this means that the disputed evidence fell within the hearsay exceptions for spontaneous exclamations212and declarations against interest.21'But neither excepmun apparentlybelieved was absent in the plurality opinion. 209See text accompanyingnotes 199-202 supra. 210 See 5 WIGMORE?? 1420-24. 211400 U.S. at 89.

212See, e.g., McCoRmcK ? 272; PROP. FED. R.

EVID.803(1)-(2).

213See MCCORMICK??

253-57; 5 WIGMORE ?? 1455-

21

tion, as traditionally defined, comfortably embraces the disputed statement.214Moreover, the opinion disclaimed using the hearsay rule as a basis for determining the confrontation issue. The Court appears to have abstracted principles of testimonial reliability from, but without reference to, traditional hearsay exceptions. Dutton thus announces the sixth amendment's appropriation of hearsay concepts in unknown quantities to test evidentiary reliability under the confrontation clause.215

The Dutton decision provides no reliable standards by which one may with confidence determine issues arising under the confrontation clause. Surely, in attempting to follow Dutton, courts will resort to subjective determination of whether or not the evidence was crucial, devastating, or prejudicial. However, such determinations do not appear relevant to standards inhering in the confrontation clause, or to be distinguishable from general notions of fairness and due process. On balance, one is tempted to conclude that the Court has in fact adopted a due process standard. Mr. Justice Harlan, concurring in Dutton, felt that the plurality decision did not "explain the 77; PROP. FED. R. Evm. 804(b)-(4). Although the

exception for declarationsagainst interest has been limited traditionallyto statements against pecuniary or proprietaryinterest,the recenttrendhas been to allow statementsagainst penal interest to be admitted into evidencewithinthe exception.See,e.g.,in addition to authoritiescited supra,UnitedStates v. Dovico, 261 F. Supp. 862 (S.D.N.Y. 1966), aff'd, 380 F.2d 325 (2d Cir.), cert.denied,389 U.S. 944 (1967). 214The spontaneousutterance exceptiontraditionally applies to statementsgeneratedby an exciting event either participatedin by the declarantor witnessed ? 272;6 WIGMORE ?? 1745-47. by him. SeeMCCORmICK Other exceptionswhich depend upon spontaneityto qualifyfor admissibilityincludedeclarationsof bodily ?? 265-67; PROP.FED. R. condition, see MCCORMICK

Evm. 803(3), and declarationsof mental state, see ?? 268-71; PROP.FED.R. EvmI.803(3). McCoRMICK Arguably, Williams' statement in Dutton might be within the exceptionfor declarationsof mental state, but his mentalstate was not in issue. Thus the statement would only be probativeof an issue in disputeif it were true that Evans was the perpetratorof the murder. As noted previously,the traditionalexceptionfor declarationsagainstinterestwouldnot apply, sincethe statement was against penal, not proprietary or pecuniaryinterest.See note 163 supraand accompanying text. If as indicatedin this analysis of Douglas, supranote 163 and accompanyingtext, Douglascould not be decidedon the basis of the declarationsagainst interestexception,then the referenceto the declaration being against penal interest in Dutton may buttress Stewart'sassertionthat the case was not beingdecided by equating the confrontationclause with hearsay exceptions. 216See generally Supreme Court Reviezw-Confronta-

L.C. & P.S. 516 (1971). tion, 62 J. CRIM.

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N. M. GARLANDAND D. E. SNOW

[Vol.63

standard by which it test[ed]" the disputed state- of the confrontation clause and the hearsay rule ment, "or how this standard [could] be squared and its exceptions. Pointer approached the probwith the seemingly absolute command of the lem without reference to hearsay. Green denied clause.... "216 Harlan concluded that the con- that the scope of the confrontation clause is deterfrontation clause was wholly inappropriate for minable by the hearsay rule and its exceptions as testing rules of evidence. He contended that it defined at common law. Dutton is confusing. It is a should be restricted to requiring the trial presence plurality decision. The swing vote was provided and cross-examination of adverse witnesses. He by Justice Harlan. Yet, not only was the theory of then asserted that the due process clause of the his concurring opinion different from the pluralfifth and fourteenth amendments provides the ap- ity's, but Harlan largely rejected his prior views Harlan applied that standard expressed in a Greenconcurring opinion. The Dutpropriate standard.217 to Dutton and concluded that due process of law ton Court introduced notions of testimonial weight had been accomplished because of the nature of which failed to relate to the central issue in Dutconspiracies;218because without the admission of ton-confrontation. The Court also announced hearsay evidence, "the facts it reveals are likely heretofore unused standards of testimonial reliato remain hidden from the jury";219because one bility to test the confrontation issue. These circumweighing the necessity for admission against the stances add to the decision's ambiguity and insure danger of the jury giving it undue weight "might that Dutton will be of little value in future conreasonably conclude that admission would in- frontation decisions.222 crease the likelihood of just determinations of "2In Commonwealthv. Thomas, 443 Pa. 234, 279 truth";220and because "I cannot say that [exclu- A.2d 20 (1971), the SupremeCourt of Pennsylvania, uponDutton,concludedthat hearsaystatements, sion of the statement]... is essential to a fair relyingwithin the state of mind exception,were in no falling trial." 221 sense "crucial"or "devastating"and thus their adDutton does nothing to clarify the entanglement mission was not violative of the sixth amendment. This conclusionwas furthersupportedby the assertion that "the evidencewas not so prejudicialthat the jury 216 400 couldnot properlyevaluateit." 443 Pa. at 279 A.2d at U.S. at 96. 17Id. at 96-97. 25. The Courtdid not attempt to resolvethe case by 218 Id. at 99. reference to indicia of reliability of the disputed 219Id. statement, althoughit noted that the fact the state220Id. ments were offered to prove was shown by other 21Id. at 100. evidence.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE Copyright O 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

TRIMMING MILITARY JUDISDICTION: AN UNREALISTIC SOLUTION TO REFORMING MILITARY JUSTICE DENNIS R. HUNT*

Legislative concern with the inequities of American military justice was much in evidence during the post World War II era.1In 1950 the Congress enacted the Uniform Code of Military Justice2 partially in an attempt to remedy the injustice of military law which was demonstrated duringWorld War II. The controversial Vietnam involvement with its masses of draftees subject to military discipline again drew attention to courts-martial practice3 and produced a less pervasive reform measure, the Military Justice Act of 1968.4 The latter, however, did not wholly satisfy critics of military criminal law, and recently legislation providing further reforms of court-martial practice has been suggested by Senators Bayh,5 Hatfield,6 and Congressman Whalen.7 Though not disturbing the basic structure of the military criminal process,8 these proposals offer extensive modifica* Major, United States Army, Judge Advocate General'sCorps;B.S., NorthwesternUniversity,1961; L.L.B., Harvard Law School, 1964; L.L.M. NorthwesternUniversity,1971;presentlymilitaryjudge for the United States Army in Frankfurt.The present article is a section of a thesis preparedin partial fulfillment of the requirementsfor the L.L.M. degree. 1See, e.g., HearingsBeforea Subcomm.of the House Comm.on ArmedServiceson H.R. 2498, 81st Cong.,1st Sess. (1949); H. REP. No. 491, 81st Cong., 1st Sess. (1949);HearingsBeforea Subcomm.of theSenateComm. on ArmedServiceson S. 857 andH.R. 4080, 81st Cong., 1st Sess. (1949);S. REP.No. 846, 81st Cong., 1st Sess. (1949). 2 Act of May 5, 1950,ch. 169, ? 1, 64 Stat. 108. 3 See Ervin, Tie MilitaryJusticeActof 1968,5 WAKE I.L. REV.223, 22342 (1969). FOREST 4Act of October24, 1968, 82 Stat. 1335. 5S. 1127, 92d Cong., 1st Sess. (1971) [Hereinafter cited as Bayh Bill]. This legislation,in a slightly modified form, was previouslyintroducedas S. 4191, 91st Cong. 2d Sess. (1970)and H.R. 18835,91st Cong.,2d Sess. (1970). 6S. 4168-S. 4178, 91st Cong., 2d Sess. (1970), re-

tions of court-martial practice. Against the background of these legislative proposals, this article will evaluate the efficacy of one frequently suggested remedy for the ills of the military criminal legal process: the exclusion of certain categories of offenses from military jurisdiction. When viewed from an historical perspective, proposals to modify the jurisdiction of military courts have not been infrequent. Legislative and judicial history readily illustrate that military criminal jurisdiction in the United States is something other than an immutable jurisdictional preserve.9 The first legislative definitionl0 of doimprisonment,fines,forfeitureof militarysalary,loss of military grade, punitive discharge from the armed forces,and capital punishment.Specialcourts-martial includea jury of three, id. ? 816 (2), and may try any non-capitaloffense,id. ? 819, but the penaltyadjudged may not exceed confinementat hard labor for six months, reductionto the lowest enlisted grade, and forfeitureof two-thirdspay per monthfor six months. Id. A punitive dischargemay also be returnedby the specialcourt, but only if a verbatimrecordof trial is kept. Id. Summary courts-martialare composed of only one officerwho servesas judge, jury, prosecution and defensecounsel;he need not be legally trained.Id. ? 816 (3); Manual for Courts-Martial, United States,

1969 para. 79 (rev. ed. 1969) [Hereinaftercited as MCM 1969]. Limitedlike the specialcourt-martialto non-capital offenses,the summarycourtmay not returna sentence in excess of confinementat hard labor for 30 days, forfeitureof two-thirdsof one monthspay, and reduction to the lowestenlistedgrade.10 U.S.C. ? 820 (Supp. V, 1970). Use of the summarycourt-martialhas declined in the past decade, see United States Court of Military Advocate General of the Armed Counsel of the Department of

Annual Reports of the Appeals and the Judge Forces and the General Transportation (1961-

1969); and the Bayh legislationwould eliminate this forum, Bayh Bill ?? 816-19. Below this tripartite court system are administrativedisciplinarymeasures, the "Article15" or "CaptainsMast," which are imprinted in 116 CONG.REC. S12, 669-73 (daily ed., posedby the offender'scommandingofficerwithout an 4, 1970). evidentiaryhearing.10 U.S.C. ? 815 (1964).The sancAugust 7H.R. 6901,92d Cong.,1st Sess. (1971).This legisla- tions possible here depend to some extent upon the tion was previouslyintroducedas S. 3117, 91st Cong., grade and commandposition of the officerimposing 1st Sess. (1969). punishment,but do not include confinementat hard 8 Present law providesfour strata of military crim- labor nor the degreeof sanctionspossiblein the suminal proceedings.The most seriousoffensesare triedby mary court-martial.Id. The averagerate per 1,000for generalcourts-martialcomposedof a judgeand five or these variousproceedingsin the Army duringthe last more jurors.10 U.S.C. ? 816(1) (Supp.V, 1970). The quarter of 1970 was: general courts, 0.16; special penaltiesfor offensesheard in generalcourt are those courts, 1.79; summarycourts, 0.92; Article 15, 16.75. JALS6-7 (Dept. of ArmyPamphlet27-71-6). providedin the statutes definingthe offensesor are 71-6 9 Military courts and military criminaljurisdiction establishedby the President,id. ? 856, and include 23

24

DENNIS R. HUNT

mestic court-martial jurisdiction was a product of the Continental Congress in 177611 and took cognizance of military offenses and non-capital common law crimes when the latter were to the prejudice and good order of military discipline.12 During the Civil War, Congress expanded courtmartial jurisdiction of the Armyl3 to include certain common law crimes committed by servicemen without regard to the offenses' impact on military discipline and order, providing the crimes occurred in time of war. Shortly before World War I, Congress again moved to enlarge court-martial jurisdiction over servicemen by including in the military purview a wide range of offenses which were non-capital, civilian-type triable in time of peace,14 and jurisdiction of and rape-in time of capital crimes-murder war.15 The final expansion of military jurisdiction came in 1950 when Congress enacted the Uniform Code of Military Justice. The Uniform Code purported to extend domestic court-martial jurisdiction to all civilian offenses, whether capital or not, committed by servicemen in time of peace.16

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This furthest reach of the jurisdiction of the military court-martial, as defined in the 1950 Uniform Code of Military Justice, was soon to be eroded, however. The Supreme Court responded to the 1950 legislation by striking down peripheral provisions which included civilians within the court-martial jurisdiction; the Court found that there was no jurisdiction in peace-time to courtmartial military dependents abroad for capital17 or non-capital offenses,18 no jurisdiction to courtmartial ex-servicemen for offenses committed while they were in the military,l9 and no jurisdiction to try citizen military employees abroad in time of peace.20 The Court's attempts to reduce the scope of military jurisdiction, however, did not end with limiting jurisdiction over civilians. In 1969 the Supreme Court restricted the authority of courtsmartial to try servicemen's offenses which were subject to the jurisdiction of civilian courts.2 17Reid v. Covert, 354 U.S. 1 (1957) (on rehearing). Article 2(11) of the 1950 act purported to extend courtmartial jurisdiction to "persons serving with, employed by, or accompanying the armed forces outside the United States...." The Bayh legislative proposal would eliminate this provision. Bayh Bill at ? 802. 18Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960). '9 Toth v. Quarles, 350 U.S. 11 (1955). Servicemen who are discharged and later re-enlist are subject to court-martial for offenses committed during the prior enlistment. United States v. Wilson, 15 U.S.C.M.A. 222, 35 C.M.R. 194 (1965). Recent concern with Vietnam "war crimes" of discharged American servicemen has prompted proposals that such offenses be triable in

are not inevitable features of a national military establishment. Since World War II, all domestic offenses of servicemen in the military forces of the German Federal Republic have been tried in regular civilian courts, and the military forces within themselves may exercise only very minor disciplinary powers. Mority, The Administration of Justice Within the Armed Forces of the German Federal Republic, 7 MIL. L. REV. 1, 3-4 (1960). 10 The present power of Congress to create and define the jurisdiction of military courts is derived from U.S. CONST.art. I, ? 8, cl. 14, which states: "The Congress shall have the Power To: To make rules for the Government and Regulation of the land and naval federal civilian courts. See, e.g., FINAL REPORT OF THE NATIONAL ONREFORM CRIMOFFEDERAL COMMIISSION forces." See O'Callahan v. Parker, 395 U.S. 258, 261, INAL LAWS, ? 208(f)-(h), commentary at 22 (1971). 273 (1969). 20Grisham v. Hogan, 361 U.S. 278 (1960); McElroy 11Articles of War of 1776, reprinted in WINTHROP, v. U.S. ex rel. Guagliardo, 361 U.S. 281 (1960). The MILITARY LAW AND PRECEDENTS961 (2d. ed. 1970). 12 A crime which is to the prejudice and good order of United States Court of Military Appeals has recently extended this doctrine, holding that, despite actual military discipline is defined as an act which must have been committed under such circumstances as to have hostilities, military employees in Vietnam are beyond directly offended against the government and discipline court-martial jurisdiction in the absence of a Congresof the military state. Id. at 723-24. Early courts-mar- sional declaration of war. United States v. Averette, 19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970). tial also assumed jurisdiction of servicemen's domestic 21The ruling substantially reduces double jeopardy offenses when civilian courts declined to prosecute. Rice, O'Callahan v. Parker: Court-Martial Jurisdiction, problems associated with military criminal proceedings. "Service Connection," Confusion and the Serviceman, 51 The double jeopardy protection, cf. 10 U.S.C. ?? 814, MIL. L. REV. 41, 51-54 (1971). 844 (1964), bars prosecution for the same offense in 13 Act of March 3, 1863, ch. 75, ? 30, 12 Stat. 736. military and federal courts. Grafton v. United States, Congress allowed differing jurisdictional limitations for 206 U.S. 333 (1907). The protection has not been apNavy courts. See, e.g., Articles for Better Government plied to identical prosecutions in covrts-martial and of the Navy, Act of April 23, 1800, ch. 33, 2 Stat. 45. state courts, however. MCM 1969, para. 215b; United 14These crimes included insurrection, rebellion, States v. Borys, 39 C.M.R. 608 (1968), rev'd on other murder, assault and battery with intent to kill, man- grounds, 18 U.S.C.M.A. 547, 40 C.M.R. 259 (1969); In slaughter, mayhem, wounding by shooting or stabbing re Stubbs, 133 F. 1012 (C.C. Wash. 1905); see Coleman with intent to commit murder, robbery, arson, burglary, v. Tennessee, 97 U.S. 509, 513-15, 518 (1878). Service rape, assault and battery with intent to commit rape policy directs that men first tried in civilian courts will and larceny. 1916 Articles of War, art. 93, 39 Stat. 664. "normally" not be subjected to military disciplinary 15Id. at art. 92. proceedings unless further punitive action is necessary 6 See 10 U.S.C. ?? 802-03, 805, 877-934 (1964). to maintain discipline. Army Reg. 27-10, ch. 6 (Novem-

1972]

TRIMMINGMILITARY JURISDICTION

In O'Callahan v. Parker22the Court held that the military lacked jurisdiction to try a serviceman's domestic offenses which were not "service connected." 2 Subject to extensive criticism for the vagueness of this jurisdictional test,24 the Supreme Court in 1970 further elucidated the concept of "service connection" in Relford v. Commandant25by enumerating twelve factors which might in combination establish that an offense is not service connected and therefore beyond the jurisdiction of a court-martial.26The Relford factors do clarify O'Callahan's import to some extent, but the balancing test which Relford ber 26, 1968);JudgeAdvocateGeneral(Navy) Instruction P 5800.7 at ? 0106(d) (January3, 1969). The rulereducesthe circumstancesin whichsuch O'Callahan an overlapof state and militaryjuristictionis possible by excludingthe latter altogether.See Gaynor,Prejudicial and DiscreditableMilitary Conduct:A Critical Appraisal of the GeneralArticle, 22 HASTINGS L.J. 259,

264 (1971); Nelson, Court-MartialJurisdictionOver Servicemen for CivilianOffenses:An Analysisof O'Callahan v. Parker,54 MINN.L. REV. 1, 55-56 (1970). Similarly,the Bayh legislationwould abolishthe jurisdictionof militaryand state courtsto try the defendant for an offense previouslyheard in the other forum. Bayh Bill at ? 844 (a)(2). 22395 U.S. 258 (1969).

at 272. SergeantO'Callahanwas convictedby court-martialfor attempted rape, housebreaking,and assault with intent to rape. While off duty and in civilian clothes in Honolulu,the defendanthad broken into a hotel roomand attackedits occupant.In finding no "serviceconnection,"the court stressed that the defendantwasproperlyon pass fromhis duty stationat Fort Shafter,the offensewas unrelatedto the defendant's militaryduties,the offensedid not occuron post, the victim had no connectionwith the military community, the regularcivilian courts were open, the offense occurreddomesticallyat peacetime,and the case involved no factor of defianceof military authority, securityof a militarypost, or hazardto militaryproperty. Id. at 273-74.The court'semphasison the lack of Bill of Rightsprotectionsin court-martialproceedings, id. at 261-66, as a reason for shifting jurisdictionto civilian courts has caused the United States Court of Military Appeals to affirmmilitary jurisdictioneven where "service connection"is lacking when the defendant,becauseof the petty natureof his crime,would not be entitled to such constitutionalprotectionsin local civilian courts. United States v. Sharkey, 19 U.S.C.M.A. 26, 41 C.M.R. 26 (1969). 24See Relford v. Commandant,401 U.S. 355, 356 n.1 (1971). 2 Id. 23 Id.

26The Relford factors are

1. The serviceman'sproperabsencefromthe base. 2. The crime'scommissionaway from the base. 3. Its commissionat a place not under military control. 4. Its commissionwithinourterritoriallimitsand not in an occupiedzone of a foreigncountry. 5. Its commissionin peacetimeand its being unrelated to authority stemmingfrom the war power. 6. The absenceof any connectionbetweenthe defendant'smilitary duties and the crime.

25

created imposes a difficult task for courts which must apply it and promises varying results27 until authoritative case precedent develops. The present scope of court-martial jurisdiction of offenses committed by service personnel as defined in the Uniform Code of Military Justice and Supreme Court decisions, is subject to further limitation by two other sources. The first, an agreement28between the Departments of Defense and Justice,29 provides for division of investigative and prosecutory responsibilities when a serviceman's crime is triable in both federal and military courts. As a general rule, offenses committed on base by servicemen against other persons residing on the base will be tried in military courts; major offenses against government prop7. The victim's not being engaged in the performanceof any duty relatingto the military. 8. The presence and availability of a civilian courtin whichthe case can be prosecuted. 9. The absenceof any floutingof militaryauthority. 10. The absenceof any threat to a militarypost. 11. The absenceof any violationof militaryproperty. One might add still anotherfactor implicit in the others: 12. The offense'sbeing among those traditionally prosecutedin civiliancourts. 401 U.S. at 365. CorporalRelfordwas convictedby court-martialfor rape and kidnappingon two separateoccasions.Both transactionsoccurredwithin Fort Dix and McGuire Air ForceBase whilethe defendantwas off duty and in civilianclothes.His firstvictimwas the visitingsisterof anotherserviceman,the second the wife of a serviceman. The SupremeCourtconcludedthat "serviceconnection"elements4, 6, 8, 11, 12 and possibly 5 and 9 tended to establishthat Relford'soffenseswere not in militaryjurisdiction;the contrarywas true of elements 1, 2, 3, 7 and 10. Id. at 366. Concludingwith a very geographicemphasis, the court held "that when a servicemanis chargedwith an offensecommittedon or at the geographicalboundaryof a military post and violativeof the securityof a personor of propertythere, that offensemay be tried by a court-martial...." Id. at 369. 27Compare UnitedStatesv. DeRonda,18U.S.C.M.A. 575, 40 C.M.R. 287 (1969) (Offpost, off duty possession of marijuanais serviceconnected)withMoylanv. Laird,305 F. Supp.551 (D.R.I. 1969) (enjoiningcourtmartialproceedingsfor off post, off duty possessionof marijuanaas not serviceconnected). 28Under such regulationsas the Secretaryconcerned may prescribe,a memberof the armed forcesaccusedof an offenseagainstcivil authority may be delivered,upon request,to the civil authorityfor trial. 10 U.S.C. ? 814(a) (1964). 29Memorandumof UnderstandingBetweenthe Departmentsof Justiceand DefenseRelatingto the Investigationand Prosecutionof CrimesOverWhichthe Two DepartmentsHave ConcurrentJurisdiction (July 19, 1955), reprintedin pertinentpart in ArmyReg. 27-10, ch. 7 (November26, 1968).

26

[Vol.63

DENNIS R. HUNT

erty, cases involving non-military co-accuseds or victims, and off-post crimes unrelated to organized military maneuvers are to be tried in federal district courts.80 Secondly, treaties and executive agreements3' with foreign governments grant to host countries of United States military installations primary jurisdiction to try servicemen for "civilian offenses" not involving American victims and not done in the performance of military duty as well as exclusive jurisdiction of offenses relating to the security of the host state.32 Against this history of current court-martial jurisdiction, the critics of military criminal law have repeatedly suggested various schemes to even further limit the offenses which courtsmartial may try.33 More specifically, Senator Hatfield in 1970 offered legislation34 proposing elimination of military jurisdiction over domestic offenses which involve the physical safety and security of the nation and over acts which would be viewed as offenses regardless of the military status of the defendant.35Such a division,36how-

ever, does not appear to be ideal. For one thing, this allocation of offenses between military and civilian courts curiously excludes from military jurisdiction a number of traditional military offenses which are foreign to civilian criminal law and depend upon martial evidentiary factors and legal concepts: mutiny;37misbehavior before the enemy;38subordinate compelling surrender;39improper use of a countersign;40forcing a safeguard;4 conversion of captured or abandoned property;42 misconduct as a prisoner of war,43and improper hazarding of a vessel.44 For another, this categorization of crimes as "civilian" or "military" ignores circumstances in which the former assume significance only because of their character within ? 907;loss, damage,destructionor wrongfuldisposition

and slightly more than 100 servicemen were serving sentences in host nation prisons. Army Times, January 20, 1971, at c, col. 1. Foreign courts convict United States servicemen in more than 98 percent of the cases they try, but only 1.3 percent of those convicted axe sentenced to jail. Id. 33 See, e.g., Averna, Citizen Servicemen and their Constitutional Rights, 43 TEMP.L.Q. 213, 226 (1970); Comment, Military Trial of Civilian Ofenses: Drumhead Justice in the Land of the Free, 43 So. CAL.L. REV. 356, 373 (1970); Hearings on the Constitutional Rights of Military Personnel Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, pursuant to S. Res. 260, 87th Cong. 2d Sess., at 301 (1962) [Hereinafter cited as 1962 Hearings]. 34S. 4178, 91st Cong., 2d Sess., ?? 5-6 (1970). 3 116 CONG.REC.S12,667 (daily ed. August 4, 1970) (remarks of Senator Hatfield). 36 Under this limitation, courts-martial in the United States would only be able to try the offenses of: fraudulent or unlawful enlistment, appointment or separation, 10 U.S.C. ?? 883-84 (1964); desertion, id. at ? 885; absence without leave, id. at ? 886; missing movement, id. at ? 887; assaulting or willfully disobeying a superior commissioned officer, id. at ? 890; insubordination toward a warrant, noncommissioned, or petty officer, id. at ? 891; failure to obey an order or regulation, id. at ? 892; cruelty or maltreatment, id. at ? 893; resistance, breach of arrest, escape, id. at ? 895; wrongful release of a prisoner, id. at ? 896; unlawful detention, id. at ? 897; noncompliance with military procedural requirements, id. at ? 898; false official statements, id. at

spect toward a superior commissioned officer, id. at ? 889; mutiny and sedition, id. at ? 894; misbehavior before the enemy, id. at ? 899; subordinate compelling surrender, id. at ? 900; improper use of countersign, id. at ? 901; forcing a safeguard, id. at ? 902; conversion of captured or abandoned property, id. at ? 903; aiding the enemy, id. at ? 904; misconduct as a prisoner of war, id. at ? 905; spying, id. at ? 906; improper hazarding of vessel, id. at ? 910; drunken or reckless driving, id. at ? 911; duelling, id. at ? 914; riot or breach of peace, id. at ? 916; provoking speeches or gestures, id. at ? 917; murder, id. at ? 918; manslaughter, id. at ? 919; rape, carnal knowledge, id. at ? 920; larceny, wrongful appropriation, id. at ? 921; robbery, id. at ? 922; forgery, id. at ? 923; bad checks, id. at ? 923a;

of military property of the United States, id. at ? 908; waste, destruction or spoilage of non-military property of the United States, id. at ? 909; drunk on duty, id. at ? 912; misbehavior of a sentinel, id. at ? 913; and malingering, id. at ? 915. See generally, 116 CONG.REC.

S12,672-73(daily ed. August4, 1970). Also excludedfrom the Hatfieldlist of offensesfor whicha servicemanmay be triedin any courtare conduct unbecomingan officer,10 U.S.C. ? 933, and conduct whichis servicediscreditingor prejudicialto good 30 Id. orderand disciplinewithin the military,id. at ? 934; 31See, e.g.,NATO Status of ForcesAgreement,June thesemay only be prosecutedthroughmilitaryadministrativepunishments.Federaldistrictcourtswouldhave 19, 1951 (1953),4 U.S.T. 1792,T.I.A.S. No. 2846. 32 Id., art. VII. Thoughmorethan 80 percentof prijurisdictionto try the followingdomesticoffensesof United States servicemen:accessoryafter the fact, id. mary jurisdiction is waived back to American military authoritiesby foreigngovernments,in 1969 American at ? 878; solicitation to commit desertion, mutiny, servicemenweretriedfor approximately46,000offenses misbehaviorbeforethe enemy,or sedition,id. at ? 882; in foreign courts; 75 percent of these were traffic cases, contempt towardpublic officials,id. at ? 888; disre-

maiming,id. at ? 924;sodomy,id. at ? 925;arson,id. at

? 926; extortion, id. at ? 927; assault, id. at ? 928; burglary, id. at ? 929; housebreaking, id. at ? 930; perjury, id. at ? 931; frauds against the United States, id. at ? 932. 37Id. at ? 894. 38Id. at ? 899. 39Id. at ? 900. 40 Id. at ? 901. 41 Id. at ? 902. This baroque offense is committed by

one who breachessecurity measuresdesignedto protect persons,places or propertyof the enemy or of a

neutral in time of war or belligerency. M.C.M. 1969, 181. para. 4210 U.S.C. ? 903 (1964). 43Id. at ? 904. 44 Id. at

? 910.

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TRIMMINGMILITARY JURISDICTION

the military community: the soldier who assaults his off-duty commanding officer in public on a military post has committed a far more socially disturbing delict that a non-military court is likely to recognize or punish. The Hatfield procposals, then, are nothing more than a facile but arbitrary alternative to the more demanding O'Callahan-Relford criteria which allocate particular offenses to the courts of the jurisdition most concerned with the offense.

In addition to being arbitrary in terms of classification, the Hatfield proposals are also subject to question on a practical level. The impact of O'Callahan and Relford suggests that excluding

"civilian" offenses from military jurisdiction may not be a numerically significant reform. Even before O'Callahan, the military was only prosecuting 15 percent of the domestic offenses of its

27

If Congressional interest and energy to reform military criminal law is finite, then such jurisdiction reshaping should be abandoned for measures which would improve the functions of military courts with regard to persons and offenses presently within their jurisdiction. Additional reasons also raise doubt whether the limitation of military jurisdiction should go beyond O'Callahan-Relford.Paradoxically, transfer of offenses from military to civilian jurisdiction would pose numerous disadvantages to military defendants themselves.48At the outset, the military defendant in civilian criminal court will face financial demands which do not exist in military courts like bail, counsel fees, and witness expenses.49The majority of military defendants

States and its possessionswhereno Americancivilian courtsare available;among the studiedcases the median monthly percentagefor such "outside"offenses was 37. Id. 48Occasionallythe argumentis made that the miliwouldbe disadvantagedby loss of mobilityresulttary of offenses nature prespredominantly military ing fromany jurisdictionalshift whichwouldput large ently tried in military courts and the shift to numbersof servicemenat the discretionof localcivilian civilian jurisdiction accomplished by O'Callahan, courts.This propositionis reinforcedby the military's sparinguse of pretrialconfinementwithin its own juscomparatively few prosecutions would be affected tice system. See, Boiler,PretrialRestraintin the Miliby redrawingjurisdiction for non-military crimes.47 tary,50 MIL.L. REV.71, 97 (1970);Sherman,Military off-duty personnel,45 and 85 to 90 percent of servicemen now in military prisons are being punished for absence offenses.4 In view of the

45Brief for Respondent at 27 n. 16, O'Callahan v. Parker, 395 U.S. 258 (1969). 46Report of the Special Civilian Committee for the Study of the United States Army ConfinementSystem at 101 (1970). For a severe criticism of the committee membership, investigative technique and report, see OF AN ACCOUNT CONCERT: THE UNLAWFUL GARDNER, THE PRESIDIO MUTINY CASE 216 (1970); SHERRIL, MUSIC MILITARY JUSTICEIs TOJUSTICEAS MILITARY Is TO MUSIC22 (1970). Professor Sherman, a prolific

Injustice, 4 TRIAL21, 23 (1968). The greater reliance of

the civilian courts on this techniqueis shown by the fact that morethan half of the 160,830personsheld in local civilianjails in early 1970werenot thereas a result of a criminalconviction,CENSUS BUREAU ANDLAW ENFORCEMENT ASSISTANCE ADMINISTRATION, NA-

TIONALJAIL CENSUS,reported at 8 BNA CRIM. L. REPTR.2276 (1971). Comparatively speedier trials are afforded in military courts. Sherman, The Civilianization of Military Law, 22 ME. L. REV. 3, 72 (1970). This argument against civilian jurisdiction of servicecommentatoron military law, has estimated that 90 men's offenses must first be discounted by the fact that percentof the crimesthat bringservicemento military the military survives though already sharing jurisdicjails are offenses that do not appear in civilian law. Re- tion with civilian courts through the workings of marks of Edward Sherman at the Federal Bar Associa- O'Callahan, the status of forces agreements, and the understanding with the Justice Department. See text tion Convention, September 17, 1970, Washington D.C., reported in 7 BNA CRIM.L. REPTR.2523, 2529 accompanying notes supra. Clearly there is no inherent reason why civilian court jurisdiction should unneces(1970). 47116 CONG.REC. S10,443 (daily ed. July 1, 1970) sarily entangle servicemen, for civilian judges could give (remarks of Senator Bayh). However, during the first calendar preference to military defendants and respond eleven months of 1970, a median monthly percentage of to the needs of military exigencies. Civilian jurisdiction 40.5 of the charges appearing in convictions automatmight be subject to removal on showing of military need. See Comment, supra note 33 at 380. In the United ically reviewed by the Army Court of Military Review were "civilian" type offenses. UNITEDSTATESARMY Kingdom, British courts-martial and civilian courts JUDICIARYRECORDSCONTROLAND ANALYSIS BRANCH, share jurisdiction over almost all servicemen's offenses, AND and the final decision as to trial forum rests upon a co1970 ANALYSIS OFGENERAL JANUARY-NOVEMBER SPECIAL (BCD) COURT-MARTIAL DATA, paras. 5-6. operative evaluation of a variety of factors-reminisThis data is subjectto somequalification.First,it only cent of the Justice and Defense Department agreement, reflectsconvictionsin which the adjudgedsentencein- (see note 21 supra and accompanying text)-including cluded a punitive discharge or confinement for one year military exigencies. Stuart-Smith, Military Law: Its or more.See 10 U.S.C. ? 66 (Supp.V, 1970). Missing History, Administration and Practice, 85 L.Q. REV. 478, are the majority of Army prosecutions in special courts- 491-92 (1969) (British). 49While there is no bail right in the military, United martial. Second, military practice favors joinder of criminalcharges,MCM 1969, paras. 24, 25, hence the States v. Wilson, 10 U.S.C.M.A. 337, 27 C.M.R. 411 (1959), pretrial confinement is less frequent than in figure does not necessarily reflect the number of trials in which such civilian offenses were present. Finally, this civilian courts, see note supra and accompanying text, and pretrial freedom is not conditioned upon a deposit data includes offenses occurring outside the United

28

DENNIS R. HUNT

are under 21 years old and in the lower enlisted grades;50their military salary levels61would probably qualify them as indigents for purposes of obtaining a court-appointed defender in a federal court.52 But if the military defendant's offense is minor, he may not be entitled to appointed counsel in the civilian court,53and if the offense is punishable by no more than confinement for six months, he may receive no jury trial.54 In military practice, however, no matter how minor the offense, the defendant has a right, on request, to representation by a fully qualified lawyer and trial by a military jury.55 Furthermore, it is questionable whether the military defendant would receive any fairer trial under civilian jurisdiction. Military personnelsometimes because of racial or ethnic factors, and sometimes just because they are military personnel-may well find that civilian jurors in areas surrounding military installations are significantly biased against them.56In addition, the state or federal jury which the military defendant faces will not contain persons from his special community, that is, military personnel on active of money. See 10 U.S.C. ?? 9-10 (1964);MCM 1969, paras. 18-22. A qualifiedlawyer is providedwithout chargeto all generaland specialcourt-martialdefendants. 10 U.S.C. ? 827 (Supp.V, 1970).No militarydefendant may be subjectedover his objection to disciplinary or judicial proceedingswhere he is not so represented-except in the case of militarypersonnel embarkedon a vessel.See 10 U.S.C. ?? 815, 820 (Supp. V, 1970). In courts-martial,defense witness fees and costs for expert witnessesare paid for by the government. MCM 1969,para. 115. 50See ANALYSIS OF GENERAL AND SPECIAL (BCD)

DATA supra note 47, at paras. 7-8. COURT-MARTIAL

61The 1972 monthly base pay rates for Army enlisted personnelin the lowestgradesare: Private (E-1) $288.00; Private (E-2) $320.70; Private First Class (E-3) $333.60;Corporalor Specialist(E-4) $346.80. 52Franks, Prosecutionin Civil Courtsof MlinorO0on MilitaryInstallations,61 MIL.L. fenses Committed REV.85, 111 (1971).It is conceivablethat the military could continueto providefree legal counselto servicemen triedin civiliancourts.Thoughpresentlymilitary lawyers do not representservicemenin civilian court proceedings,a pilot programis operatingat threeArmy posts which providesArmy counselfor servicemenin civiliancriminaland civil casesproviding1) the serviceman is financiallyunableto retainhis own counsel,and 2) civilian legal aid is unavailable.Army Times, January 20, 1971at 4, col. 3. 53OrderPrescribing Rulesof Procedure FortheTrialof Minor OffensesBefore (Federal)Magistrates,8 BNA CRIM.L. REPTR.3091 (U.S. January 27, 1971). 4See Baldwinv. New York,399 U.S. 66 (1970). 55 10 U.S.C. ?? 815-16, 820, 827 56 Gardner,supra note 46, at

note 22, at 63.

(Supp. V, 1970).

[Vol.63

duty.57 It is also true that in many instances the

defendant may not be guaranteed an indictment from a grand jury,58 for many states have abandoned or significantly restricted this procedure.69 Moreover, in civilian courts the military defendant will find far more constricted discovery rights than exist in military courts,60and nothing resembling the Uniform Code of Military Justice's automatic appellate review and free representation for all major convictions.6l Considering all these factors, a number of civilian critics of military practice have conceded that in many circumstances the military defendant facing trial for a "civilian" offense would be better served by a military court than its local, civilian counterpart.62 Besides possible disadvantage to the military defendant, another perspective for regarding proposed shifts of jurisdiction with caution is that of possible effects on civilian legislators and law enforcement authorities. Any legislative effort to extend state court jurisdiction to civilian-type crimes occurring on military enclaves or to extend federal court power to offenses occurring off federal enclaves, and not otherwise proscribed in federal domestic law, will encounter geographic obstacles.63 Most large military posts contain a hodge-podge of real estate parcels acquired at different times and with different jurisdictional understandings.64 Some tracts are in exclusive federal jurisdiction, in others the state possesses 57See, e.g., 28 U.S.C. ?? 1863, 1865 (Supp.V, 1970). Howeverthereareestimatedto be 27.5millionveterans in the United States (ChicagoDaily News, February 27, 1971, at 16, col. 4) who should bringsome understandingof militarylife to those jurieson which they may serve. 58 The grandjury is not constitutionallyrequiredof the states. Hurtadov. California,110 U.S. 516 (1884); Morefordv. Hocker,394 F.2d 169 (9th Cir.), cert.de392 U.S. 944 (1968). nied, 59See Spain, The GrandJury, Past and Present:A Survey, 2 AM. CRIM.L.Q. 119, 126-42 (1964).

60 Everett,MilitaryJusticeis to Justice..., 12 JAG L. REV.202, 208-09 (1970) (Air Force); Moyer, ProOver ceduralRightsof theMilitaryAccused:Advantages

a Civilian Defendant, 51 MIL. L. REV. 1, 11-14 (1971).

61Id. at 27. Militarylaw providesappellatecounsel and automaticappellatecourtreviewfor all defendants whose court-martialsentencesinclude confinementat hardlaborfor a year or a punitivedischarge.10 U.S.C. ?? 865-66, 870 (Supp.V, 1970). 62 RIVKIN, G. I. RIGHTS AND ARMY JUSTICE, THE DRAFTEE'S GUIDE TO MILITARY LIFE AND LAW 215

(paperbacked. 1970); 1962 Hearingsat 353. 63O'Callahanhandilyescapessuchproblemsby only applyingto cases in whichcourt-martialjurisdictionis concurrentwith civilian jurisdiction. presently 64 Comment,MilitaryInstallations:RecentLegalDe-

223; Nelson, supra velopments,11 MIL. L. REV.201, 202 (1961).

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TRIMMINGMILITARY JURISDICTION

exclusive legislative power, and in others the two authorities share.65As to federal jurisdiction tracts, local police have no powers,66and acts done there are outside the present jurisdiction of state courts.67 Any expansion of state court responsibilities into these areas would require extensive legislative action by state and federal government.6 Federal courts may apply state criminal law to offenses occurring on the federal tracts through the federal assimilative crimes provision,69but they ordinarily have no authority over prosaic criminal acts occurring off such tracts which are not expressly proscribed in federal law. And further, in order for state or federal courts to acquire jurisdiction over servicemen's offenses proscribed in the Uniform Code of Military Justice but not in their respective criminal codes, additional legislation would be required.70 If such legislation were to shift significant numbers of cases into civilian jurisdiction, there would have to be a correlative transfer of responsibility for law enforcement. It seems unlikely that civilian authorities would be desirous of assuming this burden. Many populous military bases71are located in thinly populated rural counties which would be hard-pressed to provide legal and law enforcement services for the large, substantially tax exempt federal military enclaves.72 The already overburdened civilian criminal law

29

processes73would be strained further by an enlargement of their responsibilities. Thrown into domestic courts, cases with primary impact in the military community and beyond the ken and political sensitivity of local prosecutors and courts might become secondary to domestic business and be manipulated to serve parochial interests.74 Thus, the Supreme Court, in refusing to oust military courts and extend domestic jurisdiction to civilian type offenses occurring on a military post, commented in Relford: The distinctpossibilityexists that civil courts... will have less than completeinterest,concernand capacity for all the cases that vindicatethe military's disciplinaryproblemswithin its own community....75

Finally, with regard to offenses with primary impact in the military community, it is uncertain that non-military judges, administrators, and jurors possess sufficient insight into the problems of military society to render fitting judgements.76 In sum, further jurisdiction-shifting does not seem a very helpful technique for improving the level of justice for the serviceman or military society. The present jurisdictional frontiers provided in O'Callahan and Relford, though sometimes difficult to find, do quite rationally allocate servicemen's domestic offenses to trial in the or civilian community most affected by military 65Id. at 202 n. 5. the delict. Stripping the military of authority 66Franks,supranote 52, at 95. 67See Ryan v. Washington,302 U.S. 186 (1937). to try offenses with primary impact in its own 68 Comment,TheNew Boundariesof MilitaryJuris- community would place responsibility for such 43 TEMP. L.Q. 166, 179n. 80 (1970). diction, 69 18 U.S.C. ? 13 law enforcement in the unenthusiastic hands of (1964). 70 Thus the Hatfieldproposal,S. 4178,91st Cong.,2d those substantially unwilling and unable to exeSess., ? 5 (1970), grants federalcourts jurisdictionto cute it. A dubious advantage to the military try servicemen'sdomesticcivilianoffensesdescribedin defendant himself, a shift of all servicemen's the UNIFORM CODE OF MILITARY JUSTICE.See note 36 supra.Paradoxically,thoughO'Callahandestroyedthe civilian type offenses into domestic courts is a concurrentjurisdictionof courts-martialwhen state jurisdictionexisted, the Hatfieldmeasurerevives this reformer's feint which would have no bearing on dual jurisdictionbetweenstate and federalcourts. the great majority of defendants in military 71 The Army presentlymaintains10 Statesideposts and the need to improve the legal processes courts with resident populationsin excess of 20,000. The therein. contains almost Fort Washington, Lewis, largest, 40,000.The others,in descendingorderare:Fort Hood, 78 Addressby ChiefJusticeWarrenE. Burgerto the Texas; Fort Bragg, North Carolina;Fort Knox, Kentucky; Fort Dix, New Jersey;Fort Carson,Colorado; AmericanBar Association,August 10, 1970, reprinted Fort Ord, California;Fort Benning, Georgia; Fort in The State of the Judiciary, FORBES, July 1, 1971, at 1. 74Fianks, supranote 52, at 113; cf. Wilkinson,The Riley, Kansas; and Fort Leonard Wood, Missouri. Jurisdiction:O'CallaNarrowingScopeof Court-Martial ArmyTimes,February17, 1971,at 5, col. 1 72 It wouldbe possiblefor the federalgovernmentto han v. Parker, 9 WASHBURNL.J. 193, 208 (1970). 76401 U.S. at 367-68. providefinancialresourcesor assistancefor those civil 76Addressby Chief Justice Earl Warren,reprinted jurisdictionsassuminglaw enforcementresponsibility for servicemen,see note 52 supra, but the Hatfield in TheBill of RightsandtheMilitary,37 N.Y.U.L. REV. 181, 187 (1962). legislationmakesno provisionfor this.

THEJOURNAL OFCRIMINAL ANDPOLICE SCIENCE LAW,CBIMINOLOGY Copyright0 1972by NorthwesternUniversitySchoolof Law

Vol. 63, No. 1 Printedin U.S.A.

STUDENT COMMENTS The followingcommentswere written by students at NorthwesternUniversity School of Law. Contributors to the present issue are Jeffrey M. Johnson, P. John Owen and Robert B. Keiter.

AN EXAMINATION OF THE RIGHT TO A VOLUNTARINESS HEARING The United States Supreme Court, in its efforts to provide adequate due process safeguards in criminal cases for the accused, has carefully formulated standards governing the admission of confessions in evidence.l Whether or not the defendant is afforded protection against an inadmissible confession, however, depends upon the procedure by which courts apply these standards. In Jackson v. Denno2the Supreme Court concluded that certain types of procedural devices failed to eliminate the possibility that a defendant will be convicted on the basis of an involuntary confession. The majority8 in Jackson held that the fourteenth amendment due process clause requires that a defendant who objects to the use of his confession at trial is entitled to a fair hearing and a reliable determination of the voluntariness of the confession.4 The purpose of this comment is to discuss the nature of a Jackson v. Denno hearing, and examine the circumstances under which the federal courts of appeals, in interpreting the rule in Jackson, have affordedthe defendant the right to a Jackson v. Denno hearing.

often quoted is from the case of Rex v. Warickshall: [A]confessionforcedfromthe mindby the flattery of hope,or by the tortureof fear,comesin so questionablea shapewhenit is to be consideredas the evidenceof guilt, that no creditought to be given it....7 The United States Supreme Court followed this common law "trustworthy" concept of voluntariness in federal cases,8yet the Court was careful not to base the exclusion of coerced confessions on constitutional grounds until the landmark case of Brown v. Mississippi.9 In Brown the Court reversed a Mississippi murder conviction and held that a conviction based upon a confession obtained through violence and coercion violates the due process clause of the fourteenth amendment.l0 The Court reasoned that because interrogation of an accused is an integral part of the process employed by the state in obtaining a

7168 Eng. Rep. 234, 235 (K.B. 1783). 8 Wilsonv. United States, 162 U.S. 613 (1896) best exemplifiedthe use of the "trustworthiness"standard by the Court. The Court held that "the true test of admissibilityis that the confessionis made freely, volBACKGROUND untarily,and withoutcompulsionor inducementof any Wigmore stated that the only principle involved sort."Id. at 623. The standardadoptedby the Wilson Court, however, closely resemblesthe contemporary in the test for the admissibility of a confession is due process standard of voluntariness.See note 12 "trustworthiness."5 This principle originated in infra. Furthermore,in Bramv. UnitedStates, 168 U.S. the English common law courts' use of confessions. 532 (1897), a case decidedimmediatelyafter Wilson, the Courtseemedto adoptan approachof intertwining Although at early common law all confessions the fifthamendmentprivilegeagainstself-incrimination were admissible, regardless of how they were ob- and the trustworthinessstandardinto one principle. The BramCourtstated: tained, the English courts soon developed exIn criminaltrials,in the courtsof the UnitedStates, clusionary rules concerning the admissibility of whereevera questionariseswhethera confessionis coerced confessions.6 The exclusionary rule most incompetentbecause not voluntary, the issue is controlledby that portionof the Fifth Amendment to the Constitutionof the UnitedStatescommand' See, e.g., Mirandav. Arizona,384 U.S. 436 (1966); Escobedov. Illinois, 378 U.S. 478 (1964);McNabbv. ing that no personshall be compelledin any crimUnited States, 318 U.S. 332 (1943). inal case to be a witnessagainst himself. 2378 U.S. 368 (1964). Id. at 542. Fora discussionof the failureof the Courtto 3Mr. Justice White delivered the opinion of the abandonthe trustworthinessstandardin assertingthis Court. Dissenting were Justices Clark, Harlan, and new, constitutionalbasis for confession-rules,see DeStewart.Mr. Justice Black dissentedin part and con- velopments in the Law-Confessions,79 HARV.L. REV. curredin part. 935, 960-61 (1966). 4378 U.S. at 376-77. 9297 U.S. 278 (1936). In Brown v. Mississippi, 6 3 J. WIGMORE,EVIDENCE ? 822 (Chadbour rev. ed. sheriff'sdeputiesseverelybeat three black defendants until they confessedto having murdereda white man. 1970). 10Id. at 285-86. 6 See id. ? 818, at 292. 30

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THE RIGHT TOA VOLUNTARINESSHEARING

conviction, it is subject to the requirements of fourteenth amendment due process." The common law rule of trustworthiness, displaced by a due process standard of fairness,12 was explicitly rejected by the Court in Rogers v. Richmond." In Rogers the Court reversed the trial court's conviction because the judge had examined the probable truth or falsity of the confession to determine admissibility. The Court held that the due process clause prohibited the consideration of the confession's reliability as a standard in determining its admissibility.l4 The Court reiterated in Rogers the principle that a conviction based on an involuntary confession is unconstitutional: [N]ot becausesuch confessionsare unlikely to be truebut becausethe methodsused to extractthem offendan underlyingprinciplein the enforcement of our criminallaw: that ours is an accusatorial and not an inquisitorialsystem-a systemin which the state must establish guilt by evidence independentlysecuredand may not by coercionprove its charge against an accused out of his own mouth.'6 Thus, although a confession may be trustworthy, the protection of the individual from coercive police practices outweighs the state's desire for a confession.l6 " Id.

2 The constitutional guaranteeof the inadmissibility of coerced confessionswas reaffirmedin Lisenba v. California,314 U.S. 219 (1941). The SupremeCourt there stated: The aim of the requirementof the due process standardis not to excludepresumptivelyfalse evidencebut to preventfundamentalunfairnessin the use of the evidence,whethertrue or false. Id. at 236. Followingthe enunciationof the dueprocessstandard of fairnessin Lisenba,the Courtappliedthe standardin Ashcraftv. Tennessee,322 U.S. 143 (1944).The Court held in Ashcraftthat a confessionobtainedby meansof "inherently coercive" police conduct is inconsistent with due processof law and thereforeinadmissible.Id. at 154. As the voluntarinessrule evolved, the Court adopted the concept of the "totality of the circumstances"in examiningthe voluntarycharacterof confessions.Thus in Haynes v. Washington,373 U.S. 503 (1963), the Court definedthe due processstandardof voluntarinessas whetherthe defendant'swill had been overborneso that the confessionwas not made freely and voluntarily.The Courtstatedthat in establishinga standardagainstwhichadmissibilityshouldbe judged, the questionof voluntarinessis to be determinedby an examinationof the "totality of the circumstances." Id. at 513-16. See also Clewis v. Texas, 386 U.S. 707 (1967);Davis v. North Carolina,384 U.S. 737 (1966); Fikes v. Alabama,352 U.S. 191 (1957). 13365 U.S. 534 (1961). 4Id. at 543-44. 6Id. at 540-41. 16The exclusionaryruleforbiddingthe use of confes-

31

PROCEDURES USED IN DETERMINING ADMISSIBILITY OF CONFESSIONS

Prior to the decision in Jackson v. Denno, the courts employed three procedural methods to determine the voluntariness, and hence the admissibility, of confessions-the "orthodox" rule, the New York rule, and the Massachusetts or 'humane" rule.17Under the orthodox rule, the trial judge has the exclusive responsibility of determining the question of voluntariness. Normally the judge will conduct this determination in the absence of the jury.l8If, after hearing all the evidence on the voluntariness issue, the judge concludes that the confession is voluntary, it is admitted into evidence. Although the jury is not permitted to reexamine the trial judge's determination of voluntariness, it may consider the probative value of the confession.l9 If the judge finds the confession involuntary, he must exclude it from the trial. Under the New York rule, the judge initially examines all of the evidence surrounding the making of the confession. If he finds the confession was made involuntarily, he must exclude it. However, if the judge finds a factual conflict in the evidence over which reasonable men could differ,20he must admit the confession and instruct the jury to determine the confession's voluntary character.21In sions elicited in violationof the warningsrequiredby Mirandav. Arizona,384 U.S. 436 (1966), calls into question the continued viability of voluntarinessas measuredby due processstandards.For it is not clear whetherthe warningrequirementsof Mirandaare separate criteriaor are simply adjunctsto voluntariness. However,in Frazierv. Cupp,394 U.S. 731 (1968), the Court indicated that voluntarinessis still a relevant concept, and in Darwinv. Connecticut,391 U.S. 346 (1968), the Court suggested that Miranda might be construedas only one elementof the totality of the circumstances.Cf. Coyote v. United States, 380 F.2d 305 (10th Cir. 1967). But see 18 U.S.C. ? 3501 (Supp.IV, 1968) (Congressset forth a test of voluntarinesswhich was intendedto overrulethe Mirandadecision). 17Not all of the states and federal circuits can be neatly classifiedas followinga particularprocedure.In some jurisdictionsthe choiceof procedureis left to the discretionof the trial judge. See generallyJackson v. Denno, 378 U.S. 368, 410-23 (1964) (appendicesto separateopinionof Mr. Justice Black); Meltzer, InvoluntaryConfessions:The Allocationof Responsibility Between Judge and Jury, 21 U. CHI. L. REV. 317, 319

supranote 5, at 585-93. (1954).See also3 J. WIGMORE, 8In United States v. Carignan,342 U.S. 36, 38 (1951), the Court held that if the defendantrequests that the trial judge excuse the jury, the judge should the request. grant 19See Meltzer, supra note 17, at 320-21. 20See378 U.S. at 414 (appendicesto separateopinion of Mr. JusticeBlack). 21 Peoplev. Fernandez,301 N.Y. 302, 326, 93 N.E.2d 859, 872 (1950),cert.denied,340 U.S. 914 (1951);People v. Doran,246 N.Y. 409, 416-17, 159N.E. 379, 38182 (1927).

32

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COMMENT

making this determination the jury is not required to render a special verdict. If the jury reaches a general verdict of guilty, it is assumed that the jury found the confession involuntary and disregarded it, or that it found the confession voluntary and merely gave the confession its due weight in determining the question of guilt. The major difference between the orthodox rule and the New York procedure is that under the former method, the judge makes the final determination while under the latter, the jury makes the decision when conflicting evidence is presented. The Massachusetts rule combines both procedures.The judge must make an initial finding as to voluntariness, before allowing the confession in evidence. Even when there is conflicting evidence, he either rules the confession involuntary and excludes it from the trial, as under the orthodox view, or admits in evidence those confessions found to be voluntary. Nevertheless, before the jury can consider the credibility of such confessions, it must also find the confessions voluntary, as under the New York procedure.22Under proper instructions, the jury is told to disregardthe confessionif it finds it involuntary. Unlike the New York procedure, however, the confession is admitted only when the judge preliminarily finds the confession voluntary. Therefore, under the Massachusetts approach, a defendant is afforded two separate determinations as to the voluntariness of his confession, one by the judge and one by the jury.23 In Jackson v. Denno24the Supreme Court analyzed these procedural methods with regard to fourteenth amendment due process requirements. The Court expressed its approval of both the orthodox and Massachusetts rules.25The Court held, however, that the New York method, in permitting the jury to determine questions of voluntariness as well as guilt26without requiring the trial judge to make a threshold determination of voluntariness

is an unfair and unreliable test which constitutes a deprivation of due process of law.27 THE RULE OF JACKSON v. DENNO

Defendant Jackson robbed a room clerk in a Brooklyn hotel. During his escape, Jackson and a pursuing policeman exchanged shots, killing the policeman and wounding Jackson. The defendant went immediately to a hospital where he was questioned by a detective. Jackson admitted committing the robbery at the hotel and shooting the policeman. He was then given pre-operative sedatives. After the drugs had been adminstered, an assistant district attorney began to question Jackson about the shooting. While under heavy sedation, Jackson confessed to having shot the policeman. At trial both statements were introduced in evidence against Jackson. Defense counsel did not object to the prosecution's attempt to offer the confessions, but counsel did challenge the credibility of the statements introduced by attempting to prove the incoherent condition of the accused.28 Since a factual dispute as to the voluntariness of the confessions was raised, the trial judge, following the procedure employed by the New York courts, submitted the question of coercion to the jury. The jury found Jackson guilty of first degree murder. The New York Court of Appeals affirmed his conviction.29The defendant petitioned in federal district court for a writ of habeas corpus on the grounds that his confession was involuntary, and that the New York procedure violated due process as a matter of law. The petition was denied.30On appeal from the denial of habeas relief, the Second Circuit affirmed,31but was reversed by the Supreme Court.32 The majority of the Court in Jackson held that 27Id. at 391. The CourtexplicitlyoverruledStein v.

New York, 346 U.S. 156 (1953). In Stein the Court had

rendereda decisionelevenyearspriorto its decisionin Jacksonin whichit rejectedthe claimthat becausethe See New Yorkmethoddid not prohibitthe jury fromdetersupra note 17, at 323. 23ForMeltzer, extended treatment of the methods used in mining questionsof both voluntarinessand guilt, the determiningadmissibilityand a thoroughdiscussionof procedureviolated the due processclause of the fourthe better procedureto be applied,see Comment,The teenthamendment.In Jacksonv. Dennothe New York Role of Judge and Jury in Determininga Confession's rule was found to "fall short of satisfying ... constitu48 J. CRIM. L.C. & P.S. 59 (1957). tional requirements"and Stein v. New Yorkwas overVoluntariness, 24378U.S. 368 (1964). turned.378 U.S. at 391. 25Id. at 378 n. 8. 28Id. at 374 n. 4. 26 Under the Massachusettsvariation,if the judge 29 Peoplev. Jackson,10 N.Y.2d 780, 177 N.E.2d 59, shoulddecideto receivethe confessionin evidence,the 219 N.Y.S. 621, cert.denied,368 U.S. 949 (1961). 30 jury also considersthe questionof voluntariness.The Applicationof Jackson,206F. Supp.759(S.D.N.Y. Court,however,reasonedthat this procedurewouldnot 1962). 31 United States ex rel. Jackson v. Denno, 309 F.2d seriouslyendangerthe defendant'sright to a reliable determinationof the voluntarycharacterof his confes- 573 (2d Cir. 1962). sion. See 378 U.S. at 378 n. 8. 32 Jackson v. Denno, 378 U.S. 368 (1964). 22

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THE RIGHT TO A VOLUNTARINESS HEARING

the New York procedure violated due process requirements because, in leaving the issue of voluntariness to the jury alone, the rule did not provide adequate safeguards against a conviction being based on an involuntary confession. The majority reasoned that a jury might easily be influenced in determining the voluntary characterof a confession by the corroboratingevidence which supports the credibility of the confession. The Court referred to its decision in Rogersv. Richmonda3and stated: The reliabilityof a confessionhas nothing to do with its voluntariness-proof that a defendant committedthe act with which he is chargedand to which he has confessedis not to be considered when decidingwhethera defendant'swill has been overborne." Furthermore, the Supreme Court found that the New York rule failed to prevent the jury from using an involuntary confession in reaching a general verdict of guilty.a6 The possibility that the jury might disregard its instructions was inconsistent with the due process requirement that a conviction not be based on an involuntary confession.36Therefore, due process required some person or body other than the trial jury to make an independent and reliable determination of the voluntariness of the confession after a full hearing.37 In disposing of the case, the Court remanded the case to the district court with directions that the New York courts hold a post-trial hearing on the voluntariness issue, consistent with due process,3 33365 U.S. 534 (1961).In Rogersthe accusedwas arrestedfor robberyandwas questionedby policeabouta murder.The defendantconfessedto havingcommitted the murderuponbeing threatenedwith havinghis wife taken into custody. See also text accompanyingnotes 13-16 supra.

34378 U.S. at 384-85. 36Id. at 388-89.

36It is normally assumed that juries are able to properlyseparatethe issues given them underinstructionsby the trialjudge.This assumptionwasrepudiated by the JacksonCourt becauseof the disastrouseffect upon Jacksonif the jury found the confessioninvoluntary but disregardedthe trial judge'sinstructions.Id. at 388-89, 389 n. 15. Cf. Brutonv. United States, 391 U.S. 123 (1968) (The Court reversedpetitioner'sconviction althoughthe jury had been instructedto disregard a codefendant'sconfessioninculpatingthe petitioner). 37378 U.S. at 391 n. 19. 38Id. at 396. Ancillaryquestionspresentingpotential due processdeficienceswere not answeredin Jackson. The Courtdid not requirethat a voluntarinesshearing be held outside the presenceof the jury. In a postJacksondecision,Pinto v. Pierce, 389 U.S. 31 (1967), the Court held that no constitutionalrights were violated wherethe trial judgeconductedthe voluntariness

33

or afford Jackson a new trial.39The final determination of conviction was left pending the result of the hearing.40 THE RIGHT TO A JACKSONV. DENNO HEARING The Jackson Court was primarily concerned with the procedural problem of insuring that the inquiry in the presence of jury and defense counsel consented to the evidence on voluntariness being taken in the jury's presence. In dictum, however, the Court noted that because a disputed confession may be found involuntary by the judge, it would be prudent to conduct the inquiry outside the presence of the jury. A lack of confidence in the ability of the trial judge to reliably determine the voluntary character of the accused's confession has also been expressed. See Note, TheRole of a Trial Jury in Determiningthe Voluntariness of a Confession, 63 MICH.L. REV. 381, 387-88 (1965).

Most notably, the Courtfailed to establisha standdardfor the quantumof proof the state is requiredto employin determiningthe admissibilityof a confession. See 378 U.S. at 404-05 (separateopinionof Mr. Justice Black).In Bolesv. Stevenson,379 U.S.43 (1964),a case decidedsoon after Jackson,the Courtcontinuedto remain silent on the burdenof proof issue. The Court therestated: "[Petitioner]is entitledto a hearingin the state courts under appropriateproceduresand standardsdesignedto insurea full and adequateresolutionof [thevoluntarinessof his confession]."Id. at 45. The federalcourtsthat have faced the issue differas to the appropriatestandardto be appliedin determining whether a confessionis admissible.CompareUnited States ex rel. Lego v. Pate, 308 F. Supp. 38 (N.D. Ill. 1970) (reliable determinationof voluntariness)with Pea v. United States, 397 F.2d 627 (D.C. Cir. 1968) (beyond a reasonable doubt). For an argumentthat the due processclauseshould not be interpretedto requirethat the trial judge be satisfiedbeyonda reasonabledoubt of the confession's voluntariness, see Note, Criminal Procedure-Is Voluntariness of Confessions A Question For Judge or Jury, 43 TUL. L. REv. 393 (1969).

(Editor'snote: After this issue went to press, the SupremeCourt held in Lego v. Twomey, 10 BNA Crim.L. Reptr.3057 (Jan. 12, 1972)that the standard of proofof beyond a reasonabledoubt is not constitutionallyrequiredin voluntarinesshearings.) 39378 U.S. at 396. Since procedure was being examined, Jackson was not automatically entitled to a new trial. If petitioner's confession should be found involuntary at the state hearing, he would then be entitled to a new trial. But see Rogers v. Richmond, 365 U.S. 534 (1961), involving facts similar to those in Jackson, where the Supreme Court failed to consider the possibility of an evidentiary hearing in the state courts and remanded the case for a new trial. 40Jackson v. Denno was the first case in which the Court employed the device of vacating the judgment and remanding for a hearing in the state courts. The federal courts of appeals have followed the Jackson standard of allowing the states to take the corrective action by remanding for a state hearing in instances where the petitioner has already been afforded a federal habeas corpus hearing subsequent to conviction. See,

e.g.,Minnesotaex rel.Holscherv. Tahash,364 F.2d 922 (8th Cir. 1966); Mitchell v. Stephens,353 F.2d 129 (8th Cir. 1965),cert.denied,384 U.S. 1019 (1966).

34

COMMENT

voluntariness of a confession be properly determined before it is admitted in evidence. It is not clear, however, if the Supreme Court in Jackson created a constitutional right to an evidentiary hearing procedure to suppress coerced confessions in all cases. The Court stated: It is both practicaland desirablethat in cases to be tried hereaftera properdeterminationof voluntarinessbe made prior to the admissionof the confessionto the jury which is adjudicatingguilt or innocence.41 The federal courts of appeals which have faced this issue differ as to whether a defendant must make a specific objection in order to obtain a voluntariness hearing or whether the judge should conduct a hearing despite the absence of an objection by defense counsel. Three approaches have been adopted by the circuit courts in determining whether a particular case requires a Jackson hearing: the permanent right standard, the absence of issue approach, and the waiver theory. Of these three, only the permanent right standard clearly falls within the constitutional parameters of Jackson. The latter two approaches, the absence of issue and waiver theories, are virtually identical and raise substantial constitutional questions with respect to affordingdefendant the right to a Jackson hearing. Only the Fourth Circuit follows the first approach of affording the defendant an absolute and a permanent right to a preliminary voluntariness examination.In UnitedStatesv. Inman42the Fourth Circuit held that when a confession is offered in evidence, an independent hearing must be held even though defense counsel does not object to the use of the confession nor requests a hearing. The second approach-the absence of issue theory-does not require a hearing unless the defendant raises the question of voluntariness.43If 41378 U.S. at 395.

42352 F.2d 954 (4th Cir. 1965).Somestates, as a rule of administration, holdthat it is the responsibilityof the trial court to sua spontedeterminethe admissibilityof the accused'sconfession.See, e.g., State v. Utsler, 21 Ohio App. 2d 167, 255 N.E.2d 861 (1970); People v. Howie,33 App. Div. 2d 648, 305 N.Y.S.2d 295 (1969). 43The petitioneris not entitled to a hearingif, upon examinationof the record,the voluntarinessissueis not in the case. See, e.g., LaBrascav. Misterly, 423 F.2d 708 (9th Cir. 1970); United States v. Feinberg,383 F.2d 60 (2d Cir. 1967); Woody v. United States, 379 F.2d 130 (D.C. Cir.), cert.denied,389 U.S. 961 (1967); Evans v. United States, 377 F.2d 535 (5th Cir. 1967); Williamsv. Anderson,362 F.2d 1011 (3d Cir.), cert. denied,385 U.S. 988 (1966).

[Vol.63

the defendant does not raise the issue, the trial judge is not compelled to examine the voluntariness of the confession sua sponte. In United States v. Taylor4 the Seventh Circuit held that the trial court may presume the voluntariness of the defendant's confession from the fact that defense counsel does not object to the introduction of the confession into evidence. The Seventh Circuit concluded that the trial court need not raise the issue sua sponte unless there are "alerting circumstances" as to the defendant's emotional or physical condition which would require the judge to investigate the need for conducting a voluntariness hearing.45 Some circuits, in applying the absence of issue standard to cases in which the strategy of defense counsel has been to undermine the defendant's confession factually, hold that the trial judge is not required to conduct a Jackson v. Denno hearing sua sponte whatever the circumstances. In Lundthe Sixth Circuit specifically noted bergv. Buckhoe46 that defense counsel had introduced the confession into evidence for the purpose of negating the element of premeditation. The Sixth Circuit, denying the petitioner's request for a Jackson hearing, held: Jacksondoes not requirethe trial judge to hold a preliminaryhearing sua sponte regardingthe voluntarinessof a defendant'sconfession...; it merelydeals with the procedureto be followedin determiningthe issue when it is raisedby objection or otherwise.47 The voluntariness issue was similarly negated by the strategies of defense counsel in Garrison v. Patterson48and Kear v. United States.49 44374 F.2d 753 (7th Cir. 1967). 46Id. at 756. The court stated: "Certainalerting circumstances .. may, under due process standards, requirea trialjudgeto investigatethe necessityof conducting a hearingnotwithstandingthe absenceof an objection."Id. The rule of United States v. Taylor which deniesan evidentiaryhearingsua sponte in the absenceof "alertingcircumstances"was confirmedby the Seventh Circuitin United States ex rel. Lewis v. Pate, 445 F.2d 506 (7th Cir. 1971). 46389F.2d 154 (6th Cir. 1968). 47 d. at 157.

48405 F.2d 696 (10th Cir. 1969). The petitioner al-

leged,interalia, that the trialcourtfailed to determine the voluntarinessof his confessionoutsidethe presence of the jury.The courtof appealsreasonedthat a hearing was not requiredbecausethere had been no objection and "no circumstancesexisted to cause an awareness that counselwas questioning... voluntariness."Id. at 697. The Tenth Circuitfound that the strategy of defense counsel was to factually underminepetitioner's confessionsand not to challengethe admissibilityof the confessionsbeforethe jury. However,the facts in Garrisonmay have been sufficientto place the volun-

19721

THE RIGHT TOA VOLUNTARINESSHEARING

35

Other courts of appeals have adopted a waiver theory to rationalize the absence of a Jackson hearing in those instances where the defendant has avoided challenging the confession. In Delaney v. Gladden50the Ninth Circuit reasoned that petitioner deliberately waived his constitutional claim under Jackson by failing to object or otherwise indicate to the trial court that the question of voluntariness was in issue in the case. Delaney illustrates how closely the theory of waiver resembles the absence of issue approach and emphasizes the notion that the right to a Jackson hearing does not arise (i.e., is waived) if the question of voluntariness is not brought to the trial judge's attention. Similarly, where defense counsel argued to the jury that petitioner's statements were the product of drunkenness and requested the jury to consider carefully those statements on that ground, the Ninth Circuit held in Curryv. Wilson51that counsel's strategy was an affirmative decision to waive any objections which petitioner might have raised under Jackson. Under special circumstances, however, the failure of defense counsel to raise the voluntariness

issue will not exonerate the trial judge from granting a Jackson hearing under either the absence of issue52or the waiver approach.5 The court held in Hizel v. Sigler54that failure to object was not an intelligent waiver under Johnson v. Zerbst55and Fay v. Noia.56The evidence in the record indicated that the petitioner was a chronic alcoholic, had suffered brain damage therefrom, and was unable to read or write. During the interrogation, he had not been given his warnings under Miranda and was intoxicated. The Eighth Circuit held that in light of these "special circumstances" due process requires the trial court to investigate, sua sponte, the necessity of a Jackson hearing.57The court reasoned that certain alerting circumstances, such as the apparent physical incapacity or obvious ignorance of the accused, revealed the inadequacy of counsel in failing to demand a voluntariness 52SeeUnited States v. Taylor, 374 F.2d 753 (7th Cir. 1967); United States ex rel. Lewis v. Pate, 445 F.2d 506 (7th Cir. 1971). See also text accompanying notes 44-45 supra. 63See United States v. Carter,431 F.2d 1093, 1097

tarinessquestionin issue. These facts includeda plea of insanity, referenceto a prior institutionalcommitment, and cross examinationby counsel concerning alleged mental tests given Garrisonat the time he confessed.See text accompanyingnotes 57-58 infra. 49369 F.2d 78 (9th Cir. 1966). In Kear v. United States counselobjectedat the outset of the trial to the use of the confessionon the groundsthat defendant had been deniedhis sixth amendmentright to counsel. On the basis of this objectionthe trial judge held a pre-trialhearingand, after examiningall the evidence, ruled the confessionadmissible.On appeal, appellant claimedthat the lower court erredin failing to make findingsof fact pertainingto the voluntarycharacter of his confession.The Ninth Circuitdisagreedand held that defense counsel had not raised specificallythe issue of voluntarinessat the preliminaryhearing.The court further concludedthat counsel'squestioningof the issue of the defendant'sdrunkennessat the time the confessionwas made was not intendedto demonstrate incapacityto give a voluntaryconfessionbut to indicate that the defendant was not responsiblefor what had happened.Id. at 81. 50397 F.2d 17 (9th Cir. 1968), cert.denied,393 U.S 1040 (1969). 51405 F.2d 110 (9th Cir. 1968),cert.denied,397 U.S. 973 (1970). Although counsel's strategy in Curry v. Wilsonillustratesthe waiverapproachclearly,Curry's drunkennesswas an "alertingcircumstance"sufficient to placethe voluntarinessquestionin issue.See Gladden v. Unsworth,396 F.2d 373, 380-81 (9th Cir. 1968), wherethe Ninth Circuitstated: If by reasonof mentalillness,use of drugs,or extremeintoxication,the confessionin fact couldnot be said to be the productof a rationalintellectand a free will... it is not admissibleand its reception in evidenceconstitutesa deprivationof due process.

Johnsonv. Zerbstthat in determiningthe effectiveness of a waiverof a constitutionalright the test to be ap-

(8th Cir. 1970).

4430 F.2d 1398 (8th Cir. 1970).

65304 U.S. 458 (1938).The Courtexplicitlyheld in

plied is "whether there was an intelligent relinquishment or abandonment of a known right or privilege." Id. at 464. 66372 U.S. 391 (1963). 7430 F.2d at 1401. The "special circumstances"

test of Hizel v. Sigleris a muchmoreforcefulapproach than that adopted by the Eighth Circuitin previous

cases. In Mitchell v. Stephens, 353 F.2d 129 (8th Cir. 1965), cert. denied, 384 U.S. 1019 (1966), the court of appeals, per then-Circuit Judge Blackmun, found that petitioner, a twenty-three-year-old Negro with only a sixth grade education, had not waived the voluntariness issue. The court carefully took note of all the facts and circumstances surrounding the making of the confession, of the absence of a personal expression of waiver by Mitchell and of Mitchell's tremendous stake in the outcome of the case. Id. at 141. Judge Blackmun, however, refused to decide the Jackson issue on either the particular facts of the case or the absence of waiver. After almost agreeing with the district court that the

observationsof the trial court had met the Jackson rule, a Jackson-typehearingwas grantedbecauseof a

"mild doubt" that an independent state determination had been made. Id. at 145. In Minnesota ex rel. Holscher v. Tahash, 364 F.2d 922 (8th Cir. 1966), the Eighth Circuit again was not forceful on the voluntariness issue. The court, also per Judge Blackmun, indicated that the trial record showed that the petitioner's confession had improperly gone to the jury. Citing Jackson, Judge Blackmun

stated that, althoughtrial counsel failed to object to the confession'svoluntariness,"a like fact did not

change the result in Jackson v. Denno." Id. at 927. Absent waiver, petitioner was granted a hearing in the state courts.

36

COMMENT

hearing and required the trial judge to investigate the necessity of conducting a hearing.58 According to the absence of issue and waiver theories, whether the petitioner is entitled to a hearing depends on what the circumstances stated in the record indicate as to how the voluntariness question was presented at trial-was it waived, was it not raised, was it raised in such an incompetent manner as to be missed or were there "special circumstances" prompting the judge to hold a hearing sua sponte. As a rule of thumb, failure by defense counsel to raise an objection to the voluntariness of a confession will result in the denial of a Jackson hearing unless the judge is made aware that voluntariness is an issue from evidence indicating that extrordinary circumstances occasioned the making of the confession. And even where such circumstances are present, they are disregarded where the failure of defense counsel to raise an objection reflects a conscious desire to deliberately bypass state procedures and to ignore constitutional objections which could be raised at trial.59 68430 F.2d at 1401. The Eighth Circuitappliedthe '"alertingcircumstances"test adoptedby the Seventh Circuitin United States v. Taylor, 374 F.2d 753 (7th Cir. 1967). See text accompanyingnotes 44-45 supra. For argument that incompetenceof counsel should not prejudicethe defendantin attackinghis conviction in the on federal collateralreview, see Developments Law-Federal HabeasCorpus,83 HARv.L. REV.1038, 1109-12 (1970).See alsoMitchellv. Stephens,353 F.2d 129 (8th Cir. 1965), certdenied,384 U.S. 1019 (1966). The difficultywith a competencyof counselstandardis quite apparent.The judgemust determinewhetherthe defendantis capableof intelligentlywaivingthe voluntarinessissuewhenit is not raisedat trial.The question is: what type of conduct effectivelyindicates to the court that the accuseddoes not acquiescein counsel's waiver?Relief is most likely vested in the reviewing court's interpretationof the circumstancespresented at trial. 59In Curryv. Wilson,405 F.2d 110 (9th Cir. 1969), counsel'sstrategy to permitpetitioner'sstatementsto be admitted unchallengeddid not precludethe trial judge fromnoting the voluntarinessissue. The dissent in Curry,per Judge Browning,carefullypointed out that the state had concededon oral argumentthat defendant'scounsel"arguedthe questionof the voluntarinessof the confessionsto the jury; and the state trial judge instructed the jury that the confessions were not to be consideredin determiningappellant's guilt unless they werevoluntary.... " Id. at 120. However,petitionerwas not only not challengingthe voluntarinessof the confessionbut was affirmatively assertingthat the confessionwas true and reliablein an attempt to effectively impeach the prosecution's case. This wouldappearto constitutewaiverunderthe rule of Henry v. Mississippi,379 U.S. 443 (1965), for failureto object to the confessionfor purposesof trial strategy.See generallySandalow,Henryv. Mississippi and theAdequateStateGround:Proposalsfor a Revised Doctrine,1965 SUP.CT. REV.187. Yet, it is questionable whether the manner and purpose of defense

[Vol.63

Affording the petitioner a Jackson hearing only in those instances where he raises a specific objection or where the circumstances brought out at trial alert the judge to the necessity for conducting a hearing rests on the notion that the Jackson Court did not intend that a sua sponte hearing should be held whenever a confession is offerred into evidence. Such an interpretation of Jackson is not ill-founded. The primary concern of the Jackson Court was to modify the rules of evidence to conform to the requirements of due process of law. Furthermore, Mr. Justice White writing for the majority stated in the course of the opinion: A defendantobjectingto the admissionof a confession is entitledto a fair hearingin whichboth the underlyingfactual issues and the voluntariness of his confessionare actually and reliablydetermined.60 If the Court's language is strictly construed, it would appear that those courts applying an absence of issue or waiver approach have complied with Jackson. The statement suggests that a defendant who does not explicity object to the use of his confession foregoes the right to a voluntariness hearing. Nevertheless, in view of the factual situation which the Court addressed itself to in Jackson and in light of subsequent Supreme Court interpretations of Jackson, reliance on Mr. Justice White's statement seems misplaced; there is strong support for the proposition that the Court in Jackson intended to make a voluntariness hearing a permanent right, not subject to being invoked by a specific defense objection. The Supreme Court was confrontedin Jackson with a situation of no proper or timely objection to the voluntariness of the confessions offerred at trial and no request for a preadmission hearing. Despite these circumstances, the Court held that the trial judge's determination of the voluntary character of the defendant's confessions was properly before the Court. Mr. Justice Clark argued in dissent that the constitutionality of the New York procedurewas not properly before the Court because it had not been challenged in the counsel'sconductat trialcan justify a convictionbased upon an involuntary confession. Certainly, under fourteenthamendmentdue process,a particularact or omission of petitioner's counsel without personal participationby the defendantdoes not remove the defect of an inadmissibleconfession.See Fay v. Noia, 372 U.S. 391, 414-15 (1963);Brownv. Mississippi,297 U.S. 278, 286-87 (1936). See also text accompanying note 51 supra. 60 378 U.S. at 380 (emphasisadded).

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THE RIGHT TOA VOLUNTARINESSHEARING

state courts.6'The majority, however, rejected this contention and, while noting that Jackson had not made an objection to the introduction of his confession at trial, stated: "no one suggests that petitioner... [deliberately waived his federal claim]." 62 The Court considered a voluntariness hearing to be of sufficient constitutional significance to require the strictest standards of waiver. Implicit in such an approach is that a trial judge must grant a hearing unless the right to such a hearing is specifically waived rather than grant a hearing only when a confession is specifically objected to. Such an interpretation of Jackson is reinforced by the fact that the Court has applied Jackson retroactively,6a reflecting the Court's concern in granting defendant a constitutional right to a voluntariness hearing. Also significant is the fact that post-Jackson decisions require the state to show clearly in its trial record that the defendant was afforded a full and fair evidentiary hearing.64In Sims v. Georgia65the Court ruled that the record must show with "unmistakable clarity" that the trial judge has independently concluded that the confession was voluntary. The Jackson Court's renunciation of an overly technical rule of waiver is consistent with the principle that the highest standards of proof are required in order to show that the accused has waived 61Id. at 424-25 (dissenting opinion of Clark, J.).

62Id.at 370 n. 1.

63Sims v. Georgia, 385 U.S. 538 (1967); Boles v. Stevenson, 379 U.S. 43 (1964). See also Stovall v. Denno, 388 U.S. 293, 298 (1967) (dictum); Johnson v. New Jersey, 384 U.S. 719, 727-28 (1966) (dictum); Linkletter v. Walker, 381 U.S. 618, 628-29 n. 13 (1965) (dictum). 64 In Boles v. Stevenson, 379 U.S. 43 (1964), the trial judge declined to hold a preliminary hearing. From the record it was unclear whether in overruling defense counsel's motion to strike a police officer's testimony, the judge had decided the voluntariness question one way or the other, and if he had, what standard he had applied. The Supreme Court, reasserting the position it had adopted in Jackson v. Denno, stated that the procedures were not "fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession." Id. at 45, quoting Jackson v. Denno, 378 U.S. at 391. 65385 U.S. 538 (1967). In Sims v. Georgia the Court remanded for a Jackson hearing where the record failed to establish with "unmistakable clarity" that the trial judge had independently concluded that the confession was voluntary. Also, in Sigler v. Parker, 396 U.S. 482 (1970), the Supreme Court, although not nearly so forceful as it had been in Sims, required a hearing in the state courts where it appeared from the trial record that the judge had not made a preliminary decision on the voluntariness question.

37

his constitutional rights.66 In Fay v. Noia,67 the Court carefully defined the concept of waiver first formulated in Johnson v. Zerbst,8 a case involving habeas review of a federal conviction. The Court stated in Noia: If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits.... A choice made by counsel not participated in by the petitioner does not automatically bar relief.69

Thus, a failure to object that is "not the intentional abandonment of a known right or privilege"70 should not preclude a Jackson hearing-it should be meaningless by itself.7' The constitutional significance imparted to a voluntariness hearing by Jackson and subsequent Supreme Court decisions is supported by a number 66 Miranda v. Arizona, 384 U.S. 436 (1966). See generally, Developmentsin the Law, supra note 58, at 110313; Lay, Problems of Federal Habeas Corpus Involving State Prisoners, 45 F.R.D. 45, 55-67 (1969). 67372 U.S 391 (1963). 68304 U.S. 458 (1938). See note 55 supra. 69 372 U.S. at 439 (footnote omitted). 70Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The concept that the defendant did not knowingly and intelligently waive his constitutional rights under Johnson v. Zerbst has been applied where counsel's choice not to object was made under a state procedure for determining voluntariness that was subsequently declared unconstitutional in light of the decision in Jackson v. Denno. See, e.g., Moreno v. Beto, 415 F.2d 154 (5th Cir. 1969); United States ex rel. Snyder v. Mazurkiewicz, 413 F.2d 500 (3d Cir. 1969); Gladden v. Unsworth, 396 F.2d 373 (9th Cir. 1968). However considering the Supreme Court's recent decision in McMann v. Richardson, 397 U.S. 759 (1970), it appears that the deliberate choice of counsel not to object to the voluntariness of his client's confession under the state law existing at the time of trial will preclude Jackson relief absent any notice to the trial judge that the defendant does not concur in counsel's waiver. 71 Such an approach was provided by the Fifth Circuit Court of Appeals in Black v. Beto, 382 F.2d 758 (5th Cir. 1967), cert. denied, 389 U.S. 1041 (1968), where the court strictly interpreted the waiver standard. The court reasoned that defense counsel's cross examination of the police officer who took the confession suggested the possible presence of coercive influences. By inference to Jackson the court held that the trial judge should have been reasonably alerted to the fact that counsel was attempting to place the voluntariness. question in issue. Id. at 760. Cf. United States ex rel. Singer v. Myers, 384 F.2d 279 (3d Cir. 1967), rev'd on other grounds, 392 U.S. 647 (1969).

38

COMMENT

of practical considerations. The responsibility of the trial court to determine sua sponte the admissibility of the accused's confession facilitates federal habeas corpus review of state confession cases.72 Such hearings permit federal courts to dismiss quickly and conveniently petitions presenting frivolous claims for relief. Moreover, some states by legislation have provided for pre-trial procedures to determine the question of voluntariness.78 A voluntariness hearing conducted before trial has much to commend it.74It would aid defense counsel as well as the prosecution in deciding the case. Because a confession is such a crucial piece of evidence, it may often determine the ultimate question of guilt. If the trial judge rules the confession inadmissible, there may be no need to hold the trial. Similarly, if the confession is found admissible, the defendant may enter a plea of guilty, thereby eliminating any proceeding to trial.75 Furthermore, requiring the trial judge to first determine the admissibility of the accused's confession removes the possibility of disrupting a jury 72 If the essential facts concerning the voluntariness issue are not preserved in the trial record, the federal courts are impeded in any review of the constitutionality of the petitioner's claim for habeas relief. Faced with a complete record of the voluntary character of the petitioner's confession, the federal court can easily dismiss petitions without a hearing if convinced of the sufficiency of the record below. Effective appellate review requires a clear-cut determination of the voluntariness question. See Boles v. Stevenson, 379 U.S. 43, 45 (1964). See also Stidham v. Swenson, 443 F.2d 1327 (8th Cir. 1971) (Trial judge's finding that the confession was "not involuntary" as opposed to "voluntary" does not comply with Jackson v. Denno); Wallace v. Hocker, 441 F.2d 219 (9th Cir. 1971) (Trial court's obligation is not satisfied under Jackson by a determination that the state has made out a prima facie case that the confession was voluntary). 73See, e.g., FLA. R. CRIM.P. 1.190(i) (1968); ILL. REV. STAT.ch. 38, ? 114-11 (1969); MICH.STAT.ANN. Rule 785.5 (1968); N.Y. CODECRIM. P. ?? 813(f)-(g) (McKinney Supp. 1970). See also State v. Keiser, 274 Minn. 265, 143 N.W.2d 75 (1966) (creating an analogous procedure by judicial rule of administration). 74Compliance with the admissibility standards of Miranda v. Arizona as well as the actual voluntariness of the confession should be determined at the Jacksontype hearing. See, e.g., Martinez v. People, - Colo. _, 482 P.2d 275 (1971); State v. Graham, 240 So. 2d 486 (Fla. App. 1970); People v. Costa, 38 Ill. 2d 178, 230 N.E.2d 871 (1967); State v. Utsler, 21 Ohio App. 2d 167, 255 N.E.2d 861 (1970); State v. Duckson, 255 S.C. 372, 179 S.E.2d 40 (1971); State v. Woods, 3 Wash. App. 691, 477 P.2d 182 (1970); Roney v. State, 44 Wis. 2d 522, 171 N.W.2d 400 (1969). 76Nevertheless, state and federal collateral relief may lie under state statutes such as N.Y. CODE CRIn. P. ? 813 (g) (McKinney Supp. 1970), which permit an appeal from the denial of a motion to suppress in cases resulting in a plea of guilty.

[Vol. 63

trial for the purpose of holding an unanticipated hearing.76 OF THE GRANT FURTHERCLARIFICATION OF HABEAS RELIEF UNDER JACKSONV. DENNO

If the state employs a defective fact-finding procedure in determining voluntariness, Jackson v. Denno permits the petitioner to collaterally attack his conviction in the federal courts.77However, notwithstanding the constitutional infirmity of the state criminalproceeding, every federal habeas corpus petitioner who alleges that his confession was not properly determined to be voluntary is not automatically entitled to a new hearing. In Procunier v. Atchley78the Supreme Court recently held that the failure of a petitioner to allege facts which, if proven true, would establish the involuntariness of his confession, bars a new hearing even though the procedureused to decide the voluntariness issue in the state court did not comply with the rule of Jackson v. Denno. The petitioner, Vernon Atchley, was convicted of first degree murder and sentenced to death.7' 76An additionalpurposeservedby a pretrialhearing is that of granting the defendantan opportunityto testify as regardshis confessionwithoutbeingcompelled to take the standin his defense. The confessionadmissibilityprocedureadopted by the SupremeCourtof Wisconsinin State ex rel. Goodchild v. Burke,27 Wis. 2d 244, 133 N.W.2d753 (1965), cert.denied,384 U.S. 1017 (1966),is particularlynoteworthy: In the interestof betteradministrationof criminal justice we suggest that wheneverpracticablethe prosecutorshouldwithin a reasonabletime before trial notify the defenseas to whetherany alleged confessionor admissionwill be offeredin evidence at the trial. We also suggest,in cases where such noticeis givenby the prosecution,that the defense, if it intends to attack the confessionor admission as involuntary,notify the prosecutorof a desire by the defensefor a specialdeterminationon such issue.

Id. at 264, 133 N.W.2d at 763 (footnote omitted). Specialnotice that the prosecutionintends to offer a confession in evidence is not mandatory, however. v. State, 44 Wis.2d 522, 171N.W.2d400 (1969). Roney 77378 U.S. at 392. Of course,if the state has provided an adequatepost-convictionhearingprocedure,a federal judge can more conveniently dispose of state prisonerpetitions.See Case v. Nebraska,381 U.S. 336 (1965) (suggestingthat federalconstitutionalquestions be consideredby the state courtsbeforebeingreviewed by78federaljudges). 400 U.S. 446 (1971). 79The defendantwas found guilty in a jury trial of murderinghis wife. Defense counsel had objected at trial to the admissibilityof a recordingof a conversation between Atchley and an insuranceagent, held after the death of the petitioner'swife, regardingan insurancepolicyon the life of the deceasedwife. During

19721

THE RIGHT TOA VOLUNTARINESSHEARING

Atchley sought federal habeas relief on the grounds that his confession had been improperly admitted into evidence and that the trial court had mistakenly excluded evidence as to his mental condition. The district court reasoned that the state trial judge had not reliably determined whether Atchley's confession was voluntary because "relevant and perhaps crucial evidence on the issue of voluntariness had been excluded."80 Noting that the procedure to be followed must be fully adequate to insure a reliable and clear-cut determination of the voluntariness question, the court concluded that the trial court's determination did not appear with the "unmistakable clarity" required by Sims v. Georgia.8The court ruled that Atchley was entitled to the writ unless the state afforded petitioner a new hearing on the issue of voluntariness.82 The Ninth Circuit affirmed per curiam.88 In deference to the determination of voluntariness by the state courts,84the Supreme Court, reversing, reasoned that the federal judge had erred in ordering a rehearing of those claims which the trial court had fully and fairly adjudicated against the petitioner. Rejecting the district court's plain error approach of granting a hearing where the state procedureused to determine voluntariness did not comply with the procedural requirements of Jackson, the Court stated that neither Jackson v. Denno nor Townsendv. Sain85held:

39

[T]hat an applicant for federal habeas corpus is entitled to a new hearing on the voluntariness

issue, in either the federalor state courts, merely becausehe can point to shortcomingsin the proceduresused to decide the issue of voluntariness in the state courts.86 The district court, while failing to determine whether the facts set forth by petitioner were sufficient to prove that the statement was involuntary, merely concluded that the trial court's exclusion of evidence surrounding the making of the

statement entitled Atchley to a new hearing. The Supreme Court indicated, however, that Jackson and Townsendrequire the petitioner to show that his version of the facts, if proven true, would establish that his confession was involuntary; otherwise, a rehearing on the voluntariness issue would be a futile gesture. Requiring the petitioner to allege facts that would establish the involuntariness of his confession will facilitate the federal courts deciding habeas corpus petitions in disposing of the frivolous claims of state prisoners seeking post conviction relief. Thus the Supreme Court is

providing the federal courts with a "pleading rule" of sufficiency as an administrative guide in their review of state confession cases.87 It is highly improbable that the Court's decision in Atchley deprives the accused of the right to a

Jackson v. Denno hearing.88 If the facts alleged by the conversationAtchley describedto the insurance the petitioner do not show that his constitutional agent how he had accidentallyshot his wife. The rehearing in the state court, either at the time of cordingof this admissionwas accepted into evidence trial or in a collateral proceeding. by the court over counsel'sobjection. at 312. For detailed discussion of the Townsend 80Atchley v. Wilson,300 F. Supp. 68, 71-72 (N.D. Id. standards see Wright & Sofaer, Federal Habeas Corpus Cal. 1968). The court emphasizedthat evidencerelat- for State Prisoners: The Allocation of Fact-Finding ing to the defendant'smental condition, whether he Responsibility, 75 YALEL.J. 895, 923-85 (1966). was able to reador write, and the extent of his educa86 400 U.S. at 451. tion wouldall bear on the voluntarinessof the confes87The Court's decision in Atchley is, perhaps, a sion. Id. at 71-72 n. 4. direct response to the critical problem of the over81Id. at 73 n. 7. See also note 65 supra. whelming number of state prisoner habeas corpus peti82 300 F. 73. at Supp. tions in federal courts. See generally Burger, The State 8s:Wilson v. Atchley, 412 F.2d 230 (9th Cir. 1969) of the Judiciary-1970, 56 A.B.A.J. 929 (1970). 88Nevertheless, the Court seems to ignore the ra(percuriam). 8428 U.S.C. ? 2254(d) (Supp. V, 1969). The statute tionale of Jackson-that the trial court's failure to requiresfederaljudgesto give great deferenceto state provide adequate procedural safeguards in preventing factual determinations.CompareUnited States ex rel. a conviction from being based on an involuntary conDickerson v. Rundle, 430 F.2d 462 (3d Cir. 1970) fession violates due process of law. The emphasis of (strictly construingthe languageof the statute in up- the Jackson Court in modifying the rules of procedure holding state's adjudication of voluntariness) with used to admit evidence in criminal cases indicates that Stidham v. Swenson, 443 F.2d 1327 (1971) (State it is by means of a full and fair evidentiary hearing that factual determinationof voluntarinessnot supported findings of fact can best be articulated and that the issue of voluntariness be properly determined. The by the record). 86372 U.S. 293 (1963).The SupremeCourtin Town- Atchley Court avoids the constitutional standard of send v. Sain expandedthe right of habeascorpusap- Jackson in opting for quicker disposal of coerced conplicants to a de novo evidentiaryhearing in federal fession claims on appellate review. But see Hackathorn v. Decker, 438 F.2d 1363 (5th Cir. 1971) (Petitioner is court. Townsendarticulatedthe requirementthat: entitled to Jackson relief although facts were not alwhere the facts are in dispute, the federal court . . .must hold an evidentiaryhearingif the habeas leged to support the contention that the confessions were involuntary). applicantdid not receivea full and fair evidentiary

40

COMMENT

[Vol.63

rights have been violated by the use of an involun- tary characterof a confession should be made mantary confession, then he is not capable of suffering datory and should not be outweighed by other a constitutional injury. The ruling of the Court consiserations. would seem to be an application of the familiar Jackson v. Denno suggested that failure to object principle that one is not entitled to relief unless he to the prosecution's attempt to offer a confession alleges facts which would permit recovery if not in evidence does not waive the requirement that rebutted. the defendant be affordedan adequate and reliable hearing. Furthermore, under the Jackson rule, beCONCLUSION fore a confession may be introduced in evidence, The Supreme Court's holding in Jackson v. the finding of the trial court that the confession is Denno that the jury may examine the voluntari- voluntary must appear from the record with "unness question only after the judge has fully and mistakable clarity." 89 The importance of a conindependently resolved that issue against the ac- stitutional right evidenced by "unmistakable cused is consistent with enforcement of the rule clarity," plus retroactive application, would indiexcluding coerced confessions from trial. Analysis cate that the right to a Jackson v. Denno hearing of the federal circuits' disposition of requests for must be fully protected. Re-examination of the Jackson relief indicates that some decisions weaken Supreme Court's objectives in Jackson implies the Supreme Court's express purpose in Jackson of that due process of law requires the trial judge to protecting the defendant against the use of an in- act sua sponte in determining the question of voladmissible confession. Some courts evade the Jack- untariness whenever a confession is offered in evison rule by requiring the judge to determine inde- dence.90It is only in this manner that a voluntaripendently the voluntary character of the accused's ness hearing will be a constitutional guarantee, confession only where the question of voluntariness available to all defendants upon the attempt of the has been placed in issue by means of a specific obprosecution to admit the confession in evidence. jection by counsel. Such an interpretation of the 89Sims v. Georgia,385 U.S. 538 (1967).See note 65 Jackson rule is inconsistent with the Supreme supra. Court's decision. A confession is such an immeasur0The Supreme Court currently uses the concept ably potent piece of evidence that it may tend to "dueprocess"as an independentdevice, ensuringfunhave a highly persuasive effect upon the jury, often damentalfairness, for protectingthe defendant.See, e.g., In re Winship, 397 U.S. 358 (1970); Stovall v. determining the ultimate question of guilt. The Denno, 388 U.S. 293 (1967); Pate v. Robinson,385 right to a preliminary determination of the volun- U.S. 375 (1966).

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright ? 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

CONTROVERTING PROBABLE CAUSE IN FACIALLY SUFFICIENT AFFIDAVITS

In recent years the Supreme Court has dealt extensively with the development of criminal procedure.l The fourth amendment, prohibiting unreasonable searches and seizures, has often been the focal point of this development.2Police obtain search warrants3by filing affidavits which purport to show the probable cause required by the fourth amendment.4 It is well established that a defendant may challenge the sufficiencyof the affidavit's allegations by examining the affidavit on its face.6 What is uncertain, however, is whether the defendant has the right to go behind the affidavit to controvert its accuracy. If the defendant were able to go behind the affidavit to challenge its accuracy, the probable cause requirement would be a more meaningful 1 See generally A. BICKEL, THE SUPRE1ME COURT AND

protection of individual privacy and security.6 Letting him do so would help hold the police to a high standard of accountability and curtail abuse of "information and belief" affidavits. Such a hearing could deter use of perjured allegations and provide a safeguard to use of hearsay. Finally, controverting probable cause reduces the odds that an inaccurate warrant might produce a conviction. To controvert an affidavit's accuracy, the defendant must in some manner prove that facially sufficient allegations of probable cause contained in the affidavit are in fact baseless. This comment offers a procedural formulation for governing the exercise of the proposed right which gives proper weight to the competing interests of assuring the existence of probable cause and of maintaining 7 (1970). THE IDEAOFPROGRESS effective law enforcement. The defendant must 2Amongsomeof the moreprominentrecentdecisions first raise some doubt about the affidavit's factual are: Vale v. Louisiana,399 U.S. 30 (1970); Katz v. UnitedStates,389 U.S. 347 (1967);Camarav. Munici- accuracy, preferably at a pre-trial hearing. If he pal Court,387 U.S. 523 (1967);Mappv. Ohio,367 U.S. can cast doubt on its accuracy, he should then be 643 (1961). Searchesmay occur without warrants.See, e.g., permitted to prove his challenge. The defendant McCrayv. Illinois,386 U.S. 300 (1967).But if a war- should have the burden of proof, with any doubt rant is sought,the policemust submitan affidavit.This resolved in favor of the affidavit.7 Should the decommentdealswith the problemof affidavits. fendant prevail, his remedy would be suppression, 4 U.S. CONST.amend. IV: since by showing the absence of probable cause he The rightof the peopleto be securein theirpersons, houses, papers, and effects, against unreasonable has demonstrated the evidence was obtained unsearchesand seizures,shallnot be violated,and no constitutionally.8 Warrantsshall issue, but upon probable cause, supportedby Oathor affirmation,and particularly describingthe placeto be searched,andthe persons THE CONSTITUTIONAL STATUSOF CONTROVERTING or thingsto be seized. PROBABLECAUSE 6Kipperman,InaccurateSearch WarrantAfidavits L. REV. as a Ground for SuppressingEvidence,84 HARV. There is no definitive authority deciding 825, 830 (1971). The SupremeCourt employed the traditionalanalyticalprocess of a reviewingcourt in whether or not a defendant has the right to chalUnited States v. Ventresca,380 U.S. 102 (1965).First, an affidavit's accuracy. In Rugendorf v. it lookedto the affidavit;second,it determinedwhether lenge on its face probablecause existed. The thrust of this United States the Supreme Court noted it commentis that a third step is appropriate-granting ... has neverpasseddirectlyon the extentto which of the facts as alleged,did the allegations the sufficiency accuratelyreflectthe true circumstances?This factual a court may permit [factualchallengeof an affiinquiryis what most courts deny a defendant.Useful 6 This is the basic examplesof traditionalpracticearealso foundin United policy of the fourth amendment. States v. Gianaris,25 F.R.D. 194, 194-95 (D.D.C. See note 15 infra. 7This formulationis in most essentials the one 1960); Smee v. Commonwealth,199 Ky. 488, 490, 251 S.W. 622, 623 (1923).The SupremeCourthas applied employed in New York practice. People v. Alfinito, this approachto affidavitsbased on informant'sin- 16 N.Y.2d 181, 211 N.E.2d 644, 264 N Y.S.2d 243 formation. Spinelli v. United States, 393 U.S. 410 (1965). 8 He comeswithinthe ruleof Mappv. Ohio,367 U.S. (1969); Aguilarv. Texas, 378 U.S. 108 (1964). See generallyMascolo, Impeachingthe Credibilityof Affi- 643, 655 (1961).This decisionextendedto state courts davitsfor SearchWarrants:PiercingthePresumptionof application of the exclusionaryrule announced in Weeksv. United States, 232 U.S. 383, 393 (1914). Validity,44 CONN.B.J. 9, 16-17 (1970). 41

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[Vol. 63

COMMENT

davit] when the search warrant is valid on its face and when the allegations of the underlying affidavit establish 'probable cause.' 9 The federal circuits have split on this question in the absence of Supreme Court pronouncement.'0 Generally, a majority of federal courts affirms the defendant's right to controvert probable cause, while a majority of state courts denies such a right." Unsatisfactory analysis characterizes most 9 376 U.S. 528, 531-32 (1964). The Supreme Court, however, interpreted the predecessor to FED. R. CRIM. P. 41(e), see note 81 infra-the Espionage Act of 1917, ch. 30, ? 15, 40 Stat. 229-to mean that a defendant may controvert probable cause. Steele v. United States (No. 1), 267 U.S. 498, 501 (1925). In Dumbra v. United States, 268 U.S. 435 (1925), the defendant argued the search warrant was issued without probable cause. Id. at 436. The Supreme Court did not reach the constitutional issue and confined its analysis to the affidavit's sufficiency. Id. at 437. The Court did cite Steele, but not for its interpretation of the Espionage Act provision dealing with probable cause challenges. Id. at 437, 439. The commentators of that era virtually ignored this problem. For example, of the articles discussing search and seizure under the Espionage Act, one of the most thorough completely ignores the problem considered in Steele, although it gives detailed attention to the mechanics of the Act. Baker, Searches & Seizures under the National Prohibition Act, 16 GEO.L.J. 415, 428-31 (1928). 10In one group are courts giving the defendant this right: United States v. Dunning, 425 F.2d 836 (2d Cir. 1969); Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1962); King v. United States, 282 F.2d 398 (4th Cir. 1960); United States v. Pearce, 275 F.2d 318 (7th Cir. 1960). Another group reveals ambiguity in its treatment of this asserted right: United States v. Thompson, 421 F.2d 373 (5th Cir. 1970); Rosencranz v. United States, 356 F.2d 310 (lst Cir. 1966). A third group fairly clearly withholds the right: United States v. Bridges, 419 F.2d 963 (8th Cir. 1969); United States v. Bowling, 351 F.2d 236 (6th Cir. 1965); Kenney v. United States, 157 F.2d 442 (D.C. Cir. 1946). "1King v. United States, 282 F.2d 398, 400 n. 4 (4th Cir. 1960). See Note, Criminal Procedure, 15 BUFFALO L. REV. 712, 714 (1966); Note, Criminal Procedure: Search & Seizure-Right to Challenge Truth of Affidavit for Warrant, 51 CORNELLL.Q. 822, 824 (1966); Note, Defendant's Right to Controverta Warrant L. REV. 740, 740-41 Valid on Its Face, 34 FORDHAM (1966); Note, Recent Decisions, 32 BROOKLYNL. REV. 423, 424-25 (1966). Included in the majority are the following state courts: People v. Bak, 45 Ill. 2d 140, 258 N.E.2d 341 (1970); Bowen v. Commonwealth, 199 Ky. 400, 251 S.W. 625 (1923); Tucker v. State, 244 Md. 488, 224 A.2d 111 (1966); Ray v. State, 43 Okla. Crim. 1, 276 P. 785 (1929); State v. Seymour, 46 R.I. 257, 126 A. 755 (1924); Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1966); Ware v. State, 110 Tex. Crim. 90, 7 S.W.2d 551 (1928); State v. Shaffer, 120 Wash. 345, 207 P. 229 (1922). Some of the minority courts are: People v. Butler, 64 Cal. 2d 842, 415 P.2d 819, 52 Cal. Rptr. 4 (1966); People v. Burt, 236 Mich. 62, 210 N.W. 97 (1926); O'Bean v. State, 184 So. 2d 635 (Miss. 1966); People v. Alfinito, 16 N.Y.2d 181, 211 N.E.2d 644, 264 N.Y.S.2d 243 (1965).

of the decisions, as the reasoning expressed often ignores key policy considerations.l2 Courts denying review of an affidavit's accuracy generally seem to do so on the rationale that issuance of a warrant is a judicial act in which the magistrate's exercise of his discretionary power should be respected.l3 Courts permitting review usually do so to safeguard personal security from police misconduct.14

The fundamental issue-should a defendant have the right to go behind the affidavit to controvert probable cause-is a problem of constitutional law. As such, it is necessary to look to the underlying policy of the fourth amendment and to the Supreme Court's treatment of analogous problems under that amendment. The logic of the defendant's position is clear. The fourth amendment requires a showing of probable cause; without it a search is invalid. If the absence of probable cause can be shown, the defendant proves the unconstitutional nature of the search. Granting him a chance to make this proof helps assure that searches conform to constitutional standards. But logic alone is not enough. The defendant must also demonstrate that his position effectuates the underlying policy of the fourth amendment, which is the protection of individuals from official misconduct.l5 Only if the defendant can demonstrate the right would further that policy does his logic take on meaning. Therefore, he must make a convincing factual argument that without the right to controvert probable cause, the individual privacy and security guaranteed in the fourth amendment are threatened.'6 12 See

Kipperman, supra note 5, at 829.

13Mascolo, supra note 5, at 18-19; Note, Testing the

L. REV. Factual Basis for a Search Warrant, 67 COLUM. 1529, 1530 (1967). See, e.g., Kenney v. United States 157 F.2d 442 (D.C. Cir. 1946); United States v. Brunett, 53 F.2d 212 (W.D. Mo. 1931); Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1966). 14Mascolo, supra note 5, at 20-22; Note, supra note 13, at 1531. See, e.g., United States v. Dunning, 425 F.2d 836 (2d Cir. 1969); People v. Alfinito, 16 N.Y.2d 181, 211 N.E.2d 644, 264 N.Y.S.2d 243 (1965). 1"Camara v. Municipal Court, 387 U.S. 523, 528 (1967). The Supreme Court has expressed this policy in a variety of ways. In Weeks v. United States, 232 U.S. 383, 392-93 (1914), the Court spoke of putting public officers "under limitations and restraint." This same thinking was evident in Sgro v. United States, 287 U.S. 206, 210 (1932). In Mapp v. Ohio, 367 U.S. 643 (1961), this policy permeated the Court's opinion. It considered the central meaning of the fourth amendment to be securing "the right to privacy free from unreasonable state intrusion." Id. at 654, 657, 660. This no doubt expresses why the fourth amendment is construed liberally in favor of the individual. See Boyd v. United States, 116 U.S. 616, 635 (1886). 6 The Supreme Court has referred to safeguarding

1972]

CONTROVERTING PROBABLE CAUSE

The application of the fourth amendment illustrates this policy at work. It is easy to see the process in the sweeping statements of a case like Mapp. v. Ohio, which holds in favor of a defendant.7 But decisions which hold in favor of the prosecution have been more instructive. They cautiously recognize that the interest of effective law enforcement requires balancing the individual's interest in privacy. Several decisions dealing with the probable cause requirement are illustrative, for at the same time that they hold in favor of the prosecution, they announce important restrictions on police conduct. First, in United States v. Ventrescathe Supreme Court declared the sufficiency of an affidavit "must be tested in a commonsense and realistic fashion"'8 in order to recognize the practical aspects of law enforcement. The Court did not want to encourage police laxity, but instead felt: A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officersfrom submittingtheir evidenceto a judicialofficerbeforeacting.19 Thus, the defendant is better protected by encouraging the police to obtain warrants before

43

they conduct searches by making the standard of proof the same for searches with and without warrants. Although a strict reading might have favored defendant Ventresca in this case by setting him free, in the long run it would prove counterproductive. This form of balancing is typical of the Court's approach of encouraging resort to warrants.20

Though use of hearsay in informant's information has been sanctioned since Jones v. United States,21its use has been carefully circumscribed. Even if the informant's information sufficiently established probable cause, his information must still be corroborated by independent information within the affiant's knowledge.22Use of hearsay was further refined in Aguilar v. Texas23and Spinelli v. United States.24These decisions required two elements for issuance of a warrant: that the affidavit set forth sufficient "underlying circum-stances" for the magistrate to reach an independent conclusion regardingthe validity of the informant's information; and that the affiant support his claims about the informant's credibility or the reliability of his information.25 United States v. Harris26 raises new questions about this area of the law. The Supreme Court dealt harshly with the standard of proof that had evolved under Aguilar and Spinelli, seemingly altering its content.27 But it did leave intact the two-fold nature of the Aguilar inquiry; it is still necessary to test both the validity of the information and the credibility of the informant. In Harris, the Court first extended the Ventresca approach of realistically testing affidavits to the hearsay situation.28 The Court next appears to have altered the substance of the two Aguilar tests. The first test is met when there is a "substantial basis" for crediting the informant's conclusion.29This can include the affiant's personal knowledge of the defendant's past conduct and character, as well as tips from undisclosed sources. As to the second test, the informant's reliability

individual"privacyand security"as the goal of the fourth amendment.Camarav. MunicipalCourt, 387 U.S. 523, 528 (1967). Applicationof this policy has beenparticularlydifficult becauseof the type of cases the fourthamendment involves. Cases raising the probablecause for search issue frequently concern narcotics and gambling charges.People v. Mitchell, 45 Ill. 2d 148, 155, 258 N.E.2d 345, 349 (1970) (Schaefer,J., dissenting).This issue arose with some frequencyduring Prohibition, when defendants were charged with violating some aspect of the liquorlaws. Typical cases are: Schillerv. United States, 35 F.2d 865 (9th Cir. 1929); United Statesv. Brunett,53 F.2d 219 (W.D.Mo. 1931);United Statesv. Boscarino,21 F.2d 575 (W.D.N.Y. 1927).This makes resolutionof the issue appear difficultas the evidenceseizedleaves scant doubt about guilt. People v. Mitchell,45 Ill. 2d at 155,258 N.E.2d at 349 (Schaefer, J., dissenting).The unsavory context should be irrelevant.Constitutionalquestionsoften arisein such circumstances.See United States v. Rabinowitz,339 U.S. 56, 69 (1950)(Frankfurter, J., dissenting).Further, 20See Whitely v. Warden,401 U.S. 560, 566 (1971). the need for tough law enforcementshouldnot infuse 21362 U.S. 257, 271 (1960). "the administrationof justicewith the psychologyand 22 Id. at 269. moralsof war."See On Lee v. United States, 343 U.S. 23 378 U.S. 108 747, 758 (1952) (Frankfurter,J., dissenting).And of (1964). 24 393 U.S. 410 (1969). greatest importance,the fact of "guilt" cannot be 25 Id. at 413. conclusive in a system which renders inadmissible 26403 U.S. 573 (1971), noted 62 J. CRIM. L.C. & evidenceseized unconstitutionally.Mapp v. Ohio,367 U.S. at 655. The issue is not culpability;ratherit is P.S. 485 (1971);85 HARV.L. REV.53 (1971). 27 See 62 J. CRIM. L.C. & P.S. at 486, 488. what type of searchmay produceconviction.That an 28 403 U.S. at 579. The Courtreverseda lower court illegal searchproves successfulshouldnot bootstrapit decisionthat failed to treat "prudent"as the practical to respectability. 17367 U.S. at 655. equivalent of "truthful" for purposes of testing an 18380 U.S. 102, 108 (1965). affidavit. 19Id. at 108.

29Id. at 581.

44

COMMENT

can be established without any reference to past utility or reliability.30 The "likelihood" that the recited events were within the informant's knowledge satisfies this obligation. This sanctioning of hearsay evidence recognizes the great value of informants in aiding effective law enforcement.3 That its use is not unrestricted, as Jones, Aguilar, Spinelli and even Harris indicate,32 reflects the balance struck between the interest of effective law enforcement and the policy underlying the fourth amendment-preventing official misconduct. Finally, in McCray v. Illinois the Supreme Court permitted arrest and incidental search without a warrant on the basis of an informant's information.33The opinion makes it clear that the police conduct would have been illegal if it had not also been sufficient under the law governing arrest and search with a warrant; the police had probable cause, since the informant's information met the relevant Aguilar tests governing use of hearsay.34 Although the Court held against the defendant, the decision significantly refused to permit warrantless searches to be ruled by less exacting standards than searches with warrants. Seen in this respect, the decision resembles Ventresca.35 It cautiously recognizes the importance of vigorous law enforcement while carefully accommodating that need within the larger goal of the fourth amendment's protection of individual privacy. These cases illustrate that the Supreme Court often strikes a balance between the interests of individual privacy and effective law enforcement. It is evident that when possible, the Court will accommodate both interests; if that is impossible, the Court will recognize both interests to the extent feasible. The analogy provided by these cases is helpful for resolving the issue of controverting 30Id. at 581-82. 31Comment,Informer'sWordas theBasis Probable for

Cause in the Federal Courts, 53 CALIF.L. REV. 840

[Vol.63

probable cause, since these same interests compete with respect to it. The test of reasonableness frames the balance between the interests of effective law enforcement and of individual security, for the fourth amendment only condemns unreasonable searches.36 Reasonableness is a matter of establishing probable cause, and the Supreme Court's analysis of probable cause follows this balancing process. It is clearly established that probable cause only exists when the facts related by an affiant are sufficient to warrant an inference by a prudent man that a crime has been committed or is in progress.37 Further, only the facts disclosed by the affiant before the magistrate are relevant to this determination.8 This is to insure that searches are based on facially sufficient affidavits, in accordance with constitutional standards. On the other hand, the disclosed facts need not meet the reasonable doubt test required for conviction,39 and the evidence does not have to be legally competent for trial.40 These are concessions to the practical needs of law enforcement. There is no easy formula for judging what is reasonable41since the Supreme Court has declared that the standard of reasonablenessis the presence of probable cause.42 Further, the reasonableness inquiry is a factual one.43Thus, the existence of probable cause is a question of fact that determines the reasonableness of a search. This is the light in which the affiant's allegations are evaluated. Since reasonableness operates in light of what is probable cause, and since reasonableness is essentially a factual inquiry, that inquiry should be challengeable factually. If the alleged facts are inaccurate, probable cause does not exist. Denying the defendant the right to go behind the affidavit to prove factual inaccuracy in unreasonable, for denial of that opportunity potentially labels an untruth a "fact" that is capable of producing incriminating evidence. Permitting the defendant the right to go behind the affidavit helps prevent the sanctioning of searches without probable 36 United States v. Rabinowitz,339 U.S. at 65. 37Ker v. California,374 U.S. 23, 33 (1963). 38UnitedStates v. Ventresca,380 U.S. at 109.

(1965): The informeris a valuablepart of the law enforcement effort, particularlyin those areas of crime wherethe premiumis on secrecyand the outsider findsit difficultor impossibleto obtaininformation and evidence. Id. at 840. 32See Note, TheInformer'sTip as ProbableCausefor Search or Arrest, 54 CORNELL L.Q. 958 (1969). The 39Id. at 108. authordiscussesthe restrictionsplacedon use of hearsay 40Id. and considers Aguilar sensible and the subsequent 41UnitedStatesv. Rabinowitz,339 U.S. at 63. 42Camarav. MunicipalCourt,387 U.S. at 534. refinementmadeby Spinelliconfusing.For a discussion of Harris,see Note, supranote 26. 43Ker v. California,374 U.S. at 33; UnitedStates v. 33386 U.S. 300 (1967). Rabinowtiz,339 U.S. at 63; Go-BartImportingCo. v. 34 Id. at 304. United States, 282 U.S. 344, 357 (1931). Cf. Vale v. 35See text accompanyingnotes 28-30 supra. Louisiana,399 U.S. 30, 36 (1970)(Black,J., dissenting).

19721

PROBABLE CAUSE CONTROVERTING

45

fendants needed a hearing to expose unreasonable police conduct which failed to meet fourth amendment standards. A second consideration is that controverting probable cause would curtail abuse of "information and belief" affidavits. These do little more CONTROVERTING CAUSE:A MEANSOF than recite: "On the basis of information, I bePROBABLE MISCONDUCT PREVENTING OFFICIAL lieve. . . . 48 The issuance of such warrants depends entirely on the affiant's credibility. If the The defendant can offer several convincing thinks him credible, his decision seems magistrate the the to accontrovert reasons favoring right reasonable in retrospect because the and justified curacy of an affidavit establishing probable cause. search subsequent happened to be productive. The following five situations illustrate how the The defendant have no reason for challengwould policy of the fourth amendment may require the the if the decision search were not productive. ing use of a hearing challenging an affidavit's accuracy. a end result is used to justify a Thus, productive They suggest that withholding this right permits means. The vice of inunconstitutional possibly official misconduct inimical to the individual belief formation and the difficulty of affidavits, privacy guaranteed by the amendment. a person labels his "belief,"49 is what disproving The right to controvert probable cause factually well illustrated by United States v. Hood.50There should first of all help hold the police to a high F.B.I. agents stated, without giving their reasons, standard of accountability, in accordance with the their belief that two of three informants were refourth amendment's policy of preventing official liable. Reasons for a third informant's reliability misconduct. The Second Circuit recognized the were given. Neither affiant had ever spoken to one importance of this consideration in United States of the first two informants, and only this informv. Freeman: ant's information actually placed the stolen property on defendant's premises.51Despite the lack Such a procedurewould diminishthe dangerof a of support for this informant's allegations, the warrantissuingon an officer'sgood faith misjudgment as to the reliabilityof an informant,as well affiants' belief was held reasonable in the context52 as dangersof policelaxity or bad faith.4 -the informant had been correct. Thus, a successful search excused an affidavit that was conThe cases illustrate the need for rigorous inquiry cededly insufficient in key respects,53simply beinto probable cause in order to hold police to high cause the affiants had limited their recital to standards. In People v. Butler5 a deputy sheriff "belief." obtained a warrant by claiming in his affidavit Third, the defendant should be able to challenge that he possessed information from a reliable inprobable cause factually where he can prove the formant when in fact he had crawled under the affidavit was perjured. A lying affiant conceals the defendant's house and looked up through cracks absence of probable cause, though its presence is in the floor. The affiant thus misrepresented how information of illegal possession of marijuana was fer to the Kenneydecision,which is still the rule in the District of Columbia.United States v. Gianaris, gained. United States v. Henderson46involved a 25 F.R.D. 194, 195 (D.D.C. 1960). search for gambling paraphernalia. The affidavit 48This was the substanceof the affidavitin Ray v. recited that defendant had a previous record of State, 43 Okla.Crim.1, 276 P. 785 (1929).The affiant cause to believe and do recited: "I have lottery law violations. The district court sup- believe" that Rayprobable illegally possesses liquor on his pressed the evidence because the police had "mis- premises. 49Id. at 789 (Davenport,J., dissenting). takenly identified the defendant as another person 50422 F.2d 737 (7th Cir. 1970). with the same name," and because the defendant 51Id. at 743 (Will,J., dissenting). 52 d. at 739. actually had no prior record.47Both of these de63Id. Anotherreadingof this case is possible,namely 4358 F.2d 459, 463 n. 4 (2d Cir. 1966). that the insufficientreliabilityof two informantswas 4564 Cal.2d 842,415 P.2d 819, 52 Cal.Rptr.4 (1966). nevertheless sufficient to corroborate information 46 17 F.R.D. 1 (D.D.C. 1954). suppliedby a thirdinformant.This readingde-empha47Id. at 2. The courtpermittedchallengeof probable sizesthe factsJudgeWillnotedin his dissent.Id. at 743. cause although the District of ColumbiaCircuitdoes At any rate, this case providesexcellentillustrationof not so allow. Kenney v. United States, 157 F.2d 442 the pressuresto validatea productivesearchwhen the (D.C. Cir. 1946). The Hendersoncourt did not re- affiantreciteshis "belief."

cause. This logic has the ring of common sense, but it is only constitutionally compelling if the defendant can prove that withholding the right leaves room for official misconduct that is destructive of individual liberty.

46

COMMENT

the necessary element for valid searches.54 In light of the policy expressed by the Supreme Court in Mapp v. Ohio, the New York Court of Appeals has viewed preventing use of perjured allegations as the decisive factor favoring controversion of probable cause.55This problem is well illustrated by Jackson v. State,56where the item of the search, a safe, was known by the affirming policeman not to be in the house where he said it was. Furthermore, the officer did not reveal his reliance on an informant. The defendant moved to suppress because of the inaccurate allegations, but since the affidavit was sufficient on its face, the court refused to let him go behind it to prove falsity, and thus to invalidate the search.57In other words, there was a distinct possibility that a perjured affidavit led to conviction. Though prosecution for perjury might seem a sufficient deterrent to this form of misconduct, as a matter of fact it is not. This statutory alternative is not sufficiently reliable, and it does not reach such problems as inaccuracy because of the intent requirement. Illinois' procedure points up both difficulties.58Criminal prosecution generally may be begun by complaint, information, or indictment.59Perjury is a felony in Illinois,60so its prosecution must begin with a grand jury indictment.6l Clearly, this remedy is only meaningful if the state's attorney chooses to charge the affiant and the grand jury concurs.62But this sets up a conflict of interest since it is the prosecution which

[Vol.63

benefits from the perjured affidavit. Futhermore, the Illinois statute covers only intentional misrepresentation.63 Similarly, the prosecutor generally has the power to block informations and complaints. It is therefore necessary for the defendant to be able to controvert probable cause in order to deter use of perjured affidavits. Fourth, the right to controvert probable cause is a necessary auxiliary safeguard when affidavits are based on hearsay evidence.64 Since Jones v. United States, hearsay furnished by informants has been a permissible basis for an affidavit.65 Aguilar, Spinelli and Harris have refined the use of hearsay that Jones permits,66by requiring that the affidavit set forth enough "underlying circumstances" for the magistrate to evaluate the informant's conclusion and that the affiant support his claim of the informant's credibility or the information's reliability. The dual nature of this probable cause inquiry remains intact after Harris, although the content of these tests appears changed substantially.67 Admittedly, these tests are not easy for a court reviewing the magistrate's decision to apply, so the opportunity to go behind the affidavit before trial becomes critical in this type of situation. For instance, if the affiant claims the informant is reliable because of his past value to the police, the magistrate ought to probe the extent and nature of the claim of past value without being prompted by anyone. Should the magistrate fail to do so on his own, the defendant should have the right to challenge the informant's 64When a policemanis the lying affiant,a related value.68 Without such an opportunity to past This arises. of official misconduct into issue brings play 63 of fourth the amendment. basic See note 15 the policy Peoplev. Bak, 45 Ill. 2d at 144,258 N.E.2d at 343. 64O'Bean v. State, 184 So. 2d 635 (Miss. 1966). supra.The basicproblemdiscussedin the text, perjured 65362 U.S. at 271. affidavits,ariseswhetheror not the affiantis a police66Seetext accompanyingnotes 21-30 supra. man. 67 55Peoplev. Alfinito,16 N.Y.2d 181, 186,211 N.E.2d Spinelliv. United States, 393 U.S. at 413. These tests of Aguilarwere extendedto searchesand seizures 644, 646, 264 N.Y.S.2d243, 246 (1965). 66 365 S.W.2d935 (Tex. Crim.1963). without warrantsin McCrayv. Illinois,386 U.S. 300, 7Id. at 938. 304 (1967). See notes 26-30 supra and accompanying 56When that state rejecteddefendant'sposition in text, whichindicatethe contentof thesetests may have a recentcase, it did so in part on the assumptionthat been changedby Harris,althoughthe dual nature of the perjuryremedywas an adequatesafeguard.People the inquiry remainsintact. If Harris is viewed as a v. Bak, 45 Ill. 2d 140, 144,258 N.E.2d 341, 343 (1970). weakeningof Aguilar and Spinelli, this effect might 69ILL. REV. STAT.ch. 38, ? 111-1 (1969) properlybe an additionalfactor in favor of granting 60Id. ?? 2-7, 32-2. defendant'sright to controvertprobablecause. Their 61Id. ? 111-2. right wouldcompensatethe defendantfor the reduced 62It is the state's attorney who presents evidence to protectionwhen hearsayis used, since the laxity sancthe grandjury, and he, his reporterand other court- tioned by Harris, making affidavitsmore subject to authorized persons are the only non-jurors who may abuse, needs a corrective-the right to controvert attend grand jury sessions. For the grand jury to probablecause. 68 If the affiant claims the informantis reliable to conduct its own investigation, good cause must be shown and the petition for appointment of investigagive informationconcerninggambling,and if the affiant tors must be signed by the foreman and eleven other also claims the informanthas proved reliablein the jurors; appointment of the investigators then is discre- past, someonetesting reliabilitymight want to know tionary for the court. Id. ?? 112-4-6. Thus for all practi- such facts as whetherthis informantled to arrestsor cal purposes, the state's attorney determines what the convictionsin the past and for what types of offenses. If the informanthad been used previously only in grand jury shall consider.

1972]

PROBABLECAUSE CONTROVERTING

47

controvert probable cause, implementation of the mistakes do not result from the sort of official misconduct that argues in favor of holding police to Aguilar inquiry is jeopardized.69 The critical nature of this opportunity was high standards or from the use of perjured allegaevident in United States v. Pearce.70In that case tions that conceal the absence of probable cause. the affiant claimed he received his information Further, this form of inaccuracy does not involve from an informant named John Pearce. The court the often inexcusably vague information and beallowed a factual challenge to the existence of lief affidavit, since the problem here is not the lack probable cause.71 The defendant used the hearing of allegations, rather their inaccuracy. This probto prove that John Pearce had not in the past lem is also distinct from the problems of hearsay, proved reliable, as alleged, that no one in the which basically concern inadequacy rather than inF.B.I. had known or talked to Pearce previously, accuracy. Saying that probable cause exists when and that they therefore could not attest to his it might be established that that conclusion was reliability. In other words, the defendant showed an unreasonableone to make subverts the purpose the lack of a reasonable basis for thinking Pearce of the fourth amendment, for the inaccuracy of an credible or his information reliable, so that the important element of the affidavit indicates the affiant failed to satisfy the second Aguilar test absence of probable cause. This form of negligence which requires a showing of credibility or re- generally follows one of two patterns. The first type of inaccuracy involves erroneous liability. Without the opportunity to controvert probable cause, the warrant would not have been identification of the affiant. Identity is important since the magistrate must determine the affiant's quashed nor the evidence suppressed. Finally, challenging the accuracy of the affi- credibility. The importance of this was shown in davit is a means of minimizing the odds that King v. United States,7 where a Ruth Douglas had negligent errors may produce conviction.72 Such signed the affidavit. When the defendant chalnarcoticscases, however,his value in a gamblingcase lenged it, the only known Ruth Douglas in the may well be doubtful. This exampleis promptedby vicinity testified she had not signed it. She was the ChiefJusticeBurger'ssuggestionin Harristhat recitation of reliabilityis sufficientif the events are likely to only person in a position to have made the allegabe withinthe informant'sknowledge.403 U.S. at 582. tions establishing probable cause with reasonable 69 O'Beanv. State, 184 So. 2d at 638. To reachthis and the affidavit was the sole basis for accuracy, conclusion,the MississippiSupremeCourt overruled well-establishedprecedent in its state practice. See the warrant.74The government failed to produce Mai v. State, 152 Miss. 225, 119 So. 177 (1928), re75 affirmedin Henryv. State, 174So. 2d 348 (Miss.1965). its "Ruth Douglas." Without a hearing challengTo the court, this choice seemedobviouslynecessary ing probable cause these facts could not have been underthe fourthamendment. developed, and defendant's conviction for violat70 275 F.2d 318 (7th Cir. 1960). 71Id. at 322. "That such a hearing was proper is ing the liquor laws would have been sustained. hardly open to question." The opportunity to go behind the affidavit, thus, 72 Kipperman,supranote 5, classifiesthree types of inaccurateaffidavits.The first, intentional misstate- was crucial for exposing an error. The second type of inaccuracy concerns errors ment, presentsno problem;suppressionis automatic. Id. at 831. With regardto negligent assertions,supthe allegations. Burrell v. State aptly demonin pressionoccursonly if the erroris material.Id. at 832. For a third category, innocent misrepresentation, competentevidenceshouldnot be excluded.Id. at 832. ard for measuringreasonablenessis probable cause, He argues that this third category is distinct from and that in turn becomesa factual matter. See text the second because the police cannot operate with accompanyingnotes 41-43 supra.In this respect,any perfect knowledge and because he finds the fourth material error shows the absence of probablecause, amendment does not proscribe inaccurate searches, thus that the searchwas conductedunconstitutionally. 7 282 F.2d 398 (4th Clr. 1960). only unreasonableones. Id. at 832-33. 74Id. at 399. As a desirablepracticalconsideration,however,sup75Id. A similar problem existed in United States pressionshould result wheneverthe erroris material. Determinationof materialerrorhingeson a "but for" ex rel. Pugh v. Pate, 401 F.2d 6 (7th Cir. 1968).There test. When the warrantwould not have been issued the affiantuseda fictitiousnameand signature.Id. at 7. "but for" the allegation, the allegation is material. As in King, the affiant'sidentity was a criticalfactor; The harm to the individualthroughmaterialerroris the courtheld it couldnot be concealedwithoutviolatjust as greatin the thirdcategoryas in the second,and ing the fourthamendment.Id. at 8. In Dixonv. United it is the interest of the individual that the fourth amend- States, 211 F.2d 547 (5th Cir. 1954), the Fifth Circuit ment protects. See note 15 supra and accompanying wouldnot granta probablecausehearing,even though text. In any event, the police should be held to a high the affiantcould not be found after being subpoenaed standard of accountability. See notes 44-47 supra and and the defendantproposedto offerevidencedenying accompanying text. Although it is true that the fourth the affiant'sidentity.If therewereerror,the defendant amendment only bans unreasonable searches, the stand- neverhad the chanceto prove it.

48

COMMENT

strates this difficulty.76A key allegation in the affidavit was that one defendant was in Baltimore on certain days, since his allegedly observed actions there were a substantial part of the probable cause showing77 Another defendant offered evidence to disprove this point, and thus to show the absence of probable cause. When she moved to introduce this evidence, the court refused her a hearing, relying on earlierprecedent78that limited examination of probable cause to the affidavit's sufficiency.79The first defendant was ultimately convicted of violating Maryland's lottery laws on the basis of the evidence seized in the search. The conviction resulted even though she may have possessed information proving that the search was conducted illegally. To argue that the fourth amendment requires a hearing to controvert the accuracy of an affidavit, the defendant must show that such a hearing advances the policy of the fourth amendment. In other words, he must demonstrate that the hearing is necessary to protect his individual liberty from searches without probable cause. The five factors explored in this section suggest reasons why such a hearing may be necessary. It would help hold police to a high standard of accountability, furthering the policy condemning official misconduct. Similarly, a hearing may curtail abuse of "information and belief" affidavits. A hearing may be necessary to deter perjured allegations. It also provides an auxiliary safeguard when officers use hearsay to obtain a warrant. Finally, controverting probable cause reduces the odds that an inaccurate warrant may produce a conviction. These considerations all demonstrate the importance of factually controverting probable cause to deter searches that fall below constitutional standards, since there is no other practical alternative.

[Vol.63

practical objections to a right to controvert probable cause based on the valid competing interest of effective law enforcement. These objections should not defeat the right, but should instead govern its procedural exercise. In addition, because proof of factual inadequacy aims at suppression, the procedural formulation should not depart substantially from current suppressionprocedure.80 The determination of the affidavit's accuracy is preferably a pre-trial matter.81Such a determination expedites the handling of the case and eliminates a special problem courts have found with this area of the law. Courts in Texas82and Kentucky,83when faced with motions to suppress during trial, have felt that granting the right to controvert probable cause creates confusion and disorder in the judicial process, thus obscuring the issue of defendant's guilt.84 A pre-trial suppression hearing would avoid this problem, however, since the issue of guilt is not involved and the only concern of the hearing is to determine the single issue of a search's legality.85

80 See, e.g., FED. R. CRIM.P. 41(e). 81 This is the policy in federal practice: The motion [to suppress] shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing. FED. R. CRIM. P. 41 (e). The Espionage Act of 1917, see note 9 supra, the predecessor to Rule 41 (e), was similar. The Supreme Court interpreted it to mean that the defendant was permitted to controvert probable cause. Steele v. United States (No. 1), 267 U.S. 498, 501 (1925). The Advisory Committee on Rules believes that Rule 41(e) "is a restatement of existing law and practice," with one exception not relevant to this comment. 18 U.S.C. ? 3764. Although the Supreme Court holds that defendant's right is an open question, see note 9 supra, the Steele decision and the Advisory Committee's position together suggest that Rule 41(e) could currently be used as a statutory grant of defendant's right. 82 Ware v. State, 110Tex. Crim. 90, 96, 7 S.W.2d 551, 554 (1928). More recent cases restate the Ware court's conclusion. Griffey v. State, 168 Tex. Crim. 338, 327 S.W.2d 585 (1959); Hernandez v. State, 158 Tex. Crim. THE PROCEDURALFORMULATION:A MEANS OF 296, 255 S.W.2d 219 (1952). 83Bowen v. Commonwealth, 199 Ky. 400, 401, 251 PRESERVINGEFFECTIVELAW ENFORCEMENT S.W. 625, 625 (1923). Kentucky continues to adhere to Deciding that defendants should be able to go this rule. Mattingly v. Commonwealth, 310 Ky. 651, 221 S.W.2d 82 (1949). behind the affidavit to controvert probable cause 84See Bowen v. Commonwealth, 199 Ky. 400, 251 does not determine how that right should be exer- S.W. 625; Ware v. State, 110 Tex. Crim. 90, 7 S.W.2d 555. cised. The analysis of the policy question centered 88 Michigan has adopted such a procedure, and thus on protecting personal security. A number of avoids the practical objections raised by courts like courts, however, have raised several thoughtful, those in Texas and Kentucky. People v. Burt, 236 Mich. 62, 74, 210 N.W. 97, 101 (1926). Michigan is sometimes 76207 Md. 278, 113 A.2d 884 (1955). considered to have foreclosed such a factual mistakenly 77 Id. at 279, 113 A.2d at 884. challenge to probable cause. See, e.g., State v. Seymour, 78 Id. at 281, 113 A.2d at 885. 46 R.I. 257, 260, 126 A. 755, 756 (1924); G. THORPE, 71 Smith v. State, 191 Md. 329, 335, 62 A.2d 287, PROHIBITION AND INDUSTRIALLIQUOR410 n. 37 (1926). 289 (1948). One federal court fell into this error, despite the author-

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CONTROVERTING PROBABLECAUSE

A defendant should be required to raise some doubt about the affidavit by use of extrinsic evidence before any hearing is granted. What constitutes "some doubt" is not easy to resolve. It would not be the equivalent of a judge's suspicion that all was not right with the affidavit. That is really a matter of facial sufficiency, for the judge's suspicion indicates only that the affidavit is internally inconsistent or so lacking in substance as to be no more than conjectural. Basically, "some doubt" must be raised by extrinsic evidence that suggests the affidavit is partially or wholly inaccurate in fact. Many of the cases referred to above demonstrate what type and quantity of evidence could raise some doubt, e.g., that the property was not where it was said to be, as in Jackson v. State,86that the defendant was not where he was said to be, as in Burrell v. State,87or that the origin of the information was not as alleged, as in People v. Butler88All these examples indicate that "some doubt" would be a question of fact.89 ity of Steele v. United States (No. 1), 267 U.S. 498, whenit usedThorpe'streatiseas authorityfor denying the defendant'sright.UnitedStatesv. Brunett,53 F.2d 219, 225 (W.D. Mo. 1931).This confusionlikely results fromtwo factors:the specialproblemposedby Prohibition, Peoplev. Oaks,251 Mich. 253, 254, 231 N.W. 557, 557 (1930),and a line of casesconcerningarrestinstead of search warrantsbeginningwith People v. Lynch, 29 Mich. 274 (1874). The Illinois SupremeCourt relied heavily on decisions from Texas and Kentuckyfor authoritywhen it denieddefendant'sright. Peoplev. Bak, 45 Ill. 2d 140, 143, 258 N.E.2d 341, 342-43 (1970). However, the Illinois court disregardedthe proceduraldifferences betweenits practiceand that of Kentuckyand Texas at the time of the cited decisions,althoughthe Illinois suppressionstatute providesa separatehearing,much like Rule 41(e) in federalpractice.ILL.REV.STAT.ch. 38, ? 114-12(1969). 86See text accompanyingnote 56 supra. 87See text accompanyingnotes 7679 supra. 88See text accompanyingnote 45 supra. 89A further difficultywith this standardis how it would operatein conjunctionwith judicial discretion. A judge would undoubtedlyhave some discretionto determinewhen "some doubt" is shown to exist, and discretionaryacts are not reversedunlessthe discretion was abused.See UnitedStatesv. Haskins,345 F.2d 111, 112-13 (6th Cir. 1965); Castle v. United States, 287 F.2d 657, 661 (5th Cir. 1961);Evans v. United States, 242 F.2d 534, 536 (6th Cir. 1957).Becauseof this, some courtsmight be inclinedto use the "somedoubt"test as a means for underminingthe grant of defendant's right to controvertprobablecause. This is something, however,that can only be determinedwith experience as to how the right operates. Presently, there is no empiricalfoundationfor eliminatingthe "somedoubt" test because of potential judicial hostility. Should hostility develop, this part of the proceduralformulation shouldbe re-examined. This test was first used in United States v. Halsey, 257 F. Supp.1002 (S.D.N.Y. 1966).Althoughthe prob-

49

One consideration behind the some doubt test is avoidance of routine use of hearings to controvert probable cause.90Requiring that some doubt first be raised would tend to prevent going behind the affidavit in every case as a matter of course, whether or not it served any legitimate defense purpose.91Otherwise the hearing may simply be a "fishing expedition" which wastes judicial resources92 without advancing the policy of the fourth amendment. The requirement that some doubt be raised also offers a measure of protection to police informants. They may be used and their identity kept secret, unless there has been a showing that disclosure is necessary to assist the accused.93Jones, Aguilar, Spinelli, Harris and McCray suggest that disclosure should not be routine, since they provide, in effect, alternatives to disclosure in analogous situations. Requiring that some doubt be raised should avoid routine disclosure. This would answer the fear expressed by some courts that controversion of probable cause would inevitably lead to disclosureof all informants. These courts reason that disclosure threatens police practice with a dilemma: disclose, and destroy an informant's utility, or conceal, and limit his utility to a "lead." 94The McCray decision, however, plainly indicates that if disclosure is necessary, the concealment privilege vanishes.95 A useful guide for judging when disclosure is necessary would be the some doubt requirement proposed here. In this fashion disclosure would not become routine, and the utility of informants would not be diminished seriously. In a hearing challenging probable cause the defendant should bear the burden of proof. The suppression remedy generally requires this of a defendant, since he is the moving party96 and lems raisedin this commentwere not considered,this standardwas approvedin Note, supranote 13, at 1537. 90United States v. Halsey, 257 F. Supp. at 1005, approvedin United States v. Dunning,425 F.2d 836, 840 (2dCir.1969);seealsoUnitedStatesv. Warrington, 17 F.R.D. 25 (N.D. Cal. 1955). 91Id. at 30. 92United States v. Halsey, 257 F. Supp.at 1006. 93See McCrayv. Illinois,386 U.S. 300, 310 (1967). 94See, e.g., State v. Brunett, 42 N.J. 377, 385, 201 A.2d 39, 43-44 (1964). Decisionslike this rest on the implicitassumptionthat confidentialityis vital for all informants.There is an obvious need for some confidentiality,but it is pure speculationto hold the need is so great that the defendantshouldhave no right to controvertprobablecause. 96See 386 U.S. at 310. 96Wilsonv. United States, 218 F.2d 754, 757 (10th Cir. 1955).

[Vol. 63

COMMENT

50

since a warrant is valid until challenged.'7 The Ninth Circuit has stated the general rule that the defendant who seeks to suppress evidence has the burden of showing the absence of probable cause.9 Other courts agree with this general rule,"9including those specifically extending the inquiry to lack of probable cause in fact.100Placing the burden on a defendant appropriately respects the prior determination of the issuing magistrate.'"' There is no occasion for going behind the affidavit after two judicial officers have already determined its sufficiency-the magistrate in issuing the warrant, and the judge to whom the suppression motion is made-unless the defendant bears the burden of proof. Thus, doubtful cases should be resolved in favor of an affidavit's accuracy. And if the defendant meets his burden, his remedy will be suppression of the evidence.02 97United States v. Thompson,421 F.2d 373, 377 Cir. 1970). (5th 98Chin Kay v. United States, 311 F.2d 317, 321 (9th Cir. 1962). 99See, e.g., United States v. Lyon, 397 F.2d 505, 508

(7th Cir. 1968); People v. Phillips, 163 Cal. App. 2d 541, 546, 329 P.2d 621, 623-24 (1958). 100See United States v. Nagle, 34 F.2d 952, 954 (N.D.N.Y. 1929);Peoplev. Alfinito,16 N.Y.2d at 186, 211 N.E.2d at 646, 264 N.Y.S.2d at 246. Reactionto this allocationof the burdenof proof is mixed. It is criticizedas "a substantialbarrierfor an accused"to overcome. Note, Criminal Procedure, 15 BUFFALO L.

REV.712, 718 (1966).It has beenpraisedas an effective means of avoiding "overstrictrule" for construing

warrants, Note, Defendant's Right to Controverta Warrant Valid on Its Face, 34 FORDHAML. REV. 740, 746

(1966),and for its consistencywith the goal of "effective law enforcement,"Note, Criminal Procedure:

Search & Seizure-Right to Challenge Truth of A fidavit L. Q. 822, 825 (1966). These for Warrant, 51 CORNELL

CONCLUSION

The right to controvert probable cause in fact is only constitutionally significant because of the policy of the fourth amendment. Its aim is to protect personal security from police misconduct.'03 That protection should embrace the right to controvert probable cause in order to promote a high standard of police accountability, to curtail abuse of vague "information and belief" affidavits, to provide a safeguard when affidavits are based on hearsay, to prevent use of perjured affidavits and to minimize the consequences of baseless warrants. These factors reveal the necessity of using the right to controvert probable cause as a means for preventing official misconduct. Objections to this right reflect the needs of effective law enforcement, ranging from the possibility of judicial disorder to the problem of informant identity. They show concern about the practical drawbacks of granting the right to controvert probable cause without limitation. When properly evaluated, these objections help decide the fashion in which the right should be exercised. The procedural formulation outlined above seeks to accommodate these objections to the policy of the fourth amendment. The accommodation suggested here should minimize the risks posed to effective law enforcement. Affirming the right to controvert probable cause factually advances the policy of the fourth amendment. In light of Mapp v. Ohio, any other result is inconceivable, so long as there is recognition of the interest of effective law enforcement.

discussionsall deal specificallywith the Alfinitodecision.

tive. Id. Moreover, he argued the alternatives are superior,id. at 420, such as his suggestionof a quasi101See, e.g., Owens v. State, 217 Tenn. 544, 399 judicialremedyagainst the governmentfor an officer's S.W.2d 507 (1966). This case, while illustratingthe misconduct.Id. at 422-24. See 62 J. CRIM.L.C. & point, grantsthe magistratenearlycompletediscretion, P.S. 480 (1971)for a discussionof Bivens. as Tennesseeis a state denying factual challengesto A numberof argumentshave beenadvancedagainst the exclusionof competentevidence,that it does not probablecause.See note 11 supra. 102Suppressionhas been the federal remedy since determisconduct,that the publicinterestsuffersby it, Weeks v. United States, 232 U.S. 383 (1914). The that the rule is overly technical,that determinationof federalrulesfor criminalprocedurespecifyit. FED.R. "reasonableness"is difficult and that it encourages CRIM.P. 41(e). The Supreme Court extended the rule police corruptionand politicalfavoritism.See generally to state practicein Mappv. Ohio,367 U.S. 643 (1961). Peterson, Law & Police Practice: Restrictionsin the Law The exclusionaryrule is coming under increasing of Search & Seizure, 52 Nw. U.L. REV. 46 (1957). On the other side it has beenarguedthat the exclucriticism,however.The most recent exampleis Chief Justice Burger's dissent in Bivens v. Six Unknown sionaryruleis effective,that otherremediesareinferior, Named Agents, 403 U.S. 388 (1971). He arguedthat that it is an essentialsafeguardof personallibertyand the only sensiblerationalefor it is deterrenceof police that it promotes even-handedjustice. See generally misconduct.Id. at 415. In that respectit has been a Paulson, Law & Police Practice: Safegua/ds in the Law failure. The rule was "hardly more than a wistful of Search & Seizure, 52 Nw. U.L. REV. 65 (1957). dream," "conceptually sterile" and "practically" ineffec-

103 See

note 15 supra.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright O 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

RECENT TRENDS IN THE CRIMINAL LAW was held liable under ? 1983 for injuries resulting In Carter v. Carlson, 447 F.2d 358 (D.C. Cir. from a shooting incident because of his negligent failure to train or supervise his guards in the use 1971), the District of Columbia Circuit found that a common law tort action and a 42 U.S.C. ? 1983 of weapons.5 The claim against the District of Columbia was civil rights action could be maintained against an on the theory of vicarious liability for the founded individual policeman, his superior officers, and the District of Columbia in a suit based on false ar- torts of the police officers and on the theory that rest and assault. Plaintiff's action against the ar- the District was negligent in its duty to supervise and control the police officers. The District resting officer alleged negligence in making his asserted its sovereign immunity as a defense arrest without probable cause and assault. The court rejected the argument that the officer was against these claims. The court, however, noting insulated from liability by the doctrine of official that the arresting officerwas liable for false arrest, reasoned that no substantial threat to the effiimmunity, finding instead that his actions constituted a "ministerial" rather than "discre- ciency of government would result from likewise on the District.6 For purposes tionary" function.1In reaching this conclusion the imposing liability of the sovereign immunity doctrine, the court held court asserted that the distinction between "disthat the making of an arrest was a ministerial cretionary" and "ministerial" functions did not As to the District's vicarious liability function.7 rest on whether the officer was exercising discrefor the police officials' conduct, the court felt that in his but an upon actions, tionary judgment examination of the precise function and a deter- imposition of individual liability on them would mination as to whether the officer'sproper exercise necessarily also result in the District's liability; of the function would be unduly inhibited by the but that even lacking individual liability, the Disthreat of tort liability.2 Likewise the court found trict might be held liable if such a decision would that the officer was not protected by official im- not impair its governmental performance.8 The resolution of this question was left to the trial munity from plaintiff's federal statutory claim. The action against the precinct captain and the court. Similarly the court held that the efficacy of the sovereign immunity defense to the claim of police chief alleged liability based on their negliin and training the arrestgence in the exercise of their duties to train and negligence supervising officer on whether the District's ing depended supervise the arresting officer. The court ruled of exercise that was a "ministerial" or "disduty that plaintiff's recovery under his common law function.9 cretionary" tort theory depended on whether defendants' exThe court also found that the District could be ercise of their duties to train and supervise conliable under 42 U.S.C. ? 1983 despite the held stituted a "ministerial" or "discretionary" funcCourt's ruling in Monroe v. Pape.? LimSupreme tion; and, rather than reach this question, the Monroe to its facts, the court felt that 42 iting court left it open for the trial court to decide after U.S.C. ? 1988 provided authority for the concluBut the asserted that court appropriate discovery.3 the officers could be held liable under ? 1983 for sion that local common law rather than federal law the question of municipal immunity in any negligent breach of their duties that may have governed 5 resulted in the deprivation of plaintiff's constituShortly after the Carterdecision the District of ColumbiaCircuitextendedthe scope of its holdingto tional rights.4 In reaching the conclusion that the include prison guards. In Baker v. Washington,448 official immunity doctrine was not a shield to de- F.2d 1200 (D.C. Cir. 1971), the court ruled that a fendants' liability the court relied heavily upon a prison guard could not escape liability for negligence underthe officialimmunitydoctrine. 6 Roberts v. FALSE ARREST

recent decision,

Williams, _

F.2d _,

447 F.2d at 366.

(5th Cir. 1971), where a prison superintendent 1447 F.2d at 362, 366. 2Id. at 362. 3 Id. at 363-64.

7Id.

8 Id. at 367.

9Id. at 368. 0365 U.S. 167 (1961). The Supreme Court in Monroeheld that the city of Chicagowas not a "per-

4 Id. at 365.

son" against whom suit could be brought under ? 1983.

51

COMMENT

52

[Vol.63

a ? 1983 action. Futhermore, the court asserted that the unique character of the District distinguished it from the ordinary municipality that had been involved in Monroe. Thus upon proving a deprivation of his constitutional rights-either by the negligence of the District or the police officersplaintiff was entitled to recover under ? 1983 against the District.

sive quality.16Second, the court rejected the argument that marijuana use often led to the use of heroin.7 Therefore the court concluded that the classification of marijuana with the "hard" drugs under the Narcotic Drug Act, and the consequent penalties arising therefrom, was unreasonable and a violation of the equal protection clause.

:MARIJUANARECONSIDERED

PROBATIONAND PAROLE RIGHTS

The Illinois Supreme Court in People v. McCabe, Ill. 2d _,

275 N.E.2d 407 (1971), ruled that

ates and cocaine which have a maximal compul-

Increasingly,

questions involving probationer's

and parolee's rights have come under judicial scrutiny and while recent decisions have apparently settled certain of these questions, others remain open. In United States v. Gras, 446 F.2d 7 (5th Cir. 1971), the court of appeals held that an indigent probationer under an order suspending final sentencing was entitled to appointed counsel at his probation revocation hearing. The court reasoned that since the defendant had never been sentenced, the case was still open and he was therefore entitled to his sixth amendment right to counsel. The court's ruling comports with an earlier Fourth Circuit decisionl8and a decision by the Eastern District of Wisconsin.l9 However, the courts have not been prone to extend the protection of the fourth amendment's exclusionary rule to the probation revocation hearing. In Hill v.

the state's classification of marijuana under the Narcotic Drug Act1' rather than under the Drug Abuse Control Actl2 constituted a violation of the fourteenth amendment equal protection clause. The Narcotic Drug Act provides for a mandatory ten-year prison sentence upon a first conviction for the sale of marijuana, whereas the Drug Abuse Control Act set the maximum sentence at one year and permitted probation for a first offender. The court's inquiry into the question of whether any rational justification supported the statutory classification led to its examination and comparison of the drugs included within each statute. The Narcotic Drug Act embraced, in addition to marijuana, the opiates and cocaine, while the Drug Abuse Control Act included the barbiturates, amphetamines and hallucinogens.l Com- United States,_ F.2d_ (7th Cir. 1971), the paring marijuana to these drugs, the court con- Seventh Circuit followed the lead of two other cluded that its properties and the effects of its use federal courts20in denying the benefits of the exdiffered significantly from those attending the use clusionary rule to probationers. of the opiates or cocaine and more closely resemThe right of the parolee to a meaningful hearing bled those resulting from the drugs included prior to revocation of his parole has garnered within the Drug Abuse Control Act.l4 Among significant judicial recognition as of late. In Bearother things, the court observed that marijuana den v. South Carolina, 443 F.2d 1090 (4th Cir. was not a narcotic or addictive, that it did not 1971), the Fourth Circuit ruled that the parolee cause severe physical ill effects, and that its use must be afforded notice of his alleged default and did not lead to opiate addiction or to aggressive the opportunity to present witnesses. This conor criminal activity.5 the court asserted, was mandated by the The court dismissed two justifications advanced clusion, due process clause and considerations of fundaby the state in support of the statutory classifica- mental fairness. In Carioscia v. Meisner, 331 F. tions. First, the court found that the compulsion 635 (N.D. Ill. 1971), the Northern District Supp. to abuse associated with marijuana was relatively mild and therefore distinguishable from the opi- of Illinois likewise held that a parolee must be afforded a meaningful hearing which included the " ILL. REV. STAT.ch. 38, ?? 22-1 et seq. (1969). 12ILL. REV. STAT. ch. 1114, ?? 801 et seq. (1969).

13On August 16, 1971, the Illinois legislaturere-

moved marijuana from the Narcotic Drug Act with the passage of the Cannabis Control Act, H.B. 788, P.A. 77-758. Under the new legislation, a first sale of a small quantity of marijuana to an adult, as was the case in McCabe, will result only in minor criminal penalties. 14 275 N.E.2d at 410.

15Id. at 411.

16Id. at 412. 17Id. at 412-13. 18 Hewett

1969).

v. North Carolina, 415 F.2d 1316 (4th Cir.

19Scarpelli v. Gagnon, 317 F. Supp. 72 (E.D. Wis. 1970). 20Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970); Lombardino v. Heyd, 318 F. Supp. 648 (E.D. La. 1970).

19721

RECENT TRENDS

53

right to confront and cross examine adverse wit- the other circuits that had previously considered nesses. The court relied heavily upon the Supreme the question. The Ninth Circuit has flatly refused Court's holding in Goldbergv. Kelly,21and the Sev- to recognize a constitutional right to counsel at enth Circuit'sruling in Hahn v. Burke,22to conclude parole revocation proceedings.28The Tenth Cirthat fundamental procedural due process guar- cuit has recognized the indigent parolee's right to antees attached to the parole revocation hearing counsel only if the state permits other parolees just as they did to the welfare termination hear- the benefit of retained counsel.29 Since the Bey decision, the Fourth Circuit in ing or the probation revocation hearing.23At the state level the Michigan Court of Appeals in Beardenalso consideredthe question and concluded Feazel v. Department of Corrections, 31 Mich. that each case should be handled individually App. 425, 188 N.W.2d 59 (1971) ruled that a without burdeningthe state with the strictures of a state statute providing for a revocation hearing firm rule.30In addition, the California Supreme was meaningless unless the parolee was afforded Court in In re Tucker,5 Cal. 3d 171, 486 P.2d 684, the chance to produce witnesses and evidence and 95 Cal. Rptr. 761 (1971), recently held that due to confront the witnesses against him. process did not require counsel at parole revocation The question of a parolee's right to counsel at hearings. The court felt that the prisoner was adethe revocation hearing has resulted in considera- quately protected against arbitrariness, and it ble conflict between the circuits. In Bey v. Board of feared that judicial interference with the adminisParole, 443 F.2d 1076 (2d Cir. 1971), the Second trative functioning of the parole system could Circuit concluded that the due process clause re- adversely affect the entire state penal system.a3 quires that parolees facing revocation have the Likewise, the Missouri Supreme Court in Jones v. right to counsel. The court felt that the revocation State, 471 S.W.2d 166 (Mo. 1971), ruled that of parole involved a "presently enjoyed interest" parolees were not entitled to appointed counsel at their revocation hearings. of the parolee-his conditional freedom-that could best be protected by a lawyer.24The court VOICEPRINTS stated that the presence of counsel at the revocation hearing should not interfere with the state's In Trimblev. Hedman, _Minn._, 192 N.W.2d administration of the parole system and was not 432 (1971), the Minnesota Supreme Court has becontrary to the state's interest in the ultimate come the first state appellate court to hold that rehabilitation of the parolee.25The Second Circuit's spectograms (or voiceprints) can be entered as decision is in line with several other state court evidence in a criminal prosecution.32The court decisions26and one earlier federal district court restricted the admissibility of the spectogram to the decision,27but it conflicts with the conclusion of purpose of corroboratingopinions as to identifica21397 U.S. 254 (1970). The SupremeCourt in Gold- tion made by the ear alone and for impeachment. bergheld that the due processclauserequireda public After carefully examining the testimony of several authorityto providea meaningfulhearingfor a welfare experts, the court concluded that the spectograph recipientbeforeit could terminatehis publicassistance procedure had reached a point of scientific relipayments. 22430 F.2d 100 (7th Cir. 1970). In Hahn, the Sevability which justified its admission, at least for enth Circuitreliedheavily upon the Goldbergdecision limited purposes. Furthermore, although the presin concludingthat underthe due processclausea probationerwas entitled to a hearingprior to revocation ent case concerned a probable cause hearing, the court asserted that spectograms were also admisof his probation. 23See also Goolsby v. Gagnon, 322 F. Supp. 460 sible at trial for the same limited purposes so long (E.D. Wis. 1971),whereinthe courtheld that a parolee as a proper basis was laid for the expert's testimust be accordedproceduraldue process guarantees which included a meaningfulhearingand counsel at mony. his parolerevocationhearing. 28 Williamsv. Dunbar,377 F.2d 505 (9th Cir. 1967). 24443 F.2d at 1086-87. 29 Firkins v. Colorado,434 F.2d 1232 (10th Cir. 25Id. at 1088-89. 1970) (per curiam);Earnestv. Willingham,406 F.2d 26 Warrenv. MichiganParoleBoard,23 Mich. App. 681 (10th Cir. 1961). 754, 179 N.W.2d 664 (1970), appeal dismissed, 30 443 F.2d at 1095. Mich. , 184 N.W.2d 457 (1971); People ex rel. 31 95 Cal. Rptr. at 765. Menechinov. Warden, 27 N.Y.2d 376, 267 N.E.2d 32 Priorstate court decisionshad deniedthe admissi238, 318 N.Y.S.2d 449 (1970);Commonwealthv. Tin- bility of spectograms.See State v. Cary, 49 N.J. 343, 230 A.2d 384 (1967):People v. King, 266 Cal. App.2d son, 433 Pa. 328, 249 A.2d 549 (1969). 27 Goolsbyv. Gagnon,322 F. Supp. 460 (E.D. Wis. 437, 72 Cal. Rptr. 478 (1968).But see UnitedStates v. Wright,17 USCMA183,37 CMR 447 (1967). 1971).

Vol. 63, No. 1 Printed in U.S.A.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE Copyright ? 1972 by Northwestern University School of Law

CRIMINOLOGY THE POLICE INTERNAL SYSTEM OF JUSTICE IN NEW YORK CITY BERNARD COHEN* THE POLICE JUSTICE SYSTEM

There have been many studies of the criminal justice system in this country.' The data used in these studies usually pertain to crimes or criminals and how they progress through the police, court and correctional agencies. Knowledge of the criminal justice system, although useful for many purposes, tells us little about police officers who violate the law. One reason for this is that police departments operate their own internal judicial system, which is in many ways independent of the civil courts. Police officers who break the law will rarely be processed by the civil criminal justice system unless the police choose to investigate the crime and report it to civil authorities. This is true whether the officer's actions occurred in the performance of his duty or not. Alternatively, the police may dismiss charges of misconduct by officers or process them by departmental trials. This research is a summary of what we have been able to determine about police misconduct and the operations of the police justice system from data which were collected for a broader study of selection, assignment, promotion, and reward procedures in the New York City Police Department. For this study we have utilized a cohort consisting of all officerswho were appointed to the Department in 1957. The present analysis concerns the recorded allegations of misconduct for the 1,915 men in this cohort.2 These recorded allegations are followed through the police justice * M.A., Ph.D., University of Pennsylvania. Asso-

ciate Professorof Sociology,QueensCollege,City Uni-

versity of New York. Professor Cohen is the Journal's book review editor. This study was sponsored by the City of New York and by the New York City-Rand Institute. Its contents, however, do not purport to represent the official views or policy of either the City of New York or the Institute. 1 A review of some of these studies appears in M. E.

system in order to determine which offenses were brought to departmental trial and which were dropped. Then the final dispositions of those brought to trial are examined.3 DATA SOURCES

Our data on complaints come primarily from the Public Morals Section, the Chief Inspector's Investigating Unit, the Civilian Complaint Review Board and the Disciplinary Record Section. These Units are empowered to record and investigate all forms of police misconduct including departmental complaints, complaints characterizable as corruption and civilian complaints. During the latter part of 1968 and in 1969, a research team visited these units and gathered all allegations of misbehavior which were on record for the cohort of officerswho were appointed in 1957. Reports of police misconduct initially come to the attention of the investigating units in many ways. Some result from citizen complaints and reach the units through channels. Others are reported by departmental commanders or fellow police officers. Some investigations are initiated as a result of surveillance of certain officers for disciplinary control. Finally, unit investigators may see a violation while observing patrol practices or during periodic inspections of precinct activities. DESCRIPTION OF THE TYPE OF COMPLAINTS

AND

DISPOSITIONS

The charges which appeared on the records we examined ranged from minor violations such as absent from post to more serious complaints involving acceptance of gratuities, the use of unnecessary force, etc. At the time they are first recorded, these complaints represent allegations 3 A detailed discussion of our overall research plan and methodology will be described in a forthcoming

work on selection,assignment,promotion,and reward procedures.We will, however,discussbrieflythe types and sourcesof data used for an analysisof complaints againstmembersof the police department.

WOLFGANG & B. COHEN, CRIME AND RACE 66-88

(1970). 2 Twenty-six officers were excluded from our analysis because their race was unknown. 54

1972]

POLICE INTERNAL SYSTEM OF JUSTICE

of misconduct; they are not formal charges arising from an investigation. We grouped the complaints into three categories: departmental complaints, criminal charges and civilian complaints. Civilian complaints are those which must be disposed of by the Civilian Complaint Review Board according to the Department's Rules and Procedures. These complaints almost always involved allegations of unnecessary force, abuse of authority, discourteous behavior and ethnic slurs. According to our definition, civilian complaints do not necessarily have to be initiated by civilians, though they always involve civilians. In fact, in a few instances, police officers while on duty initiated civilian complaints in behalf of civilians against fellow officers. Complaints which do not involve unnecessary force, abuse of authority, discourtesy or ethnic slurs, but are in violation of the New York State Penal Code, were grouped as criminal charges. These complaints may be reported either by civilians or police personnel and are handled internally by the Department's investigation units. Some typical examples are gambling, consorting with criminals, acceptance of gratuities and burglary. All other complaints, mainly those which violate departmental regulations and procedures or result in disruption of the internal organization of the department, were classified as departmental complaints. These complaints were usually initiated by commanding officers or supervisory personnel.4 Examples of these violations include sleeping while on duty, losing a shield, insubordination and drunkenness while on duty and protest summons.5 Our classification of charges into three categories was done to facilitate analysis and does not represent any formal labelling of charges by the Department. In some cases it was necessary to make judgments about how to classify the 4It should be made clear that both departmental and criminalchargescan be, and often are, initiated by civilians. 5Protest Summonsariseswhen a complainant,subsequentto receivinga summonsfor an offense-usually a minorone-protests the actionstaken by the officer. In many cases, the complainantalso protested the basis for receivingthe complaint.Typical complaints were that the officermadea false arrest,or conducted an illegal searchof house or person. Other times, the complainantmaintainedhe was taken into an RMP car without apparentreason and detained unjustifiably in a stationhouse.In one case, the personprotested the summonsbecausesomeof his propertywas missing.

55

complaints, and no claim is made that our choice is the only way this could have been done. Dispositions Detailed procedures for processing departmental, criminal, and civilian complaints are outlined in the New York City Police Department Rules and Procedures and need not be repeated here.6 Some examples of the dispositions taken by the police department however will help interpret our findings which appear later in this study. * Complaint Dismissed-The complaint is reviewed and unsubstantiated on its merits. It is dismissed. * Filed-The complaint is filed because the complainants refuse to submit to interview; or the complaint is filed because of absence of evidence or witnesses. * Complainant Uncooperative-The complainant refuses to cooperate. * Minor Fine-A fine of less than 10 days' pay or vacation. * Major Fine-A fine equal to 10 or more days' pay or vacation. * Suspended-The officer is suspended from the force for a specified period of time. * Probation-The officer is placed on probation for a specific period of time. * Dismissed-The officer is dismissed from the force. DESCRIPTIONOF THE COHORT: ACTIVES AND INACTIVES

The group of police officers which was studied consists of 1,915 men who were appointed to the police department in 1957. Most of these men (1,608) are still members of the force and comprise our active cohort. An additional 307 men left the force during the past eleven years and are referred to hereafter as "inactives." This particular cohort was selected primarily for two reasons. First, the eleven-year period between 1957 and the time the data were collected was suitably long to enable us to discern the career paths available to officers in the Department. Second, it yielded an adequate number of officers in our sample so that we might study subgroups. In our description of the incidence of complaints against officers, we consider only the active mem6 POLICE DEPARTMENT,CITY OF NEW YORK RULEs

ch. 21 (charges and trials). ANDPROCEDURES

56

BERNARD COHEN

bers of the cohort, since otherwise we would be attempting to compare charges accumulated over different periods of time. However, a detailed comparison of the incidence of allegations against inactives and actives is undertaken in another paper. An advantage of using only the actives is that we can determine the extent and variety of alleged misconduct which the Department will tolerate and still permit a man to remain on the force. When we proceed to an analysis of what happens to complaints as they are processed by the police justice system, we naturally include allegations against inactives as well as actives, since one would expect to find the officers who had experienced the most severe discipline among the inactives. INCIDENCEOF COMPLAINTSAGAINST OFFICERS

Our data provide us with the number of complaints against each officer in the cohort and the type of each complaint. When these data are aggregated for all the members of the cohort,

[Vol.63

we obtain a distribution from which one can determine the average number of complaints experienced over eleven years and also the chances of having an extremely large or small number of complaints. Our findings on the incidence of complaints are summarized in Table I. They reveal that 41.7 percent of the active officershad no complaints against them during their eleen years on the force, while 58 percent incurred at least one complaint. We see also that nearly a third of the men (30.6 percent) received 2 or more complaints. Thus, about half of those with at least one complaint went on to incur another. Half of these (260 men, or 16 percent of the cohort) received at least 3 complaints. The highest number of complaints recorded for a single officer in our cohort was 16, but 5 or more charges can be considered extremely rare, since 95 percent of the men had fewer than 5. However, it is noteworthy that an officer can accumulate as many as 16 complaints and still remain on the force. Our data also show that blacks received more

TABLE I OF COMPLAINTS BY RACEFORTEm COHORT DISTRIBUTION OFACTIVEOFFCEXRS APPOINTED IN 1957 Race

Number of Complaints

0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Black

White

N

%

21 29 23 12 7 4 1 1 1

21.2 29.3 23.2 12.1 7.1 4.0 1.0 1.0 1.0

16 Unknown Total Men

Total Charges

99

180

100.0

N

638 410 204 106 54 33 16 8 5 2 1 3 1

Puerto Rican %

N

%

43.0 27.6 13.7 7.1 3.6 2.2 1.1 0.5 0.3 0.1 0.1 0.2 0.1

11 9 1 1 2 1

44.0 36.0 4.0 4.0 8.0 4.0

Total N

%

670 448 228 119 63 38 17 9 6 2 1 3 1

41.7 27.9 14.2 7.4 3.9 2.4 1.1 0.6 0.4 0.1 0.1 0.2 0.1

1

.1

1

2

.1

2

.1

1484

100.0

1608

100.0

1798

25

27

100.0

2005

57

POLICE INTERNAL SYSTEM OF JUSTICE

1972]

TABLE II DEPARTMENTAL,

CRIMINAL AND CIVILIAN COMPLAINTS BY RACE FOR THE COHORT OF ACTIVE OFFICERS APPOINTED

IN 1957 (PERCENTAGES & MEANS) Race

Type of Complaint Black

N

%

Departmental......... Criminal............. CivilianComplaints...

126 71.2 13 7.3 38 21.5

Total Charges*...... Numberof Officers....

177 100.0 (99)

White

X**

N

(1.3) 1095 (0.1) 169 (0.4) 471

%

63.1 9.7 27.1

1735 100.0 (1484)

Total

Puerto Rican

X

(0.7) (0.1) (0.3)

N

20 3 3

% 76.9 11.5 11.5

26 100.0 (25)

X N (0.8) 1241 (0.1) 185 (0.1) 512

%

X

64.0 9.5 26.4

(0.8) (0.1) (0.3)

1938 100.0 (1608)

* These totals differslightlyfrom those in Table I becauseour methodof collectingdata did not permitus to record,for 67 complaints(mostly departmental),the precisetype of charge,whetherit was broughtto trial, or the disposition.These complaintswereall registeredagainst men who had morethan 4 chargesand constitute3 percentof the total numberof complaints. ** X indicatesthe mean,or average,numberof complaintsper man. complaints than whites, and whites more than Puerto Ricans, though in each racial group the majority of officers experienced at least one complaint. Nearly 80 percent of the black officers received at least one complaint, compared to only 57 percent of the whites and 56 percent of the Puerto Ricans. Also, on the average, each black officer incurred 1.8 complaints, compared to 1.2 for the white and 1.1 for the Puerto Rican officers. The difference in rates of repeating complaints also varied by race. Nearly half of the black officers (49.5 percent) incurred at least two charges each, compared to about a third of the whites (29.4 percent) and a fifth of the Puerto Ricans (20 percent). Further, 63 percent of the black officers with at least one charge received another, compared to 48 percent and 36 percent respectively for whites and Puerto Ricans. Although the data could be interpreted as showing that either blacks engage in misconduct more frequently than others or they have a higher proportion of their misconduct reported, neither of these interpretations is necessarily correct. In fact, the number of charges against officers varies with their assignment, and, as our data indicate, blacks receive a disproportionate number of assignments in special units where all officers, regardless of their race, are more likely to receive complaints.7 The general volume of allegations of 7 For instance, men in plainclothesassignmentsare particularlysusceptibleto complaints.By the second assignment,four times as many blacks (12 percent) as whites (3 percent) in our cohort performedplainclothesduties.

misconduct indicated by the data is more significant than the differencesamong the races. Type of Complaint It is important to recall that some complaints are for minor violations of departmental regulations, so that the figures shown on Table I are not indicative of widespread corruption or criminal behavior by police officers. Nor is this suggested when the data are classified by type: departmental violations, criminal charges, and civilian complaints. The details are shown in Table II. Our data show that well over half of the complaints were for departmental violations, with the next largest category being civilian complaints. Only 185 of the 1,938 charges for which we knew the type were allegations of criminal activities. Examination by race reveals that 71 percentof the complaints against black officers were departmental compared to 63 percent for whites. Also, the average number of departmental charges was nearly twice as high for black as for white or Puerto Rican officers (1.3 compared to .7 and .8 respectively). On the other hand, the average number of criminal charges was equal for the officers regardless of race (.1), while differences in the proportion of civilian complaints were extremely small (.4 for blacks and .3 for whites respectively--there were only 3 civilian complaints against Puerto Ricans). Thus, the relatively high incidence of offenses for blacks is almost entirely accounted for by a greater number of

58

BERNARD COHEN

[Vol. 63

TABLE III DEPARTMENTAL,CRIMINAL AND CIVILIAN COMPLAINTSBY TYPE AND RACE FOR COHORTOF ACTIVE OFFICERS APPOINTED IN 1957 Race Type of Complaint White

Black

1.1

193 124 8 13 101 7 4 25 19 236 84 145 6 28

% 4.0 0.5 21.2 0.7 2.0 2.3 2.8 1.6 3.7 1.9 0.5 0.5 0.1 0.6 0.2 0.1 11.1 7.1 0.5 0.7 5.8 0.4 0.2 1.4 1.1 13.6 4.8 8.4 0.3 1.6

177 100.0

1,735

100.0

N

Procedural................................... .............................. Insubordination Absence(AWOL)............................ Sick Absences................................ Moonlighting............................... Failureto SafeguardGuns..................... Failureto SafeguardProperty................. InappropriateBehaviorOff Duty............... InappropriateBehaviorOn Duty............... Fail to PerformDuty ....................... MoralTurpitude.................. .......... PurposelyFalsifyingReport................... PoliceAcademyViol.......................... Superviseon Patrol...................... False Statements............................. Family Probity............................. ProtestSummons ........................... PoliceNegligence............................ Fail to Pay Debts............................ Consortingwith Criminals..................... Gratuities................................... Gamblingor Policy Operations................. False Testimony ........................ CriminalOffense(8 Codes).................... CriminalOffense(Other)...................... UnnecessaryForce........................... Discourtesy............................... Abuseof Authority.......................... EthnicSlurs............................... . ......................... Unknown...... Total.....

................

........

% 4.0

7 2 39

22.0

14 13 4 3 6 3 2

7.9 7.3 2.3 1.7 3.4 1.7 1.1

1.1

N

70 9 368 12 34 40 49 28 65 33 8 9 1 11

1

0.6

4 1

....

19 10 1 1 6

10.7 5.6 0.6 0.6 3.4

2 3 1 26 5 7

1.1 1.7 0.6 14.7 2.8 4.0

2

Puerto Rican N

Total N

1

38 3.8

78

2 1 1

7.7 3.8 3.8

409 13 35 54 63 32 69 40 12 11 2 11 5 1 217 135 9 14 110 7 6 28 20 264 90 152 6

11

1

3.8

1 1 1

3.8 3.8 3.8

1

3.8

% 4.0 0.6 21.1 0.7 1.8

2.8 3.3 1.7 3.6 2.1 0.6 0.6 0.1 0.6

5 1

19.2 3.8

3

11.5

2 1

7.7 3.8

4

15.4

34

0.3 0.1 11.2 7.0 0.5 0.7 5.7 0.4 0.3 1.4 1.0 13.6 4.6 7.8 0.3 1.8

26

100.0

1,938

100.0

In general, the types of complaints against departmental charges, rather than criminal charges or civilian complaints. white and black officers were similar. The only A more detailed breakdown of complaints is substantial differences were for absences, failure given in Table III. The category with the highest to safeguard guns, failure to safeguard property, proportion of charges is absences (21.1 percent). and protest summons. The black rate was twice Other categories with a substantial number of as high for absences and protest summons (.2 to complaints include unneccessary force (13.6 per- .1 for protest summons and .4 to .2 for absences) cent), protest summons (11.2 percent), abuse of while it was three times greater for failure to authority (7.8 percent), police negligence (7.0 safeguard property and guns (.1 to .03). percent) and gratuities (5.7 percent). There were few complaints for gambling (.4 percent) or con- Detectives Since detectives are specially selected by the sorting with criminals (.7 percent) and not one recorded instance of collusion in narcotics opera- Detective Division and are subject to different tions. administrative controls from those applied to

POLICE INTERNAL SYSTEM OF JUSTICE

19721

59

TABLE IV DEPARTMENTAL,

CRIMINAL

AND CIVILIAN

COMPLAINTS BY RACE FOR DETECTIVES

(PERCENTAGES

AND MEANS)

Race

Type of Complaint Black

White

Puerto Rican

N

%

X

N

%

25 5 15

55.6 11.1 33.3

(1.0) (0.2) (0.6)

112 37 70

51.1 16.9 32.0

(0.5) (0.2) (0.3)

Total.............. 45 Number of Detec27 tives.............

100.0

(1.7)

219 100.0

(1.0)

Departmental....... Criminal........... Civilian............

218

uniformed officers, one might suspect that their patterns of charges would differ. We found, however, that the total incidence of charges for these men over the eleven-year period (i.e., both before and after they became detectives) was nearly the same as for non-detectives. In fact, the average number of complaints for detectives and nondetectives were 1.1 and 1.2 respectively (see Tables II and IV). When broken down by type of complaint, the incidence of departmental violations was nearly equal (.6 for detectives and .8 for non-detectives) while no differenceappearedfor civilian complaints (.3 for both). The only significant difference between the two groups occurred for criminal charges. The rate of criminal allegations against detectives(.2) was twice as high as the corresponding rate for non-detectives(.1). Our data also show that the differences resulted primarily from gratuities and the more serious index offenses. Though there are only one-fifth as many detectives as non-detectives, they account for nearly onethird of the allegations concerning gratuities (32 for detectives, 78 for non-detectives) and other criminal offenses (8 for detectives and 20 for nondetectives). Further details are shown on Table IV. Actual Incidence of Misconduct Just as arrest figures do not accurately measure the extent of crime among civilians, the data concerning charges against officers is not a true measure of police misconduct. On the one hand, some of the officers may not have been guilty of the offense appearing in the complaint. On the other hand, some misconduct may not have been recorded. Thus the figures reported above may be either higher or lower than the true incidence of misconduct.

N

%

X

(1.0) (0.3) (0.2)

146 45 87

52.5 16.2 31.3

(0.6) (0.2) (0.3)

(1.3)

278 100.0

(1.1)

X % N

9 3 2

64.3 21.4 14.3

14 100.0

Total

11

256

Instances of misconduct may fail to appear in our data for perfectly legitimate reasons or because of inadequacies in the police system of justice. For example, certain records of misconduct are destroyed after a specified period of time in accordance with regulations; these are for minor departmental violations. Other possible reasons for the absence of records of misconduct, which our data can neither confirm nor deny, are the following: The investigative machinery available to the police department may be inadequate to uncover many offenses. An informal system of sanctions may exist to punish officers guilty of misconduct without making an entry on the record. For example, changes in the time or location of an officer's assignment can be used as informal sanctions. Evidence of misconduct may not be pursued by those having the responsibility to report such evidence. In any event, the number of recorded charges for criminal activities is not substantial enough to provide any evidence of widespread corruption in the New York City Police Department. Nevertheless, the frequency of recorded complaints in the official records is high enough to consider the possibility of different forms of deviant subcultures among police officers.8 Summary of Incidence Data * Fifty-eight percent of the police officers in our cohort received at least one complaint. * Blacks exhibited the highest incidence of 8 In the presentstudy, at least three of these might includea police subcultureof violence,a subcultureof theft and a subcultureof stolidity.Furtherelaboration of these subcultureswill appearin a laterpaper.

60

BERNARD COHEN

[Vol.63

complaints, with whites next, and then partmental violations are usually reported by Puerto Ricans. However, the differences superior officers, while criminal allegations may among races are almost entirely accounted be anonymous or otherwise insubstantial, it is for by differencesin departmental violations, not surprising to find a larger proportion of the rather than in criminal charges or civilian former brought to trial. However, under the reasonable assumption that charges arising from complaints. * Most of the complaints were departmental independent probes by the Department's own violations (64 percent). investigatory units would be strong enough to * A significant proportion of recorded allega- come to trial, the data indicate that these units tions of misconduct involved civilian com- press fewer than two criminal charges per thousand men per year. The police justice system plaints (26 percent). * One hundred thirty-one complaints charac- succeeds in detecting and bringing to trial a much terizable as corruption were recorded against larger number of alleged violations of the Department's rules and procedures. 1,608 officers in eleven years. * The total incidence of complaints was equal Civilian complaints cannot properly be separated for detectives and non-detectives, but de- according to which of them were brought to trial, tectives had a greater proportion of charges since every civilian complaint is investigated, that may be characterized as corruption. evaluated, and adjudicated by the Civilian Complaint Review Board. It is necessary to examine POLICE JUSTICE the dispositions of this type of misconduct. Our data describe not only the nature of each Disposition charge brought against an officer in our cohort, The data show that veryfew chargesof any type but also the manner in which it was processed by the police justice system. Such information illu- resulted in serious punishment. The majority of minates the extent to which charges are found to departmental violations received minor fines9 (63 be valid and also reveals where the police place percent) while major fines were given in 22 (3 their emphasis in prosecuting charges. For this percent) of the cases. In only 8 cases (1 percent) analysis, we use data about all charges brought were men suspended. Four men in our cohort against inactive as well as active officers, so the were dismissed from the Department.10Approxiincidence of charges differs slightly from that mately 10 percent of the complaints were disshown in the preceding section. missed, 9 percent resulted in reprimands, while The most serious limitation of our data occurs 1 percent received probation. for the men who were dismissed from the DepartDispositions for criminal charges are more ment. For various reasons, their files may not be difficult to interpret because of the small number retained in the same locations as those of the (31 out of a total of 204) brought to trial. One of other inactive officers. Especially in cases where the men was reprimanded, one was placed on an officer is dismissed prior to completion of a probation and six had their complaints dismissed. departmental trial (e.g., if he is indicted by a Nine men were fined, five of whom received major grand jury), we may have no record of the dis- fines. Only 5 of the 1,915 men were suspended for criminal charges during the eleven-year period position of his case. A special search by the Personnel Record Unit, on the force. Most of the remaining cases were conducted at our request, revealed that twenty- filed (5). The dispositions for crimes that may be characeight members of the 1957 cohort were dismissed. For only five of them do we have the record of a terized as corruption were analyzed separately. Our data show that 121 gratuity charges, 7 gamdepartmental trial resulting in dismissal. bling charges and 16 charges of consorting with Cases Broughtto Trial criminals were recorded. Out of these, 23 cases As shown in Figure 1, approximately59 percent (16 percent) were brought to trial. Three cases 9 See text accompanying note 6 supra for definitions of departmentalviolations against membersof our cohortwere broughtto trial, comparedto 15 percent of minor and major fines. 10This would presumably change to 28 men of allegations of criminal misconduct brought to dismissed figure after the update conducted by the Police departmentaltrial. Considering the fact that de- Department.

D ISPOSITION COMPLAINTS (Total2131)

PROCESSING 11

BROUGHT TO TRIAL 827 (59.4%) DEPARTMENTAL VIOLATIONS 1392. (65. rI)

4NO TRIAL 565

CIVILIAN COMPLAINTS 541 (25.3%)

..................

___

l ) UU cHJTRIIAL 13 84.8% o1 .163, p < .01. For N2, whenr > .139, p < .01. For N1 + N,, when r > .107, p < .01.

78

MICHAEL J. HINDELANG

clerical workers and salesclerks, fourteen percent small business owners and managers and retail salesmen, seven percent semi-professionals, fourteen percent business agents and managers, fourteen percent professionals, and five percent large business owners and officials. Table 1 displays, in part, the twenty-six delinquent activities that made up the self-reported delinquency questionnaire. The respondents were asked to indicate the number of times in the last year that they had engaged in each activity. For each activity, if the number of times that the activity had been engaged in was between zero and eight inclusive, the respondent was given a score equal to that number; if the respondent indicated that he had engaged in the activity nine or more times, he was given a score of nine. As an index of overall delinquent involvement, a simple sum was taken across all twenty-six delinquent activities and has been designated Total Delinquent Involvement. Table 1 presents the correlation coefficients which show the relationship of the personality and background characteristics to the delinquent activities.l3 These correlation coefficients should be interpreted in light of the knowledge that the distributions of the delinquent activities are generally J-shaped rather than normal. That is, most of the respondents engaged in a given act zero times, some of the respondents engaged in the act once, fewer yet engaged in an act twice, and so on; this J-shape has been found to characterize delinquent involvement in past research.14The fact that these dependent variables are not distributed normally has the consequence that the range of the correlation coefficient is severely restricted.l6 13For the purposeof analysis,enthnicitywas dichotomized into Caucasianand non-Caucasiangroups. Caucasiangroups were assigned a score of zero and non-Caucasiangroupsa score of 1. Table 1, therefore, gives the point-biserial0 correlationcoefficientsrather than the Pearsoncorrelationcoefficientsto show the relationshipsbetweenethnicityand the othervariables. The scoringon the PD scalewas also reversedso that a low scorewouldbe in the psychopathicdirectionas in the SO, SC and RE scales where low scores mean a lack of socialization,self control and responsibility, respectively. IN AN AMERICAN 14M. GOLD,DELINQUENCY CITY

(1970);Hindelang,supranote 9. 16Usinga formulaprovidedby Carroll,the maximum possiblepositive Pearsonproduct-momentcorrelation coefficientforjoint distributionsof personalityvariables and delinquentactivities similarto these (see Hindelang, 1969) was found to be .50. Becauseof this severe restrictionin the range of the correlationcoefficient, the sampling distributions(which are based on the ideal full range-from -.100 to +1.00-of possible

[Vol.62

From Table 1, it can be seen that the occupational prestige score of the respondent's fatheras measured by the Turner (1964) Scale-is unrelated to his delinquent involvement. Also the number of years of father's education is quite uniformly unrelated to the delinquent activities; the two exceptions are the slight relationships between father's education and heroin use and between father's education and shaking down others for money. Ethnicity likewise is unrelated to the bulk of delinquent activities; compared to Caucasian, non-Caucasians are more likely to shake down others for money, visit a prostitute, and force their sexual attentions on a girl against her will. Age, too, is unrelated to most delinquent activities. However, as age increases so does involvement in drinking, drag racing, driving under the influence, using false identification and cutting school; glue sniffing is inversely related to age. An examination of the relationship of the personality attributes to the delinquent activities, indicates that these variables are substantially more strongly related to the delinquent activities than are the demographic variables. The socialization and self-control scales are the most strongly related to the dependent variables; their mean correlation coefficient across the twenty-six delinquent activities is -.27. On the other hand, the mean correlation coefficients across the twenty-six delinquent activities are less than .04 for age, ethnicity, father's education, and father's occupational prestige score. The personality variables, relative to the demographic variables, appear to be substantially more strongly related to the dependent variables. The correlations of the CPI subscales with each other indicate that they are not independent; although correlations of the Psychopathic Deviate scale with the CPI subscales cannot be determined from the present study since they were not administered to the same sample, one can use as an estimate of this relationship correlations published by Gough,"6where he found that the correlations of the Psychopathic Deviate Scale with the Socialization, Responsibility and Self-control scales were .23, .04, and -.10 respectively. Using these correlations in conjunction with the remaining correlacorrelationcoefficients)from which the significance levels in standard tables have been calculated, are inappropriate.Sinceno simplesolutionto this problem exists, however,the standardtable valueswill be used, but it should be borne in mind that our significance tests may be quite conservative. 16See generally GOUGH,supra note 11.

79

SELF-REPORTEDDELINQUENCY

1971]

TABLE 2 CORRELATIONCOEFFICIENTSSHOWING THE RELATIONSHIP OF THE DEMOGRAPHICAND PERSONALITY VARIABLES TO THE OBLIQUE CLUSTER DOMAINS 0F DELINQUENT ACTIVITIES* Edathein

Ethnicity

Age

PD

- .08 -.01

.13 -.08

.09 .22

-.04

.04

Cluster 4: Theft (.71) Cluster 5: Drug Use (.67)

.05 -.01

F

-.02

Cluster 1: Fighting (.79) Cluster 2: Soft Drug Use

SO

RE

SC

R

- .32 -.43

-.32 -.53

-.39 -.46

- .22 -.28

.54 .69

.09

-.41

-.32

-.39

- .24

.58

.04 .03

.03 .00

-.46 -.39

-.41 -.45

-.46 -.45

-.29 -.24

.66 .59

.03

.09

-.40

-.41

-.43

-.24

.61

(.82) Cluster 3: Malicious De-

struction(.74)

* Reliabilitiesof the clusterscoresappearin parentheses. tions from the present study, the estimated multiple correlations of the MMPI and CPI subscales with the delinquent activities appear in Table 1 in the column labeled R. As can be seen from Table 1, the multiple correlation coefficients are of generally moderate strength. The multiple correlation coefficient is strongest for the relationship between the personality scales and total delinquent involvement (R = .69, p < .01). By using a cluster analysis techniquel7it is possible to examine the relationship of the independent variables to types of delinquent behavior. Tryon and Bailey's BC TRY package of computer programs allows the researcherto "define" clusters of delinquent activities.18 In the present study, the following clusters were composed of the activities indicated. Cluster 1: Fighting (individual fist fighting, group fist fighting, individual weapon fighting, gang weapon fighting, and carrying a concealed weapon); Cluster 2: Soft Drug Use (drinking, getting drunk, using marijuana, and driving under the influence); Cluster 3: Malicious Destruction (doing property damage of less than $10.00, and doing property damage of more than $10.00); Cluster 4: Theft (thefts less than $10.00), and thefts greater than $10.00); Cluster 5: Drug Use (sniffingglue, using LSD, methedrine or mescaline, and using heroin). Table 2 presents the correlations of the background and personality variables with the five clusters of delinquent activities. Once again it can be seen that the demo17R TYRON & D. BAILEY,CLUSsTRANALYSIS (1970).

" The restrictionsin the range of the correlation coefficientsis somewhatreducedfor the clusterssince the distributionsof the clusterscoresare less markedly J-shapedthan are the distributionsfor the individual delinquencyitems.

graphic variables account for much less of the variance than do the personality variables. With the exception of the relationship between age and soft drug use, the demographic variables are virtually unrelated to the clusters of delinquent activities. The Responsibility scale is most closely related to the clusters (r = .43) followed by the Socialization scale (i = .41), the Psycopathic Deviate scale (r = .40), and the self-control scale (i = .24). The multiple correlation coefficients appear in the column labeled R. The multiple correlations of the delinquent behaviors with the personality variables are somewhat invariant across clusters with soft drug use being the most predictable cluster and fighting the least predictable cluster. Finally, because the relationships between the personality variables and the clusters of delinquent activities may still be partially masked by the nonnormal distributions of the latter, non-parametric H tests were used. For each of the four scales, the respondents were divided into high, medium, and low scoring groups;19this trichotomizing allows one to test for non-linear relationships. The results presented in Table 3 clearly show monotonic patterns of moderate strength which are rather consistent across clusters; across all dusters the Responsibility scale shows the greatest differentiation, and the Self-Control scale shows the least differentiation. 19In all cases,thosefallingmorethan .6 of a standard deviation above the mean were assigned to the high group;thosefallingmorethan .6 of a standarddeviation below the mean were assignedto the low group,those remainingwereassignedto the middlegroup.A similar procedurewas used with father's education and age but these variablesfailed to show any significantrelationshipsto the clusters.

MICHAEL J. HINDELANG

80

[Vol. 62

TABLE 3 H-TESTS RESULTS SHOWING THE RELATIONSHIPOF LOW, MEDIUM, AND HIGH SCORERS ON THE PERSONALITYVARIABLES TO THE CLUSTERS OF DELINQUENT ACTIVITIES*

Cluster 1: Fighting Pd So Re Sc Cluster 2: Soft Drug Use Pd So Re Sc Cluster 3: Malicious Destruction Pd So Re Sc Cluster 4: Theft Pd So Re Sc Cluster 5: Drug Use Pd So Re Sc

Low

Medium

High

p

W**

197.82 184.34 195.50 184.96

183.21 158.10 150.67 157.79

155.16 128.68 128.50 135.88

.00036 .00002 .00001 .00025

.25 .27 .30 .24

211.11 210.84 203.34 194.50

176.43 150.48 157.30 159.26

145.59 115.29 110.48 125.65

.00001 .00001 .00001 .00001

.35 .43 .38 .32

207.08 187.68 199.39 194.89

178.77 150.82 150.98 151.60

153.57 134.09 125.66 137.09

.00001 .00004 .00001 .00001

.32 .25 .32 .29

201.42 195.17 216.69 194.79

182.82 155.02 147.41 154.38

149.51 120.23 112.10 135.72

.00004 .00001 .00001 .00001

.30 .34 .44 .28

201.18 214.49 216.05 182.45

177.91 158.73 162.80 151.09

154.76 133.69 124.48 122.69

.00009 .00001 .00001 .00001

.28 .37 .38 .29

* Scores on the dependent variables are given in mean ranks. ** This statistic is the square root of the ratio of the explained to the unexplained variance; it varies between

zero and 1.00. These data support the conclusion that the Psychopathic Deviate, Socialization, Responsibility and Self-Control Scales are related to self-reported delinquent involvement. As an individual scores in a more psychopathic, a less socialized, a less responsible, or a less controlled direction, he is more likely to be involved in delinquent activities. It is interesting to note that even widely varying clusters of the delinquent activities are similarly related to the four scales. Father's education, race, and age have been found by other researchers to be moderately related to officially detected offenses and less related to self-reported offenses.20Herein, these demographic variables are virtually unrelated to reported delinquency. Although there was a good sampling of father's educational and occupational See generallyGoLD,supranote 14; Shout & Nye, ReportedProblemsas a Criterionof DeviantBehavior, PROBLEMS207 (1957). 5 SOCIAL

levels, an adequate (five year) range of ages, and a substantial proportion (twenty-two percent) of non-Caucasians, a more inclusive sampling of respondents and of delinquent activities may be required for the relationships to manifest themselves, if, in fact, they exist. SUMMARY

Because the demographicvariables are unrelated to the dependent variables, it can be said that the relationshipsbetween the four personality subscales and the dusters of delinquent involvement have been shown not to be spurious as a function of the demographic variables. In addition, since sex has been held constant, the relationships cannot be spurious as a function of sex. Therefore, when the effects of father's education and occupation, and the race, sex, and age of the respondent have been controlled, the relationships between

1971]

SELF-REPORTEDDELINQUENCY

81

the personality variables and the delinquent his suggestion that previously obtained relations activities maintain. This is dissonant with Volk- between MMPI subscales and delinquency may man's finding that none of the MMPI sub- have been spurious due to a failure to control age, scales differentiated2l twenty-seven delinquents race, and social class. The findings of the present from twenty-seven non-delinquents who were study indicate that those engaging in a wide matched on race, age, father's occupation and range of delinquent activities, relative to those intelligence; these findings also cast doubt upon not engaging in these delinquent activities are more stubborn, undependable, and deceitful in "Volkman, A MatchedPersonalityComparisonof 6 SOCIAL and dealing with others (SO); the former are immature, Non-delinqut Jueniles, Delinquent PROBLEMS 238 (1958). Although the Hypochondriasis moody, and undercontrolled (RE), more impulscale did differentiatebetween the two groups, the and pleasurenon-delinquentsscoredin the moredisturbeddirection. sive, shrewd, uninhibited, aggressive, It shouldbe pointedout that Volkman'sfindingswere seeking (SC), and show an absence of deep emogenerallyin the directionhypothesizedby Hathaway tional response, an inability to profit from experiand Monachesi,and that his lack of significantresults was largelydue to his smallsamplesize. ence, and a disregard of social mores (PD).

Vol. 63, No. 1 Printed in U.S.A.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOQGAND POLICE SCIENCE

Copyright 0 1972by Northwestern University School of Law

STATISTICAL HISTORY

CRIME IN DENMARK-A KARL O. CHRISTIANSEN*

Denmark's population numbers less than five million persons. In most respects the population may be characterized as homogeneous; there exist no minority group conflicts. The main part of the population lives in towns, 28% in the capital and 31% in other towns in 1960. Only 41% of the population lives in rural areas. Apart from a considerable movement of persons from rural districts to urban districts population mobility is low. Denmark is often termed a welfare state. The social welfare and security system provides maternity care, free meals for needy children, home help service, relief to orphans, child welfare and sickness insurance, pensions for disabled persons, and aid to people suffering from chronic diseases. Denmark's different forms of poor relief include unemployment insurance, old age pensions, relief to widows and widowers, and subsidies for funeral expenses. The relatively high social stability of the population and the small size of the country make Denmark an ideal place for sociological and criminological research. The identification of a person is only in rare cases a problem. Because of a good demographic bookkeeping system, it is almost always possible to trace an individual. The official Danish criminal statistics date back to 1828. The first four annual surveys were published in a governmental periodical; they covered the years 1828-31. The thirteenth volume of Collection of Statistical Tables (Statistisk Tabelvark) was published in 1847 and contained "detailed crime tables for the Kingdom of Denmark for the years 1832-40, with a general exposition of their content." Since 1933 they have been published in Statistical Reports (Statistiske Meddelelser) which is a direct continuation of the Tables. Today information on offenses for public use is registered in two places: the local Penal Registers and the Central Police Register (Rigsregistraturen). The Central Police Register is mainly for * Professorof Criminology,the Universityof Copenhagen. t ResearchAssociate,Institute of CriminalScience, the Universityof Copenhagen.This paperis basedin part on an articleby the two authorswhichappearedin the 1967publicationof the DanishJournalJuristen.

AND

S. GRAM JENSENt

the use of the police but it contains information which goes far beyond an individual's conviction record. It is almost always possible to find an individual who at any point in his life has been dealt with officially as a result of violations of the penal code. From the Local Penal Registers is taken the major part of Denmark's annual "Criminal Statistics." Since the total number of all crimes in Denmark cannot be computed, this article deals only with those crimes which have been registered with the police. Furthermore, because an empirical study of crime in Denmark must be based first and foremost on those crimes which are solved we shall direct our attention primarily to only one-third of all registered crimes. The criminal statistics on which this article is based date from 1841 to 1968. The official criminal statistics of today contain, among other things: (1) police statistics (information on offenses known to the police); (2) statistics of sanctions (information on penalties imposed on offenders by law enforcement agencies);' (3) prison statistics (information on imprisoned offenders); (4) statisticsoffirst offendersand recidivists.2 These categories of crime statistics are based on different statistical units. The statistical unit for the police statistics is "the offense known to the police." For sanction statistics, the statistical unit is "the sanction used against an offender in consequence of one or more offenses." It should be noted that the statistics of sanctions express the number of convictions and other sanctions, not the number of persons convicted. A person registered in a given calendar year, for example, may have incurredmore than one penal sanction.3

82

The measuringunit is the sanctionimposed,such as imprisonment,preventivedetention,confinementin a mentalhospital,conditionaisentenceor chargewithdrawalafter the accusedis provenguilty. Data is available on the numberof sanctionsimposed,theirnature, and personalinformationabout the offender. 2 Informationon the recidivismrateis availablefrom some of the annual reportsof the Directorof Prison Administrationand the National Commissionerof Police. The latest available reports from these two sourcescover1967and 1970respectively. 3The Institute of CriminalSciencein Copenhagen has foundthat the numberof mensentencedis roughly 10% less than the numberof sentencesimposed,for this reason.

CRIME IN DENMARK

1972]

There are three fundamental concepts in crime description: 1) incidence, 2) prevalence, and 3) risk. On the basis of such concepts, the distribution of crime in society can be numerically described in different ways. The incidence of crime may be defined by the number of persons per population group who are known to have committed criminal offenses within a given period of time. The prevalence of crime may be defined as that proportion of the total population that has committed a criminal offense up to a given point in time. The crime risk may be defined as the probability of occurrence of certain criminal activity in the future. It indicates the probability that a person chosen at random from a specified population will be recordedas a criminalwithin a particularperiod. More precise meanings for these concepts will appear below. The following sections will be devoted to a survey of crime in Denmark based on 1) statistics of sanctions, 2) police statistics, 3) prison statistics and 4) the extent of criminality within the Danish population. Finally, we will

83

offer a few summarizing observations on the trend of crime in Denmark. THE STATISTICS OF SANCTIONS The first dozen years for which data on crime in Denmark are available demonstrate, as one should expect, the difficult statistical task which law enforcement authorities had undertaken. While we are tempted to begin our survey of crime in Denmark in 1866 when a new criminal code was introduced, it is difficult to avoid referringto some interesting facts reported during the two DanishGerman wars in 1848-50 and in 1864. Based on the incidence of prosecutions of men during the period 1841-65, we find that the first decade of this period was characterized by an irregulardownwardtrend in the incidence of crime. This trend culminated in a very low rate of crime during the war years 1848-50. A subsequent increase in the crime rate after the war did not restore the crime rate to its 1841 level. In 1864, again a year of war, the crime rate once again declined appreciably. Part of the explanation for the de-

Numberof personsprosecuted(in absolutefigures) 2900 -

28002700-

\

2600-

\

2500-

\

24002300-

\

2200-

\

2100-

\

20001900180017001600150014001300120

I

I

'

I

i

I

L

I

I

I

I

I

1841 184'. 1843 1844 1845 1846 1847 1848 1849 1850 1851 1852 1853 1854 1855 1856 1857 1858 1859 1860 1861 1862 1863 1864 1865

FIGURE 1.

Numberof personsprosecutedduringthe years 1841-1865.

year

[Vol. 63

K. O. CHRISTIANSEN AND S. GRAM JENSEN

84

The incidenceof convictionsper thousand

10

8 6 6

5 4-

32 1 ..........................

1866

70

74

78

82

86

90

94

98

1902 06

10

14

18

22

26

30

34

I

I

I

I

I

I

I

38

42

46

50

54

58

62

--I

66

FIGURE2.

The incidenceof convictionsof men duringthe years 1867-1968.(Convictionsof men for offensesagainst the CriminalCode). crease in crime during these war periods can be attributed both to the low price of rye during these years and to the removal of the socially most dangerous men into the army. After the introduction of the Criminal Code of 18664the crime rate rose to a significantly higher level than in the previous period. It is questionable whether this was a consequence of the new code or an expression of a real increase. This development is depicted in Figure 2, based on the incidence of convictions of men. The curve has been surprisingly constant over the last hundred years. The rate of male convictions has remained between 0.3 and 0.4% annually. Apart from the most recent years, only three exceptions from this static rate should be pointed out: there was a considerable increase in crime in 1918, a less pronounced increase in 1936, and a prolonged rise in the level of crime from 1940 to 1953-55. For the years 1944-45 the numbers do not reflect a real trend because of the dissolution of the Danish Police Corps in September 1944, which accounted for the rise in the level in crime in 1944. After 1946 the incidence of crime in Denmark declined markedly, reaching a postwar low of 0.37% in 1960. Recent years have witnessed another increase in the crime rate. In 1963 and 1964 the rate of incidence was 0.40% 4The CriminalCode of 1866 was in force until the end of 1932. At that time the CriminalCode of 1930 becameeffective.

and by 1968 it had climbed to 0.45%. It is noteworthy that the world economic crises of the late 1920's and early 1930's had a negligible effect on the Danish crime rates. Three important components of this general trend of crime in Denmark from 1866 to 1968 are the number of male offenders, the number of crimes of violence committed and the age group composition of offenders. With respect to the composition of offenders according to sex, we find that the percentage of female offenders has declined from 25% in 1866-70 to 7% by 1968. This trend was upset for a brief period in World War II when the number of female convictions rose at a higher rate than the number of male convictions. Crimes of violence among men have shown a vascillating trend. From 1867-70 to 1905 the rate of violent crimes increased from 0.25 to 0.75 per thousand. Thereafter the level of violent crime decreasedmarkedly, and despite a considerable increase in the 1930's, the violent crime level in 1966 was the same as it had been one hundred years ago. Sexual offenses have exhibited a similar increase and decline, although some criminologistscredit the most recent decline to the legalization of obscene literature and photographs in 1967 and 1969.6 5See B. KUTSCHINSKY, STUDIES ON PORNOGRAPHY AND SEX CRIMES IN DENMARK: A REPORT TO THE UNITED STATESPRESIDENTIALCOMMISSION ON OBSCENITY AND PORNOGRAPHY(1970).

85

CRIME IN DENMARK

19721

TABLE 1 TO THE NATURE OF SANCTIONSIMPOSEDON MEN IN 1968 FOR OFFENSES AGAINSTTHE CRIMINALCODE, ACCORDING THE SANCTIONS AND THE AGE OF THE OFFENDERS. ABSOLUTE AND RELATIVE FIGURES. Age ~Age

~

Charge withdr.

Abs. figures

Total of

More severe sanc.

Fine

Abs. figures

Abs. figures

Absolute

Sanctions

per 100,000

15 years old

413

183

3

599

1,562

" " " " " " " " "

657 624 338 239 203 165 121 95 68

227 251 210 178 144 117 96 78 51

35 144 617 705 674 570 510 524 439

919 1,019 1,165 1,122 1,021 852 727 697 558

2,434 2,668 2,999 2,799 2,394 1,901 1,596 1,580 1,357

236

234

1,273

1,743

1,028

264 134 86

260 183 122

1,277 649 285

1,801 966 493

635 325 173

46

66

109

221

59

3,689

2,400

7,814

13,903

763

16 17 18 19 20 21 22 23 24

" " " " " " " " "

25-29 years old 30-39 40-49 50-59

" "

" " "

60 years and over Total

The two most significant increases in the crime rate over the last hundred years occurred in 1918 and during the Second World War. The 1918 increase incorporated an increase of crime of 120% for men 15-20 years of age, 80% for men 21-24 years of age, and 30% for men 25-40 years of age. The increase in crime during the Second World War was the same for all age groups. War conditions affected criminality in younger and older men the same way. The fact that the incidence of crime in Denmark over the last hundred years has remained within the rather narrow limits of 0.3% to 0.4%6 is most remarkable in view of the corresponding violent expansion of industry. The explanation is not found in changes in the law. The rate of thefts, for instance, fluctuated over the period within narrow limits and did not show a long-term tendency to rise. It may be that the development of social welfare and security measures and a modem criminal policy was able to counteract or eliminate the crime factors which usually correlate with industrialization and urbanization.7 6 This is not a statistical artifact. See CHRISTIE,

51 (1965); Christie, Pa kant med KRIMINALSOSIOLOGI

samfunnet, in DETTEER NORGE235 (J. T. Ruud ed.

With the advent in 1960 of the publication of a conspectus of statistics of sanctions, the criminal population has been broken down into yearly classifications of offenders by age up to age 24, at which time offenders are classified in age groups covering several years. Information has been provided about the number of sentences, fines, and charge withdrawals (where the accused is guilty) for offenses against the penal code. By adding together these various sanctions an aggregate expression of the crimes which engendered them is obtained. The statistics for 1968 show that in this year a total of 15,430 sanctions were imposed, of which 13,903 were imposed on male offenders and 1,527 IN CRIMINOLOGY

161 (1968). At the same time, an

increasinglyhigherregardfor individuallibertiesmay have created a reluctanceto apply penal measures. Christiehas also examinedthe problemfromthe viewpoint that the upperlimit of the sanctionrate indicates how many people a society feels it can safely punish. The lowerlimitwouldthen showthe society'sminimum demand for punishmentto serve the socially useful functionsof singlingout scapegoats,objectsof aggression, and illustrationsof sociallydisapprovedbehavior. These considerationsare reminiscentof the theoriesin E.

DURKHEIM,

(1893);

DE

LA DIVISION

DU TRAVAIL

SOCIAL

P. FAUCONNET, LA RESPONSABILITP (1928);

S. RANULF, THE JEALOUSY OF THE GODS AND CRIMINAL

LAW IN ATHENS (1933-34). See also V. AUBERT, OM 1963). 7 Christie has interpretedthe static nature of the STRAFFENS SOSIALEFUNKSJON (1954); Reiwald, Verbrein als Teil derGesellschaftspsychohygiene, Danish crime rate as an expressionof a stable social chensverhiitung attitude towards the severity of penalties. Christie, DIE PROPHYLAXE DES VERBRECHENS (H. Meng ed. Changes in Penal Values, in 2 SCANDINAVIANSTUDIES 1948).

K. O. CHRISTIANSEN AND S. GRAMJENSEN

86

Vol. 63

Cumulated Crime frequency per thousand

1201101009080 70605040302010I!

I

20

IIt

30

I

40

I'!

50 FIGURE

60

70

3.

The risk of being registered as criminal shown from the crime frequency for men (based on the statistics of sanc-

tions) 1968.

on female offenders.Of the total, 8,447 of the penal- puted that the crime prevalence in Denmark as of ties were more severe than fines. Female offenders, December 31, 1953, was between 7% and 8%. who have little numerical importance, are not The calculations were based on the official criminal considered below. statistics for the period 1890-1953, which take into Table 1 immediately shows that the 15-24 year account population and mortality statistics and age group is criminally the most active. Of the cover all men under age 72 who received sanctions 13,903 sanctions which were imposed on male greater than fines. offendersin 1968, the 15-24 year olds accounted for The crime risk, also defined above, is a third no less than 8,679, or 62.4%. As has so often been numerical expression of the extent of crime. The pointed out, the crime problem is to a great extent crime risk was calculated in a Danish study' a problem of youth. which, using a procedure slightly different from The table also shows the following distribution of that employed by Dahlberg,'? examined the years sanctions: charge withdrawals: 26.5%; fines: 1937, 1939, 1949, 1951, 1953 and 1955. Some re17.3%; more serious sanctions: 56.2%. More sults of this study, supplemented by figures for the informative is the incidence of sanctions, measured year 1968 are summarized below. as the number of sanctions in relation to the size The figures for 1968 show the risk that a man of the age group involved. The sanction incidence is who lives to age 70 will be punished for a criminal comparatively high at age 15, rises sharply the offense with a sanction more serious than a fine is following year and culminates at age 18 with about 12%. For a woman the corresponding risk approximately 3,000 sanctions per 100,000 men. has for a number of years been as low as 1-2 %. From age 20 the sanction incidence falls quickly, The risk for each age group for the years 1937, and by age 24 it is below that of the 15 year olds. 1951, 1955 and 1968 is calculated from the inciThe crime prevalence defined above is a numeri9Christiansen,M0ller, & Nielsen, Kriminalitetsrisical expression of the distribution of criminals in koen i Danmark, f&r og efter krigen in NORDISKTIDsthe population. Christiansen and Nielsen8 com- SKRIFT FOR KRIMINALVIDENSxAB300 (1960) and 73 8 Christiansen & Nielsen, Nilevende straffede maend Danmark, in NORDISK TIDSSKRIFT FOR KRIMINALVIDENSKAB 18 (1959).

i

(1961). 10Dahlberg, A New Method in Crime Statistics Ap-

plied to the Populationof Sweden,39 J. CRIM.L.C. & P.S. 327 (1948).

87

CRIME IN DENMARK

1972]

TABLE 2 RISK OF BEING CONVICTEDOF AN OFFENSE AGAINSTTHE CRINAL CODE, WITH A SANCTIONEXCEEDINGA FINE. (MAUES, BY AGE GROUP, FOR CHOSEN YEARS) Basis of Calculation Year

1937

~~Year Age Group

below 18 years 18-20 years 21-24 25-29

" "

30-39 40-49

"

50-59

"

60-69 1951

1955

below 18 years 18-20 years 21-24

"

25-29 30-39

" "

40-49 50-59 60-69

" " "

below 18 years 18-20 years 21-24 25-29

" "

30-39

"

40-49

"

50-59 60-69 " 1968

below 18 years 18-20 years 21-24

"

25-29 " 30-39 " 40-49 " 50-59 60-69

" "

~

Number of first-time offenders

Population

Incidence

Risks

Mean incidence per thousand of first-time offenders

Cumulatedincidence per thousand persons reaching the upper age limit

10 674 699 457 605 292 141 61

100,800 99,200 128,200 163,200 280,600 225,100 179,500 123,400

0.10 6.79 5.45 2.82 2.16 1.30 0.79 0.49

0.30 20.67 42.47 56.57 78.17 91.17 99.07 103.97

27 821 672 516 775 527 284 88

90,800 87,500 117,300 153,200 311,800 291,700 227,200 162,100

0.30 9.38 5.73 3.37 2.49 1.81 1.25 0.54

0.90 29.04 51.96 68.81 93.71 111.81 124.31 129.71

31 795 595 401 565 392 214 94

96,800 91,000 114,200 144,700 306,600 302,800 245,400 172,500

0.32 8.74 5.21 2.77 1.84 1.29 0.87 0.54

0.96 27.18 48.02 61.87 80.27 93.17 101.87 107.27

167 1,498 935 478 548 331 167 78

114,400 121,800 175,800 169,600 283,800 296,900 283,700 216,900

1.46 12.30 5.60 2.82 1.93 1.11 0.59 0.36

4.38 41.28 63.68 77.78 97.08 108.18 114.08 117.68

dence, given in column 3 of Table 2. The risk for 15-17 year-olds is three times the incidence of crime for that age group. In column 4 the cumulated incidence is shown for all age groups. In 1937 the rate increased from 0.30 per thousand for 15-17 year-olds, to 20.67 per thousand for 18-20 year-olds, to 103.97 per thousand, or about 10%, for males living to age 70. It can be seen that the risk calculated on the basis of the annual incidence will vary from year to year. Thus a prediction based on risk figures will only hold true if the

incidence of crime remains at approximately the same level as that of the base year. The risk for both sexes is higher in the towns than in the country. The risk for crimes against property and sexual crimes shows its highest increase at age 18-20, while that for crimes of violence increases strongly until age 25. The risk curves for crimes of violence and crimes against property follow the characteristic course of a sharp rise in the lower age groups and a falling off with age. In contrast, the risk of being registered for

K. 0. CHRISTIANSEN AND S. GRAM JENSEN

88

TABLE 3

[Vol.63

162,379 cases in 1968, more than 80% of the

OFFENSESKNOWNTOTHEPOLICEIN 1968 CLASSIFED offenses which came to the knowledge of the police. The police statistics also contain information on TO KIND OF CRIME ACCORDING the number of crimes solved. By taking the number Absolute Percent- of crimes solved as a proportion of the crimes numbers ages registered and reported; the percentage of crimes solved can be calculated. Although the figure is 1.6 Sexualoffenses..................

3,060

Crimes of violence ............... Offenses against property:

3,309

1.7

Thefts (including thefts of motorvehicles) .............162,379 Embezzlement, fraud, breach of financial trust and misappropriation of funds.....12,894 Other offenses against property ............10,955 Other offenses ...................

186,228 1,729

95.8 0.9

Total ..........................

194,326

100.0

sexual offenses remains more or less constant over the years. THE POLICE STATISTICS CRIMINALITYIN 1968

Danish police began collecting statistics on crime in 1921. The unit used in police statistics is the offense, either reported directly to the police or brought to their attention in some other way. However, the statistics do not include all punishable offenses. Most recorded offenses include violations against the Danish Civilian Criminal Code of April 15, 1930. But of statutes outside the code only the 1950 animal protection statute and the 1956 statute on abortion'l have their violations recorded. This is done to provide continuity in the yearly statements, since both cruelty to animals and illegal abortions were formerly criminal offenses. Police statistics (Kriminalstatistik1968, Tabel 8) for 1968 show 194,326 criminal offenses.12Of these, crimes of violence and sexual offenses comprised

only 1.7% and 1.6% respectively. Crimes against property account for most of the offenses. Theft alone, including theft of motor vehicles,18totaled 1 The act now in force dates from March 24, 1970.

not exact in that it contains offenses committed the previous year, it is the best approximation available. However, it can at times be misleading. If for a category of crimes, many offenses are committed at the end of one calendar year and are solved the next year, the percentage of crimes solved in the second year may be excessively high, e.g., over 100%. In 1968 the overall percentage of crimes solved was 31%. In the capital the percentage was 24%, in the provincial towns 33%

and in the rural districts 37%. In Denmark as in other countries, increasing urbanization is accompanied by a decrease in the percentage of crimes solved. However, the percentage of crimes solved is a statistic of limited interest because it fluctuates greatly from one category of crimes to another. For the most serious crimes, which attract police resources and public support for the solution, the percentage solved will be high. For certain offenses against property it will be fairly low. Many thefts are only reported to the police because insurance companies demand it, and of these many result in little more action than the filing of a report. In 1968 there were 26 cases of homicide reported and 14 solved, 342 robberies reported and 107 solved, and 162,379 thefts (including thefts of motor vehicles) reported and 37,636 solved. Statistics from this and other years indicate solution of % of all violent crimes. Crimes solved include 3i of all homicides and sexual offenses, M of all robberies and

x

of all thefts. CRIMINALITY1933-66

The following section will examine the trend in crime during the period 1933-66 on the basis of published police statistics. 1933 is chosen as a starting point because the current criminal code came into force that year. In 1933 a total of 78,078 criminal offenses were registered by the police. A crime index was calcu-

260,073 offenseswere recordedin 1970 according lated using this year as a basis (78,078 -- 100). to the Annual Report of the National Commissioner Figure 4 shows that the period falls into four of Police (POLITIETSARSBERETNING). clearly distinct subperiods. 13 Thefts of motor vehiclesin Denmarkconstitutea In the years before World War II, the number of separatecrimein most cases namedbrugstyveri. 12

CRIME IN DENMARK

1972]

35

37

------

39

41

43

45

47

49

51

53

55

57

89

59

61

63

index based on absolute figures (1933 = 78,078 offenses = 100) Index based on relative figures (1933 = 2,138.5 offenses per 100,000 inhabitants = 100)

FIGURE 4.

Offensesknownto the police 1933-68 (absoluteand relativefigures). offenses remained at about the same level as in 1933. For 1938 and 1939 the index numbers are slightly higher, 104 and 105 respectively. During World War II offenses known to the police increased markedly. For the first four years of the German occupation the respective index numbers are: 1940: 123; 1941: 168; 1942: 198; and 1943:213. The last index number represents 165,906 criminal offenses, the largest number registered in a single year. For 1944 and 1945 no police statistics are available, because in September 1944 the Danish police force was dissolved by the German occupying power. It did not resume its duties until the liberation of Denmark in May, 1945. There are no grounds for assuming that the increase in crime was halted until well into 1945. This increase during the war years consisted mainly of increases in crimes of violence and offenses against property. These doubled from 1937-38 to 1943. Other offenses increased only by 40% and sexual offenses increased by only 18%. After 1946 known offenses decreased markedly. In 1946 the index was 157, and it did not exceed

this level until 1960. In 1950 the index dropped to 140, and in 1959 it rose to 152. Thus post-war crime stabilized, but at a rate 33% to 50% higher than the pre-war level. The 1946 decrease was particularly due to a decrease of crimes of violence and offenses against property. The number of sexual offenses hardly varied. Not until 1960 did the index increase above the level of the first post-war year. An increasing trend is visible in the index numbers of the following years: 1960: 162; 1961: 168; 1962: 173; 1963: 183; 1964: 192; 1965: 199; 1966: 195; 1967: 219; and 1968: 249. Two factors must be kept in mind while examining these statistics. One is that offenses range from rape and murder to indecent exposure and disorderly conduct. Thus it is difficult to say what social phenomena are involved in a change in the raw data. The other factor is that during this period the population of Denmark increased by more than a million persons, and Danish society became more urbanized. Other demographic

90

K. 0. CHRISTIANSEN AND S. GRAM JENSEN

factors like distribution of population by sex or age group may also have affected the trend. No index has yet been constructed to take these factors into account. The nearest approach is the index of crime rates giving the number of known offensesper 100,000 inhabitants. Figure 4 shows an increase in both the absolute and relative offenses coming to police attention over the 1960's. It is evident from Figure 4 that the relative figuresof crimes per 100,000population correspond to the trends of the absolute figures, although the numbers are smaller. Like the absolute figures, the relative figures divide the 1933-1968 period into four clearly distinct sub-periods, which differ only in that the third period stretches from 1946 to 1962, rather than to 1959. During the 1933-39 sub-period, the relative index remained near 100. During the second subperiod it increased sharply from 117 in 1940 to 195 in 1943. In the third sub-period, 1946-62, the index was considerably lower than it had been during the second one. Starting at 139 in 1946, the index fell to a low of 119 in 1950 and remained around 120 until it began to increase at the end of the sub-period, rising to 128 in 1960, 133 in 1961, and 136 in 1962. In 1963, when the index climbed to 142, the fourth sub-period began. During this sub-period the crime index was higher than it had been in the first post-war year. The index rose to 165 in 1967 and 187 in 1968. The above description shows an increase in crimes registered with the police which by 1968 was nearly 90% above the pre-war level.

[Vol.63

embezzlement, 7.5 % for forgery, and the remaining 5.2% for other property crimes. 5.7% of the male offenders were convicted of sexual crimes, 6.1% of crimes of violence, and 1.6% of other crimes. Of the males imprisoned, 14.9% served sentences of less than 4 months, 18.6% served 4-6 months, and 29.3% served up to 1 year. Prisons for youth accounted for 11.0% of the sentences. Only 4% of the males had to serve more than 2 years. In contrast to many other countries, Denmark makes only moderate use of long-term imprisonment. 16% of the males imprisoned had never been convicted before, including 5.5% who had had earlier charges subsequently withdrawn. 19.3% had 5 or more previous convictions. About 15% of the imprisoned men were age 16-20, 50% age 21-29, 20% age 30-39 and 15.2% 40 or older. THE EXTENTOF CRIMINALITY WITHIN THEDANISHPOPULATION PREVALENCEOF CRIME

It would be of great interest to know what percentage of the Danish population has committed offenses against the criminal code. It is possible, however, only to know the percentage which has been convicted, and to recognize that an unknowable amount of criminality remains hidden. In Denmark, as stated earlier, whenever a person obtains a waiver of prosecution or is convicted of a crime, the police district in which he was born is notified of this action by law enforcement authorities. The police authority then records this information in the local Penal Register. However, the Penal Register does not indicate whether THE PRISON STATISTICS persons listed therein are still alive or are still In addition to police statistics and statistics on residing in Denmark. Such information must be sanctions, the official criminal statistics also con- obtained from the local Population Registers tain a summary of data concerning prisoners. (Folkeregistre). These record everyone currently Kriminalstatistik 1968: Table 27 states that in living in the district, and include age, date of 1968 a total of 2,133 persons, 2,061 men and 72 birth, name at birth and place of birth. To find the proportion of persons in any district women, were sent to state prisons or other major penal institutions. This total, as before, includes who are entered on the Penal Registers, one must only persons sentenced for offenses against the first select from the Population Registers those criminal code or for violations of the statutes on over age 15 and record their place of birth. One animal protection and abortion. will then check the Penal Registers in the birthIn 1967 2,029 persons, 1,953 men and 76 women, place of each person. This method is an accurate were sent to state prisons and other institutions. and simple means of calculating the prevalence of According to the Annual Report from the Danish registered criminals within a given district, but Directorate of Prisons (Beretning om faengsels- would be impractical for surveying the population vaesenet i Danmark) for 1967, 86.4% of the male of Denmark as a whole. An easier method would offenders in such institutions were convicted of be to search the Central Police Register and its crimes against property, 62.7% for theft, 10% for predecessors for mention of persons in a popula-

19721

91

CRIME IN DENMARK

tion sample. In 1954, Wolf, Kaarsen, and Hogh,l4 using a stratified random sample of 3,032 Danish males age 21 and over, found a Penal Registration prevalence of 8.6%. Christiansen and Nielsen,15 on the other hand, have used a more indirect method, but on the entire population. Working with the official criminal statistics for the years 1890-1953, plus population and mortality statistics, they determined that the prevalence of sentences higher than fines was, as of December 31, 1953, between 7% and 8% for men under age 72. There is a good correlation between the penal prevalence found by the direct method on a representative sample, and the conviction prevalence within the entire population of Denmark, found by the more indirect method.

Rec. i %

Beg. i % -

5.2

0.40

,r

4.8A-

~ ',

.....h~~

- 0.35 0.30

-

-

3.6

f

2.8

0.25

3~~~~~~~~~-0.20 10.15

\

2.4 2.0 -

I 1933 35 37

I, 39 41

43

I , 45 47

49

i 51

I 53 55

i 57 1959

FIGURE5.

The incidenceof male first-timeoffendersand male recidivists1933-60 per 100 of adult men and living male criminalsrespectively.

The figures on first offenders were related to the total number of men over age 15 as only this group From the official statistics of convictions (Krimi- was subject to criminalpunishment. The figures on nalstatistik 1968: Tabel 20) it can be seen that in recidivists were related to the calculated number 1968 a total of 4,739 first offenders, 4,252 men and of convicted men alive during the year concerned. 487 women, were sentenced to sanctions more The main results of the study are the following. At the beginning (1933-40) and at the end severe than fines. The term first offenderincludes: 1) persons who have not been previously sentenced, (1952-60) of the period, the incidence of first 2) persons who have previously been fined but have offenderswas approximately 0.2%. During the war received no other sanctions, 3) persons who were years it reached approximately 0.4%. The incinot registered for crime for 10 years after the date dence of recidivism in the 1930's was 3% but fell of their last offense and 4) foreigners with no in the late 1950's to about 2%. During the war convictions in Denmark. In the same year 3,708 years it was 5 %. Thus for the previously convicted recidivists, 3,562 men and 146 women, received the possibility of a future conviction was for most of the period 10 to 15 times as great as it was for sanctions which exceeded fines. The annual reports of the prison service record the unconvicted. Examination of Figure 5 shows those with previous convictions who are sentenced that the first offender and recidivist curves varied to one of the prison service institutions. The 1963 in essentially the same way from year to year. Over all years the majority of first offenders report shows that of the 2,025 men and 100 women released from prison service institutions in 1958, were in age group 21-24. If charge withdrawals almost 50% of the men and 41% of the women re- were included in the statistics, the majority of first offenders would be younger than 21. The turned to prison within 5 to 6 years. Christiansen and Pal" examined male recidivism 50-59 age group contains only ~; as many first in Denmark from 1933-60, using criminal sta- offendersas the 21-24 age group. Over all but certain war years, the incidence of tistics and mortality tables from 1866 to 1960 and statistics on the number of men in various age recidivism is highest for people under 21. Since groups for each year from 1933-60. Criminality the war the recidivism rate among the youngest was defined as offenses against the criminal code group has been around 12-15% while for the 50-59 which resulted in penalties more serious than fines. age group it has fallen from 1% in 1947 to barely ~% in the late 1950's. This means that with 14Wolf, Kaarsen, & H0gh, Kriminalitetshyppigheden advancing age the probability of recidivating i Danmark, in NORDISKTIDSSKRIFT FOR KRIMI1ALVIbecomes less than the probability of being punished DENSKAB 113 (1958). 15Christiansen& Nielsen,supranote 8. the first time. Evaluated this way, age is more 16 Christiansen & Pal, Detmandligerecidivi Danmark as a determinant of recidivism than of important FORKRIMINALVI1933-1960, in NORDISKTIDSSKRIFT crime. DENSKAB 29 (1965). FIRST OFFENDERS AND RECIDIVISTS

92

K. 0. CHRISTIANSEN AND S. GRAMJENSEN

[Vol.63

0.4% for over one hundred years. However, recent years have witnessed an increase in the conviction THE VOLUME OF CRIME IN DENMARK rate to more than 0.4% per year. The increase is greater for offenses known to the police (27%) The volume of crime in Denmark can be measthan for sanctions (14%). This difference cannot ured in different ways. Some results from this be caused by a small drop in the percentage of study may be summarizedas follows: offenses solved, but it can be seen as another illus1) In 1968, offenses known to the police tration of how difficult it is for society to "allow" amounted to nearly 200,000. Of these 30% were crime to move outside its "normal" area. solved, 24% in the capital, 33% in the provincial During recent years there has been marked uptowns, and 37% in rural districts. Of offenses ward trend in crime in Denmark, particularly in known to the police, offensesagainst property made the younger age groups. In the 1960's the 15-17 up almost 96%, sexual offenses 1.6%, and crimes has accounted for approximately of violence 1.7%. Compared with other countries year age group of all sanctions imposed. The ratio has varied /1 there is a low frequency of crimes against the from 24% (1961 and 1962) to 17% in 1967 and person. 18% in 1968. If the number of offenders is related 2) In the same year, about 14,000 persons had to the corresponding population figure, we find for offenses against the penal sanctions imposed that in the same period 1.3% to 1.6% of all 15 code, ranging from withdrawal of charge (despite olds have been subject to sanctions. For the year guilt) to deprivation of liberty. The incidence of 16 olds the percentage varied between 1.9% year sanctions was 0.76% for males and 0.08% for and 2.6%, and for 17 year olds between 2.3% and the females. Both the male and female crime rates 2.9%. peak in the 16-19 year age group. Non-instituDurin the 1966-68 period there has been a 2 of the tional treatment was utilized in about marked increase in the crime rate. However, male and 90% of the female cases. sexual offenses declined 27%, a trend, as previously the fre3) The prevalence of male crime (i.e., noted, which some attribute to a change in the quency of living men who have been convicted laws on obscenity. Crimes of violence increased before the age of 70 of at least one offense against but this is largely attributed to reckless 14%, by the penal code) is between 7% and 8%. The inwhich increased from 472 in 1966 offenses, driving crease in the incidence of male crime during the 586 in 1968, while more serious violent offenses to last years will only slowly make itself felt, so the remained at the same level, 1,114 and 1,111 for prevalence is still likely to be at the 7-8% level. 1967 and 1968. The largest increase has come in 4) The male risk of being convicted at least crimes against property. Fraud and embezzleabout offenses the code was once for penal against ment increased 51%. This increase is attributed to 12% based on 1968 statistics. The corresponding bad check cases in the aftermath of a change in female risk was below 2%. banking procedure. There has also been a 27% increase in theft, including theft of motor vehicles, THE DEVELOPMENTOF CRIME a 49% increase in robbery and a 51% increase in The most salient feature of the long term trend receiving stolen goods. These increases are viewed of crime in Denmark is its surprising constancy. by some criminologists as evidence of a movement Except for the two world wars, the crime rate has toward more professional and organized crime, rested between the narrow limits of 0.3% and such as is found in the United States. SUMMARY AND DISCUSSION

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright O 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

THE RISK OF FAILURE DURING THE EARLY PAROLE PERIOD: A METHODOLOGICAL NOTE JOHN E. BERECOCHEA*,ALFRED N. HIMELSONtANDDONALD E. MILLERf on Law Enforcement and the Administration of Justice reported, using information from the State of Washington prison system, that "... violations on parole tend to occur relatively soon after release from an institution, nearly half of them within the first 6 months after offenders are released, and over 60 percent within the first year." 4 Numerous other studies using the same method could be given. This paper will focus on the method of assessing It had been knownfor a long time that the highest failure rates which was used in these studies and percentageof postprisonfailures occurs within 6 the question it answers and the results it compare monthsafter release,with the greaternumbertakwith the questions answered and the reachieves 60 it was But not the first days. ing place during sults realized by two alternative methods. until the early forties that penal and correctional The method used in each of the studies cited institutionsrealizedthat somethingmust be done to help inmatesbridgethe gap betweenthe prison above answers the question: "Of all those who violated their parole during a given period, how communityand life in free society.... had they been on parole at the time of their Statistical evidence purporting to support this long failure?" While this is a legitimate question, is it claim has been gathered and reported from many the proper question to be asked? Should not the jurisdictions. Lunden in discussing his data on be: "What are the chances of failure on recidivism among boys and girls released from question the early period of parole compared parole during training schools in Iowa stated: to later periods?"This is not the question answered The data revealsthat the first three monthsconby the studies cited above. In each they considered stitutes the crucialperiodfor parole violation. If only those persons who failed. The question of risk, the juvenile does break parole the boy or girl is however, must be answered in terms of the entire most apt to do so within the first three months population who risk parole failure. This includes after the date of parolefromthe institution.2 those who do not fail as well as those who fail. Another study, using statistical data on federal Thus, these studies do not provide risk rates and parole violators during the 1949 fiscal year, re- cannot be used to answer the question of risk. The proper statistical method for answering the ported that 30 percent of the violations occurred within less than three months after release, 57 question of risk during a specified period of time percent within six months and 82 percent within following release to parole is simple. In question a year.8 The prestigious President's Commission form it is: "Of all those at risk during the specified * Senior Social Research Analyst, California De- period of time following release to parole, what partment of Corrections, Research Division, Los proportion violate their parole during that period?" Angeles. SOME FICTIONALEXAMPLES t Associate Professorof Sociology, San Fernando Valley State College.FormerlySeniorSocialResearch In order to demonstrate empirically that differAnalyst, CaliforniaDepartment of Corrections,ResearchDivision. ent methods of computing failure rates yield dift ResearchAnalyst, CaliforniaDepartmentof Cor- ferent results, a fictional parole system was created. rections,ResearchDivision,Los Angeles. 1Baker, PreparingPrisonersfor TheirReturnto the Five hundred men were released to parole per 43 (1966). month in this fictional system. In the first statisCommunity, 30 FED. PROBATION

Correctional administrators have long placed a heavy emphasis on the critical importance of the first few months on parole. They have used the claim that the risk of failure is at its highest during the first few months following release to justify halfway houses, preparole programs and intensive supervision by parole agents during the early parole period. The following statement is representative of that point of view:

2LUNDEN, STATISTICS ON DELINQUENTS AND DELINQUENCY267 (1964).

8Killinger,The FederalGovernment's Parole System,

14 FED. PROBATION 61 (1950).

93

4 PRESIDENT'S COMMISSIONON LAW ENFORCEMENT AND ADMINISTRATIONOF JUSTICE, THE CHALLENGEOF

68 (1967). CRIMEIN A FREESOCIETY

94

BERECOCHEA,HIMELSON AND MILLER TABLE 1

COMPARISON OF THREE METHODS OF COMPUTING "FAILURE RATES" IN A FICTIONALPAROLESYSTEM HAVING A CONSTANTMONTHLY FAILURE RATE Survivor Cohort Base Months to Failure

Follow-up

Method*

Ex Post Facto Failure Base Method**

Total Release Cohort Base Follow-up Method*

No. of Failure No. of Failure No. of Failure Failures Rate Failures Rate Failures Rate

1-3 4-6 7-9 10-12 13-15 16-18 19-21 22-24 25-27 28-30 31-33 34-36

29.4 27.6 26.1 24.5 23.0 21.7 20.5 19.2 18.1 17.1 16.0 15.0

5.9 5.9 5.9 5.9 5.9 5.9 5.9 5.9 5.9 5.9 5.9 5.9

352.8 331.2 313.2 294.0 276.0 260.4 246.0 230.4 217.2 205.2 192.0 180.0

11.4 10.7 10.1

9.5 8.9 8.4 7.9 7.4 7.0

6.6 6.2 5.8

29.4 27.6 26.1 24.5 23.0 21.7 20.5 19.2 18.1 17.1 16.0 15.0

5.9 5.5 5.2 4.9 4.6 4.3 4.1 3.8 3.6 3.4 3.2 3.0

* Numberof failuresand failurerates based on one month of releasesin the fictional system; increasing the numberof monthsof releaseswouldhave no effect on the analysis. In the survivorcohort method, the Failure Rate is a quarterlyrate based on a monthly survivorrate of 2.0 percent. ** Number of failuresbased on all returnsduringa system year after the system stabilized. tical experiment, the failures were computed at a constant rate of 2.0 percent per month based on the survivors, i.e., 2.0 percent of the 500 releases each month failed during the first month following release giving 10 failures, 2.0 percent of the surviving 490 releases failed during the second month giving 9.8 failures, 2.0 percent of the 480.2 survivors failed during the third month giving 9.6 failures, and so forth5 for thirty-six months at which time the rate was arbitrarily reduced to zero.6 This method might be referred to as the survivorcohortbasefollow-up method. In order to produce the type of data which has been cited in the prior literature, this procedure was carried out for four years (48 monthly release This method of computingperiod-specificfailure

rates has also been used in MANNHEIM& WILKINS, PREDICTIONMETHODSIN RELATIONTOBORSTALTRAIN-

ING127 (1955). 6The rate was reduced to zero in order to simplify the computations. This is only a slight departure from "reality" in as much as the rate of failure, no matter how it is computed, falls to a very low level after three years on parole.

[Vol. 63

cohorts) and all those who failed parole during a given system year were tabulated to produce a distribution of time on parole among the failures. These frequencies were then converted to proportions of the total number of failures during the given system year. This method might be referred to as the ex postfacto failure base method. In order to produce yet another set of rates based on another method, the number of failures per month produced by the fixed rate of 2.0 percent per month among the survivors was expressed as a proportion of the total number of men released to parole in each release-month cohort which was 500. This method might be referred to as the totalreleasecohortbasefollow-up method. The rates resulting from these three methods of computing failure rates are shown in Table 1. From Table 1 it can be seen that a constant failure rate (of 2.0 percent per month) using the survivor cohort base follow-up method produces "failure rates" in the other two methods which seem to show that the rate of failure decreases over time. Thus what is in actuality a constant rate of failure over time would, using the traditional method, give the appearanceof a higher risk during the early parole period. In order to demonstrate the obverse situation, namely that increasing rates of failure over time might not be detected using the traditional failure base method, Table 2 was constructed using a constant number of failures (7.172) per month for each month following release to parole (up to four years). This statistical experiment produces an increasing failure rate over time in the survivor base method but a flat rate in the other two methods. Again the results of the different methods are different. Tables 1 and 2 demonstrate that different questions are being asked by the three methods in as much as they yield different answers. Thus, the choice of the proper method depends upon a precise statement of the question to be answered. Some of the questions which might be answered using these methods are: 1. At what period of time following release to parole is the risk of failure at its highest or lowest point? The proper method for answering this question is the survivor method. 2. At what point in time following release to parole does the risk of failure stabilize, if at all? Again the survivor method is the appropriate one.

THE RISK OF EARLY PAROLE FAILURE

19721

95

TABLE 2 COMPARISONOF THREE METHODS OF COMPUTING"FAILURE RATES" IN A FICTIONALPARoLE SYSTEMHAVING A CONSTANT NUMBER OF FAILURES PER MONTH

Months to Failure

1-3 4-6 7-9 10-12 13-15 16-18 19-21 22-24 25-27 28-30 31-33 34-36

Survivor Cohort Base Follow-up Method*

Failure Base Method**

Total Release Cohort Base Follow-up Method*

No. of Failures

Failure Rate

No. of Failures

Failure Rate

No. of Failures

Failure Rate

21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516

4.30 4.50 4.71 4.94 5.20 5.48 5.80 6.16 6.56 7.02 7.55 8.17

258.192 258.192 258.192 258.192 258.192 258.192 258.192 258.192 258.192 258.192 258.192 258.192

8.33 8.33 8.33 8.33 8.33 8.33 8.33 8.33 8.33 8.33 8.33 8.33

21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516 21.516

4.30 4.30 4.30 4.30 4.30 4.30 4.30 4.30 4.30 4.30 4.30 4.30

*Number of failuresand failurerates based on one month of releasesin the fictionalsystem; increasingthe number of months of releases would have no effect on the analysis. In the survivor cohort method, the failure rate is based upon a constant number of failures expressed to the base of the number of people at risk at the beginning

of the quarter. ** Numberof failuresbasedon all returnsduringa systemyear after the system stabilized. 3. At what point in time following release to parole can the most failures or the highest proportion of failures be expected? The proper technique here is the total cohort base followup method. 4. Among those who fail parole during a given period of time such as a calendar year, how many can be expected to have been on parole for any specified lentgh of time? The failure base method should be used to answer this question. S. Do different kinds of parolees survive parole for different lengths of time? The total cohort base method is the method of choice here. 6. Is the risk of failure over time different for different kinds of parolees? For instance, is the risk level fairly stable over time for those convicted of homicide as compared to those convicted of narocitics crimes? The survivor cohort method is appropriatehere. Before leaving the discussion of the several methods, some further comments should be made on the failure base method. This method has several characteristics which would seem to limit its usefulness. First, as we have seen, it does not provide a measure of risk. Second, it tells us nothing about

those who do not fail. Third, the findings are very dependent upon changes in releasing practices. For instance, if the failure rate using the total release cohort base method was constant over time and if this constant rate was the same for successive release cohorts and if the number of releases per month increased steadily over successive cohorts, then the failure rate using the failure base method would yield a relatively high proportion of failures who had been on parole for a relatively short period of time. Thus the failure base method does not lead to the same results as the total release cohort base method. The rates produced by this method are influenced by changes in the number of people being paroled while the other two methods are not. AN ACTUALEXAMPLE USING NARCOTICADDICTS

The purpose of this part of the paper is to apply the procedures discussed in the fictional examples to an actual parole system. Two sets of data will be used to make this demonstration. Both sets of data are from the Civil Addict Program operated by the California Department of Corrections. It is essentially a correctional program for civilly committed

96

BERECOCHEA,HIMELSON AND MILLER

narcotic addicts and has been described elsewhere.7 While any narcotic addict may commit himself to the program, most of the addicts in the program were committed to it following a felony or misdemeanor conviction, usually for drug use or sales. The program consists of an institutional phase followed by release to the community under supervision, i.e., parole, called outpatient status. Those who violate their conditions of release may be returned to the institution; the majority of those who are returned violated their conditions of release by the use of narcotics. During the year 1966, 1,270 men were returned to the institution from the community. Table 3 gives a distribution of time spent in the community by these failures. It can be seen that most of these returnees (violators) had been in the community for only a short period of time. But, as argued above, this failure base method does not answer the question of risk as it does not include those who did not violate the conditions of their release and were not returned. In order to answer the question of risk we must use the survivor cohort base method, i.e., we must know the total number at risk and the number of those at risk who violated their release status in each successive time period. To obtain this information, all men released to outpatient status for the first time from June 1962 through June 1964 were used as the study sample, or population.8 Each releasee was studied for a period of three years. For each period following release the number of men who violated their conditions of release during that period was expressed as a percentage of the total number of those at risk at the beginning of the period. Those at risk were defined as all those in the community and under the supervision of the Department who were outpatients at the beginning of that period. All those who had their outpatient status suspended during prior periods were removed from the at risk population. For example, during their first three months on outpatient status, 227 of the 919 men at risk were returned or suspended giving a violation rate of 24.7 7 Kramer, Bass, & Berecochea, Civil Commitmentfor Addicts: The California Program, 125 AM.J. PSYCHIATRY

[Vol. 63

TABLE 3 TIME FROM LAST RELEASE TO OUTPATIENTSTATUS TO RETURN TO THE INSTITUTION FOR MALES RETURNED AS VIOLATORSIN 1966: CALIFORNIA CIVIL

ADDICTPROGRAM Months in Outpatient Status

Number

Returned

205 384 244 119 93 66 57 32

1-3

4-6 7-9 10-12 13-15 16-18 19-21 22-24 25-27 28-30 31-33 34-36

Totals

Cumulative Percent Returned

16.1

16.1 46.3 65.5 74.9 82.2 87.4 91.9 94.4 96.5 97.5 98.3 99.1 99.9

13 10 10 10

30.2 19.2 9.4 7.3 5.2 4.5 2.5 2.1 1.0 0.8 0.8 0.8

1270

99.9

27

37 or more

Percent Returned

TABLE 4 PROBABILITY OF FAILURE DURING GIVEN TIME PERIODS USING THE TOTAL COHORT METHOD AND THE SURVIVORCOHORTMETHOD FOR 919 SUBJECTS RELEASED TO OUTPATIENTSTATUS IN THE CALIFOR-

NIA CIVIL ADDICTCOMMITMENT PROGRAM-JUNE

1962-JUNE1964. Months on utpathent Status

Number Failures During Period

Failures as a Pct. of Number Released

1-3 4-6 7-9 10-12 13-15 16-18 19-21 22-24 25-27 28-30 31-33 34-36

227 187 114 79 47 23 17 20 16 11 14 5

24.7 20.3 12.4 8.6 5.1 2.5 1.8 2.2 1.7 1.2 1.5 0.5

Number Probability Available of Failure Beginning During of Period Period

919 692 505 391 312 265 242 225 205 189 178 164

.247 .270 .226 .202 .151 .087 .070 .089 .078 .058 .079 .031

128-36 (1968). 8This data is takenfromthat used in Bass, Narcotic percent. During the second period (months four Addict Outpatient Program, RESEARCHREP. NO. 36, through six) 187 of the 692 men at risk were reCALIF.DEPT. CORRECTIONS The used in data (1969). this report excludesfifteen people who died while on turned or suspended giving a violation rate of outpatient status or who were dischargedfrom out- 27.0 percent. The same procedure was followed for patient status as a result of technicalerrorsin their each of the 12 follow-up periods and the results of commitmentprocess.It also excludesone case which this analysis are presented in Table 4. was lost in the processof analysis.

1972]

97

THE RISK OF EARLY PAROLE FAILURE

The answer to the question as to the relative risk of parole violation over time for civilly committed narcotic addicts is that the rate of suspension (here taken as a measure of the risk of parole failure) is higher during the earlier periods following release and does decline over time until the risk levels off at about the fifteenth month. However, the rate of failure using the survivor method (exhibited in Table 4) is not nearly so high in the early months as it would appear if it were estimated using either the traditional failure base method (exhibited in Table 3) or the total cohort base method (also exhibited in Table 4). It should be noted that this study is based on narcotic addicts who, at least according to correctional and medical experts, would be expected to return to the use of narcotics as soon as they are released to the community. Thus if the theory did not hold for addicts it is unlikely that it would hold for other offender types. In this light this study casts some doubts upon the validity of the theory that the risk of parole violation is highest during the first few months following release. For the risk of failure during the first few months on outpatient status is not nearly so high in comparison to the second half of the first year as the theory would predict. In fact the largest change in the risk of failure occurs during the first half of the second year so that the risk is relatively high during the entire first year.

SUMMARY AND DISCUSSION

This study, utilizing several different methods of assessing the risk of failure during the early parole period, raises some question about the adequacy of a method based only on failures-which seems to be the most prevalent model today. Using an artificial data base, a comparison of the failure base method with two other methods based on cohorts followed over time revealed that each method yields sometimes radically different results. An analysis of some real data drawn from the California Civil Addict Program also revealed that the failure base method tends to exaggerate the risk factor in the first few months on parole as compared to a cohort method using survivors as its base. In view of this evidence, both logical and empirical, it would seem necessary to re-evaluate the notion that the first few months on parole represent a "crucial"period in the career of the average parolee. Further researchwould seem to be needed to establish the validity of this early risk period for various classes of offenders. Further inquiry is also needed into the question of how these rates are generated. It may be for example that part of the phenomenon results from organizational behavior; the parole system may act in such a way that early deviance is more likely to be noted and more likely to be reacted to in a negative fashion than is deviance in later periods.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICB SCIENCE

Copyright a 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

BOOK REVIEWS Edited by Bernard Cohen SYMPOSIUM-MEDICAL

JURISPRUDENCE. By

Jon R. Waltz, and Fred E. lnbau. New York: The MacMillan Company, 1971. Pp. xiv, 398. $10.95. The authors offer this as a text for the library of the physician and medical student to keep each abreast of his responsibilities and rights under the law. In three sections, "The Physician and the Civil Law," "The Physician and the Criminal Law," and "The Physician in Court,"

this book covers a vast quantity of material well presented. The authors are highly respected professers of Medical Jurisprudence and Forensic Science. They are aware of the problems that doctors face in their daily practice and which medical students should be prepared to face in the future. The excellence of this book is in its detail and clarity. The authors point out to the witness or potential defendant (doctor or student) the

1972]

97

THE RISK OF EARLY PAROLE FAILURE

The answer to the question as to the relative risk of parole violation over time for civilly committed narcotic addicts is that the rate of suspension (here taken as a measure of the risk of parole failure) is higher during the earlier periods following release and does decline over time until the risk levels off at about the fifteenth month. However, the rate of failure using the survivor method (exhibited in Table 4) is not nearly so high in the early months as it would appear if it were estimated using either the traditional failure base method (exhibited in Table 3) or the total cohort base method (also exhibited in Table 4). It should be noted that this study is based on narcotic addicts who, at least according to correctional and medical experts, would be expected to return to the use of narcotics as soon as they are released to the community. Thus if the theory did not hold for addicts it is unlikely that it would hold for other offender types. In this light this study casts some doubts upon the validity of the theory that the risk of parole violation is highest during the first few months following release. For the risk of failure during the first few months on outpatient status is not nearly so high in comparison to the second half of the first year as the theory would predict. In fact the largest change in the risk of failure occurs during the first half of the second year so that the risk is relatively high during the entire first year.

SUMMARY AND DISCUSSION

This study, utilizing several different methods of assessing the risk of failure during the early parole period, raises some question about the adequacy of a method based only on failures-which seems to be the most prevalent model today. Using an artificial data base, a comparison of the failure base method with two other methods based on cohorts followed over time revealed that each method yields sometimes radically different results. An analysis of some real data drawn from the California Civil Addict Program also revealed that the failure base method tends to exaggerate the risk factor in the first few months on parole as compared to a cohort method using survivors as its base. In view of this evidence, both logical and empirical, it would seem necessary to re-evaluate the notion that the first few months on parole represent a "crucial"period in the career of the average parolee. Further researchwould seem to be needed to establish the validity of this early risk period for various classes of offenders. Further inquiry is also needed into the question of how these rates are generated. It may be for example that part of the phenomenon results from organizational behavior; the parole system may act in such a way that early deviance is more likely to be noted and more likely to be reacted to in a negative fashion than is deviance in later periods.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICB SCIENCE

Copyright a 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

BOOK REVIEWS Edited by Bernard Cohen SYMPOSIUM-MEDICAL

JURISPRUDENCE. By

Jon R. Waltz, and Fred E. lnbau. New York: The MacMillan Company, 1971. Pp. xiv, 398. $10.95. The authors offer this as a text for the library of the physician and medical student to keep each abreast of his responsibilities and rights under the law. In three sections, "The Physician and the Civil Law," "The Physician and the Criminal Law," and "The Physician in Court,"

this book covers a vast quantity of material well presented. The authors are highly respected professers of Medical Jurisprudence and Forensic Science. They are aware of the problems that doctors face in their daily practice and which medical students should be prepared to face in the future. The excellence of this book is in its detail and clarity. The authors point out to the witness or potential defendant (doctor or student) the

98

BOOKREVIEWS

intricate operations of the law as it affects the medical profession. As a lawyer, I enjoyed the book. I found it an excellent and stimulating review of basic principles, as well as a provocative and challenging presentation of new ideas. Used carefully by a lawyer teaching doctors or medical students, this should be a fine teaching tool. Attempts to use it by non-lawyers as such a teaching tool might prove unsatisfactory and in my opinion should not be encouraged. The interrelationship between the medical profession and the law is complex. It sometimes is quite confusing to the lawyer inexperienced in such matters. Use of this book by a doctor or medical student withour competent guidance might lead him to unreliable or dangerous conclusions. The authors present the problems carefully, they demonstrate steps taken by the attorney for a plaintiff patient in those situations in which a patient may seek recovery from a doctor. They also present with equal clarity and thoroughnessproblemswith which the doctor defendant will be confronted. In each chapter the authors suggest practical methods to avoid or handle the problem discussed. This format contributes to the excellence of the book. It is encouraging that a number of medical colleges in this country now have available to them, on a full or part-time basis, highly skilled and qualified lawyers to teach Medical Jurisprudence. The availability of this book should enable every medical college to enlist, from among the Bar of its community or region, an attorney willing to undertake instruction of the medical student in this field. The attorney could present a stimulating, challenging, provocative course. He might be able to explain some of the inconsistent decisions annotated in this text. Whether he could explain bizarre decisions satisfactorily to a medical student is questionable. It might be interesting to observe his attempts to do this. The authors properly emphasize "The Physician and the Civil Law." Practically speaking, this is where the student will find his deepest involvement in problems in medical jurisprudence. A much shorter section, "The Physician and Criminal Law," presents the problems with which the non-defendant physician will be confronted. The student will realize the importance of additional training and experience which he will need to perform his role in the criminal matter. The lawyer instructor in this part of the course might obtain assistance of visiting lecturers in criminalistics. They should help the student understand

[Vol.63

his part in the investigation, preparation and presentation of the criminal case. The forensic medicine problems set forth briefly in Chapter 23 should be expanded and clarified. Many valuable tests are cited at the end of this two-page chapter. Expecially in this area, lectures by properly qualified instructors may be necessary to assist the student in understanding this aspect of his practice. Suggestions contained in "The Physician in Court" are excellent. They are simply and directly presented. In the opinion of this reviewer, this section is worthy of reprinting and mailing to every physician in this country as a valuable public service by some organization. Extensive use of and experience with this book should encourage the authors to up-date it constantly. While designed for the medical student, it might be an equally valuable tool in law schools. It should be studied by those chargedwith development and improvement of law school curricula. The law student as well as the medical student should profit from study of this book. ARTHUR H. SCHATZ,J.D.

Shatz & Shatz Hartford, Connecticut Many books have been published on the general subject of law as it applies to the practice of medicine. This book is another to add to that long list. But it is a valuable book and should not be lost to the medical profession. Indeed, it has much to recommend it to the medical profession particularly in this critical time when malpractice suits are so prevalent against the physician. In the first chapter, The Meaning of "Law," the authors quote Ludwig Boerne, the German author's comment "If nature had as many laws as the State, God himself could not reign over it." Reading this quote very early in the book, and recalling it as one reads the full text, it becomes obvious that the authors have related to the reader the core of knowledge which is necessary to understand our system of jurisprudence. As an example, the explanation of the adversary process and all of the procedural ramifications of an action at law is one of the clearest and most succinct which I have ever had the pleasure of reading. There is little doubt that the authors are well qualified and have written in clear and succinct language their interpretation of medical jurisprudence. Fortunately, the authors have not included in

1972]

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99

ultimate reasons are hidden from normal thought and are for most purposes "forgotten." These ideas surprised the world when Freud first expressed them. By now, they have become commonplace, yet for the most part they remain speculation. Dr. Burton, whose background is Freudian psychology, has chosen to test them. To do so she has studied three populations: twenty school-age children hospitalized with a fracture, forty-one school children who had at some time in the past been sexually assaulted, and twenty-five asthmatic children from a hospital ward and clinic. At first sight it seems inappropriate to "blame" children for misfortunes such as these. A moment's reflection will show that fractureshappen preferentially to children who behave recklessly. The element of victim-precipitation in sexual assaults on children is well recognized. And physicians have long been familiar with the importance of psychological factors in precipitating and relieving asthmatic attacks. It is a commonplace among physicians that children in severe asthmatic attacks often improve dramatically as soon as they are separated from their families and admitted to the hospital. The question is not whom to blame; it is what psychologic traits predispose certain children to such harmful events as fractures, assault, and illness. Mal-adaptive as these traits may become, we may assume that they originate in psychologic needs and in the child's unconscious attempts to meet such needs. Dr. Burton has studied the psychology of her subjects by comparing them to normal children. For each of the three populations she selected a matched control group, and used objective psyVULNERABLE CHILDREN: THREE STUDIES OF chological tests to compare the children and their CHILDREN IN CONFLICT:ACCIDENTINVOLVED mothers with the control group children and their mothers. Each of the three sections of her book CHILDREN, SEXUALLY ASSAULTED CHILDREN reviews the literature, proposes hypotheses, tests WITHASTHMA. ANDCHILDREN By Lindy Burton, these hypotheses and records the psychological New York: Schocken, 1968. Pp. x, 227. $6.50. differences between one set of subjects and its Freud was the first scientist who applied to human behavior the principle that nothing happens control group. There is no section comparing the without a reason. You do not forget a name by three groups, and in fact no section drawing general conclusions. accident, but because you unconsciously wish to The retrospective nature of the studies in fact forget it. A girl may become pregnant because she limits her possible conclusions. For example, if it her to wishes mother, spite (or rival) unconsciously or because she wishes to establish her adulthood. is found (as it was of asthmatic children) that they The reasons for a given action may be different are the products of pregnancies more difficult than for different people, but they may well come from those of the control series, we can only conclude similarities in the early life experiences of many that a mother who has struggled with the care of people which cause similar inner needs, which in an ill child for many years now remembers that turn are expressed in the same way. All behavior her pregnancy was difficult. This tells something is governed by the unconscious mind; that is, the about her present feelings, but does not necesthe text abstracts or quotes from court decisions and thus cluttered up a book with a vast amount of material printed in fine print. Likewise, as is so common in legal texts, entire articles (probably originating in a law review publication) are offered in lieu of originality by the authors. Instead, the authors have adequately documented their explanation of the law. At the end of each chapter, there is a bibliography quoted. This includes references to texts upon a given subject, to articles and then to notes and comments appearing in law reviews. This text on medical jurisprudence includes many interesting and important subjects relating to the practice of medicine. While the authors are not physicians, but lawyers, they have an instinctive insight into the problems medicine has. Of particular value are those chapters on informed consent, on experimental and innovative therapy, and transplantation of tissue and organs. The section of the book dealing with criminal law is particularly timely. Abortion statutes are now under reconsideration by many states. Drug addiction statutes too are being reevaluated in the light of our present social revolution. The last portion of the book is one which while necessary, it is to be hoped would be of no value to the reader. It is the physician as a court room witness. Hopefully, we will find the solution to the present malpracrice problem and thus no one will need to be a court room witness. CARLE. WASMUTH, M.D., J.D. Chairman, Board of Governors The Cleveland Clinic Foundation

1972]

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99

ultimate reasons are hidden from normal thought and are for most purposes "forgotten." These ideas surprised the world when Freud first expressed them. By now, they have become commonplace, yet for the most part they remain speculation. Dr. Burton, whose background is Freudian psychology, has chosen to test them. To do so she has studied three populations: twenty school-age children hospitalized with a fracture, forty-one school children who had at some time in the past been sexually assaulted, and twenty-five asthmatic children from a hospital ward and clinic. At first sight it seems inappropriate to "blame" children for misfortunes such as these. A moment's reflection will show that fractureshappen preferentially to children who behave recklessly. The element of victim-precipitation in sexual assaults on children is well recognized. And physicians have long been familiar with the importance of psychological factors in precipitating and relieving asthmatic attacks. It is a commonplace among physicians that children in severe asthmatic attacks often improve dramatically as soon as they are separated from their families and admitted to the hospital. The question is not whom to blame; it is what psychologic traits predispose certain children to such harmful events as fractures, assault, and illness. Mal-adaptive as these traits may become, we may assume that they originate in psychologic needs and in the child's unconscious attempts to meet such needs. Dr. Burton has studied the psychology of her subjects by comparing them to normal children. For each of the three populations she selected a matched control group, and used objective psyVULNERABLE CHILDREN: THREE STUDIES OF chological tests to compare the children and their CHILDREN IN CONFLICT:ACCIDENTINVOLVED mothers with the control group children and their mothers. Each of the three sections of her book CHILDREN, SEXUALLY ASSAULTED CHILDREN reviews the literature, proposes hypotheses, tests WITHASTHMA. ANDCHILDREN By Lindy Burton, these hypotheses and records the psychological New York: Schocken, 1968. Pp. x, 227. $6.50. differences between one set of subjects and its Freud was the first scientist who applied to human behavior the principle that nothing happens control group. There is no section comparing the without a reason. You do not forget a name by three groups, and in fact no section drawing general conclusions. accident, but because you unconsciously wish to The retrospective nature of the studies in fact forget it. A girl may become pregnant because she limits her possible conclusions. For example, if it her to wishes mother, spite (or rival) unconsciously or because she wishes to establish her adulthood. is found (as it was of asthmatic children) that they The reasons for a given action may be different are the products of pregnancies more difficult than for different people, but they may well come from those of the control series, we can only conclude similarities in the early life experiences of many that a mother who has struggled with the care of people which cause similar inner needs, which in an ill child for many years now remembers that turn are expressed in the same way. All behavior her pregnancy was difficult. This tells something is governed by the unconscious mind; that is, the about her present feelings, but does not necesthe text abstracts or quotes from court decisions and thus cluttered up a book with a vast amount of material printed in fine print. Likewise, as is so common in legal texts, entire articles (probably originating in a law review publication) are offered in lieu of originality by the authors. Instead, the authors have adequately documented their explanation of the law. At the end of each chapter, there is a bibliography quoted. This includes references to texts upon a given subject, to articles and then to notes and comments appearing in law reviews. This text on medical jurisprudence includes many interesting and important subjects relating to the practice of medicine. While the authors are not physicians, but lawyers, they have an instinctive insight into the problems medicine has. Of particular value are those chapters on informed consent, on experimental and innovative therapy, and transplantation of tissue and organs. The section of the book dealing with criminal law is particularly timely. Abortion statutes are now under reconsideration by many states. Drug addiction statutes too are being reevaluated in the light of our present social revolution. The last portion of the book is one which while necessary, it is to be hoped would be of no value to the reader. It is the physician as a court room witness. Hopefully, we will find the solution to the present malpracrice problem and thus no one will need to be a court room witness. CARLE. WASMUTH, M.D., J.D. Chairman, Board of Governors The Cleveland Clinic Foundation

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sarily prove anything about her pregnancy. The limitation applies to all retrospective studies, and is pointed out by Dr. Burton. On the other hand, the objective nature of the tests used to characterize the children is a strength of the study. Personality traits are difficult to describe, but can be measured with appropriate tests; moreover, projective techniques can be used to reveal many unconscious concerns and needs of subjects. The study findings are a composite of the results of several tests. The children who had been involved in accidents proved to be more assertive and unsettled than control children. They were described as impatient, demanding, often with temper tantrums, easily distracted, attention seeking, and more hostile. Children who had been assaulted sexually showed a greater need for affection than did the control children. This need appeared in both of two testing sessions a year apart, and the author believes that the assault most probably was a result of this aspect of the child's behavior. She attributes the need to a lack of maternal affection, and she finds no long-range detrimental effects of the assault on subsequent personality development. Asthmatic children are described as unsettled, as are the accident involved children, but in contrast are unforthcoming, nervous, moody, stubborn, and insubordinate. The mothers of asthmatic children are seen as more rejecting of the child than the mothers of control children. They tended to have had unplanned difficult pregnancies, and to handle their infants more rigidly. It is perhaps unfair to criticize this book for what is not in it rather than for what is. Dr. Burton's study was carried out impeccably, and her conclusions never go beyond what she has actually demonstrated. VICTOREISNER,M.D. School of Public Health University of California, Berkeley

[Vol.62

wished to develop community-based programs. The Youth Studies Center at the University of Southern California, sensing an opportunity to weld delinquency theory and a "field experimental model" method into an analysis of a correctional segment of the juvenile justice system, contracted the translation of theory into intervention principles for an "experiment" and its evaluation. The experiment was a three-year residential treatment center using 140 randomly assigned 16 and 17 year old boys at Silverlake, a sprawling home previously used as a small orphanage in a quiet neighborhood in Los Angeles, compared to 121 controls attending the Boys' Republic. A review of delinquency "theory" from Thrasher (1927) to Empey (1967) was developed into "basic postulates" from which "theorems" were deduced, producing an "axiomatic theory": lower class boys' lack of achievement creates strain (in the context of a middle-class success-oriented society) leading to almost exclusive association with peers, in turn generating delinquent "sub-cultures" which provide status, recognition, and a sense of belonging. The delinquent peer-identification causes stigma, resulting in more strain, and so on around the circle. Delinquency is thus "an emergent form of adjustment involving cumulative series of experiences and relationships." "As a means of assisting in the task of testing causation theory many of these input data were collected from eighty-five non-delinquent high school students.... similar to the delinquent population." The authors do not make clear which of the three groups (experimental, control, and "non-delinquent") contributed which data before, during, and after the experiment. The "before" data were gathered by questionnaires which were "Guttman scaled," producing five offense scale types, five commitment to peers scales, and six background measures. The Jesness Personality Inventory was also used to describe the boys' characteristics. Program "outcome" was assessed by official recidivism rates for a period of one year after all boys had been released. THE SILVERLAiRE EXPERIMENT:TESTING DELINGoodman and Kruskal's Gamma was used to QUENCYTHEORY AND COMMUNITYINTERVEN- measure the correlation between social class, TION,By LaMar T. Empey and StevenG. Lubeck. achievement, strain, peer identification and deChicago: Aldine Publishing Company, 1971. linquency in a fourteen-variable matrix representPp. x, 354. $12.50. ing the "postulates" and "theorems." The authors Although the Boys' Republic in California, found that "social class was of little explanatory dating to 1907, was a "total institution" stressing value... decreased achievement was associated citizenship, education, work and discipline, it with increased strain . ..increased strain was

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sarily prove anything about her pregnancy. The limitation applies to all retrospective studies, and is pointed out by Dr. Burton. On the other hand, the objective nature of the tests used to characterize the children is a strength of the study. Personality traits are difficult to describe, but can be measured with appropriate tests; moreover, projective techniques can be used to reveal many unconscious concerns and needs of subjects. The study findings are a composite of the results of several tests. The children who had been involved in accidents proved to be more assertive and unsettled than control children. They were described as impatient, demanding, often with temper tantrums, easily distracted, attention seeking, and more hostile. Children who had been assaulted sexually showed a greater need for affection than did the control children. This need appeared in both of two testing sessions a year apart, and the author believes that the assault most probably was a result of this aspect of the child's behavior. She attributes the need to a lack of maternal affection, and she finds no long-range detrimental effects of the assault on subsequent personality development. Asthmatic children are described as unsettled, as are the accident involved children, but in contrast are unforthcoming, nervous, moody, stubborn, and insubordinate. The mothers of asthmatic children are seen as more rejecting of the child than the mothers of control children. They tended to have had unplanned difficult pregnancies, and to handle their infants more rigidly. It is perhaps unfair to criticize this book for what is not in it rather than for what is. Dr. Burton's study was carried out impeccably, and her conclusions never go beyond what she has actually demonstrated. VICTOREISNER,M.D. School of Public Health University of California, Berkeley

[Vol.62

wished to develop community-based programs. The Youth Studies Center at the University of Southern California, sensing an opportunity to weld delinquency theory and a "field experimental model" method into an analysis of a correctional segment of the juvenile justice system, contracted the translation of theory into intervention principles for an "experiment" and its evaluation. The experiment was a three-year residential treatment center using 140 randomly assigned 16 and 17 year old boys at Silverlake, a sprawling home previously used as a small orphanage in a quiet neighborhood in Los Angeles, compared to 121 controls attending the Boys' Republic. A review of delinquency "theory" from Thrasher (1927) to Empey (1967) was developed into "basic postulates" from which "theorems" were deduced, producing an "axiomatic theory": lower class boys' lack of achievement creates strain (in the context of a middle-class success-oriented society) leading to almost exclusive association with peers, in turn generating delinquent "sub-cultures" which provide status, recognition, and a sense of belonging. The delinquent peer-identification causes stigma, resulting in more strain, and so on around the circle. Delinquency is thus "an emergent form of adjustment involving cumulative series of experiences and relationships." "As a means of assisting in the task of testing causation theory many of these input data were collected from eighty-five non-delinquent high school students.... similar to the delinquent population." The authors do not make clear which of the three groups (experimental, control, and "non-delinquent") contributed which data before, during, and after the experiment. The "before" data were gathered by questionnaires which were "Guttman scaled," producing five offense scale types, five commitment to peers scales, and six background measures. The Jesness Personality Inventory was also used to describe the boys' characteristics. Program "outcome" was assessed by official recidivism rates for a period of one year after all boys had been released. THE SILVERLAiRE EXPERIMENT:TESTING DELINGoodman and Kruskal's Gamma was used to QUENCYTHEORY AND COMMUNITYINTERVEN- measure the correlation between social class, TION,By LaMar T. Empey and StevenG. Lubeck. achievement, strain, peer identification and deChicago: Aldine Publishing Company, 1971. linquency in a fourteen-variable matrix representPp. x, 354. $12.50. ing the "postulates" and "theorems." The authors Although the Boys' Republic in California, found that "social class was of little explanatory dating to 1907, was a "total institution" stressing value... decreased achievement was associated citizenship, education, work and discipline, it with increased strain . ..increased strain was

1971]

BOOKREVIEWS

related rather strongly to identification with delinquent peers.... the relationship of strain to delinquency received the greatest support of any proposition.... and... the relationship between peer identification and delinquency was also strong." (p. 133). From this theoretical orientation, intervention principles emerged: the delinquent group is the target and later the vehicle of change. As it reduces strain, "guided group interaction," freed from institutional constraints and interacting with with external systems (i.e., legal, neighborhood, school and family), provides legitimate achievement eventuating into non-delinquency. Most of the evaluation of Silverlake focused on "whether the programs actually operated the way they were described on paper." A special social systems questionnaire, critical incident analysis, sociograms, impact of programson runaways and analysis of "boys who failed," comprised the description of the three-year process. The results indicated: "better mechanisms for quality control could have been developed... a serious problem developed relative to the feedback of research information to the action staff regarding implementation of the intervention strategy.... Chapters Seven and Eight, where it was shown that the implementation of program design was less than ideal." (p. 318). Silverlake was "overly concerned with control, overly constricted, and overly punitive," thereby making "achievement" difficult, with a consequent effect upon "strain." The outcome of the experiment appears to be two-fold. Silverlake was unable to reduce the basic problems defined in the intervention theory. Moreover, it may have increased them since only "46 per cent of the experimental subjects (as contrasted to 50 per cent of the controls) successfully completed the program. The remainder were runaways or in-program terminees." 40% of the experimentals recidivated compared to 44% of the controls, but of those successfully completing the programs, 27% of the experimentals and only 19% of the controls had one or more offenses. Empey's and Lubeck's work represents a tremendous integration of delinquency theory, research method, statistical sophistication, simulation, model building, typology construction, measurement techniques, action program design and correctional management analysis. These bridges between correctional theory and practice and between research and action make their book

101

required reading for researchers, methodology instructors, and correctional managers. It is unfortunate that the book's organization makes it hard to read. With better editing, the story would have unfolded in a more agreeable sequence. Chapter summaries and a better index would have been helpful. Beyond the fact that the experiment was a "failure," despite the authors' labored attempts to salvage it by introducing criteria which were irrelevant to the original design (i.e., dollar costs, degree of recidivistic seriousness, and simulated types in simulated situations), the Silverlake project symbolizes what is wrong with delinquency research today. I suppose the "Alice in Wonderland" conceptualization could be defended on the pragmatic grounds that such words as "adjudicated delinquent," "official recidivism rates," "achievement," "strain," "identification" and "social class" can be quantified, but the use of the elastic bandages of behavioral explanations on psychic wounds stretches axiomatics into metaphysics. On a philosophical level, I am appalled by the confusion of procedure with substance. The assumption that innovating intervention upon delinquent children is legitimate confuses service with value. Someday, sociologists and others may recognize their contribution to the degradation of people into treatment objects. THOMAS G. EYNON Southern Illinois University GUIDE TO CRIME THE HONEST POLITICIAN'S CONTROL. By Norval Morris and GordonHawkins. Chicago: The University of Chicago Press, 1970. Pp. xi, 271. $5.95. Holding that "it is perverse to pretend that we do not know how to deal with crime much more effectively than we do," and that "it is inertia far more than ignorance or inadequate resources" which keeps us from achieving significant success in reducing crime, the authors of this book present some fifty-odd recommendations pertaining to criminal law, victim compensation, police, offender rehabilitation, juvenile delinquency, the insanity plea, organized crime and research. Each recommendation is defended more or less at length. To relieve police, courts, and correctional agencies of a vast burden of needless clutter inappropriate to their services and capacities, certain victimless crimes should be declared no

1971]

BOOKREVIEWS

related rather strongly to identification with delinquent peers.... the relationship of strain to delinquency received the greatest support of any proposition.... and... the relationship between peer identification and delinquency was also strong." (p. 133). From this theoretical orientation, intervention principles emerged: the delinquent group is the target and later the vehicle of change. As it reduces strain, "guided group interaction," freed from institutional constraints and interacting with with external systems (i.e., legal, neighborhood, school and family), provides legitimate achievement eventuating into non-delinquency. Most of the evaluation of Silverlake focused on "whether the programs actually operated the way they were described on paper." A special social systems questionnaire, critical incident analysis, sociograms, impact of programson runaways and analysis of "boys who failed," comprised the description of the three-year process. The results indicated: "better mechanisms for quality control could have been developed... a serious problem developed relative to the feedback of research information to the action staff regarding implementation of the intervention strategy.... Chapters Seven and Eight, where it was shown that the implementation of program design was less than ideal." (p. 318). Silverlake was "overly concerned with control, overly constricted, and overly punitive," thereby making "achievement" difficult, with a consequent effect upon "strain." The outcome of the experiment appears to be two-fold. Silverlake was unable to reduce the basic problems defined in the intervention theory. Moreover, it may have increased them since only "46 per cent of the experimental subjects (as contrasted to 50 per cent of the controls) successfully completed the program. The remainder were runaways or in-program terminees." 40% of the experimentals recidivated compared to 44% of the controls, but of those successfully completing the programs, 27% of the experimentals and only 19% of the controls had one or more offenses. Empey's and Lubeck's work represents a tremendous integration of delinquency theory, research method, statistical sophistication, simulation, model building, typology construction, measurement techniques, action program design and correctional management analysis. These bridges between correctional theory and practice and between research and action make their book

101

required reading for researchers, methodology instructors, and correctional managers. It is unfortunate that the book's organization makes it hard to read. With better editing, the story would have unfolded in a more agreeable sequence. Chapter summaries and a better index would have been helpful. Beyond the fact that the experiment was a "failure," despite the authors' labored attempts to salvage it by introducing criteria which were irrelevant to the original design (i.e., dollar costs, degree of recidivistic seriousness, and simulated types in simulated situations), the Silverlake project symbolizes what is wrong with delinquency research today. I suppose the "Alice in Wonderland" conceptualization could be defended on the pragmatic grounds that such words as "adjudicated delinquent," "official recidivism rates," "achievement," "strain," "identification" and "social class" can be quantified, but the use of the elastic bandages of behavioral explanations on psychic wounds stretches axiomatics into metaphysics. On a philosophical level, I am appalled by the confusion of procedure with substance. The assumption that innovating intervention upon delinquent children is legitimate confuses service with value. Someday, sociologists and others may recognize their contribution to the degradation of people into treatment objects. THOMAS G. EYNON Southern Illinois University GUIDE TO CRIME THE HONEST POLITICIAN'S CONTROL. By Norval Morris and GordonHawkins. Chicago: The University of Chicago Press, 1970. Pp. xi, 271. $5.95. Holding that "it is perverse to pretend that we do not know how to deal with crime much more effectively than we do," and that "it is inertia far more than ignorance or inadequate resources" which keeps us from achieving significant success in reducing crime, the authors of this book present some fifty-odd recommendations pertaining to criminal law, victim compensation, police, offender rehabilitation, juvenile delinquency, the insanity plea, organized crime and research. Each recommendation is defended more or less at length. To relieve police, courts, and correctional agencies of a vast burden of needless clutter inappropriate to their services and capacities, certain victimless crimes should be declared no

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longer criminal or should be greatly abridged in their criminal definitions and handled instead by other agencies. Included here drunkenness, narcotics possession or use, gambling, disorderly conduct and vagrancy, abortion by qualified physicians, most consensual sexual behavior (including statutory rape and bigamy) and juvenile acts which are not criminal when committed by adults. Freed of a futile demand that the criminal law regulate personal morals, official attention could be then directed toward the more serious problems of crime in the streets. Possibly reflecting the European's dismay at our American proclivity for private gun ownership, the authors (both British-born) take a hard line on weapons, which they see as facilitating our numerous robberies, homicides, and assaults. They advise outlawing virtually all handguns and the imposition of up to five years' imprisonment for having a firearm in one's possession during the commission of any crime. Given the attitudes of this country's gun-owning millions, however, the likelihood of wide-spread adoption of such legislation by the states and of successful enforcement seems dim indeed. Just as dim is the prospect that the insanity defense will be replaced with a mere determination whether a defendant had the mens rea requisite to a criminal conviction, and if subsequently convicted and found to be insane on presentence investigation, hospitalized. I find quite reasonable the authors' opinion that we cannot morally distinquish the insane "from others who may be convicted though suffering deficiencies of intelligence, adversities of social circumstances, indeed all the ills to which the flesh and life of man is prey," and that to make a "special exculpatory case of one rare and unusual criminogenicprocess" accords badly with the total role of the criminal law in society. But given the classical psychological basis upon which our law firmly rests, the insanity defense is an inescapable "exculpatory case": the law cannot ignore the "insane" defendant's lack of responsibility or make allowances for the sources of evil intent in sane offenderswithout undermining its own Benthamite foundations. Morris and Hawkins critically examine the evidence that national organized crime exists, find it unconvincing, and offer the intriguing hypothesis that belief in the Mafia's existence is, in nature and function, analogous to belief in a Supreme Being. Proof of either entity is seen as largely dogmatic and based on "argument from

[Vol.63

appearances." The authors consequently recommend that all organized crime units at the federal and state levels be disbanded, for if there are no witches there need be no Inquisitors. The message of the final chapter is that our long-inadequate funding of research in crime and criminaljustice has helped perpetuate an ignorance which vitiates our preventive and correctional efforts at all levels; we are "guided by an extraordinary amalgam of blind prejudice, random benevolence, and naive surmise" as we "launch into extemporaneous improvisations." For all the stimulation I found in this interesting book, I have two reservations about the authors' thinking. One is its unstated premise that our society can, by the application of legalistic and operational measures, rectify inefficiencies in our enforcement and justice operations and significantly reduce the impact of personal and property crime. Such thinking smacks uncomfortably of eighteenth-century legal and political theory, which assumed that law-abidance within societies is largely a function of the extent to which the State applies rational principles to its administration of justice. My second reservation is that many of the authors' recommendations lack the empirical support that Morris and Hawkins insist should underlie measures taken to combat crime. One questions, for example, the causal allegations inherent in their suggestions that thirty-five cases become the average load per probation officer, that "fixed periods" of one to five years' parole for all released felons should be established, and that youth service bureaus be used as alternatives to juvenile courts in handling certain troublesome youths. I know of no convincing data showing these to be more effective in gaining the ends of correction than procedures and standards now used, although the authors seem to feel that such data do exist. The Honest Politician's Guide is well-written, thoughtful, provocative and considerably harderheaded than most prescriptive books on crime. The authors' omission of virtually all citations to their many sources might annoy scholarly readers, but the book is not really addressed to them. R. W. ENGLAND,JR.

University of Rhode Island THE EFFECTIVENESSOF PUNISHMENTESPECIALLY IN RELATIONTO TRAFFICOFFENSES(New York

University Comparative Criminal Law Project, Volume 5). By Wolf Middendorff.S. Hackensac,

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longer criminal or should be greatly abridged in their criminal definitions and handled instead by other agencies. Included here drunkenness, narcotics possession or use, gambling, disorderly conduct and vagrancy, abortion by qualified physicians, most consensual sexual behavior (including statutory rape and bigamy) and juvenile acts which are not criminal when committed by adults. Freed of a futile demand that the criminal law regulate personal morals, official attention could be then directed toward the more serious problems of crime in the streets. Possibly reflecting the European's dismay at our American proclivity for private gun ownership, the authors (both British-born) take a hard line on weapons, which they see as facilitating our numerous robberies, homicides, and assaults. They advise outlawing virtually all handguns and the imposition of up to five years' imprisonment for having a firearm in one's possession during the commission of any crime. Given the attitudes of this country's gun-owning millions, however, the likelihood of wide-spread adoption of such legislation by the states and of successful enforcement seems dim indeed. Just as dim is the prospect that the insanity defense will be replaced with a mere determination whether a defendant had the mens rea requisite to a criminal conviction, and if subsequently convicted and found to be insane on presentence investigation, hospitalized. I find quite reasonable the authors' opinion that we cannot morally distinquish the insane "from others who may be convicted though suffering deficiencies of intelligence, adversities of social circumstances, indeed all the ills to which the flesh and life of man is prey," and that to make a "special exculpatory case of one rare and unusual criminogenicprocess" accords badly with the total role of the criminal law in society. But given the classical psychological basis upon which our law firmly rests, the insanity defense is an inescapable "exculpatory case": the law cannot ignore the "insane" defendant's lack of responsibility or make allowances for the sources of evil intent in sane offenderswithout undermining its own Benthamite foundations. Morris and Hawkins critically examine the evidence that national organized crime exists, find it unconvincing, and offer the intriguing hypothesis that belief in the Mafia's existence is, in nature and function, analogous to belief in a Supreme Being. Proof of either entity is seen as largely dogmatic and based on "argument from

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appearances." The authors consequently recommend that all organized crime units at the federal and state levels be disbanded, for if there are no witches there need be no Inquisitors. The message of the final chapter is that our long-inadequate funding of research in crime and criminaljustice has helped perpetuate an ignorance which vitiates our preventive and correctional efforts at all levels; we are "guided by an extraordinary amalgam of blind prejudice, random benevolence, and naive surmise" as we "launch into extemporaneous improvisations." For all the stimulation I found in this interesting book, I have two reservations about the authors' thinking. One is its unstated premise that our society can, by the application of legalistic and operational measures, rectify inefficiencies in our enforcement and justice operations and significantly reduce the impact of personal and property crime. Such thinking smacks uncomfortably of eighteenth-century legal and political theory, which assumed that law-abidance within societies is largely a function of the extent to which the State applies rational principles to its administration of justice. My second reservation is that many of the authors' recommendations lack the empirical support that Morris and Hawkins insist should underlie measures taken to combat crime. One questions, for example, the causal allegations inherent in their suggestions that thirty-five cases become the average load per probation officer, that "fixed periods" of one to five years' parole for all released felons should be established, and that youth service bureaus be used as alternatives to juvenile courts in handling certain troublesome youths. I know of no convincing data showing these to be more effective in gaining the ends of correction than procedures and standards now used, although the authors seem to feel that such data do exist. The Honest Politician's Guide is well-written, thoughtful, provocative and considerably harderheaded than most prescriptive books on crime. The authors' omission of virtually all citations to their many sources might annoy scholarly readers, but the book is not really addressed to them. R. W. ENGLAND,JR.

University of Rhode Island THE EFFECTIVENESSOF PUNISHMENTESPECIALLY IN RELATIONTO TRAFFICOFFENSES(New York

University Comparative Criminal Law Project, Volume 5). By Wolf Middendorff.S. Hackensac,

1972]

BOOK REVIEWS

N.J.: Fred B. Rothman & Co., 1968. Pp. xii, 129. $8.50. The present volume continues the pioneering effort of Dr. Wolf Middendorff to establish a criminology of traffic offenses. An earlier article by Middendorff appearing in Federal Probation (September, 1963), entitled "A Criminology of Traffic Offenses," concentrated upon the following issues: a classification of traffic offenses; the role of alcohol in traffic offenses; traditional criminality and traffic misconduct; causal factors in traffic offenses; and new developments in dealing with traffic violations. The present volume affords the author an opportunity to expand upon his earlier article. The task should have been made easier by the fact that it was based on a report to the Council of Europe, which commissioned Middendorff to report on the effectiveness of punishment and other measures against traffic offenders. Unfortunately, the contribution afforded by the 1963 article was merely restated in both the council of Europe report (Fourth European Conferenceof Directors of Criminological Research Institutes, November 1966, Volume I-Criminological Aspects of Road Traffic Offenses, Report 7711-05 .2/56.32) and the present volume. The Effectiveness of Punishment, however, does provide the reader with the formation previously gathered by Middendorff in his work focusing upon traffic offenses. It is correct, of course, to include one's earlier work in a more recent volume, especially since the Council of Europe report is not easily available to many American readers. Middendorff also affords the criminologist a succinct report on the efficacy of various methods of punishment for traffic offenders in the paper prepared for the 1966 conference dealing with the criminological aspects of traffic offenses. However, the Council of Europe report offers a number of significant statements by other conference participants (such as Cornil and Ferracuti) which might well have been incorporated into Middendorff's The Effectivenessof Punishment. This would have permitted his most recent volume to build upon his earlier writings in the quest for a criminology of traffic offenses.

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The current volume reviews the field of criminology and corrections and might serve as supplementary reading for those instructors in law enforcement who teach an introductory criminology or corrections course. The introductory chapter entitled "Results of Criminological Research" provides adequate coverage for the following topics: the causes of crime; the personality of the offender; the history of crime and correction; differencesin sentencing; the personality of judges; and sentencing and public opinion. This chapter is followed by one dealing with "The Aims of Justice" which familiarizes the student with the meaning of retribution, deterrence, reformation and the goals of criminal procedure. The chapter entitled "The Effectiveness of Punishment" concentrates upon probation, parole, fines and long-term and short-term sentences. Middendorff is familiar with historical and contemporary criminology as well as correctional theory and practice. This is evident in the first three chapters of the book. He illustrates the field of practice (especially the courts and corrections) with descriptive material which acquaints the reader with the activities directed toward the handling of traffic offenders in various countries. The final chapter suggests conclusions and recommendations for improving the disposition of traffic cases in the criminal justice system. I do wish Middendorff would offer more innovative measures for the control of traffic problems in the urban community at this time than he has done in his concluding chapter, though. I would conclude by saying that this book lacks the spirit and vision found in Paul Cornil's paper, "Criminological Aspects of Road Traffic Offenses,"which was presented with Middendorff's paper at the Conference of Directors of Criminological Research Institutes in 1966. However, one cannot overlook Middendorff's pioneering studies and we should pay heed to his plea that we focus more attention on the study of the traffic offender and his behavior. THOMAS R. PHELPS Sacramento State College

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright O 1972by Northwestern University School of Law

Vol. 63, No. 1

Printed in U.S.A.

THE POLICE PERSONALITY: FACT OR FICTION?* ROBERT W. BALCH RobertW. Balch is AssistantProfessorof Sociology,Universityof Montana,Missoula.Much of the workon his presentpaperwas preparedwhile he was a graduatestudent at the Universityof Oregon. In the last few years a great deal has been written about the police mentality. If we can believe everything we read in magazines, journals, and sociology books, the typical policeman is cynical, suspicious, conservative, and thoroughly bigoted. This is not a flattering picture to be sure, but it recurs again and again in the popular and "scientific" literature on the police. Perhaps there is something about the police system itself that generates a suspicious, conservative world-view. Or perhaps certain personality types are inadvertently recruited for police work. Either explanation is plausible, and both may be correct. Unfortunately only a few writers have bothered with the most basic question of all: Is there really a modal police personality? At one time most white Americans thought blacks were superstitious tap dancers who preferred watermelon to work. Could it be that we have stereotyped policemen in the same way? The following pages will examine the controversy over the police mentality and suggest a sociological alternative to current speculation about the nature of police personalities. THE POLICEPERSONALITY AS IT

so on.l A good policeman presumably suspects evil wherever he goes. As Buckner put it, "Once the commonplace is suspect, no aspect of interaction is safe, on or off duty." 2 According to Colin Maclnness, suspicion is simply a manifestation of deep-seated political and emotional conservatism. The true copper'sdominantcharacteristic,if the truthbe known,is neitherthose daringnor vicious qualitiesthat are sometimesattributedto him by friendor enemy,but an ingrainedconservatism,an almost desperatelove of the conventional.It is untidiness,disorder,the unusual, that a copper disapprovesof most of all: far more,even than of crimewhichis merelya professionalmatter.Hence his profounddislikeof people loiteringin streets, dressingextravagantly,speakingwith exotic accents, being strange, weak, eccentric,or simply any rare minority-of their doing, in fact, anything that cannotbe safelypredicted.' Furthermore, policemen supposedly have no faith in their fellow man. Most are firmly convinced that only the police stand between a tenuous social order and utter chaos.

APPEARS IN THE LITERATURE

Although authors vary in emphasis, there is remarkable agreement on the characteristics believed to make up the police mentality. The duster of traits that consistently emerges includes suspicion, conventionality, cynicism, prejudice, and distrust of the unusual. The traits are poorly defined and the names vary, but the syndrome is always the same. Policemen are supposed to be very suspicious characters. A good policeman is always on the lookout for the unusual: persons visibly rattled in the presence of policemen, people wearing coats on hot days, cars with mismatched hubcaps, and * I would like to thank Fredrick B. Lindstrom, Marvin J. Cummins,and Richard D. Vandiver for their comments on an earlier draft of this paper.

The peopleI see in the streets and in troubleare the samepeoplewho just a little whilebeforethat were in their nice homes and not involved in trouble.You can't fool me. I see peoplein the raw, the way they really are. Underneaththeir fine, civilizedmannersand clothesthey'reanimals.4 If people in general are no good, then "coons" and "spics" are worse. All they like to do is drink, make love, and collect their welfare checks: 1Adams, Field Interrogation,POLICE28 (Mar.Apr. 1963). 2H. T. Buckner, The Police: The Culture of a Social Control Agency, 1967, at 190 (unpublished Ph.D. dissertation,Universityof California,Berkeley). 3Quotedin J. SKOLNICK,JUSTICEWITHOUTTRIAL:

LAW ENFORCEMENTIN DEMOCRATICSOCIETY48 (1967). 4A. BLACK, THE PEOPLE AND THE POLICE 6-7

(1968).

106

19721

POLICE PERSONALITY

"These scum aren't people; they're animals in a jungle . . . Hitler had the right idea." 5 Even many black officersshare this outlook: Therehave alwaysbeen jobs for Negroes,but the f----- people are too stupid to go out and get an education.They all want the easy way out. Civil Rights has gotten them nothin' they didn't have before.6 Several other traits are frequently but less consistently used to describe the typical policeman. Police officers supposedly distrust ivory-tower intellectuals and bleeding-heart humanitarians. A good policeman is a realist who learns by experience and not by reading books. He respects authority and knows how to take orders. He likes to give orders too, and he demands respect from juveniles, criminals, and minorities. If necessary he will use force to see that he gets it. Brutality is perhaps the most infamous feature of the policeman's reputation: A commonthreadof inhumanityrunsthroughpolicemenin everycity acrossthe land.The potential for brutality is always there. Some psychologists say that this is the charactertrait that drawsthem to police work in the first place.... In too many copsthe beaststill slumbers,readyto enjoyanother bout of sadism....7

107

e. Superstitionand Stereotypy:the beliefin mystical determinantsof the individual'sfate; the dispositionto think in rigidcategories. f. Powerand "toughness":preoccupationwith the dominance-submission, strong-weak,leader-follower dimension; identification with power figures;overemphasisuponthe conventionalized attributesof the ego; exaggeratedassertionof strengthand toughness. g. Destructivenessand Cynicism:generalizedhostility, vilificationof the human. h. Projectivity:The disposition to believe that wild and dangerousthings go on in the world; the projectionoutwards of unconsciousemotionalimpulses. i. Sex: Exaggeratedconcernwith sexual "goingson." Only superstition, apparently, has never been used to describe policemen. Otherwise the dimensions of authoritarianism seem to describe police officers very well. In fact, the typical policeman, as he is portrayed in the literature, is almost a classic example of the authoritarian personality. Is THEREREALLYA POLICEPERSONALITY?

While many writers assume as a matter of course that there is a police personality, the empirical evidence is less than convincing. Unfortunately good data are hard to come by. In Interestingly enough, the cluster of traits that one study the authors compared the authorapparently make up the police personality also itarianism of policemen with a partially matched defines authoritarianism.8 Consider the parallels sample of nonpolice students.9 Both police and between the so-called police mentality and the nonpolice subjects were attending the John Jay following dimensions of the F-Scale: College of Criminal Justice at the time. Using Rokeach and Piven scales, they found the policea. Conventionalism:rigid adherence to convenmen were considerably less authoritarian than tional, middle-classvalues. the other students. At a glance these results cast b. AuthoritarianSubmission:submissive,uncrition the so-called police personality, but in doubt cal attitude towardidealizedmoral authorities fact they cannot be interpreted so easily. In the of the ingroup. first place, the nonpolice students cannot be c. AuthoritarianAggression:tendencyto be on the lookoutfor, and to condemn,reject,and punish equated with the general population because as people who violate conventionalvalues. many as 25 percent of them said they were "comd. Anti-intraception:oppositionto the subjective, pletely committed" to a career in police work. the imaginative,the tender-minded. Second, the non-police students were still less Black & Reiss, Patternsof Behaviorin Police and authoritarian than a sample of noncollege policeCitizen Transactions, in 2 STUDIESOF CRIMEANDLAW men in a previous study by the same authors.1' AREAS113 IN MAJORMETROPOLITAN ENFORCEMENT The preliminary results of a recent study11 (1967). 6Id. at 137. 7 J. W. Sterling, Changes in Role Concepts of 9Smith, Locke, & Walker, Authoritarianism in Police OfficersDuring Recruit Training: A Progress Police CollegeStudents and Non-Police College Students, CRIM. L.C. & P.S. 440 (1968). quoting Harriet J. 10 Report, 1969, at 31 (mimeographed), VanHome. Smlth, Locke, & Walker, Authoritarianism in 8

J. ADORNO, E. FRENKEL-BRUNSWICH, D. LEVEN- College and Non-College Oriented Students, 58 J. CRIM.

L.C. & P.S. 128 (1967). PERSONALITY THEAUTHORITARIAN SON& R. SANFORD, 11Sterling, supra note 7. 255-57 (1955).

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using the Edwards Personal Preference Schedule indicate there are significant differences between police recruits and nonpolice college students, but the differences are not necessarily consistent with the authoritarian stereotype of policemen. The recruits were more likely to believe in the value of punishment, and they received significantly higher scores on the dimensions of deference and orderliness. They also appeared to be far less independent than the college students, and they were less likely to prefer new experiences. On the other hand, the recruits did not differ from the college students on three dimensionswhich are closely related to authoritarianism: aggression, nurturance, and intraception. The recruits also scored lower on the dimension of heterosexuality which belies Niederhoffer's claim that policemen are preoccupied with sexual matters.l2 Another study undertook extensive psyhciatric assessment of 116 applicants for the Portland Police Department.3 All the applicants had passed their mental and physical exams, so, before the program of psychological testing began, they would have become officers as vacancies occurred. The authors administered a variety of psychological tests including the Edwards Personal Preference Schedule, Strong Vocational Interest Blank, and the Minnesota Multiphasic Personality Inventory. They concluded that the typical police applicant was very similar to the average male college student. Of course it is entirely possible that a unique police personality develops after recruits have spent some time on the job. Unfortunately there has been no follow-up study of the Portland recruits. There are studies of experienced policemen in other cities, but they have not used the same personality scales. Bayley and Mendelsohn,'4 for example, administered an extensive questionnaire to a sample of Denver policemen. The questionnaire included items designed to measure anomia, authoritarianism, prejudice, and social distance. Using Srole's five-item F-Scale as their measure of authoritarianism, they found that Denver policemen scored lower than control populations sampled in previous studies. Their conclu-

[Vol.63

sion is worth repeating. Since their sample consisted of experienced policemen, the evidence also does not support the belief that a particular personality develops after joining the force. In a study of the New York Police Department, McNamara used the original F-Scale to measure the authoritarianismof recruits in the police academy.15 The recruits' mean F-score was virtually the same as the mean for working-classmales found by Adorno and his colleagues. If we define "working class" as skilled, semi-skilled, and service work, then between 60 and 70 percent of the recruits in the New York Police Department come from working-class homes.16 Therefore, McNamara's findings suggests that police recruits are typical of the class from which they are drawn. But since socio-economic status is inversely related to authoritarianism,17 it is also true that working-class men, and therefore policemen, are more authoritarian than most. The McNamara study has to be taken with a grain of salt, however, because McNamara did not compare his recruits with a contemporarysample of working-classmen in New York. Not only had many years elapsed since Adorno and his colleagues completed their study, but their working-classsample was selected on the West Coast. McNamara also found evidence of increasing authoritarianism over time. He re-tested the recruits at the end of their first year and discovered a slight increase in their mean F-score. He also compared the recruits with men who had served on the force for two years. The more experienced policemen had the highest authoritarianism scores of all. A very liberal interpretation of McNamara's data suggests the following conclusion: Police departments do not attract particular personalities, but instead tend to recruit members from a relatively authoritarian class of people. Furthermore, the police experienceitself intensifies authoritarianism. It must be emphasized, however, that this conclusion is tenuous, and certainly is not consistent with Bayley and Mendelsohn's findings. Although not concerned with personality per se, a study by Toch and Schulte suggests that policemen may perceive violence more readily than

12A. NIEDERHOFFER, BEHIND TIHESHIELD: The 1 POLICEIN URBANSOCIETY (1967). McNamara, Uncertainties in Police Work: The 13Matarazzo, Alien, Saslow & Wiens, Characteristics Relevanceof Police Recruits' Backgroundsand Training, ESSAYS163 (D. of Successful Policemen and Firemen Applicants, 48 in THE POLICE:SIX SOCIOLOGICAL Bordua ed. 1967). 123 (1964). J. APPLIEDPSYCHOLOGY 4 D. BAYLEY& H. MENDELSOHN, 16 Id.; NIEDERHOFFER,supra note 12. AND MINORITIES 17 R. BROWN,SOCIAL THEPOLICE(1969). PSYCHOLOGY(1965).

POLICE PERSONALITY

1972]

others.'8They compareda group of advanced police administration students with two control groupsone consisting of introductory psychology students and the other of first year police administration students. All subjects were shown nine stereograms for a half second each. One figure in each stereogram depicted an act of violence or crime, while the other, matched in size and outline, showed some nonviolent "neutral" activity. The average number of violent percepts was the same for the two control groups, but the advanced police administration students perceived roughly twice as many violent scenes. Because the first year police administration students did not differ significantly from the psychology students, the authors concluded that police training increases one's readiness to perceive violence. It is widely believed that policemen are prejudiced against minority groups. For example, Black and Reiss concluded'9that 72 percent of the policemen they observed in Boston, Chicago, and Washington, D. C., were prejudiced against Negroes. Observers rode or walked with officers for eight hours a day, six days a week, for seven weeks in 1966. Officers were classified as "highly prejudiced" when they "referred to Negroes as subhuman, suggested an extreme solution to the 'Negro problem,' expressed dislike to the point of hatred, or used very pejorative nicknames when speaking of Negroes." 20 Officerswere classified as "prejudiced" if they "simply showed general dislike for Negroes as a group." On the other hand, Black and Reiss did not find that verbal expressions of prejudice were translated into discriminatory behavior. Police behavior was "obviously prejudiced" in only 2 percent of the cases and showed "some signs" of prejudice in only 6 percent. Moreover, whites were targets of police discrimination more often than blacks. Apparently, aggressive discriminatory police behavior was a response to the citizen's demeanor rather than his race. Skolnick21 came to a similar conclusion when he observed the behavior of warrant officers on the Oakland police force. The Black and Reiss data are not easy to interpret, however. Their "highly prejudiced" category could have been inflated by including officers who

" Toch & Schulte,Readinessto PerceiveViolenceas

a Result of Police Training, 52 BR. J. PSYCHOLOGY389

(1961). 19Black & Reiss, supranote 5. 20 Id. at 133. 21 SKOLNICK,supra

note 3.

109

used "pejorative nicknames." As Skolnick points out, many officers use derogatory nicknames even when they are not extremely prejudiced: The policeman'scultureis that of the masculine workingman.It is of the docks,the barracks,the ballfield-Joe Di Maggiowas a helluvagood'wop' centerfielder,not an athlete of 'Italian extraction,' and similarly,the black man is a 'nigger,'not a memberof an 'underprivileged minority.'22 Black and Reiss also failed to employ a control group, so there is no way of assessing what their percentages mean. Skolnick, for instance, admits that policemen are prejudiced, but he does not believe they are any more so than the average white workingman. In their study of the Denver Police Department, Bayley and Mendelsohn28 also concluded that policemen simply share the prejudices of the community as a whole. Responses to simple prejudice and social distance scales were not greatly different from those given by a sample of white Denver citizens. In fact, neither the police nor the citizens scored highly on either scale. Similarly, Preiss and Ehrlich24found that 71 percent of their respondents in a Midwestern state police department were unprejudicedand tolerant on Srole's "anti-minorities" scale. However, there was no control group in their study. The picture that emerges from these studies is not easy to interpret. Portland police applicants are like ordinary college males. Recruits in New York are somewhat authoritarian, but not as much as experienced policemen. Denver police are less authoritarian than the general public. In Boston, Chicago, and Washington police are prejudiced against Negroes, but their prejudice is not reflected in their behavior. In Denver and a Midwestern department, the police do not even appear to be prejudiced. The picture is further complicated by methodological problems. The studies have been conducted in different cities in different parts of the country. What is true of Portland need not be true of New York, and what holds for a big-city force like Chicago's need not hold for a state or rural department. Even within departments there can be a tremendous amount of variation. Preiss and EhrId. at 82. 23BAYLEY & MENDELSOHN, supra note 14. 24J. PREISS & H. EHRLICH,An EXAMINATION OF ROLETHEORY: THE CASEOFTHESTATEPOLICE(1966). 22

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lich, for example, found that policies, standards, and procedures varied considerably from one post to the next in the state department they studied. Only a few studies used adequate control groups and some did not use a control group at all. While it is very impressive to learn that 72 percent of the policemen in one study were prejudiced-or that 71 percent were unprejudiced in another-these figures are meaningless until we know how they compare to some nonpolice control group. In addition, the methods of study and measuring instruments may not be comparable.In the studies mentioned above, three different measures of authoritarianism were employed. Prejudice has been "measured" by the subjective accounts of participant observersas well as by paper-and-pencil tests. These divergent methods may account for some of the apparently inconsistent results. Finally, most of the results are subject to a "social desirability" interpretation. Niederhoffer25has commented on the policeman's transition "from station house to glass house." In other words, policemen are being watched and studied as never before. Liberals, minorities, and intellectuals are clamoring for greater civilian control over the police. The public has been sensitized to police brutality and prejudice, and police administrators are desperately trying to upgrade the quality of men in their departments. Furthermore, many policemen have had a smattering of social sciences somewhere along the line, so it is not surprising that they should know how to respond to an "antiminorities" or authoritarianism scale in order to present themselves in the most favorable light. In short, the evidence-by its very inconsistency, if nothing else-does not indicate the existence of a police personality, authoritarian or otherwise. With approximately 40,000 police departments in the United States, the chances of finding a single dominant personality type appear to be slim, to put it mildly. Obviously, however, none of the evidence so far is good enough to draw any firm conclusions. Writers who believe in a police mentality may not have a strong case, but they have yet to be disproved. Therefore it may be worthwhile to review some of the current hypotheses about the origin of police authoritarianism. Popular explanations generally fall into two broad categories. Some writers believe that police work itself develops an authoritarian world-view, while others 26NIEDERHOFFER,supra note 12.

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believe that authoritarianpersonalities are selected for police work in the first place. THE CONSEQUENCES OF POLICEWORK According to the first point of view, authoritarianism is an unavoidable by-product of police work, i.e., the formal responsibilities, informal expectations, and everyday experiences of police patrolmen. The word "patrolmen" is used deliberately. The police mentality, as described in the literature, does not develop at the top of the police hierarchy and filter down to the underlings. Instead it develops at the bottom of the ladder as men patrol their beats and is carried to the top as they work their way up. Since virtually all police administrators begin their careers as patrolmen, it would not be surprising to find symptoms of the police mentality throughout the organization.2 Most writers only deal with patrolmen, however, and so will this writer. Suspiciousness. Danger is a recurrent theme in police work. Stories are told of policemen shot and killed while trying to settle a family dispute or write a simple speeding ticket. Danger is part of the folklore to be sure, but even the most bizarre legends may have some basis in fact. Statistically speaking, police work is one of the most dangerous jobs in the country,27and policemen are aware of that fact. Sterling28found that policemen were more likely to perceive danger in 20 different situations the longer they had served on the force. No one can deny the widespreadand often violent hostility policemen encounter in minority-groupneighborhoods. At Christmastime the Black Panthers even sell greeting cards featuring uniformed pigs with knives in their bellies. Skolnick coined the term "symbolic assailant" to describe the policeman's psychological response to the continual threat of violence. The policeman,becausehis workrequireshim to be occupiedcontinuallywith potential violence, develops a perceptualshorthandto identify certain kinds of people as symbolic assailants, that is, as

personswho use gesture,language,and attire that 26Significantly,the President'sCommissionon Law Enforcementand the Administrationof Justicerecommends increasing the amount of lateral entry into

police administrative positions. PRESIDENT'SCOMMISSIONON LAW ENFORCEMENTAND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE

(1967).

27 W. Wirtz, quoted in Copsules, (January 1969). 28 Sterling, supra note 7.

THE POLICE CHIEF

POLICE PERSONALITY

1972]

the policemanhas come to recognizeas a prelude to violence.29 Although many policemen try to minimize the dangerous aspects of their work, Skolnick believes their "strategies of denial" are defense mechanisms that enable them to perform their job effectively. He concludes that the "unambiguous"consequence of danger in police work is a suspicious outlook on life. Policemen are also trained to be suspicious. According to Skolnick, a good policeman has an intuitive ability to sense the unusual. He pays close attention to normal everyday routines so he can spot anything out of the ordinary. He notices when stores open and close, which houses are vacant, which lights are left on. He has to be suspicious or he will overlook tell-tale signs of criminal activity. Toch and Schulte's80study of the perception of violence indicates that police training has a very significant effect on one's perceptual processes. Suspicion, therefore, may be an occupational requirement. Unsuspecting cops do not make "good pinches." Unfortunately most writers have not distinguished between suspiciousness as a specific or generic trait. While many of them imply that suspiciousness pervades all aspects of the policeman's life, it may well be confined to his working hours, and even then to only certain aspects of his job. Because black ghettos are high-risk areas where crime and delinquency are commonplace, the men who patrol the ghettos are understandably suspicious of the local residents. But will their suspiciousness carry over during their off-duty hours? Will they be equally suspicious when they patrol "respectable" middle-class neighborhoods? If not, we ought to be cautious about treating suspiciousness as if it were a pervasive feature of the policeman's personality. In all fairness it should be added that Skolnick may have coined the term "workingpersonality" to avoid treating suspiciousness as a generic trait. Nevertheless, other writers have not been so careful, and even Skolnick refuses to rule out the possibility that policemen are authoritarian personalities in the generic sense of the term. Cynicism. One of the outstanding features of the police mentality is supposed to be cynicism-a deep-seated distrust of basic human goodness. The 29SKOLNICK, supra note 3. 30 Toch

& Schulte,supranote 18.

11I

policeman's subjective world is full of savagery and hypocrisy: police officers are assaulted every day; respectable housewives try to fix their traffic tickets; and businessmenuphold the law only when it is in their interest to do so. Everyone, it seems, is "on the take" in one way or another. One of the most common explanations for police cynicism is public antipathy toward the police. Westley found that 73 percent of the policemen he interviewed believed the average citizen dislikes police officers." As Westley points out, the policeman's image of the public is shaped by the people he deals with every day on the job. To many, perhaps most of these people, the policeman is an intruder. Nowhere is the policeman's status as an outsider better illustrated than in the case of the family quarrel. The police officer is most apt to be called to settle a family dispute in a low-income neighborhood, the very place he is most likely to be defined as an outsider. Even if he has been called by one of the parties to the dispute, there is a good chance that everyone will turn on him before he leaves. The following comment by a police officer illustrates the policeman's predicament: Her husband was drunk and ugly when we got there... I startedto grabhim and struggledwith him and the firstthing I know I felt an aluminum pan poundingon my head and there is the little woman who ten seconds ago was standing there tremblingat what the husbandwoulddo when we left, beating me on the head with an aluminum pan and saying,'You arenot supposedto hurthim. Let him alone.'" The policeman's social identity as a law enforcement officer, and therefore as an intruder, is a "master status." It overrides all other aspects of his public identity. Whatever else the policeman may be, he is still a cop who can arrest you if he sees fit. The exclamation, "Better watch out, he's a cop," underscoresthe policeman's marginal identity. Presumably the policeman withdraws into his own circle of friends and defines the public in deviant terms just as he is so defined by them. Public hostility toward the police takes many forms, some direct, others not. One kind of hostility is the abuse the policeman absorbs day after day as he patrols his beat. Another takes the form of biased reporting and editorial attacks in the newspapers. Niederhoffer found that 72 percent of a 31 W.WESTLEY,VIOLENCE ANDTHEPOLICE(1970).

32Id. at 61.

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ROBERTW. BALCH

large sample of New York police officers believed that news papers "seem to enjoy giving an unfavorable slant to the news concerning the police ...

" 8 In a less direct way, public hostility is re-

flected in the low prestige of his police work generally. The police officer's pariah feelings are intensified by his low occupational status. McNamara found34that 75 percent of the experienced policemen he studied in the New York Police Department believed that police work should be ranked as high as medicine and law. Yet he and Reiss have found that policemen believe their prestige has actually been declining in recent years.85 Skolnick discovered that 70 percent of the officers in a large Western city ranked the prestige of police work as "only fair or poor," while Westley found that 70 percent of the policemen he interviewed in an Eastern department said they would not want their sons to become police officers. According to Watson and Sterling, [I]t appears that many of these officersexhibit characteristicssimilarto those shown by a persecutedminority.They arevery sensitiveaboutcriticism. They seem to fear that everyoneis against them including their own commandingofficers. They are hypersensitiveand touchy about their status and their prerogatives.36 As usual, however, the evidence is not completely consistent. Bayley and Mendelsohn found that Denver policemen believed they had higher-thanaverage respect in the eyes of the public.'7 Preiss and Ehrlich found that the state police department they studied also enjoyed relatively high prestige.88 In a nationwide survey of police opinions,39only 50 percent of the experienced officers believed that "public support for the police seems to be growing." But surprisingly the more experience an officer had, the more likely he was to endorse this statement. Furthermore, only three perecnt of the officers said the "gradual drifting away of nonpolice friends" was the most important personal problem they faced as policemen.40The Denver a3NIEDERHOFFER, supra note 12 at 234. 34McNamara, supranote 15.

35Reiss, Career Orientations, Job Satisfaction, and the Assessment of Law Enforcement Problems by Police Officers, in 2 STUDIESOF CRIMEANDLAW ENFORCEAREAS(1967). MENTIN MAJORMETROPOLITAN 36 N. WATSON & J. STERLING, POLICE AND THEIR 9 (1969). OPINIONS 37BAYLEY& MENDELSOHN, supra note 14. 38 PREISS& EHRLICH, supra note 24. 89 WATSON& STERLING, supra note 36, at 55. 40Id. at 101.

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police also displayed little evidence of social isolation. Only 12 percent said they had difficulty making friends with nonpolice families, and less than 25 percent complained of difficulties in their social relationships because of their job. As many as 68 percent even said they associated primarily with nonpolice people. Banton has also criticized the assumption that American policemen are isolated from the public.4 He contends that American policeman, unlike their British counterparts, are able to segregate police work from the rest of their lives. In fact many of his American respondents ridiculed those who played the policeman's role in their off-duty hours. Banton found that 67 percent of his Scottish respondents said their job affected their private lives. This is considerably higher than the 40 percent found in three Illinois cities by Clark who asked the very same question.2 Yet 40 percent is still a sizeable figure and is difficult to interpret-fully 40 percent or only 40 percent? Banton himself adds in passing that relative to other American occupations, policemen in this country really can be considered socially isolated. Of course police isolation may be myth created by policemen themselves in order to make their job easier. Ronald Tauber agrees with Banton that American policemen are not as isolated as many have claimed.43However, he says that policemen needa sense of isolation if they are going to function effectively. The greater the social distance between the policeman and the public, the less cognitive strain there is in enforcing the law. According to Niederhoffer, the most successful policemen are the most cynical." Another commonly mentioned source of police cynicism is the judicial system. Policemen believe they have been hamstrung by the courts. The police officer is not just paid to enforce the lawthe public demands that he do so. The blame for rising crime rates invariably falls on the police department, yet policemen are frustrated at every turn in their efforts to win convictions. Because of the defense attorney'sinterrogations, [the policeofficer]often feels that he is being tried ratherthan the culprit.He is madeto play the part 41M. BANTON,THE POLICEMAN IN THECOMMUNITY

(1964).

42Clark, Isolation of the Police: A Comparison of the British and American Situations, 56 J. CRIM.L.C. &

P.S., 307 (1965).

43Tauber, Danger and the Police: A Theo/etical 69 (1967). Analysis, in 3 ISSUESIN CRIMINOLOGY 44NIEDERHOFFER, supra note 12, at 76.

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of the fool. He is often frustrated in his attempt

to makea pinchstickby the politicalmachinations of the courtsand the existenceof the fix. He tends to losefaith in the courseof justiceand in obtaining the supportof the courtsfor his judgments.He may feel that the only way in whichthe guilty aregoing to be punishedis by the police. He has anxieties about the resultsof courtaction,for if the prisoner is declaredinnocent,he, the policeman,may be subjectto a suit for false arrest.45 As this quotation illustrates, police officers are not just frustrated by fast-talking attorneys and bleeding-hearts on the bench. They are frustrated by the "fix," the back-stage deals against which they are helpless. Not even the courtroom is immune to the corruption which the policemen believes pervades our society. A persistent theme in discussions of police cynicism is the police officer'scontinual exposure to the very worst in life."4While it is true that policemen spend more time rescuing cats and giving directions than they do fighting crime, one could argue that they still have more contact with the seamy side of life than most people. The very nature of their position makes them constant targets for bribes and payoffs by "respectable" and disreputable citizens alike. Of course policemen are not the only ones who see the "dark side" of human nature. Ghetto dwellers see crime and violence every day. But the policeman sees these things from a unique point of view. As a law enforcement officer the fact of deviance is foremost in his mind. Not surprisingly, Niederhoffer found that cynicism in the New York Police Department was directly related to the length of time an officer spent on the force. Bigotry. Police cynicism supposedly finds its strongest expression in racial prejudice. Prejudice, after all, is really a kind of "directed cynicism." There is some indirect evidence that anti-minority sentiment among policemen is directly related to the amount of contact with members of minority groups. Black and Reiss found that a largerproportion of officers made "highly prejudiced" statements in Negro precincts than they did in racially mixed or white areas.47Of course the crime rate is higher in black neighborhoods; the poverty is greater; and the values are different. According to Johnson,48 many policemen suffer from cultural 45 WESTLEY, supranote 31, at 82. 46 BLACK, supra note 4; NIEDERHOFFER, supra note 12; WESTLEY, supra note 31. 47 Black & Reiss, supra note 5. 48Johnson, Police Community Relations: Attitudes

shock in the ghettos, so it would not be surprising to find a high degree of prejudice among them. Kephart found a similar relationship between the arrest rate in black neighborhoodsand the negative attitudes of white policemen who patrolled there.49 The high crime rate might have contributed to the officers'prejudice, but the causal arrow could point the other way as well. The officers could have arrested more blacks because they were prejudiced in the first place. Not only that, but Kephart failed to find any relationshipbetween anti-Negro feelings and length of service on the police force. As Skolnick points out, it is wise to keep police prejudice in the proper perspective: "the policeman may not get on well with anybody regardless (to use the hackneyed phrase) of race, creed, or national origin." 50 Anti-Intraception.Policemen have been accused of anti-intraception. They are supposedly opposed to tender-minded, sympathetic visionaries who insist on complicating "reality" with unworkable idealism. Police tend to be pragmatists,a characteristicrelated, no doubt, to the exigenciesof their calling. Muchof a policeman'sworkcalls for action-now. He frequentlyhandlesemergenciesin whichtime is precious.He has to make decisionsin situations wherefacts are hardto comeby and guidelinesare uncertain. Small wonder, then, that he values 'commonsense' morethan theory, successesmore than ideals.51 According to Watson and Sterling,52the policeman's hard-bitten pragmatism is closely tied to his cynical outlook on life. Deterministic theories which, from the policeman's point of view, excuse the criminal from responsibility for his actions are inconsistent with a cynical, misanthropic worldview. Nevertheless, Watson and Sterling found that most officers disagreedwith the view that social science is unrelated to the "everyday realities" of police work. Violence. Critics also accuse the police of being overly fond of violence as a problem-solving technique. Police cynicism supposedly forms a background against which police brutality is underand Defense Mechanisms, in 4 ISSUESIN CRIMINOLOGY

69 (1968).

49W. KEPHART, RACIAL FACTORS AND URBAN LAW ENFORCEMENT(1957). 50 SKOLNICK,supra note 3 at 49-50. 51 WATSON& supra STERLING, 52 Id.

note 36, at 6.

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ROBERT W. BALCHt

standable: Policemen need not have compunctions about splitting the heads of vile degenerate men. The police officer'sreaction to the sex offender is a prime example: "If I saw a guy beat up a sex criminal I'd figure the guy had a good reason for it. If the guy is no Goddam good... I think it's all right to rough him up." 58 Westley4 believes that the root of police brutality is the public's definition of the police officer as a pariah. Policemen simply spend too much time dealing with the public to escape its opinions. They are ambivalent about their status. On the one hand, they regard themselves as competent craftsmen performinga vital task; yet on the other, they are condemned and degraded by the very people they have sworn to protect. Because their status is insecure, because they are not even sure if they respect themselves, policemen feel compelled to demand respect from the public. Significantly, Westley found that disrespect for the police was the greatest single reason officers gave for "roughing a man up." Likewise Black and Reiss concluded that a "disproportionatepart of 'unprofessional'or negative police conduct is oriented toward citizens who extend no deference to them." 65 According to Banton56and Tauber,57American policemen cannot rely on the authority vested in their uniform to gain compliance. Instead they feel compelled to assert their personal authority. The citizen may take offense at the policeman's intimidating manner, and the stage is set for a violent confrontation in which each party is struggling to maintain his self-respect in the face of a perceived threat by the other. Westley adds that the lower the status of the citizen, the greater the threat he poses to the officer's uncertain self-esteem. In this context police brutality is indeed understandable. Conventionalism.One of the policeman's outstanding characteristics, we are told, is his rigid adherence to middle-class values. By and large, policemen are recruited from the working class, but they are required to display middle-class values. Mustaches and long side-burns are prohibited, and hair must be trimmed in a conservative style.58In their study of a Midwestern police department, Preiss and Ehrlich found59 that over a ten-year period most of the cases to come before the depart63Quoted in WESTLEY, supra note 31, at 135. 64Id.

66Black & Reiss, supranote 5, at 37. 66 BANTON, supra note 41. 67Tauber,supranote 43. 68NIEDERHOFFER,supra note 12. 69 PREISS

& EHRLICH,supra note 24.

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ment's trial board were for social offenses-intoxication, sexual promiscuity, financial negligence, and so on. A police department is a paramilitary organization. Strict discipline is required at all times, and conformity to the rules can become an end in itself. When in doubt, the safest course of action is to follow the rules, even if it means ineffective law enforcement.60 The policemen's suspiciousness could also contribute to his conventionality. Things out of the ordinary indicate criminal activity. In addition policemen are politically conservative and seem to be heavily representedin the John Birch Society.61In the 1964'Presidential election, Denver policemen not only voted for Goldwater in far greater proportion than the general public, but in greater proportion than white Denver citizens with the same educational and economic backgrounds as policemen. Watson and Sterling found that respondents in a nation-wide survey of police opinions tended to "side with" a sample of "civilian conservatives" more often than a sample of "civilian liberals." 62 The conservatives included several Klansmen and members of the John Birch Society. However, the police officers were not as extreme in their views as the conservatives, and Watson and Sterling caution us against "the mistaken impression that the police are 'all of a mind' -that they are a monolithic group so far as their views, opinions, and attitudes are concerned. This is definitely not the case.... " Skolnick has suggested that Festinger's theory of cognitive dissonance may explain why policemen are conservative and support the laws they enforce. Unless they were tough law-and-order conservatives when they joined the force, they are apt to experience some cognitive strain since they are required to enforce the law whether they believe in it or not. Their dissonance can be reduced in one of two ways. They can either modify their behavior-and risk losing their jobor they can decide that the laws are pretty good after all. Policemen, then, seem to have good reason to be suspicious, cynical, conventional, and so on. There seem to be powerful forces at work in the policeman's role that could generate an authoritarian outlook on life. Recall that McNamara63 found that more experienced policemen were more 60McNamara,supranote 15. 61

NIEDERHOFFER, supra note 12.

62WATSON& STERLING, supra note 36. 63

McNamara, supra note 15.

POLICE PERSONALITY

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authoritarian than recruits in the police academy. However, policemen do not confront their problems alone. They are submerged in a subculture which provides a ready-made set of solutions. When police recruits leave their sheltered academies, experienced patrolmen begin to re-socialize them. Preiss and Ehrlich64 found that police supervisors took special delight in debunking what rookies had learned in school-in fact, they considered it an important part of their job. Authoritarianism may not be an individual reaction which, incidentally, happens to be shared by others. It may be an attitude that is conveyed from one generation of policemen to the next. Niederhoffer is quite explicit about the system's ability to create authoritarian personalities. He goes so far as to say the system is a failure if it does not develop authoritarianism. THE SELECTION OF AUTHORITARIAN PERSONALITIES

An alternative explanation of police authoritarianism is that authoritarian individuals are recruited for police work in the first place. Three kinds of selection are possible: 1) self-selection, 2) the weeding-out of "liberals," and 3) recruitment from an authoritarian class of people. Self-Selection. Authoritarian individuals may deliberately choose police work because it is compatible with their personality needs. It is easy to see how an authoritarian might be drawn to police work. The police are a paramilitary organization whose job is to uncover suspiciousactivities and protect conventional moral standards. McNamara4a found that police recruits did not object to the rigorous discipline of the police academy. He points out that this is what we should expect, given their relatively high F-scores. However, even if high F-scores are compatible with a militaristic organization, we cannot conclude that members have been self-selected. McNamara also believed that his recruits were no more authoritarian than the average working-class male. Similarly the authors of the Portland study of police applicants concluded that their subjects were very much like the typical male college students.65Bayley and Mendelsohn also concluded that policemen were "absolutelyaveragepeople." 66 The evidence that particular personalities are 64PREISS & EHRLICH, supra note 24. 64aMcNAMARA,supra note 15

Matarazzo, et al., supra note 13. 66BAYLEY & MENDELSOHN, supra note 14. 65

115

selected for different occupations is not at all clear. According to Donald Super,67 the more narrowly and specifically defined the occupation, the better the chance certain personalities will be attracted. But the problem with police work is that it defies easy description. The average policeman is a social worker, watchman, detective, guide, and so on. The Elimination of "Liberal" Recruits. Even if authoritarian personalities do not deliberately seek out police work, a second selective factor may be operating. Liberals simply may not apply for police work. This is a much more parsimonious explanation of police conservatism than the theory of cognitive dissonance. Bayley and Mendelsohn not only found that Denver policemen were considerably more conservative than the general public, but that age was unrelated to political beliefs. If police work really develops a conservative outlook, then the older, more experienced policemen should have been more conservative than the younger ones. Of course, police selection procedures are geared to weed out unconventional applicants if they do apply. Applicants are subjected to rigorous character investigations, and any tinge of radicalism in one's background may be grounds for disqualification.6 Even when liberals do become policemen, they are not apt to last on the job.69The police force is already a conservative organization when the liberal arrives-he will not find much social support there for his beliefs. Even if he is not ostracized by other policemen, the job itself may be antithetical to his values. The police organization is a paramilitary bureaucracy which rewards conformity and discourages innovation. The liberal will have to enforce many laws he finds personally objectionable, and law itself may be subordinated to order-maintenance. The liberal has three alternatives. He can develop an "underlife" by seeking alternative sources of support for his values and self-esteem. He might, for instance, find a compatible niche in the community relations division. He could also change his belief system, and this is what we might predict from dissonance theory. But if the change is too radical and would require a complete realignment of the self-concept, it may be easier to opt for the third alternative and drop out of the system altogether. It seems 67 68

D. SUPER,THE PSYCHOLOGY OF CAREERS(1957). NIEDERHOFFER,supra note 12.

Vego, The Liberal Policeman: A Contradiction in Terms?, in 4 ISSUESIN CRIMINOLOGY15 (1968). 69

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ROBERT W. BALCH

[Vol. 63

on the force represents an advance in social status. Studies show that Denver policemen and recruits at the New York Police Academy are upwardly mobile in relation to their fathers.77 Working-Class Authoritarianism.70 The third kind of selection has already been mentioned: Although most policemen come from workingThe police recruit their members from a relatively class homes, they share typical middle-class authoritarian segment of the population.71It does values such as 'looking toward the future and not follow, however, that policemen themselves getting ahead, owning a home and a new car, are authoritarian. The working class, the family being on time, and assuming responsibility."78 background of many police officers, comprises a Many, however, feel insecure precisely because large portion of our population, and within that they are new to the middle class. In a sense they class there is room for a tremendous range of are marginal men and seem to have profound variation. While the mean level of authoritarianism doubts about their social standing.79In the abmay be very high, policemen could be selected sence of tangible social rewards like high pay and from the lower end of the distribution. Bayley prestige, they cling to respectability to verify and Mendelsohn72found that Denver policemen their middle-class status. As Chwast put it, the were less authoritarian than their non-police con- "police are more middle-classy than the av80 It trol populations. On the other hand, McNamara's erage.... may be significant that 52 perof cent that recruits the scored on the as high finding police police applicants in the Portland study F-Scale as Adorno's working-class sample does arrived for their interviews wearing a suit and not support this interpretation.73In other respects tie.81 The researchers were also interviewing popolicemen seem to be very much like the general tential firemen, but only 15 percent of them wore public, which, unfortunately is never well defined. ties to their interviews. Yet all the applicants had One study found substantial agreement between working-class backgrounds. Perhaps the policethe police and the general public when they were man's upward mobility accounts for his authorasked to judge the rightness or wrongness of itarian predilections. various actions.74Matarazzo, et al.,75 and Bayley The policeofficerof lowerclassbackgroundmay be and Mendelsohn also found strong similarities insecurein his newstatuspositionandconsequently between policemen and the public. One more the may cling tenaciouslyto middle-classvalueswhile same inconsistencies prevent us from drawing suppressingall tracesof his previousclass identififirm conclusions. any in othersmay be cation. To him, 'lower-classness' Many writers believe that police work is a intolerable.82 "natural" choice for working-class men. It offers reasonably good pay, security, and adventure The policeman's uncertainty is aggravated by for young men without a college education or his ambiguous standing in the eyes of the public. any special training.76For many, securing a job Many policemen believe they are not given the 70 WATSON & STERLING, supra note 36, have chalrecognition or prestige they deserve. Some even lenged the assumptionthat most policemencomefrom believe the prestige of police work has been delower middle- and working-classfamilies. However, their data seem to supportthe very assumptionthey clining. Policemen also believe they are being wish to challenge: '"handcuffed"by the courts, civil right groups, [T]oday's police officers have come from the local government. Not only is their social and families of craftsmen and foremen, and service standing marginal, but their effectiveness as a workers (including police) in larger proportion than is true for the generaladult workforce.Conlaw enforcement agency is being threatened. versely,the data shows [sic] that proportionately fewerpoliceofficersthan other adults are children Enforcementand the Administrationof Justice has of professional,technicaland managerialworkers; recommended that police officers have at least two clericaland salesworkers;operatives;farmers;and years of college, very few departmentsrequire any amount of college preparation. See note 26 supra. laborers.(119). reasonable to assume, then, that liberals are unlikely to apply for police work, and, even if they do, they are unlikely to survive.

71J. WILSON, VARIETIES of POLICEBEHAVIOR: 77BAYLEY & MENDELSOHN, The supra note 14; McOF LAW AND ORDERIN EIGHT COM- Namara, supra note 15. MANAGEMENT MUNITIES (1970). 78Chwast, Value Conflicts in Law Enforcement, in 72BAYLEY & MENDELSOHN,supra note 14. CRIMEANDDELINQUENCY 151, 154 (1965). 79BAYLEY& MENDELSOHN,supra note 14. 73McNamara,supranote 15. 80 Chwast, supra note 78, at 154. 74Clark,supranote 42. 81 et al., supra note 13. 76Matarazzo,et al., supranote 13. Matarazzo, 82 WATSON 76 Although the President's Commissionon Law & STERLING, supra note 36, at 121.

1972]

Studies indicate that a large proportion of police officers join the force in search of job security.88 For these men especially, the uncertain status of police work must be very hard to bear. Declining status and influence have been implicated in the growth of fascism.84 The Nazi Party was supported initially and primarily by small business and property owners who were being squeezed out of existence by labor unions and big business. They felt powerless to cope with the changes occurring in Germany and seized on Nazism to restore their former social and economic security. Although the word fascism has been over-used and misused, and parallels should not be drawn too closely, a similar statusanxiety explanation might explain the policeman's apparent authoritarianism, expecially his conventionality and conservatism. In spite of the uncertainties inherent in police work, status-anxiety may characterize lower middle- and working-class people in general. There is some evidence that today's "silent majority" shares the policeman's feelings of insecurity. A recent Gallup Poll of the "forgotten man," the white middle-class American, reveals that middleclass whites are increasingly pessimistic about America's future.85 Almost 50 percent believe that the United States has changed for the worse in the last ten years, and a majority believe things are going to get even worse in the next ten. They decry the decline of community spirit and religious and moral standards. They worry about runaway crime rates and believe the world is becoming a dangerous place. What we need, they say, is to take the handcuffs off the police: "To most people, the possibility of added police power offers no conceivable threat to anyone but wrongdoers. 'Behave yourself and there'sno problem.' "86 The forgotten Americans are also feeling the economic squeeze. Blacks are unfairly getting the biggest slice of the pie-they should have to work for what they get like everyone else. Apparently the frustration and resentment are greatest in the working class--"families whose breadwinners have at most a high-school education, hold blue-collar jobs and bring home incomes of $5000 to $10,000 a year."87 They too worry & EHRLICH, 83NIEDERHOFFER,supra note 12; PREISS note 24; Reiss, supra note 35. supra 84 S. LIPSET, POLITICALMAN: THE SOCIALBASES OF

POLITICS (1960) 85

46 (Oct. 6, 1969). NEWSWEEK

86Id. 87

Id.

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POLICE PERSONALITY

about crime, racial violence, rising prices, and crumbling values, but they worry more and their opinions are more extreme. Marginal socioeconomic status becomes intolerable in an age of affluence. What has been described is the white middleand working-class American, but one could easily substitute the word "policeman" in all the appropriate places and still be reasonably correct. Members of the "silent majority" are certainly not fascists, any more than policemen are, but they seem to have many authoritarian characteristics: conventionalism, authoritarian aggression, stereotypy, cynicism, and projectivity. From this point of view, policemen appear to be good representatives of white middle- or working-class America. TOWARD A SOCIOLOGICAL MODEL OF POLICE BEHAVIOR

Unfortunately, only one firm conclusion can be drawn from this review: The evidence is inconclusive. We began with the assumption that policemen are very unusual people, set apart from the rest of the population by virtue of their authoritarian mentality. Now it looks like policemen may be rather ordinary people, not greatly unlike other Middle-Americans. We cannot even be sure there is such a thing as a police personality, however loosely we define it. According to Howard Becker,88 everyone has deviant impulses and practically everyone violates social norms at one time or another. Yet only a few are publicly labeled deviant. The same reasoning may apply to the police. Authoritarianism, as a personality syndrome, is widespread in this country, and policemen may not be any more authoritarian than other people from similar socioeconomic backgrounds. Bigotry is hardly unusual in the United States. Nor is conservatism, cynicism, or any other authoritarian trait. From a sociological point of view, the important question is not, "Why are policemen authoritarian?" but "Why are they singled out for special attention?" The police might have escaped the authoritarian label if they were not so visible. If the average workingman is bigoted, that is his business, but if a policeman's bigoted, that is everyone's business. Policemen may simply be very ordinary people who happen to be extraordinarily visible. 88H. BECKER, OUTSIDERS:STUDIESIN THE SOCIOLOGY

OFDEVIANCE(1963).

ROBERTW. BALCH

118

Police behavior is public behavior, not just because police work involves membersof the public, or because it often occurs in public places, but because the police are being subjected to public scrutiny as never before-in news stories, editorial columns, scholarly journals, radical tirades, and everyday conversation. However, not all aspects of police behavior are equally visible to the public. A great deal of police work is only peripherally related to law enforcement. Patrolmen spend most of their time giving directions, writing reports, breaking up family quarrels, and the like, but we hardly notice these activities because they do not conform to our popular cops-and-robbersstereotype of police work. On the other hand, we are outraged by police brutality and discrimination. We pay attention when innocent citizens are stopped and frisked, when blacks are harassed and demonstrators beaten. Law enforcement may be only a small part of police work, but it is certainly the part that attracts the most attention and criticism. Police behavior often appears to be authoritarian simply because the public only pays attention to certain aspects of the policeman's job. Cummins89has drawn some interesting parallels between the study of the police and early attempts by social scientists to come to grips with the problem of criminality. At one time most American criminologists were preoccupied with the nature of the "criminal mind." Cummins suspects that these early criminologists were driven by an "ideological need" to separate criminals from noncriminals. Today the evidence indicates that the personality characteristics of criminals are not appreciably different from those of people generally. But as the attention of criminologists has shifted away from criminals to the agents of social control, the need to psychologize and dichotomize has reasserted itself. Even though the earlierresearcheson criminality had wanderedunsatisfactorilythroughthe thicket of psychologicaldistinctiveness,the same basic elementsof the old frameworkcroppedup again when the sociologists turned to analyzing the policeside of deviance.True to form,the sociological studiesemphasizethe importanceof some distinguishingpsychologicaltrait structureof police officers, particularly some undesirable feature. Perhapsonceagain,the ideologicalneedfor separation underliesthe analyses.90 89 M. J. Cummins,The Problem of Police Minds, undated(unpublished). 90 Id. at 3.

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As Cummins points out, discussions of the police mentality have strong moral overtones. The use of labels like "cynical" and "suspicious" is "implicitly unfavorable, for it is, after all, a long stretch of the imagination to portray suspiciousness as a virtue." 91 He adds that more positive adjectives like "realistic" or "analytical" might be equally appropriate. While none of the authors cited in this paper have been openly hostile to the police, their studies provide ammunition for those who are. One of the favorite means of discrediting an undesirable character is to pin a psychiatric label on him. Authoritarianism, like mental illness or any number of more specific terms, is one of those convenient labels that allows us to make sense of police behavior and to discredit it at the same time. Perhaps, considering the unproductiveness of the personality model, we need an alternative approach to the study of police behavior. An undue emphasis on personality diverts our attention from a far more important issue: the structure of police work itself. In his remarks about the suspiciousness of policemen, Cummins points out that our concern with the police mentality overlooks the sociological aspects of police work.92 Police brutality in minority-group neighborhoods is often cited as evidence of authoritarianism, reflecting bigotry and authoritarian aggression. As we have seen, there are many explanations for police violence, but the most parsimonious comes from the police themselves. They will tell you that they have to be tough, especially in the ghettos, or they will lose control of difficult situations.93As James Baldwin put it, " .. . the only way to police a ghetto is to be oppressive." 94 In this sense, being tough is a matter of survival. Bayley and Mendelsohn95found that 98 percent of their police respondents claimed to have been physically or verbally abused. Under these circumstances policemen become alert to cues signaling criminal activity and trouble-the symbolic assailant. The greater their anxiety, the less likely they are to take chances and the quicker they are to try to forestall injury to themselves. Policemen are most anxious in minority-groupneighborhoods, and it is there that most police brutality is said to occur. In white middle-class neighborhoods 91Id. at 7.

92Id.at 9.

93

NIEDERHOFFER,

supra note

12; SKOLNICK, supra

note 3; McNamara,supranote 15.

KNows MY NAME61 (1962). 96BAYLEY& MENDELSOHN, supra note 14. 94 J. BALDWIN, NOBODY

19721

the police are less apt to worry about their wellbeing, and therefore they can be more relaxed in their encounters with citizens. Force, then, is not just an expression of personal prejudice or a fondness for violence. It may simply be a way of forestalling injury to oneself. Likewise, if policemen stop Negroes for suspicious activities more often than whites, it does not necessarily mean they are prejudiced. Rather the officers have learned that Negroes belong to a high-risk category and are more likely to have committed a crime.96 A great deal of significant police behavior can be explained solely in terms of the organizational characteristics of police departments. Wilson's study of the effect of professionalization on juvenile arrests is an excellent example.97 When Wilson compared delinquency rates in two cities, he discovered that the city with the "professionalized" police force had a much higher juvenile arrest rate than the city with a nonprofessional force. Yet the rates of juvenile offenses known to the police in the two cities were remarkably similar. He attributed the differences to the organizational characteristics of the two departments. In the "professional" department precincts had been eliminated and the force had been centralized. Because the department had been plagued by scandals in the past, new regulations had been introduced, old ones had been made more stringent, and supervision had been tightened. Officers believed their behavior was constantly being monitored and their productivity measured. In order to "play it safe" they began to treat juveniles in strict accordance with the rules, without regard to personal characteristics or extenuating circumstances. On the other hand, the non-professionaldepartment was decentralized and run at the precinct level. Regulations were few, supervision lax, and individual officers had broad discretionary powers in juvenile matters. In cases where the "professional" officer would be likely to arrest, the officer in the nonprofessional department might simply give the juvenile a "kick in the pants" and send him home. In this case, police behavior can be explained without recourse to the psychological characteristics of individual policemen. These remarks are not intended to deny the 96Wilson,ThePolice and TheirProblems:A Theory, 189 (1963). 12 PUB.POLICY 97 WILSON,The Police and the Delinquent in Two Cities, in CONTROLINGDELINQUENTS9 (S. Wheeler ed.

1968).

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POLICE PERSONALITY'

validity or usefulness of personality as an explanatory construct. Instead, they are meant to keep personality in the proper perspective. Personality and social structure interact with each other. For example, Watson and Sterling have argued persuasively that personality patterns acquired in childhood have varying degrees of influence on police behavior depending on the nature of departmental organization. If a police departmentis loosely organized,if the menget little in the way of training,if leadershipis nonexistent,if supervisionis lax, if there are few rules and regulations,which actually govern the conductof the men,if the mendon'tsee themselves as part of the law enforcementprofession,if they think of their job as just anotherjob, and if they don't feel a senseof dedicationto their work, then the socialclass values of their childhoodwill probably come into play in their occupationalrole. To the contrary,if a departmentis well organized, if the men are thoroughlytrained in all aspects of their work,if those in commandof the departmentshowstrongleadershipanddirection,if supervisionis constantand effective,if rulesand regulationsareboth knownandfollowedby the men, and if the men feel they are stronglydedicatedto the law enforcementprofession,then there will probably be little relationshipbetweensocial class upbringingand adult occupationalperformance.For example,the patrolmanfroma working-classbackgroundwouldnot be inclinedto use roughlanguage or showa gruffmannerin the latterkindof department.98 Presumably the effects of social class background would be minimal in a highly professionalized police force. CONCLUSION

The controversy over the police mentality will probably persist for some time to come. There is simply not enough good evidence to support or refute any side of the controversy. Even the existence of modal personality characteristics among policemen is open to serious question. The devotion of social scientists to the personality model has obscured the important role that organizational factors play in shaping police behavior. Attracting better people to the same old job is not necessarily an improvement. In the case of police work, it may simply mean that college graduates will be "busting heads" instead of high school drop-outs. 98WATSON& STERLING, supra note 36, at 109.

I'HE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright t 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

THE POLICEMAN'S CHARACTER INVESTIGATION: LOWERED STANDARDS OR CHANGING TIMES? ANTHONY V. BOUZA Deputy ChiefInspectorAnthonyV. Bouza is CommandingOfficerof the Inspection Division, New York City Police Department.InspectorBouza has been a memberof the departmentsince 1953. His immediatepreviouscommandwas that of 6th Division and previouslythe Planning Division. Chief Bouza holds a masters degree from the City Universityof New York, and has servedas a memberof the CandidateReview Board,New York Police Departmentsince its inceptionin 1966. Once upon a time the fate of a potential police- absolute requirement for appointment" which is man in New York City was inextricably inter- set forth in the qualifying application. It is a nebtwined with the predilections and biases of the ulous no man's land between the clear-cut and investigating sergeant assigned to review his char- precise (though not necessarily rational) medical acter qualifications. This inquiry included a neigh- disabilities that legally bar entrance, such as 90 borhood check (where anywhere from five to ten medical conditions that include impairments, neighbors would be questioned about habits, amputations, allergies and glandular disorders and temperament etc.) and questionnaires mailed to the behavioral bars such as conviction of a felony, and filled out by past and present employers, all the misdemeanor of petit larceny, or receipt of a schools attended, the military or draft authorities, dishonorabledischarge. The area of character investigation has successand official agencies that might have a criminal or The in their files. leads were reference fully resisted standardization and remains, to this derogatory furnished by the candidate when he filled out a day, a subjective process that depends on the evalPA 15, which is a comprehensive background uator's judgment, intelligence, experience, objectivity and fairness. It is, even today, much more questionnaire. The character investigation was the last hurdle an art than a science. The Police Commissionercould also employ the in a course that included a competitive mental exam, followed by a medical and, later, a physical "one out of three" rule to exclude those he contest of agility and strength that was, until re- sidered undesirable candidates. This rule simply cently, competitive but which is currently merely binds the Commissioner to accept only one out of qualifying. The final barrier before appointment every three candidates certified to him as appointas a patrolman on probation, for what was once able from a civil service list. In the final analysis the investigator's findings six months then extended to one year, was the were His of the imprimatur investigating sergeant. invariably controlling and a disapproved aprecommendation was invariably endorsed and dis- plicant stood little chance of making it or even of approval meant professional extinction for candi- knowing definitely why he had been rejected. It dates whose only real hope of achieving financial goes without saying that this system was not exstability was appointment. There was, of course, actly hospitable to the thought of a confrontation, always the Article 78 proceeding, but this involved or even to afford the opportunity to explain the costly and chancy litigation that was rarely em- circumstance surrounding a barring peccadillo. ployed and even more rarely successful because of In the rare case of an insistent or sophisticated the administrative discretion necessarily accorded candidate, a hearing would be held by three suthe Police Commissioner by courts that were perior officers who would not ordinarily be exunderstandably reluctant to second-guess a value pected to be sympathetic to this "pushy" individual. judgment that was cloaked in expertise. The character investigation constitutes an atThe end result was a Kafkaesque bureaucratic tempt to determine whether the candidate meets labyrinth where the petitioner sought relief from the standard that "proof of good character is an nebulous and unspecified charges by appealing to 120

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THE POLICEMAN'SCHARACTERINVESTIGATION

authorities whose involvement with the case might be central, peripheral or nonexistent. This system, nevertheless, served the needs of the Police Department because, for decades, it operated in a buyer's employment market where the sellers where primarily Irish-American or Italian-American youngsters of the upper lower classes or lower middle classes. The biases of the investigator were invariably those accepted by the applicants and little conflict arose as a result of value judgments that reflected these predispositions. The candidates were high school graduates or possessors of equivalency diplomas that prepared them for a very limited role in a society that required highly trained and well-educated applicants for its remunerative positions and which relegated the under-preparedto the status of laborer or civil servant. The investigator's shibboleths were fairly constant and predictable and reflected the ethnoreligious-cultural milieu that was common to the inquisitor and the respondent. They included strongly held sexual taboos such as premarital relations that were reflected in the record by the birth of a child a few months after the marriage or any history of venereal disease or an arrest for a sex crime such as statutory rape (the disposition of the charge was frequently viewed as an irrelevancy, reflecting as it did what was probably a judicial predisposition to leniency). Illustrative of this syndrome was the firing of a patrolman in July 1968 for cohabiting with a female. They were both single, but the Trial Commissioner (an Irish Catholic) had held that this constituted immoral conduct. This case excited a great deal of comment in the press and criticism of the Police Department for moral myopia and the courts later reversed this verdict and ordered the patrolman reinstated in April 1969. He was promoted to sergeant in November 1969. The colossal irony is that the Candidate Review Board had, in March 1968, approved a candidate who was admittedly and openly living with a woman he had expressed no intention of marrying. Thus, at the very time that the department was deciding that a functioning partolman could not continue in its employ because of his cohabitating, the board was admitting into the police ranks an avowed and open cohabitant. A further series of obstacles was reflected in problems with the law ranging from a forgotten

121

referralto a youthful indiscretion to GrandLarceny Auto (the common joy riding syndrome that has become a hallmark of our adolescent culture). A number of summonses, for parking or moving violations, further debilitated the applicant's case. Another bar to entry was the candidate's military experience. In terms of seriousness these ranged from a high of draft evasion to a low of a record of company punishment for minor infractions. The criminal histories of friends and relatives frequently became impediments to entry and even such innocent matters as a parent's signing of a petition for a Communist Party Candidate in the 1940's might result in an unfavorable ruling. Guilt by association was no great stranger to this process. The height of bureaucratic fashion was to "resolve the doubt in favor of the department" and disapprove the candidate. A favorite stratagem was to convince the applicant to withdraw "for personal reasons," ostensibly to avoid the stigma of rejection by the department. Many borderline cases were resolved in this convenient manner. The adoption of the reforms that will be described here resulted in the reapplication for admission by many of these "withdrawals." Unfortunately, those on whom time had run out were not eligible for this rescue operation and the Russian-style posthumous rehabilitation would have done them little good. Despite the obvious weaknesses, this system gave good service as long as the applicant and the investigator shared the same cultural values and accepted the same truths. The developing ghetto culture of the Negro and Puerto Rican created a problem for the investigator because it confronted him with an alien set of values. This challenge was met with disapproval of the very candidates that the department was trying to recruit in order to broaden its personnel base and have the department more accurately reflect the racial balance of the surroundingsociety. By 1966 it was becoming commonplace to have Negro and Puerto Rican applicants rejected because of cultural factors that were related to the ghetto that the investigator neither understood nor accepted. More importantly, these factors were frequently irrelevant to the candidate's prospects for successful performance as a patrolman. This conflict was exacerbated by programs such as the Manpower Development Training Act

122

ANTHONY V. BOUZI

[Vol.63 PA TiO- V.,VAtlN

30

IAPPF?OVED 1 MENTAL C O I EXAM

-vCOMPETITIVE

O

-1

MEDOCALEXAM

1

PHYSICAL

[-

TEST AGILITY (MERELY QUALIFYING)

STRENGTH

a

CHARACTER

|

IINVESTIGATION]

DDSAPPROVEDO

[ HEARINGBOARD PERSONALAPPEARANCE a REVIEWOF RECORD

AAPPROVEDJ

[DISAPPROVED|

I I REVIEWBOARD (PATROLMAN I CANDIDATE PERSONALAPPEARANCE FOLLOWING STUDY OF RECORD

[A PPROVECJ

[DISAPPROVEDJ

PATROLMANI REJECTED

j

FIGURE 1.

PoliceIntake Process. which sought to salvage the human flotsam being P. McManus. This board, ultimately and inforspewed from the slums. An important part of this mally known as the Candidate Review Board process was the Police Department phase of this (CRB), studied the case of every rejected candiprogram that secured High School Equivalency date and frequently overrode the recommendation Diplomas, Hack Licenses, and jobs in security of the investigator. An evolutionary process then developed that and related fields for the applicants, as well as preparing them to pass the patrolman's exam. resulted in the investigator being given a choice of Central to this process was the recognition that two possible recommendations: to approve the the applicant very probably had derogatory ante- candidate (in which case he was routinely assimicedents and educational handicaps that had to be lated into the ranks at a normal progression) or to overcome through his preparation for and admis- mark the character as "questionable." The latter sion into useful employment. This led straight to category resulted in the Candidate's appearance the patrolman's job. And the bar to this rehabilita- before a Hearing Board composed, usually, of a tive and salvage process was the investigator who Deputy Inspector, a Captain, and a Lieutenant. was unable or unwilling to accommodate the Approval by this Board placed the candidate back in the normal intake shuttle. Disapproval changing philosophy and mores of his time. It was gradually perceived by the police ad- meant automatic referral to the CRB where only ministration that the investigator's judgment had the case was reviewed at first, but where the canto be tempered with a judicious review of the case. didate was later required to make a personal apThis would insure the application of a more com- pearance. The system's final configuration is illusprehensive perspective. A review board was in- trated by the accompanying diagram labeled the formally established in 1966 by Police Commis- "Police Intake Process." sioner Howard R. Leary which was headed by the The first recorded case of the candidate's folder then Deputy Commissioner of Legal Matters being circularized among the board members ocFranklin L. Thomas. Then Chief Clerk Louis L. curred on May 9, 1966. The CRB never assumed Stutman (appointed Deputy Commissioner in a formal organizational cast and was permitted to Charge of Licenses in July 1970), also was named, evolve naturally, as it were, generally in response as well as the aides of the Chief Inspector, the to the Chairman's lead. The current seven-man Police Commissioner, and the Chief of Personnel board has four Policemen (career officers) and two (named Chief Inspector in March 1969), George civilians (civilian employees of the Police Depart-

1972]

THE POLICEMAN'S CHARACTER INVESTIGATION

ment) and one vacancy (probably to be filled by a civilian). The administrative reform of requiring a candidate's personal appearance was inaugurated by Thomas' successor as D.C.L.M., R. Harcourt Dodds, in 1968. By that time the Board had taken on a more formal shape and was composed of D.C.L.M. Dodds, D.C.L. Luis Neco, Chief Clerk Stutman, Chief of Personnel Elmer C. Cone, Assist. Chief Inspector Eldridge Waith, Deputy Inspector Vincent Agoglia and Deputy Inspector Anthony V. Bouza. This evolutionary process finally resulted in the present administrative structure that grants a candidate two personal interviews and which precludes the anonymous and unexplained rejection that characterized the former procedure. Strangely enough, this seminal and important reform was never formally authorized in writing and remains to this day a fragile and evanescent structure that depends for its life on the memory of the principal players. Reforms of this magnitude are rarely launched without some rippling of the waters, and this one was no exception. The most strident cries were that the standards were being lowered, that the city's safety was being toyed with, that criminals were being admitted into the ranks and that quality was being sacrificed for quantity. The absence of a formal ukase establishing the Board tended to mute the attacks and reduce the controversy to an insider's debate, but it also kept the influence of the reform from radiating outward to other cities' police departments that might likely have been influenced by New York's lead. What cavilers conveniently forget to explain, however, is how standards can be selectively lowered to benefit only minority group members, expecially since this evaluative process is far down the intake road, having been preceded by the mental, medical, and physical exams. If standards were lowered at any point, it goes without saying that the relative standings would remain fairly constant and those best able to pass would still dominate the process. The fact is that the Irish, Italian, Jewish and related nationalities have been largely assimilated into the middle class and are not applying for the policeman's job in the numbers they once did and this trend is deepening. As the traditional manpower pool dries up, other sources must be found. This administrative imperative was further buttressed by the need to

123

have a more representative corps of policemen, not to mention the benefits accruing to society from assimilating ghetto residents into the middle class through civil service employment. Logically, this controversy over standards also masks the resistance of the haves to the claims of the have nots. The agency's heart is, as the Bible reminds us, with its treasure, which explains why the existence of a large Negro and Puerto Rican nampower pool is so attractive to it. In the final analysis the fundamental reform wrought by the CRB was to look at the candidate from the perspective of his present circumstances. Had he shown convincing evidence of growing stability and a developing sense of responsibility? Were his actions offensive to a given religious view yet morally unassailable? Had he expiated his sins through the introduction of positive entries into the record?Was his record reflecting ghetto mores that were being misinterpreted by evaluators who, because of different cultural experiences, could not properly assess the significance of the entries? Was he, in fact, good police material within a broader context than that envisioned by the limited perspective of the investigator? Was he being victimized by the prejudices of the investigator? These and others were the questions addressed by the Board. The gravamen of the Board's case was that the standards were, in fact, being raised to a far more sophisticated level than its predecessor system had been able to attain. This raising of standards was achieved through the creation of a permanent body that would bring to the process of evaluation not only education, experience, and a broader perspective but also the peculiar insight that is given only to those who experience the problems first hand--the members of the minority groups themselves. To these advantages was added the very significant edge of the development of uniform standards as well as the growth of a body of experience and precedent that greatly broadened the board's view as it deepened its insight. One of the board members who kept a record of the 505 cases reviewed by him from May 9, 1966 to June 24, 1970 reported that he had recommended appointment in 221 or 44% of the cases referred to the board. These figures are generally representative of the board's findings and can be used as the minumum total of approvals because the board, meeting as a body, was usually more inclined to approve a candidate than the single

ANTHONY V. BOUZA

124

Total Recorded (75 Cases)

TABLE 1 Approved % Approved Disapproved

1966 (From5/9) 1967 1968 1969 1970 (to 6/30) Totals

[Vol. 63

30 32 37 55 67

39% 31% 40% 46% 59%

46 70 56 65 47

221

44%

284

8. Maritalproblem 9. Licensesuspension 10. Schooltruant/late record 11. Unemploymenthistory 12. Schoolbehaviorproblem 13. Otherschoolproblems 14. Debts (excessive) 15. Otherthan honorabledischarge 16. Uncooperativewith investigator 17. Arresthistoryof relative 18. Drinkingproblem 19. Failedmilitaryentrancetest 20. Personalitydefect 21. Inabilityto adjustto military 22. Poorneighborhood reputation 23. Problemwith landlord 24. Draft dodger 25. Appearance 26. Tax problems 27. Arrestrecordof friend 28. Auto registrationsuspended 29. Subversivereference 30. PoliceAcademyAcademicfailure

13 12 12 10 10 10 7 7 6 6 4 4 3 3 3 2 2 1 1 1 1 1 1

member reviewing the folder prior to the meeting would be. The figures for the five years appear in Table 1. The statistics reveal a pattern of developing liberalism within the board itself (or at least one member of it, although the figures are offered as representative) as well as a developing willingness on the part of the Hearing Boards below to disapprove borderline cases in the hope that the CRB would rectify this error. There is nothing as comforting to a bureaucrat as a decision that he cannot be criticized for and a disapproved candidate 938 Total stands little chance of proving his judges wrong. This averages to 7 summonses and 53 other A cursory glance at the records of 75 of the canpoints per candidate. didates, taken at random, reveals that the referThe advent of the Candidate Review Board was ences that barred entrance, prior to the case being sent to the CRB, were the following, in the order of a quiet revolution in the administration of the police intake process. It made the operation relevant the frequency with which the appeared; to contemporary mores and needs and served to T,otalRecorded increase the number of minority race members (75 Cases) within the ranks. Whether it constituted a funda1. Summonsrecord 528 mental reform of an archaic and unfair process 73 2. Employmentdisciplinaryproblems will have to judge. The feeling here is that history 3. Drivingaccidentrecord 55 it did, although it could best be determined through 4. Arrests(all crimes) 49 a study of the experience, within the ranks, of the 49 5. Militarydisciplinaryrecord members admitted through the offices of the CRB 6. Withholdinginformationfrominvestias compared with the records of other candidates 35 gator 29 who were routinely approved at the first juncture. 7. Youth referral

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE Copyright 0 1972 by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

THE ADVANTAGES OF THE SCANNING ELECTRON MICROSCOPE IN THE INVESTIGATIVE STUDIES OF HAIR LYNN ELLEN VERHOEVEN Lynn Ellen Verhoevenis a memberof the staff of AlphaResearch& Development,Inc., Blue Island, Illinoiswhereshe is engagedin ScanningElectronMicroscopyresearchin biological,physical and chemicalfields.After receivingher B.A. degreein the field of biologyand chemistryMiss Verhoevenreceivedtrainingin TransmissionElectronMicroscopyat LoyolaUniversity,StritchSchool of Medicine,Hines, Illinois and continued work at the Universityof Illinois Medical School in pathologyandvirologyresearchas well as workin forensicpathology.Sheis a memberof the Midwest Society of ElectronMicroscopists,State MicroscopalSociety of Illinois and the ElectronMicroscopy Societyof America. The advantages of using the Scanning Electron Histological studies have shown certain strucMicroscope (S.E.M.) for mammalian hair studies tural relationships of hairs to be usually prefar surpass the technique of light or Transmission dictable, though not invariable. The normally Electron Microscopy (T.E.M.) microscopicstudies. existing correlations are cuticular scales, medullae, Determinations of surface characteristics such cortical cells, and pigment patterns. as scale count, hair diameter, surface debris, hair Since growth is managed by cells arising from shape, scale structure and surface damage, whether a mass of rapidly proliferating tissue near the physical or chemical may be significant in in- base of the hair follicles, hair growth patterns show up on the surface scale patterns. These cells vestigative crime studies. Use of an optical light microscope gives very grow by differentiating into a core of keratinized poor topographic resolution of hair features. material composed of two interlocked parts-the While the transmission electron microscope gives hair proper and its internal root sheaths. During better resolution, there is still the matter of growth, the core passes upward through the wall replication of the surface of the sample to be of the follicle, the external root sheath. Root investigated, which gives another possibility for sheaths and dermal papilla are important in error in investigation. The S.E.M. is not only determining hair shape, size, and movement. a better tool for studies, since the depth of field Several glands and skin cells are involved (which and resolution of topographical work is better, will not be delved into, since the above description but preparation is rapid and easy. Hair samples of hair growth is not the prime concern, but shows are mounted on metal stubs with either double- some of the things involved in influencing hair stick cellophane tape or conductive paint on the structure besides hormones, vitamins, gland funcends; the hairs are then metal vaporized with a tions, environment and genetic factors). Nutrithin-layer of aluminum, coating the sample with tive and traumatic factors can modify normal a featureless metal at a thickness of less than rhythm of hair growth. Thyroid hormones have 200 A, which is under the resolution of the S.E.M. a physiologically stimulating action on hair growth. This enables the sample to be observed without Lack of adrenocorticotrophic hormones, disease, disturbing it; observations are made of the sample injury, or environmental stress cause a depression of hair growth. Of the eighteen orders of mammals, directly without replication. The information on hair; development, growth, all grow differently structured hair, (Figures 1 and chemical components and research projects and 2) which reveals either the outer structure, on hair of mammals (primarily other than humans) or the size, or the shape of the hair differently fills volumes. The short article to follow will in each case. Some mammals grow hair in wave certainly not be able to cover all the information patterns; others grow hair continuously, as in on hair, but will, perhaps, give a little insight sheep and humans. In addition to growth mechanisms previously into the characteristics of hair and the role the S.E.M. can play in bringing these characteristics described, there are other individual and diagnostic pathological, chemical and abnormal coninto focus. 125

126

[Vol. 63

LYNN E. VERHOEVEN

and in poor physical health. The scale structure in this instance did not develop properly and

FIGURE1.

Basal end of cat wisker showing small scales and broadnessof hair. (Enlargement300X). FIGURE3.

Light brown hair of an adult female Caucasian showingchemicallydamagedhair structure.(Enlargement 1000X).

FIGURE2. Dog hair from a long haired Shepard showing fine hair with narrow diameter and large smooth scales. (Enlargement 1000X).

ditions which affect surface characteristics of hair, and may be used as criteria for identifying hair of human individuals. Figure 3 shows chemically damaged hair from an individual taking drugs

Dark brownhairof adult female aucasianshoing physicaldamage.(Enlargement1000X).

19721

HAIR STUDIES AND THE SCANNING ELECTRON MICROSCOPE

127

FIGURE5.

Beardhairsfromadult male. A. Caucasian;B. Negroid;(Enlargement300X). shows up very well as a surface characteristic. Figure 4 shows physical damage of hair which could have been caused by hard brushing or teasing of the hair. The variability of human hair in each race is greater than the variability of hairs on a single individual's head. The hair of the Chinese is most nearly circular in cross-sections; coarser and straighter hair lends itself to a more circular shape. Negroid head hair is the most flattened being quite curly in nature, as tends to be the case with flattened ovaloid cross-sectioned hair. Western European and Asiatic Indian hair sections are intermediate in cross-section shape. Human hairs have differently shaped and sized cross-sections of hair on various areas of their bodies. The male beard hair is more or less triangular shaped, instead of round or oval. (See Figure 5.) Pubic hair tends to be broad and flat (Figure 6), more on the oval side. The soft, downy body hair is quite round (Figure 7), yet the diameter range is from 15 Aufor soft body hair to 70, for the coarser male body hair. The range of the diameter of fine body hair to coarse head hair is about 15 ,u to 190A.The head hair diameter range is from 45 to 190,u, with the dividing line between large and small hairs being about 95,. Scales, which are one-third the diameter of the hair, occur on hair shafts from 50-60,t; and narrow scales, which are one-sixth diameter, occur

on 92-105ju scale counts can be taken rapidly on the S.E.M. and a permanent record can be made with comparative hairs mounted on the sample next to one another, as in Figure 5.

FIGURE

6.

Pubic hair from adult female Caucasian shows normal flat oval shape with tapered appearance due to twisting. Hair lacks pronounced scales. (Enlargement 300X).

128

LYNN E. VERHOEVEN

[Vol.63

image can be seen by focusing at a distance, holding the picture about 10 inches from the eyes, and viewing the stereo pair. Stereo glasses can also be used to view the image. Stereo photographs show the great depth of field not achieved with light optical instruments since the depth of field would not be the same and resolution would be very poor with the optical instruments in general use. With the stereo means, scaley structure and surface features not readily noticed or determined before literally pop into view. This, too, is a great advantage in hair identification.

Hair identification is a complex and important problem in view of forensic investigation. It entails many tests and uncertainties still exist in drawing final conclusions to determine whether a single hair is identifiable from a certain individual. The Scanning Electron Microscope alone may not be able to cause final conclusions to be drawn, FIGURE7. Downy hairfromforearmof adult femaleCaucasian however, with further tests and comparative showinglargescales but small diameter.(Enlargement studies, this type of study certainly will even1000X). tually lead to a more positive identification of The pictures of hair samples were taken with hairs, since it definitely shows improvement a Polaroid camera attached to the Cambridge over the optical means of identification regarding Mark I, Scanning Electron Microscope, using structural, surface morphology, coupled with other scientific data. Polaroid Type 55 P/N film. Stereo photographs can be taken on the S.E.M. REFERENCES simply by taking one picture of the sample at 1. Kirk, Human Hair Studies, 31 J. CRIM.L. & C. 986 (1940). one angle, then tilting the sample an additional 2? to 10? to another angle, and taking another

picture. This is the angle at which your eyes would normally see the sample, since all depth is seen by the brain interpreting two images from two angles in relation to the two eyes. The stereo

2. Hansman, Histological Variability of Human Hair; 18 AM. J. PHYs. ANTHROP.415 (1934). 3. Gamble & Kirk, Human Hair Studies; II Scale Counts, 31 J. CRIM.L. & C. 627 (1940). 4. Vernall, A Study of the Size and Shape of Cross Sections of Hair from Fam. Races of Man, 19 345 (1961) AM. J. PHYS.ANTHROP.

THE JOUBNALor CRnIMNAL ANDPOLICESCIENCD LAW, CaIMINOLOGY Copyright O 1972by Northwestern University School of Law

Vol. 63, No. 1 Printed in U.S.A.

COMPARATIVE CRIMINAL JUSTICE EDUCATION A REPORT ON AN OVERSEAS EXPERIM\ne NT RALPH F. TURNER Ralph F. Turnerhas been a professoron the staff of the Schoolof CriminalJustice, Michigan State University,East Lansingsince 1947.He cameto the Universitywith a backgroundin the field of criminalisticsand has servedon a numberof the University'sforeignpolice programsincluding a Consultantto the Republicof SouthViet Nam 1956and 1957,and Chiefof PoliceAdvisorin 19591961.He was a FullbrightLecturerat the CentralPolice College,Taipei,Taiwan 1963-1964,and a National VisitingProfessorat the same institution 1969-1970.ProfessorTurnerhas served as an associateeditorof this Journalandwas the instructorin chargeof the coursedescribedin this article. Michigan State University has been offering Along with the students, both graduate and courses for credit in foreign settings since 1965. undergraduate, guest lecturers and short term This teaching arrangement is a part of the Michi- faculty members from Taiwan, Norway, England, gan State University Overseas Study Program. Austria and Australia spent varying periods of While emphasis is focused on foreign language time with the School of Criminal Justice. During instruction, other courses of study include the the period 1955-62, the school administered the comparative aspects of political science, humani- police advisory program in South Viet Nam as ties, graduate education, journalism, and social a part of the total Michigan State University science. Most of the courses have been taught project in that country. In 1963-64 this writer in Europe; however, a course in comparative served as a Fulbright Lecturer at the Central graduate education was offered in Tokyo during Police College, Taipei, Taiwan, and again as a the summer of 1970. The School of Criminal National Visiting Professor during 1969-70. These Justice of Michigan State University was invited opportunities for study and observation of foreign in 1968 to consider participation in this program. law enforcement systems in the Orient, Middle This is an account of the course as it was presented East, and Europe pointed up the value and need during the summer of 1970 in London, England. for American students of criminal justice to inThe School of Criminal Justice at Michigan form themselves about other methods of social State has enjoyed many years of association with control. Thus, the invitation to participate in foreign police systems and their representatives, the MSU Overseas Study Program was accepted beginning in 1950 when arrangements were made with alacrity and initial steps were taken in 1968 for the school to conduct a series of three-month to implement it. Details of the planning and organizational steps seminar-workshopsfor selected police officers from the Western Zone of occupied Germany. Groups will not be discussed. Let it suffice to say that a of ten to eighteen criminal justice administrators course of instruction was developed and announcespent approximately one and one-half months ments were circulated on a nationwide basis to on the campus in classroom work followed by all criminal justice programs and selected departfield observations in selected police departments ments of sociology and political science. Regisand visitations to major law enforcement centers. tration, transportation, and housing procedures This program continued for nearly three years. were handled by the MSU Office of Overseas At the same time the school began receiving Study at MSU. Students were enrolled in Criminal students from many parts of the world that were Justice Practicum 490a for 10-12 credits. The under the influence of the United States occupa- cost of tuition, transportation and housing, (with pation and/or foreign aid programs. Countries breakfast) was $847.00. Additional costs included represented included Japan, South Korea, the meals, entertainment, personal expenditures, and Philippines, South Viet Nam, Thailand, Indo- private travel. Twenty students enrolled in the nesia and several African nations, as well as course. This group included seven undergraduate England, Central Europe, and the Middle East. students, two graduate students, seven practi129

RALPH F. TURNER

130

tioners, and four educators. It is noted that the practitioners were also undergraduate or graduate students in criminal justice programs. Formal class meetings were held in Bedford College, Regent's Park, London. This college is a part of the University of London. Students were housed in Commonwealth Hall and in the dormitory at St. Bartholemew Hospital. In addition to classroom meetings and field trips, students were asked to prepare a fifty page paper on a topic of their own choice dealing with some aspect of comparative criminal justice. Library facilities included collections at Bedford College and the Institute for Advanced Legal Studies. Many students purchased books at the numerous excellent shops and the Government Stationary Office. The Training Division of the London Metropolitan Police Department deserves complete acknowledgement and profuse thanks for arranging for the guest lecturers and field trips. With the approval of Police Commissioner Sir John Waldron, Mr. J. C. Alderson, Deputy Assistant Commissioner in charge of the Training Department, and his immediate successor, Mr. E. J. E. Tickle, along with Chief Superintendent Steve O'Brien and Mr. Harry Howse, arranged the following course outline. COURSE or STUDY

Week One: July 6-10, 1970 Free afternoons will be devoted to private research. THEME: The historical development of English Common Law with reference to criminal procedure. Monday Introduction and Orientation Prof. R. F. Turner

[Vol.63

Thursday Modern Procedure (continued) Mr. D. A. Thomas Friday A visit to the Royal Courts of Justice, Strand, W.C. 2. Week Two: July (3-17) 1970 THEME: The origins and development of the British Police Service. Monday The historical development of the British Police; the beginnings to 1829. P. J. Stead Esq., O.B.E., M.A., F.R.S.L. Director of General Studies Police College, Bramshill Tuesday The "New Police" and their progress. P. J. Stead Esq., O.B.E., M.A., F.R.S.L. Wednesday The beginnings and development of the Police outside London. Chief Superintendent P. Jackson, M.A. Metropolitan Police Thursday The British Police System in the Commonwealth. History and Development. J. V. Mullin Esq., C.B.E. Director of Overseas Studies Police College, Bramshill Friday Visit to the Police College, Bramnshill, near Hartley Wintney, Hampshire Commandant: J. C. Alderson Esq. Week Three: July 20-24, 1970 THEME: The Police Today.

Tuesday The historical development of English Common Law with reference to criminal procedure. Dr. Leonard H. Leigh London School of Economics and Political Science

Monday The British Police Today National Administration and Policy Col. Sir Eric St. Johnston, C.B.E., Q.P.M. H.M. Chief Inspector of Constabulary

Wednesday The Criminal Law-Modern Procedure. Mr. D. A. Thomas London School of Economics and Political Science

Tuesday The Metropolitan Police Administrative procedures generally Chief Superintendent D.A. Ward 'A' Department Metropolitan Police

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COMPARATIVECRIMINAL JUSTICE EDUCATION

131

Wednesday The Metropolitan Police Civil Staff G.A. Perry Esq. Chief Executive Officer 'D' Department (Training)

Tuesday The Probation Service D. Hodges Esq. The Principal Probation Officer,N.E. London Area

Thursday Recruiting and Training-a day at Hendon Commander W.A.J. Goulding and Staff Metropolitan Police Training School

Wednesday Morning: Juvenile Courts L. Goodman Esq. Senior Chief Clerk Inner London Juvenile Courts Dept. Afternoon: The Work of the Community Relations Branch of the Metropolitan Police

Friday Visit to the Central Criminal Court (The Old Bailey) Week Four: July 27-31, 1970 THEME: Arrest, Evidence and Criminal Court Procedure. Monday Morning: Criminal Court Procedure D. A. Thomas Esq. London School of Economics and Political Science Afternoon: Visit to Bow Street Metropolitan Magistrates' Court (Group A) Tuesday Morning: Criminal Court Procedure (contd.) D. A. Thomas Esq. Afternoon: Visit to Bow Street (Group B) Wednesday Morning: Rules of Evidence Prof. J. Hall-Williams, LL.M. London School of Economics and Political Science Afternoon: Visit to Inner London Sessions, Newington Causeway, S.E. 1 Thursday Morning: Arrest and Interrogation Dr. Leonard H. Leigh London School of Economics and Political Science Afternoon: Visit to Bow Street (Group C) Friday Visit to New Scotland Yard Week Five: August 3-7 1970 THEME: The Correctional Systems in England and Wales. Monday The Home Office Prisons Department Col. J. S. Haywood Assistant Director (Staff Training)

Thursday Morning: The Changing Penal System Prof. J. Hall-Williams LL.M. Afternoon: Visit to Stamford House Juvenile Remand Home, Goldhawk Road Shepherds Bush (Group A) Friday Visit to H.M. Prison Wormwood Scrubs Du Cane Road London W. 12 Week Six: August 10-14, 1970 THEME: Student Presentations Monday Morning: Student Presentations Afternoon: Visit to Stamford House Remand Home (Group B) Tuesday Student Presentations Wednesday Student Presentations Thursday Student Presentations Friday Morning: Student Presentations Afternoon: Review of course A special word of praise and thanks must be extended to the guest lecturers. All of the student evaluations of the course were uniformly high in complimenting the quality and exceptional caliber of the instructors. Each speaker presented a formal lecture followed by a discussion period. This procedure was also used on field trips when the host would provide a suitable briefing prior to the visit, which was followed by a concluding discussion.

RALPH F. TURNER

132 OBSERVATIONS AND COMMENTS

With the exception of a few students who had visited England and/or Europe on pleasure trips or had had military duty there, this was the first overseas experience for members of the class. England obviously presented no language problems, and there was little or no evidence of culture shock. Undoubtedly the new experience, coupled with the busy schedule, helped to deter some of the usual feelings of loneliness in a foreign country. Some students, however, reported frustrations when travelling in countries in Europe, where they had no language facility. All of the class members struck up friendships with their hosts, and some enjoyed personal hospitality in private homes. No untoward or embarrassing events occurred, and again, the student evaluations were uniformly favorable with regard to the total experience. Insofar as the technical, professional, and academic merits of the program are concerned, the following comments are in order. All of the students had been exposed in their American classrooms to accounts of the American system of criminal justice as it has evolved from the British system. This evolution in the United States covers a period of less than two hundred years. The brilliant exposition, by the lecturers, on the evolution of British criminal justice, covering many more centuries, helped to put the present state of affairs on the American scene into a proper perspective. These discussions, coupled with visits to historic sites, created a sense of living history. Undergraduate students in the course were impressed with the opportunity to see and study the places that heretofore were only text book or lecture references. The educators in the class took advantage of the opportunity to obtain teaching material and information that would be useful in future classes dealing with these subjects. Practitioners in the class were most anxious to observe the criminal justice procedures as they unfolded on a daily basis. Current events, relative to criminal justice, as they were reported in the daily papers, were frequently discussed in class the next day. Included were matters relating to law, police procedure, and correctional operations. There were frequent opportunities to compare views on the relative merits of British versus American methods. Topics dealing with recruitment, training, organization, criminal investigation, community relations, crime prevention, trial procedure, rules of evidence, and correctional

[Vol.63

philosophy were always being discussed on a comparative basis. The subjects of unarmedpolice, gun control, the handling of disturbances, and individual rights of citizens were also frequent topics of discussion. To enumerate all of the items of interest would require too much space. One student comment on the experience was, "One of the most interesting and exciting courses I have ever taken," a view shared enthusiastically by many of the participants. SUMMARY

What is the rationale for this kind of course? This writer feels, based upon more than thirty years of experience in the criminal justice system,. both as a practitioner and a teacher, coupled with nearly five years of overseas experience, that students and practitioners of criminal justice in the United States have become too parochial in their outlook of their profession. Since the close of World War II, we have become accustomed to the visiting foreign police officer, and have proudly displayed to him our technological achievements. There has been, however, little interest in studying and observing other systems of criminal justice. Our foreign aid programshave essentially exported American ideas and practices. The literature on comparative procedures is relatively minimal. At times there has been criticism of other systems based on less than a good understanding of what the system and culture are all about. In the meantime, the crime problem in the United States has grown to unprecedentedproportions. Tremendous,. sometimes frantic, effort is being put into measures intended to cope with the problem. The amounts of money being spent on these programs has never been equalled in our history. This effort to provide an opportunity to study a different form of administration of justice in a well structured academic atmosphere, on the scene-not in the abstract-appears to be one way in which to add a new dimension to our total understanding of how we may deal with our own domestic problems. Students, practitioners, and educators should be given the opportunity to enlarge their horizons. The ease of travel puts this opportunity within the grasp of many interested groups. A very great measure of cooperation was demonstrated by our friends in England. Similar cooperation is available in parts of Europe and the Orient. This first venture explored the relatively familiar system of English common law.

1972]

COMPARATIVECRIMINAL JUSTICE EDUCATION

Similar ventures might be conducted in countries where the Napoleanic Code, or modifications thereof, is used to govern a society. This, essentially, encompasses the Judeao-Christian world. A study of the system of criminal justice in the Buddhist world might also enlarge the understanding of those in the field of law enforcement, sociology and allied areas and might awaken more of us Americans to the realization that there are more ways to solve problems in criminal justice equitably than our way alone. STUDENTS

Kenneth S. Blonski Rick Cornell John J. Early, Jr. Larry Ray Fuller

Roy R. Glenzer Raymond B. Green Raymond W. Hamm James F. Hendricks John J. Horgan William A. Hughes Thomas G. Johnson Clarence F. Knight Robert G. Kosal Brian J. Matter Samuel G. McEldowney Robert McFadden Karen Orndorff Miles L. White Carolyn Wilson William Yankee Ralph F. Turner, Professor

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Vol. 63, No. 1

THE JOUzNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Printed in U.S.A.

Copyright O 1972by Northwestern University School of Law

PELLRT IDENTIFICATION J. K. SINHA ANDM. L. KSHETTRY J. K. Sinha, M.Sc. is AssistantDirector,Ballistics, ForensicScienceLaboratory,Chandigarh, India. Mr. Sinhahas testifiedas a firearmsexpertin criminalcases throughoutIndia and has publishedseveralpaperson forensicballistics. M. L. Kshettry,B.Sc. is a ScientificAssistant,ForensicScienceLaboratory,Chandigarh,India, wherehe specializesin forensicballistics. Identification of pellets fired through smooth bore firearms is not known and is looked upon as insoluble problem. But the importance of pellet identification can not be overemphasised,especially in our country where the use of smooth bore firearm is encountered very frequently in crimes. It has been observed that pellets, especially of larger sizes such as L.G. and S.G., often carry identifiable markings. These are scratched by the surface irregularities of the barrels. The pellets carrying these markings can be identified provided such markings can be produced on test specimens. However, statistical probabilities are very small that other shots fired through the same barrel would touch exactly identical points every time. Due to the difficulties in obtaining desired test specimens, the identification of fired pellets remained impracticable. Identification of such pellets should be possible if the markings from the requisite points area could be reproduced. A successful attempt has been made to obtain such test specimens, with special reference to smooth bore country made pistols (short barreled) chambered for 12 bore cartridges. THEORY

It is well known that barrels are not perfectly smooth and their surfaces are irregular, having rough spots of elevations and depressions. The striations on the pellets are produced by their passage over these surface irregularities and they are highly characteristic for individualisation. The pellets may be scratched only by a small portion of the barrel. Normally only one side of the pellets is found to have striations which are due to the scratching by one segment of the barrel. These markings from the required surface can be ensured if the striations due to the entire surface of the barrel are obtained. A projectile may carry striations due to the

entire surface irregularities if it perfectly seals the bore. Perfect sealing of the bore can very well be achieved by using projectile of greater diameter than that of the bore. But shotgun cartridges are not loaded with any single projectile having diameter greater than the respective bore diameter. Amongst the available single shotgun projectiles, single balls can alone be considered to serve the purpose. But single ball diameter is always less than the minimum permissible diameter of the bore of the gun. Therefore, single balls of larger diameter can only be used for test firing. It is not possible however to do this because of limitations of chamber size and possibility of bursting of the barrel. Single balls of slightly greater diameter can, however, be pushed through the barrel so as to take on the necessary bore markings for comparison. But a single ball being spherical has another disadvantage of minimum surface contact and is also not commercially available in different sizes according to the requirement. Considering the above factors, the best suited test specimen should be cylindrical in shape and be made from lead, which being soft can be pushed through the barrel with ease. It is, therefore, clear from the aforesaid discussion that, for comparison, test specimen of lead, cylindrical in shape and slightly greater than bore diameter, should be pushed through the barrel. This test specimen will necessarily touch the entire inside surface of the barrel and will also bear markings from the set of points of particular interest. EXPERIMENTATION

Cylindrical lead specimen (pellet) of any desired dimension can very easily be made by casting. An improvised method has been devised and adopted in the laboratory for preparing such test specimens. A flexible steel strip of 4" width has been used which could be turned to form a cylinder of .34

PELLET IDENTIFICATION

1971]

135

FIGURE1

any desired diameter. The steel strip and the cylindrical lead specimens cast in it are shown in figure 1. Experimental firings were conducted through a country made pistol chambered for 12 bore cartridges, using a 12 bore cartridge loaded with L.G. shots. The fired shots were recovered. Out of the six fired pellets, two pellets were found to have sufficient striations for comparison. As discussed earlier, test specimens were prepared by casting lead pellets of slightly higher diameter than that of the bore. Two such test specimens were pushed through the barrel of the country made pistol. These test pellets were examined for bore markings and as expected, were found to match throughout the surface. Thereafter, one of the recovered fired

FIGURE2

Test

Crime

pellets and the test specimen were compared for characteristic bore markings. On thorough examination, positive match was observed, proving thereby that the striations which matched on the test specimen and on the recovered fired pellet, were due to the same source. Figure 2 shows a positive match between the test and recovered fired pellet. To study the reproducibility, another test specimen was pushed through the barrel and the markings thereon compared with those on the fired pellet. Both the test and the firedpellets did match at corresponding position as in figure 2. Moreover, the tests among themselves had positive match at similar position. The other recovered pellet having sufficient striations, when compared with the tests was also found to have positive match. However, the position of matching was entirely different from the previous one. In the murder case in which the said pistol was used, a L.G. fired shot, which had been recovered from the body of the deceased, was also positively linked. Figure 3 shows the striationmatching of the questioned fired pellet with the test specimen. In order to study elimination and individuality, five country made pistols chambered for 12 bore cartridges were taken for experimental purposes. One cartridge, each loaded with L.G. shots, was fired through each of them and the fired pellets were recovered. Five fired pellets, one from each group having sufficient striations were secretly marked and mixed. The test specimens through all the pistols were obtained and compared with the

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J. K. SINHA AND M. L. KSHETTRY

[Vol.62

FIGURE3

Test recovered fired pellets. After careful examination, it was possible to link each pellet with the appropriate weapon. Examination of number of fired pellets revealed that while many of the fired pellets had identifiable markings, many others had several additional markings which could be due to partial rotation of the pellets inside the barrel. Further investigation in this regard is being carried out. Possibility of identifying pellets fired through long barrelled shot guns were investigated. It was observed that, although there is difficulty to some extent in obtaining test specimens as compared to short barrels, identification could be achieved satisfactorily.

Fired Pellet

The possibility of identifying pellets fired through smooth bore firearms has been investigated with special referenceto locally made smooth bore pistols chambered for 12 bore cartridges. It has been found that firedpellets having identifiable markings can be identified. However, for comparison, instead of firing test cartridges, test specimens are obtained by pushing slightly oversized cylindrical lead pieces through the barrel. ACKNOWLEDGEMENT

The authors wish to thank Dr. B. R. Sharma, Director, Forensic Science Laboratory, Chandigarh for his keen interest in the work.

Vol. 63, No. I Printed in U.S.A.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright 0 1972,by Northwestern University School of Law

IDENITFYING THE TYPEWRITER RIBBON USED TO WRITE A LET'rR A CASE STUDY EMPLOYING NINW TECHNIQUES ORDWAYHILTON The authorhas been an Examinerof QuestionedDocumentsin New York City since 1946.He is the author of Scientific Examination of QuestionedDocuments and of a number of technical articles

which have appearedin this Journaland otherpublicationsin this countryand abroad. The usual means of proving that a letter was written on a particular typewriter is to compare the identifying defects found in specimens from the machine and in the document in question. The same combination of type design and typing defects in the two sets without any fundamental differences establishes that the questioned document was in fact written on the known machine. The further step of identifying the specific ribbon with which the document was written is much less common, and apparently there is no reported use of linking an actual carbon ribbon to the questioned letter to assist in dating the latter.' While document examiners may have recognized this potential, most of them have not encountered a situation in which they could use it. By design carbon ribbons, which today are a carbon-wax coating on polyethelene tapes, are used only once and then discarded.2 After each character is typed there is a clear sharp outline left in the ribbon. With a properly operating machine no two letter or charactersstrike the same surface area of the ribbon. The problem is, therefore, to simply read and compare the material impressed in the ribbon with what is found in the document in question. In many respects it is simi-

lar to reading typewriting or writing impressions left in a used sheet of carbon paper. To establish that what is read in the ribbon at hand represents the actual typing of the document at hand requires full analysis of ribbon and document. How to accomplish this and to present the findings in court is the subject of this paper. CASE BACKGROUND

In some respects the uniqueness of the case helped to bring about the need for and the opportunity to make this kind of examination and demonstration in court. Two letters were actually in dispute, and the technique described established comparable data for both. One was dated July 12, 1957 and the second September 3, 1957. Only the September letter will be considered in detail. Litigation arose out of a controversy among the three executors. One, the decedant's widow, had brought forward the two questioned letters. During a hearing the month before two document examiners had testified that her principal exhibit, a prenuptial letter from the decedant, was a forgery. The September letter made reference to the prenuptial letter and had a photocopy of it attached. In effect if the September letter was genu1The significant distinction here is the actual ine, a serious doubt would be cast upon the acribbon. Ribbon wear of inking has long been recogof the forgery determination. nized as a basis for dating specimens,but it involves curacy The and machine from the matchdisputed September letter was typewritten of dated specimens study ing of ribbon characteristicswhich appear in this on an IBM Executive machine similar to one used written work. Here we are consideringa comparative the decedant. It was, however, a different study of the ribbonitself and the disputeddocument by In the course of field investigation anmachine. the ribbon. been with have which might typed 2 This statementdoesnot applyto the specialcarbon- other IBM was located which might have been plastic ribboncartridgeof the new IBM SelectricII used to write the letter. A very short September ribbon is in Its fall of the 1971). designed (introduced to reinkitself for five typings in the same areawithin and barely adequate sample of typewriting was a series of 15 consecutive strokes. Because of the obtained which showed that the questioned letter overtypingsthe charactersin any one area cannot be had been written on the machine. One of the atdeciphered.This ribbon actually feeds through the machineonly oncefromend to end and doesnot rewind torneys made arrangements for his secretary to as a fabric ribbondoes. In this paper we are dealing more adequate standards from the suswith the more common single use, single impression prepare carbonribbons. pected typewriter for court use. 137

138

ORDWAYHILTON

[Vol.63

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1972]

IDENTIFYING

THE TYPEWRITER RIBBON

FIGURE2. The September 3, 1957 letter as offered in evidence.

139

140

ORDWAYHILTON

When the secretary attempted to type, the ribbon did not function properly. In order to adjust it she opened the discard chamber which was filled with an unwound, tangled mass of used ribbon. All of this was removed, the ribbon properly threaded, and the new specimens were typewritten. After a brief discussion between parties it was decided to take the tangled mass of ribbon along with the new standards. Initially, it was thought that if the ribbon could be read, some useful information might be derived from it. Its present owner had only recently purchased the typewriter from the widow but had not used it except to prepare one brief specimen which had already been examined. EXAMINATIONOF THE RIBBON

Preliminary examination of the ribbon revealed material which read like the September letter. The typewriting could be read with side lighting or somewhat more easily with transmitted light. Simply holding the ribbon above a white surface with the light reflected through it proved to be an easy way for rapid scanning. Carefulreading of the ribbon disclosed three typings of the contents of the September letter. Did any one of these represent the actual letter in evidence or were all three simply copies of it? Unwound ribbon of this nature is difficult to handle and study. In all it consisted of between twenty or thirty yards. Its condition was in part good and in part wrinkled, torn, and badly mutilated. It was broken into a number of sections of various lengths. Fortunately there were several long sections which were in moderately good condition. The fragments had not been kept in order so that the broken ends had to be fitted together in an attempt to reestablish sequence. It was possible that some smaller sections might have been lost. After preliminary scanning and assembling, a section which appeared to duplicate the contents of the September letter most closely was wound on a small tape recorder reel which both facilitated handling and protected it. By off-reeling onto another spool handling became easier and smaller sections could be examined in detail. The letter itself and the ribbon were studied and compared for identical wording and factors which would establish simultaneous preparation. In the course of this study, it was found that extra characters appeared in the ribbon impressions at several points. When the corresponding words in

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the letter were examined, each was found to contain an erasure. The erased letters had been overtyped. In each instance the eradicated material could be deciphered from the letter. Here was the basis for more positive proof that the letter inevidence had been typewritten with this particular segment of the ribbon. The contents of the letter could be read directly from the ribbon (figure 1). Further, within the letter there were five erasings and overtypings. In addition there were three uncorrected spelling errors (figure 2). The spelling errors were located in the ribbon. The ribbon was studied in connection with the erasures. In each instance the deciphered erased letter was found impressed first followed by the correction which now appeared in the document in evidence. The typist evidently recognized each mistake immediately even before finishing the word. The examples are as follows: 1. "Pierce" had been misspelled "Pierse" and the ribbon reads "Piersce." 2. "It" had been originally typed "Is" and the ribbon reads 'Ist." 3. Following the word marriage the letters "ju" were typed and erased together with two commas, one of these can be seen faintly intersecting the final "e" of "marriage." (figure 3) The typist had had trouble at this point back-spacing the paper to make corrections as the ribbon reads "marriage ju,,e,." The final "e" of "marriage"must have been retyped for at least a portion of it would need to be erased in order to remove a comma which touched it. 4. "Agree" near the end of the paragraph had been typed "Af" and the "f" erased so that the ribbon reads "Afgree." 5. The word "everything" had originally been written with a capital "E" and erased so that the ribbon shows "Eeverything." This unique combination of typing errors coupled with identical spelling and the exact wording of the letter in evidence establishes strong proof that this was the portion of the ribbon which typed the letter. Inspecting the ribbon reveals these factors. There is no ribbon spacing when the space bar had had been struck. Thus words run together. On this particular machine the ribbon had not been moving forward properly. When certain letters were typed the ribbon would move farther than neces-

1972]

IDENTIFYING THE TYPEWRITERRIBBON

141

not uniformly aligned along the base line, a condition no doubt due to the action of the ribbon vibrator and possibly the improperfeed and takeup action. These observations meant that it is not possible to study the vertical or horizontal alignment of the letters from the ribbon impressions. In those instances in which two letters did not hit the ribbon so closely together that portions overlapped, typeface damage could be determined from the ribbon impressions. On this machine the lower left serif of both the "n" and "1' was worn away and the defect was apparent in the ribbon. Thus had the ribbon been separated from the machine it could, in fact, have been partially identified by these defects and the undamaged type faces as having been used on this particular typewriter. OF DEMONSTRATION PREPARATION CHARTS To demonstrate in court that the ribbon and letter represented a single typing presented a challenge. The whole September letter used up between eight and nine feet of typewriter ribbon. While some parts of it had been damaged and torn into short sections the portion which contained the September letter was a continuous unit. It would not be easy to take a ribbon of this length rolled on a spool and to unroll it while testifying in order to point out both the identity of wording, spelling, and capitalization and the common typing errors. Nor did this length of unbroken ribbon lend itself to easy photographing with a camera. A special photographic technique had to be devised. It was accomplished in the following manner. A FIGURE3. Comparison of typing errors and corrections as they sheet of film was cut into strips approximately appear in the letter (Figure 2) and on the typewriter ribbon (Figure1). Note that the spacingof the letters on 43 inch wide. By utilizing a contact printer the ribbonitself is irregularand that certain letter im- equipped with a rheostat to control the light pressionsactually overlap. This was undoubtedlydue intensity, the ribbon was printed by contact on to the fact that the ribbonwas not feedinginto the discard chamberproperly.Whereportionsof the second film in 10 inch units. After each exposure the letter overlap the first as appears in the word "mar- ribbon was moved forward about 93j inches to riage" on the tape, the typing of the "a" in the Sepgive a slight overlap of words. Thus with eleven tember 3rd document shows a weaken stroke. Note strips the entire letter was reproduced.In this way particularlyits lowerleft edge. the typewriter ribbon itself formed the negative to sary to accommodate the width of the letter. At expose the film. The intensity of light was adjusted other points the letters are crowded and overlap for an exposure of approximately one second with slightly no doubt due to the fact that there was Eastman Contrast Panchromatic Process Film. The strips of film were processed in the usual not the proper tension and roll up of the ribbon in the discard chamber. Figure 3 shows for example manner, dried, and reassembled into a sheet with the overlapping of the "m" and "a" in the ribbon transparent Scotch tape, and the entire contents and the imperfect impression of the "a" in the of the ribbon printed compactly on paper (figure letter. Furthermore, on the ribbon the letters are 1). With this print and a correspondingprint of

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ORDWAYHILTON

the letter in evidence it was possible to designate the various points at which typing errors and corrections were made, and thus to make a convincing presentation of the similarities between the ribbon and the letter in evidence. This testimony, of course, required careful explanation on how the ribbon moved through the machine and why there were points at which there was no spacing between words and irregular alignment of letters along the base line of the ribbon even though they were properly aligned in the finished letter. But the photographs allowed the court to follow the testimony and to see the significant similarities. INVESTIGATION OF THE TYPEWRITER'SHISTORY

In this case there was excellent field investigation completely coordinated with the laboratory work. Thus the evidence derived from this examination was fully utilized. For one thing, the typewriter was subpeoned so that it would be available in court at the time of trial. Thus before testifying the examiner was able to inspect the machine and the type face conditions and when necessary to point out the key mechanical parts of the typewriter itself. Subpoena of the typewriter proved to be even more helpful. The serial number according to IBM records established that the typewriter had been built in France in 1958, i.e., after the date of the letters. A few days before trial as one of the attorneys was checking over the machine he noticed a small sticker with the name of a local typewriter agency. When the agency was contacted, the owner im-

[Vol.63

mediately identified the machine from the serial number as one which he had rented. It was a startling discovery since the machine had been sold to its present owner by the widow. The agency owner, upon checking his records further, reported back that it had been first leased to the widow in January 1966 but subsequently purchased. (The date of purchase actually was a week or so after she had sold it.) The original date of rental was about two weeks before the September letter had been offered in evidence in the Surrogate's court. Thus it was possible to establish clearly that the letter was fraudulent, and further that it had been prepared very shortly before it was offered in evidence. Technical examination also showed that the signature was fraudulent if this added proof was necessary. CONCLUSIONS

This technique employed for examining the used typewriter ribbon and relating the impressions to a specific document enabled the examiner to show conclusively that the document had been typewritten on the machine at hand with the ribbon before him. The conclusions were demonstrated photographically. Further, with coordinated field investigation it was possible to establish when the document had been prepared. This combination of evidence brought about the rejection of the disputed document and with other evidence in the case lead to a decision against the entire fraudulent claim.' Estate of Saffian,N. Y. L. J., Jan. 9, 1967.

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Vol. 63, No. 1

Copyright O 1972by Northwestern University School of Law

Printed in U.S.A.

POLICE SCIENCE TECHNICAL ABSTRACTS AND NOTES Edited by Gary D. McAlvey1 Abstractors William E. Kirwan2 Theodore R. Elzerman8

Michael J. Kreiser' Edgars Rudzitis'

James F. Cerven1 Gloria H. Kraatz6

Editors Note: This marks the last issue in which the name of William E. Kirwan will appear as an abstractor in this section. Since March of 1955 Mr. Kirwan has been a faithful contributor to the Technical Abstracts Section. Mr. Kirwan's work has been most appreciated and will be missed.

sides of the argument over the use of the polygraph. The concluding segment covers legislation affecting the use of the polygraph including licensing legislation in eleven states. The series is concluded with a model set of minimum standards for operator certification and regulation. (GDM)

Firearms Identification in the Soviet UnionStanton O. Berg, Fingerprint and Identification Magazine, 53(4): 3-8 (October 1971). A visit to the Soviet Union in 1969 presented the author with an opportunity to meet and discuss criminalistics with Soviet leaders in this field. (GDM)

Ubiquitous Reds: A Local Perspective on Secobarbital Abuse-Bryan S. Finkle, The Forensic Science Gazette,2(2): 1-4 (April 1971). The social background and results of a study and evaluation of secobarbital abuse in Santa Clara County, California is presented and discussed. During the year of study almost half of 2295 toxicology cases involved secobarbital.They representjuveniles and young adults (12-25 years). The study also reports the results of analytical analysis showing great variations of the secobarbital content of capsules and also shows that the blood levels are significantly in excess of therapeutic levels which is a possible explanation for a rapid use in secobarbital fatalities among young people and the drug involvement in road traffic accidents. (TRE)

Forensic Applications of the Scanning Electron Microscope-I. Covin and 0. Jahari, Police, 16(3): 6-14 (November 1971). The proceedings of a Forensic SEM Workshop held in May, 1971 are highlighted. Also included is a comparison of SEM, TEM, and Light Microscopy. (GDM) The Status of Polygraph Legislation of the Fifty States-Clarence H. A. Romig, Police, 16(1, 2, 3): 35-41, 54-61, 55-61 (September, October, November 1971). The author begins this three part series by discussing the history of the polygraph, the physiological and psychological aspects involved, and the legal status of the polygraph in the United States. Part two continues with the various uses being discussed and concludes by presenting both 1Superintendent,Illinois Bureau of Identification, Illinois. Joliet, I Superintendent,New York State Police, Albany 1, New York. 3Assistant Superintendent,Illinois Bureau of Identification,Joliet, Illinois. Acting Assistant Superintendent,Illinois Bureau of Identification,Springfield,Illinois. 5 Crime Laboratory Analyst, Illinois Bureau of Identification,Joliet, Illinois.

The Problem of Cannabis (Marihuana or Hashish)-J. Cheymol, G. Heuyer and D. Douady, InternationalCriminal Police Review,242: 275-285 (November 1970). The authors discuss the background, properties, legalization, medical opinion of the propaganda advocating the free sale of hashish and protection for schools and universities as encountered in France. (TRE) Detection of Firearms Discharge Residue by Neutron Activation Analysis-A Review-Maynard J. Pro, International Criminal Police Review, 242: 270-247 (November 1970). Summary of the "State of the Art" on detection of firearm dis-

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TECHNICALABSTRACTSAND NOTES

charge residues. N.A.A. technique has proven to be the most sensitive and reliable method. It is possible to detect gunshot residue deposited on hands or clothing, and identify holes produced by bullets. It is not possible to determine the caliber of gun or number of firings represented by the quantity of residue present, although studies are being conducted in this area. "Tagged" cartridges were also discussed, but additional production costs and need for strict quality control are limiting factors. (TRE)

[Vol.63

and the distance reference. Eleven photographs illustrate the article. (ER)

Dispersion Staining of Fibers-L. Forlini and W. C. McCrone, The Microscope, 19(3): 243-254 (July 1971). Given is one of the nine detailed studies published on the use of refractive index for fiber analysis. By use of a standard set of liquids with the red, yellow, and blue filters, dispersion curves for the common natural and man-made fibers were obtained. The data given indicates this method should provide greater differentiation than Marking of Dentures in Sweden-K. O. Fryk- many of the instrumental methods available. holm, P. G. Lofberg, & R. Soremark, International (JFC) Criminal Police Review, 242: 287-290 (November 1970). The article describes the marking of denAccurate Use of Hot Stages-Y. Julian and tures with the social security number of their W. C. McCrone, The Microscope, 19(3): 225-234 owners to facilitate the identification of the dead, (July 1971). This article in recognition of the imespecially disaster victims. (TRE) portance of hot stage microscopy stresses accuracy as well as precision. The newly developed, highly Alcohol Breath Tests: Gross Errors in Current precise Mettler hot stage is the main instrument Methods of Measuring Alveolar Gas Concentra- discussed. Noted are the factors generally assotions-N. Herbert Spector, Science, 172(39): 57-59 ciated with the decrease in accuracy of hot stage (April 2, 1971). The author discusses effects of measurements. Tables and photographs are given residual alcohol in the mouth on the Breathalyzer to support the discussion points. (JFC) test. The results are affected for more than 20 minutes after transitory contact of ethanol with Gas Liquid Chromatographicand Mass Specthe mucous membranes of the mouth or nasal pas- trometric Studies on Trimethylsilyl Derivatives of sages. (TRE) N-Methyl- and N,N-Dimethyltryptamines-N. Narasimhachari, J. Spaide, and B. Heller, Journal The Use of Scanning Electron Microscopy for of Chromatographic Sciences,9(8): 502-505 (August the Identification of Toolmarks-H. Hantsche and 1971). The identification of members of a class of W. Schwarz, Archivf. Kriminology 148(1, 2): 24- hallucinogens is aided by means of instrumental 32 (July, August 1971). The article contains 9 analyses of their derivatives. Derivatives of photographs of an actual case which illustrates the N,N-dimethyltryptamine (DMT), 5-methoxysuperiority of scanning electron microscopy over N,N-dimethyltryptamine (5-OMe-DMT), 5-hyoptical microscopy. The main advantage of the droxy-dimethyltryptamine (bufotenin), N-methylformer is a capability for a three dimensional tryptamine (NMT), N-methylserotonin (NMS), image and consequently a more powerful applica- and several primary amines were obtained using tion of statistics. (ER) pyridine and bis (trimethylsilyl) trifluoroacetamine plus 1% trimethylchlorosilane. These derivatives The Evaluation of Accident Photographs With- were analyzed by gas chromotography and mass out Time Consuming Measurements at the Scene spectrometry. It was found that the tertiary -A. Schontag, Arch f. Criminology, 148(1, 2): amines gave one derivative with the trimethyl 1-13 (July, August 1971). For accurate estimation substituent on the indolic nitrogen; the secondary of distances in photographs such as those of tire amines gave more than one derivative. Primary marks easily recognizable reference distance amines were identified by conversion to isothiomarkers have been proven useful. A one meter cyanates using carbon disulfide. (GHK) reference square, each side divided into 10 segWhat Do You Call It?-Arthur R. Paholke, The ments, is being used by the Bavarian State Police. The author analyzes in detail several automobile LocksmithLedger,32(9): 83-86 (September 1971). accidents on the basis of photographs of tire marks Asks for a standardization of lock terminology.

1972]

TECHNICALABSTRACTSAND NOTES

This standardization is necessary if any burglary prevention ordinances can be made to work. (MJK) Comments on the Determination of Nationality from Handwriting-Gordon R. Stangohr, Journal of Forensic Sciences 16(3): 343-358 (July 1971). "He talks with a foreign accent." Does he write with one? A foreign "flavor"in handwriting can be detected from the outer quality or appearance aspect of a writing. While a determination of one's country of origin from a writing, theoretically, is feasible on the basis of a reflection of national writing patterns, difficulty is encountered in attempting to effect a certain determination. Writings derived from the cursive alphabet forms of central European countries show the greatest distinctiveness and thus offer the best basis for a judgment, at least on a regional or more localized basis. The diffusion of writing caused by population shifts and migrations, polyglot styles used internally, historical ties, and the inevitable introduction of individual traits and characteristics complicate these efforts. The complexities involved are better understood when a study is made of alphabet development. (WEK) Serum Changes in Drowning-Ezatollah Foroughi, Journal of Forensic Sciences 16(3): 269282 (July 1971). In fresh water drowning: (1) The serum sodium concentration of blood from the left heart is usually lower than that of serum of blood from the right heart and femoral vein. (2) The serum chloride concentration of blood from the left heart is lower than that of serum of blood from the right heart and femoral vein. (3) Comparisonof the serum sodium and chloride concentrations of the left heart with femoral vein and cerebrospinalfluid is recommended. (4) The osmolarity of serum of blood from the left heart is lower than that of serum of blood from the right heart. (5) The total solids of serum of blood from the left heart is lower than that of serum of blood from the right heart. (6) The serum potassium concentrations of blood from the the left heart were not significantly different from those of the sera of blood from other locations. (7) The serum hemoglobin concentration of the drowned group was higher than that of the control group. (8) Non-drowned control cases show no significant differencesin sodium, chloride, osmolarity, total solid, or heloglobin between sera from the blood of the left heart, right heart, femoral vein, and the cerebrospinal fluid. (WEK)

145

Glass and Paint Fragments Found in Men's Outer Clothing-Report of Survey-E. F. Pearson, R. W. May, and M. D. G. Dabbs, Journal of Forensic Sciences 16(3): 283-300 (July 1971). One hundred suits of clothes received for cleaning at a dry cleaning establishment were examined for traces of glass and paint. A total of 551 glass fragments, much of which came from two suits, were found and the refractive index, size and color of the glass fragments were recorded. A large number of paint fragments were collected and when fragments of identical color and layer structure and from the same site on a suit were grouped together there were 1,077 samples of paint. The color and layer structure of each paint fragment were recorded and the size distribution of a random, representatively chosen group was determined. (WEK) Comparison of Bullet Lead Specimens by Nondestructive Neutron Activation Analysis-H. R. Lukens and V. P. Guinn, Journal of Forensic Sciences 16(3): 301-308 (July 1971). The present work has established a strong basis upon which to judge a lack of commonality between bullets or bullet fragments with different antimony levels. Also, the consistency of antimony concentration that has been found in single bullets and among bullets of common lot origin is an important factor in establishing commonality between bullets or bullet fragments. However, it is clear that additional background information is needed-with respect to the consistency of trace-elementlevels in bullet lead of common origin, and the differencesof levels that may exist between bullet leads of different origin-in order to improve the confidence in conclusions derived from bullets or bullet fragments that have similar antimony levels. Additional studies are in progress. (WEK) A Large-Scale Study of Paper by Neutron Activation Analysis-H. L. Schlesinger and D. M. Settle, Journal of Forensic Sciences 16(3): 309-330 (July 1971). If the data obtained in this study are applicable to the entire population of bond paper samples, it would be possible to identify the most probable source of a given paper sample, by TNAA, to a rather high degree of probability. If the problem is to compare two or more samples, to establish the probability of a common source, the data obtained in this study can be used in interpreting the analytical results. It is obvious that more work should be done in this area, in order to obtain bet-

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ter estimates of the main parameters measured. Information such as the source of fillers, and the mixtures used in various types of paper would be very valuable in selecting future samples for analysis, and in interpreting the results. Since, in many cases, some sample may be expendable, work has been undertaken to study radiochemical procedures which can be used to remove the usually large sodium-24 activity from irradiated sample of paper. If this is done, many other elements should become available for examination. (WEK) Obliterations, Alterations, and Related Document Problems-Lyndal L. Shaneyfelt, Journal of ForensicSciences 16(3): 331-342 (July 1971). There are no ready answers to many of the document examiner's problems with obliterations, alterations, and related questions. Experience is an essential part of these examinations but must be coupled with a persistent application of a variety of techniques, including infrared absorption and luminescence and ultraviolet fluorescence, if the true facts are to be established from the fragmentary evidence remaining on such disputed documents. (WEK) An Approachto Automated Drug IdentificationDonna L. Shirley, Journal of Forensic Sicences 16(3): 359-375 (July 1971). An approach selected for initial hardware development and critical technology testing involved: (1) wet chemical sample preparation, (2) gas chromatographic separation, presumptive identification, and quantitation of drugs, (3) infrared spectrophotometric identification of drugs, and (4) computer control and data analysis. (WEK)

Pulmonary Obliterative Alveolitis Due to Posttraumatic Fat Emboli-L. D. Henry and J. F. Edland, Journal of Forensic Sciences 16(3): 376379 (July 1971). An unusual case of obliterative alveolitis secondary to massive pulmonary fat emboli in a fifteen-year-old girl who lived fifteen days after suffering multiple fractures is presented. (WEK) Differentiation of Microgram Quantities of Acrylic and Modacrylic Fibers Using Pyrolysis Gas-Liquid Chromatography-J. P. Bortniak, S. E. Brown, and E. H. Sild, Journal of Forensic Sciences 16(3): 380-392 (July 1971). Pyrolysis gasliquid chromatography has been employed for the differentiation and identification of acrylic and modacrylic fibers. Fifteen group differentiations have been made. (WEK) Distinction Between Antemortem and Postmortem Wounds: A Study of Elastic Fibers in Human Skin-Abdullah Fatteh, Journal of Forensic Sciences 16(3): 393-396 (July 1971). A study of antemortem and postmortem human skin wounds of various ages was made. The sections of the wounds stained by Hart's modification of Weigert's elastic tissue stain were studied to note possible differencesin the elastic fibers in the antemortem and postmortem wounds. However, this study revealed that there were no differencesin the nature and distribution of the elastic fibers in the dermis of antemortem and postmortem human skin wounds. Therefore, in medicolegal practice, the appearances of the elastic fibers in the dermis should not be relied upon in differentiating antemortem skin wounds from postmortem wounds. (WEK)

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright ? 1972by Northwestern University School of Law

POLICE SCIENCE

Vol. 63, No. 1 Printed in U.S.A.

BOOK REVIEWS

Edited by Melvin Gutterman* POLICEINFORMATION AUTOMATED SYSTEMS,By Paul M. Whisenand and Tug T. Tamaru. New York: John Wiley and Sons, Inc. 1970. Pp. xii, 338. Paul M. Whisenand and Tug T. Tamaru bring

extraordinarily rich backgrounds to Automated Police InformationSystems. The authors stated motive for producing this * Professor of Law, Emory University, Atlanta, Georgia30322.

146

[Vol.63

POLICE SCIENCE BOOKREVIEWS

ter estimates of the main parameters measured. Information such as the source of fillers, and the mixtures used in various types of paper would be very valuable in selecting future samples for analysis, and in interpreting the results. Since, in many cases, some sample may be expendable, work has been undertaken to study radiochemical procedures which can be used to remove the usually large sodium-24 activity from irradiated sample of paper. If this is done, many other elements should become available for examination. (WEK) Obliterations, Alterations, and Related Document Problems-Lyndal L. Shaneyfelt, Journal of ForensicSciences 16(3): 331-342 (July 1971). There are no ready answers to many of the document examiner's problems with obliterations, alterations, and related questions. Experience is an essential part of these examinations but must be coupled with a persistent application of a variety of techniques, including infrared absorption and luminescence and ultraviolet fluorescence, if the true facts are to be established from the fragmentary evidence remaining on such disputed documents. (WEK) An Approachto Automated Drug IdentificationDonna L. Shirley, Journal of Forensic Sicences 16(3): 359-375 (July 1971). An approach selected for initial hardware development and critical technology testing involved: (1) wet chemical sample preparation, (2) gas chromatographic separation, presumptive identification, and quantitation of drugs, (3) infrared spectrophotometric identification of drugs, and (4) computer control and data analysis. (WEK)

Pulmonary Obliterative Alveolitis Due to Posttraumatic Fat Emboli-L. D. Henry and J. F. Edland, Journal of Forensic Sciences 16(3): 376379 (July 1971). An unusual case of obliterative alveolitis secondary to massive pulmonary fat emboli in a fifteen-year-old girl who lived fifteen days after suffering multiple fractures is presented. (WEK) Differentiation of Microgram Quantities of Acrylic and Modacrylic Fibers Using Pyrolysis Gas-Liquid Chromatography-J. P. Bortniak, S. E. Brown, and E. H. Sild, Journal of Forensic Sciences 16(3): 380-392 (July 1971). Pyrolysis gasliquid chromatography has been employed for the differentiation and identification of acrylic and modacrylic fibers. Fifteen group differentiations have been made. (WEK) Distinction Between Antemortem and Postmortem Wounds: A Study of Elastic Fibers in Human Skin-Abdullah Fatteh, Journal of Forensic Sciences 16(3): 393-396 (July 1971). A study of antemortem and postmortem human skin wounds of various ages was made. The sections of the wounds stained by Hart's modification of Weigert's elastic tissue stain were studied to note possible differencesin the elastic fibers in the antemortem and postmortem wounds. However, this study revealed that there were no differencesin the nature and distribution of the elastic fibers in the dermis of antemortem and postmortem human skin wounds. Therefore, in medicolegal practice, the appearances of the elastic fibers in the dermis should not be relied upon in differentiating antemortem skin wounds from postmortem wounds. (WEK)

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGYAND POLICE SCIENCE

Copyright ? 1972by Northwestern University School of Law

POLICE SCIENCE

Vol. 63, No. 1 Printed in U.S.A.

BOOK REVIEWS

Edited by Melvin Gutterman* POLICEINFORMATION AUTOMATED SYSTEMS,By Paul M. Whisenand and Tug T. Tamaru. New York: John Wiley and Sons, Inc. 1970. Pp. xii, 338. Paul M. Whisenand and Tug T. Tamaru bring

extraordinarily rich backgrounds to Automated Police InformationSystems. The authors stated motive for producing this * Professor of Law, Emory University, Atlanta, Georgia30322.

19721

TECHNICALABSTRACTSAND NOTES

147

book is "to provide an introductory step toward During the last decade, hundreds of automated the establishment of a common meeting ground information systems and studies dealing with for police and computer technologist alike". In criminal justice operations have been concepan attempt to fulfill this perceived need, the book tualized, started, or implemented. For at least this was planned with two major objectives: (1) "To long, many contemporary law enforcement pracdevelop a conceptual design of an automated titioners have been perplexed, if not completely police information system that will support more confused about the growing preoccupation with effective police decision making and (2) to reduce computer-based information systems. Those more the existing communications gap between police knowledgeable have had to receive specialized personnel and computers." training under the auspices of the larger computer In the 338 pages, utilizing over 70 diagrams and manufacturing firms. The theme underlying such illustrations, the authors have admirably suc- studies principally designed for business and ceeded in accomplishing what they proposed to do. industry has been to adapt not adopt. The book They have taken advantage of part of a compre- should be a welcomed contribution to the field. hensive research effort conducted through a unique AutomatedPolice InformationSystems is devoted relationship of a major university, a private com- to the past and present technology of automation puter manufacturer, and representative agencies as it applies to the field of criminal justice in of federal and local government to generate and general and police information systems in particudisseminate much needed information to the lar. The design of the text is amazingly inductive as it progressively permits the reader to understand practical and academic sectors. The book is divided into three parts: (although a sub-system, than a (whole) system and enables Part III is not indicated in the Table of Con- him to reason from particulars to generalizations. It has academic merit relevant to more recent tents) "Part I, The Police System; Part II, Automated Police Information Systems; and Part III, theory of law enforcement study where police, Systems: Hangups, Payoffs, and Concluding prosecution, court and correctional agencies and Remarks". In addition, it has a detailed appendix, their activities are identified as sub-systems both a comprehensive bibliography, and well written interrelated and dependent upon each within the Criminal Justice System. Glossary of Terms following Chapters 1 and 2. This book should be a valuable addition to any Chapter 1, begins with a general introduction of both topic and text to the reader. The remainder police department library, as well as a basic text of Part I consists of three chapters that are of an for most police information systems courses at immediate concern to the design of all police institutions of higher learning. RONALD A. PINCOMB information systems or (a) computer-based systems, (b) systems approach, and (c) the police Professor and Head Department of Police Science system. Part II contains the analysis and design of an New Mexico State University automated police information system. It begins Las Cruces, New Mexico with Chapter 5 describing intergovernmental information interfaces and an existing police To WALK THE STREETS SAFELY: THE ROLE OF information system. Drawing primarily from MODERN SCIENCE AND TECHNOLOGYIN OUR previous chapters in Part I, Chapter 6 presents a CRhINAL JUSTICE SYSTEM. By James H. proposed automated information system for a Scheuer. Garden City, New York: Doubleday & municipal police department. Company, Inc., 1969. Pp. xxiv, 236. $5.95. Part III begins with Chapter 7 which provides To Walk the Streets Safely was written for the a general overview of the problems and concerns average citizen "to mobilize public support for the inherent in the design and implementation of an adoption of a relatively simple idea: that if we automatic data processing system in a medium- apply to our criminal justice system-and particusized police department. It concludes with a com- larly to the role of policemen in deterring and prehensive appendix pertaining to information apprehending criminals-many of the new, adflow analysis which could nearly be copied ver- vanced scientific and technical developments batim and implemented by a medium-sized police already widely in use in our military, space exploradepartment. tion, and industrial systems, we can substantially

19721

TECHNICALABSTRACTSAND NOTES

147

book is "to provide an introductory step toward During the last decade, hundreds of automated the establishment of a common meeting ground information systems and studies dealing with for police and computer technologist alike". In criminal justice operations have been concepan attempt to fulfill this perceived need, the book tualized, started, or implemented. For at least this was planned with two major objectives: (1) "To long, many contemporary law enforcement pracdevelop a conceptual design of an automated titioners have been perplexed, if not completely police information system that will support more confused about the growing preoccupation with effective police decision making and (2) to reduce computer-based information systems. Those more the existing communications gap between police knowledgeable have had to receive specialized personnel and computers." training under the auspices of the larger computer In the 338 pages, utilizing over 70 diagrams and manufacturing firms. The theme underlying such illustrations, the authors have admirably suc- studies principally designed for business and ceeded in accomplishing what they proposed to do. industry has been to adapt not adopt. The book They have taken advantage of part of a compre- should be a welcomed contribution to the field. hensive research effort conducted through a unique AutomatedPolice InformationSystems is devoted relationship of a major university, a private com- to the past and present technology of automation puter manufacturer, and representative agencies as it applies to the field of criminal justice in of federal and local government to generate and general and police information systems in particudisseminate much needed information to the lar. The design of the text is amazingly inductive as it progressively permits the reader to understand practical and academic sectors. The book is divided into three parts: (although a sub-system, than a (whole) system and enables Part III is not indicated in the Table of Con- him to reason from particulars to generalizations. It has academic merit relevant to more recent tents) "Part I, The Police System; Part II, Automated Police Information Systems; and Part III, theory of law enforcement study where police, Systems: Hangups, Payoffs, and Concluding prosecution, court and correctional agencies and Remarks". In addition, it has a detailed appendix, their activities are identified as sub-systems both a comprehensive bibliography, and well written interrelated and dependent upon each within the Criminal Justice System. Glossary of Terms following Chapters 1 and 2. This book should be a valuable addition to any Chapter 1, begins with a general introduction of both topic and text to the reader. The remainder police department library, as well as a basic text of Part I consists of three chapters that are of an for most police information systems courses at immediate concern to the design of all police institutions of higher learning. RONALD A. PINCOMB information systems or (a) computer-based systems, (b) systems approach, and (c) the police Professor and Head Department of Police Science system. Part II contains the analysis and design of an New Mexico State University automated police information system. It begins Las Cruces, New Mexico with Chapter 5 describing intergovernmental information interfaces and an existing police To WALK THE STREETS SAFELY: THE ROLE OF information system. Drawing primarily from MODERN SCIENCE AND TECHNOLOGYIN OUR previous chapters in Part I, Chapter 6 presents a CRhINAL JUSTICE SYSTEM. By James H. proposed automated information system for a Scheuer. Garden City, New York: Doubleday & municipal police department. Company, Inc., 1969. Pp. xxiv, 236. $5.95. Part III begins with Chapter 7 which provides To Walk the Streets Safely was written for the a general overview of the problems and concerns average citizen "to mobilize public support for the inherent in the design and implementation of an adoption of a relatively simple idea: that if we automatic data processing system in a medium- apply to our criminal justice system-and particusized police department. It concludes with a com- larly to the role of policemen in deterring and prehensive appendix pertaining to information apprehending criminals-many of the new, adflow analysis which could nearly be copied ver- vanced scientific and technical developments batim and implemented by a medium-sized police already widely in use in our military, space exploradepartment. tion, and industrial systems, we can substantially

148

POLICE SCIENCE BOOKREVIEWS

reduce the problems caused by predatory criminal behavior." Congressman Scheuer examines our criminal justice system-with emphasis on the role of the police-and suggests many ways in which moder science and technology can be applied to the system. The author first explores the need for adaptation of hardware currently available and utilized in the space field, business, and industry, to the improvement of police operations. He emphasizes the critical need for improved rapid communications networks. "... [U]ntil police know about a particular crime they can do nothing ... [T]he faster they know about it, the faster they can act and the better the chance of aiding the victim; thwarting or interrupting the crime, or at least catching the criminal." Once the communication gap has been bridged, transportation to the scene becomes critical. A variety of vehicles designed to meet the complex demands of the police task are essential. He portrays the conventional patrol car as "a jalopy in the Jet Age" and suggests that through research and experimentation, vehicles suited to varied purposes-from scooters to bullet proof riot cars to helicopters-can be made operational and function as valuable aids to law enforcement. Mr. Scheuer further states that the vehicles need to be properly equipped for the task. Such things as scriptwriters to record messages while the officer is away from the vehicle; voice recording devices to assure that procedures have been properly followed; and devices to transmit fingerprints from the field unit to the laboratory for rapid comparison with those of wanted persons are but a few of the improvements available. Non-lethal weapons, dye tracers, effective locks, and alarm systems are seen as vitally necessary hardware, but these must be supplemented by individual effort on the part of each citizen to protect his own property and to support community programs and governmental efforts designed to improve crime prevention and control. The author acknowledges the fact that moder techniques and equipment are only as good as the men using them. Therefore, "in order to select the best men for police work, and to prepare them with the insights and skills needed to use sophisticated techniques and equipment and to exercise complex insights and judgments, we must first develop a sound theoretical model of what a policeman's role should be, and what kind of men should fill

[Vol.63

it." We do not yet have this model. The tasks that a police officer must perform are varied and often require seemingly opposite characteristics. "It is not just the diversity of challenges but the contradictory and undefined nature of the policeman's role which is perplexing. ... [He] is expected to be tough, courageous, resourceful, strong, disciplined, self controlled, relaxed, easy-going, sympathetic, sensitive, good-humored,helpful, and wise." Every effort must be made to define the policeman's role; to select and train the type of men necessary to fill this role; and to provide them with the proper tools to do the job. Laws need to be re-examined and those which are either unnecessary or unenforceable should be repealed. The entire court system needs to be re-evaluated and streamlined. There is little value in improving detection and arrest procedures,if the arrestee cannot be processed through the court system. Computerized systems should be developed and utilized to the fullest degree possible. "The computer is at the very least a superbly efficient recordkeeping instrument; but information storage is only one of the many services it can provide. Among other things, it can also monitor all functions of the court system and, by compiling statistical profiles, flow charts and the like, can point up needs, weaknesses, overloads, and waste anywhere along the line. ... [I]t can verify crime trends and the relationship between legal processes and the rise or fall of crime rates." Additionally, Mr. Scheuer sees the need for the development of a new approach to corrections, a truly rehabilitative one rather than the largely punitive system we now have. And finally, the author declares that "New Spirit" is required. "Community action by groups of concerned citizens..., may be able to assist local government in a number of ways by providing community support and stimulating effective action." Citizens must take an active part in law enforcement by getting involved-at least to the point where crimes and/or suspicious circumstances are reported to police. Failure to do so sets the stage for criminal success. "Technology exists to help people help each other.... [W]e are our brother's keepers.... [A]t the very least, we must be willing to get involved. For if our spirit of personal involvement is stifled by our apathy, no amount of sophisticated hardware or computerized systems will make a difference. In the final analysis, it is the individual who can make the difference.... What you will do will

1972]

POLICE SCIENCE BOOKREVIEWS

depend on the nature and extent of your own commitment, imagination, and leadership. In the long run the answer will lie in your hands." The reviewer found the last chapter of Mr. Scheuer's book to be especially informative in regard to the research (or lack of it) being carried on by governmental agencies. He attempts to present the view that the National Institute for Law Enforcement and Criminal Justice, the research oriented arm of the Law Enforcement Assistance Administration, is one answer to the pitiful paucity of meaningful research in the criminal justice field. He argues strongly that it is at least a partial answer. Congressman James Scheuer's examination of crime in America, including some of its causes, plus a partial solution to assist in crime control is thoughtful, stimulating and obviously carefully prepared and researched. It is as relevant to today's social change in America as Upton Sinclair's The Jungle was to his age of badly needed reform.

149

the Black revolt of 1965, the story line is only skin deep, and contains no serious look into police philosophy, organization, supervision, or leadership. It does, however, deal with the processes of socialization that makes (take your choice) calculating, cruel mercenaries in blue, or righteous and saintly guardians of all that is holy. Officers are shown as human beings seeking security, identity, companionship, and approval. They are depicted with a variety of strengths and weaknesses: dedicated, frustrated, fearless, weak, sensitive, ignorant, warm, bigoted, calm, arrogant, humble, confused, brutal, and capable. Sgt. Wambaugh punctures the Myth of God-like Perfection self-bestowed upon L.A.P.D. and the book is a litany, not only about humane, compassionate, broadly educated and truly professional officers, but also about those who bend the law to maintain the status quo, insult ghetto people, warp arrests to meet undesired legal standards, lie on reports, perjure themselves on the witness stand, roust non-conformists, beat unarmed GEORGET. FELKENES suspects, fall apart under stress, and who, as super freeloaders, continuously mooch and chisel whatDirector, Criminal Justice Program ever "goodies" are available. The SergeantUniv. of Alabama in Birmingham Author is proud of the noble professionals, but he Birmingham, Ala. is continuously excusing police wrongdoing by reiterating that police are only human. (Such THE NEW CENTURIONS.By Joseph Wambaugh. defensiveness, though, is a difficult thing to fault and Brown ComYork: New Atlantic-Little, so many of us have the same habit.) when 376. 1970. $6.95. Pp. pany, All in all, easy reading, and a step in the right The Book of the Month Club selection, January, increased vocational candor and some direction: 1971, was a "cop book" entitled The New Cenabout what really goes on within admission public and written by Sergeant Joe Wambaugh, turions, L.A.P.D. It is a passable first novel, of "war story" our police agencies. The book may serve as a good reference to discussions about police genre, done in "creative writing class" style, background and habits and is so recommended. attitudes describing many experiences common to all A. C. GERMANN of the Los Angeles police. The specific portrait Policemen is painted with enough pimples, Professor of Criminology State College wrinkles, and warts to make "off the pig" people California California Beach, Long smirk, and with enough heroic grandeur and nod order" crowd and nobility to make the "law smugly. (Wambaugh's attention to the pimples, A THIEF'S PRIMER.By Bruce Jackson. New York: The Macmillan Company, 1969. Pp. 243. $5.95. wrinkles, and warts resulted in a request by Chief The title of this little book may be considered Davis to the publisher for deletions and changes, be deceptive. It does not deal with one thief; to to and a departmental reprimand Sgt. Wambaugh for his failure to obtain a prior agency Nihil by the author's admission, his hero is somewhat fictional, being a composite of more than one with Obstat.) There is enough blood and guts, horror stories, whom he had contact during his days in the corand spice to guarantee ample book sales, and the rections field. It is not about thieves, at least not purchase of movie rights attests to the book's if we treat thieves as those guilty of theft. The commercial value. Although Wambaugh follows author tells us at the outset that, to him, the thief the off and on-duty lives and loves of three is one who acquires the property of another by L.A.P.D. officers from police academy in 1960 to unlawful means. Thus, our hero-thief may be a

1972]

POLICE SCIENCE BOOKREVIEWS

depend on the nature and extent of your own commitment, imagination, and leadership. In the long run the answer will lie in your hands." The reviewer found the last chapter of Mr. Scheuer's book to be especially informative in regard to the research (or lack of it) being carried on by governmental agencies. He attempts to present the view that the National Institute for Law Enforcement and Criminal Justice, the research oriented arm of the Law Enforcement Assistance Administration, is one answer to the pitiful paucity of meaningful research in the criminal justice field. He argues strongly that it is at least a partial answer. Congressman James Scheuer's examination of crime in America, including some of its causes, plus a partial solution to assist in crime control is thoughtful, stimulating and obviously carefully prepared and researched. It is as relevant to today's social change in America as Upton Sinclair's The Jungle was to his age of badly needed reform.

149

the Black revolt of 1965, the story line is only skin deep, and contains no serious look into police philosophy, organization, supervision, or leadership. It does, however, deal with the processes of socialization that makes (take your choice) calculating, cruel mercenaries in blue, or righteous and saintly guardians of all that is holy. Officers are shown as human beings seeking security, identity, companionship, and approval. They are depicted with a variety of strengths and weaknesses: dedicated, frustrated, fearless, weak, sensitive, ignorant, warm, bigoted, calm, arrogant, humble, confused, brutal, and capable. Sgt. Wambaugh punctures the Myth of God-like Perfection self-bestowed upon L.A.P.D. and the book is a litany, not only about humane, compassionate, broadly educated and truly professional officers, but also about those who bend the law to maintain the status quo, insult ghetto people, warp arrests to meet undesired legal standards, lie on reports, perjure themselves on the witness stand, roust non-conformists, beat unarmed GEORGET. FELKENES suspects, fall apart under stress, and who, as super freeloaders, continuously mooch and chisel whatDirector, Criminal Justice Program ever "goodies" are available. The SergeantUniv. of Alabama in Birmingham Author is proud of the noble professionals, but he Birmingham, Ala. is continuously excusing police wrongdoing by reiterating that police are only human. (Such THE NEW CENTURIONS.By Joseph Wambaugh. defensiveness, though, is a difficult thing to fault and Brown ComYork: New Atlantic-Little, so many of us have the same habit.) when 376. 1970. $6.95. Pp. pany, All in all, easy reading, and a step in the right The Book of the Month Club selection, January, increased vocational candor and some direction: 1971, was a "cop book" entitled The New Cenabout what really goes on within admission public and written by Sergeant Joe Wambaugh, turions, L.A.P.D. It is a passable first novel, of "war story" our police agencies. The book may serve as a good reference to discussions about police genre, done in "creative writing class" style, background and habits and is so recommended. attitudes describing many experiences common to all A. C. GERMANN of the Los Angeles police. The specific portrait Policemen is painted with enough pimples, Professor of Criminology State College wrinkles, and warts to make "off the pig" people California California Beach, Long smirk, and with enough heroic grandeur and nod order" crowd and nobility to make the "law smugly. (Wambaugh's attention to the pimples, A THIEF'S PRIMER.By Bruce Jackson. New York: The Macmillan Company, 1969. Pp. 243. $5.95. wrinkles, and warts resulted in a request by Chief The title of this little book may be considered Davis to the publisher for deletions and changes, be deceptive. It does not deal with one thief; to to and a departmental reprimand Sgt. Wambaugh for his failure to obtain a prior agency Nihil by the author's admission, his hero is somewhat fictional, being a composite of more than one with Obstat.) There is enough blood and guts, horror stories, whom he had contact during his days in the corand spice to guarantee ample book sales, and the rections field. It is not about thieves, at least not purchase of movie rights attests to the book's if we treat thieves as those guilty of theft. The commercial value. Although Wambaugh follows author tells us at the outset that, to him, the thief the off and on-duty lives and loves of three is one who acquires the property of another by L.A.P.D. officers from police academy in 1960 to unlawful means. Thus, our hero-thief may be a

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burglar bent on larceny, an embezzler, a forger, a robber, or just a plain old thief. A primer for thieves this is not. To be sure, there is much that is instructive, but the author is dealing with a sophisticated group of lawbreakers, those who commit various crimes almost for the sheer thrill of it, or the risk; these are criminals whose life style demands that their crimes be committed with a measure of style and grace. They are the ones, our author reminds us more than once, who make up the aristocracy of criminal society, the top drawer of the underworld. The author writes exceedingly well and has put together a grand yarn. The book is entertaining, informative, and frightening in a way. I do not believe, however, that author Jackson is remotely interested in entertaining us, or instructing us, or, perhaps, even in frightening us. He has a message and is seeking to convey a sense of disgust and distaste for much of what passes as the American system of criminal justice. He is not altogether happy with the process by which one is brought to the bar of justice; he doesn't seem to think very highly of many of those who carry the label of "counsellor" or "attorney at law"; he is concerned about the want of humanity in much of what passes as a "corrections" system; and, he is somewhat dismayed at the sheer disinterest and stupidity of vast numbers of us respecting the conditions which lead to criminal behavior and what we do to and with those who are given a mark of Cain for their misdeeds. He has devoted quite a bit of this volume to reporting of what transpires in prisons and other penal institutions. One would have to concede that these institutions may fairly be charged with making criminalsbut not the one he's writing about. There is a lame effort to blame society for this hero, but the indictment is wanting. Mr. Jackson is writing about one who needed no urging from any of us. He coldly and calculatedly determined to let the squares support him in a life style that was almost his without having to ask or work for it. No social injustice, no police brutality, no judicial insensitivity made him a criminal. Life appeared to be dull and disinteresting if one stayed within the sidelines and the end zone markers, to employ the fad of footballese; indulgence in his own definition of freedom and individuality, his own contempt for the squares and their way of life, and his own lust for the thrill of outwitting that other world were things which led him into his life outside the law. This is one point in this book when one must sense that the author is jealous of his

[Vol.63

hero, that he too would like to trade the respectability of his education and professional station for the thrill on the other side of the fence. One cannot help but feel the envy which the author tries to conceal as his book ends in a sort of "wild geese flying" type of setting. Sam-his hero-just is not that close to Robin Hood for me! Any book that deals with a prison, and I am not sure that this one should have, is bound to include some data on intramural sex. Sam was not a part of this, we are told, and I really do not see the relevance of it to this book, but Mr. Jackson seems to regard it as important. He makes a much better case for Sam's preoccupation with heterosexual relations, although introducing pimping and prostitution seems quite tangential to thievery. There are some references to police improprieties-an understatement, to Sam and his Boswell-but they seem strangely out of place coming from one like Sam. Sam is a parasite, completely dependent upon his host, the stupid, credulous, gullible, believing, unsuspecting public. Other than the fact that Sam has not yet resigned from the human race, there is little that should give him standing to complain about the way the public and its agents and agencies treat him. He has no claim on anyone's compassion. He knows precisely what he is doing, and he is doing what he is doing because he wants to do it. There's no occasion for explanation or rationalization. This man will take society for all he can, and then when he feels pinched he will complain that the cops are rough on him or that his attorney is a fraud or that prison is immoral or that his guards are corrupt. One must grant that there are evils and that many of them touch Sam, but somebody else 'has to complain. Sam is nigh on to estopped to contend that society is in error. At the very least he is in pari delicto! If we take our childish dictum that two wrongs will not make a right, then we must recognize that there is a wrong that must be righted. This will make Sam a bit happier. But there is another wrong that needs righting to make society a little more comfortable too. The police and the courts and the prisons are surrogates for all of us who make up the public. They do for us that which we don't do ourselves. That is as it should be in a civilized society. But there is the rub. Sam is not a part of our society. We cannot reform or rehabilitate him; he knows it and we know it. We would be better off if we dropped him in a deep hole and covered him up. But the fact that we are

1972]

POLICE SCIENCE BOOKREVIEWS

civilized prevents us from doing such a patently self-serving thing. We applaud our compassion and sensitivity, turn the other cheek, and endure. It will be an awful world if we do not, and this is what Mr. Jackson really does for us. He gives us a clear picture of a burden we must bear, but we should not have to take criticism that is justified from one such as his hero. Most of society is trying harder than Sam to make this a livable world. The Pennsylvania legislature recently decreed that one convicted of crime must pay his victim. Sam might find this offensive but maybe this will work to require a new chapter for A Thief's Primer. If Sam's life style cannot produce the goods to support that life style, then maybe his sociopathic personality can produce a more sociable behavior. ROBERT S. STUBBS II

Professor of Law Emory University School of Law Atlanta, Georgia A SIMPLIIED TEXT BOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY. By C. K. Parikh,

Bombay: Medical Publications, 1970. Pp. xxviii, 871. $14.00. This text book consists of eight hundred and seventy-one pages. It covers jurisprudence and toxicology with numerous illustrations and an appendix. Part one on medical jurisprudence specifically deals with medico-legal problems and their implications which are pertinent to the Indian sub-continent. It begins with a comprehensive chapter on identification, including a thorough description of post-mortem examination, and describing the problems of decomposition and multilation of the bodies which are often investigated in forensic work. The estimation of time of death, particularly in a hot and humid country like India, is a very important factor. There is a lack of experimental data regarding the estimation of time of death, although ten important points were referred by Dr. Parikh to ascertain this. The cases of hanging, drowning, and starvation are well illustrated. Deaths due to injuries, particularly those by axe, sickle, or stick, are very interesting medico-legal presentations. Then follows the section which presents the professional as well as legal aspects of divorce, sexual offense, criminal abortion and infanticide. Criminal abortion and infanticide which are offenses in India come under the sections of the Indian Penal Code.

151

One separate section is extensively devoted to forensic psychiatry which includes essential information on insanity relevant to the Lunacy Act. Here also, the Indian Evidence Act, Criminal Procedure Code, and the Indian Penal Code are given in detail. The various aspects of ethics, professional misconduct, negligence and insurance which affect the medical practioners are discussed. At one point, regardingthe registeredmedical man, the author mentions, "He is entitled to perform medicolegal autopsies." The question arises whether any medical doctor can do medico-legal autopsies, although no mention was made about the certified forensic pathologists who are qualified to carry out the forensic work. Part two contains a large chapter on toxicelogy. It is quite a survey of India's indigenous poisonous plants and animal poisons (snakes and scorpions). Although insecticides are briefly mentioned, too little emphasis is placed on the poisonings encountered by the moder synthetic drugs which are commonly used in India. The last part of the book is devoted to an appendix which contains average height and weight, data of body organs, and bone structures as found among the inhabitants of India. It also includes a table describing the signs and symptoms of various poisons along with the average fatal dose and duration of the toxic manifestation. Treatment of these poisonings is also suggested. The book suffers from two drawbacks. First, the quality of the illustrations is very poor. Unfortunately, the photographic illustrations, especially the drawings, are often mediocre in quality. Secondly the reader may be disturbed because of the lack of a bibliography. This is a deviation from the modern trends of writing a book. This book, which is well written and well organized, is of particular value for medico-legal experts and practicing physicians but pathologists, especially those in training, will also gather knowledgable information. It is recommended as a valuable addition to any medical library. SUNIL K. NIYOGI

Assistant Professor Department of Pharmacology Jefferson Medical College Thomas Jefferson University CRIME-AN

ANALYTICAL APPRAISAL. By Manuel

Lopez-Rey.New York: Praeger Publishers, 1970. Pp. 239. $9.00. The failures of contemporary criminologists are attributed here to a lack of awareness of the full

1972]

POLICE SCIENCE BOOKREVIEWS

civilized prevents us from doing such a patently self-serving thing. We applaud our compassion and sensitivity, turn the other cheek, and endure. It will be an awful world if we do not, and this is what Mr. Jackson really does for us. He gives us a clear picture of a burden we must bear, but we should not have to take criticism that is justified from one such as his hero. Most of society is trying harder than Sam to make this a livable world. The Pennsylvania legislature recently decreed that one convicted of crime must pay his victim. Sam might find this offensive but maybe this will work to require a new chapter for A Thief's Primer. If Sam's life style cannot produce the goods to support that life style, then maybe his sociopathic personality can produce a more sociable behavior. ROBERT S. STUBBS II

Professor of Law Emory University School of Law Atlanta, Georgia A SIMPLIIED TEXT BOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY. By C. K. Parikh,

Bombay: Medical Publications, 1970. Pp. xxviii, 871. $14.00. This text book consists of eight hundred and seventy-one pages. It covers jurisprudence and toxicology with numerous illustrations and an appendix. Part one on medical jurisprudence specifically deals with medico-legal problems and their implications which are pertinent to the Indian sub-continent. It begins with a comprehensive chapter on identification, including a thorough description of post-mortem examination, and describing the problems of decomposition and multilation of the bodies which are often investigated in forensic work. The estimation of time of death, particularly in a hot and humid country like India, is a very important factor. There is a lack of experimental data regarding the estimation of time of death, although ten important points were referred by Dr. Parikh to ascertain this. The cases of hanging, drowning, and starvation are well illustrated. Deaths due to injuries, particularly those by axe, sickle, or stick, are very interesting medico-legal presentations. Then follows the section which presents the professional as well as legal aspects of divorce, sexual offense, criminal abortion and infanticide. Criminal abortion and infanticide which are offenses in India come under the sections of the Indian Penal Code.

151

One separate section is extensively devoted to forensic psychiatry which includes essential information on insanity relevant to the Lunacy Act. Here also, the Indian Evidence Act, Criminal Procedure Code, and the Indian Penal Code are given in detail. The various aspects of ethics, professional misconduct, negligence and insurance which affect the medical practioners are discussed. At one point, regardingthe registeredmedical man, the author mentions, "He is entitled to perform medicolegal autopsies." The question arises whether any medical doctor can do medico-legal autopsies, although no mention was made about the certified forensic pathologists who are qualified to carry out the forensic work. Part two contains a large chapter on toxicelogy. It is quite a survey of India's indigenous poisonous plants and animal poisons (snakes and scorpions). Although insecticides are briefly mentioned, too little emphasis is placed on the poisonings encountered by the moder synthetic drugs which are commonly used in India. The last part of the book is devoted to an appendix which contains average height and weight, data of body organs, and bone structures as found among the inhabitants of India. It also includes a table describing the signs and symptoms of various poisons along with the average fatal dose and duration of the toxic manifestation. Treatment of these poisonings is also suggested. The book suffers from two drawbacks. First, the quality of the illustrations is very poor. Unfortunately, the photographic illustrations, especially the drawings, are often mediocre in quality. Secondly the reader may be disturbed because of the lack of a bibliography. This is a deviation from the modern trends of writing a book. This book, which is well written and well organized, is of particular value for medico-legal experts and practicing physicians but pathologists, especially those in training, will also gather knowledgable information. It is recommended as a valuable addition to any medical library. SUNIL K. NIYOGI

Assistant Professor Department of Pharmacology Jefferson Medical College Thomas Jefferson University CRIME-AN

ANALYTICAL APPRAISAL. By Manuel

Lopez-Rey.New York: Praeger Publishers, 1970. Pp. 239. $9.00. The failures of contemporary criminologists are attributed here to a lack of awareness of the full

152

[Vol.63

POLICESCIENCE BOOKREVIEWS

dimensions of crime. While criminologists content themselves with the measurement of conventional crime, author Manuel Lopez-Rey sees socio-political forces as having created new boundary lines. He views today's crime sources as deriving from the increasing number of dissatisfied youth, the expanding gap between the privileged and the underprivileged, the community tolerance of political corruption, and the governmental sanctioning of political crimes. Theorizing that modern criminologists have been functioning on inadequate premises, the author seriously questions many of their established findings. One need not accept the astringent evaluation he makes of his colleagues in order to appreciate the intensity of the propositions he offers. Some collateral satisfaction can also be derived from this work by police, prosecutors, and corrections personnel who, for years, have suffered silently the arrogance of pseudo-scientific studies emanating from university criminological research centers. The author mocks the efforts of criminology to style itself a natural science. He views as an absurdity the impressive array of techniques and instruments with which criminologists attempt to justify a particular theory through some illusory measurement. The energy he believes could better be devoted to determining within reasonablelimits the "amount" of crime that a given society can stand without being seriously disturbed. He asserts that a reshufflingof enforcement personnel according to some managerial criteria is meaningless without recognizing the socio-political implications of crime. The author is particularly pointed in his rejection of the medico-psychological theories that equate juvenile delinquency causes with the lack of certain physiological need-fulfillments. He sees the isolation of the juvenile from the criminal justice system as inflating a problem that could better be handled by the adult courts. Our welfare approach to juveniles committing criminal offenses suggests, he says, an unawarenessof youth's ability to assume responsibility and sentimentalizes the

role of youth. The problem is an inflated one, he concludes, and the researchefforts of criminologists tend only to add to the vague concepts of delinquency they have already fostered. The author ascribes the expansion of crime to a cycle beginning with the complexities of modem national development. This progress in turn demands greater penal protection, thereby increasing the number of criminal sanctions, thence enabling increased corruption, resulting in individual and collective insecurity and finally producing violent protest against the socio-economic system which has spawned the cycle. In this kind of design Lopez-Rey finds our penal system inept except as a holding device. Its failure is inevitable, he claims, so long as criminologistslimit themselves to studying criminal deviance and behavioral problems. He sums up current criminological theories as an ensemble of conjectures that continue to rehash unwarrantedformulations. His presumption that researchershave failed to consider socio-political implications is open to some question inasmuch as this is generally implicit in any serious review of the crime problem. The author's long service with the United Nations social defense agencies and as well with university research in many major nations of the world have provided him with a perspective that perhaps entitles him to lofty generalizations. His call for emphasis on the crime rather than the criminal and his concern with social justice rather than speedy justice only point out priorities not alternatives. Notwithstanding the deft style of the author, his obvious credentials and the inherent truths that lie in many of his characterizationsone must conclude that he is merely highlighting an hypothesis that is deserving of more attention. He has not discovered an unused pathway, invisible these many years to his colleagues. SEYMOURGELBER

Administrative Assistant State Attorney Dade County Miami, Florida