IN 1943 the United States Supreme Court, in McNabb v. United States, rendered a decision which, in effect, held that voluntary confessions of a crime made while the accused was in custody prior to arraignment before a magistrate were inadmissible. It was' held that the officers failed to arraign the defendant immediately before a magistrate in conformity with the statute that required prompt arraignment.
A few months later the convictions of six individuals found guilty of treason in a Chicago Federal Court were reversed on the basis of the McNabb decision. In this opinion the United States Circuit Court of Appeals for the Seventh Circuit said: "With all due deference to the Supreme Court and especially to Mr. Justice Felix Frankfurter, the author of those opinions, we are constrained to state that we entertain grave doubts that this recently promulgated rule of evidence will result in any improvement to the administration of justice.
“As pointed out by Mr. Justice Reed in his dissent to the McNabb opinion ‘a frank and free confession of crime by the culprit affords testimony of the highest credibility and of a character which may be verified easily.' In our judgment this new rule will inure to the benefit of the guilty rather than the innocent, and will seriously impair the work of law enforcement officers. The Supreme Court, however, has clearly spoken and we must accept its pronouncement."
Following the McNabb decision, efforts were made to incorporate the substance of that decision into proposed rules of criminal procedure Federal judges, United States district attorneys, and other Federal law enforcement officials protested, and at the American Bar Association convention in 1943 the proposed rule was rejected. A bill is now pending in Congress to remove the effect of the McNabb decision.
In Illinois, however, at the 1943 session of the General Assembly, a bill was introduced and passed that would have excluded from evidence any purported voluntary confession unless the defendant admitted to a judge, justice of the peace, or magistrate, within twenty-four hours from the time the statement or admission was made, that it was given voluntarily. This is another indication of the modern trend to go to extreme lengths to create artificial and unrealistic barriers to prevent a proper diagnosis. Governor Dwight Green of Illinois vetoed the bill after it had passed both houses. Had he not done so, a preposterous situation would have prevailed as the law of Illinois. A person guilty of a crime could have made a complete confession without any interrogation whatever. Yet if, a few hours or even minutes later, upon arraignment, he refused to admit his confession was voluntary. It could never be used in court against him.
There is no more logic in making the admission of a confession depend solely upon the self-serving statement of a defendant than there would be in a requirement to admit any confession in evidence solely on the representation of its voluntary nature by a prosecutor or law enforcement officer. Any attempt to enact the latter provision into law would be denounced as an undemocratic process and tyrannical. The objections would be fully justified.
Our legislators and courts must remember that overemphasis of the' rights of criminals, with the resultant disregard for the safety of society as a whole, can with equal justification be criticized as undemocratic and tyrannical. It is claimed that the tendency of courts and legislators to exclude competent and relevant evidence on technical grounds is the inevitable result of lawlessness on the part of the police. Such reasoning is without justification. Two wrongs do not make a right. Whenever the police engage in lawless activity, appropriate action can and should be taken against them. But to turn enemies of society loose to prey on the innocent as a means of punishing the police is a perverted notion of justice.
It might be possible to understand the attitude which has given birth to this grotesque system of criminal jurisprudence if those who have professed so much concern over the alleged rights of antisocial persons and over wrongdoing by the police evidenced equal anxiety over the abuses engaged in by the professional defenders of the law violator. There is a significant silence against commonplace practices designed to defeat justice that are engaged in on behalf of the criminal day after day in our courts.
Apparently any device or subterfuge used to free a person accused of a crime is considered part and parcel of the criminal's natural rights. Witnesses against the accused are intimidated or mysteriously disappear. Dilatory tactics are pursued until the witnesses are worn out, disgusted, and made hostile. These practices are customary. A prominent sociologist, Dr. William E. Cole, recently wrote: "So common are delays in our courts that it is almost a folk expression among criminal lawyers to remark that 'one good delay in hand is worth two perjured witnesses in prospect." Defense counsel frequently look upon concocted alibis and phony alibi witnesses as part of their stock in trade. Extraneous issues intended to confuse the jury are not uncommon.
Witnesses for the state who give testimony damaging to the accused are sometimes subjected to tactics on the part of defense counsel that the same lawyer would denounce as "third degree" if employed in the pretrial interrogation of the defendant. If the identical methods were permitted on the part of the prosecutor in the cross-examination of the man on trial, they would be considered prejudicial and constitute reversible error. Recently a police officer found it necessary to interrupt the ruthless and unfair cross-examination to which he was being subjected by the defense counsel with this plea to the court: "Your Honor, if I am being placed on trial I would like to employ a lawyer to defend me."
Opening statements for the defense are frequently made that are intended to prejudice the jury against the state without making any subsequent effort whatever to prove them. Emotional appeals having no bearing on the guilt or innocence of the defendant are among the many tricks employed to turn dangerous criminals loose on the streets. If any of the numerous devices succeeds in defeating justice, the state is through. It has no right of appeal. With the defendant, conditions are entirely different. The conviction is just the first phase of the proceeding.
There must be a distinction between the rights of an accused person and license. The rights of a defendant include a fair trial with a presumption of innocence until guilt is established beyond a reasonable doubt. An accused person does not have a right to manufactured alibis, nor does he have a right to have the people's witnesses intimidated or bribed. He has a right to a fair and impartial jury. He does not have a right to a jury fixed in his behalf. The defendant has a right to prevent the prosecutor or witnesses from making statements that are prejudicial against him. He does not have a right to have prejudicial statements made in his behalf. The defendant has the right to have the truth brought out at a trial. He has the right to the admission in evidence of all competent testimony which tends to establish his innocence. He does not have a right to the exclusion of relevant and competent evidence that establishes his guilt. And he does not have a right to have all witnesses who testify against him harassed, humiliated, and confused.
The Constitution prohibits unreasonable searches and seizures. The accused has a right to have the word "unreasonable" interpreted in its ordinary meaning. He is not entitled to have a reasonable search declared unreasonable through legal theorizing that is absurd when considered in the light of reality. The criminal has a right to protection from third-degree tactics and inhumane treatment when he is in custody, and he cannot be forced to incriminate himself. He does not have a right to the exclusion from evidence, on some technical ground that is totally unrealistic, of a confession made freely and frankly.
The person on trial is entitled to a fair administration of criminal justice. But that does not mean the one-sided system of criminal jurisprudence which we are gradually approaching. And with almost all authorities predicting an unprecedented crime wave following the war, we had better take inventory as to how well we are equipped to meet it.