vides that when a respondent willfully refuses he may be prosecuted as provided in title 23 of the District of Colulumbia Code and be subject to a maximum penalty of a $500 fine or 60 days' imprisonment.

As with some of the Mallory legislation discussed earlier, this Department expresses no recommendation as to the need of an experiment such as would be embarked upon under this type of legislation. We do feel, however, if legislation such as H.R. 5726 is enacted, the investigative subpena legislation would be unnecessary. In any event, the bills now before the committee, H.R. 5046 and H.R. 5335, appear to lack the necessary safeguards to which persons upon whom investigative subpenas may be served are constitutionally entitled.

Among the features of the legislation which merit close scrutiny are the following: First, despite the statement in H.R. 5335 (sec. 1(c)) that a detention as provided for in the bill shall not constitute an arrest, both bills provide for a seizure of the person without probable cause, in violation of the fourth amendment and accompanied by the consequences of a conventional arrest. Both bills seem to permit a 6-hour police interrogation of a person suspected of committing a felony, without the assistance of counsel. In our view such a procedure would be violative of the sixth amendment's guarantee that an accused shall "have the assistance of counsel for his defense." If this legislation is to receive favorable consideration, the final enactment should at least

(1) Provide that the questioning is to be done in the presence of a monitor designated by the court.

(2) Provide that the questioning should be reduced considerably from the 6 hours provided in the bills, subject to an extension for an additional period of time by the judicial officer upon a showing of good cause.

(3) Provide that the witness is free to leave if he wishes, subject, of course to a prosecution for contempt.

(4) Provide for representation by counsel throughout the interrogation.

(5) Provide that a judicial officer shall advise the respondent of his right to make no incriminating statement, and that any statements he does make may be used against him.

(6) Provide for the verbatim recording of all questions, answers, and statements made in the course of the interrogation.

Whether, with the addition of these safeguards the legislation would constitute a useful investigative tool is a question on which local enforcement personnel can better advise the committee.

MATERIAL WITNESSES

The committee has requested our views on H.R. 1929, a bill "To permit an officer or member of the Metropolitan Police Force of the District of Columbia to detain and question persons suspected of committing crimes; and to require bond in the case of certain material witnesses"; and H.R. 5336, a bill "To amend the law relating to material and necessary witnesses to crimes committed in the District of Columbia.”

H.R. 1929 is cast in two sections, the first of which provides for the detention of persons suspected of committing criminal acts in the District of Columbia. It, in effect, would constitute a legislative reinstitution of investigative arrest in the District of Columbia. As such, it would be subject to the constitutional and other considerations previously raised with respect to H.R. 5046 and H.R. 5335, the investigative subpena bills. As a matter of fact, it would be much less likely to survive judicial scrutiny, as it has even less of the required safeguards suggested by the fourth, fifth, and sixth amendments than do the subpena bills.

Section 2 of H.R. 1929 and H.R. 5336 are directed at assuring the presence of material witnesses at the investigation or trial of a person charged with the commission of a felony. H.R. 1929 would permit a Metropolitan Police officer to detain a material witness for 6 hours before bringing him before a judicial officer to determine whether there is a reasonable probability that such witness will not be available during an investigation or trial. H.R. 5336 requires that a material witness be taken before a judicial officer "without unnecessary delay," to determine whether there is a reasonable probability that he will not be available at a trial. It does not permit a 6-hour delay, nor does it permit detention in connection with investigations. H.R. 5336, submitted by the District of Columbia Commissioners, represents the sounder approach to the material witness problem to which it is addressed. It is patterned after rule 46(b) of the Federal Rules of Criminal Procedure, the constitutionality of which has never

been doubted. However, if it is to be favorably considered, the committee may wish to consider the following suggestions:

Recognizing that the person involved is not accused of a criminal act, and may even be the victim of that act, it would seem desirable to provide a means for witnesses who are unable to post bonds because of financial inability to be released from confinement.

In some States, by statute, once the defendant is apprehended, the deposition of the witness may be taken, and the defendant afforded the right of cross-examination. Rule 15 (a) of the Federal Rules of Criminal Procedure has a similar provision. While the rules of criminal procedure for the District of Columbia provide for depositions of material witnesses for the defendant who are about to leave the District (D.C. Code, sec. 23-111), no like provision is made for depositions of witnesses for the Government.

It is suggested also, that although the witness is not accused of a crime, he should have the right to counsel and be advised of this right. An analogous situation is the right of an accused to counsel in a preliminary hearing. There is precedent for this practice. In New York, for example, the magistrate advises the witness of his right to counsel, and if he cannot pay for it, the court will assign an attorney to serve without compensation. See 40 Neb. L. Rev. 503, 510-511, note 42, commenting on "Imprisonment of the Material Witness for Failure to Give Bond."

It is also suggested that consideration be given to compensating a witness for time spent in detention awaiting interrogation or trial. While there are provisions in the District of Columbia Code for witness fees for attendance in court (D.C. Code, secs. 11-1501 and 23-109), under the weight of authority, these provisions would not be broad enough to permit payment of compensation to a material witness under detention. Even if detention is a public duty which a person may properly be called on to perform, it may operate as an intolerable burden on a witness and his family, if, while prevented from working, he is denied reimbursement during the detention period which under some circumstances might be prolonged for several months.

As is provided in rule 46(b) of the Federal Rules of Criminal Procedure, consideration should be given to a provision which would authorize the judge or Commissioner to order the release of the witness if he has been detained for an unreasonable amount of time, and to modify at any time the requirement as to bail.

Under the language of the bill the police would, without judicial process, be empowered physically to take the material witness before the judge on the basis of their own determination that the statutory grounds exist. As a practical matter this would seem to be necessary where a witness is taken into custody at the scene of the crime. However, with respect to witnesses other than those taken into custody at the scene of the crime, we suggest that consideraion be given to a revision of the proposal to provide that such witnesses may not be taken before a judge except pursuant to a court-issued subpena. This could be based on an ex parte affidavit or petition. Such a revision would be consistent with rule 46(b) of the Federal Rules of Criminal Procedure.

Also, to clarify the intention that not everyone need be detained but that those who are must be brought before a judicial officer without unnecessary delay, it is suggested that lines 2 through 4 of paper be revised to read: "witness may be detained by a member of the Metropolitan Police force or by a Federal lawenforcement officer. Any person so detained shall, without unnecessary delay, be taken before a judge of the United States **

Modified as suggested, H.R. 5336 would substantially improve the existing law in the District of Columbia relating to the detention of material witnesses.

DURHAM RULE

The Department has not been asked to submit its views on H.R. 1932, legislation to clarify and modify substantially and procedurally-the law of the District of Columbia relating to the defense of insanity in criminal cases. However, in your letter to the Attorney General, dated April 2, you refer to testimony by District law-enforcement officials that the present state of the law has seriously hampered the administration of criminal justice.

H.R. 1932 is identical with H.R. 7052, 87th Congress, which passed the House on June 26, 1961. It is directed at the problems which have arisen in the application of the decision of the Court of Appeals for the District of Columbia Circuit in Durham v. United States (94 U.S. App. D.C.; 214 F. 2d 862 (1954)). How

ever, in the course of recent decisions, notably McDonald v. United States (312 F. 2d 847 (1962)), the court has largely obviated the need for legislation such as H.R. 1932. In its unanimous en banc opinion, the court not only resolved many of the difficulties but reflected a willingness and ability to make adjustments in the Durham rule and its application, as experience dictates. It is the view of this Department that the court should be given the opportunity further to develop and refine the law in this area without legislation at this time.

FOURTH OFFENDER

The Department is unable to recommend the enactment of H.R. 1893, a bill "To provide, under the laws of the District of Columbia, for the life imprisonment of any person convicted of four felonies."

Apart from the specifics of the bill, as to which we have certain criticisms, we are generally opposed to this or similar legislation. It is not in keeping with modern thinking, as expressed repeatedly by judges and in the American Law Institute Model Penal Code, that mandatory sentences are of a highly questionable value. They result in serious inequities and make it even more difficult to obtain warranted convictions, particularly when jurors know that a conviction means life imprisonment for an offender.

The sentencing process is affected by numerous factors which vary from case to case, and the weight to be assigned to each factor should be left to the discretion of the presiding judge in each instance. The interim report of the New York State Temporary Coinmission on Revision of the Criminal Code, published on February 1, 1963, indicates similar misgivings about the operation of New York's habitual offender legislation of this type.

The prohibition against parole for a prisoner convicted and sentenced to lifeimprisonment adds further undesirable rigidity to the measure.

Finally, the measure is in direct conflict with Public Law 85-752 (72 Stat. 845, approved Aug. 25, 1958) which seeks to invest the sentencing process with a full consideration of all the factors involved, an objective which that law proposes to reach through judicial institutes and indeterminate sentences.

DANGEROUS WEAPONS

The final measure on which the committee has requested our views is H.R. 678. a bill to make possession of a dangerous weapon presumptive evidence of intent to use it unlawfully.

This Department is gravely concerned about the ease with which dangerous weapons may be obtained, transferred, and possesed, and the tragedies which occur as a result of this. We would wholeheartedly support legislation to regulate traffic in such weapons, and their possession, but are unable to support an approach to the problem such as that of H.R. 678.

Dangerous weapons, by definition in the District of Columbia Code, include a toy pistol, a razor, and a knife with a blade longer than 3 inches. To presume from the possession by a child of a toy pistol that he intends to use it unlawfully, or to presume that a man's possession of a razor indicates an intent to use it unlawfully, or to presume that a housewife carrying her carving knife intends to put it to an illegal use, is unreasonable.

Further, the Supreme Court in Tot v. United States (319 U.S. 463, 467-68 (1943)) stated the following concerning statutory presumptions:

"Under our decisions, a statutory presumption cannot be sustained if there he no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than the jury might take in a specific case. But, where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts."

Benton v. United States, 232 F. 2d 341 (D.C. Cir. 1956), involved a statutory presumption somewhat similar to the one in the bill in question. In that case the defendant had been convicted for violation of section 22-3601 of the District of Columbia Code, which reads as follows: "No person shall have in his possession in the District any instrument, tool, or other implement for picking locks or pockets, or that is usually employed, or reasonably may be employed in the

commission of any crime, if he is unable satisfactorily to account for the possession of the implement." The defendant had been found in the possession of a sledge hammer, ax, and hacksaw. The court interpreted the statute as allowing the jury to presume the existence of an intent to use the instrument for a felonious purpose from the mere fact of possession of the instrument. The court, in reversing the conviction, held that no rational inference of criminal intent could be drawn from the mere possession of tools which "reasonably may be employed" in crime. The court did not reach the question of whether the inference of criminal intent could be drawn from the possession of tools or implements which in themselves give rise to sinister inferences.

Some of the views expressed in this report were stated in substance by U.S. Attorney Acheson when he appeared before a subcommittee of the House District of Columbia Committee on May 6. However, I hope this written presentation of them will be of further assistance to the committee in its deliberations.

The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the administration's program. Sincerely yours,

NICHOLAS DEB. KATZENBACH,
Deputy Attorney General.

(Whereupon, at 12:10 p.m., the subcommittee concluded the hear

ings.)