EFFECT OF PRIVACY/FOIA ACTS ON RECOMMENDATIONS OF PRESIDENTIAL COMMISSIONS PERTAINING TO LAW ENFORCEMENT RECORD-KEEPING

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000200020044-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 227
• Document Creation Date: December 16, 2016
• Document Release Date: March 4, 2005
• Sequence Number: 44
• Publication Date: June 22, 1978
• Content Type: REPORT

".. The Library of Congress I OLC, #78,57,32q
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Congressional Research Service
Washington, D.C. 20540
EFFECT OF PRIVACY/FOI ACTS ON RECOMMENDATIONS OF PRESIDENTIAL
COMMISSIONS PERTAINING TO LAW ENFORCEMENT RECORD?KEEPING
Kathleen Imig Perkins
Legislative Attorney
American Law Division
June 22, 1978
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Cfe
* * s
The Library of Congress
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Congressional Research Service
Washington, D.C. 20540
EFFECT OF PRIVACY/FOI ACTS ON RECOMMENDATIONS OF PRESIDENTIAL
COMMISSIONS PERTAINING TO LAW ENFORCEMENT RECORD-KEEPING
Introduction
The question presented for discussion herein is whether an inherent
conflict exists between effective preventive law enforcement and investi-
gation and the requirements of recent "open government" legislation such
as the Privacy Act of 1974 1/ and the Freedom of Information Act. 2/
Some members of the law enforcement community are convinced that law en-
forcement intelligence-gathering capabilities have been seriously eroded
by the passage of such legislation. 3/ However, other law enforcement
personnel, while recognizing the burdens placed on law enforcement agencies
by these Acts, also recognize that the Freedom of Information and Privacy
Acts have resulted in benefits to Government in general and to the law
enforcement process in particular. 4/ In fact, Quinlan J. Shea, Direc-
tor of the Office of Privacy and Information Appeals, Office of the Deputy
Attorney General, makes the following strong statement in defense of Pri-
vacy/FOIA legislation:
1/ 5 U.S.C. ? 552a.
2/ 5 U.S.C. ? 552.
3/ See, The Erosion of Law Enforcement Intelligence Capabilities -- Public
Security: Hearings Before the Subcomm. on Criminal Law and Procedures
of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 3 (1977)
(statement of Eugene Rossides).
4/ See Department of Justice, Statement of Quinlan J. Shea Before the
Subcomm. on Criminal Laws and Procedure of the Senate Comm. on the
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It is the firm and unequivocal position of the Department
of Justice that there is no inherent conflict between ef-
ficient, effective criminal law enforcement and the prin-
ciples underlying the Freedom of Information and Privacy
Act. We recognize that we are dealing with two very im-
portant societal interests -- openness in Government and
the valid needs of the law enforcement process. At certain
points these interests do conflict to some extent and deci-
sions have to be made as to which is to control. For the most
part, however, we believe that each of these important
interests can be served without doing violence to the
other. 5/
This report will attempt to determine to what extent law enforcement
intelligence gathering procedures are hampered by existing provisions of
the Freedom of Information and Privacy Acts. In particular, we will re-
view and summarize recommendations for law enforcement intelligence
gathering and record-keeping made by four Presidential Commissions and
determine to what extent these recommendations would be hindered in im-
plementation by the provisions of the Freedom of Information and Privacy
Acts.
5/ Id. at 2.
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Recommendations of the President's Commission on the Assassination
of President John F. Kennedy 6/
In 1963, following the assassination on November 22, 1963 of President
John F. Kennedy, President Lyndon B. Johnson appointed a seven-member Com-
mission to "ascertain, evaluate and report upon the facts relating to the
assassination of the late President John F. Kennedy..." 7/ The Chairman
of the Commission was Chief Justice Earl Warren. Thus, the report of the
Commission is commonly referred to as the Warren Report. The Warren Com-
mission's major function was to investigate the facts surrounding the as-
sassination of President Kennedy and issue a report of that investigation
including the Commission's conclusions as to the person or persons respon-
sible for the assassination.
In addition, however, the Warren Commission reviewed and evaluated
the protection of the President which was provided by the Secret Service
and made recommendations to President Johnson for improving the func-
tioning of the Secret Service in this regard. Relevant to this report are the
recommendations of the Commission pertaining to preventive intelligence. 8/
After the assassination, the Secret Service began a reorganization of
its research activities, including increasing the staff of the Protective
6/ Commonly known as and hereinafter referred to as the Warren Commission.
7/ Exec. Order No. 11,130, 3 C.F.R. 795 (1963).
8/ Report of the President's Commission on the Assassination of President John
F. Kennedy 461 (1964).
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Research Section. And the F.B.I., recognizing that the files of the Pro-
tective Research Service should "no longer be limited largely to persons
communicating actual threats to the President", 9/ issued new instruc-
tions for furnishing information to the Secret Service. The F.B.I. in-
structions require agents to report immediately to the Secret Service
information concerning:
Subversives, ultrarightists, racists and fascists (a)
possessing emotional instability or irrational behavior,
(b) who have made threats of bodily harm against officials
or employees of Federal, state, or local government or of-
ficials of a foreign government, (c) who express or have
expressed strong or violent anti-U.S. sentiments and who
have been involved in bombing or bomb-making or whose past
conduct indicates tendencies toward violence, and (d) whose
prior acts or statements depict propensity for violence and
hatred against organized government. 10/
Pursuant to this new instruction, the F.B.I. referred more than 5,000 names
to the Secret Service in the first 4 months of 1964, and, by mid-June, 1964,
approximately 9,000 reports on members of the Communist Party were trans-
ferred to the Secret Service. It is important to note that both the Di-
rector of the F.B.I., Mr. Hoover, and the Assistant to the Director, Alan H.
Belmont, expressed to the Warren Commission "the great concern of the F.B.I.,
which is shared by the Secret Service, that referrals to the Secret
Service under the new criteria might, if not properly handled, result in
some degree of interference with the personal liberty of those involved." 11/
9/ Id.
10/ Id.
11/ Id. at 462.
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However, recognizing that the new F.B.I. instructions were "a step in
the right direction," the Warren Commission recommended that the F.B.I.
and the Secret Service develop broader, more selective criteria for the
transfer of information from the F.B.I. to the Secret Service.
The Warren Commission also recommended that the Secret Service es-
tablish written agreements with each Federal agency and the leading State
and local agencies which might be the source of information on potential
assassins. The report pointed out that the Secret Service had established
a much too casual relationship with the agencies which supply such infor-
mation. The Report continued:
...Such agreements should describe in detail the informa-
tion which is sought, the manner in which it will be pro-
vided to the Secret Service, and the respective responsi-
bilities for any further investigation that may be re-
quired. 12/
The final recommendation of the Warren Commission pertaining to the
collection and maintenance of information on potential assassins was that
the Secret Service automate its investigative files and develop a more
sophisticated computerized retrieval system for the information contained
therein. 13/ The Commission recognized that the additional data which
would be transferred to the Secret Service under the new F.B.I. instruc-
tions and pursuant to the written agreements with other agencies as re-
commended by the Commission would be useless unless the Secret Service
12/ Id. at 463.
13/ Id. at 464.
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were capable of accessing required data efficiently. The Commission also
recommended that the automation of the Secret Service 's information system
be completed in coordination with other Federal agencies from which it re-
ceives information.
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Recommendations of the President's Commission on Law
Enforcement and Administration of Justice 14/
President Johnson established the Commission on Law Enforcement and
Administration of Justice on July 23, 1965. 15/ The Commission was man-
dated to:
(1) Inquire into the causes of crime and delinquency,
measures for their prevention, the adequacy of law enforce-
ment and administration of justice, and the factors encour-
aging respect of disrespect for law, at the national, State,
and local levels, and make such studies, conduct such
hearings, and request such information as it deems appro-
priate for this purpose.
(2) Develop standards and make recommendations for ac-
tions which can be taken by the Federal, State, and local
governments, and by private persons and organ4.,0f-4ons, to pre-
vent, reduce, and control crime and increase respect for law,
including, but not limited to, improvements in training and
qualifications of personnel engaged in law enforcement and
related activities, improvements in techniques, organization,
and administration of law enforcement activities, improve-
ments in the administration of justice, improvements in
correction and rehabilitation of convicted offenders and
juvenile delinquents, promotion of better understanding
between law enforcement officials and other members of the
community, and promotion of greater respect for law through-
out the community. 16/
President Johnson appointed Nicholas deB. Katzenbach, then Attorney General
of the United States, to serve as Chairman of the Commission. The Com-
mission made the following recommendations in the areas of personal infor-
mation and information systems:
14/ Commonly known as and hereinafter referred to as the Kattenbach
Commission.
15/ Exec Order No. 11, 236, 3 C:F.R. 329 (1965).
16/ Id.
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The Commission .recommends:
Personal criminal-record information should be orga-
nized as follows:
There should be a national law enforcement directory
that records an individual's arrests for serious crimes,
the disposition of each case, and all subsequent formal
contacts with criminal justice agencies related to those
arrests. Access should be limited to criminal justice
agencies. - -
There should be -State law? enforcement directories
similar to the national directory, but including less
serious offenses.
States should consider criminal justice registries that
could record some ancillary factual information (e.g.,
education and employment records, probation re-
ports) of individuals listed in their State directories.
This information must be protected even more care-
fully than the information in the directories, and
would be accessible only to court or corrections officers.
The Commission recommends:
A National Criminal justice Statistics Center should be
established in the Department of justice. The Center
should be responsible for the collection, analysis, and dis-
aemin' ation of two basic kinds of data:
Those characterizing criminal careers, derived from
carefully drawn samples of anonymous offenders.
Those on cairn. e and the system's response to it, as re-
ported by the criminal justice agencies at all levels.
17/
18/
17/ President's Commission on Law Enforcement and Administration of Justice,
The Challenge of Crime in a Free Society 268 (1967).
18/ Id. at 269.
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Additionally, the Commission's report 19/ recommended that the Federal
Government assist State and local governments in improving the collection
and transmission of information needed by the police, courts, and correc-
tions agencies. The report cited the F.B.I.'s National Crime Information
Center which provides "instantaneous response to computer inquiry by lo-
cal agencies for information on stolen automobiles, wanted persons, cer-
tain identifiable types of stolen property, and the like." 20/ However,
the Commission recommended that the Federal Government make data on of-
fenders centrally available to prosecutors, courts, and correctional
authorities with the goal being to "develop an index drawn from the re-
cords of the criminal justice agencies across the country." 21/ The
Commission felt that such an index would "avoid the dangers of develop-
ing national 'dossiers" while speeding collection of data.
Finally, the Commission recommended that the Justice Department de-
velop a computerized, central organized crime intelligence system as the
center of a Federally-supported network of State and regional intelli-
gence systems. 22/ This system would assist State and local govern-
ments in their fight against organized crime and would assist the De-
partment in maintaining statistical information on the criminal jus-
tice system.
19/ Supra note 12.
20/ Id. at 286.
21/ Id.
22/ Id.
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Recommendations of the National Advisory Commission on
Civil Disorders 23/
Following racial disturbances in several major American cities early
in 1967, President Johnson established the National Advisory Commission
on Civil Disorders. 24/ The President appointed Governor Otto Kerner,
of the State of Illinois, as Chairman of the Commission. The Commission
was charged with the following responsibilities:
Sec. 2. Functions of the Commission. (a) The Commission
shall investigate and make recommendations with respect to:
(1) The origins of the recent major civil disorders in
our cities, including the basic causes and factors leading
to such disorders and the influence, if any, of organizations
or individuals dedicated to the incitement or encouragement
of violence;
(2) The development of methods and techniques for averting
or controlling such disorders, including the improvement of
communications between local authorities and community groups,
the training of State and local law enforcement and National
Guard personnel in dealing with potential or actual riot situa-
tions, and the coordination of efforts of the various law en-
forcement and governmental units which may become involved in
such situations;
(3) The appropriate role of the local, State and Federal
authorities in dealing with civil disorders; and
(4) Such other matters as the President may place be-
fore the Commission.
25/
23/ Commonly knows as and hereinafter referred to as the Kerner Commission.
24/ Exec. Order No. 11,365, 3 C.F.R. 674.
25/ Id.
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The major focus of the Kerner Commission Report was to outline the
civil disorders as they had occurred in areas such as Tampa, Cincinnati,
Atlanta, Newark, Northern New Jersey, Plainfield, New Brunswick, and
Detroit, and to provide an analysis of the basic causes of such disorders.
Concluding the report, the Kerner Commission offered its recommendations
for action to prevent further disorders. The recommendations which were
national in scope pertained to social issues such as employment, education,
welfare, and housing. And the recommendations which pertained to activi-
ties of the police and their response to civil disorder situations dealt
mostly with problems such as police-community relations and police re-
sponse in the middle of the crisis.
However, in a Supplement to the report on methods of controlling a
disorder, the Commission did discuss the need for more accurate and sophis-
ticated police intelligence. The Commission recommended that police depart-
ments develop intelligence units to gather, evaluate, analyze, and dissemi-
nate information on potential as well as actual civil disorders. 26/ The
Commission recognized the need for accurate information both before and during
a disorder to assist in assessment and decision-making and to prevent the
spread of dangerous, often inciting rumors.
Our research indicates that the Kerner Commission Report made no other
recommendations pertaining to information gathering or maintenance.
26/ Report of the National Advisory Commission on Civil Disorders 269 (1968).
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Recommendations of the National Commission on the
Causes and Prevention of Violence 27/
After racial disturbances errupted across the country following the
assassination of Dr. Martin Luther King, President Johnson appointed the
National Commission on the Causes and Prevention of Violence. 28/ To
lead this Commission in its work, the President appointed Dr. Milton
Eisenhower. Other Commission members included Congressman Hale Boggs,
Archbishop Terence J. Cooke, Ambassador Patricia Robert Harris, and Eric
Hoffer. The Commission mandate read as follows:
Sec. 2. Functions of the Commission. The Commission shall
investigate and make recommendations with respect to:
(a) The causes and prevention of lawless acts of violence
in our society, including assassination, murder and assault;
(b) The causes and prevention of disrespect for law and
order, of disrespect for public officials, and of violent dis-
ruptions of public order by individuals and groups; and
(c) Such other matters as the President may place before
the Commission.
29/
The Eisenhower Commission completed its work and issued its report
in December, 1969. 30/ The report outlines the growth of violence in
27/ Commonly known as and hereinafter referred to as the Eisenhower Com-
mission.
28/ Exec. Order No. 11,412, 3 C.F.R. 726 (1968).
29/ Id.
30/ National Commission on the .Causes and Prevention of Violence, To Es-
tablish Justice, To Insure Domestic Tranquility (1969).
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American Society and analyzes various forms of violence such as violent
crime, group violence, civil disobedience, assassination, firearms, vio-
lence in entertainment, and campus disorders. The report is followed
by 81 recommendations for action to be taken to limit or prevent violence
in America in the future. Of these recommendations, we have identified
two which pertain to gathering and maintaining information on individuals.
Recommendation No. 9 urges:
9. that we devise means of "identification of specific
violence-prone individuals for analysis and treatment in or-
der to reduce the likelihood of repetition; provision of
special schools for education of young people with violence-
prone histories, special psychiatric services and employment
programs for parolees and released offenders with a history of
violent criminal acts." 31/
And Recommendation No. 57 suggests:
57. that "a federal firearms information center should
be established to accumulate and store information on firearms
and owners received from state agencies; this information would
be available to state and federal law enforcement agencies." 32/
31/ Id. at 272.
32/ Id. at 279.
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The Privacy Act of 1974 -- Provisions Relating
to Law Enforcement Recordkeeping
As early as 1965, Congress began to consider the problems of the pri-
vacy of individuals and how to protect it. In that year the House of Re-
presentatives Special Subcommittee on Invasion of Privacy held public hearings.
Numerous congressional committee hearings have been held and reports issued
since that time. 33/ In 1973, the Department of Health, Education,
and Welfare issued a report which greatly influenced the development of the
Privacy Act. 34/ The HEW Report recommended a "Code of Fair Information
Practice" which would prohibit secret data record-keeping systems, provide
access by individuals to records about themselves, limit the uses to which
collected information could be put with individual consent, provide for
correction and amendment of records, and require reasonable accuracy of
records. 35/ All of these provisions were incorporated in the Privacy
Act of 1974.
33/ See Privacy, The Census and Federal Questionnaires: Hearings on S.
1791 Before the Subcomm. on Const. Rights of the Senate Comm. on the
Judiciary, 91st Cong., 1st Sess. (1969); Federal Data Banks, Computers
and the Bill of Rights: Hearings Before the Subcomm. on Const. Rights
of the Senate Comm. on the Judiciary, 92d Cong., 1st Sess. (1971); Staff
of Subcomm. on Const. Rights of the Senate Comm. on the Jucidiary, 93d
Cong., 2d Sess., Federal Data Banks and Constitutional Rights (Comm.
Print 1974).
34/ See Department of Health, Education, and Welfare, Records, Computers,
and the Rights of Citizens (Report of the Secretary's Advisory Com-
mittee on Automated Personal Data Systems, 1973).
35/ Id. at 41.
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After extensive debate, the Senate passed S. 3418 and the House of
Representatives passed H.R. 16373 late in 1974. Following informal ne-
gotiations, a compromise bill was drafted which subsequently was passed
by both the House and the Senate and signed into law by the President
as Public Law No. 93-579.
The Privacy Act of 1974 36/ is a statute which regulates the col-
lection, maintenance and dissemination of personally-identifiable infor-
mation by Federal agencies. The act pertains to records which are re-
trievable by the name of an individual or by some other individually
identifiable data. Each agency must publish annually in the Federal
Register a listing of the record systems which it maintains. The in-
dividual identified in the record must be granted a right of access
to the file concerning himself and must be given a right to challenge
the accuracy of the information contained therein. Records may be dis-
closed to third parties only upon written request by, or with the prior
consent of, the individual to whom the record pertains. Pertinent to
a discussion of record-keeping by law enforcement agencies, the Privacy
Act requires that agencies:
1. "(C)ollect information to the greatest extent practicable
directly from the subject individual when the information
may result in adverse determinations about an individual's
rights, benefits, and privileges under Federal programs," 37/
36/ 5 U.S.C. 5 552a.
37/ 5 U.S.C. S 552a(e)(2).
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2. "Maintain in its records only such information about
an individual as is relevant and necessary to accomplish
a purpose of the agency required to be accomplished by
statute or by executive order of the President;" 38/
3. "(P)ublish in the Federal Register at least annually
a notice of the existence and character of the system
of'records...;" 39/
4. Maintain such records "with such accuracy, relevance,
timeliness, and completeness as is reasonably neces-
sary to assure fairness to the individual in the de-
termination;" 40/
5. Make reasonable efforts to assure the accuracy, com-
pleteness and timeliness of records about individuals
prior to their dissemination; 41/
6. "Maintain no record describing how an individual
exercises rights guaranteed by the First Amendment
unless expressly authorized by Statute or by the
individual about whom the record is maintained or
unless pertinent to and within the scope of an
authorized law enforcement activity; 42/
7. Refrain from disclosing "any record which is con-
tained in a system of records by any means of com-
munication to any person, or to another agency,
except pursuant to a written request by, or with
the prior written consent of, the individual to
whom the record pertains...." 43/
38/
5 U.S.C. 5
552a(e)(1).
39/
5 U.S.C.
5
552a(e)(4).
40/
5 U.S.C.
?
552a(e)(5).
41/
5 U.S.C.
5
552a(e)(6).
42/
5 U.S.C.
5
552a(e)(7).
43/
5 U.S.C.
5
552a(b).
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,Except disclosure may be made without the consent of the individual
(1) to those officers and employees of the agency which
maintains the record who have a need for the record in the per-
formance of their duties;
(2) required under section 552 of this title;
(3) for a routine use as defined in subsection (a) (7) of this
section and described under subsection (e)(4)(D) of this sec-
tion;
(4) to the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to
the provisions of title 13;
(5) to a recipient who has provided the agency with advance
adequate written assurance that the record will be used solely
as a statistical research or reporting record, and the record is
to be transferred in a form that is not individually identifiable;
(6) to the National Archives of the United States as a record
which has sufficient historical or other value to warrant its
continued preservation by the United States Government, or for
evaluation by the Administrator of General Services or his des-
ignee to determine whether the record has such value;
(7) to another agency or to an instrumentality of any govern-
mental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity if the
activity is authorized by law, and if the head of the agency or
instrumentality has made a written request to the agency which
maintains the record specifying the particular portion desired
and the law enforcement activity for which the record is sought;
(8) to a person pursuant to a showing of compelling circum-
stances affecting the health or safety of an individual if upon
such disclosure notification is transmitted to the last known ad-
dress of such individual;
(9) to either House of Congress, or, to the extent of matter
within its jurisdiction, any committee or subcommittee thereof,
any joint committee of Congress or subcommittee of any such
joint committee;
(10) to the Conilitroller General, or any of his authorized rep-
resentatives, in the course of the performance of the duties of
the General Accounting Office; or
(11) pursuant to the order of a court of competent jurisdic-
tion.
44/ Id.
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The so-called "law enforcement" exception to the disclosure limitations
of the Privacy Act, set out above, permits agency disclosure of personally-
identifiable information for lawful domestic law-enforcement purposes upon
the written request of the head of the law enforcement agency. The Office
of Management and Budget Guidelines 45/ stress that disclosure may be
made only if the written request specifies
...(t)he law enforcement purpose for which the record is re-
quested; and the particular record requested. 46/
Blanket requests for all records pertaining to a particular individual
should not be honored pursuant to subsection B-7. In addition, the OMB
Guidelines make clear that disclosure to a law enforcement agency as a
"routine use" is permissible when the agency maintaining the record sus-
pects a violation of law and when such disclosure has been established
in advance as a "routine use." 47/ The Guidelines quote a statement by
Congressman Moorhead in debate of the Privacy Act in this regard:
It should be noted that the "routine use" exception is in
addition to the exception provided for dissemination for
law enforcement activity under subsection (b)(7) of the bill.
Thus a requested record may be disseminated under either the
"routine use" exception, the "law enforcement" exception,
or both sections, depending on the circumstances of the case.
(Congressional Record November 21, 1974, p. H10962.) 48/
45/ Office of Management and Budget, Privacy Act Implementation, Guidelines
and Responsibilities, 40 Fed. Reg. 28,948 (1975).
46/ Id. at 28,955.
47/ Id.
48/ Id.
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It is interesting to note that the Guidelines specifically mention, as an
example of disclosure of records in law enforcement systems as a "routine
use",
...transfer by a law enforcement agency of protective
intelligence information to the Secret Service. 49/
The Privacy Act also contains provisions for the general exemption of
certain records from some provisions of the act. The so?called general
exemption provision authorizes exemption of a system of records if the
system is:
(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which
performs as its principal function any activity pertaining to the
enforcement of criminal laws, including police efforts to pre-
vent, control, or reduce crime or to apprehend criminals, and
the activities of prosecutors, courts, correctional, probation,
pardon, or parole authorities, and which consists of (A) infor-
mation compiled for the purpose of identifying individual crimi-
nal offenders and alleged offenders and consisting only of iden-
tifying data and notations of arrests, the nature and disposi-
tion of criminal charges, sentencing, confinement, release, and
parole and probation status; (B) information compiled for the
purpose of a criminal investigation, including reports of in-
formants and investigators, and associated with an identifiable
individual; or (C) reports identifiable to an individual compil-
ed at any stage of the process of enforcement of the criminal
laws from arrest or indictment through release from supervi-
sion. ;501
49/ Id.
50/ 5 U.S.C. 5 552a(j).
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This section permits agency heads to exempt systems of records which are
maintained by the Central Intelligence Agency or for criminal law enforce?
ment purposes. The provision permits exemption of records meeting the
requirements of (1) or (2) above from all provisions of the Privacy Act
except:
(1) conditions of disclosure; 51/
(2) accounting of disclosures and retention of the accounting; 52/
(3) publication in the Federal Register of notice of the exis?
tence and character of systems of records; 53/
(4) the requirements of accuracy, completeness and timeliness
prior to dissemination of records; 54/
(5) the prohibitions on maintaining records pertaining to an
individual's exercise of First Amendment rights; 55/
(6) the requirement for establishment of rules of conduct; 56/
(7) the establishment of safeguards to ensure the security
and confidentiality of records; 57/
(8) publication of "routine use" notices in the Federal
Register; 58/
51/
5 U.S.C.
?
552a(b).
52/
5 U.S.C.
?
552a(c)(1),(2).
53/
5 U.S.C.
?
552a(e)(4)(A)?(F).
54/
5 U.S.C.
6
552a(e)(6).
55/
5 U.S.C.
6
552a(e)(7).
56/
5 U.S.C.
5
552a(e)(9).
57/
5 U.S.C.
?
552a(e)(10).
58/
5 U.S.C.
6
552a(e)(11).
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(9) criminal penalties imposed for violation of the act. 59/
When the head of an agency decides that a system of records maintained
by the agency should be exempted from provisions of the Privacy Act pursuant
to ?552a(j) above, the agency must publish a notice in the Federal Regis-
ter. This notice must state as a minimum the name of the system and the
specific provisions of the act from which the system is to be exempted and
the reasons for the exemption. 60/ The OMB Guidelines stress that:
...the exemption provisions are permissive, i.e., an agency
head is authorized, but not required, to exempt a system
from all or any portion of selected provisions of the act
when he or she deems it to be in the best interest of the
government and consistent with the act and these guidelines... 61/
The Guidelines then quote the House Report as follows:
The committee also wishes to stress that this section
is not intended to require the C.I.A. and criminal
justice agencies to withhold all their personal
records from the individuals to whom they pertain.
We urge those agencies to keep open whatever files
are presently open and to make available in the
future whatever files can be made available without
clearly infringing on the ability of the agencies to
fulfill their missions. (House Report 93-1416, p. 19). 62/
The "specific exemption" section of the Privacy Act 63/ authorizes
the exemption of certain specific categories of systems of records from cer-
tain provisions of the act. A system is exempt under this provision if it is:
59/ 5 U.S.C. ? 552a(i).
60/ Supra note 40 at 28,971.
61/ Id.
62/ Id.
63/ 5 U.S.C. ? 552a(k).
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(1) subject to the provisions of section 552(b)(1) of this di
tie;
(2) investigatory material compiled for law enforcement pur-
poses, other than material within the scope of subsection (j)(2);
of this section: Provided, however, That if any individual is de-
nied any right, privilege, or benefit that he would otherwise be
entitled by Federal law, or for which he would otherwise be eli-
gible, as a result of the maintenance of such material, such ma-
terial shall be provided to such individual, except to the extenti
that the disclosure of such material would reveal the identity of;
a source who furnished information to the Government under;
an express promise that the identity of the source would be held;
in confidence, or, prior to the effective date of this section, Un-
der an implied promise that the identity of the source would be
held in confidence;
(3) maintained in connection with providing protective
services to the President of the United States or other individu-
als pursuant to section 3056 of title 18;
(4) required by statute to be maintained and used solely as
statistical records;
(5) investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for Federal
civilian employment, military service, Federal contracts, or ac-
cess to classified information, but only to the extent that the
disclosure of such material would reveal the identity of a
source who furnished information to the Government under an
express promise that the identity of the source would be held in
confidence, or, prior to the effective date of this section, under
an implied promise that the identity of the source would be held
in confidence;
(6) testing or examination material used solely to determine
individual qualifications for appointment or promotion in the
Federal service the disclosure of which would compromise the
objectivity or fairness of the testing or examination process; or
(7) evaluation material used to determine potential for pro-
motion in the armed services, but only to the extent that the
disclosure of such material would reveal the identity of a
source who furnished information to the Government under an
express promise that the identity of the source would be held in
confidence, or, prior to the effective date of this section, under
an implied promise that the identity a the source Would be held
in confidence.
64/ Id.
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Pursuant to the "specific exemption" section, S(k), agency heads may exempt
systems of records from a limited number of the Privacy Act's provisions.
However, systems may not be exempted under this section from any of the
provisions to which systems under the "general exemption" section, S(j),
may not be exempted and, in addition, may not be exempt from:
(1) informing prior recipients of corrected or disputed records; 65/
(2) collection information, where possible, directly from the
concerned individual; 66/
(3) informing individuals of the authority pursuant to which
information is sought and whether providing the information
is mandatory or voluntary; 67/
(4) maintaining accurate, timely and relevant records; 68/
(5) notifying individuals when records pertaining to them
are disclosed under compulsory process; 69/
(6) civil remedies. 70/
Subsection (k)(2), set out above, allows agency heads to exempt a sys?
tem of records which is compiled in the course of an investigation of an
alleged or suspected violation
65/
5 U.S.C.
? 552a(c)(4).
66/
5 U.S.C.
S 552a(e)(2).
67/
5 U.S.C.
? 552a(e)(3).
68/
5 U.S.C.
? 552a(e)(5).
69/
5 U.S.C.
S 552a(e)(8).
70/
5 U.S.C.
? 552a(g).
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of civil laws, including violations of the Uniform Code of
Military Justice and associated regulations, except to the
extent that the system is more broadly exempt under the
provision governing records maintained by an agency whose
principal function pertains to the enforcement of criminal
laws.... 71/
Thus, this subsection allows exemption of investigatory files of agencies
which are not principally law-enforcement agencies.
The House Report on the Privacy Act of 1974 72/ states the following
as the purpose of subsection (k)(2):
Individual access to certain law enforcement files could
impair investigations, particularly those which involve complex
and continuing patterns of behavior. It could alert subjects of
investigation that their activities are being scrutinized,
and thus allow them time to take measures to prevent detection
of illegal action or escape prosecution. 73/
And subsection (k)(3) allows an agency to promulgate rules to exempt
any system of records maintained in connection with providing protective
services pursuant to 18 U.S.C. ? 3056. Thus, records maintained by the
Secret Service in connection with the responsibility for protection of
the President can be exempted from most provisions of the Privacy Act.
It should be noted that the House Report specifically stated that:
(a)ccess to Secret Service intelligence files on certain
individuals would vitiate a critical part of Secret Ser-
vice work which was specifically recommended by the
Warren Commission that investigated the assassination
of President Kennedy and funded by Congress. 74/
71/ Supra note 40 at 28,972.
72/ H.R. Rep. No. 93-1416, 93d Cong. 2d Sess. (1974).
73/ Id. at 19.
74/ Id.
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Pursuant to 5 U.S.C. 5 552a(j) and (k), the United States Secret Ser-
vice has promulgated rules and regulations which exempt certain systems
of records from the Privacy Act provisions. 75/ These regulations exempt
the Secret Service Criminal Investigation Information System of Records,
the Non-Criminal Investigation Information System of records, and the Pro-
tection Information System of records. The stated purpose of the exemp-
tion is to "maintain the confidentiality of information compiled for the
purpose of criminal, non-criminal, and protective investigations." The
systems described above are exempted by these regulations from the Pri-
vacy Act provisions which require access by the subject individual to re-
cords, accounting for disclosure of records pertaining to said individual,
notice to individuals when disclosure is made, individual access to records,
limitations on the kinds of information maintained about individuals, col-
lecting information, where possible, directly from the subject individual,
notifications to individuals from whom information is sought, publication of
procedures for individual access to records and of sources of information
in the system, accuracy, relevance, timeliness, and completeness of records,
notification of disclosure to subject individuals, promulgation of agency
rules for access and disclosure, and civil remedies for agency failures to
comply with the disclosure/amendment provisions of the act.
75/ 31 C.F.R. 5 1.36.
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The Freedom of Information Act - Law Enforcement Files
Though titled "Public Information" and intended for the purpose of
making information available to the public, section 3 of the Administra-
tive Procedure Act of 1946 76/ was largely used by Federal agencies as
authority for withholding rather than disclosing information. 77/ Less
than ten years following enactment of this provision, proposals were
suggested for its revision. Bills were introduced in the 84th, 85th,
86th, 87th, and 88th Congresses. Both chambers held extensive hearings
on these various proposals. Finally, in the 89th Congress, both houses
agreed on a bill which was enacted as the original Freedom of Information
Act. 78/ The original Freedom of Information Act 79/ remained essen-
tially unchanged until the amendments of 1974.
Beginning as early as 1972, however, a movement for change began
growing. In September of 1972, the House Government Operations Subcom-
mittee on Foreign Operations and Government Information concluded that
the Freedom of Information Act has been "hindered by five years of
76/ 5 U.S.C. S 1002 (1952).
77/ H.R. Rept. No. 1497, 89th Congress., 2d Sesa. 4 (1966).
78/ S. 1160 was passed by the Senate on October 13, 1965 and by the House
on June 20, 1966. It was enacted into law as Public Law No. 89-487
on July 4, 1966.
79/ Codified as 5 U.S.C. S 552.by Pub. Law No. 90-23, 90th Cong., 1st Sess.
(1967).
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footdragging" by the Federal agencies. 80/ After the subcommittee re-
commended legislative remedies, it held further hearings in May, 1973 and
introduced H.R. 12471 to amend the Freedom of Information Act in early
1974. 81/ The Senate Considered and passed similar legislation. 82/
In October, 1974, the Senate and House agreed on a conference bill, but
on November 18, 1974, President Ford vetoed H.R. 12471. President Ford
stated in part:
Second, I believe that confidentiality would not be
maintained, if many millions of pages of FBI and other
investigatory law enforcement files would be subject to
compulsory disclosure at the behest of any person unless
the Government could prove to a court -- separately for
each paragraph of each document -- that disclosure
"would" cause a type of harm specified in the amendment
Our law enforcement agencies do not have, and could not
obtain, the large number of trained and knowledgeable
personnel that would be needed to make such a line-by-
line examination of information requests that sometimes
involve hundreds of thousands of documents, within the
time constraints added to current law by this bill.
Therefore, I propose that more flexible criteria
govern the responses to requests for particularly
lengthy investigatory records to mitigate the burden
which these amendments would otherwise impose, in
order not to dilute the primary responsiblities of
those law enforcement activities. 83/
Despite the Presidential veto and President Ford's message stating his rea-
sons for the veto, both Houses of Congress voted to override the veto and
80/ H.R. Rept. No. 1419, 92d Cong., 2d Sess. 8 (1972).
81/ The House passed H.R. 12471 on March 14, 1974 by a vote of 383-8.
82/ The Senate passed S. 2543 on May 30, 1974 by a vote of 64-17.
83/ Gerald R. Ford, Message Accompanying Veto of H.R. 12471 (November
18, 1974.)
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enact H.R. 12471 into law. The House vote was held on November 20, 1974 and
was 371-31. The Senate voted On November 21, 1974, 65-27. H.R. 12471 be-
came Public Law No. 93-502 on November 21, 1974 and became effective on
February 19, 1975.
The Freedom of Information Act 84/ is a mandatory disclosure statute
granting access to the public to final opinions and orders of Federal agen-
cies, agency policy statements and interpretations not published in the
Federal Register, and other government records including administrative
staff manuals and instructions to staff which affect a member of the public.
Agencies must:
1. Publish in the Federal Register organizational descrip-
tions and procedure for obtaining information; state-
ments concerning its procedures for decision-making;
rules of procedure; substantive rules of general ap-
plicability; amendments, revision or repeal of the
above. 85/
2. Make available to the public for inspection and copying
agency final opinions; statements of agency policy and
interpretations not published in the Federal Register;
administrative staff manuals and instructions to staff
that affect a member of the public; current indexes to
information required to be made available to the public
or published in the Federal Register. Identifying de-
tails may be deleted to prevent a "clearly unwarranted
invasion of personal privacy." 86/
84/
5 U.S.C.
5
552.
85/
5 U.S.C.
5
552(a)(1).
86/
5 U.S.C.
?
552(a)(2).
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are:
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3. Promulgate regulations setting forth a schedule of fees
for searches and/or duplication of information. 87/
4. For agencies having more than one member -- maintain and
make available for public inspection a record of the
final votes of each member in every agency proceeding. 88/
However, the Freedom of Information Act does not apply to records that
(1)(A) specifically authorized under criteria established by
ar..1 Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) related solely to the internal personnel rules and prac-
tices of an agency;
(3) specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establish-
es particular criteria for withholding or refers to particular
types of matters to be withheld;
(4) trade secrets and commercial or financial information ob-
tained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an
agency in litigation with the agency;
($) personnel and medical files and similar files the disclo-
sure of which would constitute a clearly unwarranted invasion
of personal privacy;
(7) investigatory records compiled for law enforcement pur-
poses, but only to the extent that the production of such records
would (A) interfere with enforcement proceedings, (B) deprive
a person of a right to a fair trial or an impartial adjudication,
(C) constitute an unwarranted invasion of personal privacy,
(D) disclose the identity of a confidential source and, in the
case of a record compiled by a criminal law enforcement au-
thority in the course of a criminal investigation, or by an agen-
cy conducting a lawful national security intelligence investiga-
tion, confidential information furnished only by the confidential
source, (E) disclose investigative techniques and procedures, or
(F) endanger the life or physical safety of law enforcement
personnel;
87/
5 U.S.C.
5
552(a)(4).
88/
5 U.S.C.
5
552(a)(5).
89/
5 U.S.C.
5
552(b).
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dition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of finan-
cial institutions; or
(9) geological and geophysical information and data, includ-
ing maps, concerning wells.
4-0
Exemption 7 provides a limited immunity from disclosure for law en-
forcement investigatory records. This exemption was narrowed by the 1974
MIA amendments and was one of the reasons let forth by President Ford for
his veto of the amendments. 90/ To be exempt from disclosure under exemp-
tion 7 records must be both "investigatory" and "compiled for law enforce-
ment purposes." In addition, disclosure of these records is not required
only to the extent that production of the records would:
(A) Interfere with enforcement proceedings;
(B) Deprive a person of a fair trial or an impartial ad-
judication;
(C) Constitute an unwarranted invasion of personal privacy;
(D) Disclose the identify of a confidential source or,
for law enforcement agencies, confidential information
furnished solely by a confidential source;
(E) Disclose investigative techniques and procedures;
(F) Endanger the life or physical safety of law enforcement
personnel.
It is important to note that prior to the 1974 amendments the Act per-
mitted withholding "investigatory files compiled for law enforcement pur-
poses except to the extent available by law to a party other than an agency."
The present exemption for law enforcement records, as amended in 1974, es-
sentially overrules the substantive provision of the original exemption
to the extent that an agency can no longer claim the exemption just by
showing that information is in an investigatory file. Rather, the agency
must now demonstrate that the disclosure of the particular "record" re-
quested will harm the government in one or more of the six areas listed
90/ See text accompanying note 83 supra.
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in the exemption. If disclosure of any segment of the "record" will not
result in such harm, that part must be segregated and released to the
requester.
Apparently, Exemption 7 as amended has caused difficulty for law en-
forcement agencies facing requests for disclosure of agency records. Cer-
tainly the additional administrative burden is not to be ignored. Law
enforcement agencies must examine requested records to determine whether
they are "investigatory" and "complied for law enforcement purposes."
Only if these two criteria are met are the records possibly exempt.
However, it must also be determined that disclosure of the records will
harm one of the six protected interests enumerated in the statute. To
once again quote from the statement made by Director Shea,
That second kind of adverse impact has been one of adminis-
trative burden and largely unfunded costs.. .the dollar
costs to the Department of Justice in FY 1977 was, at a
minimum, between thirteen and fourteen million dollars.
For the Federal Bureau of Investigation alone, the figure
for the year was in excess of ten million, six hundred
thousand dollars. My own judgment is that the correct
total, if we could recover all of our cost data, would be
in excess of fourteen million dollars. 91/
In addition to this increased administrative burden,
the Department
of Justice has found that Exemption 7 is not sufficiently broad or speci-
fic to protect all of the sensitive records which it maintains. Although
the identities of confidential sources and secret investigative techniques
and procedures are protected from disclosure by Exemption 7, two types
91/ Supra note 4 at 43.
?
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of information most commonly cited by law enforcement personnel as needing
protection, the Exemption does not specifically include in its coverage
law enforcement agents manuals and other sensitive administrative ma?
terials compiled by law enforcement agencies. In addition, it is not
clear that the identities of law enforcement personnel can be withheld
as an unwarranted invasion of privacy under exemption 7(C).
Unlike the Privacy Act, the Freedom of Information Act does not
specifically refer to records maintained by the Secret Service in con?
nection with its responsibility to protect the President. However, the
Department of Justice has taken the position that "law enforcement" as
used in the FOIA "includes not merely the detection and punishment of
law violation, but also its prevention." 92/ Therefore, records main?
tained by the Secret Service in connection with protecting the President
would appear to be included in the "law enforcement" records exemption.
However, the FOIA does not have a provision, similar to that previously
discussed contained in the Privacy Act, which would allow the Secret
Service to exempt entire files of records from mandatory disclosure
under the FOIA. Each record would have to be reviewed separately and
a determination made as to disclosure.
In conclusion, it seems that the provisions of the Freedom of In?
formation Act would require more disclosure of law enforcement records
than the provisions of the Privacy Act. Although identities of
92/ See A.G.'s 1974 FOI Amendments. Mem.
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confidential sources are protected as are secret investigative techniques
and procedures, other sensitive information might be required to be dis?
closed under the FOIA either because the exemption for law enforcement
records is too narrow or because the criteria for withholding informa?
tion contained therein are not sufficiently specific. However, it
should be noted that Congress was aware of the required balancing pro?
cess between the needs of law enforcement and the demands of privacy
when it debated and passed the amendments to the FOIA. Therefore
the FOIA as amended should be viewed as Congress' attempt, however
imperfect, to arrive at an acceptable balance between these two in?
terests.
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Effect of Privacy/FOI Acts on Commission Recommendations
The Warren Commission
The Privacy Act would not prevent transfer of information pertaining
to Presidential security from the F.B.I. or other Federal or State or lo-
cal agencies to the Secret Service. Such a transfer of information could
be accomplished by designating it as a "routine use" and publishing the
"routine use" in the Federal Register. 93/ Or, the Secret Service
could obtain specific records from other Federal agencies by requesting
them in writing from the head of the agency pursuant to the "law enforce-
ment records" exception. 94/ In addition, such a transfer could be ac-
complished if the desired information is contained in a system of records
which has been exempted from the Privacy Act provisions by the agency
maintaining the information. 95/ The Privacy Protection Study Commission
indicated in its Final Report to Congress 96/ that Criminal Law En-
forcement agencies have exempted 210 systems of records from the provisions
of the Privacy Act and that 545 other systems have been exempted by other
agencies because they contain law enforcement records. In addition, 72
Protective Services Records Systems have been exempted. 97/
93/ 5 U.S.C. ? 552a(b)(3).
94/ 5 U.S.C. ? 552a(b)(7).
95/ 5 U.S.C. ? 552a(j)(2), (k)(2).
96/ The Privacy Protection Study Commission, Personal Privacy in an In-
formation Society (1977).
97/ The Privacy Protection Study Commission, Appendix 4 to the Report of
the Privacy Protection Study Commission (July, 1977).
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The Freedom of Information Act has no provisions limiting disclosure
of records by one Federal agency to another.
Neither the Freedom of Information nor the Privacy Act would prohibit
the Secret Service from automating its investigatory data files as recom-
mended by the Warren Commission.
The Katzenbach Commission
The Katzenbach Commission recommended that a national law enforcement
directory be established which would record "an individual's arrests for
serious crimes" including the disposition and other contacts with the
criminal justice system related to those arrests. Access to this direc-
tory would be limited to criminal justice agencies. In addition, the
Commission recommended that State law enforcement agencies establish
similar directories, plus directories containing additional information
on the individuals such as education records, employment records and pro-
bation reports. The directories containing arrest information would be
limited to access by criminal justice agencies and the supplementary in-
formation would be limited to access by courts or corrections officers. 98/
Neither the Privacy Act nor the Freedom of Information Act would
apply to the activities of State agencies in establishing criminal justice
data files. In addition, neither act would prevent the establishment of
such directories by Federal criminal justice agencies. The Privacy Act
98/ See text accompanying notal f supra.
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would require that notification be published in the Federal Register if
such new systems of records are established. 99/ Presumably the di-
rectories would be maintained by Federal criminal justice agencies and
thus could be exempted from most provisions of the Privacy Act pursuant
to exemption (j). 100/ Also, disclosure of the information in the di-
rectories to other law enforcement agencies could be made as a "routine
use" or pursuant to the 8-7 exception. 101/ Although the Freedom of
Information Act would not effect establishment of the directories, it
might require disclosure of the information contained in the directories
if it did not fall within the parameters of the FOIA law enforcement
records exemption. 102/
The Katzenbach Commission also recommended that a National Criminal
Justice Statistics Center be established in the Department of Justice. 103/
This Center would compile statistical data on anonymous criminal offenders
and on the system response to crime. The Privacy Act would not apply to
such non-personally-identifiable records. The Freedom of Information Act,
however, would probably require disclosure of such information on request.
However, disclosure to interested persons and groups would seem to be one
of the purposes of compiling such information.
99/
5 U.S.C.
? 552a(e)(4).
100/
5 U.S.C.
S 552a(j)(2);
and see text accompanying note 50 supra.
101/
5 U.S.0 ?
552a(b)(3),
(b)(7).
102/
5 U.S.C.
? 552(b)(7).
103/ See text accompanying note 18 supra.
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Neither Act would prevent law enforcement agencies from improving their
collection and transmission of information, as recommended by the Katzenbach
Commission. 104/ And data on criminal offenders could be maintained by
Federal law enforcement agencies and disclosed to prosecutors, courts, and
correctional authorities and the system in which the data is contained may
be exempted pursuant to the general law enforcement exemption of the
Privacy Act. 105/ The information would have to meet the requirements
of the FOIA law enforcement records exemption in order to prevent disclo?
sure pursuant to the Freedom of Information Act. 106/
Neither Privacy nor FOIA would prevent Federal law enforcement agen?
cies from developing an index drawn from State and local criminal, justice
agencies. And, it would seem that a computerized, central organized crime
intelligence system could be maintained by the Department of Justice con?
sistent with the Privacy Act and be exempted pursuant to the general law
enforcement exemption of the Privacy Act. 107/ Once again, individual
records contained in these systems would have to be examined to determine
disclosure requirements under the Freedom of Information Act. 108/
Therefore, it would appear that all of the recommendations of the
Katzenbach Commission could be implemented without violating either the
104/ See text accompanying note 20 supra,.
105/
5 U.S.C.
S 552a(j)(2)(C).
106/
5 U.S.C.
?
552a(b)(7).
107/
5 U.S.C.
?
552a(j).
108/
Supra note
106.
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Privacy or the Freedom of Information Act. Disclosure requirements, es-
pecially under the Freedom of Information Act, would have to be determined
by an analysis of individual records.
The Kerner Commission
The Kerner Commission recommended that police departments develop in-
telligence units to gather, evaluate, analyze, and disseminate information
on potential as well as actual civil disorders. 109/ It seems that this
is the only recommendation made by the Kerner Commission relating to in-
formation gathering or maintenance. Since neither the Privacy Act nor
the Freedom of Information Act apply to other than Federal agencies,
these statutes would have no effect on activities of State and local
police departments in collecting or maintaining information on civil
disorders.
The Eisenhower Commission
The Eisenhower Commission recommended that Federal law enforcement
agencies devise methods and procedures for identifying "violence-prone in-
dividuals." Such methods and procedures, i.e., catalogues of common traits,
characteristics, etc. manifested by such individuals can be devised and in
fact are utilized by Federal law enforcement agencies. Records pertaining
to such methods and procedures, however, might be subject to disclosure
109/ See text accompanying note 26 supra.
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pursuant to the Freedom of Information Act if they would not meet the re-
quirements of the Act's law enforcement records exemption. 110/
Finally, the Eisenhower Commission recommended that a Federal fire-
arms center be established to "accumulate and store information on fire-
arms and owners received from state agencies." This information would
be available to both State and Federal law enforcement agencies. 111/
Politically, the establishment of such a center would be difficult.
However, neither the
ment. However, such
FOIA if it would not
Privacy Act nor FOIA
information might be
be deemed "a clearly
would prevent its establish-
subject to disclosure under
unwarranted invasion
of pri-
vacy" 112/ or to the particular individual to whom the record pertains
pursuant to the Privacy Act. 113/ Again, however, it would not appear
that such disclosure would prevent accomplishment of the goals which
establishment of the center would seem to be designed to attain.
110/ Supra note 106.
111/ See text accompanying note 32 supra.
112/ 5 U.S.C. ? 552(b)(6).
113/ 5 U.S.C. ? 552a(d).
Kathleen Per ins
Legislative Attorney
American Law Division
June 22, 1978
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,e
,
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WASHINGTON, D.C. 20540.
THE LIBRARY OF CONGRESS
Congressional Research Service
Mr. G. Robert Blakey
Select Committee on Assassinations
U.S. House of Representatives
HOB Annex 2
Washington, D.C. 20515
Dear Bob:
June 23, 1978
Enclosed is my final report responding to your request to the
American Law Division of the Library of Congress. The thread which.
ties the considerations of this report together, of course, is the
role of legislative alternatives in the interpretation of the
Constitution.
I would like to note at this point the temporary nature of any
report of this kind. In the six weeks since the text was completed,
several events have already begun-to alter its meaning. First, I
would like to call to your attention the recent Supreme Court case
of United States v. LaSalle National Bank, --U.S.-- 46 U.S.W.W.
4713 (No. 77-365, June 19, 1978). LaSalle now provides for an
"institutional good faith" test to be applied to enforcement of IRS
administrative summonses when there is any question of use of the
summons to acquire evidence for criminal investigations. This contrasts
with the text of the report (Chapter III, Section E, pages 88-90) noting
any valid use of the summons would permit enforcement even if criminal
prosecution was being contemplated: a potential alternative test.
Secondly, the Subcommittee on Government Information and Individual Rights
of the House Government Operations Committee held hearings on H.R. 10076
(Chapter II/, Section J. pages 131-134) on May 23 and 24. You may recall
this bill to embody the recommendations of the Privacy Protection
Study Commission. Thirdly, the Pennsylvania Supreme Court reaffirmed
its judgment in. Philadelphia Newspapers v. Jerome, 46 U.S.L.W. 2575
(April 28, 1978), finding that United States v. Cianfrani was not contrary.
These cases, and Gannett Co. v. De Pasquale, in which the Supreme Court
has granted certiorari, ask whether it is constitutional to exclude the
public and the press from pretrial hearings in order to avoid publicity
which would prejudice the defendant's right to an impartial jury.
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2
Chapter II, Section F, note Ill and accompanying text. I would not
be surprised if this letter becomes obsolete before it reaches you.
If I can be of any further assistance, please feel free to call
on me.
Sincere
7,
Leland E. Beck?
Consultant
American Law Division
Enclosure
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I. INTRODUCTION
TABLE OF CONTENT
1
II. THE FREE PRESS, FAIR TRIAL and SPEEDY TRIAL TRILEMMA 5
A. the facts in the Oswald Case 6
B. Potential for Recurrence 8
C. Freedom of the Press 9
D. Trial by an Impartial Jury 12
E. The Free Press -- Fair Trial Dilemma 14
F. Alternative Remedies 28
G. Development of the Law: National Standards 51
H. Speedy Trial - Introduction to the Trilemma 55
I. The Ultimate Conflict 62
J. Contemporary Legislative Proposals 65
K. Legislative Alternatives 66
L. Conclusion 70
TELT%) PARTY RECORDS 71
A. The Oswald Investigations 73
B. The Fourth Amendment: The Right to be Secure in One's
Papers 77
C. The Fifth Amendment Right Against Self-Incrimination 81
D. Attorney-Client Privilege: The Fifth Amendment 84
E. Access to Tax Records: The IRS as an Intra-Government
Third Party
F. Intra-Governmental Records 93
G. Private Records Required to be Maintained by
Statute or Regulation 99
86
iii
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H. Private Records
-2--
I. Trends in Third Party Record Law
J. Contemporary Legislative Proposals
K. Alternative Considerations
120
128
131
140
IV. THE EXCLUSIONARY RULE AND REMEDIES 143
A. The facts in the Oswald Case 145
B. The Exclusionary Rule 148
C. Scope of the Exclusionary Remedy 151
D. Limiting the Suppression Doctrine 167
E. Contemporary Legislative Proposals 169
F. Alternatives or Supplements to the Suppression
of Evidence 171
V. CONCLUSION 183
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I. INTRODUCTION
The assassination of President John F. Kennedy remains one of the
most traumatic experiences in recent history. The subsequent slaying of Lee
Harve Oswald foreclosed the legal determination of his guilt for this crime,
and, in al liklihood, altered the future development of the law. Because the
legal process was aborted, speculation as to the facts of the case has led to
the establishment of the House Select committee on Assassinations; continuing
speculation as to the controlling law, and the potential effects on our contem?
porary ability to understand the case, have led the Committee to request this
study.
Had Lee Harvey Oswald survived and gone to trial a number of
legal questions would necessarily arise -- perhaps most prominent among them:
Oswald's right to a fair trial before an impartial jury, thd identification
of Oswald with the murder weapon, and the admissability or suppression of
particular evidence. Speculation on these bare questions in the context of a
1963 Texas murder trial would be a futile exercise unless posed in the larger
context of the development of the law. The policy considerations which lead
us not to attempt to try a dead man inevitably lead to the same conclusion in
terms of analyzing the law; accuracy, fairness and justice are not guaranteed,
they are subserved and the results would be meaningless. Indeed, the develop?
ment of the law -- as well as the suconscious standards which lawyers apply --
has been significant in the intervening fifteen years. Thus even a speculation
of the meaning of transplanting the facts from a 1963 Texas murder trial to a
1978 Federal Presidential assassination case would provide limiteduseful insight.
This study seeks to do neither of these things.
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At the same time, the Committee's jurisdiction must be considered
in order for this study to be responsive to its needs. This jurisdictional
issue narrows the scope of potential issues to those claims of Federal rights
which might have existed in either time-frame. Much as the Warren Commission
recommended that the congress assert criminal jurisdiction over the assassina-
tion of the President, the Select Committee must specifically consider its legis-
lative alternatives. In doing so, the controlling consideration would not be
the state of the law in 1963, but the state of the law in 1978; thus significant
issues must be discussed which could have been raised. The main focus of this
study is on the recurring themes in the law which remain unresolved. Three
major areas of concern proide fertile ground for legislative action today.
The trilogy of concerns for a free press, a fair trial and a
speedy trial have become ever more apparent since the Kennedy assassination.
Critical analysis of whether Oswald could have been afforded a fair trial with-
in a reasonable period fo time without infringing on the press is a legal ques-
tion which has been asked in other contexts and cases many times. such a cri-
tical analysis; with all the benefit of hindsight; indicates that Oswald could
have received a fair trial by even contemporary standards; but; because of the
unique factual situation and the external pressures evident; probably would not
have. This is not to say that an initial trial would have been reversed if a
conviction were obtained; it is only to say that such a conviction probably
would not, stand in any other case. The issue of conflicting constitutional
rights has recurred many times since 1963 and a variety of options are avail-
able for congress to consider in making a constitutional interpretation.
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A second issue arises over the identification of Oswald with the
murder weapon. Much of the evidence to be presented at the trial would have
necessarily attempted this linkage through the use of records obtained from
third parties. In 1963 there would appear to have been little concern over
the use of third party records, but since that time the issue has come clearly
to the fore. While this problem can only be raised extrajurisdictionally, con-
temporary saliency in the privacy/investigative efficiency debate demands this
attention. In short, the issue has developed almost entirely in the past fif-
teen years, but today demands commentary from recurrence.
Thirdly, the question of admissability or exclusion of evidence
raises questions of both Texas and Federal law; yet only Federal law will be
analyzed in the context of jurisdictional limitations. Concern here is limited
to those exclusions which would have based on the Constitution or would have
derived from it. Unlike the first two issues -- both concerning controls and
remedies -- the issue of exclusion focuses on the remedy as the problem; the
Exclusionary Rule and its corrollaries. In the Oswald case the demands for
exclusion of evidence on Constitutional, statutory or supervisory grounds would
necessarily have been weighted in the balance with the political reactions which
would have attended their. exclusion. Traditionally, exclusion of evidence is
-
wholly witInr
ielvince of the court, but the iaternatives or utility of this
remedy for misconduct has been determined by all branches of the Federl govern-
ment. Thus, this chapter deals more extensively with the alternatives to ex-
clusion which Congress might then with the substance of the remedy's.
In each case - free press/fair trial, third party records and
evidentiary exclusion -- we are dealing with the continuing rebalancing of
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Constitutional priorities. The relative weights to be given to individualized
privacy and law enforcement efficiency have been rebalanced by each succeeding
stage of history depending on social and political needs. In recent years
this change has been most apparent in the changing doctrinal thought of the
Supreme Court. And in each case, it is necessary to review these issues from
the viewpoint of institutional decision-making, as well as from that of the
disinterested researcher. Ultimately none of these questions can be considered
or reconsidered as merely legislation, judicial interpretation or executive
practice; each represents the process of the Constitutional being construed.
Accordingly, the chapters which follow are premised factually
on the Oswald trial which never was and evelop the law as it exists today.
Ultimately the purpose of this study is to provide a basis for Congress to
consider its Constitutional mandate of legislation. In that light, it analyzes
contemporary alternatives and legislative proposals but does not make specific
legislative recommendations.
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II. THE FREE PRESS, FAIR TRIAL AND
SPEEDY TRIAL TRILEMMA
The concepts of a free press and a fair trial are firmly en-
grained in the American heritage and are more often complementary than
contradictory. Occasionally, when a particular criminal act is es-
pecially shocking to the public conscience, news coverage of the inves-
tigation, arrest of a suspect and pretrial procedures impinges on the
defendant's right to a fair trial by exposing potential jurors to pre-
judicial; but ultimately inadmissable; information. Traditionally the
courts have sequestered juries to minimize potential prejudice during
the trial, changed the venue of trial to a place which has not been af-
fected by pretrial publicity; or delayed trial until the effect of the
publicity has subsided. The last of these traditional remedies also
raises the potential problem of a defendant's right to a speedy trial.
The trial of Lee Harvey Oswald; had it occurred, would have
brought these values of our legal system into a distinctly contradic-
tory trilemma. This section of the report will review the bases for
the trilemma in the Oswald case; the prospects for recurrence of the
trilemma; the free press and fair trial historical backgrounds; the
law which would have controlled the Oswald case; the development of
that law since 1963 and the interposition of speedy trial considera-
tions and law.
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A. The Facts in the Oswald Case
The fact that Lee Harvey Oswald was a possible suspect in the
assassination of President Kennedy was first reported on television less
than three hours after the assassination and only one and one-half hours af-
i/
ter Oswald's arrest. During the course of the next two days, Oswald tra-
versed the twenty feet between the homicide division offices and the eleva-
tor to the jail, through a crowd of reporters and still, film and video-
television cameras, at least fifteen times. When Oswald appeared, he was
the center of the media's attention and he sometimes answered their ques-
tions. After demands were made by the press, the District Attorney and the
Chief of Police presented Oswald in a lineup room at about midnight on the
22nd. Despite instructions not to ask questions of Oswald at this press
conference; Oswald was asked whether he killed President Kennedy and he re-
sponded that the first he had heard of it was from the newspaper reporters
in the third floor corridor of police headquarters. At this time Oswald had
not been arraigned for the Kennedy assassination. The District Attorney and
the Chief of Police were attempting to be cooperative with the press at this
time and had allowed the media access to the third floor corridor and had
arranged the press conference. Newspaper reports at the time indicate that
much of the evidence developed against Oswald was given to the media as soon
as it was available; whether verified or untested. Later developments proved
1/ Warren Commission Report (hereinafter cited as "WCR") 48, 201. President
Kennedy was shot at 12:30; Oswald was arrested for slaying Patrolman Tippit
at 1:55; and the first television report that Oswald was suspected of the
Kennedy assassination was broadcast at 3:26.
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significant inaccuracies in the release and reporting of this information.
On at least a dozen different occasions the Chief of Police held informal
press conferences in the police headquarters and disclosed information
which was either inaccurate or premature, including the letter ordering
the rifle, handwriting exemplars, photographs and FBI ballistics tests.
Many of these discussions were televised live by the national networks.
The final element of publicity was the live televised coverage of the
J/
aborted transfer in which Oswald was shot by Jack Ruby.
2/
Much of the publicity in this case was live television cov-
erage supplemented by one to three hundred newspaper reporters represent-
ing local and national papers, the wire services and the foreign press.
All three commercial television networks carried the midnight press con-
ference and the abortive transfer live; and supplemented press interviews
with news analysis by feature reporters and anchormen.
/ Id; at 231 - 243.
3/ ia: at 200 - 208.
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B. Potential for Recurrence
No other single event has received the attention of the news
media in the way the assassination of President Kennedy was covered. None-
theless, individual criminal cases have received such local, and occas-
ionally national, attention as to make the questions of a free press and
fair trial inescapable for any investigator of the Kennedy assassintion
A catalogue of violent crimes and unseemly cases which attract
the attention of the press to this extent would necessarily include the
murder of Sharon Tate and the Manson family trial; the slaying of Jack
Yablonski and his family and the trial of UMW rival Tony Boyle; the My
Lai incident and the trial of William Calley: the Chicago Seven Trial;
the Watergate cases; the takeover of buildings in the nation's capital
by the Hanafi Muslims; the Davis case; and the trials of major organized
crime and rackeeterring figures; state governors; state Supreme Court
justices; mayors of major cities and other high officials in the state
and federal governments. In any case of major proportion the potential
for conflict between the rights of a free press and of a defendant to
a fair trial is present. While a number of factors may shape the dis-
position of the press to cover a particular trial or the investigation
in a particular case, the reporting of the facts as they are discovered
or as evidence to a jury is in a delicate balance.
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C. Freedom of the Press
The concept of freedom of the press has taken many forms and
has been opposed in as many ways. The first major American step to-
ward a free press was in the political nature and the jury's refusal
4/
to convict in the trial of John Peter Zenger in 1735:- Introduction
the freedom of the press into the Constitution was largely a response
to the English tradition of licensing printers and controlling the
content of their publications. The final language; that "Congress
shall make no law . . . abridging the freedom of speech; or of the
press, ..."; was a compromise struck in conference between the
5/
House and Senate in 1789:- The main elements of the law which has de-
veloped under the pertinent clause of the First Amendment that are
relevant here are prior restraint and contempt by publication.
The seminal case on prior restraint is Neai. v. Minnesota.
In accordance with a Minnesota law a county attorney had filed suit
to declare a newspaper published by Near a nuisance because of its
inflammatory and potentially libelous contents. A local court agreed
and enjoined further publication. The Supreme Court noted at length
that the ability to enjoin publication of a particular matter and
permit a newspaper or other periodical to recommence publication
only without the offending matter under pain of contempt was tantamount
to censorship. The Court held that such a prior restraint on publi-
4/ L. Levy. Freedom of the Press: from Zenger to Jeffers (1966).
5/ Constitution of the United States; Amendment I (1789).
6/ 283 U.S. 697 (1931).
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these guarantees are relatively limited in light of the more per-
vasive controls on the press - including the limitations on civil
9/ .
and group libel; criminal sanctions for publication of classified.
10/ 11/
information and limitations on access to information -- the in-
terplay with the right to a fair trial is relatively circumscribed
by these two areas.
9/ Beauharnals v. Illinois; 343 U.S. 250 (1952).
10/ New York Times Co. v. United States; 403 U.S. 713 (1971).
11/ Pell v. Procunier; 417 U.S,_817;_(l974);_Saxbe y. Washington
73st 7:177 41i U.S. 843 (1974); Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975).
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D. Trial by an Impartial Jury
The history of a jury trial has been marked by an ever in-
creasing sense of fairness. The jury has developed from a board of
investigators who familiarized themselves with the facts of a case
through contact with the parties and the public, to a board of de-
cisions-makers which is insulated from the parties and the public ex-
cept under the discipline of a court trial. The concept of an impar-
tial jury is founded in the Sixth Amendment; which is applicable to
the States as well as the Federal Government; and the equal protec-
12/.
tion and due process clauses of the Fourteenth Amendment.
The first element of an impartial jury is that it represent
a cross-section of the community in which the crime was committed
ij/
and the trial held. This concept has lead in recent years to the
challenges to jury composition based on race, sex; employment, selec-
tion technique and other criteria. The first element is founded on
the concept of equal protection of the laws. The second element is
that the jury members not be biased against the defendant and be will-
ing to reach a verdict on the basis of the evidence presented at the
trial and the law as instructed by the judge. This second element opens
12/ The Sixth Amendment contains the language "impartial Jury" and
this is construed under the Fourteenth Amendment's equal protection
clause to prohOit:4xc1usion from juries on the basis of race;_
Strauder v. West Virginia 100 U.S. 303 (1880); or ancestry; Hernan-
dez v. Texas, 347 U.S. 475 (1954). The due process clause has been
used to make exclusion of less defined classes prohibited.
13/ Bro;U v. Ajjet, 344 U.S. 443 (1953); Williams v. Florida; 399 U.S.
78 (1970).
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the door to a wide variety of often subtle influences such as a prejudiced
bailiff, or being placed in the care of sheriff's deputies who are pro-
14/
secuting witnesses, to the threat of mob violence and actual jury
tampering.
The present analysis is limited to the influence exerted by
the normal operation of the institution of a free press. In this
area, a particular juror may become biased by a news article or story
either before or during trial and this may render that juror incapable
of reaching a verdict solely on the basis of the evidence presented at
trial. Perhaps the most common improper influence is the publication
of details of a pretrial hearing on a motion to suppress evidence
which has been unlawfully acquired; the publication in itself may de-
feat the purpose of suppression.
14/ Parici v. di.;.aa.L.-c, 385 U.S. 363 (1966); Turner v. Louisiana; 379
U.S. 485 (1965).
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E. The Free Press -- Fair Trial Dilemma
The principal question in the present analysis is when does
pretrial publicity become so pervasive that it is impossible to secure
a fair and unbiased jury. The question itself involves a wide variety
of subordinate questions -- especially as to the remedy. The state of
this question in late 1963 differs significantly from contemporary
standards and the question of whether Lee Harvey Oswald could receive
a fair trial at that time or today may present very different answers.
The Kennedy assassination in 1963 presents a significant landmark in
the development of the free press -- fair trial dilemma for the ques?
tions it does not answer.
It should be noted that in 1963 great emphasis was placed
on the form of a jury -- that it be composed by twelve men; not more
of less; that it be supervised by a competent judge instructing as to
the law and advising as to the facts; that the jury trial be a pri?
vilege of the accused and not a jurisdictional requirement; and could
be waived by the accused with the approval of the government and the
ij/
judged; and that its verdict must be unanimous. Since 1963 a number
of these formalities have been changed and some have been reaffirmed.
The more analytic question of pretrial publicity and bias has become
much more sophisticated.
Ai ; v. United States; 333 U.S. 740 (1948); Rassmussen v. Unit-ea
States, 197 U.S. 518 (1905).
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While the conflict of principles is of a Constitutional di?
mension, it lay dormant for many years. Only the bare rudiments of
the concepts were sketched because the real conflict did not occur
until the technology of mass communication reached a sophistication
that allowed a wide number of people to have instantaneous knowledge
of an occurence. In this way the deliberation of the criminal trial
was outpaced. The assassination of President Kennedy and the cov?
erage of Oswald's detention and death have been regarded as a mark of
the immaturity of the electronic media at that time; nationwide tele?
vision was both new and undisciplined and its effects were unknown.
1. Pre-1963 Law
In the years just preceding the Kennedy assassination, the
Supreme Court had occasion to decide a limited number of cases deal?
ing with pretrial publicity. Darcy v. Handy reiterated the con?
temporary wisdom of 1956 that "If the mere opportunity for prejudice
or corruption is to raise a presumption that they exist, it will be
hard to maintain jury trial under the conditions of the present
16/
day," and held "[i]t is not asking too much that the burden of show?
ing essential unfairness be sustained by him who claims such injus?
tice and seeks to have the result set aside, and that it be sustained
16/ 351 U. S. 454, 462 (19156) citing Holmes J., in Holt v. United
States, 218 U.S. 245, 251 (1910).
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17/
not as a matter of speculation but as a demonstrated reality." The
Court noted that the defendant had neither requested a change of venue
or a continuance, nor exhausted his peremptory challenges to jurors,
and therefor had failed to insure his claim. The assertion of prejud-
icial publicity was based on the trial of a co-defendant which had
18/
immediately preceded the defendant's and the newspaper reporting of it.
In ii.;7in v. bi);A; the Court discussed the rule that while a
juror may have a preconceived notion about the innocence or guilt of
the accused it is sufficient that the juror can set aside his opinion
19/
and render a verdict solely on the evidence presented in court. The
test, as stated in Reynolds v. United States; was "whether the nature
and strength of the opinion formed are such as raise the presumption
17/ Id, quoting Adams v. United States ex rel. McCann 317 U.S. 269, 281
(1942).
18/ Id. at 462 - 464. "[The Federal District_Court] has found that
counsel for petitioner conducted a thorough voir dire examination. In
all; 49 persons were challenged for cause or excused -- 14 for fixed
opinion or bias. Petitioner used 10 of the 20 peremptory challenges
allowed him; the Commonwealth only eight." Id. at 463 - 464. A peremp-
tory challenge is one which requires no explanation and the juror is
excused for any reason which counsel may determine in his own mind.
Otherwise jurors are excused only for cause.
19/ 366 U.S. 717; 722-23 (1961).
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j.0/
of partiality." In Irvin, newspaper headlines and stories carried
accounts of line-up identifications, lie detector tests, previous crimes
committed by Irvin while a juvenile and as an adult, his refusal to
confess and, finally his confession to police and offer to plead guilty
in exchange for a 99 year sentence and the prosecutor's refusal and de-
termination to secure the death penalty. A panel of 430 persons were
seated for questioning as to their qualifications to be jurors, known
as voir dire, and over 90% expressed an opinion as to Irvin's
guilt. Of
the jury panel that eventually heard the case, ten were never asked if
they had a preconceived notion of the defendant's guilt. The Court re-
versed the conviction because of the trial court's refusal to grant a
second change of venue. The relevant state statute permitted only one
21/
change and only to an adjacent county.
In Beck v. Washington the Court affirmed the conviction of
a well known labor leader for embezzlement over his allegations that
both the grand and petit (trial) juries were biased by adverse news
22/
reporting. Much of the complained of publicity was not related to
the criminal proceedings and examination of the record led the Court
20/ 98 U.S.
123 U.S. 131
Holt, supra,
21/ 366 U.S
22/ 369 U.S
145, 156 (1878). See, also, Spies v. Illinois
(1887); Lisenba v. California, 314 U.S. 219 (1941).
note 16.
. at 726.
. 541 (1962).
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to believe that the impartiality of each juror "exceeded the minimum
standards" set by the Court in earlier cases and Irvin. To the conten?
tion that the judge should have admonished the juries on disregarding
adverse publicity, the Court replied that, even so, due process was
not presumed to be violated without a showing on his part of actual
bias.
. .....
The Court reversed the conviction in Rideau v. Louisiana
because a change of venue had been denied after the local community
2j/
had been exposed to a filmed confession. In Rideau the filmed con?
fession was televised on three consecutive days and trial commenced
24/
some two months later. The dissenters make significant the lack of
a nexus stated between the publicity and the trial; and the case now
stands for the proposition that a point is reached when the adverse
publicity becomes so pervasive that a link of causality will be pre?
sumed. It is clear that counsel was required to move for the change
of venue and exhaust his challenges to the jury to preserve the pre?
judicial publicity issue; which then becomes one of the state of mind
of the jurors in light of the amount of publicity. In kia;:x.1 the Court
presumed for the first time that the jurors could not be unbiased. The
Court did not require a showing of actual prejudice or a demonstration
of the nexus between the televised confession and the trial because
the probability was so high as to be presumed.
23/ 373 U.S. 723 (1963).
24/ The Rideau case must also be considered on the basis of involun?
tary confession as well as pretrial publicity.
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2. Law of the Case
Whether Lee Harvey Oswald could have been tried in Dallas
after the extensive
a mixed question of
State of Texas, the
extent after
public exposure of November 22nd through 24th is
law and fact. As the case would develop in the
number of peremptory challenges, and, to a limited
the change of venue would be governed by Texas law.
The question of continuance would also have been raised and would be
subject to the judge's discretion. It seems reasonable to assume that
with a significant continuance, and appropriate change of venue and a
rigorous voir dire examination, prejudicial pretrial publicity could
have been mitigated as a Constitutional objection to a fair trial and
a fair trial given. This does assume, however, that Dallas authori-
ties- ceased making significant contributions to the adverse publicity.
Whether the exposure of Oswald to the press in the corridor,
at the line-up room and in the transfer process raised the probability
of bias to a presumption of bias is an entirely speculative question;
the legal framework is insufficient for analysis. However, speculating
that it was possible to provide Oswald with an unbiased jury does not
infer that it was probable.
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The Warren Commission expressed .its own misgivings about the
25/
capacity for Oswald to have a fair trial.
"A fundamental objection to the news policy
pursued by the Dallas police however, is the extent
to which it endangered Oswald's constitutional right
to a trial by an impartial jury. Because of the na-
ture of the crime, the widespread attention which it
necessarily received; and the intense public feel-
ings which it aroused; it would have been a most dif-
ficult task to select an unprejudiced jury, either
in Dallas or elsewhere. But the difficulty was
markedly increased by the divulgence of the specific
items of evidence which the police linked Oswald to
the two killings. The disclosure of evidence en-
couraged the public; from which a jury would unti-
mately be impaneled, to prejudge the very questions
that would be raised at trial.
"The disclosure of evidence was seriously
aggravated by statements of numerous responsible of-
ficial that they were certain of Oswald's guilt. Cap-
tain Fritz said that the case against Oswald was
"cinched." Curry reported on Saturday that "we are
sure of our case." Curry announced that he considered
Oswald sane; and Wade told the public that he would
ask for the death penalty." 26/
The Warren Commission made no conclusion as the ability of the State
of Texas to give the fair trial before an impartial jury that was man-
dated.
25/ It is impossible to speculate to the extent of continued publicity
after Oswald was shot; had he survived. The Warren Commission was founded
by Executive Order 11130 on November 29; 1963; 28 Fed. Reg. 12789; and
its creation; in light of a prospective trial of Oswald is dubious. Had
the Commission been created notwithstanding an Oswald trial pending; and
had conducted itself in the manner in which it did in fact, the Commis-
sion would not have been a source of prejudicial publicity.
26/ WCR 238-239. The American Bar Association and the local bar con-
curred. 'See; Warren Commission Exhibits 2183; 2184.
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Most poignant of the problems of a fair trial before an im-
partial jury in Texas in 1963 was the case of Billie Sol Estes.
Estes, a much publicized financier, was tried and convicted of swindl-
ing in 1962, and the trial itself was of notoriety: initially the case
was transferred some 500 miles to avoid undue publicity and secure an
impartial jury. Defendant's counsel moved to exclude all cameras from
the courtroom during trial, a hearing was held on the motion, and the
motion was denied. During the two day hearing, the procedings were
televised live locally. Subsequently the judge became more restrictive
and by the time of trial, all cameras were relegated to the rear of the
courtroom and television cameras were restricted to a booth. Only the
prosecutor's opening remarks to the jury and his summation were tele-
vised live, although a complete silent record was made for use as a
backdrop for reporting of the trial on evening news programs. Defense
counsel maintained throughout that the publicity was prejudicial to
his client and continued to object.
The Texas Court of Criminal Appeals affirmed Estes conviction
on January 15, 1964, over appellate contentions that he had been
27/
denied a fair trial because of extensive pretrial and trial publicity.
Given the proximity with which this appellate ruling would have pre-
ceded Oswald's trial, and the relatively greater notOriety which Oswald
27/ Unreported. See Appendix A, Petition for Certiorari, Estes v. Texas
(U.S.) No. 64- 256. While the details of the decision may not be of legal
precedential value, it is obvious that the affirmance of such a notorious
Trial and conviction would have been widely announced by the same press that
covered the trial.
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associated with him, it seems reasonable to conclude that the Estes
trial would have set the standards for publicity in the Oswald case.
With the Texas
ard of law, it
Court of Criminal Appeals ruling as the dominant stand- ,
is possible that Oswald, like Estes, would petition the
Supreme Court for Certiorari on this ground.
3. Development of the Law Since 1963
In Estes v. Texas the Supreme Court held that the televising
of pretrial procedings, and exposing the community from which the po-
tential jury would be selected to those
ity that prejudice to the accused would
based on publicity before the change of
hearings, involved a probabil-
28/
result. This holding was not
venue, but solely on the basis
of publicity of pretrial and trial procedings after the change of venue.
Accordingly, the Court applied the rule from Rideau that, where such a
probability exists, isolatable prejudice need not be proven but will be
presumed, and the trial be deemed lacking in due process. Under the
same reasoning, the potential (assumed) Oswald conviction would be re-
versible on appeal -- if not under the proven prejudice test in
then the presumed prejudice in Rideau and the misguiding precedent in
. 29/
the Texas decision of Estes.
28/ 381 U.S. 532; 542 - 544 (1965)
29/ The prospects of a retrial without the prejudicial effects of pub-
licity present vexing problems. Determining at what point the former
trial was prejudiced is one matter of speculation, but an attempt to de-
termine the time frame for a Supreme Court decision, assuming that it
would follow Estes, and that its pendency would not alter the result in
Estes, becomes quite another matter of speculation. Thi. paper does not
seek to devolve on the mysticism necessary to conclude Oswald's legal
guilt but merely to examine the constitutional problems attendant a po-
tential trial. This speculation is, therefore, respectfully declined.
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Since Estes there have been significant developments in the
free press - fair trial dilemma which lead to a sophisticated practice
at the present time, but.still without a definite solution. Sheppard
30/
v. Maxwell combined many of the factors of Irvin and Estes. Sheppard
was convicted of murder in 1954 and his petition for certiorari was
denied in 1956. On a habeas corpus petition a decade later, however,
the Court noted that unlike the Estes jury, the Sheppard jury was not
sequestered and was subject to massive newspaper, radio and television
coverage when not in the courtroom; much like Irvin only without even
a formal change of venue. "The press coverage of the Estes trial was
not nearly as massive and pervasive as the attention given by the Cleve-
land [Ohio] newspapers and broadcasting stations to Sheppard's prosecu-
31/
tion."-- In the Sheppard case, the coroner's inquest had been broad-
cast and numerous editorial comments urged the prosecution of Dr. Shep-
pard. While it would appear, from the cases, that the approach of the
news media had become more subtle in the eight years between the Shep-
pard and Estes prosecutions, the effects on the jury which would be
drawn from the exposed populace were becoming a greater concern. The
Court took the posture in. Sheppard that reversals were merely correc-
tive and that prophylactic measures must be taken:
"The courts must take such steps by rule and
regulation that will protect their processes
30/ 384 U.S. 333 (1966).
31/ Id. at 353 - 354.
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from prejudicial outside interferences. Nei-
ther prosecutors, counsel for the defense,
the accused, witnesses, court staff, nor en-
forcement officers should be permitted to
frustrate its function. Collaboration between.
counsel and the press as to infoimation af-
fecting the fairness of a criminal trial is
not only subject to regulation, but is highly
censurable and worthy of disciplinary mea-
sures." 32/
More recently the Court has struck down a Wisconsin statute
which, as interpreted by the Wisconsin Supreme Court, prohibited a
change of venue in misdemeanor cases. In Groppi v. Wisconsin the Court
held that a statute which removes venue as an alternative relief is
constitutionally infirm when a defendant must move a change of venue
33/
in order to secure an impartial jury. The statute in Groppi applied
to the granting of a motion for change of venue in felony cases, but
as interpreted, prohibited a change of venue in misdemeanor cases and
was thus akin to the operative results of the statute in controversy
in Irvin.
The most recent case on the free press - fair trial dilema
to receive the plenary attention of the Court was Nebraska Press Asso-
.34/
ciation v. Stuart. Judge Stuart had entered an order in a murder case
before his court restraining the press from reporting a variety of
subjects because there was "a clear and present danger that pretrial
........
321 384 U.S. at 363.
33/ 400 U.S. 505 (1971).
34/ 427 U.S. 539 (1976). In the interim preceding Stuart the Court
had reaffirmed the right.of.a.free.press in the Petagon Papers case,
New York Times. Co. v. United States, 403 U.S. 713 (1971). See also;
the in chambers opinion of Mr. Justice Powell as Circuit Justice in
Times Picayne Publishing Corp. V. Schulingkamp, 419 U.S. 1301 (1974).
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35/
publicity could impinge upon the defendant's right to a fair trial."
The Nebraska Supreme Court balanced the presumption of the constitu-
tional-invalidity of prior restraint against the defendant's consti-
tutional right of a fair trial and modified the order by narrowing its
36/
restraints. Thus, the frontal question in Stuart was not merely the
prejudicial publicity involved, but whether the means utilized to pro-
tect the defendant's right to a fair trial were barred by the right to
a free press. Stuart was the first case in which the Court necessarily
focused on the remedies to the constitutional dilemma, and not merely
whether a sufficient dilemma existed in the facts to mandate reversal
of a conviction.
The County Court order, which, as modified, was the subject of
the Supreme Court's attention, prohibited release or publication of evi-
dence or proceedings by all parties in the case, attorneys, court per-
sonnell, public officials, witnesses and "any other person present in
37/
Court." The appeals of this order was prosecuted by the Nebraska Press
35/ 427 U.S. at 542, quoting Judge Stuart's finding.
36/ State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). The Nebraska
Supreme Court also balanced the right to a speedy trial under the more re-
strictive Nebraska statute (requiring commencement of trial within six
months of arrest), which will be discussed infra, notes 151-152.
37/ 427 U.S. at 576. The Tact that the order lapsed by its own terms
when a jury was impaneled and sequestered, and the means by which jurisdic-
tion over the press were obtained, are beyond the scope of the present in-
quiry.
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Association representing the members of the press who were present in
court when the order was issued. No attorney or officer of the court or
their subordinates appealed and the issue was therefore strictly limited
38/
to the right to a free press. The Court found the record lacking of
analysis of the traditional lesser remedies -- change of venue, postpone-
ment, rigorous voir dire emphatic and clear instructions to the jury
and sequestration -- and a misunderstanding of the authority for closed
39/
pretrial hearings. Thus, the "heavy burden imposed as a condition to
securing a prior restraint was not met" and the Nebraska Supreme Court's
40/
affirmance and modification were reversed.
A recent case, which received less than plenary review by
the Court, further delineates the scope of potential remedies. The
Court described Philadelphia Newspapers, Inc. v. Jerome in the follow-
ing terms:
"The proceedings below were brought to gain
access by the press and public to pretrial sup-
pression hearings in three separate state crim-
inal proceedings. Access was denied and the
trial judge closed all pretrial hearings and
sealed and impounded all papers, documents, and
records filed in the cases. The judge also pro-
hibited the parties, their attorneys, public of-
ficials, and certain others; from disseminating
information concerning the hearings." 41/
38/ The question of "gagging" lawyers and their clients is discussed in-
fra, at notes 74-103, and accompanying text.
39/ 427 U.S. at 563 - 564, 568.
40/ 427 U.S. at 570. Simmant's conviction was not under consideration in
this case and the decision did not affect it.
41/ --U.S.-- , 46 U.S.L.W. 3434 (No. 77-309, January 9, 1978).
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On an insufficient record, however, the Court remanded the case for fur?
ther clarifying proceedings. No indication was given as to the merits of
the order, although it may be speculated that the order does not contain
42/
constitutional infirmities.
42/ The case was vacated and remanded because the record did not indi?
cate whether the Pennsylvania Supreme Court was basing its decision on
the Federal Constitution or independent state grounds. If the Pennsyl?
vania Supreme Court's decision was based on independent state grounds
(i.e. the rule permitting the hearings to be closed), the United States
Supreme Court would lack jurisdiction to review the decision unless the
state ground were unconstitutional. 28 U.S.C. 1257 (1970). The dis?
sent focused on this particular jurisdictional issue -- not the merits.
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F. Alternative Remedies
The use of the various remedies to mitigate prejudicial pretrial
and trial publicity is often within the discretion of the trial judge.
The standards--to the' extent that standards exist--are also so nebulous that
appellate tribunals often must assert their own interpretation of the
facts from the trial record. The lower courts have dealt with the problems
of a free press and fair trial dilemma on an ever increasing scale and
these decisions provide a complicated, and often unclear, value structure
within the Supreme Court's basic framework. The five cognizable areas
of actions which are remedial and preventative are (1) change of venue,
(2) continuance or postponement of trial; (3) VOir dire, (4) sequestration
of the jury, and (5) retraints on the press and parties.
1. Change of Venue
Change of venue has been a traditional remedy for insuring a fair
trial despite prejudicial publicity. As has already been discussed, in
Sheppard and Rideau the change of venue was necessary and ignored; in ii;zin
and Groppi the limitations on change of venue were struck down as uncon-
stitutional; and in ESiei the change of venue was ineffective. The phy-
sical act of a change in venue usually requires some delay or continuance,
but for the present that delay will be ignored. As this remedy has been
the most common; is discretionary and relatively simple and unchallenged
unless denied; the intricacies of the practice need not be explored. The
Federal Rules of Criminal Procedures provides for change of venue on motion of
43/
the defendant if the court is satisfied that he cannot receive a fair trial
43/ F. R. Crim. P 21(a).
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44/
and this decision is not reviewable except for an abuse of discretion.
Despite the commonality of the motion there are easily overlooked prob-
45/
lems in changes of venue including jury of the vicinage, conflict with
46/ 47/
Other rights and convenience in the administration of justice.
2. Continuance
Continuing a case or postponing trial until pre-trial publicity
has dissipated is equally, if not more, common. Obviously the length
of a continuance to mitigate pre-trial publicity will depend on the
44/ Silverthorne v. United States, 400 F. 2d 627 (9th Cir.2 1968)
v. United States, 400 F. 2d 449 (5th Cir., 1968) cert denied; 393
1068 (1969), 396 U.S. 890(1969); Adjmi v. United States, 346 F.
(1964). Cf Mastrian v. McManus, 554 F. 2d 813 (8th Cir., 1977),
denied 97 S. Ct. 2985 (0777--
; Bostick
U.S.
1654
45/ Const. of the United States; Art. III; Sec. 2; Cl. 3. Apparently
the conflict between the right to a jury of citizens of the locality and
the right to an impartial jury has never been squarely raised. Of
course, if the defendant must make a choice among rights; undoubtedly
he would choose the impartial rather than local jury. The question
is whether this conflict focuses a premium on maintaining an unbiased
community from which an impartial and local jury can be impaneled.
46/ In Uciiia'tate v. Bryant; 153 U.S. App. D.C. 72; 471 F. 2d
1040 (1973) cert. denied 409 U.S. 1112 (1973); the defendant was
represented by counsel from the Legal Aid Agency who was termed "in-
valuable" because of special competency with the accused's only
defense. Pretrial publicity mandated a change of venue to another
district; but the authorization for the legal aid agency prohibited
its attorneys from "follow[ing] the case outside the District."
Situations such as this could raise; although it was here avoided;
unseemly conflicts between the right to effective assistance of coun-
sel and an impartial jury.
47/ In U1 v. Addonizio; 451 F. 2d 49 (3rd Cir; 1972); the
trial of a former Mayor of Newark was transferred to Trenton to avoid
the effects of pretrial publicity and then transferred back to Newark
for convenience in the administration of justice. F.R. Crim P. 21(a),
21(b).
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extent of that publicity. In some cases two months may be sufficient;
48/
in others two years may not. Much of the discussion of continuance is
49/
reserved for the counterdiscussion of the right to a speedy trial,
but it is most common that continuance and change of venue are used singly
50/
or together in most cases with pretrial publicity problems.
3. Voir Dire Examination and Jury Polls
A third alternative goes to the heart of determining prejudice
or bias in a juror due to pretrial publicity--voir dire. Initially, voir
dire is designed to determine the qualifications of a person to sit as a
juror, but it is also a.process for eliciting information which is more
specific than general qualifications on which challenges for cause and
peremptory challenges can be based. Under the Federal Rules the conduct
of voir dire by the judge or by counsel is a matter of the judge's
-5i/
discretion.
_ .
48/ Two months was insufficient in R.ideau, but was not in MeStiien; two,
years was sufficient in the case of Welch v. United States, 371 F. 2d
287 (1966) cert. denied U.S. 385 U.S. 957 (1968) (Oklahoma Supreme Court
Justice convicted of income tax fraud); but would it have been sufficient
in the Oswald case?
49/ See; Infra, notes 143-154; and accompanying text. The commonness of
continuance leads to this abbreviated discussion; indeed, in many
jurisdictions; unopposed motions for continuance may be granted by the
Clerk of Court. This, in'turn; has lead to concern 9ver.ttle,qpeed at
which_the,judicial.process operates. See, e.g., United States v.
Silvertflorne; supra, note 44; United States v. Jones; 542 F2d 186.. ..
(Cert. denied, 401 U.S. 945 (194).(general1y); United States v. Bloom,
58 F.2d 704 (5th Cir.,. 1976), cert. denied, . U.S. (1977)
(lawyers schedule); United States v. IrE5c-I57-U7K-App. D.C. 152, 482
F.2d 741 (1973) (negligence and crowded docket).
50/ See Add;',Iiiii); supra; note 47; Mastrian; supra; note 44; and Jones,
supra,note 49.
51/ F. R. Crim. P. 24(a). United States v. Brown; 540 F. 2d 364 (8th Cir.
1976); United States v. Freeman; 514 F.2d 171 (10th Cir., 1975). The rule
requires that if the judge conducts voir dire, trial counsel be allowed to
supplement tl'-79u1SAMtliP8PFtbleaskA2495963N14,1:sCAVRDP81MOGOSORG*0204102002t41-13t
and local practice.
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The manner of examination on questions of pretrial publicity has been
52/
important in individual cases, but the mainstream of the law has
focused on the extensiveness of examination. Often the extensiveness
of the examination will depend on the judge's initial perception of the
pretrial publicity problem and counsel's vociferousness in pressing the
issue. The preferred method appears to be to elicit responses from
the array of jurors on general questions of publicity, followed by in-
dividual questioning of jurors who were responsive on questions of the
amount, type and detail of publicity and whether they had formed any
53/
opinions on the subject. The submission of questions by counsel to the
52/ United States v. Collabella, 448 F.2d 1299 (2nd Cir., 1971)
(potential for jurors to be infected by judge's bias).
53/ United States v. Liddy, 166 U.S. App. D.C. 95,509 F.2d 428 (1974);
cert denied, 420 U.S. 911 (1975); United States v. Alan, 562 F.2d 459
(7th Cir. 1977).
An exceptional example of voir dire was Judge John J. Sirica's examina-
tion in the trial of H.R. Haldeman, John D. Ehrlichman and John N.
Mitchell for conspiracy, obstruction of justice and perjury in the Water-
gate Affair. This voir dire lasted over eight days, filled over 2,000
pages of transcript and eliminated 170 of the 315 people summoned. An
outline of the examination follows:
I. Ability to .be sequestered (group)
II. Relationship with parties, counsel, etc. (group).
III. Previous jury service, etc. (groups of 12 to 18).
IV. Employment, attitude, publicity (individually).
A. Belief in any ones guilt? (before mentioning pre-
trial publicity).
B. Heard of the case? Anything in particular?
C. Seen defendants or lawyers in newspaper or on tele-
vision? Remember anything in particular?
D. Which newspaper? How regular? What television news?
E. Follow legislative inquiries? Read any books on Water-
gate?
F. Follow the case closely or casually? Discussed the
case?
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judge is common, but the judge is bound neither to the quantity nor
54/
quality of those questions. The more extensive the voir dire ex-
amination is, the less likely it will be reversed on pre-trial
publicity grounds; the effect of pre-trial publicity must be proven
55/
to a probability.
The factual determination of pretrial publicity will rest on
both quantity and quality considerations. The quality of publicity must
include both timing and pervasiveness--both exemplified by Estes and Shep-
53/continued
G. Formed or expressed an opinion?
H. Know or hear of any other trials?
I. What of President's pardon?
J. Could opinion be set aside?
K. Could return of fair and impartial verdict based solely
on evidence at trial and court's instructions on law.
V. Juror excused while counsel objected and suggested addi-
tional questions, which often resulted in,
VI. Recall of prospective juror for additional questions.
On this voir dire counsel was required to make challenges for cause or in-
volve a peremptory challenge. The court of Appeals held this to be ade-
quate. United States v. Haldeman, et al. 181 U.S. App. D.C. 254, 559 F.2d
31 (1976) (en banc).
It should also be noted here that one case has been dismissed
because of prejudicial publicity making it impossible to impanel an un-
biased jury. State of Connecticut v. Bobby G. Seale, No. 15844, Superior
Court at New Haven, May 25, 1971 (unreported). The oral order is re-
printed in Freed, Agony in New Haven, 319-320 (1973).
54/ United States v. Hall, 536 F.2d 313 (10th Cir., 1976). United States
v. Vance, 502 F.2d 615 (8th Cir., 1974), cert. denied, 420 U.S. 926 (1975).
55/ E.g. United States v. Caldwell, 178 U.S. App. D.C. 20 543 F.2d 1333
(1976) (failure to prove); United States ex rel. Doggett v. Yeager 472
F. 2d 229 (3rd Cir., 1973) (standard as probability of prejudice, not
conclusive proof); Haldeman, supra, note 53.
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pard. Quantity must also be balanced with the size and nature of the com-
56/
munity in which the crime and trial occurred. The quality of publicity
includes questions of admissability Of evidence and court rulings, char-
acterizations and opinions. Perhaps the classic problem of pretrial publicity
57/ 58/
is the detailed press coverage of a suppression hearing or confessions,
59/
but not material evidence of record during trial. Press coverage which
60/
characterizes the defendant as a "mafia leader" may be prejudicial-- while
61/
the characterization of a "loan shark" may not; the question revolves a-
62/
round whether the usage is accusatory or inflammatory. An opinion by
63/
the prosecutor as to accused's quilt while announcing an indictment-- is
56/ Compare; Nebraska Press Association v. Stuart; supra, note 34; with United
States v. Chapin; 169 U.S. App. D.C. 303; 515 F2d 1294 (1975).
'51/ E.g. Philadelphia Newspaper; Inc. v. Jerome; supra. note 41.
58/ E.g.. Rideau; supra; note 23; '14eie; v. 383 F.2d
805 (10th Cir., 1967).
....
59/ United States v. Akin, supra; note 53; United States v. Daddano
432 F.2d 1119 (7th Cir.; 1970).
66/ tJnjtedtts v. Rubino; 431 F.2d 284 (6th Cir.; 1970).
61/ United States v. Solomon' 422 F.2d 1110 (7th Cir.; 1970)
("not inherently grave or prejudicial;" followed by detailed, indi-
vidual examination about the article).
62/ United States v. Budzunoski; 462 F.2d 443 (3rd Cir.; 1972);
United States v. Hyde; 448 F.2d 815 (5th Cir.; 1971).
63/ United States v. Pfingst 477 F.2d 177 (2d Cir.; 1973) ce.denied;
412 U.S. 941 (1974).
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64/
substantially different from that opinion at trial. These considerations
will tend to control the initial depth of vior dire to ascertain prejudice
or will lead the court to presume prejudice and the use of other alterna-
65/
tives.
It is also a common practice to warn the jurors impaneled not to
read newspaper reports or listen to television or radio reports on the
66/
case. Often, however, during the course of trial, counsel will move that
67/
the jury be polled -- whether sequestered or at large--on an article or news
68/
report, and the judge has broad discretion to do so. Where it is shown
that the jury has disregarded the warnings and has read articles and formed
opinions or discussed the articles; the same standards will apply and
a mistrial may be declared.
64/ United .States v. Coast of Marine Lobster Co.; 538 F.2d 899 (1st Cir.,
1976). United States v. Concepcion Cueto, 515 F.2d 160 (1st Cir., 1975).
Silverthorn v. United States; supra, note 44. Numerous cases prohibit
the statement of opinion by the prosecutor as to guilt to the jury and this
differs from a statement that "the evidence process" defendant's guilt.
65/ Margolis v. United States; 407 F.2d 727 (7th Cir.; 1969).
66/ United States v. Hyde, supra note 62; United States v. Dadano, supra
note 59; United States v. Manning; 440 F.2d 1105 (5th Cir., 1971); Gordon
v. United States, 438 F.2d 858 (5th Cir.; 1971); United States v. Palermo,
410 F.2d 468 (7th Cir.; 1969).
67/ United States v. Word; 519 F.2d 612 (8th Cir.; 1975); cert
423 U.S. 934 (1975)
68/ United States v. Brown; 540 F.2d 364 (8th Cir.; 1976); Uniiea States
v. Budzanoski, supra; note 62; (sequestcred jury); _United States v. Palermo,
supra, note (non?sequestered jury). U.S. v. Hoffman, 415 F.2d 14 (ith Cir.,
(1969), cert. denied 396 U.S. 958 (1969).
69/ United States v. Alessio; 528 F.2d 1079 (9th Cir.; 1976); United States v.
Hankish 502 F.2d 71 (4th Cir.; 1974); United States v. Thomas, 463 F.2d
1061 (7th Cir., 1972).
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The key to this jury practice--both voir dire and polling the
jury--is that it is a continuing process, not a singular act or motion.
Initially a choice of prospective jurors and alternatives is made, subject
to challenge of the array and individually for cause and peremptorially,
but this has limited final effects. With up to six alternates, it is
possible for the judge to dismiss a juror who has become biased by pub?
licity and seat an alternate at any time before the jury retires to de-
70/
liberate its verdict and the alternates are dismissed. At any point
during the trial in which the jury's impartiality is thus impugned, re?
medial steps may be taken without restarting the entire process.
4. Sequestration
Another alternative which specifically insulates the trial process
from publicity caused by the trial is sequestration. Sequestering of the
jury is usually the result of a defense motion, but the decision to
71/
sequester or allow separation is a matter of the court's discretion.
Defense opposition to sequestration, however, cannot be construed as a
72/
waiver of the prejudicial publicity issue. Nonetheless, if a viable
allegation of bias is made and based on publicity concurrent with the
-73/
trial, a sequestered jury should be polled. Sequestration is limited;
70/ United States v. Pappas, 445 F.2d 1194 (3rd Cir., 1971). See United _
States v. Floyd, 496 F.2d 982 (2d Cir., 1974), 404 U.S. 984 (1974). cert.
denied, 419 U.S. 1069 (1974); United States v. Hankish, supra, note W.-
71/ United States v. Hall, 536 F.2d 313 (8th Cir., 1976), United States v.
Hill, 496 F.2d 201 (5th Cir., 1974).
72/ United States v. Palermo, 410 F.2d 468 (7th Cir., 1969).
73/ See, e.g. United States v. Budzanoski, supra, note 62.
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however, to instances where an impartial jury can be seated, but publicity
of the trial will be pervasive because of the high cost and great incon-
venience involved.
5. Restrictive Orders
The fifth alternative is the issuance of restrictive orders. The
burden which must be carried in order to restrict the press directly is
74/
heavy and will only rarely; if ever, be borne as has already been mentioned.
- . . .......
In Nebraska Press Association v. Stuart the standard applied was Judge
Hand's test whether, "the gravity of the 'evil,' discounted by its improb-
ability, justified such invasion of free speech as is necessary to avoid
75/
the danger."-- In the same vein, use of the contempt citation to punish
publication of prejudicial material is extremely limited and must follow
76/
a valid restrictive order. Direct restraints of the publication are of
little validity in most cases--and probably of little use in an egregious
case such as Oswald's would have been.
Indirect restrictions on the development of prejudicial publicity
provide another type of alternative. In Sheppard v. Maxwell the Court
first hinted that procedural limitations could be imposed to minimize
77/
prejudicial publicity, and in Stuart the Court specifically reserved
74/ Nebraska Press Association v. Stuart, supra, note.34;.NSai v.
Minnesota, supra, note 6; New York Times Co. v. United States, supra,
note 34.
75/ 427 U.S. at 539, quoting United States v. Dennis, 183 F.2d 201, 212
(2nd Cir., 1950), aff'd 341 U.S. 494 (1951).
76/ Bridges v. California, supra, note 8; Craig v. Harney, 331 U.S. 367
(1947).
77/ 384 U.S. at 363,. as guoted,_g1,1PrAt at sege
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78/
these questions and reached only to the direct restraints for its results.
There has been no direct Supreme Court handling restrictions on prosecuting
and defense counsel, court personnel, law enforcement personnel and the
accused, nor do the Federal Rules touch on the subject. This alternative
may be subdivided into three parts: (1) restrictive orders to the parties
and their subordinates, (2) supervisory control of court personnel and
facilities and (3) enforcement of its orders.
d. Silence orders
"Silence Orders" are a relatively new concept; documentation
.....
on the concept before Sheppard has not been found, and, hence, such an
order would not be expected in the Oswald trial. The concept of
entering an order restricting what counsel for the government and
defense; the accused and law enforcement officials may say about a
pending case; is first applicable at the accused's first appearance
despite whatever prejudicial publicity is attendant to the investigation
/?/
and arrest of the accused. In United States v. Tijerina, a panel of
the Tenth Circuit affirmed the defendant's conviction for criminal contempt
for publicly commenting on his case in violation of a court order pro-
hibiting such comments on. the basis of protecting the right to a fair
86/
trial. "The theory of the defense seems to be that because the order
---------
78/ Nebraska Press Association v. Stuart, 427 U.S. at 564; n. 8.
/9/ More difficult questions will arise with regard to rules of the court
which.mayi.or,may not take effect prior to arraignments. See, Haldeman,
v. United States; supra; note 53; at
80/ 412 F.2d 661 (1969); cart.-detla 396 U.S. 867; 396 U.S. 990 (1970).
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was entered for [the defendants'] protection, they cannot be charged with
81/
a violation." This argument was countered with the assertion that the
public interest also requires a fair trial and "the concept of a fair
82/
trial applies both to the prosecution and the defense.'! While it is true
that most pre?trial publicity is adverse to the defense, and that the
defense can rarely gain from exploiting the media, the court nonthe?
less took the mandate of Sheppard seriously in making its orders cut
both ways. To the contrary, a panel of the Seventh Circuit has held
such an order to fail on First Amendment grounds and the insufficiency
8j/
of findings. Considerations of a sufficient record aside, there is
a dispute over the appropriate test to be applied: whether "reasonable
84/
likelihood" or a "serious and eminent threat" and a "clear and present
85/
danger"? must be met.
Discipline of an attorney is often controlled by the principles
of professional responsibility rather than criminal law. Yet a blanket
or categorical rule against comment on all pending cases--criminal and
86/
civil--is constitutionally infirm. Rules often pose significantly
greater problems than individual orders because it is necessary to anti?
cipate the facts rather than restate them. Chicago Council of Lawyers
81/Id. at 666.
82/ Id.
83/ Chase v. Robson, 435 F.2d 1059 (7th Cir., 1970).
84/ Held sufficient in Tijerina, supra, note 80; at 666.
85/ Held necessary in Chase, supra, note 83, at 1061.
86/ In Re Oliver, 452 F.2d 111 (7th Cir., 1975), cert. denied, 427 U.S.
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v. Bauer presents that very issue as applied to a Federal District Court's
87/
local rules. The rule in question was "substantially the same" as the
American Bar Association Code of Professional Responsibility Disciplinary
Rule 7-107(A) - (E), except for an introductory clause in the courts rules
requiring lawyers to make no comments "that would have a 'reasonable likelihood'
88/
of interference with a fair trial or prejudice."--- Additionally, the court
analyzed the individual sections of the rule, and in so doing, has provided
significant illustrations of problems involved in both rules and orders
87/ 522 F.2d 242 (7th Cir., 1975), cert. denied, 427 U.S. 912 (1976).
88/ id at 252, n. 9. Disciplinary Rule 7-107(A)-(E) provides as fol-
lows:
DR 7-107 Trial Publicity.
(A) A lawyer participating in or associated with the investigation of a
criminal matter shall not make or participate in making an extrajudi-
cial statement that a reasonable person would expect to be dissem-
inated by means of public communication and that does more than state
without elaboration:
(1) Information contained in a public record.
(2) That the investigation is in progress.
(3) The general scope of the investigation including a description of
the offense and, if permitted by law, the identity of the victim.
(4) A request for assistance in apprehending a suspect or assistance
in other matters and the information necessary thereto.
(5) A warning to the public of any dangers.
(B) A lawyer or law firm associated with the prosecution or defense of a
criminal matter shall not; from the time of the filing of a complaint,
information, or indictment; the issuance of an arrest warrant, or ar-
rest until the commencement of the trial or disposition without trial,
make or participate in making an extrajudicial statement that a rea-
sonable person would expect to be disseminated by means of public com-
munication and that relates to:
(1) The character, reputation, or prior criminal record (including
arrests, indictments, or other charges of crime) of the accused.
(2) The possibility of a plea of guilty to the offense charged or to
a lesser offense.
(3) The existence or contents of any confession, admission, or state-
ments given by the accused or his refusal or failure to make a
statement.
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FOOTNOTE 88/ cont'd
(4) The performance or results of any examinations or tests or the
refusal or failure of the accused to submit to examinations or
tests.
(5) The identity, testimony, or credibility of a prospective witness.
(6) Any opinion as to the guilt or innocence of the accused, the evi-
dence; or the merits of the case.
(C) DR 7-107 (B) does not preclude a lawyer during such period from announc-
ing:
(1) The name, age, residence, occupation, and family status of the ac-
cused.
(2) If the accused has not been apprehended, any information necessary
to aid in his apprehension or to warn the public of any dangers he
may present.
(3) A request for assistance in obtaining evidence.
(4) The identity of the victim of the crime.
(5) The fact; time, and place of arrest, resistance, pursuit,
and use of weapons.
(6) The identity of investigating and arresting officers or
agencies and the length of the investigation.
(7) At the time of seizure, a description of the physical
evidence seized, other than a confession, admission, or
statement.
(8) The nature; substance; or text of the charge.
(9) Quotations from or references to public records of the
court in the case.
(10) The scheduling or result of any step in the judicial
proceedings.
(11) That the accused denies the charges made against him.
(D) During the selection of a jury or the trial of a criminal matter,
a lawyer or law firm associated with the prosecution or defense
of a criminal matter shall not make or participate in making an
extra-judicial statement a reasonable person would expect to be
disseminated by means of public communication and that relates to
the trial; parties; or issues in the trial or other matters that
are reasonably likely to interfere with a fair trial, except that
he may quote from or refer without comment to public records of
the court in the case.
(E) After the completion of a trial or disposition without trial of a
criminal matter and prior to the imposition of sentence; a lawyer
or law firm associated with the prosecution or defense shall not
make or participate in making an extrajudicial statement that a
reasonable person would expect to be disseminated by public com-
munication and that is reasonably likely to affect the imposition
of sentence.
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The general infirmity in these rules was the failure to incorporate the
"serious and imminent threat" standard:
"Lawyers must be aware of exactly what areas
of speech mightpose a serioqs,and imminent.
threat to interference with a fair trial. The
serious and imminent standards must always be
an element of any prohibition. [footnote omitted].
We think that it is proper to formulate rules
which would declare that comment concerning certain
matters will presumptively be deemed a serious and
imminent threat to the fair administration of justice
as to justify a prohibition against them" 89/
The court proceeded to analyze the individual rules to ascertain whether
each section would be affirmed under the seious and imminent threat
standard, and in so doing provided an instructive discussion on the
90/
acceptable proscriptions in both rules and orders.
The first section restricts attorneys "participating in or asso-
ciated with "an investigation from disclosing information not in a public
record except that an investigation is in progress, its general scope, requests
91/
for public assistance and warnings as to potential danger. The court noted
that the initial coverage or applicability was ambiguous and further considered
89/ Id. at 251.
90/ The court noted that Local Rule 1.07 was substantially verbatim
Tiom the recommendations of the Committee on the Operation of the Jury
System, Report of the Committee on the Operation of the Jury System
on the "Free Press--Fair Trial" Issue (September, 1968), 45 F.R.D.
391 (1968). This Report; known as the Kaufman Report; was adopted
by the Judicial Conference of the United States, but because _a court
rule only when adopted by individual District Courts. See, infra,
at notes 129-134 and accompanying text. The further review done by
the court in Bauer as part of its adjudicatory function must be
contrasted with the courts internal legislative function.
91/ DR 7-107(A), supra note 88.
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the inappropriateness as applied to defense lawyers and counsel to grand
92/
jury witnesses. The court concluded that this section "could be used
as a presumption of a serious and eminent threat, but only as to attorneys
93/
associated with the investigation on behalf of the government.''.? While
94/
this type of rule is potentially restrictive, these very matters can be
95/
just as prejudicial.
The next two sections concern public statements between presentation
of a formal charge or arrest and the commencement of trial. The prohibition
against statements on character, reputation or prior criminal record;
the possibilities of plea bargaining; confessions, admissions or state-
ments of the defendant and results of examinations or tests are pro-
hibitable because of their potential inadmissability and highly pre-
96/
judicial character. The fifth prohibition amounts to the basic control
of the witness list; and; in addition to the concern of the court that
this be construed narrowly; a byproduct insulation against third-party
97/
attempts to suborn perjury is evident.
92/ 522 F.2d at 252-253.
93/ 522 F.2d at 253.
94/ See the Department of Justice's regulations in 28 C.F.R. 0.50 (1976),
discussed; infra; at note 102 and accompanying text.
95/ See the factual introduction to Nebraska Press Association v.
? ?
supra, note 34; and Simants v. Nebraska; supra note 36.
96/ 522 F.2d at 254-255 discussing DR 7-107(B)(1)-(4).
97/ 522 F.2d at 255 discussing DR 7-107(B)(5).
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The final prohibition--on giving opinions as to evidence, merits or the
guilt of the accused--requires a more precise review. Both opinions as
to guilt and evidence are traditionally prohibited in court and the need
to curtail extra judicial statements to that effect is parallel to the
reasons discussed previously. The court avoided stating whether pro-
hibiting discussion of the "merits" was constitutional because it could
not define the term. If; however; the term was to be construed in narrow
and concrete terms related solely to an individual case, in harmony with
the chord the court was
98/
constitutional muster.
then striking; then
it was likely to pass
The provisions of the next section were
not
dis-
cussed because of their permissive nature; eliminating particular facts
from preclusion of the previous section.
The court found the District Court's deviation from the ABA
rules potentially saving in the provision prohibiting comments on the
trial, parties or issues during selection of the jury and trial; the
ambiguous and probably overbroad "other matter" clause had been struck.
In upholding the limitations at this stage, the court was more concerned
with the lesser or concurrent alternatives in sequestration or a bench
99/
trial.
The court finally noted that restrictions on comments between the
end of the trial and sentencing could never become a serious and imminent
threat to the fair administration of justice because the sentencing judge
98/ 552 F.2d at 255 discussing DR 7-107(b)(6).
99/ 522 F.2d at 255-257 discussing DR 7-107 (D) as modified by the District
Court.
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was entitled to consider all available information, including the attorney's
comments, in reaching his sentencing decision.
Bauer is important, and discussed at such length here, because
it represents the only constitutional analysis of the ABA Code of Professional
Responsibility as adopted by a District Court. Whether a statement violates
one of the affirmed rules will be subject to debate before a court, but the
the presumption will be for the violation and the burden will rest on the
attorney to prove that there was no serious and imminent threat to the
fair administration of justice from his statement. In the limited cases
where such orders have been issued; preliminary problems such as jurisdiction
101/
have inhibited review of the orders at the instance of the press.
It is important to note here that the Justice Department has
also taken steps to restrict disclosure of prejudicial information by
its attorneys. By rule; within its authority; the Justice Department
has permitted disclosure of many of the same elements or facts permitted
in the ABA Code of Professional Responsibility and the District Court
rules in Bauer; but these are premised on a presumption that Depart-
102/
mental attorneys are not to make public statements on criminal matters.
100/ 522 F.2d at 257 striking DR 7-107(E). The court went on to consider
the civil application of the rule which is not relevant here.
101/ Compare; Central.South_Carolina,Chapter; Society of Professional
Journalists v. United States District Court, 551 F.2d 559 (4th Cir., 1977)
(mandamus denied; appeal dtnissed); with; CBS; Inc. v. tOtin? 522 F.2d
234 (6th Cir.; 1975) (mandamus issued; order for lack of evi-
dence of a "clear and imminent danger"). With these cases the question
cf the media's right to gather information is necessarily raised.
102/ 28 C.F.R. 50.2(b) (1977); U.S. Attorneys' Manual 1-5.540 (September
15, 1976), 9-2.211 (January 10, 1977). (Authority: 5 U.S.C. 301; 28
U.S.C. 509, 516 (1970).
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The intent and flavor of these personnel regulations are summarized in
one statement:
"Disclosures should include only incontrovertible, fact-
ual matters, and should not include subjective observa-
tions. In addition, where background information or in-
formation relating to the circumstances of an arrest or
investigation would be highly prejudicial or where the
release thereof would serve no law enforcement function,
such information should not be made public."103/
b. Closing Orders
The proposition that a court can control its own personnel and
facilities is not readily questioned as a matter of law. It was the
failure of the court to maintain decorum by such an order which
ultimately lead to Sheppard, but the prospect of this control goes
much further than courtroom decorum; seating arrangements, prohibition
104/ 105/
of cameras and recording, and sundry other resorts. The pertinent
question here is the authority to close pretrial procedures to the press
and public. This remedy must be balanced with the dicta from Craig v.
Harney that "A trial is_a public event. What transpires in the court-
106/
room is public property" Here again; however; trial must be segregated
from "pretrial" where most prejudicial publicity originates. The right
to a public trial is, in' the first instance; the defendant's; considerable
103/ 28 C.F.R. at 50.2 (b)(3)(iv).
104/ F.R. Crim. P. 53.
105/ See, Mazzetti v. United States; 518 F.2d 781 (10th Cir., 1975), (pho-
tographing prisoners from inside courthouse parking lot).
106/ 331 U.S. 367; 374 (1947).
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questions of the public's right and those of the press are dependent on
the accused.
It is important to note at the outset the striking differences
in public access: grand jury proceedings are traditionally secret and
? i67/
unauthorized disclosure is criminally sanctioned while criminal contempt
108/
before a grand jury requires a trial in public. Exclusion of the public
compelling needs have included avoiding threats and intimidation of a
169/
witness and protection of the integrity of an anti-skyjacking passenger
11O/
profile. Only recentl has the issue of exclusion of the public and
the press from pretrial hearings in light of potentil prejudicial
publicity corn to ; the fore. Hence; two volatile cases are poceeding
through the judicial system at present which ask whether such an exclu-
sion violates the first Amendment guarantees of a free press and the Sixth
111/
Amendment policy of a public trial. Both cases involve exclusion from
107/ 18 U.S.C. 1508; F.R. Crim. P. 6(d),(e).
108/ Leine v. United States; 362 U.S. 610 (1960).
109/ United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir., 1939).
110/ Dnitea-?ietee-v. 464 F.2d 667 (2d Cir.; 1972). But, tidied
v. Clark, 475 F2d 240 (2d Cir.; 1973). (Anti-skyjacking procedure--
exclusion of defendant from entire suppression hearing where cautionary
instructions to witnesses would have sufficed)._ Since Judge Mansfield
concurred in Bell and wrote the opinion in Clark; the appropriate and
only consistent const;uction is that the exclusion was minimal in Bell
and too broad in Carter, while at the same time the basis for the search
initially was substantial in Bell; but not Carter. Thus these cases must
be distinguished on the part of exclusion of the defendant and the
degree of compelling interest.
111/ United States v. Cinafrani; --F.2d--(3rd Cir. No. 77-2445 and 77-2462,
March 16, 1978); Gannett Co. v. DePasquale ; 43 N.Y.2d 370; 372 N.E. 2d 544,
401 N.Y.S.2d 756 (1977); cert. granted; --U.S. --; 46 U.S.L.W. 3679 (no!
717-1301, May 1, 1978). See; also Philadelphia Newspaper, Inc., v. Jerome
supra, note 41 and accompanying tests.
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a suppression hearing, and both cases stand on the narrowest possile
missable evidence only if it is determined to be admissable, it is equally
axiomatic that the question of law is not asnwered with any authority.
grounds excluding the public and press from the least amount of court room
procedure -- the introduction of the very substance of the material to be
considered for suppression. While the de minimus grounds for exclusion would
appear to coincide with the maintenance of a shroud over potentially mad-
In pre-trial procedures the rights of the press and the public
are parallel; the right of the press is tantamount to a right to
112/
gather information. The rights of the public and press continue to
parallel at trial when the right is solely the defendant's -- to assert,
113/
waive or lose. The teaching of United States v. Gurney accords these
principles by denying access by the press at trial to: (1) grand jury
testimony, (2) names and addresses of jurors, (3) bench conferences with
counsel, (4) exhibits which had been identified but not yet received into
114/
evidence and (5) proffers of testimony received by the judge in camera.
112/ Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post
Co., 417 U.S. 843 (1974); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1975). In each of these cases the Court held that the press had no
greater rights than the public.
113/ Singer v. United States, 380 U.S. 24 (1965); Geise v. United States,
265 F.2d 659 (9th Cir., 1949); United States v. Sorrentino, 175 F.2d
721 (3rd Cir., 1949).
114/ United States v. Gurney, 558 F.2d 1202 (1977)(petition for cert.
pending.
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The special significance of Gurney is in the Fifth Circuit's affirmance
of this broad spectrum of communications which had been withheld from the
li5/
press, not only before trial, but during and after. trial.
Given the degree of control over publicity which might be
asserted by a district court, it is necessary to consider whether these
orders could be actually enforced. There is no realistic means of
preventing a member of the bar from communicating with the press or con-
116/
trolling the press until a violation of a lawful order has occurred.
The Justice Department may punish violations of its personnel rules and
the District Court may suspend any attorney or try the attorney for
criminal contempt for violating its orders. The defendant and witness
ill/
pose a different problem; one which cannot be resolved here.
c. Enforcement: contempt and the newsman's privilege
When; however; an article or broadcast conveys information
which is covered by a silence order or is only in the record of a
115/ Ia. at 1207.
116/ This includes rules; as in ter; as well as specific orders.
Only the imminent threat of enforcement will deter violation and hence
the penalties alone can be considered. See; Wood v. Georgia; 370 U.S.
375 (1962) (sheriff too tangential).
117/ The defendant will often only prejudice his own case by making
public statements if the prosecutor has a valid case and remains silent.
While it can be said that the government also has a right to a fair trial,
the burden of proof over the presumption of innocence remains the govern?
ment's. It is doubtful that the government could restrict a defendant's
First Amendment rights.
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closed hearing, the question of the "newsman's privilege" arises. In
Branzburg, v. Hayes, the Supreme Court held that, while a number of
states have statutorily created a privilege,
"The preference for anonymity of those confi-
dential informants involved in actual criminal
conduct is presumably a product of their desire to
escape criminal prosecution, and this preference,
while understandable, is hardly deserving of con-
stitutional protection. 118/
At least in one instance a news reporter has been held in contempt on
the instant subject. During the Charles Manson trial, the presiding
judge undertook to restrict the release of information. Nonetheless
a reporter obtained copies of a highly prejudicial and inadmissable
statement of a witness which was duly reported under his by-line.
Subsequent to the trial, the news-reporter was summoned to show cause
why he should not be compelled to reveal his source and, on his refusal
119/
to divulge the source, he was found in contempt. Thus, the violation
of such a lawful order is a real operative possibility that may deter
the violation prospectively.
FOOTNOTE 17/ continued
Witnesses pose a problem in any trial. The means of control
here is probably in not disclosing the exchanged witness lists. If
the press does not know whom to interview, it is doubtful that a
witness will seek out the press. A cautionary instruction from the
bench may be warranted.
118/ 408 U.S. 665, 691 (1972), together with In Re Pappas. (No. 70-94)
and United States v. Caldwell, (No. 70-57).
119/ Farr v. Pitchess, 522 F.2d 464 (9th Cir., 1975) (rehearing and re-
hearing en bane denied), cert. denied, 427 U.S. 912 (1976).
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The current state of the legal alternatives available for
avoiding prejudicial pre-trial publicity is a product of both concerted
and fragmented development. Individual court cases developing the common
law in this area are often conflicting, but, at the sante time, a core
of national debate has occurred which has significantly influenced this
development. The heightened awareness of the free press-fair trial
issue embodied in the development of the law is partially a product of
the floodlight tragedy of the Kennedy Assassination.
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G. Development of the Law: National Standards
In its report the Warren Commission studied the free press-fair
trial dilemma as it developed in the prospective case against Lee Harvey
Oswald and concluded that it would be difficult, if at all possible, to
126/
seat an unbiased jury. In response:
"The Commission recommends that the representatives
of the bar, law enformement associations, and the news
media work together to establish ethical standards
concerning the collection and presentation of information
to the public so that there will be no interference with
pending criminal investigations; court proceedings, or
the right of individuals to a fair trial." 121/
From this recommendation a number of committees were conceived and
reports published; but only two; because of their potential national
scope, will be discussed.
The American Bar Association's Advisory Committee on Fair Trial and
Free.Press, stipulating its origin at least in part to the Warren Report,
122/
issued its first tentative report in December; 1966. The Reardon Report
noted a history of discussion without significant use of the restriction
123/
on statements by attorneys and commended this alternative highly.
1
120/ WRC; 238-239.
121/ Id, at 27. Such voluntary standards are discussed in Stuart; supra;
note 34.
122/ Advisory Committee on Fair Trial and Free Press; American Bar
Association Project on Minimum Standards for Criminal-Justice, Standards
Relating to Fair Trial and Free Press; (1966). (Colloquially and herein-
after referred to as the "Reardon Report").
th/ id. at 76-97. Essentially the recommendation embodied changes in
the Canons of Ethics, now the Code of Professional Responsibility.
To the extent that these recommendations were adopted; they now appear
in Disciplinary Rule 7-107(A)-(E); discussed in Bauer; supra, notes 87-
101, and accompanying text.
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The second major recommendation suggested similar restrictions on law
enforcement officials; promulgated initially as police department policy
124/
and rules but subject to judicial enforcement. Thirdly,.the Reardon Report
combined the more traditional continuance, change of venue and voir dire
alternatives in a recommendation on conduct of the judicial proceedings,
i25/
including exclusion of the public in limited instances. Finally, the Reardon
126/
Report recommended a restrictive review of the use of the contempt power.
The Reardon Report gave significant credibility to restrictive closing and
silence orders; but a major hurdle to be overcome was the standard which
the Committee applied to these decisions. The Committee's recommendation
of a "reasonable likelihood" standard was apparently intended to induce
this type of order; but many courts have since found the standard to be
constitutionally deffecient and imposed a higher and more traditional
i27/
"clear and imminent threat" standard. Conversely, the courts have often
excluded the public and press from more pre-trial procedure than necessary
and contrary to the Reardon Report's narrowness and these cases have been
128/
reversible on appeal. Despite the length of time which the courts and
124/ Id. at 98-111.
125/ Id. at 112-149. The recommendations on closed hearings were specific
that such actions must be as minimally intrusive as possible into the
public's right to know; and that closing be ordered on on motion by the
defense. The combination of the more traditional alternatives allows
an inference that the Reardon Committee sought to strike new ground rather
than reorganize traditional legal thinking.
126/ Id. at 150-155.
127/ Bauer, SUPr.a; note 87 (applied to the rules promulgated which were
essentially those in the Reardon Report).
128/ Bell, SUPra, note 110; Clark, supra, note 110.
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counsel have had to consider these recommendations, little litigation
has occurred to affirm or hold unconstitutional the actions recommended.
The second major report was initiated by the Judicial Confer-.
ence of the United States and is colloquially known as the Kaufman Re-
129/
port. The impetus for this study was not so much the Kennedy assas-
sination or the Warren Commission Report as it was the decision in Shep-
pard v. 1;laXweii. The first recommendation of the Kaufman report is a
restatement of the Reardon Report recommendation of restricting comments
by counsel; although particular word usages reflect specific disagreements
hie)/
and different audience addressed. The Kaufman Report's second recommenda-
tion reflects the Committee's concern for judicial housekeeping by prohi-
biting disclosure of any information or opinion not a part of the public
131/
record by any court personnel. The second recommendation contains
special significance in the exclusion of law enforcement officials, who
may or may not be within the court's jurisdiction control, and the inilu-
sion of the possibility of closed hearings. Part 1 of the third recom-
mendation provides for rules on extrajudicial statements by parties and
witnesses, management and sequestation of jurors and witnesses, and con-
132/
duct of the courtroom. Part 2 of that recommendation concerns liberalized
129/ Committee on the Operation of the Jury System; Report of the Com-
mittee on the Operation of the Jury System on the "Free Press-Fair Trial"
Issue; 45 F.R.D. 391 (1968).
130/ Id at 404-407._ Note that the "reasonable likelihood" standard
was adopted and Bauer expressly rejected it.
131/ Id at 407-408.
132/ Id at 409-412. On this recommendation; the District Court in
Bauer adopted its version of DR 7-107(A)(E).
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133/
use of traditional methods. The fourth recommendation of the Kaufnan
Committee would broaden the proscriptions of Rule 53 of the Federal
Rules of Criminal Procedure to control news activity throughout the
134/
courthouse.
The development of court rules under these recommendations
has been diverse. The learning from the appellate case law and these
two tribunals to trial judges may be summarized as follows:
1) Permit continuance, change of venue, extensive
voir dire examination, sequestation and polling
liberally, and
2) utilize restrictions on attorneys and closed
hearings where necessary, but do so on an ex-
tensive record.
Before moving to contemporary legislative proposals in this area, it
is necessary to consider one development in the law whose intervention
has completely post-dated the Kenneday assassination, but would create
considerable difficulty in any Oswald case as it does now in all crim-
inal cases.
133/ Id. at 412-413.
134/ Id. at 414-415.
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H. Speedy Trial - Introduction to the Trilemma
In discussing the contemporary alternatives available to mi-
tigate prejudicial pretrial publicity, the traditional motion for con-
135/
tinuance was reserved for latter discussion. Continuances are all
too often routinely granted; but in the case of prejudicial publicity
continuances are often necessary. A point will be reached, however,
when the granting of a continuance to acquire an impartial jury will
136/
collide with the defendant's right to a speedy trial.
This question of Oswald's right to a speedy trial as opposed
to his right to an impartial jury probably would not have arisen. As
the Supreme Court bluntly asserted in 1972, "although a speedy trial
is guaranteed the accused by the Sixth Amendment to the Constitution,
137/
the Court has dealt with that right on infrequent occasions." With
this opening remark for a unanimous court, Justice Powell proceeded
to analyze two lines of thought: 1) that the court should set a time
within which a defendant must be offered a trial, and 2) that the Court
should consider the right to a speedy trial only when formally de-
138/
manded. This is not to infer a lack of case law on speedy trial;
135/ Supra, notes 40-50, and accompanying text.
136/ It will be assumed temporarily that this collision cannot be
avoided. Whether this assumption is correct will be the focus of
later paragraphs. See, infra, notes 149-153, and accompanying text.
137/ Barker v. Wingo, 407 U.S. 514, 515 (1972) (citation omitted).
"In all criminal prosecutions the accused shall enjoy the right to
a speedy and public trial ..." Const. of the United States., Amend-
ment VI.
138/ 407 U.S. at 522-528.
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up to this time there had been significant, but sporadic and uncon-
certed judicial opinion. As the Court noted, and as had been true
for the preceding decade, most of the states and Federal Circuits
139/
recognized and used some form of a "demand rule." This approach
would have put Oswald in the position of possibly choosing to be
tried by a biased jury if he wished to be tried quickly. The Court
restated the rule against presuming the waiver of a fundamental right
from lack of asserting it, but also rejected the legislative function
140/
necessary for it to assert that set time for an offer of trial.
The Court developed the balancing test of four factors: 1)
length of delay, 2) reason for the delay, 3) defendant's assertion
/41/
of the right and 4) prejudice to the defendant's case. The length
of the delay was in essence a triggering mechanism, not the demand by
the defendant, and to this extent the "demand rule" was rejected and
the demand was not to be considered presumptive. The reason for de-
139/ at 524. Coupled with the concept of waiver; the right to
a speedy trial; and whatever time frame "speedy" amounted to; would
not begin to run until demanded.
140/ Id. at 526-528. Since Barker was a state case it did not of-
fer the Court an opportunity to make rules for the Federal Court un-
der its supervisory powers.
141/ Id. at 530.
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lay poses its own balancing test, with the Court weighing a deliberate
attempt to delay by the prosecution far heavier than overcrowded courts
or the valid reason of a missing witness. The defendant's assertion
of the right is a counter to the reason for delay, much as is the de-
fendant's cadsing the delay, but no longer would that assertion be a
starting point of analysis. According to the Court, the fourth factor
- prejudice - would include interests such as incarceration and impairment
142/
of the defense.
Before analyzing the interplay of taiiei considerations with
a prejudicial publicity situation such as Oswald's, one further step
in the development of speedy trial law should be taken. In rejecting
the demand rule the Supreme Court moved away from the prevalent prac-
tice, but the Court also stopped short of stipulating a fixed time
frame within which a jury trial must be offered. The lower courts be-
gan developing a presumptive timetable for speedy trial assertions,
and, eventually, Congress interceded with a mandatory timetable.
In 1975, Congress passed the Speedy Trial Act which placed
143/
mandatory deadlines on most criminal trials. Congress' purpose in
doing so was "to assist in reducing crime and the danger of recidiv-
ism," or, in short; to increase the deterent value of the criminal
142/ Id. at 530 - 533. Distinguish this usage from the word as
used iiTrrprejudicial publicity" although both mean an impairment
of ability.
143/ Pub. L. 93-619; 88 Stat. 2076 (January 3; 1975), 18 U.S.C.
3161, et seq . (1970; Supp. 1976).
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144/
process. The courts have construed the Act as not marking out the
bounds of the Sixth Amendment's guarantee of a right to a speedy
145/
trial. Nonetheless, by 1980, the maximum allowable interval be-
tween arrest and trial will be reduced by statute to one hundred
146/
days. Failure to bring the accused to trial within the time limits
will result in dismissal on the defendant's motion, although a num-
ber of excuses are available to defend against this motion and avoid
144/ H.R. Rep. No. 93-1508 (November 17, 1974), 1974 U.S. Code,
Cong. and Admin. News 7401.
145/ E. 2,2. United States v. MacDonald, 531 F.2d 196 (4th Cir.
1976).
146/ The limitation are phased in over five years. According to
the Act, 18 U.S.C. 3161(b), (c), (d) and 3163, the timetable after
passage appears to be as follows:
For Arrests
Between:
Maximum days
allowed between
ARREST and IN-
DICTMENT
Maximum days
allowed between
INDICTMENT and
ARRAIGNMENT
Maximum days
allowed between
ARRAIGNMENT and
TRIAL
July 1, 1976
and June 30,
60
10
180
1977
July 1, 1977
and June 30,
45
10
120
1978
July 1, 1978
and June 30,
35
10
80
1979
July 1, 1979
30
10
60
and Thereaf-
ter
??? 01'0 ? ? i?
? ?-? !??-?? III III 11111JJ
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147/
the sanction. The excuses for avoiding the sanction are a combina-
tion of factors which restrain the running of statutes of limita-
148/
tions and the balancing factors of Barker. One exception of special
import is when a judge finds, on a record of sufficient evidence,
that the ends of justice to be served by granting additional time
"outweigh the best interest of the public and the defendant to a
149/
speedy trial."
This discretionary expansion of the time limits for trial
could be construed to permit a continuance when prejudicial public-
ity rises to the level of requiring the presumption of bias, but
147/ 18 U.S.C. 3162.
148/ 18 U.S.C. 3161(h) provides exclusions from the
_
running of the time limitations for any period of time which: 1)
results from other proceedings concerning the defendant, 2) di-
verts the defendant under an agreement approved by the court, 3)
results from the absence of the defendant or an essential witness,
4) results from the defendant's mental or physical incompentence
to stand trial, 5) results from a psychiatric study; 6) is re-
required bet*een dismissal of one indictment for correctable error
and the issuance of a superseding indictnent; or 7) results from
a later and properly joined co-defendant.
149/ 18 U.S.C. 3161(h)(8) reads as follows:
(8)(A) Any period 43 delay resulting from a continuance granted
by any judge on his own motion or at the request of the defendant
or his counsel or at ;he request of the attorney for the Government,
if the judge granted such continuance on the basis of his findings
that the ends of justice served by taking such action outweigh the
best interest of the eublic and the defendant in a speedy trial. No
such period of delay rlsulting from a continuance granted by the
court in accordance with this paragraph shall be excludable under
this subsection unless the court sets forth, in the record of the case,
either orally or in writing, its reasons for finding that the ends of
justice served by the granting of such continuance outweigh the best
Interests of the public and the defendant in a speedy trial.
(B) The factors, among others, which a judge shall consider in
determining whether to grant a continuance under subparagraph (A)
of this paragraph in any case are as follows:
(i) Whether the failure to grant such a eoatinuance in the
proceeding would be likely to make a continuation of such pro-
ceedin ikpipisoaetaleFer lassielage 2009t403ttriS1 MA1061581M 0
(ii) Whether the case taken as a whole is so unusual and so
rnmnlex. duo to the number of defendants or the nature of the
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1.50/
no case directly on point has been found. The relative newness of
the Act is a significant reason for this lack of opinion, but it
should not be discounted on that basis since at least one Supreme
151/
Court Justice has considered the problem. Furthermore, more res-
trictive statutes have existed in the states for some time and
152/
have had an impact on the free press - fair trial problem. With
this background it is necessary to look at the factors which the
Court enunciated in Brier, and which would be applicable in an-
alyzing this exception; to determine whether a direct conflict
exists or can be avoided.
First; it must be noted that the judge may order a delay
on his own motion; as well as granting a motion for continuance
Continuation of footnote 149/
prosecuti6n otherwise, that it is unreasonable to expect ade-
quate preparation within the periods of time established by this;
section.
(ill) Whether delay after the grand jury proceedings hav&
commenced, in a case where arrest precedes indictment, ts
? caused by the unusual complexity of the factual determinationI
to be made by the grand jury or by events beyond the control'
of the court or the Government.
(C) No continuance -under paragraph (8)(A) of this subsectionl
shall be granted because of general congestion of the court's calen-
dar, or lack of diligent preparation or failure to obtain available
witnesses on the part of the attorney for the Government.
150/ Of limited opinions currently available from the Courts of Appeals,
certain trends appear to emerge in this subparagraph: 1) conflicting
schedules of defense counsel - excused; 2) conflicting court calendars -
not excused (but see 3174); and conflicting trial dates of accussed -
not applicable under 3161(h)(1)(c).
151/ Brennan, J. concurring in Nebraska Press Asociation v. Stuart, su-
pra, note 34, at 602, n. 28.
152/ See, e.g., Opinion of Brennan J., concurring in Nebraska Press As-
sociation v. Stuart, supra, note 34, at 583, n. 10. (Nebraska required
trial within six months).
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from the defendant or the government. Should this delay be only a few
weeks until news stories on the trial are pushed off page one by other
more current news, the length of a delay would not, in itself, require
a dismissal. Secondly, the reason for the delay must be considered:
what is the cause or source of this publicity. Usually the source is
the police or prosecutor, arraignment or preliminary hearing at which
the indictment is presented or a prima facie case or probable cause
Is shown, suppression hearings at which inadmissible prosecution evi-
dence is argued, or hearings on the speedy trial - free press - fair
trial problem itself. Rarely is it in the best interest of the de-
fense to create pre-trial publicity; in most cases it would be as-
serted that the government has caused the need for delay. Thirdly,
the defendant's assertion, if any, of his right to a speedy trial
must be considered, although it will be a rare case that a defendant
will wish to proceed to a jury trial in the light of prejudicial pre-
trial publicity. Nonetheless. The ultimate question of prejudice
will be: must the defendant choose between his constitutional right
to a speedy trial and his constitutional right to an impartial jury?
153/ 18 U.S.C. 161(h)(8)(A). quoted, supra_., note 149.
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I. The Ultimate Conflict
Throughout this discussion a number of a defendant's rights
have been discussed, but usually in conflict with the right of a free
press. Up to this point; however; the ultimate question has not
been posed: Is there a point at which the right of a free press places
two or more of a defendant's rights in inextricable conflict? The
question necessarily assumes a notorious case, indeed, it assumes the
case in which the rights of a free press put the defendant to a com-
plete and formal jeopardy to the preclusion of the legal process. For
the defense; the motion would be for dismissal on the grounds of pre-
trial publicity and only one such case is known to have had such a mo-
154/
tion granted. The problem about to be faced would not have been
part of the original trial of Lee Harvey Oswald, nor would it likely
have been argued on appeal. But; had the assassination occurred in
1978 rather than 1963 and the parties and media conducted themselves
as they actually did in 1963; this problem would be unavoidable. In
the contemporary setting this problem has not occurred, but it is pos-
sible that it will.
The only assumption necessary for this hypothetical case is
that pretrial publicity has been pervasive. Should the question of
continuance arise; defense counsel's response may be an assertion of
the right to a speedy trial - under the statute and Biker - and he
may make this assertion directly. This is merely repetitive of the
issue last discussed: If the defendant does not contribute to delay
154/ State of Connecticut v. Bobby G. Seale, supra, note 53. But see,
Delaney v. United States, 199 F.2d 107 (1st. Cir., 1952).
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and asserts his right to a speedy trial, the statutory and consti-
tutional right will run, and the judge can only stop the statutory
time.
Should the issue of a change of venue under Rule 21(a)
arise, defense counsel may respond with an assertion of the right to
155/
vicinage. The rule is only a means by which the defendant may
waive his right to vicinage, and, in this case, the defendant does
not do so.
Thus, the problem becomes one of seating an impartial jury.
In sheer numbers; the summoning of veniremen has become a major chore
in any case involving prejudicial publicity. Naturally voir dire
will be extensive, but the question must be asked whether there are
some realistic. limitations on the size of the venire and the length
157/
of voir dire. Assuming that an impartial jury could be impaneled,
155/ ?uPi; note 45. Piatt v. Minnesota Minning and Manufacturing
Co., 376 U.S. 240; (1964); Salinger v. Loisel; 265 U.S. 223 (1924).
156/ United States v. flini;n; 268 F. Supp. 728 (
States v. Holder; 399 F. Supp. 220 (D.S.D.; 1975).
151/ In Haldeman' the court initially summoned 315 people for voir
dire examination; in Irwin; 430; the 1977 Hanafi Muslim conspiracy
and murder trials; 650; and in the Bobby Seale case nearly 1500
people were summoned; and nearly 1100 questioned over a four month
period, before a jury was impaneled.
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sequestration remains an option for maintenancing that impartial-
ity. And, of course, it has been assumed that the trial court has
not entered any restriction orders.
The classical techniques for mitigating prejudicial public-
ity do not resolve the free press - fair trial - speedy trial trilemma.
A shrewd defense counsel may be able to assert all of his client's
constitutional rights and move for a dismissal with prejudice. Under
these assumptions there comes a point when the trial judge has no al-
ternative; but to dismiss. Prior to that time, however, significant
alternative exist for avoiding this result which the judge and prose-
cutors may take and these, in their very limited confines, would ap-
pear to be the control of the sources of prejudicial publicity.
To this point the notorious case has been assumed. However,
much as Congress assumed responsibility for legislating special protec-
tion for the President in the wake of the Kennedy assassination, it has
not responded to the pressures attendent any future such instances. Had
Oswald survived and stood trial', it is improbable that these issues
would be squarely raised - but the assumption of these issues in a corn-
temporary setting is only.an assumption of the future assassination of
a high official of government; either our own or some foreign emmissary,
or the President of the United States.
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J. Contemporary Legislative Proposals
A diligent search of bills in the 95th Congress has not
yielded any legislative'proposals on the free press 7., falfr trial "
158/
speedy trial trilemma. Questions posed to counsel of the appro-
priate sub-committees of the House and Senate Judiciary Committees
corroborate this finding.
158/ S. 1437, 1331, 1335 provides for an affirmative defense to con-
tempt in the constitutional infirmity of a "gag" order. Thus, if the
provision is passed by the House and conference committee, an order pro-
hibiting dissemination or publication of information could be the ba-
sis for contempt citation only, if constitutionally valid. This provi-
sion does not effect the analysis above, notes 104-119, and accompany-
ing test.
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K. Legislative Alternatives
Based on the analysis of law and the problems noted pre-
viously, there appears to be ample.room.for legislative activity to-
ward mitigating the prejudicial impact of pre-trial and trial public-
ity. The potential alternatives listed below are organized by the
issues involved, although many of the alternatives involve several is-
sues. This list is neither exhaustive in length nor comprehensive in
scope, but is merely suggestive of the areas in which additional
thought may be most fruitful.
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. ..... .
1. Change of Venue and Vicinage
The concepts of venue and vicinage are comprehended present-
ly by the Constitution; statute and rule. The rules as currently
stated provide that which 'the Constitution 'requires. When the issue
of venue is raised the added court costs are often considered along
with the substantive problems of prejudical publicity, but such a
consideration does not appear to be consistent with the Constitutional
mandate. The Congress may wish to consider the economics of the change
of venue problem in the appropriations for courts, the Justice Department,
witness fees, and jury fees.
2. Continuance and Speedy Trial
The Speedy Trial Act constricts the instances in which a
continuance can be granted. This Act; as already noted, becomes in-
creasingly important in any highly publicized trial.
a. Statute and Constitution. The Congress may wish
to clarify the relationship; if any; between the Speedy Trial Act and
the Sixth Amendment's guarantee of a speedy trial. The Act's state-
ment of relationship that "[Ill? provision ... shall be interpreted as
a bar to any claim of denial of speedy trial as required by" the Con-
stitution expresses only the idea that the Act cannot be used as a
minimum time which must pass before...a claim can be made and does not
159/
clarify the Sixth Amendment right.
b. Administration of Speedy Trial. The Speedy Trial Act pro-
vides for planning groups and staff to insure the speedy administration
159/ 18 U.S.C. 3173 (1970; Supp. 1976).
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160/
of this Act. Congress may wish to supplement the appropriation to
further insure effective compliance with the Act in light of the potential
conflicts just discussed.
3. Voir Dire Examination and Jury Polls.
The voir dire procedure and jury polling have developed in
the common law and court rules for a substantial period of time. As
noted above, the question is not one of a singular motion to be granted
or denied, it is one which requires a continuing review. Because of
these two factors and the current breadth of the trial judge's
discretion, the idea of legislation in this area appears impractical.
4. Sequestration
Sequestration of the jury prevents exposure to prejudicial
publicity only during trial, as well as hampering other improper
influences. Because this alternative is particularly expensive
for the court and- inconvenient for the jurors, Congress may wish
to consider:
providing additional funds specifical-
ly earmarked for prejudicial, public-
ity cases and jury sequestration,
altering the procedure of sequestra-
tion to alleviate the discomfort of
the jurors, and
providing for temporary release of jurors,
family visits or other ad hoc mitigating
actions.
160/ 18 U.S.C. ?3165 - 3171 (1970, Supp. 1976).
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The sequestration process is probably under-utilized because of the
costs necessarily incurred.
.....
5. Restrictive Orders
?
Being the newest; and probably least understood, restrictive
orders pose the greatest potential for legislative action. Three
specific areas might be considered
a. Silence Orders. Congress may wish to consider pro-
viding a basis for increased use of silence orders directed to the at-
torneys in a case. There are a variety of means by which this could be
accomplished; including, but not limited to, (i) special jurisdiction
for criminal or civil contempt of court for obstructing proceedings,
(ii) special jurisdiction to enter orders restricting commentary on
cases to which a lawyer is counsel, (iii) special authority granted
to District Courts to promulgate rules and specify adherence as a con-
dition of licensure of attorneys; or (iv) direct legislation prohibiting
disclosure of prejudicial proceedings
b. Closing Orders. The courts are not clear on their
authority to close pretrial hearings. Congress may wish to consider
delineating the scope of the right to a public trial by defining the
scope of trial and granting authority for or mandating the closing of
hearings when prejudicial material will be made a part of the record.
c. Contempt and the Newsman's Privilege. Congress
may wish to consider again the newsman's privilege and Branzburg v.
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Hayes. Congress may also wish to consider the scope of the contempt
161/
power and defenses.
L. Conclusion
The conflict between the rights of a defendant to a fair and
speedy trial and those of a free press have increasingly collided over
the last twenty years. The trial of Lee Harvey Oswald, had it been
held, probably would have illuminated these problems more clearly than
any case since and probably would have hastened the development of the
law. The development of the law since 1963 has been one of continually
refining alternatives, most having developed judicially. It is rea-
sonally certain that, under the law as developed to this day, dismis-
sal of a criminal case in federal court become of prejudicial publicity
would not occur. It is still more likely today that a reversal of conviction
would result from failure by the trial judge to adequately safeguard the
court's process and the defendant's rights. In the alternatives at a judge's
disposal, many are fully developed legal tools, but some - such as
silence orders and closing orders - remain in a limbo. Here is the
best opportunity for legislative action to further mitigate the dissemi-
nation of prejudicial information and insulate the criminal trial
process.
161/ See, supra", note 157.
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III. THIRD PARTY RECORDS INVESTIGATIONS
A second major controversy developing out of the Kennedy assassination
revolves around the procurement of third party records during an investigation.
A third part record .could be any, writing which pertains to a person which is in the,
custody of another person. The "third party" concept derives from the idea that
the person to whom the record pertains (probably the owner) is the first party,
the government or agency seeking the record is the second party, and the person
or agency who is in custody of the record is the third party. The exact scope
of third party records investigations will inherently be determined by the indivi?
dual case, but generally includes purchase and billing records, telephone company
records, registrations; bank records and tax records. This area has become
increasingly controversial since the Kennedy assassination; not because of the
assassination or the investigation which followed, but because of a heightened
awareness of the need for a right of privacy. In recent years the concept of
a right of privacy has been increasingly argued in the courts as a basis for
.....
quashing summonses and subpoenas or subpoenas duces tecum for records held for
or by another. This argumentation has also lead to the formalization of some
of the right to privacy in the form of state and federal legislation.
On the other hand; access to records in the possession of third
parties has also become an increasingly important investigative and prosecutorial
tool in the areas of white collar; public integrity; fraud; tax and organized
crime. With records normally held by other persons than the accused, the govern?
ment is able to prosecute with greater ease and reliability than through the pro?
cess of producing multitudinous witnesses. Testimony is displaced by easily
authenticable documents.
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In this Chapter, the types of investigation which the Warren Commis?
sion reviewed and undertook in their study of Lee Harvey Oswald will be reviewed,
and. the law related to commercial, telephone, bank, and tax records and their
confidentiallity from law enforcement officials will be reviewed within the
framework of the Constitutional proscriptions of unreasonable searches and sei?
zures, self incrimination and the right to free communication. Additionally,
the concepts of testimonial privilege will be discussed in context with the
records sought to be produced.
Certain restrictions should be stated at the outset. Like the
investigations of Lee Harvey Oswald, this study will be concerned only with the
individual -- and not with corporations, unions, associations and partnerships.
These entities, to the extent that they are constitutionally or statorily cong?
nizable from a natural person, pose different problems within the First; Fourth
and Fifth Amendments which need not be considered. Additionally, this study
will restrict itself to records of an individual or about an indivdual held
by another; thus avoiding large areas of Constitutional law involving physical
privacy, exigent circumstances and commercial speech; to name but a few. As
in the area of speedy trial; the law has developed from almost non?existence
since 1963, and the commentary on the state of the law in 1963 will, consequently,
be non?existent.
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A. The Oswald Investigations
The investigations which followed the assassination of President
Kennedy provide a valuable illustration of the state of the art of third party
records investigatons then and now. Using these investigations -- both the
Dallas prosecution authorities and the Warrent Commission -- as a springboard,
it is possible to analyze the changes in both the technique and the law over
the last fiteen years.
The first major third party records investigation in the Oswald
case commenced with the discovery of the rifle on the sixth floor of the de-
pository Building. Local authorities easily ascertained from local gun dealers
1/
that such a weapon could have been imported by a firm in New York City. A
search of the records of that firm revealed that the rifle in question had been
sold to a sporting goods outlet in Chicago. A search of those records revealed
a microfilm of a mail order purchase and money order from one "A. Hidell". This
much had been accomplished by the early morning hours of November 24, 1963.
A later investigation of the handwriting on the order form and postal money order
confirmed that both were written by Oswald. This investigation of third party
commercial records is the only search known to have been performed during the
2/
active criminal investigation of the President's death.
However, a variety of federal government records had already sur-
faced, and would continue to surface, relating Oswald to the weapon. At the
time of Oswald's arrest for killing Patrolman Tippit, a forged Selective Service
Registration Card and forged Certificate of Service in the name of "Alek J.
1/ The fact that the weapon was unusual, a Mannlicher-Carcano 6.5mm. carbine (No.
C 2766), facilitated this search.
2/ WCR 118-120.
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3/
Hidell" were confiscated. From these two separate and independent leads the
rifle would eventually by connected to Oswald through handwriting on postal re-
cords including post office box applications, entitlement to receive mail, change
4/
of address forms and the money order:
After Oswald had been shot and the Warren Commission set up. addi-
tional third party record investigations were conducted at the latter's request.
These investigations were conducted in order to confirm or dispel the conspiracy
theories of the assasination and focus on financial records, both income and
5/
expediture. Three major categories of records were reviewed in the Warren
Commission initiated investigations: commercial receipt and credit records;
bank cash flow and security records and employment income records. It is
clear that the Commission was offered or had access to records of the Internal
Revenue Service on Oswald's tax obligations.
The FBI interviewed a number of people and collected a variety of
documents related to Oswald's employment situation. Oswald was employed by
several different firms in sheet metal working, photographic processing, coffee
6/
processing and, finally, the school book warehouse and the FBI provided the
7/
checks issued to Oswald:- The FBI was also successful in locating unemploy-
8/
ment checks and related interviewing of Texas agency employees:- Slightly
..........
3/ WCR; 181
4/ WCR, 569-577
5/ WCR 328-333. This stage of the investigation took on may of the characteristics
of a criminal tax case.
6/ WCR, 402 - 404.
7/ CE 11
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8/ CE 1157.
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9/
farther removed are the materials developed on Oswald's education.
The second line of investigation dealt with expenditures, includ-
ing electricity, gas, water, travel, weapons purchases, hospitalization, post
office boxes, subscriptions, printing of Fair Play for Cuba Committee litera-
10/
ture, and a fine for disturbing the peace. Many of the records have not been
formally presented and only FBI Investigation Reports are provided, but the
access to each record or information from each record was necessary to put
the analysis together. These actual expenditures were combined with a Labor
11/
Department estimate to arrive at Oswald's approximate cost of living.
A third phase focused on cash flow and security. The FBI approach-
ed in excess of 150 bank branch officers in the Dallas-Fort Worth and New Orleans
Metropolitan areas to ascertain whether Oswald, in his awn name or under any of
his known aliases or variations of them, had established any kind of a personal
12/
account or rented a safe deposit box. This cash flow investigation included
13/
a records check at a local credit agency in Dallas. Little cash flow or security
information was found, and that fact, in itself, was important to the possibility
of a conspiracy and to many complex criminal investigations.
The Oswald investigations covered many kinds of documents; and; be-
cause of the magnitude of the nation's distress apparently, all these documents
9/ CE 1130
10/ CE 1130, 1133, 1134, 1136, 1137, 1139, 1145, 1146, 1154, 1158, 1160; 1166,
1168, 1170-1172, 1177, 1410 and 1411.
11/ CE 1169, 1147
12/ CE 1135, 1163-1165, 1167.
13/ CE 1135.
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were freely given. This is uncharacteristic of criminal investigations which
result in major tax, white collar, public integrity and organized crime cases
as extensive as this, and, therefore, the Oswald case is representative in
some ways of law enforcement needs for third party recOrds while being unrepre-
sentative of responsiveness. The key difference was in the amount law enforce-
ment authorities must intially proffer and the extent to which legimate requests
for third party records are resisted.
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B. The Fourth Amendment: The Right to be Secure
in One's Papers
The Fourth Amendment to the United States Constitution provides,
"The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches
and seizures shall not be violated; and no Warrants shall
issue but upon probable cause, supported by Oath or Af-
firmation, and particularly describing the place to be
searched, and the persons or things to be seized.
For the purpose of this paper much of the law construing the Amendment can be
14/
immediately eliminated:? In dealing with books and records held by a party
other than the accused a variety of special problems arise in the areas of con-
sent and standing. First, however, the means by which the records are iatially
15/
obtained must be considered.
The inherent question is whether a search is reasonable and there
is a presumption of reasonableness in the institution of a judicial warrant.
The requisites for obtaining a judicial search warrant, and appellate review of
a warrant, are probable cause, sworn affidavit, particularity and a disinterested
magistrate. Theory for protection of the individual lies in the "dead of the
night" abuses which, even today, occassionally happen. The contrary viewpoint of
14/ I.e., "Terry", stops, vehicular searches, border searches, exigent circum-
stances, incidents of arrest and the like, which comprise most of the Fourth
Amendment law.
15/ The question of scope must be commented on. The Fourth Amendment was initially
construed as a property right only, Olmstead v. United States, 277 U.S. 438
(1928); Goldman v. United States, 316 U.S. 129 (1942), but this has given
way to the notion that the Amendment conveys a personal right, Katz v. United
States, 384 U.S. 347 (1967), United States v. United States District Court,
407 U.S. 297 (1972). All these cases involve intereception of wire communi-
cations, which will be discussed, infra, at notes 170-192 and accompanying text.
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law enforcement is that in allowing the authorities to choose the point at which
records come into their hands will protect those records from destruction. The
rigors of obtaining a search warrant are reserved for those instances when the
advantage to the government and the opposing party are high - the criminal process.
16/
In administrative settings the standard is significantly lower. The question
arises whether the stakes are so great when the documents sought are held by a
third party - a party to which the documents do not directly apply - as to re-
quire the use of the search warrant's element of surprise.
In many cases the same material can be acquired by subpoena. The
subpoena originally was a court process to compel testimony; a subpoena duces
tecum compelled the production of material objects or records. However, Congress
18/
asserted it had the power to subpoena for its own investigations and has granted
1?/
authority to issue administrative summons to a number of investigatory agencies.
While the subpoena, historically, did not fall within the ambit of the Fourth
Amendment, the courts have required application of Fourth Amendment principles
20/
to the subpoena process and its scope. The relationship between the Fourth
Amendment and the subpoena was described by the Supreme Court:
16/ See, United States v. 406 U.S. 311 (1972); See v. Seattle, 387 U.S.
541 (1967); Camara v. Municiple Court, 387 U.S. 523 (1967).
17/ See, F.R. Crim. P. 17; F.R. Civil P. 45.
18/ 3 Annals of Congress 490-494 (1792), Accord, McGrain v. Dougherty, 273 U.S.
135 (1927).
19/ A corrollary to the administrative subpoena is an administrative summons.
Of specific importance to the present discussion are the authorities of the
allowing agencies to subpoena persons and documents.
20/ Boyd, v. United States, 116 U.S. 616 (1886) (dicta), Hale v.Hinkle, 201 U.S.
43 (1906) (grand jury subpoena under Fourth Amendment, except that no probable
cause be shown).
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"It is not necessary, as in the case of a warrant, that a
specific charge or complaint of violation of law be pend-
ing or that the order be made pursuant to one. It is
enough that the investigation be for a lawfully authorized
purpose, within the power of Congress to command. This has
been ruled most often perhaps in relation to grand jury
investigations, but also frequently in respect to general
or statistical investigations authorized by Congress. The
requirement of "probable cause, supported by oath or affir-
mation," literally applicable in the case of a warrant, is
satisfied in that of an order for production by the court's
determination that the investigation is authorized by Con-
gress, is for a purpose Congress can order, and the docu-
ments sought are relevant to the inquiry. Beyond this the
requirement of reasonableness; including particularity in
"describing the place to be searched, and the persons or
things to be seized;" also literally applicable to warrants,
comes down to supecification of the documents to be produced
adequate, but not excessive; for the purposes of the rele-
vant inquiry. Necessarily; as has been said, this cannot
be reduced to formula; for relevancy and adequate or excess
in the breadth of the subpoena are matters variable in re-,
lation.to the nature, purposes and scope of the inquiry." 21/
These bases suffice since the person ordered to produce documents may refuse and
require the agency to seek a court order to compel submission. Failure to com-
ply with some administrative summonses or subpoena may be the subject of a
22/
criminal sanction; but this reflects Congress' intent to place the burden
of proving (and at least making the initial determination) that the sunnons or
subpoena is invalid on the party. Effectively, response to the terms of a
subpoena is consent to a constructive search and seizure.
Voluntarily; given; however; has been construed as fully vitating
2J/
a warrant. In the case of third party records the substantial question of who
may give consent arises in significantly different terms than other Fourth
21/ Oklahoma Press Publishing Co. v. Walling, 327 U.S. 168; 207; 208 (1946)
(footnotes omitted).
22/ See, e.g. 26 U.S.C. 7210 (1976).
23/ Schneckloth V. Bustamonte; 412 U.S. 218 (1973); Bumper v. &Oiih Carolina, 391
U.S. 543 (1Agoi;ovarbForiteiteassieSIQEd0342412CIAADREWQMOIRCI00200020044-0
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Amendment situations. One specific question also remains in the objective
"reasonableness" of the search.
Records in the possession .of a third party pose. the problem of
24/
vicarious consent; consent of the third party for the owner. While vicarious
consent may be given, the right to relief is personal and may not be vicariously
25/
asserted. The only known exception is when a defendant may assert possession of
an article, when possession of the article is an element of the offense, in order
to gain standing to assert Fourth Amendment rights, evern if actual possession lies
26/
in another. Thus, the question becomes one of standing and as the Supreme Court
has noted: "The depositor takes the risk; in revealing his affairs to another,
27/
that the information will be conveyed by that person to the government."
The right and capacity to object rests only in the holder of the records.
So far as constitutional law is concerned, a person must rely on
whomever holds his records to keep them from disclosure; he has no right to
do so directly. If any record must be withheld it must be required elsewhere
than the Fourth Amendment.
24/.In regard to places; the law is more definite. Relatives may give consent:
Bumper v. North Carolina;, supra; Coolidge v. New Hamphsire 403 U.S. 443
(1971). Landlords and hotel clerks cannot consent to searches of a quest's
room. Stoner v. California; 376 U.S. 483 (1964); Chapman v. United States,
365 U.S. 610 (1961). See, United States v. Matlock, 415 U.S. 164 (1974)
(Mistress can consent).
25/ Compare, Brocon, v. United States, 411 U.S. 223 (1973) with, Mancusi v. De
Forte, 392 U.S. 364 (1968)
26/ dOiti v. United States; 362 U.S. 257 (1960).
27/ United States v. Miller; 425 U.S. 436; 443 (1976)(discussed infra; at note 86.)
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C. The Fifth Amendment Right Against Self-Incrimination
The second Constitutional issue involved in third party records in-
vestigations is whether production of incriminatory documents may be required or
is privileged under the right against self-incrimination. While the basis for
the privilege against self-incrimination is historically less clear than the
protection against unreasonable searches and seizures, the limitations of the
privilege are much clearer.
A witness cannot be compelled to answer any question which would
28/
incriminate himself or the response could provide incriminatory evidence.
29/
However, the privilege will not apply if prosecution is precluded, to a cor-
poration or association, or on behalf of another. Similarly, standardized
medical and investigative tests may be properly performed on a defendant without
32/
violating the privilege. Essentially, the privilege is personal, and, most
often, testimonial. The singular question here is the compulsion exacted for
production of records now in the possession of third parties.
28/ Ullman v. United States, 350 U.S. 422 (1956); Counselman v. Hitchcock, 142
U.S. 547 (1892).
29/ Kastigar v. United States, 406 U.S. 441 (1972) (use immunity under 18 U.S.C.
6001-6005), Murphy v. Waterfront Commission, 378 U.S. 52 (1964) (use im-
munity principles); Counbelman v. Hitchcock, supra (transactional Immunity).
30/ George Campbell Painting Corp. v. Ried, 392 U.S. 286 (19688) (corporation);
United States v. White, 327 U.S. 694 (1944) (union); Hale v. Henkel, supra,
note 20.
31/ Rogers v. United States, 340 U.S. 367 (1951); United States v. LaPera, 443
F.2d 810 (9th Cir., 1970), cert. denied, 404 U.S. 958 (1971) (co-conspirator),
Bellis v. United States, 417 U.S. 85 (1974) (dissolved partnership).
32/ Including blood samples, Schmerber v. California, 384 U.S. 757 (1966);
fingerprinting, handwriting and voice exemplers, United States v. Dionisio,
410 U.S. 1 (1973); Gilbert v. California, 388 U.S. 263 (1967); and appearance
in line-ups, United States v. Wade, 388 U.S. 218 (1967).
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The most common example in case law has been criminal tax fraud or
delinquency process. Tax enforcement will be a specific subject at a later point,
but here three cases specify the constitutional parameters. The issue in Couch
v. United States was whether "the taxpayer may invoke her Fifth Amendment privi-
lege against compulsory self-incrimination to prevent the production of her
33/
business and tax records in the possession of her accountant." A summons
had been issued to the taxpayer's accountant for all her records and his work-
papers; an internal revenue agent had reviewed these documents at the accountant's
office with his permission, but, on the taxpayer's request, the accountant had
given the papers to her attorney. The first key problem for Couch was that she
was not in possession of her papers; the divergence of overship from possession
34/
distinguised the facts from much of the previous law. Petitioner's argument
for the privilege to be based on ownership enclusively failed on the basis of
35/
"control" of the documents. The second problem facing Couch was that of
"compulsion", for, as in most third party records investigations, the pro-
36/
spective defendant is not required to do anything.
Bellis v. United States is best known for the proposition that even
33/ 409 U.S. 322, 323 (1973). "The essential inquiry is whether [petitioner's]
proprietary interests further enables her to assert successfuly a privilege
against compulsory self-incrimination to bar enforcement of the summons and
production of the records, despite to fact that the records no longer re-
mained in her possession." 409 U.S. at 327.
34/ See, United States v. White, supra, note 30 at 699: "[T]he papers and
effects which the privilege protects must be the private property of the per-
sons claiming the privilege, or at least in his possession in a purely personal
capacity," 322 U.S. at 699. In Couch a variety of documents were required
including the accountant's work papers.
35/ 409 U.S. at 330-335.
36/ 409 U.S. at 328-329 136.
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a partnership, no matter how small, with an institutional identity, creates records
37/
to which neither partner may assert a privilege against self-incrimination.
A difference of opinion within the Court in this case strikes a particular note
in third party records: even possession, lawful or not, without uninfringed owner-
38/
ship will be defeated when the Fifth Amendment privilege in asserted.
The court was faced with accountant's papers in the hands of tax-
39/
payers' attorneys again in Fisher v. United States. Again the Court held that
the papers were not Shielded from summons by the Fifth Amendment because they
were not his private papers and, although the papers were incriminating, the
40/
taxpayer was not compelled to make them incriminating or to incriminate himself.
It is the dicta of Fisher which is useful in this study; more so than the repeti-
tion of the holding in COI-a; for a singular niche in Fourth and Fifth Amendments
rights to records in the hands of a third party may exist. Thus a defendant may
assert a Fifth Amendment right only if he can show (1) possession, (2) ownership
and (3) that the documents are "per se" incriminating.
37/ 417 U.S. 85 (1974)(Bellis rectirates the representatives capacity of the
Elder as well).
38/ Distinguish; Boyd, v. United States; 116 U.S. 616 (1886).
39/ 425 U.S. 391 (1976) (decided the same day as Miii V. tatea'SiateS; supra
note 27.
40/ 425 U.S. at.405-414. On Fourth Amendment grounds the taxpayer would fare no
better under Miller if a summons or subpoena issued; or if a search warrant
issued; no compulsion would be involved: Andresen v. Maryland; 427 U.S.
463 (1976).
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D. Attorney-Client Privilege: The
Fifth Amendment Diary
In Fisher v. United States, the court specifically reserved the
question of whether an attorney may be forced to produce a.clients documents
4i/
which are incriminatory:? The Court's dicta is as follows.
"Confidential disclosures by a client to an attorney made
in order to obtain legal assistance are privileged. ...
The purpose of the privilege is to encourage clients to
make full disclosures to their attorneys. ... As a prac-
tical matter, if the client knows that damaging informa-
tion could more readily be obtained from the attorney
following disclosure; the client would be reluctant to
confide in his lawyer and it would be difficult to ob-
tain fully informed legal advice. ... This Court and
the lower courts have thus uniformly held that pre-
existing documents which could have been obtained by
court process from the client when he was in possess-
ion may also be obtained from the attorney by similar
process following transfer by the client in order to
obtain more informed legal advice. ... The purpose
of the privilege requires no broader rule. ... Thus,
even absent the attorney-client privileges, clients
will not be discouraged from disclosing the docu-
ments to the attorney, and their ability to obtain
informed legal advice will remain unfettered. It
is otherwise if the documents are not obtainable
by subpoena duces tecum or summons while in the ex-
clusive possession of the client, for the client will
then be reluctant to transfer possession to the law-
yer unless the documents are also privileged in the
latter's hands." 42/
41/ 425 U.S. at 414
42/ 425 U.S. at 403-404.
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This dicta reiterates the narrow rule that papers within a person's possession
which fall within the Fifth Amendment privilege are not obtainable from counsel,
43/
and thig rule had been stated for sometime in the lower courts. The rule
appears to cover two kinds of papers: (1) pre-existing documents exclusively
possessed and (2) documents created at the behest of counsel. The former would
44/
remain privileged if they had been privileged in the hands of the client:? The
latter would intially be privileged as in the attorney-client privilege and
may gain the status of the Fifth Amendment privilege if it should include incri-
45/
minating material.
This exception would not alter the law; it his been a part of the at-
torney-client privilege for many years. The sole significance is that, even
when the attorney client privilege must give way to extreme; temporary needs,
some matters within that privilege will remain beyond reach in the higher
standard of the privilege against self-incrimination.
43/ United States v. Osborne, 561 F.2d 1334 (9th Cir., 1977); United States v.
Judson, 322 F.2d 460 (9th Cir., 1963); Collon v. United States, 306 F.2d 633
(1962).
44/ This is the diary question which has not been settled. The problem of au-
thority is similar to proving a negative: If a diary (or other record) is
not presented to another and that person transmits knowledge of its existence
to law enforcement authorities, it cannot be summoned.
45/ United States v. Osborne, supra, note 43; United States v. Judson, supra,
note 43.
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E. Access to Tax Records: The IRS as an Intra-
Governmental Third Party
While the simplest third party records investigation would appear
to be that of records in the hands of another governmental agency, production
of the most useful record in corruption and organized crime cases, tax records
in the hands of the Internal Revenue Service, cannot be compelled. This result
is reached only in relation to the returns actually filed with the Commissioner,
not to copies retained by the taxpayer or his agents.
1. Agency Acquisition of IRS Tax Records
Section 6103 of the Internal Revenue Code declares tax returns to
be public records, but limits inspection of returns, under orders and by rules
of the President, to officials of the States charged with tax administration.
In the case of corporation, to officials charged with corporate oversight and
44/
shareholders of at least 1% of outstanding stock. Regulations promulgated
under this section provided authority for disclosure of particular records to
individual establishments within the Federal Government; facilitating investi-
4/
gation within special areas of administration, for a number of years. Yet
there was no general exception for broad-based criminal investigations. A
series of amendments, culminating in the Tax Reform Act of 1976 substantially
44/ Internal Revenue Code of 1954, ?6103; August 16; 1954; c. 736; 68A State 753.
26 U.S.C. 6103 (1970, Supp. 1973) as amended. See; also; 26 C.F.R. ?301.6103(a)
(1977).
45/ 26 C.F.R. 301.6103(a)-101 through 109. (1977) (Committees of Congress; Secu-
rities and Exchange Commission, Advisory Commission on Intergovernmental
Relations, Department of Commerce, Renegotiation Board, Federal Trade Com-
mission, Board of Governors of the Federal Reserve System and the Treasury
Department.
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46/
specified access for federal agencies. The recent amendments to section 6103
permit the President to make specific, detailed written requests for individual
returns and. summary information on persons being considered for President appoint-
ments, and permit a broader scope of persons involved in federal tax litigation
4//
statutory access to returns. The Tax Reform Act of 1976, Section 1202(e), now
Subsection (1) of Section 6103, provides a more narrow basis for third party
records investigations to be conducted through tax records. While it necessary
to consider these provisions as exceptions to a general nondisclosure policy
ia the tax laws; this subsection provides the conplex for all executive investi-
gatory agencies to acquire tax information on a person or corporation. Tax re-
turn information will be provided to any agency for use in investigating viola-
tion of a Federal criminal (non-tax) statute, or in preparing for administrative
or judicial proceedings under a criminal statute, when ordered by a Federal
48/
District court judge. The head of any Federal agency may apply for such an
order, but must show three things before the order can be granted (1) there
is reasonable cause to believe that a criminal statute has been violated, (2)
the information sought has probative value to the investigation of that viola-
tion and (3) the information can not reasonably be obtained from another source,
or that the return information is the most probative evidence of the criminal
46/ See, Tax Reform Act of 1976; Pub. L. 94-455; 90 Stat. 1667, October 4, 1976;
Title XII, ?1202.
47/ 26 U.S.C. 6103(g); (h). Subsection (g)(2) requires the Secretary of the
Treasury to notify any person on whom he has provided summary information
of that fact within 3 days of doing so. Subsection (h)(2) brings within
the statute the necessary practice of providing tax returns to the trial
attorneys within the Justice Department's Tax Division, the U.S. Attorneys,
or other attorneys prosecuting tax cases.
48/ 26 U.S.Q. 3
61 0-1(1 1,61.)? J-971).& 51IPP 1 221.-
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49/
act. The Secretary of the Treasury is not required to disclose the information
if he certifies to the court that disclosure would reveal a confidential source or
50/
seriously impair a civil or crimina tax investigation. This procedure is far
more demanding than the requirements of obtaining a subpoena or subpoena duces
tecum, and was specifically designed to limit access more effectively to speci-
______
51/
fically articulable needs. The ability of the agencies to investigate on the
basis of third party records under these restrictions is currently being tested,
but legal challenges are not yet recorded.
2. IRS Acquisition of Third Party Records
An additional problem; and one which will recur throughout a discus-
sion of third party records; revolves on whether the subject of the records and
the investigation should be notified and the extent of his legal responses. This
represents the other side of the coin: The IRS means of acquisition of records
from a third party as distinct from the IRS being the third party from whom records
are sought. The means by which the IRS acquires information will have an impact
on whether it can disclose information to other agencies.
The efficient operation of the revenue collection system is specially
important to any government; and Congress has granted the IRS additional powers
in order to insure that efficient operation. Most important of these is the
49/ 26 U.S.C. 6103(i)(1)(B). This includes the Deputy and Assistant Attorneys
General.
50/ id.
51/ The Tax Reform Act of 1976 increased the number of agencies with potential
access, limited the scope of their access and added the more rigorous procedure.
Additionally, the Act increased the offense of unauthorized disclosure to a
felony with a potential sentence of five years and a $5,000 fine. See, 26
U.S.C. 7213, 18 U.S.C. 1905 (1970; Supp. 1976).
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authority to summon a taxpayer, or any person having custody of records pertaining
to a taxpayer's tax liability, for any of four purposes: "[1] ascertaining the
correctness of any return, [2] making a return where none has been made, [3]
determining the liability of any person for any internal revenue tax or the lia-
bility at law or in equity of any transfereee or fiduciary of any person in re-
52/
spect to any internal revenue tax, or [4] collecting any such It
was this type of administrative summons which triggerd the court proceedings
53/
in Couch, Beilia, and Fisher.-- The breadth of inspection and the boilerplate
nature of enforcement make the administrative summons a powerful tool for in-
vestigations within the four purposes. However; the courts have construed these
purposes narrowly in order to insure that the administrative summons is not used
54/
for a solely criminal investigation. This means that the summons may be issued
and enforced if issued in good faith before a recommendation of criminal prosecu-
tion is fowarded to the Justice Department, or if there remains a secondary
55/
civil purpose to a criminal investigation. The reverse of this procedure, the
56/
suggestion of a tax audit by the Justice Department; appears to be impermissable.
52/ 26 U.S.C. 7603 (1970)
53/ Supra; notes
54/ Donaldson v. United States; 400 U.S. 517 (1971) (See; cases cited at n. 13):
Reisman v. Caplan 375 U.S. 440(1964); United States v. Zack, 521 F.2d 1366 9th
Cir., 1975); United States v. Held; 435 F.2d 1361 (6th dri-77 1970), cert. denied,
401 U.S. 1010 (1971).
55/ Donaldson; Zack, fiLa;
56/ See, United States v. Tv;.Teei; 550 F.2d 297 (5th Cir., 1977). See, also, United
States v. Lafko, 520 F.2d 622 (3rd. Cir.; 1975).
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When a summons is issued to a third-party the subject of the summons,
traditionally, was not formally notified. Should the subject taxpayer be aware
of the summons, the Supreme Court has held in Donaldson v. United States,
there is no statutory right, or interest sufficient under the Federal Rules of
57/
Civil Procedure to justify intervention. Congress reversed the holding of
58/
Donaldson with Section 1205 of the Tax Reform Act of 1976. Section 1205(a)
requires the IRS to notify any taxpayer of the fact that a summons has issued to
a third party recordkeeper requiring production of books and papers pertaining
to the taxpayer within three days of service of the summons and not less than
59/
fourteen days before the records are to be inspected. Section 1205(b) grants
any person who has a right to notice under section 1205(a) the additional right
to intervene in proceedings to enforce a summons and the right to stay compliance
with the summons by ordering the person summoned not to comply and serving a copy
66/
of that order to the IRS.
57/ Supra, note 54. F.R. Civ. P. 24(a)(2); providing for permissive intervention,
was at issue. (Part VI).
38/ Supra; note 46. 26 U.S.C. 7609(a)(1977).
59/ Third party record keepers are defined to include banks, savings and loans,
consumer reporting agencies; other extenders of credit; stocks and securities
brokers; attorneys and accountants.
60/ Supra, note 46. 26 U.S.C. 7609(b)(1977). This section also prohibite the IRS
from examining any records covered by the summons. It would appear that once
the taxpayer has give notice of stay and intervention the burden falls on
the IRS to comply. 26 U.S.C. 7609(d)(1977). The period of time, following
intervention until the issue of the summons is decided is excepted from the
running of the statute of limitation. 26 U.S.C. 7609(e)(1977). In case
of a "John Doe" summons a court proceding must be held in which the IRS
must show (1) an ascertainable person or group, (2) a reasonable basis to
believe there has been a violation and (3) no readily available other source.
26 U.S.C. 7609(f)(1977).
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3. IRS Discretion to Disclose
The administrative summons was widely used for acquiring third party
records before Congress enacted the Tax Reform Act of 1976. How much the provisions
of Section 1205 have operationally restricted the IRS is still subject to specula-
tion. Additionally, the effect of the new format and added restrictions on access
to IRS tax returns under amendments in 1974 and 1975, and the Tax Reform Act,
cannot be ascertained, but, if these provisions are legally effective and enforced,
the agencies should have very limited access to tax records for non-tax investi-
gations. Somewhere between these two propositions is the subliminal problem of
non-tax criminal investigations leading to a referral to the IRS for administra-
tive tax review, although there is an inherent inference of a criminal allega-
61/
tion. This trilogy leads to one final problem for agency acquisition of tax
records for nontax criminal investigations: the IRS discretion to certify that
62/
disclosure would "seriously impair a civil or criminal tax investigation."
The restrictions on disclosure of tax information is part of a
legislative scheme designed to insulate the IRS tax operations and the taxpayers
from political influence and other misuse of IRS process in other criminal in-
63/
vestigations. Previous to the Tax Reform Act; investigators were often counseled
to expect little or no information from the IRS; that; in effect; investigations
with the IRS were a one-way street. Congress has now made this counsel a matter
61/ See, Tweel; supra, note 56.
62/ Tax Reform Act of 1976 1202(a)(1); note 46; 26 U.S.C. 6103(1)(1)(B)
(1977).
63/ Sen. Rep. 94-938; 94th Cong.; 2d. Sess. 326-331; 1976 U.S. Code, Cong. and
Admin. News 3756-3761.
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of law to the extent ordered by the courts. With this mandate, the IRS has a
permium on non-disclosure in order to protect its own civil and administrative
options. It would appear imprudent for the IRS to given information to ther
investigatory agencies when a return of information developed by that agency
may be legally useless for further enforcement of the tax laws. The complex
legislation on IRS tax information acquisition and disclosure now appears to
counsel a burden on third party records investigations which can be overcome
only when the IRS has no expectation of continuing tax procedings in that
matter. Until this becomes a matter of judicial sanction however, interagency
communications probably will continue.
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F. Intra-Governmental Records
Records, other than IRS tax records, already in the possession of
an agency of the Federal Government provide a special source of information
for criminal investigations. As sources, these agencies include the obvious
Securities and Exchange Commission; Federal Trade Commission, or the Interstate
Commerce Commission, to the more obscure Veterans Administration, Defense
Intelligence Agency, or the Federal Election Commission. The ability of an
agency to acquire records from other agencies in the course of a criminal
investigation may be the difference between prosecution and non-prosecution.
1. The Privacy Act of 1974
General consideration of an individual's right to privacy were all that
might compel an agency not to disclose its records on an individual to another
agency. Wide differences as to what that meant and perceived abuses at both
ends of the scale from permissiveness to secretiveness lead Congress to enacted
a series of laws since 1974 setting out some limits and requirements of dis-
64/
closability. The Privacy Act of 1974 is important in the context of third
party records in its restrictions on disclosure and requirements of accuracy.
The Act proceeds from a premise of nondisclosure of any record without the
permission of the person who is the subject of that record, to an exception
permitting disclosure:
.62.ij Of particular
3; 83 Stat. 1897;
1057, December 31;
Act; 5 U.S.C. 552
accompanying text.
interest here is the Privacy Act of 1974, Pub. L. 93-579,
December 31; 1974; as amended; Pub. L. 94-183, 2, 89 Stat.
1975; 5 U.S.C. 552a(1977). See 'al;O; Freedom of Information
(1977); Tax Reform Act of 1976; supra, note 46-51 and
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"To an agency ... of the United States for a civil
or criminal law enforcement activity if the activity
is authorized by law, and if the head of the agency
or instrumentality has made a written request ...
specifying the particular portion desired and the
law enforcement activity for which the record is
sought.65/
The ability of law enforcement agencies to gather information is not impaired
so long as the formal request is made. This exception covers disclosure by
one investigating agency to another, such as from the Federal Trade Commission
to the Securities and Exchange Commission. The refdrence procedure followed by
many agencies communicating recommendations for prosecution by the Justice
66/
Department falls within the definition and exception for "routine use". while
the criminal investigation agencies have only a formal role in the administration
of the Privacy Act' as recipients; the same agencies have significant operative
duties as disclosers of information.
Of primary importance to a discloser under the Privacy Act is accuracy
in the records disclosed. The Privacy Act requires each agency to maintain only
information which is relevant and necessary to accomplish the agency's purposes,
collect its information to the greatest extent practical from the individual,
maintain its records with a degree of accuracy; relevance, timeliness and com-
pleteness as reasonably necessary to assure fairness and make reasonable efforts
to notify the individual "when any record on such individual is made available to
any person under compulsory legal process when such process becomes a matter of
67/
publicj.gco;47,Furthermore; the Act requires each agency to disclose all
65/ 5 U.S.C. 552a(b)(F)
.. .. .
66/ 5 U.S.C. 552a(a)(F); (b)(3). See e.g. Harper v. United States, 423 F. Supp.
192 (D.C.S.C., 1976).
67/ 5 U.S.C. 552a(e)(1),(2);(5) and (8). These are only requirements which are of
interest in this study. Agency re ulations, Federal Register Reporting and notices
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all records pertaining to an individual to that individual, and to permit
the individual to request amendment of that record and to appeal the deter-
68/
mination on his request.-- However', agencies may promulgate regulations
exempting records from all of these requirements if the record is maintained
by a component whose principle function pertains to enforcement of the criminal
laws and which consists of information compiled for that function or between
69/
the individual's arrest and release from supervision. Thus, the components
of the Federal government which have a primary purpose in criminal law enforce-
are exempt from the Act's requirements of agencies as both recipients and
disclosers.
Components of an agency which do not have this primary function, are
required to give access', accept proposed correctional amendments and update
receipients an amendments and corrections. A seminal question is what agencies
or components of agencies have such a primary function, but Congress did not
70/
provide an answer. This ambiguity poses hazards for any agency which considers
itself "borderline". While it would be conceded that the Criminal Division of
the Justice Department or the Intelligence Division of the Internal Revenue
Service have primarily criminal law enforcement functions, the real question
68/ 5 U.S.C. 552a(d). This section does not permit an individual access to
materials in preparation for a civil action.
69/ 5 U.S.C. 552a(j)(2).
70/ This question includes the degree of organization and record breakdown
within an agency. For example; two attorneys in the Appellate Section, Tax
Division of the Justice Department do almost exclusively criminal appeals
while the rest of the Section does civil appeals. These two attorneys obvi-
ously have a primary function in criminal law enforcement while rest of the
Section does not; organizationally and functionally as recordkeepers there
is no difference. The same holds true of all agencies such as a segment of
HEW's Office of Inspector General; a segment of IRS's Office of Inspection
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revolves around components such as the enforcement Division of the Federal
Trade Commission, the fraud unit at the Securities and Exchange Commission,
or the Food and Drug Division of HEW's.Office of General. Counsel. Should
an agency incorrectly believe its "primary functions" include criminal law
enforcement and, therefore, not permit access and proposal corrections to
the individual; it may impugn the admissability of a record referred to a
criminal investigatory agency which results in prosecution. Conversely,
If an agency mistakenly fails to notify an individual of disclosure because it
believes the receipient to be a criminal investigatory agency; an assertion
of rights by the individual may impugn the admissability of the documents if
further, properly, referred to a criminal investigatory agency and prosecution.
In terms of the individual, the Act does not require criminal investi?
gatory agencies to account for disclosures of information on the individual to
71/
that individual. At the same time; with no access to records, on individual's
disputation of the record need not be reported to the agencies to whom a record
12/
has been disclosed:? Thus; the Act itself does not place any new premium on
the accuracy of criminal investigatory files. Other than agencies on the border?
line of criminal investigatory functions; the Act does not significantly impair
the exchange of information.
71/ 5 U.S.C. 552a(c)(3)
12/ 5 U.S.C. 552a(b)(4).
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2. Federal Bureau of Investigation Records
The organizational proximity of the FBI to federal prosecutions --
both as arms of the Justice Department -- greatly simplifies the use of records
transfers between them. However, a special standard of care has also been
formulated in recent years for the maintenance and dissemination of current
records and investigative reports.
The FBI is authorized and directed to "acquire, collect, classify,
73/
and preserve identification, criminal identification, crime, and other records".
While the statute says nothing about the accuracy or completeness of each file
on and individual; the courts have required a degree of accuracy and completeness
74/
before use or dissemination. These requirements are important to the reliance
of other agencies on such preliminary records as criminal histories and finger-
prints, but the courts have not asserted any requirements over FBI investigative
reports or summaries. There appear to be no limitations on disclosure, access,
or notifications if minimum accuracy standards are maintained.
In this instance concern focuses solely on the FBI's "criminal identifi-
cation" files submitted by police departments and other law enforcement agencies
concurrent to an arrest; not general identification files developed from federal
employment or other non-criminal sources. Thus; the cases arise in the context
of expungement. Initially the FBI was required to expunge information from the
73/ 28 U.S.C. 535 (1970; Supp. 1976).
74/ Procedural requirements are involved since this set of requirements would
not rest on a statutory base. See, e.g. Crow v. Kelly, 512 F.2d 752 (8th Cir.
1975) (mandamus).
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criminal identification records when the submitting agency later reported
75/
facts which disputed or reversed the first filing. Dicta has extended
this rule to a duty of reasonable care to avoid injury to persons through
76/
the dissemination of inaccurate information:?.- Beyond this point the
77/
law has not formally extended, although administration practice may.
Again, in the case of FBI records, and in agency records under the
Privacy Act, some premium is being placed on accuracy. The effectiveness
of this premium remains questionable.
75/ Menard v. Saxbe, 162 U.S. App. D.C. 204, 498 F. 2d 1017 (1974)
76/ Tarlton v. Saxbe, 165 U.S. App. D.C. 293, 507 F.2d 1116 (1977). See
also, Utz v. Cullinane, 172 U.S. App. D.C. 67, 520 F.2d 467 (1975)(District
of Columbia "Duncan Ordinance"; standard of care).
77/ The caseload of expungements has increased in recent years, as has the
the complexity of the courts authority to order exchangement. See, e.g. Morrow
v. District of Columbus, 135 U.S. App. D.C. 160,.435 F. 24.728, on remand, In
Re Alexander, 259 A.2d 592 (1970). Contra, Rogers v. Slaughter, 469 F.2d 1084
(5th Cir., 1972); Rerschil v. Dyra, 365 F.2d, 17 (7th Cir., 1966) cert. denied
385 U.S. 973 (1960. Cf. Wilson v. Webster, 467 F.2d 1282 (9th Cir., 1972).
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G. Private Records Required to be Maintained by
Statute or Regulation
Beyond the confines of records kept by agencies of the government
an even larger universe of records exists in the hands of private parties
pertaining to other private parties which are required to be maintained
by statute or implementing regulation. These records provide more fertile
ground for criminal, civil or regulatory investigations because the extensive-
ness of these required records is only rarely understood by the person
subject to investigation. For example, many organized crime figures have
been known to purchase cashiers checks or money orders; issued in blank
if possible; in the false belief that such drafts are not traceable. Another
poignant example was the speed with which Texas and Federal authorities
were able to trace the ownership of the weapon in the Kennedy assassination
'8/
through voluntarily, but now mandatorily; maintained records.
In this section; such mandated records as bank deposits, securities
transfers, firearms and explosives transfers and political campaign reports will
be considered. While no attempt is made at being exhaustive in this field, an
attempt has been made to balance the types of reporting to the field of potential
sources of investigation material from third parties. One particular thread
connecting many of these records should be noted at the beginning - money.
As every other aspect of life depends upon a cash flow - in currency, drafts,
'78/ ?UPi*,, notes 1-2 and accompanying text.
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checks, notes or other representative form - so, too, must rackerteering, bri-
bery, white collar, computer or any other complex criminal scheme in which
79/
the Federal 'Government has jurisdiction.
1. Bank Records
Bank records are the singularly most useful third party records which
might be acquired for criminal investigative purposes. "Congress finds that
adequate records maintained by insured banks have a high degree of usefulness
8o/
in criminal, tax and regulatory investigations and proceedings." On this
predicate, Congress has extended mandatory record-keeping and reporting functions
over a variety of financial institutions. While this section will be limited
to banking; there are significant repercussions in other areas of finance,
including securities markets and transfers. Third party records investigations
utilizing bank records can not ignore either federal; state or foreign law.
79/ Note that even a criminal tax case need not be based on a "net worth" or
"bank deposits" method of proof; but can be wholly made out through recorded
expenditures; i.e. cash payment for everything: hotels; restaurants, airline
tickets; and special occasions are examples of single shot major expenditures
which generate voluntary records which will be kept by the third party for
tax purposes. Patterned expenditures to the corner supermarket or service
station also provide testimony although not documents.
80/ U.S.C. 1951(a); 31 U.S.C. 1052(e).
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a. Federal: bank secrecy act of 1970.
In response to growing complexity in Federal criminal prosecutions
and a countervailing unavailability of foreign and domestic bank records,
81/
Congress passed what is colloquially known as the Bank Secrecy Act of 1970.
The Bank Secrecy Act authorizes the Secretary of the Treasury to promulgate
regulations mandating records to be maintained and reported by federally in-
82/
sured banks, state insured banks and uninsured banks. The Act requires repro-
duction of each check or other instrument and signature cards for each person
who has an account with that bank, to the extent that the Secretary demands by
83/
regulation or order. The Act also requires that reports on specific types of
transactions be made to the Secretary under regulations that he promulgated,
and, in any even, all imports of currency or commerical instruments in excess
84/
of $5000. This statutory scheme, and regulations applicable under it in 1974,
weathered a broad based constitutional attack by banks, an association of banks
85/
and customers in California Bankers Association v. Schultz.
81/ Pub. L. 91-508, 84 Stat. 1114 (October 26, 1970); 12 U.S.0 ??1829b, 1730d,
1951-1959; 31 U.S.C. ??1051 - 1122 (1970, Supp. 1976).
82/ 12 U.S.C. 1829b, 1953. The Act also covers such other financial institutions
as securities brokers and dealers, currency exchanges, insurers, travel agencies
or other remitters, insurers, redeemers or cashiers of checks, money orders or
other instruments. For the time being, discussion will be confined to colloquiall:
known "banks".
83/ 12 U.S.C. 1829b(c), (d); 1953(a).
84/ 31 U.S.C. 1081 - 1105
85/ 416 U.S. 21 (1974). The regulations in California Bankers Association are
not substantially different from those in force at the present time.
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More recently, the Court held in United States v. Miller, that a criminal
defendant lacks standing to object to a defective grand jury subpoena duces
tecum issued to banks for the production of records of his account that the
86/
' banks maintained under the Secrecy Act.
The caveat of the 'extent to which the Secretary requires' is impor-
tant since the Act makes no differentiation and could require reproduction
and maintenance of all instruments. The Secretary's regulations are significantly
less demanding and focus on those records with the "high degree of usefulness".
The regulations require maintenance of records on all extensions of credit in
excess of $5,000 unless secured by realty and all documents related to trans-
87/
actions involving more than 10,000. Additionally the Secretary requires
records be maintained of each signature authority over any account, statement
88/
or ledger cards, and each check, clear draft or money order. Expressly ex-
cluded from the checks and drafts requirements are those accounts which issue
over 100 instruments per month or at a time which are dividend, payroll, employee
89/
benefit, insurance claim, medical benefit and pension or annuity checks.
86/ 425 U.S. 435 (1976).
87/ 31 C.F.R.
103.33,(1977).
88/ 31 C.F.R.
103.34 (1977).
89/ 31 C.F.R.
103.34(b)(c) (1977).
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Also exempted are checks or drafts drawn by securities brokers and dealers, or on
governmental agencies, fiduciary accounts (i.e. trust) or other banks or financial
90/
institutions. The specific.requirpments embodied in these regulations peTmitr.
the normal course of small business to operate without imposing duties on banks;
at the same time, steady volume customers are exempted. Thus the regulations
attempt to ferret out inordinately large or singular transactions which are most
likely to implicate criminal activity, or tax or regulatory violations. The
regulations also make clear the relative importance of controlling foreign trans-
fers of funds (over $5;000) since none of the exemptions apply and each individual
9i/
must maintain corrollary records. The reporting requirements under the imple-
menting regulations are also less cumbersome than could be demanded under the Act.
Banks are required to report all transactions on transfers involving more than
?10,000, or its equivalent in foreign currency, within 45 days of the trans-
92/
action. This requirement does not apply to transactions "with an established
customer maintaining a deposit relationship with the bank, in amounts which the
bank may reasonably conclude do not exceed amounts commensurate with the custo-
93/
nary conduct of the business; industry or profession of the customer concerned.6-
96/ id. Securites brokers 1..1.(1,.dealer are controlled by the Securities and Ex-
change Act of 1934. See; infra; notes 118-132; and accompanying text. See,
a.l.SO; 31 C.F.R. 103.35 (1977).
91/ 31 C.F.R. 103.22; 103.24; 103.32.
92/ 31 C.F.R. 103.22; 103.25. Report is to be made to the Commissioner of
Internal Revenue.
93/ 31 C.F.R. 103.22(b)(3). A list of such customers is required. id.
Subsection (b)(2) exempts inter-bank business. These transactions are separately
governable and do not have a high degree of usefulness in investigations.
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The regulations point again to requiring reporting those transactions which
are a strong indicia of abnormal, and perhaps unlawful, activity. Special
requirements for the reporting of import and export of currency or instruments
exceeding $5,000 are levied on individuals, with banks excepted, as well as
94/
interests or signatory authority in foreign bank accounts:? These requirements
must be considered in light of the record maintenance requirements under the
regulations as providing a constant record of any such large sums of money or
95/
instruments.
Much of the Secretary's authority under the Act has been delegated to
agencies within the Treasury Department and to independent agencies with special
96/
expertise in an area. These reports would be third party records only to
agencies other than the Secretary and his designees; the Act provides for dis-
97/
closure to other agencies when requested under regulation of the Secretary.
The regulations under this section require the head of a requesting agency to
specify: 1) the particular information desired, 2) the criminal, tax or regulatory
investigation or proceeding to which the investigation or proceeding to which
98/
the information pertains, and 3) the agency's need:? Additionally, agencies
94/ 31 C.F.R. 103.23, 103.24. See, especially, 31 U.S.C. 1141-1143 (1970, Supp.
1976); 31 C.F.R. 128.1 etg. 1976).
95/ See, 31 C.F.R. 103.33, 103.34. Effectively the government can trace any such
sums until they are broken up, making crime inefficient at worst.
96/ 31 C.F.R. 103.46. For example the securities brokers and dealers provisions
are enforced by the SEC; the export-import provisions are enforced by the Com-
missioner of Customs.
97/ 31 U.S.C. 1061.
98/ 31 C.F.R. 103.43.
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can not circumvent the Secretary and acquire information from the banks di-
rectly from records maintained or reports, and using the Secretary's authority,
99/
except by resort to legal process. Conflicts in this process are avoided by
conforming regulations within the agencies with delegated authority.
It is essential at this point to look at actual bank practices.
First, many of the records which the Act requires to be maintained were pre-
viously being maintained by many, but by no means all, banks as a matter of
course in the event their activities or actions were questioned. For part
of the commercial banking and private banking world only the reporting re-
101/
quirements were new.
b. State: privacy, notification and banking practice.
Several states have more restrictive rules on disclosure of bank
records and this raised a number of problems within the principles of federalism.
It is first necessary to briefly consider the concept of preemption. Where
federal and state police powers have conflicted; the Supreme Court has started
with the assumption that the police powers of a state were not superseded by
the Federal Government "unless that was the clear and manifest purpose of
i(52/
Congress." The review necessarily entails a look beyond any unclear act
0/ 31 C.F.R. 103.51 Cf. U.S. Attorneys' Manual 9-2.165 (January 10, 1978)
(Grand jury subpoenas for financial records).
iCo/ See, e:i: 15 U.S.C. 200.41 (1977).
101/ Cf. California Bankers Association v. Schultz, supra, note 85, at 41-54.
102/ Ray v. Atlantic Richfield Co., - U.S. -, 46 U.S.LA. 42)(No. 76-930,
March 6, 1978); Jones v. Rath Packing Co., 430 U.S. 519 (1977); Rice
v. Santa Fe Elevator Corp. 331 U.S. 218, 230 (1977).
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into the legislative history for indicia of legislative intent. But even
if the Act does not completely preempt state action in an area, where an
actual conflict exists, where compliance with both Federal and State statute
103/
is impossible, the Supremacy Clause requires the State statute to give. way.
In this light the Federal Bank Secrecy Act of 1970 and various state laws can
be hypothetically analyzed for potential conflict.
First, at least four states - Alaska, California, Illinois and
Maryland- require third parties utilize legal process to gain access to bank
104/
records. The Federal Bank Secrecy Act requires the Secretary of the Treasury
to insure compliance; and this, necessarily, extends only to documents main-
tained under his regulations which are not required to be reported. Compliance
inspection would conflict with the state requirement for judicial process, but
not with administrative process. At any rate, the Secretary would gain access
to any such records under his legislative mandate despite state enactment which
105/
are more restrictive. Other federal agencies are required to utilize legal
lo/ Id.
164/ 1976 Alaska Sess. Laws 06.05.175; Cal. Govt. Code ?57460
et seq.. (1977); Pub. Acts 79-1493; 79-1494; 1976 Ill. Legis. Ser.; Md. Ana.
Code Art. 11; ?224-27 (1976), respectively. These statutes are limited to
state and local operations; but this is not necessarily required. Analysis
will proceed on the "worst case" assumption that the states made these statute
apply to all investigation with their geographic borders.
105/ 31 C.F.R. 103.51 indicates the Secretary's restrictive view of his authority:
"Except or provided in ??103.34(a)(i); [signature cards]
and 103.35(a)(i)[securities brokers' customer amount identifi-
cation]; and except for the purpose of assuring compliance with
the recordkeeping and reporting requirements of this part, this
part does not authorize the Secretary or any other person to in-
spect or review the records required to maintained.... Other in-
spection; review or access to such records is governed by applic-
able law."
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process in any event and court process, federal or state, would appear to
suffice. Whether administration process of a federal agency would suffice
to meet state law requirements is a question subject to debate.
Secondly, three of these statute - California, Illinois, and Maryland
require some form of notification to the person whose transaction records are
i06/
to be reviewed. In California notification is not required if access is
i07/
gained by use of a search warrant, while in Illinois and Maryland notifi-
108/
cation can be waived by a court.
Finally, following from notification; California permits the party to
iO9/
intervene to quash the subpoena summons or warrant. Whether this would be
true in a case of federal process through a state court, or vice versa, is a
question of interpretation which lies somewhere between the California state
practice and the rule in Miller. A contrary state rule hypothetical is apparent
where notification to a customer of impending review by the government is
iiO/
prohibited. This appears to be the case in several states.
This leaves two added propositions to be touched upon in passing - the
common law and optional notifications at the bank's discretion or by contract with
106/ note 104
107/ Ia. Notification then becomes an option to the bank.
i68/ id.
109/ Supra, note 104
110/ See e.g., Fla. Stat. Ann. 659.062 (1976); 1975 Iowa Acts; ch. 240, ?536;
Kansas Stats. ?17-5568 -17-5569 (1977); 1975 Oregon Laws, Chap. 193, ?9-10.
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depositor. Several states have judicially created restraints by placing a
111/
premium on notification on an implied contract right. Banks do not make
a.practice of discretipnary notification.of third party records investigations,
nor is such a provision common to depository, debtor-creditor relationships.
This is not say; however, that a bank officer or employee may not inform a
particular client; for whatever reason, that his or her bank transaction records
have been demanded by subpoena. Federal law does not prohibit this communication
short of criminal conspiracy to defraud or obstruct justice; and it is doubtful
that an agency of the government - excepting; perhaps; a federal grand jury -
could require silence.
c. International bank secrecy.
Bank secrecy laws of several foreign nations pose special problem
112/
for third party records investigations. While individuals are required to
report interests or signatory authority over foreign bank accounts, and banks
and others are required to report any significant international monetary trans-
113/
actions, as has already been noted; if the original violations were profitable
enough to warrant removal of the proceeds to another country, there is little
deterrent value in the Bank Secrecy Act. Special examples of restraints are
available the secret, numbered bank accounts of Switzerland and the Bahamas;
111/ 211. In Re Addonizio, 53 N.J. 107, 248 A.2d 531 (1968); Peterson v. Idaho
First National Bank, 83 Idaho 578, 367 P.2d 284 (1961). Whether these, and
other cases, raise an "impairment" of contract question under the Constitution,
if applied Federally, is speculative.
112/ While foreign relations are normally a matter for the Executive in the first
instance this section is offered because of the import these laws have on the
ability to investigate criminal, tax and regulatory violations.
113/ Supra, note 94, and accompanying text.
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such matters are so sensitive that investigators and prosecutors are cautioned
not to contact these countries without the authorization of the Justice Depart-
114/
ment. Generally; third party records searchers are impossible to effectuate
unless the foreign bank is a subsidiary of an American corporation or has a
115/
branch office in this country. Notwithstanding these foreign bank secrecy
acts, and criminal penalties for supplying records or testifying about banking
records or operations, the United States has utilized the grand jury process,
with its protective secrecy, to direct testimony from alien bank officials found
ii6/
within its jurisdiction. Despite these impediments, the Government continues
to press investigations into criminal; tax and regulatory violations through
iii/
foreign bank records
2. Securities Dealers and Brokers.
Securities dealers and brokers; including underwriters, are subject
to records maintenance and reporting requirements under the Securities and
118/
Exchange Act of 1934 and other laws; including the Bank Secrecy Act of
114/ United States Attorneys Manual 9-2.153 (January 10; 1977).
11./ I.e. this is a question of in Per;OULii jurisdiction.
116/ See, 2.ta. In Re Grand Jury Proceedings, United States v. Field, 532 F.2d
404 (5th Cir. 1976), rehearing and rehearing en bane have denied 535 F.2d 659,
660 (1976), cert denied; U.S. (1976). -
117/ See, Oversight hearings into the Operations of the IRS (Operation Tradewinds
Project Haven and the Narcotics Traffickers Tax Program), Committee on Government
Operations; U.S. Senate; 94th Cong. 1st Sess. October 6, November 4 an 11, 1975
(Committee Print).
118/ 15 U.S.C. ?78q(a)-(c) (1976). See alsO, 15 U.S.0 ?77f (1976) (Securities
Act of 1933); 15 U.S.C. ??80a-8, 80a-29 - 80a-34 (1976) (Investment Company
Act of 1940); 15 U.S.C. ??80b-4; 80b-10 (1976) (Investment Advisors Act of
1940); 15. U.S.C. 79e(1976) (Public Utility Holding Company Act of 19-35).
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119/
1970. While this area of law is specifically controlling of public owner?
ship of corporate securities from issuance through transfer, control of
frauds and insider trading, to dissolution, it is. important to other ilivesti?
.
gatory agencies as a means for tracking illicit capital.
The Securities and Exchange Commission requires the registration of
securities and prospectuses on the initial issuance of most securities of public
120/
corporations. Periodic reports are required to keep the Commission up to
date on transactions of a security, especially whenever five percent of equitable
121/
ownership in controlled by one person or a group of people acting in consert.
Registration is required of exchanges; brokers and dealers and; through the
i22/
securities; the identities of controlling interests. Since it is the mandate
of the Commission to protect the investor from fraud and manipulation through
misrepresentation; the exchanges brokers and dealers were required to maintain
entensive transaction and accounting records which may be examined by the
123/
Commission to insure compliance. Investment companies and advisors are
required to maintain and report substantially the same information as dealers,
119/ Su_.pra, note 81, at 31 U.S.C. (1052(e)(7)?(q) as Implemented 31 C.F.R.
103.35 (1977).
120/ 15 U.S.C. 5577f ?.77h; 77j. (1976). Exemptions includes securites guaranteed
by the United States; securities of governmental enties; notes, bills and bankers
acceptances; special pension and annuity securities; and bankruptcy receiver's
securities; among other. 15 U.S.C. 77e.
121/ 15 U.S.C. 78m(d) (1976).
122/ 15 U.S.C. 78f, 781; 78o, and 78ee (1976).
123/ 15 U.S.C. 578q. (1976). To the extent applicable; these records are also
reviewable by the Board of governors of the Federal Reserve System in fulfilling
their duties.
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brokers, exchanges and issurers by reference, but additional auditing and
i24/
accounting requirements are also imposed. These requirements are not pre-
125/
emptory of state law enforcement.
The various securities laws manifest an intent that securities
issuance and transfer be accomplished within the public's sight. Hence
the SEC is authorized to disclose to the public a wide variety of reports
submitted to it by issuers, exchanges, brokers, dealers and holding and
investment companies, with the single exception of trade secrets related
i2'7/
to patents and processes.
Nothing in the laws administered by the SEC prohibits or impedes
the SEC from disclosing its records to other investigatory agencies, regulations
promulgated by the SEC require an employees served with legal process for ob-
128/
taming such records to refer the matter to the Commission. It is
apparent from these regulations that the Commission acceeds to reeluests
from criminal law enforcement authorities readily and requests notification
124/ 15 U.S.C. ??80a-29 - 80a-31; 80b-4 (1976). 17 C.F.R. 240.15610-6 240, 17a1-
19 (1977).
125/ E.g. 15 U.S.C. 77r; 80b-18a (1976)
126/ 15 U.S.C.??178x, 79x; 80a-44; 80b-10 (1976). tai see, 17 C.F.R. 240.0-6
(1977).
127/ Cf. 5 U.S.C. 552(b)- (4 ) (1976).
i2t/ 17 C.F.R. 200.735-3(d), 200.410(c); 200.80 (1976).
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for approval of civil actions as a matter of protecting their own jurisdiction.
Under regulations implementing the Bank Secrecy Act of 1970, broker8
and dealers are required to ascertain taxpayer identification numbers for all
customers and maintain with these identifications all records granting sigma-
129/
ture or trading authority. Like banks, brokers and dealers are required to
130/
maintain records of receipt and remittance of all funds of ?10,000 or more.
To an extend, these regulations of the Secretary of the Treasury require the
same records as required by the SEC. To the extent of this duplicate requirement,
the
agencies may apply to the authority offering
An elemental difference exists
attention. Records maintained by a bank
reports submitted under that Act, appear
easiest access for the records.
at this junction which demands special
under the Bank Secrecy Act, and especially
to escape the strictures of the Privacy
Act. Under the Privacy Act; as already noted; a file on a "person" cannot be
'transferred from its originator agency to a requesting agency without notice to
i31/
the subject.
Although the records and reports are on a particular individual's
transactions with a bank;
it is the bank which is required to make reports and
maintain the records; and a question arises whether the individual customer has
I 32/
a right to notice and correction.
129/ 31 C.F.R. 103.35(a) (1977).
lid/ 31 C.F.R. 103.35(b)(3); (4) (1976).
131/ ,Supra, notes 69-70; and accompanying text.
132/ The customer may well be a "fourth" party in the transfer of agency re-
cords in this case. Note however; that the exemption applicable to a criminal
law enforcement requestor is more likely in this case. See, supra, notes 64-68,
and accompanying text.
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In the case of reports filed by the stock brokers and dealers under
regulations of the the SEC or the Secretary of the Treasury, the inter-
mediary nature of the respondent may not be entirely clear. These re-
cords and reports often provide a more conspiratory picture of the broker
or dealer than would a bank record. Whether a customer must be afforded
notice and correction under the Privacy Act is an even more clouded
issue.
3. Federal Elections Campaigns
The Federal election laws provide another illustration of specialized
regulatory activity which requires records important to other law enforcement
activities. By definition the records required under the Federal Election Cam-
13'3/
paign Act are primarily of use in the public integrity area, but the same
records may indicate illegal activity in other areas, especially those
related to lobbying in the political process - labor unions, associations
and corporations.
The FECA requires submission of detailed contribution and expenditure
reports to the Federal Elections Commissions of several types: (pre-election,
post-election; annual and quarterly) and apply to general; special, primary
JJ4/
and run-off elections. Included in these reports are data on available
cash, identity and amount of all contributors and expenditures in excess of
$100, proceeds from sales; loans; salaries and expenses; summaries of contri-
butions of less than $100 and petty cash expenditures and outstanding debts and
133/ 2 U.S.C. 434 (1976). See; Buckley v. Valeo; 424 U.S. 1 (197 )
134/ 2 U.S.C. 434(a); 432(1976).
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135/
obligations. Precise accounting and recordkeeping requirements are mani-
136/
fest in the Act and provision is made for examinations and audits.-- Unlike
bank records, an only partially like securities brokers and, dealers' records,
under the FECA are required from the individual who is most likely the subject
of investigation.
The FECA does not inhibit third-party agency access to election
campaign records and reports. Neither the Act or agency regulations appear to
require judicial process to gain access. The Privacy Act, however, appears to
137/
directly control this type of request. The relative youth of the Commission
curtails this analysis through lack of reported experience in the area. Con-
versely; the lack of policy on the subject points up the need for broader policy
decision on financial third party records.
4. Firearms Control
Outside the area of financial records; one area stands out among
records required to be maintained by the government - registration and trans-
actions in firearms; explosives and other destructive devices. As has already
been noted; commerical records tracing the commerce of the rifle found at the
Texas School Book Depository were crucial to linking Oswald to the Kennedy
13/ 2 U.S.C. 434(b).
136/ 2 U.S.C. 432(c); 437d(a)(3);(10); 437a (1976). Section 437b requires all
contributions and expenditures be recorded through a depository account with a
national or state bank, thus dovetailing.with_maintenance and reporting require-
ments of the Bank Secrecy Act of 1970. See; supra; notes 131-132, and accompany
text.
137/ See, 11 C.F.R. 1.1. - 1.14 (1977).
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138/
assassination. Since the assassination, state and federal regulation has
displaced the commercial practices of firearms dealers by enforcing a standard
which many dealers had previously maintained but which many had flagrently
i39/
ignored. Political pressures have had significant impact on the development
of gun control legislation, and both federal and state law must be reviewed
since the federal law has not preempted state action.
a. Federal statutes.
In the Gun Control Act of 1968, as amended, Congress instituted re-
quirements for recording the manufacture and transfer of firearms and delegated
to the Secretary of the Treasury authority to prescribe rules and regulations to
140/
carry the law into effect. The intent of Congress in these Acts was to supplement
state law enforcement authority in controlling handguns by imposing federal
requirements on manufacturers, importers, dealers and collectors of firearms.
The act insures that adequate records would exist and appropriate licensing
i4i/
standards could be applied.
138/ Supra, notes 1-2.
139/ Not suprisingly; the Warren Commission made no recommendation on gun control;
the Oswald investigation produced a record of self-control within the industry
which was unusually complete. Again, this appears to be a product of the shock
to the national conscience at the time of the assassination, not a general
practice of the industry.
140/ P.L. 90-351, Title IV, 82 Stat. 226, June 19, 1968 (Omnibus Crime Control
and Safe Streets Act of 1968); as amended, P.L. 90-618, 82 Stat. 1214, October
22, 1968 (Gun Control Act of 1968); as amended P.L. 93-639, 88 Stat. 221F,
January 4, 1975, 18 U.S.C. ??921-928 (1970, Spp. 1975), Explosives control was
added, P.L. 91-452, 84 Stat. 952, October 15, 1970, 18 U.S.C. ??841-848 (1970,
Supp. 1975), in the same vein as gun control and will be analyzed parenthetically.
141/ P.L. 90-351 at ?901; P.L. 90-618 at ?101.
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The Act specifically provides for application for a license from the
Secretary of the Treasury before engaging in business as a firearms importer,
manufacturers or dealer, and delegates authority to prescribe the manner and
142/
information required in the application.
The granting of licenses is relatively ministerial since only five
statutory requirements need to be met and since a cause of action in mandamus
143/
is permitted after exhaustion of administrative appeals. The heart of licensing
lies in the information required in the application by the Secretary and the
144/
lengths to which the statutory requirements are investigated. The Act also
requires the maintenance of records and reports as the Secretary may require
145/
and provides for inspection of records and firearms during business hours.
The provision for inspection of licensed premises without a warrant was speci-
146/
fically upheld in United States v. Biswell. The particular records which
licenses must maintain present a composite method of tracing guns in the same
vein as bank records trace quantities of money. Importers are required to
maintain a permanent listing of the quantity, type, manufacturer, country of
manufacture, caliber, model, serial number, license, to whom transferred and
142/ 18 U.S.C. 923(a)? (b) .
143/ 18 U.S.C. 923(c) - (f).
144/ Responsibility has been redelegated to the Director, Bureau of Alcohol,
Tobacco and Firearms, 27 C.F.R. 70.1, 178.21 (1976).
145/ 18 U.S.C. 923(g) - (i)
146/ 406 U.S. 311 (1972). See, 2F C.F.R. 178.23, 178.121(b) (1977). See, also,
Marshell v. Barlow's, Inc.,-7-D.S. -, 46 U.S.L.W. 4478 (No. 76-1143, May 23,
1978).
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147/
date of transaction for each weapon imported. Manufacturers must make a
148/
similar record of each weapon produced or acquired. Dealers and collectors
must maintain a ledger of weapon descriptiqus, including the type of mechanism
(action) as well as acquisition and disposition data. While these ledgers
present a means of easily tracing a weapon through all licensees, it is the un-
licensed customer which is by far the majority of purchasers of single weapons.
For these transactions an additional record must be maintained either alpha-
betically, chronologically or numerically providing the purchasers name, address,
150/
149/
date an place of birth, height, weight, race and certification of capacity.
Thus; until a firearm comes into the hands of its first non-licensee possessor,
a complete record of possessions and transactions can be made out from required
15i/
records.
147/ 27 C.F.R. 178.122 (Form is set out in margin of cited section). Separate
records must be maintained for transfers directly to a non-dealer or other non-
license. 27 C.R.F. 178.122(d). See, 27 C.F.R. 178.125 (1977).
148/ 27 C.F.R. 178.123 (1977). Similarly; separate records must be maintained for
all transfers directly to a non-license. 27 C.F.R. 178.123(d).
149/ 27 C.F.R. 178.125(e) (1977).
150/ 27 C.F.R. 178.124(c) (1977) In
the purchasers statement that he has
under indictment or legally 4.Tental
must be signed under oath. See; ATF
this ease the certificate of capacity is
not been convicted of any disabling crime,
deficient or defictive. This certificate
Form 4473.
151/ It should be parenthetically noted here that records of sales of ammunition
are also required in ledger form. Accordingly; a purchase of ammunition which
does not conform to the caliber and action of a recorded purchase will raise
solue speculation as to its use. 27 C.F.R 178.125(a) - (d) 1977).
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Generally, as already noted, licensees must keep their records
available for inspection during business hours on demand, but very little
152/
is required to be reported voluntarily. The question of third party
records retrieval is a special one in that records may be obtainable from
ATF only to the extent already possessed or willing to acquire. Since the
Act was intended to supplement state enforcement efforts, and since the Act
153/
contain no prohibition or inhibition to federal inter-agency disclosures,
it is appropriate to turn to the state laws to determine the extent of avail-
ability of third party records and continued tracking of guns transfers between
154/
non-licensees.
b. State Statutes.
Nearly all states have some form of regulation for the purchase and
155/
possession of firearms. However, except for the actual permit to own a fire-
arm to be obtained from local or state authorities, third party records tracing
of a weapon becomes quite complex in all but a few states. Only two states re-
152/ But, see, 27 C.F.R. 178.126a. (1977) (Reporting multiple sales or other dis-
position of pistols and revolvers).
153/ Federal give and take is quite common in this area, and the it permits pre-
cisely the kind of investigatin accomplished shortly after the Kennedy assassination.
There appear to be no notification or process requirements involving these records
under the Act to implementing regulations. In light of the Privacy Act of 1974,
supra, notes 64-70, and accompanying text, the "primary role of ATF is called into
question.
154/ 27 C.F.R. 178.25 provides for development and disclosure of information to
state or local authorities on written request.
155/ See, generally, M. Ray, Handgun Control: Strategis, Enforcement and Effective-
ness (1978) (11S:GP0).
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quire a special identification card linking a particular weapon to the owner
156/
which must be kept with the weapon at all times. Only two states require
private parties to report the sale of a firearm to local or state authorities,
as a transaction, other than the more limited records that the new, owner may
157/
need to make. Finally, no state requires the former owner to maintain a
receipt or record of the sale, as contrasted with the federal recordkeeping
requirements already discussed.
156/ This identification card is similar to a drivers license, complete with
photographs; and a copy Is' maintain in centralized state files. 38 Ill.
Ann. Stat. ??83-3; 83-4 (1978); 140 Mass. G.L.A. 122; 122A; 124B ? 129D(1978).
157/ 140 Mass. G.L.A. 129C.(1977); Ohio R.C. 2923.20(a)(4). The variation in
permits to own is diverse among the state from single notice of ownership of
form of firearms to individual permits for each weapon.
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H. Private Records
Another class of records which are useful in third party criminal or
tax investigations consists of coTmercial records which are voluntarily maintained
wholly for their commercial value, whether procedural or substantive requirements
are prescribed by law or wholly left to standards of the industry. The key
distinctions between these records are those discussed in Section G rest on
the voluntariness of the original development of the records. Although Federal
and State law is implicated in both examples - credit and telephone company
billing - the initial development of the records is strictly commerical, not
regulatory.
1. Fair Credit Reporting
Similar to cash flow needs, criminal and tax prosecutions may have
need for reports on a prospective defendant's credit history to determine
prosecutability. This is manifest in criminal and civil tax prosecutions and
useful in white collar; computer, fraud and organized crime prosecutions.
The Fair Credit Reporting Act; adjunct to the Bank Secrecy Act of
1970, was designed to insure the accuracy and completeness of consume credit
files held by credit reporting agencies or clearinghouses and reasonableness
158/
in the methods of obtaining information. The Act defines the rights of
consumers and liabilities of credit reporting agencies; limits the kind of
159/
information held and the length of holding and restricts access and disclosure.
158/ P.L. 90-321; as added by P.L. 91-508; 84 Stat. 1127, October 26, 1970,
15 U.S.C. ??1681; et seq. (1976).
159/ 15 U.S.C. 1681 b; c; f; h; k; m; and r. (1976).
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In particular, consumer credit reporting bureaus are prohibited from
furnishing information on a consumer credit history except in three situation:
1) where disclosure is authorized by the consumer; 2) where the agency has
reason to believe that the information is tit. be used solely in deciding whether
to extend credit, insurance, employment licenses or other business transactions
160/
to the consumer, or 3) where a court so orders. Material on background,
161/
associates, lifestyle, etc., is more restricted. Consumer credit reporting
bureaus are also generally prohibited from reporting information more than seven
i62/
years old. Specifically exempted from these strictures is a report to any
requesting governmental agency which contains only the consumer's name, address,
163/
former addresses and employment history. Finally, on request; a consumer must
be informed of all receipients of an consumer report on the consumer in the last
i64/
six months preceding the request; apparently including all governmental investi-
gatory bodies.
160/ 15 U.S.C. 1681b (1976).
161/ 15 U.S.C. 1681a(e); 1681d; 16812.
162/ 15 U.S.C. 1681c. (Bankruptcy - 14 years; judgements - statute of limitations
on the judgement or seven years; whichever is longer). Section 1681c (5) providers:
"Records of arrest; indictment; or conviction of a crime which; from date of dis-
position; release; or parole" antedates the report by more than seven years shall
not be disclosed. Since a bureau becomes liable for extensive damages for disclos-
ing incomplete or obsolete information; 1681; 1681n; 1681o; pose a higher premium
on this disclosure than on erroneous or incomplete disclosures by the originator
criminal justice actor; such as the F.B.I. Compare; supra notes 73-77,
and accompany text.
163/ 15 U.S.C. 1681f (1976). 1-Jae v. Retail Credit Corporation; 521 F.2d 1079
TWEil Cir., 1975); cert. denied U.S. 1976)
164/ 15 U.S.C. 1681g(a)(3)(B) (1976). Millstone v. 0' Hanlon Reports, Inc. 528 F.
2d829 (8th Cir., 1976).
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165/
Under this statutory scheme the FTC, the major enforcer of the Act,
was initially required to obtain a court order to obtain consumer reports in
a compliance investigation, but this
the availability of such information
166/
enforcement power. The Internal Revenue Service has also sought information
from banks which have unsuccessfully invoked the FCRA to proscribe compliance
with the administrative summons. This may be explained in part by reading
the FCRA and the Bank Secrecy Act as titles of one legislative enactment. Unre?
solved is the availability of consumer reports to the lesser enforcement agencies,
r9quirement was reversed on appeal since
was a necessary incident of the FTC's
101
since the rationale prohibiting one agency and permitting the other was implicit
168/
in the statutory scheme. Equally unresolved is the question of whether the
FCRA grants the consumer an implied cause of action or substantial proprietary
or other interest in order to intervene and object to a subpoena duces tecum
i69/
or administrative summons.
165/ 15 U.S.C. 1681c. (1976).
166/ 169 U.S. App. D.C. 271; 515 F. 2d 988 (1975). ("Though we rule that
the FTC may obtain consumer reports by administrative subpoena in enforcing the
Act, we find implicit in the statutory scheme of the FCRA the caveat that the
Commission is prohibited from using information which it obtains.., for any
other purpose than carrying out its enforcement duties under the Act" Id. at
998.
167/ United States v. Bremicker; 365 F. Supp. 701 (D.C.D. Minn.; 1973); United
States v. Puntorier, 379 F. Supp. 332 (E.D. N.Y. 1974). The clear language
of the statute nonwithstanding, the courts may require disclosure in a clearer
case. Cf. 4 CCH Consumer C.G. F11.305. See, TRA 1205; supra; notes 52-60,
and accompany text.
168/ FTC v. Manager, Retail Credit Co., supra, note 166, at 998.
_
169/ See, United States ex rel Weinberger v. Equifax, Inc., 557 F. 2d 456
(1977).
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2. Telephone and Telegraph Tolls and Pen Registers
One of the most useful, as well as most troubling, means of investi-
gating complex criminal activity is through the interception of telephone calls
or telegrams; appropriately complex legislative, executive and judicial regulation'
170/
of the practice has been designed to balance competing needs. /n this sub-
section, however, attention is focused on a slightly less cumbersome access to
pre-existing toll records and local call ticker tapes, and, tangentially, pen
i/l/
registers and call tracers. So far as Constitutional law becomes a question in
the acquisition of telephone company records, analysis would follow in the line of
172/
thought evident in California Bankers Association, Donaldson, Miller and Biswell.
In essence, the courts would not find a reasonable expectation of privacy in these
173/
records and have not extended the Fourth Amendment standards to them.
Statutory constrictions are limited to disclosure to unauthorized persons.
Section 605 of the Communication Act of 1934, in pertinent part, proscribes dis-
closure except to the addresses or persons within the communications business for.
accounting or distributing purposes or court subpoena or "demand of other lawful
174/
authority." Most commonly; investigators will be interested in actual toll
170/ 18 U.S.C. 2510-2518: (1970; Supp. 1976); U.S. Attorneys Manual 9-7.013
(December 16; 1977). Kati v. United States, 389 U.S. 347 (1967).
171/ Primary concern here is for pre-existing records, but this can not be divorc-
e-a?from records developed at the behest of; or by, law enforcement authorities.
These can be divorced; however, from actual interception. See, infra, notes
and accompanying text.
172/ Supra, notes 85; 54; 27 and 16 respectively.
173/ See, t.a.
404 U.S. 849
174/ P.L.
82 Stat. 223
. United States v. Hughes; 441 F.2d 12 (5th Cir., 1971), cert denied
(1971); United States v. Kohne, 347 F.Supp. 1178 (MD. Pa., 1972).
, 48 Stat. 1103, June 19, 1934, as amended, P.L. 90-351, Title III,
June 19; 1968; 47 U.S.C. 605 (1970, Supp. 1976).
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records, but a question remains as to what records may actually be obtained.
Secondly the means by which such records may be obtained must be considered.
Other than actual 'toll records, the telephone company often institutes
internal investigations to insure the accuracy of tolls, thus producing special
documentation, and actual interceptions, in the course of locating "blue boxes"
175/
Material developed in the course of these business
176/
is admissable evidence unless later procedurally tainted.
or touch?tone encoders.
investigations
In the case of telegraph companies, the entire message becomes a record in the
possession of the telegragh company subject to possible acquisition by law
i77/
enforcement authorities. In both cases the records may indicate an on?going
relationship in which the telephone or telegraph company is not interested,
and which; without other information not available from these sources, may be
meaningless. Historically these facilities have been significantly utilized
in the narcotics traffic; policy and numbers; fraud; check kiting, and arbitrage
and equalization tax evasion. Actual interception, recording and transcription
of conversations by the telephone company may be forwarded to law enforcement
175/ A "blue box" on touch tone encoder permits the user to circumvent the toll
recording equipment in long distance calls. See; e.g. United States v. Hanna, 260
F.Supp. 430 (S.D. Fla.; 1966); reversed; 393 F.2d 700 (5th dr., 1968), affirmed
an rehearing 404 F.2d 405 (5th Cir.; 1968); United States v. Clegg. 509 F.2d 605
(5th Cir.; 1975).
176/ Ui . Clegg; supra.; United States v. Barnard, 440 F.2d 907
(9th Cir., 1973), cert denied, 416 U.S. 959 (1974) Nolan v. United States, 423
F. 2d 1981 (10th Cir.; 1969); cert denied 400 U.S. T7871970).
177/ If the content of the telegram was incriminating the defendant could not claim
the Fifth Amendment privelege because he was not compelled to make it. See, United
States v. Gross; 416 F.2d 1205 (8th Cir; 1969); Newfield v. Ryan 91 F.2d 700
(5th Cir.; 1937) cert denied 302 U.S. 729 rehearing denied; 302 U.S. 777 (1937).
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authorities without violating Section 605 or Title III of the Omnibus Crime
178/
Control and Safe Streets Act.
The actual .acquistion of these records poses .a slightly different
problem. First the existence of the records must be brought to the attention
of the appropriate authorities, but, at the same time, collusion in making
17?/
these records must be avoided. This requires some cooperation on the
part of the telephone and telegraph companies. Should this fail, and the
authorities do become aware of the existence of useful records, the appropriate
180/
search warrant, grand jury subpoena or other court order, or administrative
181/
subpoena or summons must be invoked. While the courts have avoided construing
the statutory language of the latter exception, "on demand of other lawful
authority," the plain meaning of this language requires proof only of the
182/
propriety of the administrative process used.
Up to this point analysis have been strictly limited to pre-existing
records; but in this case it is necessary to digress into the creation of records
through use of the pen register. The use of pen registers has been widely and
178/ P.L. 90-351; Title III; 82 Stat. 112, June 19, 1968, as amended, P.L. 91-358,
-87-.Stat. 654, July 29, 1970, 18 U.S.C. 2510-2520 (1970 Supp. 1976). United States
v. Clegg, supra,, note 176; United States v. Auler, 539 F.2d 642 (7th Cir., 1976)
(rehearing and rehearing en banc denied). See 18 U.S.C. 2511(2)(a).
179/ United States v. Clegg, supra, note 176; United States v. Auler, supra.
180/ Section 605 specifically permits such demands. 47 U.S.C. 605.
181/ The language about to be discussed excepts disclosure "on demand of other
lawful authority. 47 U.S.C. 605. Cf. 18 U.S.C. 2517.
182/ Newfield v. Ryan, supra, note 177.
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authoritatively held to be outside the parameters of Title III of the Omnibus
183/
Crime Control and Safe Streets Act of 1968. The rationale of United States
v. New York Telephone Co. and and other cases consistently is that pen
registers do not intercept, the aural contents of communication; it only records
the source and receiving telephone numbers. Furthermore, New York Telephone
involved the application to a District Court for an order to use a pen register
/84/
which would have complied with Fourth Amendment search warrant standards,
185/
and held that sufficient authority existed for such an order. The real issue
......
in New York Telephone, which does not need to be reached in the present discus-
sion; was whether the District Court had authority to require private parties
i86/
to assist in the operation of the pen register. The significance here lies
in the finality of determination that pen registers fall outside the require-
ments of Title III and Section 605, and the authority to utilize the technique.
One additional tangent needs to be briefly surveyed: recording of wire
communication by one the parties to that particular communication. While this
"record" is available to law enforcement authorities under the same legal processes
as if in the possession of the telephone company, special note should be made of
183/ tiiii&l-?iaAs v. New York . Telephone Co.,-- U.S. --, 46 U.S.L.W. 4033
(No.76-835, December 7; 1917). See, especially, cases collected at note 9,
slip. op. p.6. See, Sen. Rep. No. 1097, 90th Cong. 2d Sess, p.90 (1968).
184/ Id. at 4034.
185/ Id. at 4035-4036. Authority is based on Title III; the All Writs Act (28
U.S.C. 1651) and F.R. Crim. P. 41(b), 57(b).
186/ On this issue, the Court split 5-4. See; 46 U.S.L.W. 4036, opinion of the
Court, per White, J.; 46 U.S.L.W. 4038, Stevens, J. dissenting, joined by Brennan
and Marshall, JJ; Stewart, J. concurring in part and dissenting in part. Cf.
Zweibon V. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975); cert denied 425
U.S. 944 (1976).
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the legal posture of this record. Under the rationale of consent, the recording
187/
is not subject to Fourth Amendment strictures; under the rationale of lack of
188/
compulsion, the recording is not subject to the Fifth Amendment privelege.
Such recording is excepted from the strictures of both the Federal Communication
189/
Act and the Omnibus Crime Control and Safe Streets Act. While the recording
of such communications by a party who is a law enforcement officer is specifically
190/ 191/ 192/
exempted and has proven effective, the Executive has limited its use.
187/ Supra, notes 23-26 and accompanying text.
188/ Supra, notes 33-40 and accompanying text.
189/ 47 U.S.C. 605; 18 U.S.C. 2511(c)(2)(d) (1970, Supp. 1976).
190/ 18 U.S.C. 2511(2)(c) (1970, Supp. 1976).
191/ Without this technique the Hoffa and White cases supra, would never
have gone to trial. The Caceres case, infra, note 192, poses a special
administration problem.
192/ See. United States Attorneys Menula, 9-7.013 (June 15, 1977). Cf.
United States v. Caceres, 545 F.2d 1182 (9th Cir., 1976) (rehearing and
rehearing en banc denied, opinion amended), cert granted, 46 U.S.L.W.
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I. Trends in Third Party Record Law
Since the Kennedy assassination, and the unfettered third party
records investigations which it spawned, the law balancing the rights of private
parties to records which pertain to them and the needs of law enforcement for
those records has developed significantly and almost totally. Congress has
enacted and amended the Omnibus Crime Control and Safe Streets Act of 1968,
the Gun Control Act of 1970, the Bank Secrecy Act of 1970 including the Fair
Credit Reporting Act, the Privacy Act of 1974 and the Tax Reform Act of 1976.
The Executive has promulgated appropriate regulations and staff instructions
to carry these provisions into operative effect. The Judiciary has contended
with new factual situations and legal and Constitutional challenges in such cases
cases as Andresen, Bellis, Biswell, California Bankers Association, Couch, Donald-
son, Fisher, and Miller. From this governing process certain trends emerge.
First, there appear to be no significant Constitutional impediments
to federal agencies utilizing third party records investigations techniques.
Neither the Fourth nor Fifth Amendments provide adequate basis for challenge;
the Fourth due to vicarious consent, the Fifth due to lack of compulsion.
Second, acquisition of third party records depends, in part, on the
initial statutory basis for the records; the structure of this paper centers on
this axis. As a general proposition, the greater the mandated records reporting
requirements to the government, the greater will be the ease of acquisition by a
non-recipient of required reports. This is especially true of "fourth party"
records, such as a bank's report of a customer's transfer to the Secretary of the
Treasury being acquired by the SEC. Conversely, "first party" reports, e.g. tax
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returns, pose a special difficulty: first because of the proximity of the party,
i99/
and second because of the special requirements of a voluntary tax system.
Third, a premium has been placed on accuracy in third party intra?
governmental records transfers. While the Privacy Act of 1974 prescribes a
procedure for ensuring accuracy, it exempts the most controversial and fluid
problem: criminal histories. Neither the authorization for FBI record keeping
nor the courts have successfully grappled with this question. The Fair Credit
Reporting Act imposes a higher standard of care on one type of user of much
information and imposes liabilities for using inaccurate or obselete information.
It would appear that if a trend exists in this underlying issue, the trend is
merely to raise it as an issue.
Fourth; notification poses a special problem in third party records in?
vestigations since it may give the individual an opportunity to thwart enforcement.
No federal statute is known to prohibit voluntary notification of a person that
200/
records pertaining to him have been summoned by an investigative authority.
Notification on request is required by the FCRA; whether this disclosure would
serve to inadvertently notify or confirm suspicious or hearsay. Notification
is required when the IRS issues an administrative summons to a third party record
holder. Where an important interest is perceived in a record; the more likely a
right of notification or access will be granted.
199/ The second reason is undoubtedly more important; but this example is the
most readily available Federal records submission. In the states, the best
example would appear to be registration of firearms by the possessor.
200/ This includes the grand jury process. A witness may be admonished not to
communicate his grand jury testimony to a putative defendant, but there is no
sanction against doing so.
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Fifth, notification leads necessarily to attempts at intervention.
Here a consistent trend exists to deny intervention, with the exception of
tax summonses.
Finally, federal pre-exemption poses a special trend - a non-trend.
Where a federal interest is exclusively administrative, e.g. federal taxation,
there is no question of state legislation. Outside of that instance, federal
legislation has avoided pre-emption - intentionally or inadvertently - and the
courts apply a rule of construction to foster non-pre-emption if possible.
This leads to a more highly developed privacy right in some states and more
restrictive access to some records; while in others the opposite may be true.
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J. Contemporary Legislative Proposals
Unlike the dearth of bills associated with the trilemma in Chapter II,
third party records acquisition and confidentiality has proved a fertile ground
for the introduction of legislation. No less than 43 original bills have been
introduced in the House and 5 in the Senate thus far in the 95th Congress. Due
to the complexity of individual bills, which would only be compounded by any
consolidated analysis, each bill will be summarized individually unless that
bill has been incorporated in a later introduction.
H.R. 10076 is an omnibus bill consolidating the ideas of sixteen pre-
vious bills in the legislative recommendations of the Privacy Commission, although
201/
all remain viable. Title I of the bill establishes a Federal Information and
and Privacy Board, gives the Board investigative authority over compliance with
the FOIA, Privacy Act, Sunshine Act, Fair Credit Reporting Act, and other laws,
as well as transnational data. flow, electronic funds transfer, criminal history
and other information.
Title II of the bill substantially rewrites the Privacy Act of 1974,
as amended. The key to the new provisions is the removal of the "primary function"
test for criminal law enforcement agencies and an increasing stress on accuracy
202/
through procedural restraints.
201/ H.R. 10076, introduced November 11, 1977 by Mr. Prayer, Mr. Koch and Mr.
Goldwater, consumes the following House bills: 9989, 9986, 9982, 8288-8879
1985, 434 and 433. See, also: H.R. 3070, Introduced February 2, 1977, by Mr.
Rouselot (for himself, Mr. Symms and Mr. Morehead of California), (financial),
H.R. 2603, Introduced January 27, 1977, by Mr. Patterson of California. See,
Privacy Protection and Study Commission, Personal Privacy in an Information
Society, 371-379 (1977).
202/ H.R. 10076, Tit. II.
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Title III of H.R. 10076 includeds general provisions for acquisition
of third party records. Consent would generally be required under procedures
203/
requiring a signed and dated writing. Administrative subpoenas would be re-
quired to be served on the subject of investigation who would then have the right
to object and intervene in enforcement proceedings. Administrative subpoenas
to third parties would be limited to instances Where there exists reasonable
204/
cause to believe that the subject has violated a Federal law. The use of
search warrants to obtain third-party records would not be effected by this
205/
bill. Judicial subpoenas may be obtained, under the bill, on a showing author-
ity and reasonable cause to believe the subject has violated a federal law; the
206/
subject must be notified and an opportunity to intervene is implicite. The
judicial subpoena is construed to include subpoenas issued in the course of a
261/
grand jury as well as discovery. The bill provides that no administrative
or judicial subpoena, or search warrant can be issued for personal papers, such as
268/
business records of a sole proprietorship. Grand Jury subpoena are additionally
restricted when personal records are subpoenaed; requiring 1) an actual presentment
to the grand jury for the limited purpose of indictment; 2) return or destruction
203/ H.R.
10076,
303.
204/ H.R.
10076,
304.
205/ H.R.
10076,
305.
206/ H.R.
10076,
306.
207/ H.R.
10067,
306(b).
208/ H.R.
10076,
307.
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of the documents if not used for the limited purpose or sealed in the minutes
of the grand jury and 3) maintenance by prosecuting authorities of the record
209/
only if used. A specific right to challenge subpoenas is granted and material
210/
improperly obtained is excluded from evidence under the bill. .The bill also
prohibits disclosure of information acquired to other agencies or use other
211/
than the purposed of the subpoena:? Exceptions to these provisions include
212/
material and examinations by supervisory agencies:? The remainder of the
title provides for jurisdiction, civil and criminal liabilities, and defini-
213/
tions.
Title IV of the bill authorizes the Secretary of HEW to promulgate
bases for state ligitation to protect individual's and conditions Federal
214/
public assistance and social services financing on compliance. Title V
would amend the Social Security Act to insure the limited use of medical files
and information, grant access to the patient with an opportunity to dispute or
correct the information; and notification to the patient of all uses of the
2i5/
information. Title VI extends the scope of the Fair Credit Reporting Act to
?308.
??309; 310;
Id at ?311.
Statutes of Limitation are stayed during subpoena
209/ H.R.
10076,
10076;
210/ H.R.
litigation.
211/ H.R.
10076
?312.
212/ H.R.
10076
?313.
213/ H.R.
10076
?314-317.
214/ H.R.
10076,
Title IV,
??401-404
215/ H.R.
10076,
Title V;
??501-502.
These titles are dealt with summarily due
to their limited utility or consequence in law enforcement. Cf. H.R. 2593,
Introduced January 27; 1977; by Mk. Kildie.
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independent credit card and authorization services, as well as adding procedures
216/
for depository and insurance businesses.
Title VII of the bill would amend the procedure for acquisition of
Federal tax return information by other Federal law enforcement officials by
requiring the head of the agency or department to bring a civil suit against
the taxpayer for a determination by a court that the tax return information
may be disclosed. The court may grant the determination of it finds; 1) probable
cause of a violation of Federal law, 2) probable cause that the return information
is probative evidence of the issue, 3) acquiring the information from the tax-
payer would not be prohibited as a matter of law, and 4) the information cannot
h7/
be reasonably obtained from a source other than the IRS. The title would also
expand disclosure to local tax authorities, require states to provide privacy
legislation on tax matters and eliminate disclosure of information to corporation
218/
commissions.
216/ H.R. 10076, Title VI, ??601-605. This general extension brings additional
sources of information within the strictures of the FCRA and its disclosure
restrictions, but does not substantivity after the restrictions.
217/ H.R. 10076, 5706. Amending 26 U.S.C. 6103, discussed supra, notes
The section would also provide for in camera review, taxation of costs, expe-
dition of proceedings, finality of judgement, stay of mandate and preservation
of the Secretary's discretion not to disclose, but, see, H.R. 1493, Introduced
January 6, 1977 Mr. Hagedorn.
218/ H.R. 10076, ?703. The title would also alter examination of prospective
Presidential appointees and permit access to child support agencies at ?704,
705. Title VII would amend the educational privacy provisions of the General
Educational Provision Act and d the Buckley Amendment.
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H.R. 9909 would prohibit federal officials, other than the supervisory
agencies from acquiring records from financial institutions except by admini-
219/
strative or judicial subpoena, or search warrant. The procedure for acquisi-
tion by administrative or judicial subpoena is substantially the same as in
H.R. 10076, except, in the case of a judicial subpoena, notice to the subject may
be delayed by the court for 90 days if it is satisfied that such notice would
226/
"seriously jeopardize a continuing investigation of any felony". In the
case of a search warrant; notice of the acquisition must be given to the sub-
ject within 90 days following service of the warrant unless the court orders
22i/
extention is above. Other provisions limit access the purposes for which
the information was obtained; exempt agencies with supervisory functions to
222/
the extent of those functions and provide jurisdiction and remedies.
H.R. 8746 would amend Section 6103 of the Internal Revenue Code to permit
disclosure to the Secretary of HEW the of mailing address of persons who have
223/
defaulted on student loans made under the Higher Education Act of 1965. H.R.
8539 would amend Title III of the Omnibus Crime Control and Safe Streets Act of
1968, as amended, by eliminating the one party consent to wiretapping and recording
224/
provisions and requiring the consent of all parties. H.R. 8133 is substantially
2191 H.R. 9909 introduced November 2; 1977, by Mr. Cavanaeigh.
220/ H.R. 9909, ??7; 9; especially 9(b).
221/ H.R. 9909; ?8.
222/ H.R. 9909, ??10-17.
223/ H.R. 8746, introduced August 3; 1977, by Mr. Waggonner.
224/ H.R. 8539, introduced July 26, 1977, by Mr. Latta. See, supra, notes
187-192. and accompanying text.
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the same as H.R. 9909 except that no restriction would be added to the use of
225/
search warrants to acquire information other than currently imposed by law.
H.R. 7406 is divided into three titles - I. Confidentiality of Financial,
Toll and Credit Records, II. Mail Covers and III Amendments to [Wire Interceptions
226/
Statute]. Title I; covering banking; telephones and credit, is similar to H.R.
227/
9909 in general prohibitions, consent and search warrants. While similar in
the area of administrative subpoenas; this bill would exempt the IRS from the
228
notice requirements when determining assets and tax liabilities. The provisions
for issuance of judicial subpoenas and delay of notice are similar to the later
bill, H.R. 9909; except it is applicable as an authorization only for investiga-
229/
tion at certain enumerated offenses. Access to other agencies is prohibited
except where authorized by statutes.
Title II of H.R. 7406 proscribes mail covers without written authorization
of the Chief Postal Inspector; a regional postal inspector or inspector in charge
who has good cause to believe the mail cover is necessary to a felony investigation;
231/
except on request of the Attorney General. Approved mail covers would be limit-
ed to 30 days with extensions up to one year; longer periods must be authorized
225/ H.R. 8133; introduced June 30; 1977; by M?. Cavanaugh (for himself, Ms. Oakar,
Mr. Leach, Mr. Reuss; Mr..Rousselot; Mt. Patterson of California, Mt. Derrick,
Mt. Hannaford; Mt. Patterson of New York; Mk. Barnard; Mt. Caputo and Mt. Stark.
226/ H.R. 7406; Introduced May 24; 1977, by Mr. Whalen (for himself, Mr. Harris
ITO Mr. Neal.).
227/ H.R.
7406,
See; also; H.R.
5903; Introduced April 4, 1977, by Mr. Zhalen.
?54,
6.
228/ H.R.
7406,
?5.
OOMPa'?-a TRA
1205; ;iiPia, notes 52-60.
229/ H.R.
7406;
?7;
especially
7(c).
230/ H.R.
7406,
?9.
Exceptions; jurisdiction, civil remedies and costs are the
same. ?510-13,
231/ H.R. 74
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232/
by a judge. Under the bill, emergency authorization can be granted, but formal
233/
authorization must be acquired within 48 hours. Notice to the subject would
be required within 90 days after termination of the mail cover and complete files
234/
would be maintained by the chief postal inspector for not more than eight years.
Title III of the bill would amend the communication industry practices to
limit the interception of employee calls to training uses and limiting service
235/
interceptions or interceptions to prevent theft of service. The criminal
236/
sanctions in this area are also rewritten. Title IV prescribes criminal
237/
penalties for violation of the provision of the bill.
H.R. 2612 would provide for concurrent notice of subpoena for any tele?
communications records by amending and adding to Section 605 of the Communication
238/
Act of 1934. Notice of such a subpoena may be delayed by court order if notice
would permit an individual suspected of criminal activity to escape prosecutions,
would result in destruction of evidence or would cause a risk of life, or if the
information is sought to protect national security and obtain foreign intelligence
239/
information.
232/ H.R. 7406, ?3.
233/ H.R. 7406, ?4.
234/ H.R. 7406, ??5, 6. See, Reporting Requirements, 7; Civil Remedies (damages)
8. Cf. H.R. 7341, introduced May 23, 1977, by Mr. Kildee, and H.R. 7139, intro?
duc,T:1 May 12, 1977 by Mr. Kildee.
235/ H.R. 7406, Title III, ?1.
236/ Id. at 2, 4.
237/ H.R. 7406, Title IV.
238/ H.R. 2612, Introduced January 27, 1977, by Mr. Patterson of California.
239/ H.R. 2612, ?3.
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A variety of additional prior bills exist in the House which are more tan-
gentially related to either third party records or government investigations.
These, however, present no significant additions the substantive options under
discussion. In the Senate a small number of bills represent less complex issues.
S. 2293 provides for disclosure of depository financial records on service
of 1) administrative subpoena after notification and intervention is waived or
subpoena enforced, 2) a search warrant after notification, or 3) an ex-parte court
240/
order requiring disclosure. Such an order must be based on a finding that notifi-
cation may lead to concealment, destruction or alteration of the records, would
prevent communication of the records through intimidation, bribery, or collusion,
241/
or permit flight to avoid prosecution, testimony, or production of records.
S. 2096 parallels financial records aspects of H.R. 10076 and H.R. 9909,
242/
in many respects, but significant differences remain. The bill require
notification and permits intervention in the case of administrative subpoenas,
does not effect search warrants, and permits delay in notification and
Intervention in the case of felony investigation if serious jeopardy can be
243/
shown. The bill would not effect IRS procedures under TRA 1205, grand jury
240/ S. 2293, Introduced November 4, 1977, by Mk. McIntyre.
241/ Id.
242/ S. 2096, Introduced September 14, 1977, by Mk. Cranston (for himself,
Mr. Tower, Mr. Anderson, Mr. Bayh, Mr. Church, Mr. Haskell, Mr. Hatfield,
Mr. Huddleston, Mk. Humphrey, Mr. Leahy, Mk. Johnston, Mr. Matsunage,
Mr. Morgan, Mr. Percy, Mr. Riegle, Mr. Thurmond and Mr. Sparkman). See, also,
S. 1460, Introduced April 28, 1977, by Mr. Tower (for himself, Mr. Barn,
Mr. Lugar and Mr. Schmitt.).
243/ S. 2096, ??7-9.
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244/
subpoenas, supervisory functions, statistical reports or tax reports. Inter-
245/
agency access to record acquired in prohibited.
246/
S.14 is a parallel to H.R. 7406. This bill includes confidentiality,
notification and intervention of financial, toll and credit records; the use of
mail covers and wire communication interceptions.
? ...... ^
244/ S. 2096; ?10.
245/ S. 2096; ?11.
246/ S.14; Introduced January 10, 1977; by Mt. Mathias.
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K. Alternative Considerations
Rather than attempt to fill in the alternations not covered
by proposed legislation, it would appear more useful to organize the
field of all alternations into a form through which the issue can be
considered as a whole. The outline and matrix which follow are intended
to supply a framework on which legislative alternatives on the privacy
investigative efficiency issue within the context of third party
records can be effectively discussed.
1. Accuracy: an implicite goal in both privacy
and investigative concerns
a. Verification of information sources:
initial accuracy
b. Notice to the person
c. Challenges to accuracy by the person
d. Amendments proposed by the person
e. Expungement or correction
f. Obsolescence
g. Notice of changes to previous third party
acquires
h. Civil arid criminal liabilities
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2.
a. Opt
(1)
(2)
(3)
(4)
(5)
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?
Acquisition
. ..-1
U
eri
S
04
0
0
44
.
I
ons in acquisition.
(1) Informal oral requests
from individual agents.
(2) Written requests from
head of agency.
(3) Administrative subpoena
or summons.
(4) Judicial subpoena
(discovery or trial).
(5) Grand jury subpoena.
(6) Search warrants.
(7) Civil suits for -declara- ?
tory judgement.
(8) Other
?
Standards of care in initiation.
(A) Authority to initiate.
(D) Reasonable cause.
(C) Probable cause. ?,
Notice to person subject of
records.
(A) Concurrent with service to
recordkeeper
(B) Concurrent with return of
service/inspection.
(C) Delayed notification.
(i) Likelihood of:
(a) Destruction of evidence
(b) Interference with
'process.
(c) Flight.
(ii) Length of Delay:
(a) Original.
(b) Extensions.
(iii) Prohibition.
(D) Prohibition of notice by
recordkeeper.
Intervention to challenge.
(a) Authority to issue
(B) Relevancy to. investigation.
(C) Service.
(D) Stay of execution.
?
Return of service.
(A) Agency.
(B) Actual.
Use.
(A) Limitation to acquisition.
(B) Maintenance.
(C) Seal
(D) Retorn or destruction.
pi:Toyed For_Releass??.19_05/93*/1A-RPP841S/
cl0980RQ1102.0002110:41-4W-t;--.-)111-4.
t
1 1
,Z
?
? ??mi?n.....tir
_
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3. Acquisition from governmental agency
(repeat consideration of 2.)
From this outline and matrix all the basic options can be
applied to the federal government across the board or selectively, agency
by agency. So long as the ridimentary constructures of the Constitution
are not violated, or as the Congress determines what the structures are,
Congress is free to legislate.
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IV. THE EXCLUSIONARY RULE AND REMEDIES
The presumed innocence or provable guilt of Lee Harvey Oswald
would ultimately have revolved on relevant and competent eiidence. Part of
competency, however, includes those legal policies which have an overriding
importance to the use of evidence and would have excluded, or better pre-
cluded; evidence from the jury's consideration. In a trial of Lee Harvey
Oswald the Constitutional Exclusionary Rule would have played an important
part; as will be shown, and may have any precluded final jury determination.
The material to be discussed in this chapter may have aborted a trial before
it began in a way similar to the problems suggested in Chapter II, and would
control the use of evidence acquired by the means discussed in Chapter III,
1/
including the current legislative proposals in that chapter.
Initially the Exclusionary Rule was Constitutionally mandated
2/
to unlawful searches and seizures, but the proposition has grown along
two distinct lines: 1) The type of conduct included under its umbrella
of applicability; and 2) he legal basis for its prohibition and egregiousness
of violation. On the first axis; the rule has extended from searches and
seizures to include confessions and identifications. On the second axis,
the rule has extended from Constitutional grounds to statutory, regulatory
and, tentatively; customary grounds. The concept of matrix analysis may
3/
thus be useful in this context.
1/ Compare; Chapter III; Section K; Wiifi Chapter IV; Section
2/ See; infra; Section B.
- - -
3/ See, infra, Section Cl.
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This chapter will proceed through the potentials on the basis
of authority: Constitutional, statutory, regulatory or customary in analyz?
ing the tra4Ltional area, as well as supplemental areas. Thus, in reaching
legislative alternatives, the broadest potential jurisdiction will be included.
To supplement that jurisdiction, proposals which are not currently under
consideration within the Congress, or which logically follow from the analysis,
will be brought in from outside sources.
Finally, a word must be said about the operation of suppression
as a remedy in criminal cases. When a case is the focus of wide?spread atten?
tion of the general populace, suppression is only valid so long as the evi?
dence has not been previously publicized. This was a major concern of Chapter
II. Similarly, pressures mount from one viewpoint in such cases to read
the exclusionary remedies narrowly and permit broader latitude in the intro?
duction of evidence, counterbalanced by the pressures from another to construe
the exclusionary remedies broadly and limit the use of damaging, but plausibly
improper, evidence to avoid later reversal. These pressures tend to reinforce
the special nature of such a trial; the potential reactions to the suppression
of evidence thus cannot be underestimated.
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A. The Facts in the Oswald Case
A variety of bones of contention arise from the arrest, detention
and investigation of Lee Harvey Oswald which could result in exclusion or
suppression of evidence. The potential for recurrence is obvious from the
flood of reported decisions, only to be underscored by the larger universe
of cases plea bargained to dispose of the issues.
Other then third party records searches, which have been discussed,
the Dallas police made two important searches: 1) the search of Oswald inci-
dental to his arrest, and 2) a search of the Paine residence. Oswald was
arrested approximately one and one-half hours after the Kennedy assassination,
4/
for the intervening murder of Patrolman Tippit. The police actions were
based on the suspicions of two citizens who had observed Oswald's activities
just prior to entering the Texas theater and knew of the deaths of President
5/
Kennedy and Patrolman Tippit. One of these witnesses pointed out Oswald
in the near empty theater when police arrived. When approached by the police,
6/
Oswald drew his revolver and a scuffle ensued. When Oswald was searched
at the time of his arrest a forged selection service
"Alek J. Hiddell," with a picture of Oswald affixed,
was also searched approximately two hours later and
8/
seized.
!/ WCR,
?5/ WCR,
6/ WCR,
7/ WCR,
8/ WCR,
at 48, 176-180.
at 176-178.
at 178-179.
at 181, 571-577.
at 198.
card in the name of
7/
was seized:- Oswald
five cartridges were
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On the same afternoon, police officers arrived at the Paine
residence where Oswald and his wife lived. After asking and receiving per-
mission from Mrs. Paine, and after translation from Mrs. Oswald, the offi-
cers searched Oswald's possessions and seized various items including a
9/
blanket in which the rifle had been stored. Mrs. Oswald also answered a
10/
variety of questions through Mks. Paine as translor:--
After.
Oswald was arrested, he was questioned by police and FBI
11/
officials for a total of about twelve hours. At the first interview,
i/
Oswald indicated a desire for, and was advised of his right to, an attorney.
The right against self-incrimination was first discussed at the second inter-
13/
view. According to the investigative reports, Oswald provided little evi-
dence which would have been useful at trial during these interviews.
On four occasions Oswald was taken before individuals who were
14/
potential witnesses for the purpose of identification. In each lineup,
Oswald was handcuffed into an array of four men, and at each he was positively
i5/
The question of whether Oswald was adequantely afforded his
9/ WCR; at 128-133.
10/ WCR; at 125-129.
ii/ WCR; at 199-200; 589-636.
12/ WCR; at 200; 602. Inquiry was also made by the ACLU and the Dallas Bar.
Id. at 201.
13/ WCR; 614; 619; 621; 625.
14/ WCR; 199-200; 166-169.
15/ Id.
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16/
legal rights is one only impliedly answered by the Warren Commission.
Since much of the legal development of those rights occurred subsequent
to Oswald's death, attention must turn to that development.
16/ WCR, 201.
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B. The Exclusionary Rule
The concept that evidence obtained in violation of the Constitu-
tional proscription of unreasonable searches and seizures could not be used
17/
at trial was first enunciated as dicta in Boyd v. United States:? In Boyd,
the court assumed that this concept was conventional wisdom and hence the
dicta was not conceived as a new or compelling rule. That assumption
failed, however, and the Court, utilizing its supervisory power, declared a
18%
formal rule for the federal courts in Weeks v. United States.
The efforts of the courts and their officers to bring
the guilty to punishment, praiseworthy as they are, are
not to be aided by the sacrifice of those great princi-
ples established by years of endeavor and suffering
which have resulted in their embodiment in the funda-
mental law of the land. ... To sanction such proceedings
would be to affirm by judicial decision a manifest
neglect if not an open defiance of the prohibitions of
the Constitution, intended for the protection of the
people against such unauthorized action.
We therefore reach the conclusion that the letters in
question were taken from the house of the accused by
an official of the United States acting under color
of his office in direct violation of constitutional
rights of the defendant. ...In holding them and per
mitting their use upon the trial, we think prejudi-
cial error was committed. 19/
17/ 116 U.S. 616 (1886). but, see, Adams v. New York, 192 U.S. 585 (1904)
(Reciting the common law tort remedy).
18/ 232 U.S. 283 (1914).
19/ 232 U.S. at 293-294, 308.
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The proscription of the Fourth Amendment were applied to the states through
20/
the Fourteenth Amendment in Wolf v. Colorado, but the remedy for viola-
tion was left to the individual states. Since the efficacy of excluding
evidence as a neans of enforcing the Fourth Amendment was unknown, the
Court sought to permit the states room to develop methods other than the
21/
Federal remedy. The rule was applied directly to the states in Mapp v.
22/
Ohio in light of a substantial formalization of the rule by the states.
The rule became complete, with the basis ascribed to it by the court:
The right to privacy, when conceded operatively
enforceable against the states, was not suscepti-
ble of destruction by violation of the sanction
upon which its protection and enjoyment had al-
ways been deemed dependent. ... Therefore, in
extending the substantive protections of due
process to all constitutionally unreasonable
searches - state and federal - it was logically
and constitutionally necessary that the exclu-
sion doctrine - an essential part of the right
of privacy - be also insisted upon as an
essential ingredient of the right.... 23/
The countervailing line of thought holds that the "exclusionary rule is not a
command of the Fourth Amendment but is a judicially created rule of evidence
24/
[implementing the Fourth Amendment]"
20/ 338 U.S. 25 (1949).
21/ 338 U.S. at 29-31.
22/ 367 U.S. 643 (1961).
23/ 367 U.S. at 652-653.
24/ 338 U.S. at 33 (Black, J., concurring).
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This structure of the Rule poses the first of many problems.
The Court has constructed the rule within the framework of a Constitutional
mandate and it must be considered whether this affirms the Rule as Constitu-
tionally exclusive of all other remedies. In the sense of direct Constitu-
tional violations -- especially in the area of coerced confessions -- it is
probably true that no alternative exists which would meet Constitutional
standards. When the Constitutional prohibition is not violated by the sub-
stance of the evidence or where a lesser legal standard is violated in ac-
quiring or using the evidence, a significant amount of room is left for al-
ternatives to the exclusion of evidence.
Three bases have traditionally been cited for the exclusionary
rule. The first basis is that of judicial integrity evident in Weeks
and other cases. The second basis is strictly evidential: the good to be
obtained by the use of the evidence is outweighed by the prejudice or harm
allowed in using it. The third basis, and the most prominent contemporary
thought, is found in deterrence: that the conduct which was violative of
the defendent's rights will be deterred if the fruits of that conduct are
imcompetent at trial. This third theory has led to significant attacks
on the rule's efficacy and well as the rule itself. On any of these bases,
Congress has a significant role to play: especially in the Constitutional
construction of the rule as a co-ordinate interpreter. In light of the judi-
cial intergity concept Congress may reconstruct the courts' theory of inte-
grity as it has the courts' jurisdiction. In light of the evidentiary concept
Congress may alter the rules as it has done in the past. And in light of
the deterrence concept, Congress may provide more effective alternatives.
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C. Scope of the Exclusionary Remedy
The Exclusionary Rule has been most troubling recently in terms
of whether the Rule will deter improper actions in a given situation. The
Court appears to be solely concerned with deterrence rather than with the
25/
Constitutional theory, judicial integrity or evidentiary values. Given the
basis for this deterrence need - misconduct of some kind - it is easiest
to consider the scope of the Rule and corrollary remedy in the context of
Individual actions and the authority violated.
This section will consider, summarily, the variations of au-
26/
thority and violations which lead to invocation of the remedy. The types
of authority can be dissected into four: .Constitutional, statutory, admini-
strative or customary. The subject matters centered from the definitional
search and seizure and traditional confessions and identifications to
failure to procure administrative authorization for using entirely lawful
techniques.
25/ United States v. Janis; 428 U.S. 433; 447-454 (1976).
26/ Matrix analysis would prove useful in a more complex study of the appli-
cations of the exclusionary remedy and suppression doctrine; but given the
limited resources available at this time; it can only be considered sum-
marily. In this case; one axis would constitute the various levels of
_authority: Constitutional; statutory and court rules; administrative regu-
lations, and custom. The second axis would be constructed of the various
substantive issues; such as search and seizure; self-incrimination, etc.
From this type of analitical potential; the remainder of the section pro-
ceeds on the declining levels of authority to demonstrate the pervasiveness
of the remedy's use without attempting to present a complete review of the
potential substantive issues.
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1. Constitutional Grounds
The Exclusionary Rule is effective to deter improperly warranted
2,/
searches such as obtained from an interested magistrate or lacking probable
28/ 20/
cause or particularity, or execution of properly acquired warrants by ex-
30/
ceeding the scope of the warrant. The Rule is further intended to deter
all warrantless searches and seizures except When narrowly drawn exigent
circumstances make the acquisition of a warrant impractical -- such as the
31/
flight of a person with the evidence. The circumstances which would be
so exigent have recently been all but eliminated by a change in the Federal
Rules of Criminal Procedure, under the approval procedures by Congress, allow-
ing for the application for a,search warrant through sworn oral testimony
32/
by telephone or other means; thus making the acquisition of a warrant
possible in all but the most extreme circumstances from a Federal magistrate.
Searches incidental to arrest and for the protection of the officer are per-
27/ Coolidge v. New Hampshire; 403 U.S. 443; 449-451 (1971); Mancisse v.
DeForte, 392 U.S. 364 (1968).
28/ United States v. Ventrusca; 380 U.S. 102 (1965); Giordanello v. United
States; 357 U.S. 480 (1958); Aguilar v. Texas; 378 U.S. 104 (1964).
20/ Marron v. United States; 275 U.S. 192 (1927)
30/ Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v.
United States; 282 U.S. 344 (1931); United States v. Di Re 332 U.S. 581
(1948). Ker v. California; 374 U.S. 23 (1963). See; also, 21 U.S.C.
?879(b) (1970; Supp. 1976).
31/ Carroll v. United States; 167 U.S. 132 (1925); but; see, Chambers v.
Maroney, 399 U.S. 42 (1970).
32/ Pub. L. 95-78; 91 Stat. 319; July 30; 1977; ?2(e), amending Rule 41(c)
of the Federal Rules of Criminal Procedure.
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33/
mitted. Consent would waive the warrant requirement, but consent must be
34/ 3V
...._
given voluntarily and with knowledge of the right to refuse; consent
36/
can be given vicariously. The ambit of the Rule, like the Amendment;
37/
extends to include intangibles such as private conversations. As a matter
of continuity, one sovereign may not use in any criminal trial evidence
38/
obtained by another sovereign in violation of the Fourth Amendment. This
39/
does not extend to evidence obtained by private parties on their own volition
40/
or prohibit use in civil cases.
The close relationship of the Fourth and Fifth Amendments pro-
41/
duced the tentative beginning of the Excusionary rule in JBoyd: a compulsory
33/ Chimel v. California, 395 U.S. 752 U.S. 757 (1969); Harris v. United
States, 331 1945 (1947). Terry v. Ohio, 392 U.S. 1 (1968)
34/ Bumper v. North Carolina, 319 U.S. 543 (1968).
35/ Johnson v. United States, 333 U.S. 10 (1948); Amos v. United States, 235
235 U.S. 313 (1921).
36/ Bumper, supra (spouse - consent valid); United States v. Matlock, 415
U.S. 164 (1974) (mistress - valid); Frazier v. Cupp, 394 US. 731 (1969)
(co-tenant valid); Chapman v. United States, 365 U.S. 610 (1961)(landlord-
invalid); Stoner v. California, 376 U.S. 483 (1964)(hotel clerk invalid).
37/ Katz v. United States, 389 U.S. 547 (1967); Berger v. New York, 388
U.S. 41 (1967). Fourth Amendment not applicable when one party consents to
recording of the conversation, either in person or telephonic. United States
v. White, 404 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293 (1966);
Lopez v. United States, 373 U.S. 427 (1963); 18 U.S.C. ?2511(2)(c).
38/ Elkins v. United States, 364 U.S. 206 (1960). See, Listig v. United
nates, 330 U.S. T4 (1949).
39/ E.g. United States v. _FrybA, 163 U.S. App. D.C. 389, 502 F.2d 391 (1974)
cert. denied, 419 U.S. 112771975); United States v. Lamar, 545 F.2d 488,
rehearing denied, 547 F.2d 573 (5th Cir. 1977), cert. denied, 430 U.S. 959
(1977).
40/ United States. v. Janis, 428 U.S. 433 (1976) (insufficient deterrent
value).
41/ Supra,
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42/
production of papers which is likened to both self-incrimination and search
and seizure. While the Fourth Amendment argument was later rejected, approved
43/
and, finally institutionalized, the Fifth Amendment never altered. The ex-
exclusion of evidence acquired in violation of the Fifth Amendment's proscrip-
tion of compelled self-incrimination poses all three the rationale of deterrence,
the reliability of the evidence and the perception of a mandatory constitutional
44/
remedy.
The remedy of exclusion, as applied to confessions, presmTdng
some defect, initially and historically rested on reliability or trustworthi-
45/
ness. Beginning with Lisenba v. California, however, it began to develop
the standard under a constitutional approach with the Fifth Amendment privilege
46/
as the essential ingredient. While the common law approach had. relied
upon the "voluntariness" of the statements, the constitutional approach
developed more heavily into a due process set of rules. In Malloi, v. Hogan,
the court unitized the state and Federal rules in the only way possible,
47/
through the Fifth and Fourteenth Amendments. Although voluntariness was
42/ See, supra, Chapter III, notes 28-45, and accompanying text. Compare, the
required records doctrine, Shapiro v. United States, 335 U.S. 1 (1948) (first
party), United States v. Sullivan 274 U.S. 259 (1927), with, Chapter III,
Sections C and D.
43/ Adams and Weeks, supra.
44/ This, of course, restates the three theories under which the court's
have labored. In this case, however, the deterrence effect is subliminal.
45/ See, e.g. White v. Texas, 310 U.S. 530 (1940); Chambers v. Flordia, 310
U.S. 227 (1940); Brown v. Mississippi, 297 U.S. 278 (1936).
46/ 314 U.S. 219 (1941).
47/ 378 U.S. 1 (1964).
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still a major part of the operative decision-making, the Court articulated
specific rules to reinforce the individual's ability to assert his rights -
to put the accused and government in parity - in Miranda v. Arizona:.
Our holding will be spelled out with some specificity
...but briefly stated it is this: the prosecution may
not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrim-
ination. By custodial interrogation, we mean question-
ing initiated by law enforcement officers after a per-
son has been taken into custody or otherwise deprived
of his freedom of action in any significant way.
As for the procedural safeguards to be employed, un-
less other fully effective means are devised to in-
form accused persons of their right of silence and
to assure a continuous opportunity to exercise it,
the following measures are required. Prior to any
questioning, the person must be warned that he has a
right to remain silent, that any statement he does
make may be used as evidence against him, and that
he has a right to the presence of an attorney, either
retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver
is made voluntarily, knowingly and intelligently.
If, however, he indicates in any manner and at any
stage of the process that he wishes to consult with
an attorney before speaking there can be no ques-
tioning. Likewise, if the individual is alone and
indicates in any manner that he does not wish to be
interrogated, the police may not question him. The
mere fact that he may have answered some questions
or volunteered some statements on his own does not
deprive him, of the right to refrain from answering
any further inquiries until he has consulted with
an attorney and thereafter consents to be questioned. 48/
49/
Beyond these warnings, as indicated by their content, is the issue of waiver.
The operation of the Miranda rule was set aside by Congress within the con-
48/ 384 U.S. 436, 444-445 (1966).
49/ Again a voluntary, knowingly and intelligently given test has developed.
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text of federal courts, but a measure setting aside its operation in state
50/
courts failed. As the only course of controlling the operation of the
courts, and especially in light of the exposure at trial of any confession,
voluntary or involuntary, to the preclusion of fairly determining that very
51/
issue of guilt, the exclusionary remedy becomes a constitutional requisite.
To permit any involuntary confession to go to the Jury in any way defeats
the very purpose of Fifth Amendment.
The right to the assistance of counsel guaranteed by the Sixth
Amendment poses several potential situations for the exclusion of evidence,
most notably lineups and pre-trial proceedings. The right to counsel was
first formidably interpreted in Powell v. Alabama though the holding was
narrowly circumscribed: "[I]n a capital case, where the defendant in unable
to employ counsel, and is incapable adequately of making his own defense be-
cause of ignorance, feeble mindedness, illiteracy or the like it is the duty
of the court, whether requested or not, to assign counsel for him as a neces-
52/
sary requisite of due process of In Johnson v. Zerbst, the rule
was extended to require appointed or retained counsel for the accused in all
53/
federal cases. An absolute right to counsel in state trials was rejected
50/ Pub. L. 90-351, 82 Stat. 197, 18 U.S.C. ?3501 (1970, Supp. 1976).
51/ Jackson v. Denno, 378 U.S. 368 (1964); Lego v. Twomey, 404 U.S. 477
52/ 287 U.S. 45, 71 (1932) (the Scottsboro case).
53/ 304 U.S. 548 (1938).
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4/ 55/
in Betts v. Brady, which was, in turn, overruled by Gideon v. Wainwright.
Gideon extended the Sixth Amendment's command to the states in all felony
56/
cases through the FOurteenth Amendment:? More recently the Court has extend-
57/
ed the right to include misdemeanors and reasserted the proposition that
58/
it is a right which can be waived:? These cases all deal with the formal
setting of trial, where the potential for use of the exclusionary remedy
exists, but the cause for invoking the remedy in a situation where lack
of counsel is the grounds inherently occurs pre-trial.
In Edo v. Illinois the court held that evidence obtained
during interrogations at which the accused and his counsel were separated
and not allowed to communicate was inadmissable as violative of the Sixth
9/
Amendment. The Escobedo decision was quickly overshadowed by the require-
60/
ments of Miranda; joining of the Fifth and Sixth Amendments, but the ex.-
tension of the exclusionary remedy to in-custody interrogations which vio-
lated the right to counsel remained in force as a Sixth Amendment interpre-
316 U.S. 455 (1942). Cases after Betts followed a "special circumstance"
line of reasoning which would permit appointment of counsel if the court
felt it was necessary; but did not require it.
55/ 372 U.S. 335 (1963).
56/ An otherwise unanimous Court divided on the theory of application.
57/ Angersinger v. Hamlin; 407 U.S. 25 (1972) (misdemeanors; petty offenses
for which imprisonment not possible are not included and reserved.
5.8/
rtta v. California;
422 U.S. 806
(1975)
59/
378 U.S. 478 (1964).
See; Kirby, v. iiiinOiS; 406 U.S. 682 (1972).
60/
?1:1PiS.; note 48.
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61/
tation after the Miranda rules were changed.
In 1967 the Court decided the Wade-Gilbert-Stovall trilogy
of. cases. United States v. Wade stands for the proposition that the right
to counsel extends to post-indictment line-up identifications and that in-
court identifications subsequent to a line-up without counsel should not in
62/
every case be suppressed. The thesis, necessarily, is that only counsel
can assure that future testimony will not be tainted by a
otherwise improper lineup. Gilbert v. California made the
in Wade a per. 2e. rule, thus denying any
the taint, once developed, could not be
application of the Wade-Gilbert rule to
suggestive or
exclusionary rule
potential independent evidence since
63/
remedied:? Stoval v. Denno restricted
64-7?
prospectivity. While the Constitu-
tional demand for counsel is obvious, the basis for the rule is not only
unclear, but it may include all the discussed possibilities:
"Only a per se exclusionary rule as to such testimony
can be an effective sanction to assure that law enforce-
ment authorities will respect the accused's constitu-
tional right to the presence of his counsel at the crit-
ical lineup. In the absence of legislative regulations
adequate to avoid the hazards to a fair trial which
inhere in lineups...the desirability of deterring the
constitutionally objectionable practice must prevail
61/ Supra, note 50.
62/ 388 U.S. 218 (1967). The Court also held that there was no Fifth Amend-
ment self-incrimination issue in line-ups.
63/ 388 U.S. 263 (1967).
64/ 388 U.S. 293 (1967). Thus Oswald would have reaped no benefit had he
been convicted.
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over the.undersirability of excluding relevant evi-
dence. 65/
Unlike in-custody interrogations without counsel which would implicate the
Fifth Amendments' ban on compelled self-incrimination, the exclusion of
testimony tainted by improper identification clearly emanates from the Sixth
Amendment alone, if on a constitutional theory at all.
2. Statutory Authority and Court Rules
It is less cumbersome to deal with exclusions which do not emanate
from the Constitution; and; correspondingly; consideration can be more fruitful.
Two types of exclusions immediately call for attention: the McNabb-Mallory
Rule and the wiretapping statutes.
The McNabb-Mallory Rule requires that a person taken into custody
must be presented before an appropriate judicial officer without unnecessary
66/
delay" The basis for the rule is clearly not Constitutional; the supervi-
sory power of the Court over litigation within the inferior courts and, hence,
61/
is not applicable to the States as a Constitutional rule would have been.
McNabb-MailOrY clarified Rule 5 of the Federal Rules of Criminal Procedure, and
has since been reiterated within the Federal Rules. The exclusion remedy
............. ? - - - - - - -
65/ Gilbert; supra; note 63 at 273. Congress modified the Wade-Gilbert
rules in the Federal Realm in 1968. 18 U.S.C. 3502. (1970, Supp. 1976).
It is not essential that Congress consider actions within the realm of one
theory to the exclusion of others. See, also, Simmons v. United States,
390 U.S. 377 (1968).
66/ McNabb v. United States, 318 U.S. 332 (1943), Mallory v. United States,
354 U.S. 449 (1957).
67/ McNabb, sunra, at 340. Congress also has modified the McNabb-Mallory
Rule, 18 U.S.C. 3501(c)(1970. Supp. 1976). Cf. Culombe v. Connecticutt,
367 U.S. 568 (1961). Nor is it likely that the rule will be transformed
as in McCarthy v. United States, 394 U.S. 459 (1969) and Bo kin v. Alabama,
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had been invoked in early cases consistently lowering the permissible period
68/
between arrest and presentation before a magistrate:? It would appear that
the rule, as a per se exclusion, also prohibits derivative use of evidence
obtained, although there is little directly controlling law on the point
69/
since most McNabb-Mallory violations were formal confessions. In this case
it is possible to eliminate the evidentiary reasoning since no real question
of reliability has been raised after the initial rule was institutionalized;
subsequent cases have been based on a narrow adherence to the rule and de-
70/
terrence from deviating.
Statutory exclusion of evidence is found in Title III of the
71/
Omnibus Crime Control and Safe Streets Act of 1968. The general purpose
of Title III is to prohibit the interception of wire or oral communications
by anyone other than those specifically authorized and not accomplished in
72/
accord with a specifically authorized judicial warrane. Along with de-
fining and generally proscribing wiretapping, the Act particularly excepts
68/ Eg. Coleman v. United States, 115 U.S. App. D.C. 191, 317 F.2d 891 (1963)
(10 hours-overnight); Seals v. United States, 117 U.S. App. D.C. 79, 325 F.2d
1006 (1963), cert. denied 376 U.S. 964 (1964) (unexplained 3 hours delay);
Perry v. United States, 118 U.S. App. D.C. 360; 336 F.2d 748 (1964) (1 1/2
hour delay).
69/ See, e.g. United States v. Curry, 358 F.2d 904 (2d cir.,
denied 385 U.S. 873 (1964).
22! "Third degree" tactics were alluded to in McNabb but the
opinions enforcing the rule have operated on the efficiency
the suspect before a judicial officer.
1964), cert.
lower court
of bringing
71/ Pub, L. 90-351, 82 Stat. 216, June 19, 1968, Title III, ?802, 18 U.S.C.
2515 (1970, Supp. 1976).
72/ See, S. Rep. No. 1097, 90th Cong., 2nd Sess., 64-109 (1968).
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judicial orders granted upon application approved by the Attorney General
73/
or a designated Assistant Attorney General under certain conditions. The
Act further provides:
"Whenever any wire or oral communication has been intercepted,!
no part of the contents of such communication and no evidence de-
rived therefrom may be received in evidence in any trial, hearing,
or other proceeding in or before any court, grand jury, department,
officer, agency, regulatory body, legislative committee, or other
authority of the United States, a State, or a political subdivision
thereof if the disclosure of that information would be in violation
of this chapter." ii
74/
The exclusion of evidence developed contrary to the Act was intended by
Congress as "an integral part of the system of limitations designed to pro?
tect privacy. Along with the criminal and civil remedies, it should serve
to guarantee. that the standards...will sharply curtail the unlawful inter-
75/
ception of wire and oral communications." The Court has given it,a
broader basis, supplementing deterrence: "...?2515 serves not only to protect
the privacy of communications, but also to ensure that the courts do not
become partners to illegal conduct; the evidentiary prohibition was enacted
76/
also 'to protect the integrity of court and administrative proceedings."
--
73/ 18 U.S.C. 2516, 2518 (1970, Supp. 1976).
74/ 18 U.S.C. 2515. The concept of derivative use ? the "fruit of the poisonous
tree" doctrine ? is specifically introduced, but here, as noted above, the con?
cept of derivative use extends the exclusionary remedies beyond the primary use
until it is so attenuated as to lose validity.
75/ S. Rep. No. 1097, supra, note 72, at 90.
76/ Gelbard v. United States, 408 U.S. 41, 51 (1972). (?2515 provides defense
to contempt for refusal to give grand jury testimony on illegal wiretap by
victim).
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The Act is easily interpretable as a constitutionally based exclusion in
light of previous Court decisions holding wire communications within the ambit
77/
of the Fourth Amendment's protections, but the Act goes beyond the minimum
rquirements. of probable cause and search warrant requirements and stands inde-
78/
pendent of minimum constitutional mandates.
Several other examples should be summarily noted. Before the
Omnibus Crime Control and Safe Streets Act of 1968, interception of wire
79/
communications was controlled under the Federal Communications Act of 1934;
exclusionary remedies were not specified in the statute, but were required
80/
by the Court in Nardone v. United States and, because the Federal statute
81/
was prohibitory, extended to the State enforcement effort in Lee v. Florida.
--
Also forcible entry by law enforcement authorities without notice of authority
82/
and purpose and direct refusal proscribed by federal statute, and reiterated
83/
as common law of the District of Columbia, provided the basis for extending
77/ Supra, note 37.
78/ For example, the Act requires a specific finding that other techniques
have failed or are reasonably likely to fail, before a judicial order for wire
interception is permitted to issue. The constitution demanded only probable
cause. See, 18 U.S.C. 2518.
79/ 47 U.S.C. 605. Cf, Supra, Chapter /II, notes 174, 180-182 and accompany-
ing text.
80/ 302 U.S. 379 (1937).
81/ 392 U.S. 378 (1968) (prior to passage of the Omnibus Crime Control
and Safe Streets Act of 1968).
82/ 18 U.S.C. 53109 (1958, 1970).
83/ Accarino v. United States, 85 U.S. App. D.C. 394, 179 F.2d 456 (1949).
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the exclusionary remedy to evidence obtained in its breach in Miller v. United
84/
States. In each case the underlying theory is clearly non-constitutional;
but it is unclear whether the basis is deterrence or evidentiary.
3. Administrative Regulations
The incidence of exclusionary remedies for failure to comply with
administrative regulations is limited by three intervening factors: 1) the num-
ber of agencies charged with criminal investigations or investigations which
have a likelihood of resulting in criminal prosecutions, 2) the extent to which
these agencies "regulate" their investigative techniques and 3) the actual
prosecutorial response. Given these restrictions, the cases in which the ex-
clusionary remedy is utilized represent no concerted legal doctrine which
85/
has been previously recognized.
--
A primary example of a violation of personnel regulations re-
86/
suiting in exclusion is United States v. Caceres. In Caceres an Internal
84/ 357 U.S. 301 (1958).
85/ See, generally, Note, Violations by Agencies of Their Own Regulations, 87
Harv. L. Rev. 629 (1974). Cases involving delegated authority to promulgate
legislative rules under APA, the violation which has resulted In suppression
of evidence; have not been found. But; 'see United-States v. SChwartz, 176
F. Supp. 613 (E.D. Pa.; LU59); aff'd on other grounds, 283 F.2d 107 (3rd
Cir., 1960), cert. denied, 364 U.S. 942 (1961) (Postal regulations (39 C.F.R.
?3.1 (Supp. 1959)) violated; evidence not suppressed); United States v. Leo-
nard, 524 F.2d 1076-1080 (2d cir. 1975) (Postal Manual violated: no suppres-
sion). This appears to be due to the minimal cross-over from purely adminis-
trative regulation to criminal investigation. Thus the remaining regulations
are based on internal personnel control. See, L. Beck, The Administrative
Law of Criminal Prosecution: The Development of Prosecutorial Policy, 27
Am. U.L. Rev. - (1978).
86/ 545 F.2d 1182 (9th Cir., 1976) (petition for rehearing and suggestion
of rehearing on banc denied, Januar 20, 1977), cert. granted --U.S.-- 46
U.S.T..W. 3753 (No. 76-1309, June 5, 1978). No Fourth amendment "privacy"
grounds are applicable. Supra note 37.
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Revenue Special Agent failed to obtain authorization from designated su-
periors at the IRS and Justice Department before recording conversations
with a taxpayer, including the taxpayer's attempts to bribe the agent.
While the court rested its approval of exclusion of the evidence on due pro-
cess grounds, the government contended a mimimum basis existed in the internal
87/
regulation. Court holdings are not uniform on the application of this regula-
88
tion and its corrollaries.
Another example is found in the IRS Intelligence division prac-
tice of giving taxpayers Miranda-type warnings and informing them that the
agent's responsibility is for criminal tax investigations. Although not
a?/
mandated by the Constitution, some lower courts have suppressed evidence
obtained at interviews when the agent has failed to closely follow this
90/
internal regulation. Other courts have denied suppression motions when
91/
when the practice was substantially followed, or have denied suppression
87/ The government presented that issue as: "Whether it is proper to suppress
otherwise admissable and probative evidence in a criminal case because of the
government's failure fully to comply with an internal regulation that is not
required by the Constitution or by statute." Petition for Certiorari, supra,
note 86, at 2.
88/ See, United States v. Kline, 366 F. Supp. 994 (D.C.D.C. 1973). (SEC
surveillance tapes).
89/ Beckwith v. United States, 425 U.S. 341 (1976).
90/ United States V. Heffner, 420 F.2d 809 (4th Cir., 1969); United States
v. Leahy, 434 F.2d 7 (riTar., 1970); United States v. Sourapas, 515 F.2d
296 (9th Cir., 1975); (Suppression as to individual taxpayer; no suppression
as to corporate taxpayer). United States v. Jobin, 535 F.2d 154 (1st Cir.,
1976), (individual records before warning suppressed; all corporate records
and individual records after warnings not suppressed).
91/ United States v. Bembridge, 458 F.2d 1262 (1st Cir., 1972); United Staies
v. Morse, 491 F.2d 149 (1st Cir.; 1974).
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violation is evident on the grounds that suppression was inappropriate or
92/
that no due process rights existed, It is unclear whether BeCkwith
would have any effect on the lines of thinking represented since all cases
deal with the personnel regulations on giving Miranda type warnings and
93/
not the Sixth Amendment. The potential for the development of the ex?
clusionary remedy for violations of agency regulations, however, is clear,
even where the regulations are internal and personnel oriented, or delegated
authority from Congress.
4. The Extreme Incident: Custom
The exclusionary remedy was called into question on the Supreme
92/ United States v. Leonard, 524 F.2d 1076 (2d cir., 1975), cert. denied 425
U.S. 958 (1976); United States v. Gentile, 525 F.2d 252 (2d cir., 1975),
? cert. denied, 425 U.S. 903 (1976); United States v. Robson, 477 F.2d 13 (9th
cir., 1973); United States v. Potter, 385 F. Supp. 681 (D. Nev., 1975);
United States v. Fukushima 373 F. Supp. 212 (D. Hawaii, 1975). Cf. Truett
v. Lenahan, 520 F.2d 230 (th Cir., 1976), cert. denied, 427 U.S. 912 (1976).
See, especially, United States v. Lockyer, 448 F.2d 417 (10th Cir., 1971)
See, also, United States v. Mapp, 561 F.2d 685 (7th Cir., 1977).
93/ The Court of Appeals in Beckwith, U.S. App. D.C.? 510 F.Id 741, 743-744
noted:
"Furthermore, the agents did give Beckwith a modified
Miranda warning which while not in full compliance with
Miranda does give the suspect some notice that his
statements might be used against him (footnote quote
omitted) the extent to which such a warning must be given
is not implicated in this case."
Thus the Supreme Court did not need to concern itself with the issue, even
to issue the disclaimer. It is also salient to note that there has been
only one case after Beckwith: ?Tobin, supra, note 90.
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94
Court's docket this Term in United States v. Jacobs. The issue presented
by the pretitioner was:
"Whether a court of appeals possesses and should exercise
supervisory power to suppress a defendant's allegedly
perjurious grand jury testimony for the sole reason that
the prosecutor neglected to follow the usual practice of
other federal prosecutors in the circuit of giving target
warnings to grand jury witnesses against whom the govern-
ment has incrimination evidence." 95/
In terms of the remedy, the question was whether the court of appeals may
extend it to cover such a purely supervisory setting, if the court has au-
thority to rule in the first place. The Supreme Court's action in taking
the case and then dismissing it after argument marks a significant ap-
96/
proval of the remedy under the court's supervision. The reversal of the
court of appeal's decision would have marked further erosion of the Court's
faith in the exclusionary remedies, or merely limits on the incidence of
97/
its use. Such speculation would appear to rest on the perceived deterrent
value of the case and the availability of alternatives - in this case, the
98/
Government's institutionalization of the practice.
94/ 531 F.2d 87 (9th cir., 1976), 547 F.2d 772 (9th Cir., 1977), cert. granted,
No. 76-1193, May 31, 1977, argued. Nov. 7, 1977, March 20, 1978, cert, dismissed
as improvidently granted U.S. , 46 U.S.L.W. 4406 (May 1, 1970).
95/ Petition for Certiorari, p. 2; Brief for Petitioner, p.2, Respondents
view of the question is responsive.
96/ i.e; Jacobs would extend McNabb-type supervisorry authority.
97/ See; e.g.; United States v. Janis; supra; note 40.
98/ U.S. Atty. Man. 9-12.250 (December 16; 1977).
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D. Limiting the Suppression Doctrine
The expansion of the exclusionary remedy was amplified by Mapp
99/
v. Ohio and reached its zenith between Mapp in 19.61 and 1969 Since the
inception of the Burger court, the suppression doctrine has continually been
100/
limited - the boundaries of growth clearly defined. Not only has the Court
whittled away the periphery of the suppression doctrine but specific commentary
on the continuing efficacy of the rule has become more evident.
Initially Justice Harlan called for the court to overrule Mapp so
101/
that the entire area of search and seizure could be re-evaluated. Justice
Black had only recently reiterated the idea that the suppression doctrine was
102
not part-and-parcel to the Fourth Amendment. In Bivens v. Six Unknown Named
99/ Supra, note 22.
100/ E.g. Schneckloth v. Bustamonte, 412 U.S. 218 (19783 (consent search with-
out warning of alternations); Cady v. Dombrowski, 413 U.S. 433 (1973) (lack
of warrant not per se unreasonable); Cupp v. Murphy, 412 U.S. 291 (1973)
(fingernail scrapings "highly evanescent"); United States v. Robinson, 414
U.S. 218 (1973) (search incident to arrest not confined to weapons); United
States v. Calandra, 414 U.S. 338 (1974) (grand jury witness can't refuse to
testify about illegally seized material); United States v. Peltier, 422
U.S. 531 (1974) (Almeida-Sanche v. United States, 413 U.S. 255 (1973),
limited and not retroactive); United States v. Janis, supra, note 40; Stone
v. Powell, 428 U.S. 465 (.1976) (habeas corpus not available if suppression in
state court only); United States v. Martinez-Tuerte, 428 U.S. 543 (1976)
(fixed checkpoint border searches outside Fourth Amendment); South Dakota
v. Opperman, 428 U.S. 364 (1976) (search of impounded vehicle reasonable);
United States v. Donovan 429 U.S. 413 (1977) (suppression improper for failure
to name of defendants in application for wiretap warrant).
101/ Coolidge v. New Hampshire, 403 U.S. 443, 490-491 (1971) (Harlan, J.,
concurring).
102/ Whiteley v. Warden, 401 U.S. 560, 572, (1971) (Black, J., dissenting,
joined by Burger, C.J. and Blackmun, J., dissenting).
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Agents of Federal Bureau of Narcotics the court created a tort remedy within
103
the Fourth Amendment for unconstitutional searches and seizures. While
104/
the action constitutionalized the common law, Bivens did not present the
issue in a posture of choice between the exclusionary rule and a tort remedy,
and no such choice was made. In Chief Justice Burger's dissent to judicially
creating a remedy, which he felt more appropriately the province of Congress,
his understanding of the need for the rule becomes clear:
"I do not question the need for some remedy and teeth
to the constitutional guarantees against unlawful con?
duct by government officials. Without some effective
sanction, these protections would constitute little
more than rhetoric. Beyond doubt the conduct of some
officials requires sanctions....But the hope that the
objective could be accomplished by the exclusion of
reliable evidence from criminal trials was hardly more
than a wishful dream. Although I would hesitate to
abandon it until some meaningful substitute is developed,
the history of the suppression doctrine demonstrates
that it is both conceptually sterile and practically..
ineffective in accomplishing its stated objective. 105/
The Chief Justice's disenchantment with the Rule does not appear to be a
106/
minority view. Whether the suppression doctrine should be discarded is
not a question which is likely to be answered in simple terms or soon by the
Court. Whatever the Court does will eventually effect both State and Fed?
eral jurisdictions; so long as the doctrine is founded in constitutional
principles the alterations would appear to require slow, incisive actions.
Congress, however is not so limited.
103/ 403 U.S. 388 (1971).
104/ See, Adams v. New York, supra, note 17.
105/ Bivens, supra, note 103 at 415.
106/ See, e.g. Janis, supra, note 40; Stone v. Powell, supra, note 99, at 538
White, J. dissenting).
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E. Contemporary Legislative Proposals
Congress currently is considering a few measures which will either
mitigate the need for the suppression doctrine or curtial its use through
resort to methods not supportive of its use. However, no single bill, or group
of bills, addresses the problem directly.
The major relevant considerations propose amendments to the
107/
Federal Tort Claims Act which governs liabilities for torts by United
States employees in the course of their duties. H.R. 9219 would amend the
FTCA by including causes of action arising under the constitution and by re-
moving the exception from assault, battery, false imprisonment, false arrest;
108/
malicious prosecution, or abuse of process. Other bills have taken a more
restrictive view and expanded the FTCA only to include constitutional torts
and torts committed by employees who routinely perform investigative, inspection,
i09/
or other law enforcement and prosecution functions. Both bills follow the
line begun by Bivens and interpose the United States as the defendant waiving
110/
sovereign immunity. A version of the same idea is represented in the Senate
111/
by S.2117 repeating many of the provisions of H.R. 9219.
107/ 28 U.S.C. ??2671-2680 (1970). 62 Stat. 984, June 25, 1948, as amended.
108/ H.R. 9219, introduced September 20, 1977, by Mr. Rodino (by request).
109/ H.R. 9437, introduced October 4, 1977, by Mr. Zeferetti (for himself,
Mr. Carter, Mr. Devine, Mr. Goldwater, Mr. Gilman, Mr. Kemp, Mr. Long of
Louisiana, and Mr. Murphy of New York); H.R. 9191, introduced September 19,
1977, by Mr. Waggoner.
110/ Supra, note 163.
111/ S. 2117, introduced September 21, 1977, by Mr. Eastland.
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These alterations of the FTCA provide a relatively narrow view
of the spectrum of potential alternatives or supplements to the suppression
112/
doctrine. Accordingly a broad based discussion of alternative and ..supple-
mental considerations based on external research is provided in the next
section.
The most recent bill, S. 3014, provides for the specific aboli-
tion of the Exclusionary Rule in Federal criminal cases, but does not extend
113/
to statutory or supervisory exclusions.
The bill provides a civil tort
cause of action in the District courts for victims of illegal searches and
seizures with awards up to $25,000 for actual personal and property harm
or damages as well as punitive damages; the latter are restricted to in-
stances where criminal conviction of the defendant-now-plaintiff have not
114/
been obtained. The bill further provides for appropriate agency disci-
pline, after notice and hearing, including suspension without pay and out-
115/
right dismissal and allows good faith as a defense.
112/ Contrust this limited amount of activity with the previous sessions
more complex bills: H.R. 5628, 94th Congress, by Mr. Steiger, H.R. 10275,
93rd Congress, by Mk. Steiger; H.R. 9623, 93rd Congress, by Mk. Podell; S.
801, 94th Congress, by Mr. Bentsen; S. 2657, 92d Congress, by Mr. Bentsen.
But, see, Pub. L. 95-78, 91 Stat. 314, July 30, 1977. (permitting acquisition
of search warrants by telephone).
113/ S. 3014, introduced April 27, 1978, by Mr. Griffin.
114/ S. 3014, ??2-4.
115/ S. 3014, ?2: "2693".
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F. Alternatives or Supplements to the Suppres-
sion of Evidence
In order to fully understand the ability to alter the Exclusionary
?
Rule, the exclusionary remedy and the suppression doctrine, a variety of consid-
erations must be kept in mind. The first of these is basic to the extent Con-
gress might wish to act. Congress may alter the Federal Rules, as it has done
116/
in the past, thus altering the Federal practice, or it may effectively over-
rule Mapp v. Ohio through its authority to enforce the Fourteenth Amendment,
117/
thereby altering the more formidable state practices. A second question
lies in whether Congress would abolish the doctrine or would supplement it in
such a way as to relieve the courts of its use in all but a few cases. This
necessarily requires some speculation as the effectiveness of Congressional
action. A third consideration depends on whether Congress wishes to consider
the Exclusionary Rule a constitutional doctrine or relegate it to the Court's
supervisory authority while considering alternatives and supplements; the
former would appear to require an action applicable to the States as well
Federal enforcement efforts, while the latter gives more latitude for experi-
mentation in only the secondary Federal realm. This consideration leads to
a fourth question as to the extensiveness of the violations sought to be de-
terred. As already noted, the suppression doctrine has descended from consti-
116/ E.g. Pub. L. 95-78, supra?, note 32.
117/ Supra, note 22. Amendment XIV, Sec. 5; 18 U.S.C. 242 (1970); 42
U.S.C. 1983 (1970).
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tutional grounds to violations of custom and Congress may wish to return
the doctrine to narrower grounds.
In any event there are a limited number serious alternatives or
supplements to be considered. The variations within these alternatives or
supplements, however, consume considerable time.
1. Tort Liabilities
Tort liability was the only remedy before the development of the
ii8/
Exclusionary Rule and its progeny and has remained the most popular alterna-
tive. In Bivens, the Supreme Court constitutionalized this remedy for Fourth
ii9/
Amendment violations. The variations on tort liability are complex, but
120/
the primary question of deterrence within them remains unanswered.
Tort liability imposed on the individual official for his acts has
historically been considered inappropriate. Beside the fact that a tort
defendant is likely to be unable to pay any substantial damages, or is com-
pletely judgment-proof, significant procedural barriers have attended tort
actions against the individual official, including preliminary expenses,
potential good faith defenses and a significant lack of jury appeal. As a
matter of public policy, Judge Hand summarized:
"[lit is impossible to know whether the claim is well
founded until the case has been tried, and...to submit
all officials, the innocent as well as the guilty, to
the burden of a trial and the inevitable danger of its
118/ See, Boyd v. United States, and Adams v. New York, supra, note 17.
119/ Bivens v. Six Unknown Named Agents, supra, note 103.
120/ See, generally, Geller, Enforcing the Fourth Amendment: The Exclusionary
Rule and Its Alternatives, 1975 Wash. U.L.Q. 621, 690-713.
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outcome, would dampen the arder of all but the most
resolute, or the most irresponsible in the unflinching
discharge of their duties. Again and again the public
interest calls for action which may turn out to be
founded on a mistake, in the face of which an official
may later find himself hard put to satisfy a jury of
his good faith." 121/
The assertion of a Constitutional remedy under Bivens merely gets a
into court, no further.
plaintiff
The same holds true of cases brought under the Fed-
122/
The question inherently posed by the traditional
eral Civil Rights statutes.
tort remedy is in the
amount of deterrence: deterring an official from un?
constitutional or illegal actions without deterring the official from taking
any action at all.
A second alternative would be to provide for governmental indemni?
fication for violation of Constitutional rights. Ordinarily this would fall
123/
within the ambit of the Federal Tort Claims Act, but the Act specifically
excludes "Ea]ny claim arising out of assault; battery, false imprisonment,
i24/
false arrest; malicious prosecution [or] abuse of process.... Outside
the provisions of the FTCA; the government must first formally waive its
sovereign immunity before being susceptible to suit. Then the economic
problem of trial interposes as already discussed. The deterrence value of a
121/ Gregoire v. Biddle; 177 F.2d 579; 581 (2d Cir.; 1949).
122/ 42 U.S.C. 1983, 1985 (1970,
362 (1977); Hampton v. City of
denied, 415 U.S. 917 (1974).
123/ 28 U.S.C. 2671-2680 (1970).
in section E.
Supp. 1976). E.g. Rizzo v. Goode, 423 U.S.
Chicago, 484 F.2d 602 (7th Cir., 1973), cert.
124/ 28 U.S.C. 2680(h)(8).
See the proposed amendments discussed above
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suit against the government is questionable-either to the government or the
offending officer. It may also be argued that if an agency wants the convic-
tion badly enough, it will accept the budgetary consequences to obtain it.
Such a theory retains the premise of the tort theory to essentially "substi-
125/
tute subsequent cash payments for timely lawful behavior."
At least some of the initial questions of deterrence are answered
by suits against both the individual officer and the government as joint
126/
tortfeasers:--- The plaintiff could recover from the government, who, in
turn, for a wilful or reckless violation; could attempt collection from the
individual. This latter collection has at least arguable deterrent effects,
although these would substantially diminish as the time between violation
and sanction increased.
Another option would place the legal and factual issues before
an administrative review board for determination. Doing so may mitigate the
problems of a civil trial as well as increase any deterrent effect from lia-
bility through more efficient processing. Questions of such an administrative
body's authority and procedure must be answered somewhere between the quasi-
judicial full trial of fact and law and a summary proceeding resulting from a
suppression order. The formal hearing end of the spectrum could replace the
127/
entire suppression doctrine, while the latter is dependent on suppres-
125/ Baade, Illegally Obtained Evidence in Criminal and Civil Cases: A Com-
parative Study of a Classic Mismatch, 51 Texas L. Rev. 1325 (1971).
126/ See, Levin, An Alternative to the Exclusionary Rule for Fourth Amendment
violations, 58 Judicature 74, 75-76 (1974).
127/ See, Bivens, supra, note 103, at 422-423 (Burger, C.J., dissenting).
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sion and could increase deterrence (consequently, arguably, decreasing suppres-
sions) if the issues were limited to determinations of fault among joint-tort-
feasors and the assessment of damages. This would again raise questions
of direct liability of officials or indirect liability through the governmental
agency.
Similarly, the coverage of the remedy must be considered. A sanc-
tion dependent on suppression would effect only "close" cases which a prosecu-
tor took into court, or, even more formalistically, those "close" cases
where the prosecutor attempted to utilize the questioned evidence. Where the
case is plea bargained, dropped or declined in the first place, a remedy
must be considered to correlate with that involving attempted "use." It is
possible to consider both procedures - a suppression res judicata and full
trial on application within the same administative framework.
Finally the bullwark question of whether "the criminal goes free
because the constable has blundered" must be addressed. In BiVens, Chief
Justice Burger reiterated the idea of tort remedies as an alternative to the
Exclusionary Rule rather than a supplement to mitigate its use: "Any such
legislation should emphasize the interdependence between the waiver of
sovereign immunity and the elimination of the judicially created exclusionary
rule so that if the legislative determination to repudiate the exclusionary
128/
rule falls; the entire statutory scheme would fall." The Chief Justice
appended to his dissent a tentative draft of the American Law Institute's Model
Code of Pre-Arraignment Procedure emphasizing that the rule could be trimmed to
128/ Id. at 423; n. 7.
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129/
allow suppression "only if the court finds that such violation was substantial."
The question of what constitutes a substantial violation, as with any subjective
determination, would not relieve the courts of any burden, although it would
eliminate those cases most vocalized: technical violations. With this concept,
and a strict limitation to violations of constitutional rights, it is arguable
that the suppression doctrine would be significantly eliminated as an issue,
while violations would still receive attention in some manner as torts.
The question of a tort remedy is neither new nor simple. The
possibility of a tort alternative; however, is the most popular warranting
some attention in each Congress. To an extent; this popularity has impaired
thinking about other alternatives or supplements, just as the Exclusionary
Rule's existence may have impaired thinking about alternatives in the first
place.
2. Criminal Sanctions
The basis for imposition of criminal sanctions for violations
130/
of the Fourth Amendment currently exists, as do sanctions for conspiracy
i3i/
to violate Federal civil rights. The fate of these sanctions will be
132/
considered with the criminal code reform presently under way, but their
129/ ta: at 424-425 quoting ??SS8.02(2);(3), pp. 23-24 (Tent. Draft No,
4,1971). See, supra, notes 90-92.
130/ 18 U.S.C. ?2235 (1970; Supp. 1976) (malicious procurement of a search
warrant); 18 U.S.C. ?2236 (1870, Supp. 1976) (search without a warrant);
18 U.S.C. ?2234 (1970, Supp. 1976)(exceeding authority of warrant).
131/ 18 U.S.C. ?245 (1970, Supp. 1976)(interference with federally protected
interest).
132/ S. 1437; ?1; "??1501-1502;" passed January 30; 1978; H.R. 6968; ?1;
"??1501-1502," Committee on the Judiciary (Absorbing ??2234-2236 into the
civil rights statutes).
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use as an alternative or supplement to the exclusionary rule presents a
special set of problems. While these sanctions are contiguous with the
parameters of lawful searches, the elementary question of deterrence must
be considered since reported cases construing the sanctions are rare, and
133/
probably few conviction have ever been obtained. The elementary con-
struction problem exists in the limitation of the sanction against searches
without a warrant to officers, agents and employees of the United States when
134/
searching a private dwelling. Thus, only a small percentage of Fourth
Amendment violations are criminally proscribed.
The major problem with the use of this alternative or supple-
ment should be evident from this experience: prosecutors are loathe to
press charges against those with whom they must work and depend upon on a
135/
day-to-day basis. Pinning down this problem is difficult at best; but
contemporary prosecution of present and former FBI officials serves to
illustrate the point. More likely is the prosecution of an official for
misappropriation for failure to inventory all materials seized since there
136/
is a broader base for support of such corruption prosecutions:? While
133/ A number of cases have attempted to rely on this section for restraints
which it does not contain or personal remedies instead of the governmental
remedy. No criminal convictions have been found under the section.
134/ 18 U.S.C. 2236. Section 2234 and 2235 do not have these limitations;
but the incidence of such violations is probably significantly lower. The
Civil Rights provisions present the special problems of conspiracy proofs
which are still rarer occurrences.
135/ Oaks, Studying the Exclusionary Rule in Search and Seizure; 37 U. Chi.
L. Rev. 665 (1970).
136/ E.g. Spiotto, Search and Seizure: An Empirical Study of the Exclusionary
Rule and Its Alternatives, 2 J. Legal Studies, 243, 273 (1973).
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considering methods of increasing the use of current sanctions or modifying
the sanctions, one cannot escape the balancing problem of deterring uncon-
stitutional actions and criminal behavior or deterring action completely.
Congress may wish to consider employing some of the devices
it has used in. the past to limit or visualize the prosecutor's discre-
137/
tion, such as mandatory enforcement or reporting reasons for non-enforcement.
At the same time the scope of the criminal sanctions might be reconsidered. A
further consideration would remove such prosecutions from the direct line of
stress in the criminal process and would vest authority to prosecute else-
138/
where than the United States Attorneys. The utility of the criminal
sanction as an alternative or supplement to the suppression doctrine could
be increased in a variety of ways. It may also have tangentially beneficial
139/
effects for the victims of unlawful searches and seizures--- as well as to
free evidence for use against them.
3. Summary Court Procedures
The possibility of utilizing a suppression order as res judicata
140/
of the essential facts of tort liability has already been mentioned. A
137/ E.g., 18 U.S.C. 2101(d), 3057(b) (1976).
138/ E.g., Special Prosecutions; H.R. 2711, 2835, 4292, 5949, 7916, 7234,
8125, 8538, 9705, 10669, 10868.
139/ An innocent victim may have the option of using a criminal conviction
to prove all facts essential to its existence, see. F.R. Evid. 803 (22).
140/ Supra, at page 174.
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criminal law corrollary is not constitutionally possible, but it is possible
to expand civil contempt provisions to cover violations which come under the
141/
suppression doctrine. A combination of these summary procedures might also
be considered.
4. Disciplinary Procedures and Training
Given the premium on deterrence, the question of direct personnel
controls disciplinary procedures, training and operational control necessarily
arise. This set of alternative or supplements to the suppression doctrine
raises the issue in executive, as well as legislative, terms. In considering
this variety of actions a more developmental approach can be used.
It would seem axiomatic that if investigating officials were
properly trained not to violate individual rights the suppression doctrine
would be obsolete. While this may or may not be true, Congress or the Execu-
tive may wish to consider prioritizing funds such as within the Law Enforce-
ment Assistance Administration of the Department of Justice - toward
i42./
police training on constitutional rights and lawful techniques. Much
as the law continues to change; the training requirements would necessarily
develop into a continuing legal education.
The continuing control of official actions can also be facili-
tated through introduction of guidelines; directives and general policies.
It might well be argued that internal directives from superiors command more
141/ 28 U.S.C. ?
142/ ?eS; e.g., Geller; Enforcing the fourth Amendment: The Exclusionary Rule
and Its Alternatives; supra; note 115; at 721.
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respect than amorphous constitutional rights in the minds of individual
officials, and the concept has received some attention from commentators,
i43/
though not related to suppression. The development of such guidelines,
however, raises the spectre of the doctrine as well as mitigating its utility:
violations of guidelines more restrictive of actions than constitutionally
144/
mandated have resulted in unforeseen suppressions. This anomalous situation,
both within the framework of altering or supplementing the suppression doctrine
and on its own merit, may deserve attention by Congress.
Even training and supervisory guidelines tend to require some
enforcement mechanism, and this may be especially true in an attempt to mitigate
the amount of evidence unlawfully obtained and suppressed. Enforcement can
145/
be both positive and negative; the latter has historically prevailed.
Internal discipline of officials has long been a subject of wide debate and
public skepticism; experience teaches that it doesn't work, basically, for
146/
the same reasons that limit the use of criminal sanctions. External
discipline - for example by the Civil Service Commission in the case of
143/ See, Aaronson, Dienes and Musheno, Improving Police Discretion: Ra-
tionality in Handling Public Inebriates, 29 Ad. L. Rev. 447 (1977) 30 Ad.
L. Rev. 94. (1978)
144/ Supra, notes 85-93, and accompanying text.
145/ See, Geller, Enforcing the Fourth Amendment: The Exclusionary Rule and
Its Alternations, supra, note 115, at 720-721. Geller cites the idea of
an incentive system as contrasted with a punitive system.
146/ Oaks, studying the Exclusionary Rule in Search and Seizure, supra,
note 135 , at 709-710. See, supra, notes 131-132, and accompanying
test.
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federal officials or community based disciplinary boards in the case of
147/
local officials - have provided very mixed reviews. Within the Federal
Government disciplinary procedures are for the most part an internal affair
ith the external review of an agency action usually in the courts rather
148/
than before the Civil Service. A little attended variation on the ex-
ternal disciplinary proposition, though with added arbitrational powers, is
149/
the Scandanavian concept of the Ombudsman. The Ombudsman concept tends to
combine the internal authority of the government with external objectivity.
An additional variation on discipline might combine these factors in a re-
alignment of the investigator-prosecutor relationship. The mutual indepen-
dence of these criminal justice actors has historically prevented the prose-
cutor from translating suppression of evidence into effective demands on
investigatory agencies who set into motion the eventual use of the suppres-
sion doctrine. A realignment of roles - even between, and perhaps specially
between, the FBI and the Department of Justice - may increase the deterrent
effect of suppression and, in avoiding the errant practices, reduce its use.
Legislative requirement could be devised in these areas, if Congress so de-
sires, for either the Federal investigators or state and local police,
through a variety of supervisory and financial techniques.
147/ E.g. President's Commission on Law Enforcement and the Administration _
of Justice: Task Force Report: the Police, 200-202 (1967).
148/ See, 5 U.S.C. 7501 , et Ell. (1977).
149/ See, Oaks, Studying the Exclusionary Rule in Search and Seizure, supra,
note 135, at 674; Davidow, Criminal Procedure Ombudsman as a Substitute for
the Execlusionary Rule: A Proposal, 4 Texas Tech. L. Rev. 317 (1973).
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Potential legislative action on the Exclusionary Rule, the exclu?
sionary remedies and the suppression doctrine could take a variety of forms.
Similarly, legislative intent could range from the abolition of the doctrine
to supplements external to the doctrine, but with potentials for limiting its
future use. The alternatives and supplements presented here represent a cross?
section of the potential and are neither comprehensive or exhaustive. A rea?
sonable range of action falls within these bounds.
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V. CONCLUSION
Congressional response to the problems discussed in this study has
been well within the bounds of both congressional authority and actual poten-
tial. This has been true in the fiteen years since the Kennedy assassination
with the sole exception of the direction recommendations of the Warren Commis-
sion which were enacted.
In the area of free press - fair trial - speedy trial, Congress has
made very limited interpretations of the Constitution. Even limitations
1/
such as the Speedy Trial Act have been for non-Constitutional purposes with
less than Constitutional effect. Issues within the more narrow Federal realm,
2/ 3/
such as closure of court procedings have state corollaries raising the
issue to the Constitutional dimension. Congress, however, need not approach
these issues on the broadest base of applicability.
Congress has been more active, and probably will continue to be,
in the area of third party records and privacy. With Section 1205 of the Tax
4/
Reform Act altering the law, and overruling United States v. Donaldson, Con-
gress began a trend toward requiring additional, impartial review of the govern-
5/
government's acquisition of records about a party without his consent at the
1/ See, supra, Chapter II, notes 143-149, and accompanying text.
2/ United States v. Cianfrani, supra, Chapter II, note 111.
3/ Gannet v. DePasquale, supra, Chapter II, note 111.
4/ Supra, Chapter III, notes 46, 54-55, 57-58, and accompanying text.
5/ See, supra, Chapter III, Section K.
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same time, congress has initiated a trend toward requiring greater accountability
6/
for such records and accuracy in their context. Contemporary legislative pro-
posals mark a continuance of this trend, although only along procedural lines.
Finally, Congressional interest in reforming or abolishing the
suppression doctrine has led to relatively sparse formal proposals. While the
Supreme court has begun limiting the use of the suppression doctrine, the lower
courts continue to expand its scope. At the same time, the state courts, where
a vast majority of Fourth Amendment cases orginiate, have received little atten-
tion. While the Chief Justice has specifically articulated a need for Congres-
1/ A/
sional action, only specific reforms and limited changes have taken place.
Historically; the interpretation of the free-press - fair trial
dilemma; and the interplay of speedy trial rights, has been within the realm
of the judiciary. The same has been true of the suppression doctrine. Only
the newly introduced area of third party records and privacy rights has been
founded on legislative mandates. None of these areas, however, is the sole
province of the legislature; executive or courts.
6/ Supra Chapter III notes64-77, 158-169; and accompanying text.
7/ Bivens; supra; Chapter IV; note 103; at 424.
A/ See, e.g.., Pub. L. 95-78, supra, Chapter IV, note 132, and accompanying
text.
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