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wee ee an na a CN eh ARENT Da Sr ot .) ‘ 6 Pre-Arraignment Self Crimination Nine judges of the United States Court of Appeals here split at least three ways yesterday on what the Supreme Court meant in its Mallory decision last mer. But, for all practical purposes, the division is ®- terpreted to mean, that confessions are inadmissible criminal trials if they are obtained by police throu questioning designed to elicit incriminating evidence. Only two of the judges, John A. Danaher and Warren E. Burger, accepted that inter- fpretation of the Mallory case. ‘| Three others, E. Barrett Prettyman, Wilbur K. Miller, and Walter M. Bastian, said it is too tight a restriction onf ‘the police. What should ‘count, they said, is the charac- 5 ‘ter of the questioning, not its ‘purpose. | Judges David L. Bazelon and | ‘Henry W. Edgerton said it oH Ae ee ee 0-19 (Rev. 10-26-57) By James Clayton ® Judge Bazelon: “To me, this (rule) means that conjes- ns obtained by questiorjng arrested person before thus raigning him are not fad- lay is to be judged unneces- sary-or-not upon a realistic ap- praisal by the court of the circumstances of the delay.” A suspect may be questioned “so long as the period of de- tention and the mode of the questioning are reasonabie...” Robbery Convictions The case beforg them in- volved the three Yobbery con- victions gf John .E. Trilling: Danaher and Burger jofhéd Bazelon, Edgerton, Feby, ‘and Washington im reversing ‘two ‘ef them but: with’ the other three judges in affiem- ing the third. Trilling confessed to one robbery at about 8:20 a. m.j on Sept. t, 1955, after a short: period of questioning. It was this confession which was| held admissible. ‘tao loose an interpretation.|, They were joined in their dis-| ; ‘|pesition of the particular case in question by Judges Charles ¢: Fahy and George T. Washing-|® ‘ton, who chose not to say what Mallory means. DManaher’s Stand Prevalls The result, apparently, is to make the Danaher position determinative of future cases until clarification comes from the Court of Appeals .or the Supreme Court. In the Mallory case, the Su- preme Court said that a con-| ‘fession obtained during an. \“unnecessary delay” between arrest and arraignment is not: to be used as evidence in a, He was then questioned off eriminal trias. ! : The three interpretations of | and on all day while police this rule announced yesterday, fae ties tb a murder Pe are: case and many other rob : i eries. He confessed to eig * Judge Danaher: “It is not bbertes in that interval and simply a matter of hours, one as taken before a judge for’ way oF another, but of Polite rratgnment at about 3 p. m purpose and conduct e: . ‘lena light of circumstances ... An Convietions—.which resulicd accused is not to be taken to ; police headquarters for the purpose of extracting damag ing statements. , ,““TTH® is, any SOressTon is inadmissible. 5 () APR 24 1958/2, < Bogrdman ste ramen Mohr n Neas ; The other two confessions, be explained, were clearly the Tele. Room —_ Tesult of questioning designed VA Holloman to produce incriminating evi- ‘ Gandy dence. Thus, under his inter-' be they were inmadmis- Element ef Compulsion ‘The first confession, Baze- ion said, did not come spon- taneously but only after con- siderable questioning. Any questioning prior to arraign- ment, he said, is wrong be cause police cannot arrest merely to question. They ar- rest only to bring defendants to court, ; ’ The real utility of question- ing before arraignment, he charged, fis in the element of compulsion which an arrested person feels under police serutiny, _ “The atgument for permit- ing the use of confessions ob- tained by questioning before; arraignment... comes to this that society’s interest in con‘): — + victing the guilty justifies the RRC } use of a degree of compulsion}: against the guilty and the im . nocent alike,” he argued. Prettyman -contended thatL_-_-— -— none of the questioning of! Trilling was done in » coer- ¢ cive manner. The prosedure,, Wash, Post and — he sai “ . . eetable Proper and com Times Herald —— ater Sa "In the Mallory case, he ex. Wash. News plained, the Supreme Court Wash. Star —__-—__ Taught to cohvey an idea of “inquisitorial injustice.” “The | N- Y- Herald —— character of the questioning ts Tribune a key factor,” he said. N.Y. J l A’ suspect may be ques- > fT. Journals tioned, he sajd,; “in a manner American and for a périod reasonable N.Y, Mitror for the purpose of obtaining a information.” Pollee cannot N. Y. Daily News question so as to extract acon- N. Y. Ti fession, he added... Y ames . At that. t, Prettyman Daily Worker —— gagresd(4ith. Danaher. Dan- The Worker aber hel: that fe purpose of New Leader tie stuestioning -is the key, oe “The outlawing of the con- na. APR.18 19 8 49 duct of the police in this case,” Date —APR ‘Prettyman concluded, ‘will unjustifiably and materially impede the enforcement of the *riminal law in this jurisdic- sion =e,