Senator WITHERS. I have not studied it enough. Now, I am just thinking out loud. What would be wrong with the idea that these contradictory statements must be made, I would not say in the same proceeding, but on the same subject matter, maybe the indictment would not be the same proceeding as the trial. It would be the trial, to say in the same proceeding.

Mr. GREEN. I wonder if I might interject a question there along that line that we have spoken of. In reference to the words "makes contradictory testimony or statements in judicial proceeding."

I am wondering, Mr. Dagger, if you would care to comment at this time as to whether or not a confesison taken from a defendant prior to trial

Senator WITHERS. Or any other proceeding.

Mr. GREEN. Or in any other proceeding, but particularly a confession obtained, under oath, let us say, by police officers which was later introduced in his trial and afterward when he came upon the stand he repudiated the confession, having been made pretrial, would the introduction of that confession constitute testimony or statements in a judicial proceeding which would make him liable for a charge of perjury under the purview of this statute, because he repudiated it later in his own defense?

Mr. DAGGER. As I indicated a moment ago, Mr. Green, I have some trouble with that, but it seems to me that when that confession is taken, it is in contemplation of possible prosecution, and if that finds its way into the grand-jury hearing, the trial, it seems to me that it might well be argued that that would be a part of the judicial proceeding.

Mr. GREEN. So as to come under the purview of this statute?

Mr. DAGGER. Yes, to come under the purview of the statute. And, in expressing that view, I want to emphasize that I am expressing my personal view. I have not discussed that with my colleagues in the Department.

Mr. GREEN. If it is agreeable to the chairman, if you would care to submit perhaps a little more information on that subject at a later date, that would be helpful.

Senator WITHERS. Yes; that will be agreeable. I would suggest that be done.

Mr. DAGGER. Yes; we will do that.

Mr. GREEN. And the question of the statute of limitations.
Senator WITHERS. I believe he covered that.

Mr. GREEN. I believe that has been covered under the memorandum delivered here today.

Senator WITHERS. You have a Federal statute of limitations on perjury?

Mr. DAGGER. Yes.

Miss MOYNAHAN. Specifically on perjury, no; the general Federal statute of limitations.

Senator WITHERS. On felonies?

Miss MONAHAN. Three years.

Senator WITHERS. In many States they do not have any limitations on some felonies.

Mr. DAGGER. The regular 3-year statute is applicable.

Senator WITHERS. I know this is going to give the committee some trouble.

Mr. DAGGER. If we can furnish any further thought on it, we will be glad to do it.

Senator WITHERS. I would certainly like to have it. I can see the difference between a young prosecutor, vigorous, who is anxious to get ahead, will not stop and think as much about the rights of defendants, and the great harm you do a man by indicting him if he is innocent, and attempting to convict him, even though he comes clear. I think a great many safeguards are thrown around them, and the criminal who gets the advantage frequently of those safeguards thrown around innocent people for the purpose of protecting innocent people, and it would be fortunate for the whole country if our prosecutors would be very discriminating and look out for the interests of the innocent as well as to convict the guilty. That is the equal duty of the prosecutor to watch as far as he can that no innocent man is convicted. Am I right about that?

Mr. DAGGER. You most certainly are.

Senator WITHERS. That is recognized as an ethical standard for the prosecutor to follow, and let him keep his mind alerted at all times to see to it that no innocent man is convicted if he can ascertain sufficient information or sufficient doubt arises in his mind to lead him to believe this man ought not to be convicted. It is as much his duty to turn him loose as it is to prosecute him.

Miss MOYNAHAN. May I say something in respect of that comment, Senator?

Senator WITHERS. Yes.

Miss MOYNAHAN. The reliance that the prosecuting attorney may have given to a false statement made by a witness in the grand-jury proceedings may have often led to the indictment of another innocent man who has been brought to trial on the charge of someone. Senator WITHERS. I can see that.

Miss MOYNAHAN. When repudiation is made in the trial of that defendant by this person, it is wrong.

Senator WITHERS. He has been greatly wronged.

Miss MOYNAHAN. There are offsets to this, and it might put a greater sanction upon stories told before a grand jury.

Senator WITHERS. I am glad you suggested that. That is a good thought. Our laws have to develop along with our thinking and our experiences. I have never seen any good reason why the old law should be the rule, but I thought maybe by reading some good text on it where some writer had devoted himself to the history of it, we might find just why this rule is as it is. It has been interesting to me since I have had it up.

Mr. DAGGER. The only history is that in Wigmore that I know of, and I had occasion to look it up yesterday.

Senator WITHERS. Did you read the whole chapter on it?

Mr. DAGGER. It is not an entire chapter. It consists of four rather lengthy sections, beginning at section 2040, in the third edition, and it gives a fairly good résumé of what they think the history is.

Senator WITHERS. I called on the research committee at the library to see if they could find anything, and they did not have anything.

I went over to the Senate law library and looked. I went through Corpus Juris and Blackstone to see if I could find any history of it. Most of our American writers do not go back so much into the history of the old common law. Kent may have done it.

Is there any other statement you want to make at this time?

PERJURY

Mr. DAGGER. I believe not, Senator.

9

Senator WITHERS. You feel free at any time before this bill is reported out to file any additional statements you want. I will appreciate them. We want all of the light we can get on this, every bit of it. We want all of the light we can get.

Would you like to make a statement?

Miss MOYNAHAN. All I would like to say for the record is to emphasize the fact what we might call the time-honored two-witness rule will not be abrogated by this legislation insofar as the single perjurious statement is made.

Senator WITHERS. How far will the two-witness rule go? How far does that go? Does that have to be corroborated all the way through, or do you just have two witnesses who testify?

Miss MOYNAHAN. One witness and corroborating circumstances, and that it is only in cases where these patent perjurious statements have been made, because one or the other must be false that this alternative procedure would be effective, and we think required.

Senator WITHERS. There would not be much difference in a person making an affidavit for a warrant of arrest, and then later he appears before the grand jury and testifies to the contrary or repudiates the statement made in the affidavit. There would not be much difference between that and the affidavit he made making a confessior, would there—that is, the effect of them, if one would be judicial proceeding, would not the other two?

Mr. GREEN. Would not the fact that it was introduced into the grand-jury hearing make it a part of that proceeding, even though it was made before the fact of its introduction?

Senator WITHERS. I do not know whether you could introduce it or not except to test him on it. I do not know whether that would be evidence or not, just the affidavit before a grand jury.

Mr. DAGGER. There might be occasion, I can see, to present it. Senator WITHERS. So frequently it happens that people are careless about signing affidavits. You can write up something and say, Sign that," if you are a lawyer, and he is prosecuting witness, and he signs it and does not know the effect of it. He does not understand what it contains. Too many people do not attach importance to the things that they sign their name to. Have you not found that true?

Mr. DAGGER. That is very frequently true. They find out too late. Miss MOYNAHAN. On the other hand, perhaps bitten by experience, some people are very hesitant to sign anything or to stick around at the time of an accident and appear as a witness when they should as citizens do their duty.

Senator WITHERS. I want to vote for a bill that will throw all possible protection around the innocent. I do not care how strong you make it for the guilty, it is all right. He will not suffer beyond his just desserts. If he has willfully made two contradictory statements, he has perjured himself, regardless of which one is true and which one is false. And either one may be true. There could be instances where neither one could be true.

I have talked to some other Senators about this and have talked to the staff attorney here, and he knows it has given us some trouble. Miss MOYNAHAN. You would like a supplemental statement?

Senator WITHERS. I would like for you to feel free to give us all of the advice and counsel you can about it. I know there is a lot in

what you are asking for, and if it is possible for us to give it to you, I would like to see it done, without hurt to the innocent. I think you can see the things that are troubling me. I know they have troubled you, too, some of them.

Is there any other witness in the Department who will appear that you know of?

Mr. DAGGER. Not at present, so far as I know.

Senator WITHERS. How many of your attorneys have discussed this? Have you had it up with the Attorney General?

Mr. DAGGER. Yes; it has been up to his office. I take it it has been discussed with him, too.

Senator WITHERS. Have you advised any of the judges of the courts about this?

Mr. DAGGER. Not to my knowledge.

Senator WITHERS. One judge has written me about it.

Miss MOYNAHAN. Not direct correspondence.

Senator WITHERS. Do you have a judicial counsel?

Mr. DAGGER. You mean in the Department?

Senator WITHERS. In the Government.

J

Miss MOYNAHAN. The Conference of the United States, Judicial Conference, the old Judicial Conference of the Senior Circuit Judges. Senator WITHERS. Has this been submitted to them?

Miss MOYNAHAN. I believe not.

Mr. DAGGER. Not to my knowledge.

Miss MOYNAHAN. Perhaps informally.

Senator WITHERS. I wonder if it has been submitted to the American Bar Association?

Mr. DAGGER. I do not know that.

Miss MOYNAHAN. I believe there is in the Department file a commendatory letter from the New York County Lawyers Association. I do recall having read that. But I have not seen any other correspondence from among the bar associations.

Senator WITHERS. The Federal Bar might be a bar association that might be a good place to get a little counsel on it.

Feel free, I repeat, to furnish us with more information. We are officers, like you are, of the Government, and we would like to cooperate with you. The Congress makes these laws, and naturally we want to see them enforced.

Mr. DAGGER. We appreciate the opportunity of coming up here and discussing it. We will try to give you an additional statement.

Senator WITHERS. I am not unfriendly to the idea at all. I used to think about it quite a bit, but I never thought about it so seriously until it has been presented to me to pass on. I never had an idea I would have a part in a matter like this. A person on the street can have opinions when he has no responsibility. You put the responsibllity on him, and then he goes back and recovers his ground and tests it to see whether or not his opinions are as sound as he thought they were. I get any number of people who know how to run the Government and tell you in one letter.

We thank you for coming up here.

Mr. DAGGER. Thank you, sir.

Senator WITHERS. The hearing is adjourned subject to the call of the Chair.

(Whereupon, at 11:20 a. m., the hearing was adjourned subject to call of the Chair.)