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Journal of Criminal and Criminology

Volume 57 | Issue 3 Article 9

1967 the Judges--Not Just Judge the Police David W. Craig

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Recommended Citation David W. Craig, Police the Judges--Not Just Judge the Police, 57 J. Crim. L. Criminology & Police Sci. 305 (1966)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL oF CRnnNAL LAw, CRI31NOLOGY ANTDPOLICE SCIENCE Vol. 57, No. 3 Copyright 0 1966 by Northwestern University School of Law Printed in U.S.A.

TO POLICE THE JUDGES-NOT JUST JUDGE THE POLICE

(Comments upon Reflections of a State Reviewing Judge Upon the Supreme Court Mandates in CriminalCases, by Judge Charles S. Desmond) DAVID W. CRAIG*

The broad meaning of the verb "to police" is to During the recent period in which the court- establish or keep order," and thus it is used in announced doctrines concerning many applications, from the minor sense of tidying have expanded exponentially-a period dated, 5 6 up a military compound to the major concept of according to some views, from Griffin v. Illinois preserving among nations. -the specific-controversy ken and the - In the of this paper, the verb is used to bounded technique of American , in call for a more orderly discipline as a framework and out of scattered statutory channels, has shown for the constitutional labors of our hard-pressed itself to be slow, uncertain and inadequate to pro- . vide men with the "counsel" judge Desmond, outstanding among the great which Judge Desmond desires them to have. judges with a balanced concern for criminal law The shakiness of opinions of narrowly-divided procedure, has presented a statement which re- appellate is a factor which itself has frus- flects the current judicial emphasis upon policing trated certainty in the legal area where certainty the police. Unquestionably sympathetic with the and, indeed, simplicity is most needed. That problems of the law enforcement community, his shakiness has been confirmed by the frequency "prime point" nevertheless is a plea for "better with which dissenting doctrines have become the training and counsel" for the "police forces of core of subsequent majority opinionsY America".2 His immediate program is the "modern- A young behavioral science has developed for izing" and "educating" of our police.3 There is, the purpose of analyzing and quantifying judicial however, much that the response to his decision-making. A leading work in that field, plea is now well under way. Federal, state and containing a compilation of studies of the group major city law enforcement agencies-the ones behavior of the Supreme Court of the United which embrace the preponderance of the problems States, states: -for some years now have been feverishly engaged Our immediate concern is with the socio- 4 in improvement of personnel and tools. psychological dimension of the formal de- In contrast to the frequency of the call to police cision-making behavior of this small, political the police, little has been said or done about the (in the public-policy-consequences sense) need for modernizing the judicial decisional process elite group....s at the juncture where and justice meet, or Those studies use "bloc analysis" and "game 9 about the possibility of training the judiciary analysis" and finally "scalogram analysis" to itself for its highest function-whether that func- seek a procedure for "Predicting Supreme Court tion be labeled, according to opinion, as interpre- Decisions Mathematically."'" tation or lawmaking. It must be admitted, of course, that the esoteric specialist can always, through microscopic focus, * Director of Public Safety, Pittsburgh, Pa.; Visit- ing Lecturer, Yale University Department of City Plan- r Kamisar, Equal Justice in the Gateliouses and Man- ning and the University of Pittsburgh Graduate School sions of American Criminal Procedure, CIUMINAL of Public and International Affairs. Member of the JUsTIcE IN OUR Tm 6 (1965). of the Supreme Court and of state 6351 U.S. 12 (1956). courts. 7 Cf. Crooker v. California, 357 U.S. 433 (1958); I Webster's Third New Int'l. Dict., 1754 (1961). Escobedo v. Illinois, 378 U.S. 478 (1964). 2Supra p. 301. 8 SCHYBERT, QUANTITATIVE ANALYSIS OF JuniciAL 3Id. at p. 304. BEHAvIOR 11 (1959). 4 INT'L 9 Id. at xv, xvi. Assoc. or CHIEFS or PoLIcE: YEAR BooK 0 1964. 1 Id. at 316. DAVID W. CRAIG [Vol. 57 bring complexity into view where the workaday centuries, without being subject to some disciplines sight shows manageable simplicity. Yet, when the of uniformity-structural or verbal-to permit policeman, or even his legal advisor, takes a them to be dealt with more feasibly. workaday look at the judicial interpretation pat- Agencies involved in doing legal research by terns, unmanageable complexity is seen. Currently electronic data processing methods, such as the the Pittsburgh Police Bureau has 22 supervisors Center of the University of Pitts- enrolled in an evening course in "Advanced Crimi- burgh, have found that statutory materials lend nal Law for Policemen", provided for the law themselves more readily to computer handling enforcement agencies of our area by the Institute than do judicial opinions." In working with the of Local Government of the University of Pitts- of Pennsylvania and the ordinances of burgh. The best efforts of the professorial staff, the City of Pittsburgh, all now placed on tape, we which includes a former state attorney general have found verbatim methods of electronic search- and an experienced public defender, are hard put ing to be quite workable. Even though the disci- to systematize the series of decisions of state plines of statutory drafting have developed slowly courts, the Supreme Court and the Third Circuit and with varied success, the writers of statutes Court of , to any degree likely to provide have apparently evidenced some subjection to the the working police officer with guides for his con- disciplines of communication, whereas the writers duct in street and stationhouse. of judicial opinions, concurrences and dissents At present it is commonplace to hear police ad- have, for the most part, given little thought to ministrators wonder aloud, and sometimes bitterly, such disciplines. how the policeman can be instructed to make a The professionalization-and therefore the train- search or arrest decision correctly within a few ing-of judges, as such, needs to be mentioned. seconds, or plan a lawful and effective investigative Except as the appellate-materials method of teach- course within a few hours when, weighing like ing has bestowed on all law school graduates some factors, the mightiest judges and most scholarly useful habits of issue analysis and decisional deliberate for months and then differ process, we have had very little training of judges widely among themselves. to be judges. If we grant, as we must, that the policeman is The National College of State Judges, part of our machinery of justice, why should his held each summer at the University of Colorado, alternative actions be any less settled than the is an excellent step, but only a beginning and only methods for administering a decedent's estate, or for trial judges. A similar approach toward the for preparing a contested divorce or training of appellate judges is needed, on a broad case? scale, to develop courts with uniform competency Perhaps our legal institutions have not flatly to communicate judicial doctrine in more usable failed to meet the need for more clarity in criminal form. procedure in our urban, industrialized, interde- Being a judge, appellate or otherwise, is a very pendent society, but they have definitely fallen different function from that of being a , as behind in the formulation of implemental stand- the judicial training processes of Continental ards, doubtless in view of the accelerated flood of countries have long recognized. Experience as a recent judicial doctrine. practicing may be a prerequisite to being a judge, but it is not adequate training for Tam MODERNIZATION AND TRAINING OF JUDGES the post. To cast a glance backward at some solutions Notice of this lack should not be construed as long passed by, it is remarkable that, despite ad- mere irritation at the occasional appellate opinion mirable reform in judicial administration and which is rambling or vague or a stump-speech, judicial selection in decades past, there has been nor should it by any means be considered a criti- little improvement in the form and clarity of ap- cism of the evident ability and dedication of the pellate opinions and, aside from the Restatements vast majority of our judiciary. Individual judges of the American Law Institute, little other at- have been in the forefront of many moves to systematize the law, both in statutory form and tempt to systematize the judge-made body of law. 11Horty, Report to the Ford Fondation, 1963-1965, Hardly anyone has asked why appellate opinions mimeo, on file University of Pittsburgh Health Law must continue to follow the discoursive format of Center. 19661 SUPREME COURT AND THE POLICE after it is handed down from the ; the im- interpretative patterns previously embodied in ai pressive rosters of judges at judicial conferences, irregular series of court decisions. serving in the efforts of the American Law Insti- The courts have frequently pointed out that, if tute and the American Judicature Society and, in- exercised more foresight by adopting deed, in this very Conference, testify to the con- statutory codes in anticipation of legal problemq, cern and responsibility of most members of the the need for much judicial interpretation would bench. But the fact remains that the final output be obviated and uncertainty avoided. In other of the appellate courts, the precedent-making words, a good argument can be made that the opinions, are amorphous in form, variable in con- first duty to systematize and, hopefully, to simplify tent, difficult to synchronize and, of course, con- a body of a law lies with the legislatures and not fined by the worthy limitations of the case-and- with the courts. However, that argument is easier controversy principle. to support when dealing with applications of com- The struggles of this Conference and its prede- mon law or interpretations of incomplete statutes cessors to interweave judicial constitutional inter- than when confronted broadly with constitutional pretation into a seamless or at least sturdy fabric interpretations, as we are today with respect to could have been eased by judges trained and civil rights in relation to criminal law enforcement. courts disciplined to issue decisions of comparable The judicial power of the Supreme Court to nullify tenor. statutes and condemn administrative procedures Some methods of better judicial communication has meant in fact that the Court-aided by in- have been suggested and some are in existence. genious counsel-has been the innovator, in the Although the verbal systematization of legal con- sense that it has spoken to many constitutional cepts proposed by Kocurek12 and others has gained problems not comprehended by statutes because little favor, the usefully uniform terminology of not expected by the legislators. the Restatements is with us, to be used well by Thus, whether or not we convict the legislative some courts and ignored by others. branch of lacking foresight, the historical fact in We have the basic knowledge to modernize the area of police functions is that isolated bound- appellate decisional processes-the communication ary posts have first been perceived (or erected) techniques and the computer hardware to assume and marked by the judiciary; then to the legisla- the menial burdens of legal research. The person- tive function falls the duty of building continuous nel development and operational development fence-lines inside those posts, often trusting that necessary to use them are overdue. much of the fence-building lies within the judicial Thus, we in the field of law enforcement must posts which have not yet been announced. respond even more earnestly to Judge Desmond's This problem of staying within judicial limit- call for the training of law officers and the modern- points not yet marked, by interpolation or extrap- ization of law enforcement agencies. But, with con- olation, lies at the core of when govern- siderable concern, we can hand back a similar ments are driven, as we now dearly are, to challenge to the courts, to move toward specialized statutory or court-rule in order to training of their personnel, modernization of their provide operating clarity for law enforcement. machinery (much of which has admittedly oc- Those who sincerely prefer to maximize the accused individual's "rights", privacy, dignity curred), and streamlining of their decisional and aplomb, without counting the cost in the loss products. of society's protection against crime, tend to fenceline well CODIFICATION advocate placing the statutory within any possible future judicial limits yet un- Codification of legal doctrine by --and announced. by court rules, where broad procedural rule- On the other hand, the police officer and his making power has been conferred upon the courts spokesman are duty-bound to call for all individ- -is a well-known way of systematizing uncertain uals to contribute to as much of a tempering of 2 ' KOCOUREK, Jur.AL RELATIONS (1928); KocoUREK, those individual values as is necessary to afford I-TRODUCTION To THE ScmNcF Or LAW, Ch. IV, effective protection against crime, which threatens JuralAnalysis, 235 (1930). See also HOHFELD, FUNDA- all of society, and particularly the poor, with mENTAL LEGAL CONCEPTIONS (1923) and Wigmore, Terminology of.Legal Science, 28 HA~v. L. REv. 1 (1914). deprivation of life, as well as of rights and dignity, DAVID W. CRAIG [Vol. 57

in manners far more abrupt and harsh than even to occur later, before the model is definitely pro- the crudest imaginable processes of law enforce- mulgated. ment. As is customary with the Institute, the major We call upon the individual, in the interest of staff work is being performed by law school per- the general welfare, to contribute in sonnel, with recourse to an advisory committee taxation and eminent domain, to contribute time composed primarily of legal experts, but also and thought in duty, and even to contribute including some police administrators, although by personal safety in the national defense. We cannot no means a preponderance of the latter.17 expect, then, that there should be no sacrificial The Model Code provisions deserve serious demands upon the individual in relation to the study and earnest comment, particularly at its 13 detection and apprehension of criminal offenders. present stage of first general publication. The policeman is concerned because, despite the As almost everyone faced with conducting a mobilization in police technique and equipment deliberative meeting has learned, group discussion now going on almost everywhere, the major can be most productive when attention may be offense rate is increasing nationally, while the focused upon a draft proposal. Concentrating upon 14 clearance or solution rate is experiencing declines. such a proposal could well be more productive These issues are at the heart of the debate than unchanneled debate about the collective which now centers upon one of the most compre- meaning of the court decisions alone. hensive efforts to bring the clarifying processes of Without attempting to repeat the summary of codification to bear upon police procedure, the content which the Model Code draft now contains Model Code of Pre-Arraignment Procedure being in its Reporters' Introductory Memorandum, 8 developed by the deliberative methods of the this brief paper can more usefully try to under- American Law Institute for potential presentation score the issues implicit in two of the Code's to governmental units. 5 aspects which possess the greatest importance for the law enforcement officer's functions: (1) in- Tim A.L.I. MODEL CODE IN GENERAL vestigation prior to arrest, and (2) post-arrest The involvement of the prestigious American investigation. Law Institute in proposing a code for police in- INVESTIGATION PRIOR To ARREST vestigation and arrest processes is encouraging. The impressive adoption record of other models Of prime interest among the Model Code's proposed by the Institute suggests that the Model provisions dealing with investigation prior to Code of Pre-Arraignment Procedure-hereinafter actual arrest are those which govern the stopping called "Model Code"-if adopted by the Institute, of persons, whether as possible or sus- will be seriously considered for enactment by many pects, for the purpose of investigation. This matter is familiar in terms of the "stop and frisk" stat- legislatures, and will not lie idle on the shelf. 19 Commenced in April, 1963, with the aid of a utes, but objective discussion would do best by 16 avoiding that Ford Foundation grant, the Model Code has connotative label. Model Code section 2.02 permits a police officer now reached the printed form of "Tentative to stop and detain persons for not more than Draft No. 1", in which form it was submitted by twenty minutes in two types of situations: the Council of the Institute to its members at (1) Stopping of Persons Having Knowledge their May, 1966 meeting; final submission in the of Crime. A law enforcement officer lawfully form of a Council-approved official draft will have present in any place may, if he has reasonable 13Inbau, Law Enforcement, the Courts, and Civil cause to believe that a felony or misde- Liberties, CRnmNAL JusTIcE IN OuR TM 119 (1965). meanor has been committed and that any 14Federal Bureau of Investigation, CirmE IN THE person has knowledge which may be of UNITED STATES; UNIFORM CRIME REPORTS-1964, pp. 1, 20, reports a national major crime increase of 13% 17 MODEL CODE, V-VIL Of the 40 members of the in 1964 over 1963, and a 1964 clearance rate which advisory committee, only 8 are law enforcement offi- dropped 2% below 1963. cials and only 4 of them are police administrators. 15 A MODEL CODE OF PRE-ARRAIGNMENT PROCE- '8 MODEL CODE, XXI-XXV. DURE; TENTATIVE DRAFT No. 1 (American Law In- 19DEL. CODE A N. tit. 11, §1902 (1953); MASS. GEN stitute, March 1, 1966)-hereinafter cited as "MODEL ch. 41, §98 (1958); N.H. REv. STAT ANN. §594: CODE". '6MODEL CODE, IX. (1953); N.Y. CODE CnMe. PRoC. §180-a; R.I. GEN. LAWS ANN. §12-7-1 (1956). SUPREME COURT AND THE POLICE

material aid to the investigation thereof, built-in deterrent to delay, in that police units are order such person to remain in or near such not likely to extend unduly a detection which place in the officer's presence for a period of immobilizes them at a place chosen by happen- not more than twenty minutes. stance. (2) Stopping of Persons in Suspicious Another reason for a more flexible time limit is Circumstances. A law enforcement officer law- the heavy exclusion-of-evidence sanctions which fully present in any place may, if a person can result if the minute count is exceeded. Under is observed in circumstances which suggest section 3.05(1) of the Code, if the officer fails to that he has committed or is about to com- release the person expressly within the time limit, mit a felony or , and such all the rights and protections accorded by the Code action if reasonably necessary to enable the to arrested persons then accrue; with an illegal officer to determine the lawfulness of that arrest situation thus arising, statements can be- person's conduct, order that person to come inadmissable under section 9.02, an exclusion remain in or near such place in the officer's which can be escalated by section 9.09, a statutory presence for a period of not more than twenty version of the "fruits of the poisonous tree" doc- minutes. trine. Although section 9.10 provides some leeway, Other subsections provide: The officer may use in permitting a court to accept evidence neverthe- non-deadly force to effect such a stop, and he less when the violation of the Code is minor or may search the person and his immediate sur- excusably erroneous, it does not cure the funda- roundings for dangerous weapons if he reasonably mental arbitrariness of the twenty minute margin. believes that his safety requires it; during the one- Other sanctions upon the police officer's conduct third hour allowed, the officer may obtain identi- will be provided in the form of penalties, according fication and verify that identification and also to the Reporters; however they omit any provision whatever account such person may give concerning for express sanctions to require the or 2 his presence and conduct. 1 to stop or remain,u suggesting only that To permit this stopping power to be operative resisting-arrest statutes might be construed to in any place in which the officer is "lawfully pres- apply. Express sanctions to aid the police officer ent", rather than just in public places, is emi- should be provided in any official adoption of the nently sound. Also commendable is the inclusion Code. of the power to detain witnesses as well as , Questions involving searches for items other than a facet not included in the present stop-and-frisk dangerous weapons, during such detentions, are l statutes but not condemned by . so broad and important as to deserve fuller treat- The use of the twenty-minute time limit is ment than can be afforded here. debatable, however. Because the time period ob- Aside from those questions of scope of search, viously runs concurrently for all detained persons however, these pre-arrest investigations provisions when a number of witnesses or suspects are in- of the Code present an encouraging groundwork, volved, a time period suitable for dealing with one particularly if the time limit problems can be may well be unreasonably short when there are resolved. many. The "Urgent Necessity" exception in section 9.11, applicable only to the prevention of IhmrsTIGATION AnERr ARnnsT serious danger or the protection of interests of In a brief review of the Model Code provisions great magnitude, would not usually be of any help affecting investigatory functions other than in extending the time in this kind of situation. searches, the "preliminary screening" described A more general statement of the time period under section 4.04 for persons arrested without a should be considered, such as the "brief time" warrant is of special interest. phrase discarded by the Reporters,n remembering That section provides that where a person is that the spatial limitation of the detention, within arrested without a warrant-and therefore not a radius "near" the place of stopping, contains a 23 MODEL CODE §3.01 (3) contains an indirect sanc- 2 MODEL CODE, §2.02. 2t tion to obey an officer's stop order under §2.02, in that Busby v. United States, 296 F. 2d 328, 331 (9th failure to comply with an obligation imposed by the Cir. 1961), cert. denied, 369 U.S. 876 (1962); Hargus v. Code may be a concurrent factor in determining rea- State, 54 P. 2d 211, 214 (Okla. 1935). sonable cause for arrest, but such non-compliance 2 MODEL CODE, Commentary to §2.02, p. 101. alone does not justify arrest. DAVID W. CRAIG [Vol. 57 pursuant to a formal charge-there may be a procedures and confrontations allowed by section "preliminary screening" to decide as to a formal 5.01 are also considered, it is clear that the police charge, extending not more than four hours from will have little opportunity for questioning, with the time of arrest. In the case of named serious or without counsel, particularly in the case of felonies, that period may be extended, depending the experienced criminal. upon the time of day the arrest was made, up to Again the sanctions are all against the police, 14, 16 or 22 hours maximum. particularly through the subsequent exclusion of The Code uses the term "screening" to under- statements and their fruits, which can occur pur- score the intent that any such period of detention suant to failure to issue the prescribed warnings may be used only to arrive at a decision concerning or failure to permit the prescribed telephoning, the charge,n and not for the purpose of building access or consultation opportunities.' a case to prove it, although the two purposes Although it may not be possible to turn in any necessarily overlap somewhat. direction away from Mapp v. Ohio 2 and its kin, Whatever the time limit, the Code provisions it is difficult to avoid the conviction that the governing the conduct of such screening will insure exclusion sanctions really operate to punish that the period is a busy one for the police. As society rather than the police, wherever they soon as the arrested person is brought to the sta- operate to deprive society of evidential armament tion, the police must, in addition to recording the against the criminal. time of arrival, inform the arrested person about Another problem arises by the fact that, since the period of detention, commitment and , the the screening is available only for the purpose of absence of obligation to speak, the possible use in arriving at a formal charge, no period of investiga- evidence of his statements, his privilege to com- tion-particularly questioning-appears to be municate by telephone, the availability of funds made available where the suspect has been ar- for that purpose, the access to be afforded to coun- rested upon a warrant, which issues pursuant to sel or relative or friend, and the availability of formal charge. In such cases, says the Commentary counsel for indigents, if such is provided. Most of to the Code, "no period of screening is justified, this information is also required to be delivered in and the accused should be brought before a mag- 25 printed form. istrate as soon as purely administrative steps in Promptly thereafter, telephoning opportunity the police station have been completed."" Thus must be afforded. In addition, throughout the the pre-existence of an prohibits screening period, there must be "reasonable op- interrogation except, according to section 5.09, by portunity" to use the telephone upon request.26 consent with the advice of counsel. The access of counsel-or a relative or friend in Other investigative procedures may also be lieu of legal counsel-is also broadly afforded. prohibited by the Code in the case of a person Counsel is to have access by telephone and in arrested under warrant, if the comment about person whenever the arrested person requests his "purely administrative steps" is to be read strictly. presence.2 Indeed, the arrested person must be Lineups and confrontations would seem to be given "reasonable opportunity from time to time" more than "purely administrative" and thus to consult in, private with counsel or relative or barred. Although the taking of the fingerprints friend;"8 presumably such privacy could be under and photographs of the arrested person would control sufficient to maintain safety of custody. seem to be "purely administrative steps", those These provisions would seem to be more suscep- matters are listed along with lineups and con- tible of abuse by the arrested person and his coun- frontations as the "Permitted Investigation" sel, relative or friend than by the police. Recorded under section 5.01, the Note to which suggests questioning is permitted in the absence of counsel, that it is confined to the screening of persons but only during the first four hours; 9 thereafter arrested without warrant. Clarification of the text any "sustained questioning" in the absence of or notes as to section 5.01 would be desirable. counsel is prohibited."0 When the identification The Code's prohibition against the questioning of persons arrested under a warrant-set forth in 2MODEL CODE §4.04 (1). 25 MODEL CODE §4.01. "1 MODEL CODE §§9.03, 9.05, 9.09. 26 MODEL CODE §§4.01 (5), 5.07 (2). 3"367 U.S. 643 (1961). MODEL CODE §5.07. 3MODEL CODE, Commentary to Article 4, 147. See, "8Ibid. in this regard, Phillips v. State, 139 N.W. 2d 41 (Wis. 29 MODEL CODE §§4.04, 4.09, 5.01. 1966); Abstracts of Recent Cases, 57 J. Cums. L., C. & 0 MODEL CODE §5.08. P.S. 178, 183-185 (1966). SUPREME COURT AND THE POLICE section 5.09 as indicated above-except in the for the purpose of determining the nature of the unlikely eventuality that legal counsel has advised charge and not to build the quantum of evidence. consent thereto, needs reexamination. This ap- Yet the "screening" necessarily possesses a purely proach rests upon the assumption that an arrest evidential and case-building or case-eliminating warrant follows a complaint which, in turn, is element, as indicated by the Code's view that it based upon such full official consideration that it can also lead to the release of the innocent. More- is unnecessary to conduct the "screening" allowed over, the "screening" power will inevitably be with respect to persons arrested without a warrant. used by any conscientious police unit as an evi- However, such an assumption ignores the fact dence-gathering process; therefore, the Code that a complaint cannot always be based upon in- contains an unintended discrimination in favor of dependent official investigation, but will many the person whose arrest happens to occur pursuant times be based upon the assertions of a com- to a warrant. plainant who is confused, ill-informed, mistaken The Code draft deserves careful reconsideration or even malicious. Thus the subsequent official toward the end that post-arrest investigation with screening may well be needed when the arrest is respect to all arrested persons be frankly allowed. under warrant just as much as when made without a warrant. CONCLUSION Moreover, by virtue of section 3.06 of the Code, Despite the very thorough and dedicated work the use of a warrant may hinge upon the fact that of the Model Code developers, it does appear that the arrest is to be made upon private premises the Code draft, like many of the court decisions, or at night, factors which relate not at all to the over-restricts the police through a distrustful appropriateness of post-arrest investigation and refusal to accept the fact that the great prepon- questioning. derance of police officers are, as servants of the The type of formal base on which the arrest is public, dedicated to sounder goals than the racking founded should not make a difference as to the up of convictions against hapless suspects who substance of the official pre-commitment investi- stray their way. Anyone familiar with the daily gation. To support the Code's authorization of work of a professional police organization knows "screening" of persons arrested without a warrant, that the investigative officers display considerable the Commentary to the Code cites the need for objectivity in that they are quick to absolve per- "resolving the doubts and confusions which will sons who are victims of unfounded accusation necessarily accompany many arrests without a and are slow to jump to conclusions of guilt. '' warrant. n The point is that many doubts and The injustice which society suffers at the hands confusions can and do often accompany arrests of unpunished criminals can be, and is, accurately made pursuant to a warrant. Although the com- measured in the statistics of not cleared. plaint has been lodged, and the police cannot Any further restriction of police investigative the arrested person upon their own find- release powers can be justified only by a similarly accu- may do under section 4.04(3) where ings-as they rate measurement of harm done to the innocent there has been no arrest warrant-police investiga- by methods presently accepted. Although such an tion will necessarily produce a fuller case at the assessment is admittedly difficult, it is submitted time the arrested person is brought before a assume , and a fuller case should be to the ad- that the burden of is upon those who vantage of the innocent as well as to the disad- that police are to be distrusted. The court decisions vantage of the guilty. which involve abuse of police authority certainly The Code distinction between warrant arrests do not constitute a sufficient sampling of the and non-warrant arrests seems to reveal a basic whole picture. Until adequate social science meas- distrust of police objectivity. urement is performed, the admirable and necessary Of course, to permit the police to conduct the effort to codify the legal restrictions on police same investigation, in terms of time and content, work should to formulate restrictions to of persons arrested upon warrants as is allowed a basic degree rather than to an ultimate extent. with respect to those arrested without warrants, To be quite blunt, if certainty and simplicity would necessarily mean an abandonment of the can be achieved only at the cost of rigid and nar- concept that the "screening" is theoretically only row restrictions, that cost may be too great for " MoDEL CODE, 141. society to bear.