RETURN TO FILES CRIMINAL RULES COMUITTEE 207 United States- Supreme Court Copy for Mr. AlexArnder Holtzoff, Secretary. Tuesday, September 9, 1941. Hearing Before the ADVISORY COMMITTEE ON RULES OF CRIMINAL PROCEDURE UNITED STATES SUPREME COURT WASHINGTON, D. C. GEO. L.HART HART & DICE EDWIN DICE SHORTHAND REPORTERS TELEPHONES LLOYD L. HARKINS. 416 FIFTH ST. N. W. NATIONAL 0343 OFFICE MANAGER SUITE 301-307 COLUMBIAN BLDG. NATIONAL 0344 WASHINGTON. D. C. 239 CONTEXTS. Tuesday, September 9, 1941. Rule, 8 -240 Rule, 9 --------------------------------------------- Rule ,10 5338,355 Rule,20 -394 Rule,21 -405 Rule,2 - 457 Rule.29 ---------------------------------------------- 458 Rule,30 ---------------------------------------------- 458 Rule,34 --------------------------------------------- 465 -- oo0oo-- lbb 240 NJC ADVISORY COMMITTEE ON RULES OF CRIMINAL PROCEDURE UNITED STATES SUPREME COURT WASHINGTON, D. C. Tuesday, September 9, 1941. The Advisory Committee met at 10 otclock a.m., in room 147-B, Supreme Court Building, Washington, D. C., Arthur T. Vanderbilt presiding. Present: Arthur T. Vanderbilt, Chairman; James J.Robinson, Reporter; Alexander Holtzoff, Secretary; George James Burke, Frederick E. Crane, Gordon Dean, George H. Dession, Sheldon Glueck, George Z. Medalie, Lester B. Orfield, Murray Seasongood, J. 0. Seth, Herbert Wechsler, G. Aaron Youngquist, George F. Longsdorf, John B. Waite. The Chairman. All right, gentlemen. Let us proceed. I believe we are on Rule 8, page 3, sub-heading (b). Mr. Holtzoff. I have a question as to the phraseology of that. When you speak of filing one of the following notices, pleas, or motions, that seems to convey the impression, which probably was not intended, that there must be a written plea, because you cannot file an oral plea. Mr. Youngquist. I have the notation to make it, "Enter or file." Mr. Robinson. Is "enter or file" satisfactory? I Mr. Youngquist. Yes. That is the suggestion I had. I had another suggestion. Might we not just say, "A defendant may or shall, as provided hereafter, enter or file one or more of the following notices, pleas, and motions"? 2 241 Leave out "for his answer, and defense, to the written accusation." The Chairman. Could you substitute the word "make" for the words"enter or file"? Mr. Iloltzoff. You cannot make notice. The Chairman. Would you read your language again, Mr. Youngquist? Mr. Younpquist. In line 11O strike out the last four words. In line 411 strike out the first five words. Insert after the word "rule" in line 42 the words "enter or". Mr. Crane. Can we have that read? Mr. Youngquist. "A defendant may or shall, as provided hereafter in this rule, enter or file one or more of the follow- ing notices, pleas, and motlons." Mr. Holtzoff. I do not understand the significance of the phrase "omay or shall." It should be either "shall" or "may," not both. Mr. Robinson. The meaning there is that sometimes it is permissive, sometimes mandatory, according to the substantive provision. Mr. Holtzoff. Shouldn't you just say "may"?> "May or shall" is a little bit confusing. Mr. Robinson. No, because the "shall" is modified by "as provided hereafter in this rule." Mr. Youngquist. Theoreticallyr, Is not a pleadin• of guilty or not guilty mandatory? Mr. 11oltzoff. He can remain silent. Mr. Youngquist. If' he does, the court enters a plea of not gui 1ty. 242 3 Mr. Holtzoff. I was wondering about the words "may or shall." They give rise to a question in ny mind. I may be captious. The Chairman. I would feel a little more comfortable with the word "may." Mr. Robinson. Beginning in lines 44 and 45, he shall file a motion, and then on the next page, line 59, he shall enter a plea either of not guilty or a motion to dismiss. The Chairman. That simply confirms my arp~unent made, be- cause you say in the introductory that he may do some of these things, bun later you say he shall. Mr. Robinson. In line 97 is where the "may" begins. 2 The Chairman. In other words, "may" indicates choice, but when it comes to certain hinEs, he shall do them. It seems to me we are tryin!r to be a little too aeticulous. Er. Robinson. Well, maybe i am wrong. The Chairman. Maybe 1 am wrong. Lr. Holtzoff. T move that we strike out the words "or shall" and just leave "may.' The Chairman. Is there objection to that? Just say "may.' The section then reads: "A defendant coy, as p.rovie'ed hernaft.e. in this Pule, enter or file one o' r:mope of the following notices, rplsas, encd motiofns'' Sub-heading (I) , Mr. Renorter. Nr. Robinson. .ow; this, Vr course, has to do •ith coyunl. Naturally, tAk of our minds is the case of Johnson v. Zerbst Cend other ndiatons. by the Supe•,n Court that the matte- of providing counsel for a defendant in a criminal case 2435 4 is~~~~c tta uisitinl I think. a.er Pn, it, you will see what the o ct it, is in preptarhng .'t .r. s i has proppred and terefore will help us in ott-n:"_ that ohbect either by disagr;eeing it. aboutputt.,vg the ,rovi5,sin heWr or by aree.ng with this Or. Moltzoff. wnt to nake lhe su,•-s •on that ought to be pe.happ n:odfLied considerably. This pa2aEraph that either puts the burde- on thW WN to Pile a notioe or that he does he Ms counsel, and K so who that; counsel is, to be not Mesira counsel. T do not ,hink a defendant ought requied to do anythi.nE .r.ept plead. As a re:,sult of the case of Johnson against Zerbst tho whch D.pany. ment and the coupts have worked out a procedure in others. had previously e.. used... in som distpicts but not he has whereby upon arTraignment overy prisoner is asked whether can afford to counse.. Tf he sa•s no, he is no.k. whether he court will hire ono. If he sag, no, he is informed that the he appoint one for him if he wants one. He is asked whether no aond does want one or not. Tn a reat mn-y cases they say Pade a Peater of they wae•ve the right of counsel, and that is record. T su1ggest that we- substitute some such provis.L*on as that, requiring the court, in open court, to apprise the dafendant appoint of his right to counsel and rufirifn, the court to which counsel for him unless he ex:pressly waives such right, of leavingp waiver sbould be made a matter of record, instead on the defend- i•in this form, which is now putting the burden not be gnt to file a notie !n court, where many of them would able to prepare a notice. Mr. Medalie. 1snft this that 7ou~ealY want? "IC at anW time the court is satisfied that the defendant is unable to provide himself with coqnsel or hire counsel or employ counsel, one.'' and he is in peed of counsel, the court shall a..o.nt Mr. Holtzoff. yo; just a 3•t:tle bit more than that. three or Under Johnson against Zorbst, which was decided The Suopreme four years ago, the Supreme Court went further. counsel for the Court made it the duty of the court to appoint right, and defendant unless thA defendant Oar'pessl]r waived such of the therefore the Department worked out, with the aid each adnfhnistrative officeI of the courts, a procedure whereby in open defendant is aff3 rmatively interrogated on arraignment in some court. The court does not waft, as used to be done districts, for a defendant to ask for counsel. has Mr. Medalle. The practice in the State of Kew York cases out been for years that when a man is nrraignec, in nine counsel appears of ten -- anyway, in a good many cases -- his it is the with him when he pleads, but if there is no counsel, he is judge's duty, required by statute, to inform him that or means entitled to counsel, and that if he has not the ability That is to employ counsel, the court will assign him counsel. in the court, made a matter of record by the clerk who is there and it is part of the court record. Mr. Holtzoff. Tn the rural Federal courts you will find arraigned have probably that nine-tenths of the defendants when this. no counsel, and each one of them has to be asked R (b) (1) a Therefore, I move that we substitute for Rule the court, provision based on Johnson against Zerbst requiring of when the defendant is arraigned, to apprise the defendant 2452~ 6 2 that counsel will be his constitutional ri71ht of counsel and is unable financ-ally appointed for him if he desires one and be appointed unless the to secure one, and that counsel will in open court. defendant expressly waives such right, rather than pass on Mpr. Wechsler. I should think that, the reporter the desirabil- that motion,we ought to suggest to which I do not recall ity of drafting a section on arraignment, finding in these rules. 11r. Holtzoff. Tic, there is not any. there, and which Mr. Wechsler. Which I think should be on arraignment the would include as part of the procedure counsel. appropriate action with reference to Law institute Model I direct attention to Chapter 8 of the are reasonably satisfac- Code, the provisions of which I think tory for this purpose. to agree with 1r. HIoltzoff. If that is so, I am inclined should just be stricken out.