Reform and Criminal Procedure Act of

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					 Criminal Law and Procedure: D.C. Court
 Reform and Criminal Procedure Act of 1970
                  CARL S. RAUH* AND EARL J. SILBERT**

   The District of Columbia Court Reform and Criminal Procedure Act
of 19701 provides the District with a comprehensive reorganization of its
court system. The overriding purpose of this reorganization was to
improve the fairness and efficiency of the administration ofjustice in the
courts with particular emphasis on reducing the time in criminal cases
between arrest and trial. To accomplish this a new District of Columbia
Superior Court was created which eventually will be composed of forty-
four trial judges who will have jurisdiction over all local criminal
offenses. Success of this new court system would be impossible, however,
if it was forced to operate under the prior outmoded, incomplete and
totally inadequate laws relating to criminal procedure. The deficiencies
of the District of Columbia Code in the area of the criminal procedure
were glaring. For example, the arrest warrant provisions were scattered
throughout the Code and the search warrant provision used 19th
Century language. In addition, the Code lacked such basic provisions as
a criminal conspiracy statute and a procedure for collateral attack of a
criminal conviction.
   To remedy the many deficiencies that existed in the District of
Columbia Code, the new Act provides the new court system with a
thoroughly revised and modernized set of laws relating to criminal
procedure. Most of the provisions are consolidated into Title 23 of the
District of Columbia Code, which has been made positive law. 2 A

  * Attorney, Office of the Deputy Attorney General, United States Department of
Justice. A.B. 1962, Columbia University; LL.B. 1965, University of Pennsylvania,
LL.M. 1968, Georgetown University. Member, District of Columbia and Supreme
Court Bars
  ** Executive Assistant United States Attorney for the District of Columbia, United
States Department of Justice. A.B. 1957, LL.B. 1960, Harvard University. Member,
District of Columbia and Massachusetts Bars.
The authors gratefully acknowledge the valuable assistance of David T. Prosser,
Attorney, Office of the Deputy Attorney General, United States Department of Justice,
in the writing of this article.
The views expressed heiein are those of the authors and not necessarily those of the
Department of Justice.
   1. Pub. L. No. 91-358 (July 29, 1970), 84 Stat. 473.
  2. All references to specific sections of the D.C. Code in the text of this article refer to
provisions in the new Act which are effective as of February 1, 197 1.
1970-711               CRIMINAL LAW AND PROCEDURE

number of the changes and additions relating to the criminal process
were also made, however, to other sections of the Code.
  It would be impossible in an article such as this to detail all the
changes made. Instead, what the writers have done is to select for
discussion the provisions which will have the greatest impact on the
operation of the criminal justice system in the District of Columbia.
These have been divided into three parts: Pretrial Provisions, Trial
Provisions, and Sentencing and Post-Trial Provisions.

                      I.   PRETRIAL PROVISIONS

SEARCH, SEIZURE AND ARREST LAW
   The new Act places into one chapter of one title of the District of
Columbia Code, Chapter 5 of Title 23, a revised, comprehensive and
modern code of criminal procedure with an emphasis on setting out
detailed guidelines in the area of search, seizure and arrest law. Chapter
5 is divided into six subchapters: Definitions (Subchapter I), Search
Warrants (Subchapter II), Wire Interception and Interception of Oral
Communications (Subchapter 11I), Arrest Warrant and Summons
 (Subchapter IV), Arrest Without Warrant (Subchapter V), and
Authority to Break and Enter Under Certain Circumstances
 (Subchapter VI).
   Prior to the new Act, the District of Columbia Code gave very little
guidance on search, seizure and arrest law. The Code failed to set forth
restrictions on the execution of search warrants in the nighttime, time
limits during which search warrants must be executed, the requirement
to announce identity and purpose before entry to execute search
warrants or make arrests, detailed procedures for the application,
issuance and execution of search and arrest warrants, the powers of
arrest of special police officers and the rights of citizens to make arrests.
Nor did the Code provide modern criminal procedures such as court
authorization for interception of wire and oral communications, court
authorization for dispensing with announcement in executing warrants
and court authorization for nighttime execution of search warrants.
   What few provisions that did exist were antiquated and scattered
throughout the Code. Most of these provisions were enacted in 1878 and
                                                                            3
 1901 in substantially the same form as they existed prior to the new Act.
The few amendments that have occurred since 1901 amounted to less
than a minor overhaul. There was little rhyme or reason to where

  3. See, e.g.,4 D.-C. CoDE § 141 (1967); 23 D.C. CoDE § 301 (1967).
254          THE AMERICAN UNIVERSITY LA W REVIEW                                  [Vol. 20

criminal procedure provisions appeared in the Code. For example, two
provisions dealing with arrests without a warrant for misdemeanors were
                             4
found nineteen titles apart.
                               A.    Search Warrants
  New Subchapter II of Chapter 5 of Title 23 of the D.C. Code, 23 D.C.
Code §§ 521 through 525, repeals and replaces the old search warrant
section of the District of Columbia Code5 with a modern and
comprehensive provision. Because the prior search warrant section' was
so archaic, the courts, prosecutors and police in the District of Columbia
were forced to look to the Federal Rules of Criminal Procedure for

  4. See 4 D.C. CODE § 140 (Supp. II, 1969) and 23 D.C. CODE § 306 (1967).
  5. 23 D.C. CoDE § 301 (1967) provides:
      Issuance upon complaint underoath-Contents-Warrant-A                ffidavit-Forn.
   Upon complaint, under oath, before the District of Columbia Court of General
   Sessions, or a United States Comnmissioner, setting forth that the affiant believes
   and has good cause to believe that there are concealed in any house or place
   articles stolen, taken by robbers, embezzled, or obtained by false pretenses, forged
   or counterfeited coins, stamps, labels, bank bills, or other instruments, or dies,
   plates, stamps, or brands for making the same, books or printed papers, drawings,
   engravings, photographs, or pictures of an indecent or obscene character, or
   instruments for immoral use, or any gaming table, device, or apparatus kept for
   the purpose of unlawful gaming, or any lottery tickets or lottery policies, or any
   book, paper, memorandum, or device for or used in recording any bet or deposit
   of money or thing or consideration of value received for any share, ticket,
   certificate, writing, bill, slip, or token in any pool or lottery or as a wager on or in
   connection with any race, game, contest, election, or other gambling transaction
   or device of an unlawful nature as defined in sections 22-1501, 22-1503, 22-1504,
   22-1505, 22-1507, 22-1508, particularly describing the house or place to be
   searched, the things to be seized, substantially alleging the offense in relation
   thereto, and describing the person to be seized, the said court or United States
   Commissioner may issue a warrant either to the marshal or any officer of the
   Metropolitan Police commanding him to search such house or place for the
   property or other things, and, if found, to bring the same, together with the person
   to be seized, before the District of Columbia Court of General Sessions, or United
   States Commissioner issuing said warrant, as the case may be.
      The said warrant shall have annexed to it, or inserted therein, a copy of the
   affidavit upon which it is issued, and may be substantially in the form following:
      "Whereas there has been filed before         - an affidavit, of which the following
   is a copy (here insert). These are therefore to command you to enter (here describe
   the place) and there diligently search for the said articles, goods, or chattels in the
   said affidavit described, and that you bring the same, or any part thereof, found on
   said search and also the body of _            before the District of Columbia Court of
   General Sessions, or United States Commissioner, as the case may be, to be dealt
   with and disposed of according to law."
  6. Id.
1970-71]                        CRIMINAL LAW AND PROCEDURE

guidance in the application, issuance and execution of search warrants.7
The new law, however, will make this reliance unnecessary. The
following describes and explains the new search warrant law.
  Nature and issuance of search warrants-23 D.C. Code § 521.
Judicial officers8 are authorized to issue search warrants to be executed
pursuant to its terms anywhere in the District of Columbia.? The search
warrant may direct the search of places or premises, vehicles, physical
                    0
objects and persons." This is substantially more specific than prior law" 2
                                                                        1
("house or place") or the Federal Rules of Criminal Procedure
("person or place"). The search warrant may direct the seizure of
designated property or kinds of property if there is probable cause to
believe that the property is stolen or embezzled, is contraband or
otherwise illegally possessed, has been used or is possessed as implements
of commission or concealment of crime, or constitutes evidence of the
crime. 3 The categories of property which may be seized are couched in
                                                                  4
generic language as opposed to the particularization in prior law.1 By
particularizing the items of property which may be seized, prior law
failed to provide for the seizure of contraband in general, most
implements of crime, and evidence of crime. The result, as pointed out
above, was that the police, prosecutors and courts looked to the Federal
                            15
Rules of Criminal Procedure.

   7. See Shay v. United States, 212 F.2d 809 (D.C. Cir. 1954), cert. denied, 347 U.S.
1012 (1954) and Ledbetter v. United States, 211 F.2d 628 (D.C. Cir. 1953), cert. denied,
347 U.S. 977 (1954) where the United States Court of Appeals for the District of
Columbia tacitly recognized the inadequacy of the general search warrant section of
Title 23 of the D.C. CODE § 301 and ruled that it need not be complied with if the
issuance and execution of the search warrant conformed to the provisions of the Federal
Rules.
   8. 23 D.C. CODE § 501(1) (eff. Feb. 1, 1971) defines the term "judical officer" for
the purposes of Chapter 5 of Title 23 (except Subchapter III relating to the interception
of wire and oral communications) as follows: "The term 'judicial officer' means a judge
of the Superior Court of the District of Columbia or of the United States District Court
for the District of Columbia, or a United States commissioner or magistrate for the
District of Columbia."
   9. 23 D.C. CODE § 521(a) (eff. Feb. 1, 1971).
   10. Id. § 521(b).
   11. 23 D.C. CODE § 301 (1967).
  12.   FED.   R.   CRII.   P. 41(g), (c).
   13. 23 D.C. CODE § 521(d) (eff. Feb. 1, 1971); By specifically providing for the
seizure of mere evidence, the new law codifies recent case law (Warden v. Hayden, 387
U.S. 294 (1967) and follows recent federal statutory law (Pub. L. No. 90-351, § 1401,
Omnibus Crime Control and Safe Streets Act of 1968; 18 U.S.C. § 3103(a) (Supp. IV,
1969)).
   14. 23 D.C. CODE § 301 (1967).
   15. FED. R. CRIM. P. 41(b). See Shay v. United States, 212 F.2d 809 (D.C. Cir. 1954),
256          THE AMERICAN UNIVERSITY                 LAW REVIEW                 [Vol. 20

   The search warrant may be addressed to a specific law enforcement
officer" (Officer John Doe, Metropolitan Police Department; Officer
John Doe, United States Park Police; Special Agent John Doe, Federal
 Bureau of Investigation) or to any classification of officers of the
 Metropolitan Police Department or other agency authorized to make
arrests or execute process in the District of Columbia (Any officer of the
Robbery Squad, Metropolitan Police Department; Any Deputy
 Marshal of the Warrant Squad, U.S. Marshal's Office). 7 The search
 warrant shall contain the name of the issuing court, the name and
 signature of the issuing judicial officer, the date of issuance, the name of
the specific officer or classification of officers to whom the warrant is
 addressed, a designation of the premises, vehicles, objects or persons to
be searched sufficient for certainty of identification, a description of the
property to be seized, and a direction that the warrant and an inventory
 of any property seized be returned to the court on the next court day
                     8
 after its execution." The search warrant shall also contain a direction
that it be executed during daylight unless the judicial officer has found
 cause that it be executed at any time of day or night. 9 Finally, where the
judicial officer has found cause therefore, the warrant shall contain an
 authorization that the executing officer may enter the premises to
 execute the warrant without giving notice of his identity and purpose.2  0
  Applications for search warrants-23 D.C. Code § 522. The
application for a search warrant shall be made in writing under oath or
affirmation to a judicial officer. 21The application shall contain the name
and title of the applicant, a statement that there is probable cause to
believe that seizable property (fruits of crime, contraband,
instrumentalities of crime or evidence of crime) "is likely to" 22 be found
cert. denied, 347 U.S. 1012 (1954); Ledbetter v. United States, 211 F.2d 628 (D.C. Cir.
1953), cert. denied, 347 U.S. 977 (1954).
   16. 23 D.C. CODE § 501(2) (eff. Feb. 1, 1971) defines the term "law enforcement
officer" for the purposes of Chapter 5 of Title 23 (except Subchapter Ill relating to the
interception of wire and oral communications) as follows: "The term 'law enforcement
officer' means an officer or member of the Metropolitan Police Department of the
District of Columbia or of any other police force operating in the District of Columbia,
or an investigative officer or agent of the United States."
   17. 23 D.C. CODE § 521(e) (eff. Feb. 1,    1971).
   18. Id. §§ 521(f)(1-4), (7).
   19. Id. § 521(0(5).
   20. Id. § 521(0(6).
   21. Id. § 522(a).
   22. "The likelihood language here and throughout title 23 conforms to the
constitutional standard of probable cause." H.R. REP. No. 1303, 91st Cong., 2d Sess.
235 (1970) (House Statement of Managers accompanying Conference Report).
1970-71]                   CRIMINAL LAW AND PROCEDURE

in a designated premise, vehicle or object or upon a designated person,
allegations of fact supporting such statement and a request that the
judicial officer issue a search warrant directing a search for and seizure
of the property in question.2 The applicant may also submit depositions
or affidavits of other persons containing allegations of fact supporting
those contained in the application.? In addition, the applicant may
request an authorization to execute the search warrant in the nighttime
or to enter premises to execute the search warrant without giving prior
notice of his identity and purpose.? Such request must be accompanied
                                       6
                                       2
and supported by allegations of fact.
   Time of execution of search warrants-tenday requirement-23 D.C.
Code § 523(a). A search warrant shall not be executed more than ten
days after the date of issuance. "The warrant can be executed at any
time within this ten day period," 7 but the search warrant must be
returned to the court on the next court day after its execution, which can
be on the eleventh day.
   Prior to the new Act, there was no general provision in the District of
Columbia Code fixing a time period during which a search warrant
could and must be executed. Because of this, the Federal Rules of
Criminal Procedure controlled in this area. Rule 41(c) of those rules
entitled "Issuance and Contents" provided that the search warrant
"shall command the officer to search forthwith the person or place
named for the property specified," while Rule 41(d) of those rules
entitled "Execution and Return with Inventory" explicitly provided:
"The warrant may be executed and returned only within 10 days after its
date." (Emphasis supplied). Reading the "forthwith" command of Rule
      in
41 (c) conjunction with the ten day limitation of Rule 41 (d) gave rise to
two distinct interpretations: (1) the search warrant could be executed at
anytime within ten days after its issuance, 21 and (2) the search warrant
must be executed as soon as reasonable but in no event later than ten
days .29

  23. 23 D.C. CODE § 522(b) (eff. Feb. 1, 1971).
  24. Id.
  25. Id. § 522(c)(2).
  26. Id.
  27. H.R. REP. No. 907, 91st Cong., 2d Sess. 173 (1970).
  28. See Mitchell v. United States, 258 F.2d 435 (D.C. Cir. 1958) (Danaher, J.);
Underdown v. District of Columbia, 217 A.2d 659 (D.C. Ct. App. 1966) (interpreting
similar provisions under the Alcoholic Beverage Control Act, 25 D.C. CODE § § 129(e),
(i)).
   29. See Mitchell v. United States, 258 F.2d 435 (D.C. Cir. 1958) (Bazelon, J.
dissenting) (interpreting similar provisions under the Uniform Narcotics Act, 33 D.C.
CODE    §§ 414(e), (i)).
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   The conflicting interpretations of these two rules were finally resolved
by the United States Court of Appeals for the District of Columbia in
                         3
House v. United States. 0 In House, the Court of Appeals ruled that a
search warrant executed eight days after its issuance was not
automatically a legally executed search warrant under the Federal Rules
of Criminal Procedure. The case was remanded to the trial court for a
hearing to determine the circumstances of the delay in executing the
search warrant and to determine whether the defendant was prejudiced
by the delay. As a result of this decision, trial courts upon motion were
obligated to hold pretrial hearings to determine whether a search
warrant was executed within a reasonable period of time under the
circumstances and whether the defendant was prejudiced by any delay.
The result was not only burdensome to an already overloaded court
system but it failed to provide clear guidance for law enforcement
officers.
   The effect of 23 D.C. Code § 523(a) is to give the police a precise
time period in which they are permitted to execute search warrants, and,
at the same time, avoid an additional pretrial hearing. Since the word
"forthwith" was not used in the search warrant section, the
interpretation and formulation in the House case would no longer be
applicable" and the execution of a search warrant at any time within ten
days would be reasonable.
      Time of execution of search warrants-Nighttimeexecution of
search warrants-23 D.C. Code § 523(b). A search warrant shall be
executed only during hours of daylight in the absence of an express
authorization in the warrant. An officer applying for a search warrant
may request that the warrant be executed in the nighttime based on
probable cause to believe that (1) the search warrant cannot be executed
during the hours of daylight, (2) the property sought is likely to be
removed or destroyed if not seized forthwith, or (3) the property sought
is not likely to be found except at certain times or in certain
  30. 411 F.2d 725 (D.C. Cir. 1969).
  31. The United States Court of Appeals for the Second Circuit recently rejected the
House case. In United States v. Dunnings,425 F.2d 836, 841 (2dCir. 1969), cert. denied,
397 US. 1002 (1970), the Court said:
      We fail to see why, when they [the police] obtained a search warrant, they were
   obliged to execute it in a manner that might well have prevented Dunnings' arrest,
   so long as they did execute it within 10 days and at a time when the probable cause
   recited in the affidavit continued. See Mitchell v. United States, 103 U.S. App.
   D.C. 341,258 F.2d 435 (1958), but see Spinelli v. United States, 382 F.2d 871,885
   (8th Cir. 1967), rev'd on othergrounds, 393 U.S. 410 (1969), and House v. United
   States, 411 F.2d 725 (D.C. Cir. 1969).
1970-71I]                CRIMINAL LAW AND PROCEDURE

circumstances.3 2 If the judicial officer finds cause to authorize a
nighttime search under one of these three criteria, the search warrant
shall contain an authorization that the warrant can be executed at any
time of day or night.3
    Prior to the new law, the District of Columbia Code contained no
general provision governing the nighttime execution of search warrants.
Rule 41 (c) of the Federal Rules of Criminal Procedure, which controlled
in this area for the District of Columbia, permitted a nighttime search
warrant only where the officer-affiant was "positive that the property is
 on the person or in the place to be searched." (Emphasis supplied).
    Because of the greater potential intrusion upon the privacy of persons
 from a nighttime search, there should be some justification for it in
addition to probable cause. The positivity requirement of the Federal
Rules, however, is an unworkable and inadequate additional
justification for two reasons.
    First, it is essentially an unrealistic test since there are very few cases
where a law enforcement officer can be positive that the property is on
the premises (e.g., an undercover officer or informant sees the property
 on the premises shortly before the application for the warrant). It makes
no sense to prevent nighttime execution of an otherwise valid search
warrant solely for lack of positivity when it is known that the property
sought will not be found at daylight. For example, if the police in the
evening receive information (amounting to probable cause but not
positivity) that stolen jewelry is in a certain apartment and that the
 stolen property will be moved before daylight, it is necessary that the
police, after obtaining a valid search warrant, be able to execute it
 immediately and not have to wait until the stolen property has
 disappeared.
    Second, even if it is assumed that the positivity requirement can be
 satisfied, the positivity test would permit the greater intrusion upon
privacy in some cases when there was no urgent need for it. For example,
 if an undercover officer observes a still in the house of a suspect, he
 would be positive that the property to be seized was on the premises, but
 there would be no need to obtain a nighttime search warrant since it is
 unlikely that the still would disappear overnight.
    These weaknesses in the positivity test probably explain why a
 majority of the states have refused to follow the Federal rule.- It makes
better sense, as the new law provides, to limit the nighttime intrusion to

  32. 23 D.C. CODE § 522 (c)(1) (eff. Feb. 1, 1971).
  33. Id. § 521(t)(5).
  34. H.R. REP. No. 907, 91st Cong., 2d Sess. 109 (1970).
               THE AMERICAN UNIVERSITY LA W REVIEW                     [Vol. 20

 those situations in which the property is not likely to be found unless a
 nighttime search is permitted, that is, to maintain the same standard of
 certainty (probable cause to believe) but to require the applicant to
 establish, and the judicial officer to find, specific justification for a
 nighttime search, i.e., that the property is likely to be removed or
 destroyed if not seized forthwith or that the property is likely to be found
 only at night.
    Execution of search warrants-23 D.C. Code § 524. An officer
entering a dwelling house, building or vehicle to execute a search warrant
 shall do so in accordance with 23 D.C. Code § 591 requiring
 announcement of identity and purpose and permitting limited exceptions
thereto.5 An officer executing a search warrant directing a search of a
person shall give, or make reasonable effort to give, notice of his identity
 and purpose to the person and if such person thereafter resists or refuses
to permit the search, such person shall be subject to arrest for resisting a
                                                        36
police officer or for other applicable law violations.
   An officer executing a search warrant shall write and subscribe an
inventory setting forth the time of the execution and the property
 seized. 37 If the search is of a person, a copy of the warrant and of the
 return shall be given to that person.3 If the search is of a place, vehicle or
 object, a copy of the warrant and return shall be given to the owner
thereof if he is present, or if he is not, to an occupant, custodian, or other
person present, or if no person is present, the officer shall post a copy of
the warrant and return upon the premises, vehicle, or object searched."
A copy of the warrant and return shall be filed with the court whose
judge or magistrate authorized its issuance on the next court day after
execution.4 0
   An officer executing a search warrant may seize any property
discovered in the course of the lawful execution of such warrant if he has
probable cause to believe that such property is seizable (fruits of crime,
contraband, instrumentalities of crime or evidence of crime), even if the
property is not enumerated in the warrant, and no additional warrant
shall be required to authorize seizure, if the property is fully set forth in
the return." This provision represents a well-established principle of law

  35.   23 D.C. CoDE § 524(a) (eff. Feb. 1, 1971).
  36.   Id. § 524(b).
  37.   Id. § 524(c)(1).
  38.   Id. § 524(c)(2).
  39.   Id. § 524(c)(3).
  40.   Id. § 524 (d).
  41.   Id. § 524(e) (emphasis supplied).
1970-71I]                 CRIMINAL LAW AND PROCEDURE

and is a codification of long recognized and accepted case law. 42 Its
practical application was best described by the Supreme Court in the
                                         3
                                         4
recent case ofA lderman v. United States:
      If the police enter a house pursuant to a valid warrant
   authorizing the seizure of specified gambling paraphernalia but
   discover illegal narcotics in the process of the search, the narcotics
   may be seized and introduced in evidence in the prosecution of the
   houseowner.Y
  This provision, however, does not enlarge the scope of the search
pursuant to a search warrant. It merely permits the seizure of certain
property not listed in the search warrant which is found while lawfully
searching for items enumerated in the search warrant. The phrase which
requires that the seizure of property not listed in the warrant be
"discovered in the course of the lawful execution" of the search warrant
is intended to make this clear." For example, nonlisted seizable property
found in a desk drawer during a search of premises for the enumerated
stolen television set may not be seized nor would it be admissible in
evidence at trial. It is not a reasonable or lawful execution of a search
warrant to search desk drawers to find a television set. Nor is it a
reasonable or lawful execution of a search warrant to continue a search
of the premises after the enumerated item or items has been found.
Narcotics found in a bathroom closet after the enumerated stolen
diamond ring was found in a bedroom bureau drawer may not be seized
nor would they be admissable in evidence at trial.
   42. See, e.g., Harris v. United States, 331 U.S. 145 (1947), rev'd on other grounds;
Chimel v. California, 395 U.S. 752 (1969) (when the police are searching for item A and
in the course of that search discover item B (contraband), they can seize item B); United
States v. Eisner, 297 F.2d 595 (6th Cir. 1962) (citing long line of cases, upholding
 seizure of Y furs when search warrant for X furs).
    It has been argued that Marron v. United States, 275 U.S. 192 (1925) precludes the
seizure of non-listed items. I n Marron,the Supreme Court stated: "The requirement that
warrants shall particularly describe the things to be seized makes general searches under
them impossible and prevents the seizure of one thing under a warrant describing
another. As to what is to be taken, nothing is left to the discretion of the officer executing
the warrant." Id. at 196. In light of the numerous subsequent cases permitting some
seizure of non-listed items, the language of Marronno longer has validity.
   43. 394 U.S. 165 (1969).
   44. Id. at 177 n. 10.
   45. "The phrase lawful execution of the search warrant limits the seizure of items not
listed in the search warrant to those discovered during the process of the search for items
listed in the search warrant." H.R. REP. No. 1303, 91st Cong., 2d Sess. 235 (1970)
(House Statement of Managers accompanying Conference Report).
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                                                                   [


  An officer is permitted, while executing a search warrant of premises
or a vehicle, to search persons present to the extent reasonably necessary
to protect himself or others from concealed weapons. 6 This authority
merely applies the reasoning of the Supreme Court in Terry v. Ohio:"
     [W]e cannot blind ourselves to the need for law enforcement
  officers to protect themselves and other prospective victims of
  violence in situations where they may lack probable cause for an
  arrest. When an officer is justified in believing that the individual
  whose suspicious behavior he is investigating at close range is
  armed and presently dangerous to the officer or to others, it would
  appear to be clearly unreasonable to deny the officer the power to
  take necessary measures to determine whether the person is in fact
  carrying a weapon and to neutralize the threat of physical harm.4"
The nature and quality of the search of persons present during the
execution of a search warrant and the reasonableness of the search under
the circumstances must be guided by the principles laid down by the
Supreme Court in Terry and the common sense notion that "an ounce of
prevention is worth a pound of cure."
  An officer is also permitted, while executing a search warrant of
premises or a vehicle, to search persons present to the extent reasonably
necessary to find the property enumerated in the warrant which may be
concealed upon the person.0 The reasonableness of this rule was
recognized by the United States Court of Appeals for the District of
                                         5
Columbia in Walker v. United States," where a search of a person
pursuant to a search warrant for premises was upheld:
    To hold otherwise, on the facts of this case, would be to suggest
  that a warrant to search premises may be frustrated by the device of
  simply picking up the guilty object and hiding it in one's hand. No
  constitutional or statutory limitations that we know of require any
  such result.5
There are obviously reasonable limitations on this authority. A police
officer could not under this provision search persons to locate a stolen
television which was enumerated in the search warrant. However,. an
officer could under this provision search persons to locate narcotics

 46.   23 D.C. CODE § 524(g) (eff. Feb. 1, 1971).
 47.   392 U.S. 1 (1968).
 48.   Id. at 24.
 49.   23 D.C. CODE § 524(g) (eff. Feb. 1, 1971).
 50.   327 F.2d 597 (D.C. Cir. 1963).
 51.   Id. at 600.
 1970-71 ]               CRIMINAL LAW AND PROCEDURE

which were enumerated in the search warrant and which could be
secreted on a person.
  Disposition ofproperty-23 D.C. Code § 525. An officer who seizes
property pursuant to a search warrant must keep it safely. The officer
may release the seized property only upon order of the court or of a
prosecutor. These provisions conform to the prior reasonable practice in
the District of Columbia.

                                    B.    Arrests
    New Subchapters IV and V of Chapter 5 of Title 23 of the D.C. Code,
 23 D.C. Code §§ 561, 562, 563, 581 and 582, details the laws and
 procedures relating to arrests. Specific procedures for the application,
 issuance and execution or arrest warrants are provided. The arrest
 powers of law enforcement officers without a warrant are clarified and
 combined in one section, rather than being scattered throughout the
 D.C. Code. And for the first time in the District of Columbia, the
 powers and rights of special policemen and citizens to make arrests are
 set forth in statutory form.
   Arrest warrants-23D.C. Code §§ 561,562 and563. Under the new
 law, a judicial officer is authorized to issue an arrest warrant upon a
 sworn, written complaint, approved by the appropriate prosecutor
 (except for good cause), establishing probable cause to believe the person
                           5
 committed the offense. 2 The arrest warrant shall be signed by the
judicial officer and shall contain the name of the issuing court, the date
 of issuance, a description of the offense charged and the name of the
person to be arrested or, if his name is unknown, any name or
description by which he can be identified with reasonable certaintyo
 "e.g., a nickname, plus a brief physical description. ' 54 The arrest
warrant shall command that the person be arrested and brought to the
issuing court. The warrant may also contain an authorization, if the
complaint so justifies, that it be executed without announcement of
identity and purpose as provided in 23 D.C. Code § 591.51 The arrest

  52. 23 D.C. CODE § 561(a) (eff. Feb. 1, 1971). Provision is also made for the
prosecutor to request the issuance of a summons instead of an arrest warrant. The
summons shall be in the same form as the arrest warrant except that it shall summon the
person named to appear before the issuing court at a stated time and place.
Id.. §§ 561(a)(2), (b)(1).
  53. 23 D.C. CODE § 561(b)(1) (eff. Feb. 1, 1971).
  54. H.R. REP. No. 907, 91st Cong., 2d Sess. 175 (1970); see Otey v. United States,
417 F.2d 559, 561-2 (D.C. Cir. 1969).
  55. 23 D.C. CODE § 561(b)(1) (eff. Feb. 1, 1971).
264             THE AMERICAN UNIVERSITY LAW REVIEW                                  [Vol. 20

warrant may be directed to a specific law enforcement officer or to any
classification of officers of the Metropolitan Police Department or any
agency authorized to make arrests or execute process."
  A law enforcement officer making an arrest with or without a warrant
shall take the person arrested without unnecessary delay before the
court.57 Before taking the person arrested to court, a law enforcement
officer may perform any recording, fingerprinting, photographing or
other preliminary police duties required in the particular case, and if
these duties are performed with reasonable promptness, the period of
time required therefore shall not constitute a delay within the meaning of
this section." This provision clarifies case law construing Mallory v.
            5
UnitedStates. 9
  An officer making an arrest need not have the arrest warrant in his
possession at the time of arrest, but upon request he shall show the
warrant to the person as soon as possible.6" If the officer does not have
the warrant in his possession at the time of his arrest, he shall inform the
person of the offense charged and of the fact that a warrant has been
issued.6 The House Committee Report makes clear, however, that the
failure of the police to perfoim these acts is not a ground for suppressing
            6
            2
evidence.
   Arrest warrants and summonses issued by the Superior Court for
offenses punishable by more than one year imprisonment (generally
felonies) may be served at any place within thejurisdiction of the United
States.6 Arrest warrants or summonses issued by the Superior Court for
   56.16 D.C.CODE § 703(d) (eff. Feb. 1, 1971) appears to limit the service of criminal
process to the United States Marshal or Chief of Police. In this regard, the more specific
language of 23 D.C. CODE § 561 (c) Feb. 1, 1971) would be controlling.
                                      (eff.
   57. "This subsection, however, shall not be construed to conflict with or otherwise
supersede section 3501 of title 18, United States Code." 23 D.C. CODE § 562(c)(1) (eff.
Feb. 1, 197 1). Under 18 U.S.C. § 3501(c), a confession obtained by the police within 6
hours after arrest shall not be inadmissible solely because of the delay in bringing the
accused before a judicial officer. The provision in the D.C. Court Reform Act of 1970,
23 D.C. CODE § 561(c)(1) (eff. Feb. 1, 1970) requiring the person arrested to be taken
"without unnecessary delay" to the court does not limit the 6 hour rule of 18
U.S.C. § 3501(c).
  58. 23 D.C. CODE § 562(c)(2) (eff. Feb. 1, 1971).
  59. 354 U.S. 449 (1957); Cf.Perry v. United States, 336 F.2d 748 (D.C. Cir. 1964).
  60. 23 D.C. CODE § 562(a)(1) (eff. Feb. 1, 1971).
  61. Id.
  62. "It should also be noted that the officer's failure to carry out all of the ministerial
acts in execution and return of a warrant is not a legitimate ground for suppressing
evidence found in a search pursuant to the arrest." H.R. REP. No. 907, 91st Cong., 2d
Sess. 117 (1970).
  63. 23 D.C. CODE§ 563(a) (eff. Feb. 1, 1971).
 1970-71]                CRIMINAL LAW AND PROCEDURE


offenses punishable by no more than one year imprisonment
(misdemeanors) may only be executed within the District of Columbia,
and may not be executed more than one year after the date of issuance. 4
The use of Federal removal rather than interstate extradition is
continued for persons arrested outside the District of Columbia on a
warrant issued by the Superior Court for crimes committed in the
District of Columbia. 5 Provision is also made for the issuance of an
arrest warrant for a child who is alleged to have committed a felony in
the District of Columbia and who with due diligence cannot be found in
the District of Columbia, unless Article XVI I of the Interstate Compact
on Juveniles is applicable.6
   Arrest without warrant-23 D.C. Code § 581(a). The new law
simplifies, clarifies and to a large extent codifies prior lawn as to whom a
law enforcement officer may arrest without a warrant. First, a law
enforcement officer may arrest without a warrant any person whom he
has probable cause to believe has committed or is committing a felony.
Second, a law enforcement officer may arrest without a warrant any
person whom he has probable cause to believe has committed or is
committing an offense in his presence. Third, a law enforcement officer
may arrest without a warrant any person whom he has probable cause to
believe has committed or is about to commit a specifically enumerated
misdemeanor (assault, petit larceny, receiving stolen goods, unlawful
entry, attempted burglary, attempted grand larceny, or attempted
unauthorized use of vehicle) and, unless immediately arrested may not be
apprehended, may cause injury to others or may tamper with, dispose of,
or destroy evidence. The first provision covers felonies committed in and
out of the officer's presence, the second provision deals with
misdemeanors committed in the officer's presence 8 and the third
provision involves misdemeanors not committed in the officer's
presence.
   In the area of arrests without a warrant for misdemeanors committed
in the officer's presence, the prior general provision authorized a law
enforcement officer to arrest without a warrant any person who
  64. Id. § 563(b).
  65. Id. § 563(c).
  66. Id. § 563(d).
  67. 4 D.C.   CODE   § 140 (Supp. II, 1969); 23 D.C.    CODE    §§ 306 (1967); 4 D.C.
CODE   §§ 136, 141 (1967).
  68. Since the first provision covers felonies whether or not committed in the officer's
presence, the application of the second provision is to misdemeanors committed in the
officer's presence, even though the language of this second provision-"an offense"-is
broad enough to include felonies.
              THE AMERICA N UNIVERSITY LA W REVIEW                                [Vol. 20

commits a misdemeanor in his presence." The precise meaning of this
provision with respect to misdemeanor possession crimes such as
possession of lottery slips, 70 possession of implements of crime, and
carrying a pistol without a license72 was never clear, since it was possible
for a person to possess lottery slips or carry a pistol in the presence of an
officer without the officer actually seeing it. The prior general provision
did not explicitly provide a standard to guide a police officer in
determining whether a misdemeanor was being committed in his
presence. Its language left open the question whether the officer must be
satisfied beyond a reasonable doubt that a misdemeanor was being
committed in his presence (e.g., seeing an operable pistol in the suspect's
hand) or whether the officer must only have the traditional quantum of
proof-probable cause to believe a misdemeanor was being committed
in his presence (e.g., receiving information from a believable citizen that
a certain individual just put a pistol under his coat). Because of this
uncertainty, Congress enacted in 1953 a specific provision authorizing
law enforcement officers to arrest without a warrant any person whom
they had probable cause to believe was in possession of certain
contraband (unlawfully possessed weapons, implements of crime, lottery
tickets, and proceeds of a petit larceny) in his presence or, in the words
                                           '73
of the statute, "at the time of the arrest. "
   The new Act repeals the 1953 provision,74 specifically incorporates the
 traditional quantum of proof standard, and provides that a law
 enforcement officer may arrest without a warrant any person whom he
    69. 4 D.C. CODE § 140 (Supp. II, 1969).
    70. 22 D.C. CODE § 1502 (1967).
    71. Id. § 3601.
    72. Id. § 3204.
    73. 23 D.C. CODE § 306 (1967).
    74. Section 201(b)(3)(10) of Pub. L. No. 91-358 (July 29, 1970). Included in the
repealed section (23 D.C. CODE § 306 (1967)), was a subsection that provided:
     (d) No evidence discovered in the course of any arrest, search, or seizure
     authorized by this section shall be admissible in any criminal proceeding against
     the person arrested unless at the time of such arrest he was violating one of the
     sections referred to in subsection (b) [illegal possession of implements of crime,
     weapons and lottery tickets] or had in his possession property taken in violation of
     the section referred to in subsection (c) [possession proceedings of a petit larceny].
No comparable subsection is found in the new law. Thus, general principles of search,
seizure and arrest law operate and found during the course of a search of a person
arrested for carrying a pistol without a license would be admissible, even if it turned out
that the suspected pistol was in fact a blank or inoperable gun or there was no gun at all.
See United States v. DiRe, 332 U.S. 581,595 (1947) ("a search. . . is good or bad when
it starts and does not change character from its success.").
1970-71]                CRIMINAL LAW AND PROCEDURE

has probable cause to believe has committed or is committing a
misdemeanor in his presence. Under this provision, there can be no
question that an officer may arrest a person who has a pistol handle
sticking out of his pocket even though there is not proof beyond a
reasonable doubt that it is a real pistol and not a toy or blank one. 75 In
the same vein, an officer can arrest a person for carrying a pistol without
a license based on the statement of a believable citizen that "I saw that
man over there put a pistol under his coat," even though the officer did
not actually see the item purported to be a pistol.
   Arrest without warrant by special police-23 D.C. Code § 582(a).
Under the new law, a special policeman has the same powers as a law
enforcement officer to arrest without a warrant for offenses committed
within the premises to which his jurisdiction extends, and may arrest
outside the premises on fresh pursuit for offenses committed on the
premises. 7 No prior statute or regulation dealt with the arrest powers of
special policemen. However, case law in the District of Columbia made
it clear that a special policeman had within his area of authority the
same powers of arrest without a warrant as a law enforcement officer.Z
This rule of law is supported by the Supreme Court's pronouncement
that when special policemen "are performing their police function, they
are acting as public officers and assume all the powers and liabilities
attaching thereto. 78 The new statutory provision merely codifies
existing case law.
   Arrest without warrant by citizens-23 D.C. Code § 582(b). A
private person may arrest another (1) whom he has probable cause to
believe is committing in his presence a felony or certain misdemeanors
(assault, petit larceny, receiving stolen goods, unlawful entry, attempted
burglary, attempted grand larceny and attempted unauthorized use of a
vehicle), or (2) in aid of a law enforcement officer or special policemen,
or other person authorized by law to make an arrest.
   Previously, the District of Columbia Code contained no provision
setting forth when a private person may arrest another. The old common
  75. H.R. REP. No. 907, 91st Cong., 2d Sess. 118 (1970).
  76. Special policemen are widely used in the District of Columbia by banks,
department stores and supermarkets. In addition to protecting the private property of an
individual or corporation, they provide a valuable community service in apprehending
dangerous persons committing crimes within the premises being policed. Special
policemen are appointed by and subject to the rules and regulations of the District of
Columbia Government; they are wholly paid, however, by their employers. 4 D.C.
CODE § 115 (1967).
  77. Singleton v. United States, 225 A.2d 315 (D.C. Ct. App. 1967).
  78. NLRB v. Jones and Laughlin Steel Corp., 331 U.S. 416,429 (1947).
             THE AMERICAN UNIVERSITY LAW REVIEW                               [Vol. 20


law, which controlled, permitted a citizen to arrest another for a felony
committed in or out of his presence upon probable cause and for any
misdemeanor involving breach of the peace committed in his presence.79
The new law limits the common law power of a citizen to arrest another
by not authorizing a private person to arrest for a felony committed out
of his presence."0 The purpose of this limitation is "to restrict the
responsibility for investigation and apprehension of felons, who have
made their escape, to law enforcement officers."'" Law enforcement
should be carried out by professionals. However, the new provision
recognizes that if a serious crime (a felony or an enumerated
misdemeanor) is committed in the presence of a citizen, and no police
officer is available, it is necessary that the citizen be allowed to stop and
arrest the person committing the offense; for example, if you come out of
your home and see an individual stealing your car, you must have the
                                                                 2
authority to stop the individual and hold him for the police.
   The one situation when a private person may arrest another for a
crime not committed in his presence is in aid of a law enforcement
officer, special policeman, or other person authorized by law to make an
arrest. This permits a citizen to come to the aid of a law enforcement
officer, special policeman or victim of a crime, any one of whom might
be chasing a fleeing suspect who committed an offense out of the
presence of the citizen.
           C. Interception of Wire and OralCommunications
   In Title III of Public Law 90-351, the Omnibus Crime Control and
Safe Streets Act of 1968, Congress enacted a comprehensive federal
wiretap and electronic surveillance law. In this title, Congress prescribed
on a uniform basis for the country the circumstances under which the
interception of wire or oral communications may be authorized. It
prohibited all unauthorized interception of such communications and
   79. RESTATEMENT OF TORTS (Second), § 119 (1965).
   80. The new law follows the old common law rule to the extent that the power of a
citizen to arrest for a misdemeanor is limited to certain misdemeanors committed in his
presence. Under the old law, the misdemeanors had to be a "breach of the peace", while
under the new law the misdemeanors are specifically spelled out.
   8 1. Testimony by Associate Deputy Attorney General Donald E. Santarelli before the
House District of Columbia Committee, Oct. 1, 1969. A nti-CrimeProposals,Hearings
before Subcommittees Nos. I and 3 of the House Comm. on the District of Columbia,
(Part 1), 91st Cong., 1st Sess., at 95 (1969).
   82. Under 23 D.C. CODE § 582(c) (eff. Feb. 1, 1971), a private person or special
policeman making an arrest must deliver the arrested person to a law enforcement officer
"without unreasonable delay."
1970-71]                CRIMINAL LAW AND PROCEDURE

proscribed the use or divulgence of unauthorized interceptions.
Penalties-both civil and criminal-were provided for violations of these
prohibitions.
   In Title III, Congress specified the federal crimes for which
wiretapping and electronic surveillance were authorized. The emphasis
was on crimes "intrinsically serious" or "characteristic of the
operations of organized crime." Congress also authorized states and
other political subdivisions to engage in wiretapping and other forms of
electronic surveillance, but only if permitted by a specific state statute
and only if the state statute conformed to the federal standards.8 Title
III also specified those crimes for which a state could authorize
wiretapping.
   New Subchapter III of Chapter 5 of Title 23 of the D.C. Code, 23
D.C. Code §§ 541-556, implements for the District of Columbia the
policy of Congress as reflected in the Omnibus Crime Bill of 1968 by
providing the District with a statute permitting electronic surveillance
for local offenses. s5 It is patterned after a model electronics surveillance
control act, revised to conform strictly to the procedural requirements,
safeguards, and limitations of the federal law."
   23 D.C. Code § 541 contains a number of definitions which are
basically identical to those in the federal law. The term "judge", one
who can authorize electronic surveillance, includes the judges of the new
Superior Court, the District of Columbia Court of Appeals, the United
States District Court for the District of Columbia, and the United States
Court of Appeals for the District of Columbia. s'
   Subchapter II I provides a maximum five year penalty or $10,000 fine,
or both, for unauthorized interception of wire or oral communications
or disclosure or use of the contents of such interceptions in the District.u
Though the federal law provides a similar penalty, it is predicated on
establishment of a connection with interstate commerce, a connection
which need not be established to prove a violation of local law.89
  83. S. REP. No. 1097, 90th Cong., 2d Sess. 97 (1968).
  84. 18 U.S.C. § 2516(2) (Supp. IV, 1969).
  85. H.R. REP. No. 907, 91st Cong., 2d Sess. 77 (1970). Electronic surveillance
generally consists of interception of wire and oral communications, commonly known as
wiretapping and bugging, respectively.
  86. S.REP. No. 538, 91st Cong., Ist Sess. 18 (1969). See Blakey and Hancock, A
ProposedElectronicSurveillance ControlA ct, 43 NOTRE DAME LAWYER 657 (1968).
  87. 23 D.C. CODE § 541(7)(eff. Feb. 1, 1971).
  88. Id. § 542(a).
  89. 116 CONG. REC. S11391 (daily ed., July 15, 1970) (Senate Statement of
Managers).
             THE AMERICAN UNIVERSITY LA W REVIEW                            [Vol. 20

 Exceptions to the general rule against interception are provided for
 authorized interception by law enforcement officers, for switchboard
 operators and communications industry personnel in certain
 circumstances, and where the interception is with the permission of one
 of the parties to the communication. 0 Disclosure and use of the contents
 of intercepted material is permitted when those contents have become
 common knowledge or public information. 9'
    Subchapter III also provides a civil remedy for any person aggrieved
by an interception of a wire or oral communication made in violation of
the subchapter. 2 Where the federal law prohibits the manufacture,
 distribution, possession, and advertising of wire or oral communication
 intercepting devices in interstate commerce, Subchapter III makes this
prohibition applicable to purely local offenses.1 Any intercepting device
possessed, used, sold, distributed, or manufactured or assembled in
violation of §§ 542 and 543 may be confiscated.9"
    23 D.C. Code § 545, which provides immunity for witnesses called to
testify before a court or grand jury for violations of this sub chapter, has
been repealed by Section 252 of Public Law 91-452, the Organized
Crime Control Act of 1970, which, in Title II, contains a general
immunity provision applicable to violations of Subchapter II I.
    The offenses for which wiretapping and other forms of electronic
surveillance are authorized under Subchapter III are arson, blackmail,
bribery, burglary, destruction of property in excess of $200, extortion,
gambling, grand larceny, kidnapping, first and second degree murder,
obstruction of justice, receiving stolen property in excess of $100
(fencing), robbery, and offenses involving dealing in narcotic drugs,
marijuana, and other dangerous drugs and any conspiracy to commit the
above offenses.9 The phrase "dealing in" drugs is intended to apply to
those engaged in the manufacture and distribution of these drugs, not to
those who possess a small quantity only for their own personal use.'9
   Any application to a court by an investigative or law enforcement
officer for an order authorizing the interception of wire or oral
communications or for an order approving the interception of wire or
oral communications must be authorized in writing by the United States
  90. 23 D.C. CODE § 542(b) (eff. Feb. 1, 1971).
  91. Id. § 542(a).
   92. Id. § 544.
   93. Id. § 543.116 CONG. REC. S11391 (daily ed., July 15, 1970) (Senate Statement
of Managers).
   94. 23 D.C. CODE § 544 (eff. Feb. 1, 197 1).
   95. Id. § 546(c).
   96. H.R. REP. No. 907,91st Cong., 2d Sess. 78 (1970).
1970-71l]                CRIMINAL LAW AND PROCEDURE

Attorney for the District of Columbia, or an Assistant United States
Attorney designated by him.9 7 The application to thejudge must contain
a detailed statement setting forth:
     1. the identity of the officer seeking authorization to intercept;
     2. the offense for which interception is requested or authorized,
  the facilities from which the interception is to be or was made, the
  kind of communication to be intercepted, and the identity of the
  person committing the offense, if known, and whose
  communications are to be or were intercepted;
     3. whether or not other investigative procedures have been tried
  or failed or why they reasonably appear or appeared to be unlikely
  to succeed if tried or too dangerous;
     4. the period of time for which the interception is or was required
  to be maintained;
     5. previous applications involving the same facilities or persons;
  and
     6. where the application is for an extension of an order, the
  results of the interception thus far, or the reasons for failure if such
  occurred."
  An order authorizing or approving interception must set forth:
     1. the identity of the agency authorized to intercept or whose
  interception is approved;
     2. the nature and location of the facilities involved;
     3. the identity or description, if known, of the person whose
  communications are to be or were intercepted;
     4. the period of time for which interception is authorized; and
     5. the type of communication to be or which was intercepted.9 9
   The judge, before he can authorize or approve interception, must also
find:
      1. probable cause to believe                 that the person whose
   97. 23 D.C. CODE §§ 541(11), 546(a), (b) (eff. Feb. 1, 1971). An order of approval
for a completed interception of a wire or oral communication may be applied for in three
circumstances under 23 D.C. CODE § 546(b):
    1. when the contents of the interception relate to an offense other than that for
    which an application had been approved by a judge.
  2. when the contents involve an emergency interception permitted by 23 D.C.
  CODE § 548(a).
  3. when the contents involve an offense other than the one for which an emergency
   interception was made.
  98. 23 D.C. CODE § 547(a) (eff. Feb. 1, 1971).
         §
  99. Id. 547(e).
            THE AMERICAN UNIVERSITY LAW REVIEW                    [Vol. 20

    communication is to be or was intercepted, was committing, had
   committed, or is about to commit one of the offenses for which
   interception is permitted;
      2. probable cause to believe that particular communications
    concerning that offense would be obtained through the proposed
   interception;
      3. normal investigative procedures were or are too dangerous or
   have or would be unsuccessful; and
      4. probable cause to believe that the facilities in question were
   being, are being or will be used in connection with the commission
    of the offense for which interception is to be or was made.' ®
   Wiretapping of facilities commonly used by, leased to, or listed in the
name of a licensed physician, licensed attorney or practicing clergyman
and bugging of places used primarily by a licensed physician, licensed
attorney or practicing clergyman for his own professional purposes or
primarily as a habitation by a husband or wife is permitted only if the
judge determines that the facilities or place are, were or are about to be
used in connection with conspiratorial activities characteristic of
 organized crime and such wiretapping or bugging will be executed to
minimize or eliminate the number of interceptions of privileged
conversations. No such protection for privileged communications exists
under the federal statute. No otherwise privileged wire or oral
communication loses its privileged character because of an interception
whether approved or made in violation of Subchapter 1I1.11
   Orders are not to authorize interception longer than required to
 achieve the objective of the authorization and in no event longer than
thirty days. The same is true for an order extending the period of
 interception.'
    Emergency interceptions, interceptions made without prior court
 approval, may be made only by investigative or law enforcement officers
 specifically designated by the United States Attorney. Such an officer
 must reasonably determine that an emergency situation exists "with
 respect to conspiratorial activities characteristic of organized crime"
which necessitates interception before court authorization can be
 obtained and there are grounds for such interception. Application for an
 order of approval must be initiated within twelve hours and completed

  100. Id. § 547(c).
  101. Id. § 547(d).
  102. Id. § 547(g).
1970-71]                  CRIMINAL LAW AND PROCEDURE

within seventy-two hours after the interception has occurred or begins to
occur. 103
   The contents of intercepted communications must be recorded if
possible. The recordings are to be sealed by the judge who authorized or
approved the interception. They are not to be destroyed for ten years, nor
are the applications and orders.'
   Not later than ninety days after the filing of an application for an
order of approval or the termination of an interception, the issuing or
denying judge shall have an inventory relating to the interception served
on the person(s) named in the order or application and upon such other
parties to the intercepted communications as he determines is necessary
in the interest of justice. The inventory shall consist of the fact of and
date of an order or denial of an application for approval, the period of
interception, and whether or not communications were intercepted. For
good cause shown, the serving of the inventory may be postponed. 0 5 The
inventory, however, together with the order and application, must be
served at least ten days before use of the contents of the interception at a
trial or hearing, unless the court finds that such service was not
possible.l 6
   The contents of any intercepted wire or oral communication may be
ordered suppressed on motion of an aggrieved party on the following
grounds:
      1. the communication was unlawfully intercepted;
      2. the order of authorization or approval is insufficient on its
   face;
      3. the interception was not made in conformity with the order of
   authorization or approval;
      4. service was not made as provided in 23 D.C. Code § 551(a);
   or
      5. the seal required by 23 D.C. Code § 549 is not present and
                                                         0
   no satisfactory explanation is given for its absence. 1 7
  If the motion is granted, the contents of the intercepted wire or oral
communication, or evidence derived therefrom, shall be treated as
obtained in violation of the subchapter and shall not be received in
  103. Id.§ 548(a).
  104. Id. § 549.
  105. Id.§ 550.
  106. Id. § 551(a).
   107. Id. § 551(b). Subsection (b)(4) of Pub.. L. No. 91-358, § 551 (July 29, 1970)
erroneously refers to section 547 instead of section 551(a). Subsection (b)(5) erroneously
refers to "subsection (i) of this section" instead of section 549.
274         THE AMERICAN UNIVERSITY LA W REVIEW                           [Vol. 20

evidence in the trial, hearing, or proceeding. 13 This does not, however,
 change the attenuation rule. 1 9 Nor generally does it press the scope of
                               '
the suppression rule beyond present search and seizure law." 0 The
 United States or the District of Columbia may appeal from an order of
 suppression. They may also appeal from the denial of an application for
 an order of approval. In both situations, the appeal must be taken within
thirty days and be accompanied by a certification that the appeal is not
taken for purposes of delay."'
   23 D.C. Code § 553 authorizes disclosure and use of intercepted wire
 or oral communications obtained in conformity with Subchapter III by
 investigative and law enforcement officers to the extent appropriate for
the performance of their official duties. Examples of the purposes of
 such disclosure would be to learn of the existence or whereabouts of
 evidence or witnesses and establishing probable cause for search and
 arrest warrants," 2 as well as, of course, following out leads obtained
 from the interception. Disclosure while giving testimony under oath or
 affirmation in any criminal trial, hearing, or proceeding before a grand
jury or court is also authorized for any person who lawfully has learned
 of the contents of intercepted communications. Otherwise, use and
 disclosure are permitted only by court order upon a showing of good
         3
 cause.1
    23 D.C. Code § 555 describes the reports to be filed. These are a
 report by the issuing or denying judge to the Chief Judge of the District
 of Columbia Court of Appeals within thirty days after the expiration of
 an order or an extension of an order and an annual report filed by the
 United States Attorney with the Chief Judge of the District of Columbia
 Court of Appeals and the Congress.
    The final section of Subchapter III provides that sections of the
 subchapter which delineate the procedures to be followed in applying for
 and securing orders authorizing or approving interception of wire and
 oral communication shall control in the District of Columbia if in
 conflict with the provisions of Title III of the Omnibus Crime Control
 and Safe Streets Act of 1968.114 The remaining sections, such as those
  108. Id.
  109. See H.R. REP. No. 1303, 91st Cong., 1st Sess. 238 (1970). Nardone v. United
States, 127 F.2d 521 (2d Cir. 1942), cert. denied, 316 U.S. 698 (1942).
  110. See also, H.R. REP. No. 1303, 91st Cong., 1st Sess. 238 (1970). Walder v.
United States, 347 U.S. 62 (1954).
  IIl. 23 D.C.CoDE § 552 (eff. Feb. 1, 1971).
  112. S. REP. No. 538, 91st Cong., 1st Sess. 23 (1969).
  113. 23 D.C.CoDE § 553(c) (eff. Feb. 1, 1971).
  114. The specific sections involved are §§ 546-552. One example would be the
1970-71]                CRIMINAL LAW AND PROCEDURE

providing civil and criminal penalties and disclosure, are to be construed
                                                 115
to supplement and not supersede the federal law.

D. The Rule RequiringAnnouncement of Identity and Purpose and the
                       Exceptions Thereto
   New Subchapter VI of Chapter 5 of Title 23 of the D.C. Code, 23
D.C. Code § 591, contains a general provision detailing when law
enforcement officers entering a home to execute a warrant or make an
arrest must announce their identity and purpose and when they need not.
Heretofore, the District of Columbia Code contained no such provi-
sion. The House Committee Report set forth three reasons for including
such a provision in the new law."'
   First, there was a desire to have a complete code of criminal
procedures for the District of Columbia rather than continuing the
practice of having local law enforcement officers rely on the federal
        11 7
statute.
   Second, the basic purpose of the general rule requiring announcement
was to deter police officers from unreasonably breaking down doors
before entering premises to e~ecute a search warrant or make an arrest,
and without specific language in a statute to make clear when they must
announce and when they need not, police officers would continue to be
confounded as to what constitutes appropriate action on their part and
would be forced to rely on uncertain and shifting case law.
   Third, law enforcement officers in the District of Columbia were
controlled by an inadequate federal statute. The federal statute provides
as follows:
     The officer may break open any outer or inner door or window of
   a house, or any part of a fiouse, or anything therein, to execute a
   search warrant, if, after notice of his authority and purpose, he is
   refused admittance or when necessary to liberate himself or a
   person aiding him in the execution of the warrant."'
The federal statute has two major drawbacks. First, its requirement of
announcing identity and purpose is limited by its express language to
restrictions on intercepting privileged communications contained in Subchapter III but
not in federal law.
   115. 23 D.C. CODE § 556(a). The specific sections involved are §§ 542, 543, 545,
553-555. See S. REP. No. 538,91st Cong., 1st Sess. 25 (1969).
   116. H.R. REP. No. 907, 91st Cong., 2d Sess. 104-5, 108 (1970).
   117. 18 U.S.C. § 3109 (1964).
   118. Id.
276          THE AMERICAN UNIVERSITY LA W REVIEW                           [Vol. 20

executions of search warrants and not to those situations in which a
police officer is authorized by law to make an arrest. Second, it fails to
specify those circumstances under which the requirement for
announcement prior to entry may be dispensed with. Both of these
 omissions in the federal statute have been filled in, to some extent, by
court decisions. In Miller v. United States,'" the Supreme Court applied
the requirement of announcement of identity and purpose to arrests. In
                      2
Ker v. California,'0 the Supreme Court recognized the existence and
constitutionality of exceptions to the requirement of announcement of
identity and purpose in a similar state statute.
   The new District of Columbia Code provision, 23 D.C. Code § 591,
                            2
is divided into five parts.'1
   Subsections (a) and (b) of § 591 makes the general requirement of
announcement prior to entry applicable not only to search warrants but
also to arrest situations. Subsection (b) specifically provides that
breaking and entering (which is authorized under subsection (a)) shall
not be made until after the officer announces his identity and purpose
and the officer reasonably believes that admittance to the dwelling
house, building or vehicle is being denied or unreasonably delayed.
Subsection (b) generally follows the federal statute.12 However, several
rather technical but important improvements on the language of the
federal statute were made in subsection (b). The federal statute only
requires announcement before entry into a "house"; subsection (b)
extended this requirement to include entry into a "dwelling house,
building or vehicle." The federal statute which provides that an officer
may break and enter a house only after he has made proper
announcement and "is refused admittance," fails to cover the situation
where admittance is unreasonably delayed br no one is present on the
premises. Subsection (b) authorizes an officer to break and enter after he
has given the proper notice and "reasonably believes that admittance to
the dwelling house, building, or vehicle is being denied or unreasonably
delayed." Thus, subsection (b) clearly covers those situations where the
officer reasonably believes admittance is being denied because the
occupant runs away from the door or where the officer reasonably
  119. 357 U.S. 301 (1958).
  120. 374 U.S. 23 (1963).
  121. It is patterned after a proposed model statute. See Blakey, The Rule of
Announcement and Unlawful Entry: Miller v. UnitedStates and Ker v. California, 112
U. PA. L. REv. 499, 562 (1964).
  122. 18 U.S.C. § 3109 (1964).
1970-71 ]                 CRIMINAL LAW AND PROCEDURE

believes that admittance is being unreasonably delayed because there is
 no movement inside the premises toward the door.'13
   Subsection (c) of 23 D.C. Code § 591 explicitly sets out the four
circumstances or exceptions which justify a law enforcement officer
entering premises to execute a warrant or to make an arrest without
giving prior notice of his identity and purpose. Subsection (c) further sets
 out the requirement for advance judicial approval authorizing entry
without prior notice. In those situations where the circumstances
justifying entry without notice are known to the officer-applicant at the
time he applies for an arrest or search warrant, he must receive judicial
authorization in the warrant in order to be allowed to enter without prior
notice. 2 4
   Stated in the converse, an officer does not need advance judicial
approval if circumstances justifying entry without notice are known to
him at the time of breaking and entering, "but, in the case of the
execution of a warrant, unknown io the applicant when applying for
such warrant."' 1 5 Thus, an officer would bejustified in entering premises
                 2

without prior notice if he learns for the first time, as he approaches the
suspect's premises armed with an arrest warrant, that the suspect has
been telling neighbors that he will never be taken alive. Prior judicial
authorization would not be needed in this situation because the
circumstance justifying the entry without notice was unknown to the
officer at the time he applied for the arrest warrant. The phrase
 "unknown to the applicant" was chosen, rather than "the applicant did
not have reason to know," in order to avoid ajudicial interpretation that
would impute to the officer-applicant the knowledge of every member of
the police force. 2 While the clear thrust of the provision was to
encourage prior judicial approval, Congress recognized that an
individual officer could not be held responsible for all information
possessed collectively by the police department.' z However, it was made
clear in the legislative history that the use of the phrase "unknown to the
   123. H.R. ReP. No. 907,91st Cong., 2d Sess. 105 (1970).
   124. The procedure for obtaining prior judicial authorization is set forth in the search
and arrest warrant sections of the District of Columbia Code. 23 D.C. CODE
§§ 521(f)(6), 522(c)(2) and 561(b)(1) (eff. Feb. 1, 1971).
   125. Id. § 59 1(c)(2) (emphasis supplied). In those situations where a law enforcement
officer is constituionally justified in entering premises or vehicles without a warrant (i.e.,
hot pursuit arrest as in Warden v. Hayden, 387 U.S. 294 (1967), advance judicial
approval for an entry without notice is neither appropriate nor required.
   126. 116 CONG. REc. S11391 (daily ed. July 15, 1970).
   127. H.R. REP. No. 1303, 91st Cong., 2d Sess. 237 (1970) (House Statement of
Managers accompanying Conference Report).
              THE AMERICAN UNIVERSITY LA W REVIEW                              [Vol. 20

applicant" "shall not be construed to shield police laxity or to permit a
police officer who knows the facts in advance to subvert the clear intent
of this section favoring prior judicial authorization by sending an officer
who does not possess the knowledge to make the application."'I
   The four exceptions to the general announcement rule which justify a
law enforcement officer entering premises to execute a warrant or make
an arrest without giving prior notice of his identity and purpose are as
follows:
   Where there is probable cause to believe that-
      (A) such notice is likely to result in the evidence subject to
   seizure being easily and quickly destroyed or disposed of;
      (B) such notice is likely to endanger the life or safety of the
   officer or another person;
      (C) such notice is likely to enable the party to be arrested to
   escape; or
     (D) such notice would be a useless gesture. 29

   The first of these exceptions justifying entry without notice-
"probable cause to believe that such notice is likely to result in
the evidence subject to seizure being easily and quickly destroyed or
disposed of'-was discussed at length in the legislative reports and in
the debates on the floor of the House and Senate.' While there was
some suggestion that the House and Senate Conferees did not come to a
complete accord on the meaning of this provision,' 3' the real difference
   128. Id.
   129. 23 D.C. CoDE § 591(c)(2) (eff. Feb. 1, 1971).
   130. S. REP. No. 538, 91st Cong., Ist Sess. 13-15 (1969); H.R. REP. No. 907, 91st
Cong., 2d Sess. 106-7, 108-9 (1970); H.R. REP. No. 1303, 91st Cong., 2d Sess. 237
(1970) (House Statement of Managers accompanying Conference Report); 116 CONG
REC. H2047-55 (daily ed. March 19, 1970); 116 CONG. REC. S11391, H6737-8 (daily ed.
July 15, 1970); 116 CONG. REC. S11607-8 (daily ed. July 16, 1970); 116 CONG. REc.
S 11685-6 (daily ed. July 17, 1970); 116 CONG. REc. S 11852-3 (daily ed. July 21, 1970).
   131. See 116 CONG. REC. S11391 (daily ed. July 15, 1970) where the Senate
Statement of Managers, signed by four of the seven Senate Conferees, reported:
    [T]he Senate conferees did not recede from their original position that only
    particular facts, bearing upon any given particular case, may serve as grounds for
    "no-knocking". The House conferees urged to the contrary that particular facts
    are unnecessary; they urged, for example, that "no-knocking" would be
    appropriate in nearly all narcotics or gambling cases, based on the destructibility
    of the evidence usually involved.
This characterization of the position of the House Conferees was inaccurate. See 116
CONG. REc. H6737 (daily ed. July 15, 1970), where Congressman Hogan, speaking for
all eight of the House Conferees, stated:
       Mr. Speaker, as a sponsor of the omnibus District of Columbia crime bill and
1970-71]                 CRIMINAL LAW AND PROCEDURE

between the two conference groups was not in their interpretation of the
provision but in the manner in which they articulated it. For example,
the Senate Conferees emphasized that "only particular facts, bearing
upon any given particular case, may serve as grounds for 'no-
knocking,' "132 while the House Conferees emphasized that the key
particular fact was the officer's general knowledge and experience that
evidence such as narcotics or gambling paraphernalia is frequently
destroyed during the time the police announce their identity and purpose
and wait to be refused admittance.133 Both the House and Senate
Conferees did agree that the language of this provision was intended to
encompass the standards and factual situations of two cases: Ker v.
California,'3 and Henson v. State.1

   several of the separate bills it absorbed, and as one of the House Conferees I would
   like to discuss, on behalf of all the House conferees, some specific provisions in the
   bill for purposes of legislative history. These statements should assist the trial
   judges in the new Superior Court and the appellate judges in the expanded District
   of Columbia Court of Appeals, in reaching the results intended by Congress as set
   forth in the language of the conference report. These statements represent the solid
   position of the House conferees, all of whom signed the conference report, on the
   intent of the language in several provisions of the bill.


    The House conferees adopted this provision primarily because we recognized that
    there will be a number of cases, especially narcotics and gambling cases, where an
    officer at the time of application for a search warrant will have "probable cause"
    to believe that if notice is given the evidence "is likely to" be destroyed. Such a
    conclusion can be based on the officer's general knowledge and experience in the
    area of narcoticsor gamblingactivity that such evidence is easily disposed of and
   frequently destroyed if the police give advance warningby announcing.See Ker v.
    California,374 U.S. 23 (1963) (Opinion of the Court by Clark, J.); Henson v.
    State, 204 A.2d 516 (Md. 1964) (emphasis supplied).
Thus, it was not the position of the House Conferees that "no-knocking would be
appropriate [in narcotics cases] . . . based on the destructibility of the evidence" but
rather that no-knocking would be appropriate in narcotics cases if the officer's general
knowledge and experience was that narcotics are frequently destroyed if the police give
advance warning by announcing.
   132. 116 CONG. REC. S11391 (daily ed. July 15, 1970).
   133. 116 CONG. REC. H6737 (daily ed. July 15, 1970); H.R. REP. No. 907, 91st
Cong., 2d Sess. 108-9 (1970).
   134. 374 U.S. 23 (1963); 116 CONG. REC. S 11391 (daily ed. July 15, 1970); 116 CONG.
REc. S11607-8 (daily ed. July 16, 1970); 116 CONG. REC. H6737 (daily ed. July 15,
1970); H.R. REP. No. 1303, 91st Cong., 2d Sess. 237 (1970) (House Statement of
Managers accompanying Conference Report).
   135. 204 A.2d 516 (Md. 1964); 116 CONG. REC. S11391 (daily ed. July 15, 1970)
where Senate Statement of Managers stated: "The Maryland court ruled unanimously in
Henson that the police had authority to 'no-knock'. The conference version of S.2601 is
              THE AMERICAN UNIVERSITY LA W REVIEW                                 [Vol. 20

   Ker v. Californiawas a 1963 Supreme Court case which involved a
challenge to the constitutionality of an unannounced entry to effectuate
an arrest without a warrant for a narcotics violation, an entry made to
prevent the destruction of evidence. Briefly stated, the facts in Ker
showed that several California police officers went to Ker's apartment to
place him under arrest without a warrant for trafficking in and
possessing marijuana. With the aid of a pass key obtained from the
manager, the officers entered Ker's apartment without announcing their
identity and purpose "in order to prevent the destruction of evidence.", 3
One officer later testified that he had been attached to a narcotics detail
for four years, had participated in hundreds of arrests involving
marijuana, and "on 'many, many occasions' in his experience with
narcotics arrests 'persons have flushed narcotics down toilets, pushed
them down drains and sinks and many other methods of getting rid of
them prior to my entrance .            . .'   "17   With the help of an unannounced
entry, the police were able .to seize a quantity of marijuana for which the
defendant was convicted. The Supreme Court affirmed the conviction
holding that the method of entry was justified in this case.
   The basis for the Supreme Court's ruling was the easy disposibility of
the narcotics and the arresting officer's experience over four years that
on many occasions persons had disposed of narcotics down toilets and
sinks prior to his entrance. Although the Supreme Court mentioned
Ker's furtive conduct in eluding the police shortly before his arrest as a
further basis for expecting he might destroy the evidence, it is doubtful
that this was really a significant factor. This is so because the police in
Ker did not appear too concerned that the defendant had returned to his
apartment to destroy evidence since they did not go to his apartment
immediately. Rather, the police took time to obtain a passkey from the
apartment manager in order to enter the apartment without alerting Ker
to their presence. 38
   Henson v. State was a 1964 Maryland case which involved the legality
of an unannounced entry to effectuate a search warrant for narcotics, an
entry made to prevent the destruction of evidence. Briefly stated, the
facts in Henson showed that during a one week period two Maryland
police officers maintained Henson's premises under surveillance. During
intended merely to codify this and similar court rulings.    . ."; 116 CONG. REC. SI1685
(daily ed. July 17, 1970); 116 CONG. REC. H6737 (daily ed. July 15, 1970).
   136. 374 U.S. 23, 28 (1963).
   137. Id. at28, n.3.
   138. If Ker was alerted to the fact that the police were after him, it is tantamount to
no more than the situation in every case where the police identify themselves at a
suspect's door and thereby alert the suspect to their presence..
1970-71 ]               CRIMINAL LAW AND PROCEDURE


this period, more than 43 known addicts visited the premises, often
acting in a manner which would indicate the purchasing of narcotics.
Based on this information, the officers obtained a search warrant for the
premises in question and armed with this search warrant they went to
Henson's premises and entered forcibly without giving prior notice. The
officer in charge testified as to why he did not advise the occupants of the
house of his presence and request admittance: "It has been my
experience in the past twelve years when you knock on a door when you
suspect drugs being on the premises, they are often disposed of by
                                                            '
flushing down the toilet or thrown out in some manner."' 3 In upholding
the seizure of narcotics subsequent to this entry, the Maryland Court of
Appeals stated:
      Practicalities and exigencies in searches for narcotics require the
   element of surprise entry, for if opportunity is given all evidence
   easily may be destroyed during the time required to give notice,
   demand admittance and accept communication of denial of
          40
   entry.
  Reading Ker and Henson together, it is clear that the key fact in
determining that the entry without notice was justified was the officer's
experience that narcotics are frequently destroyed or disposed of if the
suspect is given an opportunity to do so prior to the entry by the police.
There was no specific information in either Ker or Henson that the
suspect had ever destroyed evidence in the past or had ever stated that if
the police came to his premises the evidence would be destroyed.
  The Henson case is particularly important and helpful in
understanding what factual situations come within the first exception
aimed at preventing the destruction of evidence, since it can be read
consistently with Ker, since it provides a simpler factual situation than
Ker, and since it articulates more clearly than Ker the basis for its
holding.' 4 ' Reading the destruction of evidence exception, 23 D.C.
Code § 59 1(c)(2)(A), in light of Henson, a law enforcement officer can
   139. 204 A.2d 516, 523 (Md. 1964).
   140. Id.
   141. In addition, Henson is significant bedause it is a Maryland case, and both
Senator Tydings, Chairman of the Senate District Committee, floor manager of the bill
and a major proponent of the so-called "no-knock" provision, and Congressman
Hogan, member of the House District Committee, a conferee and a floor manager of the
bill and a major proponent of the so-called "no-knock" provision, were congressional
representatives of the State of Maryland and indicated that Henson (which represented
the law of their state) was intended to be codified into the so-called "no-knock"
provision of the D.C. Court Reform Act. See note 135, supra.
              THE AMERICAN UNIVERSITY LA W REVIEW                              [Vol. 20

obtain advance judicial authorization under 23 D.C. Code § 521(0(6)
to enter premises without prior notice in narcotics and gambling cases
based on his (the officer's) general knowledge and experience that drugs
or gambling records are frequently destroyed or disposed of if prior
notice of identity and purpose is given. As was made clear in the House
Committee Report to the original House bill, 4 2 the new law gives law
enforcement officers a clear procedure under which they can enter
premises without notice and thereby prevent the destruction of evidence,
especially in narcotics and gambling cases:
     The purpose of 23 D.C. Code § 521(0(6) is to provide the
  executing officer with a method by which he can obtain prior
  judicial approval to enter the premises to be searched without
   announcing his identity and purpose. There are certain areas of
   criminal activity where the executing officer will have at the time he
   applies for a search warrant reasonable grounds to believe that if
   such announcement is given the property sought is likely to be
  destroyed. The clearest example is in the area of illegal gambling
   activities. Illegal gambling and book-making operations have
  taken special precautions so that they will be able to destroy the
  work product of the gambling operations during the time the
  officer has to wait before breaking into the premises.
     In 1962, for example, it was reported that less than 30 seconds
  were necessary to destroy all of the evidence of a wire service
  headquarters. McClellan, Gambling and OrganizedCrime, S. Rep.
   No. 1310, 87th Cong., 2d Sess. Experience has shown that numbers
  bets are recorded on either "flash" paper which ignites on contact
  with fire or "water soluble" paper which dissolves on contact with
  water, and that the time spent by the executing officer in giving
  notice and waiting to be refused admittance is used by the gambler
  to destroy his work product. The gamblers by using "flash" paper
  and "water soluble" paper feel they have found a loophole in
  existing law. The Committee feels that this subsection will be a
   substantial aid, by clarifying the law, in plugging up the purported
  loophole. The same is true in the area of illegal narcotics activity.
   Experience has shown that the time consumed by the executing
  officers in announcing their authority and purpose and waiting to
  be refused admittance is used by the drug trafficker in disposing of
   142. The language of the destruction of evidence exception in the original House bill
(S.2601, as amended, passed the House on March 19, 1970-reported out of Committee
H.R. 16196) was essentially followed in the final version of the new Act.
1970-711                CRIMINAL LAW AND PROCEDURE

  his narcotics down the toilet. Common sense tells us that the first
  thing a drug trafficker would do upon learning that the police were
  at his door to search for his narcotics is to use every second
  available to dispose of the drugs. Thus, in the area of gambling and
  narcotics the police, from their experience, would be in a position to
  evaluate the need to dispense with the announcement, and if a need
  existed, the judicial officer could direct that no announcement of
  identity and purpose need be given."'
   The second exception justifying entry without notice-"probable
cause to believe that such notice is likely to endanger the life or safety of
the officer or another person"-recognizes that the law cannot require
police officers to announce their identity and purpose if doing so would
unreasonably expose them to gunfire or other forms of assault from
within the premises to be entered. As Senator Tydings, Chairman of the
Senate District Committee, stated during the Senate debate on the D.C.
Crime Bill:
     I do not believe that anyone would suggest a police officer must
  absorb a bullet in his stomach as the price for announcing his
  presence at the door of a known dangerous criminal, perhaps
  fleeing from a murder or robbery.'

     Shoot-outs, violence, and death occur more frequently when the
  police signal their presence and purpose, and give a dangerous
  suspect time to get his weapon-not when the police take the
  dangerous suspect by surprise before he can arm himself to shoot.
  We need only reflect on the recent, publicized case of the local
  bank robber, Billy Austin Bryant. Bryant killed two FBI agents at
  the door of his wife's apartment after the agents identified
  themselves as police-and clearly not because he mistook them for
  burglars. Again, I am convinced that on balance the consequence
  of limited no-knocking is less violence, not more. And I am equally
  confident that the police, especially with increased court
  supervision, will continue to utilize their law enforcement tools so
                                                        45
  as not to endanger human lives, including their own.1
  The third exception justifying entry without notice-"probable cause
to believe that such notice is likely to enable the party to be arrested to

  143. H.R. REP. No. 907, 91st Cong., 2d Sess. 108-9 (1970).
  144. 116 CONG. REC. S11571 (daily ed. July 16, 1970).
  145. 116 CONG. REC. S 11853 (daily ed. July 21, 1970).
284             THE AMERICAN UNIVERSITY LAW REVIEW                [Vol. 20

escape"--dispels the doubt raised by Hair v. United States"' that such
an exception exists. In Hair, police officers were called to investigate a
housebreaking, robbery and rape. During the course of this
investigation, the victim made a photographic identification of Hair and
Burroughs, and a tentative identification of Blakeney. The police
immediately went to Hair's house to place him under arrest. As they
approached the house, about seven or eight feet from the door, Blakeney
opened the door, began to step out, and then turned and ran up the stairs.
The officers, without giving notice of their identity or purpose,
immediately entered and gave chase. Blakeney dived through a window
and escaped. He was subsequently apprehended and identified by the
victim. While passing through Hair's house, the officers observed several
items which matched the description of the stolen goods. Based upon this
observation, they obtained a search warrant and seized these items which
were introduced in evidence at Hair's trial. On appeal, the United States
Court of Appeals for the District of Columbia reversed Hair's
conviction on the ground that the failure by the police to announce their
identity and purpose before entering Hair's house tainted the evidence
seized and therefore it was improper to admit those items in evidence at
Hair's trial. By specifically setting out the exception justifying entry
without notice based on likelihood of escape, the new law precludes in
the future the possibility of evidence being suppressed in circumstances
 such as those in Hair.
   The fourth exception justifying entry without notice-"probable
 cause to believe that such notice would be a useless gesture"-is intended
 to codify existing case law. As the House Statement of Managers
 accompanying the Conference Report points out:
      Useless gesture is a legal term of art and codifies the exception to
  the announcement rule recognized by the Supreme Court and the
   United States Court of Appeals for the District of Columbia
  Circuit in Miller v. UnitedStates, 357 U.S. 301 (1958) and Bosley
   v. UnitedStates, No. 21,513, D.C. Cir., decided April 9, 1970, and
  includes the exception where the officer's identity and purpose is
   already known. 1 "
   The most common application of the "useless gesture" exception is to
situations where the officer's identity and purpose is already known. In
Bosley v. United States,""the United States Court of Appeals for the

      146. 289 F.2d 894 (D.C. Cir. 1961).
      147. H.R. REP. No. 1303,91st Cong., 2d Sess. 237 (1970).
      148. 426 F.2d 1257 (D.C. Cir. 1970).
1970-71]                CRIMINAL LAW AND PROCEDURE

District of Columbia set out another "useless gesture" situation where
announcement of identity and purpose was not required:
     We think application of the "useless gesture" exception to the
   case at bar is appropriate. We note that the officers originally
  attempted to comply with section 3109 by knocking on the partially
   open door. They received no response and apparently knocked
  again. Then, noting that appellant was asleep on the couch they
  entered the apartment through the open door, awakened appellant
  and announced their purpose. Since appellant had not been
  awakened by their knocking the officers could reasonably have
  concluded that further knocking or verbal announcement would be
  a "useless gesture". Indeed, it appears that at this point the most
  practical means available to the officers to carry out their duty of
  giving notice of their authority and purpose was to enter the
  apartment and awaken the appellant. We note that the officers,
  after they had awakened the appellant, did immediately state their
  purpose (and impliedly their authority) by informing the appellant
  of the charges levelled against him. To have done so before entry
  would have been a useless gesture as the person the statute is
  designed to protect, the occupant, was asleep and the indications to
  the officers were that he was not capable of hearing them as he had
  not been awakened by their knocking. We conclude that the entry
  through the open door in these circumstances did not violate section
  3109.111
A further example of the application of the "useless gesture" exception
is where a police officer, armed with a search warrant for an abandoned
or parked car, approaches the vehicle to execute the warrant and
observes that there are no persons inside. To require the officer in this
situation to stand on a public street and announce to an empty car his
identity and purpose would be silly and the "useless gesture" exception
permits him to dispense with the notice requirement.
   Subsection (d) of 23 D.C. Code § 591 establishes a new, specific
criminal offense for anyone who destroys or attempts to destroy evidence
subject to seizure after the police have announced their identity and
purpose or after entry where such notice was unnecessary. The penalty
provided is a maximum of $5,000 or 5 years imprisonment or both. This
provision was enacted "in a further effort to combat the serious problem
of destroying evidence before the police are able to seize it."150

  149. Id. at 1262-3.
  150. H.R. REP. No. 907, 91st Cong., 2d Sess. 108 (1970).
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    Subsection (e) of 23 D.C. Code § 591 defines the terms "break and
 enter" and "breaking and entering," for purposes of the general rule
.requiring notice prior to breaking and entering (see subsection (b), to
 include "any use of physical force or violence" or "other unauthorized
 entry." The phrase "other unauthorized entry" is intended to
 encompass the definition the Supreme Court in Sabbath v. United
 States'51 gave the word "break" under the federal statute, 18
 U.S.C. § 3109.152 The phrase "other unauthorized entry" would
 include opening a locked door by use of a passkey or opening a closed
 but unlocked door. The phrase obviously would not include entry by
 invitation.
    Specifically excluded from the definition of "breaking and entering"
 and therefore the requirement of prior announcement are entries
 obtained by trick or stratagem. Entry by stratagem has been an accepted
 principle of law since 1772 when Lord Mansfield in King v. Backhouse5
 held that entry by fraud to serve civil process was lawful. The prevailing
 federal law follows this precedent and permits law enforcement officers
 executing search warrants or making arrests to gain admittance to
 premises by trick or stratagem and therefore without prior notice of
 identity and purpose.'14 For example, in Leahy v. United States," a
 revenue agent, who had a valid warrant for defendant's arrest, gained
 admittance to defendant's premises by stating that he was an agent from
 the county assessor's office. Once inside the premises, the revenue agent
 arrested the defendant. The Ninth Circuit Court of Appeals held that
 this method of entry was proper even though announcement of identity
 and purpose was not given under the federal statute.' This ruling was
 followed by the Fifth Circuit Court of Appeals in Smith v. United
 States,5 7 where the arresting officers, posing as telephone repairmen,
 were admitted by the defendant.
   151.   391 U.S. 585 (1968).
   152.   H.R. REP. No. 907, 91st Cong., 2d Sess. 108 (1970).
   153.   98 Eng. Rep. 533 (K.B. 1772).
   154.   Gouled v. UnitedStates, 255 U.S. 298 (1921) is not to the contrary. Gouled held
that an illegal search of premises without a search warrant is not made lawful because the
entry into the premises was made peacefully (the searcher was a friend of Gouled) rather
than by force. The Supreme Court said that since the searcher's purpose in being in
Gouled's house was unlawful, it made no difference how he obtained admittance.
Nowhere in the Gouled opinion did the Supreme Court mention the rule requiring notice
of identity or purpose either under the common law or under the federal statute.
   155. 272 F.2d 487 (9th Cir. 1959), cert. denied, 363 U.S. 810 (1960), dismissed under
Rule 60, 364 U.S. 945 (1961).
   156. 18 U.S.C. § 3109 (1964).
   157. 357 F.2d 486, 488 n.1 (5th Cir. 1966).
1970-71I]               CRIMINAL LAW AND PROCEDURE


   The Supreme Court in Sabbath v. United States, recognized the rule
allowing entry by stratagem expressed in Leahy and Smith, but did not
specifically pass on the rule.1 58 Congress, in an effort to provide a
comprehensive provision, codified the prevailing federal rule permitting
entry by trick or stratagem. While an entry by trick or stratagem is
designed to serve the same purpose as a breaking and entering without
prior notice, that is, to avoid a shoot-out or prevent the destruction of
evidence, it involves less trauma to the occupant of the premises since it
is the suspect who opens the door. Such an alternative to the so-called
"no-knock" type of entry is clearly reasonable and is permitted under
                                  15
the new law as a matter of course. 1

PRETRIAL RELEASE AND DETENTION
   New Subchapter II of Chapter 13 of Title 23 of the D.C. Code, 23
D.C. Code §§ 1321-1332, replaces the Bail Reform Act of 1966 for the
                       160
District of Columbia. It retains the basic format of the Bail Reform
Act and nearly all of its provisions. It does, however, make a number of
significant additions and changes which are discussed below.
   1. Authorization to consider danger to the community in setting
conditions ofpretrial release. Under the Bail Reform Act of 1966, the
only criterion for setting conditions of pretrial release for defendants
charged with noncapital crimes is whether the conditions will reasonably
assure appearance as required."' The defendant's potential danger to the
community cannot be considered by the judicial officer in setting
                     1 2
conditions of release.
   Subchapter II changes the Bail Reform Act in this regard by
specifically authorizing the judicial officer to consider danger to any
other person or the community as well as likelihood of flight in setting
conditions of pretrial release.'6 It provides for the pretrial release of
persons charged with noncapital crimes unless the judicial officer
determines that certain conditions are necessary to assure either
appearance as required or the safety of any other person or the
community. The four specific conditions which judicial officers may
impose are the same as those in the Bail Reform Act in substance and
   158. 391 U.S. 585,590 n.7 (1968).
   159. To the extent that Gatewood v. United States, 209 F.2d 789 (D.C. Cir. 1953) is
inconsistent with 23 D.C. CODE § 591 (e), it is no longer applicable.
   160. 23 D.C. CODE § 1332 (eff. Feb. 1, 1971).
   161. 18 U.S.C. § 3146(a) (Supp. II, 1967).
   162. United States v. Leathers, 412 F.2d 169 (D.C. Cir. 1969).
   163. 23 D.C. CODE § 1321(a) (eff. Feb. 1, 1971).
             THE AMERICAN UNIVERSITY LA W REVIEW                               [Vol, 20

 order of preference: (1) third party custody; (2) restrictions on travel,
association, and place of abode; (3) percentage cash deposit or other
security; and (4) bail bond with surety.'6' 23 D.C. Code § 1321(a)(5)
authorizes the court to set any other condition, including a condition
that the defendant return to custody after specified hours of release for
employment or other limitedpurposes.The words in italics are not in the
Bail Reform Act but were added to Subchapter II to make clear that a
judicial officer may retain a person in full custody except for limited
periods of release for such purposes as employment." 5 "Subsection
(a)(5) within the requirements of reasonableness and due process, is
intended to give the judicial officer wide latitude in imposing conditions
he deems necessary to assure appearance and to protect the safety of any
other person or the community."'
   Subchapter II does, however, prohibit a judicial officer from setting
any financial condition to assure the safety of any person or the
community.6 7 This specific statutory prohibition strengthens what is the
clear implication of the structure and legislative history of the Bail
Reform Act. 8 The purpose of this prohibition is twofold. First,
Subchapter II provides judicial officers with ample power to control,
reduce, and even eliminate the potential danger of a defendant between
arrest and trial: they have broad discretion as to the conditions of release
they may impose and can detain outright a defendant charged with
certain offenses. 69 Second, financial conditions of release are not
permitted to assure the safety of the community because it is doubtful
whether such conditions can assure the safety of the community. 70
 Financial conditions, however, can assure court appearance and,
therefore, may be imposed for that purpose, even if their imposition
 results in the failure of a defendant to secure pretrial release.,
   Subsection (b) of 23 D.C. Code § 1321 lists the factors which the
judicial officer may take into account in setting conditions of release
under subsection (a). These factors are the same as those contained in the
 Bail Reform Act except for the addition of "past conduct" of the
   164. Id.
   165. H.R. REP. No. 907, 91st Cong., 2d Sess. 179 (1970).
   166. Id.
   167. 23 D.C. CODE § 1321(a) (eff. Feb. 1, 1971).
   168. See United States v. Leathers, 412 F.2d 169 (D.C. Cir. 1969).
   169. H.R. REP. No. 907, 91st Cong., 2d Sess. 179-80 (1970).
   170. See People v. Melville, 308 N.Y.S.2d 671, 678 (Crim. Ct. N.Y.C. 1970).
   171. H.R. REP. No. 907, 91st Cong., 2d Sess. 180 (1970); Allen v. United States, 386
F.2d 634 (D.C. Cir. 1967).
1970-71]                CRIMINAL LAW AND PROCEDURE

accused. "Past conduct" was added because it is so clearly relevant to
dangerousness and also flight. It includes not only such matters as prior
arrests not resulting in convictions and juvenile records, but also any
conduct which relates to the accused's likelihood of danger to the
community or the likelihood of flight, conduct which need not have
resulted in arrest or any other formal contact with law enforcement
            17
authorities. 1
  Subsections (c), (d), (e), (f), and (g) of 23 D.C. Code § 1321 conform
nearly word for word with the comparable subsections of the Bail
Reform Act, 18 U.S.C. § 3146 (c), (d), (e), (f), and (g).
   Subsection (h) provides that "to the extent practicable" persons not
released pursuant to Subchapter II shall be confined in facilities separate
from convicted persons. The facilities may be different buildings in the
same complex or even separate parts of the same building. The purpose
of the provision is to avoid commingling so far as possible, recognizing
the practical impossibility within the criminal justice system of a
complete separation."'1
  Subsection (h) also guarantees those not released reasonable
opportunity to consult with counsel and permits their temporary release
in the custody of the United States Marshall or other appropriate
person, such as their attorney, for good cause shown, e.g., looking for
defense witnesses.174
  2. Authorization to detain certain non-capitaldefendants on grounds
of dangerousness.The Bail Reform Act of 1966 permits the detention of
capital defendants prior to trial on grounds of dangerousness or flight               5
                                                                                      7
                                                                 17 6
and of non-capital defendants on grounds of flight.                     Subchapter II
broadens the law to authorize pretrial detention of certain limited
                                                                                 7
                                                                                 7
categories of non-capital defendants on grounds of dangerousness.
   172. H.R. REP. No. 907, 91st Cong., 2d Sess. 180 (1970) (" 'Past conduct' is, how-
ever, not limited to prior involvement with the law."); Hearings Before the Sub-
committee on Constitutional Rights of the Senate Comm. on the Judiciary, 91st
Cong., 2d Sess. 322-3 (1970) (hereinafter referred to as Hearings). This latter source
relates to testimony on S. 2600, introduced in the 91st Congress, legislation which is
nearly identical to Subchapter II and which contains the same additional factor, "past
conduct", which a judicial officer can consider.
   173. See Hearings, supra note 172, at 323; H.R. REP. No. 907, 91st Cong., 2d Sess.
180 (1970). For example, persons convicted and serving their sentence but whose
presence at court is required to dispose of a collateral attack on their conviction may
temporarily have to be maintained in the same facility as those detained prior to trial.
   174. H.R. REP. No. 907, 91st Cong., 2d Sess. 180 (1970).
   175. 18 U.S.C. § 3148 (Supp. II, 1967).
   176. United States v. Melville, 306 F. Supp. 124, 127 (S.D. N.Y. 1969).
   177. 23 D.C. CODE §§ 1322, 1323 (eff. Feb. 1, 1971).
290           THE AMERICAN UNIVERSITY LAW REVIEW                                [Vol. 20

  The non-capital defendants who are eligible for detention must fall
into one of the following classes:
   (A) Be charged with a "dangerous crime" as defined in 23 D.C.
Code § 1331(3), with the prosecutor certifying by motion to the court
that based on the person's pattern of behavior, consisting of his past and
present conduct and other factors set out in 23 D.C. Code § 1321(b), no
condition or combination of conditions will reasonably assure the safety
of the community.1         78
                                The term "dangerous crime" includes the
following felonies: robbery by force or threat of force, 7 ' burglary of
business or sleeping premises, arson of business or sleeping premises,
forcible rape or assault with intent to commit forcible rape, and
unlawful sale or distribution of a narcotic, depressant, or stimulant drug
as defined by Act of Congress.'
   Subchapter II does not specify the precise nature of the past conduct
which together with the dangerous crime charged constitutes a pattern of
behavior sufficient to warrant detention. As previously pointed out in
discussing the meaning of "past conduct"                           under 23 D.C.
Code § 1321(b), the term is not limited to prior convictions or arrests.
It may, for example, consist only of an accused's alleged involvement in
serious crimes, an involvement discovered following his arrest for the
dangerous crime. Nor need the past conduct by itself support a finding
of dangerousness. The more serious the present offense charged, the less
extensive the past conduct need be. The decision, in short, is left to the
sound judgment of the judicial officer, based on the particular facts of
each case, with the limitation that no person can be detained under 23
  178. Id. § 1322(a)(1).
   179. During the Senate Debates, Senator Tydings stated that "taking property by
stealth" or sudden snatching" is not a "dangerous crime" of robbery. 116 CoNG. REc.
S 11854 (daily ed. July 21, 1970). He was correct with respect to the pickpocket, one who
takes property by stealth but is chargeable with robbery under 22 D.C. CODE § 2901
(1967) (See 116 CONG. REC. H2079 (daily ed. March 19, 1970). Taking property by
sudden snatching, however, is a taking by force and therefore, does constitute a
"dangerous crime".
   180. 23 D.C. CODE § 1331(3) (eff. Feb. 1, 1971). It was not intended that marijuana
be included as a narcotic, depressant or stimulant drug under this section. 116 CONG.
REC. H2080 (daily ed. March 19, 1970); Hearings,supra note 172, at 324; H.R. REP.
No. 907, 91st Cong., 2d Sess., 1970, the printed report of the House Committee on the
District of Columbia for the District of Columbia Court Reform and Criminal
Procedure Act of 1970, by oversight omitted the report of the Committee on 23 D.C.
CODE §§ 1326-1331 (eff. Feb. 1, 1971). These sections of the report were inserted in the
Congressional Record during the debate on the legislation. They may be found at 116
CONG. REc. H2078-80 (daily ed. March 19, 1970).
1970-71]                CRIMINAL LAW AND PROCEDURE


D.C. Code § 1322 solely on the basis of the nature of the offense with
which he is charged.'
   181. As explained in H.R. REP. No. 1303, 91st Cong., 2d Sess. 240 (1970) (House
Statement of Managers accompanying Conference Report): The conference substitute
does not delineate the precise past conduct which may justify pretrial detention of a
person charged only with a dangerous crime. Depending on the facts of the particular
case, detention may be justified when further police investigation establishes that a
defendant charged with a dangerous crime is responsible for other heretofore unsolved
serious crimes. Detention may be justified for a defendant with a prior misdemeanor
record. The decision is left to the sound judgment of the judicial officer, based on the
facts of the particular case, and subject to appellate review.
  Congressman Hogan, one of the House Conferees, further explained the meaning to be
ascribed to "past conduct" when he said during the debatejusi preceding the vote in the
House of Representatives (116 CONG. REC. H6737 (daily ed. July 15, 1970):
       Mr. Speaker, as a sponsor of the omnibus District of Columbia criiie bill and
    several of the separate bills it absorbed, and as one of the House conferees I would
   like to discuss, on behalf of all the House conferees, some specific provisions in the
   bill for purposes of legislative history. These statements should assist the trial
   judges in the new Superior Court and the appellate judges in the expanded District
    of Columbia Court of Appeals in reaching the results intended by Congress as set
    forth in the language of the conference report. These statements represent the solid
   position of the House conferees, all of whom signed the conference report, on the
    intent of the language in several provisions of the bill.
      The conference report requires that a person charged with a dangerous
    crime-forcible rape, robbery, burglary, arson, and unlawful sale of depressant or
   stimulant drugs--can be detained only if the judicial officer finds, on the basis of
   his pattern of behavior, consisting of his past and present conduct, and other
    factors set forth in § 23-1321(b), that no condition or combination of conditions
   of release will reasonably assure the safety of the community. The House bill
   permitted a finding of dangerousness based solely on the nature and circumstances
   of the offense charged; it did not require, as does the conference report, that the
   finding of dangerousness be based at least in part on the past conduct of the
   defendant.
      It is important to understand just what this new provision requires. It does not
   require a prior conviction or even arrest for any offense, felony or misdemeanor,
   on the part of the defendant. As explained in the House report, past conduct need
   not consist of prior involvement with the law. Through testimony and other
   reliable sources of information, a judicial officer may be informed of conduct on
   the part of the defendant, which while dangerous to the community, never resulted
   in his arrest or conviction.
      The past conduct may consist of a number of serious offenses charged to the
   defendant following his arrests on the charge before the court, offenses committed
   prior to his arrest but not solved until after his arrest. Prior arrests, even those
   which did not result in convictions, may be considered. Nor need the past conduct
   by itself support a finding of dangerousness. The more serious the present offense
   charged, the less extensive the defendant's past conduct need be. For example, for
   a defendant charged with shooting a policeman in the course of an armed robbery,
292           THE AMERICAN UNIVERSITY LA W REVIEW                                  [Vol. 20

   (B) The second category of non-capital defendants who can be
detained are those charged with a "crime of violence" as defined in 23
D.C. Code § 1331(4) who are (1) narcotic addicts, (2) have been
convicted of a crime of violence within the past ten years, or (3) are on
pretrial release, probation, parole, or mandatory release for another
crime of violence.1 2 The term "crime of violence" encompasses many
more crimes than does the term "dangerous crime" and includes the
    the evidence of past conduct need be relatively slight. The significant fact is that all
    the facts before the judge-the past conduct of the defendant, the nature and
    circumstances of the offense charged, and all other factors listed in § 23-1321(b)
    when considered together, justify a finding by thejudicial officer that no condition
    of release or combination of conditions of release will reasonably assure the safety
    of the community.
   During the heated Senate debates, Senator Tydings, in defending the pretrial
provisions of the legislation, argued at different times that it was necessary to prove a
prior pattern of dangerous behavior (116 CONG. REc. S 11699 (daily ed. July 17, 1970),
116 CONG. REC. S11853 (daily ed. July 21, 1970)); and that pattern must consist of a
prior criminal record of criminal acts of a serious nature and dangerous nature (116
CONG. REC. S 11854 (daily ed. July 21, 1970). The plain language of the statute itself
refutes the need to show a prior pattern of conduct: what must be established is a pattern
of behavior based on past and present conduct. The alleged need for the past conduct to
be serious criminal conduct is contrary to the House Statement of Managers, to the
requirements as set forth by Congressman Hogan speaking for all House Conferees (116
CONG. REC. H6737 (daily ed. July 15, 1970)), and, most significantly, to the Senate
Statement of Managers which makes no such claim. It should be noted that Senator
Tydings made these and other statements during a bitter, hotly contested floor debate in
which he was the leading proponent of the bill. As the extensive debates show, the bill
was sharply attacked on the grounds that a number of its provisions were
unconstitutional and/or repressive. Throughout the debate, Senator Tydings was
continually attempting to rebut these allegations. One method he employed was to argue
the limited impact of some of the most criticized provisions-one of which was pretrial
detention. See, e.g., 116 CONG. REc. S 11845-56 (daily ed. July 21, 1970). In the heat of
battle, in arguing for his position in order to placate potential opponents, he
understandably may have understated the reach of some of the controversial provisions.
   The Senator's concept of what "past conduct" consists of would also make that term
in this section inconsistent with the very same term specifically added to § 1321(b). If
Senator Tydings were correct that past conduct consists of "a prior criminal record of
criminal acts," there would have been no need to add the term as a factor to be
considered under § 1321(b) since that subsection under the Bail Reform Act already
permitted reference to a record of prior convictions. 18 U.S.C. § 3146(b) (Supp. 1I,
1967). As shown by both the testimony of the sponsors from the Department of Justice
and the Report of the House District of Columbia Commitee, that term was added to
avoid restriction to prior convictions and to permit consideration of any prior conduct,
whether or not it resulted in arrest or conviction. Hearings, supra note 172, at 322-3;
H.R. REP. No. 907,91st Cong., 2d Sess. 180 (1970).
   182. 23 D.C. CODE §§ 1322(a)(2), 1323 (eff. Feb. 1, 1971).
 1970-71]               CRIMINAL LAW AND PROCEDURE


 following felonies: second-degree murder, forcible rape, carnal
 knowledge of a girl under sixteen, taking or attempting indecent liberties
 on a child under sixteen, mayhem, kidnapping, robbery, burglary,
 voluntary manslaughter, extortion or blackmail accompanied by threats
 of violence, arson, assault with intent to commit any offense, assault
 with a dangerous weapon, or an attempt or conspiracy to commit any of
 the above offenses. 1n3
    (C) The third category of persons who can be detained under
 Subchapter II are those charged with any offense who in order to
 obstruct justice threaten, injure, intimidate or attempt to threaten,
 injure, or intimidate any prospective witness or juror.',
    No person who falls into one of these categories may be ordered
 detained without a hearing, except that if either the government or
 defendant is granted a request for a continuance following the motion of
 the government for a hearing, the defendant may be detained pending the
 hearing."" A defendant can secure a continuance of the hearing for not
 more than five days unless there are extenuating circumstances. The
government can secure a continuance only for good cause and for not
 more than three days.'
                                                                           8 7
   At the hearing the defendant is entitled to be represented by counsel.
The information presented to the judicial officer by either the
government or the defense may be "by proffer or otherwise,"',-, and
 "need not conform to the rules pertaining to the admissibility of
evidence in a court of law."'8 9 Thus, the information upon which the
judicial officer makes the findings required by Subchapter II, discussed
below, need not be sworn testimony. It has been the custom under the
Bail Reform Act of 1966 in the District of Columbia, pursuant to its
provision that information presented to the court need not conform to
the rules pertaining to the admissibility of evidence in a court of law, that
judicial officers almost always base their bail determinations (which now
frequently result in detention) upon information proffered by the
prosecutor, defense counsel, and the District of Columbia Bail Agency.
Only rarely does a judge require sworn testimony. The words "or
otherwise" in the clause "by proffer or otherwise" were included to

   183. Id. § 1331(4).
   184. Id. § 1322(a)(3); Carbo v. United States, 82 S. Ct. 662 (1962); United States
v. Gilbert, 425 F.2d 490 (D.C. Cir. 1969).
   185. 23 D.C. CODE § 1322(c)(3) (eff. Feb. 1, 1971).
   186. Id.
   187. Id. § 1322(c)(4).
   188. Id. §§ 1322(b)(2)(c),(c)(4).
   189. Id. § 1322(c)(5); 18 U.S.C. § 3146(f).
              THE AMERICAN UNIVERSITY LA W REVIEW                                   [Vol. 20

permit a judge to require sworn testimony if he considered it necessary.
Normally, however, the presentation of evidence by both sides would be
            9
by proffer. 10
  The defendant is given the right to testify and to call witnesses in his
own behalf. He may not, however, call witnesses who would ordinarily
be expected to testify for the government at trial unless he can proffer in
reasonable detail how their testimony will support his position. The
pretrial detention hearing "is not designed to afford defendants a
discovery device. Discovery is to be obtained pursuant to the rules of
court."' 91
   If the defendant testifies, his testimony is not admissible on the
affirmative issue of guilt in any other proceeding;' however, his
testimony is admissible in proceedings under 23 D.C. Code § 1327
(penalties for failure to appear), 23 D.C. Code § 1329 (penalties for
offenses committed during release), and 23 D.C. Code § 1329 (penalties
for violation of conditions of release).9 3 His testimony is also admissible
in perjury proceedings and as impeachment in any subsequent
proceedings.'94 As the House Committee Report explains: "A defendant
clearly has a right to testify in his own behalf; he does not have a right to
                                   5
lie under oath with impunity.'1
   No accused may be ordered detained under 23 D.C. Code §§ 1322
and 1323 unless at the conclusion of the hearing the judicial officer
makes the following findings and issues an order of detention
accompanied by written findings of fact and the reasons for its entry:
      1. that there is clear and convincing evidence that the accused
   falls into one of the categories eligible for detention;"'
      2. for a person charged with a dangerous crime, based on his
  190. H.R. REP. No. 907,91st Cong., 2d Sess. 182-3 (1970).
  191. Id.
  192. Cf., Simmons v. United States, 390 U.S. 377 (1968).
  193. 23 D.C. CODE § 1322 (c)(6) (eff. Feb. 1, 1971).
  194. See Woody v. United States, 379 F.2d 130 (D.C. Cir. 1967); Bailey v. United
States, 389 F.2d 305 (D.C. Cir. 1967).
  195. H.R. REP. No. 907, 91st Cong., 2d Sess. 184 (1970).
  196. A person whom the government seeks to detain under § 1323 on the grounds
that he is a narcotics addict charged with a "crime of violence" is to be maintained in
custody for a period not to exceed three days under medical supervision to determine if he
is an addict. At the hearing, the judicial officer must find that he is a narcotics addict by
clear and convincing evidence. 23 D.C. CODE § 1323 (eff. Feb. 1, 1971). The place of
detention is a correctional facility, not a hospital. 115 CONG. REc. S7911 (daily ed. July
11, 1970) (Explanatory Statement of Department of Justice on Proposed Bail Reform
Act Amendments-S. 2600).
 1970-71]               CRIMINAL LAW AND PROCEDURE

   pattern of behavior consisting of his past and present conduct and
   the factors listed in 23 D.C. Code § 1321(b), and for all other
   persons, based on the factors listed in 23 D.C. Code § 1321(b),
   that there is no condition or combination of conditions of release
   which will reasonably assure the safety of any other person or the
   community; and
     3. that except for a person allegedly obstructing or trying to
   obstruct justice, there is a substantial probability that the person
   committed the offense with which he is charged.
   To establish the dangerousness of an accused, it is not necessary to
establish that he will, if released, commit the kind of offense with which
 he is charged or any other "dangerous crime" or "crime of violence."
The offenses enumerated in the bill are for the purpose of establishing
eligibility for purposes of pretrial detention. In assessing danger, the
judicial officer may consider any criminal conduct which reasonably
 may be considered dangerous to any other person or the community."n
 Minor property offenses or offenses relating to political dissent which do
 not involve danger to other persons or the community would not by
themselves constitute danger under this section."'
   The finding of substantial probability that the person committed the
offense requires more proof than mere probable cause needed for a
preliminary hearing or indictment. It is also less than the proof needed at
trial to convict-beyond a reasonable doubt. It has been explained as
being similar to the evidence used to secure a civil injunction-likelihood
                           99
of success on the merits.
   The standard provided by the statute is commission of the offense, 20°
not guilt. This standard of commission of the offense is the same as that
provided for probable cause preliminary hearing determinations by
Magistrates and Commissioners under Rule 5 of the Federal Rules of
Criminal Procedure. The effect of the plain meaning of the language of
this standard is to foreclose consideration at detention hearings of claims
  197. Hearings,supra note 172, at 312.
  198. See Statement of Senator Tydings, 116 CONG. REC. S 11854 (daily ed., July 21,
1970). Elsewhere in this statement, Senator Tydings implies that the anticipated danger
must be death or serious bodily injury. The statute, however, contains no such
requirement.
   199. E.g., W.E. Bassett Co. v. Revlon, Inc., 354 F.2d 868, 872 (2d Cir. 1966); H.R.
REP. No. 907, 91st Cong-, 2d Sess. 182 (1970); 116 CONG. REC. S 11854 (daily ed. July
21, 1970).
  200. See H.R. REP. No. 907, 91st Cong. 2d Sess. 182 (1970); Hearings,supra note
172, at 278; Anti-Crime Proposals,Hearingsbefore Subcommittee No. 3 of the House
Committee on the Districtof Columbia (Supp.), 9 Ist Cong., 2d Sess. 14 (1970).
296           THE AMERICAN UNIVERSITY LA W REVIEW                                 [Vol. 20


of illegally obtained evidence, claims which also are not cognizable at
                       2
preliminary hearings. 11
   There are two principal reasons for not permitting consideration of
claims of illegally seized evidence at both detention and preliminary
hearings. First, consideration of these issues would unreasonably delay
these hearings. Suppression motions frequently require extensive
preparation, both legal and factual, and are, accordingly, usually heard
after indictment, whereas the detention hearing will usually take place
immediately or at most a few days after arrest. Second, as pointed out at
the beginning of this section, this Subchapter applies in both the new
Superior Court and the U.S. District Court. The Magistrates, who are
authorized to rule on detention hearings in the District Court,0 2 do not 2 3
pass upon the complex issues involved in motions to suppress.
Although the Superior Court judges do rule on motions to suppress,
permitting them to consider these issues at detention hearings would
have the undesirable result of differing applications of the same statute
in the two court systems.
   If, however, in due course evidence is held inadmissible as invalidly
obtained after a detention hearing in which the defendant is ordered
detained, the judicial officer can reconsider his detention order under 23
D.C. Code § 1322(d)(2)(b). This subsection authorizes a person
ordered detained to be considered for release under 23 D.C. Code § 1321
"whenever a judicial officer finds that a subsequent event has eliminated
the basis for such detention." A ruling of illegally obtained evidence
would be such a subsequent event and the judicial officer reconsidering
the detention order at a subsequent hearing would not be permitted to
consider the suppressed evidence in determining whether the defendant
                         24
committed the offense. 0
   A defendant detained under 23 D.C. Code §§ 1322 and 1323 is to
have his case placed on an expedited calendar and, consistent with the
sound administration of justice, his trial shall be given priority.2 5 If his
trial has not begun after he has been detained sixty days, he is to be
  201. Giordenello v. United States, 357 U.S. 480, 484 (1958). Senator Tydings'
statement that such matters can be raised at detention hearings since the test of "ultimate
conviction" is simply inconsistent with the plain meaning of the statutory language. See
also, A nti-Crime Proposals, Hearings before Subcommittee No. 3 of the House
Committee on the Districtof Columbia (Supp.), 91st Cong., 2d Sess. 13 (1970).
  202. 23 D.C. CoDE § 1331(1) (eff. Feb. 1, 1971).
  203. See 28 U.S.C. § 636(b)(2) (Supp. V, 1970); Giordenello v. United States, 357
U.S. 480,484 (1958).
  204. H.R. REP. No. 907,91st Cong., 2d Sess. 184-5 (1970).
  205. 23 D.C. CODE § 1322(d)(1) (eff. Feb. 1, 1971).
  1970-71]                CRIMINAL LAW AND PROCEDURE


  treated in accordance with § 1321 .2° A person so treated cannot be
  detained for another sixty days under § 1322 or § 1323, even if the
 judicial officer continues to find that no condition or combination of
  conditions of release will reasonably assure the safety of any other
                              7
  person or the community .
     This does not mean, however, that the defendant is necessarily to be
  released outright on his own personal recognizance. The judicial officer
  may, in view of the plain language of 23 D.C. Code § 1322(d)(2), set
  any condition or combination of conditions permitted by 23 D.C.
 Code § 1321 as though the defendant were appearing before him for the
  first time. While some kind of release would usually be expected, even if
 it were only partial release from custody for purposes of employment, it
 is not required that the accused be released. For example, if in his
 discretion the judicial officer concludes that a bail bond with surety is
 necessary to assure appearance, he can impose such a condition of
 release even if the defendant is unable to secure his release because of his
 inability to comply with the condition.
     The detention of a person under 23 D.C. Code §§ 1322 and 1323 may
 continue longer than sixty days if the trial is in progress on the sixtieth
 day or the trial has been delayed at the request of the defendant. 2 The
 defendant will not be held accountable for a delay of trial resulting from
 his filing of timely motions other than motions for continuance. 2 9 His
                                                                      0

 detention is to be extended, however, if the trial is delayed by motions
                   21
                    0
 not timely filed.
     Based on the plain meaning of the language of 23 D.C.
 Code § 1322(d)(2)(A), any request by the defendant for a continuance
 of the trial date beyond the sixtieth day of his retention, however
 reasonable (other than those caused by delay from timely motions),
 would result in his continued detention. 2 The justification for this view
                                           11


   206. Id. § 1322(d)(2).
   207. See Hearings, supra note 172, at 274-5, 319-22; Statement of Senator Tydings,
 116 CONG. REC. S11855 (daily ed. July 21, 1970).
   208. 23 D.C. CODE § 1322(d)(2)(A) (eff. Feb. 1, 1971).
   209. Id.; H.R. REP. No. 1303, 91st Cong., 2d Sess. 240 (1970).
   210. Statement of Congressman Hogan speaking on behalf of all the House conferees,
116 CONG. REc. H6737 (daily ed. July 15, 1970): "If a detained defendant files motions
after the time allowed by court rule or by the judge and this delays his trial, then such
delay is to be considered at his request."
   211. See also, Statement of Attorney General John Mitchell, A nti-Crime Proposals
HearingsBefore Subcommittee No. 3 of the House Comm. on the Districtof Columbia
(Supp.), 91st Cong., 2d Sess. 14 (1970), in which the Attorney General stated that
pretrial detention for a non-capital defendant on grounds of dangerousness is limited to
298           THE AMERICAN UNIVERSITY LAW REVIEW                                [Vol. 20

is that the statute gives both the government and the detained defendant
sixty days in which to prepare their cases for trial. Sixty days was
selected as the shortest time in which both sides in a significant
proportion of cases involving serious common-law felonies, could
prepare and exercise their rights in a busy urban court."' Any delay by
the government beyond the sixty days, no matter how reasonable,
automatically terminates a defendant's detention under 23 D.C.
Code §§ 1322 and 1323 and permits him to be treated as any other non-
capital defendant under § 1321. Similarly, any delay caused by the
defendant beyond the sixty days, other than those expressly permitted by
the statute, should result in his continued detention, since the safety of
society should not be jeopardized by release of a dangerous defendant
because of delay attributable solely to him.
   3. Right of Review and Appeal. 23 D.C. Code § 1324 provides the
same review and appeal rights for defendants not released at all or
detained in partial custody as the Bail Reform Act. It extends these same
rights to non-capital defendants detained under 23 D.C. Code §§ 1322
and 1323 and to capital defendants detained under § 1325(a)."' The
latter constitutes a change from the Bail Reform Act which specifically
made the review provision of 18 U.S.C. § 3147 inapplicable to detained
capital defendants.2" ' In another departure from the Bail Reform
Act, § 1324 grants to the government rights of review and appeal
similar to those granted defendants. Thus when a judicial officer orders a
person released with or without setting conditions of release or denies a
motion for pretrial detention, the government can seek review by the
court having original jurisdiction over the offense charged. If the court
having original jurisdiction releases a person with or without setting
conditions of release or denies a motion for pretrial detention, either on
review or as a matter of first impression, the government can appeal.,,
   4. Pretrial Detention of Defendants Charged With Capital Crimes.
Since the Judiciary Act of 1789218 and continuing through the Bail
Reform Act of 1966, Congress has by statute provided different
standards for the pretrial release of defendants charged with capital and
sixty days unless "he is delaying his trial". For a different view, however, see Hearings,
supra note 172, at 318-9. The defendant would, of course, receive credit toward the
service of any sentence imposed for all days spent in custody, whether or not limited to
sixty. 18 U.S.C. § 3568 (1948).
   212. H. R. REP. No. 907, 91st Cong., 2d Sess. 184 (1970).
   213. 23 D.C. CODE §§ 1324(a),(b) (eff. Feb. 1, 1971).
   214. 18 U.S.C. § 3148 (1948).
   215. 23 D.C. CODE § 1324(d) (eff. Feb. 1, 1971).
   216. Act of Sept. 24, 1789, ch.20, § 533, 1 Stat.73,91.
 1970-71]                 CRIMINAL LAW AND PROCEDURE

non-capital crimes. Subchapter II maintains the distinction. It
authorizes the same pretrial detention of capital defendants on grounds
of likelihood of flight or danger to the community as the Bail Reform
Act. 217 Although under 23 D.C..Code § 1325(a), the-burden is on the
judicial officer to find that a capital defendant is likely to flee or pose a
danger, the legislative history presumes that a judicial officer will
routinely make such a finding, particularly for any defendant charged
                  21
with felony-murder.        1

   Following the traditional distinction between capital and non-capital
defendants maintained by the Congress, the specific procedures and
findings mandated for pretrial detention of non-capital defendants on
grounds of dangerousness are not applicable to capital defendants who
are detained on grounds of dangerousness; instead, as the legislative
history makes clear, the procedures to be followed are those which were
followed under 18 U.S.C. § 3148.211 The specific procedures, findings,
and limitations on the pretrial detention of non-capital defendants on
grounds of dangerousness were included in Subchapter II not only to
rebut any possible claim that such detention violated the due process
clause, but far more importantly, to increase the political saleability of
this extraordinarily controversial issue. 22 The latter purpose was
especially true of the sixty-day time limitation, a limitation imposed
notwithstanding the obvious fact that the trials of many non-capital
defendants whose pretrial release will unreasonably endanger the safety
of the community cannot possibly commence within sixty days. Thus,
the sixty day limitation applicable under the statute of non-capital
defendants detained on grounds of dangerousness is not applicable to
capital defendants or, for that matter, to defendants not released under
23 D.C. Code § 1321.221

   217. 23 D.C. CODE § 1325(a) (eff. Feb. 1, 1971).
   218. H.R. REP. No. 907, 9 1st Cong., 2d Sess. 185 (1970).
   219. Id.
   220. Indeed, the inclusion of the many procedural protections caused at least one
Congressman (Wiggins of California), a member of the House Judiciary Committee and
a former well-known criminal defense attorney, to question the wisdom of this pretrial
detention provision, not on constitutional grounds, but on grounds of policy-that the
excessive procedural protections accorded the accused are more "than the Constitution
commands and more than our judicial system can digest." 116 CONG. REc. H 1974
(daily ed. March 19, 1970).
  221. 116 CONG. REc. H6737 (daily ed. July 15, 1970) (Statement of Congressman
Hogan speaking 6n behalf of all the House conferees). The only limitation upon the
detention of all defendants not detained under §§ 1322 and 1323 is the constitutional
right to speedy trial under which one of the factors in determining whether the defendant
has been prejudiced by the"delay is whether he has been confined pretrial as a result of the
300           THE AMERICAN UNIVERSITY LAW REVIEW                                  [Vol. 20

   5. Miscellaneous Changes. 23 D.C. Code § 1327 provides penalties
for willful failure to appear as required, i.e., bail jumping. It contains a
number of substantive changes from the comparable provision of the
Bail Reform Act.22 To reduce the difficulty of proving willfulness, this
section provides that the failure to appear after notice of the appearance
date shall be prima facie evidence that the failure to appear was willful.",
A person may be convicted under this section even if he has not received
actual notice of the appearance date if reasonable efforts were made to
notify him and by his own actions, such as moving without leaving a
forwarding address or notifying the court or Bail Agency, the person
frustrates receipt of the notice. The requirement of reasonable effort to
notify the person would be met by certified mail to his last known place
of residence.22
   The Bail Reform Act, 18 U.S.C. § 3146(c), and 23 D.C.
Code § 1321(c) require the judicial officer to warn the accused upon
release of the penalties for failure to appear. 23 D.C. Code § 1327(b)
provides that failure to be warned of the applicable penalties does not
prohibit prosecution for bail jumping but shall only be a factor in
determining willfulness. The purpose of this provision is to offset two
district court decisions outside the District of Columbia which have held
these warnings essential to a bail-jumping prosecution.22
   The maximum penalties provided for in this section are the same as
those in the Bail Reform Act: five years for bail jumping on a felony;
one year for a misdemeanor. Unlike the Bail Reform Act, however, this
section imposes minimum penalties of one year for a felony and ninety
days for a misdemeanor.221 All such sentences must be consecutive to any
                 77
other sentence
   To deter persons from committing crimes while on pretrial release, 23
pending charges. Hedgepeth v. United States, 364 F.2d 952 (D.C. Cir. 1966). In this
regard, the courts usually require a delay of more than one year to raise even a claim with
primafacie merit. Harling v. United States, 401 F.2d 392, 395 (D.C. Cir. 1968), cert.
denied, 393 U.S. 1068 (1969).
  222. 18 U.S.C. § 3150 (Supp. II, 1967).
  223. 23 D.C. CODE § 1327(b) (eff. Feb. 1, 1971); 116 CONG. REC. H2079 (daily ed.
March 19, 1970) (House Committee Report).
  224. 23 D.C. CODE § 1327(c) (eff. Feb. 1, 1971); 116 CONG. REC. H2079 (daily ed.
March 19, 1970) (House Committee Report).
  225. 116 CONG. REC. H2079 (daily ed. March 19, 1970) (House Committee Report);
United States v. Campbell, Cr. 68-72 (D.C. Oreg., Mar. 10, 1969); United States v.
Graves, Cr.R. 1410 (D.C. Nev., Aug. 11, 1969).
  226. 23 D.C. CODE § 1327(c) (eff. Feb. 1, 1971).
  227. Id. § 1327(d).
 1970-71]                  CRIMINAL LAW AND PROCEDURE

 D.C. Code § 1328 provides added penalties for such offenses. 221 The
 Bail Reform Act contains no such comparable penalties. Felonies
 committed while on pretrial release require an additional consecutive
 sentence of not less than one year nor more than five years;
 misdemeanors require an additional consecutive sentence of not less than
 ninety days nor more than one year. 9 Warning of these penalties is not a
prerequisite to application of this section. 0
    T1 e Bail Reform Act fails to provide realistic sanctions for violations
 of conditions of release. 23 D.C. Code § 1329 attempts to remedy this
 defect by providing two specific sanctions. 231 The first is outright
 revocation of release and an order of detention, the length and other
conditions of detention being the same as provided in 23 D.C.
Code § .1322(c) and (d). The government initiates proceedings to revoke
release by motion. Release cannot be revoked and detention ordered
unless the judicial officer finds after a hearing (1) that there is clear and
convincing evidence of a violation of a condition of release and (2) that
there is no condition or combination of conditions of release, based on
the factors set forth in § 1321(b), which will reasonably assure that the
defendant will not flee or pose a danger to any other person or the
community. 2 At the hearing there need not be a showing of substantial
probability that the defendant committed the offense for which he was
originally released since revocation is based solely on a betrayal of trust
placed in the defendant by the courtYm
   The second sanction provided by 23 D.C. Code § 1329 is a clear and
specific contempt section to supplement the vague contempt provision
contained in 23 D.C. Code § 1330, which is a reenactment of 18
U.S.C. § 3151.234 Under § 1329(c), a defendant may be held in
contempt if, at an expedited hearing before ajudge sitting without ajury,
it is established that he intentionally violated a condition of release. The
penalty provided is not more than six months imprisonment or a fine not
in excess of$1,000, or both.
   Section 1330 provides that nothing in Subchapter II shall interfere or
prevent a court from exercising its power to punish for contempt. The
purpose of this section is to make clear that the contempt power

  228. 116 CONG.   REC.   H2079 (daily ed. March 19, 1970) (House Committee Report).
  229.   23 D.C. CODE, §§ 1328(a)(1), (2), (c) (eff. Feb. 1, 1971).
  230.   Id. §§ 1328(a),(b).
  231.   116 CONG. REC. H2079 (daily ed. March 19, 1970) (House Committee Report).
  232.   23 D.C. CODE § 1329(b) (eff. Feb. 1, 1971).
  233.   116 CONG. REC. H2079 (daily ed. March 19, 1970) (House Committee Report).
  234.   Id.
302          THE AMERICAN UNIVERSITY LAW REVIEW                               [
                                                                              [Vol. 20


provided in § 1329(b) does not repeal, revoke, or displace any other
contempt power vested in the courts.235

Depositions
   The new law, 23 D.C. Code § 108, provides that if a material witness
for either the prosecution or the defendant resides more than twenty-five
miles from the court, is sick or infirm, or is about to leave the District of
Columbia, and the prosecution or defendant applies in writing to the
court for a commission to examine such witness, the court may grant the
commission and enter an order stating what length of time notice shall
be given to the other party before the examination.o The court may
order that the examination be conducted orally, in which case the other
party may cross-examine the deponent. If the examination is upon
written interrogatories, the other party may file cross-interrogatories.
Copies of the deposition shall be made available to all of the parties upon
completion of the examination.
                                                                  7
   While both the prior law in the District of Columbia Code2 and the
Federal Rules of Criminal Procedure2    8 authorized the court to permit a
criminal defendant to take the deposition of certain prospective
witnesses, no such right was afforded the prosecution. Because of this,
some strong government cases were lost. This occurred most frequently
in the following type of case: A midwestern family touring the District of
Columbia would park their car on the Mall and leave a camera in the
back seat while they visited the National Gallery of Art. During their
absence, an individual would enter the vehicle, steal the camera, and be
arrested shortly thereafter by a police officer who observed the theft. The
person arrested would be brought to the Court of General Sessions and
charged with larceny. He would invariably ask for a jury trial which
would put the case off for some three to six weeks, during which time he
hoped that the complainant would leave town. When the case came up
for trial, the complainant was usually back home in the Midwest and the
government was without proof that the stolen camera was owned by the
complainant and the defendant did not have permission to take it. Since
the complainant was beyond the 25 mile area in which he could be
subpoenaed in a misdemeanor case,29 the prosecution was unable to
proceed.
  235. Id.
  236. A similar provision was recently enacted in Pub. L. No. 91-452, § 601 (Oct. 15,
1970); Organized Crime Control Act of 1970 (18 U.S.C. § 3503 (eff. Oct. 15, 1970)).
  237. 23 D.C.CODE § 111 (1967).
 238. FED. R. CRIM. P. 15.
 239. 11 D.C. CODE § 982(b) (1967); 11 D.C. CODE § 942 (eff. Feb. 1, 1971),
1970-71]                  CRIMINAL LAW AND PROCEDURE

   To prevent the continuation of such an undesirable result in this
situation and others, 240 Congress, following sound public policy,
extended to the prosecution under the new law the same rights as
defendants have to take depositions in order to preserve important
testimony for trial.
   While not specifically provided for in the new law, the admissibility of
the deposition will be governed by the general principles of unavailability
of witnesses controlling the admissibility of prior trial and preliminary
hearing testimony. 4 ' Admitting in evidence at trial the deposition of an
unavailable prosecution witness does not violate the Confrontation
Clause of the sixth amendment of the United States Constitution
provided defendant and his counsel had the opportunity at the deposition
proceeding for full and complete cross-examination. Recently, in a
closely related matter, the Supreme Court stated that the constitutional
right to confrontation is not violated by admitting into evidence at trial
the preliminary hearing testimony of an unavailable witness where full
cross-examination of the witness was available to the defense at the
                       2
preliminary hearing:u
   If Porter [the witness] had died or was otherwise unavailable, the
   Confrontation Clause would not have been violated by admitting
   his testimony given at the preliminary hearing-the right of cross-
   examination then afforded provides substantial compliance with
   the purposes behind the confrontation requirement, as long as the
   declarant's inability to give live testimony is in no way the fault of
             243
   the State.
Since under the new District of Columbia deposition law the defendant
and his counsel will have an opportunity for full and complete cross-
examination of the prosecution's witness at the deposition proceeding,
                                                      44
the defendant's right of confrontation is satisfied. 2 It is true, of course,
that the trier of fact will not be able to observe the confrontation between
  240. For example, prior to the new Act, the prosecution could not take the deposition
of a critically injured victim of crime.
  241. See Barber v. Page, 390 U.S. 719 (1968); Pub. L. No. 91-452, § 601 (Oct. 15,
1970), 18 U.S.C. §'3503(f) (eff. Oct. 15, 1970). Obviously, the deposition can also be
used to impeach the testimony of the deponent at trial in the same way as any prior
inconsistent statement, In addition, in the absence of a conflicting statute (14 D.C.
CODE § 102 (1967)), it would be consitutional to introduce the deposition as affirmative
evidence, if the deponent testifies at trial contrary to his deposition. California v. Green,
399 U.S. 149 (1970).
  242. California v. Green, 399 U.S. 149 (1970).
  243. Id. at 166.
304          THE AMERICAN UNIVERSITY LA W REVIEW                               [Vol. 20

the deponent-witness and the defendant, but this is indistinguishable
from the situation where the preliminary hearing testimony of an
unavailable prosecution witness is presented to the trier of fact who is
unable to observe the confrontation between the preliminary hearing
witness and the defendant.

                         II.   TRIAL PROVISIONS

NEW SUBSTANTIVE OFFENSES

                                 A.    Conspiracy
   Conspiracies to commit a District of Columbia Code offense were
previously prosecuted as a violation of the federal conspiracy law,2 "
since a local District of Columbia conspiracy statute did not exist. To
alleviate this absurd situation of prosecuting essentially local
conspiracies under the federal conspiracy statute and to comply with a
basic principle of the court reform law, to wit, local offenses should be
prosecuted in the local courts, the new law provides a comprehensive
District of Columbia conspiracy law.
   Under the new law, it is a criminal offense if two or more persons
conspire either to commit a criminal offense or to defraud the District of
Columbia, provided an overt act is committed by one of the conspirators
                                                       2
pursuant to the conspiracy and to effect its purpose. 6 The maximum
penalty permitted under this provision is a fine of $10,000 or
imprisonment for five years or both, except that if the object of the
conspiracy is a criminal offense punishable by less than five years, the
maximum penalty shall not exceed the maximum provided for that
offense.
   Obviously, this conspiracy law is applicable to conspiracies contrived
in the District of Columbia to engage in criminal conduct in the District
of Columbia which would be an offense under an Act of Congress
applicable exclusively to the District of Columbia (i.e., D.C. Code
offense). But what of situations where there is an agreement in the
District of Columbia to commit a crime in another jurisdiction or an
  244. Id.; Pointer v. Texas, 380 U.S. 407 (1964); United States v. Allen, 409 F.2d 611
(10th Cir. 1969).
  245. 18 U.S.C. § 371 (1964). A District of Columbia Code violation has been held to
be an offense against the United States and thus within the ambit of 18 U.S.C. § 371
(1964). United States v. Manuel, 126 F. Supp. 618 (D.D.C. 1955).
  246. Pub. L. No. 91-358, § 202 (July 29, 1970).
 1970-71]              CRIMINAL LAW AND PROCEDURE

 agreement in another jurisdiction to commit a crime in the District of
Columbia? The new conspiracy law resolves these questions. 2     47

    Under the new law, if a conspiracy is contrived within the District of
Columbia to engage in conduct in another jurisdiction which would be
 an offense under an Act of Congress applicable exclusively to the
 District of Columbia if committed in the District, a violation of the
conspiracy law is committed.if (1) such conduct would be a crime under
the laws of the other jurisdiction if performed therein, or (2) such
conduct would constitute an offense under an Act of Congress applicable
exclusively to the District of Columbia even if performed outside the
District.
    Under this provision, if abortion was legal in the District it would not
be criminal conspiracy to agree with another in the District of Columbia
to commit an abortion in a jurisdiction where it was illegal. Once it is
established that the contemplated conduct would be an offense under an
Act of Congress applicable exclusively to the District of Columbia if
committed in the District, the next question is whether the conduct
would be a crime under the laws of the other jurisdiction. If it would be,
a criminal conspiracy exists. For example, an agreement made in the
District, where operating gambling enterprises is criminal, to operate a
gambling establishment in New York, where such conduct is also
criminal, is prosecutable as a criminal conspiracy in the District.
However, if the purpose of the conspiracy was to operate a gambling
establishment in Nevada, where such conduct is not criminal, the
agreement would not be prosecutable as a criminal conspiracy in the
District. However, even if the contemplated conduct would not
constitute a crime in the other jurisdiction, a criminal conspiracy may
still exist if the conduct contemplated would constitute a violation of an
Act of Congress applicable exclusively to the District of Columbia even
if performed outside the District.
   Under the new law, if a conspiracy is contrived in another jurisdiction
to engage in conduct in the District which would constitute an offense
under an Act of Congress applicable exclusively to the District of
Columbia if performed within the District, a criminal conspiracy is
committed if an overt act pursuant to the conspiracy is committed
within the District. It is immaterial that the conduct contemplated would
not constitute a crime under the laws of the other jurisdiction. For
example, an agreement made in Nevada to operate a gambling
establishment in the District (accompanied by an overt act in the District
 247. The model for the resolution of these questions is the recently enacted New
York Law. N.Y. PENAL LAW, § 105.25 (McKinney 1968).
             THE AMERICAN UNIVERSITY LA W REVIEW                               [Vol. 20


such as transporting into the District gaming tables) is prosecutable in
the District as a conspiracy despite the fact that the object conduct does
not constitute a crime in Nevada and could not be prosecuted in Nevada
if it occurred therein.
B. Molotov Cocktails and Other Explosive Devices
  To meet the ever-increasing danger of bombings, Congress provided
in the new law a comprehensive section proscribing certain conduct
relating to the possession and use of molotov cocktails and other
explosive devices. 28 The provision is divided into three parts with a
penalty structure applicable to all three parts. It provides: (1) no person
shall manufacture, transfer, use, possess, or transport a "molotov
            49
cocktail: ' 2 (2) no person shall manufacture, transfer, use, possess, or
transport any device designed to explode or produce uncontained
combustion, with the intent that the same may be used unlawfully
against any person or property; and (3) no person shall, during a state of
emergency,25 0 manufacture, transfer, use, possess, or transport any
device designed to explode or produce uncontained combustion, except
at his residence or place of business. Whoever violates any of these
provisions shall be punishable by a term of imprisonment of one to five
years for the first offense, three to fifteen years for the second offense,
and five years to life for the third or subsequent offense. The Federal
Youth Corrections Act 251 shall not apply to a third or subsequent
offense.
   The first provision completely outlaws "molotov cocktails" in the
District of Columbia. The mere possession of a "molotov cocktail,"
even in one's home, is a violation of law. Like sawed-off shotguns, there
is no legitimate use for a "molotov cocktail" and it is designated
contraband. The classic example of a modern day "molotov cocktail" is
a coke bottle filled with gasoline with a cloth rag stuffed partly in the
bottle as a wick. It is "a breakable container containing flammable
  248. Pub. L. No. 91-358, § 209 (July 29, 1970).
  249. The term "molotov cocktail" is defined in the new explosive device provision as:
"(1) a breakable container containing a flammable liquid and having a wick or a similar
device capable of being ignited, or (2) any other device designed to explode or produce
uncontained combustion upon impact; but such term does not include a device lawfully
and commercially manufactured primarily for the purpose of illumination, construction
work, or other lawful purpose."
  250. A state of emergency can be declared by the Commissioner pursuant to law. The
provision also covers a situation in the District concerning which the President has
invoked any provision of Chapter 15 (Insurrection) of Title 10, United States Code.
  251. 18 U.S.C. §§ 5005-5026 (1964).
1970-71I]                CRIMINAL LAW AND PROCEDURE

liquid and having a wick or a similar device capable of being ignited." It
should be pointed out that a kerosene lantern would also meet this
definition. However, the definition of "molotov cocktail" specifically
excludes devices "lawfully and commercially manufactured primarily
for the purpose of illumination, construction work, or other lawful
purpose." Thus, a lawfully and commercially made kerosene lantern
would not be a "mblotov cocktail."
   The second provision proscribes, inter alia, the possession or use of
any explosive device with the intent to use it unlawfully against any
person or property. Under this provision, it would be unlawful to throw
a stick of dynamite into a store. It would also be unlawful to possess
dynamite with the avowed purpose of blowing up the store.
   The third provision prohibits the manufacture, transfer, use or
possession of any explosive device during a state of emergency except at
the person's residence or place of business. If during a riot, the
Commissioner declares a state of emergency, it would be unlawful for
someone to have in his possession outside his residence or place of
business a stick of dynamite. During a state of emergency, it would be
lawful for a construction company to possess or use dynamite at its
construction site ("place of business"). It would be unlawful, however,
for dynamite to be transported to the construction site during this period
of emergency.
C. Armed Crimes of Violence
   Prior law permitted the sentencing judge to impose an additional
penalty for persons convicted of committing crimes of violence while
         2
armed. 1 Simply stated, any person convicted of committing a "crime of
        ' ' 3 "when armed with or having readily available any pistol or
violence"
other firearm, or other dangerous or deadly weapon, including but not
limited to.    .   .blackjack, billy, metallic or other false knuckles" might,
in the discretion of the sentencing judge, receive an additional term of
imprisonment "up to life;" for a subsequent such offense, the judge was
not permitted to suspend sentence or grant probation.2- This provision
  252. Act of July 8, 1932, as amended, 22 D.C. CODE § 320 (Supp. II, 1969).
  253. Act of July 8, 1932, as amended, 22 D.C. CODE § 3201 (Supp. II, 1969), defines
"crime of violence" as "any of the following crimes, or an attempt to commit any of the
same, namely: Murder, manslaughter, rape, mayhem, maliciously disfiguring another,
abduction, kidnaping, burglary, robbery, housebreaking, larceny, any assault with intent
to kill, commit rape, or robbery, assault with a dangerous weapon, or assault with intent
to commit any offense punishable by imprisonment in the penitentiary."
  254. Act of July 8, 1932, as amended,22 D.C. CODE § 3202 (Supp. II, 1969).
 308               THE AMERICAN UNIVERSITY LAW REVIEW                         [Vol. 20

was enacted in 1967 to deter the increasing number of armed crimes in
the District of Columbia by providing the sentencing judge with
discretion to impose life sentences for those who assaulted or frightened
their victims with a weapon.2 5
   One question that arose under this provision was whether its definition
of weapon included an unrecovered gun that could not be shown to be
real, operable or loaded. The answer to this question was important
because a large number of the robbery cases in the District of Columbia
involve defendants who are arrested at least several days subsequent to
the crime on an arrest warrant obtained after a photographic
identification is made. More often than not, in these cases, the gun used
is not recovered and the Government is unable to show that the gun used
was real, operable or loaded.
   It was argued, on the one hand, that an unrecovered gun was not
included in the prior provision because of an applicable related provision
                                    '
excluding "toy or antique pistols."' 5 Since the Government could not
show that the unrecovered gun was not a "toy or antique pistol," it
followed that the unrecovered gun did not fall within the armed crime of
violence section. On the other hand, it was argued that the unrecovered
gun was an "other dangerous or deadly weapon" since it could be used
to "pistol whip" a victim, much like a blackjack or billy, which were
specifically enumerated in the statute.27
   The new law resolved this issue once and for all by including the
phrase "or imitation thereof" after the phrase "any pistol or other
firearm" and by making the provision excluding "toy or antique
pistols" not applicable to the armed crimes of violence section.2 s Not
  255. When the provision has been used, it appears to have resulted in some success.
See testimony of Associate Deputy Attorney General Donald E. Santarelli on November
4, 1969 before the House District of Columbia Committee:
      Immediately after the imposition of several life sentences for armed robberies a
   significant reduction occurred immediately thereafter. It was the opinion of the
   police department that this, the deterrent effect of the publicity, which was front
   page, attendant to the imposition of life sentences for armed robbers, had a
   substantial deterrent effect immediately thereafter. Anti-Crime Proposals,
   Hearingsbefore Subcommittees Nos. I and3 of the House Comm. on the District
    of Columbia, (Part II), 91st Cong., 1st Sess., 51 (1969).
   256. Act of July 8, 1932, 22 D.C. CODE § 3213 (1967).
   257. The House Committee Report states that this interpretation was intended by
Congress when it enacted the "armed crimes of violence" section in 1967. "It was the
intent of Congress in the 1967 amendment to include in the phrase 'other dangerous or
deadly weapon' those unrecovered guns which could have been used to pistol whip a
victim. .   . ."   H.R. REP. No. 907,91st Cong., 2d Sess. 68 (1970).
  258. 22 D.C.      CODE   § 3202 (eff. Feb. 1, 1971).
1970-71]                CRIMINAL LAW AND PROCEDURE

only does this new language make it clear that the unrecovered gun is
included in the provision, but it also makes the armed crimes of violence
section applicable to recovered blank or toy pistols, antique rifles or
inoperable shotguns. The reason for including these items is made clear
by the House Committee Report:
     To the unknowing victim of a rape or robbery, it is of little or no
   consequence that subsequent to the crime it is determined that the
   weapon used was an antique firearm, blank pistol, toy rifle, or
   other imitation. At the time of the rape or robbery, the victim is
  justifiably put in fear of being shot or beaten with whatever weapon
   or imitation thereof is employed by his assailant. That fear is not
   diminished by what is'subsequently learned.359
D.   Breaking and Entering Vending Machines andSimilarDevices
   Because of the increased number ofbreakings into devices designed to
receive money, Congress determined that it was necessary to include in
the new law a specific felony provision prohibiting this type of conduct.
The House Committee Report makes this clear:
     The loss from professionals who pilfer all types of coin-operated
   machines is enormous. National figures, which are steadily rising,
   now amount to one-half percent of the gross sales from such
   machines. Being professionals, they take just enough so that if they
   are caught, they will come under a petty larceny charge. However,
   many of these thieves are well-organized and some work this racket
   nationally even with keymaking machines in their vehicles, and
   sometimes posing as vending company employees.110
   The new law simply provides that whoever breaks open, opens or
enters, without right, any parking meter, coin telephone, vending
machine dispensing goods or services, money changer, or any other
device designed to receive currency, with intent to carry away any part of
such device or anything contained therein, shall be sentenced to a term of
imprisonment of not more than three years, or to a fine of not more than
$3,000, or both. " '
  259. H.R. REP. No. 907, 91st Cong., 2d Sess. 68 (1970).
  260. Id. at 66.
  261. Pub. L. No. 91-358, § 203 (July 29, 1970).
              THE AMERICAN UNIVERSITY LA W REVIEW                                  [Vol. 20


           ForciblyResisting Unlawful Arrest Prohibited
                                                                  2 2
   The new Act prohibits using force to resist an unlawful arrest. 1 It
does so by making clear that the use of force in resisting an unlawful
arrest is not a defense to an assault on a police officer charge.
Heretofore, the law in the District of Columbia was unclear as to
whether a person was permitted to use force to resist an unlawful arrest.
Most judges, lawyers and citizens in the District of Columbia operated
under the theory that the early English doctrine, which permitted a
person-to use force to resist an unlawful arrest, prevailed in the
District.2 3 However, some judges in the District were unable to swallow
the outmoded common-law doctrine and adopted the modern rule
prohibiting the use of force to resist any arrest including an unlawful
arrest. The United States Court of Appeals for the District of Columbia
never squarely decided the issue, even though in the last few years the
                                 2 4
issue was presented to that Court. 1
   To resolve the uncertainty and to put to rest the antiquated English
doctrine in the District of Columbia, Congress adopted the modern rule
   262. 22 D.C. CODE § 505(a) (eff. Feb. 1, 1971).
   263. The three cases most frequently cited in the District of Columbia for the
proposition that a person may use force to resist an unlawful arrest were: Abrams v.
United States, 237 F.2d 42 (1956), cert. denied, 352 US. 1018 (1957); Curtis v. United
States, 222 A.2d 840 (D.C. App. 1966); and John Bad Elk v. United States, 177 U.S.
529 (1900). In all three of these cases there is dictum, based on the early English rule, to
the effect that a person may use force to resist an unlawful arrest. However, none of these
cases squarely holds that a person may use force to resist an unlawful arrest. In Abrams,
the court held that the District Court's refusal to give the requested instruction that a
person may use force to resist an unlawful arrest was not reversible error under the
circumstances of the case. In Curtis,the District of Columbia Court of Appeals held that
a person who verbally protests an illegal arrest cannot be found guilty of disorderly
conduct for the loud and boisterous verbal protest. In John Bad Elk, the Supreme
Court held that the killing of a police officer may be reduced froni murder to
manslaughter where the perpetrator, whose intent was to resist an unlawful arrest, lacked
the requisite malice aforethought.
  264. E.g., Montgomery v. United States, No. 21,423, (D.C. Cir. June 11, 1968),
(unreportedopinion) where the Court of Appeals avoided the issue by ruling as a matter
of law that the arrest was lawful. The trial judge had refused to give an instruction that a
person had the right to use force to resist an unlawful arrest. During a bench conference,
U.S. District Judge George Hart stated:
       (T)he idea that every time a person is arrested, he can determine in his own mind
   whether there was probable cause for his arrest, a matter that the courts in this
   country, including the Supreme Court, spend months and months and months
    arguing about in given cases . . . and use all force necessary to resist the arrest is
    • . . perfectly absurd, and I don't believe it is the law. United States v.
    Montgomery, Cr. No. 1191-66, Tr. 50.
 1970-71]                CRIMINAL LAW AND PROCEDURE

for the District of Columbia by providing in the new Act that "it is
neither justifiable nor excusable cause for a person to use force to resist
an arrest when such arrest is made by an individual he has reason to
believe is a law enforcement officer, whether or not such arrest is
lawful. 26 - This provision was added to the existing assault on a police
officer statute.2 66 It makes clear that the use of force to resist even an
unlawful arrest is not a defense to the crime of assaulting a police officer.
However, it "in no way changes the right of a citizen to defend himself
                                       67
                                       2
against an officer's excessive force."
  The overriding policy consideration for enacting this provision was
"to encourage tranquility in the community by requiring that disputes as
to the legality of an arrest be decided in the courts and not in the
streets."' 6 The new provision, although placed in the assault on the
police officer statute, does away with the common-law rule for all
purposes. For example, in a murder case involving the death of a police
officer, the use of force to resist an unlawful arrest would not be an
available defense.
  The new provision follows a recent trend in the law to prohibit the use
of force to resist an unlawful arrest. Both the Uniform Arrest Act29 and
                        0
the Model Penal Code27 have adopted this approach. In addition, a
number of states, including New York, California, and Illinois, have
enacted legislation along this same line.27' And one state, New Jersey, did
away with the antiquated English rule and adopted the modern version
                  2
by case decision.
  265. 22 D.C. CODE § 505(a) (eff. Feb. 1, 1971).
  266. Section 432 of Revised Statues, as amended, 22 D.C. CODE § 505(a) (1967).
  267. H.R. REP. No. 907,91st Cong., 2d Sess. 70 (1970).
  268. Id.
  269. Section 5 of the UNIFORM ARREST AcT provides:
   If a person has reasonable ground to believe that he is being arrested by a peace
   officer, it is his duty to refrain from using force or any weapon in resisting arrest
   regardless of whether or not there is a legal basis for the arrest. (Warner, The
   Uniform Arrest Act, 28 VA. L. REv. 315, 345 (1942)).
  270. Section 3.04 of the MODEL PENAL CODE (Official Draft 1962) provides, in
pertinent part:
   (a) The use of force is not justifiable under this Section: (i) To resist an arrest
   which the actor knows is being made by a peace officer, although the arrest is
   unlawful. . ..
  271. CAL. PENAL CODE § 834(a) (Supp. 1967); 11 DEL. CODE ANN. § 1905 (1953);
ILL. STAT. ANN. ch. 38, § 7-7 (1964); N.H. REv. STAT. ANN. § 594:5 (1955); N.Y.
PENAL LAW § 35.27 (McKinney 1968); R.I. GEN. LAWS ANN. § 12-7-10 (1956).
  272. State v. Koonce, 214 A.2d 428,435-36 (NJ. Super. 1965):
      * . . (A)n appropriate accommodation of society's interests in securing the
   right of individual liberty, maintenance of law enforcement, and prevention of
312            THE AMERICAN UNIVERSITY LAW REVIEW                                     [Vol. '20


  A number of valid reasons existed for discarding the early English
doctrine and adopting the modern rule. The House Committee Report
described the four most important:
     [1] In today's urbanized society, there is no valid reason for a
  rule allowing the use of force to resist an unlawful arrest. One
  arrested and accused of a crime is taken immediately, after being
  processed by the police, before a commissioner or judge. Federal
  Rules of Criminal Procedure 5(a). The person arrested is assured of
  a hearing with the advice of counsel. Fed. R. Crim. P. 5(b) and (c).
  Moreover, the person arrested may vindicate himself civilly in a
  suit under the Civil Rights Act of 1871 (42 U.S.C. § 1983). E.g.,
  Monroe v. Pape, 365 U.S. 167 (1961); Basista v. Weir, 340 F.2d 74
  (3d Cir. 1965).
     Today, a person arrested need not fear the hardships that one
  might have endured during early English times when most arrests
  were made by private citizens. Then, long imprisonment could
  follow an illegal arrest because "bail for felonies was usually
  unattainable, and . . . years might pass before the royal judges
  arrived for a jail delivery. Further, conditions in the English jails
  were then such that a prisoner had an excellent chance of dying of
  disease [or physical torture] before trial." Warner, The Uniform
  Arrest Act, 28 Va. L. Rev. 315, 330 (1942). Self-help was essential
  for the individual in days of yore because the processes of law were
  inadequate to protect him. Today, of course, this is no longer true.
     [2] Today, because of modern firearms and other dangerous
  weapons, the possibility of serious injury to both the arresting

  death or serious injury not only of the participants in an arrest fracas but of
  innocent third'persons, precludes tolerance of any formulation which validates an
  arrestee's resistance of a police officer with force merely because the arrest is
  ultimately adjudged to have been illegal. Force begets force, and escalation into
  bloodshed is a frequent probability. The right or wrong of an arrest is often a
  matter of Lose debate as to which even lawyers and judges may differ. In this era
  of constantly expanding legal protections of the rights of the accused in criminal
  proceedings, one deeming himself illegally arrested can reasonably be asked to
  submit peaceably to arrest by a police officer, and to take recourse in his legal
  remedies for regaining his liberty and defending the ensuring prosecution against
  him. At the same time, police officers attempting in good faith, although
  mistakenly, to perform their duties in effecting an arrest should be relieved of the
  threat of physical harm at the hands of the arrestee.
      The concept of self-help is in decline. It is anti-social in an urbanized society. It
  is potentially dangerous to all involved. It is no longer necessary because of the
  legal remedies available.
1970-71]'            CRIMINAL LAW AND PROCEDURE

  police officer and the individual who resists is great. "Today, every
  peace officer is armed with a pistol and has orders not to desist
  from making an arrest though there is forceful resistance."
  Warner, supra,28 Va. L. Rev. at 330. Accordingly, the resistor will
  most likely not succeed in his attempt to escape and may suffer
  serious injury as a result. Successful resistance is usually only
  possible by shooting the officer or inflicting serious bodily harm on
  him. Usually, the result of an individual forcibly resisting arrest
  will be his failure to escape arrest and injuries-to both him and the
  police officer.
     [3] To permit the individual to forcibly resist an arrest on the
  basis of his judgment as to its legality is to permit him to act in
  folly. The individual is in no position to make an intelligent
  decision as to the legality of the arrest for "he cannot know what
  information, correct or incorrect, the officers may be acting upon."
  United States v. Di Re, 332 U.S. 581, 594 (1947). In those rare
  instances where resistance is actually being offered in the belief that
  the arrest is illegal, the resister is invariably only acting on the
  belief that he is innocent of the crime. Of course, the innocent are
  the least likely to forcibly resist an arrest and thereby risk making
  things worse. It is the guilty, who fear legal arrest and subsequent
  conviction and incarceration, that will most often forcibly resist
  arrest and attempt to escape. But it is the difficult question of
  probable cause, not innocence or guilt, which determines the
  legality of an arrest....
     [4] Society's interest in protecting the entire community from the
  threat of physical harm also demands that an individual peacefully
  submits to an arrest, regardless of its legality. It is the street
  altercation between the police officer who is attempting to perform
  his duties and the individual who forcibly resists that, in our urban
  society, has increasingly become the springboard to general rioting.
  The Report of the National Advisory Commission on Civil
   Disorders is sprinkled with examples of riots being ignited by
  individuals forcibly resisting arrest and assaulting police officers.
  See Report of the National Advisory Commission on Civil
   Disorders, Ch. 1 ("Profiles of Disorder"), 1968. "The former rule
  [of allowing forcible resistance to illegal arrests] . . . [has] led to
  riots and violence by fostering a belief on the part of many people
  that they were the sole judges as to whether their arrest was or was
  not proper." People v. Burns, 18 Cal. Rptr. 921, 922 (Super. Ct.
  App. Dept. 1962).
314         THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 20

      The Committee knows.of no valid reason for the antiquated
   doctrine allowing the use of force to resist an illegal arrest. As the
   late Judge Learned Hand stated:
      The idea that you may resist peaceful arrest       . . .   because you
   are in debate about whether it is lawful or not, instead of going to
   the authorities which can determine, .        .   . [is] not a blow for
   liberty, but, on the contrary, a blow for attempted anarchy. 1958
   Proceedings, American Law Institute, p. 254. Cited in United
   States v. Heliczer, 373 F.2d 241, 246 n.3 (2d Cir.), cert. denied,
                          3
   388 U.S. 917 (1967).27
                            Challenge To Jurors
    23 D.C. Code § 105(a) provides that each side is entitled to twenty
 peremptory challenges in capital cases, to ten challenges in other
 felonies, and to three in misdemeanor cases. This is the same as the prior
                                   4
 law in the District of Columbia.27 It differs from the Federal Rules of
 Criminal Procedure which in non capital felony cases give the
government only six peremptory challenges.27   5
    23 D.C. Code § 105(a) also provides that the court may allow
 additional peremptory challenges if there is more than one defendant or
 if a case is prosecuted by both the United States and the District of
 Columbia; it stipulates, however, that in no event shall one side be
 entitled to more peremptory challenges than the other. This represents a
 change from the prior law in the District of Columbia under which
 several defendants are treated as one in the allowance of challenges.276 It
 also differs from the Federal Rules which permit the court to grant
 additional challenges to the defense if there is more than one defendant
but grants no such right to the government and does not require equality
 in the number of challenges? 7
    23 D. C. Code § 105(b) sets out the rules for the selection of alternate
jurors and the number of peremptory challenges allowed. They are the
                                                     8
same as the Federal Rules of Criminal Procedure.27 The former District
 of Columbia law contained no provisions relating to alternate jurors.
Both jurors and alternate jurors may be challenged for cause.?01
  273. H.R. REP. No. 907,91st Cong., 2d Sess. 71-3 (1970).
  274. Act of March 3, 1901, ch. 854, § 918, 31 Stat. 1338 (23 D.C. CODE § 107
(1967)).
  275. FED. R. CRIM. P. 24(b).
  276. Act of March 3, 1901, ch. 854, § 918, 31 Stat. 1338 (23 D.C. CODE § 107
(1967)).
  277. FED. R. CRIM. P. 24(b).
  278. Id. at 24(c).
  279. 23 D.C. CODE § 105(c) (eff. Feb. 1, 1971).
1970-71]                 CRIMINAL LAW AND PROCEDURE


   23 D. C. Code § 105(d) follows prior law in the District of Columbia
by prohibiting the setting aside of a verdict on the ground that cause
existed to challenge a juror before the jury was sworn. The prior law in
the District contained an exception to this general rule which was that
the juror had a disqualifying bias against the defendant which was not
known to or suspected by the defendant or his counsel before the jury
was sworn.323 D.C. Code § 105(d) limits this exception to thegeneral
rule by requiring not only that the bias be unknown to the defendant or
his counsel, but also that the defendant have examined or requested to
examine the prospective jurors about the substance of this bias.

           Impeachment of Witnesses by Proofof PriorConvictions
   The new Act amends the prior statute 1 relating to impeachment of
witnesses by proof of prior convictions. Under the new law, 14 D.C.
Code § 305, as amended, the credibility of any witness who testifies
may be impeached by proof of any felony conviction or by proof of
conviction of any misdemeanor involving dishonesty or false
statement. 212 "[I]f offered as evidence, this impeachment must be
admitted by the court, thereby eliminating the discretion of the court to
limit impeachment or prevent it altogether.' ' 8
   A witness may not be impeached, however, with a conviction which
has been annulled or for which a pardon was granted on the grounds. of
innocence.2" Also, if a witness has received a certificate of rehabilitation
with respect to a conviction and has not been convicted of a subsequent
offense, the conviction cannot be used as impeachment. Thus, if a person
is convicted of offense A and receives a certificate of rehabilitation for it,
he cannot be impeached by offense A if on trial for offense B. But, if
   280. Act of March 3,1901, ch. 854, § 919, 31 Stat. 1338 (23 D.C. CODE § 108
(1967)).
  281. 14 D.C. CODE § 305 (1967).
   282. Pub. L. No. 91-358, § 133 (July 29, 1970). Misdemeanor offenses which involve
dishonesty or false statement include, but are not limited to, the following offenses, or
attempts or assaults with intent to commit the following offenses: any offense involving
fraud or intent to defraud, larcency, robbery, rape, false pretenses, forgery, uttering,
embezzlement, housebreaking or burglary, receiving stolen property, sales of narcotic
and depressant, and stimulant drugs, unauthorized use of a motor vehicle, taking
property without right, procuring, soliciting prostitution, and false report to the police.
H.R. REP. No. 907,91st Cong., 2d Sess. 62 (1970).
   283. H.R. REP. No. 907, 91st Cong., 2d Sess. 163-4 (1970) (the House Committee
Report on the original House-passed bill). The Conference Report adopted the House
amendment to 14 D.C. CODE § 305 (eff. Feb. 1, 1971) without change.
  284. 14 D.C. CODE § 305(b)(2)(A)(i) (eff. Feb. 1, 1971).
              THE AMERICAN UNIVERSITY LA W REVIEW                              [Vol. 20


convicted of offense B and later tried for offense C, he can be impeached
by proof of his conviction for offense A.2 5
                                           1
   A witness may not be impeached by proof of a conviction if more than
ten years have passed since the later of either his release from
confinement imposed for his most recent conviction or the expiration of
his parole, probation, or sentence for his most recent conviction. 21 A
witness may be impeached by proof of a conviction on appeal but the
fact that an appeal is pending may be brought out. This rule for
impeachment provided by the Congress in 14 D.C. Code § 305, as
amended, is essentially the same as that proposed in March, 1969, by the
Advisory Committee on Rules of Evidence to the Committee on Rules of
Practice and Procedure of the Judicial Conference of the United States
as the model rule to be used in all federal district courts and before all
magistrates. It effectuates the following changes in the prior law in the
District of Columbia as it was interpreted by court decisions:
   (1) It eliminates the discretion of the trial judge to limit br prohibit
impeachment on the theory that the prejudice to the defendant outweighs
its probative value, the so-called Luck rule. m The Advisory Committee
and both Houses of Congress rejected this rule as unworkable, as
inconsistent with the practice in the states, and as one which "enables an
accused to appear as a person whose character entitles him to credence,
when the fact is to the contrary. ' 2 °
   (2) The prior law limited impeachment to both felonies and
misdemeanors which related directly to honesty or veracity.2' The new
  285. Id.
  286. Id. § 305(b)(2)(B).
  287. Id. § 305(d).
  288. Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965). The statutory language
in § 14-305 (prior to amendment) upon which the Court of Appeals relied in Luck to
limit or prohibit impeachment was the discretionary phrase that proof of prior
convictions "may be given in evidence. . . ." Section 14-305, as amended, replaces this
discretionary phraseology with the mandatory provision that the impeaching evidence
"shall be admitted if offered . ...
  289. PreliminaryDraft of ProposedRules of Evidence for the UnitedStates District
Courts and Magistrates,Committee on Rules of Practice and Procedure of the Judicial
Conferenc6 of the United States (March, 1969) (hereinafter referred to as Preliminary
Draft),p. 126; S.REP. No. 538, 91st Cong., 1st Sess. 4 (1969); H.R. REP. No. 907, 91st
Cong., 2d Sess. 62-3 (1970).
   290. See Gordon v. United States, 383 F.2d 939 (D.C. Cir. 1967). The Senate adopted
this limitation (S. REP. No. 538, 91st Cong., 1st Sess. 4 (1969)), but it was rejected by
the Conference Report which adopted the Advisory Committee proposal (slightly
modified) as contained in the House provision (H.R. REP. No. 1303, 91st Cong., 2d
Sess. 231 (1970)).
 1970-71]                 CRIMINAL LAW AND PROCEDURE

law allows impeachment by any felony but limits impeachment by
misdemeanors to those involving dishonesty or false statement. As the
Advisory Committee observed injustifying its proposal:
   . . . acts are constifuted major crimes because they entail
   substantial injury to and disregard of the rights of other persons or
   the public. A demonstrated instance of willingness to engage in
   conduct in disregard of accepted patterns is translatable into
   willingness to give false testimony. The limitation of convictions of
   minor crimes to those involving dishonesty or false statement is
   warranted by their relatively insubstantial nature. 21
  (3) 14 D.C. Code § 305, as amended, permits impeachment by any
offense, whether triable or not by jury. Under prior case law,
impeachment had been limited to offenses triable by jury .212

Insanity
   The new Act makes a number of changes concerning the procedures
 applicable to persons in the criminal process considered or determined to
 be mentally ill:
   (1) Under prior law,2 3 it was not clear whether the provisions for
 examinations of persons charged with crime, to determine whether they
 were mentally ill or incompetent to stand trial, applied to juveniles who
 were the subject of motions to waive or transfer them for prosecution as
 adults. The new law specifies that these provisions do apply to such
          2 94
juveniles.
   (2) Under prior law, defendants who were acquitted of criminal
 charges on grounds of insanity and thereafter committed to Saint
 Elizabeth's Hospital2 5 generally sought to modify or terminate their
 commitment by filing a petition for writ of habeas corpus in the United
States District Court on the grounds that they were being illegally
detained by personnel of Saint Elizabeth's Hospital, a federal
institution. The very great majority of those who have filed such
petitions were acquitted by reason of insanity of felony charges in the
District Court. All the court papers and records, therefore, were in the
same courthouse in which the habeas corpus petition was filed.

   291.   PreliminaryDraft, at 125.
   292.   Pinkney v. United States. 363 F.2d 696 (D.C. Cir. 1966).
   293.   Section 927 of the Act of March 3, 1901, as amended, 24 D.C. CODE § 301(a)
(1967).
   294.   24 D.C. CODE § 301 (eff. Feb. 1, 1971).
   295.   See Section 927 of the Act of March 3, 1901, as amended, 24 D.C. CODE § 301
(d) (1967).
318          THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 20

   When jurisdiction for District of Columbia Code felonies is
transferred to the new Superior Court, however, the Court records and
papers will no longer be in the same court. To avoid the procedural
difficulties inherent both in having the habeas corpus procedures held in
 one cootrthouse while the court papers are in another and in having one
court rule on the release sought by a person committed by another court,
the new law provides a statutory remedy which a committed defendant
either must use or show its inadequacy or ineffectiveness before he can
seek habeas corpus relief."' This statutory remedy is'patterned after 28
U.S.C. § 2255, the section by which convicted federal prisoners in
detention must seek collateral relief before they can resort to habeas
corpus.
    Pursuant to its terms, a person in custody or conditionally released
from custody who seeks relief concerning the conditions of his continued
hospitalization may make a motion in the court having jurisdiction to
order his release or grant him other relief. The court having such
jurisdiction is the court in which the person's criminal case was tried, 27
thus assuring that the motion for relief will be heard in the same court
which has the original court records and papers.
   Under this section, "On all issues raised by his motion, the person
                                    9
shall have the burden of proof." 2 s There is no comparable provision in
28 U.S.C. § 2255, probably because it was not considered necessary in
view of the accepted rule that a moving party has the burden of proof, a
rule followed in the decisional law under 28 U.S.C. § 2255 .29The effect
of the inclusion of this specific provision will be, of course, to avoid any
future litigation as to whether in some instances the burden of proof can
be shifted to the custodian. The clear import of this language is that it
cannot.3 0
   Successive motions filed under this section need not be entertained by
a court more than once every six months. Absent such a provision, a
person acquitted on grounds of insanity and thereafter committed could
file a motion for release every month on the grounds that a change in his
mental condition entitles him to release. The effect of this provision is to
  296. 24 D.C. CODE § 301 (eff. Feb. 1, 1971).
  297. Section 927 of the Act of March 3, 1901, as amended, 24 D.C. CoDE § 301(a)
(1967).
  298. Section 927 of the Act of March 3, 1901, as amended, 24 D.C. Con § 301 (a)
(eff. Feb. 1, 1971).
  299. E.g., Smith v. United States, 339 F.2d 519 (8th Cir. 1964); Holmes v. United
States, 323 F. 2d. 430 (7th Cir. 1962), cert. denied, 376 U.S. 933 (1964).
  300. Insofar as Williams v. Robinson, No. 23, 763 (D.C. Cir., June 19, 1970) and
other decisions imply a contrary result, they are no longer applicable.
1970-71]                  CRIMINAL LAW AND PROCEDURE

permit a court to deny such motions summarily and without a hearing
until six months have elapsed since it last entertained such a motion
                   301
under this section.
   In the absence in prior law of any statutory provisions governing the
specific procedures for release of persons committed to mental hospitals
after being acquitted of criminal charges on grounds of insanity, the
United States Court of Appeals applied to them the release procedures
for persons civilly committed under the District of Columbia
Hospitalization of the Mentally Ill Act of 1964, Public Law 88-597.32
The enactment of specific legislation concerning the commitment of
persons acquitted of criminal charges on grounds of insanity and the
hearings and other procedural rights to which they are entitled to obtain
their release from custody obviates the need to rely on the standards
applicable to civilly committed patients, a result made clear by the
House Statement of Managers accompanying the Conference Report:
"The procedures for release in civil commitment cases prescribed by the
District of Columbia Hospitalization of the Mentally Ill Act of 1964 will
not apply to such hearing [the hearing provided for in Section 207(7) of
              11 3
the new Act].
   (3) &(4) The new law provides two other fundamental changes in prior
procedures. First, it makes insanity an affirmative defense which must
be established by a preponderance of the evidence, regardless of whether
the defendant or the court raises the issue.3 Heretofore, once some
   301. 24 D.C. CODE § 301 (eff. Feb. 1, 1971). This is the same period of time adopted
by the United States Court of Appeals for the District of Columbia in Dixon v. Jacobs,
427 F.2d 589, 596-7 (1970). On matters other than change in present mental condition,
that opinion held that the question of whether a hearing is required in less than six
months is governed by the guidelines developed under habeas corpus or equivalent
process. 427 F.2d. at 597 n.22. Section 301 of the new law, however, sets a standard: for
good cause shown, the court in its discretion may hold a hearing.
   302. E.g., Bolton v. Harris, 395 F.2d 642-4 (D.C. Cir. 1968); Dixon v. Jacobs, 427
F.2d 589, 596 (D.C. Cir. 1970). The court has done this notwithstanding the specific
legislative history that the civil commitment statute was not to apply to those committed
by order of a court in a criminal proceeding (H.R. REP. No. 1833, 88th Cong., 2d Sess.
3 (1964)) and the definition in the statute itself of a mentally ill person as excluding those
committed to a hospital by a court in a criminal proceeding, (21 D.C. CODE § 501). See
Rouse v. Cameron, 373 F2d. 451, 462 n.14 (D.C. Cir. 1966) (as amended, 1967),
(Danaher, J. dissenting opinion). The constitutional necessity and wisdom of applying
the statutory commitment and release procedures for civil patients to persons acquitted
of criminal charges on grounds of insanity was seriously questioned recently by Judge
Leventhal concurring in Dixon v. Jacobs, 427 F.2d at 601-3.
   303. H.R. REP. No. 1303, 91st Cong., 2d Sess. 233 (1970).
   304. 24 D.C. CoDE § 301 (eff. Feb. 1, 1971).
320           THE AMERICAN UNIVERSITY LAW REVIEW                                 [Vol. 20

evidence was raised of the defendant's insanity, the burden rested on the
prosecution to prove his sanity beyond a reasonable doubt.35 Second, it
requires the mandatory commitment to a mental hospital of any
defendant who raises the defense of insanity and is acquitted on that
ground. Such a person is to have a hearing after 50 days and a decision
within ten days as to whether his custody is to be continued, a hearing at
which he has the burden of proofP and which is to be held in accordance
with the procedures of the new statutory remedy provided by Congress in
 § 207(7) of Public Law 91-358 .3 This changes prior law which, while
permitting commitment to a hospital for examination purposes
following acquittal by reason of insanity, precluded further commitment
unless the government could establish by the preponderance of the
evidence, in accordance with all the procedures provided in the District
of Columbia Hospitalization of the Mentally Ill Act of 1964, that the
                                                             3 °
person is mentally ill, dangerous, and requires commitment. 1
  The background and reasons for these changes in the law are
interrelated. They are set forth in detail in the House Committee Report
            30
as follows:
      In 1955, Congress enacted legislation requiring the mandatory
   commitment to a mental hospital of any person acquitted of a
   crime on the grounds of insanity. The Committee reports of both
   Houses of Congress contained the identical justification for this
   provision:
         The Committee believes that a mandatory commitment
      statute would add much to the public's peace of mind, and to
      the public safety, without impairing the rights of the accused.
      Where accused has pleaded insanity as a defense to a crime,
      and the jury has found that the defendant was, in fact, insane
      at the time the crime was committed, it is just and reasonable
      in the Committee's opinion that the insanity, once established,
   305. See, e.g., Douglas v. United States, 239 F.2d 52 (D.C. Cir. 1956).
   306. 24 D.C. CODE § 301 (eff. Feb. 1,  1971).
   307. H.R. REP. No. 1303,91st Cong., 2d. Sess. 233 (1970).
   308. Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968).
   309. H.R. REP. No. 907, 91st Cong., 2d Sess. 73-5 (1970). The Senate legislation did
not originally contain these two changes. They were contained in H.R. 16196. The only
change by the Conference in these provisions as enacted by the House in S.2601, as
amended, was to guarantee a hearing and representation by counsel for those
automatically commited within 50 days, and a decision within ten days as to whether
continued custody was necessary. Contrary to the Bolton decision, however, the burden
is on the defendant at this hearing to prove that he is no longer mentally ill. H.R. REP.
No. 1301,91st Cong., 2d. Sess. 232-3 (1970).
1970-71]            CRIMINAL LAW AND PROCEDURE

     should be presumed to continue and that the accused should
     automatically be confined for treatment until it can be shown
     that he has recovered. S. Rep. No. 1170, 84th Cong., 1st Sess.
     13 (1955); H.R. Rep. No. 892, 84th Cong., Ist Sess. 13
     (1955).

   Recognizing the dual purpose of the provision (1) to protect the public
and the defendant and (2) to afford treatment in a hospital for such
a defendant, the U.S. Court of Appeals for the District of Columbia
upheld the constitutionality of this mandatory commitment of a de-
fendant acquitted on grounds of insanity until such time as he was found
recovered by the hospital or he established the fact of this recovery in
court by a petition for writ of habeas corpus. Ragsdale v. Overholser,
281 F.2d 943 (1960); Overholserv. O'Beirne,302 F.2d 852 (1962).
    In 1968, however, the same court, in an opinion by Judge Bazelon,
in effect overruled these prior decisions and nullified the mandatory
commitment which the Supreme Court recognized Congress had pro-
vided for in "plain terms" in its 1955 legislation, a commitment pro-
cedure followed in approximately twelve states (Lynch v. Overholser,
367 U.S. 705, 708 (1962)). It did so by prohibiting commitment of a
defendant acquitted on grounds of insanity unless the government can
prove by a preponderance of the evidence that he is presently mentally
ill. Bolton v. Harris,395 F.2d 642.
    This ruling permits dangerous criminals, particularly psychopaths, to
win acquittals of serious criminal charges on grounds of insanity by
raising a mere reasonable doubt as to their sanity and then to escape
hospital commitment because the government is unable to prove their
insanity following acquittal by a preponderance of the evidence. The
result is a revolving door which, as now Chief Justice Burger explained
in rejecting such an outcome in Overholser v. O'Beirne, supra at 861,
allows defendants "to have it both ways"-to escape both conviction
and commitment to a hospital.
    The Committee considers this result intolerable. It neither protects
the public safety nor provides treatment for a defendant acquitted of a
crime on grounds of insanity.
    The Court in Bolton objected to the fact that under existing
law, a reasonable doubt as to sanity served as a basis for mandatory
hospitalization until recovery. To meet this objection and to protect
the public safety, the Committee has changed existing law to require
that at trial a defendant's insanity be established affirmatively by a
preponderance of the evidence.
              THE AMERICAN UNIVERSITY LA W REVIEW                         [Vol. 20

   Once a defendant's insanity is established by a preponderance of the
evidence and he is acquitted of the charge, there is no need for the post-
trial hearing required by Bolton. Subsection (d) [of D.C. Code, § 24-
301], therefore, has been amended to provide for the mandatory com-
mitment of such a defendant without a hearing until such time as he is
either certified by the hospital and found by the court to be recovered
or establishes his recovery in court after filing the appropriate mo-
      3
      10
tion.
   In accordance with Lynch v. Overholser,supra, this automatic com-
mitment applies only when the defendant himself has raised the defense
of insanity. It does not apply when the court itself raises thfe defense
pursuant to the requirements of Whalem v. United States, 346 F.2d
812 (D.C. Cir. en banc, cert. denied, 382 U.S. 862 (1965). When
the court does raise the issue sua sponte, however, subsection (j) [of
D.C. Code § 24-301], by its use of the language, "regardless of who
raises the issue," requires for acquittal that the defendant's insanity be
established by a preponderance of the evidence, the same burden im-
posed upon a defendant who invokes the defense.

IN-TRIAL GOVERNMENT APPEALS

   Until recently, the prosecution in criminal cases has had no recourse
against erroneous trial court rulings. In 1968, Congress, recognizing that
this was unfair and could deprive the public .of a fair trial, provided for
the United States to appeal prior to trial an adverse pretrial order
granting a'motion for return of seized property or a motion to suppress
evidence, if the United States attorney certified that the appeal was not
taken for purpose of delay and that the evidence was a substantial proof
of the charge.31' While this provision has generally worked well, it failed
to encompass the situation where a motion to suppress evidence was
granted during the trial. Thus, if a motion to suppress evidence was
denied prior to trial, but reopened and granted during the trial, the
prosecution would not be able to appeal the ruling.
   In the new Act, Congress solved this inequity as well as others and
provided a comprehensive provision for appeal by the prosecution in

  310. As pointed out in note 309, supra this provision was changed.
  311. Pub. L. No. 90-351, §§ 1301, 1302 (June 19, 1968). (Omnibus Crime Control
and Safe Streets Act of 1968), amending 18 U.S.C. § 3731 (Supp. V, 1970); 22 D.C.
CODE § 105(b) (Supp. II, 1969).
1970-71]                CRIMINAL LAW AND PROCEDURE

 criminal cases. The new law, 23 D.C. Code § 104, provides for both
pretrial and in-trial appeals by the Government.
    The pretrial appeal provision, which substantially reenacts the 1968
 law, is applicable to both the United States Government and the District
 of Columbia Government. The most important change is the addition of
the clause permitting the prosecution to appeal from a pretrial order
which "denies the prosecutor the use of evidence at trial," a clause
 necessary to overcome the excessively narrow interpretation accorded
                                                            313
the existing statute.312 Pretrial appeals shall be expedited.
    Under the new law, a motion to suppress evidence "shall be made
before trial unless opportunity therefor did not exist or the defendant
was not aware of the grounds for the motion. ' 3 Unlike the Federal
                                                      14

                                 315 the new law does not give the trial court
 Rules of Criminal Procedure,
general discretion to entertain a motion to suppress evidence during trial.
 Under the general discretion clause of the Federal Rules some trial
judges routinely allowed a motion to suppress evidence to be raised
 during trial when it had already been ruled on by another judge prior to
 trial. The deletion of this general discretion clause in 23 D.C. Code
 § 104(a)(2) limits the power of a trial judge to hear a motion to suppress
 evidence during trial to only the two specific exceptions: (1) lack of
 opportunity to raise the motion before trial, and (2) lack of awareness of
grounds for motion before trial.
    The in-trial appeal provision is completely new to the District of
Columbia. It covers two types of situations:
    First, the United States or District of Columbia may appeal a ruling
 made during the trial of a person charged with a criminal offense which
 suppresses or otherwise denies the prosecutor the use of evidence on the
ground that it was invalidly obtained,3 6 if the prosecutor certifies that
 the appeal is not taken for purpose of delay and that the evidence is a
 substantial proof of the charge. This appeal does not require leave of the
 trial court. While the new law provides that motions to suppress evidence
  312. See, United States v.Greely,413 F.2d 1103 (D.C. Cir. 1969) (denial of motion to
reopen suppression hearing not appealable).
  313. 23 D.C. CODE § 104(e) (eff. Feb. 1, 1971).
  314. Id. § 104(a)(2).
  315. FED. R. CRIM. P. 41(e) which provides, in pertinent part:
   The motion shall be made before trial or hearing unless opportunity therefor did
   not exist or the defendant was not aware of the grounds for the motion, but the
   court in its discretion may entertain the motion at the trial or hearing.
  316. In-trial orders denying the use of evidence on other grounds such as hearsay or
immateriality are not appealable. The pretrial appeal provision is much broader in this
respect.
              THE AMERICAN UNIVERSITY LA W REVIEW                                [Vol. 20

shall be made prior to trial with two specific exceptions, this provision
removes any tactical incentive not to do so. The House Committee
Report spells this out:
     One major purpose of this subsection is to put additional
  pressure on the defense to make their motion to suppress prior to
  trial. By giving the Government the same right of appeal during
  trial as before trial, defense counsel will have no incentive to wait
  until time of trial to make their motion to suppress evidence as
  invalidly obtained.3 17
Another even more important reason for this provision was expressed by
the Corporation Counsel for the District of Columbia:
     From personal experience as a prosecutor this is a very
  important amendment. I have seen serious felony cases, including
  first-degree murder cases . . . , lost because of an evidentiary
  ruling the judge made and from which the prosecutor had no
         31 8
  appeal.
Thus, if during the course of the trial, the trial judge cuts out an
important piece of evidence from the Government's case by suppressing
a murder weapon, a cache of narcotics, stolen property found in the
defendant's possession, or a confession, as being invalidly obtained, the
Government can appeal.
   Second, the United States or District of Columbia may appeal any
other ruling made during the trial of a person charged with an offense
                                                                        31
which the prosecutor certifies as involving a substantial and recurring
question of law which requires appellate resolution. 21 Such an appeal
may be taken only with leave of the court. If the trial court concludes
that an issue is of sufficient importance to the trial to warrant an
interlocutory appeal, the trial court should have discretion to allow the
prosecution to appeal an adverse ruling. When an important issue is
raised, the trial court should have an alternative to ruling against the
prosecution to assure affirmance on appeal or ruling for the prosecution
  317. H.R. REP. No. 907, 91st Cong., 2d. Sess. 112 (1970).
  318. See testimony of Charles T. Duncan, Corporation Counsel for the District of
Columbia before the House District of Columbia Committee on October 7, 1969. Anti-
Crime Proposals, Hearings Before Subcommittees Nos. I and 3 of the House
Committee on the Districtof Columbia (Part11), 91st Cong., 1st Sess. 232 (1969).
  319. For the meaning of "recurring," see Boxley v. Rodgers, 395 F.2d 631,633 (D.C.
Cir. 1968); Friend v. United States, 388 F.2d 579,581 (D.C. Cir. 1967).
  320. Such issues would generally not be raiseable prior to trial (e.g., a motion to
exclude an important piece of evidence based on the doctor-patient privilege).
1970-71]                CRIMINAL LAW AND PROCEDURE

and chancing a reversal on appeal and a total retrial of the case. This
provision provides the trial court with such an alternative: allowing the
prosecution to take an in-trial appeal.
   If an in-trial Government appeal is taken, the trial court shall adjourn
the trial.3 21 The appellate court shall hear appellate argument within 48
hours of adjournment, shall dispense with any requirement for written
briefs, shall render its decision within 48 hours after the argument and
may dispense with the issuance of a written opinion in rendering its
decision. While the statute mandates appellate resolution of the
Government appeal within a set time period, it recognizes that failure by
the appellate court to meet this mandate should not be a ground to
extend the period of adjournment. Therefore, it is provided that if the
decision on appeal has not been rendered within 96 hours of adjournment
of the trial, the trial shall resume on the next day of regular court
business following the expiration of the 96 hour period, and the appeal
shall be deemed void and without effect. This proviso does not provide
an alternative to deciding the appeal; rather it is a safeguard should the
appellate court fail to meet the statutory mandate.

      III.    SENTENCING AND POST-TRIAL PROVISIONS

SENTENCING
     A.      Recidivist Penalty Laws
   Discretionarytriplepenaltiesfor third conviction of same offense. In
the new Act, Congress granted discretion to the -sentencing judge to
impose a triple penalty for the third or subsequent conviction for the
same criminal offense; 322 in addition, the new law substantially reenacted
the prior provision granting discretion to the sentencing judge to impose
a fifty percent greater penalty for the second conviction for the same
offense. 32 For example, a person convicted of his first petit larceny could
receive a maximum penalty of $200 or I year in jail or both; a person
convicted of his second petit larceny could receive a maximum penalty of
$300 or 1-1/2 years in jail or both; and a person convicted of his third,
fourth, fifth or subsequent petit larceny could receive a maximum
penalty of $600 or 3 years in jail or both.32 This provision is applicable
                                             ?

  321. A short adjournment rather than a mistrial avoids any possible double jeopardy
problems. See Downum v. United States, 372 U.S. 734 (1963); Carsey v. United States,
392 F.2d 810 (D.C. Cir. 1967).
   322. Pub. L. No. 91-358, § 201(b) (July 29, 1970).
  323. 22 D.C. CODE § 104 (1967).
   324. A prosecution for a misdemeanor which could result in a three year sentence
             THE AMERICAN UNIVERSITY LAW REVIEW                               [Vol. 20

to convictions for both misdemeanors (including offenses prosecuted by
the District of Columbia Government) and felonies. The only criminal
offenses exempted from this provision are non-moving traffic violations
(e.g., parking tickets). The prior convictions need not involve offenses
committed in the District of Columbia; the prior convictions can be
under the law of the United States or of a state or territory of the United
States. "This provision does not require that the subsequent conviction
involve an offense committed after the prior conviction ."35
   The section is also applicable when the second, third or subsequent
conviction for which the defendant is being sentenced involves an offense
which constitutes or is necessarily included in the offenses resulting in the
prior convictions. Two examples are appropriate to clarify the meaning
of this provision. First, an individual being sentenced in the District of
Columbia for a burglary conviction would be subject in most cases to
the discretionary fifty percent greater penalty if he had previously been
convicted in a state court under a state housebreaking statute; burglary
and housebreaking are usually equivalent since both involve an entry
into premises to commit a crime therein. Second, an individual being
sentehced in the District of Columbia for a petit larceny conviction
would be subject to the discretionary triple penalty if on two previous
 occasions he had been convicted of robbery; larceny is necessarily
included in robbery.
    Discretionarylife sentence for thirdfelony conviction. Under the new
 law, the trial court is given discretion to impose an indeterminate term of
 imprisonment up to life for the three-time convicted felon, if the court
 "is of the opinion that the history and character of the defendant and the
 nature and circumstances of his criminal conduct indicate that extended
 incarceration and lifetime supervision will best serve the public
 interest. '' 32 This provision is applicable only if the offender's second
 offense is committed after his first conviction and his third offense is
 committed after his second conviction. "Only when a criminal has
 shown disregard for law by at least three successive courses of felonious
 conduct, and thus ignored at least two opportunities to reform, can this
provision be utilized.' ' 32 The two prior convictions, however, need not
                                                           328
 involve offenses committed in the District of Columbia.
under the discretionary triple penalty provision need not be initiated by means of an
indictment. 23 D.C. CODE § I l(a)(2) (eff. Feb. 1,1971); cf.Lawrence v. United States,
224 A.2d 306 (D.C. App. 1966).
  325. H.R. REP. No. 907, 91st Cong., 2d Sess. 65 (1970).
  326. Pub. L. No.91-358, § 201(b) (July 29, 1970).
  327. H.R. REP. No. 907, 91st Cong., 2d Sess. 65 (1970).
  328. Pub. L. No. 91-358, § 201(b) (July 29, 1970), provides, in relevant part:
   a person shall be considered as having been convicted of a felony if he was
 1970-71I]               CRIMINAL LAW AND PROCEDURE

    While the three felonies can be different criminal offenses, there will be
 situations where the three felonies will be the same criminal offense and
when this happens there will be an overlap with the section providing for
 discretionary triple penalties for a third conviction of the same criminal
 offense. For example, a person convicted of his third grand larceny could
 receive a 30 year sentence under the discretionary triple penalty provision
 since the maximum penalty for a first conviction for grand larceny is 10
years imprisonment. 329 Rather than impose a 30 year sentence, the
sentencing judge could decide to impose a life sentence under the
discretionary life sentence provision. In order to impose the life sentence,
however, the court must be of the opinion that "the history and
character of such person and the nature and circumstances of his
criminal conduct indicate that extended incarceration or lifetime
supervision, or both will best serve the public interest." No similar
conclusion is necessary for the court to impose sentence under the
discretionary triple penalty provision.
    Mandatory penalties for subsequent armed crime of violence
conviction. Under the new Act, any person who is convicted more than
once of having committed a crime of violence while armed in the District
of Columbia30 must receive a mandatory minimum sentence of not less
than five years imprisonment and must receive a maximum sentence of
not less than fifteen years imprisonment but which may be up to life
imprisonment.3 1 Any person sentenced under this provision shall not be
eligible for parole until after having served the minimum sentence
imposed and the court is not permitted to suspend the execution or
imposition of sentence, grant probation or sentence the individual under
Chapter 402 of Title 18 of the United States Code (Federal Youth
Corrections Act). Unlike the provision permitting discretionary life
sentences for the three-time convicted felons, this section does not
   convicted (A) of a felony in a court of the District of Columbia or of the United
    States, or (B) in any other jurisdiction of a crime classified as a felony under the
    laws of that jurisdiction or punishable by imprisonment for more than two years.
   329. 22 D.C. CODE § 2201 (1967).
   330. Neither of the other two recidivist penalty laws in the D.C. Court Reform Act of
1970 (just discussed) require that the prior offense or offenses be committed in the
District of Columbia.
   331. Pub. L. No. 91-358, § 205(a) (July 29, 1970). If the prosecutor fails to invoke
this provision by filing an information of previous convictions under 23 D.C.
CODE § Ill (eff. Feb. 1, 1971) (which will be discussed fully in the next section of this
article), the discretionary life provision for a first offender under the "armed crime of
violence" would be applicable.
328          THE AMERICAN UNIVERSITY LAW REVIEW                       [Vol. 20

require that the subsequent conviction involve an offense committed
after the prior conviction.

  All three recidivist penalty laws discussed above contain provisions
stating: "No conviction with respect to which a person has been
pardoned on the ground of innocence shall be taken into account in
applying this section. ' ' 2 The purpose of this provision is discussed in
some detail in the House Committee Report:
     The section makes clear that a conviction of a person which
  results in a pardon on the ground that he was innocent shall not be
  considered a conviction. This means a person would not be treated
  as a second offender under this section if his first conviction
  resulted in a pardon on the ground of innocence. However, this
  language is intended to apply only to convictions resulting in
  pardons on the ground of innocence. A pardon or expungement of a
  conviction based on rehabilitation would not be exempted from this
  section. The reason for this seems obvious. The subsequent
  conviction makes it clear that the person has not in fact been
  rehabilitated and therefore he should not receive the benefits of the
  pardon or expungement based on a presumed rehabilitationY     m

   Also applicable to all three recidivist penalty laws is the effective date
provision which provides that "The amendments made by sections 201
[discretionary triple penalties for third conviction for same offense and
discretionary life sentence for third felony conviction] and 205
[mandatory penalties for subsequent armed crime of violence conviction]
of this Act shall apply with respect to any person who commits an
offense after the effective date of this Act. ' "u Thus, if prior to the
effective date of February 1, 1971, an individual is convicted of
committing a robbery while armed, and after the effective date this same
individual commits a rape while armed and is subsequently convicted, he
is subject to the mandatory penalty provision of the armed crimes of
violence section. If the rape while armed was committed prior to the
effective date but the conviction occurred after the effective date, the
mandatory penalty provision would not apply.

  332. Pub. L. No.91-348, § 205(a) (July 29, 1970).
  333. H.R. REP. No. 907,91st Cong., 2d Sess. 69 (1970).
  334. Pub. L. No. 91-358, § 901(b)(3) (July 29, 1970).
 1970-71]              CRIMINAL LAW AND PROCEDURE

       B. Proceedingsto Establish PriorConvictions
    In light of the new recidivist penalty laws, it was necessary for
 Congress to fill an existing void in District of Columbia law and provide
 a uniform and comprehensive procedure for determining whether any
 District of Columbia recidivist penalty statute is applicable to a
particular defendant.
   The major congressional debate concerning this provision revolved
 around whether the prosecution should be required to file an information
 setting out the previous convictions prior to trial or prior to sentencing
(but after trial). The original Senate-passed billI required the
prosecution to file the information prior to trial on the theory that the
accused should know before trial the penalty he faces and can thereby
 "determine intelligently, with foreknowledge of the risk which the
instant litigation poses, both how to plead and how or to what extent to
defend." The original House passed bill3 7 provided for the prosecution
to file the information before sentencing but after trial on the theory
"that pre-trial notice to the defendant serves no useful purpose since the
defendant is already aware of his own criminal record and the issue of
recidivism is not a proper issue in the determination of the defendant's
guilt or innocence. 338 This approach also recognized "the time
problems the prosecutor faces in determining the complete criminal
record of a defendant and obtaining certified copies of prior convictions
. . . especially out-of-state convictions." 33 In addition, the House
approach recognized that an argument might be made that informing
the court prior to trial of the defendant's criminal record is prejudicial to
the accused where the court sits as the trier of fact without a jury and the
defendant, by remaining silent, does not put his credibility in issue.
   The Conference Report version 0° enacted in the new law, 23 D.C.
Code § 11l, followed the Senate formatul by providing that no person
shall be eligible for increased punishment under a recidivist penalty
provision unless prior to trial or before entry of a guilty plea, the
prosecutor files an information with the clerk of the court and serves a
  335. S. 2869, passed Senate on Dec. 5, 1969 (91st Cong., 1st Sess.).
  336. S. REp. No. 538,91st Cong., 1st Sess. 12 (1969).
  337. S. 2601 as amended, passed House of Representatives on March 19, 1970 (91st
Cong., 2d Sess.) (reported out of committee as H.R. 16196).
  338. H.R. REP. No. 907,91st Cong., 2d Sess. 115 (1970).
  339. Id. 114-15.
         at
  340. H.R. REP. No. 1303,91st Cong., 2d Sess. 154 (1970).
  341. Lawrence v. United States, 224 A.2d 306 (D.C. App. 1966); compare 26
U.S.C. § 7237(c)(2) (1964).
             THE AMERICAN UNIVERSITY LAW REVIEW                                  [Vol. 20


copy on the defendant or his counsel, stating in writing the previous
convictions to be relied on. 3" At the same time, Congress recognized the
time problems facing the prosecutor in obtaining an accused's criminal
record, and therefore provided that upon a showing by the Government
that facts regarding any previous convictions could not be obtained with
due diligence prior to trial or plea of guilty, the court may postpone the
trial or the taking of the plea of guilty for a reasonable period of time.
This provision should be read in light of the statement of the United
States Court of Appeals for the District of Columbia in Epperson v.
                 3
 UnitedStates: 3
   The courts will not skimp in affording the prosecutor an
    opportunity to obtain and appraise the prior record of the accused
    in order to determine whether to seek a felony prosecution. 34
It was also provided in the new law that clerical mistakes in the
information may be amended at any time prior to the pronouncement of
sentence. For example, an information filed before trial misstating the
precise date and place of a previous conviction could be corrected after
trial.
    If the defendant is convicted and the notice requirement has been
complied with, the court must inquire whether the defendant takes
exception to, for the purposes of sentencing, any conviction for which he
has been put on notice. The defendant may contest the fact of conviction
as alleged, the constitutionality of the conviction or his identity with the
person previously convicted. If the defendant does contest the
 Government's information, he must respond in writing. The court must
then conduct a hearing. The defendant is made to bear the burden of
proof by a preponderance of the evidence as to any issue of fact relating
 to any alleged unconstitutionality of a prior conviction. As to all other
 issues of fact, the prosecution is made to bear the burden of proof
beyond a reasonable doubt. If the defendant does not join issue or if the
 court after the hearing determines that a recidivist penalty law is
  342. Presumably, this approach recognizes that alerting the trial judge, sitting as the
trier of fact without ajury, to the defendant's criminal record is not error. The same type
of situation occurs frequently where the bail setting judge learns of the defendant's
criminal record at a bail hearing and also sits as the trier of fact without a jury. It is
especially frequent in jurisdictions where there is only one federal judge. Traditionally,
the trial judge has been considered competent to departmentalize this information and
thereby avoid prejudice to the accused.
  343. 371 F2d 956 (D.C. Cir. 1967).
  344. Id. at 958. This statement was specifically referred to in the House Committee
Report. H.R. REP. No. 907, 91st Cong., 2d Sess. 115 (1970).
 1970-71]                CRIMINAL LAW AND PROCEDURE


applicable, the court shall proceed to impose a sentence as provided by
law.
   The determination of any issues involving previous convictions is
made by the court without a jury. Because the issues involved are
questions capable of documentary, demonstrative and scientific proof
(e.g., fingerprints) and because the court is charged with the
responsibility for sentencing, ajury determination on this issue would be
inappropriate. This procedure follows the prior practice in the District of
                                                            5
Columbia and the existing practice in other jurisdictions.3
   Finally, the prosecution before the sentencing may appeal a finding of
the court after the hearing that the increased penalty provision does not
apply.. 4 The defendant is given the right to cross-appeal, as if the
      3

sentence had been rendered and final judgment of conviction entered.
     C.     Consecutive and ConcurrentSentences
   Under new 23 D.C. Code § 112, a sentence imposed for an offense is
to run consecutively to any other sentence imposed on the same person
for another offense (1) if the other offense arises out of another
transaction or (2) if the other offense arises out of the same transaction
but requires proof of a fact which the other does not. Sentences do not
run consecutively if the court imposing sentence provides to the contrary
or if the offenses arise out of the same transaction and require proof of
the same facts.
   If, for example, a person is convicted of burglary and grand larceny
arising out of transaction A (breaking into a warehouse and stealing
property valued in excess of one hundred dollars), the sentences imposed
for the burglary and grand larceny run consecutively to each other unless
the court specifies that they run concurrently.37 This is so because each
offense requires proof of a fact which the other does not: the burglary
requires proof of an entry, which is not necessary to prove larceny,
whereas the larceny requires proof of a taking, which is not necessary to
prove burglary.
   If the same person is then convicted of assault with a dangerous
weapon and assault with intent to kill arising out of transaction B, the
sentences imposed for these two offenses run consecutively to each other
and to the sentences imposed for the convictions arising out of
   345. See, e.g., United States v. Marshall, No. 22,485 (D.C. Cir. June 30, 1970) (en
banc); Statev. Loiseau, 184 Neb. 178, 166 N.W.2d 406 (1969).
   346. This procedure avoids the due process problem raised by increasing a sentence
after an appellate reversal. See North Carolina v. Pearce, 395 U.S. 711 (1969).
   347. H.R. REP. No. 907, 91st Cong., 2d Sess. 114 (1970).
332           THE AMERICAN          UNIVERSITY LA W REVIEW                       [Vol. 20


transaction A, unless the judge specifies to the contrary. The sentences
for transaction B run consecutively to each other since each offense
requires proof of a fact which the other does not: the assault with a
dangerous weapon requires proof of use of a dangerous weapon, which is
not necessary to prove assault with intent to kill, and assault with intent
to kill requires proof of intent to kill, which is not necessary to prove
assault with a dangerous weapon.3 8
  The legislative history reveals that this section was added to the
District of Columbia Code for three reasons:uB
  First, to reverse the untenable result in Borum v. United States."0 In
this case, the defendant, who had just previously been convicted of two
separate burglaries and a robbery, was convicted of raping one woman
and pistol-whipping an eighty year old person. At the time he imposed
sentence, the judge by oversight failed to specify the sentences
imposed for the previous, wholly unrelated offenses. Nor did he state
that the sentences were to run concurrently. To clarify the record, he
recalled the defendant only five days later and explained that the
sentences were to run consecutively. This was reversed on appeal since
under the existing law as noted in the Borum opinion, multiple sentences
run concurrently, even if imposed for entirely unrelated offenses unless a
judge provides to the contrary at the time of sentence. 23 D.C.
CODE   § 112 prevents a reoccurrence of the Borum result by providing
that a sentence for one offense runs consecutively with a sentence im-
posed for an unrelated offense unless the judge specifies that they run
concurrently. If the judge by oversight fails to provide that the sentence
runs concurrently when that was his intent, he can correct his mistake
upon motion of the defendant under the appropriate court rule.3 1 Under
  348. The sentences imposed run consecutively to each other even if, for instance, the
evidence introduced by the government shows one assault with a knife. This is so because
the test in determining whether an offense requires proof of a fact which the other does
not, is not the evidence relied on to prove the offense, but whether the offense requires
proof of a different element. Blockburger v. United States, 284 U.S. 299, 304 (1932);
Gore v. United States, 357 U.S. 386 (1958) (Same sale of narcotics gives rise to
conviction of three different crimes and consecutive sentences).
  349. This provision was not included in the original legislation passed by the Senate
but was included in S.2601, as amended, which passed the House on March 19, 1970
(reported out of Committee as H.R. 16196). It was accepted without change by the
Senate in conference. The controlling interpretation of this provision, accordingly, which
was not debated on the floor of the House, is the extensive analysis of it in the House
Committee Report, H.R. REP. No. 907,91st Cong., 2d Sess. 113-4 (1970).
  350. 409 F.2d 433 (D.C. Cir. 1967), cert. denied, 395 U.S. 916 (1969). H.R. REp. No.
907, 91st Cong., 2d Sess. 113 (1970).
  351. See FED. R. CRIM. P. 35.
1970-71]                 CRIMINAL LAW AND PROCEDURE

the prior law, neither the judge nor the government had a comparable
remedy.
  A second reason for enacting this section was to encourage a change in
the prior practice of imposing concurrent sentences for unrelated
offenses. While it is true that this section does not create a presumption
in favor of the imposition of consecutive sentences in all cases, 52 as the
House Committee Report observed:
  This proposal [consecutive sentences for unrelated offenses unless
  otherwise provided by the judge], moreover, is consistent with what
  should be the general rule. Concurrent sentences for unrelated
  criminal offenses have no deterrent effect whatsoever. This is
  particularly true for defendants who are arrested on strong evidence
  and released prior to trial. Aware that they will be convicted and
  imprisoned, and also aware of the current practice against
  imposing consecutive sentences should they again be arrested and
  convicted, there is absolutely no deterrent to their going on a spree
  of criminal activity.3
  The third reason for enacting this section relates to the power of the
judges to impose consecutive sentences for offenses arising out of the
same transaction. It is generally agreed that whether or not such
sentences can be imposed depends on the intent of Co.ngress.3 4 Because
Congress has rarely specifically addressed itself to this problem in
enacting criminal statutes, the courts, as the House Committee Report
points out,35 have long adhered to the rule that Congress intended to
permit consecutive sentences for offenses arising out of the same offense
                                                                   3 56
when each offense requires proof of a fact which the other does not.
  Recent decisions of the United States Court of Appeals for the
District of Columbia, however, have modified this established principle.
   352. Speech of Senator Tydings on the floor of the Senate, 116 CONG. REC. S 11847
(daily ed. July 21, 1970). In this speech, Senator Tydings implied that the only purpose of
23 D.C. CODE § 112 was to prevent reoccurrence of the result in Borum. While this was
one purpose of the section, both the language of the section (which refers to offenses
arising out of the same transaction-not the Borum situation) and the House Committee
Report make it perfectly clear that this was not the only purpose.
   353. H .R. REP. No. 907,91st Cong., 2d Sess. 113 (1970). This philosophy concerning
consecutive sentences for offenses committed while on pretrial release was reflected in 23
D.C. Code § 1328 which imposes additional penalties for such offenses and requires
that the additional sentences run consecutively to any other sentence imposed.
   354. Gore v. United States, 357 U.S. 386, 390-3 (1958).
   355. H.R. REP. No. 907, 91st Cong., 2d Sess. 114 (1970).
   356. Blockburger v. United States, 284 U.S. 299 (1932); Morgan v. Devine, 237 U.S.
632 (1915).
               THE AMERICAN UNIVERSITY LA W REVIEW                                [Vol. 20

For offenses arising out of the same transaction, they have prohibited the
imposition of consecutive sentences absent some manifestation of
congressional intent that they be permitted.ul Where the intent is not
made manifest, as is usually the situation, the decisions have "applied a
so-called 'rule of lenity' to resolve all ambiguities in favor of defendants
and thereby prohibit consecutive sentences."            8
   This section eliminates the alleged ambiguities which induced the
Court of Appeals to resort to the rule of lenity by establishing the intent
of Congress with respect to punishment for different offenses. That
intent is to authorize imposition of consecutive sentences for offenses
arising out of the same transaction which require proof of a fact which
the other does not, the test specifically approved by the Supreme Court
in Blockb urger v. UnitedStates.39

      D.    The Role of the Government in the Sentencing Process
   Under prior practice in the District of Columbia, the prosecuting
attorney, at the time of sentencing, though always present, rarely
addressed the court, either for the purpose of giving it information about
the defendant or recommending a sentence. 30 This is attributable both in
part to the reluctance and even refusal of a number of the judges to
permit the prosecutor to address the court and to the lack of interest of
many prosecutors in the sentencing process except in the actual sentence
imposed. As a result of the non-participating role of the prosecutor in the
sentencing process, defense counsel are frequently successful in securing
   357. This would occur, for example, where Congress was protecting two different
societal interests, such as property and the person, thus permitting consecutive sentences
for burglary and robbery. Irby v. United States, 390 F.2d 432 (D.C. Cir. 1967) (en
banc).
   358. H.R. REP. No. 907,91 st Cong., 2d Sess. 114 (1970). Davenport v. United States,
353 F.2d 882 (D.C. Cir. 1965); Ingram v. United States, 353 F.2d 872 (D.C. Cir. 1965).
   359. 284 U.S. 299,304 (1932). While the Supreme Court has applied the rule of lenity
in determining whether consecutive sentences are authorized (Gore v. United States, 357
U.S. 386, 391-2 (1958), it has not applied it to "separate offenses" but only to situations
in which there is doubt as to "the unit of offense." E.g., Bell v. United States, 349 U.S.
81 (1955) (Mann Act transportation of two women a single offense); Ladner v. United
States, 358 U.S. 169 (1958) (one discharge of shotgun injuring two federal officers a
single offense). Prince v. United States, 352 U.S. 322 (1957), frequently cited in support
of a departure from the Blockburger rule, has been limited by the Supreme Court as
involving "a unique statute of limited purpose." Gore v. United States, 357 U.S. 386,
392 (1958), quoting the Princecase itself at 325.
  360. See REPORT OF THE PRESIDENT'S COMMISSION             ON CRIME IN THE DISTRICT OF
COLUMB1A   371 (1966).
1970-71I]                CRIMINAL LAW AND PROCEDURE

opportunities to discuss with some judges in chambers the sentence to be
imposed without a prosecutor even being present.
  A fair sentence depends on the court having complete and accurate
information concerning the defendant from both the defense counsel and
the government.3 6 1 In recognition of this fact, the new law, 23 D.C. Code
§ 103, grants to prosecuting attorneys a full role in the sentencing
process. Thus, whenever the court in its discretion discloses all or part of
the presentencing report to the defense counsel, 23 D.C. Code § 103
gives the prosecutor equal access to that part of the report disclosed.
Furthermore, "[atany time when the defendant or his counsel addresses
the court on the sentence to be imposed, the prosecuting attorney shall, if
he wishes, have an equivalent opportunity to address the court and to
make a recommendation to the court on the sentence to be imposed and
to present information in support of his recommendation. 13 2 (emphasis
supplied). The effect of this provision is to terminate ex parte
representations by defense counsel to the court concerning sentence and
to give the prosecutor the right, if he chooses to exercise it, to provide the
court with information about the defendant or to recommend a sentence,
or both.

Bail Pending Sentence, Appeal And Certiorari
    When a person has been convicted of a crime following plea or trial,
 the new law, 23 D.C. Code § 1325, provides the following standards
with respect to his release or detention:
    1. While awaiting sentence, the person "shall be detained unless the
judicial officer finds by clear and convincing evidence that he is not likely
 to flee or pose a danger to any other person or to the property of
 others."' If the judge makes such a finding, the person is to be treated
 in accordance with the general provisions governing release prior to trial
 in 23 D.C. Code § 1321.1"
    2. A person who has been convicted and sentenced to a term of
 imprisonment "shall be detained" pending appeal and certiorari "unless
  361. See,   THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS      20-21 (1967).
  362. 23 D.C. CODE § 103 (eff. Feb. 1, 1971).
  363. Id. § 1325(b).
  364. Id. The House Committee Report, which contains the only legislative history on
this subject, envisages that under this provision "release would often be granted for those
not yet sentenced but convicted of nonviolent crimes, with little if any prior difficulty
with the law, and strong community ties, particularly in those instances in which
probation or suspended sentence is anticipated." H.R. REP. No. 907, 91st Cong., 2d
Sess. 186 (1970).
336             THE AMERICAN UNIVERSITY LA W REVIEW                              [Vol. 20


the judicial officer finds by clear and convincing evidence (1) that the
person is not likely to flee or pose a danger to any other person or to the
property of others and (2) that the appeal or petition for a writ of
certiorari raises a substantial question of law or fact likely to result in a
reversal or an order for new trial. ' 3 5 In the event the judicial officer
makes such findings, the person is to be treated under the same general
pre-trial release provisions of 23 D.C. Code § 1321.311
  A person detained under 23 D.C. Code § 1325(b) and (c) can appeal.
For those detained pending appeal and certiorari, the finding of the
judicial officer with respect to the existence of a substantial question of
 law or fact likely to result in reversal or new trial is subject to de n'ovo
                                    3
consideration by the appellate court.          7

   The new law makes several significant changes in the Bail Reform Act
of 1966 3   s   which previously governed release and detention pending
appeal and certiorari in the District of Columbia and still governs in all
other federal jurisdictions. The Bail Reform Act permits detention only
if the judicial officer has reason to believe (1) that no one or more
conditions of release will reasonably assure that the person would not
flee or pose a danger to any other person or the community or (2) that
the appeal is frivolous or taken for reason of delay. 3 9 This provision was
interpreted by the United States Court of Appeals for the District of
Columbia as one which "plainly favors release,"37 under which it is the
court's "duty, if possible to set conditions under which appellant may be
           371
released."
   Under the new law, however, the statutory presumption is "weighted
in favor of detention. 37 2 Whereas the Bail Reform Act requires release
  365. 23 D.C. CoDE § 1325(c) (eff. Feb. 1, 1971).
  366. Id.
  367. Id. § 1325(d).
  368. Pub. L. No. 89-465 (June 22, 1966), 80 Stat. 215.
  369. 18 U.S.Q. § 3148 (1966). A person convicted but not'yet sentenced may be
detained only if the judicial officer has reason to believe that no one or more conditions
of release will reasonably assure that the person would not flee or pose a danger to any
other person or the community.
  370. Banks v. United States, 414 F.2d 1150, 1153 (D.C. Cir. 1969).
  371. United States v. Harrison, 405 F.2d 355,357 (D.C. Cir. 1968).
  372. H.R. REP. No. 907, 91st Cong., 2d Sess. 186 (1970). The House Committee
Report justified its weighing the presumption in favor of detention as follows:
   [O]nce a person has been convicted and sentenced to jail, there is absolutely no
   reason for the law to favor release pending appeal or even permit it in the absence
   of exceptional circumstances. First and most important, the conviction, in which
   the defendant's guilt of a crime has been established beyond a reasonable doubt, is
   presumably correct in law, a presumption factually supported by the low rate of
1970-71]                 CRIMINAL LAW AND PROCEDURE


unless the judicial officer has reason to believe that no one or more
conditions will reasonably assure against flight or danger, the new law
permits release only if the judicial officer finds by clear and convincing
evidence that the person will not flee or pose a danger. Even then release
is permitted only if the judicial officer makes the additional finding, also
by clear and convincing evidence, that there is a substantial likelihood on
appeal of reversal or order for a new trial. This contrasts sharply with
the Bail Reform Act provision that release can be denied if the judicial
                                                               33
officer finds that the appeal is frivolous or taken for delay
   The final significant change is that after conviction, the judicial officer
is specifically authorized in assessing a person's potential danger to
consider his danger "to the property of others. ' 3 4 As the House
Committee Report explains, "There is no reason why a defendant
convicted and awaiting sentence or sentenced and on appeal should be
allowed to steal, forge checks, or commit other frauds. ' 375 In its
decisions, the United States Court of Appeals for the District of
Columbia had appeared to disregard property offenses in determining
danger and had indicated that only acts involving danger to persons were
relevantY 6
CollateralA ttack of Conviction
  Prior to enactment of the new law, there was some uncertainty about
the authority of the Court of General Sessions to grant relief in a post-
                                                                       371
conviction collateral proceeding to a defendant convicted in that court.
    reversal of criminal convictions in the Federal system. Second, the decision to send
    a convicted person to jail and thereby reject all other sentencing alternatives, by its
    very nature includes a determination by the sentencing judge that the defendant is
    dangerous to the person or property of others, and dangerous when sentenced, not
    a year later after the appeal is decided. Third, release of a criminal defendant into
    the community, even after conviction, destroys whatever deterrent effect remains
    in the criminal law. Finally, contrary to the suggestion of the United States Court
    of Appeals in United States v. Forrest, 418 F.2d 1186 (D.C. Cir. 1969), the
    purpose of the appellate process is not to give a convicted criminal, by means of
    release pending appeal, an opportunity to demonstrate a basis for reducing a
    sentence after the conviction has been affirmed. Id. at 186-7.
   373. As a practical matter, this latter ground was virtually never utilized by the courts
in the District of Columbia Circuit as a basis for denying release.
   374. 23 D.C. CODE §§ 1325(b), (c) (eff. Feb. 1, 1971).
   375. H.R. REP. No. 907, 91st Cong., 2d Sess. 187 (1970).
   376. E.g., Banks v. United States, 414 F.2d 1150, 1153 (D.C. Cir. 1969); United
States v. Forrest, 418 F.2d 1186, 1188 (D.C. Cir. 1969).
   377. The old D.C. Code (16 D.C. CODE § 1901 (1967)) provided that "A person
committed, detained, confined, or restrained from his lawful liberty within the District,
              THE AMERICAN UNIVERSITY LA W REVIEW                                  [Vol. 20


This uncertainty has been removed by 23 D.C. Code § 110, which
creates in the Superior Court clear statutory authority to vacate or
correct an erroneous sentence. The new statute, which parallels 28
U.S.C. § 2255, provides an expeditious remedy in the nature of the
ancient writ of error coram nobis. It had no counterpart in the old D.C.
Code.378
   Henceforward, a prisoner in custody under sentence of the Superior
Court may move that court to vacate, set aside, or correct his sentence,
when he claims the right to be released upon the ground that (1) the
sentence was imposed in violation of the Constitution of the United
States or the laws of the District of Columbia, (2) the court was without
jurisdiction to impose the sentence, (3) the sentence was in excess of the
 maximum authorized by law, or (4) the sentence is otherwise subject to
under any color or pretense whatever, or a person in his behalf, may apply by petition to
the United States District Court for the District of Columbia, or a judge thereof, for a
writ of habeas corpus, to the end that the cause of commitment, detainer, confinement,
or restraint may be inquired into . . . ." Prisoners under sentence from a local District
of Columbia court who were confined outside the District could obtain post-conviction
relief from a United States District Court at the location of their confinement. See
United States v. Hayman, 342 U.S. 205 (1952); Ahrens v. Clark, 335 U.S. 118 (1948).
  There was no provision in the old D.C. Code giving general habeas authority to the
local District of Columbia courts. However, an argument can be made that such
authority was given to these courts by 28 U.S.C. § 1651 (1964), the All Writs Statute,
which provides that "The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law." In Morrow v. District of Columbia, 417
F.2d 728 (D.C. Cir. 1969), the United States Court of Appeals indicated that the
language "all courts established by Act of Congress" encompassed the District of
Columbia Court of Appeals and that the Court of Appeals thus had authority,
under § 1651, to issue extraordinary writs. Assuming the correctness of this
interpretation, it follows that the local trial courts of the District of Columbia, which
were established in the same manner as the Court of Appeals, also had authority, under
§ 1651, to issue extraordinary writs, including the writ of habeas corpus. The phrase
"all courts established by Act of Congress" was interpreted differently in Burke v.
United States, 103 A2d 347 (D.C. Mun. App. 1954). The question there was whether 28
U.S.C. § 2255, which used the same "all courts" phrase, applied to the Juvenile Court
for the District of Columbia. The Municipal Court of Appeals held that § 2255 did not
apply to local courts for the reason that local courts were not included within the scope of
the "all courts" language. This decision was followed in Ingols v. District of Columbia,
103 A.2d 879 (D.C. Mun. App. 1954). In both cases, however, the court declared that
local courts had the inherent authority to modify or vacate a sentence. Use of this
authority was illustrated in Hines v. United States, 237 A.2d 827 (D.C. App. 1968); see
also Watwood v. District of Columbia, 162 A.2d 486 (D.C. Mun. App. 1970).
   378. H.R. REP. No. 907,91st Cong., 2d Sess. 171 (1970).
1970-71]                   CRIMINAL LAW AND PROCEDURE

collateral attack.3 79 A motion for such relief may be made at any time;3
 and unless the motion and the files and records of the case conclusively
 show that the prisoner is entitled to no relief, the court is required to
serve notice of the motion upon the prosecuting authority, grant a
prompt hearing, determine the issues, and make findings of fact and
 conclusions of law with respect to the issues raised.381 If the court finds
that (1) judgment was rendered without jurisdiction, (2) the sentence
 imposed was not authorized by law or is otherwise open to collateral
 attack, or (3) there has been such a denial or infringement of the
 constitutional rights of the prisoner as to render thejudgment vulnerable
 to collateral attack, the court shall vacate and set thejudgment aside and
 shall discharge the prisoner, resentence him, grant him a new trial, or
                                                     3
 correct his sentence, as may appear appropriate. 12 An appeal from the
 order entered on the motion may be taken to the District of Columbia
Court of Appeals by either party.3
    Inasmuch as the provisions of 23 D.C. Code § 110 are virtually
 identical to the provisions of 28 U.S.C. § 2255, there is a vast body of
judicial opinion construing the statutory language and defining the scope
 of the remedy. In Kaufman v. United States,"4 for example, the
 Supreme Court held that a federal prisoner's claim that he was convicted
 on evidence obtained in an unconstitutional search and seizure was
 cognizable in a post-conviction proceeding under § 2255. Presumably, a
 similar claim by a prisoner under sentence from the Superior Court
 would be cognizable under 23 D.C. Code § 110.
    23 D.C. Code § 110(g) makes clear that an application for a writ of
 habeas corpus in behalf of a prisoner who is authorized to apply for
 relief under § 110 shall not be entertained by the Superior Court or by
 any federal court or any state court if it appears that the applicant has
 failed to make a motion for relief under § 110 or that the Superior
Court has previously denied him relief, unless it also appears that the
 remedy provided by such a motion is inadequate or ineffective to test the
 legality of the prisoner's detention. In subsection (g), Congress has
 determined that any right to collateral attack vested in a prisoner under
 sentence from the Superior Court may be fully vindicated through
 procedures in the Superior Court, unless for some unusual reason the

  379. 23 D.C. CODE    §   110(a) (eff. Feb. 1, 1971).
  380. Id.§ 10(b).
  381. Id. § 110(c).
  382. Id.
          §
  383. Id. 10().
  384. 394 U.S. 217 (1969).
340            THE AMERICAN UNIVERSITY LA W REVIEW                                   [Vol. 20


remedy afforded by a § 110 motion is inadequate.3 A § 110 motion
should not prove inadequate very often, for § 110 is not designed to cut
back the scope of the writ of habeas corpus.3 16 On the contrary, its
purpose is to minimize the difficulties encountered in habeas corpus
hearings by affording the same rights in another and more convenient
forum.37
   Before the enactment of 28 U.S.C. § 2255 in 1948, a challenge to the
legality of a federal prisoner's detention was brought in a federal court at
the location of his confinement. Section 2255 authorized a federal
prisoner to "move the court which imposed the sentence" for post-
conviction relief. In many cases, § 2255 substituted one court for
another and, correspondingly, deprived the prisoner of habeas corpus
relief in a federal court at the location of his confinement. Earlier, the
Supreme Court upheld the constitutionality of this Congressional
regulation of habeas corpus.3
   The effect of § 110 is virtually the same as the effect of § 2255: For
purposes of judicial efficiency, a collateral attack on a sentence must be
initiated in the sentencing court, which here is the Superior Court.
Precisely the same result would have been achieved had § 2255 been
interpreted to apply to the Court of General Sessions and the local
                3
Juvenile Court. 11
   Achieving reasonable finality in criminal proceedings is another
objective of 23 D.C. Code § 110. A defendant in the Superior Court is
entitled to appeal his conviction to the District of Columbia Court of
Appeals. He may later seek review in the Supreme Court. Thereafter, he
may move the Superior Court to vacate or correct his sentence under
§ 110. He may appeal the court's final order on that motion, and, if
necessary, may again seek review in the Supreme Court. Although the
Superior Court is not "required to entertain a second or successive
motion for similar relief on behalf of the same prisoner," 30 there is
nothing in the statute that bars the court from entertaining a second
   385. A prisoner convicted in the Superior Court has the same opportunity to seek
post-conviction relief from his sentencing court as a prisoner convicted in a United States
 district court. His claims for relief are reviewed by judges who, like United States district
judges, are nominated by the President and confirmed by the Senate.
   386. Kaufman v. United States, 394 U.S. 217, 221 (1969); Hill v. United States, 368
 U.S. 424,427 (1962).
   387. Kaufman v. United States, 394 U.S. 217, 221 (1969); United States v. Hayman,
342 U.S. 205, 219 (1952).
   388. United States v. Hayman, 342 U.S. 205 (1952).
   389. See supra note 377.
   390. 23 D.C. CODE § l10(e) (eff. Feb. 1, 1971).
 1970-71 ]               CRIMINAL LAW AND PROCEDURE


motion, or a third, if the interests of justice so require. This regimen of
review should fully satisfy a prisoner's right to collateral attack; resort
to a different court cannot enlarge the scope of his post-conviction
         1
remedy. l
   Section 1 10(g) does not limit a defendant's eligibility for a writ of
habeas corpus, except in a post-conviction collateral proceeding. It does
not limit a prisoner's application for a writ of habeas corpus when a
 § 110 motion is inadequate to test the legality of the prisoner's
detention. The new Superior Court has been given broad habeas
authority for these situations under other sections of the new law. 3
   39 1. The United States Constitution provides in article I, section 9, clause 2, that
 "The Privilege of the Writ of Habeas Corpus shall not be suspended. . . ." Whatever
rights a federal prisoner may have to collateral attack derive.primarily from this clause.
Article I of the Constitution is also the source of the Congressional authority to exercise
exclusive legislation over the District of Columbia. Exercising this latter power,
Congress is entitled to vest the exclusive authority to grant post-conviction relief to
locally sentenced prisoners in the local Article I court, for in no way does this
jurisdictional determination "suspend" the writ of habeas corpus. "The writ of habeas
corpus is a procedural device for subjecting executive, judical, or private restraints to
judicial scrutiny." Peyton v. Rowe, 391 U.S. 54, 58 (1968). Although there are clear
limitations upon the power of Congress to suspend this procedural device, there is no
requirement that the writ, if made available, be made available in a particular kind of
federal court. Chief Justice John Marshall wrote unequivocally in ExpartiBolman, 8
U.S. (4 Cranch) 75, 94 (1807), that "the power to award the writ by any of the courts of
the United States, must be given by written law." By section 110(g) of Title 23, Congress
gave that power exclusively to the Superior Court in a certain category of cases.
   392. 16 D.C. CODE § 1901 (eff. Feb. 1, 1971).

				
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