72D CONGRESS 1st Session } SENATE { REPORT No. 201 PROVIDING FOR WAIVER OF PROSECUTION BY INDICTMENT IN CERTAIN CRIMINAL PROCEEDINGS FEBRUARY 5 (calendar day. FEBRUARY 10), 1932.—Ordered to be printed Mr. BRATTON, from the Committee on the Judiciary, submitted the following REPORT [To accompany S. 2655] The Committee on the Judiciary, to whom was referred the bill (S. 2655) to provide for the waiver of prosecution by indictment in certain criminal cases, having considered the same, recommend that it do pass with the following amendments: On page 1, in line 6, after the comma following the word shall, insert the following: "in open court and". On page 1, in line 9, after the word him, strike out the period, insert a comma in lieu thereof and the following: "except that no such waiver shall be allowed if the accused has had a preliminary examination before a United States commissioner or other committing magistrate, which examination resulted in the discharge of the accused." The fifth amendment to the Constitution of the United States provides that no person shall be held to answer for a capital, or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or in public danger. Compliance with this provision frequently entails delay in the enforcement of criminal law as well as expense in connection therewith. Often a person accused of crime admits his guilt immediately upon being apprehended and expresses a desire to enter a plea of guilty and thus begin paying the penalty to be imposed, but is unable to do so until a grand jury is convened and an indictment is returned. In parts of the country, outside of cities, grand juries convene infrequently, thus requiring persons accused of crime, though willing and anxious to enter a plea of guilty, and by reason of inability to make bail, to remain in jail weeks or sometimes months. This is expensive to the Government and is onerous to the accused, who prefers to be serving his penalty rather than merely awaiting action by the grand jury. In cities where grand juries are in virtual continous session the necessary expense incident to presenting evidence to that tribunal could be avoided in case the accused admits his guilt and desires to enter such a plea. Too, in case where guilt is denied and counsel expect to defend vigorously, it may be expected that waiver of an indictment may be frequently forthcoming, counsel being entirely willing to try the issue on an information instead of an indictment. So, enactment of the bill, providing for waiver of the right to be prosecuted only upon an indictment and consenting to the filing of an information, will speed enforcement of the criminal law and reduce the expense thereof. It invades no constitutional right of the accused, because it expressly provides that no such prosecution by information shall be allowed, unless and until the accused, in open court and in writing and under such rules and regulations as the court may prescribe, waives his constititional right to be prosecuted only by indictment. In addition, it is provided that in no event, shall filing an information be permitted if at a preliminary examination before a United States commissioner or other committing magistrate, the accused was discharged. It is believed that these safeguards adequately protect every right of an accused person. Prosecution of felonies by information is expressly authorized in the following States: Arizona, California, Connecticut, Idaho, Louisiana, Missouri, Montana, Nevada, New Mexico, Oklahoma, Oregon, South Dakota, Utah, and Washington. The protection against prosecution except upon indictment, guaranteed by the fifth amendment to the Constitution of the United States, is a personal right which may be waived in the manner authorized by this measure. Although this exact question has not been decided by the Supreme Court of the United States, decisions upon kindred questions lead to that conclusion. In section 2 of Article III of the Constitution it is provided that trial of all crimes, except in cases of impeachment, shall be by jury. Again, the sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. For many years it was generally held that an indictment by a grand jury was jurisdictional; that it was indispensable to the power of a court to try a person accused of a felony, and, accordingly could not be waived. This was the generally accepted doctrine prevailing throughout the United States until the Supreme Court of the United States decided Patton v. United States (281 U. S. 276) wherein it overruled such doctrine, holding squarely that the constitutional right to trial by jury is personal to the accused and may be waived and that upon such waiver, he may be tried before the United States judge without a jury. Mr. Justice Sutherland, speaking for the court, said: It follows that we must reject in limine the distinction sought to be made between the effect of a complete waiver of a jury and consent to be tried by a less number than 12, and must treat both forms of waiver as in substance amounting to the same thing. In other words, an affirmative answer to the question certified logically requires the conclusion that a person charged with a crime punishable by imprisonment for a term of years may, consistently with the constitutional provisions already quoted, waive trial by a jury of 12 and consent to a trial by any lesser number, or by the court without a jury. We are of opinion that the court has authority in the exercise of a sound discretion to accept the waiver, and, as a necessary corollary, to proceed to the trial and determination of the case with a reduced number or without a jury; and that jurisdiction to that end is vested by the foregoing statutory provisions. The power of waiver being established, this is the clear import of the decision of this court in Schick v. United States (195 U. S. 65, 70-71). It may be conceded, at least generally, that under the rule of the common law the accused was not permitted to waive trial by jury, as generally he was not permitted to waive any right which was intended for his protection. Nevertheless, in the Colonies such a waiver and trial by the court without a jury was by no means unknown, as the many references contained in the brief of the Solicitor General conclusively show. But this phase of the matter we do not stop to consider, for the rule of the common law, whether exclusive or subject to exceptions, was justified by conditions which no longer exist; and as the Supreme Court of Nevada well said in Reno Smelting Works v. Stevenson (20 Nev. 269, 279): "It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a law when that reason utterly fails-cessante ratione legis, cessat ipsa lex." The maxim seems strikingly opposite to the question here under review. Among other restraints at common law the accused could not testify in his own behalf; in felonies he was not allowed counsel (IV Sharswood's Blackstone, 355, Note 14), the judge in such cases occupying the place of counsel for the prisoner, charged with the responsibility of seeing that the prisoner did not suffer from lack of other counsel (id.); and conviction of crime worked an attaint and forfeiture of official titles of inheritance, which, as Judge Aldrich points out (quotation supra), constituted in a large sense the reason for withholding from accused parties the right of waiver. These conditions have ceased to exist, and with their disappearance justification for the old rule no longer rests upon a substantial basis. In this respect we fully agree with what was said by the Supreme Court of Wisconsin in Hack v. State (141 Wis. 346, 351–352): "The ancient doctrine that the accused could waive nothing was unquestionably founded upon the anxiety of the courts to see that no innocent man should be convicted. It arose in those days when the accused could not testify in his own behalf, was not furnished counsel, and was punished, if convicted, by the death penalty or some other grievous punishment out of all proportion to the gravity of his crime. Under such circumstances it was well, perhaps, that such a rule should exist, and well that every technical requirement should be insisted on, when the State demanded its meed of blood. Such a course raised up a sort of a barrier which the court could utilize when a prosecution was successful which ought not to have been successful, or when a man without money, without counsel, without ability to summon witnesses, and not permitted to tell his own story, had been unjustly convicted, but yet under the ordinary principles of waiver, as applied to civil matters, had waived every defect in the proceedings. "Thanks to the humane policy of the modern criminal law we have changed all these conditions. The man now charged with crime is furnished the most complete opportunity for making his defense. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the State and may have his witnesses summoned and paid for by the State; not infrequently he is thus furnished counsel more able than the attorney for the State. In short, the modern law has taken as great pains to surround the accused person with the means to effectively make his defense as the ancient law took pains to prevent that consummation. The reasons which in some sense justified the former attitude of the courts have therefore disappeared, save perhaps in capital cases, and the question is, Shall we adhere to the principal based upon conditions no longer existing? No sound reason occurs to us why a person accused of a lesser crime or misdemeanor, who comes into court with his attorney, fully advised of all his rights and furnished with every means of making his defense, should not be held to waive a right or privilege for which he does not ask, just as a party to a civil action waives such a right by not asking for it." The view that power to waive a trial by jury in criminal cases should be denied on grounds of public policy must be rejected as unsound. The rule there declared is applicable here and demonstrates clearly that the guaranty of the Constitution against prosecution except by indictment is personal and may be waived. Though the right to be prosecuted only by indictment may be waived, an act of Congress is necessary to confer jurisdiction to prosecute felonies by information. In the absence of a statute, criminal procedure in Federal courts is in accordance with the common law. At common law, existent at the time of the Revolution, informations could be presented charging misdemeanors, but not felonies, hence this proposed statute. For the reasons stated, it is the belief of the committee (a) That the constitutional right to be prosecuted only by indictment may be waived. (b) That an act of Congress is necessary to confer jurisdiction to prosecute felonies by information. (c) That this bill authorizes the United States district attorney to file informations charging felonies under appropriate restrictions to safeguard the rights of accused persons. (d) That passage of the bill will speed enforcement of the criminal law and at the same time effect a substantial economy to the United States. 72D CONGRESS 1st Session } SENATE { REPORT No. 202 PAYMENT OF LIABILITIES OF THE UNITED STATES TO CERTAIN INDIAN PUEBLOS FEBRUARY 5 (calendar day, FEBRUARY 10), 1932.-Ordered to be printed Mr. BRATTON, from the Committee on Indian Affairs, submitted the following REPORT [To accompany S. 2914] The Committee on Indian Affairs, to whom was referred the bill (S. 2914) to authorize appropriations to pay in part the liability of the United States to the Indian pueblos therein named, under the terms of the act of June 7, 1924, and the liability of the United States to non-Indian claimants on Indian pueblo grants whose claims extinguished under the act of June 7, 1924, have been found by the Pueblo Lands Board to have been claims in good faith; to authorize the expenditure by the Secretary of the Interior of the sums therein authorized and of sums heretofore appropriated, in conformity with the act of June 7, 1924, for the purchase of needed lands and water rights and the creation of other permanent economic improvements contemplated by said act, and for other purposes, having considered the same, recommend that it do pass with the following amendments: Strike out all after the enacting clause and insert in lieu thereof the following: That in fulfillment of the act of June 7, 1924 (43 Stat. 636), there is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, the sums hereinafter set forth, in compensation to the several Indian pueblos hereinafter named, in payment of part of the liability of the United States to the said pueblos as declared by the act of June 7, 1924, which appropriations shall be made in equal annual installments as hereinafter specified, and shall be deposited in the Treasury of the United States and shall be expended by the Secretary of the Interior, subject to approval of the governing authorities of each pueblo in question, at such times and in such amounts as he may deem wise and proper, for the purchase of lands and water rights to replace those which have been divested from said pueblo under the act of June 7, 1924, or for the purchase or construction of reservoirs, irrigation works, or other permanent improvements upon or for the benefit of the lands of said pueblos. SEC. 2. In addition to the awards made by the Pueblo Lands Board, the following sums, to be used as directed in section 1 of this act, and in conformity with the act of June 7, 1924, be, and hereby are, authorized to be appropriated. |