A Code for Cops & Confessions

For decades, U.S. police have solved most crimes by questioning suspects-many of whom do not know that they have a constitutional right to silence. Alarmed at police abuses, some eminent jurists now argue that all confessions should be abolished unless made in the presence of lawyers. Equally alarmed, others charge that the result would cripple all law enforcement. Is there a fair, practical compromise?

While the Supreme Court ponders this hottest issue in U.S. criminal law, the prestigious American Law Institute has force-drafted a tentative model code of pre-arraignment procedure. Devised by leading judges, scholars and police chiefs, the code is aimed at giving state legislatures an overall blueprint for maximizing the rights of both police and suspects. Key provisions:

> A policeman may stop, frisk and question any person "observed in circumstances which suggest" that he has been or is about to be involved in criminal activity. After 20 minutes, the person must be freed, or arrested and taken to the station house, or given a summons to appear in court. Every such detention must be fully recorded.

> At the station house, every arrested person must be immediately advised that he has a right to silence, that anything he says may be held against him, that he may promptly call (with police cash) and have access to counsel, relatives or friends. The warning and questioning must be tape-recorded.

> Anyone arrested with a warrant charging a specific crime must be brought forthwith before a magistrate who will inform him of his rights. Those arrested without a warrant must be informed of their rights, but may be held at the station house for taped questioning for up to four hours&-without a lawyer, if the suspect has none. After that, those involved in less serious cases must be either freed or charged. > In serious felonies, such as murder, a suspect may be held for "further screening" (grilling, lineups, etc.), which could extend his detention as long as 22 hours. During "sustained questioning," he is entitled to the presence of his lawyer. When his lawyer is absent, the police are entitled to ask "whether he wishes to make a statement." If he balks, the police are barred from "persistent questioning." After this period, the suspect is either freed, charged and released on bail, or arraigned before a magistrate.

To enforce the code, which has yet to be approved by the American Law Institute's full membership, the drafters aim to exclude illegal confessions and such "poisonous fruits" as incriminating leads gathered from inadmissible statements. The drafters have stirred intense controversy by 1) approving some interrogation without lawyers present, and 2) not calling for free lawyers for all indigent suspects-thus admittedly giving an advantage to anyone able to afford counsel. The drafters argue that the U.S. simply does not have enough lawyers to represent every arrested indigent. They point to such other pioneering safeguards as tape-recording, and conclude that their whole code gives arrested persons "greater protections than are presently provided anywhere in the U.S." Will that be enough for the Supreme Court? This month, during oral arguments in five crucial confession cases, one lawyer who cited the draft code drew a sharp comment from Justice Hugo Black. "That model code," needled Black, "is that in the Constitution?"

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