Law in the news; Legal arrest procedures

The National Education already own network presents a law in the news with Professor Joseph R. Julan associate dean of the University of Michigan Law School. Judge George W. Crockett has said that police action in a shoot out with black separatists and subsequent criticism of him in connection with his release of a large number of persons are all connected to racism. The action of this Detroit judge has generated much reaction and some of that national reaction but really very little has been said on the law involved in this situation. In effect a mass holding mass arrest situation a situation which is likely to arise more frequently than it has in the past. For this reason I have asked Professor Gerald Israel professor of constitutional and criminal law to fill us in on the law of arrest. Jerry what is the basic standard for the arrest procedure under state law and in almost every state the standard is that the officer can make an

arrest when he has probable cause to believe that the crime has been committed and that an individual that he is arresting is the person who committed the crime. Probable cause means more than suspicion but it does not mean that you have to be positive that the man committed a crime. You just have to mean that he's probably has committed the crime. Now we relate that standard to the masseur a situation let me put a basic case the police have reason to believe that one of a group of 30 have in fact committed a crime and in this instance a murder. What does their right to hold the 30 until they have ferreted out they want are more of that group having participated in the crime. Well here we think we have to make a distinction between the police right to hold someone temporarily at the scene of the crime for the purpose of interrogation and checking out at least right to take the person into custody and charge him with the crime as far as taking a person into custody and charging him making what I would call a formal arrest. The courts say that the standard of

probabilities must be determined in a layman sense as the police officer sees it. Yet I strikes me an odds of 1 out of 30 probably are not sufficient to make an arrest. On the other hand they may be sufficient to stop the person to detain him for example to check him out and possibly for example to administer certain tests such as a nitrate test on the scene difficulty in the situation we're talking about as the tests were not administered on the scene which they could not be but the people were taken into custody and taken down to the to the jail and the question is Was that an arrest. You suggest the possibility of at the scene taking a nitrate test of a large number of persons. Is this a problem which involves self-incrimination. No I think I think the courts are pretty clear that self from critic Communication is only communicated testimonial. And that a physical test of the sort they've held that a handwriting specimen for example is not self-incrimination. This also does not involve self-incrimination but let me say the law here is not entirely clear.

I want to emphasize that point. I know that recently the court the Supreme Court of the United States has suggested that one is entitled to counsel apparently at the lineup stage is not the night trip test a situation comparable to that. Well the Supreme Court is divided you need consul one at the lineup stage you do not need consul want a blood test is taken. Why the difference all the difference is that the lineup is a very difficult thing and not an actor not a scientific test. And when a scientific test is taken the court feels there's no need for the lawyer to be there with a lineup. We have different people different heights. You need a lawyer right there at that point to assist the defendant. Jerry you suggest the law in this area both on the mass arrest mass holding even the nitrate test situation is somewhat unclear. What do you see as the role of the trial judge where he faces a situation and yet no Supreme Court decision to guide him. Well I think most trial judges in this area follow their own inclination and this gets down to the situation you presented up in the charge of racism. Some judges are very liberal some judges are

sort of conservative in terms of their attitude and these guards and I think a trial judge this place in this case is going to follow his inclinations judge Crocket follow his inclinations and that would have been predicted in any case where the defendants were black or white. Would you answer one brief question. Would you say he acted with an appropriate degree of discretion. I'd have to know more of the facts in the case before I could say that I've been talking with Professor Jerrold Israel. Our discussion concerns the mass arrest problem. PROFESSOR JOSEPH R. Julan associate dean of the University of Michigan Law School has represented law in the new recorded by the University of Michigan Broadcasting Service. This is the national educational radio network.