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In 1943 Justice Frankfurter delivered the opinion of the United States Supreme Court in the case of McNabb versus the United States. The statement by Justice Frankfurter is taken from the decision of a democratic society in which respect for the dignity of all men is central. Naturally guards against the misuse of the law enforcement process zeal in tracking down crime is not in itself an assurance of soberness of judgment disinterestedness in law enforcement does not alone prevent disregard of cherished liberties experiences therefore counsel that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts. Responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this
requiring the police vast with reasonable promptness show legal cause for detaining arrested persons constitutes an important safeguard. Not only in assuring protection for the innocent. But also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the third degree. Which though universally rejected as indefensible still find their way into us. It aims to avoid all the evil implications of secret interrogation of persons accused of a crime. It reflects not just sentimental but a sturdy view of law enforcement. It is sentimental soft to expect the best that's in hosts all the time. The sturdy harder view anticipates the worst part of a
time and prepares in 1943 in New Guinea during the immense confusion and dislocation that immediately follows and I'm fabulous lending to prisoners of war crouch at the rear of a temporary wire cage. A soldier passes these are the first enemy he has seen. They say you know the man. Yeah come on lads. I don't understand a word I'm saying. Naked little monkey. Yeah I sure yeah yeah. Not your going into you then. Yeah had said grin like. Chocolate. Yeah reach. Yeah reach right through now and I don't fall. I like the whole Again I'm going to take your hand off. Come on little monkey. Come on back now Laurie. I'll come back I'll get you tonight and get out here. Go on get out get out. Right all right.
It's mostly gone these guys I don't do it I just pass and that's all just hasn't lost my outfit just passing by a small and passing incident. A flurry of broken wings you thrash of wounded legs and the cat Springs by compulsion and Tiger's rise at the bleat of a tethered cooked or a man in a cage. Look. Good. To every man his due to a series of radio programs about the principles of justice. To every man his do is produce by radio station WHDH of the University of Wisconsin under a grant from the National Educational Television Radio Center in collaboration with the National Association of educational broadcasters now between a wrist and
tried. Lady a lady that was a great performance truly great. Such skill and daring such technical facility. Well thank you Officer we do try. Was I think the most skillful driving I've ever seen that that that tremendous soaring curve to the left from the right hand lane and then all to say you do that. That daring flashing sweep from the right hand lane to the parking place you'll beat that other woman toward your beater although it was brilliant. But quite against the law. How much is it going to cost me to park here do you think about a nickel per hour is the going rate on the meter. Then you won't have missed me for certainly but not for the parking that was very well done. It was your grand and swooping style in getting here that get you arrested. Officer I am not trying to get out of it. I know I broke the law but I just can't stand the idea of going to court and getting fingerprinted you don't have
to how good it is that women drivers have been proved to be the best and most carry the load. True but we on the police force are not allowed to treat people as representatives of a class or group. We have to take people one of the time as individuals and as an individual. You broke the law. Oh. We're not. Going No no not at all you won't be fingerprinted you won't need a lawyer unless you want to contest the obvious fact that you broke the law and we won't take your picture with a number under your chin. Well good. You just go there when they tell you to and say you are guilty and pay your fine and don't argue or 0 or more I'll be there to argue with the oh how well I am relieved now it was too late. That's one way of looking at it but I must say all of that for a parking place. It took a woman of great courage. For small and petty offenses the law provides swift and simple procedures
the offender against minor traffic laws is not likely to see the inside of a cell or even sense the true meaning and significance of arrest. But for more serious offenses a different feeling. Yes yes officer what is it. John Doe Yes John Q.. Yes. You reside at this address. Yes. You are under arrest Mr. Doe for what. We'll explain it down to you have to come with me. Can I get my coat certainly. You wait right there I'll be back Mr. Dog. I have to go with you. Look I said I'll be back I mean I'm sorry Mr. Dog I'm really sorry but you're under arrest. You don't get out of my sight. I'm not too far away either. Well well look. What do you mean. You just tell Mr.. You are a prisoner. That's what I mean. Until you are properly released you will have to be more or less within arm's reach of someone or a lock to something or are locked in something like a wild animal.
I wouldn't put it that way. Like a wild animal on a chain or in a cage that's what it amounts to and I don't think it really means that. Yes it does. That's what it amounts to. You may not actually use the chain now but that's what it amounts to. I mean mercy. You know that I know you're not at my mercy there are laws. Come on get your coat let's go. Can I lock the door certainly. Look maybe I left the TV on. Maybe there's running water in the bathroom maybe the oven is on. A window is open. You just can't pull a man out of his house like this how you listen. I can if I have to. You make arrangements to have someone close your house or we will leave all windows open OK we're close it no but don't give me any more maybes. I can pull you out of here with handcuffs on if I have to because I was sent here to bring it in and I'm going to know what it would be all right. Everything's all right let's go. What about the coat. This isn't shirtsleeve weather. Good Lord what do I care about a coat. Let's go. Don't tell me I'm not an animal on a chain. Come on. From my end of the ropes.
There is a difference between the petty offense the rest of most of us know and the serious offense arrest that few of us feel when a citizen is arrested for a serious offense he loses his liberty. He comes under physical control of men. He is literally at their mercy like a monkey on a chain or a bird in a cage. But the law goes with him. He has rights the first right might be called the right not to disappear. The right to an address to maintain some sort of formal entity in society the right to keep one's whereabouts known. Americans can't legally be thrown in jail to rot unknown to all but their jailers. That technique is for the lords and masters of the world for the dictators. Every American has a right on a rest to have his name registered along with the charge against him.
He has a right to be booked and every American arrested has a right to contact family or friend or lawyer. That's the law. But. I got out now maybe it's a secret message. Yeah you get all sorts of secret messages locked up in his head. Look buddy I made it cut it out. You keep it up and I'll come over and bang that radiator with your skull. You got a good beating coming you know. Yeah I know. Well don't rush it. Enjoy life. I'm cold I'm really cold. I am VERY call I am not. I'm warm. How about you. No I'm warm to your deal. Thank you. It's sort of like the movies. Yeah like the movie. I mean it you know I was going to work you to come along and point a gun at me and force me into a car and bring me up to a hotel room a warm hotel room. This is like the movies I've seen a dozen times. Some pool guy locked in a hotel room with a couple of big slobs wearing shoulder holes does a plane cogs drop that slob stuff I mean it just in the
movies if you don't come around in a few minutes I'm going to break some of your bones and put you in a hospital. But don't rush it getting smart. It's like being kidnapped you kidnap me and hold me here until I pay ransom by confessing. Well I don't have to talk. I don't have to confess so it yourself but you'll talk we won't sit around or wait much longer I won't talk don't well talk you know what out of you it's like being kidnapped. I never heard of kidnappers who stripped the victim and made him sit naked in a cold room. I'll tell you another difference big mouth. We're not kidnappers were officers of the law. I'm call for us. It's like spring time. The circumstances of the preceding scene in the hotel room the threatening beating the naked suspect are matters of fact. No person under arrest is required to talk to the police if he doesn't want to. That's the law. But there are or have been police jurisdictions in this
country in which officers of the law were quite skillful at making talk seem the most desirable of two alternatives to eager aggressive officers perhaps under public pressure. A man in a cage with the truth locked in his head can be a temptation. The cage may be a hotel room basement or in incommunicado so there's been so so designated in some jails and there are many ways and many reasons for using them in 1872. A civil servant in India had this to say about red pepper. Oh yes red pepper. Well there is a great deal of laziness in it. It is far more pleasant to sit comfortably in the shade rubbing a red pepper into a poor devil's eyes than to go about in the sun hunting up evidence. Well it's water isn't your deal.
Thank you oh god. And there may be other pressures. A man in a cage is a target. This from a Supreme Court decision written in 1936. It was springtime. The other two defendants were also arrested and taken to the same jail on Sunday night April 1st 1934 the same deputy accompanied by a number of white men one of whom was also an officer and by the jailer came to the jail and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it and they were likewise made by the said Deputy definitely to understand that the whipping would be continued unless and until they confessed and not only confessed but confessed in every matter of detail as demanded by those present. And in this manner the
defendants confessed the crime and as the whippings progressed and were repeated they changed and adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents desired by the mob. They left with a parting admonition and warning that if the defendant changed their story at any time in any respect from that last stated the perpetrators of the outrage would administer the same or equally effective treatment. Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that impertinent respects the transcript reads more like pages torn from some evil of Tiger Tiger burning bright in the forests of the night. What immortal hand or eye could frame by Fearful Symmetry. When the stars threw down their spears and watered heaven with their
tears. Did he smile his works to see. Did he who made the lamb make thee. Gut. Oh of course not I trust your you're the most honest guy I know. Do you feel involuntary confessions are not admissible in American courts. Oh man. Perhaps most men certainly can be beaten hammered twisted stretched burned or soaked into admitting almost anything. Confession from torture is hardly a reliable refusal of involuntary confessions. Should stop theoretically to the third degree. But a man in a cage is a tempting target and decide it is for a pleasant herd to sit comfortably in the shade rubbing red pepper into some poor devils than to go about in the sun hunting up evidence. The practice is difficult to control. Community concern is the
strongest defense against brutality and unlawful action of any kind. Prompt booking of a person arrested is another and so is the right to call family or friend or lawyer. A last line of defense rests in the presence of a third party a magistrate who is not under community pressure to produce sudden results. No matter what the means. Who is not required himself to gather evidence. Who can't get to the man in the cage. A magistrate. A cool third party in every state. There is legislation which requires that an arrested person be taken before a magistrate without unnecessary delay. Everyone arrested on a serious charge is entitled to a preliminary hearing in the McNabb case. The Supreme Court said legislation such as this requiring that the police must with reasonable properly show legal cause for detaining arrested persons constitutes an important safeguard not only assuring protection for the
innocent but also in securing conviction of the guilty via methods that commend themselves to a progressive then self-confident society. But whom United States vs.. In 1951 it was the minority who said there are time honored police methods for obtaining confessions from an accused. One is detention without arraignment. The problem we dealt with in McNabb versus the United States. Then the accused is under the exclusive control of the police subject of their mercy and beyond the reach of counsel or of friends. What happens behind doors that are opened and closed with US soldiers Scrushy of the police. There's a black chapter in every country. They are free as well as the despotic. Modern as well as the ancient. So the majority another extension of the McNabb rule would accentuate the shift of the inquiry as to the admissibility
from the voluntariness of the confession to the legality of the arrest and restraint. Complete protection is afforded the civil rights of an accused who makes an involuntary confession or statement. When such confession must be excluded by the judge or disregarded by the jury upon proof that it is not voluntary. In the Corrigan case the defendant was arrested and held on one charge. Two days later after having been under what the Supreme Court called circumstances indicating some psychological pressure the defendant confessed to another crime altogether. The minority was concerned about the practice of arresting a man lawfully for one crime and often a minor one and then getting him to confess to another. The majority replied that a forced confession is a forced confession in either case and therefore inadmissible in court. There's been disagreement on the upper levels of
the law over this and other narrow issues but there is solid agreement on these fundamentals. It is against the law for the police to make citizens disappear. Every person under arrest is entitled to be booked. His name registered and the charge against him registered every person under arrest is entitled to contact friends or family or lawyer No arrested person can be forced to talk to make statements unless he so desires. But the police may lawfully interrogate arrested persons lawfully and every arrested person is entitled to a preliminary hearing. No John Doe arrested booked properly called his lawyer refused to talk. Jail I Abati I a cellmate What's your name. Hey buddy what's your name. Oh Dode John Doe Yeah they want you to fall.
I mean Magic Oh no they rough Ya-Bon freeze Yeah some get in trouble for love. No no he was a decent sort of person very decent All right you know what you're in for alimony I've been here before that you are. Yeah but what about you. I'd rather not talk about it. Come on get it off you had chest. I'm fascinated I'm charmed Oleson. I'd rather not ah come on let it look I'm innocent I don't want to talk about it in a soon. Good thing you made a mistake. I can prove it sheer up. Listen I've got a family up so of on have I got a family oh I don't want the publicity of a trial and I don't want the expense of a trial. I can't afford to pay for someone's mistake with my time and money fighting a mistake. I've got a family to support I meet through that's why I'm here to alimony. I still don't know why I did it. Yeah the marriage thing must have been spring time now that spring time it's powerful. Prosecutors are human the most honest most professional
best trained best and most decent. Make a mistake. Men are after all men and quite capable at times of making monkeys of themselves or someone else on sun sinks on was. Done. Under their seat. This isn't just your org. Berthing sitting on your shoulder George. Yes George the rocket. Fine but we forgot. Though constructed by men they were the finest training and backed by computers and
full batteries of instruments rockets failed small mistakes can write great projects and men make them as John Doe knows. Consequently the preliminary hearing has come into use in judicial matters in recent years. It's a kind of judicial countdown before the expensive liftoff of trial justice Rosenberg a Wisconsin judge put it this way. The object or purpose of the preliminary investigation is to prevent hasty malicious improvident and oppressive prosecutions to protect a person charged from open and public accusation of crime. To avoid both for the defendant and the public the expense of a public trial. And to save the defendant from the humiliation and then be involved in public prosecution and to discover whether or not there are substantial grounds upon which a prosecution may be based. John Doe will be brought before a judge. There will be an informal hearing to
determine whether or not the state has sufficient evidence in hand to hold John Doe for trial to see for one thing whether or not someone left a monkey out of the rocket. If there is not enough evidence to make a case against him John Doe will be released. If there is enough evidence one of two things may happen to John Doe. He may be returned to his cell. Hey look I am not sorry you aren't hurt. I was released after the preliminary hearing wow why and I also. After all alimony isn't the alimony that got your them want it wasn't a wife you Drabble to divorce your bigamist it's the 4 you're still married. Hey wait a minute officer. Look I've had it all you know I called a lawyer a book they ain't talked and we went through a preliminary hearing. I still got bail to go along. Come on I need advice. The preliminary hearing may free the suspect send him back to
jail to await trial or release him on bail. The decision concerning the wisdom of releasing on bail as well as the amount of bail is a part of the preliminary hearing. This simple principles which support our system of justice interlock to form a sturdy fabric of New Chile reinforcing threads. One such thread is this. Each suspect must be presumed to be innocent until proven guilty. Innocent persons cannot be hidden away and beaten until they confess to something they did not do. Innocent persons should not be subject to the expense and pain of public trial if trial can be avoided by a preliminary hearing but the preliminary hearing does not decide questions of innocence or guilt. It cannot convict. It is simply a means of examining the evidence available before trial. An innocent
person may seem guilty in terms of a preliminary hearing but he's presumed to be innocent. He has a right to trial and it's in the interest of justice that he be released on bail in order that he may prepare the strongest defense possible. Equally important is the simple fact that an innocent man belongs with his family and friends not in jail. Innocent men should not spend the pretrial period suffering the punishment of confinement. Bail in a sense is a long invisible leash it keeps a man within reach but out of jail until trial even after trial it's possible for many defendants to be released on bail if there's been substantial error. If a case is being appealed a man who may yet win his case should not remain in prison. The amount set for bail depends on the
circumstances of the case. A judge may not set bail so high as to keep a man in prison who might reasonably be expected to remain on the leash for trial. Plain common sense and reason control a matter of bail. One who is charged with an offense punishable by death is not entitled to bail as a matter of right and no one is permitted release on bail who might be expected to run away. Individual circumstances control the decision. Hey come on officer. Now comes I don't get well in the first place you have no permanent residence no ties in this city. Well I got a wife and kids here and in three other cities in the second place you tried to jump bail at least once in your past and in the third place we were just talking about it your married wife number one in April. Wife number two. April wife number three April Wife Number 4 April and the one you divorced April.
That's spring time is rough on me and I'll come back to cause my lad to spring. To every man his due is produced by radio station WAGA of the University of Wisconsin under a grant from the National Educational Television Radio Center and distributed by the National Association of educational broadcasters script by Milburn and Elizabeth Carlson content consultant David film and music by Don vaguely. Production by Carl Schmidt. This is the N.A. E.B. Radio Network.
To every man his due
Between arrest and trial
Producing Organization
National Association of Educational Broadcasters
WHA (Radio station : Madison, Wis.)
Contributing Organization
University of Maryland (College Park, Maryland)
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Episode Description
Between Arrest and Trial: Accusation
Series Description
Dramatic-narrative series on principles of justice under the American system of law, particularly the rights of defendants.
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Advisor: Fellman, David, 1907-2003
Music Director: Voegeli, Don
Producing Organization: National Association of Educational Broadcasters
Producing Organization: WHA (Radio station : Madison, Wis.)
Production Manager: Schmidt, Karl
Writer: Carlson, Elizabeth
AAPB Contributor Holdings
University of Maryland
Identifier: 62-17-4 (National Association of Educational Broadcasters)
Format: 1/4 inch audio tape
Duration: 00:30:00
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Chicago: “To every man his due; Between arrest and trial,” 1961-10-16, University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed July 20, 2024,
MLA: “To every man his due; Between arrest and trial.” 1961-10-16. University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. July 20, 2024. <>.
APA: To every man his due; Between arrest and trial. Boston, MA: University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from