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1 Louis B. Schwartz, Major Issues in the Pre-Arraignment Code i (1966)

handle is hein.ali/mipac0001 and id is 1 raw text is: MAJOR ISSUES IN THE PRE-ARRAIGNMENT CODE Memorandum of Louis B. Schwartz* to the Annual Meeting of the American Law Institute, May 1966 Table of Contents Page I Introduction A. Tentative Draft No. 1: Model or Experiment? 1 B. Definite Action, Approving or Disapproving Tentative Draft No. 1, Should Be Postponed Until 1967. 2 C. Initial Discussion Should Focus on Police Custody for Investigation 2 II Police Custody for Purposes of Investigation Should Not be Authorized 3 A. The Proposal Improperly Transfers Traditional Judicial Power to Police 3 B. The Proposal Improperly Transfers Traditional Jail Power to Police 4 C. The Prisoner Should be Entitled to Have Counsel Present When He Is Interrogated in Custody. Cf. § 5.07. 4 D. Custody by the Police is Not Essential to Continued Police Investigation and Post-Arrest Screening 5 E. The Scheme of the Draft Requires, and the Draft Provides, a Radical and Impractical Change in the Role of the Prosecutor 5 F. The Provisions of §§ 4.04(6) and 4.05 for Extended Police Custody Based on Judgments by the Police of Police Necessities are In Any Event Too Loose 6 III The Stop-and-Frisk Authority of Section 2.02 Should Be Limited to Crimes of Violence, Potential Suspects, the Scene of the Crime and Escape; as Drawn It Is an Open Invitation to General Searches of the Person at the Virtually Uncontrolled Discretion of the Police. 6 IV The Right of Forcible Entry to Arrest in a Private Place (Section 3.06) Should Be Limited to Crimes of Violence or Where a Judicial Warrant Has Been Issued. 8 * Professor of Criminal Law and Administration, University of Pennsylvania Law School; member of the Institute and of the Advisory Committee on the Pre-Arraignment Code.