The Attorney General's Conference on Crime, held at Washington in December 1934, adopted the following resolution: "VII. That the Attorney General's Conference on Crime believes that the time is ripe for securing a substantial improvement in criminal procedure, and it, therefore, recommends to all legislatures which are meeting in 1935, a careful consideration of procedural recommendations" Specifically, it recommends the following: * * "6. Adopting a rule permitting court and counsel to comment to the jury on the failure of the defendant in a criminal case to testify in his own behalf." In September 1931, the American Bar Association, at its annual meeting, adopted a resolution to permit the prosecution to comment on the fact that the defendant in a criminal case did not take the stand as a witness. The debate which preceded the adoption of this resolution is very interesting. Mr. Louis S. Cohane, of Michigan, first heard on behalf of the resolution, made the following remarks: "This particular resolution and many others were debated before the section of criminal law and criminology to a considerable extent by a very representative gathering. Now we face the fact today that the greatest menace to modern society is organized crime and the crime problem. Anything that we can do to strengthen the arm of the law in its combat against this menace, with reasonable regard for the rights of the accused, we should do. What objection can an accused have to stating to the court and the jury those facts which, if true, would clear him of the charge? Who is in a better position to state the facts than the accused, and why should he not take the stand? The American public looks to the American Bar Association as the leaders of legal opinion in this country today, to strengthen the right arm of the law in its battle against organized crime, and therefore we should vote for the resolution." Mr. Robert Von Moschzisker, former Chief Justice of the Supreme Court of Pennsylvania, then rose in support of the resolution and said: "The law is supposed to be the essence of common sense. Now, why should not the administration of the law also embody the essence of common sense? It has long been established in the English law that when one is accused of crime and stands silent, that that fact may be offered in evidence in any criminal court. Now why, when one is accused of crime outside of the court room and stands silent, and that may be offered in evidence, why, when he is accused of crime inside the court room, should the prosecutor and the judge, be denied the privilege of a common sense comment that this man or woman who is accused has offered no explanation? The jury must think of that, and why should it not be argued to them? * In at least 8 years' actual experience in the administration of the criminal law as prosecutor in the lower courts I have never once known a person to refuse to take the stand who was not guilty." The right to comment on the failure of the defendant to testify in a criminal case has likewise been recommended by the following bodies: American Law Institute (1931); National Commission on Law Observance and Enforcement (1931). California Commission for the Reform of Criminal Procedure (1927); Hawaii Governor's Advisory Committee on Crime (1930); Michigan Commission of Inquiry into Criminal Procedure (1927). Minnesota Crime Commission (1927); Missouri Crime Survey (1926); New York Crime Commission (1931); Pennsylvania Commission to Study the Laws, Procedure, etc., Relating to Crimes and Criminal (1929); and Rhode Island Criminal Law Advisory Commission (192933). CONSTITUTIONALITY OF COMMENT Comment upon the silence of the defendant in a criminal trial is not a violation of the constitutional provision against self-incrimination. This constitutional guarantee is found in the fifth amendment and reads as follows: "No person * * * shall be compelled in any criminal case to be a witness against himself * * *"" When this amendment was adopted the defendant in a criminal trial was not competent to testify. The language of the constitutional provision clearly indicates that its object was solely to prevent the witness from being compelled to give testimony against himself. It can hardly be said that the framers of this amendment intended to prevent reasonable inferences from being drawn from the failure to exercise a privilege not granted until long afterwards. Federal courts have had no occasion to pass upon the constitutionality of permitting comment on defendant's failure to testify, since as was noted above, the statute which made the accused a competent witness, likewise forbade such comment. S. Repts., 74-1, vol. 1-58 Comment on the failure of the accused to testify has in fact no proper bearing upon compulsory self-incrimination. In reality it has to do with a totally different subject, namely, with the question of failure to produce witnesses. In effect, the proposed amendment will do no more than permit an inference to be drawn from the fact that the accused has failed to produce a competent, available, and most important witness, that is, himself. Such attempt to thwart the ends of justice should properly be brought to the attention of the court and the jury. Respectfully submitted. APRIL 15 (calendar day, APRIL 16), 1935.-Ordered to be printed Mr. KING, from the Committee on the Judiciary, submitted the following REPORT [To accompany S. 1572] The Committee on the Judiciary, to whom was referred the bill (S. 1572) to amend an act entitled "An act to regulate the manner in which property shall be sold under orders and decrees of any United States courts", approved March 3, 1893, as amended, having considered the same, report favorably thereon and recommend that the bill do pass with the following amendments: On page 2, line 12, after the word "sold" insert the words "as a whole or in separate parcels". On page 3, lines 6 and 7, strike out "The court, after a hearing, upon such notice to parties in interest as said court may direct", and insert in lieu thereof "After a hearing of which notice to all interested parties shall be given by publication or otherwise as the court may direct, the court. On page 3, line 21, after the word "value" strike out the period and insert a colon and the following: Provided further, That before confirmation of any private sale the terms of such sale shall first be published in such newspaper or newspapers of general circulation as the court having jurisdiction may direct at least ten days before confirmation; and such private sale shall not then be confirmed by said court where a bona fide offer has been made, under such conditions as said court may prescribe, which offer shall guarantee at least a 10 per centum increase over the offered price specified in such private sale. The above amendments were also recommended to the House of Representatives by the House Committee on the Judiciary in House Report No. 639, which accompanied H. R. 5455, a companion measure to this bill. The purpose of the bill is explained in said House report, which is incorporated herein and made a part of this report. ★4-18-35 [H.Rept. No. 639, 74th Cong., 1st sess.] The Committee on the Judiciary, to whom was referred the bill (H. R. 5455) to amend an act entitled "An act to regulate the manner in which property shall be sold under orders and decrees of any United States courts", approved March 3, 1893, as amended, after consideration report the same favorably to the House with amendments, with the recommendation that the bill, as amended, do pass. The committee amendments are as follows: 1. Page 1, line 12, after "sold" insert "as a whole or in separate parcels." 2. Page 3, line 6, strike out line 6 and the first seven words in line 7 and insert in lieu thereof "After a hearing of which notice to all parties interested shall be given by publication or otherwise as the court may direct, the court". 3. Page 3, line 19, after the word "value" strike out the period, insert a colon and the following: "Provided further, That before confirmation of any private sale the terms of such sale shall first be published in such newspaper or newspapers of general circulation as the court having jurisdiction may direct at least ten days before confirmation; and such private sale shall not then be confirmed by said court where a bona fide offer has been made, under such conditions as said court may prescribe, which offer shall guarantee at least a 10-percent increase over the offered price specified in such private sale." H. R. 5455 amends the existing law which regulates the sale of property under order or decree of a United States court. Present law provides for public sale of real estate, and also for private sale. When a private sale is had the property must be appraised by three disinterested appraisers and may not be sold for less than two-thirds of the appraised value. Due to the wording of the act which provided for private sales (Public Law No. 426, 73d Cong.) uncertainty has arisen whether the requirement that the property be appraised and not be sold for less than two-thirds of its appraised value applies to public as well as private sales. It was not the intent of Congress that this requirement should apply to public sale, and the first section of H. R. 5455 clarifies the law on this point. second purpose which this bill accomplishes in section 1 is to permit a single sale of separate parcels of property located in different districts. By committee amendment no. 3 to section 1 a requirement is made that at least 10 days before confirmation of a private sale the terms thereof must be published in such newspaper or newspapers of general circulation as the court ordering the sale shall direct, and if a bona fide offer is made which will guarantee as much as 10 percent more than the offered price specified in the proposed private sale then the private sale shall not be confirmed. A Section 2 of the bill requires that the same procedure which is prescribed for the sale of real property be followed in the sale of personal property, unless in the opinion of the court rendering the order or decree it would be best to sell it in some other manner. The third and final section of the bill lays down rules for the publication in newspapers of notices of proposed sales. The cost of advertising is reduced by making it possible to avoid the publication of long descriptions, and by making it possible in cases where the property is located in more than one county, State, or district, to avoid duplicate advertising in each of such counties, States, or districts. Notice of a proposed sale must be published once a week for at least 4 weeks prior to the sale in at least one newspaper, printed, regularly issued, and having a general circulation in the county, State, district, or circuit where the property proposed to be sold is situated. The notice must be substantially in a form approved by the court ordering the sale. The court may direct and require the publication of the notice in such additional newspapers as he may in his discretion think proper. The Attorney General has requested the enactment of this proposed legislation for reasons given in the following communication to the Chairman of the Committee on the Judiciary, to which particular attention is invited: Hon. HATTON W. SUMNERS, DEPARTMENT OF JUSTICE, OFFICE OF THE ATTORNEY GENERAL, Chairman Committee on the Judiciary, House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: I enclose herewith a draft of a bill to amend the existing law regulating the manner in which property shall be sold under orders and decrees of United States courts. The proposed legislation is not only of general importance, but it is also essential to the expeditious and satisfactory conduct of the proposed sale of the property of the Pan American Petroleum Co. and the Richfield Oil Co. of California, valued at many millions of dollars, in which the Government is vitally interested to the extent of several millions, and which is now in the hands of receivers appointed by the United States District Court. The enclosed bill is intended to accomplish three principal purposes: 1. It clarifies the provisions of the act of June 19, 1934 (ch. 662, 48 Stat. 1119; sec. 847, title 28, U. S. C.), which permits private sales upon the order of the court; and which further provides for an appraisal and prohibits confirmation of any sale for less than two-thirds of the appraised value. Uncertainty has arisen as to whether the requirement of an appraisal and the ban against a sale for less than two-thirds of the appraised value apply to public as well as to private sales. The appraised value of the Pan American property is in the neighborhood of $60,000,000 and, as the market for such property is extremely limited, it is not possible to sell it for two-thirds of its appraised value. The best tentative offer is about $23,000,000. It is important that the provisions of the act of 1934 be so clarified as to leave no doubt that such property may be sold at public sale without restriction. 2. The bill permits a single sale of different parcels of property located in several districts. 3. The bill makes provisions which will greatly reduce the cost of advertising by making it possible to avoid the advertisement of long descriptions and, in cases where the property is situated in several districts, to avoid the necessity of advertising in all such districts. I shall be glad if you will introduce the enclosed bill and lend your active support to its early enactment. Sincerely yours, HOMER CUMMINGS, Attorney General. In compliance with clause 2a of rule XIII, there follows below draft of proposed bill (existing law printed in roman, with matter proposed to be omitted in black brackets, and new matter in italics): "All real estate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the courthouse of the county, parish, or city in which the property, or the greater part thereof, is located, or upon the premises or some parcel thereof located therein, as the court rendering such order or decree of sale may direct [: Provided, however, That the court may, upon petition therefor and a hearing thereon after such notice to parties in interest as said court shall direct, if it find that the best interests of said estate will be conserved thereby, order and decree the sale of such real estate or interest in land at private sale: Provided further, That the court shall appoint three disinterested persons to appraise said property, and said sale shall not be confirmed for less than two-thirds of the appraised value.]: Provided, however, That if said property shall be situated in more than one county, State, judicial district of the United States, or judicial circuit of the United States, whether in one or more parcels, said property shall be sold at public sale at the courthouse of the county, parish, or city in which the greater part thereof is located or upon the premises or some parcel thereof as the court rendering such order or decree of sale may direct: And provided further, That if at the time said property is offered for sale it is in the possession of a receiver to receivers, or ancillary receiver or ancillary receivers, appointed by one or more district courts of the United States, said property wherever situated shall be sold at public sale in the district of primary jurisdiction at the courthouse of the county, parish, or city situated therein in which the greater part of said property in said district is located or on the premises or some parcel thereof located in such county, parish, or city therein as the court having primary jurisdiction by such order or decree of sale may direct, unless said court shall order the sale of the properties or one or more parcels thereof in one or more ancillary districts. The United States court having primary jurisdiction shall be deemed to be the court first appointing any such receiver. "The court, after a hearing, upon such notice to parties in interest as said court may direct, may order and decree the sale of such real estate or interest in land or any part thereof at private sale for cash or other considerations and upon such terms and conditions as the court directing the sale may approve, if it finds that the best interests of the estate will be conserved thereby: Provided, That before confirmation of any private sale, the court shall appoint three disinterested persons to appraise said property or, if the court deems advisable, different groups of three appraisers each to appraise properties of different classes or situate in different localities, and no private sale shall be confirmed at a price less than two-thirds of the appraised value. The |