3rd Circuit Notes Split Re Application of McNabb-Mallory Rule for a Confession Under 18 U.S.C . § 3501

Per U.S. v. Corley, --- F.3d ----, 2007 WL 2458536(3rd Cir.(Pa.) Aug 31, 2007) (NO. 04-4716):

As explained above, our reading of the statute in Gereau begins with the language in subsection (a) that "a confession ... shall be admissible in evidence if it is voluntarily given," and reads the remainder of the statute in the context of that language. It therefore follows that "shall not be inadmissible solely because of delay in bringing such person before a magistrate judge" in subsection (c) refers to the voluntariness standard in subsections (a) and (b).

Corley disputes that reading, noting that three other Courts of Appeals-those in the Second, Ninth, and D.C. Circuits-understand that phrase in subsection (c) to refer to the McNabb-Mallory rule. FN5 See Alvarez-Sanchez, 975 F.2d at 1402-03; United States v. Perez, 733 F.2d 1026, 1031 (2d Cir.1984); United States v. Robinson, 439 F.2d 553, 563-64 (D.C.Cir.1970); see also United States v. Alvarez-Sanchez, 511 U.S. 350, 361 & n. (1994) (Ginsburg, J., concurring) (noting the split of authority). Instead of reading § 3501 in the context of subsection (a), those Courts begin with the language of subsection (c), which gives three conditions for the admissibility of a confession, only one of which is voluntariness, another being unreasonable delay. From this, they draw the negative inference that the absence of any of those conditions is a sufficient reason for suppressing the confession. See Perez, 733 F.2d at 1031. It therefore follows, they reason, that confessions given within the extendable six-hour period in subsection (c) are inadmissible only if they are involuntary; but confessions outside that period are subject to the McNabb-Mallory rule and may be excluded if they are either (1) involuntary, or (2) voluntary but elicited after a period of "unnecessary delay" within the meaning of Rule 5(a), as it was applied under the McNabb-Mallory line of cases. Put differently, these Courts believe that " section 3501 legislatively overrule[s] the McNabb-Mallory rule only to the extent of (1) unreasonable pre-arraignment, pre-confession delays of less than six hours and (2) reasonable delays in excess of six hours." Id. at 1035.

FN5. The Seventh Circuit Court has taken an alternative approach, which we will not discuss at length, holding that a trial judge has discretion whether to suppress confessions elicited outside of the six-hour period. United States v. Gaines, 555 F.2d 618, 623-24 (7th Cir.1977) ( "Whatever the merits of the opposing approaches, we think it clear that a district judge retains discretion to exclude a confession where there is a delay in excess of six hours. However, the exercise of discretion depends on a congeries of factors, including such elements as the deterrent purpose of the exclusionary rule.").


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