(concurring).
I agree with the ruling that the second, - post-arraignment, confession is inadmissible. I agree that it is inadmissible, among other reasons, because it was obtained from the accused before he had an opportunity to obtain counsel, who undoubtedly would have advised him to exercise his right of silence. But I also think that confession was inadmissible because it was tainted by the first confession, admittedly obtained in violation of Rule 5(a),1 as construed in Mallory.2 While the court suggests it might be appropriate to so hold and thus overrule our decisions in Goldsmith3 and Jackson,4 it passes the question. I would not.
In remanding for a new trial, the court also passes the question of the admissibility of the coroner’s testimony with respect to the body of the victim. Again I would not. To me, the body, and the coroner’s findings after examining it, constitute tainted evidence which must be excluded. Because of the importance of these questions, I think it appropriate to develop my views at some length.
I.
On the issue of the admissibility of post-arraignment confessions, there are two extreme positions. The first is that the intervention of a magistrate’s warning to the accused that he may remain silent washes the slate clean, erasing all prior wrongdoing by the police, so that any subsequent confession is at least presumptively free of the taint of the illegally obtained admission. The other absolute position is that, because “the psychological and practical disadvantages of having [once] confessed” under illegal conditions can never be wholly overcome —since “the secret is out for good” and “the cat [can never be got] back in the bag” 5 — the extraction of an illegal confession stands as a permanent bar to the admission of any subsequent confession. In my view, both of these rules are unsound. They have the virtue of simplicity, but that is not enough to make either acceptable.
The second rule would be justified if our only concern were to discourage improper police action. Certainly,- that is a consideration, and a most important one. Indeed, it is a sufficient reason for excluding an illegally obtained confession. Even a wholly voluntary confession obtained in violation of Rule 5(a) is inadmissible. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; *249Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. But we should not forget the rationale of this exclusionary rule, or carry it too far. The Mallory doctrine merely implements Rule 5(a), one of the purposes of which is to prevent involuntary confessions. And, though harsh penalties are appropriate, even when the accused has not been coerced, we cannot ignore the public safety in our attempt to correct police wrongdoing. Thus, no one suggests that because a suspect has been illegally detained and has confessed, he must be let free, immune from all further prosecution for the offense. Doubtless, this would be a most effective deterrent to illegal interrogations, but the cost to the public is too great. So, here, while a sound policy requires exclusion of a confession obtained in violation of Rule 5(a), voluntary or not, it does not follow that such wrongdoing “perpetually disables the confessor from making a usable [confession].” United States v. Bayer, 331 U.S. 532, 541, 67 S.Ct. 1394, 1398.
But the other rule, equally mechanical, is no better. Indeed, it is worse. The assumption that a commissioner’s statement to an accused, who has already ■confessed, that he may remain silent, will immediately remove the psychological •disadvantage he suffers when confronting the same officers, who know his secret, is .simply unrealistic. That being so, to allow the police, who have gained this unfair advantage, knowing the illegality of their action, now to reap the full benefit ■of it, is to make a mockery of the Mallory ■exclusionary rule.6 Here, instead of carrying the stricture for wrongdoing too far, the penalty is nonexistent.
Apparently everyone now agrees that the true test governing the admissibility ■of an otherwise voluntary subsequent ■confession is whether it is induced by the first illegal confession, or independent of it. If the subsequent confession is an independent act, it cannot be the fruit of the wrongdoing which tainted the first confession. Nor, assuming absence of coercion and other improper inducements, can it then be involuntary.
Admittedly, it is difficult to determine whether there is a connection between two confessions. But, human nature being what it is, we must recognize a presumption that one is the fruit of the other. This rule of connection admittedly governs where the first confession was coerced. There is then a rebuttable presumption that all subsequent confessions are tainted by the continuing influence of coercion. See Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948; cf. Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481. See also, Note, 70 Yale L.J. 298, at n. 3. The same principle should control with respect to the subsequent reiteration of a confession obtained in violation of Rule 5(a), since, even here, the first confession is at least presumptively involuntary.
It is, of course, true that a finding of coercion or “involuntariness” is unnecessary under the Mallory exclusionary rule. And that is as it should be, considering the impossible handicap of an accused in disproving the usually overwhelming testimony of police officers that he confessed freely. See Mr. Justice Black, dissenting, in Gallegos v. Nebraska, 342 U.S. 55, at 74, 72 S.Ct. 141, 96 L.Ed. 86, and Mr. Justice Douglas, dissenting, in Crooker v. California, 357 U.S. 433, at 447, 78 S.Ct. 1287, 2 L.Ed.2d 1448. But, as already noted, the prime reason for excluding confessions obtained in violation of Rule 5(a) is that illegal detention is so potentially conducive to coercion that any confession procured during that time will be conclusively presumed involuntary. McNabb v. United States, supra; *250Upshaw v. United States, supra; Mallory v.United States, supra. See Comment, 10 Am.U.L.Rev. 53, at 54-55. Moreover, even when unaccompanied by the cruder physical or psychological inducements, interrogation of a lone suspect in the jail who has not yet been reassured by a judicial officer of his right to silence is “inherently coercive.” See Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 38 L.Ed. 1192.
The question remains whether the presumption of continuing coercion can survive the magistrate’s hearing at which the accused is authoritatively advised, in the presence of his tormentors, that he may remain silent. I think it does. So saying, I do not belittle the commissioner’s role or the importance of the statement required by Rule 5(b). But it must be remembered that the Rule contemplates a whole man, freshly arrested. For him, timely counsel as to his constitutional rights is a strong shield against police efforts to obtain a confession. The “broken” man, who has already yielded to coercion, is not so easily revived. See Malinski v. New York, 324 U.S. 401, 428-429, 65 S.Ct. 781, 89 L.Ed. 1029 (Rutledge, J., dissenting in part). Even without any concrete evidence of new coercive tactics after the preliminary hearing, I would continue to presume involuntary the subsequent confession of an accused from whom one illegal confession has already been extracted.
It may be said I make too much of the presumption that a confession obtained during illegal detention was secured by coercive tactics.7 But the conclusion that two confessions are probably connected does not entirely depend upon the assumption that the first was involuntary and that the influence of initial coercion has continued. For to quote Justice Jackson again, no matter what prompted the first confession, the suspect who has once “let the cat out of the bag” knows that “he can never get the cat back in the bag.” United States v. Bayer, supra, 331 U.S. 540, 67 S.Ct. 1398. While the psychological helplessness that comes from surrender need not last forever, I think the burden should be on the Government to show that a second confession did not spring from a mind in which all the mechanisms of resistance are stiff subdued by defeat and the apparent futility of further combat. And I do not. think the bare admonition required by Rule 5(b) is likely to convert spiritless despair to alert vigilance in a suspect, whose secret is already out. Accordingly, I would continue the presumption of' connection beyond the preliminary hearing. And, of course, so long as it can be said to be causally related to an admission secured during illegal detention, the subsequent confession is itself “the fruit of wrongdoing,” and must be excluded. See McNabb v. United States,, supra, 318 U.S. at 345, 63 S.Ct. 608; United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 88 L.Ed. 1140; Upshaw v. United States, supra, 335 U.S. at 413, 69 S.Ct. 170.
The presumption of connection between-two confessions is, however, rebuttable. The link can be broken. In my view, a. warning in the terms of Rule 5(b) does-not overcome the presumption. But it does not follow that nothing will.
It has been suggested that the influence of an illegal confession will be cut off if the committing magistrate advises the accused at his hearing that any prior statement will not be admissible against, him. McCormick, Evidence, § 114, p. 237; Note, 26 Texas L.Rev. 536, 538. Coupled with a reasonable breathing space in which to absorb it, an emphatic and categorical ruling to this effect might well be sufficient. But, unfortunately, in the present state of the law, the magistrate is in no position to give such unequivocal assurance. For, under applicable decisions, not every confession obtained prior to the hearing is necessarily tainted. See United States v. Mitchell, supra; Cicenia v. LaGay, 357 U.S. 504, 509, 78 S.Ct. 1297, 2 L.Ed.2d 1523. A watered-down version of the warning, *251to the effect that the prior confession may be inadmissible, is obviously of little help. Indeed, it would then be easy •enough for the police, on the second interrogation, to convince the suspect that his prior confession is, in fact, binding on him.
Certainly, lapse of time is an important factor. See United States v. Bayer, supra. But even a long interval between two confessions will not show them to be unconnected unless the suspect was, in the meantime, enlarged, or at least left alone to regain his strength. The intervention of counsel is a most important safeguard, because a lawyer can presumably be counted on to bring home to the accused his right of silence and forcibly to impress upon him the value of continued silence, despite an early admission. Yet, here too, the particular facts must be probed, to the extent consistent with the attorney-client privilege. It is, for instance, essential to establish that the attorney knew about the original confession. “Fleeting representation,” noted in the official record, is not enough to break the chain of causation that normally connects two confessions. See Goldsmith v. United States, supra, 107 U.S. App.D.C. at 316, 277 F.2d at 346 (dissenting opinion). See also, Jackson v. United States, supra, 109 U.S.App.D.C. at 240, 285 F.2d at 682 (dissenting opinion).
This may boil down to saying that there can be no easy rule as to what evidence of spontaneity will overcome the presumption that a later confession is the fruit of an earlier one, obtained under illegal conditions. In any event, this is not the proper place to attempt to fashion such a rule. I think it sufficient to note now my disagreement with the holdings of Goldsmith and Jackson which, as I read them, deny the propriety of indulging any such presumption or, if they give it fleeting recognition, discard it too quickly. The “reaffirmation doctrine” of those cases is, I think, unrealistic, and I would overrule them. In the present case, there being absolutely no evidence to rebut the presumption that the second confession was the consequence of the first, in fact a mere affirmation of the first, there is no occasion to interpret the facts. On its face, the second confession is the “fruit of wrongdoing,” and so must be excluded.
In suggesting that the court should adopt a stricter rule on post-arraignment confessions when the suspect has already confessed during a period of illegal detention, I do not ignore United States v. Bayer, supra. Under the peculiar facts of that case, notably a span of six months between the two confessions, perhaps continuing a presumption of connection would have been unrealistic. But, in any event, on the question of the admissibility of confessions attributable to police wrongdoing through detention in violation of Rule 5(a), Mallory supersedes Bayer, and its command cannot be avoided by expanding the rule of an earlier case. As I have attempted to show, Mallory requires us to put an end to the reaffirmation doctrine espoused in Goldsmith8 and the second Jackson case.9 Cf. Jackson v. United States, 106 U.S.App.D.C. 396, 273 F.2d 521 (the first Jackson case).
Moreover, even if Mallory does not compel us, I think we should, on our own, reject the Goldsmith doctrine and adopt a more realistic rule. It is clear we have such power. Indeed, it is the function of this court “to formulate rules of evidence appropriate for the District, so long as the rules chosen do not offend statutory or constitutional limitations.” Griffin v. United States, 336 U.S. 704, 714, 69 S.Ct. 814, 819, 93 L.Ed. 993. Of course, as Mallory itself shows, we cannot abuse that power. But, precisely because, “save in exceptional situations where egregious error has been committed,” the Supreme Court’s “policy is not to interfere” in “matters relating to law enforcement in the District,” Fisher v. United States, *252328 U.S. 463, 476, 66 S.Ct. 1318, 1325, 90 L.Ed. 1382, I conceive it to be our duty to fashion a just rule, even without prompting. See Kelly v. United States, 90 U.S.App.D.C. 125, 194 F.2d 150. Cf. Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430.
II.
Though it assumes the discovery of the victim’s body directly resulted from police wrongdoing in obtaining a confession from the accused in violation of Rule 5 (a), the court nevertheless passes the question of the admissibility of the coroner’s testimony. Since the question in all probability will recur on retrial, I would face it now.
It is suggested that the Silverthorne10 Nardone11 exclusionary rule, barring not only illegally obtained evidence but all the “fruit[s] of the poisonous tree,” does not apply in the area of coerced confessions, and that even if it did, the coroner’s testimony relating to the body does not fall within its ban because (1) it did not incriminate appellant; (2) the coroner’s testimony was merely evidence that a crime had been committed; and (3) since the witness himself in no way connected appellant with the crime, his neutral testimony was not material on the issue of the guilt of the accused.
I cannot agree. To me the rule is as unlimited as it is clear. I cannot improve on the formulation of Mr. Justice Holmes: “Knowledge gained by the Government’s own wrong cannot be used by it.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183. I find nothing in Silverthorne or Nardone, or any subsequent case, that distinguishes between more and less rotten “fruits” of police wrongdoing. I do not understand those cases as holding that tainted evidence which, by itself, is not completely damning, should be treated as untainted. Nor does such a distinction survive realistic analysis. It suffices to pose the ease of the murder weapon which is uncovered as the result of an illegally obtained confession. Does-anyone suggest that the ballistic expert-who has examined it may freely testify as-to his findings ? Would the fact that he does not know, or does not reveal that he knows, where the gun and bullet came from make a real difference? I would not think so.
It may be that the causal connection between the original wrongdoing and ultimate evidence sometimes “become [s] so-attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338,. 341, 60 S.Ct. 266, 268. See, e. g., Gregory v. United States, 97 U.S.App.D.C.. 305, 231 F.2d 258. But this is not such a case. Here the connection is perfectly clear. Even under the “attenuation” doctrine, I assume no one would contend that the evidence relating to the victim’s-body was admissible merely because it-came from the coroner rather than from one of the officers who participated in obtaining the illegal confession. In determining whether evidence sought to be introduced is the fruit of governmental wrongdoing we do not simply count the persons interposed. If that were the test it would be an easy matter to circumvent the Silverthorne-Nardone exclusionary rule by imparting illegally obtained information to a series of “neutral” third! persons, the last one of whom could then-testify. The extent of the connection must be judged by the strength of the links in the chain, not their number.
III.
Some will tax these views on the admissibility of post-arraignment reiteration of an illegally obtained confession, and other evidence uncovered through it, with the stricture that they amount to saying “[t]he criminal is to go free because the constable has blundered.” People v. De-fore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (per Cardozo, J.). That phrase makes a telling point. And, considering its *253source, it gives one pause. But, on analysis, like most aphorisms, it proves too glib. Even ignoring the artful slant of the indictment — reversal for a new trial does not set the “criminal” - free, and illegal detention is more than a “blunder”- — there are several good answers to the charge.
Pragmatically, it has been shown that exclusionary rules are the only effective deterrent to police wrongdoing. See, e. g., Mapp v. Ohio, 367 U.S. 643, 651-653, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Elkins v. United States, 364 U.S. 206, 217-218, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Wolf v. Colorado, 338 U.S. 25, 41-46, 69 S.Ct. 1359, 93 L.Ed. 1782 (Murphy, J., dissenting). And, with particular reference to courts of the United States dealing with misdeeds by federal officers, it has been rightly said that “no distinction can be taken between the Government as prosecutor and the Government as judge,” Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Holmes, J., dissenting), and that the court cannot “be made the instrument of wrong,” but, in “the preservation of the purity of its own temple * * * [it must] protect itself and the government from such prostitution of the criminal law.” Sorrells v. United States, 287 U.S. 435, 456, 457, 53 S.Ct. 210, 218, 77 L.Ed. 413 (separate opinion of Roberts, J.). See also, Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652; Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 71 L.Ed. 520; Olmstead v. United States, supra, 277 U.S. at 483-485, 48 S.Ct. 564 (Brandeis, J., dissenting) ; McNabb v. United States, supra, 318 U.S. at 347, 63 S.Ct. 608.
Certainly, judges should do what they can to prevent official lawlessness, for the spectacle of Government officers breaking the law obviously breeds contempt for the law, or, as Mr. Justice Brandeis put it succinctly, “Crime is contagious.” Olmstead v. United States, supra, 277 U.S. at 485, 48 S.Ct. 564 (dissenting opinion). At least the judiciary should not encourage illegal police practices by rewarding guilty officers with a successful prosecution. Moreover, even if excluding the fruits of wrongdoing does not reform the police, “courts themselves [should not become] accomplices in willful disobedience of law.” McNabb v. United States, supra, 318 U.S. at 345, 63 S.Ct. at 615.
For me, in cases like this one, the exclusionary rule has a more immediately compelling basis. Whatever the long-range effects of our decisions in terms of broad policy goals, we must, in each case, determine if the particular defendant, whatever his crime, has been justly treated. And, on this basic level, I think we have no choice here but to exclude from this defendant’s trial evidence obtained, directly or indirectly, through violation of his constitutional and statutory rights. In my view, it is as simple as that. A fair trial means a trial based on evidence fairly obtained.
BURGER, Circuit Judge, with whom Chief Judge WILBUR K. MILLER and Circuit Judge BASTIAN join (dissenting).
The majority holding today is one of the most significant and far reaching of this court in many years. It goes far beyond the statute it purports to “interpret” and far beyond any prior opinion of this court or the Supreme Court. No statute remotely authorizes the holding. No one even suggests that any right under the Constitution is involved.
A “preview” of the story of this crime shows that Killough beat and strangled his wife, then carried the body after dark to the city dump where he buried it. Five days later Killough told police that his wife was missing, then left town without keeping an appointment to give police more information. After another five days he returned and police then questioned him about the “missing” woman throughout a full day without charging him. At the end of the day he was booked and held. The following day he guided police to the body and signed a confession. He was then charged and taken before a United States Commissioner for a hearing under Rule 5(a). *254This shows a plain violation of Rule 5(a) under Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and accordingly the trial judge had no choice but to exclude the written confession so obtained.
However, on the next day Killough, while at the District Jail and not in police custody and while giving a police ■officer instructions as to the disposition of his wife’s body, restated the essentials ■of the crime and the trial judge allowed this oral confession in evidence as a voluntary statement made after he had been •duly warned and advised on his rights under Rule 5(a).
The majority now holds that the voluntary statements made the day after preliminary hearing are also to be excluded. The theory of the majority is not clear but essentially it rests on the idea that the second confession made .after the preliminary hearing is the “fruit” of the first and hence not independent of it.
Judge Youngdahl’s comprehensive and «careful memorandum makes it clear that he was well aware of the standards laid ■down by this court for admissibility of a second confession following an earlier inadmissible confession. In addition to being voluntary it must be found by the trier to be independent of the first and made “after time for deliberate reflection.” Jackson v. United States, 106 U.S. App.D.C. 396, 398, 273 F.2d 521, 523 (1959). See also same case, second appeal, 109 U.S.App.D.C. 233, 285 F.2d 675 (1960) . Judge Youngdahl explicitly found that the second confession was voluntary, independent of the first confession and made “after adequate time for ‘deliberate reflection’.” Judge Danaher’s ■dissent sets forth the finding on this score in his separate dissent at page 260. The majority operates to reverse Youngdahl’s finding sub silentio by holding as a matter of law that Killough’s second confession is not independent of the first.
To realize the extent and sweep of this holding, it must be viewed against the background of the Supreme Court holdings, the statute and the facts. In United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947), the defendant, while under restraint of confinement to his military base because of pending criminal charges, gave a second confession to F.B.I. agents, confirming an inadmissible confession made six months earlier. The Court met the claim that the second confession was “fruit” of the first saying:
“Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” (Emphasis added.) Id. at 540, 67 S.Ct. at 1398.
The effort of the majority to distinguish the Bayer case on the ground of greater time lapse between the two confessions does not stand up under analysis. Kil-lough, with the United States Commissioner’s warning fresh in his mind, having shown awareness of his rights by repeatedly referring to his “constitutional rights,” nevertheless freely, even volubly as the record shows, for the second time told the whole story of his crime.
The true picture cannot be grasped without a more precise statement of the facts which the majority opinion understandably glosses over. In stating the case the majority opinion presents a picture which is neither accurate nor adequate. It distorts by an inference that the police department has developed a heinous “practice” of using a psychological “third degree” on accused persons after their preliminary hearing in the face of unchallenged and explicit findings by Judge Youngdahl that Killough’s state*255ments on the second confession were voluntary and independent of the first. The majority leaps to its conclusion without mentioning Judge Youngdahl’s careful findings and does this on the basis of three instances since the Mallory decision, in which an accused, after he had received the requisite judicial warning, freely confessed his crime for a second time. Not having the needed facts in the case it now decides, the majority reaches outside the record of this case and sets forth facts in another case, i. e., Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618. I can understand why the facts of Naples’ second confession are relied on for they are vastly different from those in Killough’s case. I emphasize that the colloquy set forth in pages 241-242 of the majority opinion is from the case of Naples v. United States, and has no bearing on the instant case.
The majority holding exhibits the same reticence about the statute1 they “construe” as they do about the facts to which the statute is applied. I can understand why it is ignored; one would not recognize it as the statute construed in the majority opinion. The essence of the congressional command was described by Mr. Justice Frankfurter in the Mallory opinion: that once arrested the individual is to be taken “before a judicial officer as quickly as possible so that he may be advised of his rights.” 354 U.S. at 454, 77 S.Ct. at 1359. But once the hearing is held the directive of Congress is satisfied. Congress was not dealing with events after that hearing; its command governs events before that hearing. If a confession is coerced from a detained person, either before or after that hearing it is not Rule 5(a) but the long established law on coerced statements that controls.
I recite the facts both as to the killing and the treatment of the body because they afford an explanation of psychological reactions which would tend to induce a “confessing” state of mind. These facts are not in dispute for Killough did not take the stand to repudiate the statements he made at the District Jail the day following the preliminary hearing.
On October 18,1960, appellant reported to police by telephone that his wife had been missing for five days and agreed to-meet with police on the 19th to assist in an investigation. When he failed to keep-his appointment or contact the police on the 19th, they proceeded with an investigation. They learned from his neighbors and friends that Killough had exhibited little or no concern about the disappearance or absence of his wife when neighbors inquired, and that he reported, her disappearance to police only after the-urging of her brother.
Police located the missing woman’s-abandoned car. They found what chemical analysis showed was human blood on a floor mat in the trunk. Five more-days elapsed without word from Killough and dui’ing the interval police interviewed, among others, Killough’s friend, a. Miss Holmes; on the 24th she called police saying Killough was at her home. Officers immediately went there and after a brief conversation took Killough to-headquarters at 9:30 a. m. He was questioned about the circumstances previously *256reported concerning his wife’s disappearance and his failure to keep his appointment to assist the police. His evasive answers gave police no help toward locating the “missing” woman. At 9:00 p. m. that night he was formally placed under arrest and held.
During the day of October 24th Kil-lough asked for a lawyer. Police gave him a classified telephone directory and offered assistance to call any lawyer he wanted but he said he knew only one, whom he did not want. In answer to some of the questions put to him as to his wife’s whereabouts Killough said that he knew his “constitutional rights” and did not have to answer a question that “would incriminate” him.
The following day, between 12:30 and 1:00 p. m. he admitted killing his wife and burying her body at a city dump. He led officers to the spot and the Coroner was called. On returning to headquarters Killough’s statements were reduced to writing and signed by him. He was then taken to the United States Commissioner for a preliminary hearing under Rule 5, Fed.R.Crim.P. and a complaint charging homicide was filed. The United States Commissioner and the Clerk separately advised Killough of his right to counsel, his right to remain silent, his right to examine witnesses and admonished him that his statements could be used against him. After the hearing Killough was taken to the District Jail.
Killough’s friend Miss Holmes, at whose home he was picked up, attended the Commissioner’s hearing, visited Kil-lough at the jail the next morning and agreed to get a lawyer for him. That same morning, Lt. Daly of the Homicide Squad called at the District Jail and requested permission to see Killough who consented in writing to see him.2 Daly’s stated purpose was to return articles of Killough’s clothing left at the Police Department and to get instructions as to disposition of Mrs. Killough’s body. Killough told the officer he felt very badly about killing his wife and that he had been listening to other prisoners in the cell block discussing newspaper accounts of the crime and was glad they did not know he was the husband of the deceased woman because their comments were not very complimentary. While Daly was so engaged in conversation with Killough, a local attorney known to Killough and presumably in the jail on other business approached Killough asking if there was anything he could do to be of help. Killough said other arrangements were being made for a lawyer. Killough then recounted to Daly the story of the killing and hiding of the body and said he appreciated the fact that the police excused him from staying on the scene while his wife’s body was uncovered at the city dump.3 Killough told Daly that he and his wife had quarreled and that he beat and strangled her. When he realized she was dead he covered her body with blankets and reported to their child and neighbors that she was asleep. That night after the child was asleep he put his wife’s body in the trunk of her own car, and then started for the home of his friend Miss Holmes. Then, according to his statement, he concluded it would be better first to dispose of the body, which he did, burying it under rubbish and debris at the Mayfair Dump. He then went to Miss Holmes’ apartment. In the course of the conversation Killough expressed *257some surprise to Daly that police had found so much blood on the floor of the car trunk since he had only strangled her and had not used a knife. His explanation for his delayed report to police and his subsequent disappearance was that he had become upset and in no condition to answer “a lot of questions.” It is not difficult to understand why a man burdened with the terrible sense of guilt and hearing other prisoners discuss gruesome details of his crime would feel an urge to talk and thereby relieve himself of some of the burden. The urge to confess wrongdoing is such a deep seated natural urge of man that it has been the subject of much research by psychiatrists; at least one psychiatric work has taken title as well as the subject matter from this problem. Reik, The Compulsion To Confess (1959).
Daly testified in response to vigorous cross-examination that he did not go to the jail for the purpose of getting a confession or confirmation of the earlier written confession and had not discussed that possibility with anyone. Daly testified that the Homicide Squad had responsibility for disposing of the body of a homicide victim in the custody of the Morgue and that it was his duty to find out what the next of kin wanted done with the body; he testified that Killough was “overly talkative,” needed no prompting and would have continued the conversation longer if Daly had been willing to stay. Killough also requested Daly to return later to visit. The oral admissions to Daly were made approximately 20 hours after the preliminary hearing.
Judge Youngdahl ruled that the written confession and evidence of re-enactment of the crime which were completed before Killough was presented to the Commissioner, were not admissible under Rule 5(a), Fed.R.Crim.P., but Daly was permitted to testify to the conversation which he had with Killough at the jail on the day following the Rule 5 hearing, this being held by Judge Youngdahl to have been a voluntary statement made while Killough was in lawful detention.
(D
The admissibility of the second confession is not controlled by Rule 5(a) or by any of the cases in the MeNabb-Mal-lory series, for that Rule and every case which has ever construed it relates to statements made during unlawful detention and prior to preliminary hearing and its judicial warnings.4 Every case from McNabb to Mallory treats the preliminary hearing as the terminal point under Rule 5(a). The majority holding constructs an entirely new “statute” and takes a step neither contemplated by Congress nor remotely warranted by the Mallory case. The Mallory doctrine operates to exclude or suppress incriminating statements made during “unnecessary delay” before taking the arrested person to a committing magistrate. The entire rationale of Mallory is that the statements are barred because made while detention is unlawful — unlawful for failure to have a prompt hearing.5 *258Today’s majority holding, carries the “fruit of the poisonous tree” doctrine to new lengths and means in effect, that statements made either before or after the hearing are to be excluded unless the statements are made with the defendant’s lawyer at his elbow. For all practical purposes the majority bars any admissions except where the accused is advised and prepared to enter a guilty plea. It would be difficult to overstate the enormity and scope of this incredible “interpretation” of Rule 5(a). Mallory to a large extent foreclosed police investigation prior to preliminary hearing; this holding eliminates any interrogation of an accused after he has had the judicial warning until he secures a lawyer. By delaying or refusing to retain counsel the defendant can frustrate all interrogation. Indeed if he talks freely, as he did here, the police must refuse to listen! In light of this holding it is ironic that in the Mallory opinion Justice Frankfurter characterized Rule 5(a) as “[a] part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforcement.” 354 U.S. at 453, 77 S.Ct. at 1359. This re-writing of an Act of Congress truly “weaves solidities out of gossamer assumptions” that Killough confessed the second time only because he confessed the first time. Stewart v. United States, 366 U.S. 1, 20, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961) (dissenting opinion).
The majority holding is that a second confession coming as soon as 20 hours after the Rule 5(a) hearing is of necessity “fruit” of the first and not independent of it. In short it is not independent because four judges say it cannot be independent and one judge thinks it is presumptively not independent, all five ignoring Judge Youngdahl’s precise application of our Jackson standards to his fact finding which the majority does not disturb. Of course, sometimes a second confession might not be independent of an earlier one whether the time lapse was six days, six weeks or six months. But a second confession could be truly independent under Jackson standards when made one hour after the first. Time lapse is simply one factor under the Jackson holding, but for Killough, four of the majority make time the sole test and one judge reaches the same result by way of a presumption which he finds unrebutted on this record.6
The majority does not overrule the Goldsmith and Jackson holdings7 but seeks to distinguish Killough’s situation from the posture of the defendants in those cases on the ground that Goldsmith and Jackson had advice of counsel before the second confession. But in his dissent in Goldsmith the advice of counsel which now looms so large to Judge Fahy was derided by him as “fleeting representation.” Our holdings in the Goldsmith and Jackson cases did not rest on so fragile a distinction as the duality of *259warning and advice from both magistrate and counsel but on the more important factor of judicial warning. Killough’s confession at the jail was made after judicial warning and while in lawful detention. Goldsmith and Jackson rest squarely on United States v. Bayer, supra, arid this court ought to follow that holding.
(2)
The opinion of four judges evades the critical issue of the admissibility of evidence relating to the body of the homicide victim by blandly suggesting that issue “may not arise” on retrial. We are not told how a homicide case can be tried without proof or some evidence that a body was found to establish that a death occurred. I suggest that four of the judges who vote to reverse have an absolute and inescapable obligation to pass on this issue since it will inevitably arise in a new trial and the District Court should not be left without guidance on this critical issue. For such clarification as is possible in light of failure to rule directly on the issue, it should be noted that the four dissenting judges would admit evidence of the body while four judges do not state any position; only one judge would suppress all evidence of the body as “fruit of the poisonous tree.” In this posture it seems clear there is no holding in this ease that evidence of the victim’s body should be suppressed on retrial.
If indeed the evidence relating to the body of a homicide victim is to be excluded because of the manner of its discovery, we will have achieved the distinction of fulfilling Cardozo’s prophetic warning that, once adopted, the Supression Doctrine might some day be carried to these ridiculous lengths. Cardozo did not really believe this could happen; he was indulging in a form of judicial hyperbole to make a point. It is inconceivable that judges would go to such lengths ignoring a reasonable balance between individual rights and protection of the public. See People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926).
(3)
In his attempt to answer the dissenting opinions, Judge Fahy says that “a tardy hearing does not satisfy the [Rule 5a] directive of Congress.” We agree. However, the effect of his position would be that once an inadmissible confession was obtained in violation of Rule 5(a) that taint clings to all subsequent statements. Judge Wright, however, does not join in this view; his position seems to be clear that a second confession in these circumstances is presumptively “fruit” of the first and hence not independent. But under his separate opinion that is a rebut-table presumption.
Judge Fahy’s response to the dissenting opinions also states that the first confession “led to the jail confession”; that “the jail confession resulted from a previous violation of Rule 5(a)”; that “the jail confession was the result of the previous confessions * * It is as though repetition and incantation are substitutes for facts and reasons which the District Judge relied upon. No amount of repetition can make sense or soundness out of these “gossamer assumptions.” The majority opinion relies on sweeping generalizations about our system being an accusatorial rather than inquisitorial system as though that statement settles some problems. This familiar semantical device may be thought to associate the dissenting position with the horrors of the ancient inquisitions, but we have made it clear that it is not the Suppression Doctrine, but its extension to this kind of situation, as Cardozo feared it might, to which we vigorously protest.
Judge Wright’s separate opinion rests on an erroneous assumption with reference to an important fact; he rejects the second confession because “among other reasons, because it was obtained * * * before he [Killough] had an opportunity to obtain counsel * * The record shows that when Killough was arrested his crime was already 10 days old, he had fled the jurisdiction and returned, he had talked for two days of obtaining *260counsel, and while he was engaged in the very conversation which constitutes the second confession a lawyer known to him approached him in his cell and offered his services, which Killough rejected. How can it possibly be said that he was denied “opportunity to obtain counsel”? As I see it Judge Wright also confuses the holdings of the McNabb-Mallory line of cases with the coerced confession cases as is suggested by his reference to Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L. Ed.2d 246, and related state cases on coerced confessions. The Mallory holding does not rest in any degree on involuntariness or coercion but narrowly as a judicial mechanism to enforce compliance with a procedural command of Congress.
(4)
I find it difficult to characterize what the court does in this ease. To me it is an abuse of judicial power to write what is, in effect, an amendment to Rule 5(a) because some think that Congress did not go far enough. More than that the arrogated power is exercised in a way which offends common sense. Some of the members of the court might remember that there are other branches of government at least equally qualified to frame the laws, explicitly ordained to do just that, and no less concerned than we are with individual liberty. Our task as judges, properly exercised, is a narrow one: to interpret the laws faithfully as Congress wrote them, not as we think Congress ought to have provided. Here the majority completely rewrites a statute already strained by a most generous interpretation. Cf. Mallory v. United States supra; Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106 (1957).
There seems to be developing in judicial circles an assumption that Congress, preoccupied with the great foreign and domestic issues of our day, either will not notice or will not get around to reversing even the boldest invasion of the legislative power. But if Congress permits judges to distort by “interpretation” and to rewrite its statutes, it should not be heard to complain.
Under the guise of protecting legitimate individual rights the majority abandons the balance we are charged with maintaining between individual rights and protection of the public. We make a mockery out of Justice Frankfurter’s statement that Rule 5(a) is a procedure to safeguard individual rights “without hampering effective and intelligent law enforcement.” Cardozo’s warnings go unheeded as the Suppression Doctrine, once merely a tool of judicial power, now becomes an end in itself, dominating the administration of the criminal law and making law enforcement more and more difficult.
If it is to be the law that the courts may not use a voluntary confession, made nearly 24 hours after the judicial warning in a preliminary hearing, after time for “deliberate reflection,” after full opportunity to secure counsel and after rejecting offers of counsel then indeed this court will have converted the shield of Rule 5(a) into a sword. What Congress clearly intended as a protection will have become a weapon of special advantage exclusively for the guilty.
. F.R.Cr.P., Rule 5(a).
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479.
. Goldsmith v. United States, 107 U.S. App.D.C. 305, 277 F.2d 335.
. Jackson v. United States, 109 U.S.App.D.C. 233, 285 F.2d 675.
. United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398.
. The police concerned with the taking of the confessions here admittedly were aware of Mallory. The record shows they were schooled too in our Goldsmith-Jackson gloss.
. See Note, 70 Yale L.J. 298, 306.
. For a criticism of the Goldsmith case, see Note, 74 Harv.L.Rev. 1222.
. For a criticism of the second Jackson case, see Note, 47 Va.L.Rev. 884.
. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.
. “(a) Appearance before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.
“(b) Statement by the Commissioner. The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and. shall admit the defendant to bail as provided in these rules.” Rule 5, Fed.R. Crim.P.
. Uncler District Jail procedures it was necessary for Daly to request Killough’s permission to visit him. Killough signed a form consenting to see Daly. He could have refused.
. The effort of the majority to equate Kil-lough’s confession with confessions made to clergymen or statements to a doctor or lawyer is a “red herring.’’ The suppression of Killough’s statement is not in any sense comparable to the common law or statutory privilege which leads to exclusion of revelations of privileged communications to a doctor, clergyman or lawyer. The privilege Judge Fahy refers to arises out of the confidential relationship of the parties. No such relationship exists between police and accused persons. The original communication made to pastor, doctor or lawyer is made in confidence and subject to a condition of non-disclosure.
. To say, as the majority does, that the Supreme Court has not placed exclusion of evidence under the McNabb-Mallory doctrine on constitutional grounds understates the case. The Court affirmatively declared that exclusion was ordered “to enforce the congressional require-’ ment” to take an arrested person to a magistrate without unnecessary delay. 354 U.S. at 453, 77 S.Ct. 1356. No judicial decision has ever intimated that exclusion of evidence for violation of Rule 5(a) was based on the Constitution.
. When the Suppression Doctrine was adopted its advocates urged that the ex-elusion of evidence considered “tainted” because of the means used to secure it was the only means to compel official compliance with such constitutional provisions as the constitutional prohibition of unreasonable searches. That rationale has persisted to this day. But I suggest that the Suppression Doctrine has totally failed to achieve its stated objective. Some members of this court share that view. As we see it, unless implemented, the Suppression Doctrine is a manifestation of sterile indignation, and is essentially negative. It punishes society as a whole for the transgressions of a poorly trained or badly motivated po*258liceman but does nothing to get at the heart of the problem. Something more is needed; as a starting point some of us— a minority at the moment — would direct that the District Court, in every case where evidence is suppressed because of an officer’s violation of a statute or constitutional provision, send a copy of the transcript on the motion to suppress evidence to the Commissioners of the District of Columbia and other executive officials having responsibility for those officers whose actions are found to warrant suppression of vital evidence in a criminal case.
. In Judge Daily’s effort to answer this dissent there seems to be a confusing of the two opinions of this court on Jackson’s second confession. In the first Jackson case, 106 U.S.App.D.C. 396, 273 F.2d 521 (1959), we reversed and granted a new trial because the second confession was held not independent of the first. But the District Gourt on retrial found the second confession was independent and on appeal we affirmed. Jackson v. United States, 109 U.S.App.D.C. 233, 285 F.2d 675 (1960). Thus the first Jackson holding and standards established must be read in light of the second Jackson case, 109 U.S.App.D.C. 233, 285 F.2d 675 (1960).
. Goldsmith v. United States, 107 U.S. App.D.C. 305, 277 F.2d 335, cert. denied, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960); Jackson v. United States, 109 U.S.App.D.C. 233, 285 F.2d 675 (1960).