FAHY, Circuit Judge, with whom Circuit Judges EDGERTON, BAZELON and WASHINGTON join.
Appellant, indicted for first degree murder in strangling his wife to death, was convicted of manslaughter. The case is another in which a conviction of a serious crime has been brought about with the aid of a confession orally given soon after — in this case the next day — a written confession had been obtained in circumstances which rendered it inadmissible. Other oral confessions had preceded the written one and like it were inadmissible.
Three cases involving this problem have been decided fairly recently by this court. 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; Jackson V. United States, 109 U.S. [242]*242App.D.C. 233, 285 F.2d 675, cert. denied, 366 U.S. 941, 81 S.Ct. 1666, 6 L.Ed.2d 852, with Mr. Chief Justice Warren and Mr. Justice Douglas noting that they would grant certiorari, and Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618. In Goldsmith and Jackson, by a divided vote, divisions of this court held that the second, reaffirming confessions, were admissible. The dissent in each case was based on the ground, not here repeated in extenso, that the second confession stemmed so directly from the illegally procured and inadmissible first confession that it was also inadmissible. So to hold was deemed essential to preserve the integrity of the Mallory-Upshaw-McNabb rule protective of the right of an arrestee to be taken before a magistrate as required by Rule 5(a) of the Fed.R.Crim.P., 18 U.S.C.A., which, though in form a Rule, has the full effect of statutory law.
In Naples this court sitting en banc found it unnecessary to pass upon the admissibility of the later confession; yet the record frankly revealed that it was obtained for the purpose of circumventing the Mallory rule, as appears from a colloquy between court and prosecution counsel in the case:
“[The court:] Now, I presume that the reason an attempt was made to get another statement from the defendant is as an insurance against the rule of the Mallory case.
“[The Assistant United States Attorney:] Yes, Your Honor, there is no question of that.
“[The court:] This was before the Goldsmith case was decided * * * which held that the Mallory rule did not apply to post-arraignment statements.
“[Mr. Murray, Defense Counsel] Q. Mr. [Officer], I think the Court has assumed, and Mr. [Prosecutor] has assured us that your only reason for going to the jail to talk to this defendant was to satisfy what might be the additional requirements in the application of the Mallory rule, is that correct?
“A. That is correct.”
The excellent opinion of Judge Youngdahl in the present case* filed when he denied appellant’s motion for a judgment of acquittal notwithstanding the verdict or for a new trial, demonstrates the soundness of his exclusion during the trial of the earlier oral and written confessions obtained in stark violation of the rights of the accused.1 See United States v. Killough, 193 F.Supp. 905 (D.D.C.1961). The accused was retained in custody by the police some 34 hours after arrest, during which time the process of obtaining a confession was pursued.
We are aware that the Supreme Court has not placed the Mallory exclusionary rule on the Constitution, as it has the exclusion of evidence obtained by an unreasonable search and seizure. As to the latter see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. But it is nevertheless true that the rules of evidence pertaining to confessions in a federal trial have been formulated on the background of both the Fifth Amendment, particularly its provision that no person shall be compelled in any criminal case to be a witness against himself, and the well recognized right of an accused when arrested to be promptly taken before a magistrate who shall inquire into the sufficiency of the basis for his arrest, advise him of his rights, and determine whether he shall be admitted to bail and on what conditions. McNabb v. United [243]*243States, 318 U.S. 332, 342, 63 S.Ct. 608, 87 L.Ed. 819.
In the present case, after the police had violated the law embodied in Eule 5(a) for a sufficient length of time to enable confessions to be obtained, appellant, who had sought to avoid confessing and on at least two occasions requested a lawyer, was taken before a magistrate. The magistrate advised him that he was entitled to obtain counsel and that he was not required to make a statement — this latter caution being especially ironic considering what had already occurred. Appellant not having obtained counsel, and desiring to do so, the magistrate with the consent of both sides adjourned the preliminary hearing from October 25 to November 15. In the meantime appellant was committed to the District of Columbia Jail. There, on the next day, and before appellant had obtained counsel, the officer who had participated principally in obtaining the inadmissible confessions the day before, obtained an oral confession which the trial court admitted in evidence upon the basis of our Goldsmith and Jackson decisions.2 It is apparent, however, from the opinion of Judge Youngdahl to which we have referred, that in admitting this “reaffirming” confession he felt bound by the decisions of this court. This is entirely understandable. This court, however, sitting now for the first time en banc to consider the problem, draws a distinction which Judge Youngdahl might well have felt he was not required to do. The distinction we draw between the present case and both Goldsmith and Jackson is due to the fact that our brethren who constituted the majority of the divisions of the court which decided those cases relied to a substantial degree upon the fact that in each case the accused actually had the advice of counsel before the reaffirming confession was made.
Thus, in Goldsmith the opinion states, “The appellants not only re-affirmed their formal written statements while they were lawfully detained, but did so in utterances which were plainly spontaneous and at a time when both the judicial warning and the advice of counsel as to their right to remain silent were not more than an hour old.” 107 U.S.App.D.C. at 311, 277 F.2d at 341.
In Jackson the opinion states,
“Not only did appellant on Monday [before the oral confession] have the advice of able counsel, but Judge Smith at the second [preliminary] hearing observed, and appellant’s attorney agreed, that on Sunday Judge Fielding [at the first preliminary hearing] had advised appellant of his rights.” Again,
“He had had the advantage of consultation with his own attorney who advised him of his right to remain silent.” 109 U.S.App.D.C. at 235, 237-238, 285 F.2d at 677, 679-680.
In the present case, as we have said, completion of the preliminary hearing had been postponed to enable, the accused to obtain counsel, but he had not done so [244]*244at the time the oral confession was made at the jail the following day.3
Another circumstance distinguishes this case from Goldsmith.
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FAHY, Circuit Judge, with whom Circuit Judges EDGERTON, BAZELON and WASHINGTON join.
Appellant, indicted for first degree murder in strangling his wife to death, was convicted of manslaughter. The case is another in which a conviction of a serious crime has been brought about with the aid of a confession orally given soon after — in this case the next day — a written confession had been obtained in circumstances which rendered it inadmissible. Other oral confessions had preceded the written one and like it were inadmissible.
Three cases involving this problem have been decided fairly recently by this court. 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; Jackson V. United States, 109 U.S. [242]*242App.D.C. 233, 285 F.2d 675, cert. denied, 366 U.S. 941, 81 S.Ct. 1666, 6 L.Ed.2d 852, with Mr. Chief Justice Warren and Mr. Justice Douglas noting that they would grant certiorari, and Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618. In Goldsmith and Jackson, by a divided vote, divisions of this court held that the second, reaffirming confessions, were admissible. The dissent in each case was based on the ground, not here repeated in extenso, that the second confession stemmed so directly from the illegally procured and inadmissible first confession that it was also inadmissible. So to hold was deemed essential to preserve the integrity of the Mallory-Upshaw-McNabb rule protective of the right of an arrestee to be taken before a magistrate as required by Rule 5(a) of the Fed.R.Crim.P., 18 U.S.C.A., which, though in form a Rule, has the full effect of statutory law.
In Naples this court sitting en banc found it unnecessary to pass upon the admissibility of the later confession; yet the record frankly revealed that it was obtained for the purpose of circumventing the Mallory rule, as appears from a colloquy between court and prosecution counsel in the case:
“[The court:] Now, I presume that the reason an attempt was made to get another statement from the defendant is as an insurance against the rule of the Mallory case.
“[The Assistant United States Attorney:] Yes, Your Honor, there is no question of that.
“[The court:] This was before the Goldsmith case was decided * * * which held that the Mallory rule did not apply to post-arraignment statements.
“[Mr. Murray, Defense Counsel] Q. Mr. [Officer], I think the Court has assumed, and Mr. [Prosecutor] has assured us that your only reason for going to the jail to talk to this defendant was to satisfy what might be the additional requirements in the application of the Mallory rule, is that correct?
“A. That is correct.”
The excellent opinion of Judge Youngdahl in the present case* filed when he denied appellant’s motion for a judgment of acquittal notwithstanding the verdict or for a new trial, demonstrates the soundness of his exclusion during the trial of the earlier oral and written confessions obtained in stark violation of the rights of the accused.1 See United States v. Killough, 193 F.Supp. 905 (D.D.C.1961). The accused was retained in custody by the police some 34 hours after arrest, during which time the process of obtaining a confession was pursued.
We are aware that the Supreme Court has not placed the Mallory exclusionary rule on the Constitution, as it has the exclusion of evidence obtained by an unreasonable search and seizure. As to the latter see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. But it is nevertheless true that the rules of evidence pertaining to confessions in a federal trial have been formulated on the background of both the Fifth Amendment, particularly its provision that no person shall be compelled in any criminal case to be a witness against himself, and the well recognized right of an accused when arrested to be promptly taken before a magistrate who shall inquire into the sufficiency of the basis for his arrest, advise him of his rights, and determine whether he shall be admitted to bail and on what conditions. McNabb v. United [243]*243States, 318 U.S. 332, 342, 63 S.Ct. 608, 87 L.Ed. 819.
In the present case, after the police had violated the law embodied in Eule 5(a) for a sufficient length of time to enable confessions to be obtained, appellant, who had sought to avoid confessing and on at least two occasions requested a lawyer, was taken before a magistrate. The magistrate advised him that he was entitled to obtain counsel and that he was not required to make a statement — this latter caution being especially ironic considering what had already occurred. Appellant not having obtained counsel, and desiring to do so, the magistrate with the consent of both sides adjourned the preliminary hearing from October 25 to November 15. In the meantime appellant was committed to the District of Columbia Jail. There, on the next day, and before appellant had obtained counsel, the officer who had participated principally in obtaining the inadmissible confessions the day before, obtained an oral confession which the trial court admitted in evidence upon the basis of our Goldsmith and Jackson decisions.2 It is apparent, however, from the opinion of Judge Youngdahl to which we have referred, that in admitting this “reaffirming” confession he felt bound by the decisions of this court. This is entirely understandable. This court, however, sitting now for the first time en banc to consider the problem, draws a distinction which Judge Youngdahl might well have felt he was not required to do. The distinction we draw between the present case and both Goldsmith and Jackson is due to the fact that our brethren who constituted the majority of the divisions of the court which decided those cases relied to a substantial degree upon the fact that in each case the accused actually had the advice of counsel before the reaffirming confession was made.
Thus, in Goldsmith the opinion states, “The appellants not only re-affirmed their formal written statements while they were lawfully detained, but did so in utterances which were plainly spontaneous and at a time when both the judicial warning and the advice of counsel as to their right to remain silent were not more than an hour old.” 107 U.S.App.D.C. at 311, 277 F.2d at 341.
In Jackson the opinion states,
“Not only did appellant on Monday [before the oral confession] have the advice of able counsel, but Judge Smith at the second [preliminary] hearing observed, and appellant’s attorney agreed, that on Sunday Judge Fielding [at the first preliminary hearing] had advised appellant of his rights.” Again,
“He had had the advantage of consultation with his own attorney who advised him of his right to remain silent.” 109 U.S.App.D.C. at 235, 237-238, 285 F.2d at 677, 679-680.
In the present case, as we have said, completion of the preliminary hearing had been postponed to enable, the accused to obtain counsel, but he had not done so [244]*244at the time the oral confession was made at the jail the following day.3
Another circumstance distinguishes this case from Goldsmith. In holding the oral re-affirmation of the pre-arraignment confessions admissible the majority there relied upon, and outlined at some length, a colloquy between the defendants and one of the persons robbed and another person. See 107 U.S.App.D.C. at 311, 277 F.2d at 341.4
Accordingly, neither Goldsmith nor Jackson requires admission of the jail confession in this case. Were the situation otherwise, a majority of the court, which now for the first time considers the problem en banc, would be ready to reconsider those cases.
The oral confession obtained in this case at the jail so soon after the illegally procured and inadmissible confessions must be held inadmissible as the fruit of the latter.5 To admit it would in substance and effect admit the earlier confessions properly held inadmissible, and thus defeat the exclusionary rule. To hold otherwise would be in reality to permit an accused to be tried without counsel, jury or court, alone with police at their headquarters or at jail. The public trial guaranteed by the Constitution, with counsel, jury and court, after indictment, would be hardly more than a form for validation of what had already been accomplished invalidly.
We do not, however, set appellant free. We reverse and remand for a new trial because of the erroneous admission in evidence of the oral confession given at the jail. Although the question before us for decision on this appeal is not whether appellant is guilty of the crime of which he was convicted, were we to assume the truth of the confessions we would nevertheless be required to grant a new trial, for we necessarily concern ourselves with means, not alone with ends. Under the law — including of course the administration of the criminal law in the federal courts — a lawful end is not accomplished by the use of evidence rendered inadmissible by unlawful means. Every rule of evidence which excludes from a trial relevant and material evidence could be said to suppress the truth in the sense of limiting the means by which the facts may be developed. Thus, the penitent’s disclosure to his confessor is under a seal not to be broken at a trial for crime, however true the confession ; the doctor may not abuse in the name of truth the confidence of his patient, nor the lawyer that of his client, nor one spouse that of another.6 The rules the law imposes as limitations upon the means it will use in obtaining evidence have been adopted for reasons which outweigh the need to use the excluded evidence. To turn the law into a means of obtaining convictions by violating constitutional and statutory safe[245]*245guards would in the end cause greater loss than gain, and would encourage ■deterioration in methods of detection.7
Appellant also asserts as ground for reversal the admission in evidence of the testimony of the coroner. The substance of this testimony is that the coroner obtained a dead body at a place he described and had it brought to the morgue.8 Appellant contends that the coroner’s testimony stemmed from the illegally procured initial confessions and, therefore, .was inadmissible as the “fruit of the poisonous tree.” Since we reverse for the reason previously set forth it is not necessary to pass upon the admissibility of the coroner’s testimony. Appellant in any event is entitled to a new trial and it is possible that the coroner may not be called to testify. With the confessions out of the case the question whether the coroner’s testimony should be admitted may not arise, or may arise in a very different context at a new trial. Accordingly, we do not decide it.
While we believe the foregoing discussion meets the issues we also believe it desirable to point out that Judge BURGER’S unusual dissenting opinion, in which Chief Judge MILLER and Circuit Judge BASTIAN join, and to which we now refer, rests upon misconceptions.
1. The dissent says our holding “goes far beyond the.statute it purports to ‘interpret.’ ” We purport to interpret no statute and no Rule of Criminal Procedure. No interpretation is necessary. All nine members of this court agree with Judge Youngdahl of the District Court that the written confession was obtained in violation of Rule 5(a). They also agree that the written confession was inadmissible under the McNabb-Upshaw-Mallory rule. The Supreme Court, not Rule 5(a), established the exclusionary rule. Rule 5(a) says nothing about the admission or exclusion of evidence. The question before us is not what Rule 5(a) means but whether its conceded violation, which concededly made the written confession inadmissible, also made inadmissible the confession afterwards obtained at the jail.
2. The dissent says our holding “goes * * * far beyond any prior opinion of this court * * This seems to mean that this court has not heretofore excluded a confession, made after a preliminary hearing, on the ground that it resulted from an inadmissible confession made during a period of illegal detention before the hearing. But that is just what this court did in the first Jackson case, see n. 5, supra. We held there, as we hold here, that a reaffirming confession which, though it followed a hearing, was made soon after an earlier confession obtained during unlawful detention which preceded the hearing, was “a result” of that illegality and must be excluded.
“ * * * Civil rights violations are all the more regrettable because they are so unnecessary. Professional standards in law enforcement provide for fighting crime with intelligence rather than force. * * * In matters of scientific crime detection, the services of our FBI Laboratory are available to every duly constituted law enforcement officer in the nation. Full use of these and other facilities should make it entirely unnecessary for any officer to feel the need to use dishonorable methods.
“Complete protection of civil rights should be a primary concern of every officer. These rights are basic in the law and our obligation to uphold it leaves no room for any other course of action. Although the great majority in our profession have long since adopted that policy, we cannot yet be entirely proud of our record. Incidents which give justification to charges of civil rights violations by law enforcement officers still occur. * * * This state of affairs ought to be taken as a challenge to all of us. Every progressive police administrator and officer must do everything in his power to bring about such an improvement that our conduct and our record will conclusively prove each of these charges to be false.” FBI Law Enforcement Bulletin, September, 1952, pp. 1-2.
[246]*246The dissent cites Bayer, where the reaffirming confession which the Supreme Court held admissible was made six months after the first confession. The Court said the making of an unusable confession does not “perpetually” disable the confessor from making a usable one. The Court did not suggest that a reaffirming confession made within 24 hours, which is our case, is admissible. Moreover, as Judge Wright points out, Bayer must now be considered in the light of Mallory.
3. An implied premise of the dissent is that courts cannot exclude relevant evidence without specific statutory authority. If that were so, the entire Mc-Nabb-Upshaw-Mallory rule would be invalid, and so would the hearsay rule, among many others.
■4. The dissent says we present a picture which is neither accurate nor adequate, but it cites no error of fact, and no omitted fact, which bears on the legal question whether the jail confession is admissible.
5. The dissent suggests that our opinion contains statements inconsistent with Judge Youngdahl’s unchallenged finding that the jail confession was voluntary. We have not discussed the problem in terms of voluntariness — see, however, the concurring opinion of Judge Wright— since the basis for our opinion is that the jail confession was the result of the previous confessions which were invalidly obtained and concededly inadmissible under the McNabb-Upshaw-Mallory rule. In order to prevent this rule from becoming a “mockery,” to borrow Judge Wright’s expression, the jail confession must also be excluded. This basis for our opinion makes it unnecessary to consider the findings of Judge Youngdahl to which the dissent refers.
Moreover, the dissent accepts uncritically the ruling of Judge Youngdahl as matter of law that the jail confession was voluntary. The fact that this ruling was made by the trial judge is not conclusive. See, e. g., Ziang Sung Wan v. United States, 266 U.S. 1, 16, 17, 45 S.Ct. 1, 69 L.Ed. 131.
6. The dissent says: “ * * * once the [preliminary] hearing is held the directive of Congress is satisfied.” But a tardy hearing does not satisfy the directive of Congress. Rule 5(a) requires a hearing “without unnecessary delay.” And as the dissent itself points out, the Supreme Court has emphasized that the arrestee must be taken to a magistrate “as quickly as possible so that he may be advised of his rights.”
7. The dissent says that our opinion practically bars any interrogation of an accused even after he has had judicial warning, unless he secures a lawyer and is ready to plead guilty. This is wide of the mark. The decisive factor in this case is that, the day before the jail confession was made, a confession which led to the jail confession had been obtained by the unlawful conduct of the officers which violated specific rights of the defendant spelled out by Rule 5(a). Our opinion excludes only evidence which is. due to a violation by the police of their duty under Rule 5(a). Absent such violation and such relationship our opinion precludes no interrogation.
Moreover, nowhere have we said that a post-hearing confession, following one illegally procured before the hearing, must necessarily await the entry of counsel; nor do we predetermine that the-passage of no amount of time could remove the taint of a confession obtained, in defiance of the exclusionary rule.
8. It is said we abandon the balance between individual rights and the protection of the public. Support for this. charge is sought in Mr. Justice: Frankfurter’s statement that Rule 5(a) should safeguard individual rights “without hampering effective and intelligent, law enforcement.” But this statement by the author of the McNabb and Mallory opinions means that the police need not,, to enforce the law effectively, violate the law. We do not abandon the balance thus adjusted by the Supreme Court. We: [247]*247adhere to it. Since the jail confession resulted from a previous violation of Rule 5(a) it must be excluded in order to preserve the exclusionary rule from being mocked and nullified. The dissent fails to indicate how, unless this is done, the balance to which it refers can be maintained. It cannot be maintained by nullifying individual rights.
9. The dissent suggests to Congress that our decision should be legislatively reversed. This means either that Congress should take the matter of trial evidence out of the hands of the judiciary where, with rare exceptions, Congress in its wisdom has heretofore left it, or else that Rule 5 (a) itself should be so changed as to authorize the police to subject an arrested person, when alone and in their complete control, to interrogation for a sufficient period of time to bring about his self-conviction. Such legislation would encounter problems under the Bill of Rights, including the requirements of due process of law, the guarantee against compulsory self-incrimination, and the right to a genuine trial by jury, presided over by a judge, with the assistance of counsel, not a mere procedure for securing self-conviction at police headquarters. Such a change in Rule 5 (a) would in all substance transform our method of enforcing the criminal law from an accusa-torial to an inquisitorial system. “Ours is the accusatorial as opposed to the inquisitorial system.” Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801.9 Our system at times places a greater burden upon the authorities than would an inquisitorial one, depending upon the circumstances. But the suggested innovation would not only encounter constitutional difficulties but would subject the police to temptations of abuse and brutality which a civilized society should not countenance.10 The framework within which enforcement must now proceed has been carefully formulated for the common good.
The problem presented by this case cannot be understood in terms of the efficiency of permitting an arrested person to be interrogated at length before he has a preliminary hearing. It must be considered in terms of the change in the status and relationship of the parties that takes place when an arrest is made. Once a person is arrested he becomes clothed with the right to have the basis for his arrest inquired into by a magistrate. This fundamental change in status is the basis for the rule that a confession obtained by official failure to recognize and abide by the change is not admissible in evidence. Our decision excludes no confession not attributable to such failure.
It goes without saying that crime sometimes goes undetected, and when detected sometimes goes unproved under the rules of evidence essential to a fair trial. Though we cannot expect perfection the effort to improve the situation is necessary and unending. But there are, it seems to us, wiser approaches to improvement than to make our system of criminal justice an inquisitorial rather than an accusatorial one, and thereby undermine the right to a jury trial as contemplated by the Constitution and open the door to other abuses inherent in such a change.
Mr. J. Edgar Hoover has said, see footnote 7, supra, “Civil rights violations are all the more regrettable because they are so unnecessary.” We do not join the dissent in advocating legislation either to attenuate civil rights, to modify a rule of evidence carefully announced and repeatedly affirmed by the Supreme Court, or to overrule a decision of this court which is essential to the integrity of the Supreme Court’s rule. There would seem [248]*248to be no need to call upon either Congress or the courts, in the name of balancing community and individual rights, to curtail the latter as they have long been recognized. Their maintenance is nowhere more important than in the Capital of the Nation.
Judge Burger’s dissenting opinion, in which Chief Judge Miller and Circuit Judge Bastían join, and which we have discussed above, we think fails to meet the real problem of the case, namely, how the MeNabb-Upshaw-Mallory rule of evidence can be maintained if the courts open the door to its evasion by permitting reaffirming confessions, obtained so soon after the officers have secured confessions in violation of law, to be admitted in evidence. We feel that the dissent is largely attributable to the opposition to the exclusionary rule itself clearly disclosed by footnote 5 of the dissenting opinion.
Judge Wright concurs in the reversal of the judgment for the reasons stated in this opinion and for the further reasons stated in his own concurring opinion.
Reversed and remanded.