The calculus of coercion: Why the pursuit of legal truth must prohibit psychological pressure

“ Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: ”

“ This principle reflects the common abhorrence of compelling any man, innocent or guilty, to give testimony against himself in a criminal proceeding. It is a principle which was written into the Constitution because of the belief that to torture and coerce an individual into confessing a crime, even though that individual be guilty, is to endanger the rights and liberties of all persons accused of crime. ”

“ It is just as uncivilized to brutalize an accused person into telling the truth as it is to force him to fabricate a confession. The torture and coercion are what the Constitution condemns. Hence all allegation that a confession is involuntary is not rendered unreasonable because of the apparent truthfulness of that confession.
(3) The Court refers to the absence of any evidence at the original trial of any physical or mental coercion or of any inducement or promise bearing upon the confession made by petitioner. ”

“ A witness who is not on trial faces a far different calculus than one whose testimony can mean the difference between acquittal and a prison sentence. He or she will think long and hard before accepting a defendant's invitation to knowingly offer false testimony that is directly contradicted by the State's evidence. The dissent ignores this "hard reality," post, at 326, in presuming that a defense witness will offer false testimony when that testimony is immunized from rebuttal at trial. ”

“ A judge sins gravely if he does not attempt all milder means of discovering truth before resorting to torture. He sins in a criminal cause, or in one of notable infamy, if he binds the accused by oath to tell the truth before there is proof against him. It is the same if without oath he uses threats, terror or exhibition of torments to confound the witness. [71] If any one, to avoid grave torments, charges himself with a capital crime, he does not sin mortally. [72] It was a doubtful question whether he sinned gravely in such a case. ”

“ If the conception were true, it would follow that when a court entertained the opinion that a witness was testifying untruthfully the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentiality of oppression and wrong would result and the freedom of the citizen when called as a witness in a court would be gravely imperiled. ”

“ I do not say that only the young, the weak and the mentally disturbed are susceptible to coercion, but only that these factors have ordinarily been involved in coerced confession cases and have been consistently regarded by the Court as important circumstances in the determination as to whether a confession was voluntarily made. Along with circumstances related to the petitioner, of course, the determination of coercion requires examination of the conduct of the police and the environment in which interrogation and confession occurred. ”

“ The citizen who has been the victim of these secret inquisitions has little chance to prove coercion. The mischief and abuse of the third degree will continue as long as an accused can be denied the right to counsel at this the most critical period of his ordeal. [2] For what takes place in the secret confines of the police station may be more critical than what takes place at the trial.
'If at any time, from the time of his arrest to final determination of his guilt or innocence, an accused really needs the help of an attorney, it is in the pre-trial period. ”

“ He admits the tremendous power given to a judge of torturing a witness should he suspect that the latter knows the truth and is concealing it. An accuser may not be racked with the accused in order to test his sincerity. _ The clergy can be tortured only in charges of treason, poisoning, and violation of -tombs. On the great question whether there are three or five grades, he decides in favour of five, viz., threats, taking to the place of torment, stripping and binding, lifting on the rack, racking. ”

“ The amount of torture was at the discretion of the judge, but it was to be so applied as not to injure life or limb. The examination was not to begin by torture; other proofs must be exhausted first. The evidence [32] must have advanced so far that nothing but the confession of the slave was wanting to complete it. Those of weakest frame and tenderest age were to be tortured first. Except in treason, the unsupported testimony of a single witness was not a sufficient ground for torture. ”

“ The chief feature of the work is the minute and skilful analysis of indicia, fama, praesumptio, and other technical terms. Many definitions of indicium are suggested, the best perhaps being conjecture ex probabilibus et non necessariis orta, a quibus potest aberse veritas sed non verisimilitudo. For every infliction of torture a distinct indicium is required. A single witness or an accomplice constitutes an indicium. But this rule does not apply where it is inflicted for discovering accomplices or for discovering a crime other than that for which it was originally inflicted. ”

“ Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. ”

“ A law is no law without coercion behind it. When a man has murdered his brother, coercion takes the murderer, tries him, and hangs him. When you levy your taxes, coercion secures their collection; it follows the shadow of the thief and brings him to justice; it accompanies your diplomacy to foreign courts, and backs a declaration of the nation’s right by a pledge of the nation’s power. ”

“ Constitution or laws of this state, has been interfered with [by another through threats,
intimidation, or coercion] , may institute and prosecute in his or her own name and on his or her
own behalf a civil action for damages . . . . ”

“ Every person is guilty of a misdemeanor who, by threats, intimidation, or unlawful violence, willfully hinders of prevents electors from assembling in public meetings for consideration of public questions (sec. 5004) .
“Intimidating voter: Every person or corporation is guilty of a misdemeanor, who, directly or indirectly, uses, or threatens to use, force, violence, or restraint, or inflicts, or threatens to inflict, any injury, damage, harm, or loss, or other forms of intimidation, to compel a person to vote, or refrain from voting, at any election (sec 1158) . ”

“ Coercion by employer: Any employer, whether an individual or a corporation, who shall deny an employee time off for voting at a general, special, or primary election, or shall directly or indirectly hinder him from exercising his right to vote freely or shall attempt to influence his vote by threats concerning his employment, shall be guilty of a misdemeanor, punishable, for each offense, by a fine of not over $500 or imprisonment in jail for not over 6 months, or both, in the discretion of the court (sec. 180) . ”

“ Whoever threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines the witness, or any other person in whom the witness may be interested, or does any other unlawful act with the said intent, shall be punishable with imprisonment which may extend to three years and fine. ”

“ The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. ”

“ The pain which a person experiences when his legal rights are violated is the spontaneous, instinctive admission, wrung from him by force, of what the law is to him as an individual, in the first place, and then of what it is to human society. In this one moment, and in the form of an emotion, of direct feeling, we see more of the real meaning and nature of the law than during long years of undisturbed enjoyment. The man who has not experienced this pain himself, or observed it in others, knows nothing of what law is, even if he had committed the whole corpus juris to memory. ”

“ Under conditions that strongly excite the emotions, no force of numbers and no concurrence of testimony can give any value to testimony; a million ciphers are worth no more than a single cipher. The greater the number of eye-witnesses, the greater their liability to be deceived through the influence of mental contagion. ”

“ The rule of common sense is primâ facie to trust a witness in all matters, in which neither his self-interest, his passions, his prejudices, nor that love of the marvellous, which is inherent to a greater or less degree in all mankind, are strongly concerned; and, when they are involved, to require corroborative evidence in exact proportion to the contravention of probability by the thing testified. ”

“ In no other way can the effects of the coercion be wholly excluded from the trial. In no other way can one who has been subjected to use of force or coercive 'psychology' be put upon an equal plane for the determination of his guilt or innocence with others who have escaped such unlawful action or be put back in the position he is entitled by law to occupy until his trial and a verdict of guilty, that of a man presumed to be innocent until the contrary is proved by legal means beyond a reasonable doubt. ”

“ To say that a defendant loses his right to confront a witness when that would cause the witness not to testify is rather like saying that the defendant loses his right to counsel when counsel would save him, or his right to subpoena witnesses when they would exculpate him, or his right not to give testimony against himself when that would prove him guilty. ”

“ The jury at no time was admonished that it could not convict on the basis of the first confession nor consider it as evidence against Malinski. We must consider the case, therefore, as one in which a coerced confession was employed to obtain a conviction. Coerced confessions would find a way of corrupting the trial if we sanctioned the use made of the October 23rd confession in this case. Constitutional rights may suffer as much from subtle intrusions as from direct disregard.
It is thus apparent that the judgment before us rests in part on a confession obtained as a result of coercion. ”

“ But to go beyond this, as the Court does today, and divine in the due process clause of the Fourteenth Amendment an exclusion of confessions on an irrebuttable presumption that custody and examination are 'inherently coercive' if of some unspecified duration within thirty-six hours, requires us to make more than a passing expression of our doubts and disagreements.
The claim of a suspect to immunity from questioning creates one of the most vexing problems in criminal law-that branch of the law which does the courts and the legal profession least credit. ”