May 5, 2001
Fifth Amendment Review
By Howard Hobbs, J.D., Ph.D., Dean
PALO ALTO -- The Fifth Amendment guarantees that no American "shall be compelled in any criminal case to be a witness against himself."
This basic right is under attack in Senate Crime Bill, S.3,sponsored by Senate Majority Leader Robert Dole (R-KS) and Senate Judiciary CommitteeChairman Orrin Hatch (R-UT). Section 507(a)(1) of the bill would shift the burden of proof regarding the voluntariness of confessions from the government to the accused.
Section 7(a)(2)effectively eliminates the federal rule against prolonged interrogations. These two provisions together fly in the face of well-settled Supreme Court interpretations of the Fifth Amendment and greatly undermine the presumption of innocence upon which our American system of justice is founded.
Legal scholars opposes Section 507(a) of S.3 as unconstitutional and unwise, and antithetic to the very cornerstones of freedom and democracy upon which our greatnation was built and has proudly prevailed for more than 200 years.
Confessions are inherently suspect. Sir William Blackstone noted the well-founded distrust of out-of-court confessions over 200 years ago in his Commentaries on the English Common Law: [T]hey are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence. [4 W.Blackstone, Commentaries, Chapt. XXVII.]
By the eighteenth century, English courts excluded confessions that were not "voluntary," including those resulting from actual or threatened physical harm.
In the United States, confessions obtained through torture (still practiced in some parts of the world) or other, more subtle forms of coercion, violate the Due Process Clause of our Constitution. In Brown v. Mississippi, 297 U.S. 278 (1936), the Supreme Court struck down confessions obtained by brutal beatings. In Rogers v. Richmond, 365 U.S. 534 (1961), where a confession was obtained by threatening to arrest the suspect's sick wife, Justice Frankfurter explained that a confession is involuntary, and so inadmissible, if it is "the product of coercion, either physical or psychological."
The Supreme Court has repeatedly held that the burden of proving voluntariness, by a mere preponderance of the evidence, is on the prosecution. Colorado v. Connelly, 479 U.S. 157(1986); Lego v. Twomey, 404 U.S. 477 (1972).
Section 507(a)(1) of S.3 attempts to shift the burden of proof -- from the government to the accused -- as to whether a confession is voluntary. It creates a presumption of voluntariness, and thus admissibility, in place of the current presumption to the contrary.
Section 507(a)(2) attempts to eliminate the rule against interrogating a citizen for many hours, even days, after arrest -- before taking him or her to court. These two proposals would eviscerate the presumption of innocence, substituting an inquisitorial system. They attack the very core of constitutional protections from coercive police practices; and they eliminate decades of success in upgrading the professionalism of law enforcement.
Justice Frankfurter, in Watts v. Indiana, 338 U.S. 49 (1949), explained the nature of our legalsystem, inherited from the English Common Law, and preserved in our Constitution: Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber. . . . Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation.
In 1944, Justice Jackson, in Ashcraft v. Tennesse, 322 U.S. 143 (1944), stated the obvious: interrogation of a suspect in custody even "for an hour," is "inherently coercive." The Supreme Court has been consistent in its common-sense recognition that the balance of power -- and intimidation -- in any custodial interrogation rests decidedly with the police.
Shifting the burden of proof to the accused would render it virtually impossible for individuals to challenge unconstitutional police interrogations.
The 1940s also brought us the cases of McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1948), in which the Supreme Court held that citizens arrested by federal agents must be taken before a judicial officer without unnecessary delay; confessions extracted through prolonged questioning in violation of that requirement are not admissible.
The rules of interrogation have been well established for many decades. Few if any of today's police officers were even born when the "rubber hose" was standard procedure.
Instead, the modern police force (especially federal law enforcement) has long adapted to (and, in fact, overwhelmingly embraces) the professional standards produced by respect for the Constitution.
Today's professional police officer agrees with the Supreme Court's opinion in Spano v. New York, 360 U.S. 315 (1959): The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness.
It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.
By breaking time honored barriers that protect individuals from overreaching by a powerful government, Section 507(a) of S.3 would fundamentally alter our legal system. There is simply NO justification for legislation that propels our nation toward a coercive, inquisitorial system of justice.
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