from Chapter 2
The American Privilege Against Self-Incrimination
Excerpt from page 33
To incriminate means, literally, to charge
with crime. Figuratively, it means to involve oneself in a criminal
prosecution. The modern origin of the law regarding self-incrimination
lies in Brown v. Mississippi.
This 1935 case involved the murder trial of three black defendants.
Their convictions were based entirely on their confessions, which were
admittedly obtained under torture inflicted by white deputy sheriffs. In
an opinion authored by Chief Justice Charles Evans Hughes,
the Court unanimously reversed Brown, noting that while “the State was
free to regulate the procedure of its courts with its own perceptions of
policy,” its policies are “limited by the requirement of due process of
law. Because a State may dispense with a jury trial does not mean that
it may substitute trial by ordeal. The rack and torture chamber may not
be substituted for the witness stand.”
After Brown v.
Mississippi, scores of cases involving convictions based on coerced
confessions (most having occurred in Southern states) came to the U.S.
Supreme Court. The Court repeatedly recognized that coercion could exist
even in the absence of physical compulsion,19 observing, “There is
torture of the mind as well as the body.”20 In one famous case, the
Court categorically stated, “A confession by which life becomes forfeit
must be the expression of free choice.”21
Legally, this idea of
free choice, or voluntariness, is a notion separate from coercion. If
force, or mere coercion, is applied to extract a confession, then the
confessor’s voluntariness is immaterial. The question can’t be dismissed
because the context in which these terms are used is evidentiary, not
linguistic. In other words, the law focuses on whether the confession is
admissible in evidence, not whether it was given freely. Justice Felix
Frankfurter, one of the giants in judicial rhetoric, put the distinction
in a psychologically elegant way:
But whether a
confession of a lad of fifteen is “voluntary” and as such admissible, or
“coerced” and thus wanting for due process, is not a matter of
mathematical determination. Essentially it invites psychological
judgment - a psychological judgment that reflects deep, even if
inarticulate, feelings in our society.