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.²²