Over the past few years we’ve heard a lot about “ water boarding” and other methods used by government operatives to obtain information from enemy combatants. Much of the focus has been on whether the water board method constitutes torture, rather than whether it actually produces reliable intelligence information.
When we imagine terrorists with dirty bombs bent on the destruction of America, most Americans would agree no method of interrogation should be off the table, but does torture really work? Our Founding Fathers did not support it.
In order for a confession to be admissible, the Due Process Clause of the 14th Amendment requires they must be voluntary. In many instances the United States Supreme Court has found police coercion during an interrogation makes a confession involuntary and may not be used against the defendant at trial.
For example, in 1936, the United States Supreme Court found that a confession obtained by physically beating the defendant was not voluntary. If the defendant’s will is overborne by the interrogation techniques used by the officer, the defendant’s due process rights have been violated. Additionally, aside from the civil rights issues, the Court, like the Founding Fathers, believed a nexus between the voluntariness of a confession and its reliability.
Despite the protections afforded by our Constitution, interrogations can still produce unreliable information, and in some cases false confessions. There are several reasons why this happens.
First, interrogations presume guilt.
The premise of the custodial police interrogation is not to determine the truth, but to nail down the facts sufficient admissions for a conviction. The law allows police deception. The police are trained how to lie to solicit confessions, whether it is claiming false DNA evidence, written statements of witnesses that don’t exist, or the false confession of an alleged co-conspirator.
Second, the person being interrogated may be predisposed to confess.
Custodial interrogation is terrifying to the average citizen. Anxiety, fatigue, mental disorders, and even naiveté could play major motivational factors in the decision to state anything an interrogator wants to hear. People with mental illness or diminished capacity are at the greatest risk for a false conviction.
An accused may feel it is his best option to say what the police want to hear in exchange for leniency, or because the police have promised to “let him go with a slap on the wrist” if there is a confession..
On the other side of the coin
Skilled police interrogators have protected our communities from violent criminals. Skilled interrogations are essential to police work. Further, military interrogations have obtained crucial information on the battlefield that has saved lives.
In summation, the Founding Fathers did not have our technology, but they did have a profound insight on human nature. The Founding Fathers knew confessions resulting from torture were inherently unreliably and a danger to a free people. Human nature has not changed in ten thousand years, much less since the Enlightenment and the time of our country’s founding.
Interrogations have tremendous value, particularly in the case of a skilled investigator, but we must remain vigilant in examining the methods used and the information obtained. There must be a balance between the police’s right to investigate and the public’s protection from coerced confessions.