"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, October 20, 2006

Miranda v. Arizona as "Torture"

A prominent New Zealand defense attorney has joined with police there to urge reconsideration of the policy that allows defendants to maintain silence (the triggering event being two unsolved child homicide cases). The report documents the complaint that police cannot "compel" the parents involved to give a statement as to the circumstances of the childrens' deaths. As pointed out here at Crim Prof, what this likely means is that the suspect's silence in the face of questioning, especially in circumstantial cases where the suspect would be expected to possess relevant and material information, could be considered as one factor by a jury in deciding the question of guilt.

Interestingly, also linked at Crim Prof is this article by another law prof who argues that the Miranda "warnings" need to be expanded, not contracted as the New Zealanders would have it. Why? Because, the argument goes, supposedly criminal defendants confess too often, even after being advised of their rights! And this is a "problem" because suspects are in effect often making the (incorrect) judgment that if they invoke the right to remain silent, a fact-finder can draw a negative inference from that silence. Thus, goes the argument, suspects feel compulsion to confess lest their silence be used against them. And of course, voluntariness is the keystone of admissibility of statements. So the prof concludes that the Miranda warnings need to be tweaked to make extra-double-sure that suspects really know they can (should?) remain silent.

This is an interesting intersection of the torture debate we've been having in St. Blogs, and domestic criminal law. After all, if the professor is correct and people are confessing, despite being told of their right to remain silent, because of mental compulsion due to worries about potential use of their silence in court, then perhaps this passage of Veritatis Splendor (citing Gaudium et spes) is applicable:
The Second Vatican Council itself, in discussing the respect due to the human person, gives a number of examples of such acts [i.e., intrinsically wrong acts]: "Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the will."

Under a certain fundamentalist or literalist view of the italicized language, the police in this country routinely engage in intrinsically evil acts by interviewing suspects after advising them of their Miranda "rights" if one agrees with the professor that suspects feel compulsion over worries that their silence will be used against them in court.

Needless to say, when the police use such methods as extended interrogations, deception, and double-teaming ("good cop-bad cop"); often in a small, windowless room-- it's hard not to conclude that outright coercion/torture is taking place. These methods are clearly designed to coerce the will and extract confessions by use of pressure.

Now don't try to suggest that this doesn't count as torture, because then you'll just be a torture excuser®. There is no place for line-drawing and distinctions. We all know that it is a slippery slope and we must resist the temptation to "tip-toe" up to the line between the impermissible and the permissible, wherever that line may be, if it even exists.

So it goes in some people's world.

1 comment:

Windypundit said...

I'm probably just naive about police interrogation, but I've never understood the reason for the Miranda warnings.

I'm glad I have the right to remain silent and the right to an attorney, and I want the police to respect those rights, but isn't it my responsibility to know I have those rights and to know how to invoke them?

As to the larger issue, it seems to me that the whole point of having rule of law is to show people exactly where the line is, so that they can get as close as they want without fear of legal peril. Being able to tip-toe up to it is the whole point.