April 08, 2004

Mr. Drum's Bad Idea

by Nick Morgan

Kevin Drum makes a rather surprising and unwise suggestion:

    I'd like to see videotaping required for all police interviews, and in return I'd suggest that the 5th Amendment right against self-incrimination be discarded. If police interviews are all recorded and trials are all held in public, it's not at all clear to me what value the 5th Amendment right to silence has anymore.

Before reaching the problems with "discard[ing]" any provision in the Bill of Rights, Mr. Drum should note that the right against compelled self-incrimination does not mean that the police can't compel a confession, it simply means that compelled confessions (and evidence following from the confession) are inadmissible at trial. Mr. Drum's proposal would indeed give us greater visibility of police interrogation, but much of what we'd see would be compelled admissions that wouldn't get thrown out. Even police required to follow Miranda use all sorts of deception and trickery to "persuade" suspects to talk. Video tapes of such might look bad for the officer, but they won't convince a jury to disregard any admissions also caught on tape.

The right to silence is supposed to reduce the inherently coercive pressure of custodial police interrogation, especially for suspects (innocent or not) who are unsophisticated, and likely to believe an officer who insinuates or even states that failing to speak will lead to much, much harsher penalties. Putting it all on tape won't relieve this stark imbalance in pressure, and I seriously doubt it will significantly motivate the police to behave themselves. Nevertheless, video taping interrogations is a very good idea by itself, but certainly not as a substitute for a constitutional right.

Postscript: apparently Talkleft shares my disapproval.

April 8, 2004 11:13 PM | TrackBack

Taping interrogations is a good first step. I wonder how you law students react to the interrogations depicted on TV - Law and Order, CSI - and the movies. Do you critique them? I'm sure that the police would better comply with criminal procedures that satisfy constitutional requirements if there were tapings as they might face disciplinary and civil and criminal charges for violations. What is wrong with transparency in criminal justice? Police are better educated and trained presently.

But the Fifth Amendment must remain intact.

Posted by: Shag from Brookline at April 9, 2004 07:05 AM

More taping in general is a good idea to prevent not only unlawful interrogations but also false arrests and convictions. But yes, it makes no sense to give away Constitutional protections. Has Mr. Drum noticed that the burden is on the government to prove guilt, not on the defendant to prove innocence?

Posted by: PG at April 9, 2004 12:05 PM

Well, the Fifth Amendment says that "No person . . . shall be compelled in any criminal case to be a witness against himself," which often was as a trial right only, which accords well with the text. Granted, more protection is needed to prevent this right from becoming illusory; someone can just as easily become a witness against one's self in the police station as the courtroom. But with the Due Process Clause right against the admissibility of involuntary confessions, does the non-trial element of the Fifth Amendment (Miranda) need to insulate criminals if coercion can be detected very well through videotaping?

Posted by: Matto Ichiban at April 9, 2004 02:56 PM

I am not certain the Fifth Amendment right against self-incrimination was a good idea when inserted by the framers. If it weren't a constitutional right, I might be inclined to support some scaling back of that particular right.

As the degree and scope of that scaling back would require tinkering, and tinkering with the Constitution is normally a very bad idea, I think we're stuck with what we have. But it doesn't mean it was a good idea.

I'd also note that there can be more severe consequences of compelled confessions than lack of use; certain methods used to compel confessions, or deliberate violations of Miranda, can lead to civil liability. Despite my first paragraph, I think enforcement of our existing laws is a good thing; officers ought not violate defendants' rights with the view that the only sanction is the unusability of such statements at trial.

Finally, I'm not sure how the "inherently coercive pressure" of a police interrogation, when it leads to a true confession, is a bad thing. Criminals tend to be stupid and evil; using that against them is a plus.

Posted by: John R. Mayne at April 11, 2004 08:16 PM

Finally, I'm not sure how the "inherently coercive pressure" of a police interrogation, when it leads to a true confession, is a bad thing. Criminals tend to be stupid and evil; using that against them is a plus.

Of course - but this is the whole point of the sort of rule utilitarianism on which 5th amendment rights are based. Yes, coercing confessions will *often* be a good idea - when it leads to a true confession. But it won't *always* be a good one - ie, when it leads to phony confessions given under duress.

Posted by: DavidNYC at April 12, 2004 01:30 AM
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