Back to the Third Degree

April 01, 1991

The Supreme Court's 5-4 decision last week saying that coerced confessions may be used in some criminal trials is shocking proof that the Reagan-Bush Supreme Court is not conservative but reactionary. In the field of criminal justice it has now turned the clock back over 50 years or nearly 100 years, depending on how you look at it.

In 1897, the court ruled that in federal criminal trials, coerced confessions were forbidden by the Fifth Amendment. In 1936, it said the Fourteenth Amendment extended that prohibition to state trials. It has said repeatedly since then that if a coerced confession was admitted into evidence in a trial, no conviction could stand, no matter how much other evidence there was to prove the confessor's guilt, no matter how "harmless" the trial court's error of admitting the confession was.

It is easy to see why. In the first place, as Justice Anthony Kennedy said in a case from Arizona last week, a confession is almost as damaging as "a videotape of the crime." That's true even though, as Justice Byron White said, "some coerced confessions may be untrustworthy . . . [and] distort the truth seeking function of the trial."

"And more importantly," Justice White continued, quoting previous court opinions, the methods used to coerce confessions offend the principle "that ours is . . . a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges out of [the accused's] own mouth . . . [this reflects] the strongly felt attitude of our society that important human values are sacrificed where an agency of government . . . wrings a confession out of an accused against his will [and] the deep-rooted feeling that the police must obey the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."

Justice White has long been a dependable member of the conservative bloc on the court when it comes to criminal law. If he's upset, most conservatives should be upset.

He didn't say so, but it strikes us his words about wringing a confession out of a suspect raise for him the fear of the return to the third degree. We have such a fear. We can foresee some police departments taking this decision as an invitation to go back to the bad old days. In fact, at least three justices agreed that even confessions coerced by threats of physical harm -- as the one at issue was -- do not necessarily taint a trial.

Equally as disturbing as the decision of the majority to treat coerced confessions so lightly is their overturning so many precedents "without a word" (as Justice White put it) of explanation. They just ignored them. Whatever happened to Justice Lewis Powell's favorite phrase for conservative respect for precedent -- "stare decisis"?

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