| Friday,
July 4, 2008
Happy Birthday America!
We have a local community Fourth of July Parade in the Studio City
Triangle, and I took Sable down to be part of it. She gets a bit nervous
when there are hundreds of dogs and children, and I have to be careful with
her. Besides, kids offer her food and after a while she gets the notion that
any kid holding something yummy is offering. So I have to watch that. All's
well that ends well, and this was fun if exhausting. Halfway through Sable
found a pothole a good 8 inches deep and decided to wade in the muddy water,
which cooled her off something wonderful but sure wasn't good for her
appearance, and this just after we had her groomed. So I washed her off when
we got home (well, hosed her down; I am not up to putting her in a washtub
and doing a real wash) and now she's clean if a bit ruffled.
And I fear I am exhausted, but it feels pretty good to be tired and
hungry. Dr. Wang prescribed a liquid formulated for AIDS patients that
restores appetite, and it worked: whereas the very thought of food used to
make me ill, now I eat with gusto, and in fact I should be careful or I'll
gain too much weight. I am up to 202 pound (from 193 low point) and this is
about the weight I want to stay at, so from here on I'll be more careful.
There was food aplenty at the 4th of July Parade, but I was reasonable about
what I ate. Time to start being abstemious (which I was not yesterday).
On Coerced Testimony Including
Confessions, and Rules of Evidence
The Fourth of July seems a good time to look into this matter.
First, we can all agree that the notion of torture as a means of
obtaining information is repugnant, and as a general rule civilized
societies do not employ it. The US Constitution has built in a protection
against being compelled to testify against oneself, which pretty well rules
out the use of torture as a means of obtaining confessions.
Note that the Constitution does not rule out compelled testimony, nor do
our courts, nor do the courts of any other civilized nation. Witnesses can
be and are compelled to testify before grand juries (if they are not willing
to talk to the police) and can be jailed until they decide to cooperate.
Depending on where they are jailed, one might say that torture is a
legitimate means of compulsion, and the threat of being jailed in a place
where sexual and other assault on inmates is common is often used as a
threat. High profile witnesses such as reporters who refuse to reveal
sources may be protected, but less visible potential witnesses do not have
that expectation. The ability to compel witnesses to appear and testify is
pretty fundamental to our theory of a trial, and that power is available to
the defense as well as the prosecution as a Constitutional right.
So, when it comes to compulsory testimony, the practice is common and
indeed routine, with a few exceptions. One exception is the journalist claim
to immunity from being compelled to reveal their sources; this "right" is
fairly new, and its limits are not well established, and in these days of
the Internet and blogs it is very difficult to determine just who is a
journalist within the meaning of the shield laws to begin with. We have not
heard the last argument in that matter, nor have we seen the last ruling.
But in general if you are a participant in or witness to an event that
becomes important in a civil or criminal case, you can be compelled to
testify under oath and under penalty of perjury, no matter how embarrassing
or unpleasant this may be; and if you plead that you won't testify because
it might incriminate you, you can be granted immunity and compelled to tell
your story.
Which brings us to the major exception to compulsory testimony: the
immunity against self incrimination. This isn't debatable in the United
States because it is built into the Constitution, and is one of those rights
from the Bill of Rights that probably could not have been inferred from the
grant of limited powers theory favored by Hamilton and the others who argued
that a Bill of Rights was not only not needed, but would prove to invert the
theory of the Constitution: with a Bill of Rights, those powers not
forbidden to the general government would be understood to have been
granted, while the Hamiltonian view was that if the Constitution didn't say
the Federal Government could do something, then it couldn't do it no matter
how reasonable that might seem. In any event, immunity against self
incrimination is pretty well absolute in the United States, at least in so
far as it applies to the Federal Government. (This is not the time to
discuss the theory that some (but certainly not all) of the Bill of Rights
was incorporated as prohibitions on the States by the Civil War Amendments.)
While the existence of this right is not debatable, its wisdom is
certainly discussable, which was the only reason I brought it up in the
first place. Most Americans don't seem to know there are plenty of
arguments against not being compelled to tell the truth in court even if the
truth tends to be self incriminating. Whether they ought to be aware of
those arguments can be debated, but surely knowing they exist does no harm?
But do note that even if one cannot be compelled to incriminate oneself,
one can be compelled to testify against one's colleagues in a crime.
Prosecutors can and do grant immunity to minor actors in a criminal
enterprise, sometimes as part of a plea bargain, sometimes on the theory
that it is better to let the little fish get away if we can get the major
culprits, and sometimes because the evidence against the small fry is so
overwhelming that there is no need for self incrimination with or without
details.
So: we accept the principle of compelled testimony, even if that
testimony is embarrassing or self incriminating, so long as that compelled
testimony is not used against the witness. Perhaps this ought to be debated,
but at the moment it is certainly the practice in both Federal and State
courts, and in England (and of course there are places that do not recognize
any right against self-incrimination, and routinely demand that a witness
tell the truth, the whole truth, and nothing but the truth in both civil and
criminal cases. It is my understanding that this was the situation in
Louisiana until the US Supreme Court imposed the Bill of Rights on the state
after the Civil War Amendments.
We can compel testimony; so we are now haggling over the means of
compulsion.
There is a long and complex literature on this subject. One of the
classic cases is the ticking time bomb. There was an excellent made for
television 1960 Playhouse 90 production starring Van Heflin, Raymond Massey,
and Cliff Robertson that looked at this in great detail: Heflin is a French
officer charged with public safety in Algiers. It is known that a teen age
boy, a prisoner, knows where a bomb has been placed and when it will
explode. Many lives, both French and Algerian, are at stake. Time is short.
What means are legitimate in finding the location of that bomb? Cliff
Robertson, a junior officer, offers to use extreme means of interrogation
and argues that there is no choice. I don't suppose this can be found for
viewing now, but I have never forgotten it. It lays out all the arguments
with great clarity.
This case is a distillation of the current arguments regarding water
boarding and other extreme means of interrogation. One side claims that it
is irresponsible not to use extreme means when there is a chance for saving
life: for preventing another 9/11. The other claims that "the end does not
justify the means." (As an aside: if the ends don't justify the means, then
what does?)
I don't expect to settle any of this. If two thousand years of discussion
hasn't settled it, I won't be able to. I just want to lay out the threads of
the argument so we understand what we are talking about.
The Stakes
One thing we can agree on: extreme means of compulsion are only justified
by the highest of stakes. Alas, that, too, can be debated.
Torquemada, Inquisitor General in Spain during the inquisition of
Ferdinand and Isabella the Great, is said to have personally been a very
good man who wore a hair shirt and was both abstemious and pious in his
personal life. He was also very concerned that the Inquisition was being
used by the Royal Government for political, not spiritual, purposes, and he
conceived it as his job to do the real work of the Church, which was the
salvation of souls. To him there were no higher stakes. He was horrified by
the notion that people were being condemned without just cause; but of
course, to him, "just cause" had a different meaning from what most of us
would accept.
In 1492 Ferdinand and Isabella united Spain and drove out the last of the
Moslem kingdoms which had been established over the centuries since the
Prophet. The dream of uniting Spain, and ending any Muslim presence in
Europe, had been the dream and ambition of every Christian Spaniard for six
hundred years. For a good summary of the early days of this conflict as well
as one of the most valuable synoptic histories of the West, see Fletcher
Pratt
The Battles that Changed History.
Prior to 1492 there had been other conquests of Muslim states in Spain.
In all cases their Most Catholic Majesties (Isabella la Catholica was Queen
of Castile in her own right, as well as Queen of Aragon as Ferdinand's
husband; and Gonsalvo de Cordoba, the best general of the age, was
Isabella's general, not Ferdinand's) required that all the new subjects
either convert to Christianity or leave the kingdom. There were many
conversions, but there was also great suspicion that the conversions weren't
sincere. This had consequences both religious and political. Politically, it
was very dangerous to have a fifth column of Muslim sympathizers in the
kingdom. Religiously, heresy was considered one of the worst of the sins,
and heretics were doomed to Hell. Dante had placed them in fiery sepulchers
below the City of Dis.
Of course there were opportunities for petty officials. Many Jewish and
Muslim converts were wealthy. Convicting them of heresy could be quite
lucrative, and even the Pope became concerned about false prosecutions. One
reason Torquemada was appointed Inquisitor General was to prevent selfishly
motivated accusations. Alas, his reforms did not spare those who really were
heretical, and if one was questioned before torture, during torture, between
tortures, and after torture one might be induced to confess to anything.
Torquemada had good intentions but his place in history is not the one he
would have liked to have.
In other words, if what is wanted is reliable information about the guilt
of the subject -- reliable self incrimination -- torture is notoriously
unreliable. In Germany nearly everyone accused of witchcraft confessed --
and their property was confiscated, generally to the enrichment of the
accuser. King James I of England, on reading the testimony of women accused
of witchcraft, famously said "They are all great liars." He did not believe
they sailed the seas in a sieve, or summoned a horned man, or flew on
broomsticks. Some of this testimony was voluntary braggadocio, but some was
solicited under torture -- and it was not reliable.
That says nothing about the efficacy of torture for soliciting verifiable
information, as for instance, the location of a ticking time bomb. While few
of us today would agree with Torquemada that if we can bring the sinner to
true repentance at the moment of death we will have done him an infinitely
great service -- that the stakes cannot be higher -- the argument is not so
clear in the case of the ticking time bomb, or the location of hostages.
What we think of high stakes today is quite different from the days of
Ferdinand and Isabella.
That doesn't mean that the stakes are not high. Or that the subject
should not be debated in a responsible republic.
What's to Debate?
In the United States there is no debate over self-incrimination. Whatever
the arguments, the question has been settled in the Constitution itself: the
federal government cannot compel you to incriminate yourself, and the courts
have ruled that this doctrine applies to the states as well. The question is
settled.
What is not settled is just what can be compelled? Can the defense
require reporters to reveal sources? If the only testimony that will free a
defendant is a confession by someone else, can that someone else be granted
immunity and compelled to make that confession? If he does, how can we tell
if this is the truth? If he does not, is there justice for the defendant?
The Constitution itself gives the accused the right "to be
informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defense". We have seen that the State of Texas doesn't seem to pay
much attention to this when it thinks the stakes are high -- not only has no
one in the FLDS case been confronted with an accuser, but the accuser is
apparently now known not even to exist -- but in general this is a right we
all have and I would presume most of us support it.
But what does it mean? What means of compulsion are legitimate and what
means are not? We have a lot of case law on that subject, but I don't think
there is a general agreement. This is one subject for debate.
A second debate can be had on the general principle of high stakes
matters like the ticking time bomb.
And of course it is not enough to establish principles. One also needs to
establish procedures: due process of law. We have some procedures. What we
need now is some general agreement on principles.
And see below
=========================
.
For platinum subscription:
Platinum subscribers enable me to work on what I think is important
without worrying about economics. My thanks to all of you.
Friday TOP
Current Mail
|
