Virginia Governor Mark Warner is now considering pardon applications from three former sailors who are serving sentences for a 1997 murder to which they confessed.  The first man confessed after 13 hours of interrogation, but the police found six months later DNA evidence from the victim did not match.  Concluding that he had not acted alone, the police arrested another sailor who had been living with him, and after hours of interrogation he too confessed, but again the DNA evidence didn’t match.  The second sailor gave the police more suspects,  whom the police interrogated, and a third sailor confessed after interrogation, although his DNA also did not match.  After the three sailors were convicted in March 1999, detectives finally got a DNA match - after a fourth man, a convicted rapist, confessed in a graphic letter to a friend, that he had killed the victim.  The convicted rapist said he acted alone.  The three sailors all say that the psychological pressure of arrest and interrogation led them to give false confessions.

Lawyers know that this story is far from unusual.  In recent years new DNA technology has allowed the American justice system to right more than 150 wrongful convictions, almost a quarter of which had been based on false confessions, including the 1989 Central Park jogger case in which five teenagers who had confessed to raping a woman were cleared 13 years later, after DNA analysis of the evidence.  A 2002 study done at Northwestern University showed that 59 percent of all mistakes in homicide prosecution in Illinois involved false confessions. 

The phenomenon of false confessions is well known to experienced lawyers.  In 1982, I was appointed to defend a capital murder case, in which my client confessed committing the murder with three other accomplices.  But my client was drunk at the time he was interrogated and later denied committing the murder.  The confession obtained by the police matched the facts they knew at the time of the interrogation, so my client signed a confession to committing a crime in a way which turned out to be physically impossible.  Fortunately, despite the supposed confession, my client was acquitted at trial.

New Hampshire law has long recognized that confessions made by persons in custody are unreliable.  Almost 150 years ago, before the science of psychology was ever recognized, in State v. York, 37 N.H. 175 (1858) New Hampshire courts recognized that custodial interrogation puts a person at such a disadvantage and that any inducements to confess should make the confession inadmissible.  Id. at 182.  In refusing to allow a confession made after a policeman told an arrestee that if she was guilty “she had better own it,” the Court stated:

“the amount of influence exerted is not to be nicely weighed.  It is enough that it was felt.  Public policy forbids the confession should be used in evidence against the prisoner which are drawn from him by appliances of   this nature, brought to bear on his mind by those who have authority over him and when it may be supposed that his mental agitation unfits him to resist their influence, however slight that may be.” State v. York, 37 N.H. 175, 189 (1858). 

In wise recognition of this fact, in 2004 the New Hampshire legislature enacted RSA 651-G, Post Conviction DNA Testing, requiring law enforcement agencies to preserve materials in connection with a crime and allowing courts to order testing of such samples to determine guilt or innocence in post-conviction proceedings.  The legislature did not act because New Hampshire policemen regularly abuse arrestees; the contrary is true.  New Hampshire police officers, like police officers in most American jurisdictions, are well trained and generally follow the law in interrogations.  Yet, the very fact of custody produces psychological pressures which make statements unreliable, as both experience and modern technology has shown.

Ironically, while courts and legislatures have recognized that because of the psychological impact of custody, confessions obtained while a person is in custody are frequently unreliable, our national leaders seem to be obsessed with obtaining information through confessions.  As a result, academics now debate in books and law review articles whether torture to obtain confessions is permissible to protect society from terrorists.  Harvard Law Professor Alan Dershowitz and others argue that there are circumstances when interrogation techniques that amount to torture are ethical because they are morally justified and, that in an attempt to limit the use of torture and maximize civil liberties in a free society, torture ought to be regulated by a judicial procedure. 

This logic is elegant but facile.  Those who advocate torture generally pose a “ticking time bomb” scenario, in which they posit a terrorist has planted a nuclear bomb, which if it goes off will kill 100,000 people; the police know that the terrorist has planted the bomb but he will not confess; and under the circumstances, the argument runs, the only ethical approach is whatever interrogation technique is necessary to save the 100,000 people.  The premise of the argument leads to the conclusion that torture is necessary.  And once one agrees that torture is permissible in this circumstance, then the only question becomes defining under which other circumstances torture will be permissible.

While the logic is undisputable, the correctness of the conclusion which follows is not.  The “ticking time bomb” scenario posits facts which would rarely be true.  What if the police arrest the wrong terrorist?  Or someone who is not a terrorist at all?  But most importantly, what reason is there to believe the terrorist will tell the truth about where the bomb was planted?

Torture as a means to obtain confessions is not new.  Undoubtedly, torture existed and still exists among primitive peoples simply as a way to extract vengeance or humiliation.  But torture as we know it in the judicial sense arose as a theory of proof under Roman law.  Roman law provided that the testimony of slaves could not be admitted unless they were tortured, for the perfectly logical reason that testimony of a slave, freely given, was so unreliable as to be altogether inadmissible.  With the fall of the Roman Empire, Roman law fell into disuse, and the Western World plunged into darkness, resolving disputes by resort to methods such as trial by ordeal, and trial by combat. 

It was the beginning of the Renaissance and the rediscovery of Roman law that led to the widespread use of torture.  In the 14th Century, Continental lawyers, rediscovering Roman law, developed a theory of proof with a perfectly humane purpose: that no man ought to be convicted of a grave crime unless the evidence was absolutely conclusive:  Without such “clear as daylight” proof, no capital conviction could be found.  Generally, the testimony of two eyewitnesses or a confession was required.  And obviously, since two eyewitnesses to a murder were rare, proof in most cases had to be obtained by other means.  Thus, to obtain the necessary evidence, the law developed that after a given amount of evidence was produced, individuals were allowed to be tortured to obtain a confession. 

This process grew by accretion throughout continental Europe until it was completely developed in the French law of 1670 which established a thorough procedure in which information from a prosecutor would begin the criminal process and witnesses would be questioned.  If the inquiring magistrate determined to proceed, the accused was summoned and questioned; if he did not confess, he was put to torture.  Continental logic ran to this extreme:  the defendant was not allowed to produce witnesses to contradict the charges against him on the perfectly logical principle that unless the proof of guilt was absolutely conclusive he could not be condemned and therefore, if the evidence fulfilled that requirement, it must logically be impossible to contradict it, so witnesses would not be necessary.

The suffering perpetrated under this regime of law is perhaps one of the blackest pages of Western History.  One can only imagine the horrors visited upon women accused of witchcraft in the 15th and 16th centuries, who confessed to witchcraft after torture and suffered cruel deaths after they did so.  And yet today, our leaders discuss in rational terms when “extreme forms of interrogation” are necessary.

Oliver Wendell Holmes wrote that the life of the law has not been logic, it has been experience.  Centuries of common law legal experience teach that confessions are frequently the least reliable source of evidence, and that false confessions are easily provoked by mere psychological pressure, and can always be produced by enough physical abuse.  Logic alone can lead to dark places; the syllogism is seductive.  Karl Marx refined Hegel’s philosophy into dialectical materialism, a system so rational that the form of government he envisioned was called a “scientific” form of government which would lead to the “withering away of the state.”  This logical form of government led to the horror of communism for hundreds of millions. 

To cast our common law tradition of individual dignity away, and permit the government to reduce itself to the level of a torturer is logical, but it is abhorrent to all we believe and, experience shows, futile.  Never has Justice Brandeis’ dissent from the United States Supreme Court’s 1928 holding that wiretapping did not violate the 4th Amendment resonated more:

“Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.  Crime is contagious.  If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.  To declare that in the administration of the criminal law the end justifies the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution. Olmstead v. United States, 277 U.S. 438, 485 (1928).

We as a Bar have an obligation to explain to the public the consequences of casting aside our most cherished principles for a false sense of security.

Richard B. McNamara, NHBA President-Elect, practices with the law firm of Wiggin & Nourie in Manchester. This opinion is his own and does not reflect an official policy of the New Hampshire Bar Association.