Watts v Indiana, 338 U.S. 49 (1949)

Mr Justice Frankfurter announced the judgment of the Court and an opinion in which Mr. Justice Murphy and Mr Justice Rutledge [two sainted souls] join: [excerpts follow]

“There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men. See Taft, C.J., in the Child Labor Tax Case, 259 U. S. 20, 37.”

“A confession by which life becomes forfeit must be the expression of free choice. A statement, to be voluntary, of course need not be volunteered. But if it is the product of sustained pressure by the police, it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation, and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation. The very relentlessness of such interrogation implies that it is better for the prisoner to answer than to persist in the refusal of disclosure, which is his constitutional right. To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court, with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.”

Now comes the heart of Frankfurter’s analysis:

“This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv.L.Rev., 433, 457-58, 467-473 (1935). Under our system, society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation. “The law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Hawkins, Pleas of the Crown c. 46, § 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the accusatorial system and manifestations of its demands.”

“Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards.”

Now this is the common-law, due process accusatorial system that the distinguished jurists of the previous generation left us.

And which if Scalia had his way, would be dismantled under the name of State security, and a new edifice of inquisitorial law erected.

Rochin v California, 342 U.S. 165 (1952)

Mr. Justice Frankfurter delivered the opinion of the Court: [excerpts follow]

“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

“To attempt in this case to distinguish what lawyers call “real evidence” from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing [342 U.S. 165, 174] would be more calculated to discredit law and thereby to brutalize the temper of a society.”

Now compare that jurist with the current fellow and his talk of “slaps to the face” in the BBC interview.

So far as Scalia goes: “nihil magnum nisi bonum” decidedly applies.

He and Thomas are two of the worst Justices for the legal values I hold dear that we have seen since the 30′s. He is smart, but no second coming of a Frankfurter.

Sorry for the ipse dixit, but the man and his chamber of eager climbers cared nothing for human life..so his taking up of torture doesn’t surprise.

Goes well w/Thomas’s little exegesis on corporal punishment in Morse v Frederick.

The jurisprudence of pain and punishment….we need to outgrow this kind of juvenile stuff.

I know JT doesn’t agree with my comments above, but I really look at AS unfavorably.