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was not thought to be a sufficient reason to deny its existence. But one must recognize that constitutional rules, as distinguished from mere rules of evidence, are hard to change. If the privilege were extended to the police station, withdrawing it might be difficult if the results were undesirable. There are strong arguments both for and against extending the privilege to the informal proceeding.

108. Ibid.

EXHIBIT 28

(The Kentucky Law Journal, owner of the copyright, has courteously granted permission to the Senate Consitutional Rights Subcommittee to reprint the following material, from vol. 43, Kentucky Law Journal, 1955, pp. 392–406, as part of these hearings.)

THE THIRD DEGREE-ITS HISTORICAL BACKGROUND THE PRESENT LAW AND RECOMMENDATIONS

Torture is a certain method for the acquital of robust villians and for the condemnation of innocent but feeble men. . . . If truth is difficult to discover from a man's air, demeanor, or countenance, even when he is quiet, much more difficult will it be to discover from a man upon whose face all the signs, whereby most men, sometimes in spite of themselves, express the truth, are distorted by pain. . . . An innocent men either confesses the crime and is condemned, or he is declared innocent, having suffered an undeserved punishment. But the guilty man has one chance in his favor, since, if he resists the torture firmly and is acquited in consequence, he has exchanged a greater penalty for a smaller one. Therefore, the innocent man can only lose, the guilty man gain, by torture.1

PART I

THE HISTORICAL BACKGROUND

The use of physical maltreatment to extort confessions of guilt of crime was widespread in Europe before the end of the eighteenth century. "[T] orture was applied daily-men were broken on the wheel, branded, mutiliated, subjected to barbarous cruelties-secret accusations were encouraged, capital penalties indiscriminately multiplied...." Such had been the fare for the despotically ruled peoples of the continent since the days of Greece. But, as the torture and suffering went on during the eighteenth century, so did an attack on such inhumane practices," and this onslaught of words and reason diminished the use of physical punishments to induce the "truth." Today, actual violence to the body is almost unheard of. It is believed that a resume of eighteenth century abuses, and demands of abolition of the same, might aid in this proposed survey of present-day methods of obtaining "truth" in criminal cases. The reasons for limitation of extorted confessions, expounded then, can be relied upon still, and can even be

1

1 Quoted by MARCELLO T. MAESTRO in his work, Voltaire and Beccaria as REFORMERS OF CRIMINAL LAW, pp. 58-59, Columbia University Press, New York, 1942, from Cesare Beccarria's DEI DELITTI E DELLE PENE, pp. 148-156.

PHILLIPSON, THREE CRIMINAL LAW REFORMERS (Beccaria, Bentham, Romilly), p. 27, E. P. Dutton & Co., New York, 1923.

id. at 27: "Eminent publicists and statesmen frequently pronounced discourses on justice, on natural right; distinguished writers emphasized the existence of human rights and obligations, fundamental and inalienable; poets and dramatists produced works filled with noblest sentiments; essayists dilated on the sublime aspirations of man.'

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applied, to a large extent, in an attack upon present-day sweatbox methods.

Prior to the eighteenth century most of the nations legislated in favor of the practice of torture. Hellenic and Roman law sanctioned it, and the religious upheaval of the late middle ages encouraged its use. The Spanish Inquisition flourished in the midst of broken bones and blood obtained along with "confessions" of heretics.5 In France, the nature of the crime had much to do with the confessions.

There was a maxim that where the alleged crime was a particularly heinous one, a conviction might be had on slight evidence, or on scarcely more than mere suspicion. . . . The mere fact of accusation was considered as prima facie evidence of guilt; so that the prisoner was compelled to establish his innocence beyond the least doubt. All men had to be, literally, above suspicion. . . . 'Confession', extorted amidst the horrors of the torture-chamber, was regarded as the queen of proofs, 'regina probationum'.6

Royal ordinances regulated torture, however, in France, and there were two sanctioned kinds: 'La question preparatoire', inflicted on a man accused of a crime which was punishable by death, and ‘La question prealable', to obtain a confession of accomplices after the condemnation of the accused. In Italy, the institution of torture attained a high degree of development. It could even be applied in some civil matters, and in most criminal offenses. John Howard, the famous English prison reformer, found torture chambers widespread in his tours of Europe. "The tender mercies of the wicked are cruel,” he wrote, and "the cries of the sufferers in the torture-chambers may be heard by passengers without, and guards are placed to prevent them from stopping and listening.”

'Id. at 32.

'Id. at 30: "Terrorism was deemed the one panacea for all public and social ills. Unrestrained cruelty and ferocity, judicial disregard of human life, indiscriminate extortion of confessions', intimidating methods of securing evidence, and mechanical means of estimating its applicability and its value, secret procedure, and sudden confrontations-all these were thought apt and sufficient measures to secure respect for life and property."

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Id. at 31.

Id. at 35.

PHILLIPSON, op. cit. supra note 2, at 35.

HOWARD, THE STATE OF THE PRISONS, p. 109, E. P. Dutton & Co., New York, 1929. On page 64, Howard writes: "The execrable practice of torturing prisoners is here (Hanover, Germany) used, in a cellar where the horrid engine is kept. The time for it is as in other countries, about two o'clock in the morning. A prisoner suffered the osnabrug torture twice about two years ago (in the 1760's); the last time, at putting him to the third question (the executioner having torn off the hair from his head, breast, etc.) he confessed, and was executed. . . . If the prisoner faints, strong salts are here applied to him, and not vinegar as in some other places." He continues, on page 109: “A physician and surgeon always attend when the torture is applied; and on a signal given by a bell the gaoler brings in wine, vinegar, and water to prevent the sufferers from expiring... Thus in the Spanish inquisition the physician and surgeon attend to determine the

However, some countries refused to permit torture. It had been abolished by the middle 1700's in Sweden,10 and similarly by Frederick the Great in Prussia." In Ireland it was not recognized by law.12 And, although there is evidence that torture was applied in England, it was not widely sanctioned. "Though English judges have occasionally allowed torture in fact, their pronouncements are wholly against it."13 Stephen admits of the use of torture in his work, History of the Criminal Law of England,1 but asserts also that it was never recognized as a part of the law of England. He explains its lack of legal sanction:

Probably the extremely summary character of our early methods of trial, and the excessive severity of the punishments inflicted, had more to do with the matter than the generalities of Magna Charta or any special humanity of feeling.15

The fact remains that torture was widespread in Europe as late as 1775. It had been deemed the "one panacea for all public and social ills," and had been defended by jurists and eccelesiastics.16 St. Augustine thought that it was necessary, even though he admitted its defects," and Bacon regarded the application of torture as an experiment by which to obtain the truth.18 But these men were in a definite minority, and the words of eighteenth century philosophers and writers initiated the demise of such inhumane methods. For example, classical writers, like Cicero and Montaigne, often condemned it.19 The latter urged:

utmost extremity of suffering without expiring under torture. . ." And, on page 105, "But it is too shocking to relate their different modes of cruelty. Even the women are not spared.”

10 HOWARD, op. cit. supra note 9, at 72.
" Id. at 85.

13

PHILLIPSON, op. cit. supra note 2, at 35.

"Id. at 34: "In England the common law did not admit torture, mainly because in the English procedure the onus of proving guilt was on the accuser: in the continental the accused had to prove his innocence. . . . A notable example of this is Felton's case (1628)... in actual practice... torture. . . was from time to time used in England, by extraordinary courts and in virtue of royal prerogative, though not in case of witnesses, nor with the continental subtle distinctions. Various inflictions, however, nominally differing from regular torture received legal recognition. Thus there was the 'peine forte et dure'; if an accused stood mute of malice, instead of pleading when called upon, he was stretched on his back, an iron was laid on him, as much as he could bear, and more, and he had to so remain, fed on bad bread and stagnant water on alternative days, until he pleaded or died."

17

Vol. I, p. 222, MacMillan & Co., London, 1883.

Ibid.

PHILLIPSON, op. cit. supra note 2, at 34.

" Id. at 32.

28 Id. at 34.

"Id. at 32-34. Others protesting the use of torture were Jean Constantin, Jean Bodin, Charles Dumoulin, Pierre Ayrault, Cervantes, Montesquieu, Voltaire, Beccaria, Sonnenfels, Verri, Romilly, Howard, and Bentham.

... that to put a man to the rack was a test of strength and patience rather than of truth, that the infliction of pain is as likely to extort a false confession as a true one . . . and that he whom the judge has tortured that he might not die innocent dies both innocent and tortured.20

These men appealed to reason, to utility, to humanity. They contended that it was a suicidal policy on the part of governing authorities to give way indifferently and blindly to such measures of ferocity and cruelty. They cautioned rulers that men had already suffered these abuses too long, and they urged them to adopt more reasonable and equitable means to prevent mass revolts and disorder.21 Beccaria was possibly the most vociferous and most effective of the anti-torture lobbyists. He based human justice on the conception of public utility, contending that the object of the law is to lead the greatest number of men to the greatest possible happiness or to the least possible misery.22 He asserted:

Torture is useless, wrong, barbarous; it is conducive to false conclusions, and is worse for the innocent than for the guilty, for the physically feeble than the robust. . . . By the use of torture, an innocent man, as he has nothing to gain, is placed in a worse position than a guilty one.23

Words such as these, with the passage of time and revolutions, brought about the desired end-the outlawry of physical torture; and the limitations on the use of confessions obtained by such means. In 1768 in Austria, the Constitutio criminalis theresiana was promulgated, which limited the application of torture, and torture was formally abrogated in 1776.24 All over Europe the capitalist merchants and producers backed the criminal law reform movement also, because

20 Id. at 33.

Id. at 48.

"Id. at 54.

Id. at 78-79: ".. A cruelty consecrated among most nations by custom is the torture of the accused during his trial, on the pretext of compelling him to confess his crime, of clearing up contradictions in his statements, of discovering his accomplices, of purging him in some metaphysical and incomprehensible way from infamy, or finally of finding out other crimes of which he may possibly be guilty, but of which he is not accused. . . . To inflict punishment on a citizen before his guilt has been determined is a right merely of might..

is useless, for the same reason that the criminal's confession is useless. . . . It is to seek to confound all the relations of things to require a man to be at the same time accuser and accused, to make pain the crucible of truth, as if the test of it lay in the muscles and sinews of an unfortunate wretch. The law that ordains the use of torture is a law that says to men: 'Resist pain; and if Nature has created in you an inextinguishable self-love, if she has given you an inalienable right of selfdefence, I create in you a totally contrary affection, namely, an heroic selfhatred, and I command you to accuse yourselves, and to speak the truth between the laceration of your muscles and the dislocation of your bones'... Torture is a certain method for the acquittal of robust villains and for the condemnation of innocent but feeble men...

" Id. at 93.

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