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The individual's interests seem more than adequately bulwarked by the Bill of Rights—basically the Constitution's first eight amendments—which was specifically designed to limit police power and to protect the citizen from government oppression. In essence, the Bill of Rights commands government to prove its case against the accused beyond reasonable doubt. The state cannot force a defendant to testify against himself; the courts must exclude "confessions" that have been obtained by coercion, even if it means freeing the guilty. As Felix Frankfurter summarized the significance of such provisions: "The history of liberty has largely been the history of the observance of procedural safeguards."
What laymen seldom realize, however, is that in practice the Bill of Rights long gave most defendants no protection whatever. The Supreme Court ruled in 1833 that it safeguarded the individual only against the Federal Government. Out of concern for states' rights, the court also was reluctant to shield nonfederal criminal defendants under the 14th Amendment, which stipulates that "no state shall ... deprive any person of life, liberty or property without due process of law."
Thus, local police in the U.S. were for generations under no obligation to observe constitutional guarantees in criminal cases. Arrests and searches without warrants were routine; even today, third-degree methods are not unknown. In New York City, former Deputy Police Commissioner Richard Dougherty wrote recently: "It is hardly news that suspects of serious crimes often get 'worked over' in the back rooms of station houses. The truth is that most crimes are not solved by fingerprints and wristwatch radios and the skillful assembling of clues. The suspect confesses, voluntarily or involuntarily."
Interrogation & Trial
Ironically, this is no problem for the big-time crook with an attorney in attendance. For the suspect without a lawyer, however, arrest and detention are the most crucial phases of his entire case. In the intimidating atmosphere of a station house, vigorous police grilling often takes on all the aspects of a star chamber. "The trial," observes one jurist, "is too often merely a review of that interrogation." Even if the defendant later recants a confession in court, it is one man's oath against those of three or four detectives. A distinguished federal judge said recently: "We'll never be fully civilized until we eliminate this from our society."
Even coerced confessions are by no means automatically excluded by the courts. State judges, who are mostly elected, are sometimes subject to strong public pressure to convict in crimes that shock the community. Conversely, the vast majority of criminal defendants plead guilty and waive trial in order to make things easier for themselves. Many prosecutors, anxious to build their conviction records, engage in "bargain justice," the practice of pressuring defendants to plead guilty to reduced charges. Of some 12% who do stand trial, nearly all are convicted; only a handful ever succeed in having tainted evidence excluded.