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The Fifth Amendment guarantees that "no person shall be compelled in any criminal case to be a witness against himself." It establishes a system of justice based on accusation, not inquisition; it commands the government to prove guilt by independent evidence, not by coercing proof out of the defendant's own mouth. So absolute is the privilege against self-incrimination in a trial that the defendant need not even take the stand. But what of police interrogation —the preliminary stage at which a suspect is pressed to make the very confession that may convict him at his trial?
The answer reveals a strange double standard in U.S. justice. The Bill of Rights—basically, the Constitution's first eight amendments—was written in the 18th century when there were no police forces. At the time, the trial itself was the critical confrontation between the state and the accused. Mindful of the British Star Chamber, the Constitution's framers ringed American trials with safeguards—almost none of which serve to protect the suspect from the time he is picked up by the police until days or even weeks later, when he appears before a judge.
Trial by Police. Clearly, the critical confrontation today is often reached in the station-house "squeal room," where police "make" cases by eliciting presumably voluntary confessions. Although the Fifth Amendment bars the use of any confession that police extract by even the most subtle threats or promises, and though no American need answer a single police question, those facts are generally unknown to the vast majority of arrested Americans—the poor in pocket, mind or spirit. For the Fifth Amendment does not automatically command police to inform anyone of his rights; the suspect himself must know those rights in order to exercise them. Ironically, this is no problem for the big-time crook with an attorney in attendance. For the suspect without a lawyer, however, interrogation is the most crucial phase of his entire case. And 60% of U.S. criminal defendants cannot afford lawyers.
As a result: 90% of U.S. defendants plead guilty and are swiftly sentenced without a trial. In effect, most of them are convicted by the police—not by judges and juries. And since most police insist that interrogation must be secret, the courts have no way of knowing just what led up to the confession. Without tapes, films or neutral witnesses, judges have no way of determining whether a suspect really talked freely or was tricked or bullied into "waiving" his right to silence, or even into confessing falsely—a not unknown reaction to the sinister air of the police station.
Absolute Privacy. The day is just about gone when police used rubber hoses, explained a defendant's suspicious bruises by claiming that "he fell downstairs," or (in New Orleans) made hydrophobic Negroes talk by suspending them over a lake canal at night. Today, the goal is "rapport" with the "subject." Having discovered psychology, the cops induce "truth" by psyching the suspect.
In one leading police manual, Criminal Interrogation and