The shortest route to a conviction is to get the accused to cry out, "I did it." Sometimes police and prosecutors have been tempted to whip the suspect down that road with anything from a subtle threat to a back-room clubbing. For that reason, courts have long held that forced confessions, whether they were obtained by coercion, beating or psychological pressure, could not be used against an accused person in court. Last week, in a ruling that showed just how vulnerable the legacy of the Earl Warren years has become, the U.S. Supreme Court decided that maybe forced confessions were not such an important matter after all.
In a 5-to-4 decision that brought home the importance of substituting Justice David Souter for the liberal William Brennan, the court ruled that the introduction of a coerced confession at trial may be considered a "harmless error." That undoes part of a 1967 decision in which the Justices ruled that when such confessions are introduced as evidence, any guilty verdict that follows must be reversed automatically on appeal. As a result of last week's decision, what was once taboo will henceforth be merely a technicality.
Forced confessions will still not be sanctioned, but that may not mean much for defendants. If a tainted confession is heard by the jurors, it may help persuade them to find the defendant guilty. But the verdict will no longer be overturned automatically -- provided that an appeals court finds that other evidence would have been sufficient to obtain a conviction. Some legal experts fear that the new standard will tempt prosecutors to introduce questionable confessions in borderline cases in the hope that any resulting conviction will be upheld.
For defense lawyers, the timing of the ruling was as unsettling as its substance. It came when the videotaped beating of Rodney King by Los Angeles cops has focused national attention on police brutality. But the decision had a deeper importance for the larger direction of the court. It was the clearest signal yet that Souter has given court conservatives a reliable majority in cases involving the rights of criminal defendants. Says University of Chicago law professor Philip Kurland: "They've finally got enough votes."
Even so, not all the court's conservative members could agree on every aspect of the case. Chief Justice William H. Rehnquist, writing for a majority that included Souter, Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia, argued that introducing an involuntary confession at trial was merely a procedural error. He distinguished such "harmless errors" from "structural defects" such as a biased judge or a denial of the defendant's right to an attorney. Unfair practices of that magnitude, he said, would still trigger an automatic reversal on appeal.
The majority's reasoning provoked a sharp dissent from Justice Byron R. White, who ordinarily sides with the Chief Justice on cases involving criminal procedure. Speaking for himself and Justices Harry Blackmun, Thurgood Marshall and John Paul Stevens, White took the unusual step of reading aloud his own strongly worded opinion from the bench. Confessions are different from other kinds of evidence, White reasoned. Their impact upon a juror's thinking is too powerful.