Tuesday, April 10, 2012

Confession Under Torture: The Visigothic Solution

Quite a lot of legal systems have used torture to try to force defendants and/or witnesses to tell the truth. Moral problems aside, the obvious problem is that an innocent defendant may confess, or a witness give the testimony he thinks the interrogator wants, to avoid the torture.

Obvious not only to us but to them. The legal literature of Imperial China, where torture of both witnesses and defendants was legal, contains accounts of cases where a clever official figured out that a confession under torture was bogus and successfully identified the real criminal.

Much of what we know about the Athenian legal system comes from orations written by professional orators to be spoken by plaintiffs or defendants. They include two orations, written by the same orator for different cases, one of which argues that testimony under torture (of slaves) is entirely reliable, one of which gives the obvious argument for why it is not—in each case, of course, supporting his client's position.

I recently came across an ingenious, if imperfect, solution to the problem in what is apparently the oldest surviving Germanic law code—the Visigothic Forum Judicum. Alaric accuses Beremud of murder. There is not enough evidence to convict Beremud, so he is tortured to make him confess. Under the code:
 “The judge shall take the precaution to compel the accuser to specifically describe the alleged offence, in writing; and after he has done so, and presented it privately to the judge, the torture shall proceed; and if the confession of him who is subjected to the torture should correspond with the terms of the accusation, his guilt shall be considered to be established. But if the accusation should allege one thing, and the confession of the person tortured the opposite, the accuser must undergo the penalty hereinbefore provided; because persons often accuse themselves of crime while being tortured.
If Beremud is innocent, he won't know the details of the offense—where and when the victim was killed, with what weapon, what wounds were inflicted. However much he wants to stop the pain, he can't confess what he does not know. This assumes, of course, that an innocent defendant will not know the details of the crime. The code dealt with that problem:
But if the accuser, before he has secretly given the written accusation to the judge as aforesaid, should, either in his own proper person, or by anyone else, inform the party of what he is accused, then it shall not be lawful for the judge to subject the latter to torture, because the alleged offence has become publicly known.”
There is at least one  problem with this solution to the problem of false confessions. A guilty defendant, knowing the law, may confess under torture and deliberately get the details wrong. My conjecture is that that problem was dealt with by having the interrogator  keep up the torture until either the defendant confessed with the right details or the interrogator was convinced that he could not. I suspect that most of us, having had the good fortune not to have been subjected to torture, overestimate how easy is to hold out when saying the right words will end the present pain.

It may occur to some readers that a variant of the Visigothic solution survives in modern practice. Police officers are not supposed to torture defendants, but they are allowed to interrogate them, and interrogation sometimes leads to confessions—which may make one suspect that it comes closer to torture than it is supposed to. One way of checking whether the confession is for real is to see whether it contains details that an innocent defendant would not know.

Of course, this depends on the honesty of the officers doing the interrogation—they can, and for all I know sometimes do, subvert the process by feeding the defendant information that they have and he, if innocent, does not.

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P.S. A talk I just heard on the problem of jailhouse snitches points out a different modern version of the problem—the "confession" by a defendant that may have been invented by the person it was supposedly confessed to, a fellow criminal eager to testify in exchange for lenient treatment in his own case. Here again, one test of truth is whether the confession contains details that the real criminal would know and an innocent defendant, or the fellow criminal who claims to have heard the confession, would not. Here again, the problem is that the snitch may have been fed that information by the police or prosecution, or obtained it himself in some other way.

One further problem, in that case, is that the snitch may be, in some cases turned out to have been, the real criminal, eager to convict someone else for his crime. And well informed about the details.

26 Comments:

At 7:12 PM, April 10, 2012, Blogger blink said...

Torture is an extreme case, but it seems we often create incentives for innocent parties to confess as with most plea bargains and "prisoner's dilemma" type interrogations.

Also, how did the Visigoths initiate prosecution? It is difficult to imagine a punish-the-accuser solution today because modern criminal prosecutions involve "the state" vs. the defendant which leaves only an abstract entity to punish.

 
At 7:23 PM, April 10, 2012, Blogger Mike Hammock said...

I have read several times that in Ancient Rome the testimony of slaves was only admissible if it was extracted under torture. That is, even if a slave was willing to testify, the testimony was inadmissible if not given while the slave was being tortured.

I can't quite figure out how this made any sense to anyone, or even how it worked. If the slave quickly blurted out everything of importance, did the torture stop, or did it have to continue for some time? Didn't this deter a lot of valuable testimony in cases in which it was not clear if someone might know something? How could this rule be efficient?

I suppose the goal might be to get a slave to testify against his or her master, but there would have to be some system (like that of the Forum Judicum) that would discourage false testimony.

 
At 12:58 AM, April 11, 2012, Blogger David Friedman said...

In the visigothic case, prosecution seems to be normally commenced by someone accusing the defendant--and the accuser is subject to punishment if the defendant is tortured and found to be innocent.

In response to Mike, the same rule apparently applied in Athens and Rome. The only sense I can make of it is:

1. They needed it to balance the master's pressure on the slave, and

2. They believed, perhaps correctly, perhaps not, that a good interrogator could tell when the slave was making up his answers and when he was telling the truth.

As I commented in the post, the Athenians were aware of the problem.

 
At 1:10 AM, April 11, 2012, Anonymous Simon said...

I think

"now know"

should be

"not know"

 
At 8:58 AM, April 11, 2012, Blogger Mike Hammock said...

I read a (surely greatly abridged) version of the Code of Justinian several years ago, and I recall that there was a huge amount of material on legal rules regarding slaves as property--how much one could recover for damages to one's slaves, how much one owed when one's slaves caused harm, etc.--but I don't think there was anything at all on testimony of slaves. It might be worth revisiting, though, just to make sure.

 
At 9:05 AM, April 11, 2012, Blogger Mike Hammock said...

In fat, according to this, Justinian's code, while reforming some aspects of slavery, required that even manumitted slaves be tortured while testifying (so that masters were unable to spare their slaves from torture). It must have been seen as a really valuable feature of legal procedure.

 
At 9:06 AM, April 11, 2012, Blogger Mike Hammock said...

"In fat" should be "In fact", obviously.

 
At 2:04 PM, April 11, 2012, Blogger Mike Hammock said...

This paper argues that torture of slaves for testimony in Athens was infrequent and not very important, and that the procedure, βάσανος, was really a way to introduce evidence in the form of a rejected challenge.

 
At 7:52 PM, April 11, 2012, Blogger John David Galt said...

I would assume that torture, when used to obtain confessions, is almost always the result of laziness. Either the cops don't want (or haven't the skill) to do proper detective work, or they are under pressure from the public (or a higher official) to close the crime quickly, and therefore don't care whether the person they convict is guilty or not.

(Which makes a certain amount of sense if you don't assume they care about actual justice being done. After all, convicting the wrong guy will deter other crimes just as well as convicting the right one, assuming that the real crook has the good sense not to either brag about his escape or continue his career.)

 
At 12:14 AM, April 12, 2012, Anonymous Alan said...

Interesting. Completely screwy, but interesting.

I would like to say that we are beyond that in this day and age, but I am afraid we are not. The American system prevents most physical torture, but Americans are masters of psychological torture - and it is tremendously effective, if one's intent is to solicit false testimony, whether an accusation or confession.

For example, the problem of plea bargains already mentioned - many innocent defendants will plead guilty to a lesser crime rather than risk conviction of a greater crime. For a person with few social resources who does not believe that they will receive a fair trial, it is logical to confess to a crime they did not commit.

Then there are the known effects of sleep deprivation and being prevented from going to the restroom (among other things). American interrogators have not only used this tactic to get false confessions from suspected murderers (who later turned out to be innocent), but have even used this tactic on children - though in the latter case generally to coerce false accusations from small children who did not understand the consequences of what they were saying.

Then, one recent twist concerns convicted sex offenders, many of whom maintain that they did not commit the crime, that the act was consensual, or that they did not commit any crimes other than the one(s) for which they were convicted. These prisoners are often required to attend "therapy" where the therapist already subscribes to a theory that a person who commits one such crime will have committed many of them, and so the therapist requires these prisoners to change their account or confess to imaginary crimes as a condition of therapy and - here is the twist - successful completion of therapy is required before the prisoner is eligible to be released. Naturally these prisoners feel a compelling need to say whatever the therapist wants to hear, and the therapist uses these false accounts to confirm their theories and continue the vicious cycle.

I think it is difficult for most people who have never been put into such a spot to understand how much pressure the victims of these techniques are put under, but thanks to DNA evidence we now know that false confessions are quite common - and that ought to concern anyone who is interested in justice. At the very least we should insist that all interrogations are recorded with both sound and video, so that jurors and judges can see for themselves the circumstances in which the interrogation occurred. It would amaze me that some police departments object to it, except that it is clear that many law enforcement professionals are more interested in protecting their jobs than with pursuing justice.

One other note: I had never heard of slave testimony being valid only if given under torture, but a simple reason occurs to me that has escaped the others here: it would prevent slaves from spreading gossip or making charges - whether malicious or true and damaging - about their masters. If you were a slave and you saw your master kill his wife, would you say anything if you knew it would lead to torture?

Me? I know nothing.

 
At 6:01 AM, April 12, 2012, Blogger Milhouse said...

One other note: I had never heard of slave testimony being valid only if given under torture, but a simple reason occurs to me that has escaped the others here: it would prevent slaves from spreading gossip or making charges - whether malicious or true and damaging - about their masters. If you were a slave and you saw your master kill his wife, would you say anything if you knew it would lead to torture?

But how would that be in the interests of the society that made such a rule? Surely it's in that society's interest to encourage slaves who see actual crimes to report on them. And yet these societies seem to have done the opposite.

 
At 6:38 AM, April 12, 2012, Anonymous Anonymous said...

"the accuser must undergo the penalty hereinbefore provided"

Is this saying that if the prosecutor tortures the wrong person then the prosecutor serves the sentence for the accused crime?

This would be similar to Rothbard's view that police be personally liable for mistakes.

 
At 9:50 AM, April 12, 2012, Anonymous Rebecca Friedman said...

Unless the societies want* to discourage false accusations by slaves to such an extent that they're willing to discourage true ones at the same time. If you think about it, a slave is in a very strong position to give testimony - true or false - against his master, and can easily have reason to do so. If what the society wants is to make sure the master doesn't have to be afraid of the slave - set up the existing conditions to strengthen the master's authority in that specific situation...

... then it could make some sense.

(*Naturally, talking about what a society "wants" is meaningless. But consider it as "whoever or whatever process set up the laws that way.")

 
At 1:45 PM, April 12, 2012, Anonymous Bob Robertson said...

I think "Sins of the Father" was an excellent demonstration of modern psychological torture to extract confessions.

This issue, along with "search and seizure", brings to mind just how effective the attitude of "The Guilty Must Be Punished" is in getting people to hand over their rights to the state.

Why else would anyone advocate torture when there is always the chance that they, too, will be tortured? Or advocate spying, property seizure, asset forfeiture, etc?

Either that, or they cannot conceive of themselves being on the receiving end, which is self delusion on a grand scale.

I was on a jury for a murder trial. The state did nothing, and I mean NOTHING, more than put the defendant at the scene. And for that, they were demanding First Degree Murder conviction.

One of my fellows openly stated that "Someone must be punished!" They were ready to convict this man on no evidence what so ever, merely because they had been presented as a scapegoat for the death of someone else.

I was stunned that anyone could be so completely stupid, until I realized she was a public school teacher.

 
At 3:23 PM, April 12, 2012, Anonymous Nightrunner said...

Of course confession under torture benefits primarily the judiciary. So when life and limb are cheap, the system flourishes, when they are more valuable, at least for some in the society, it withers. It cannot produce more or less truth in convictions, and it is not its goal. So ... what is your point?

 
At 11:07 PM, April 12, 2012, Anonymous Alan said...

Milhouse - Rebecca Friedman gave a good answer. Keep in mind that the people writing these laws were mostly slaveowners themselves, and keeping their slaves at their mercy was far more important than empowering the rare whistleblower who might benefit the community as a whole.

 
At 8:42 PM, April 14, 2012, Blogger Milhouse said...

Milhouse - Rebecca Friedman gave a good answer.

I don't think so.

Keep in mind that the people writing these laws were mostly slaveowners themselves

So what? It's still in their interest to have slaves give whatever information they have. Most slaves didn't belong to them.

keeping their slaves at their mercy was far more important than empowering the rare whistleblower who might benefit the community as a whole.

Rare? Why would a slave be less likely to have useful information than anyone else? Every society, including theirs, makes laws to encourage witnesses with information that is in the public interest to come forward. There are laws to compel testimony from those who would rather stay out of it. Why would any society make laws that they know will encourage potential witnesses to clam up? Again, a very small percentage of slaves belonged to the lawmakers, let alone to any one lawmaker. And every lawmaker must have wanted everyone else's slaves to testify if they had anything to say. So why did they make these laws?

 
At 9:25 PM, April 14, 2012, Anonymous Rebecca Friedman said...

Why would a slave be less likely to have useful information than anyone else?

They wouldn't - but they might have significantly more incentive to fabricate false information.

Why would any society make laws that they know will encourage potential witnesses to clam up?

Because they thought those witnesses sufficiently unreliable that the cost of not getting the valid information was less than the cost of giving them a (comparatively) easy way to get their master* in trouble?

Again, a very small percentage of slaves belonged to the lawmakers, let alone to any one lawmaker. And every lawmaker must have wanted everyone else's slaves to testify if they had anything to say. So why did they make these laws?

Good point, but I don't think it was about individual people trying to put down their individual slaves, as much as the effect on society if a slave has even a relatively small chance to get his master* in trouble without significant cost to himself.

*I'm sorry. I can't think of a non-offensive word. I'm not sure there is one.

 
At 4:37 PM, April 15, 2012, Anonymous Alan said...

Milhouse - Rebecca is right again.

You just aren't thinking like a tyrant. That's a good thing, of course, but it makes it difficult to explain.

Here's the Master, and he's got all these slaves around him. Not only do they outnumber him, but they also know all the family secrets and - if they were freely allowed to testify - they would be an even greater danger to him - and of course the master's friends all have the same problem, and they are also put in danger if the law allows the slaves to freely testify or even get their hopes up. So they put in place a system that denies slaves even this small power, because it would be a threat to all of them and a threat to their way of life, and they use psychology to keep the slaves weak and divided. They might allow the hope of eventual manumission, but just enough to keep the slaves from turning to violence in hopelessness, and they'll make sure the slaves understand that any freedom is at their sufferance.

 
At 4:29 PM, April 16, 2012, Blogger Doc Merlin said...

Re: Rome:
Maybe it was to discourage slaves from coming forwards as witnesses? The top legal men were all slaveowners and were always surrounded by slaves. Maybe they wanted a way to discourage slaves in general from volunteering evidence against them?

 
At 4:31 PM, April 16, 2012, Blogger Doc Merlin said...

Hrm, Seems Alan beat be to to the punch. I would add: it also means that the master can volunteer the slave's testimony easily but no slave is going to volunteer his own testimony.

 
At 8:26 PM, April 16, 2012, Blogger Milhouse said...

Doc Merlin, that is not an answer. There's no logical reason why the lawmakers would be more worried about slaves giving evidence against them than they would be eager to have slaves give testimony for them. Especially since one can assume that lawmakers would tend to stay on the right side of the law, and thus any truthful testimony would be more likely to help than to harm them.

 
At 10:53 AM, April 17, 2012, Blogger neil craig said...

Having watched NCIS etc I think that improvements in forensic science would do much more to prove Beremud's guilt or innocence than torture. This looks like a case where technological progress actually changes the basis of ethical questions.

The only defencible argument for tortrue I can see would be getting information, vital to saving lives, that the investigator doesn't have any other way. That would be in direct contradiction to the investigation proposed here which depends on verification by information already held.

 
At 5:25 PM, April 17, 2012, Blogger Doc Merlin said...

"Doc Merlin, that is not an answer. There's no logical reason why the lawmakers would be more worried about slaves giving evidence against them than they would be eager to have slaves give testimony for them."

They still can. They can demand that any slave give information


"Especially since one can assume that lawmakers would tend to stay on the right side of the law, and thus any truthful testimony would be more likely to help than to harm them."

I dispute your assumption. In Rome, "right of association" wasn't considered a right, and any organization not explicitly endorsed by the state (other than the family) was considered illegal. Furthermore, many activities were illegal that nowadays would be considered absurd and in absurd ways. For example: in early Rome it was illegal to know the law if one wasn't from the priestly class. In Greece it was the highest crime (worse than murder) to gain pleasure from someone else's shame. In addition to these odd laws, ancient societies often had a laws that amounted to "speaking badly of the ruler is a crime." This is a crime that the elites would very likely be guilty of and would result in very bad consequences for them should they get caught.

 
At 4:04 PM, April 18, 2012, Blogger Milhouse said...

They still can. They can demand that any slave give information

How can they do that? Almost all slaves don't belong to them, so how can they demand anything from them?

 
At 3:05 PM, April 21, 2012, Anonymous Alan said...

Milhouse wrote "Especially since one can assume that lawmakers would tend to stay on the right side of the law, and thus any truthful testimony would be more likely to help than to harm them."

ROTFLMAO!

Why would that be any more true of Rome than it would be of Washington?

 

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