Law and police practice: restrictions in the law of interrogation and confessions.

• Author: Inbau, Fred E.
• Position: Originally published in Northwestern University Law Review, vol. 52, p. 77, 1957 - Reprint

When the police handcuff a suspected criminal, they, as well as the arrested person himself, have a very definite understanding as to where he is going. The purpose of the handcuffing is also quite apparent. But when the courts handcuff the police--and it is suggested that some of them do--it is doubtful if they have a clear-cut notion as to where they are headed. It is also questionable whether such courts have given adequate consideration to other and perhaps better methods for coping with the police problems about which they are concerned.

Artificial restrictions which the courts have imposed upon law enforcement agencies and officers are the result of two basic misconceptions regarding police misconduct.

The first misconception concerns the role to be played by the courts with respect to the control or supervision of police activities. The theory has been developed by some judges that the judiciary is privileged to exert disciplinary control and supervision over the police. For this position constitutional authority seems to be completely lacking. Courts have the power, of course, to reject evidence illegally obtained, and particularly so where the trustworthiness or validity, of the evidence may be affected by the methods used to secure it. But that is a distinctly different matter from the control or supervision of police activities themselves. Even within the federal system, there seems to be no constitutional authority for the exercise of any supervisory power by the Supreme Court over' the activities of federal officers, although there is no doubt about the Supreme Court's supervisory power with respect to the lower federal courts and the evidence that may be admitted in the trial of federal cases. The fundamental concept of a threefold division of power seems to indicate that there is not authority for any court to exercise disciplinary control over the police. Nevertheless, some judges conceive their role to be that of part-time commissioners of police, an obviously non-judicial function.(1)

The second misconception is that the courts can effectively discipline the police. The basic weakness of this notion, however, may not be so apparent as in the case of the other misconception, since an understanding of its weakness requires some acquaintance with practical police problems, procedures, and, above all, an insight into the thinking and attitudes of policemen themselves.

Although a trial judge or prosecutor may well be sensitive to a reversal on appeal, and consequently the reversal may serve to discipline him to avoid error and misconduct in the future, such a reaction cannot reasonably be expected from the police. They are generally insensitive to a court's rejection of evidence merely because of the impropriety of the methods used to obtain it. Moreover, the most insensitive of all is the ignorant, untrained policeman--the one whose improper practices are most disturbing to the judge with the handcuffs. It is almost futile to try to improve police practices by rejecting improperly obtained evidence of guilt. The courts may just as well attempt to solve the problem of juvenile delinquency by giving courtroom reprimands to the parents of delinquents. The causes of delinquency are numerous and deep-rooted. The same may be said of police abuses and illegal practices. We must look for basic causes in our application of remedial measures.

The amount of police misconduct in any community will be in direct ratio to the lack of basic qualifications, training, and non-political direction of police personnel. These problems cannot be remedied by rejecting "improperly" obtained evidence. There is no substitute for the requirements of personnel qualifications, training, and minimization of political interference. Moreover, legislative reform is needed so that practical necessity will no longer compel the police to violate the laws in order to give the public the measure of protection it demands. We may then well utilize the proposal made by Mr. V. W. Peterson for the creation of an impartial and independent board of citizens with authority to conduct inquiries into police misconduct and, wherever necessary, impose penalties. Direct disciplinary action of this type can be made effective without the price we are now paying for the practice of rejecting otherwise valid evidence of guilt.

The improvements which have been made in police administration, practices, and conduct in the past twenty years, and particularly in the matter of interrogation methods, have resulted from improved police selection and training. The disciplinary efforts exerted by the courts have contributed very little, and the cost of the lessons has been much too great.

There is no question but that police abuses and improper practices in the matter of the questioning of criminal suspects could be virtually eliminated if the courts or the legislatures were to outlaw the use of all confessions as evidence of guilt. By a similar measure we could also almost eliminate traffic fatalities by requiring governors to be placed on all automobiles to prevent their going faster than twenty miles an hour. These results we may accomplish, but at a great sacrifice of much else.(3)

The court ought to set their...