Justices Open Pandora’s Box : Out comes the ‘harmless’ forced confession

At 5-foot-3 and 118 pounds, Oreste C. Fulminante is a small man. In 1983 he was in a New York prison on a weapons charge and he was afraid. Rumor had it, a fellow inmate told him, that Fulminante was a “child killer” and prison gangs would get him. The inmate--a paid FBI informant--offered to protect him if he talked about another crime of which he was suspected, the murder of his stepdaughter in Arizona. Fulminante confessed, and was subsequently convicted. Tuesday, the Supreme Court overturned that conviction, but also opened a potential Pandora’s box of legal problems.

Chief Justice William H. Rehnquist, writing for a slim court majority, offered neither pragmatic nor intellectual guidance in the Arizona vs. Fulminante decision, despite the fact that it overturned a century of precedent. From now on, courts will not automatically overturn the conviction of defendants pressured by police officers into admitting guilt. If there is enough additional evidence to justify a guilty verdict, the confession can be considered “harmless error” and the conviction will stand.

While the high court held that Fulminante’s confession was indeed coerced and that its introduction in his trial was not a “harmless error,” it left the door wide open for each trial and appellate court to decide which forced confessions constitute “harmless errors” and which do not.

The Fifth Amendment declares that “No person . . . shall be compelled in any criminal case to be a witness against himself.” In decisions going back a century, the court has declared the introduction of a forced confession from a defendant at trial--involving a threat of physical harm--to be a violation of the Fifth Amendment and the Fourteenth Amendment’s due process guarantees.

In a series of decisions since the 1940s, the court has held that the use of a forced confession as trial evidence is by definition an error and a ground for automatic acquittal.

The high court’s consistent condemnation of coerced confessions has compelling moral as well as practical origins. Our justice system is based on the premise that the accused is innocent until proven guilty. Writing for the majority in a 1948 case overturning a conviction based on a coerced confession, Justice William O. Douglas declared that the Constitution cannot “become a cloak for inquisitorial practices and make an empty form of the due process of law for which free men fought and died to obtain.”

On a more pragmatic level, the court’s hard and fast position on confessions has arguably served as a powerful deterrent to police brutality. Because police and prosecutors have long known that the admission of a coerced confession would blow the entire trial, there was no point in bullying or beating admissions out of suspects. Thus, involuntary confessions have become relatively infrequent.

Unfortunately, forced confessions may now make a comeback. With this convoluted ruling, the Supreme Court has seriously eroded one of the Constitution’s fundamental protections.