PERSPECTIVE ON THE SUPREME COURT : Fifth Amendment Takes Another Blow : The ruling shows a tendency to trust government, even when experience encourages skepticism.

Oliver Wendell Holmes, in perhaps his most famous observation on the legal system, declared, “The life of the law has not been logic: It has been experience.” He meant that the law’s growth and wisdom come more from the practical lessons of history than from abstract reasoning.

The current Supreme Court shows dangerous signs of ignoring this truth in the interpretation of constitutional law.

In ruling this week that a criminal conviction may be upheld under some circumstances even when the evidence against the defendant included a coerced confession, the court displayed its growing tendency to trust government’s competence and good faith, even when the Constitution and modern experience encourage skepticism.

Oreste Fulminante was convicted in Arizona of the first-degree murder of his 11-year-old stepdaughter, Jeneane, on the basis of circumstantial evidence and two confessions. While the circumstantial evidence pointed toward Fulminante’s guilt, as the prosecutor conceded at trial, the confessions were critical to the state’s proof.

Fulminante first confessed to a paid FBI informant while they were both inmates in a federal prison. The informant had asked Fulminante several times about rumors that he was suspected of killing a child. Finally, the informant told Fulminante that he might receive “rough treatment” from the other inmates because of the rumor, but that the informant could offer protection--if Fulminante told him the truth. Fulminante then described how he had sexually assaulted, choked and finally shot to death his stepdaughter.

The Arizona Supreme Court determined that this confession was coerced because of the informant’s conditional promise to protect the defendant. A majority of the U.S. Supreme Court agreed.

The important part of the case is what comes next. The court decided that the conviction should not be automatically reversed; reversal should happen only if the confession was important to the case. If the mistake in using the confession was “harmless,” the conviction should stand, the majority ruled. This change in the law made no difference in Fulminante’s case; the court held that the trial error was not harmless and that he must be retried. Yet the ruling may make a significant change in the meaning of the Fifth Amendment.

The Fifth Amendment’s protection against self-incrimination bars the use of coerced confessions. The prohibition has two essential aims: to protect the fairness of trials by excluding powerful but unreliable evidence, and to protect individual rights by setting limits on government intimidation by interrogation. The classic violation of the Fifth Amendment is interrogation by torture. Not only are confessions obtained this way unreliable, but they involve a massive assault on the independence, the autonomy of the person.

As it has in other matters of criminal procedure, the court simply ignored the autonomy concern. Justice William H. Rehnquist cited the importance of truth-seeking in the criminal trial and said nothing of the Fifth Amendment’s role in regulating the power relationship between the state and the accused.

Yet the Fifth Amendment provides a clear symbolic check on government overzealousness. The familiar Miranda warning and waiver requirement, for example, has won wide acceptance because it sets clear boundaries in police/suspect relationships. Recent events in Los Angeles illustrate once again the need for vigilance in the regulation of government use of force and intimidation.

The Fifth Amendment, like the Fourth Amendment, expresses a basic distrust of official force, regardless of its good motivation or results. That is hard to remember in a case like Fulminante’s, where society’s stake in accurately determining guilt or innocence is so high. But it remains a critical part of the constitutional balance.

The court’s approach also raises fairness problems.

It takes a great deal of courage and faith in the Constitution for a court to reverse on procedural grounds the conviction of someone probably guilty of a serious offense.The harmless-error rule, by allowing judges another way to avoid reversal, makes it easier to ignore constitutional violations.

The court’s ruling assumes that appellate judges can tell, from reading the transcript of a case, whether a confession affected the jury’s deliberations--which are of course secret. Actually, appellate courts are likely to decide the question for themselves. They will ask whether they might have found the confession important--a very different question. Particularly with regard to confessions, the harmless-error rule requires a sensitivity to jury psychology that few judges display.

And harmless-error analysis necessarily depends on the particular facts of the case, making it the kind of decision that higher courts rarely overturn.

Finally, the court’s decision sends a subtle message about the Fifth Amendment. It says that basic violations of the Fifth Amendment matter--but only sometimes. By introducing this caveat, by breaking the connection between right and remedy, the court necessarily diminishes the right.

The court’s decision in Fulminante is not baseless or irrational. We all have an important stake in the state’s ability to convict the guilty. And the court still recognizes the (somewhat diminished) importance of the ban on coerced confessions. The most troubling aspect of the case may not be the court’s holding, but its approach. The court appears constitutionally naive.

Decisions about constitutional criminal procedure are in part decisions about trust in government. This decision shows that the court trusts judges to make tough calls and the state’s investigative officers and agents to respect individual autonomy.

Such faith on the part of the court is disturbing because the Constitution and the modern history of criminal justice give us good reasons for distrust of government. Isn’t that why we have constitutional rights?