One of the most sacred rights guaranteed under the law is that of not being compelled to give evidence against ourselves or to testify to anything which might degrade or incriminate us. Now, this is all very fine for the chap who has his lawyer at his elbow or has had some similar previous experience. He may wisely shut up like a clam and set at defiance the tortures of the third degree. But how about the poor fellow arrested on suspicion of having committed a murder, who has never heard of the legal provision in question, or, if he has, is cajoled or threatened into "answering one or two questions"? Few police officers take the trouble to warn those whom they arrest that what they say may be used against them. What is the use? Of course, when they testify later at the trial they inevitably begin their testimony with the stereotyped phrase, "I first warned the defendant that anything which he said might be used against him." If they did warn him they probably whispered it or mumbled it so that he didn't hear what they said, or, in any event, whether they said it or not, half a dozen of them probably took him into a back room and, having set him with his back against the wall, threatened and swore at him until he told them what he knew, or thought he knew, and perhaps confessed his crime. When the case comes to trial the police give the impression that the accused quietly summoned them to his cell to make a voluntary statement. The defendant denies this, of course, but the evidence goes in and the harm has been done. No doubt the methods of the inquisition are in vogue the world over under similar conditions. Everybody knows that a statement by the accused immediately upon his arrest is usually the most important evidence that can be secured in any case. It is a police officer's duty to secure one if he can do so by legitimate means. It is his custom to secure one by any means in his power. As his oath, that such a statement was voluntary, makes it ipso facto admissible as evidence, the statutes providing that a defendant cannot be compelled to give evidence against himself are practically nullified.
In the more important cases the accused is usually put through some sort of an inquisitorial process by the captain at the station-house. If he is not very successful at getting anything out of the prisoner the latter is turned over to the sergeant and a couple of officers who can use methods of a more urgent character. If the prisoner is arrested by headquarters detectives, various efficient devices to compel him to "give up what he knows" may be usedsuch as depriving him of food and sleep, placing him in a cell with a "stool pigeon" who will try to worm a confession out of him, and the usual moral suasion of a heart-to-heart talk in the back room with the inspector.
This is the darker side of the picture of practical government. It is needless to say that the police do not always suggest the various safeguards and privileges which the law accords to defendants thus arrested, but the writer is free to confess that, save in exceptional cases, he believes the rigors of the so-called third degree to be greatly exaggerated. Frequently in dealing with rough men rough methods are used, but considering the multitude of offenders, and the thousands of police officers, none of whom have been trained in a school of gentleness, it is surprising that severer treatment is not generally met with on the part of those who run afoul of the criminal law. The ordinary "cop" tries to do his duty as effectively as he can. With the average citizen gruffness and roughness go a long way in the assertion of authority. In the task of policing a big city, the rights of the individual must indubitably suffer to a certain extent if the rights of the multitude are to be properly protected. We can make too much of small injustices and petty incivilities. Police business is not gentle business. The officers are trying to prevent you and me from being knocked on the head some dark night or from being chloroformed in our beds. Ten thousand men are trying to do a thirty-thousand-man job. The struggle to keep the peace and put down crime is a hard one anywhere. It requires a strong arm that cannot show too punctilious a regard for theoretical rights when prompt decisions have to be made and equally prompt action taken. The thieves and gun men have got to be driven out. Suspicious characters have got to be locked up. Somehow or other a record must be kept of professional criminals and persons likely to be active in law-breaking. These are necessities in every civilized country. They are necessities here. Society employs the same methods of self-protection the world over. No one presumes a person charged with crime to be innocent, either in Delhi, Pekin, Moscow, or New York. Under proper circumstances we believe him guilty. When he comes to be tried the jury consider the evidence, and if they are reasonably sure he is guilty they convict him. The doctrine of reasonable doubt is almost as much of a fiction as that of the presumption of innocence. From the time a man is arrested until arraignment he is quizzed with a view to inducing him to admit his offence or give some evidence that may help convict him. Logically, why should not a person charged with a crime be obliged to give what explanation he can of the affair? Why should he have the privilege of silence? Doesn't he owe a duty to the public the same as any other witness? If he is innocent he has nothing to fear; if he is guiltyaway with him! The French have no false ideas about such things and at the same time they have a high regard for liberty. We merely cheat ourselves into thinking that our liberty is something different from French liberty because we have a lot of laws upon our statute books that are there only to be disregarded and would have to be repealed instantly if enforced.
Take, for instance, the celebrated provision of the penal laws that the failure of an accused to testify in his own behalf shall not be taken against him. Such a doctrine flies in the face of human nature. If a man sits silent when witnesses under oath accuse him of a crime it is an inevitable inference that he has nothing to saythat no explanation of his would explain. The records show that the vast majority of accused persons who do not avail themselves of the opportunity to testify are convicted. Thus, the law which permits a defendant to testify in reality compels him to testify, and a much-invoked safeguard of liberty turns out to be a privilege in name only. In France or America alike a man accused of crime sooner or later has to tell what he knowsor take his medicine. It makes little difference whether he does so under the legalized interrogation of a "juge d'instruction" in Paris or under the quasi-voluntary examination of an assistant district attorney or police inspector in New York. It is six of one and half a dozen of the other if at his trial in France he remains mute under examination or in America refrains from availing himself of the privilege of testifying in his own behalf.
Thus, we are reluctantly forced to the conclusion that all human institutions have their limitations, and that, however theoretically perfect a government of laws may be, it must be administered by men whose chief regard will not be the idealization of a theory of liberty so much as an immediate solution of some concrete problem.
Not that the matter, after all, is particularly important to most of us, but laws which exist only to be broken create a disrespect and disregard for law which may ultimately be dangerous. It would be perfectly simple for the legislature to say that a citizen might be arrested under circumstances tending to create a reasonable suspicion, even if he had not committed a crime, and it would be quite easy to pass a statute providing that the commissioner of police might "mug" and measure all criminals immediately after conviction. As it is, the prison authorities won't let him, so he has to do it while he has the opportunity.