The Green Bag
questioning and deprivation of sleep and food while they are under great mental strain, have brought much dis credit on legal administration in criminal cases. The public has lost confidence in legal procedure in general, because it is sometimes vitiated at the start by this extortion of testimony. The police ex amination excites the greater distrust, because it is, as a rule, conducted in secret by police agents only, the accused having neither counsel nor friend pres ent. The American public believes that the process of interrogation, called "the third degree," is a shocking abuse, and that testimony thus procured, in the absence of a judge or of counsel for the accused, should not be admissible in court. It is quite true that a con fession procured by threats is now inad missible; but the question whether or not threats were used is a question of fact which can be tried. The right view is that all "thirddegree" confessions should be thrown out, irrespective of the precise method of procurement. It is notorious that confessions extorted by either mental or bodily torture are apt to be false. The law in Japan permits such police ex aminations in the absence of judge or counsel; and although physical torture is prohibited by law, it is doubtful whether the preliminary examinations by the police are free from it. In a recent case which occurred while I was in Japan more than one hundred persons made confessions at the preliminary police examinations, under torture of one sort or another, as they alleged, all of which were utterly denied when the cases came to trial in open court. The case is still on trial on appeal. The Japanese procedure was originally copied frcm the French; but the Japanese government has not yet copied the later alterations in French police procedure.
The remedy for this evil is simple and is urgently needed. No admission or confession made by an accused person in reply to interroga tories of the police should be received as evidence. It is sometimes alleged on behalf of the police that the only prac ticable way to secure convictions is by extracting confessions; but the experi ence of England, Scotland and France, where secret examinations of accused persons by the police are no longer allowed, seems to prove that there is no real ground for this allegation. It is very doubtful whether "third-degree" methods really contribute in this coun try to the conviction of criminals. Counsel for the defense can often win a jury by describing the police methods of procuring confession. A much surer method of preventing the escape of guilty persons would be to increase the power of the trial judge, who in many states of the Union is so hampered by legislative restrictions that he cannot give the public the benefit of his knowl edge, experience and character. It is generally admitted that justice in crimi nal matters is more effectively adminis tered in the federal than in the state courts, the reason being that the ap pointed judge in the federal courts has effective powers and an independent position. APPEALS AND RETRIALS Two other causes of public dissatis faction with judicial procedure are the multiplication of appeals and the fre quency with which new trials are granted. These evils have often been described by members of the bar and teachers of law; but the public is still without accurate knowledge of them, being ignorant concerning the unneces sary multiplication of courts, the waste of time of judges on points of practice, and the confusion of judicial action