Confessions of Guilt: From Torture to Miranda and Beyond

By George C. Thomas III; Richard A. Leo | Go to book overview

CHAPTER 2
Early Interrogation Law

As we demonstrated in chapter 1, the law of confessions reflects the institutions that identify, or create, deviance. We also surveyed what we called “brakes” that help control those suspected of crime or deviance. Perhaps the most obvious is the concern about false confessions. Another is the autonomy interest of the suspect, consisting of a dignity interest and an interest in being free to make up one’s own mind whether to self-accuse of a crime. And there is a proportionality principle that causes the State to avoid brutal methods to obtain confessions to minor crimes; it also causes judges to draw back from imposing penalties that seem to outweigh the harm a defendant is accused of committing. Most of these brakes, or controls, can be seen as far back as Roman law.


A. Ancient Law Regulating Interrogation

According to German historian Adolf Friedrich Rudroff, torture “was used from time immemorial against slaves, partly to strengthen testimony, partly to extort confessions.”1 The Roman historian Titus Livy in the massive History of Rome recounts an examination of slaves in 210 B.c. during which “they all confessed.”2 Indeed, torture was routinely used during the Roman Republic to obtain confessions, but only from slaves.3

That torture could beused only against slaves during the Republic is evidence of the autonomy control. As Hepworth and Turner note, the Western law of confessions is premised on the notion of “the self-activated rational individual.”4 Roman citizens fit that category; thus, torture would have been deemed a violation of the right to make a rational decision. A slave, by contrast, “was a thing… [that] had no rights.”5 Yet even those who had no rights, who were not considered self-activated rational individuals, would be protected by the false confession parameter that was developing in Roman law.

By the early years of the empire, judges were cautioned to observe safeguards thought to prevent false confessions. Caesar Augustus, who ruled Rome from 27

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