Cite as: 538 U. S. 760 (2003)
Opinion of Kennedy, J.
Id., at 285. The Court interpreted the Self-Incrimination Clause as limited to "the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter." Ibid. The decision in Brown antedated the incorporation of the Clause and the ensuing understanding of its fundamental role in our legal system.
The views expressed by Justice Souter and Justice Thomas also have some academic support. Professor McNaughton, in his revision of Professor Wigmore's treatise on the law of evidence, recites various rationales for the Self-Incrimination Clause, declaring all of them insufficient. 8 J. Wigmore, Evidence § 2251 (J. McNaughton rev. ed. 1961). The 11th justification he discusses is the prevention of torture, id., at 315, a practice Professor McNaughton simply assures us will not be revived, ibid.
This is not convincing. The Constitution is based upon the theory that when past abuses are forbidden the resulting right has present meaning. A police officer's interrogation is different in a formal sense from interrogation ordered by an official inquest, but the close relation between the two ought not to be so quickly discounted. Even if some think the abuses of the Star Chamber cannot revive, the specter of Sheriff Screws, see Screws v. United States, 325 U. S. 91 (1945), or of the deputies who beat the confessions out of the defendants in Brown v. Mississippi, is not so easily banished. See Oregon v. Elstad, 470 U. S. 298, 312, n. 3 (1985); id., at 371-372, n. 19 (Stevens, J., dissenting).
III
In my view the Self-Incrimination Clause is applicable at the time and place police use compulsion to extract a statement from a suspect. The Clause forbids that conduct. A majority of the Court has now concluded otherwise, but that should not end this case. It simply implicates the larger definition of liberty under the Due Process Clause of the
795
Page: Index Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 NextLast modified: October 4, 2007