Beyond Torture: The Nemo Tenetur Principle in Borderline Cases

In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when he was under the effect of a drug that worked as a truth serum. Lastly, in the case of the unnecessary threat, the police threatened with physically harming the suspect if he refused to confess. The suspect, however, indicated in a judicial hearing that the threat did not influence in any way his decision to confess. In order to provide solutions for these three borderline cases, I argue that the nemo tenetur principle should be understood as a safeguard against the use of unacceptable methods of police interrogation. The trustworthiness or voluntariness of the statement may be important in other contexts, but they should not definitively determine the admissibility of a confession pursuant to the nemo tenetur principle. Furthermore, taking a cue from Stuart Green’s writings on lying and cheating, I develop a novel framework that will assist in the identification of improper methods of interrogation that should be considered at odds with the rights that are guaranteed pursuant to the nemo tenetur principle. The techniques that should be banned in accordance with this theoretical framework include those that involve the suspect's exploitation by the police, the use of physical or psychological coercion against his person, the use of a certain kind of deception, or the transgression of a mutually agreed upon rule with the purpose of obtaining an undue advantage over the suspect. After developing this framework, I end by concluding that the statement obtained in the case of the false confession was not secured in a manner incompatible with the suspect's constitutional rights. Despite the questionable trustworthiness of the statement, it cannot be asserted that the police obtained it by employing inappropriate interrogation techniques. I further argue that the confession secured in the case of the truth serum was not obtained in violation of the right against self-incrimination either. Considering that the police had no reason to know that the suspect was under the influence of a drug that reduced his inhibitions, it cannot be argued that they used unacceptable methods of interrogation to obtain the confession. Finally, I contend that the confession secured in the case of the unnecessary threat was obtained in a manner incompatible with the nemo tenetur principle. Despite the fact that the suspect's statement in this case was entirely voluntary and highly trustworthy, the interrogation techniques used by the police to obtain the confession were repugnant. This alone should be enough to justify not admitting the confession into evidence. The difficulty of explaining this conclusion by appealing to the confession's voluntariness or trustworthiness counts as a powerful reason in favor of understanding the nemo tenetur principle as a safeguard against the use of inappropriate methods of interrogation rather than as a mechanism for securing the reliability or voluntariness of confessions.