Tuesday, April 10, 2012

Confession Under Torture: The Visigothic Solution

Quite a lot of legal systems have used torture to try to force defendants and/or witnesses to tell the truth. Moral problems aside, the obvious problem is that an innocent defendant may confess, or a witness give the testimony he thinks the interrogator wants, to avoid the torture.

Obvious not only to us but to them. The legal literature of Imperial China, where torture of both witnesses and defendants was legal, contains accounts of cases where a clever official figured out that a confession under torture was bogus and successfully identified the real criminal.

Much of what we know about the Athenian legal system comes from orations written by professional orators to be spoken by plaintiffs or defendants. They include two orations, written by the same orator for different cases, one of which argues that testimony under torture (of slaves) is entirely reliable, one of which gives the obvious argument for why it is not—in each case, of course, supporting his client's position.

I recently came across an ingenious, if imperfect, solution to the problem in what is apparently the oldest surviving Germanic law code—the Visigothic Forum Judicum. Alaric accuses Beremud of murder. There is not enough evidence to convict Beremud, so he is tortured to make him confess. Under the code:
 “The judge shall take the precaution to compel the accuser to specifically describe the alleged offence, in writing; and after he has done so, and presented it privately to the judge, the torture shall proceed; and if the confession of him who is subjected to the torture should correspond with the terms of the accusation, his guilt shall be considered to be established. But if the accusation should allege one thing, and the confession of the person tortured the opposite, the accuser must undergo the penalty hereinbefore provided; because persons often accuse themselves of crime while being tortured.
If Beremud is innocent, he won't know the details of the offense—where and when the victim was killed, with what weapon, what wounds were inflicted. However much he wants to stop the pain, he can't confess what he does not know. This assumes, of course, that an innocent defendant will not know the details of the crime. The code dealt with that problem:
But if the accuser, before he has secretly given the written accusation to the judge as aforesaid, should, either in his own proper person, or by anyone else, inform the party of what he is accused, then it shall not be lawful for the judge to subject the latter to torture, because the alleged offence has become publicly known.”
There is at least one  problem with this solution to the problem of false confessions. A guilty defendant, knowing the law, may confess under torture and deliberately get the details wrong. My conjecture is that that problem was dealt with by having the interrogator  keep up the torture until either the defendant confessed with the right details or the interrogator was convinced that he could not. I suspect that most of us, having had the good fortune not to have been subjected to torture, overestimate how easy is to hold out when saying the right words will end the present pain.

It may occur to some readers that a variant of the Visigothic solution survives in modern practice. Police officers are not supposed to torture defendants, but they are allowed to interrogate them, and interrogation sometimes leads to confessions—which may make one suspect that it comes closer to torture than it is supposed to. One way of checking whether the confession is for real is to see whether it contains details that an innocent defendant would not know.

Of course, this depends on the honesty of the officers doing the interrogation—they can, and for all I know sometimes do, subvert the process by feeding the defendant information that they have and he, if innocent, does not.


P.S. A talk I just heard on the problem of jailhouse snitches points out a different modern version of the problem—the "confession" by a defendant that may have been invented by the person it was supposedly confessed to, a fellow criminal eager to testify in exchange for lenient treatment in his own case. Here again, one test of truth is whether the confession contains details that the real criminal would know and an innocent defendant, or the fellow criminal who claims to have heard the confession, would not. Here again, the problem is that the snitch may have been fed that information by the police or prosecution, or obtained it himself in some other way.

One further problem, in that case, is that the snitch may be, in some cases turned out to have been, the real criminal, eager to convict someone else for his crime. And well informed about the details.

Wanted: A Better Search String

I routinely use Google to look for people talking about me, in part out of curiosity, in part because, like other people, I like to feel important, and in part because they may be saying things to which I want to reply. 

In the old days, it was pretty easy—most of the hits were people actually saying something about me. As the Internet has grown, the search has become more complicated, both because there are more other David Friedmans online—including another law professor who blogs and an economic journalist—and because a lot of the hits I get are simply web pages that have a link to this blog.

I expect some of my readers know more than I do about the construction of search strings. Ideally, I want one that will not produce a hit for a page whose only mention of my name is a link to this blog. I would also like one that will not return multiple hits for the same reference appearing in multiple places, something that also often happens. Is there a way of doing that? Alternatively, is there a better search engine for the purpose than Google?

Truth, Falsity, and Jobless Numbers

I recently came across a web page with the following claim:
Given the difficulty of estimating economic data it is common practice for government agencies to announce a preliminary number subject to later revision. Under the law of averages, estimates should balance out between being higher or lower than later revisions. Amazingly, though, the Obama Department of Labor’s preliminary estimates of new jobless claims have been lower than later revisions in 56 of the last 57 weeks.  
The claim was followed by what purported to be a quote from Labor Secretary Hilda Solis. 
"We feel it is better to err on the side of optimism,” she said. “The preliminary estimate is widely reported. The subsequent revisions are rarely noticed. By adding a bit of sheen to the preliminary estimate we feel we are helping to boost morale. We believe that good morale is an important building block for positive change.”“Making the economy look better will make people feel better,” Solis went on. “If people feel better they are more likely to support the policies of the Administration, which we feel is crucial if we are to be given the opportunity to continue on the path laid out by the President for another four years."
My immediate reaction was suspicion—the quote sounded too much like what a critic of the President would imagine his labor secretary saying and quite unlike what an administration official would actually say. I put a comment on the web page to that effect, adding that I didn't have an opinion on whether the initial fact was true.

Further investigation found the quote only on pages hostile to the administration, and no source other than another such page. On the other hand, the fact, initial underestimates for 56 of the past 57 weeks, is from the Wall Street Journal and so presumably true.

I conclude that the labor department has indeed been deliberately misrepresenting the evidence—erring in the same direction 56 times out of 57 is not something that has any significant probability of happening by chance. The obvious explanation is  the one given in the purported quote. But I am quite confident that the labor secretary didn't actually say what the quote asserts she said, at least not in public.


P.S. A commenter points out that the "quote" from the labor secretary actually originated as part of a longer piece, obviously intended as satire.

Pretty good satire, too.