Front Page Titles (by Subject) CHAPTER VII.: OF CONFESSORIAL AND OTHERWISE SELF-DISSERVING EVIDENCE, EXTRACTED BY INTERROGATION. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
Return to Title Page for The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER VII.: OF CONFESSORIAL AND OTHERWISE SELF-DISSERVING EVIDENCE, EXTRACTED BY INTERROGATION. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF CONFESSORIAL AND OTHERWISE SELF-DISSERVING EVIDENCE, EXTRACTED BY INTERROGATION.
Of interrogation in general, as a means of extracting self-disserving evidence.
Interrogation has already been mentioned* as the most efficient, and (in case of doubt) the indispensable, instrument for the extraction of truth—complete truth—in favour of whichsoever side of the suit it militates.
On both sides, its property is to clear up all doubts—all doubts produced or left by other evidence—doubts which without its aid can never be cleared up. Possessing this property, it is not less favourable to innocence than adverse to delinquency. All suspected persons who are not guilty, court it; none but the guilty shrink from it.
Antecedently to the application of this test, the mind of the judge remaining in doubt as between innocence and delinquency (viz. in which of the two opposite states the mind of the defendant shall be considered as placed,) the process is directed indistinctly to the production of the one or the other of two opposite results:—in the case of non-delinquency, self-exculpative testimony; in the case of delinquency, confessorial testimony, ending in confession.
But confessorial testimony, having punishment, or evil in some other shape, for its visibly impending consequence, does not, in the ordinary course of things, come willingly, or singly, or in the first instance. The instrument being applied, some course, on the part of the proposed respondent, cannot but be taken. Instead of this most visibly dangerous course, he betakes himself (if not definitively, at any rate in the first instance) to all other possible courses; no other course presenting to view the image of punishment as following with a step so sure. But, of all these possible courses, if the proposed respondent be really delinquent, there is not one that will not (if the judge be at the same time willing and at liberty to follow the manifest dictates of justice and common sense) operate, with a degree of probative force more or less persunsive, towards conviction: because that which is visible to common sense, as being consonant to constant and universal experience, is, that there is not one of them all that a man ever betakes himself to and persists in, in case of veracity and innocence.
True self-exculpative testimony being by the supposition incapable of being delivered,—his constant resource (were it not for the inferences which, on such an occasion, every man, as is visible to him, would draw from it) would be silence. But silence being in such a case, by common sense, at the report of universal experience, certified to be tantamount to confession, though by a mode of expression as general as possible—tantamount, at any rate, to the purpose of disrepute, if not to the purpose of legal punishment,—this is (excepting confession in particular and explicit terms) his last resource.
Thus repelled from that which would otherwise be the easiest as well as safest course, his next endeavour is to tax his invention for such statements of an exculpative tendency, as, though false, shall present the fairest prospect of being taken, from first to last, for true. But, besides the difficulty, a defence of this kind is attended with constant and manifest peril; for no sooner does any statement present itself, which by its inconsistency with other statements of his own already delivered on the same occasion, or with facts understood from other sources of information to be true, is understood to be false, and believed at the same time to be wilfully false,—than another evidence of delinquency is afforded, still more probative and impressive, because more particular, than mere silence.
True self-exculpative discourse is not to be had. Silence would operate as confession. Of a course of false responsion, if understood to be false, and the falsehood wilful, the effect would be still worse than that of silence. False responsion of an exculpative tendency, in any shape that promises security against detection, not being to be found,—his next endeavour is to find, and to obtain acceptance for, such discourse as, at the same time that it affords no inculpative evidence, shall not be liable to be taxed with being false. Discourse of this description is that which, in respect of its object, is termed evasive, and in respect of its nature is either irrelevant or indistinct; for being relevant, and at the same time distinct, it could not fall to be either true or false.
If nothing of this cast be to be found, or if his employable stock of it be exhausted, he has then left but one alternative, which is either silence, as above, or confessorial evidence; which (in so far as true) it depends upon the interrogator to draw on till it terminates in confession.
But, after interrogation—which (coming from a person whose station, by office or by the occasion, is that of a superior) is, in other words, an order requiring a man to speak—silence is an act of disobedience. Confessorial discourse is the result of submission—of compliance. Of non-compliance with his will it is the property to call forth ill-will on the part of him towards whom it is manifested, especially of the man in power; of compliance, good-will. Silence, therefore, on the part of the affrighted culprit, seems to his ear to call for vengeance; confession holds out a chance for indulgence.
While devising and pursuing a plan of self-exculpative misrepresentation, the discourse held by the delinquent will naturally be of a motley cast, presenting a mixture of falsehood, evasion, and truth. Falsehood, under the apprehension of the discredit which attaches instantly upon detection, will be hazarded then, and then only, when evasion seems no longer practicable, and the response, if true, could not be otherwise than manifestly confessorial. Truth, then, will almost always form, and that in no inconsiderable proportion, a part of the delinquent’s self-exculpative tale. But such and so visible is the connexion between truth and truth—between the fact of delinquency and all the several facts that have accompanied or led to it,—that, of the admixture of truth thus unwillingly inserted, a portion more or less considerable (in one way or other, with or without his knowledge,) though designed to operate in a way opposite to confession, will operate in effect in the character of confessorial evidence.
And thus it is, that—by one and the same process, the process of interrogation (where the respondent who is suspected to be a delinquent is really so)—in spite of, and in consequence of, the endeavours used by him to impress the persuasion of his innocence,—silence or non-responsion, evasive responsion, false responsion, confessorial responsion (one or all of them, in infinitely diversifiable proportions,) will be extracted: each of them contributing to conviction; each of them evidentiary of delinquency,—operating in the common character of self-disserving, to wit, self-inculpative, or self-criminative, evidence.
In species and denomination, the infirmative considerations applicable to self-disserving evidence thus extracted by interrogation, are the same as those applicable to evidence from the same source and of the same tendency, when delivered without interrogation.
But, in respect of force, they are, in every instance, decidedly inferior. Why? Because, in every instance, the infirmative considerations are mere suppositions—suggestions of states of things neither proved nor so much as probabilized, but merely brought to view as being at the same time possible, not glaringly improbable, and not disproved, in whatsoever degree disprobabilized.
But, of the process of interrogation, by whomsoever performed (if performed with an impartial view, or, what comes to the same thing, with partial views on both sides,) it is the known object and effect, by the most efficient means, to clear up all such uncertainties.*
Difference, in point of effect, between extra-judicial and judicial interrogation.
Compared with each other, self-inculpative evidence extracted from a supposed delinquent by extra-judicial interrogation, and evidence of the like denomination extracted by judicial interrogation, have their natural points of advantage and disadvantage, the observation of which is pregnant with instruction of practical use:—
1. To extra-judicial interrogation, considered as an instrument for the extraction of truth from unwilling lips, belong naturally two disadvantages: comparative deficiency in respect of coercive power; and comparative deficiency in point of intellectual skill.
Of these disadvantages, however, neither is constant in point of existence, or uniform in degree.
The interrogator is not indeed himself the judge,—the judge by whom the decision, grounded on the evidence so extracted, is to be pronounced. But on this head (unless where, in virtue of some particular connexion, the supposed delinquent is, by sympathy or any other cause, assured of concealment on the part of his interrogator) the difference will not be very considerable; inasmuch as every question will naturally present itself as if backed by the authority of the judge.
2. In the process of interrogation, the casual interrogator will not in general possess experience, nor (so far as depends upon experience) skill, equal to what may be naturally expected on the part of the judge. But, in this respect, the father or other head of a considerably numerous family, will not in general be much behind even an official judge: and whatsoever superiority in point of acquired skill may be expected to have place on the part of the official judge, the superior interest and zeal that may no less reasonably be looked for on the part of the domestic interrogator may be considered as forming in general no inadequate compensation.
On the other hand, in the circumstance of surprise may be seen a circumstance from which the situation of the domestic interrogator will be apt to derive a considerable advantage. From the domestic inquirer may come a question, or string of questions, at a time when no thoroughly-considered plan of mendacious defence can as yet have been adjusted; whereas the interval between arrestation and judicial interrogation will afford for the purpose of mendacious invention (not to speak of mendacious suggestion in case of concert amongst co-delinquents) a quantity of time over and above whatsoever in the same individual case the delinquent could have applied to the purpose of his defence against the casual inquisitiveness of extra-judicial interrogators.
One great, and, as it should seem in general, decisive, advantage, attaches beyond dispute to the side of the judicial interrogator. It rests with him to continue the process of interrogation (that is, to keep the supposed delinquent in a state of subjection to it) for whatever length of time appears to him to be necessary and sufficient for the purpose—for the extraction of whatever mass of evidence the proposed respondent is looked upon as capable of yielding—for the extraction of it in all its plenitude.
On this occasion, there are four distinguishable objects with which self-disserving evidence, extracted by judicial vivâ voce interrogation, will require to be compared; the evidence being in all four cases supposed to issue from the same source (i. e. from the same individual,) and to be of the same tendency;—viz. 1. Evidence delivered extra-judicially, and without interrogation, by word of mouth; 2. Evidence delivered extra-judicially, and without interrogation, in a written form; for instance, in the form of a private memorandum, or of a letter, sent or not sent, 3. Evidence delivered extra-judicially, in consequence of interrogation by word of mouth; 4. Evidence delivered extra-judicially, in consequence of interrogation in a written form.
Expressed in the written form, the evidence, taken in itself, is more apt to be incomplete; and in such a way incomplete, as, in respect of partiality, to be deceptitious. Why? Because, on the occasion of writing, the writer (the supposed delinquent) has in general more time at command for the purpose of mendacious invention; nor are the workings of his invention in a situation to receive that disturbance which it is natural they should receive, from the presence of a person at whose hand hostile suspicion (or at any rate prying curiosity) and consequent interrogation, whether eventually applied or not, will naturally be apprehended.
When delivered in the form of a letter, the person to whom the statement is addressed must, for a length of time at least, take it as it comes. Delivered orally, no sooner are gaps discovered in the texture of it, than comes a question requiring them to be filled up;—no sooner ambiguity or obscurity, than the clearing of them up. Self-regarding evidence, delivered by a delinquent in the written form, will, therefore, be more likely to be deceptitious, i. e. guarded against detection, and so effectually as to produce the deception aimed at by it; viz. where deception was an object which it had in view. But in some cases it has no such object; as when the cast of it is conspiratorial, simply confidential, or jactitantial.
At the same time, such as it was delivered—delivered from the mind of the writer,—such, and without alteration, without being exposed to be misreported, it is sure to be presented to the mind of the judge: whereas, if delivered in the oral form, it will always be liable to alteration—liable to be misreported by the deposing witness, through the channel of whose lips (it being extra-judicially delivered in the first instance) it cannot but have passed.
As to interrogation in the written form (as when statements which have been extra-judicially delivered have eventually been made use of as evidence, and thereupon have assumed that responsive form of which interrogation, when submitted to, is naturally productive;)—it is a possible case, but a case not by any means likely to be frequently exemplified; rarely indeed, when compared with the form which discourse so readily assumes under the process of interrogation when performed by word of mouth. Why? Because, out of the presence of the interrogator, compliance with the command expressed by interrogation is, if irksome, refused without difficulty: evasive responsion, if responsion be resorted to, is more easy: silence, being liable to be accounted for by so many other causes besides delinquency, is resorted to with less reserve. A plan of self-exculpative mendacity is pursued with more time for the continuance of it, and with better promise of success; and, from amongst the truths which, to guard against detection, it may be necessary to intermix, a selection is made with greater facility and safety, of those which (for fear of their being found to operate with a self-disserving, a self-inculpative tendency) require, and may (it is supposed) bear, to be omitted.
Of discourse orally delivered it is moreover the nature, when the apprehended tendency of it is (as here) self-criminative, to bring with it another species of criminative circumstantial evidence (which will be brought more particularly to view in another chapter,) viz. fear, as indicated by deportment, more particularly passive deportment; and from an accompaniment thus treacherous it is a characteristic property of written discourse to be altogether free.
Meantime, howsoever (being orally delivered) the evidentiary self-criminative discourse may have been accompanied with any such symptoms, in the state in which on the extra-judicial occasion it was delivered to the percipient witness (interrogating or not interrogating,) by whom, in the character of a deposing witness, it is reported to the judge;—yet, when thus reported to the judge, it comes accompanied, not by the symptoms themselves, but only by the report so made of them: to which report it may happen to be in any degree incorrect or incomplete, or both.
Of the comparative view thus taken, what is the practical result? Not preference, followed by adoption and rejection, but conjunction. Each mode and form is marked by its peculiar advantages, counteracted by its peculiar disadvantages: both, therefore, should be called in to the assistance of justice.
Expressed originally, whether in writing or in conversation, the probability is, that the evidence in question (especially being, as it is, self-regarding, and subject to the risk of being found self-criminative) will abound with gaps, with dark passages, with broken hints. All these imperfections, the judge, and he alone, is competent to do what can be done towards remedying. In his hands alone is reposed adequate power, and whatsoever time, in his view of it, the occasion needs.
Self-inculpative discourse, when it is uttered extra-judicially (designedly or undesignedly, with or without a view to its being employed as evidence,) can never be an adequate succedaneum to judicial confession, the plenitude of which is secured by judicial examination. In the former case it is not itself the proper evidence; it is no more than indicative of the source from whence conclusive evidence may by the proper process be obtained, and of a sample of what may be expected from that source. It is not the best—the most satisfactory, evidence that the case furnishes; it shows where better, where still more satisfactory evidence, is to be had: and it may require completion and explanation (not to speak of opposition and confutation,) not only for the benefit of the party by whom it is produced, but even for the benefit of the party whose confession it is, and against whom it is produced.
But although it be thus indicative of a lot of evidence more satisfactory than itself, the use of the inferior is not always superseded by the superior evidence.
1. A case that happens not unfrequently, is this:—after a true confession more or less full, delivered extra-judicially,—when the confessionalist comes to be examined in a judicial mode, he repents, and, instead of confirming the truths he has disclosed, betakes himself to falsehood. When the extra-judicial confession was suffered to escape from his lips, the debt thus paid to truth had the confusion of mind he had been thrown into for its cause: his presence of mind regained, he endeavours to avail himself of it, and attempts to take back the lights that had transpired from him when off his guard. As one man is confronted with another, the interests of truth and justice require that, in such a state of things, a man should be confronted with himself. The extra-judicial confession may be consistent with facts established from other sources: the judicial retraction may be alike inconsistent with the extra-judicial confession and with these established facts. The extra-judicial confession may obtain credence: the judicial retractation may with reason be disbelieved.
2. Even when the two lots of information accord—when the extra-judicial confession, instead of being contradicted by a judicial retractation, is confirmed by a judicial confession—the extra-judicial confession may be not altogether without its use. The first confession giving confirmation to the second, as well as receiving confirmation from it, may serve to render more complete the satisfaction of the judge.
3. Where the judicial confession accords with the extra-judicial, the utility of it will be still more apparent, in the case where both of them happen to stand contradicted by other evidence. How should this happen? (it may be said.) The defendant has himself acknowledged the offence—acknowledged it once and again: what hope can remain to him to overthrow the effect of this double acknowledgment by inferior evidence? of the two acknowledgments, by evidence that is not a match for either?—To him, to the same man, not. But a case that may happen, and does happen not unfrequently, is—the evidence that a man gives against himself applies with equal pertinency to the case of another man; say, as in a criminal case, an accomplice.* The confessionalist acquiesces, as he cannot but acquiesce, in the consequences of his confession thus repeated and confirmed. But the second accomplice, having his separate plans of defence, having hopes where his confederate has none, denies the truth of the confession, and seeks to combat it by other evidence.
4. Lastly: Another case that may happen, and which will on another occasion† be brought to view is,—after furnishing the extra-judicial evidence, and before there has been time or opportunity for following up the indication by judicial examination, the confessionalist dies, or ceases to be forthcoming. By his death, the possibility of inflicting punishment (punishment rightly seated) ends; and therefore, so far as punishment is concerned, there the cause ends; and therefore the demand for other evidence, for judicially-extracted oral evidence, along with it. As to punishment, yes; and therefore as to causes in which punishment, and nothing but punishment, is or ought to be demanded.‡ But as to satisfaction, the demand for decision may remain, and therefore (for the purpose of a decision on that ground) the demand for evidence. While the confessionalist was alive, his extra-judicial confession was, in comparison with his judicial deposition (if subsequently taken,) but an inferior kind of evidence. The source, however, of the superior evidence being dried up by death, the inferior, the extra-judicially confessorial evidence, takes its place,—a species of evidence which, howsoever inferior to the confessorial part of the judicial evidence from the same source, is, as far as it goes, superior (as we have seen) to every other species of evidence.
Thus far as to penal cases. In cases not penal, the necessity of employing it is still more evident.
The necessity of treasuring up and employing this species of extra-judicial evidence will be equally evident, where the completion of the confession, by the judicial examination of the confessionalist, has been rendered impracticable for a period, determinable or indeterminable, but not known to be perpetual, such as absconsion or expatriation.
So much for the importance of interrogation, as applied to the extraction of self-disserving evidence from the suspected delinquent.
No supposition surely can be more unnatural than this,—viz. that, if discovery of truth, and consequent rendering of justice, had been the object, the use of an operation so necessary to the discovery, so obviously and indispensably subservient to the purposes of justice, would ever have been rejected. But, under the technical system, the interests and ends of judicature being, from first to last, opposite and hostile to the interests and ends of justice,—whatever exertion and ingenuity has been bestowed, is applied, not to the discovery of truth, but to the finding of pretences for not discovering it: not to the administering of justice, but to the finding of occasions and pretences for administering injustice in its stead.
Governed, if not by sinister reason, by blind caprice under the mask of tenderness, English lawyers, admitting self-disserving evidence when supposed to have been extrajudicially delivered or extracted, forbid it to be judicially extracted or received—extracted by the judge by whom the decision is to be formed. Receiving it in an incomplete state, they will not suffer it to be completed. Receiving it in the state of hearsay evidence, they refuse to receive it in the state of immediate unaltered evidence. Receiving it in a variety of bad shapes, they refuse to receive it in what, by their own uniform acknowledgment, is the best.*
Tenderness!—to whom? To the innocent individual, maliciously or erroneously accused? No: what it does for him is, where misrepresentations have taken place tending to his unjust conviction, to refuse him an opportunity of clearing them up.
To the guilty? No, not even to the guilty, considered in the aggregate. By the promise it gives of escape, it augments the number: the number being so great, thence comes the pretended necessity, the factitious demand, for excessive punishment:—the deficiencies in certainty must be made up in magnitude. Death is the English judge’s universal remedy: higher he cannot screw up the exertions of blind barbarity. To this point the labour of every session adds: at this a stop is made, because there is nothing beyond it.
It is the part of the same man, the same natural and implacable enemy of justice—on the one hand, to keep watch and ward in favour of the murderer, charging him not to let drop any the least hint from which justice may receive assistance, not to say anything by which his guilt may be brought to light; and, on the other hand, to be no less active in his exertions to extend the demesnes of death. To the profit of cold barbarity, he adds the praise of tenderness. The manly dictates of public utility are sacrificed to the cant of hypocritical or childish sentimentalism. The excess of the punishment becomes a sufficient warrant for not executing it. Extending the demesnes of death, he thus extends the mass of his own despotism: of that preposterous state of things by which, every year, the lives of men, by dozens and by scores, are laid at the feet of every English judge.†
[* ]Book II. Chap. IX.
[* ]Of the mode of signifying will, denoted by the word interrogation, the object is to obtain, at the hands of the person interrogated, some token, such as, in relation to the particular object on the carpet, shall serve to express and make known the state of his mind. But interrogation—interrogation in mood and figure—is not the only mode of communication, is not the only form of discourse, by which an effect of that description is capable of being accomplished.
[* ]What one man says of another in his absence is not evidence against that other, whether he be his accomplice or not. But if a criminal makes a confession, and implicates another party as an accomplice, who is present at the time, then the confession is evidence against the accomplice; because he has an opportunity of denying the truth of the statement as far as he is concerned, or of explaining it. However, in cases of conspiracy, any act done or statement made by one of the conspirators, in pursuance of their common object, is evidence against all the conspirators, whether present or not. 2 Russ. 570. 1. Phil. Evid. 76. 1 East. P.C. c. 2, § 37. 2 Stark. 401. R. v. Stone, 6 T. R. 527. 24 Howell’s St. Tr. 437, 451.—Ed.
[† ]See Book VI. Makeshift, Chapters on Casually-written Evidence and Hearsay Evidence.
[‡ ]That is to say, in cases which afford no individual specially injured.
[* ]See Book IX. Exclusion.
[† ]See Vol. VI. p. 382, note 14.