Justice O'Connor's Pragmatic View of Coerced Self-Incrimination
January 1991
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Justice O'Connor's Pragmatic View Of Coerced Self-Incrimination
by
GEORGE C. THOMAS III
Almost no one acknowledges it, but the Self incrimination Clause is empty of meaning. By that I mean that the clause generates no under standing of how it should operate beyond the very narrow understanding derived from its historical origins (and thus from outside the language of the clause itself). The Self-incrimination Clause can not generate meaning because its central con cept-<oercfon-has no meaning apart from the consensus that already exists in a particular soci ety at a particular time about what coercion means.1 Like obscenity, we know compulsion when we see it, but we are utterly unable to define it.
The Amendment provides that "No person
... shall be compelled in any criminal case to be a
the right words would unveil the meaning of compulsion (coercion)3 in the context of police in terrogation.4 Justice O'Connor, on the other hand, appears to endorse a pragmatic solution to this puzzle. Someone must make what amounts to a legislative decision about when police con duct coerces a resulting confession. If the legisla ture fails in this task, it falls to the courts. While courts may be institutionally less competent than a legislature in making this judgment, courts are faced on a daily basis with cases raising the inter rogation coercion issue. Some definition must be attempted.
,
The only conceptually defensible definition of coercion comes from the philosophers-the