An Essay on Crimes and Punishments/Chapter XXXVIII
CHAPTER XXXVIII.
Of Suggestive Interrogations.
THE laws forbid suggestive interrogations; that is, according to the civilians, questions which, with regard to the circumstances of the crime, are special when they should be general; or, in other words, those questions which, having an immediate reference to the crime, suggest to the criminal an immediate answer. Interrogations, according to the law, ought to lead to the fact indirectly and obliquely, but never directly or immediately. The intent of this injunction is, either that they should not suggest to the accused an immediate answer that might acquit him, or that they think it contrary to nature that a man should accuse himself. But whatever be the motive, the laws have fallen into a palpable contradiction, in condemning suggestive interrogations, whilst they authorise torture. Can there be an interrogation more suggestive than pain? Torture will suggest to a robust villain an obstinate silence, that he may exchange a greater punishment for a less; and to a feeble man confession, to relieve him from the present pain, which affects him more than the apprehension of the future. If a special interrogation be contrary to the right of nature, as it obliges a man to accuse himself, torture will certainly do it more effectually. But men are influenced more by the names than the nature of things. He, who obstinately refuses to answer the interrogatories, deserves a punishment, which should be fixed by the laws, and that of the severest kind; that criminals should not, by their silence, evade the example which they owe the public. But this punishment is not necessary when the guilt of the criminal is indisputable, because in that case interrogation is useless, as is likewise his confession, when there are, without it, proofs sufficient. This last case is most common, for experience shews, that in the greatest number of criminal prosecutions, the culprit pleads not guilty.