38 - Leading interrogations, depositions

Summary

Our laws proscribe the use of leading questions in a trial, that is questioning which, according to the learned, asks about the specifics, when it should ask about the general features of the circumstances of a crime: questioning, in other words, which, being closely connected to the crime, leads the accused to give an immediate reply. According to theorists of the criminal law, questioning should, so to speak, spiral in on the facts and should never approach them directly. The grounds for this procedure are either so as not to lead an accused to implicate himself or perhaps because it seems to be unnatural that a suspect should accuse himself point blank.

Whichever of these two explanations is correct, there is a remarkable inconsistency in the laws between this convention and their sanctioning of torture; for what sort of interrogation could be more leading than pain? Examples of the first arise with torture, because the pain will lead the sturdy man to keep an obstinate silence and so exchange a heavier pain for a lighter; and it will lead the weak man to confess in order to free himself from the present pain which is so much more effective at that moment than future pain. The same goes for examples of the second kind, because if a specific question makes the guilty man confess against the rights of nature, agony will make him do so all the more easily.