Thinking Makes It So (originally aired April 19, 2006)
A con man kidnaps a bank executive's daughter to force the executive to engage in robbery. Detective Fontana tracks down the con man and uses physical force to get him to admit where the girl is being kept.
Detective Fontana's actions effectively elicited a coerced confession in violation of the defendant's Fifth Amendment rights. The Fifth Amendment's privilege against self-incrimination specifically provides only that no person "shall be compelled in any criminal case to be a witness against himself."
Generally, the remedy for a violation for this right is the exclusion of a coerced confession as evidence at trial. However, the government could argue that the evidence should still be included if it can show that a "public emergency" justified the police misconduct (the so-called Quarles exception). The so-called "fruit of a poisonous tree" doctrine which bars evidence resulting from a constitutional violation (here, the missing girl's testimony) has not generally been applied to the Fifth Amendment, but if it was, then the prosecution could argue that the resulting evidence would have been found inevitably by another means and thus should be usable as evidence.
The Fifth Amendment concerns a defendant's trial rights and thus focuses on what can be used at a defendant's trial. There are other measures to prevent and discourage torture. The defendant may file a complaint against Detective Fontana with the New York Civilian Complaint Review Board (on-line here), which investigates allegations of police misconduct and can lead to disciplinary action, and could try suing Fontana and the police department as well.
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By Stephen Lee
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