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| 4 ashcraft et al. vs. State of Tennessee. individual susceptibility to fear. But men are so constituted that many will risk the postponed consequences of yielding to a de- mand for a confession in order to be rid of present or imminent physical suffering. Actual or threatened violence have no place in eliciting truth and it is fair to assume that no officer of the law will resort to cruelty if truth is what he is seeking. We need not be too exacting about proof of the effects of such violence on the individual involved, for their effect on the human personality is invariably and seriously demoralizing. When, however, we consider a confession obtained by question- ing, even if persistent and prolonged, we are in a different field. Interrogation per se is not, while violence per se is, an outlaw. Questioning is an indispensable instrumentality of justice. It may be abused, of course, as crossexamination in court may be abused, but the principles by which we may adjudge when it passes constitutional limits are quite different from those that condemn police brutality, and are far more difficult to apply. And they cal] for a more responsible and cautious exercise of our office. For we may err on the side of hostility to violence without doing injury to legitimate prosecution of erime; we cannot read an un- discriminating hostility to mere interrogation into the Constitu- tion without unduly fettering the States in protecting society from the criminal. It probably is the normal instinct to deny and conceal any shameful or guilty act. Even a ‘‘voluntary confession’? is not likely to be the product of the same motives with which one may volunteer information that does not incriminate or concern him. The term ‘‘voluntary”’ confession does not mean voluntary in the sense of a confession to a priest merely to rid one’s soul of a sense of guilt. “Voluntary confessions” in criminal law are the product of calculations of a different order, and usually proceed from a belief that further denial is useless and perhaps prejudicial. To speak of any confessions of crime made after arrest as being ‘‘vol- untary’’ or ‘funcoerced’’ is somewhat inaccurate, although tradi- tional. . A contession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser. The Court bases its decision on the premise that custody and examination of a prisoner for thirty-six hours is “inherently coercive’? Of course it is. And so is custody and examination Ashcraft et al. vs. State of Tennessee. 5 for one hour. Arrest itself is inherently coercive, and so is deten- tion. When not justified, infliction of such indignities upon the persou is actionable as a turt. Of course such acts put pressure upon the prisoner to answer questions, to answer them truthfully, and to confess if guilty. ; Gut does the Constitution prohibit use of all confessions made after arrest because questioning, while one is deprived of freedom, is ‘‘inherently coercive’’?? The Court does not quite say so, but it is moving far and fast in that direction. The step it now takes is to hold this confession inadmissible because of the time taken in petting it. The duration and intensity of an examination or inquisition al- ways have been regarded as one of the relevant and important von- siderations in estimating its effect on the will of the individual involved. Thirty-six hours is a long stretch of questioning. That the inquiry was prolonged and persistent is a factor that in any calculation of its effect on Asheraft would count heavily against the confession. But some men would withstand for days pressures that would destroy the will of another in hours. Always hereto- fore the ultimate question has been whether the confessor was in possession of his own will and self-control at the time of eonfes- sion. For its bearing on this question the Court always has con- sidered the confessor’s strength or Weakness, whether he was edu- eated or illiterate, intelligent or moronic, well or ill, Negro or white, But the Court refuses in this ease to be guided by this test. It rejects the finding of the Tennessee courts and says it must make an ‘‘independent examination” of the circumstances, Then it says that it will not ‘resolve any of the disputed questions of fact’’ relating to the circumstances of the confession. Instead of finding as a fact that Asheraft’s freedom of will was impaired, it substi- tutes the doctrine that the situation was ‘inherently eoercive.”’ It thus reaches on a part of the evidence in the case a conclusion which I shall demoustrate it could not properly reach on ali the evidence. And it refuses to resolve the conflicts in the other evi- dence to determine whether it rebuts the presumption thus reached that the confession is a coerced one. if the constitutional admissibility of a confession is no Jonger to be measured by the mental state of the individual confessor but by a general doctrine dependent on the clock, it should be capable of statement in definite terms, Jf thirty-six hours is more