Consitutio Criminalis Carolina: Your Rights in a Torture Chamber

Time travel.

Time. Image from Pixabay.

The dangers of time travel

You have to admit you’ve at least thought about it before. What would it be like to fly back in time with a time machine?

What would you want to see? The dinosaurs? The life of Jesus Christ? A historical event you’ve been researching and have lingering questions about?

No matter which trip you select, it would be fraught with danger. The dinosaurs might snack on you. You could get caught in a war. If you plan to visit Renaissance Europe and walk around in your jeans and T-shirt, snapping pictures with your cell phone, you can plan on getting arrested. And in case you get marched into the torture chamber, you probably have no idea what your rights would be.

So just in case you find a time machine in grandpa’s attic and contemplate a trip back a few centuries in time to Europe, you’ll want some advice about the legal system – and your legal rights in the torture chamber.

I’m here to help you.

Time machine.

Stylized steampunk metal collage of time counting device. (c) donatas1205, via Shutterstock.com.

Judicial torture

First, some basic concepts.

Judicial torture – that means torture as a method of collecting evidence and not as a method of punishment – grew out of the Greek and Roman legal systems. By 1252, Pope Innocent IV approved its use in Roman-canon law. That meant it could be used in church procedures (think Inquisition).

When you set the dials on your time machine, your best country to visit, from a judicial perspective at least, would be England. Of all the European countries, England did not adopt Roman-canon law. Instead, it used a jury. Although the English juries evolved over time from investigating bodies to the modern juries we know today, they avoided the judicial torture of continental Europe. In all probability, the members of your English jury would figure out how to turn on your cell phone and get the fright of their lives. But they couldn’t put you on the rack to find out more about it.

As more modern legal systems began to replace the trial by ordeal in continental Europe, judicial torture found acceptance. In fact, people may have found torture not very different – or even a step up from – the medieval ordeals. Trial by ordeal was an ancient religious-judicial procedure to let God decide the case. It meant subjecting the suspect to a dangerous event, e.g. submersion in water. The court interpreted the suspect’s survival as God’s intervention to prove their innocence. Roman-canon law, then, represented an improvement. It increased your chances of surviving a trial.

Torture chamber with rack.

Torture chamber with rack. (c) Ozgur Guvenc, via Shutterstock.com.

Constitutio Criminalis Carolina

Now set the location dial on your time machine to the Holy Roman Empire and the year to 1532. That’s when Emperor Charles V enacted the Constitutio Criminalis Carolina, landmark legislation for criminal law. How is it that this statute, with an awful reputation so often associated with witch trials, actually advanced individual rights?

The Constitutio Criminalis Carolina incorporated many facets of Roman-canon law, but went ever further in balancing the state’s need for an investigation against individual rights. For the first time, a suspect in a criminal investigation had at least some rights against the excesses of the judicial system. The Constitutio Criminalis Carolina also contained some seemingly modern insights – it was the first law to distinguish between first and second-degree murder.

One small stroke from Charles’s pen, one giant leap for individual rights.

Constitutio Criminalis Carolina, front page.

Constitutio Criminalis Carolina. Cover page to a 1577 edition. Imprint: Frankfurt am Main, Johannem Schmidt. Verlegung Sigmund Feyerabends, 1577
By amtliches Werk (Scan from the original work) [Public domain], via Wikimedia Commons

Your rights under the Constitutio Criminalis Carolina

So what would have happened if you started walking around the Holy Roman Empire, snapping pictures, and got arrested? Here’s a small litany of your rights.

No torture without probable cause.

There had to be sufficient suspicion against you before the state could torture you for evidence. A “half-proof” was usually required. That meant half the evidence required to convict you. For example, the Constitutio Criminalis Carolina required two eyewitnesses or an eyewitness and a confession as full proof, so one eyewitness who claimed you committed the crime counted as a half proof and counted as probable cause for judicial torture.

No leading questions!

No leading questions! (c) Everett Collection, via Shutterstock.com.

No leading questions.

Leading questions in the torture chamber can lead to false confessions. Charles V recognized that as early as 1532. So the Constitution Criminalis Carolina banned leading questions. An interrogator could ask what kind of weapon was used in a murder, but not if it was a knife. He could ask where the body was hidden, not if it had been dumped in the local mill pond. And he could ask what your cell phone is supposed to do, but not if it’s an instrument of witchcraft.

The interrogator tried to elicit information only the perpetrator could know – a technique used today in modern law enforcement to weed out false confessions – and leading questions only got in the way.

Of course, it was difficult to enforce the rule. But many in many cases, the court gave the interrogator written questions ahead of time. And since the Carolina also required witnesses to be present in the torture chamber, it might have been more difficult to get around the prohibition against leading questions than many assume.

Corroboration of a confession.

Even if you did confess, the court couldn’t use that against you without corroboration. Pain might lead a witness to say anything. So if you confessed to something specific only the perpetrator could know, let’s say dumping a body in the local mill pond, the court would require the investigator to check it out.

That’s exactly what happened in a murder-robbery case in Germany’s Rhine Valley in the 18th century. When an accessory to the crime reported that the principals dumped the body in a pond, the investigators were required to dredge it. They couldn’t find the body. Normally, then, there wouldn’t have been enough evidence to convict the accessory. In this case, the court did convict the accessory but based on other evidence.

Compensation if tortured illegally.

Here’s a good one. If you could prove you were examined under torture in violation of the law, you were entitled to compensation. Section 20 allowed you to sue the officials who tortured you illegally. Section 20 also eliminated any defense on the officials’ part based on your having waived your rights.

Safe time traveling

Of course, I hope you’re never subjected to torture and that you enjoy your time travels without any legal entanglements. Despite its advances in individual rights, the Constitutio Criminalis Carolina remains abhorrent for its use of torture. Thankfully, Europe abolished torture by the beginning of the 19th century.

The assassination in my book offers some interesting time traveling in this respect. The Kingdom of Württemberg, where the murder took place, abolished torture in 1809. The murder was in 1835. But Württemberg didn’t get around to abolishing the Constitutio Criminalis Carolina until 1843! That means the assassination in my book was one of the last great crimes investigated under the centuries-old law. And it also means that the investigator had to try to prove the case under the old evidentiary system of proof requiring two witnesses or one witness and a confession. Württemberg didn’t recognize circumstantial evidence until 1839 when it adopted a new criminal code.

No wonder, then, that the solution to this case came from America!

You can pick up my book, Death of an Assassin, and enjoy some safe time traveling. And I promise the dinosaurs won’t eat you.

Prehistoric times. Image from Pixabay.

Literature on point:

Clemens-Peter Bösken, Das Ende der grossen rheinischen Räuber- und mörderbande: Der Düsseldorfer Sicehenprozess von 1712 (Erfurt: Sutton Verlag, 2011).

Constitutio Criminalis Carolina (partial translation)

John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Harvard Univ. Press, 1974).

John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Univ. of Chicago Press, 1977).

Wolfgang Schild, “ ‘Von peinlicher Frag’: Die Folter als rechtliches Beweisverfahren,” Schriftreihe des mittelalterlichen Krimminalmusuems Rothenburg o.d.T., Nr. 4 (1999).

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Dorothy Kilgallen: Crime Reporter as a Murder Victim?

Mark Shaw's book on the mysterious death of Dorothy Kilgallen.

Mark Shaw’s book on the mysterious death of Dorothy Kilgallen.

The night before she died, Dorothy Kilgallen participated in the television show “What’s My Line” and correctly guessed the contestant’s occupation. The young woman sold dynamite.

Kilgallen, a crack investigative and crime reporter, was sitting on a stack of dynamite herself – her research on the JFK assassination. Before the new day broke, it cost Kilgallen her life. That’s what Mark Shaw thinks. He recently published a new book, The Reporter Who Knew Too Much: The Mysterious Death of What’s My Line TV Star and Media Icon Dorothy Kilgallen. Based on several years of research, the book offers new evidence that’s never been revealed before.

Finally, an investigation – 51 years later

Did DorothyKilgallen’s knowledge of the JFK assassination lead to her murder? Shaw’s book has convinced the Manhattan DA’s Office to open an investigation into Kilgallen’s death – 51 years later!

Mark Shaw joins us today to tell us why.

A former criminal defense attorney and legal analyst for CNN, ESPN, and USA Today for the Mike Tyson, O.J. Simpson and Kobe Bryant cases, Mark Shaw is an investigative reporter and the author of 20+ books whose latest is The Reporter Who Knew Too Much.  You can learn more about the book by clicking on the book title or watching Mark Shaw’s book-signing presentation.

Welcome, Mark Shaw!


Most people know Dorothy Kilgallen as a “What‘s My Line” panelist, but she was equally well known as a crack investigative and crime reporter. What famous crimes did she cover?

Dorothy Kilgallen at the Sheppard trial.

18 Nov 1954, Cleveland, Ohio, USA — Original caption: Newsman gather around Wm. J. Corrigan at the courthouse today to discuss the Sheppard trial. Dorothy Kilgallen (L) seems to be doing most of the talking. Woman in the center is unidentified. — Image by © Bettmann/CORBIS; courtesy of Mark Shaw.

In addition to her What’s My Line? fame, Dorothy covered many of the most famous criminal cases of the 29th century, the Lindbergh baby kidnapping case, the Profumo Scandal in England, the Dr. Sam Sheppard murder trial, the Lenny Bruce 1st Amendment case and most importantly, the Jack Ruby trial.

Her columns won her a few significant enemies….

Dorothy was a woman of the truth and her New York Journal American column, syndicated to more than 200 newspapers across America, could make or break the career of a celebrity and this led to her having enemies that included most prominently singer Frank Sinatra. When she ridiculed him for the “bimbos” and “has-been” girlfriends he paraded around with, he responded by calling her “the chinless wonder,” making fun of her appearance. He also sent a fake tombstone to her office.

How influential was she as a reporter?

There is not a media personality today who can match the journalistic career that Dorothy enjoyed for nearly three decades. Besides being nominated for a Pulitzer Prize, she was arguably the most trusted reporter in the world which permitted her the best sources for her stories. This led to an astounding number of “scoops,” including being the first reporter who expose JFK’s affair with Marilyn Monroe and later, being the only reporter to interview Jack Ruby at his trial and then expose his Warren Commission testimony before it was to be released. During her era, people got most of their news from newspapers and she was, as the New York Post proclaimed, “The most powerful female voice in America.”

What stance did Dorothy Kilgallen take on the JFK assassination? And how might that have been connected with her death?

Dorothy launched an 18-month investigation of the JFK and Oswald assassinations and without doubt, it is the most extensive investigation of those events in history. She was there when it all happened and at the Ruby trial so she is a true eyewitness to history. In the fall of 1965, she was about to include her belief that the assassinations were simply “Mafia hits” start to finish based on motive, that New Orleans Don Carlos Marcello had masterminded the assassinations based on revenge against the Kennedy’s. As November arrived, she was getting ready to complete a book for Random House exposing the truth and those threatened by it could not let her live.

John F. Kennedy, whose assassination Dorothy Kilgallen was investigating.

John F. Kennedy. By White House Press Office (WHPO) [Public domain], via Wikimedia Commons.

Do you think she was murdered?

The official cause of death, accidental due to a combination of an overdose of barbiturates and alcohol is flawed based on the primary evidence presented in the book. She certainly did not commit suicide and that leaves murder as the logical choice as to how she died. This said, since this book is true crime murder mystery, readers should make up their own minds based on the book content and watching the more than 50 videotaped interviews with those who knew her best at www.thedorothykilgallenstory.org.

Did her JFK assassination research file disappear with her death?

Yes, this is one of the many mysteries connected to Dorothy’s death that readers around the world have debated through the more than 175 Amazon reviews and emails I have received from both the US and countries such as Japan, Australia, and even Iceland. I’m pleased to say the book is in its 6th printing with a film in development in LA that will focus on Dorothy’s life and times, and her death.

Wow! Congratulations. I want to see the film when it comes out.

Mark Shaw.

Mark Shaw, with permission.

Was the file ever found again?

No, but I believe it still may be out there somewhere and recently fresh evidence has been forwarded to me by a person close to Dorothy’s family as to the possible whereabouts of the file. We are following up on that information.

How would Kilgallen’s murderer have known where to look for the file? Didn’t she die on a different floor of the house than the floor where she kept her file?

Dorothy never made a secret of her intention to expose the truth about the JFK and Oswald assassinations and this contributed to her death. It was common knowledge that she always kept the file close to her and shared it with no one but as November 1965 neared, she told her hairdresser Marc Sinclaire that she was “afraid for her life and for her family,” and a second hairdresser Charles Simpson that “if the wrong people knew what I know about the JFK assassination, it would cost me my life.” They did know, and it did cost her her life.

If I were in Dorothy Kilgallen’s shoes, I wouldn’t have left my file around the house without having made copies for protection. I’d have put one copy in a safe deposit box, for instance, and given another copy to my attorney with instructions what to do with it in the case of my untimely demise. Is there any indication that she took those precautions? She took a trip to Switzerland before her death and at least one acquaintance thought she had a safe deposit box there. Has anyone checked to see if a Swiss safe deposit box might hold a copy of the file?

You have to remember that there were no copy machines back then and so it would have been a carbon copy that might have been in existence. This said, there is no credible evidence that any copy of the file existed. There is also no credible evidence that she took any copy to Switzerland or gave a copy to anyone.

Dorothy Kilgallen with other What's My Line panelists.

NEW YORK, NY – 1960s: (L-R) The panel of judges along with the host of What’s My Line? Arlene Francis, John Charles Daly, Dorothy Kilgallen (right), and Bennett Cerf pose for a portrait circa 1960’s in New York, New York. (Photo by Michael Ochs Archives/Getty Images), courtesy of Mark Shaw.

Tell us about the new investigation into Dorothy Kilgallen’s death.

After I requested that NYC District Attorney Cyrus Vance, Jr. investigate Dorothy’s death (not re-investigate since there was no investigation in 1965 despite a staged death scene and other evidence pointing to a homicide), the NY Post reported that the DA had opened an investigation into her death 52 years later. I have subsequently been working with the DA’s office by forwarding fresh evidence that will assist with the investigation but I’d like to see the investigation proceed more quickly than it has since as the victim of a homicide, Dorothy has rights and I am fighting to make sure she gets the justice she deserves that was denied her so many years ago.


Thank you, Mark Shaw!

Do you think a new investigation is warranted, 51 years later? Please comment below.

More books by Mark Shaw

Mr Shaw has also written The Poison Patriarch, Miscarriage of Justice, Beneath the Mask of Holiness, Melvin Belli: King of the Courtroom, Stations Along the Way, and Down for the Count. He has penned articles for The New York Daily News, USA Today, Huffington Post and the Aspen Daily News, which he co-founded. More about Mr. Shaw, who lives in the San Francisco area, may be learned at markshawbooks.com and Wikipedia (Mark William Shaw).

Literature on point:

Susan Edelman, “Manhattan DA’s Office probing death of a reporter with possible JFK ties,” New York Post (Jan. 29, 2017).

Mark Shaw, The Reporter Who Knew Too Much: The Mysterious Death of What’s My Line TV Star and Media Icon Dorothy Kilgallen (Post Hill Press, 2016).

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