Confession (law)

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In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person. Some secondary authorities, such as Black's Law Dictionary, define a confession in more narrow terms, e.g. as "a statement admitting or acknowledging all facts necessary for conviction of a crime," which would be distinct from a mere admission of certain facts that, if true, would still not, by themselves, satisfy all the elements of the offense. The equivalent in civil cases is a statement against interest.

Contents

History

This specific form of testimony, involving oneself, is used as a form of proof in judicial matters, since at least the Inquisition. The value of confessions, however, are discussed, and law generally request cross-checking them with objective facts and others forms of evidence (exhibits, testimonies from witnesses, etc.) in order to evaluate their truth value. Confessions were first developed in the Roman Catholic Church under the Sacrament of Penance, where the confession of a sin is considered to be enough to absolve oneself. This aspect concerning moral guilt has been carried on in various legislative codes, in which a criminal is considered worse if he does not confess to his crimes.

Reliability

Conditions

Under Japanese law, a confession is admissible as evidence only if there is other independent evidence in support of the confession. However, many miscarriages of justice in Japan are due to police forcing a false confession.

Torture

On one hand, confessions obtained under torture have often been considered to be not objective enough, since the use of such means may lead to the suspect in confessing anything. However, when the confession reveals secrets only known to the perpetrator (such as the location of the body or murder weapon), the confession is reliable.

On the other hand, even without torture, various cases of averred false confessions demonstrate that, in itself, one person's confession is not a sufficient proof. False memory (including memory biases, etc.) or privileges granted under plea bargaining might lead to such false confessions.

Forced confession

A forced or coerced confession is a confession obtained from a suspect or a prisoner by means of pressure, torture (including enhanced interrogation techniques) or other forms of duress, whether physical or psychological. Depending on the level of coercion used, a forced confession is not valid in revealing the truth. The person being interrogated may agree to the story presented to him or even make up falsehoods himself in order to satisfy the interrogator and discontinue his suffering. [1] However, despite developments in the 20th century, notably the Universal Declaration of Human Rights, which greatly reduced the legal acceptance of forced confessions, these are still practised and accepted in some jurisdictions. The People's Republic of China has been shown to systematically employ forced televised confession, often in an extrajudicial context, against Chinese dissidents and workers of various human rights group in an attempt to discredit, smear and suppress dissident voices and activism. Scripted confessions, obtained via systematic duress and torture, are broadcast on the state television. Notable victims includes Wang Yu, a female human rights lawyer, and Swedish NGO worker Peter Dahlin, and Gui Minhai, a Chinese-born Swedish book publisher. [2]

Scientific reliability

Confession evidence can be considered, arguably, the best piece of evidence of guilt in the criminal justice system. However, false confessions do occur, therefore there must be some flaws in the interrogation process. [3] In a scientific article "Confession Evidence: Commonsense Myths and Misconceptions" by Saul M. Kassin, five myths in the confession evidence system were identified. These myths are 1) trained interviewers can detect truth and deception; 2) Miranda protects the accused from interrogation; 3) people do not confess to crimes they did not commit; 4) police, prosecutors, judges, and juries can distinguish true and false confessions; and 5) it is possible to determine whether a false confession error was harmless. [4]

In the case of trained interviewers, many interrogation teams are practiced in the "Reid technique", which identifies behavioral cues common for a guilty suspect including slouching, fidgeting, and avoiding eye contact. These cues have not been empirically validated to demonstrate deception in scientific studies. In terms of the Miranda warning, it has been found that innocent suspects are more likely to waive their rights than those who are guilty, so therefore Miranda rights in most cases do not protect accused innocents from interrogation (article 1). Through the use of minimization, when an investigator justifies the crime with possible excuses to make it easier to confess to, and the use of the false evidence ploy, mentioning evidence that proves the suspect guilty (which actually does not exist), many innocent people end up confessing to crimes they have not committed. Most people cannot recognize a false confession, because confessions are trusted and a jury or judge would see confessing to a crime in which the suspect did not commit as something against self-interest, which in most people's minds does not make sense. In terms of how harmless a false confession is, it has been shown that confessions can affect other pieces of evidence and the way they are presented, which can affect a judge or jury's perception of guilt. [4] Through debunking these myths it can be demonstrated that confessions cannot be the be-all-end-all in a criminal investigation, and the criminal justice system should implement more tactics and procedures that prevent false confessions from occurring. [5]

Worldwide

England and Wales

In English law a confession includes: [6]

any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

A confession may be admitted in evidence so long as it is relevant to any matter in issue and not excluded under the court's discretion.

Exclusion of prosecution evidence

The court must exclude evidence:

  • if the "admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it", [7] or
  • if it was obtained by torture. [8]

The court may exclude evidence:

Under section 76, following a representation by the defendant or upon the court's own motion, evidence tendered by the prosecution must not be admitted if it was or may have been obtained:

  • by oppression of the person who made it; or
  • in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by the accused in consequence thereof. [9]

Whether or not evidence was obtained in such circumstances will be decided by a judge sitting without a jury in a voir dire.

Oppression includes torture, inhumane and degrading treatment and the use or threat of violence. [9] Oppression imports "some impropriety... actively applied in an inappropriate manner by the police" [10]

Under the second limb, a judge is not to consider whether the confession made was truthful, but rather whether, under the circumstances, "whatever was said or done, was, in the circumstances existing as at the time of the confession, likely to have rendered such a confession unreliable, whether or not it may be seen subsequently - with hindsight and in the light of all the material available at trial - that it did or did not actually do so". [11] The question of whether some action has rendered a question unreliable centers on whether it is likely to have made an innocent person confess, or even (equivalently) to have made a guilty person confess to more than their actual crime.

"Anything said or done" is not limited to the actions of the police, but does not include things said or done by the accused. [12] However, the circumstances existing at the time do include the accused's own mental state and capacities. [13]

Evidence tendered by a co-defendant

The court may exclude evidence under section 76A of the Police and Criminal Evidence Act 1984. Following a representation by the defendant or upon the court's own motion, evidence tendered by a co-defendant of a defendant's confession must not be admitted unless the co-defendant proves on the balance of probabilities that it was not obtained:

  • by oppression of the person who made it; or
  • in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by the accused in consequence thereof. [14]

Statements made in the presence of the accused

The common law rules on the admission of confessions are preserved, [15] and apply so long as the statement was made voluntarily. Under the common law, where a statement is made in the presence of the accused, by a person with whom the accused is on even terms, [16] upon an occasion which should be expected reasonably to call for some explanation or denial from him, the accused's acceptance of that statement, [17] including by giving an insufficient explanation [17] or by acquiescence. [18] In deciding whether to put the matter to the jury, the judge should ask: [18]

(1) could a jury properly directed conclude that the defendant adopted the statement in question?

If so, (2) is that matter of sufficient relevance to justify its introduction in evidence?

If so, (3) would the admission of the evidence have such an adverse effect on the fairness of the proceedings that the judge ought not to admit it?

Canada

Canadian common law on confessions is derived directly from English decisions and legal principles. There are some differences including the Charter of Rights and Freedoms that give an accused person more rights.

The crown must prove beyond a reasonable doubt that the accused confessed voluntarily or the confession will be excluded from evidence by the judge. The legal term voluntary has a different meaning than the everyday meaning of voluntary.

The crown will be looking to prove the absence of threats, direct or veiled, by the police. Threats will almost certainly render the confession involuntary. This can include threats to arrest or interrogate other persons close to the accused. Promises or inducements made in the form of a quid pro quo (like a confession in exchange for ignoring a more serious charge) will also often result in an inadmissible confession.

Generally, police are allowed to lie by claiming to claim to have evidence, like DNA evidence that does not exist. If police lies cause the suspect to say anything that implicates themselves in the crime the confession would be admitted into evidence. See R. v. Oickle.

India

No person accused of any offence shall be compelled to be a witness against himself.

Article 20(3), Constitution of India

In India, forcefully obtaining confession is unconstitutional.

This was reaffirmed on 5 May 2010 by the Supreme Court of India in the case "Smt. Selvi vs. State of Karnataka" in which it was held that Narcoanalysis, polygraph (also called Lie-detector) and brain mapping tests to be unconstitutional as they violate Article 20(3) of the Constitution. [19]

Italy

Confessions have been used extensively in Italy since the creation of the pentito (Italian for repentant) status. Adriano Sofri, for example, has been given a life-sentence exclusively on the words of one pentito.

United States

In the 1936 case Brown v. Mississippi , the United States Supreme Court ruled that convictions which are based solely upon confessions coerced by violence violate the Due Process Clause.

Furthermore, once a confession is made, the defendant is seldom, if ever, acquitted.

Howard B. Terrell, M.D. and William Logan, J.D., American Journal of Forensic Psychiatry, Volume 13, Number 2

According to a study published by the American Journal of Forensic Psychiatry, approximately 80 percent of US criminal cases are solved by a subject's confession. [20]

See also

Related Research Articles

<i>Miranda</i> warning Notification given by U.S. police to criminal suspects on their rights while in custody

In the United States, the Miranda warning is a type of notification customarily given by police to criminal suspects in police custody advising them of their right to silence and, in effect, protection from self-incrimination; that is, their right to refuse to answer questions or provide information to law enforcement or other officials. Named for the U.S. Supreme Court's 1966 decision Miranda v. Arizona, these rights are often referred to as Miranda rights. The purpose of such notification is to preserve the admissibility of their statements made during custodial interrogation in later criminal proceedings. The idea came from law professor Yale Kamisar, who subsequently was dubbed "The father of Miranda."

Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Fifth Amendment to the U.S. Constitution restricts prosecutors from using a person's statements made in response to interrogation in police custody as evidence at their trial unless they can show that the person was informed of the right to consult with an attorney before and during questioning, and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights but also voluntarily waived them.

<span class="mw-page-title-main">Arrest</span> Law enforcement term

An arrest is the act of apprehending and taking a person into custody, usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in a criminal justice system, sometimes it is also done after a court warrant for the arrest.

The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.

The Reid technique is a method of interrogation. The system was developed in the United States by John E. Reid in the 1950s. Reid was a polygraph expert and former Chicago police officer. The technique is known for creating a high pressure environment for the interviewee, followed by sympathy and offers of understanding and help, but only if a confession is forthcoming. Since its spread in the 1960s, it has been a mainstay of police procedure, especially in the United States.

<span class="mw-page-title-main">Forced confession</span> Confession obtained from a person under duress

A forced confession is a confession obtained from a suspect or a prisoner by means of torture or other forms of duress. Depending on the level of coercion used, a forced confession is not valid in revealing the truth. The individuals being interrogated may agree to the story presented to them or even make up falsehoods themselves in order to satisfy the interrogator and discontinue their suffering.

<span class="mw-page-title-main">Miscarriage of justice</span> Conviction of a person for a crime that they did not commit

A miscarriage of justice occurs when a grossly unfair outcome occurs in a criminal or civil proceeding, such as the conviction and punishment of a person for a crime they did not commit. Miscarriages are also known as wrongful convictions. Innocent people have sometimes ended up in prison for years before their conviction has eventually been overturned. They may be exonerated if new evidence comes to light or it is determined that the police or prosecutor committed some kind of misconduct at the original trial. In some jurisdictions this leads to the payment of compensation.

In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another [person] in a criminal prosecution or the danger thereof"..

The prohibition of torture is a peremptory norm in public international law – meaning that it is forbidden under all circumstances – as well as being forbidden by international treaties such as the United Nations Convention Against Torture. It is generally agreed that torture is inherently morally wrong because all forms of torture "involve the intentional infliction of extreme physical suffering on some non-consenting and defenceless person", although it does not necessarily follow that torture is wrong in all circumstances. In practice, torture has been employed by many or most prisons, police and intelligence agencies throughout the world. Philosophers are divided on whether torture is forbidden under all circumstances or whether it may be justified in one-off situations, but without legalization or institutionalization.

<span class="mw-page-title-main">Criminal justice system of Japan</span>

Within the criminal justice system of Japan, there exist three basic features that characterize its operations. First, the institutions—police, government prosecutors' offices, courts, and correctional organs—maintain close and cooperative relations with each other, consulting frequently on how best to accomplish the shared goals of limiting and controlling crime. Second, citizens are encouraged to assist in maintaining public order, and they participate extensively in crime prevention campaigns, apprehension of suspects, and offender rehabilitation programs. Finally, officials who administer criminal justice are allowed considerable discretion in dealing with offenders.

Dickerson v. United States, 530 U.S. 428 (2000), upheld the requirement that the Miranda warning be read to criminal suspects and struck down a federal statute that purported to overrule Miranda v. Arizona (1966).

<span class="mw-page-title-main">Judiciary of Israel</span> Part of the article of the series of government of Israel

The judicial system of Israel consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice. The system is headed by the President of the Supreme Court and the Minister of Justice.

A false confession is an admission of guilt for a crime which the individual did not commit. Although such confessions seem counterintuitive, they can be made voluntarily, perhaps to protect a third party, or induced through coercive interrogation techniques. When some degree of coercion is involved, studies have found that subjects with highly sophisticated intelligence or manipulated by their so called "friends" are more likely to make such confessions. Young people are particularly vulnerable to confessing, especially when stressed, tired, or traumatized, and have a significantly higher rate of false confessions than adults. Hundreds of innocent people have been convicted, imprisoned, and sometimes sentenced to death after confessing to crimes they did not commit—but years later, have been exonerated. It was not until several shocking false confession cases were publicized in the late 1980s, combined with the introduction of DNA evidence, that the extent of wrongful convictions began to emerge—and how often false confessions played a role in these.

The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system. The revised Constitution of 1987 codified judicial independence in Article 103, which states that, "Judges rule independently according to their conscience and in conformity with the Constitution and the law." The 1987 rewrite also established the Constitutional Court, the first time that South Korea had an active body for constitutional review.

Richard Jason Ofshe is an American sociologist and professor emeritus of sociology at the University of California, Berkeley. He is known for his expert testimony relating to coercion in small groups, confessions, and interrogations.

Massiah v. United States, 377 U.S. 201 (1964), was a case in which the Supreme Court of the United States held that the Sixth Amendment to the United States Constitution prohibits the government from eliciting statements from the defendant about themselves after the point that the Sixth Amendment right to counsel attaches.

<span class="mw-page-title-main">Fifth Amendment to the United States Constitution</span> 1791 amendment enumerating due process rights

The Fifth Amendment to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on criminal procedures. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights.

The right to silence in England and Wales is the protection given to a person during criminal proceedings from adverse consequences of remaining silent. It is sometimes referred to as the privilege against self-incrimination. It is used on any occasion when it is considered the person being spoken to is under suspicion of having committed one or more criminal offences and consequently thus potentially being subject to criminal proceedings.

Saul Kassin is a distinguished professor of psychology at John Jay College of Criminal Justice - City University of New York and Massachusetts Professor Emeritus of Psychology at Williams College in Williamstown, Massachusetts.

Berghuis v. Thompkins, 560 U.S. 370 (2010), is a landmark decision by the Supreme Court of the United States in which the Court considered the position of a suspect who understands their right to remain silent under Miranda v. Arizona and is aware that they have the right to remain silent, but does not explicitly invoke or waive the right.

References

  1. ↑ Boffa, Christa (8 July 2016). "Palazz Castellania". Illum (in Maltese). Archived from the original on 30 July 2016.
  2. ↑ Wong, Edward (21 January 2016). "China Uses Foreigners' Televised Confessions to Serve Its Own Ends". The New York Times. Retrieved 2018-10-01.
  3. ↑ Russano, Melissa B.; Christian A. Meissner; Fadia M. Narchet; Saul M. Kassin (June 2005). "Investigating True and False Confessions Within a Novel Experimental Paradigm". Psychological Science. 16 (6): 481–486. doi:10.1111/j.0956-7976.2005.01560.x. PMID   15943675. S2CID   24456073.
  4. 1 2 Kassin, Saul M. (October 2008). "Confession Evidence: Commonsense Myths and Misconceptions". Criminal Justice and Behavior. 35 (10): 1309–1322. doi:10.1177/0093854808321557. S2CID   145153387.
  5. ↑ Sangero, Boaz (2016). SAFETY FROM FALSE CONVICTIONS. USA: CreateSpace. pp. 157–181. ISBN   9781536823738.
  6. 1 2 Police and Criminal Evidence Act 1984, section 82.
  7. ↑ Police and Criminal Evidence Act 1984, section 78
  8. ↑ A & Ors v. Secretary of State for the Home Department [2005] UKHL 71
  9. 1 2 Police and Criminal Evidence Act 1984, section 76.
  10. ↑ R v Fulling [1987] QB 426.
  11. ↑ Mance LJ in Proulx v Governor of HM Prison Brixon [2000] EWHC Admin 381, emphasis of Mance LJ.
  12. ↑ Goldenberg (1988) 88 Cr App R 285; Crampton (1991) 92 Cr App R 372.
  13. ↑ Proulx v Governor of HM Prison Brixon [2000] EWHC Admin 381; Everett [1988] Crim LR 826
  14. ↑ Police and Criminal Evidence Act 1984, section 76A.
  15. ↑ Criminal Justice Act 2003, section 118.
  16. ↑ R v Collins and Hill [2004] EWCA Crim 83.
  17. 1 2 Christie [1914] AC 545
  18. 1 2 R v O [2005] EWCA Crim 3082
  19. ↑ "No narcoanalysis test without consent, says SC". The Times of India . May 5, 2010. Archived from the original on November 4, 2012. Retrieved May 18, 2012.
  20. ↑ Terrell, M.D., Howard B.; Logan, J.D., William (1992). "THE "FALSE CONFESSION": MANIPULATIVE INTERROGATION OF THE MENTALLY DISORDERED CRIMINAL SUSPECT". American Journal of Forensic Psychiatry. 13: 7.
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