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A confession is not a sure conviction!

FeaturesA confession is not a sure conviction!

I know from my personal experience that the most difficult murder cases for me to have proven were the ones based on confession alone.  For the layperson, news of a confession from an accused gives joy, because they feel he has admitted to the crime and as such he must be convicted. A confession given by an accused murderer, at the stage when they are held by the police, does not translate into a sure conviction. Neither does it mean that because the contents of the confession appear to be true, as only the killer would know such information, that the court will accept the confession into evidence.

The law sets guidelines and principles of law that must be followed when obtaining a confession and when seeking to admit it into evidence, as at court. Thus the most critical stage of the confession is those hours before the confession is given, when the accused is held in police custody, and before he tells the police he wants to confess.

The reality is that a police investigator is trained in the rules of law pertaining to a confession and how it is treated before the court. Thus, the investigator must know how to comply with these so as to get the confession admitted as evidence in the trial. The other reality is that no true and competent investigator will rely solely on the confession as evidence, since they know that a confession is not admissible as evidence until the court says it is admissible; and they know if the confession is the sole evidence, then if not admitted, the case ends there!

Free and voluntary confession!

The Rule of Evidence requires that a confession per section 90 of the Evidence Act, Chapter 95, Laws of Belize, be freely and voluntarily given. I will try and explain this as simply as possible so that any layperson can appreciate what is the burden of proof on the prosecution in order for that confession to be accepted as evidence against the maker.

Section 90 states: – (1) An admission at any time by a person charged with the commission of any crime or offence which states, or suggests the inference, that he committed the crime or offence may be admitted in evidence against him as to the facts stated or suggested, if such admission was freely and voluntarily made.

(2) Before such admission is received in evidence the prosecution must prove affirmatively to the satisfaction of the judge that it was not induced by any promise of favour or advantage or by use of fear, threat or pressure by or on behalf of a person in authority.

Now, it is at the stage of the start of the trial, that the court will hold a voir dire, which is a mini trial, within the big trial. This is done to test the circumstances under which the accused gave the confession and for the court to be sure that the accused did give that confession freely. Therefore, this is where the conduct of the police officers in the treatment of the accused to elicit the confession is put to the test.

This therefore means that the police need to account for the whereabouts and treatment of the prisoner from the moment they pick up the accused to the point when he signs off on the confession.  Now good police work will dictate that the station diary will be key as evidence because it will have a complete record of each person who made contact with the prisoner and also when the prisoner was fed, watered, slept, used the bathroom, had a visitor, spoke with an attorney, even when he was interviewed and/or questioned and by whom.  Now, from my experience, this is where the case falls, because during my time I never saw one police station diary that could give full and proper account for the whereabouts of the prisoner etc. Thus, when the prisoner comes to court and tells the judge that he was locked up in a room with two officers who beat him and punched him and told him to confess or else they will kill his mother, or that they refused him food, or in the case of minors, that they refused him a visit from a parent, the police should be able to rebut it and prove that they have an hour-by-hour account and that at the said time at which he claims he was beaten, he was in his cell sleeping because the diarist, during his routine check of cells, noted this.

In a case I did, involving a high-ranking police officer as investigator, the prisoner, in challenging the freeness and voluntariness of his confession, told the court he was locked away at a sub-station in Caribbean Shores for over 24 hours with no food or water and no visitors and was refused an attorney. So, I as the prosecutor had to prove otherwise, and I called the officer on duty there and she produced the diary, since I wanted to show he was lying and thus prove he freely gave the confession. He said he gave it because after being locked away and told that if he confessed he would be allowed to get out and see others and would not disappear, he feared no one knew where he was and what happened to him. Wanting to make sure he lived and his family could know where he was, he confessed, and a justice of the peace witnessed it, but never questioned him to know what happened to him before he decided to sign a confession.

Duty of prosecution to be fair

The duty of a prosecutor is to always be fair and disclose all the evidence, so I called the officer in charge of that sub-station and when asked why the accused was not allowed any visitor and there was no record of when he got food or water, she answered that the investigating officer gave clear instructions not to let anyone see him or know where he was, and he being her senior, she obeyed.  Yep, she said that. About the food, she insisted he did get food, but it was never put in the diary at what time and what food, so the benefit of the doubt was resolved in favour of the accused and the court ruled that the confession was inadmissible, because a man under such duress and without eating and being isolated to the point that he feared he would be killed and not found, would say or do anything to surface and just be able to make contact with the outside world. Just like that, the murder of the young man went without justice!

As the prosecutor, what was difficult for me were two main things: 1. Why couldn’t the police just give full and proper account of every detained person, so that if they confess they cannot come up with these “stories”, which by default are proven and, 2. Why did the police not gather other evidence so that if the confession fell through, there would still be enough to evidence on which to base a conviction?

There were two police officers whose every case I dealt with for murder, and those cases were all based solely on confessions, and all of them were lost since NONE of those confessions were accepted by the court as freely and voluntarily given! Both always had the same modus operandi, and sadly, they never changed their techniques to ensure conviction and both boasted of a 100% arrest and charge rate for murder, but both also had a 100% non-conviction rate for murder during my time prosecuting their case files. One of them has retired; the other is top brass, and the modus operandi has not changed, as I am seeing play out in the media reports.

The principle of free will

Now, I know many may be saying, but what if he told the truth about his murderous act? I too always am fighting in my mind with this concept, because I often think they did it, but as a trained attorney I know that in confession it is not only about the contents being the truth or part truth, but the confessor giving it because he wanted to give it and get it off his mind; that matters.

You see, you can only accept that principle, if you understand that our legal system says the accused is “innocent until proven guilty”. It is based on the notion that the state/government has ALL the resources to fully and properly investigate the accused and prove his crime. Remember, their constitutional right is that “you do not have to say anything but anything you say may be placed in writing and given in evidence in your case [emphasis mine].”

It is an accused’s right not to self-incriminate herself or himself. However, this does not limit the extent of the investigation and work the police could and should do. You see, what the law looks at in confession cases, is to determine if the person’s mind was not under some form of duress. So if a man has not eaten all day, or for two days, he is sapped of his free will and may say or do anything to get food and water.

The court wants to ascertain that the confession was not induced. And inducement may be by way of a promise. Like a promise that you will get to see your family if you confess, or we will help you and give you a lesser charge, or even make you serve less time. I have been in court long enough to hear all sorts of “stories” by accused persons as to why they confessed.

Inducement can be by putting fear in the hearts of the accused. One man claimed he was told that if he did not confess, his family members would be hurt, and they could have told him their names and where they lived. One man said he was put in a room with three senior men and they all had guns and he feared they would kill him, especially since a key one told him they could make his body disappear, and at the time, his family did not even know they had him. The inducement can be caused by a threat, which usually goes hand in hand with the fear, as threats are used to put the person in fear.

Another form of inducement technique is to pressure the accused, and this may be mental pressure or physical pressure, by use of force. Now this is the one that is most commonly complained about by prisoners, at least during the time I was a prosecutor. Prisoners would give these elaborate accounts of being taken behind Queen Street Police Station and having wires attached to their testicles and being shocked. I will be honest, they insist it is true, I never saw it, and really found it hard to believe that police in our country would do such things.

But the court in all such cases I dealt with, ruled in favour of the accused, and the biggest issue against  the police, why the court resolved in the accused’s favour, was because for those hours, in which the prisoners were explaining what they endured, the police station diary, had no account of where they were and with whom. So if police can’t tell by its record that it’s not true they were held at the CIB office and tortured, then the court must err in favour of the accused, because that is our system of law!

I have done cases too where I got the intake record at the prison to see under what physical condition the prisoner was received at the prison, and sadly their records in several instances have shown that the accused arrived bruised and injured, and the prison authority made record of this.

Admitted as evidence

However, once the judge in the voir dire finds that the confession was freely given, it is admitted as evidence. The court, having already tested the freeness and voluntariness of the confession, at the trial stage then accepts the evidence and gives it the credence and weight it sees fit. Each confession varies in details, and some parts may be edited, since only what the confessor confesses he did, is admissible, as his confession cannot be used as evidence against another.

My position is that a man can be convicted on his confession alone, once such a confession, along with whatever evidence, proves all the elements of the crime. If the confession is deemed inadmissible but the prosecution has other evidence, then there is no need for concerns, since the the case can continue. Per Section 91 of the Evidence Act I states: “91(1) Subject to the provisions of this section, where the voluntary nature of an accused person’s confession or admission of guilt has been established beyond reasonable doubt, such confession or admission shall be sufficient to warrant a conviction without any confirmatory or corroborative evidence.”

Thus, the challenge is to get the confession without use of fear, force, favour, and I will add fame, since often, police, to quell public outcry, by all means gets an accused and elicit a confession which later does not hold up in court!

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