Confessions - Revision history

IBJadmin at 11:37, 4 November 2016

2016-11-04T11:37:00Z

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	3) The statement must be a result of inducement.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref>		3) The statement must be a result of inducement.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref>

	Like in the UK, the prosecution held the burden of proof in establishing voluntariness of a confession and the decision of voluntariness is decided outside of the presence of the jurors by a judge at voir dire.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref> Under Canadian case law, a statement is not considered voluntary if it is not the product of an "operating mind."<ref>Queen v. Spencer, ~~http~~://scc.lexum.~~umontreal.ca~~/en/~~2007~~/~~2007scc11~~/~~2007scc11~~.~~html~~</ref> The phrase "operating mind" is meant to protect against statements that are unreliable due to a lack of rationality. A statement is also not considered voluntary when the accused is unaware of the consequences of making such a confession (i.e. intoxication or mental disorder)- this standard focuses more on the mental ability of the accused, rather than the conduct of the police.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref> Canadian courts have also held that statements made under oppression are involuntary and thus inadmissible.		Like in the UK, the prosecution held the burden of proof in establishing voluntariness of a confession and the decision of voluntariness is decided outside of the presence of the jurors by a judge at voir dire.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref> Under Canadian case law, a statement is not considered voluntary if it is not the product of an "operating mind."<ref>Queen v. Spencer, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do</ref> The phrase "operating mind" is meant to protect against statements that are unreliable due to a lack of rationality. A statement is also not considered voluntary when the accused is unaware of the consequences of making such a confession (i.e. intoxication or mental disorder)- this standard focuses more on the mental ability of the accused, rather than the conduct of the police.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref> Canadian courts have also held that statements made under oppression are involuntary and thus inadmissible.

	Under modern Canadian law, the common law rule of confessions works in conjunction with the rules under the Canadian Charter of Rights and Freedoms.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref> The Charter relates to confessions in its privilege against self-incrimination and its right to silence. The burden of proof is different under the Charter: the accused must prove that there has been an infringement of his/her Charter rights and then must demonstrate that the confession was obtained in a manner that violated those rights.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref>		Under modern Canadian law, the common law rule of confessions works in conjunction with the rules under the Canadian Charter of Rights and Freedoms.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref> The Charter relates to confessions in its privilege against self-incrimination and its right to silence. The burden of proof is different under the Charter: the accused must prove that there has been an infringement of his/her Charter rights and then must demonstrate that the confession was obtained in a manner that violated those rights.<ref>http://www.icclr.law.ubc.ca/Publications/Reports/ES%20PAPER%20CONFESSIONS%20REVISED.pdf</ref>

Ibjadmin: /* United States */

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United States

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	(B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.		(B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.
	</blockquote>		</blockquote>
			'''State Rules'''
			*[[Media: North_Carolina_Interrogation_Law.pdf\|North Carolina - The Law of Interrogation in North Caroline (By Jeff Welty)]]

	==Kenya==		==Kenya==

Saviles: /* Three Factors in False Confessions */

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Three Factors in False Confessions

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	==Three Factors in False Confessions==		==Three Factors in False Confessions==
	The famous Goldberg Commission Report identified three factors that would increase the likelihood of a false confession.<ref>Report of the Commission for Convictions Based Solely on Confessions and For Issues Regarding the Grounds for Retrial (1994)</ref> The first factor examined the defendant's personality. Defendants are more likely to confess when they have difficulty differentiating reality from fiction, they are self-destructive or desire to confess out of overwhelming guilt for past behaviors. The second cluster of factors are the conditions of confinement and methods of interrogation that bear on the defendant prior to the confession. The final factors are external forces that put may put pressure on defendants to make false confessions.~~<ref>hi~~		The famous Goldberg Commission Report identified three factors that would increase the likelihood of a false confession.<ref>Report of the Commission for Convictions Based Solely on Confessions and For Issues Regarding the Grounds for Retrial (1994)</ref> The first factor examined the defendant's personality. Defendants are more likely to confess when they have difficulty differentiating reality from fiction, they are self-destructive or desire to confess out of overwhelming guilt for past behaviors. The second cluster of factors are the conditions of confinement and methods of interrogation that bear on the defendant prior to the confession. The final factors are external forces that put may put pressure on defendants to make false confessions.

	==The Corroboration Requirement==		==The Corroboration Requirement==
	Because of the risk of false confession, it is often the case that the trial court will require some additional corroborating evidence before an individual may be convicted on a confession alone. Sometimes called the ''[[Corpus Delecti]]'' ("The Body of the Crime"), the standard of proof required for corroboration varies from jurisdiction to jurisdiction. The demand for corroboration decreases the risk of false confessions and requires police to conduct investigations beyond simple interrogation.		Because of the risk of false confession, it is often the case that the trial court will require some additional corroborating evidence before an individual may be convicted on a confession alone. Sometimes called the ''[[Corpus Delecti]]'' ("The Body of the Crime"), the standard of proof required for corroboration varies from jurisdiction to jurisdiction. The demand for corroboration decreases the risk of false confessions and requires police to conduct investigations beyond simple interrogation.

	One study determined that false confessions may occur without any coercive police practices. For this reason, some academics have concluded that all confessions should be accompanied stronger corroborative evidence.<ref> Dr. Boaz Sangero, Miranda is Not Enough: A new Justification for Demanding "Strong ~~Corrobration~~ to a Confession", Cardozo Law Review, Vol. 28 No. 6 (May 2007).</ref> Finally, some practitioners have concluded that only video-taped or audio-recorded confessions should be admissible.		One study determined that false confessions may occur without any coercive police practices. For this reason, some academics have concluded that all confessions should be accompanied stronger corroborative evidence.<ref> Dr. Boaz Sangero, Miranda is Not Enough: A new Justification for Demanding "Strong Corroboration to a Confession", Cardozo Law Review, Vol. 28 No. 6 (May 2007).</ref> Finally, some practitioners have concluded that only video-taped or audio-recorded confessions should be admissible.

	= International Sources =		= International Sources =

Saviles: /* Three Factors in False Confessions */

2011-06-06T13:06:56Z

Three Factors in False Confessions

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	==Three Factors in False Confessions==		==Three Factors in False Confessions==
	The famous Goldberg Commission Report identified three factors that would increase the likelihood of a false confession.<ref>Report of the Commission for Convictions Based Solely on Confessions and For Issues Regarding the Grounds for Retrial (1994)</ref> The first factor examined the defendant's personality. Defendants are more likely to confess when they have difficulty differentiating reality from fiction, they are self-destructive or desire to confess out of overwhelming guilt for past behaviors. The second cluster of factors are the conditions of confinement and methods of interrogation that bear on the defendant prior to the confession. The final factors are external forces that put may put pressure on defendants to make false confessions.		The famous Goldberg Commission Report identified three factors that would increase the likelihood of a false confession.<ref>Report of the Commission for Convictions Based Solely on Confessions and For Issues Regarding the Grounds for Retrial (1994)</ref> The first factor examined the defendant's personality. Defendants are more likely to confess when they have difficulty differentiating reality from fiction, they are self-destructive or desire to confess out of overwhelming guilt for past behaviors. The second cluster of factors are the conditions of confinement and methods of interrogation that bear on the defendant prior to the confession. The final factors are external forces that put may put pressure on defendants to make false confessions.<ref>hi

	==The Corroboration Requirement==		==The Corroboration Requirement==

Saviles at 13:06, 6 June 2011

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	==India==		==India==
	No confession made to a police officer is valid as evidence at a trial. All confessions must be made to a Magistrate not below the rank of Judicial Magistrate. The Magistrate taking the confessions must give the accused due time out of the custody of the police, and make an effort to ensure that the accused was not coerced or intimidated in anyway, before ~~receivint~~ the confession. At the bottom of the confession the Magistrate must write out that he has informed the accused that this confession may be used against him and he is not obligated in any way to ~~imcriminate~~ himself.<ref>India Criminal Procedure Code Section 51</ref>		No confession made to a police officer is valid as evidence at a trial. All confessions must be made to a Magistrate not below the rank of Judicial Magistrate. The Magistrate taking the confessions must give the accused due time out of the custody of the police, and make an effort to ensure that the accused was not coerced or intimidated in anyway, before receiving the confession. At the bottom of the confession the Magistrate must write out that he has informed the accused that this confession may be used against him and he is not obligated in any way to incriminate himself.<ref>India Criminal Procedure Code Section 51</ref>

	==United States==		==United States==

Saviles: /* Germany */

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Germany

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	In Germany, there is no general mandatory exclusionary rule. The German Code of Criminal Procedure (CCP) instead allows for courts to operate on a discretionary basis for exclusions. Courts are willing to exclude confessions obtained in violation of a provision of the CCP, reasoning that violations of the CCP may discredit the reliability of the evidence obtained.<ref> Comparative Criminal Procedure: History, Processes and Case Studies, Raneta Lawson Mack, 2008</ref> Furthermore, in 1992, a German Federal Court of Appeals held that confessions obtained by police without issuing required warnings cannot be used as evidence.<ref> Comparative Criminal Procedure: History, Processes and Case Studies, Raneta Lawson Mack, 2008</ref> However, the Court stated that if it could be shown that the suspect knew of his/her rights, the lack of warnings did not necessarily lead to exclusion.<ref> Comparative Criminal Procedure: History, Processes and Case Studies, Raneta Lawson Mack, 2008</ref>		In Germany, there is no general mandatory exclusionary rule. The German Code of Criminal Procedure (CCP) instead allows for courts to operate on a discretionary basis for exclusions. Courts are willing to exclude confessions obtained in violation of a provision of the CCP, reasoning that violations of the CCP may discredit the reliability of the evidence obtained.<ref> Comparative Criminal Procedure: History, Processes and Case Studies, Raneta Lawson Mack, 2008</ref> Furthermore, in 1992, a German Federal Court of Appeals held that confessions obtained by police without issuing required warnings cannot be used as evidence.<ref> Comparative Criminal Procedure: History, Processes and Case Studies, Raneta Lawson Mack, 2008</ref> However, the Court stated that if it could be shown that the suspect knew of his/her rights, the lack of warnings did not necessarily lead to exclusion.<ref> Comparative Criminal Procedure: History, Processes and Case Studies, Raneta Lawson Mack, 2008</ref>

	The exception to German rule of no mandatory exclusions is section 136a of the Code of Criminal Procedure (CCP). This section excludes any confessions obtained by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis.<ref> http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html</ref> The police are prohibited from using such methods and the court will exclude any confession made in an interrogation that uses such techniques, even if the confession itself was voluntary.		The exception to German rule of no mandatory exclusions is section 136a of the Code of Criminal Procedure (CCP). This section excludes any confessions obtained by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis.<ref> http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html</ref> The police are prohibited from using such methods and the court will exclude any confession made in an interrogation that uses such techniques, even if the confession itself was voluntary.

	==United Kingdom==		==United Kingdom==

Saviles: /* United Kingdom */

2011-06-06T10:21:42Z

United Kingdom

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	English law, like American law, requires a finding of voluntariness before admission of a confession.<ref>Gordon Van Kessel, The Suspect as a Source of Testimonial Evidence: A Comparison of the English and American Approaches, 38 Hastings L.J. 1 (1986)</ref> The prosecution has the burden of proof to show that the confession was voluntarily made. The judge must decide on the issue at the voir dire hearing, which is outside of the presence of the jury. Confessions are governed by section 76(2) of the Police and Criminal Evidence Act (PACE) of 1984. Section 76(2) reads:		English law, like American law, requires a finding of voluntariness before admission of a confession.<ref>Gordon Van Kessel, The Suspect as a Source of Testimonial Evidence: A Comparison of the English and American Approaches, 38 Hastings L.J. 1 (1986)</ref> The prosecution has the burden of proof to show that the confession was voluntarily made. The judge must decide on the issue at the voir dire hearing, which is outside of the presence of the jury. Confessions are governed by section 76(2) of the Police and Criminal Evidence Act (PACE) of 1984. Section 76(2) reads:

	<blockquote>"If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused, it is represented to the court that the confession was or may have been obtained		<blockquote>"If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused, it is represented to the court that the confession was or may have been obtained</blockquote>

	(a) by oppression of the person who made it; or		<blockquote>(a) by oppression of the person who made it; or</blockquote>

	(b) in consequences of anything said or done which was likely, in the circumstances		<blockquote>(b) in consequences 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 him in consequences thereof,</blockquote>
	existing at the time, to render unreliable any confession which might be made by him in consequences thereof,

	The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."<ref> http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=1&NavFrom=2&parentActiveTextDocId=1871659&ActiveTextDocId=1871659&filesize=9089</ref></blockquote>		<blockquote>The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."<ref> http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=1&NavFrom=2&parentActiveTextDocId=1871659&ActiveTextDocId=1871659&filesize=9089</ref></blockquote>

	Section 82(1) of PACE defines "confession" as "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." <ref>http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=1871554&ActiveTextDocId=1871668&filesize=13420</ref>		Section 82(1) of PACE defines "confession" as "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." <ref>http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=1871554&ActiveTextDocId=1871668&filesize=13420</ref>

Saviles: /* United Kingdom */

2011-06-06T10:20:03Z

United Kingdom

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	English law, like American law, requires a finding of voluntariness before admission of a confession.<ref>Gordon Van Kessel, The Suspect as a Source of Testimonial Evidence: A Comparison of the English and American Approaches, 38 Hastings L.J. 1 (1986)</ref> The prosecution has the burden of proof to show that the confession was voluntarily made. The judge must decide on the issue at the voir dire hearing, which is outside of the presence of the jury. Confessions are governed by section 76(2) of the Police and Criminal Evidence Act (PACE) of 1984. Section 76(2) reads:		English law, like American law, requires a finding of voluntariness before admission of a confession.<ref>Gordon Van Kessel, The Suspect as a Source of Testimonial Evidence: A Comparison of the English and American Approaches, 38 Hastings L.J. 1 (1986)</ref> The prosecution has the burden of proof to show that the confession was voluntarily made. The judge must decide on the issue at the voir dire hearing, which is outside of the presence of the jury. Confessions are governed by section 76(2) of the Police and Criminal Evidence Act (PACE) of 1984. Section 76(2) reads:

	"If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused, it is represented to the court that the confession was or may have been obtained		<blockquote>"If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused, it is represented to the court that the confession was or may have been obtained

	(a) by oppression of the person who made it; or		(a) by oppression of the person who made it; or
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	existing at the time, to render unreliable any confession which might be made by him in consequences thereof,		existing at the time, to render unreliable any confession which might be made by him in consequences thereof,

	The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."<ref> http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=1&NavFrom=2&parentActiveTextDocId=1871659&ActiveTextDocId=1871659&filesize=9089</ref>		The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."<ref> http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=1&NavFrom=2&parentActiveTextDocId=1871659&ActiveTextDocId=1871659&filesize=9089</ref></blockquote>

	Section 82(1) of PACE defines "confession" as "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." <ref>http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=1871554&ActiveTextDocId=1871668&filesize=13420</ref>		Section 82(1) of PACE defines "confession" as "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." <ref>http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=1871554&ActiveTextDocId=1871668&filesize=13420</ref>

Saviles at 10:11, 6 June 2011

2011-06-06T10:11:00Z

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	Defense counsel may argue that a confession is involuntary if it is the product of torture, coercion, duress or even police trickery. Each interrogation must be examined on its own facts. The most obvious case to argue for the inadmissibility of evidence is when a confession is the direct result of torture or other inhuman and degrading treatment. Cases of coercion or duress fall in the middle category where international jurisdictions differ as to what level of coercion or duress is necessary to trigger inadmissibility of a confession. Finally, in some jurisdictions police deception or trickery, even if not coercive, may lead the confession to be inadmissible.		Defense counsel may argue that a confession is involuntary if it is the product of torture, coercion, duress or even police trickery. Each interrogation must be examined on its own facts. The most obvious case to argue for the inadmissibility of evidence is when a confession is the direct result of torture or other inhuman and degrading treatment. Cases of coercion or duress fall in the middle category where international jurisdictions differ as to what level of coercion or duress is necessary to trigger inadmissibility of a confession. Finally, in some jurisdictions police deception or trickery, even if not coercive, may lead the confession to be inadmissible.

	In common law/~~adverserial~~ criminal justice systems the defense attorney should argue that the confession should be [[Exclusionary Rule \| exclusion]]. In a civil law / inquisitorial system the defense attorney should argue that the confession ~~shoul~~ be [[Nullity of Procedure \| nullified]].		In common law/adversarial criminal justice systems the defense attorney should argue that the confession should be [[Exclusionary Rule \| exclusion]]. In a civil law / inquisitorial system the defense attorney should argue that the confession should be [[Nullity of Procedure \| nullified]].

	In either case, failure to get a confession excluded from consideration at trial does not prevent the defense attorney from arguing that the confession is inherently unreliable and that the factfinder should consider the circumstances surrounding the interrogation when deliberating at the conclusion of the trial.		In either case, failure to get a confession excluded from consideration at trial does not prevent the defense attorney from arguing that the confession is inherently unreliable and that the factfinder should consider the circumstances surrounding the interrogation when deliberating at the conclusion of the trial.
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	==Kenya==		==Kenya==

	In Kenya, if a confession is voluntarily made, it may be admitted into evidence. Section 25 of the Evidence Act defines a confession as ‘words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an ~~offence~~." To protect the accused against any adverse outcome due to forced confessions, the law provides safeguards to ensure that confessions are made willfully and with full knowledge that the exercise of the right to remain silent does not amount to an admission of guilt.		In Kenya, if a confession is voluntarily made, it may be admitted into evidence. Section 25 of the Evidence Act defines a confession as ‘words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offense." To protect the accused against any adverse outcome due to forced confessions, the law provides safeguards to ensure that confessions are made willfully and with full knowledge that the exercise of the right to remain silent does not amount to an admission of guilt.

	==Germany==		==Germany==

Ibjadmin at 08:53, 6 June 2011

2011-06-06T08:53:13Z

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	=Notes=		=Notes=
	<references/>		<references/>
			{{Languages\|Confessions}}