Confession Statements: A Quick Look at the Law and Practice

Source: HH Malcolm Bedzrah

INTRODUCTION

One of the most jealously guarded rights that is guaranteed to an accused person is the right against self-incrimination. It is one of the first things every accused person hears about immediately he is arrested. Even when the case ends up in court, an accused person cannot be compelled, even through a subpoena or court order, to testify and be a witness in his own trial.

In Ghana, this right is guaranteed to any accused person in legislation. Section 97 of the Evidence Act, 1975, Act 323 states it in the following terms: “In any proceedings a person has a privilege to refuse to disclose any matter or to produce any object or writing that will incriminate him.” It is as a result of this right that a person who begins to make any statement which is considered incriminatory in law should, as a matter of course, be reminded that he has the right to not say anything. A statement, admitting to the commission of a criminal offence falls under this right and is protected under the Evidence Act. This article seeks to discuss the law applicable to the taking and tendering of confession statements in the Ghanaian legal system.

Legal Definition

A confession is a voluntary admission, declaration or acknowledgement (made orally or in writing) by one who has committed a felony or a misdemeanour that, he is the one who committed the crime or participated in its commission. Sir James Fitzjames Stephen, an English lawyer, judge, writer, and philosopher in his “Digest of the law of Evidence”5th Edition London: Macmillan and Co.and New York 1887 defines confession as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”In the celebrated case of Frimpong vrs The Republic (J3/5/2010) [2012] GHASC 3 (18 January 2012); the court describes a confession statement in the following terms “In those statements exhibits E and E I, the appellant opened his mouth very loosely as if he was suffering from a mouth diarrhoea. This is in essence what is called a confession statement, where the statement admits of the declarant’s involvement in the commissioning of the offence”.

In all criminal procedure, the importance of a confession statement cannot be overstated. Its sanctity lies in the principle of “Optimum habemus testem confitentem reun” which means that the very best witness is an accused person who confesses to his own guilt. Once a statement admitting to a criminal offence is admitted, then unless the accused has a defence in law, a conviction is guaranteed. This is perhaps the reason for the stringent adherence to the application of the principle of voluntariness in obtaining such a statement.

The applicable law is found in Section 120 of the Evidence Act, 1975, Act 323. It is almost impossible to proceed to discuss any aspect of the subject matter without stating fully the said Section 120. It is provided in Sections 120, sub-sections (1) (a) (b) (c) and 2 (a) & (b) 3 (a) and (b) and 4 (a) (b) (c) as follows:

(1) “In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which (a) constitutes,
(b) forms an essential part of, or
(c) taken together with other information already disclosed by the accused is a basis for an inference of,
the commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily.
(2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who
(a) can understand the language spoken by the accused,
(c) can read and understand the language in which the statement is made,
and where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused.
(3) Where the accused is blind or illiterate, the independent witness
(a) shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused, and
(b) shall certify in writing on the statement that the independent witness had so read over and explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked.
(4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if
(a) the accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or
(b) the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or
(c) the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or person who has direct interest in the outcome of the action, or a person acting at the request or direction of a public officer.

In discussing the law, I shall first highlight the aspect of voluntariness, proceed to discuss the place and role of a witness before opining a conclusion.

VOLUNTARINESS

Section 120 is captured under PART VIII of the Evidence Act which deals with the broad topic of Hearsay. Generally a hearsay statement is inadmissible when offered in proof of a matter in court unless it enjoys an exception to the general rule under section 117 of the Evidence Act. One of such exceptions is the tendering of a confession statement by the Republic. The said statement is admissible as long as it is made voluntarily. In other words if a confession was not made voluntarily, then it is inadmissible on the basis of hearsay.

Subsections 5 (a),(b) and (c) of Section 120 discuss instances in which a confession will be considered as given involuntarily. The instances are not exhaustive and therefore other instances the Republic might seek to rely on but which are not specifically captured under the section may be interpreted noscitur-a-sociis with the provisions herein.

INSTANCES OF INVOLUNTARY CONFESSIONS:

In discussing subsection 5, the authors of the Commentary on the Evidence Decree explain instances of involuntary confession to include mental illness, automatism, severe intoxication and fatigue, or other loss of conscious understanding of events. The obvious instances of coercion by torture, beating, deprivation of sleep and other physical suffering are also mentioned, including even the threat of same. Involuntary confession also includes any other threat or promise which is likely to cause the accused to make a false confession.

The reason for these stringent guides in obtaining a confession is not far fetched. Many people have been condemned to prison and in some cases to death based on a false confession. This is so rampant that in the year 2012 the National Registry of Exonerations was co-founded with the Center on Wrongful Convictions at Northwestern University School of Law (USA), to provide detailed information about known exonerations in the United States since 1989. As of February 6, 2020, the Registry documented 2,551 known exonerations in the United States since 1989. Perhaps a body analogous to that is very much recommendable to our own legal system. According to the said National Registry of Exonerations, false confessions have contributed to at least 336 wrongful convictions, representing 4,409 years of freedom lost. According to the Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions for the consideration of the House of Delegates, April 4 2009 at page 104, “false confessions contribute to almost 25% of the known cases of wrongful convictions’. As the Bronx District Attorney put it in a comment in the case of People v. Burton, Ind. No. 7009/1989, “it is not hard to induce a false confession.’ In People v. Bedessie, 19 N.Y.3d 147, 156 (2012) the court in its judgment stated that “the phenomenon of false confessions is genuine and has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom.In Ghana the trend is not different. Pwamang JSC in the case of Ekow Russel v The Republic (2017-2020) 1 SCGLR 469 stated that “I had the occasion to elaborate on the evidential value of confessions made against other accused persons. This is what I stated: “It is trite criminal law that a confession made by an accused person which is admitted in evidence is evidence against him. It is however not evidence against any other person implicated in it unless it is made in the presence of that person and he acknowledges the incriminating parts so as to make them, in effect, his own”

That exercise became necessary because the Appellant in that case was earlier convicted by a High Court and the conviction upheld by the Court of appeal, both wrongly, on the back of a confession statement made by someone other than the appellant. The Courts of Ghana have over the years upheld the sacrosanct strictness of these rules. In State v Banful [1965] GLR 433 the confession was rejected on the basis that it was given with the threat and promise that since the accused was young, a confession to the murder was likely to be treated with favor by the police and the court. The court reasoned that this was still operating on his mind when he gave the confession. In Republic v. Agyiri [1982-83] GLR 251, the confession made by the accused was rejected when it was shown that the accused was asked to sign the confession statement presented to him by the police without the opportunity to read through. In COP V. Sem [1962] 2 GLR 77, the confession was held to be inadmissible when it was revealed that the accused signed it after he was made to believe that it was the only way the case was going to be withdrawn. In concluding this part it will seem accurate to state that the courts have shown a certain propensity towards upholding the strict adherence to the rules. The alternative to such strictness could easily fill our correctional facilities with innocent persons.

INDEPENDENT WITNESS

As part of ensuring that a confession is made voluntarily, the law requires the presence of a witness when the accused person makes the statement. That witness is required by the rules to be independent. Obviously an independent witness is one who is independent of the case. Only it is a lot more complicated than that. A lot of ink has been spilled over the years in an attempt to erect a legal perimeter around the definition of the word “independent” as applied to the term. It is not the quest of this article to review them since the superior courts have already dealt with that in various judgements. The Supreme Court made another attempt in the case of Ekow Russel v. The Republic and defined the term independent witness as used in s.120 of NRCD 323 to include “any person who qualifies to be a competent witness and has no direct personal interest in the case in issue”. In clearing the confusions surrounding the use of persons in authority and personnel of the security agencies as witnesses, the Court went on to state that “such an independent person must be a person who is disinterested in the matter under investigation. At the official level, the independent person should not be directly under the control and influence of the person investigating the crime nor himself be part of the investigation team. In summary, any person - be it a policeman, a soldier, a prison officer, other security investigating apparatus or civilian - who qualifies in terms of being disinterested in the matter under investigation, and is not under the direct control and influence of the person investigating the crime, or is not himself part of the investigation team and qualifies to be a competent witness may serve as an independent witness”.

THE WITNESS MUST UNDERSTAND THE LANGUAGE SPOKEN BY ACCUSED

It makes perfect sense to include this requirement as a further safeguard to the confession statement. Otherwise what is the person witnessing, if s/he doesn’t understand the language spoken by the accused? It is also acceptable that the said witness understands, can read and write the English language being the language of the Court, and also in order to render accurately the interpretation of the accused person’s speech into the English language.

CONFESSIONS MAY BE ORAL OR WRITTEN AND MAY BE DOCUMENTED ON VIDEO OR AUDIO DEVICES

It seems the Act anticipates that some confessions can only be made orally. In that case, only the person who heard them can testify to what was said. It will seem also that such an oral statement may be captured and documented on any audio or video device now available or yet to be invented. In the case of documenting the statement on an audio or video device, it will be acceptable for the voice of the witness in the case of the audio or in the case of video, his face and voice appearing and clearly stating that he is present and is a witness to what is being documented.

CERTIFICATION WHERE THE STATEMENT IS IN WRITING

The law provides for extra measures in Subsection 3 in the event that the statement is captured in writing. In this instance, the witness is required to certify in writing that the statement was made voluntarily, that it was made in his presence and that the contents were fully understood by the accused.

JURAT WHERE ACCUSED IS BLIND OR ILLITERATE

Carefully reading over the statement made and explaining the contents to the accused is required where the accused is blind or cannot read and write. The reason is the make sure that the accused, before signing or making his mark on the document appreciates what was put down on his behalf. In addition, the witness is required to put down in writing that s/he has read and explained the statement to the accused, that though blind or illiterate, the accused understood same before signing or making his mark. Failure to strictly comply with the above requirements renders the statement involuntary and therefore strips it of its immunity under the exceptions it would have otherwise enjoyed under the Hearsay rules. An objection on any of these basis is likely to be sustained.

CONCLUSION

It is a strict requirement of the Practice Directives in Criminal Trials that all documents relevant to the trial be disclosed to the accused. The aim is to promote a speedy trial. A confession statement is one of the fastest ways to make a case against the accused. It is therefore such an important rule of prudence to master and appreciate the rules of obtaining a watertight confession in total compliance with section 120. So that even at the stage of disclosures, the accused will be advised as to his chances at the trial and as to what plea he should take at the arraignment. Ghana is slowly but surely moving to the point where plea bargains will be used to cut down the load of cases going to trial. A good confession statement will serve as a good bargaining power for the Republic in making the accused consider taking an offer from the Republic and so avoid long trials. The backlogs of cases going to trial are likely to be reduced when the admissions to crimes are made in complete compliance with the rules.