Admissibility of confessions in criminal trials
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Date
1993
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Abstract
A confession may be defined as an out-of-court statement by a
suspect in which he or she voluntarily, knowingly and
intelligently acknowledges that he or she committed or
participated in the commission of a crime and which makes it
clear that there is no defence in law that would make his or
her conduct lawful. This is what the appeal court meant in
the Becker case when it held that a confession must be
defined as an unequivocal admission of guilt by an accused
person. There is a need that the stringent requirements for
the admissibility of confessions should also govern the
admissibility of admissions and exculpatory statements.
Confessions and admissions remain proper elements in law
enforcement and it has been shown in some reported decisions
that some criminal cases are capable of solution only by
means of confessions and/or admissions.
There are three phases that are important in determining
whether a confession is admissible in evidence. The first
phase is when a suspect is interrogated by the police. This
is a phase of our predominantly accusatorial system of
criminal procedure. There is a need to protect a suspect
against untoward conduct by the police during his interrogation.
Our new constitution has incorporated a Bill of Rights,
and our common law also protects most of the interests which
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are protected by the Bill of Rights (e.g. a suspect is
presumed innocent until proved guilty, the privilege against
self-incrimination forms part of our law and the right to
legal representation is recognized). The second phase is when
a confession is recorded either by a magistrate or a justice
of the peace. This is a crucial stage because the "YES" and
"NO" answers of a suspect on a roneod confession form and
additional questions put to him may satisfy a court of law
that a confession was made freely and voluntarily be an
accused in his sound and sober senses and without having been
unduly influenced thereto. This procedure is unique to our
law. The third phase is when the admissibility of a
confession is challenged in court in a trial within a trial.
If a suspect is undefended, he may not adequately exercise
his procedural rights. But, if he or she made a confession to
a magistrate, a suspect is presumed to have acted freely and
voluntarily etc. and a confession is admitted in evidence on
its mere production if his or her name corresponds to the
name of the person who has signed the confession and if it
appears on the document containing the confession that it was
made freely and voluntarily and without his or her having
been unduly influenced thereto.
It is recommended that before an unrepresented suspect is
cross-examined on the contents of his confession where he or
she has made this possible, he or she should be warned. If
after explaining to him or her what cross-examination means
the suspect does not understand, a legal representative
should be appointed to assist him or her. It is recommended
that evidence of a psychologist who has been nominated by an
accused should be led where the latter is charged with a
serious crime; that police interrogation be reformed in such
a way that no one, whether suspected of committing high
treason or any other serious crime, shall be subjected to
mental torture; physical torture, assault or inhuman or
degrading treatment; that the warning given to a suspect
prior to the recording of his confession be reformed as
discussed in this thesis; that the shift of onus from the
state to an accused under certain circumstances be abolished;
that the list of persons who may record a confession be
increased as recommended in this thesis and that fundamental
fairness during the interrogation of a suspect and during the
recording of his confession be adopted as a new criterium for
the admissibility of confessions.
Description
A thesis submitted to the Faculty of Law in partial fulfillment of the requirements of the degree of Doctor Legum in the Department of Criminal and Procedural Law at the University of Zululand, 1993.
Keywords
Confession (Law)