MeghnaKhetrapal, 3rd Year Student of Law, National Law Institute University,Bhopal
“Confession includes a statement made by a person suspected or charged with a crime, that he (or she) did, in fact, commit that crime.” – Duhaimes Criminal LawDictionary
Owing to the fallibility if semi synthetic macrocosms, the tentative insight that constabulary might incur a delusive admission of misdeeds or fractures in one’s character which in the natural state of experiences he did not commit is plunged into the approximation of false confession ((Paul G. Cassell, The guilty and the “innocent’, Harvard Journal of Law and Public Policy. 535-537(1999).)).
Confessions were unremittingly reserved as manifests in former English common-law trials, even when over refinement were used to enkindle them. Authorities who were able to estimate worth or quality began intromission of only those confessions which it considered authentic, not until the mid–eighteenthcentury.
More often than not when the defendant’s case goes to trial, the jury reckons the confession as more probative of the defendant’s remorse than any other family of evidence, peculiarly when the cases cleave to being high profile ones, and pre media trial has taken place ((Miller GR Boster, Three images of the trial: their implications for psychological research, in Psychology in the Legal Process. F.J. New York. 19–38(1977).)). False confessions have a major potential to lead to the wrongful conviction of the destitute. Leo and Ofshe ((Leo R, Ofshe R, The truth about false confessions and advocacy scholarship, 37 Crim Law Bull.293–370,(2001).)), in their study found that 73 percent of all false confessors whose cases extended to trialwerefallaciouslyconvicted ((Leo R, Ofshe R, The consequences of false confessions: deprivations of liberty and miscarriages of justice in the age of psychological interrogation. J Crim Law 88. 429–96(1998).)).Thisnumbermountedto81percentinthestudyof125
FalseconfessionsconductedbyDrizinandLeoinMassachusetts ((Leo and Ofshe, supra note 3 at298)).ThestudiesbyLeoandOfshe and Drizin and Leo analysis depict that these, often indoctrinated jurors plainly miscarry to brush aside false-confession evidence befittingly, even when the defendant’s unsubstantiated confession was aroused by coercive techniques and another dimension potently affirms his impeccant lineament. Hence on this termination it can be inferred that the false-confession evidence is staggeringly detrimental to the fortune of any unacquainted defendant. On careful observation it can be said that no scientific statistics can be observed since no organization be it governmental or private record this information. Secondly, it is not usually possible to get the primary case materials which include police reports and electronicrecordings of the interrogation essential to determine the validity of the confession. Finally, it is difficult to ascertain the truth ((JOHNAHUMPREYANDSAUNDRADWESTERVELT,WRONGLYCONVICTED:PERSPECTIVESONFAILED36-37 (2005).)).This can be grounded by the followingquote:
“Systems do not have safeguards that will prevent the jury from giving disproportionate weight to such confessions” –Welsh White ((Welsh S White, Waning Protections : Police Interrogation Practices After Dickerson ( English ), 101-105 (2003).)).
TYPES OF FALSECONFESSIONS
Considering nations all over the world, we come across many exclusionary rules, which enhance the criminal law system with every constitutions goal to make it as transparent and equitable as possible. Single premises and insulation of the adversary system of jurisprudence generally form a part of the exclusionary rubrics. Though, one kind that is repeatedly unheeded for is the false testimonies. Such false testimony, when undetected can only resultinafraudtothesociety:convictionoftheinnocentandfreedomfortheguilty ((“There has been no careful collection of the statistics of untrue confessions, nor has any great number of instances ever been loosely reported, but enough have been verified to fortify the conclusion, based on ordinary observation of human conduct, that under certain stresses a person, especially one of defective mentality or peculiar temperament, may falsely acknowledge guilt.” 3 WIGMORE, EVIDENCE § 822 (3ded.1940).)). A justifiableconcern is articulated over the plight of the innocent individual incarcerated for perpetrating a crime. Along with the innocent person earmarked as guilty, the society also suffers the brunt of the transgressions through more crimes from the actualperpetrator.
In attempts to resolve this progeny, there have been numerous safeguards provided by the law against confessions coming from involuntary stimuli, but the problem remains when an innocent, voluntarily commits to a crime. This issue fetches concerns and brings form to the first type of False Confessioni.e.
1) Voluntary falseconfessions
This state of affairs ensues when an individual questioned, insincerely admits to a crime due to personal reasons without being compelled to do so. Conceivable purposes of doing so can be:
To relieve feelings of guilt about a real or envisaged transgression from the past, most likely to befall for people in despair ((GUDJONSSON, G.H(2003), ‘THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS’, A HANDBOOK, CHICHESTER, JOHN WILEY AND SONS(2003).)).
- To pre-empt supplementary investigation into a more grave act ((Shepherd, J.W Ellis, Becoming skilled: London, Law and Society)).
- To protect a significant other
- To gain notoriety, a pathological requirement to become infamous and enhance ones self-esteem ((C Ronalf Huff, Martin Killias, International Perspectives on Miscarriage of Justice,1996)).
Those who are unable to distinguish fact from fantasy (these are largely the patients of schizophrenia)
The quintessential illustration of this type of confession is the ‘Lindbergh Kidnapping Case’. Charles Lindbergh Jr. was abducted and later found in a decomposed form after the ransom hadbeenpaid.Investigationhadgonefortwoandahalfyearsandone;BrunoRichard
Hauptmann was incarcerated for the alleged murder. This case gained a lot of momentum since after the incarceration, it was found that the accused was not guilty and it may have been his business associate. Then why did the accused not raise any plea of his innocence? Was justice really denied? A lot of fallaciously given death penalties are brought into question eventoday ((John Hohenberg, ‘ Flares Gleam as 10000 Cheer Death Verdict’,The New York Evening Journal, 80-87, 1935)).
2) Coerced Compliant False Confessions
The second type of false confession is the Coerced Compliant False Confessions. This confession results from the use of physical, psychological or environmental pressures on the accused to extract a confession. In such cases, the suspect may confess to something to achieve an immediate objective. In the case of confessions with no specious psychological basis, the confession may seek no personal benefit but a plan lies in the individuals mind and a specific end is envisaged ((Borchard, Convicting the Innocent, 1932 or Burb, Narrative of the Witchcraft cases1648-1706)). Many times, a confession is also made seeking judicial leniency. A suspect perceives that aroused public opinion and accusatory finger towards him, which confirms his guilt, will lead to great possibilities of his conviction. Thus to get less chastisement than the maximum, owns up to a guilt which he might not havedone ((Supra 11, Boora Brothers Case, pg.15)).
It is generally by interviewees who want to end a stressful interrogation while they hold the belief of their innocence owing to which, retraction of such confessions is done once they are out of the nerve-wracking radar. The psychic of the suspect is such that they believe that their false confession will be caught through the system of criminal justice and they could be later relieved from all accusations ((Supra9)). Individuals who are particularly susceptible to compliance are vulnerable to this type of confession (for e.g. the people with learningdisabilities.)
3) Coerced Internalized False Confessions
The next type of false confession is the Coerced Internalized False Confessions. These are when the suspect has been subjected to intense police interrogative procedures and he starts to internalize that he is guilty of the crime accused for. Recently, the scientific understanding has progressed to a point that it can be stated with certainty that untrue confessions maybe of psychological origin. Many leading authorities have stated theories of hypnosis, suggestion and pressure as the reason ((Hudson, The Evolution of the Soul, 227, 4thed.,1912)).An individual, for sub marginal mentality may, after entertaining a fanciful notion in his mind, ultimately becomes convinced of its verity. The idea of the crime becomes deeply impressed on the mind that he subjugates its connotation tofacts.
People who are more susceptible to such confessionsare:
- Tired and confused byinterrogation
- Highly suggestibleindividuals
- Individuals exposed to false information by theinterrogators.
A landmark case in this field is The Seattle Police Officer Case. Paul Ingram confessed of sexually assaulting his two daughters and killing infants in satanic rituals. Althoughthere was no evidence of any such crime but after he went through 23 interrogations, several sessions of hypnotism, he confessed to the crime believing all of it to be true ((SOLOMONM.FULERO&LAWRENCESWRIGHTMAN, FORENSIC PSYCHOLOGY 246 (3DED.2009).)). A police psychologist who convinced him that sex offenders generally tend to forget what they have donealsoprovidedhimwithgraphicdetailsofsuchacrime.Afterbeingaddressedwiththe
Punishment of 20 years of imprisonment, he realized, that he had not committed the crime. The suspect’s memory in the above case was altered in the process, although this alteration was not permanent ((Richard J. Ofshe, The social psychology of Police Interrogation: The theory and classification of true and false confessions, Study in law, politics and Society ( Jai Press),1997)). Kassin (1997) highlights the case of Peter Reilly ((RICHARDFIRSTMAN &JAYSALPETER,ACRIMINALINJUSTICE:ATRUECRIME,AFALSECONFESSION,AND THE FIGHT TO FREE MARTY TANKLEFF 290(2008).)), aged 18 years who, after being questioned for several hours and being told he had failed an infallible lie detector test, confessed to the murder of his mother. He went through a process of denial, confusion, and self-accusation leading to writing his confession on paper. He believed he had murdered his mother while independent evidence revealed the contrary.
4) Coerced Reactive False Confessions
McCann describes a fourth kind of confession, The Coerced Reactive False Confession’. In such a case, the individual is pressurized or induced to confess by some person other than the law enforcement. The pressure may come from an abusive husband who threatens to rapeandassault his wife if she does not confess to a crime, which she isn’t guilty of or from the member of a gang who threatens to kill his family if he does not take the responsibility ((Mark Hansen , ‘ Untrue Confessions’, ABA journal, American Bar Association, 85, 51-53(1999).)).
Another group of people who are receptive to confessions are the developmentally handicapped. Ofshe says that ‘Mentally retarded people get through life by being accommodating when there is a disagreement’. They have learned that they are often wrong but this is the only way they seek endurance. The confession from a developmentally handicapped is like ‘taking candy for a baby’ ((Supra 15, Richard Ofshe, University of California, Berkley,1997)).
CAUSES OF FALSECONFESSIONS
An assortment of causes occur which contribute to the concept of false confessions like misunderstanding the situation, threat of a harsh sentence, fear of violence, actual infliction of harm, unawareness of the law, mental stultification, diminished capacity, intoxication by drugs or alcohol, coercion and duress. Also, those confessions which are obtained from puerile or juveniles believing that as soon as the interrogation is complete they can return home are included. This was observed in the case of a mentally ill Eddie Joey Lloyd when he was charged for murder of a 16 year old girl in Detroit, where he made the confession under a false belief enforced upon him by the police. Apart from that, confessors may irrespective of their age or capacity make a false confession merely due to the length of the interrogation and a desire to be released assuming that they would later prove their sinlessness. In that light, the Detroit Police officials in 2006 made a rule that, all interrogations carrying a death sentence would be video recorded for future reference ((CURTR.BARTOL&ANNEM.BARTOL,INTRODUCTIONTOFORENSICPSYCHOLOGY:RESEARCHAND
Also, there are some major errors that are committed by the police leading to this lamentable happening whichinclude
The Misclassification Error
The commencement of this misapprehension is found to exist when the police in a derelict manner conclude that the person is guilty ((KRISTINJ.ANDERSON,BENIGN BIGOTRY:THE PSYCHOLOGY OF SUBTLE PREJUDICE 108 (2010).)).
“The path to false confession begins, as it must, when police target an innocent suspect…. Once specific suspects are targeted, police interviews and interrogations are thereafter guided by the presumption of guilt.”- Davis and Leo ((THOMAS M. HOLTGRAVES, THE OXFORD HANDBOOK OF LANGUAGE AND SOCIAL PSYCHOLOGY 451(2014).)).
Hence this is the primary and most common error that the police make. This occurs due to a number of reasons like training sessions of the police that are cavalier in nature and they cannot distinguish between right and wrong ((Hartwig M, Granhag PA, Stromwall L, Police officers’ lie detection accuracy: interrogating freely vs. observing video, 429–56(2004).)). Moreover indicators like body language which includes fidgeting while talking, moving backwards, touching the nose etc may not be the most accurate scientific indicators ((Leo R, Police Interrogation and American Justice, Harvard L.J., 215-218 (2008).)). Hence Kassin notes that such indicators may be true to 45- 60 percent ((S Kassin, G Gudjonsson, The psychology of confessions: a review of the literature and issues, 5 Psychology Science and Public Interest (35–67) 2004)).
The Coercion Error
After subjecting the suspect to wrongful accusations, the police further reinforce their blunders by subjecting the victims to an interrogation which is majorly accusatorial in nature. A confession plays a major role in situations where there is no evidence available and hence through this interrogation, evidence is aimed at being extracted. It is hence not surprising that such pattern of behavior is most commonly observed in cases that are more high profile. Moreover, psychologically coercive techniques play a major role. These techniques can be determined in two ways which are either inherently fierce or may include an element of third degree excruciate. However with the light of human rights in the horizon of law, this third degree torment has to a great extent been set off. The victim is constantly viewed in luminosity of weakness and helplessness ensuring to him psychologically that his guilt has already been launched and accepted by the institutional authorities.
Peter Neufeld, the co-founder of the Innocence Project said, “Quite simply, what Cooperstown is to baseball, Chicago is to false confessions ((ROBERT MBOHM, DEATHQUEST: AN INTRODUCTION TO THE THEORY AND PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES 245-247 (4thed.2012).)).”
Interrogations were usually harsh, especially in geographies like Chicago as compared to the rest of the world where the police tend to be least humane and the result was that the victim was left with no choice but to give only affirmative answers in the interrogation in synchronization with their thought process. It was observed in another landmark case the central Park Jogger’s case that in April 1989, in New York City, violence, robbery and theft was everywhere so much so that people were afraid of stepping out of their houses. This case is a landmark one because the victim was raped, beaten up brutally and admitted to the hospital. Five black teenager boys were suspected for the same. Some people say that race was an essential contributor to this insane growth of violence. The whole idea of the black boys having done this to the white girl, matches the prejudice in their head. None of them admitted to having sexual intercourse with the girl. Basically Reyes was the real culprit and though his modus operandi matched initially also during the interrogation, it was largely put aside. The question as to why the boys were convicted still has a number of loop holes toit.
A huge reason as to why Reyes’s innocence was presumed was because a confession by a person is said to be of great judicial weight age in such decisions since it is considered unequivocal evidence. According to McCormick’s treaties on evidence the power of a confession is such that it completely engulfs all other possible evidences. Hence the trial ends up being of no consequence at all. Hence to preserve the sanctity of such judicial proceedings, the emphasis on confessions should be reduced a great deal.
The Contamination Error
Often after the confession, an elaborated account follows it ordinarily referred to as the post admission narrative ((LEO AND OFSHE , Supra note 4429-466)). This is what metamorphosis an “I did it” assertion to an amply constituted confession. Hence this part is an essential element of proof of guilt that a person goes through. Police detectives understand the importance of the post admission phase of interrogation. They employ it to mould and more often than not even yield the suspect’s tale. Another illustration, in false-confession cases, interrogators havebeen
Participating at devising, hinting, or extracting an account of the suspect’s goal; surely, they often employ backdrop-founded incentives as a technique of ascribing a motive to the suspect, by and large one that belittling his blameworthiness, one that the he concords to and then accords, even if it is altogether imprecise. In the case of Lowery v. County of Riley, ((738 F. Supp. 2d1159))who was incriminated and eventually pronounced of raping an elderly woman and was vindicated by DNA evidence many years later. They tricked him into believing that if he admits to his guilt they would get his counseling done as his wife was having an extra marital affair. Plus, interrogators advocate the defendant to dimension the confession to a conscience act and recommend him to express compunction about committing the crime. They may provide lifelike scene particulars that seem to substantiate the suspect’s guilt and thus reassert his culpability. The innocent suspect’s post accession narrative should therefore be satiated with erroneousness when he reacts to interrogations for which the resolutions cannot leisurely be approximated, unless, the responses are entailed, indicated, or externally fed to the suspect, which, in fact, occurs, whether consciously or unconsciously, in many false-confession cases ((R Leo, S Drizin, P Neufeld, Bringing reliability back: false confessions and legal safeguards in the twenty- first century, Wisterley Law Review, 479–539 (2006).)). A solution would be to trace back every step of the interrogation through possibly video recording and then delineate from it these “correct answers”. However in this step also, one should make sure that the whole of the interrogation and not a part of it is recorded. Such contamination completes the trilogy of errors in theconfession.
LEGISLATIIVE PROVISIONS DEALING WITH FALSE CONFESSIONS
Section 24 of the Indian Evidence Act states “A convention made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority.” One that is made in the absence of such inducement, threat or promise however is admissible as evidence against the accused as is given in Section 28. It is held to be reliable only in cases where it is voluntary, truthful and beyond reproach which is an efficient piece of advice to establish the guilt of the person and may not necessarily be referred to the physical evidence that is presented. This practice should be altered to some extent and the physical evidence must be given weightage simply because it helps in eliminating the practical loopholes. Moreover it is in itself weak evidence and should be admissible only when there is complicity between the other pieces of evidence so available. Hence extra judicial evidence cannot be the sole criteria for deciding guilt.
Retracted extra judicial confession can be evidence only if it is backed by independent evidence. Section 25 states that the prosecution cannot bring solely the confession before a police officer as piece of evidence of the guilt of the defendant. It can be administered against him only if it is made by the accused in the immediate presence of a magistrate, is the crux of Section 26. Moreover only the immediate information responsible for the commission of the crime would qualify as evidence in a court of law, as highlighted in Section 27. A fine line is drawn to differentiate by Section 29 which says that in certain situations obtaining such a confession would be valid, which includes one being made under a promise of secrecy, or because of a mere deception that is practiced upon him or because he was drunk or one which he would otherwise have not given if he had known would be exercised as a piece of evidence against him. In addition, if the confession by one person can be held jointly against more than one person then in that case such confession must be taken by the court as against such other person as well as is against the person who makesit.
Confession laws in India hence exist and they may have some loopholes especially when they are used in the practical field. This is because sometimes in practicality, external factors may influence extra judicial confessions to a great extent example political pressures etc. Hence violation of human rights should be taken seriously and also video recording of such confessions should be made mandatory in India to avoid violation of rule of law and principles of natural justice. The court should after all these factors in mind determine the admissibility of the saidevidence.
Section 164 of the CrPC connotes to the recording of confessions and statements. This section empowers any metropolitan and judicial magistrate whether or not he has jurisdiction in the case to record any confession or statement made by a person in the course of investigation by the police at anytime afterwards but before the commencement of the trial or any kind ofinquiry.
The Supreme Court enunciated the following principles in regard with Sec 164 of CrPC in the case Rabindra Kumar Pal alias Dara Singh v Republic of India (( 2 SCC 490)).
The provisions of Section 164 CrPC must be complied with, not only in form but also in essence.
Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. A Magistrate should ask the accused as to why he wants to make a statement, which surely shall go against his interest in the trial. The maker should be granted sufficient time for reflection.
He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessionalstatement.
A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
Non-compliance of Section 164 CrPC goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy ofcredence.
During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. At the time of recording the statement of the accused, no police or police official shall be present in the opencourt.
Confession of a co-accused is a weak type of evidence. Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement. This section basically was made since the value of confessions is well understood all over. One false confession can hamper justice in so many ways. How confessions should be recorded is what is laid down in this section so that the transparency of such confessions remains intact and the confession is unaltered and notcoerced.
Major revolutions can be brought to the issue by the use of DNA testing but its drawback is it’s unavailable in most cases. Also, the nourished media attention ensures that the plight of the people is not overlooked, example in the Indian context the awareness created by the misuse of AFSPA and POTA areremarkable.
Moreover, there are four major ways in which the defence of false confession can be established which include situations when it can be proved that the crime did not take place at all (e.g., the there was no theft but misallocation instead) or if the defendant could not be in the physical demarcation to commit a crime. Alternatively, if the true perpetrator of a crime is recognized and he can be held guilty by virtue of evidencesetc.
Additionally, false confessions can be curbed also when children, teenagers, and other incapable people for example ones with mental deficiencies are not be questioned without a guardian or representative to reduce the psychological pressure. Example in the Central Park Joggers’ case no one was present from the families of the boys ((Sarah Burns, ‘ The Central Park Five : The Untold story behind New York citys most infamous crimes’, Knopf Double Day Publishing Group,(2012).)).
Also as mentioned earlier all these interrogations must be videotaped wholly so that they are open to interpretation by thejury.
All statements so made should be seen in light of the evidence that is admissible example body hair, fingerprints, semen etc. They should also be given substantial importance in accordance with the laws of theland.
Interrogations should be bound by limitations which include time limitations. Basically any form of third degree treatment or for that matter ‘Psychologically Induced’ techniques should not be the core reason of deducing and enforcing a confession. Interrogation beyond three or four hours often turns out to be coercive in nature along with the subjects feeling restless, helpless and also extremely bewildered and fallible. Also prosecutors should also be kept a check upon, just like the defence attorney’s are. In most courtrooms, the idea of a false prosecution is secondary to the idea of a guilty defence. Hence this mentality must be duly stabilized.
In most courtrooms, the idea of a false prosecution is secondary to the idea of a guilty defence. Hence this mentality must be duly stabilized and with this image at the back of our cognition we should aim at smothering it for the ameliorate delivery of justice which our constitution imbibes in itsamplitude.