Comparative Analysis of Confessional Procedure under the Indian and US Federal laws

  • Arnav Ghai
  • 11:00 AM, 23 Jun 2021

Abstract

This paper would focus on firstly what a confession is and how it is different than an admission. The two types of confession that can occur are the judicial and extra-judicial confession and the meaning of both of these types of confessions. The paper would elaborate on the admissibility of these confessions made by the accused both in the US and Indian system by giving details on the various statutes and case laws that affirm this position. After evaluating the probative values at multiple stages that are further dividing the stages under which extra-judicial confession can be made, the confession made to a police officer in his custody or outside custody; confessions made to a third person. The paper would also elaborate on the probative value of a confession made under a judge under various criminal trials. While analysing the probative values, different terms like who is a judge, a police officer, what comes under the definition of police custody would be explained both in the respective countries' context and the situation being upheld. After this, a comparison would be made concerning both the countries and what circumstances have led to this difference. The paper would end with a brief opinion on how these aspects are practically applied, the shortcomings, and what can be done.

Firstly, I would like to begin with a general understanding of what a confession is. Justice Stephen in his digest “Stephen’s Digest of the Law Of Evidence” defines a confession as “An admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime.”[1] Now to understand this definition it is pertinent to first know the meaning of the word admission which means the voluntary acknowledgment of any fact through the statement made by the person. So, a statement is a confession when it acknowledges any facts which leads to an offence being committed. A much detailed explanation of confession was given in the case of Pakala Narayan Swami[2] wherein it held that “a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.” The important ingredient of a confession is that it should include the admission or acknowledgement of guilt.

Now, I would now like to point out the key differences between the two. The key difference is that a confession needs to be voluntary to be relevant whereas an admission need not be voluntary for it to be relevant to the fact in issue. Although if the admission is not voluntary then its probative value may be affected. The second key difference is that an admission can be made by any person that may include a person who has not committed the particular offence. But a confession can only be made by a person who is himself the accused of the particular offence. The third key difference is that confessions can be used as a conclusive proof to prove the guilt of an accused. Whereas admission is not a substantive evidence and therefore is a corroboratory evidence and cannot lead to any conclusive proof. Although there are more differences which are region specific and which will be discussed when a detailed analysis of that particular region is done later in this paper.

Now, I would highlight the different types of confessions. They are broadly classified into two types namely- judicial confessions and extra judicial confessions. Judicial confessions are those confessions which are made in court of law by the accused. It is important to know that the statement would only be treated as a confession if it is made in the particular case and not as a witness in any other case. Extra judicial confessions are made outside the jurisdiction of any court of law. These are confessions made to a police officer inside or outside the police custody, also the magistrates who are not empowered to record confessions and recording confessions in their personal capacity. Judicial confessions are a substantive piece of evidence that is they themselves are a sufficient piece of evidence to convict a person. Whereas an extra judicial confession is not sufficient piece of evidence in singularity and is thus a corroborative evidence.

There are other types of confessions which are classified on the basis of their admissibility as valid evidence. These are voluntary, non- voluntary and a retracted confession. It is often seen that the extra judicial confessions have been extracted through coercion and therefore have very less probative value. So the confessions that are recorded through any threat, inducement, coercion or any promise are known as non- voluntary confessions. On the other hand the confessions that are free from this and are made by one’s own free will are known as voluntary confessions. The last one is a retracted confessions, which are generally those type of confessions that leave a lot of scope for the use of the judicial yardstick. This is a confession where the person making the confession retracts the previous confession that he had made and it is not necessary that it is retracted before the same authority where the earlier confession was made. Therefore, it is for the courts to decide looking at the circumstances whether to admit it or not.

The concept of confessions in India generally deals with criminal cases and there is no such provision that defines the term confessions. In the case of judicial confession, which can be a Section 164[3] statement that is made before the magistrate or any other confession made at any stage of trial is assumed to be admissible and true. The same principle is also laid down under Section 80[4] as well as Section 26[5]. The next thing that comes into question is that whether these confessions are violative of Article 20(3)[6] which gives the right to a person against self-incrimination. Although, this is not an issue for judicial confessions as the accused is never compelled and therefore judicial confession is regarded as a “valuable confession”[7].

 

The problem that arises in India with regards to confession is with the extra judicial confessions and their probative values as well as their admissibility. Extra judicial confessions primarily deal with confessions given to a police officer which play a major rule in the investigation. As we already know that the term confessions is not defined under the code. Although to understand extra judicial confessions made under the police officer it is first important to understand the general rule that any confession under the police officer is inadmissible as provided under Section 25[8]. However, certain provisions and case laws provide for  certain instances where such confessions are admissible. Before delving into those exact circumstances I would like to tell that these confessions even if admissible only have corroboratory value. Before referring to the following provisions I would like to define the ambit of certain terms with the help of case laws. Firstly, I would like to define the term police officer for which I would like to refer to the case of Barkat Ram[9] which laid down the test which was the primary function test and if the duty of the person is “detection and punishment for crime committed”. Then the person is categorized a police officer which was further held in the case of Raja Ram Jaiswal[10]. Secondly, I would like to refer to the term police custody which has now been expanded to constructive with the help of judicial interpretation. This was done in the famous case of Deoman Upadhyaya[11].

After, defining the scope of these terms it is now important to look at Section 27[12] which provides for the exception of the general rule by stating that the confession made by the accused to the police officer under police custody which relates to the discovery of a new fact a valid confession. The language of this section has left grey area and which the police then often found a loophole to extract confessions by falsely implicating the accused showing discovery of new facts. Also, it was a disputed issue that whether the ambit of this section also provided for confessions made to the police officer when the accused is not in police custody.  This was clarified by various landmark judgments like the case of Aghnoo Naghesia[13] which held that Section 27 only applies to police custody and otherwise it would be barred by Section 162[14]. This is a necessary ingredient as then there might be situations, for instance in the case where the accused is making a confession to some other person and the police officer listens to such communication and then this confession leads to discovery of a murder weapon then this would make the confession to be admissible if police custody is not an essential ingredient. Also, the scope of police custody is expanded by Deoman Upadhyaya[15] to constructive custody it covers enough ambit for the police to record the confessions which is now no longer confined to the four walls of the police station. Additionally, it is also held that Article 20(3)[16] safeguard is nowhere being violated here as the accused is no way being compelled to be a witness against himself and the discovery itself is not self-incriminating. These tests upholding the constitutional validity of this provision were laid down in the case of Kathi Kalu Oghad[17] and Selvi[18]. Therefore, the only exception when the confession made to the police officer is admissible is when the accused’s statement leads to a discovery of a new fact made to the police officer under his police custody.

Now I would like to refer to the protection that is offered to the accused if the confession is extracted from threat, inducement or promise and is rendered irrelevant by the protection given under provision Section 24[19]. Although if all of three above mentioned factors are removed then the confessions are rendered relevant as mentioned under Section 28[20]. These provisions are held valid upon the judicial satisfaction of the court on reasonable grounds. This was upheld by the court in the case of Veera Ibrahim[21].

The conditions for these provisions to apply are - that the statement is a confession, made by an accused person, while referring to the charge against the accused, to a person in authority but this authority ought to be real and not a conceived one as was held in the case of Satbir Singh[22]. Although, if it is established before the court that the confession was made voluntarily and that there was no threat, inducement or promise then Section 28[23] would be invoked as held in the case of Mohd. Ajmal Amir Kasab[24] which was the case that was in context of the Bombay terror attack.

The last type of confessions are confessions by co-accused and the conditions for their admissibility are enshrined under Section 30[25]. First of all the confession of a co-accused only has corroborative value and is not a substantive piece of evidence just like the extra judicial confessions as laid down in the case of Kalpnath Rai[26]. For a confession of a co-accused to be held valid for the other accused, the trial for all of them should be same and they should be tried for the same offence. Also it was held in the case of Periaswami Moopan re[27] that the co-accused making the confession should implicate himself fully. The reason behind this is that it leads to a strict liability for the other accused and that they do not have any chance for cross-examination. As per Ram Sarup singh[28] the very first case on this topic it was held that even if the co-accused dies Section 30 would still be applicable. Lastly, the confession would still be applicable even if retracted although its probative value would decrease and would have to rely on circumstantial evidence to prove such fact.[29]

Now, I would like to discuss the situation in United States. Until the 16th century there was no question arising about the admissibility of confessions and it was first time in the case of Brown v Mississippi[30] where the apex court held that conviction must be upheld while taking into consideration the due course of law and should not be based on “mob domination on its own state policy”. In short it must be in accordance with the fourteen amendment guaranteed by the US constitution. This soon became the position and which was held in various cases like in the case of White v Texas[31]. It was then held in the case of Lyons[32] that confessions only if made voluntary is admissible and the degree of voluntariness depends on the “mental freedom” that is given to the accused. Also, in Haley[33] they enlarged the scope of the fourteenth amendment and said that the accused has a right to meet his lawyer and secret custody and interrogating in private would render the confession to be one which is non-voluntary. Lastly the case of Mcnabb[34] held that putting the accused in illegal detention would prima facie render the confession involuntary. This rule although gives no discretion to the court to foresee whether the confession was involuntary or not. All the accused has to prove is that he was put into illegal detention.

The right to remain silent, right to be free from unreasonable search and the right to counsel are certain rights which are expressly provided for in the constitution and therefore it is pertinent that such rights are not violated which would render the confession involuntary. It is the duty of the police to collect evidence and bring a complaint to the prosecutor who then frames the appropriate charge and then a preliminary hearing takes place before the grand jury sits to check the maintainability of such a petition. In most cases warrant is required which is authorized by the court and in the rest of them the police are required to produce the arrestee before the magistrate within 48 hours of his arrest. Also to increase scrutiny at the investigation stage itself the police are also regulated by external oversight mechanisms like the citizen review boards. Also, the fact that US jurisprudence follows the fruit of the poisonous tree doctrine on illegally obtained evidence which means that as soon as it is rendered that certain evidence is obtained illegally they do not look at the confession at all and render it void ab initio. This was held in the case of Mapp v Ohio[35] that illegally obtained evidence is violative of both the 4th and 5th amendment.

Also most states take evidence from confession as a corroboratory piece of evidence and the other states requires preponderance of evidence for admission of confession. As there is an explicit right provided against self-incrimination it follows the legal maxim that “it is better than ten guilty persons escape, than that one innocent suffer.” Also the famous case of Miranda v Arizona[36] which provided for the Miranda rights and which extended the scope of the rights provided during custodial interrogations held that the accused is to be informed about his right to remain silent and it is only after he is told that might he still make a confession which may be held against him. Also, the fact that the prosecution cannot bring it to the notice to the court during trial that the accused chose to use his Miranda rights. The reason why such protections are provided to the accused in United States right from the investigating stage is that there is no such difference between a judicial confession and a non-judicial confession with respect to the probative value. Once it is proved that the extra judicial confession did not violate any of the above safeguards then the probative value that it holds is the same and can even lead to conviction in certain instances. Recently, certain state acts like the Texas Code of Criminal Procedure Article 38.22 and the Illinois Complied Statutes 5 require the audio and video recording of the custodial interrogations.

Despite all these safeguards that are being provided, the Supreme Court has tried to curtail the Miranda rights decision which it can in its original jurisdiction as it is not backed by any constitutional safeguard. It has limited the scope so that such rights are not misused and facts are found and thereby leading to convictions. These curtailments were related to the rights only extending to police custody, the use of right of waiver and also the Miranda’s exclusionary rule.

After understanding the position of confessions in both the countries it is clear that Extra judicial confessions under the Indian legal system are a weak evidence which has a low probative value as compared to judicial confessions. This is because they are suspicious in nature as these confessions are only valid in certain circumstances. Therefore, they can only be used as a corroboratory piece of evidence. In my opinion this is the correct stance as compared to the US system of confessions where they use the fruit of the poisonous tree doctrine and render the confessions that are illegally obtained void ab initio. I feel that this should not be the scenario, when the 4th, 5th and 14th amendment as well as the Miranda rights protection is given under the US legal system. These rights are often misused to hide away from the crime.

But this is not the case in India as such illegally obtained confessions give some direction in which the police can investigate the crime and therefore find some material evidence which can then be proved even without the confession or with its corroboration.

Also, in India the confession which leads to discovery of a new fact is only admissible when given to the police under the police custody. This is important as it the police who do the investigation and form the roots of any case and are the base which form the conviction. Also, the courts are present to use their judicial yardstick in circumstances where it seems that the confession is extracted through coercion then they can render the confession given by the accused as not a piece of evidence. This is a more balanced approach that I feel is taken although I believe that the recent system which the United States government has adopted about the audio or video recording of the confessions should be an additional safeguard that should be carried forward in India. This would ensure that the police are in fear that there is some accountability so the purpose of law would be fulfilled. Recently, the apex court in the case of Paramvir Singh Saini[37] has given directions to all states and union territories for installation of CCTV cameras in all police stations.

 

[1] James Fitzjames Stephen, A Digest of the Law of Evidence (Macmillian 1876)

[2] Pakala Narayana Swami v. King Emperor, (1938-39) 66 IA 66.

[3] The Code of Criminal Procedure, Section 164 (1898).

[4] Section 80, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).

[5] Section 26, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).

[6] INDIAN CONSITUTION, Article 20, Clause 3.

[7] State of Tamil Nadu v. Kutty, (2001) 6 SCC 550 (India).

[8] Section 25, The Indian Evidence Act  1872, Acts of Parliament, 1872 (India).

[9] State of Punjab v. Barkat Ram, (1962) 3 SCR 338 (India).

[10] Raja Ram Jaiswal v. State of Bihar, (1964) 2 SCR 752 (India).

[11] State of Up v. Deoman Upadhyay, (1961) 1 SCR 14 (India).

[12] Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).

[13] Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134 (India).

[14] The Code of Criminal Procedure, Section 162 (1898).

[15] Supra note 10.

[16] Supra note 5.

[17] State of Bombay v. Kathi Kalu Oghad (1962) 3 SCR 10 (India).

[18] Selvi v. State of Karnataka, (2010) 7 SCC 263 (India).

[19] Section 24, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).

[20] Section 28, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).

[21] Veera Ibrahim v. State of Maharashtra, (1976) 2 SCC 302 (India).

[22] Satbir Singh v. State of Punjab, (1977) 2 SCC 263 (India).

[23] Supra note 19.

[24] Mohd Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 (India).

[25] Section 30, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).

[26] Kalpnath Rai v. State, (1997) 8 SCC 732 (India).

[27] Periaswami Moopan, In re, (1930) SCC Online Mad 86.

[28] Ram Sarup Singh v. Emperor, (1936) SCC Online Cal 229.

[29] Haroon Haji Abdulla v. State of Maharashtra, (1968) 2 SCR 641 (India).

[30] Brown v. Mississippi, 297 U.S. 278, (1936).

[31] White v. Texas, 310 U.S. 530, (1940).

[32] Lyons v. Oklahoma, 322 U.S. 596, (1944).

[33] Haley v. Ohio, 332 U.S. 596, (1947).

[34] McNabb v. United States, 318 U.S. 332, (1942).

[35] Mapp v. Ohio, SCC Online US SC 136 (S.Ct. 1961).

[36] Miranda v. Arizona, 384 U.S. 436, (1966).

[37] Paramvir Singh Saini v. Baljit Singh, (2020) 7 SCC 397 (India).