Take your licks, but don’t talk

In Guyana, an unusually large proportion of felony prosecutors in the High Court in order to prove their case and get a conviction rely heavily on written or oral confessions obtained from the accused while he was in police custody. Anyone who reads the newspaper is aware of the reference to the procedure known as a ‘voir dire (trial within a trial)’, where the accused claims that his confession was not obtained voluntarily and should not be admitted into evidence, and the court has to determine that issue. It seems that, having remorsefully repented and unburdened himself to the sympathetic police officer, the accused is prone to subsequently disavow his confession in court to save his skin. This is not a new phenomenon. As long ago as 1884, Justice Straight of the Allahabad High Court observed: “It is incredible that the extraordinarily large number of confessions which come before us in the criminal cases disposed of by this court should have been voluntarily and freely made in every instance as represented… I may claim some knowledge and acquaintance with the ways and conduct of persons accused of crime, and I do not believe the ordinary inclination of their minds, which in this respect I take to be pretty much the same with humanity all the world over, is to make any admission of guilt.“

The question then arises: how does it come about that so many confessions are made by accused murderers and rapists while in police custody? The Innocence Project – a non-profit advocacy group in the USA – states on its website: “Sometimes law enforcement use harsh interrogation tactics with uncooperative suspects. But some police officers, convinced of a suspect’s guilt, occasionally use tactics so persuasive that an innocent person feels compelled to confess. Some suspects have confessed to avoid physical harm or discomfort. Others are told they will be convicted with or without a confession, and that their sentence will be more lenient if they confess. Some are told a confession is the only way to avoid the death penalty.”

More often than not, the reason a confession is given by a prisoner in police custody is not nearly so subtle. The Chicago Human Rights Group chronicles in that city during the 1970s and ’80s arrested persons were “tortured by electric-shock and suffocation with a plastic bag… while in custody at Area 2, and… numerous other African-American arrestees [were] tortured with electric shock and suffocation at Area 2… in order to obtain confessions.” Faced with that prospect, it is not surprising that a prisoner will confess – to anything he is accused of – whether or not he is in fact guilty.

There is no doubt that confessions obtained by duress, whether threats or actual torture, are not reliable. The Ameri-can Intelligence Agency was forced to conclude that it could not depend on evidence extracted from prisoners using its novel system of water boarding, where the prisoner was made to believe he was drowning. After the Askhardan terror attacks in India in 2002, the Indian Police Force obtained two independent confessions from two independent groups in two different provinces in that country. In the Rajiv Gandhi assassination case, 26 persons were charged. Seventeen of those charges were based on confessions. Nineteen of the 26 were acquitted. A new look clearly must be had at police custody confessions.

FalseConfessions.org, a public advocacy organization operating in the USA which investigates questionable convictions of persons by criminal courts and attempts to find evidence to exonerate those persons or to satisfactorily establish their guilt, cites the 2003 Warren‘s Report identifying false confessions as the leading cause of wrongful convictions in that country. Confessions are more frequently relied upon by prosecutors in more serious cases such as murder and rape. The Innocence Project records that, in about 25% of the cases where DNA has subsequently exonerated convicted murderers and rapists, their convictions were based on false confessions.

Of course, our Police Force in Guyana should not be compared to the blue uniforms of Chicago or the Khakis of India. Our Force is much more professional; their investigative department more modern and run by more qualified personnel than their American or Indian counterparts.

They don’t need to resort to torture to solve crimes. There is no need to be worried by the unexplained decision of Parliament to extend the timeframe for which a person can be arrested and held without a charge in the lock-ups in the clutches of the police to 72 hours. The innocuous words so often read in the newspapers that “a number of suspects are in police custody assisting in investigations” should not give cause for alarm, not even when one considers the right to be silent enjoyed by this suspect who is “assisting” the police and is in the lock-ups to facilitate this process.

In the United States, the Innocence Project has recommended specific changes in the practice of suspect interrogations in the US, including the mandatory electronic recording of interrogations, which has been shown to decrease the number of false confessions and increase the reliability of confessions as evidence. In India, Parliament had made confessions obtained by the police entirely inadmissible. Only the authorities can decide if this measure is necessary in Guyana for our own much more competent Police Force.

But until that decision is made, the unlikely event may occur that an arrested prisoner in Guyana has the misfortune to come across an over-exuberant member of the Police Force who is in his enthusiasm inclined to use more robust forms of persuasion to obtain a confession than is ordinarily conventional.

To that hapless prisoner, the Bar Association repeats the words of the late, highly esteemed, criminal lawyer, Peter Britton, SC, in lectures to law students and clients alike: Take your licks, but don’t talk.

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