45
to the confession in order to establish that the crime
actually occurred.240 This, known as the corpus delicti
rule, is designed to safeguard against convictions for
crimes that have not occurred; rather than to protect
against torture. Other US states, and the federal
courts, apply the corroboration rule which requires
the prosecution to bolster a confession with some
other evidence to establish the trustworthiness of the
confession. The US Supreme Court has described
this rule as ‘requir[ing] the Government to introduce
substantial evidence which would tend to establish the
trustworthiness of the statement’.241
V.2.2 Heightened judicial scrutiny
In a number of the countries studied, the law requires
heightened scrutiny of confession evidence by the
courts. In France, for example, a ‘confession like any
other evidence is left to [the] judge’s discretion’ and can be
the sole evidence of guilt if the judge is satisfied.242
Despite this, the admissibility of the confession must
be discussed in open trial243 and the judge has to
decide according to his or her ‘innermost conviction’.244
Similarly, in South Africa a confession can be the sole
evidence for a conviction but due diligence is
required by the court and reliance on the confession
must be ‘consciously considered and ruled upon’.245
V.2.3 Types of confession
Some countries distinguish between confessions
given at different stages in proceedings or to different
actors within the justice system. In Kenya,
confessions are treated as the gold standard in
evidence, but only when given to a judge, magistrate
or third party of the suspect’s choice (not to the
investigating officer).246 In Spain, confessions made
before a judge can be relied on as the sole evidence
of guilt, provided certain conditions are met,247 but
confessions made before a police officer (if not then
repeated during the trial) may not be the sole
evidence of guilt.248 A confession given in the pretrial phase must be supported by other evidence.249
In some jurisdictions, confessions given in court are
regarded as the ‘gold-standard’ because it is thought
that they are not subject to the kind of coercion or
pressure a defendant may be subjected to when
giving a confession in, for example, a police station.
However, this does not take into account potential
continued coercion placed on the defendant that can
come from a range of factors, such as: a defendant
who will be delivered back into the custody of his
torturers; the psychological impact torture may have
on a defendant’s state of mind; and threats of more
severe charges or prosecution for additional offences
if they do not repeat their confession. As the South
African Constitutional Court recognised in the
Mthembu case (discussed above in section II.4.2) when
considering the repetition in court of a coerced
statement by Mthembu’s accomplice originally given
after torture in police custody:
‘That his subsequent testimony was given apparently
voluntarily does not detract from the fact that the
information contained in that statement […] was
extracted through torture. It would have been apparent
to him when he testified that […] any departure from
his statement would have had serious consequences for
him. It is also apparent from his testimony that, even
four years after his torture, its fearsome and traumatic
effects were still with him’.250
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