44 Tainted by Torture: Examining the Use of Torture Evidence | 2018 Chapter V: Tackling confessions-based criminal justice V.1 Confessions and torture The existence of a specific purpose is commonly considered a decisive factor in the determination of whether ill-treatment constitutes torture.226 Frequently, the specific purpose is to elicit a confession from a suspect. The ability to found a conviction on a confession provides an incentive for investigating authorities to coerce suspects into confessing to a crime, including through the use of torture. According to Juan Mendez, former UN Special Rapporteur on Torture: ‘[c]oerced confessions are regrettably admitted into evidence in many jurisdictions, in particular where law enforcement relies on confessions as the principal means of solving cases and courts fail to put an end to these practices’.227 Japan, for example, has been criticised in the media for its heavy reliance on confessions and for how defendants are treated in order to obtain admissions of guilt – with resulting miscarriages of justice. In 2007, the Economist reported: ‘Japan is unique among democratic countries in that confessions are obtained from 95% of all people arrested, and that its courts convict 99.9% of all the suspects brought before them’.228 V.2 In 2016, Quartz reported: ‘Confessions have long been perceived as the best form of evidence in Japan, and are often coerced by psychological intimidation, shaming, and methods as ruthless as sleep deprivation. Until now, Japan has not had the same tools used in other countries such as wiretapping and plea bargaining – in their absence, Japanese law enforcement has had to rely on confessions, according to a former detective interviewed by the BBC’.229 Given the close association between confessions and torture and cruel, inhuman or degrading treatment or punishment, special rules to restrict the ability to found a conviction on a confession can also operate as an indirect protection against ‘torture evidence’. Special rules in relation to confessions are relatively common in domestic legal systems. They relate not only to protection against torture but also to the protection of the presumption of innocence, and the associated rights not to be compelled to testify against oneself and to remain silent. Protections V.2.1 Corroborating evidence In the words of Juan Mendez, former Special Rapporteur on Torture: ‘the ability to convict suspects solely on the basis of confessions without further corroborating evidence encourages the use of physical or psychological mistreatment or coercion’.230 Whilst none of the countries studied prohibit courts from taking account of confessions made by a suspect when determining their guilt, a number of them do provide that a confession, on its own, cannot be the sole evidence for a conviction. This is the case in Vietnam,231 Mainland China,232 Turkey,233 and Indonesia234 (where the testimony of the defendant is considered by law to be the least influential evidence).235 Despite the criticism it has received for its reliance on confessions (highlighted above), Japan’s Constitution also provides that ‘[n]o person shall be convicted or punished in cases where the only proof against him is his own confession’.236 In Brazil, too, confessions cannot be the sole evidence of guilt.237 Despite this, there have been cases in which judges in Brazil have accepted tenuous evidence in support of confessions.238 The position in the United States is varied and complex, but all jurisdictions require some form of evidence in addition to the confession itself.239 A number of jurisdictions require evidence in addition