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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
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