CONFESSIONS

Confession is one of the exceptions to the rule of hearsay evidence.

It is provided for under Sections 28, 29, 31 and 32 of the Evidence
Act. It is admissible if it is voluntary. Its importance lies in the fact
that a confessional statement, in criminal cases, is enough to ground
a conviction in cases where it was the only evidence against the
accused.
Section 28 of the E.A defines a confession as an admission made at
any time by a person charged with a crime, stating or suggesting
the inference that he committed the crime.
The section presupposes that confession may be made before a
trial, after trial has commenced, but before judgment. When an
accused pleads guilty to the crime charged, this is termed a judicial
confession.
A definition of confession was given as follows: the
term“admission”is the genus of which confession is the species. At
common law, an informal admission made by an accused person,
prior to his trial, to a person in authority was known as confession,
an expression which included not only a full admission of guilt but
also any incriminating statement.' Such a confession can be made to
anyone. It can also be made in words as well as by conduct. The
Criminal Law Revision Committee in England gave the example that
it is sufficient if the accused person nods his head in reply to an
accusation.
It is to be noted that in common parlance,
‘admission”and“confession" are confused to mean full
acknowledgement of guilt. But for the purpose of the law of
evidence, any statement adverse, unfavourable and harmful to the
maker, but which has some relevance and reliability to the issue of
guilt, is deemed a confession. Usually, admission in relation to a
crime, in the law of evidence, is used to denote the admission of a
fact relevant to the crime, whilst "confession'" is used to denote the
admission of guilt
Nature of a Confession
The nature of a confession is such that it is either judicial or extra-
judicial. It is judicial when made in court in the course of
proceedings. This is otherwise called formal confession. Extra-
judicial or informal confessions are those admissions made outside
the court. Often, the latter may be implied when they are
admissions only, or they may be expressed. We shall concentrate on
confessions made outside the court to persons in authority, usually
police officers who take statements from accused persons. However,
section 29 of the Evidence Act recognizes both types of confessions,
inclusive of not only a full admission of guilt but also any
incriminating statement.
A confession must be voluntary if it is to be admissible in
evidence. This is the emphasis of Section 29 (2) of the Evidence
Act. The burden of proving that a confession was made voluntarily
rests on the prosecution in criminal proceedings. The burden
involves the same standard as the proof of guilt, proof beyond
reasonable doubt. If the prosecution fails to discharge the burden of
the proving that a confession was obtained voluntarily, the court has
the discretion to exclude it even if satisfied that it is true. In R v
Miller (1986) 3 All ER119, the Court of Appeal held that a confession
may be excluded as a matter of discretion. For a confession to be
admissible in evidence, it must be direct, positive and unequivocal.
Retraction or Denial of Confession
In Raimi Adebisi Afolabi v COP (1961) All NLR, the accused, who was
a storekeeper in Ibadan, was told by the manager of the firm of a
shortage discovered in his stores. He told the manager he sold some
of the stocks to assist him set off election expenses. He denied the
confession during a retrial. The alleged confession, neither being
direct nor positive, was held inadmissible. Retraction or denial of the
making of a confession does not in the least necessarily render the
confession inadmissible.
In R v John Agagariga Itule (1961) All NLR, soon after the accused
was arrested, he made a statement to the police admitting the
murder. The next day, he made a new statement, denied the first
and repudiated all liability for the murder. It was held that a
confession does not become inadmissible merely because the
accused person denied having made it. It should be noted that an
allegation that a confession was not voluntarily made is different
from denial or retraction of a confession. The former arises where
the accused person alleges, for example, that he was beaten up by
the police, forcing him to make the statement or any other
allegation that constitutes inducements, threat or promise under the
circumstances provided in section 29 (2) of the Act.
The latter arises where the accused alleges, for example, that the
signature on a statement is not his or that he never made the
statement at all. In Egboghonome v The State (1993) 7 NWLR (pt
306) at 383, the Supreme Court held that retraction or denial cannot
be extended to prevent a court of trial from accepting as true
previous statements made by an accused person which are in
conflict with his evidence in court. In which case, the court is free to
believe either of the two statements.
Retraction of a confession does not affect its admissibility. It
only goes to the weight to be attached to the confession. If
at the end of the trial the court finds as a fact that the statement
was not made by the accused person, it will disregard the
statement. If, instead, it was positive and unequivocal, it can form
the basis of conviction without more. Once a confessional statement
is admitted in evidence, it becomes part of the case for the
prosecution. The judge will consider its probative value. But before a
conviction is based upon the retracted confession, it is desirable to
have some independent proof besides the confession tending to
prove the propensity that the confession was true. Where the
accused denied or retracted the confession in court, the court can
still act on it and make a conviction.
A Voluntary Confession under the Act
According to Section 29(2) of the Evidence Act, no statement of an
accused person is admissible in evidence unless it is shown to have
been voluntarily made. The fact that it is voluntarily made is a test
of admissibility and not of the truth or veracity of the statement.
A Confession Implicating Co-Accused
According to Section 29(4) of the Evidence Act, where more persons
than one are charged jointly with an offence and a confession made
by one of such persons in the presence of one or more of the other
persons so charged is given in evidence, the court shall not take
such statement into consideration as against any of such other
persons in whose presence it was made, unless he adopts the
statement by word or conduct.
This provision of the law follows from the fundamental principle of
common 29 (2); it is clear that a confession, if voluntary, is deemed
to be a relevant fact against the maker only. By this means, such
confession must be made by the person charged and no other
person. It cannot be made by his counsel either.
However, if an accused person goes into the witness box and gives
evidence implicating a co-accused, then whatever he says becomes
evidence for all practical purposes of the case and may accordingly
be used by the judge as evidence against the co-accused.
Apparently, this is an exception only , in that if, on the whole of the
evidence, the judge thinks that the co-defendant has adopted what
was said , then it is in reality his own confession and no longer
merely that of the maker of the statement. In R V. Campbell and
Williams (1993) CLR 448, it was held that such a confession, if
voluntary, is admissible at common law as an admission made by a
party against his interest. The same reasoning was adopted in R V.
Myers where it was held that a co-defendant may make a statement
against himself if he is present when it is made, and does not
dissent from it, or adopts it as his own.
Basically, the law is that a confession by one accused person is not
generally evidence against another because A cannot“confess”to B's
action. But where A and B are tried together, the statement of A
may be read although it implicates B. The rule, no doubt, involves
some important difficulties of practice in joint trials. In R v Silcott, it
was held that the rule requires mental gymnastics of Olympic
standard for the judge to approach their task without prejudice.
Two solutions however seem possible here. They are: (1) To order
separate trials; although defendants are tried together when jointly
charged.(2)To edit the confession. The latter can, at least, minimize
the problem. If A says that B was partly or wholly to blame, this may
be convincing evidence against A, the maker of the statement. But if
the reference to B is of little or no impact to the case against A, the
judge can order A's statement to be edited. The most important
thing is that the judge should be so directed that A's statement is
evidence against A only and not against B. The success of the
direction should be guided jealously by his observation that it is
patently unfair to hold against B a statement made in B's absence
by A, who may have his reason(s) for implicating B, and to which B
had no opportunity of replying. Failure of the judge to be so directed
may visit unmitigated damage on B in the eventuality of a
conviction. This is immaterial where A offers to give evidence for the
prosecution."
Tests of Admissibility of a Confession
The manner by which confessions are obtained by the police has
always been controversial. Some tests of admissibility were formed
in 1852 by Parke B in the case of R V. Baldry. This represents the
common law position on admissibility of confessions.
Parke B stated as follows:
‘In order to render a confession admissible in evidence, it must be
perfectly voluntary; and there is no doubt that any inducement in
the nature of a promise or of a threat held out by a person in
authority vitiates a confession.’
This statement forms the locus classicus in England. In Nigeria
today, our law books are replete with judicial pronouncements on
the conditions of admissibility. They are:
1. Inducement
2. Threat or promise
3. By persons in authority

Inducement
This is the first condition that can vitiate and render a confession
inadmissible. A confession which is obtained as a result of an
inducement will not be admissible in evidence. Such a confession
will be excluded if it relates to the crime charged. This is the
meaning of Section 29 of the Evidence Act.
What is inducement? To qualify as such under Section 29(2) of the
Evidence Act, the inducement must refer to an inducement to make
a statement and need not be to confess the truth. It suffices if he
speaks at all. Once certain facts are spoken, relating to the crime
charged, the intention of Section 29 (2) of the Act having to do with
inducement is met, the veracity and credibility of the statement not
being in question. In R v Nimiel Viapbong, (1961) NRNLR 47, a police
sergeant while cautioning an accused person said to him, 'you
should bear in mind that any statement you make shall be written
down by me and taken 'before the court so that it may be your
evidence" or“so that it may be evidence for you".' Upon hearing this,
the accused made a confession of the offence with which he was
charged. It was held that:
The caution was clearly an inducement to speak. An accused person
can hardly be expected to keep silent when told that he need not
say anything, that anything he says will be written down and taken
before the court to be his evidence, or evidence for him, he is being
given amply sufficient grounds for supposing that by speaking he
will avoid the evil of being condemned unheard.
For a claim of inducement to be sustained, the court must be
convinced that the inducement is in the form of a promise of an
advantage which is the cause of the confession. It can be a promise
of immediate release from custody. The promise must have a causal
link with what was said and done which made the accused confess
against his wish.