15 April 2015

Laws regarding Confessions and Self-Incrimination

 Authored by Shreya Valiramani

Confessions by an accused or a witness and the admissibility of it are tools of evidence that create substantial testimony and shape a trial. The concern arises when it prejudices the interests of the accused or the witness when the latter is forced to confess against himself/herself to an offence in a court of law. In the following article, I bring to you a comparative perspective on the laws regarding confession between India and the U. S.


To begin with, recording of confessions and statements in the Indian law are guided by Section 164 of the Code of Criminal Procedure, 1973 which empowers any metropolitan or judicial magistrate, who may or may not have jurisdiction in the case, to record any confession or statement made to him during the course of an investigation. On the other hand, in the U.S., the trial judge has the power to allow admission of confessions in the court of law and he shall permit the jury to give the confession as much weight as the jury feels it deserves keeping in mind the circumstances. Thus, once the trial judge allows for the admission of the confession, it is upon the jury to decide whether the confession has been made voluntarily, and how much significance should it be given.
Also, in India confession made in front of the police officer is not admissible in a court of law under Section 25 and 26 of The Indian Evidence Act, 1872. Hence, if a person confesses to a police officer of committing an offence, then it cannot be used against him in a court of law unless it has been made in the presence of a magistrate. However, there is nothing in the U.S. code that says anything about admissibility of confessions made before the police.


The key requirement for a confession to be admissible is that it should be voluntarily made. In India the magistrate shall, before recording the confession, explain to the person who is making it that he is not bound to make such a confession and that if he does so, it shall be used against him. At any time before the confession is recorded, the person who is confessing can refuse to do the same and the magistrate shall not authorize the detention of such person in police custody according to Section 164(3) of the C.R.P.C.
 Similarly in the U.S., the law explicitly talks about the admissibility of evidence only if it is made voluntarily. Before the confession is received in evidence, the trial judge shall with the presence of the jury, determine whether the confession was made voluntarily or not.  The factors that are reviewed by the trial judge in determining the voluntariness of the confession are whether such accused knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, whether or not such accused was advised or knew that he was not required to make any statement and that any such statement could be used against him, whether or not such accused had been advised prior to questioning of his right to the assistance of counsel and whether or not such accused was without the assistance of counsel when questioned and when giving such confession.
The confession so obtained according to the American law is not inadmissible solely because there has been a delay in bringing the accused to the magistrate or other such law enforcement agency or officer. The confession if made voluntarily according to the jury, stands corrected if made within six hours of arrest or other detention. The American law also does not bar the admission of any evidence that is made or given voluntarily by any person without arrest or interrogation or detention.


With a brief on the comparison between the laws regarding confession in both the countries let us address the elephant in the room- the legal stance regarding self-incrimination.

The laws in both countries provide the right of being protected against self-incrimination. In America, the Fifth Amendment to the constitution protects a person against being compelled to be a witness against himself or herself i.e. one could refuse to answer the questions they believe might incriminate them. Similarly, Article 20(3) of the constitution of India, which is a fundamental right, says that no person accused of any offence should be compelled to be a witness against himself.

The right is also recognized by the code of criminal procedure which by the provision of Section 161(2) states that ‘’every person is bound to answer truthfully all questions, put to him by a officer, other than those answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture”. The concept of self-incrimination was brought to force in the case of Miranda v. Arizona in the U.S, a landmark case which established ‘’Miranda rights” that is the right to remain silent among other things, after a warning is given to the suspects in police custody. According to the Supreme Court, the admission of an elicited incriminating statement by a suspect who is not informed of those rights was a violation of the fifth amendment of the constitution and statements hence spoken could not be used against the accused in a court of law. The Miranda rule is not absolute and an exception exists in cases of ‘public safety’.

It is hence safe to say that even though the accused is provided with rights to protect himself until he is proven guilty, the state molds and executes the laws on its whims and fancies , therefore if the masses are aware of their rights, it won’t be long before they reach out and fight the injustices that exist in the system.

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