False Confessions

Awareness continues to grow in relation to the frequency of false confessions. There are many famous examples where people have been exonerated years after confessing. With the knowledge that false confessions do occur, the question becomes how does the court handle situations where an accused alleges at trial that their confession was false.

In R. v. Ball the BC Court of Appeal explained that false confessions can and do occur for a variety of reasons in a wide range of circumstances.

When admitted as evidence, they can lead to miscarriages of justice because they have a significant impact on the decision-making process undertaken at trial

An accused can be convicted on the basis of a confession alone, despite the absence of any confirmatory evidence whatsoever. Judges and juries tend to disbelieve ex post facto recantations by those who have previously confessed.

The Court explained the various steps a confession must go through to be admitted at trial. Firstly, any confession given by an accused to a police officer must be proven beyond a reasonable doubt to have been made voluntarily. This means that the statement must be the product of an operating mind and not be the product of threats, promises or inducements.

Secondly, even if a statement is found to be voluntary there exists a residual discretion for the judge to exclude the confession if the probative value is outweighed by its prejudicial effect.

If the confession is admissible, accused persons sometimes adduce expert evidence regarding their “distinctive behavioural characteristics” and vulnerabilities to help explain why their voluntary confession is nevertheless false or unreliable.

Experts and academics say factors such as mental illness, significant personality traits and intoxicant withdrawal may cause false confessions

Admissibility of expert evidence on these matters must be determined on a case-by-case basis.

Where a false confession defence has an air of reality, a trial judge should instruct the jury about the phenomenon of false confessions and relate the essential evidence on the point to the defence and review the extent to which the confession’s details are consistent with or conflict with independently verifiable circumstances.

It is hoped that along with these procedural safeguards and increased education on the frequency of false confessions wrongful convictions will be reduced.