One of the most significant types of evidence in criminal justice systems around the world has traditionally been confessions.
A confession is typically regarded as the strongest proof that a person has committed a crime.
However, the validity of confessions has recently been called into question by psychological research.
The anxiety and pressure to confess that comes with interrogations has been found to force many participants in laboratory experiments and individuals in actual cases to confess to crimes they were not responsible for.
Interrogations have historically been accusatory and confrontational.
There is at present limited research available on the suspect questioning or interrogation techniques employed in South Africa, but certain evidence, such as policing practices, suggests that South Africa would adopt an accusatory strategy.
For instance, the African Policing Civilian Oversight Committee (APCOF) has published an instruction manual on how to oversee policing tactics in Africa, including South Africa.
They mention accusatory methods, including the Reid technique, in their manual as guidelines for interrogating individuals.
Furthermore, the South African Police Service (SAPS) has historically prioritised confession-based methods of crime investigation.
Because of the shift from confession-based to evidence-based approaches has not been widely embraced in South Africa, courts should consider this reluctance on the part of some police officers when determining whether or not a confession is admissible and whether it constitutes an admission of guilt.
Section 217 of the Criminal Procedure Act 51 of 1977
According to evidence from international studies, confessions should be viewed with caution and should be deemed inadmissible if any evidence suggests the statement was not made voluntarily.
This is how South African law appears to approach confessions.
A confession will only be accepted into evidence in accordance with Section 217 of the Criminal Procedure Act 51 of 1977 if it has been established that it was given “freely and voluntarily” while the defendant was “of sober senses and sound mind” and without any “undue influence.”
Therefore, it seems as though the condition for avoiding undue influence should offer defence against numerous problems mentioned in international studies. For instance, given that these techniques frequently lead to false confessions, suspects who have been made to believe that the evidence against them is so strong that they would be better off confessing than risk a trial, or inferences of leniency could be considered to have been subjected to undue influence.
It is demonstrated by using “implied promise of some benefit” as an illustration of improper influence.
However, in South African courts, a subjective evaluation is done to decide if a certain aspect constitutes undue influence, and a threat or implied advantage does not always make a confession inadmissible.
Given that there is a great deal of subjectivity in the admitting of a confession, the threat or inference should have been on the suspect’s mind at the time the confession was made.
R v. Ramsamy
As an illustration, the confession in R v. Ramsamy was accepted notwithstanding the fact that the accused was under the influence of alcohol at the time.
In light of this, it is unlikely that courts would view the intensely tense and confrontational nature of interrogations as being sufficient to render a suspect incapable of reasoning clearly, even though evidence suggests that this stress creates a highly unusual or abnormal environment where the suspect is under a great deal of stress.
Suspects who are trying to escape this predicament, even if it means admitting, may not be acting in “sound and sober senses” as a result of the stress they are under.
A “trial within a trial” is held to assess if a confession was given voluntarily, and it is the responsibility of the prosecution to establish this.
Generally, the confession’s contents are not investigated during this trial, but in some circumstances, such as when the accused alleges that the police forced them or physically abused them, the confession’s contents may be examined to support the accused’s claims.
It is believed that this procedure of conducting a trial within a trial is crucial for determining whether a confession was made voluntarily, yet investigating the confession’s contents could prejudice the suspect rather than assist or protect them.
These problems emphasise the value of psychology in guiding police questioning procedures.
For advice in this regard, or should you require assistance, feel free to contact our office.
Written by:
Charlene Hefer