If someone is recorded confessing to a crime, can the recording serve as evidence solely because it contains the self-incriminating statement? Putting as an example: Carlos had his wallet stolen. In a meeting between colleagues, he records the conversation without the others knowing and one of the colleagues confesses that he stole Carlos' wallet. Can Carlos use recorded confession (self-incriminating statements) as evidence? In other words, do self-incriminating statements carry weight of proof?
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6Rules of evidence varry by country. under Sharia, a tape is not a witness, and in some countries the methog how the tape was obtained matters....– TrishOct 6, 2022 at 20:06
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3What country/jurisdiction?– BruceWayneOct 7, 2022 at 15:30
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2 Answers
Yes, generally speaking, a confession may be given in evidence - including the one recorded by Carlos - under section 76 Police and Criminal Evidence Act 1984 (PACE):
(1)In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
The defence may apply for it to be ruled inadmissible if it satisfies one of the conditions s.76(2):
If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—
(a)by oppression of the person who made it; or
(b)in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
NB PACE makes no distinction between confessions made to members of the public or to the police under caution (what some refer to as being read his rights).
The next step is to establish whether the recording meets the rules of evidence concerning the admissibility of hearsay evidence at section 114 Criminal Justice Act 2003 - s.114(1)(d) and 2(a) (emboldened) seem to me to be the most relevant to this scenario:
(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a)any provision of this Chapter or any other statutory provision makes it admissible,
(b)any rule of law preserved by section 118 makes it admissible,
(c)all parties to the proceedings agree to it being admissible, or
(d)the court is satisfied that it is in the interests of justice for it to be admissible.
(2)In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—
(a)how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c)how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d)the circumstances in which the statement was made;
(e)how reliable the maker of the statement appears to be;
(f)how reliable the evidence of the making of the statement appears to be;
(g)whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h)the amount of difficulty involved in challenging the statement;
(i)the extent to which that difficulty would be likely to prejudice the party facing it.
(3)Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.
- But...
A confession, on its own and without supporting and/or corroborative evidence, is not normally sufficient to bring a prosecution and is fraught with potential risks - Operation Midland being a similar example of when it can go horribly wrong if just one bit of evidence is taken at face value without it being properly verified or tested.
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Thank you so much for your answer! Already chosen it. But one thing wasnt clear for me... Is the recording just an evidence or has weight of a PROOF?– BritOct 6, 2022 at 20:45
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1@Brit The recording is proof that the words were spoken by that person, but it's hearsay as to whether they committed theft. Which is why it's up to the jury (or bench etc) to determine guilt or innocence after considering the entirety of evidence.– user35069Oct 6, 2022 at 22:18
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@Rick, a recording is never proof that a person spoke certain words. It can be evidence that combines with something else that constitutes proof that a person spoke the words. Basically, you also have to prove that the colleague is the person on the recording.– user6726Oct 7, 2022 at 0:01
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1Er, sort of, maybe. I was focussing on the distinction between direct testimony and hearsay which seems to be the thrust of the comment, not get side tracked with forensic voice analysis and other corroborative evidence– user35069Oct 7, 2022 at 6:14
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How is the discussion here not ignoring the vital difference between content and process? What the tape contains is one thing; potentially, evidence. How the tape came to be made is a very different thing and quite separately could strike out any content, making the content simply inadmissible, however important it might have been. Why does no-one seem to be separating the two? Oct 7, 2022 at 20:44
Can Carlos use recorded confession (self-incriminating statements) as evidence?
Usually, but with some important exceptions.
A confession to a crime is generally admissible evidence. It is not hearsay, it is made by someone with personal knowledge of the facts, and it is relevant. (Of course, the recording would have to be authenticated, but usually this is a trivial process involving asking the person who made the recording some simple pro forma questions.)
There are some exceptions to the general rule.
First, a statement must be voluntary. If the circumstances indicate that a confession was obtained by duress it will probably be inadmissible and even if it is admitted will not usually be given much weight. Even if it was admitted into evidence, a statement that was made under duress would probably not sufficient to be sufficient evidence to support a conviction on appeal, by itself.
Second, if a statement is obtained by law enforcement while someone is in custody it must be voluntarily provided after someone has been given a Miranda warning and has not asked for a lawyer.
Third, if a state (e.g. Massachusetts) has a two party consent rule to recording conversations, and the recording is made secretly, as it was in the question, the recording may be inadmissible under the two party consent statute's limitations.
Even if the recording was inadmissible because a state was a two party consent state, however, this would not preclude someone who heard the defendant making the statement from testifying to the fact that the defendant confessed on this occasion. Statements from a third-party about what a defendant said are generally admissible in evidence as an exception to the hearsay rule called the "party-opponent" exception.
In other words, do self-incriminating statements carry weight of proof?
Yes.
The confession alone, once admitted, even if not corroborated by other evidence, would be sufficient to support a jury verdict of guilty on appeal, even in the absence of any other evidence in almost all U.S. states (contrary to the rule in many other countries including the law of England and Wales).
answered Oct 7, 2022 at 1:10
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1@kisspuska That exception to the hearsay rule would also apply but wouldn't be necessary in a case against the person who made it. The statement against interest exception is only necessary to invoke when the statement is made by someone other than the party opposed to the one offering the statement. Oct 7, 2022 at 8:02
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1@ohwilleke Are you sure when you say
The confession alone, once admitted, even if not corroborated by other evidence, would be sufficient to support a jury verdict of guilty on appeal, even in the absence of any other evidence in almost all U.S. states?– BritOct 7, 2022 at 8:03 -
1@Brit: The justice system, in the US, generally takes the view that people should not go around confessing to crimes they didn't commit. Unfortunately, false confessions do happen surprisingly often (i.e. at all). It's a serious problem.– KevinOct 7, 2022 at 8:25
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1@Brit."Just because of it the person should be considered guilty?" They get a trial and can try to convince a jury that they didn't mean what they said, but the jury doesn't have to believe their change of heart. In English procedure, there would have to be some corroboration of the confession as noted in the other answer to this question. Oct 7, 2022 at 12:11
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1@Brit How could "It was me who robbed Carlos's wallet" be the wrong words? That's not a complex sentence where someone might slip up, it's a simple, direct statement. Unless they said it in the intonation of a question, it's hard to misconstrue.– BarmarOct 7, 2022 at 14:19