Monday, February 20, 2017

Judicial Confession, Taping and Recorded Tapes

Anyone involved in a public prosecution or a commercial investigation should be aware of their rights (and the law) with regard to giving a confession.
Confessions in civil cases
Article 57 of the new Evidence Law defines “confession” as the admission by a person of [committing] a legal fact to another person, with the purpose of proving his commission of that fact by such person and such admission may be judicial or non-judicial.  Accordingly, a judicial confession is conclusive and absolute evidence against the confessor, confined to him, and binding to a court.  The confession may not be divisible, unless it has been made in respect of a number of events, and the existence of one of these events does not necessarily mean, or prove, the existence of the others.  Properly obtained judicial confessions are evidence against the confessor, and the confessor may not retract such a confession.
Confessions in criminal cases
Article 190 provides that if at any time the accused admits that he is guilty, the court shall hear his statements in detail and cross-examine him.  If it is satisfied that the confession is sound and sufficient, it may abandon the remaining proceedings, or some of them, and decide the case.  That is, the Supreme Court has confirmed that a confession in a criminal case may have a conclusive role in that case.  However, such evidence shall be subject to an assessment by the subject matter court, with no control or influence from the Supreme Court. The subject matter court may accept the confession of the accused following its investigations.  In respect of a confession, the subject matter court will seek to understand the motivation and grounds behind the giving of the confession, and assess whether or not it has been given based on evidence, liberty, perception and understanding, or, has been given subject to coercion. 
How is improperly obtained evidence treated?  Can such evidence be admissible?
A confession may be inadmissible if it was obtained illegally; however, any material evidence that is discovered as a result of such confession may still be admissible.  An accused may not avoid punishment simply for reasons of evidence having been obtained illegally.
A confession made under coercion is inadmissible, even if there is evidence confirming its accuracy.  If an accused maintained his confession after the coercion ceased to exist, it would be treated as a new confession.  In order to establish that a confession was obtained under coercion, the burden of proof lies with the claimant (i.e., the claimant must prove that his confession was obtained through coercion such as being tied up, restrained, arrested or guarded).  
Confessor’s retraction
A confession may, in certain circumstances, be retracted.  The retraction of a confession may be overlooked if the crime can be established with sufficient evidence supporting the confession.  It has been argued that with regard to major crimes, the retraction of a confession does not cancel the confession, but other evidence is required, even circumstantial evidence, in this regard.
Call recording and tapping and recorded tapes as evidence
Article 90 of the Criminal Procedures law states that Correspondence and cables may not be confiscated or perused, newspapers, publications and parcels may not be confiscated, conversation taking place at a private place may not be recorded, the telephone may not be tapped and the dialogue may not be recorded without the permission of the Public Prosecutor.  The permission specified in article 90 of this Law shall be issued if the Public Prosecutor is of the view that it would be useful evidence where there is a suspected offence or misdemeanor that would be punishable by imprisonment for a period exceeding three months.  The permission shall be substantiated and its period shall not exceed 30 days subject to renewal for similar periods, if required.
Moreover, article 30 of the Basic Law states that the freedom of correspondence by post, telegraph, telephone, or other means of communication is protected and its confidentiality guaranteed.  Hence it is unlawful to monitor, search, disclose the confidentiality, delay or confiscate the same except in cases specified by the law and in accordance with the procedures prescribed therein.
Any person involved in a public prosecution or commercial investigation should consult with a lawyer as soon as possible and, in any event, before giving a confession.