Confessions in the Criminal Process
| Published date | 01 January 2021 |
| Author | Hock Lai Ho |
| Date | 01 January 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12571 |
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Modern Law Review
DOI:10.1111/1468-2230.12571
Confessions in the Criminal Process
Hock Lai Ho∗
This article undertakes a theoretical exploration of the roles that confessions can play in the
criminal process and of the importance that is placed on their voluntariness. It draws on con-
temporary and historical sources, as well as materials from dierent legal systems and traditions.
Three possible perspectives on the topic are identied:the moral, the epistemic and the political.
Adopting each of these perspectives in turn, I set out threedistinct dimensions of confessions in
the criminal process. In myaccount of each dimension, voluntariness is construed in the light of
a particular understanding of confessions that is conceptually tied to a particular understanding
of the criminal process. The conclusion remarks on the interplay of the three dimensions.
INTRODUCTION
Confessions have always occupied an important place in the administration of
criminal justice.1This phenomenon exists across legal systems and traditions.2
To explain this phenomenon,contexts for theoretical reections will be drawn
from a diverse range of contemporary and historical sources.I seek to uncover
three dierent perspectives on the topic:the epistemic,the moral and the po-
litical. Each of these standpoints brings into view a distinctive signicance of
confessions that is associated with a corresponding conception of the crimi-
nal process.The process may be conceived as a search for the truth pertaining
to the guilt of persons suspected or accused of having committed crimes, as a
moral enterprise that works towards the reform of criminals and their social
reintegration, or as the forum in which the state exerts its authority and seeks
∗Coomaraswamy Professor ofthe Lawof Evidence, NationalUniversity of Singapore. Anearlier
version of this paper was presented at the Sydney LawSchool-National University of Singapore Law
School symposium. Mythanks to ThomasCrofts,DavidHamer,MarkMcBride, James Penner and
David Tan for their helpful feedback and special thanks to Andrew Dyer for his detailed commentary
on that occasion. I am also grateful to the referees for their valuable suggestions. All URLs were last
accessed 15 July 2020.
1The same cannot be said of guilty pleas to which I will make only brief references. Continental
legal systems have always placed great weight on confessions but are traditionally against allowing
guilty pleas to circumvent judicial determination of guilt.It is only in relatively recent times that
this resistancehas waned: seeM.Damaška, ‘NegotiatedJustice inInternationalCriminalCour ts’
(2004) 2 Journal of International Criminal Justice 1018, 1025-1026; T. Weigend, ‘The Decayof
the Inquisitor ial Ideal: Plea BargainingInvadesGermanCr iminal Procedure’ in J. Jackson, M.
Lango andP.Tillers(eds), Crime, Procedure and Evidence in a Comparative and International Context
(Oxford: Hart, 2008).
2There are rare exceptions.Jewish Talmudic law seemingly prohibitsthe use of confessions, even
voluntary ones, asevidenceofguilt. SeeB. Abrams Grenwald, ‘Maimonides, Miranda, andthe
Conundrum of Confession: Self-incrimination in Jewish and American Legal Traditions’ (2014)
89 New York University Law Review 1743.
© 2020 The Author.The ModernLaw Review © 2020 The Modern Law Review Limited.(2021) 84(1) MLR 30–60
Hock Lai Ho
to legitimate its exercise of power in enforcing the criminal law.3On the rst
conception, a confessionissignicantas evidenceofcr iminal responsibility; on
the second, asasignofor vehicleforexpressing remorse; and, onthethird, asan
act of self-subjugation that legitimates the state’s claim of authority to impose
penal sanctions.
The three perspectives cast dierent light on the law of confessions. My
concern is not specically with the law of any particular jurisdiction or at any
xed point of time.The object of this study is the general phenomenon of
reliance on confessions across nearly all criminal justice systems, both past and
present.As is to be expected, there are jurisdictional variations and historical
changes in the law of confessions.But a common and enduring principle may
be found: a confession by the accused is admissible – or,in language more suited
for non-common law systems,may be relied upon by the court as a basis for
his conviction – only if it is of a voluntary nature.In showing how perspectival
shifts can illuminate our understanding of the law, I will concentrate on and
limit the discussion largely to this general principle.
The commonality of the voluntariness principle exists only at a level of ab-
straction.There are dierences of detail in legal denitions of voluntariness4and
in the operation of the principle, not least because of dierences in institutional
settings5and in the background of related discretion and rules.6My interest
3These three characterisations of the criminal process are not exhaustive and do not capture all
possible goals that the process might aim at.For a general discussion of these goals, see J.B.
Weinstein,‘Some DicultiesinDevisingRules forDeterminingTruth in JudicialTrials’(1966)
66 Columbia Law Review 223, 241-246.
4A brief survey will suce to illustrate some possible variations on the same theme.The for mula-
tion of the voluntariness principle in the Singapore Criminal Procedure Code,Cap 68, 2012 rev
ed, s 258(3) is convoluted and technical; it requires exclusion of the accused’s statement where,
among other things, it has been ‘caused by any inducement, threat or promise’ that is sucient
‘to give the accused grounds which would appear to him reasonable for supposing that bymak-
ing the statement he would gain any advantage or avoid any evil of a temporal nature’.This is
broadly similar to English common law under which ‘no statement byan accused is admissible in
evidence against him unless it is shewn by the prosecutionto have been a voluntary statement, in
the sense that it has not been obtained from him either by fear of prejudice or hope of advantage
exercised or held out by a person in authority’ (Ibrahim vR[1914] 1 AC 599, 609). Thescope
of the English common law voluntariness rule was later expanded beyond statements obtained
by inducementsand threatsto includethose obtainedby oppression. (SeeR.Munday(ed), Cross
and Tapper on Evidence (Oxford:OUP,13
th ed, 2018) 637. Asimilarexpansion ofSingaporelaw
was eectuated by the recent introduction of Explanation 1 to the Criminal Procedure Code,s
258(3).) Thecommon lawelsewhere has, fromearlyon, adoptedawidedenitionofvoluntari-
ness thatfocuses moreon eectthan onmeans: thus, in theUnitedStates, ‘aconfession obtained
by compulsion must be excluded whatevermay have been the character of the compulsion’(Wan
R(1936) CLR235, 246). Indeter mining the voluntarinessof confessionsforthepurposesof
satisfying the fth and fourteenth amendments to the United States Constitution, a ‘totality of
circumstances’approachistaken:J. Iontcheva Turner, ‘Regulating Inter rogations and Excluding
Confessions in the United States: Balancing Individual Rights and the Search for the Truth’ in
S. Gless andT.Richter(eds), Do Exclusionary Rules Ensure a Fair Trial? A Comparative Perspective
on Evidentiary Rules (Cham: Springer, 2019) 112.
5 On the institutional dierences between Anglo-American and Continental systems that bear
on the exclusion of wrongfully obtained evidence,see D. Giannoulopoulos,Improperly Obtained
Evidence in Anglo-American and Continental Law (Oxford: Hart, 2019) 6-15.
6The voluntariness principle nds expression in a variety of legal sources, including the com-
mon law,statutor y rules, constitutionallaw,andadministrative directions, anditistypically one
© 2020 The Author.The ModernLaw Review © 2020 The Modern Law Review Limited.
(2021) 84(1) MLR 30–6031
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