Friday, 17 August 2018

THE RIGHT AGAINST SELF-INCRIMINATION: PART 1

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Olisa Metuh a spokesperson of the Peoples Democratic Party while being investigated for his involvement in the $2.1 billion arms fraud made a statement to the Economic and Financial Crimes Commission, (EFCC) on his involvement. When the statement was brought to him for him to sign it, he tore the statement and tried to stuff the papers in his mouth.

Olisa Metuh realised the weight of his confession to the EFCC and its implication and tried to undo what he had already done, but it was too late, because his confession had been taken already.  EFCC brought a charge against him for his alleged destruction of evidence. This adds to the woes of the already embattled PDP Chieftain.  

This article is aimed at avoiding a situation such as that of Olisa Metuh. This article is simply aimed at enlightening the reader on his right against self—Incrimination; in simpler terms, on how not to incriminate himself when arrested or charged with an offence.

The right against self-incrimination is a right guaranteed an accused person under the Nigerian Law. This right gains expression in the right to silence. Where a suspect or an accused person decides not to exercise his right to silence and speaks, then whatever he says can be used against him during his trial.

 CONFESSIONAL STATEMENT AND THE RIGHT TO SILENCE
Confessional statement is simply an admission of guilt by a suspect or person charged with an offence.  The confession once made by a person is valid and can be used against him in court. Confessional statement is usually the very best evidence for the purpose of convicting an accused person. This is why it is so important in criminal proceedings, and that is why the police when confronted with a crime always seek to get the suspect to admit to the commission of the offence by making a confession.

The right to silence begins at the point of arrest and continues throughout the duration of trial.

At the point of arresting a person charged with the commission of an offence, the police are charged with the duty of informing the suspect of his right to silence; this is usually referred to as caution. The caution is usually couched along these lines “you have a right to remain silent and a right to a lawyer of your choice and if you choose to speak, anything you say may be used against you in evidence”

Failure of the police to caution an accused person does not however make the confessional statement made by him inadmissible against him.
The constitution provides that any person who is arrested or detained shall have the right to remain silent or avoid answering any question until he has consulted or spoken with his lawyer or any other person of his choice.

When a person is arrested by the police or any other agency of the government charged with the responsibility of investigating and prosecuting any offence, the usual thing is for such a person to be questioned about his involvement in the alleged offence; the police usually seeks to obtain a confession from the suspect. Such a suspect should inform the police that he wants to speak with a lawyer first, or with any other person of his choice. The moment an accused person requests for a lawyer, then the police should stop all questioning or interrogation until the accused’s lawyer arrives.

Where a suspect goes ahead to make a confession to the police, then he should know that he cannot retract his confession. The confession once made is valid and can be used against him in court once the court is satisfied that the confessional statement was actually made by the suspect and was made voluntarily.

There exists a misconception that refusal to speak to the police or answer questions asked by the police, or requesting to speak with a lawyer first  is an indication of guilt, and so many accused persons in order not to be seen as guilty decide to answer questions asked them by the police. This is wrong. Silence is not an indication of guilt. It prudent to consult a lawyer (especially when you have been accused of an offence)before you speak to the police or before you make a confession in order to be properly guided and in order to prevent a situation where you would implicate yourself with your own words.

 TORTURE AND INVOLUNTARY CONFESSION
It is a harsh reality of the Nigerian situation, that there are times when a suspect is tortured and compelled to make confessions. The Nigerian police sometimes in their zeal to bring offenders to book torture a person suspected of having committed a crime until he admits to having committed the offence.

Inasmuch as the law would admit a confessional statement in evidence against its maker, there are instances when a confessional statement made by a suspect would not be admitted in court against him; one of such instance is when the accused person alleges that the confession was made by him involuntarily as a result of the torture or oppression he underwent. When an accused person informs the court that the confession he made was not made voluntarily, but was made as a result of the oppression, threat, violence or torture that he was subjected to, then the court would refuse to admit the confessional statement, unless the prosecution satisfies the court that the statement was voluntarily made by the accused.

When a suspect however makes a confession as a result of a deception that was practiced on him by a police officer or any other person, or when he admitted committing an offence in a state of drunkenness, or when he confessed to a person under an oath of secrecy and the person in breach of that oath of secrecy divulges the information, the confession would be admissible in evidence against him.  Also when a person admits to having committed an offence in answer to a question which he was not obligated to answer, his confession would still be admitted in evidence against him.

There currently exists a practice in Nigeria where upon making a confessional statement, the suspect is taken before a superior police officer before whom the confession is read and the suspect is required to confirm that he made the confession voluntarily. This practice is laudable as a check against compelling a suspect to make a confession, however, it does not make the confessional statement admissible in evidence against the suspect if it is established that the confession was not voluntarily made. Also, the failure to confirm the voluntariness of the confession before a superior officer does not affect its admissibility in evidence against the maker, provided that it is established in court that the statement was made voluntarily.

RIGHT TO SILENCE DURING TRIAL
The position of the Nigerian law is that an accused person is presumed to be innocent until he is proved guilty. The duty to establish the guilt of the accused person rests with the prosecution who alleges that the accused has committed a crime. The law does not require the accused person to establish his innocence when he is accused of a crime, neither does the law require him to help the prosecution’s case by proving his innocence, hence, the law gives him a right to remain silent and say nothing at all when is charged and being tried for an offence.  This is the right to silence and this right extends even to criminal trials.

This right finds expression in the right of an accused person not being compelled to give evidence at his trial. This simply means that an accused person may decide, if he so pleases not to give evidence at his trial, in which case, he cannot be called as a witness during the trial. The exercise of this right does not prevent him from calling other persons to testify on his behalf as witnesses during the trial. In order to further ensure that when a person chooses to exercise his right to silence, he is not prejudiced, the law has put in place some safe guards. One of which is that when an accused decides not to give evidence at his trial, no party to the trial is permitted to suggest or insinuate that the accused person refused to testify at his trial as a witness because he is guilty.

However, when an accused person decides to give evidence at his trial, then he can be asked any question at all, and he must answer the questions asked even if the answer to any of the questions could incriminate him and establish his guilt.  The moment he chooses to testify at his trial as a witness, then the protection he is given under the law against self- incrimination ceases because he becomes bound to answer every question he is asked even if it could incriminate him, and he becomes bound to answer all questions truthfully if not he could be liable for the offence of perjury. 
If an accused person wants to speak at his trial and perhaps tell his own version of events, without being compelled to answer questions which could incriminate him, then he could elect to merely make a statement.  The implication of this is that he would not be speaking from the witness box as a witness; he would not be sworn as a witness and would therefore not be subject to cross- examination.  He would remain in the dock and make a statement from there. The legal implication of making a statement as opposed to giving evidence as a witness lies in the weight to be given to it by the court. The statement is not evidence and cannot take the place of a witness’ testimony which is considered to be evidence. Therefore, the court will pay more attention to and give more serious consideration to testimony given by a witness who is sworn and who is testifying from the witness box than it would an unsworn statement made by an accused person which is not made from the witness box.

Inasmuch as every person has a right to remain silent, it is not in all cases that it is prudent to exercise this right. There are times when it is best to speak, as failure to do so might create some kind of problems for the accused person. In such cases it is best to have a lawyer, as the lawyer would advise you on how best to answer questions put to you by the police.  

It is therefore prudent that at any point in time when a person is accused of having committed any crime that he requests for a lawyer who would be able to guide him accordingly so as to avoid a situation where one would confess and afterwards seek to retract such a confession.

There are instances where two or more persons may be jointly accused of committing a crime and one of the accused persons makes a confessional statement to the police which implicates the other accused person. The fact that a co-accused has confessed to the commission of a crime and has implicated the other accused person in his confession should not compel the other accused person to make a confession if he does not want to do so. This is because the confession made by an accused person does not bind the other accused person, provided that such other accused person has done nothing by words or conduct to show that he is admitting the confession of the other accused person as his. A confessional statement only binds the maker; it does not bind the co-accused. Where however, the statement is repeated in court during examination, then it would be necessary to debunk such an evidence by leading credible evidence.

Part 2 of this article examines how to make a confessional statement and avoid self-incrimination. 

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