criminal-law rules-of-evidence admissibility
Self-incriminating statements carry weight of proof
<p>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?</p>

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<p>Yes, generally speaking, a confession may be given in evidence - including the one recorded by Carlos - under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/76?timeline=false" rel="nofollow noreferrer">section 76</a> Police and Criminal Evidence Act 1984 (PACE):</p>
<blockquote>
<p>(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.</p>
</blockquote>
<p>The defence may apply for it to be ruled inadmissible if it satisfies one of the conditions s.76(2):</p>
<blockquote>
<p>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—</p>
<ul>
<li><p>(a)by oppression of the person who made it; or</p>
</li>
<li><p>(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,</p>
</li>
</ul>
<p>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.</p>
</blockquote>
<p><strong>NB</strong> 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).</p>
<p>The next step is to establish whether the recording meets the rules of evidence concerning the admissibility of hearsay evidence at <a href="https://www.legislation.gov.uk/ukpga/2003/44/section/114?timeline=false" rel="nofollow noreferrer">section 114</a> Criminal Justice Act 2003 - s.114(1)(d) and 2(a) (emboldened) seem to me to be the most relevant to this scenario:</p>
<blockquote>
<p>(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—</p>
<ul>
<li><p>(a)any provision of this Chapter or any other statutory provision makes it admissible,</p>
</li>
<li><p>(b)any rule of law preserved by section 118 makes it admissible,</p>
</li>
<li><p>(c)all parties to the proceedings agree to it being admissible, or</p>
</li>
<li><p><strong>(d)the court is satisfied that it is in the interests of justice for it to be admissible.</strong></p>
</li>
</ul>
<p>(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)—</p>
<ul>
<li><p><strong>(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;</strong></p>
</li>
<li><p>(b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);</p>
</li>
<li><p>(c)how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;</p>
</li>
<li><p>(d)the circumstances in which the statement was made;</p>
</li>
<li><p>(e)how reliable the maker of the statement appears to be;</p>
</li>
<li><p>(f)how reliable the evidence of the making of the statement appears to be;</p>
</li>
</ul>
<p>(g)whether oral evidence of the matter stated can be given and, if not, why it cannot;</p>
<ul>
<li><p>(h)the amount of difficulty involved in challenging the statement;</p>
</li>
<li><p>(i)the extent to which that difficulty would be likely to prejudice the party facing it.</p>
</li>
</ul>
<p>(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.</p>
</blockquote>
<ul>
<li><strong>But</strong>...</li>
</ul>
<p>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 - <a href="https://en.wikipedia.org/wiki/Operation_Midland" rel="nofollow noreferrer">Operation Midland</a> 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.</p>

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<blockquote>
<p>Can Carlos use recorded confession (self-incriminating statements) as
evidence?</p>
</blockquote>
<p>Usually, but with some important exceptions.</p>
<p>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.)</p>
<p>There are some exceptions to the general rule.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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 &quot;party-opponent&quot; exception.</p>
<blockquote>
<p>In other words, do self-incriminating statements carry weight of
proof?</p>
</blockquote>
<p>Yes.</p>
<p>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).</p>
