criminal-law
Can we prosecute a person who confesses but there is no hard evidence?
<p>If there is an individual who has acted in a gruesome manner and murdered another individual, can he be prosecuted even if he confesses to the crime but there is no evidence whatsoever, not even circumstantial? The individual provides vivid details of the crime but prosecution team fails to get any evidence to prove it in court of law.</p>
<p>Since I am not aware of the differences in justice system across nations, my question is very general. How would each court of a nation perceives such cases when there is an ABSOLUTE lack of evidence but there is confession!</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="united-states-container">united-states</a></p>
<p>This is not a question that is controlled by a federal statute or by U.S. Constitutional criminal procedure (arising mostly under the 4th, 5th and 6th Amendments to the Bill of Rights, most provisions of which other than the grand jury requirement, are also applicable to state court proceedings).</p>
<h2>No Contest And <em>Alford</em> Pleas In The U.S.</h2>
<p>In U.S. district court federal criminal prosecutions (with court permission) and in some U.S. states, there is a special process by which one can, in substance, plead guilty, without admitting the facts of the case against you, sometimes called a &quot;no contest plea.&quot; (The Latin phrase used to describe such a plea is a <em><a href="https://en.wikipedia.org/wiki/Nolo_contendere" rel="nofollow noreferrer">nolo contendere</a></em> plea). Many states reserve this option for relatively minor offense like traffic misdemeanors.</p>
<p><a href="https://en.wikipedia.org/wiki/Nolo_contendere#cite_note-11" rel="nofollow noreferrer">For example</a>:</p>
<blockquote>
<p>In Michigan, &quot;A nolo contendere plea does not admit guilt, it merely
communicates to the court that the criminal defendant does not wish to
contest the state's accusations and will acquiesce in the imposition
of punishment.&quot; A <em>nolo contendere</em> plea may be appropriate &quot;where
the defendant would not be able to supply a sufficient factual basis
for a guilty plea because he or she was intoxicated on the night of
the incident, where there is the possibility of future civil
litigation resulting from the offense, or where a defendant cannot
remember the events which led to his or her being charged with a
crime&quot; 1A Gillespie Michigan Criminal Law &amp; Procedure, § 16:15.</p>
</blockquote>
<p>Closely related to a &quot;no contest&quot; plea is an <a href="https://en.wikipedia.org/wiki/Alford_plea" rel="nofollow noreferrer"><em>Alford</em> plea</a>:</p>
<blockquote>
<p>In United States law, an <em>Alford</em> plea, also called a <em>Kennedy</em> plea in
West Virginia, an <em>Alford</em> guilty plea, and the <em>Alford</em> doctrine, is a
guilty plea in criminal court, whereby a defendant in a criminal case
does not admit to the criminal act and asserts innocence, but admits
that the evidence presented by the prosecution would be likely to
persuade a judge or jury to find the defendant guilty beyond a
reasonable doubt. . . .  Alford pleas are legally permissible in
nearly all U.S. federal and state courts, except in the state courts
of Indiana, Michigan, and New Jersey, or in the courts of the United
States Armed Forces.</p>
</blockquote>
<p>In some Alford plea cases, the evidence that makes a conviction likely is a confession.</p>
<p>Of course, when there is a &quot;no contest&quot; or &quot;guilty&quot; plea in a case, no trial is ever held, ands the plea amounts to a confession.</p>
<h2>In Cases Where There Is A Not Guilty Or No Contest Plea In The U.S.</h2>
<p>The requirements are likewise not uniform across the United States when there is a not guilty plea and the defendant disputes the sufficiency of the confession alone.</p>
<p>Of course, in practice, it doesn't come up very often, because it is rare for prosecutors to prosecute a case in which there is a not guilty plea in the absence of evidence other than a confession that a crime was committed, or that it was committed by the person who allegedly confessed. Usually, a confession is obtained in an investigation of a reported crime, and uncorroborated confessions of inmates in prison with no prospects of release ever or until there are very old are often not taken very seriously by law enforcement.</p>
<p>This is a question of state law in state criminal cases, it is a question of federal law in cases arising under Title 18 of the United States Code (the federal criminal code), it is a question of different federal laws in military justice courts-marital prosecutions which are quasi-criminal in nature, and it is a case of district or territorial law in most areas of the U.S. that are outside a U.S. state that are not prosecuted under Title 18 of the United States Code.</p>
<p>In U.S. military court-martial cases, corroboration of a confession is required to convict.</p>
<p>In U.S. law, in many state and in federal court civilian criminal prosecutions, a validly obtained confession alone is sufficient evidence to convict.</p>
<p>A criminal defendant who does not plead guilty may offer evidence at trial to rebut the validity of a confession at trial. And, if the evidence is sufficient to create a reasonable doubt, an appellate court could overturn a conviction based upon the sufficiently rebutted confession alone. But, a confession alone that is not adequately rebutted at trial with other evidence can support a criminal conviction in most civilian U.S. criminal justice systems.</p>
<p>Also, frequently, a confession made prior to trial is challenged on the ground that it was obtained in violation of a defendant's <em>Miranda</em> rights or was not a voluntary confession that was obtained in violation of more general constitutional due process rights of a defendant (mostly under the 5th Amendment). In those cases, if the challenge is successful, the confession never comes into evidence at all, and thus, can't be used to support a conviction.</p>
<p>In other cases where there is doubt that a confession is to a crime that was actually committed, the matter is often resolved for practical purposes with a forensic psychiatrist's determination affirmed by a judge, that the defendant is not mentally competent to stand trial.</p>
<h2>Post-Conviction Relief In The U.S.</h2>
<p>In U.S. law, another way that a case can present itself is when a guilty plea is entered, or a conviction is reached following a trial, and someone subsequently comes to the court after the conviction alleging that the conviction should be set aside because the crime in question was not committed.</p>
<p>In practice, if it is clear that the crime in question didn't happen (e.g. a murder conviction of someone who shows up in court alive who pranked the confessing defendant into thinking he was killed), courts usually vacate the conviction without objection from the prosecutor's office.</p>
<p>This is a form of a &quot;collateral attack&quot; on a conviction, and it is sometimes successful. But it is not always successful, even if the evidence that the crime was not committed is overwhelming.</p>
<p>There is dispute in the case law and jurisprudence, in particular, in a federal collateral attack on a conviction, called a <em>habeas corpus</em> petition, if &quot;actual innocence&quot; is available as a defense to a conviction in the absence of any procedural violations of a defendant's rights in the court process. Very few convictions are set aside on that ground, but it is very frequently raised in <em>habeas corpus</em> petitions.</p>
<hr />
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<p>In the United Kingdom, corroboration of a confession where there is not a guilty plea is required to convict (but this is not required in all cases Canada and in some other Commonwealth countries).</p>
<blockquote>
<p>In the Commonwealth countries — such as England and Wales, Scotland,
Canada, and Australia — the plea of <em>nolo contendere</em> is not permitted.
The defendant must enter a plea of &quot;guilty&quot; or &quot;not guilty&quot;. If a
defendant refuses to enter a plea, the court will record a plea of
&quot;not guilty&quot;.</p>
</blockquote>
<p>(<a href="https://en.wikipedia.org/wiki/Nolo_contendere#Commonwealth" rel="nofollow noreferrer">Source</a>)</p>
<p>These shorthand descriptions only roughly state the situation in English law. For a more nuanced, but somewhat dated, analysis of the situation under the law of England and Wales that also traces the history of the relevant law there, <em>see</em> Raymond K. Berg, &quot;Criminal Procedure: France, England, and the United States&quot; <a href="https://core.ac.uk/download/pdf/232969238.pdf" rel="nofollow noreferrer">8(2) DePaul Law Review pages 256</a>, 325-330 (1959). As noted there prior to 1660, confessions in or out of court were considered guilty pleas in English law, but major reforms were adopted in the 1800s. The departures of American law from English law in this area, in part, flows from the fact that the reforms of English law post-dated the American Revolution.</p>
<hr />
<p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="france-container">france</a></p>
<p>Most civil law legal systems are based on the legal codes of France, Germany, or Spain. France's legal system is examined in this post as representative of this type of system, as it was the original civil code legal system.</p>
<p>France does not have a legal system rooted in the English common law, although it did heavily imitate English criminal procedure from 1791 to 1808. The structure and most of the principal doctrines of French criminal procedure are traceable to a legal code called the <em>Code d'Instruction Criminelle</em> adopted there in 1808, and then significantly overhauled and reformed in multiple installments the first of which was adopted in 1958, which is the event that prompted Professor Berg to write Raymond K. Berg, &quot;Criminal Procedure: France, England, and the United States&quot; <a href="https://core.ac.uk/download/pdf/232969238.pdf" rel="nofollow noreferrer">8(2) DePaul Law Review pages 256</a>, 283-295 (1959).</p>
<p>As of 1959, in France, the investigatory phase of a criminal investigation was more formalized than under English or American law and more cleanly separates investigative and deliberative parts of the criminal justice process with different personnel assigned to each function (all quotations below are from Berg, some spellings may be incorrect due to incorrect OCR translations):</p>
<blockquote>
<p><strong>The first stage is the preliminary investigation wherein the offence is verified, the circumstances under which it occurred are determined
and evidence is gathered.</strong> In the second stage all the evidence is
weighed in order to decide whether or not the accused should be held
for trial. The third stage is the trial itself.</p>
<p>The investigation of offences preliminary to trial is carried on by a
group known as the <em>police judiciare</em> and by the <em>juge d'instruction</em>
who, until the new code, was considered a member of the <em>police
judiciaire</em>. The <em>police judiciaire</em> is operated under the direction
of the <em>procureur de la Republique</em> and is under the supervision of
the <em>procureur general</em> in each <em>Cour d'Appel</em> district. The <em>police
judiciaire</em> is, with certain exceptions, in charge of investigating
violations of penal law, gathering evidence and finding suspected
parties until investigation is begun. When the investigation is begun,
it performs tasks assigned to it by investigating officials.</p>
</blockquote>
<p>This formal body can interview suspects and witnesses:</p>
<blockquote>
<p>If it is necessary to hold a person more than 24 hours, he must be
taken before the <em>procureur de la RWpublique</em> who can authorize a
further 24 hour period. During this period of detention, the suspect
may be interrogated, though the length and details of the
interrogation must be noted by the officer of the <em>police judiciaire</em>
in a written report. A medical examination of the suspect can be
ordered by the <em>procureur de la Republique</em> or by the suspect if he
demands it after 24 hours. It is provided that the <em>procureur general</em>
can instruct the <em>police judiciaire</em> to gather any information which
he thinks will help him to administer justice. The <em>procureur de la
Republique</em> also has the power to direct their investigations. The
<em>juge d'instruction</em> as well, may delegate his duties to the <em>police judiciaire</em> so that they have all the powers of the <em>juge
d'instruction</em> when acting within the limits of that investigation.</p>
<p><strong>They are not allowed however, when acting in this capacity, to</strong>
<strong>interrogate or confront the accused. If it is necessary to detain a</strong>
<strong>suspect, they must bring him before the <em>judge d'instruction</em> within 24</strong>
<strong>hours.</strong> . . .If the offence is a &quot;flagrant&quot; crime, the <em>procureur de la
Republique</em> may examine the suspect at once. If the suspect brings
counsel he cannot be questioned except in the presence of that
counsel. If the offence is a &quot;flagrant&quot; d6lit, the <em>procureur</em> may
place the suspect in custody after interrogation. If the <em>juge
d'instruction</em> is present, the <em>procureur de la Ripublique</em> and the
officers of the <em>police judiciaire</em> hand the case over to him and he
proceeds with the investigation. Thus, the <em>police judiciaire</em> can
make investigations and interrogate the suspect upon delegation or
instructions from the <em>procureur general</em>, the <em>procureur de la
R6publique</em>, the <em>juge d'instruction</em>, the <em>prefet</em>, or by virtue of
their own office. They also have additional powers in the case of a
&quot;flagrant&quot; crime or <em>delit</em> . . .</p>
<p>It is the duty of the <em>juge d'instruction</em> to conduct an
investigation known as the preliminary
examination (<em>instruction priparatoire</em>). The judge may make such an
investigation in three cases only: when directed by the <em>procureur;</em>
when the person injured by a crime or <em>delit</em> complains to the judge and
constitutes himself a <em>partie civile</em>; when the offense is considered
a &quot;flagrant&quot; <em>delit</em>, in which case the judge on his own initiative
may conduct an investigation. It must be emphasized that the purpose
of this investigation is to determine whether there is enough evidence
to hold the suspect for trial. . . The most ancient feature of this
investigation is the interrogation (<em>interrogatoire</em>) of the suspect.
It is also the most characteristic and probably the most important
part of the investigation since it may lead to a confession and
because the judge cannot order the committal for trial until he has
heard the suspect. The theoretical purpose of the <em>interrogatoire</em> is
the ascertainment of truth. It is necessary to consider it (the
<em>interrogatoire</em>) as being at the same time a means of defense and a means of investigation; its object is to hear the explanations of the
suspect for the purpose of verifying them, to record his denials or
his admissions, to search for the truth of the facts in his convincing
or contradictory statements. The <em>interrogatoire</em> is conducted
secretly in either the cabinet of the judge or in the jail. The number
of the <em>interrogatoires</em> is left entirely to the discretion of the
judge. All that occurs during the proceedings is noted though the
suspect is not under oath. The suspect cannot be questioned by anyone
except the judge.</p>
<p>The Code provides for at least two appearances of the suspect before
the <em>judge d'instruction</em>. At his first appearance, the judge will
verify the identity of the suspect, tell him expressly each charge
against him and warn him that he is free not to make a declaration. If
the suspect wishes to make a declaration the judge takes it at once.
If the judge is of the opinion that the accused should be examined, he
must inform the suspect of his right to counsel. If the suspect
wishes, he will have one officially chosen for him. The judge may
carry out an immediate interrogation if the matter is urgent,&quot; but
other than this, the first appearance is regarded as a preliminary
proceeding in order to inform the suspect of his rights and give him
an opportunity to explain away the charge. Thus, as a general rule,
the judge may not question the suspect at his first appearance.</p>
<p>At least two days before the interrogation, counsel for the suspect is
summoned by a registered letter. The proceedings must also be placed
at the disposition of the counsel for the suspect at least 24 hours
before each interrogation. The <em>procureur</em> may also be present at the
<em>interrogatoire</em>.&quot;I During the <em>interrogatoire</em>, the <em>procureur</em> and counsel for the suspect can only ask questions after receiving the
permission of the judge. Counsel for the suspect listens to the
<em>interrogatoire</em> and makes notes. His role is to keep a check on the judge. If the suspect refuses to answer, the judge is provided with no
means of compulsion.</p>
<p>If the suspect persists, mention of this must be made in the <em>proces
verbal</em> and if the suspect is brought to trial, the court may draw an
unfavourable inference from the fact of such refusal. As soon as the
<em>judge d'instruction</em> considers the investigation completed he sends the dossier to the <em>procureur de la Republique</em>, who must return his
order within 3 days. If the judge feels the facts do not constitute a
crime, <em>delit</em> or contravention, he declares a non-suit by decree. If
he thinks the facts constitute a contravention, he decrees that the
case be remitted to the <em>Tribunal de Simple Police</em>. If he thinks the
facts constitute a <em>delit</em>, he decrees that the case be remitted to
the <em>Tribunal Correctionnel</em>. If he thinks the facts constitute a
crime, he decrees that the dossier and statement of evidence be sent
by the <em>procureur de la Republique</em> to the <em>procureur giniral</em> at the
<em>Cour d'Appel</em> so that the <em>Chambre d'Accusation</em> can decide whether the suspect should be held for trial.&quot;&quot;</p>
<p>Thus, if the offence charged is a crime, there has probably been an
investigation by the <em>police judiciaire</em> under the <em>procureur de la
Republique</em> and an independent examination by the <em>judge
d'instruction</em>. The suspect has probably been interrogated by the
<em>police judiciaire</em> and by the <em>judge d'instruction</em>. The result of these investigations is all contained in one dossier which is now sent
up to the <em>Chambre d'Accusation</em> which will decide if the suspect
should be tried in the <em>Cour d'Assise</em>.</p>
</blockquote>
<p>The bottom line is that in France and most other civil law legal systems, while there is not a category prohibition on conviction of someone for a crime when there is a confession but no corroborating evidence that the crime was committed by the defendant, the task of the investigative stage judicial officials in the preliminary investigation phase of the process is to determine whether a crime was committed and what it was from a pro-active review of all of the evidence available or that can be obtained including a statement from a defendant with a right to counsel.</p>
<p>The investigative judicial officials must be convinced from all of the evidence that is available to them that a crime was committed by the defendant. A confession might be critical in that evaluation, but the official's duties are to not accept that blindly and instead evaluate the defendant's statements in light of the totality of the evidence.</p>
<p>It also bears noting that in the civil law system, following a first trial, an appeal on issues of both fact and law, including the issue of whether a crime was committed, is allowed, unlike in common law systems, where the findings of fact made at trial are final and binding on all appellate courts reviewing the case.</p>

<p>It is a general rule that a bare confession does not suffice to allow a prosecution. This is known as the <a href="https://www.law.cornell.edu/wex/corpus_delicti" rel="noreferrer">corpus delicti rule</a>. There must also be evidence that a crime occurred. There is jurisdictional variation in what level of evidence is required, and whether that evidence has to be separate from the person's testimony.</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>Yes, an accused can be convicted on the basis of their confession alone, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1801/index.do" rel="nofollow noreferrer">provided it was properly obtained</a>; see also <em>R. v. Hart</em>, <a href="https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14301/index.do" rel="nofollow noreferrer">2014 SCC 52</a> for the treatment of confessions obtained in Mr. Big operations.</p>
<p><em>R. v. Singh</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2390/index.do" rel="nofollow noreferrer">2007 SCC 48</a>:</p>
<blockquote>
<p>a confession is a very powerful item of evidence against an accused which, <strong>in and of itself</strong>, can ground a conviction</p>
</blockquote>
<p><em>R. v. Ball</em>, <a href="https://canlii.ca/t/hx751" rel="nofollow noreferrer">2019 BCCA 32</a> (internal citations removed):</p>
<blockquote>
<p><strong>An accused can be convicted on the basis of a confession alone, despite the absence of any confirmatory evidence whatsoever</strong>. And judges and juries tend to disbelieve ex post facto recantations by those who have previously confessed</p>
</blockquote>
<p><em>Rex v. Chambers</em>, <a href="https://canlii.ca/t/g1hkz" rel="nofollow noreferrer">[1947] O.R. 443</a> (Ont. C.A.):</p>
<blockquote>
<p>Counsel for the appellant also raised the objection that there was no <em>corpus delicti</em>, and that the death of the little girl had, therefore, not been proved. In our opinion <strong>the appellant's statement to the police on the matter of the death of the child and of his disposition of the body, which, we think, was properly admitted in evidence, fully meets all requirements in that regard.</strong></p>
</blockquote>
<p><em>R. v. D.J.N.</em>, <a href="https://canlii.ca/t/hwpt0" rel="nofollow noreferrer">2018 BCSC 2277</a>:</p>
<blockquote>
<p>Once a confession is ruled admissible, it is for the trier of fact to determine whether to accept it in whole or part, and to evaluate whether it is sufficiently reliable to sustain a conviction. It seems that <strong>an accused may be convicted of a crime on the basis alone of an extrajudicial confession</strong> <strong>without any corroborative evidence</strong>: see <em>Kelsey v. The Queen</em>, [1953] 1 S.C.R. 220 per Fauteux J. at page 227.</p>
</blockquote>
<p><em>R. v. Petersen</em> (1983), <a href="https://canlii.ca/t/j5jwj" rel="nofollow noreferrer">45 N.B.R. (2d) 271</a>, quoting from the Chief Justice of Canada in <em>R. v. Brisson</em>, [1982] 2 S.C.R. 227:</p>
<blockquote>
<p>The mere fact that in some cases the cause of death cannot be determined is no more a disabling hurdle for the Crown that the fact that <strong>in some cases there is no <em>corpus delecti</em></strong>.</p>
</blockquote>
<p>Note that the charging document will need to be specific enough for the accused to meet the prosecution's case. This means for murder, the charging document will need to identify who the accused is being charged with murdering. This implies that, as a pratical matter, if the only evidence really is the confession, the confession will need to be detailed enough to identify the deceased.</p>
<p>It is also highly unlikely that a decision to charge will flow from a confession that does not contain enough information to allow the Crown to even determine <em>whether</em> a crime at all occurred.</p>
<p>As another practical matter, many guilty pleas are supported entirely by an agreed statement of facts that the prosecution and defence jointly submit to the Court.</p>
