In criminal proceedings, there are times when it becomes very impossible or unreasonable to convict a defendant on the predicate of a confessional statement which the defendant has pleaded either as non est factum or as an involuntary act. In a bid to ascertain the voluntariness and veracity or otherwise of such statement, the court enters into a kind of mini trial which is known as a trial within trial. The Evidence Act of 2011 on its own makes it impossible to admit confessions not voluntarily made and the writer focuses on the principles of trial within trial to remedy the dent of involuntariness. This work aims to x-ray the principles of trial within trial with a view of determining its place or significance in criminal trial.
The concept of “Trial within Trial” presupposes the existence of a substantive trial, subsuming another mini-trial ,as it were. It seeks to determine an interlocutory point of admissibility of a piece of evidence, usually the confessional statement of the defendant, allegedly made involuntarily.
It is that legal procedure whereby the court determines the voluntariness or otherwise of a confessional statement that is refereed to as a “Trial within Trial”.
It is a trial, convened to test the voluntariness of a confession, by suspending the main trial in order to ascertain the allegation of involuntariness by the defence. better put; It is a mini -trial conducted to find out if the defendant made his confessional statement voluntarily or otherwise.
Thus, where the defendant challenges the admissibility of a confessional statement allegedly made by him on grounds that he made the statement involuntarily, the court is put to the task of determining whether the defendant would have made a different statement in substance, if he were allowed the exercise of his will. All rules of criminal proceedings applies to it. In Mohammed v State (2007)13 Nwlr Pt(1050)212 Ac. The Ibadan Division Court of Appeal corroborated the above proposition thus;
It is only where an issues arises as to whether a confession was made voluntarily that the exceptional procedure of holding a trial within trial should be adopted by a trial court. In other words, the rule with respect to conducting a trial within trial only operates in cases, questioning the voluntariness or otherwise of a confession.
Meaning of a Confession
It Is instructive to note that the Evidence Act does not define what is a voluntary confession. It only provides that a confession may be given in evidence if it is relevant to any of the matter in issue in the proceeding and it is not excluded by the court. However, Sec. 29(2)(a)(b) of the Evidence Act give a clue as to what may amount to voluntariness confession suitable for admissibility.
Where the defendant by his own admission suggests or states the inference that he committed the alleged crime. This, in law, is referred to as a confession. See Sec. 28 of the Evidence Act
The purpose of a trial within trial is not to determine whether the defendant made a statement. But whether such statement was made voluntarily,not one borne out of threat,fear, unjustified hope, or any other circumstances which may cast doubt on the reliability of the confessional statement.
The Court in Silas Ikpo & Anor Vs State(1995) further laid down six factors for determining the veracity or otherwise of of a confessional statement thus;-
1).Whether there is anything outside the confession to show that it is true.
2.)Whether the statement is corroborated.
3.) Whether the statement of fact made in the confessional statement can be tested as true.
4.)Whether the defendant had opportunity of committing the offence charged.
5.)Whether the confession of the defendant was possible .
6.)Whether the confession was consistent with other facts which had been ascertained and proved in the matter.
A confessional statement when tendered and admitted in court, forms part of the evidence of the prosecution in proof of the charge against the defendant.
It is worthy of note that a confessional statement that has not been read over and confirmed before a superior police officer will not ipso facto cease to be effective or be rendered inadmissible .Such a confirmation simply makes proof of the voluntariness of a confessional statement easier and no more.
When a confession is free, voluntary, direct, positive and unequivocal about the commission of an offence , the defendant can be convicted based on same alone. See the case of Joseph Idowu v State(2005)12 Nwlr (Pt680)48.
ON WHOM LIES THE BURDEN TO DISCHARGE THE VOLUNTARINESS OR OTHERWISE OF A CONFESSIONAL STATEMENT IN TRIAL WITHIN TRIAL.
While it is trite in law that the burden of proof lies solely on the one who asserts, it is however a different scenario altogether in an objection necessitating a trial within trial. It reasons that even though the defendant is the one disputing the voluntariness of the confessional statement, it doesn’t necessarily shift the burden of proof from the prosecution to him. This forms the basis of the reasoning in the supreme Court decision in Gbadamosi v State(1992)9 Nwlr(Pt266)480 where per Omo, JSC ( as he then was) held thus;
I agree with counsel that the trial within trial conducted by the learned trial judge was irregular and that calling on the appellant to first testify, in an inquiry whether or not the statement he is alleged to have made is voluntary ,does not suggest a shift of the onus of proof from the prosecution to the defence(appellant). The immediate result of the irregularity is that the end result of it. I.e the admission of exhibit H as a confession, is improper and must be set aside.
THE UNPARALLELED SIGNIFICANCE OF TRIAL WITHIN TRIAL : AND ITS PLACE IN LAW
These entail that ;
√•Admissibility of confessional statement must be raised timeously i.e as soon as it is tendered.This position of the law is as established in USUNG v STATE (2009) All FWLR (Pt 462) 1203 where it was held thus:
“the appropriate stage to raise an objection to a confessional statement is when it is about to be tendered in evidence especially where the accused person is represented by counsel and it is assumed that he ought to know what to do at each stage of the proceedings. Any belated denial of the voluntariness of a confessional statement or its retraction is a mere afterthought.”
√•When raising objections to confessional statement ,the defendant must be specific in tenor or language of his objection .See the case of Sanni Abdullahi Vs State (2013) Vol .223 LRCN (pt.2)151.
√• A trial-within-trial must only commence on one ground, which is the voluntariness or otherwise of the confessional statement of the defendant.
√• A trial-within-trial will not be conducted in any of the following cases;
a. When the defendant alleges that his written statement was altered by the police
b. When the defendant alleges that the statement was not properly or accurately recorded .
c. Where the statement is not signed (Defendant is not challenging voluntariness but evidential value)
√• Confessional statement is inadmissible if same was obtained from a “question and answer ” session with the police.See the case of Jimoh Salawu Vs State(2009) LPELR -8867(CA)
√• Where the defendant contends that he did not make the confessional statement at all,trial-within-trial should not be conducted as same is a retraction .
√• Trial -within-trial can not be conducted in the absence of the defendant. See the case of Lateef Vs FRN (2010)All FWLR (pt.539)1171 at 1190
√• When the defendant contends that his confessional statement was not read all over to him at the police station, this does not warrant a trial-within-trial.See the case of Owie V State (1985) 1NWLR (pt.3)470.
√•When the defendant contends that confessional statement was written for him to copy, trial-within-trial is uncalled for. See the case of Augustine Ibeme Vs State (2013) 10 NWLR (pt.1362)333.
√•Only a maker of a confessional statement or his counsel can raise objection to its voluntariness .See the case of FRN Vs Babalola(2015)All Fwlr (pt.785) 227
√• Objection to the Voluntariness of a confessional statement cannot be raised by the defendant during his defence to invoke trial-within-trial. See the case of Obinah John Vs State(2013)LPELR-22197(CA)
√• Where the defendant is merely disputing the correctness of the content of the confessional statement,trial-within-trial is not necessary. In this case the statement in issue should be admitted and marked as an Exhibit by the court .The defendant or his counsel had an opportunity to revisit the statement and discredit the incorrect content during his defence.See the case of Nnabo Vs State (1992) 2NWLR (pt.226)716.
√• Allegation by the defendant that statement was not read to him in open court does not call for trial-within-trial.See the case of Anthony Nwachukwu Vs State (2004) ALL FWLR (pt 206) 526
√• A later statement made by the defendant at the police station confirming that the earlier statement was voluntary does not
dispense with trial-within-trial on the earlier statement.See the case of State Vs. Ajayi(1997)5NWLR (pt.505)382
√• That the Defendant was in court during trial-within-trial does not make him incompetent to testify in his defence in the same trial .See the case of State Vs Ajayi (Supra)
√• Allegation by the defendant that he was not “himself” when he made the confessional statement is not a ground for trial -within-trial.See the case of Lt Commander Steve Obisi Vs. Chief of Army
Staff (2004) All FWLR .(pt.215) 193.
√• Failure to cross-examine defendant during trial-within-trial is an admission that the statement was not freely and voluntarily made.See the case of Adelarin Lateef Vs.FRN (2010)All FWLR (pt.539)1171.
√• A trial-within-trial can not be terminated half way.A Judgement based on incomplete evidence cannot stand .See the case of State Vs. Gwangwan(2015) 13 NWLR (pt.1477)600
√• Objection to admisibilty of confessional statement for reason of involuntariness cannot be raised at the address stage. Note:
Confessional statement admitted and marked as exhibit can still be objected or attacked by counsel for the defendant at address stage but not for the purpose of igniting a trial-within-trial.
√• Confessional statement need not be tendered through the IPO, same can be tendered through any witness for the Prosecution I.e any other officer who witness when the defendant made his
statement .See the case of Lawrence Oguno Vs.State(2013)15 NWLR (pt.1376)1
√• Once the defendant has objected to a confessional statement ,it is wrong for the Judge to admit same “provisionally” or “conditionally” to be determined at final Judgment. Note: In Civil cases this procedure is perfectly in order.
√• The Supreme Court has condemned the word “obtained” in relation to confessional statements .See the case of State Vs. Salawu (2011)8 NWLR (pt.1279) 580.
√• Objection to the admissibility of confessional statement can not be raised for the first time on appeal.See the case of Oseni Vs. State (2012) 49 NSC QR 1190
In this piece, the writers have attempted to x-ray the concept of trial within trial from the law perspective. It is hoped that the modest treatment of the issues in relation thereto, will help as a contribution to the ever- expanding horizon of the law.
About the author
Alagor Tochukwu Daniel is a penultimate law student of the distinguished faculty of law, the Abia State University. Avid writer, orator & a researcher.He is the founder and the Lead partner of the Legal Issues. He can be reached via: [email protected]