HOW DO YOU DEAL WITH IT WHEN YOU KNOW YOU HAVE BEEN FORCED BY THE POLICE TO INCRIMINATE YOURSELF IN A STATEMENT YOU WROTE?

After nearly 25 years of absence, I resumed the practice of law in Nigeria a couple of years ago. There is one thing I see often in the criminal justice system in Nigeria. It is that the accused person says that the statement being tendered in evidence as his statement was actually not something he voluntarily wrote - that the police or the EFCC, or NDLEA, DSS, etc forced him to write what he wrote. In other words, the accused person is saying that he did not freely give the statement or that the contents of the statement he wrote was not the truth he intended to write, but that he wrote it because he was threatened or tortured.

In law, we say that such statement is not voluntary. A statement must have to be voluntary in order for the court to accept it in evidence. There are two aspects to voluntariness. First, the making of the statement must be something you chose to do, regardless of the content. Second, the contents of the statement must be something you voluntarily wrote about what happened. It is possible to volunteer to make a statement, but you are forced to add contents against your wish. In either case, any of these forms of involuntariness will prevent the statement you made from being accepted in evidence.

Why would you worry about the content of your statement not being voluntary? It is usually because it contains information against you. We say that such statement or information is incriminating because it amounts to admission that you did something wrong or that you did something which implicates you as guilty or responsible for a crime. And why would the police pressure you or force you to make a statement against yourself? Simple: They want you to make it easy for them to prove the case against you by simply saying you admitted to the incriminating facts.

Among the evidence the court could use against you in criminal trials, your own statement voluntarily made is about the strongest evidence against you. In fact, if you admit all the relevant facts that constitute the elements of the crime, your admission would amount to a confession and when there is a confession, there is no need for any trial. They court will simply find you guilty based on your confession and sentence you immediately. It is very difficult to reverse on appeal a conviction based on a confession, once the confession was not freely given. Well, there is a difference between a confessionary statement and a mere admission of incriminating fact and a confession made in court before a judge. Let's not worry about the difference. Let's focus on the fact that you were forced to make a statement you did not wish to make or to assert a fact in your statement that you did not wish to assert.

Now, let me draw your attention (particularly, the lawyers here) to a critical difference. The problem with your statement is not primarily whether it is true or false. Rather, it is whether you made it voluntarily or whether you were forced to make it. If it was not made voluntarily, the court will not consider whether it is true or false. Unfortunately, even among good police officers, they tend to focus on whether the statement was true. And they think that as long as they are forcing you to say the truth, there is nothing wrong with that. But there is everything wrong with that. The statement must be freely given, regardless of the truthfulness or otherwise of it

However, after it is determined that a statement was freely given, it will be important to consider if the content is true. In other words, the court will not accept a statement as true, if there are other pieces of evidence that clearly show it is false or if it states something the court has judicial notice of as impossible. For instance, let us say I make a statement with the police and claim that I had lunch last week with Zik and Awolo and I murdered both of them. The fact that I made such statement voluntarily does not mean the court should accept it as true or valid.

I do know that for some reasons (good and bad) the Nigerian police tend to force suspects to makes statements against their will. I remember the day I was to make a statement after being arrested by the EFCC. The officers taking my statement begged me to admit that I would pay back 1.5 million dollars to the Nigerian Government. I told them no, I would not make such admission because there was no basis for me to pay back because I did not owe them money. Instead they owed me money. The officers begged me. They explained to me that all they wanted was for me to make such statement in order for Mrs. Farida Waziri to please the Ambassador. And that they knew I should not pay back, but that I should make that statement and then I would be released and I would go back to America and if I did not come back to Nigeria, nobody would do anything about it. I refused to make such statement. I was detained for 90 days because of my refusal.

Detaining me for 90 days was pressure. They wanted to force me to make an incriminating statement. But I was able to resist. So, my explanation here is only to show that I have personal knowledge of the police pressuring suspects to make a statement against their interest, which could hurt them in court.

Now, let me make another important distinctions for our lawyers here. A statement is voluntary, even if it was suggested to you and even if you were deceived into making it. For instance, if the police officer tells you to admit that you did it so that he would beg the complainant and settle the case, and you make such statement, the statement is indeed voluntary. You were not forced. You made it believing certain outcomes. The reason you made a statement is not the test of whether it was voluntary unless that reasons was force or threat of force or undue and unlawful incarceration. Many people confuse this. They think that because they deceived them into making the statement, the statement is not voluntary. A voluntary statement is one you made without force or pressure, and not the one you made out of a mistaken assumption of outcomes or out of deception.

Anyway, let's go to what you should do when you have been forced to make a statement. The EFCC will usually detain you and abuse your rights until you give them the type of statement they want. Once that happens, they will release you believing that your conviction will be easy based on that statement. And that will be the case unless you take the following steps immediately you regain your freedom.

You must immediately retain a lawyer to challenge the statement, not to prepare to defend you at trial, even though he will still challenge the statement at trial. Yes, one popular way to challenge a statement for involuntariness is to wait in court till that moment when the prosecutor tries to introduce your statement into evidence. Your lawyer will then challenge it on the ground of involuntariness and the court will conduct a trial within trial to determine whether the statement was voluntary or not. But this is very risky and it is not really the best way to handle such situations. We, that are involved in criminal trials in Nigeria, know that the court will accept the police or EFCC side on this matter 90% of the time.

Therefore, in dealing with involuntary statements, do not wait until the criminal trial has commenced. And even if there is never a trial, you still have the problem that there is a statement somewhere implicating your client. Once your client has informed you that he was forced to give a statement, you should write a letter to the police protesting the statement. Let them know that your client's rights were abused after his arrest. Protest vehemently and demand action. Then file a fundamental right enforcement action at a Federal High Court against the police authority or EFCC to enforce your client's fundamental rights. There is a good chance that you will prevail here. The chances of winning here is 50%, which is higher than 10% if you wait till criminal trial. So, insist that your lawyer do something to fight against the fact the police have a statement you were forced to make. The trial under the fundamental rights enforcement procedure could be much better than the trial within trial in criminal proceedings.

Finally, I use this opportunity to share with our members and lawyers alike. If a person informs you that the police have invited him because of an incident, take him to your office and ask him to give you a statement of what happened. (Video-tape the interview if possible) Let your client make a statement before he goes to meet the police. That statement will be useful in showing that any statement he may be forced to give the police was forced and involuntary. It will impress the judge that your client rendered a complete account of what happened in your office and signed it before meeting the police and that the statement he gave the police is completely different from what he gave you. This is the magic. Try it. You see that the police will be too ashamed to produce the forced statement they obtained in their office.

Finally, finally, when you make a statement in the police station or EFCC office, the statement will contain on the top a cautionary statement saying that you were not forced to make the statement and that you did so voluntarily. Don't worry about that. That statement is not valid evidence that the statement you made was voluntary. The reason is because if you were forced to lie against yourself in the statement you wrote, you would have been forced o sign that you were not forced in the same statement.

Happy weekend, and stay informed.

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lolx.. D OP just reminded me of my days in SARS net, only Godcould bear me witness that everything written in my stament was written and signed by same police, the write-up was composed and the writter(police) in life camp abuja labeled me a criminal who has boys that i sent for operation, if God was not was not real i would have been in jail or probably shot dead by now, i was later transfered to abature, but on the day of my transfer was when i came out, since then, i started hateing black uniforms for no reason , most police know the truth, but toture pple to accept what they never did, God help nigeria..!

vchykp:
lolx.. D OP just reminded me of my days in SARS net, only Godcould bear me witness that everything written in my stament was written and signed by same police, the write-up was composed and the writter(police) in life camp abuja labeled me a criminal who has boys that i sent for operation, if God was not was not real i would have been in jail or probably shot dead by now, i was later transfered to abature, but on the day of my transfer was when i came out, since then, i started hateing black uniforms for no reason , most police know the truth, but toture pple to accept what they never did, God help nigeria..!

That is why we are trying to cross all tis and dot all iis

God bless you for this!!!
Am I permitted to share it on blogs and other social media websites ?

mohemos:
God bless you for this!!!

Am I permitted to share it on blogs and other social media websites ?

Yes sir, spread the news