Wolchover and Heaton-Armstrong on Confession Evidence.

WOLCHOVER AND HEATON-ARMSTRONG ON CONFESSION EVIDENCE. By David Wolchover and Anthony Heaton-Armstrong. London, England: Sweet and Maxwell, 1996. Pp. ii, 734.99 [pounds sterling].

The authors of Wolchover and Heaton-Armstrong on Confession Evidence(1) (hereinafter On Confession Evidence) are barristers (counsel who are admitted to the bar and allowed to litigate in superior courts), affiliated with Grays Inn in London. That they are practicing barristers who, as is customary in England, both prosecute and defend in criminal cases, informs much of this excellent treatise. For example, the book contains a detailed analysis of the substantive arguments regarding abolition of the right to silence. One of the assumptions of those favoring abolition is that innocent people will deny accusations against them. As the authors point out, however, this "axiom assumes that the generality of mankind is by nature vocal."(2) They go on to note that "it tends to be forgotten that many people nevertheless remain timorous and tongue-tied, particularly in the presence of authority figures,"(3) and they conclude that "experience shows that most people are sufficiently intimidated by the `inherently coercive' nature of custodial interrogation that they will give answers despite the traditional caution and against their preferred inclination."(4) This is not to suggest that the authors are biased. Rather, they are scrupulous in presenting all sides of an issue, although it seems clear that they do not favor the recent Changes in English law curtailing the right to silence.

The book is not a spare practitioner's guide or nutshell. As the authors acknowledge in their introduction, they were torn between producing "a quick reference handbook" or "an exhaustive treatise."(5) While leaning in the direction of the exhaustive treatise approach, their end-product is a nice compromise that incorporates the best aspects of both extremes. As a result, there is something for everyone in this lengthy, informative, elegantly written and analytical tractate on the law of confessions in English criminal law. This is also a book that will not soon be out of date. The authors plan to supplement it as needed. Indeed, I have seen a draft of the first supplement, which was issued in March 1997, and it is a continuation of the fine scholarship found in the basic text.(6)

The book is not entirely new. The authors relied on an earlier work by Peter Mirfield,(7) which had become outdated, and a 1985 treatise by co-author David Wolchover entitled The Exclusion of Improperly Obtained Evidence.(8) Although there is a fair amount of historical material in On Confession Evidence, this background information will be most helpful to those with at least a basic knowledge of English history and law. There are casual references to the reigns of various monarchs and English judges that will have special meaning only for English lawyers. The language is of course English, but it is English English, not its American counterpart, and the British version does take some practice. For example, in describing the predecessor Mirfield book, the authors note that it is "getting rather long in the tooth,"(9) rather than using my more pedestrian description of it as outdated. There is also a generous sprinkling of "whilsts" which gives one only slight pause. The writing is also quite dense and demands the reader's full attention. Whatever impediments these factors may present, it is well worth the effort.

The book has of course a detailed table of contents, a table of cases and statutes, mostly English, and a very good index. It only has five chapters, but they are long and subdivided by sections, and extensively footnoted with articles, both legal and nonlegal, cases, empirical studies, and statutes. At the start of each chapter, there is a list of the issues dealt with and the section numbers in which they appear. References are only to the section numbers, not pages, which makes it a bit more difficult to flip to the desired material.

Chapter 1 is entitled "The Nature and Character of Confessions," and it examines the need for confessions, their sufficiency, denials, the different types of confessions, and the empirical and psychological aspects of interrogation and confession, including the problem of false confessions. The succeeding chapters are arranged in chronological order paralleling the steps in the criminal justice process. Chapter 2, "The Obtaining of Confessions: Interrogation and the Regulation of Questioning," contains an informative historical synopsis of the English law of interrogation and goes on to set forth the modern rules and statutes governing the interrogation process. The chapter analyzes such issues as detention and treatment conditions, vulnerable suspects, incommunicado interrogation and cut-off questioning, the right of access to free legal advice, and special statutory grants of power to conduct inquisitorial investigations in select areas such as bankruptcy and serious or complex frauds. The title of Chapter 3 is "Proving Confessions," which deals with the old and modern methods of establishing a defendant's statement such as audio and video recordings, and the more difficult question of how to disprove the giving of a confession. American readers will be very comfortable with Chapter 4, "The Exclusion of Coerced and Improperly Obtained Confessions," even though there is not any systematic consideration or comparison with the American law of confessions. As the authors explain, space limitations precluded a thorough exposition,(10) although some cases from common law countries are cited and explained.

Chapter 5, the final chapter and also the most interesting, is entitled "The Evidential Significance of the Suspect's Silence." The chapter treats silence before and at trial, and is an analysis both of common law principles and modern rules and statutes.(11) There have been recent changes in this area in England, which will not go unnoticed on this side of the Atlantic,(12) and which will indeed provide support for the view of some American commentators that the right to silence embedded in the privilege against self-incrimination(13) should be abandoned or at least modified.(14)

In the United States such a change would presumably require a constitutional amendment, or at least a radically different interpretation of the Fifth Amendment by the United States Supreme Court.(15) England, however, has a parliamentary system of government that permits such changes by statute and without any recourse to the courts.(16) In 1994 England passed the Criminal Justice and Public Order Act.(17) Part III of the Act allows courts and jurors to draw adverse inferences when defendants fail to protest their innocence to the police or do not mention exculpating facts to them that the defendants subsequently rely on at trial, if under all the circumstances a person would be expected to mention those facts.(18) Similarly, adverse inferences are permissible in the case of suspects who fail to respond to police questions about suspicious objects, substances, or marks on their person or clothing or place where they are arrested;(19) or if they do not explain to the police why they were present at a place around the time of the crime;(20) or if they fail to testify on their own behalves at trial.(21) Even though the law does not make refusal to testify a criminal offense, which would be a total abolition of the privilege, the 1994 legislation nonetheless represents a sea change in English law(22) As the authors note, "Any suggestion that the suspect's obligation to notify the police of the bones of his defence on peril otherwise of invoking or increasing suspicion against himself falls short of being equivalent to the imposition of a duty to prove his innocence is nothing more than a semantic exercise."(23) At the very least, restricting the privilege against sell incrimination facilitates an inquisitorial system of justice.(24) Proponents of the change argue that it is human nature to protest one's innocence and the jury is only being told what they already instinctively know--that silence in the face of accusation is evidence of guilt.(25)

In some sense of course, that is true. Although on this side of the Atlantic we do not allow prosecutors or judges to comment adversely on a defendant's failure to testify,(26) as any criminal defense attorney will tell you, if defendants do not take the stand and deny guilt, they are more likely to be convicted,(27) O.J. Simpson notwithstanding. At the same time, we heavily penalize many of those defendants who do elect to testify on their own behalves. Once defendants take the stand, we generally permit their credibility to be impeached by evidence of prior criminal convictions, which also makes guilty verdicts more likely.(28) Furthermore, defendants who testify may be impeached by confessions elicited during custodial interrogation without the proper Miranda(29) warnings,(30) as well as by confessions secured after invocation of the right to counsel.(31) Although the United States Supreme Court has prohibited the use of postwarning silence for impeachment purposes,(32) an unwarned arrestee's silence can be used for impeachment,(33) as can a defendant's prearrest silence.(34)