The exclusion of coerced confessions and the regulation of custodial interrogation under the American Convention on Human Rights.

• Author: Maull, John

1. THE PRACTICE OF CRIMINAL PROCEDURE IN LATIN

   AMERICAN COUNTRIES

2. SUBSTANTIVE PROTECTIONS AGAINST AND REMEDIES FOR

   COERCED CONFESSIONS UNDER ARTICLE 8 AND ARTICLE

   63 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS III. PRIOR INTERPRETATIONS OF ARTICLE 8 BY THE

   INTER-AMERICAN COURT AND COMMISSION

4. TECHNIQUES OF INTERPRETATION EMPLOYED BY THE

   INTER-AMERICAN COURT

5. AN INTERPRETATION OF ARTICLE 8 OF THE AMERICAN

   CONVENTION

6. COMPENSATION AND PUNISHMENT AS REMEDIES FOR

   COERCED CONFESSIONS UNDER THE AMERICAN

   CONVENTION VII. THE IMPORTANCE OF ADOPTING SPECIFIC PROCEDURES

   FOR EXCLUDING EVIDENCE VIII. AN EVIDENTIARY HEARING AND THE BURDEN OF PROOF

9. EVIDENTIARY RULES TO REGULATE THE INTERROGATION

   OF THE ACCUSED BY THE POLICE

10. THE RIGHT TO COUNSEL UNDER ARTICLE 8 OF THE

    AMERICAN CONVENTION

11. EXTRA-JUDICIAL INTERROGATIONS: ARE THEY PROHIBITED

    BY THE AMERICAN CONVENTION? XII. A FLEXIBLE APPROACH FOR ASCERTAINING THE

    VOLUNTARINESS OF A CONFESSION XIII. DEVELOPING AN ARTICLE 8 JURISPRUDENCE THROUGH

    THE INTER-AMERICAN COURT S CONTENTIOUS AND

    ADVISORY JURISDICTIONS XIV. THE IMPLICATIONS OF DEVELOPING AN ARTICLE 8

    JURISPRUDENCE

    To the casual observer, the rights enjoyed by the accused appear to be well protected in Latin America. In countries of the region, the constitutions and codes of criminal procedure contain ample procedural guarantees, encompassing rights considered fundamental to the fairness of the criminal process: the right not to be tried twice for the same offense, the right to a neutral and detached magistrate, a presumption of innocence, the right to counsel, and a privilege against self-incrimination.(1)

    When the onlooker examines how criminal justice is actually administered in Latin America, however, a very different picture emerges. These abstract declarations do not translate into concrete protections against human rights abuses. Defendants are routinely denied procedural guarantees which their countries, constitutions and criminal procedure codes provide on their face.(2) As a result, the violation of human rights is a common occurrence in the legal systems of many Latin American countries.

    Thus, the practice of criminal law in many Latin American countries is desperately in need of reform. While the impetus and desire for change must originate internally if the change is to be meaningful and long-lasting, the international legal system can play a role in reforming these systems. Pressure from without, in the form of international conventions and decisions by international courts, can speed up the process of reform by drawing attention to the international standards that all countries are expected to observe. In particular, the Inter-American Court of Human Rights ("Inter-American Court")(3) can play an important role in shaping criminal procedure in the region. The Inter-American Court is the international tribunal responsible for interpreting and enforcing the American Convention on Human Rights ("American Convention").(4)

    This Note will argue that to alter the practice of criminal law in Latin America, the Inter-American Court must begin to interpret Article 8 of the American Convention SQ as to develop a jurisprudence that protects the rights of criminal defendants. Entitled "Right to a Fair Trial," Article 8 sets forth numerous protections for those accused of criminal offenses, including the right to a hearing and an impartial tribunal, the right to assistance by counsel and an interpreter, the right to be notified of the charges against the accused, and a presumption of innocence. These provisions serve as a useful vehicle for the Inter-American Court to articulate minimum standards which the criminal justice systems of Latin American countries should follow.

    Reforming the practice of criminal law in Latin America will be a slow and deliberate process in which the Inter-American Court articulates the requirements of Article 8 on an incremental basis. To date, the Inter-American Court has interpreted Article 8 in only one advisory opinion dealing with the right to counsel.(5) Numerous issues that are critical to the fairness of criminal procedure await resolution by the Inter-American Court.

    This Note will address only two areas of criminal procedure that fall within Article 8's reach--the admission of coerced confessions in legal proceedings and the regulation of custodial interrogations. The Note will begin by examining the legal protections that the accused enjoys in the national legal systems of Latin American countries. The criminal procedure codes of these countries regulate the interrogation of individuals and the admissibility of statements made by the accused; in practice, though, these protections in many cases are either circumvented or not enforced. This Note will then analyze member states, legal obligations under Article 8(2)(g) and Article 8(3) of the American Convention. In particular, it will argue that the privilege against self-incrimination contained in Article 8(2)(g) protects an individual from compulsion on the witness stand as well as from coercion during interrogations.(6) Moreover, the protection against coerced confessions in Article 8(3) mandates the exclusion of such statements from legal proceedings.(7)

    This Note will then urge the Inter-American Court to adopt evidentiary rules for scrutinizing the admission of confessions in court. In particular, it will argue that the state must bear the burden of proving that a confession was voluntary. This Note will also suggest procedural rules for regulating the conduct of police officers and other state officials during interrogations. For example, it will argue that the American Convention requires the presence of defense counsel at all interrogations conducted by police officers or judicial officials.

1. THE PRACTICE OF CRIMINAL PROCEDURE IN LATIN AMERICAN COUNTRIES

   The criminal procedure codes and constitutions of Latin American countries protect criminal defendants and suspects from torture and other forms of coercion, and most countries remedy such human rights abuses by excluding coerced confessions from legal proceedings. Despite these explicit protections, many individuals suspected of ordinary criminal activity are tortured,(8) and incriminating statements made under duress are often admitted as evidence in legal proceedings.(9)

   To understand how these guarantees protecting criminal defendants are circumvented(10) it is necessary to examine how the criminal justice systems in Latin America operate. Although criminal procedure codes vary somewhat from country to country, it is possible to generalize about common procedures.(11) Most countries in the region have a "reformed inquisitive" system in which criminal proceedings are divided into a summary (pre-trial) stage and a plenary (trial) stage.

   The summary stage begins after the police arrest an individual or a complaint is filed. A judicial official (or the police in some countries) directs the investigation of the allegations, collecting evidence in secret and without the interference of the defendant or defense counsel.(12) Once the summary stage is completed, the accused is judged to be either innocent or guilty during the plenary stage. The proceedings take the form of a trial and are either written or oral. "The evidence is weighed, the act classified and the corresponding penalty imposed."(13) In many countries, this second stage is adversarial in nature, with the accused being represented by defense counsel.

   During the pre-trial stage, the accused is interrogated to obtain more information about the crimes. Most jurisdictions permit only a member of the judiciary to question the accused,(14) although some countries provide a role for the police.(15) Generally, the interrogation occurs within twenty-four hours of detaining the accused or placing him under judicial authority.(16)

   During the interrogation, the accused enjoys protections such as a privilege against self-incrimination.(17) In addition, most criminal codes strictly prohibit the use of coercion, threats or violence by the judge or the police.(18) Officials are also not permitted to employ deceptive or suggestive questions to induce incriminating statements. The Nicaraguan code, for example, states that "the judge must be humane, affable and benign with the [accused], seeking to elucidate the facts and discover the truth."(19)

   Despite these protections, the police commonly mistreat individuals suspected of criminal activity. In most countries, the police are not obligated to turn the accused over to the investigating judge immediately. The defendant can remain in police custody, usually incommunicado, for many hours or even several days.(20) Not surprisingly, the most serious human rights abuses occur during this period. Defendants are usually interrogated without the benefit of a lawyer, and many are subjected to torture or more subtle forms of pressure.

   The purpose of this mistreatment is to extract a confession or obtain information that implicates other people or leads to additional evidence against the accused.(21) For the police, coercive interrogation techniques are a means of expediting the investigation of crimes. "Due to the absence of modern investigative tools in most Latin police agencies and the lack of technically proficient personnel, reliance on the defendant's statements to solve cases is a necessity."(22)

   Once the police turn the suspect over to the investigating judge, evidence illegally obtained by the police may influence a judicial official's decision whether to commence formal legal proceedings.(23) Moreover, with the intervention of a judicial official, incommunicado detention does not necessarily cease. The judge has the power to deprive the defendant of outside contacts during the investigatory stage. "The rationale for allowing this form of detention is to ensure that the accused does not concoct a story with his accomplices or otherwise interfere with the...