Hon. Sarjo Barrow, Esq.
A case for caution in criminal justice
Every criminal justice system must answer a hard question: when can we send someone to prison based on their own words? The answer matters deeply not just for the accused, but for all of us who depend on courts to separate truth from error. This reality came to light in Gambia, when a High Court must answer this question. Although the state is appealing this acquittal, the piece only addressed the issue raised at trial and the judgment based on it.
The state prosecutor argues that requiring “independent evidence” or a “heightened proof” introduces a legal standard that is unfamiliar to established law. However, such a claim appears to be unfounded and lacks support from historical legal precedents dating back to the common law. Importantly, neither party has suggested that the Gambia Supreme Court has previously addressed this specific issue. Consequently, Justice Jaiteh was faced with a novel issue of first impression.
The English Inheritance
English common law, which influences our own legal system through the Law of England (Application) Act, has long grappled with this question. Traditional authorities accepted that a voluntary confession could sometimes sustain a conviction on its own. Halsbury’s Laws of England recognized this possibility, though courts consistently urged caution.
Two cases illustrate the English approach. In Regina v. Burton (c. 1854–1856), a prosecution for serious violence relied heavily on the accused’s confession. The court did not forbid conviction on that basis, but it insisted on one thing: proof that a real crime had occurred. what lawyers call the corpus delicti, or “body of the crime.” The lesson was practical rather than legalistic. A confession carries weight, but courts must first be satisfied that the underlying crime is real.
Nearly a century later, R v. Davidson (1938) echoed this wisdom. The Court of Criminal Appeal warned that relying on a confession without independent evidence of the crime’s occurrence is unsafe. Not a rigid rule, but a word of caution born from experience.
Modern English law shifted emphasis from corroboration to reliability, largely through the Police and Criminal Evidence Act 1984. Under this statute, confessions obtained through oppression or in circumstances that might render them unreliable must be excluded. The focus moved from “do we have other evidence?” to “was this confession freely and fairly given?” Something that the Gambia law requires under the Evidence Act. A confession requires corroboration by an independent witness.
The American Experience
American courts took a different path, shaped by constitutional protections and bitter experience with coerced interrogations. The concern was practical: investigative zeal, pressure on suspects, personal grudges, or the influence of accomplices can distort what a confession truly represents. A statement made at a police station lacks the oath and the cross-examination available in court. As this author argued, both the United States and the Gambia are constitutional jurisprudences. Not to mention, the Gambia too has its fair share of false or coercive confessions under the dictatorship, as revealed at the TRRC.
The traditional American safeguard is the corpus delicti doctrine—independent proof that a crime occurred before a confession can be used to convict. As the U.S. Supreme Court put it plainly: “a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.” See Wong Sun v. United States (1963).
The purpose is simple and humane: to prevent convictions where no crime actually happened and the only evidence is the defendant’s own words. The very sentiment reinforced by Justice Felix Frankfurter in Watts v. Indiana, 338 U.S. 49 (1949) (“The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law.”).
When Physical Evidence Speaks
Some crimes leave tangible proof. A burned building is real; it doesn’t depend on anyone’s memory or motive. Where independent evidence shows a fire was intentionally set, courts have treated that fact as partial corroboration of a confession. In United States v. Edwards (1998), physical evidence established that fires were caused by arson, reducing the need for additional corroboration of the defendants’ admissions. However, other evidence did in that case. But here’s the catch: a burned building can prove arson occurred. It cannot say who did it.
The Hard Question
Imagine this scenario. A defendant admits he helped arrange an arson. Investigators confirm the building was intentionally burned. But there’s no witness, no financial trail, no communications record, and no accomplice testimony. The only link between the defendant and the crime is his confession. Is that enough? Should it be?
The U.S. Supreme Court addressed this in Opper v. United States (1954), adopting what it called a “trustworthiness approach.” The government must present “substantial independent evidence which would tend to establish the trustworthiness of the statement.” Independent evidence need not prove the whole crime by itself, but it must meaningfully support the reliability of the confession.
In the arson example, proof that the fire was intentional corroborates one part of the statement, that an arson occurred. But does anything independently confirm the defendant’s claimed role? If the confession contains details only a participant would know, such as the time of the fire, the method or accelerants used, where the fire began, etc., and investigators verify those facts, the statement appears trustworthy. And that should be enough to convict without independent evidence corroborating every element of the crime. However, if the confession is bare and generic, such as I burned the building, without more corroboration, the corroboration is thin and not enough to convict if investigators cannot link the accused to the crime. This is the middle ground adopted by the USA federal courts for federal criminal prosecution.
Why Some Courts Remain Skeptical
Even in the USA, not all jurisdictions embraced this flexibility. Washington State, for instance, has declined to replace the corpus delicti requirement with a trustworthiness-only test. See State v. Aten (1996); State v. Dow (2010). Washington still requires independent evidence that a crime occurred before a confession can establish guilt.
The reasons are grounded in human experience.
First, confessions can overshadow weak evidence. Once jurors hear that a defendant “admitted it,” other evidence may become less important.
Second, psychology matters. False confessions are a documented reality that are sometimes born of fatigue, fear, mental vulnerability, or simply the desperate hope of ending an interrogation.
Third, corpus delicti serves as a structural safeguard. It forces the state to present real evidence of a crime before relying on a suspect’s words. This isn’t hostility to confessions. It’s a caution about overreliance. In The Gambia, we have bench trials (no juries) with judges who are trained professionals. Under this system, should the Gambia adopt the Opper model instead of the loosely English courts’ approach or the more restrictive Washington state rule? Or better yet, under Gambia’s constitutional framework, unlike the UK’s no-constitution model, would adopting the English rule run foul of the 1997 Constitution’s fundamental rights and due process protections?
The Balance We Must Strike
At bottom, different approaches reflect different judgments about risk. The more flexible approach worries about the guilty escaping because the corroboration rules are too rigid. The stricter approach concerns the innocent being convicted because confessions are too readily accepted. The criminal process must not become a game where technicalities let the guilty go free. But neither can it be a system where the pressure of investigation substitutes for proof.
What This Means for Us
In The Gambia, where English common law may guide our courts on issues not addressed by local legislation, these questions are not academic. They touch real lives. The Law of England (Application) Act allows our courts to consider English legal principles, but always subject to Gambian statutes and our Constitution, which is the supreme law. When we apply these principles, we must ask: what serves justice in our circumstances? What protects both the community and the defendant? As Justice John Marshall Harlan in In re Winship, 397 U.S. 358 (1970) aptly put it, “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
A Principle Worth Preserving
From English caution to American constitutional protection, the law has been searching for balance. Confessions are powerful evidence. They are also human statements, made under pressure, and humans are fallible. A burned building can prove a crime. A confession can suggest a culprit. Justice asks for something more: a link between the two grounded in reality, not just words.
Corroboration rules express humility. They acknowledge that even self-incriminating words can mislead. When liberty is at stake, the law sensibly looks for a second anchor before allowing a confession to carry a conviction. That isn’t distrust of confessions. It’s respect for what’s at stake—human freedom, and the integrity of justice itself. See Justice William O. Douglas in Chambers v. Florida, 309 U.S. 227 (1940) (“Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.”).
The views expressed are the author’s and do not necessarily represent the views of the United States Department of Justice or the United States.
