The Trial Within Trial Procedures and Its Purpose in a Criminal Proceeding

Trial within trial also called “Voire dire” is the only process of determining the voluntariness of a confession once that is raised as an issue in a case. It is also the only process of testing the admissibility of a confession where it is challenged on the grounds of threats, undue influence, duress etc. See MBANG V. STATE[1]; NSOFOR V. STATE[2]; ADEBOWALE V. STATE[3].

In criminal trials, the prosecution tenders the statement of an accused person which has an element of confession to prove his case or the guilt of the accused person. That is why such a statement is referred to as the confessional statement of an accused. According to Section 28 of the Evidence Act, 2011, a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. In the process of tendering the confessional statement of the accused, an accused or his counsel can raise objections based on Section 29(2) (a) and (b) of the Evidence Act 2011 that the statement was not voluntary as it was obtained by oppression which could mean that the accused person was threatened, induced, coerced or given a promise before making such statement.

At this point, the court must conduct a trial-within-trial to ascertain if the statement was voluntarily made or otherwise.


The Supreme Court in the case of OSUAGWU V. STATE[4] defined trial within trial as a mini-trial that must be conducted when an accused person says that his confessional statement was not made voluntarily. See also ADEBOWALE V. STATE (SUPRA).

A trial within trial simply refers to a procedure whereby the court determines the question; whether a statement of an accused should be excluded on grounds of oppression. It is noteworthy that once an objection is taken to the admissibility of a confessional statement on the ground that it was involuntarily made, or otherwise, obtained oppressively, the court must stop further proceedings and determine the question of the voluntariness of the confession before taking any further step by way of admitting or rejecting the statement. In OLABODE V. STATE[5], the Supreme Court held:

“The test for the admissibility of a confessional statement is its voluntariness and once the issue is raised it must be resolved before its admission.”


Denying a confessional statement is otherwise known as retraction and same does not call for a trial within trial. Where the accused denies confessing, such denial does not go to the admissibility of a confessional statement but relates to the weight to be attached to it. It is an issue to be decided after the case.

In other words, a trial within trial is not conducted where an accused denies making a confessional statement but rather where an accused made a statement involuntarily. See NWACHUKWU V. STATE[6]; AUTA V. STATE[7].


The purpose of a trial-within-trial is to determine the voluntariness of a confession where it is challenged on the ground that it was not made voluntarily. Consequently, the proper time to have recourse to a trial-within-trial is at the point when a confessional statement is sought to be tendered in evidence, and not when the defence has opened its case.

In other words, it is belated to have recourse to the process of trial-within-trial at the defence stage of a criminal trial; that is after the prosecution has closed its case and cannot re-open same. See MBANG V. STATE (SUPRA); OSUAGWU V. STATE (SUPRA); NWACHUKWU V. STATE (SUPRA).


When an objection is raised by the accused person or his counsel as to the voluntariness of a confessional statement made by the said accused person and the court refuses or fails to conduct a trial-within-trial to ascertain the voluntariness of such statement, the court cannot admit such statement in evidence. If the court does, the Court of Appeal may likely declare such statement inadmissible and such statement is liable to be expunged from the record. See EMEKA V. STATE[8]. Also, the Supreme Court in its judgment in the case of STATE V. GWANGWAN[9] held that failure of the trial court to conduct trial-within-trial to conclusion has undoubtedly vitiated the case of the prosecution against the respondent which was primarily based on the said statement.


Under common law, the fact that a statement was made voluntarily is a point which the prosecution is obliged to prove and the standard of proof here is beyond a reasonable doubt. Even the Police and Criminal Evidence Act of 1984 (England) that replaced the common law position on confessional statements did not alter this position. Section 76(2) of the Police and Criminal Evidence Act of 1984 (England) provides:

“If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –

  1. By oppression of the person who made it; or

(b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”

The situation is not any different in Nigeria from the English position stated above. Thus, when the prosecution tenders a confessional statement in evidence, it is the prosecution who is asserting that the statement is voluntary. And when the accused says that the confession was involuntary, he is not alleging but simply denying the allegation or assertion of voluntariness put forward by the prosecution. See EFFIONG V. STATE[10]. Also, Section 29(2) (b) and (3) of the Evidence Act 2011 specifically places the burden of proof on the prosecution. What this means is that the trial-within-trial opens with the material witness for the prosecution leading evidence chronicling the circumstances under which the statement was obtained or recorded. After the prosecution has testified to prove voluntariness, the defence can now cross-examine the prosecution witness and if the defence so desires, he can lead evidence on his own to establish the grounds of objection. The Supreme Court recognises this much when it held in GBADAMOSI V. STATE[11] that where such inquiry started with the accused person, the burden of proof was wrongly shifted to the accused person. In the above case, the Supreme Court concluded that the admission of a confession statement started in this way is improper and therefore liable to be set aside.

In determining whether a confessional statement is voluntary or not, the court will not consider the fact that the accused person wrote the statement himself or the fact that the person who allegedly coerced the accused person into writing the statement was not physically present at the material time when the accused wrote the statement. What the court will consider is whether the coercion alleged operated on the accused person at the time of the making of the statement. See MAJOR AMACHREE V. NIG. ARMY[12]. Therefore, the defence is expected to lead evidence showing that the coercion or oppression alleged operated on the accused person at the point of making the said statement.

In line with Section 29(2) (a) and (b) and (3) of the Evidence Act 2011, the Defence is expected to lead evidence indicating that there was oppression at the point when the accused was making his statement. This can be done by calling witnesses to show that the accused person was induced, coerced, threatened or given a promise. In any of the above instances, it is submitted that the court would readily declare a statement as inadmissible on grounds of oppression. See R V. LLOYD[13]; THE QUEEN V. HASKE[14]; EBHOMIEN & ORS V. THE QUEEN[15].

After both parties have led evidence and closed their case, the defence is expected to file its written address on the trial within trial, after which the prosecution files its written address. The defence will then file a reply on point of law if there is any need.

The court after hearing the evidence of both parties is expected to rule on the trial-within-trial, whichever way the ruling goes, it does not terminate the trial or proceedings. In other words, if the court finds that the statement was improperly or irregularly or even illegally obtained, the said irregularity or illegality attaches only to the confessional statement and not to the whole trial. See GBADAMOSI V. STATE (SUPRA).

It is pertinent that I explain the three major issues that must be considered before a confessional statement is declared voluntary or involuntary. They are Threat, Inducement and Promise.


In the United Kingdom, threat has been held to include “oppression”. See CALLIS V. GUNN[16]. And “oppression” has been roughly defined as “something which tends to sap and has sapped the freewill which must exist before a confession is voluntary”. See R V. PRIESTLY[17] and R V PRAGER[18]. Also, the word “oppression” was explained by Lord Lane, CJ in R V. FULLING[19] as follows:

“Exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc, the imposition of unreasonable or unjust burdens.”

Oppression is therefore any act, conduct or behaviour or speech that eliminates or saps the free will of the accused person to state his side of the story or break down his emotional feelings. Sotari in his book[20] stated that “oppression includes detaining the accused person to make him give an acceptable statement to the prosecution; it will also include taking a low level or timid accused person before a high ranking officer as such is tantamount to intimidation”. It then suffices to state that the level of education and exposure is a factor to be considered by the court if a particular act, conduct or speech to an accused person amounts to the threat that will render a confessional statement involuntary.

By virtue of Section 4 of the Criminal Code Act, the absence of free will in the act or omission of the alleged commission or omission of the offence is an absolute defence to any alleged offence.

The Black’s Law Dictionary[21] defines threat as any communicated intent to inflict harm or loss by one person to another person or his property especially one that might diminish that person’s freedom to act voluntarily or with lawful consent. The use of violence or threat of violence affects the admissibility of a confession because the threat puts to question its voluntariness. They can come in several ways – Threat of physical violence, the threat of loss of job, threat of loss of position, threat of withdrawal of health facilities or other privileges are all factors that can affect the voluntariness of confessions.

In AMACHREE V. NIGERIAN ARMY[22], it was held that the clamping of chains around the Defendant’s legs when he was being interrogated and when he was making his alleged confession amounted to oppression, rendered inadmissible the confessional statement.

It has also been held that overly prolonged and excessive use of force during police interrogation constitutes threat or oppression which would render inadmissible any confession obtained as a result. See R V. HUDSMA[23]. Also, in BURNT V. PUBLIC PROSECUTOR[24], the Privy Council held that wearing suspects hoods and manacles during police interrogation amounted to oppression as to render their alleged statements inadmissible.

If a policeman or other interrogators use a raised and harsh language when the person interrogated is “tough”, any confession obtained from him will not be rendered inadmissible. See R V. MILLER[25]; R V PARIS[26].

If an accused person confessed as a result of physical violence committed against him, such a confessional statement is involuntary and inadmissible. In R V. BODOM[27], the accused persons were thoroughly beaten by their fellow villagers and forced to confess by a person in authority in the village. It was held that the confessions they made were wrongly received in evidence. See also R V. BABA HASKE[28].

Moreover, a confessional statement is voluntary and admissible if made out of fear of harm by metaphysical means. In R V. EBONG[29], the police investigation into the murder of the deceased was abortive. As a result, the Local Chief in the area invited the eighteen villages in the vicinity for purposes of investigating the death of the deceased. They resorted to the invocation of ‘juju’ which took the form believed by the people that it would make the offender go mad and confess. After eleven months, the accused person went to the Chief and confessed he killed the deceased. The court held that the confessional statement was voluntarily made and admissible. The court said:

“In our opinion, the confession, in this case, is voluntary from the legal point of view and was properly admitted… to find otherwise would be getting perilously near to the fallacious theory that a genuine belief in witchcraft might be a possible defence to a charge of murder…”


According to Black’s Law Dictionary[30], a promise is a manifestation of an intention to act or refrain from acting in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made; a person’s assurance that the person will or will not do something. When used in relation to confession, a promise to an accused person or a suspect that if he does confess, he would be released or have a higher punishment converted to a simpler one would render a confession inadmissible. In R V. LLOYD[31]. It was held that a promise to a suspect that bail would be granted to him in consequence of the confession was held to render the confession inadmissible. On the other hand, where the promise is not related to the offence charged but to any other collateral matter, it would not affect admissibility. In COMMISSIONER OF CUSTOMS & EXCISE V. HARZ[32], it was held that a confession obtained from a suspect on the promise that he would be allowed to see his wife does not render same inadmissible. The reason here is that the question of the suspect being allowed to see his wife is hardly of any legal consequence, at least, in relation to his culpability or punishment.


In ordinary usage, the word inducement is anything done to persuade someone to do or refrain from doing a thing. When used in legal parlance, particularly, in criminal proceedings, it is usually a promise of advantage from a confession or a disadvantage or threat from not confessing made to a suspect to make him confess to wrongdoing.

An inducement that renders a confessional statement inadmissible is an inducement to merely make a statement. It has nothing to do with an inducement to speak the truth. In R V. VIAPONG[33], a police Sergeant when cautioning an accused person and said to him: “You should bear in mind that any statement you make shall be written down by me and taken before the court so that it may be your evidence” or “so that it may be evidence for you”. The accused then made a confessional statement of the offence, for which he was charged. The court held:

“The caution was clearly an inducement to speak. An accused person can hardly be expected to keep silent when told that he needs not say anything, but that anything he says will be written down and taken before the court to be his evidence, or evidence for him; he is being given amply sufficient grounds for supposing that by speaking, he will avoid the evil of being condemned unheard.”

Moreover, in R V. KWAGHBO[34], the apprehended accused person made a statement to a police constable. At the trial, the police constable said that he obtained the statement from the accused who agreed to make it. There was no evidence that the prescribed caution had been administered. The court held that there were strong indications that the accused had been induced to make the statement, and since there was no satisfactory evidence that the statement was voluntary, it was inadmissible.

An ordinary moral adjuration to speak the truth does not amount to an inducement. In FATUMANI V. R.[35], the accused was convicted of murder. He was apprehended running away from the scene of the crime after a hue and cry were raised. He was brought before the village head. The village head adjured him not to trouble his fellows and if he committed the crime he should say so. It was held that the remark of the village head was merely a moral adjuration, which did not render the statement inadmissible.

An inducement may be by words, followed by conduct from which promise or threat can be inferred. EBHOMIEN & ORS V. QUEEN[36] is illustrative. Murder was committed in the Defendant’s village. As a result, the police took to another village several men, women and children. Some of the captives were related to some of the Defendants. The Defendants were distressed. A police officer told the elders of their village that those who had committed the offence should come forward so that innocent persons taken to the other village would be released. As a result, some of the Defendants made confessional statements upon which they were convicted. The Supreme Court quashed their conviction and held that their confession was not free and voluntary since it was plain that the police took persons to the other village and detained them to operate on the minds of their fellow persons in the village.


The Supreme Court in AMACHREE V. NIG. ARMY[37] stated the following tests in determining whether or not a confessional statement is voluntary:

1. There is anything outside the confession to show that it is true.

2. It is corroborated.

3. The facts stated in it are true in so far as can be tested.

4. Accused’s confession is possible.

5. The confession is consistent with other facts which have been ascertained.

In summary, the court will have to find out if the statement was obtained without compulsion or oppression of the accused person as such action renders the statement void and makes it inadmissible in evidence as this is the major reason for trial within trial.[38]


Trial-within-trial procedures are central to the criminal justice process as they ensure that convictions are only premised on evidence obtained by the due process of law. It is germane therefore that legal practitioners, jurors and other relevant stakeholders take cues from the in-depth analysis of the concept as expounded on above as same is central to ensuring that justice is served and criminal procedures are not an exercise in futility.


  1. (2013) 7 NWLR (Pt. 1352) 48 SC (Para. h)
  2. (2004) 18 NWLR (Pt. 905) 292
  3. (2013) 16 NWLR (Pt. 1379) 104 CA
  4. (2013) 5 NWLR (Pt. 1347) 360 SC
  5. (2009) ALL FWLR (Pt. 500) 607
  6. (2002) 2 NWLR (Pt. 751) 366
  7. (1975) 4 SC 125
  8. (2001) FWLR (Pt. 66) 682
  9. (2015) 13 NWLR (Pt. 1477) SC 600, P. 631, Para e-g
  10. (1998) 5 SCNJ 158
  11. (1992) 11-12 SCNJ (Pt. 2) 269
  12. (2003) 3 NWLR (Pt. 807) 256
  13. (1834) 6 C & P, 393
  14. (1861) 1 ALL NLR 330
  15. (1963) 1 ALL NLR 365
  16. (1964) 1 QB 495
  17. (1967) 51 CR APP R1
  18. (1972) 56 CR APP R 151
  19. (1987) 2 ALL ER 65 at 69, (1987) QB 426 at 432
  20. Sotari F. Oruwari, Annotation of the Nigerian Evidence Act 1990 (Davies Press Ltd 2004) 2nd Edition at P. 107
  21. Bryan a. Garner, Black’s Law Dictionary (Tenth Edition, Thomson Reuters 2014)
  22. (2003) 3 NWLR 256 at 279-280 CA
  23. (1980) 72 CR APP R 163
  24. (1995) 2 AC 597
  25. (1986) 3 ALL ER 119
  26. (1993) 97 CR APP R9
  27. (1935) 2 WACA 390
  28. (1961) ALL NLR 330
  29. (1947) 12 WACA 139
  30. Bryan a. Garner, Black’s Law Dictionary (Tenth Edition, Thomson Reuters 2014)
  31. (1834) 6 C & P 393
  32. (1967) A-C 760
  33. (1961) NNLR 47
  34. (1962) NNLR 4
  35. (1950) 13 WACA 39
  36. (1963) 1 ALL NLR 365
  37. (2003) 3 NWLR (Pt. 807) 256, Ratio 16
  38. Cases in which confessional statements have been held as inadmissible by the Courts include: STATE V. GWANGWAN (2015) 13 NWLR (PT. 1477) SC 600; STATE V. OLASHEHU SALAWU (2012) ALL FWLR (PT. 614)1SC and AMACHREE V. NIGERIAN ARMY (2003) 3 NWLR (PT. 807) 256 AT 279-280

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