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Unconstitutionally obtained evidence
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Lecture notes of 21 pages for the course Law (criminal, private, persons, family, roman, constitutional) at SUN
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Chapter 12: Unconstitutionally obtained evidence
Only need to read many paragraphs in this chapter. Look at course outline.
Regulated by Section 35(5) of the constitution - evidence that is obtained in a
manner that violates any right in the BOR must be excluded if the admission of that
evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.
A. Background
USA: Mapp v Ohio
o 1961 the police came to Ms Mapps house looking for a fleeing whatever. She
phoned attorney who advised her that they need a warrant. They came back with
what they called a warrant. Only waved it in front of her. Did not find the suspect.
Opened drawers and found pornographic material. So charged her with that. She
was convicted and took the matter to the SCA. Her argument advanced was that
constitutional guarantees are
o SCA agreed with her yes we base our decision on the fourth amendment and it
refers to the fact that people shall be secure in their houses in effect against
unlawful searches. Can’t allow police to act the way they acted in this case. They
never showed here the warrant. So was an unlawful search actually
o Principle stuck that real evidence obtained ito an unlawful search must be excluded
according to the fourth amendment, but she was substantially guilty.
o There was factual guilt but legal guilt is required.
o The fruits of the poisonous tree.
o Rule is limited by the following factors:
Accused must have standing
Rule does not apply to civil tax action etc.
Miranda v Arizona – The Miranda warnings
o Person held in custody and questioned by police must be informed by his right to
remain silent and his right to consult and if he cannot afford a lawyer then one will
be provided for him. If he cannot get legal advice he will not know when to be silent
or when he can be silent.
o Miranda was held not guilty.
o Have spoken about this case before. Think chapter 10.
After the above cases the USA got a fright.
o Absurd result after finding a body with a technical difficulty therefore could not
submit evidence and it was as if the girl never even was alive. Technically….
Common law
o Ito section 252 of the CPA law of admissibility of evidence
o Relevance is the test. The court was not concerned with how the evidence was
obtained except for in a criminal case a judge always has the discretion to disallow
evidence if the strict rules of evidence would operated unfairly against the accused.
o Trend was to include rather than to exclude
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