CONSTITUTIONAL LAW OF CRIMINAL EVIDENCE SESSION III MIAN ALI HAIDERL.L.B., L.L.M (Cum Laude) U.K.
INTRODUCTION • This body of Constitutional law has grown so large and so complex that it almost defies comprehension. Mastery of the constitutional rules and exceptions governing criminal investigations presents an ongoing challenge to police officers, educators, lawyers and judges alike. • This lecture is designed to cover every important aspect of constitutional law with respect to criminal evidence, which summaries of comparative analysis of the same law applied in different countries.
THE “THREE THREES OF CRIMINAL CASE • To understand the significance of the various constitutional principles that apply to investigations, it’s helpful to begin with the broad framework of criminal cases. • Rules can only make sense when they’re seen as attempts to carry out specific objectives, to help achieve a predetermined goal. • In criminal cases, the goals are discovery of the truth, exoneration of the innocent, and conviction and punishment of the guilty • Then what are three components?
ELEMENT OF CRIME • Every criminal offense will have two or more elements that must be shown to constitute the crime. • The typical elements of forcible rape, for example, are that the perpetrator accomplished an act of sexual intercourse with another, without the victim’s consent, by means of force or fear. • Unless each of these elements can be proven, there can be no conviction. • Therefore, the investigator will seek admissible evidence of each of the elements in order to put together a chargeable rape case
JURISDICTION OF OFFENCE • Even if it could be proven that a rape had occurred, a prosecutor has no authority to prosecute and a court has no power to adjudicate any case unless it is established that the crime occurred within the designated jurisdiction. • The investigator therefore needs to identify the evidence that will show the time and place of commission of the crime
IDENTITY OF THE ACCUSED • Assuming that admissible evidence will prove each element of the commission of the crime within the agency’s jurisdiction, there must also be proof that the person arrested, charged and tried is the person who committed the crime
2nd ELEMENT OF “THREE THREES” • The 2nd element of threes that the investigation must take into account are the means of proof. • There are three basic forms of evidencethat may be used to establish the components ofa criminal case. • Physical Evidence also known as “Trace Evidence”. • Testimonial Evidence • Confession Evidence by Snježana Husinec
3rd ELEMENT OF “THREE THREES” • 3 kinds of Criminal Defenses • NO CRIME WAS COMMITTED • MIS-IDENTIFICATION • “If the crime was committed, someone else did it.” This variety of defense is sometimes called the “SODDI defense,” for “Some other dude did it.” • The alibi is a variety of this defense, where the Accused presents evidence that he was somewhere else when the crime occurred.
3rd ELEMENT OF “THREE THREES” • Common defense of this sort is the third-party culpability defense, in which the Accused presents evidence suggesting that a codefendant or some uncharged or even unknown person committed the crime. • Challenges to scientific evidence, such as fingerprint or DNA analysis, are also attempts to undermine the prosecution’s identity evidence, to raise a doubt as to whether it was the Accused or someone else who committed the crime. • Examples: Notorious examples of this defense are the O.J. Simpson and Robert Blake murder cases.
3rd ELEMENT OF “THREE THREES” • THERE IS LEGAL BAR TO CONVICTION • Even if all of the acts that would normally constitute a crime can be proven to have occurred and it is clear that the defendant was the person who committed the acts, there are a variety of ways for a defendant to invoke constitutional bars to his conviction. • ex post facto prohibition (conduct cannot be retroactively criminalized) • Discriminatory prosecution (the law is applied selectively to some offenders but not to others) • Insanity (because of mental defect, accused couldn’t appreciate the wrongfulness of his actions or conform his conduct to legal requirements)
3rd ELEMENT OF “THREE THREES” • Minority (defendant was below a statutory age of accountability) • Necessity (includes self-defense, defense of others, and survival) • Lawful duty (state executions and police arrest powers) • immunity from prosecution (certain diplomatic officials) • Etc…
CONSTITUTIONAL SAY ON CRIMINAL EVIDENCE • ARTICLE 10: Safeguards as to arrest and detention • ATICLE 10-A: Right to fair trial • ARTICLE 12: Protection against retrospective punishment • ARTICLE 13: Protection against double punishment and self incrimination • ARTICLE 14: Inviolability of dignity of man, etc
U.S. CONSTITUTIONAL SAY ON CRIMINAL EVIDENCE • 1961—Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” • This amendment is typically described as having two clauses—the “unreasonable search and seizure clause,” and the “warrant clause.” • Mapp Vs. Ohio
U.S. CONSTITUTIONAL SAY ON CRIMINAL EVIDENCE • 1964—Fifth Amendment Malloy v. Hogan “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” • The three components of the Fifth Amendment applicable to all criminal cases are the • Privilege against compelled self-incrimination (which is the object of the Miranda rule), the • Double jeopardy prohibition, • Due process clause
U.S. CONSTITUTIONAL SAY ON CRIMINAL EVIDENCE • 1962—Eighth Amendment ban on cruel and unusual punishment. (Robinson v. California) • 1963—Sixth Amendment right to counsel. (Gideon v. Wainwright) • 1964—Fifth Amendment prohibition against compelled self-incrimination. (Malloy v. Hogan) • 1966—Fifth Amendment exclusionary rule. (Miranda v. Arizona) • 1967—Sixth Amendment right to speedy trial. (Klopfer v. North Carolina) • 1967—Sixth Amendment right to compulsory process to compel the attendance of witnesses. (Washington v. Texas) • 1968—Sixth Amendment right to jury trial. (Duncan v. Louisiana) • 1969—Fifth Amendment prohibition of double jeopardy. (Benton v. Maryland)
POLICE AND CRIMINAL EVIDENCE ACT, 1984(United Kingdom) CODE A Deals with the exercise by police officers of statutory powers to search a person or a vehicle without first making an arrest. It also deals with the need for a police officer to make a record of a stop or encounter. Code B Deals with police powers to search premises and to seize and retain property found on premises and persons.
POLICE AND CRIMINAL EVIDENCE ACT, 1984(United Kingdom) CODE C Code C sets out the requirements for the detention, treatment and questioning of suspects not related to terrorism in police custody by police officers. CODE D Concerns the main methods used by the police to identify people in connection with the investigation of offences and the keeping of accurate and reliable criminal records. CODE E Deals with the audio recording of interviews with suspects in the police station.
NUTSHELL • CONSTITUTIONAL FAIRNESS • But, what happens………
ESCLUSIONARY RULE • TRADITIONAL VIEW • The most comprehensive definition of the exclusionary rule is found in Mapp v. Ohio, 367 U.S. 643 (1961), wherein the “United States Supreme Court noted that any evidence obtained through an illegal search or seizure in violation of the fourth amendment must be excluded as evidence against the defendant in any subsequent criminal prosecution” WIGMORE, EVIDNCE
PHILOSOPHIES OF ORIGIN OF EXCLUSIONARY RULE • POSITIVE LAW The positive law presents the view that man is the creator of law • NATURAL LAW Natural law concept is premised upon the position that all law has always existed, with man merely the discoverer of law rather than its creator
ESCLUSIONARY RULE • It was much earlier thought by jurists that in order to maintain a society governed by laws, a legal remedy should accompany each legal right. • Toward this end, courts apply various remedies to ensure effective enforcement of constitutional rights. For example, courts sometimes order retrials to remedy violations of accused rights or assistance-of-counsel rights.
ESCLUSIONARY RULE • A remedy that excludes impermissibly obtained evidence from use at a criminal trial – the “exclusionary rule” – similarly protects constitutional rights. • The exclusionary rule typically applies in cases involving violations by law enforcement of rights guaranteed by the Constitution. • It differs from remedies such as retrial, because in addition to retrospectively redressing injustice, its major aim is prospective deterrence of government misconduct. • In theory, although it only actually redresses violations when probative evidence is found, the exclusionary rule also protects innocent people by deterring unwarranted privacy intrusions.
ESCLUSIONARY RULE • The rule operates to prohibit the introduction at trial of probative evidence that would be admissible if collected in a constitutionally permissible manner. • Because the excluded evidence is frequently incriminating, many believe that its application aids criminals in escaping punishment.
ESCLUSIONARY RULE • For this reason, the rule has long been controversial. In past cases, the Supreme Court has defended the rule as a necessary corollary to the constitutional rights it protects. • More recently, a division has emerged. Some justices adhere to the view of the rule as constitutionally required. • Other justices express concerns about the cost to society of freeing criminals who would likely be convicted if the excluded evidence was admitted
U.S. APPLICATION OF EXCLUSIONARY RULE • 4th Amendment • Over the past several decades, the Supreme Court has narrowed the scope of the exclusionary rule in Fourth Amendment cases – that is, in cases involving illegal searches or seizures. • The Court’s 2009 decision in Herring v. United States furthers this trend. • Because Herring is the first Supreme Court decision that rejects the exclusionary rule in the context of police error regarding a warrant, the decision has made news headlines and prompted debate about whether the Herring decision appropriately limits the exclusionary rule’s reach.
DOCTRINES Qua EXCLUSIONARY RULE • When the government conducts an unconstitutional search, and that search leads to evidence, application of the exclusionary remedy depends on four basic questions: • First, is there sufficient causation between the constitutional violation and the discovery of the evidence to warrant suppression? • Second, is the defendant one of the individuals who is permitted to assert the challenge? • Third, is this the kind of constitutional violation that supports suppression? • Fourth, is this particular proceeding a type of proceeding in which the exclusionary rule applies? • The exclusionary rule applies only if the answer to all four questions is yes. BUT, …….
PRAGMATIC QUESTION • Each of these four questions has its own set of doctrinal boxes, but in every box the doctrines are framed by one overriding pragmatic question: • How far does the exclusionary rule need to go to deter constitutional violations but still permit a well-functioning criminal justice system? • Your Answer……….