Illegally Obtained Evidence

Illegally Obtained Evidence

• Evidence obtained illegally (e.g., by a crime, tort, or violating constitutional/statutory provisions) or unfairly (e.g., trickery, deception, threats).
• Two divergent views exist regarding the admissibility of such evidence.
• One view argues that relevant evidence should be admitted, regardless of how it was obtained.
• The opposing view maintains that illegally obtained evidence should be excluded, even if it might lead to an injustice in a specific case. This ensures that the judicial system doesn't benefit from its own wrongdoing.

Divergent Thoughts on Illegally Obtained Evidence

• For: Relevant and admissible evidence should not be excluded simply because of the method used to obtain it, as doing so can lead to injustice (e.g., acquittal of a guilty person).
• Against: Illegally obtained evidence should always be excluded, even if it leads to an injustice in a specific case, as admission of such evidence can damage the integrity of the justice system.

Traditional Position at Common Law

• R v Leatham (1861): The method of obtaining evidence doesn't affect its admissibility—if evidence is relevant, it's admissible, even if obtained through theft.
• Kuruma S/O Kaniu v R [1955]: The test for admissibility is relevance; if relevant, the evidence is admissible, regardless of the method of acquisition.

Traditional Position at Common Law (R v Sang [1980])

• Courts are not concerned with how the evidence was obtained, but rather how it was used by the prosecution.
• Discretion to exclude evidence only exists in limited circumstances (e.g., confessions obtained after committing a crime).
• Entrapment is not a valid defense in English law.

Exceptions to the Traditional Rule (Common Law Rule)

• Evidence obtained by torture: Such evidence is usually inadmissible as a matter of constitutional principle, regardless of where or by whom it was obtained.
• Improperly obtained confessions: These are often inadmissible for various reasons, potentially including breaches of rights.
• Theft of privileged documents in courts: This can lead to dismissal of those documents as evidence.

Examples of Illegal Means of Obtaining Evidence

• Torture
• Covert recording and filming
• Unwarranted searches of premesis
• Entrapment (a specific instance involving entrapment case)

Rationales for Excluding Illegally Obtained Evidence

• Rights Protection: The protection of rights is intertwined with the exclusion of evidence; an infringement on an individual's right serves as justification for evidence exclusion.
• The exclusion of evidence is important, ensuring the violation of a party’s rights in obtaining evidence is rectified.
• A breach of rights is compensated by excluding illegally obtained evidence.

Fair Trial Rationale

• Evidence exclusion is essential to ensure a fair trial. This involves evaluating the fairness of the entire proceedings, including evidence procurement. The state cannot benefit from its own wrongdoing. The procurement of evidence obtained in violation of rights renders the trial unfair.
• The relevant term in this context refers to the entire process from investigation to trial conclusion.

Reliability Rationale

• Also known as the unreliability principle. Evidence should be excluded when its reliability is compromised, or the accused's ability to evaluate its reliability is impaired.

• Evidence is excluded if its manner of procurement renders it unreliable—to the point of being unworthy of consideration.

Deterrence Rationale

• Exclusion of illegally obtained evidence is a way to deter misconduct by police and other investigative authorities. The goal is future prevention of misconduct, not to fix past mistakes.

Judicial Integrity Rationale

• Exclusion of illegally obtained evidence is necessary for upholding the integrity, and legitimacy of the justice system. When the justice system punishes wrongdoings by one party, while rewarding wrongdoings by a second party (in this case, an officer), the integrity is impugned.

Compensation Rationale

• Violating someone's rights is a wrong to be remedied.
• Exclusion of the illegally gathered evidence compensates the party whose rights were infringed.
• The aim is to place the situation back to where it should have been, had the rights violation not occurred.

Constitutional Duty (regarding exclusion of evidence)

• Exclusion of evidence may be based on common law, statutory, or constitutional provisions.
• Constitutional provisions provide binding duties on courts.
• Article 50(4) of the Kenyan Constitution imposes special and obligatory duties upon courts in regards to illegally obtained evidence.

Doctrine of Legal Guilt

• An accused person should not be held guilty based solely on probable evidence.
• Guilt hinges on procedurally appropriate acquisition of evidence.

Arguments in Favor of Admitting Illegally Obtained Evidence

• Public safety: Excluding such evidence might allow dangerous criminals to escape justice.
• Proportionality: Excluding evidence may be excessive for minor violations.
• Efficiency: Excluding evidence can be inefficient, due to the cost of excluding evidence versus the potential value it may present (potential dangers of not examining such evidence).
• Epistemic: The quest for truth should not be undermined to uphold rules.

Current Position - Kenya

• Article 50(4) of the Kenyan Constitution prohibits the exclusion of evidence obtained in violation of fundamental rights or freedoms, if the use of such evidence would render the trial unfair.

Considerations in Determining Trial Unfairness

• Whether: Tainted evidence impacts the trial’s fairness, due to manner of obtaining, or its impact on the proceeding(s).
• Perspective: Fairness is judged from individual or multiple perspectives.
• Rights Violations: Violation of other parties’ rights is used to assess whether a trial is fair.
• Admission of Tainted Evidence: Evidence acquired from third parties, in a manner that violates rights, should be excluded. If such evidence would lead to an unjust trial, such evidence should be excluded.

Contours of "Detrimental to the Administration of Justice"

• Unfair trials are detrimental to justice.
• Six criteria may be applied, such as good faith, importance of evidence, seriousness of the crime, extent of the violation, public opinion, and time sensitivity/urgency of need to proceed promptly.

Cases (Examples)

• Njonjo Mue case
• Philomena Mbete case, including the subsequent actions by the parties, including the role played by the International Commission for Jurists (ICJ)

Explore the complex debate surrounding the admissibility of illegally obtained evidence in court. This quiz will challenge your understanding of the divergent views: whether to admit relevant evidence regardless of how it was obtained or to exclude it to maintain judicial integrity. Test your knowledge on the implications of these legal principles.