CONSTITUTIONAL LAW OF
CRIMINAL EVIDENCE
SESSION III
MIAN ALI HAIDER
L.L.B., L.L.M (Cum Laude) U.K.
INTRODUCTION
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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
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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
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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
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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
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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”
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The 2nd element of threes that the investigation must
take into account are the means of proof.
There are three basic forms of evidence that may be
used to establish the components of a criminal case.
Physical Evidence also known as “Trace Evidence”.
Testimonial Evidence
Confession Evidence
by Snježana Husinec
3rd ELEMENT OF “THREE
THREES”
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1.
2.
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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”
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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”
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1.
2.
3.
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”
4.
5.
6.
7.
8.
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
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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
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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
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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.”
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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
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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 selfincrimination. (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
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CONSTITUTIONAL FAIRNESS
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But, what happens………
ESCLUSIONARY RULE
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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
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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
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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
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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
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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
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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
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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
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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
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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:
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How far does the exclusionary rule need to go to
deter constitutional violations but still permit a
well-functioning criminal justice system?
Your Answer……….