Admissibility of Illegally Obtained Evidence
Introduction:
This note will define illegally obtained evidence, the schools of thought on the admissibility of illegally obtained evidence, the present Ghanaian position on the admissibility of illegally obtained evidence, and the admissibility of illegally obtained evidence in light of the Evidence Act, 1975 (NRCD 323).
Meaning of Illegally Obtained Evidence:
In the Black’s Law Dictionary, 9 th ed., illegally obtained evidence is defined as:
Evidence obtained by violating a statute or a person's constitutional or other right, esp. the Fourth Amendment guarantee against unreasonable searches, the Fifth Amendment right to remain silent, or the Sixth Amendment right to counsel
For example, if the constitution guarantees a right to privacy, and evidence is obtained in violation of that right, the evidence is said to have been illegally obtained.
Schools of Thought on the Admissibility of Illegally Obtained Evidence:
There are two common propositions on the admissibility of illegally obtained evidence. These are:
These schools of thought are now discussed.
1. It Matters Not How the Evidence is Obtained:
A. Introduction:
This school of thought, often said to be the common law position on the admissibility of illegally obtained evidence, holds an inclusionary view of illegally obtained evidence as they assert that once evidence meets the necessary condition for admissibility, which is relevance, it is admissible irrespective of how it is obtained.
B. Key Propositions:
C. Authorities:
In the case of R. v. Leatham (1861) 8 Cox CC 498 at 501) , Lord Crompton J famously said:
It matters not how you get it if you steal it even, it would be admissible in evidence.
Also, in the case of Kuruma v R [1955] 1 All ER 236 at 239 , Lord Goddard CJ advanced that:
In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships' opinion it is plainly right in principle.
Further, in the case of Fox v. Chief Constable of Gwent [1985] 1 W.L.R. 1126 , Fox was the driver of a vehicle that was involved in an accident. Before the police arrived at the accident scene, Fox had left. The police then visited his home, knocked, and entered after no one responded. They found Fox and asked him to take a breath test, which he refused. He was arrested and taken to the police station, where he was again asked to take a breath test; the test revealed that he was drunk. He was charged and convicted on the basis of the breath test. On appeal to the House of Lords, he contended that the breath test was nullified as inadmissible because the police trespassed on his property and wrongfully arrested him. This contention was rejected. Lord Fraser advanced that:
The duty of the court is to decide whether the appellant has committed the offence with which he is charged and not to discipline the police for exceeding their powers.
His lordship also stated that:
It is a well established rule of English law, which was recognised in Reg. v. Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally.
Finally, in the case of Helliwell v Piggott-Sims [1980] FSR 356 , Lord Denning advanced that:
I know that in criminal cases the judge may have a discretion. That is shown by Kuruma v the Queen. But so far as civil cases are concerned, it seems to me that the judge has no discretion. The evidence is relevant and admissible. The judge cannot refuse it on the ground that it may have been unlawfully obtained in the beginning. I do not say that it was unlawfully obtained. It was obtained under an Anton Piller order which was not appealed against. But, even if it was unlawfully obtained, nevertheless the judge is right to admit it in evidence and to go on with the case as he proposes to do.
2. It Matters how the Evidence is Obtained:
A. Introduction
This school of thought holds an exclusionary view of illegally obtained evidence as they assert that illegally obtained evidence is inadmissible.
B. Key Propositions:
C. Authorities:
In the case of Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) , the court advanced that:
The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The numerous decisions, like Adams v. New York, 192 U. S. 585, holding that a collateral inquiry into the mode in which evidence has been got will not be allowed when the question is raised for the first time at the trial, are no authority in the present proceeding, as is explained in Weeks v. United States, 232 U. S. 383, 394, 395. Whether some of those decisions have gone too far or have given wrong reasons it is unnecessary to inquire; the principle applicable to the present case seems to us plain. It is stated satisfactorily in Flagg v. United States, 233 Fed. Rep. 481, 483.
In the latter case of Nardone v. United States, 308 U.S. 338 (1939) , the court espoused what has become known as the fruit of the poisonous tree doctrine:
Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. A sensible way of dealing with such a situation-fair to the intendment of § 605, but fair also to the purposes of the criminal law-ought to be within the reach of experienced trial judges. The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established-as was plainly done here-the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree.
In Ghana, some cases have in the past held that evidence obtained in breach of constitutional provisions on human rights are inadmissible.
In the case of Okorie alias Ozuzu and Another v. the Republic [1974] 2 GLR 272 , the appellants were convicted for the murder of one John Appiah. In prosecuting the appellant, the police relied on confessional statements that were taken from the appellant without informing him of his right to counsel, contrary to Article 15(2) of the 1969 Constitution . An issue on the admissibility of the evidence arose on appeal, and the Court of Appeal, in upholding the appeal, said:
Incriminating statements elicited by agents of the government from an accused person, after an indictment has been preferred, and in the absence of counsel, should be excluded.
Although the appellant had failed to object to the admissibility of the confessional statements at trial, their lordships held that this was not fatal to the capacity of the appellant raising it on appeal. They delivered themselves as follows:
As a general rule, the failure of one party at a trial to object to the admission of inadmissible evidence does not preclude that party from raising the objection on appeal, if the admission of the inadmissible evidence constitutes a breach of a rule of law: see Kojo v. Solaz (1938) 4 W.A.C.A. 191. Here the objection is to the admissibility of evidence in breach of the supreme law of the land, and in the opinion of this court, the point can legitimately be taken at this late stage in this court. An accused person cannot be held to have easily acquiesced in the loss of his fundamental rights, and the prosecution must prove that he knowingly waived those rights.
Similarly, in the case of Republic v Akosah [1975] 2 GLR 406 , confessional statements obtained from the first accused were admitted into evidence without objection. At the close of the case, counsel for the accused argued that the evidence should not have been admitted because the accused was not informed of his right to counsel when those statements were obtained, which is contrary to Article 15(2) of the 1969 Constitution . The issues were:
In deciding the issues, the court cited with approval the position in Miranda v. Arizona, 384 U.S. 436 (1965) that:
If the law enforcement officers of the State are permitted to depend for convictions on confessions instead of on an independent source pointing to guilt, the administration of justice will be discredited and the law enforcement officers will be encouraged to use brute force to obtain confessions. The quality of the material supporting convictions in an adversary system of justice will suffer.
It then relied on the earlier case of Okorie alias Ozuzu and Another v The Republic (supra) to hold that evidence obtained in breach of a constitutional right is inadmissible.
Present Ghanaian Position on the Admissibility of Illegally Obtained Evidence:
A. Introduction:
The present Ghanaian position on the admissibility of illegally obtained evidence was thoroughly discussed in the case of Raphael Cubagee v. Asare and Others [2018] GHASC 14 (28 February 2018) . In that case, the plaintiff, to support his claim in a land case, sought to tender in evidence an audio recording of a telephone conversation he had with one Felix Yeboah. Counsel for the defendant objected to the tendering of the recording on grounds that it was made without the consent of Felix, was consequently in violation of his rights to privacy under Article 18(2) of the 1992 Constitution, and should not be admitted. The trial magistrate was of the opinion that the objection requires an interpretation of Article 18(2) of the 1992 Constitution and referred the matter to the Supreme Court. The issue was:
Whether the secret recording of the conversation between the plaintiff and John Felix Yeboah was made in violation of clause (2) of Article 18 of the 1992 Constitution and therefore unconstitutional and inadmissible.
B. Exposition on Contrary Rules on the Admissibility of Illegally Obtained Evidence:
Their lordships held that the recording was in violation of the right to privacy. Now the question was whether such evidence is admissible despite the violation. On this, their lordships explained that there are two rules established by various courts. These are:
The essential question is which of these rules is applicable under the 1992 Constitution
C. The Discretionary Exclusionary Rule as the Applicable Rule in Ghana:
In the opinion of their lordships, the automatic exclusionary rule is an inflexible rule and should not be applied in Ghana. They delivered themselves as follows:
Enforcement of human rights is not a one-way street since no human right is absolute. There are other policy considerations that have to be taken into account when a court in the course of proceedings is called upon to enforce human rights by excluding evidence…
They advanced that the existence of such policy considerations makes it such that the court should have exclusionary discretion instead of being required to automatically exclude evidence obtained in contravention of a right. They further advanced that it will be unrealistic to exclude damning evidence of a serious crime on the sole ground that it was obtained in circumstances involving a violation of the human rights of the perpetrator of the crime. Beyond the consideration of the rights of the accused, there needs to be a consideration of the public interests, the rights of competing parties, among others. They delivered themselves as follows,
Where evidence obtained in violation of human rights is sought to be tendered in proceedings, whether criminal or civil, and objection is taken, the court has to exercise a discretion as to whether on the facts of the case the evidence ought to be excluded or admitted. We therefore adopt for Ghana the discretionary rule for the exclusion of evidence obtained in violation of human rights guaranteed under the 1992 Constitution.
D. When the Court Must Exclude Evidence:
In exercising its discretion to exclude illegally obtained evidence, their lordships stated that the court should exclude evidence if it concludes that:
the admission of such evidence could bring the administration of justice into disrepute or affect the fairness of the proceedings
In determining whether the administration of justice would be brought into disrepute, the court should consider:
E. Admissibility of Illegally Obtained Evidence in Criminal Matters:
In a criminal matter where the crime charged is of a grievous nature, their lordships held that the court should admit such evidence even if obtained in contravention of a right, as the exclusion of such evidence would bring the administration of justice into disrepute.
F. Admissibility of Illegally Obtained Evidence in Civil Matters:
In a criminal matter, their lordships are of the view that if a party sets out with a view of procuring evidence in support of his case and obtains such evidence in violation of the rights of his opponent, admission of such evidence will also bring the administration of justice into disrepute.
The present case being a civil case, the secret recording of Felix should be excluded as it was obtained in violation of his rights. Failing to exclude it will encourage litigants to side step the rules of evidence, undermine the integrity of court proceedings, and consequently bring the administration of justice into disrepute.
Admissibility of Illegally Obtained Evidence Under the Evidence Act, 1975 (NRCD 323) ;
Under Section 51 of NRCD 323, the sole ground for the admissibility of evidence is the relevance of the evidence. In Section 51(2), it is provided that:
All relevant evidence is admissible except as otherwise provided by any enactment.
The use of the word “all” seems to disregard the legality of means of obtaining the evidence. However, the exception provided also reveals that an enactment may render such evidence inadmissible despite its relevance.
Further, the discretionary exclusionary rule explained by the Supreme Court in the Raphel Cubagee case (supra) is found in Section 52 of NRCD 323 which provides that a judge may exclude relevant evidence on certain grounds.
Conclusion:
This note discussed various rules on the admissibility of illegally obtained evidence, characterised as evidence obtained in breach of a right or even in excess of one’s powers (usually the police). The first rule that was discussed is the inclusionary rule or view which advances that it matters not how the evidence was obtained. That what is essential is relevance, and not legality of the means of obtaining the evidence. The second rule, on the other hand, contends that the fruit of the poisonous tree is equally poisonous/ tainted and the evidence obtained illegally cannot be used by a court whose duty is to make decisions on only legal evidence. The note then discussed the Ghanaian position on the admissibility of illegally obtained evidence, relying heavily on the decision of the Supreme Court in the decision of Raphel Cubagee v. Asare . Finally, the note highlighted that under NRCD 323, the primary consideration is relevance of the evidence. However, the court still has exclusionary discretion to exclude irrelevant evidence.
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