TOWARDS A PROPER TRIAL - MAIN PAPER (FROM CRIME, LAW AND THE COMMUNITY, 1976 - SEE NCJ-51708)

• NCJ Number: 51714
• Author(s): R CROSS
• Date Published: 1976
• Length: 9 pages
• Corporate Author: Juta and Co, Ltd
• Publication Format: Document
• Language: English
• Country: South Africa

Annotation

THE ADMISSIBILITY OF CONFESSIONS AND EVIDENCE IMPROPERLY OBTAINED, THE ACCUSED AS WITNESS, THE ACCUSED'S SPOUSE AS WITNESS, IDENTIFICATION EVIDENCE, HEARSAY, AND BURDEN OF PROOF ARE CONSIDERED WITH REFERENCE TO SOUTH AFRICAN LAW.

Abstract

IN THE MATTERS DISCUSSED, SOME ATTENTION IS GIVEN TO THE SOUTH AFRICAN CRIMINAL PROCEDURE BILL ('THE BILL'). IN DISCUSSING THE ADMISSIBILITY OF CONFESSIONS, IT IS NOTED THAT THE BILL PROVIDES THAT CONFESSIONS TO PEACE OFFICERS OTHER THAN MAGISTRATES OR JUSTICES ARE INADMISSIBLE UNLESS CONFIRMED AND REDUCED TO WRITING IN THE PRESENCE OF A MAGISTRATE OR JUSTICE. THIS IS NOT DEEMED SUFFICIENT TO REVEAL OR REVISE POLICE COERCION OF A SUSPECT TO OBTAIN A CONFESSION. IT IS SUGGESTED THAT THE PRESENCE OF A THIRD PARTY AT POLICE INTERROGATION OR THE REQUIREMENT OF A TAPE RECORDER ON SUCH OCCASIONS WOULD MORE EFFECTIVELY CHECK POLICE PROCEDURES IN OBTAINING CONFESSIONS. IN CONSIDERING THE ADMISSIBILITY OF EVIDENCE, THE EXCLUSIONARY RULE, WHICH AUTOMATICALLY DISALLOWS EVIDENCE IMPROPERLY OBTAINED IS BELIEVED TO BE TOO INFLEXIBLE. IT IS PREFERRED THAT THE JUDICIARY BE ALLOWED TO DECIDE WHETHER OR NOT ANY LAW ENFORCEMENT IMPROPRIETY WAS SUCH AS TO DISALLOW SPECIFIC EVIDENCE IN PARTICULAR CASES. VARIOUS PROBLEMS ASSOCIATED WITH THE INFERENCE OF GUILT DERIVED FROM THE DEFENDANTS FAILURE TO TESTIFY AND THE TREATMENT OF MATTERS THAT MAY BE DAMAGING TO HIM SHOULD HE TESTIFY ARE DISCUSSED. IT IS RECOMMENDED THAT THE ACCUSED'S SPOUSE OUGHT NOT TO BE COMPELLED TO TESTIFY FOR THE PROSECUTION EXCEPT IN A LIMITED CLASS OF CASES, BECAUSE IT IS CONSIDERED REPULSIVE TO PUBLIC OPINION. CAUTION IS URGED IN RELYING TOO HEAVILY UPON VISUAL IDENTIFICATION OF A SUSPECT AS A PRINCIPAL BASIS FOR CONVICTION. EXAMPLES ARE CITED WHERE IT IS BELIEVED HEARSAY EVIDENCE IS APPROPRIATE. IT IS NOTED THAT IN SOUTH AFRICAN LAW THERE ARE MANY STATUTORY PROVISIONS PLACING THE BURDEN OF PROOF IN CERTAIN ISSUES ON THE ACCUSED. WHILE IT IS UNDERSTOOD THAT SUPPLYING A BALANCE OF PROBABILITY IS SUFFICIENT IN THESE CASES, IT IS NOT CONSIDERED JUST THAT IN FAILING TO SUPPLY THIS BURDEN OF PROOF, THE ACCUSED SHOULD BE CONVICTED WHEN THE PROSECUTION HAS FAILED TO PROVIDE SUFFICIENT EVIDENCE TO CONVICT. (RCB)