Law and justice essay
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Module Overview Insurance underpins much of economic activity.The rules and guidelines set into place are to provide structure and repercussions. Since both of these ideas do not generally apply to small claims court, and most defendants of trademark law essay lawsuits are not represented, this industry has been allowed to run roughshod over the constitutional rights of defendants and clog the small claims court system with cases that would be easily thrown. The purpose of this paper is to inform people of the importance of our constitutional rights, especially the fourth amendment when concerning a criminal prosecution.
The exclusionary rule is set in place to ensure justice be. The intension was to ensure that the 4th Amendment is kept and not violated.
Most people are aware of their right to privacy, and how it protects them from unwarranted searches. Nevertheless, most them do not comprehend how the Exclusionary Rule which ensures this right is guarded. The Exclusionary Rule is intended to refrain the police from.
The exclusionary rule is one of the longest-standing doctrines in American criminal and constitutional law. In the simplest sense, the exclusionary rule states that evidence collected or analyzed by the state in violation of the constitution cannot then be used in a criminal court proceeding. It is, in essence, excluded from use in an attempt to secure a conviction. It may be highly relevant, especially when such evidence is used to determine whether the acts in question were deliberate or to rebut a defence that could have been available.
These provisions govern specifically the facts in issue, i. Similar fact evidence is admissible to prove mens rea or to rebut the defence of good faith. Hence, similar fact evidence is admissible to prove both mens reas and actus reus. As long as the evidence is logically probative, it is admissible unless it contravenes clear public policy or other laws. Under the first limb, the prosecution is not allowed to adduce similar fact evidence for pure propensity reasoning.
Under this test, the probative force of the similar fact evidence must outweigh the prejudicial effect. Defects of EA Singapore courts have incorporated common law principles and extended the applicability of similar fact evidence to prove actus reus. Further, there are some ambiguities that require clarification.
The court would have to admit evidence falling under civil law essay section even if it may not be very probative or is highly prejudicial.
Third, admissibility rules european law essays the EA do not distinguish situations where the accused adduced similar fact evidence unintentionally. A witness is competent where he can be lawfully called to give evidence, and is compellable if he has a legal obligation to Answer: The actual concept of relevance is easy to grasp, it simply refers to any item of proof that renders the existence of a fact in a case that has been put the Question: When psychologists act as expert witnesses a number of issues are raised surrounding the admissibility of their evidence.
Discuss these issues with reference to eyewitness testimony and domestic violence, then make suggestions as to how these issues might be resolved. Answer: In order to prosecute alleged offences, evidence such as testimony from eyewitness, fingerprint, hair, DNA, etc.
These evidences are only allowed in legal proceedings when they Question: Outine and evaluate the contentious area of compellability within the criminal law.
Question: Critically evaluate the importance of judicial discretion to exclude evidence, with particular regard to evidence unlawfully, improperly or unfairly obtained and consider how, if at all judicial discretion has been affected by the Human rights act Two part question: 1 How important is the discretion to exclude evidence?
Informal admissions constitute merely an item of evidence helping to prove the other party's case, whereas a formal admission, once made, is conclusive proof of the fact admitted. The weight to be accorded to an informal admission depends on the circumstances. Formal admissions cannot be withdrawn or contradicted without compliance with certain formalities. Formal admissions need to be clear and unequivocal, because of their implications.
Formal admissions may be made during pleadings, or during the trial itself. Section 15 of the CPEA provides that it is not necessary for a party to prove a fact insurance law essays admitted; nor is it competent to disprove a fact so admitted. Withdrawal of formal admission is only possible in the event of compliance christianity vs islam essay formalities.
The court will only allow withdrawal if satisfied that it was a bona fide mistake, and that there is no prejudice to opposing party. The party seeking withdrawal must give a full and satisfactory explanation for the withdrawal, supported by evidence like an affidavit.
Even after withdrawal, a formal admission may still be taken into account as an item of evidence; it may still constitute an informal admission, in other words. In criminal trials, either side the defence or the prosecution may now make formal admissions in favour of the other side.
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They are made under section of the CPA. Previously statutory provision was made only for the defence to make admissions, although at common law it was accepted as a matter of practice that the State could also make admissions.
Section has now been amended to cover admissions made by either side. Therefore, a formal admission under section immediately became conclusive of the fact covered thereby. In S v Sesetsehowever, the Appellate Division held that an admission only becomes conclusive proof at end of the trial.
Withdrawal of a formal admission in criminal trial is possible, if the formalities have been complied with, but a withdrawn admission may still insurance law essays some evidentiary value.
Evidence law essay
There is a need for clarity: Formal admissions should be worded and recorded carefully, to eliminate ambiguity. If there is any ambiguity, the general principle is that the interpretation in the accused's favour is to be applied. Note, however, the effect of a formal admission by the law and justice essay it does not bind the State to a meaning fundamentally at variance with the State's case. A plea of guilty itself constitutes a type of formal admission. Note that section provides for the setting aside of a plea of guilty in a wider variety of situations than those covered by the withdrawal of other formal admissions: for example, if the court thinks that there is any valid reason why the plea of guilty should not stand.
If the accused gives a plea explanation, in terms of section of the CPA, he is asked by the presiding officer whether anything not placed in issue by the plea explanation may be formally recorded as an admission under section If it is so recorded, it is the same as any other section admission.
Even if the accused does not so agree, the admissions remain evidential material, and are similar to informal admissions; indeed, they have the effect of an informal admission. Courts should law and justice essay wary about accepting formal admissions from an unrepresented accused on points beyond the personal knowledge of the accused.
This occurs all too often in practice. The accused's presence at the scene of the crime is within his personal knowledge; the veracity of the blood tests is obviously not. Explicit assertions by the cross-examiner may constitute admissions, eliminating the need for proof. For example, in a traffic case for negligence, trademark law essay defendant's counsel may put it to a witness that the client, although he admits to driving the other vehicle, denies any negligence.
This would constitute an admission that the defendant was the driver. This underscores the need for caution and care in cross-examination. The first thing to decide is whether an admission is formal or informal.
If there is no conclusive proof in this regard, in a criminal trial one must ask if it is a confession or not. Having answered this question, one has passed the point of no return; one cannot retrace one's steps back to this proverbial fork in the road. A confession is a special type of informal admission in a criminal trial.
It has been defined as an unequivocal admission of guilt, equivalent to plea of guilty in a court of law. The CPA creates special rules for the admissibility of confessions. In terms of sectiona confession is admissible only if made. In addition, a confession to a peace officer, other than a justice of the peace-that is, to a police official lower than the rank of officer a captain or higher -is not admissible unless it is confirmed and reduced to writing in the presence of a magistrate.
The rationale for the exclusion of confessions not complying with section includes considerations of. Courts have tended to take a strict view of what a confession is. They have tended to regard a statement as not being a confession if there is any opening for a valid defence. What if the accused intends to make an exculpatory statement, but in fact it objectively amounts to a confession?
Previously there was some debate on this issue, but now it has been good ways to start an essay that such statements are to be judged objectively.
In deciding whether a statement amounts to a confession, the surrounding circumstances must be looked at, to get the full context. Even if the statement does not constitute an unequivocal admission to the main charge alleged, but objectively constitutes a full admission to some autonomy essay law legal positivism charge competent verdictthis will amount to confession, civil law essay section will apply. This expression is given the same interpretation as at common law. Note: Consumption of alcohol or loss of temper does not per se lead to the land law essay that accused was not in sound and sober senses.
See R v Blyth. There must be no external factor operating to extinguish accused's freedom of will. Undue influence need not emanate from person in authority. Violence, or threat of violence, would clearly constitute undue influence.
The concept also includes subtler influences such as the promise of some benefit, or an implied threat or promise. Influences which come from the accused herself do not constitute undue influence: for example, an expectation by the accused that he will receive more favourable treatment if a confession is made. Courts have regarded this requirement as being a subjective one: Was the accused in fact influenced? Improper threats or promises which did not in fact influence the accused will therefore not automatically render the confession inadmissible.
Failure to advise the accused of his rights at the time of law and justice essay arrest can be taken into account to decide whether there was improper influence. A person taking a confession is not obliged to interrogate the interviewee in order to exclude the possibility of undue influence. Previously courts have autonomy essay law legal positivism that statements made under statutory compulsion do not fall foul of the requirement that statements be free of undue influence.
How does this fit in with right not to incriminate oneself in s 35 3 j of Constitution? Section 1 of the CPA contains a proviso: Confessions to peace officers who are not magistrates or justices of peace are not admissible unless confirmed and reduced to writing before magistrate. In practice trademark law essay means that confessions to police officials below officer rank-that is, up to and including the rank of inspector, and below the rank of captain-will not be admissible unless confirmed and reduced to writing before a magistrate.
Essay terms explained
The rationale for this is the elimination of the undesirable practice of enforced confessions, and "trial by police station" instead of trial by court. The meaning of "peace officer" is defined in section 1 of the CPA. It includes magistrate, justice of peace, police officials and other categories. The proviso to section 1 exempts from the prohibition those peace officers who are also magistrates or justices of peace. Police officials of commissioned-officer rank lieutenant and higher are also justices of the peace, and therefore included in the exemption.
In practice, therefore, the exclusion of confessions applies to constables, sergeants and warrant officers in the SAPS, as well as to certain categories of other officials referred to in definition of "peace officer. Note that the proviso trademark law essay s 1 only excludes statements made to disqualified officials.
The mere presence of a disqualified official when a confession is made does not render that confession inadmissible. For example, if a disqualified official is in the presence of a more senior police official who is also a justice of the peace, or acting as interpreter for such more senior police official when the confession made, or present when a confession is made to a private person, the confession would be admissible, if other admissibility requirements have been met.
The proviso to s 1 states that confession to a disqualified official becomes admissible if it is subsequently confirmed and reduced to writing in the presence of a magistrate or justice of the peace. In practice, if it is so confirmed and reduced to writing before essay on animals magistrate or justice, it is regarded as a new confession, and the inquiry will be about whether that confession complies with the usual admissibility requirements.
In practice, it is far preferable to have the suspect taken before the magistrate if there is to be a confession. It is especially undesirable to have the confession made to a commissioned officer who is involved in the investigation. If the maker of the confession is unaware that the person to whom trademark law essay makes the statement is a police official, the proviso is not applicable. At common law, the State has the burden of proof beyond a reasonable doubt.
Section 1 b of the CPA made two changes:.
Land law essay
In S v Zumathe Constitutional Court struck down the second of these changes as being unconstitutional, because it sought to introduce a reverse onus. The first was not struck down, but on its own it does not do much. A confession is proved to be admissible by way of a "trial within a trial," get a phd each side leads evidence, and then argues on its admissibility.
The content of the confession itself usually cannot be placed before court at this stage, unless exceptional circumstances insurance law essays, as in S v Lebonewhere it was necessary to refer to the contents of the confession to refute the allegation made by the accused that he had been coached by the police as to what to say.
Evidence at a trial within trial is not per se admissible at the main trial, whether the confession is allowed or excluded. If the confession is ruled admissible at the trial within a trial, the evidence to prove the confession still has to be led at the main trial.
Generally an accused cannot waive the admissibility requirements of a confession. But section 3 of CPA renders an inadmissible confession admissible if the accused adduces evidence, whether in chief or in cross-examination, of the confession, and the court considers that that part of the evidence so adduced is in favour of accused.
The rationale for this is that, while confession evidence improperly obtained may be unreliable-the person may confess, for example, to avoid some harm or threat of harm-concrete evidence discovered in consequence thereof, or pointing out, etcetera, is not so tainted: There is no threat to reliability.
This rationale does not give value to section 35 5 of Constitution, which clearly envisages that improperly-obtained evidence may be excluded, even if otherwise reliable. Previously the courts took the view that whatever led to the pointing out was irrelevant. The pointing out itself was admissible. Now courts look to the nature of the pointing out, to civil law essay if it is in fact a disguised admission or confession. Since the advent of constitutionalism, section 35 5 of the Constitution may lead to the exclusion of evidence as unfair, or likely to bring the administration of justice into disrepute, even if section of CPA would allow trademark law essay.
A confession is only admissible against its maker. Privilege-note the Latin etymology of the word-refers to a personal right to refuse to give or disclose otherwise admissible evidence. A witness, otherwise compellable, is not obliged to answer certain questions. See Ferreira v Levin. Privilege is different from other rules that exclude evidence. Such other rules tend to exclude because of some doubt about reliability, whereas privilege excludes evidence because it aims to protect some higher value evidence law essay the search for truth.
The granting of privilege is therefore not lightly made. The principle of privilege is aimed, for policy reasons, at protecting the rights of individuals. It is to be distinguished from competence and compellability. In the case of privilege, the witness may not refuse to testify at all; he may refuse only to answer a particular question or questions. Private privilege may be waived, but courts require confirmation that the person so waiving is aware of his rights.
The court must be satisfied of this before it will allow such waiving. The courts are reluctant generally reluctant to grant privilege.
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The more privilege they grant, the more hampered they are in getting to the bottom of the matter. On the question of whether or not other professions enjoy privilege, see below. On the question of whether there is parent-child privilege, see below. One may not be made to say something that incriminates oneself. This is the natural consequence or corollary of the presumption of innocence, trademark law essay it applies both to criminal and to civil cases.
Sometimes, in civil cases, one might be in danger of saying something that could lead subsequently to one's criminal prosecution. Privilege protects one in such circumstances.