Improperly obtained evidence

The adjudication of any matter in court depends on the evidence
available to determine the case. Whether a person is accused of an
offence or is instituting a civil claim against another, there must
be evidence to support the claim (or charge where it is a criminal
case) and also to defend the claim (or charge).

Evidence is simply the materials that will be used to either
determine the dispute (or convict the criminal offender). Evidence
can be documents, oral statements, etc. However, there are rules as
to what evidence is admissible in court. What the courts will
accept as evidence that can be tendered to prove or defend a
matter. For instance, oral statements are evidence, but oral
statements that the courts consider to be hearsay evidence will not
be admissible.

In a criminal case for instance, there are several ways that
evidence can be gathered to prosecute the case. The evidence could
have been discovered through the search of a premises with or
without a warrant. If the search was conducted without a warrant in
a situation where a warrant was required before the search, then
all the evidence gathered from that search would be illegally
obtained. The question then becomes whether or not the court will
allow that illegally obtained evidence to be used in court to prove
the offence that an accused person is charged with.

Sections 14 and 15 of the Evidence Act 2011 give some guidance.
Section 14 provides that: Evidence obtained-(a) improperly or in
contravention of a law; or(b) in consequence of an impropriety or
of a contravention of a law, shall be admissible unless the court
is of the opinion that the desirability of admitting the evidence
is out-weighed by the undesirability of admitting evidence that has
been obtained in the manner in which the evidence was obtained.

Section 15 gives further guidance by saying: For the purposes of
section 14, the matters that the court shall take into account
include- (a) the probative value of the evidence;(b) the importance
of the evidence in the proceeding;(c) the nature of the relevant
offence, cause of action or defence and the nature of the
subject-matter of the proceeding;(d) the gravity of the impropriety
or contravention;(e) whether the impropriety or contravention was
deliberate or reckless;(f) whether any other proceeding (whether or
not in a court) has been or is likely to be taken in relation to
the impropriety or contravention; and(g) the difficulty, if any, of
obtaining the evidence without impropriety or contravention of
law.

Basically, the judge has the discretion, whether or not to allow
such illegally or improperly obtained evidence taking into
consideration the factors listed in Section 15. In other words, it
is safe to say that in criminal cases, our law is generous to the
prosecution. It would not be a stretch to say that regardless of
how the evidence is obtained, if the judge considers it to be of
probative value, it will be admitted in evidence.

Nigerian law on this matter is inclusionary, will include all
except under certain circumstances. Some other jurisdictions are
not so generous to the prosecution and have exclusionary laws,
meaning that such evidence is excluded except under certain
circumstances. The starting point is different.

If you watch as much of the drama series Law and Order as I do,
you may be familiar with the “Fruit of the Poisonous Tree” doctrine
that operates in the United States of America. Typically, the
scenario is that the police have got the bad guy; they need
evidence; they get the evidence through some underhanded or illegal
means; at the first appearance in court, the defence raises an
objection, and asks the judge to exclude all the evidence so
gathered; the judge obliges and it turns out that the excluded
evidence is all that the prosecution has to rely on. The
prosecution is not too happy with the investigating police officers
for their blunder and the investigating officers must find more
evidence, legally, to support the charge otherwise the accused
walks/gets away with the offence on a technicality. Nobody wants
that. Under this doctrine, evidence obtained from an illegal
arrest, unreasonable search, or coercive interrogation must be
excluded from evidence. Furthermore, evidence gained through
evidence uncovered in the illegal arrest, unreasonable search, or
coercive interrogation must be excluded from evidence.

In Ireland, improperly obtained evidence falls under three
categories and admissibility of such evidence in court will depend
on which category it falls into. The first category into which
improperly obtained evidence can fall is unconstitutionally
obtained evidence, which will be excluded at trial, unless there
are extraordinary excusing circumstances. The second category is
illegally obtained evidence, which may be admitted at the court’s
discretion. The third category is unfairly obtained evidence, which
may also be admitted at the court’s discretion.

The challenge for every jurisdiction is to get a balance between
the prosecution of crime (and keeping the public safe) and the
protection of the rights of the accused/offender. The objective of
the exclusionary position is to protect citizens from police abuse
of power and authority.

For us in Nigeria, whether the police conducted a search where
it was unreasonable to do so, or they hung you up by your toenails
to extract information that led to obtaining evidence, the courts
will accept the evidence as long as it is relevant to the matter in
issue. Be warned.

The adjudication of any matter in court depends on the evidence
available to determine the case. Whether a person is accused of an
offence or is instituting a civil claim against another, there must
be evidence to support the claim (or charge where it is a criminal
case) and also to defend the claim (or charge).

Evidence is simply the materials that will be used to either
determine the dispute (or convict the criminal offender). Evidence
can be documents, oral statements, etc. However, there are rules as
to what evidence is admissible in court. What the courts will
accept as evidence that can be tendered to prove or defend a
matter. For instance, oral statements are evidence, but oral
statements that the courts consider to be hearsay evidence will not
be admissible.

In a criminal case for instance, there are several ways that
evidence can be gathered to prosecute the case. The evidence could
have been discovered through the search of a premises with or
without a warrant. If the search was conducted without a warrant in
a situation where a warrant was required before the search, then
all the evidence gathered from that search would be illegally
obtained. The question then becomes whether or not the court will
allow that illegally obtained evidence to be used in court to prove
the offence that an accused person is charged with.

Sections 14 and 15 of the Evidence Act 2011 give some guidance.
Section 14 provides that: Evidence obtained-(a) improperly or in
contravention of a law; or(b) in consequence of an impropriety or
of a contravention of a law, shall be admissible unless the court
is of the opinion that the desirability of admitting the evidence
is out-weighed by the undesirability of admitting evidence that has
been obtained in the manner in which the evidence was obtained.

Section 15 gives further guidance by saying: For the purposes of
section 14, the matters that the court shall take into account
include- (a) the probative value of the evidence;(b) the importance
of the evidence in the proceeding;(c) the nature of the relevant
offence, cause of action or defence and the nature of the
subject-matter of the proceeding;(d) the gravity of the impropriety
or contravention;(e) whether the impropriety or contravention was
deliberate or reckless;(f) whether any other proceeding (whether or
not in a court) has been or is likely to be taken in relation to
the impropriety or contravention; and(g) the difficulty, if any, of
obtaining the evidence without impropriety or contravention of
law.

Basically, the judge has the discretion, whether or not to allow
such illegally or improperly obtained evidence taking into
consideration the factors listed in Section 15. In other words, it
is safe to say that in criminal cases, our law is generous to the
prosecution. It would not be a stretch to say that regardless of
how the evidence is obtained, if the judge considers it to be of
probative value, it will be admitted in evidence.

Nigerian law on this matter is inclusionary, will include all
except under certain circumstances. Some other jurisdictions are
not so generous to the prosecution and have exclusionary laws,
meaning that such evidence is excluded except under certain
circumstances. The starting point is different.

If you watch as much of the drama series Law and Order as I do,
you may be familiar with the “Fruit of the Poisonous Tree” doctrine
that operates in the United States of America. Typically, the
scenario is that the police have got the bad guy; they need
evidence; they get the evidence through some underhanded or illegal
means; at the first appearance in court, the defence raises an
objection, and asks the judge to exclude all the evidence so
gathered; the judge obliges and it turns out that the excluded
evidence is all that the prosecution has to rely on. The
prosecution is not too happy with the investigating police officers
for their blunder and the investigating officers must find more
evidence, legally, to support the charge otherwise the accused
walks/gets away with the offence on a technicality. Nobody wants
that. Under this doctrine, evidence obtained from an illegal
arrest, unreasonable search, or coercive interrogation must be
excluded from evidence. Furthermore, evidence gained through
evidence uncovered in the illegal arrest, unreasonable search, or
coercive interrogation must be excluded from evidence.

In Ireland, improperly obtained evidence falls under three
categories and admissibility of such evidence in court will depend
on which category it falls into. The first category into which
improperly obtained evidence can fall is unconstitutionally
obtained evidence, which will be excluded at trial, unless there
are extraordinary excusing circumstances. The second category is
illegally obtained evidence, which may be admitted at the court’s
discretion. The third category is unfairly obtained evidence, which
may also be admitted at the court’s discretion.

The challenge for every jurisdiction is to get a balance between
the prosecution of crime (and keeping the public safe) and the
protection of the rights of the accused/offender. The objective of
the exclusionary position is to protect citizens from police abuse
of power and authority.

For us in Nigeria, whether the police conducted a search where
it was unreasonable to do so, or they hung you up by your toenails
to extract information that led to obtaining evidence, the courts
will accept the evidence as long as it is relevant to the matter in
issue. Be warned.