Chapter 1 - Introduction Flashcards
What are the three main purposes of criminal procedure according to Aranella ?
- Vindicating Substantive Criminal Law by ensuring reliable and authoritative determination of guilt and promoting sentencing objectives.
- Dispute Resolution and Resource Allocation by efficiently resolving disputes and distributing power among state officials.
- Legitimation Function by resolving disputes in a way that commands community respect for fairness and reliability.
What is substantive law ?
- Substantive law comprises legal rules that determine the rights and duties of individuals and the state.
- It includes both public and private law and defines criminal liability and the elements of crimes.
What is adjectival law ?
Adjectival law puts substantive law into action.
What is the balance needed between crime control and individual rights in criminal procedure ?
- Crime control through repressing criminal conduct effectively.
- Individual rights by ensuring the rights of individuals are respected during all stages of the criminal process.
How does Cloete describe the relationship between crime control and due process ?
Cloete emphasizes that the Constitution is not the cause of crime but must be upheld in a way that balances crime control and due process.
What internal tensions exist in the criminal justice system ?
- Protecting the liberty of the innocent while ensuring crime control.
- The risk of convicting innocent people if stricter rules are created versus the risk of letting guilty people go free if rules are too lenient.
What is the danger of absolute state power in crime control, and how must criminal procedure regulate state power ?
- Absolute state power may improve crime control but also create tyranny.
- Criminal procedure must regulate state power both positively (granting powers to curb crime) and negatively (creating safeguards to prevent abuse).
How does Section 35(5) of the Constitution protect fair trials ?
Section 35(5) excludes evidence obtained unconstitutionally, even if it is otherwise relevant, to protect the fairness of the trial and ensure justice.
What is the role of due process in criminal justice ?
Due process ensures that suspects are not treated unfairly, that evidence is not obtained through unconstitutional means, and that the rights and freedoms of individuals are protected during the criminal process.
What does the Service Charter for Victims of Crime in South Africa provide ?
The Service Charter sets out the rights of victims of crime as contained in the Constitution and legislation, ensuring their participation and protection in the criminal process.
How is the criminal justice system criticized in terms of victim rights ?
There is criticism that the system is offender-oriented, often at the expense of victims’ rights and interests.
What is the significance of the Wickham v Magistrate case ?
The Constitutional Court ruled that the victim’s rights were properly accommodated by allowing extensive participation throughout the prosecution.
Why is the victim impact statement important ?
It allows the victim to express how the crime affected their life, which is crucial for sentencing, especially in sexual offenses.
What rights do victims have regarding parole representations ?
Section 299A and related provisions ensure that victims (or relatives of the deceased) can make representations regarding a convicted person’s parole or correctional supervision.
What protections are available for victims and witnesses in the criminal process ?
- Requires a witness list for arraignment unless there is fear of intimidation.
- Allows witnesses to testify privately to protect their identity.
- Permits closed-circuit television testimony to prevent harm.
What does Section 7 of the Bill of Rights deal with ?
Section 7 outlines the limitations to the rights in the Bill of Rights, explaining that these rights are not absolute and can be limited under certain circumstances.
What does Section 35 of the Constitution guarantee ?
Section 35 guarantees the right to a fair trial, which includes various specific rights such as the right to an attorney, the right to be informed of the charges, and the right to an open and public trial.
How did the case Veldman v DPP WLD contribute to the understanding of the right to a fair trial ?
- It established that the right to a fair trial is broader than the specific rights listed in Section 35(3) of the Constitution.
- It mandates that criminal trials be conducted in accordance with principles of basic fairness and justice.
What is the presumption of innocence and how does it relate to criminal procedure ?
- The presumption of innocence means that a person is considered innocent until proven guilty.
- The prosecution bears the burden of proving guilt beyond a reasonable doubt, and the accused does not have to prove their innocence.
What does the right to silence entail, and how does it relate to self-incrimination ?
- The right to silence means that an accused person cannot be compelled to testify or self-incriminate.
- This right extends through the pre-trial, trial, and sentencing stages.
What is the key difference between the accusatorial and inquisitorial systems of criminal procedure ?
In the accusatorial system (used in South Africa), the judge is an impartial referee who oversees the trial, while in the inquisitorial system (used in countries like France), the judge plays an active role in investigating the case, including questioning witnesses and determining the direction of the trial.
What is the Writ of Habeas Corpus ?
- A writ of habeas corpus is a legal remedy that allows a detained person to challenge their detention in court.
- It compels the state to produce the detainee before the court to justify their detention.
When might a civil action for damages be used in criminal procedure ?
A civil action for damages may be pursued if an individual is wrongfully arrested or subjected to unlawful treatment during the criminal process, allowing them to seek compensation for their loss.
