STUDY UNIT 14

Question 1

TWO MODELS OF THE CRIMINAL PROCESS:

Answer 1

1. Crime control model
2. Due process model

Question 2

CRIME CONTROL MODEL:

Answer 2

describe a criminal justice process which, among other things, prioritized the speedy finalization of criminal cases based on the factual guilt of an accused person as opposed to legal guilt, with no regard to the rights of such persons.

Question 3

DUE PROCESS MODEL:

Answer 3

described a criminal process which operates as an obstacle course to the finalization of criminal cases as it prioritized the observance of the rights of accused persons.

Question 4

The exclusion of…

Answer 4

the exclusion of unconstitutionally obtained evidence seeks to protect the rights of accused, arrested and detained persons against any possible abuse of power and process by the State to the extent that they have done in the past.

Question 5

SECTION 35(5) OF THE CONSTITUTION

Answer 5

compels courts to exclude unconstitutionally obtained evidence under certain circumstances, even if such evidence is relevant

Question 6

THREE TYPES OF RATIONALE:

Answer 6

1. the Condonation Rationale
2. the Deterrence Rationale
3. the Corrective Justice Rationale

Question 7

THE CONDONATION RATIONALE:

Answer 7

-also referred to as the judicial integrity rationale.
-is based on the reasoning that courts should not, and should not be seen to, condone police misconduct of using unconstitutional means to obtain evidence.

Question 8

THE DETERRANCE RATIONALE:

Answer 8

seeks to discourage or deter law enforcement agencies from collecting evidence through unconstitutional means.

Question 9

THE CORRECTIVE JUSTICE RATIONALE:

Answer 9

-also referred to as the remedial imperative.
-justifies the exclusion of unconstitutionally obtained evidence on the basis that the police should not benefit from the wrongfulness of their actions.

Question 10

SECTION 35(5) TEST:

Answer 10

the court must consider whether its admission would render the trial unfair or whether admission would otherwise be detrimental to the administration of justice

Question 11

FIRST LEG: WHETHER IT WOULD RENDER AN UNFAIR TRIAL:

Answer 11

-the court must take into account the facts of each case and
FACTORS:
-the nature and extent of the constitutional breach
-the presence or absence of prejudice to the accused
-the interest of the society
-public policy.

Question 12

SECOND LEG: WHETHER ITS ADMISSION WOULD BE DETRIMENTAL TO THE ADMINISTRATION OF JUSTICE:

Answer 12

FACTORS:
-the public interest
-public opinion
-the seriousness of the rights violation
-the seriousness of the offence committed by the accused.