When gathering evidence, the applicable procedures and privacy rights must be respected. According to the exclusionary rule, Evidence obtained as a result of police brutality or trickery, will be excluded.
The Kuwaiti Constitution for example had prioritized the human rights and freedoms in its articles. including the right to a Fair Trial, and a fundamental guarantee of the right to fair trial is the presumption of innocence. Kuwait judicial system provides fair and public trials which is the core to all fair justice.
Evidence In Criminal Proceedings.
Evidence is a crucial element to any trial. Including both verbal and physical elements, the purpose of evidence is to prove a crime was committed. Ultimately, it is the evidence that can make or break a trial and become the deciding factor between freedom and imprisonment. While evidence is an essential part of any trial, in order for the evidence to be permitted in a court of law, it must be legally obtained. (*)
Evidence can be legally obtained in numerous ways depending on the specifics of the case. Searches and warrants, among other actions, are all common ways to gather evidence. Depending on how the evidence is gathered is what deems it legally obtained or illegally obtained. For example, searches and warrants are generally only allowed if probable cause has been found. In a criminal case, the defense may always submit evidence to rebut a point for which judicial notice has been taken.
What is Evidence?
Evidence is information which may be used to prove the existence of a fact is issue or a collateral fact or to disprove a fact in issue or collateral fact.
In order to be admissible, the evidence must be relevant to a fact in issue or collateral issue. Irrelevant evidence will never be admissible. However, just because evidence is relevant, it does not mean that it is automatically admissible. admissibility is also a question of lawyer the judge to determine. (*)
Types of Evidence
The term “evidence” broadly refers to materials relating to the subject matter of a legal proceeding, such as:
- ▪ Witness testimony;
- ▪ Written statements;
- ▪ Audio or video recordings;
- ▪ Photographs;
- ▪ Physical objects, such as clothing or a weapon allegedly used to commit an offense;
- ▪ Digital evidence, including both data and the media storing the data;
- ▪ Scientific findings, such as blood test results; and
- ▪ Demonstrative evidence, such as displays, charts, or models used to educate the judge or jury about a complicated issue.
Illegally and improperly obtained evidence.
Like the exclusionary rule, Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") from it is tainted as well.
Illegally obtained evidence applies to criminal cases and is
typically evidence acquired by violating a person's constitutional protection against illegal searches and seizures.
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial judges, and that
the Accusation based on legally obtained evidence.
unlawfully obtained evidence is not automatically excluded. Rather, defendants must ask the court to suppress any evidence they believe was wrongfully seized by filing a pre-trial motion to suppress the evidence.
Therefore, if a defendant confesses after evidence against him was unlawfully obtained, that confession may be excluded from trial. Such evidence is not generally admissible in court. to deter police from using illegal means to obtain evidence.
This means that a voluntary confession obtained during an unlawful detention, real evidence discovered as a result of that confession or real evidence taken from the accused without his or her lawful consent may all be excluded on the grounds of unfairness.
also to ensure protecting The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things.
Fruit of the poisonous tree includes evidence gathered from just about any kind of police conduct that violates a defendant’s constitutional rights. Take an illegal wiretap, for example. Suppose the police begin to listen in on and record the statements of suspected drug dealers without first getting a warrant. One of the dealers says that he left some cocaine in an abandoned warehouse so that his buyer could pick it up. The police go to the building and find the drugs. Not only is the illegally recorded statement (the poisonous tree) inadmissible, so too are the drugs the officers found (the fruit of that tree). (*)
In general, all relevant evidence to a fact in issue are admissible in criminal proceedings, Unless these evidence has been obtained illegally or improperly it might be excluded under the Criminal Procedural law, Which is a safeguards against miscarriages of justice by providing rules of evidence and discretionary powers to exclude certain types of evidence or evidence which has been improperly obtained.
The position of The Kuwaiti Legislator in respect of The Exclusionary Rule.
The position of the comparative legislations in respect of the Exclusionary rule are so varied. and one those systems is the Kuwaiti legal system. the question arises as through the position of that system in respect of the fate of evidence collected by illegal means.
Kuwaiti laws, does pledge to protect numerous human rights, provided that protecting such rights does not conflict with basic nature of the Kuwaiti government, traditional cultural norms or the teachings of Islamic morality. The enforcement mechanisms designed to help protect human rights.
For instance, The Constituent Assembly which wrote the Kuwaiti constitution, was inspired by and adopted most of if not all rights and freedoms of the Universal Declaration of Human Rights (UDHR)
and in Kuwaiti Criminal Procedural law, the accused have various rights, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of The state has a responsibility to ensure a speedy process and avoid undue delays. because Justice delayed is justice denied.
Furthermore, to ensure the impartiality of criminal proceedings, all decision-makers involved should be shielded from undue outside influence. Judges in particular must enjoy a largely independent position and should not take order from politicians.
under Kuwaiti Penal Code No.16/1960 There are many levels of crimes, Article 2 provides that: the offense in this Act are two types: felonies and misdemeanors. If you are found guilty of, or plead guilty to, any level of crime, you are generally considered to have a conviction.
A conviction is something certain. conviction means that you have been found guilty of a crime by a court or that you have agreed to plead guilty to a crime.
"The conviction should not be based on illegal means, and Every defendant must be allowed access to a lawyer of his choosing at every stage of a criminal proceeding. Law enforcement failing to inform the accused of this right or deliberately obstructing its exercise must face consequences while statements obtained under such circumstances should be deemed inadmissible. If the accused cannot afford to hire a lawyer legal aid must be granted to guarantee a fair representation of his interests." (4)
some judicial applications:
Man accused of smuggling diesel containers, acquitted.
The Misdemeanor Court in Kuwait acquitted the accused of smuggling diesel containers, due to the procedural error of confiscating, unloading and returning the containers to the petroleum company before a court ruling. "After we asked the court to re-examine the diesel allegedly smuggled, it turned out that it was confiscated and unloaded, and could not be re-examined," defense lawyer Ali
al-Asfour said. "It is not permissible to confiscate diesel, unless after the verdict,"
Al-Asfour said.
The Criminal Court in Kuwait demanded the search and investigation agents to abide by the procedures set forth in the Code of Criminal Procedure and trials to arrest the suspects, and to arrest them either after obtaining permission from the public prosecution or in case of the crime that was committed in his presence. (flagrante delicto)
The Criminal Court affirmed that the arrest and search of a person without following the procedures provided for in the Code of Criminal Procedure in the arrest and search hurts justice, and that any restriction on personal freedom as a natural human right requires a restriction according to the law.
The court pointed out that the arrest or search of a person may only be in cases of flagrante delicto as crimes, or with the permission of the Public Prosecution, or in one of the cases received exclusively, stressing that the search of the officer for any accused defendant should not go beyond the issue of stripping the accused Of weapons that he may possess or that he may use to resist without extending that inspection to other matters requiring permission from the Public Prosecution.
The court considered that the procedures followed by one of the research and investigation men to arrest an accused for the mere suspicion of possession of narcotic drugs and psychotropic substances for the purpose of abuse, contrary to the law, and ruled his innocence of the charges attributed to him by the Public Prosecution, confirming that the procedures built on false arrest when the accused To the invalidity of the rest of the proceedings that have taken place after that procedure.
The Public Prosecution has assigned to the accused possession and acquisition of narcotic drugs (hashish) and psychotropic substances are tablets for the purpose of dealing, but the defendant denied the accusations against him from the Public Prosecution and his lawyer who was assigned by the court, was present with the defendant argued to nullify the arrest and search and the resulting procedures and reference to The accused disposed of medical drugs to treat his health and the defendant provided undisclosed prescriptions.
The court said in its ruling that the defendant's argument for invalidating his search and the resulting proceedings are valid. This ultimately leads to the punishment of an innocent person, which harms the community, and it is imperative that the criminal judge be free to assess the integrity and power of the evidence without limitation, except in cases that are legally exempted.
The court said that the constant testimony of the incident witness testified that while on a security tour in Mubarak Al-Kabeer area, the defendant saw a man in an abnormal condition. , Which the court referred to the report of forensic evidence, and referred it to the competent authority that referred it to the Public Prosecution, which ordered the analysis of those seizures and a sample of his urine, and found the material described in the reports of the General Directorate of Criminal Evidence.
It stated that the precautionary search of the accused by the incident officer had exceeded the right prescribed by article 51/1 of the Code of Criminal Procedure and Criminal Procedure, which allows the arrestee to inspect the arrested person in principle to disarm him and all possible use in Resistance or in hurting himself or others, To search for any material that the accused may possess legally, as that search by the officer of the incident was not based on a witness crime committed by the accused, or on the order of the Public Prosecution, which the court decides, as well as the invalidity of that procedure and the resulting According to the testimony of the accused, the seizure, analysis and analysis of a sample of the accused's urine, and the results of that analysis, and the fact that the papers after the exclusion of the illegally obtained evidence is devoid of evidence suitable for the indictment of the accused, according to the indictment report, He was also acquitted by virtue of article 172/1 Of the Code of Criminal Procedure and Trials, and since it is for seizures, the court shall order confiscation pursuant to the provisions of Article 49/1 of the Law on Combating Psychotropic Substances.
The purpose of a criminal trial is to determine the guilt or innocence of the accused, then unfairness will only arise if the court is in danger of being misled by the admission of unreliable or overly prejudicial evidence. and According to Kuwaiti Criminal Procedures law, in Trial Procedures The court charges the accused, reading it and clarifying it to him, and then asks whether he is guilty or not. and Any form of torture, abuse and cruelty as a measure of interrogation is absolutely impermissible. The accused is to be treated with respect by all agents of the state and protected from unnecessary humiliation and degradation.
in Kuwait, The police can stop and question you at any time, they can search you depending on the situation. the police must use these powers effectively and fairly. The primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about individuals without exercising their power of arrest.
It has been identified that stop and search can play an important role in the detection and prevention of crime, and using the powers fairly [and in the proper manner] makes them more effective, Also that evidence obtained from a search may be open to challenge if the powers are not properly observed. Keeping that in mind, powers to stop and search must be used fairly, responsibly, with respect for people being searched and without lawful discrimination. Police officers should give due regard to the need to eliminate unlawful discrimination, harassment and victimization. They should also have regard for the need to safeguard and promote the welfare of all persons under the age of 18.
The police can only stop and search you if:
• they have a search warrant
• they have reasonable grounds to suspect that you have committed a crime or are about to commit a crime. Reasonable grounds to search can't be based on an officer's hunch or instinct. It should be based on reliable information, facts or seeing you acting suspiciously
• you are a danger to yourself or others
• you are suspected of having weapons on school grounds
• you are suspected of terrorist activity
• you are in an area where the police are searching people for a limited time because there is a belief that serious violence might take place or people are carrying weapons. For example, a protest
• if you agreed to be searched as you enter an event like as a football match when you bought the ticket.
The officer should try to ensure that you understand the information you have been given. If you find it difficult to communicate in Arabic, the police may find an interpreter for you. and If you've been asked to consent to a search by the police, you can refuse to allow the search to take place and make a complaint about the police officer(s) involved.
Obtaining a Search Warrant
A warrant is a legal order signed by a judge authorizing the police to search a specific location and seize specific materials from that location at a specified time. For example, a warrant may specify that police can search 123 Main Street for marijuana between the hours of 8:00 a.m. and 5:00 p.m. The police must convince the judge, using sworn statements, that they have probable cause or a reasonable belief that a crime has taken place, in order to receive a warrant to search a particular area for evidence of that crime.
The police will provide their own evidence for the warrant and the suspect is not present when the warrant is issued. Once a warrant is obtained, the police can only search the location specified in the warrant, whether it is a home, a car, or a specific outside location. For example, if a warrant specifies that the police are searching the backyard of a home, they cannot legally also search the home or vehicle of the individual. In addition, they must only search for what is specified in the warrant.
When is a Warrant Not Required?
There are times when police can perform a search without a warrant, and most searches actually do occur without warrants being issued. That is not to say the police can barge into your home and search it without a warrant; if there is a reasonable expectation of privacy and there is not probable cause, a search warrant is required. However, if probable cause does occur, such as the suspect runs away, a gunshot is heard from another room in a home, or even when an individual makes a sudden movement, a search becomes legal without a warrant. Even with a reasonable expectation of privacy, the police can legally conduct a search without a warrant in situations in which certain exemptions apply.
Even if a warrant is issued, it must meet basic legal requirements. Generally speaking, a warrant must be signed by a judge or magistrate, it must specifically state the place to be searched and the items to be seized, and it must give “probable cause,” or the reasons law enforcement has for thinking that the planned search and seizure will turn up evidence of a crime.
Because judges may be asked to sign a large number of warrants in a short time, there is always the chance that a warrant was not properly issued. If this happens, any evidence seized under that warrant may be treated by the courts as if no warrant existed at all. (*)
Raising a Nullity in a Criminal Proceeding
Nullification should be raised regardless of whether the criminal procedure code provides a mechanism to raise the issue. This is especially important when the violation involves breaches of fundamental rights such as the right to physical integrity.
A criminal defense attorney has the burden of proof in demonstrating that a procedural violation has occurred and that the defendant has suffered harm. Evidence may include attestations, medical reports, photographs, video or other types of real evidence.
A criminal defense attorney who recognizes either a textual, substantial, or public order nullity, should raise the nullity at the earliest possible time.
(Conclusion)
It can be concluded from this research that gathering evidence is essential, and must be sufficient and legally admissible to convince the judge, in order to have a Fair Trial is which is an important right that is recognized internationally as a fundamental human right and countries are required to respect it.
If a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by Kuwaiti laws, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. and Under Kuwaiti criminal procedural law the accused has various rights to protect him from illegal and unfair trials.
In any proceedings the court may refuse to allow evidence on which the prosecution proposed to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(References)
- Legally Obtained Evidence - (https://accidentshappenatty.com/evidence-legally-obtained/)
- Nicola Monaghan 'LAW OF EVIDENCE' 2015 p 2.
- https://www.nolo.com/legal-encyclopedia/fruit-the-poisonous-tree.html
- https://liberal-international.org/what-we-do/events/executive-committee-meetings/marrakech-2016/10-basic-rights-accused-persons-criminal-proceedings-marrakech-2016/
- - https://www.rudnicklaw.com/blog/examples-of-illegally-obtained-evidence/
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