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.]]>
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