THE REVISED CANADIAN TEST FOR THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED EVIDENCE

Although South African courts have relied on Canadian law to interpret section 35(5) of the Constitution, they have also been hesitant to do so, since the previous Canadian approach clearly had its shortcomings. The Canadian Supreme Court's decision in R v Grant has now addressed these problems by putting forward an approach that is less rigid and more simplistic to apply. The new test reflects properly the main motivation behind a constitutionally entrenched exclusionary rule and thereby provides a sound theoretical basis for the application of such a rule. Because their new approach has brought the South African and Canadian tests closer together, more stands to be gained from future Canadian decisions in this regard. Perhaps the most important aspect of the Grant decision is that it shows why it is unnecessary to treat the two legs of the South African rule as separate tests. There should in principle be only one test: namely whether the admission of unconstitutionally obtained evidence would be detrimental to the administration of justice.

7. Special duty problems: economic loss

This chapter explains when and how the courts have found that a duty of care should be owed by defendants for purely economic loss. This differs from ‘consequential’ economic loss, where financial loss is suffered as a secondary consequence of another harm, such as personal injury or property damage. The tort of negligence distinguishes between these, using duty of care as a device to control whether and when claimants will be able to recover their pure economic losses. The discussions cover the meaning of ‘pure’ economic loss; exceptions to the exclusionary rule; claims for pure economic loss in negligence before Murphy v Brentwood District Council [1990]; and extended applications of the principles established in Hedley Byrne v Heller [1963].

6. Special duty problems: public bodies

This chapter explains what happens when a public body owes a private law duty of care to an individual who claims against it in negligence. It remains the case that public bodies will be liable where the negligent exercise of their powers makes a situation worse than it already was. The discussions cover the general exclusionary rule; the current state of the law; the background to D v East Berkshire [2005]; rules for claims brought against the emergency services (including the police) and armed forces; other types of public body; and new types of claims: education-based claims and ‘social’ claims.

5. Special duty problems: psychiatric harm

This chapter begins by explaining the meaning of psychiatric harm. It then discusses the general exclusionary rule; the distinction between ‘primary’ and ‘secondary’ victims; and other circumstances where the law recognises victims of psychiatric harms as having a claim in negligence (rescuers, involuntary participants, communicators of shocking news, self-harm by the defendant and ‘assumption of responsibility’ cases). Though initially psychiatric harm was recoverable only if accompanied by physical injury, it is now clear that the claimant can recover for pure psychiatric harm so long as it is a recognised psychiatric illness. It is not, therefore, possible to recover in the tort of negligence for mere grief, anxiety or distress.

Mapp v. Ohio, the Exclusionary Rule, and Constitutional Judicial Review

Mapp v. Ohio is the US Supreme Court opinion that imposed the Fourth Amendment exclusionary rule on the states. Mapp overruled earlier cases by holding that evidence obtained by unreasonable government searches and seizures was not admissible in state or local criminal prosecutions, just as it had long been inadmissible in federal cases. It is hard to overstate the impact of this decision, which changed the rules and procedures both for policing and for litigation in criminal cases throughout the United States. But Mapp’s significance extends beyond its specific holding. It adopted an interpretive method, often labeled “selective incorporation,” employed by the Supreme Court in subsequent decisions, that imposed specific provisions contained in the Bill of Rights, the first eight amendments to the Constitution upon the states. These decisions redefined federalism in the United States by establishing federal authority over government actions previously governed by state law. In the realm of search and seizure law, by requiring states to adhere to the Supreme Court’s search and seizure opinions, Mapp also generated potent political and legal opposition. In subsequent opinions the Supreme Court limited the exclusionary rule’s scope, diluting Mapp’s impact on police practices by reducing the situations in which federal constitutional rules required exclusion of evidence.

La llamada valoración negativa de la prueba en la doctrina y la jurisprudencia

This paper analyzes the so-called refusal to assess evidence in the Chilean criminal process. For this purpose, the most relevant case law of the higher courts in favor and against this possibility is presented, while also explaining the doctrine’s stance in this regard. In conclusion, the reader is provided with a position in favor of such refusal to assess evidence, understanding it as a mechanism to safeguard the effective protection of fundamental guarantees in obtaining evidence, beyond the exclusionary rule of evidence.