Determining the effect (the social costs) of exclusion under the South African exclusionary rule : should factual guilt tilt the scales in favour of the admission of unconstitutionally obtained evidence?

Abstract

The exclusion of unconstitutionally obtained evidence in criminal trials is a subject that frequently evokes a conflict between two equally important societal views. Crime control protagonists are repulsed by the acquittal of those who are factually guilty. They contend that society pays an excessive price when an accused is acquitted for the reason that unconstitutionally obtained evidence, crucial for a conviction on a serious charge, has been excluded. The social costs of exclusion are great under these circumstances, because a person who is factually guilty has not been brought to book. By contrast, fundamental rights advocates frown upon a conviction based on evidence procured by police conduct that unlawfully encroaches upon the constitutional rights of accused persons. In other words, there is a tension between the truth-seeking function of the criminal justice system and the protection of fundamental rights. The South African exclusionary rule was designed to strike a balance between these countervailing societal interests.