CPR3701
NOTES
, CPR3701 NOTES:
CRIMINAL PROCEDURAL SYSTEM:
Substantive law: WHAT: it sets out Adjectival/procedural law: HOW:what
what each persons rights andduties procedure must be followedfor a
are, what the definition of the sanction to be put into operation when
different crimes are and whatthe a legal rule is contravened = how do
sanctions are when the rulesare we remedythe wrong – e.g. Criminal
contravened – e.g. Criminal law procedure, Civil procedure, Evidence.
Distinction between public and private law:
Private law: rules which have regard to Public law: consists of rules which
the relationship existingbetween have regard to the relationship
individual people = family law and existing between authority and the
contract individual, theindividual occupying the
subordinate position = criminal law
and criminal procedure.
Crime control vs due process:
Crime Control Due Process:
This is based on the idea that the The aim of the criminal justice system
point of a criminal justice system is to isn’t to secure a convictionand
prevent criminal conduct sentence by any means possible but
rather to ensure the results are properly
achieved by following procedure =
looking at the rights of the person
during all the pre and post trial stages.
It is said that the criminal procedure
system tends to over emphasise the
rights of the criminal and neglect the
rights of victims. The response to this
is that two wrongs don’t make a right,
in other words just becausesomeone
is a victim of crime, it
does not suspend the rule of law.
,JURIDICAL GUILT:
Is the idea that its not NB to secure a verdict by any means BUT therules of
evidence and criminal procedure should be complied with =this places the
onus on the state to prove guilt beyond a reasonable doubt
RIGHTS OF SUSPECTS AND A:
In the constitution the A is protected in terms of S35.
This provides rights for both an arrested as well as an A person.
The rights of arrested people:
S35 of the constitution provides:
Every arrested person shall have the right:
1. To be informed, in an understandable language, that he has theright to
remain silent and the consequences of making a statement. (S35 (a) &
(b))
2. Not to be compelled to make a confession or admission, whichcould
be used in evidence against him. (S35 (1)(c))
These rights are only for arrested persons
The rights of an accused person:
S35 (3) of the constitution provides:
Every accused shall have the right to a fair trial, which includes theright:
1. To be informed of the charge with sufficient details to answer it
2. To be presumed innocent, to remain silent during the plea proceedings as
well as during the trial and not to testify duringthe trial
3. To adduce and challenge evidence and not to be a compellablewitness
against himself
Only accused people have these rights, they arise once the arrestedperson
has been charged with committing an offence.
The right to silence:
The right to silence is ALSO called the privilege against self- incrimination.
This right is afforded to both an arrested and an Aperson.
The Constitution guarantees the right of every ARRESTEE to remainsilent –
person has a right to silence in the pre-trial and trial stages.
If the A is unrepresented, he should be told of his rights whichinclude:
right to representation, right to silence, right to call witnesses, the
right to cross examine etc.
, Under common law the A silence could have an adverse inference, asit would
be seen as circumstantial evidence of his guilt. As an innocent man would
protest his innocence.
The A can’t be penalized for exercising one of his rights = no adverseinference can
be drawn because the A remains silent for 2 reasons:
1. There may be a number of reasons why the A remained silent,
i.e. he doesn’t trust the system, ignorant, afraid or he thinksthe
States case is weak.
2. If the State doesn’t prove all the elements of the crime, the A silence
doesn’t mean that the missing element is proved = hissilence can’t fill
the gaps in the States case.
BUT the A case can be affected by his silence:
If the state has proved all the elements of the crime (the State has a prima facie
case) and the A hasn’t spoken – no doubt would have beenraised and the court
will have no choice but to find the A guilty.
The presumption of innocence – legal guilt:
In criminal procedure the victim is the complainant, but the State
prosecutes. The victim is therefore NOT the plaintiff but only a WITNESS
for the state.
The victim is represented by the state and the accused is representedby his
attorney.
Before a charge is laid, a person is merely a suspect –
Suspect: someone who hasn’t been charged = an arrested person.
Accused: a person who has been charged with a crime.
Due to the presumption of innocence, everyone is regarded as innocent until
they are properly convicted by a court of law. This presumption is created to
put the burden on the state to prove theircase beyond a reasonable doubt.
Therefore an accused (A) may appear to be morally guilty of the crime but this
doesn’t necessarily mean that he will be found legally guilty –OJ Simpson.
The prosecution must prove guilty beyond a reasonable doubt. Theonus
rests on the prosecution because of the presumption of innocence.
The prosecution must prove every element of the crime beyond a
reasonable doubt. The A only has to create doubt.
If the state does prove a prima facie case and the A does nothing to disturb
that case, the prima facie case may harden into proof beyonda reasonable
doubt, as there is nothing that produces doubt in the courts mind about the
A’s guilt.
NOTES
, CPR3701 NOTES:
CRIMINAL PROCEDURAL SYSTEM:
Substantive law: WHAT: it sets out Adjectival/procedural law: HOW:what
what each persons rights andduties procedure must be followedfor a
are, what the definition of the sanction to be put into operation when
different crimes are and whatthe a legal rule is contravened = how do
sanctions are when the rulesare we remedythe wrong – e.g. Criminal
contravened – e.g. Criminal law procedure, Civil procedure, Evidence.
Distinction between public and private law:
Private law: rules which have regard to Public law: consists of rules which
the relationship existingbetween have regard to the relationship
individual people = family law and existing between authority and the
contract individual, theindividual occupying the
subordinate position = criminal law
and criminal procedure.
Crime control vs due process:
Crime Control Due Process:
This is based on the idea that the The aim of the criminal justice system
point of a criminal justice system is to isn’t to secure a convictionand
prevent criminal conduct sentence by any means possible but
rather to ensure the results are properly
achieved by following procedure =
looking at the rights of the person
during all the pre and post trial stages.
It is said that the criminal procedure
system tends to over emphasise the
rights of the criminal and neglect the
rights of victims. The response to this
is that two wrongs don’t make a right,
in other words just becausesomeone
is a victim of crime, it
does not suspend the rule of law.
,JURIDICAL GUILT:
Is the idea that its not NB to secure a verdict by any means BUT therules of
evidence and criminal procedure should be complied with =this places the
onus on the state to prove guilt beyond a reasonable doubt
RIGHTS OF SUSPECTS AND A:
In the constitution the A is protected in terms of S35.
This provides rights for both an arrested as well as an A person.
The rights of arrested people:
S35 of the constitution provides:
Every arrested person shall have the right:
1. To be informed, in an understandable language, that he has theright to
remain silent and the consequences of making a statement. (S35 (a) &
(b))
2. Not to be compelled to make a confession or admission, whichcould
be used in evidence against him. (S35 (1)(c))
These rights are only for arrested persons
The rights of an accused person:
S35 (3) of the constitution provides:
Every accused shall have the right to a fair trial, which includes theright:
1. To be informed of the charge with sufficient details to answer it
2. To be presumed innocent, to remain silent during the plea proceedings as
well as during the trial and not to testify duringthe trial
3. To adduce and challenge evidence and not to be a compellablewitness
against himself
Only accused people have these rights, they arise once the arrestedperson
has been charged with committing an offence.
The right to silence:
The right to silence is ALSO called the privilege against self- incrimination.
This right is afforded to both an arrested and an Aperson.
The Constitution guarantees the right of every ARRESTEE to remainsilent –
person has a right to silence in the pre-trial and trial stages.
If the A is unrepresented, he should be told of his rights whichinclude:
right to representation, right to silence, right to call witnesses, the
right to cross examine etc.
, Under common law the A silence could have an adverse inference, asit would
be seen as circumstantial evidence of his guilt. As an innocent man would
protest his innocence.
The A can’t be penalized for exercising one of his rights = no adverseinference can
be drawn because the A remains silent for 2 reasons:
1. There may be a number of reasons why the A remained silent,
i.e. he doesn’t trust the system, ignorant, afraid or he thinksthe
States case is weak.
2. If the State doesn’t prove all the elements of the crime, the A silence
doesn’t mean that the missing element is proved = hissilence can’t fill
the gaps in the States case.
BUT the A case can be affected by his silence:
If the state has proved all the elements of the crime (the State has a prima facie
case) and the A hasn’t spoken – no doubt would have beenraised and the court
will have no choice but to find the A guilty.
The presumption of innocence – legal guilt:
In criminal procedure the victim is the complainant, but the State
prosecutes. The victim is therefore NOT the plaintiff but only a WITNESS
for the state.
The victim is represented by the state and the accused is representedby his
attorney.
Before a charge is laid, a person is merely a suspect –
Suspect: someone who hasn’t been charged = an arrested person.
Accused: a person who has been charged with a crime.
Due to the presumption of innocence, everyone is regarded as innocent until
they are properly convicted by a court of law. This presumption is created to
put the burden on the state to prove theircase beyond a reasonable doubt.
Therefore an accused (A) may appear to be morally guilty of the crime but this
doesn’t necessarily mean that he will be found legally guilty –OJ Simpson.
The prosecution must prove guilty beyond a reasonable doubt. Theonus
rests on the prosecution because of the presumption of innocence.
The prosecution must prove every element of the crime beyond a
reasonable doubt. The A only has to create doubt.
If the state does prove a prima facie case and the A does nothing to disturb
that case, the prima facie case may harden into proof beyonda reasonable
doubt, as there is nothing that produces doubt in the courts mind about the
A’s guilt.
