FAIRNESS AND EQUALITY IN THE CRIMINAL PROCESS

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Abstract:

This paper analyses the concept of fairness and its role in relation to the investigation of offences and the exclusion of evidence. A theory of fairness as equality before the law is proposed. Conditions are elaborated under which unequal treatment in how evidence was obtained may present stronger or weaker claims for its exclusion at trial. Principles of exclusion are applied to some particular types of evidence: DNA evidence; evidence obtained by entrapment; confessions covertly obtained by undercover operatives; confessions that are made by intoxicated persons but are nevertheless reliable. Cases from Australia, Canada and England are used as examples.

Document Type: Research Article

Publication date: January 1, 2006

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