Illegally Obtained Evidence (Chris & Efua)

Commonwealth Law Bulletin, 2017
http://dx.doi.org/10.1080/03050718.2017.1291357
To admit or not to admit: a comparative constitutional

perspective on illegally obtained evidence in Ghana
Christopher Yaw Nyinevi and Maame Efua Addadzi-Koom
During criminal investigations, law enforcement agents sometimes out the

law. They extract evidence by torture, illegal wiretapping, unlawful searches
and seizures among other illegitimate means. In the United States, such
illegally (or improperly) obtained evidence is inadmissible in criminal trials
subject to some exceptions. The reverse position generally obtains under
English law. In Ghana, because the Supreme Court has yet to make a
denitive pronouncement on the issue, conicting viewpoints exist. In this
article, we analyse the relevant constitutional, statutory and case law
principles with the view to clarifying the admissibility or otherwise of
illegally obtained evidence in Ghanaian courts.
1. Introduction
In September 2015, news broke on the Tiger-Eye tapes which implicated 34
Ghanaian judges and other judicial staff in a massive corruption scandal.1 Inves-
tigative journalist Anas Aremeyaw Anas and his Tiger-Eye company undertook a
two-year undercover investigation that secretly lmed the implicated judicial of-
cials demanding or accepting bribes to corrupt justice.2 The Tiger-Eye tapes
rekindled the age-old debate on the admissibility or otherwise of illegally
obtained evidence in criminal trials.3
No Ghanaian court has as yet settled the question of whether or not, as a general
rule, illegally (or improperly) obtained evidence is admissible. The closest to what
may be considered as an authoritative judicial pronouncement on the issue is a pas-
sage from Justice Roger Korsahs concurrence in Republic v Accra Circuit Court,
ex parte Appiah.4 Relying on the English cases of Legatt v Tollervey [1811] 14 East
101 and Doe v Date [1842] 3 A. B. 619, the learned judge declared that where
papers and other subjects of evidence are illegally taken from the possession of
the party against whom they are offered, or are otherwise unlawfully obtained,
1
Aislinn Laing, Ghana suspends seven high court judges over bribe-taking lm
Telegraph. Co.UK (Johannesburg, 6 October 2015) <http://www.telegraph.co.uk/
news/worldnews/africaandindianocean/ghana/11915763/Ghana-suspends-seven-high-
court-judges-over-bribe-taking-lm.html> accessed 5 April 2016.
2
Ghana suspends High Court judges after Anas Aremeyaw Anas lm (BBC, 6 October
2015) <http://www.bbc.com/news/world-africa-34452768> accessed 5 April 2016.
3
Lawyers at war over Anas video on judges (Ghanaweb, 14 September 2015)
<http://www.ghanaweb.com/GhanaHomePage/NewsArchive/Lawyers-at-war-over-Anas-
video-on-judges-381643> accessed 5 April 2015.
4
[1982-83] GLR 129 (CA).
2017 Commonwealth Secretariat

2 C.Y. Nyinevi and M.E. Addadzi-Koom
it constitutes no valid objection to their admissibility, provided they are pertinent to

the issue.5 In the Supreme Court case of Republic v Mensa Bonsu, ex parte Attor-
ney General,6 Justice Aikins endorsed Korsah Js view in the Ex parte Appiah case.
He too observed that the court will not take notice of whether [a document was]
obtained lawfully or unlawfully, nor will it raise an issue to determine that ques-
tion because it does not matter how one comes by the document, even if it is sto-
len it will be admissible.7 Both dicta have signicant legal challenges. Justice
Aikins pronouncement was made in a dissenting opinion. No other judge, includ-
ing his fellow dissenting colleagues, joined his opinion. It is also obvious, from a
careful reading of the case, that the question of illegally obtained evidence was not
pertinent to deciding the matter in controversy, as no other judge apart from him
addressed it. Justice Korsahs view in Ex parte Appiah suffers a similar fate. True,
the case involved the admissibility of certain documents, but the real question was
whether or not the investigating ofcer, though not the author or custodian of the
documents, was the proper person to tender them in evidence against the accused.
The question of how the documents were obtained was never an issue; it was nei-
ther raised nor argued. It therefore follows that Korsah Js statement could only
have been an obiter dictum, not a ratio decidendi of the case. Accordingly, neither
Justice Korsahs nor Justice Aikins dictum settle the issue of illegally obtained evi-
dence in favor of their admission in Ghanaian courts.
Nevertheless, the view that continues to be popularly peddled is that such
evidence is admissible.8 Proponents of the view rely on the old English case of
R v Leatham.9 There, Crompton J summarized the common law position on the
admissibility of illegally obtained evidence as follows: It does not matter how
you get it; if you steal it even, it will be admissible in evidence.10 The English
law on the admissibility of illegally obtained evidence has since developed along
these lines with the effect that an English judge will generally not consider the
legality or otherwise of the means by which a piece of evidence was obtained.
In Ghana, those who suggest that Leatham is still good law have not pro-
vided any cogent reasons why this old common law rule would sit well within
5
Ibid 167.
6
[199596] 1 GLR 377.
7
Ibid 446.
8
See Republic v Kwabena Amaning (Suit No. ACR. 4/2007, Judgment 24 July 2008
(CA)) where Justice Apau suggests, obiter, that the police could employ all means possi-
ble including both lawful and unlawful means, to stumble upon any information that
could lead to the arrest of suspected criminals; See also Maxwell Opoku Agyemang,
Law of Evidence in Ghana (2nd edn, Admax Law Series 2015) 92: (In Ghana one can
say that the test for admissibility of evidence is its relevance. As provided in section 51
(2) of the Evidence Act all relevant evidence is admissible except as otherwise provided
by an enactment. The question will however be whether the discretion of the judge in
excluding relevant and admissible evidence as provided in section 52 of the Act extends
to evidence obtained through illegal or improper means. Such an extension seems doubt-
ful as the provision calls for the exercise of discretion only if the probative value of the
evidence is substantially outweighed by considerations of undue delay, waste of time or
needless presentation of cumulative evidence . One can therefore say that in Ghana,
as in the common law, it matters not how you get it, if you steal it even, it would be
admissible in evidence, emphasis added).
9
[1861] 8 Cox CC 498.
10
Ibid 501.
Commonwealth Law Bulletin 3
Ghanas fair trial standards. One is, therefore, left with the impression that per-
haps its proponents support it merely because the British courts the countrys
judicial role model have still not parted ways with Leatham and its progenies
entirely.
The walls are now beginning to crumble on this notion though. Former
Supreme Court Justice S.A Brobbey has concluded, albeit extra-judicially, that
the Leatham rule would not apply to render admissible evidence obtained ille-
gally or unconstitutionally. According to him where the investigations, confes-
sions or searches breach constitutional provisions, the constitutional provisions
will prevail to render the statement, confession or declaration inadmissible.11
The courts, particularly the Supreme Court, have yet to have a denitive pro-
nouncement on the matter. But at least, for now, the view of learned retired Jus-
tice sounds the death knell for the assertion that the Leatham rule is the
controlling position on the admissibility of illegally obtained evidence in Ghana.
Finally, it is being realized that the use of illegally obtained evidence would be
incompatible with the constitutional standards of fair trial. While this develop-
ment is commendable, we argue that the Ghanaian legal position on illegally
obtained evidence ought not to have been thrown into such needless doubt in the
rst place. Any critical student of the developments in the criminal procedure
and the evidence law of Ghana would come to the conclusion that R v Leatham
has, at least since 1969, been a discredited authority which no court could have
applied with any lawful or logical justication.
In developing this argument, we rst look at the nature of evidence under
Ghanaian law, the general rule on admissibility of evidence, and the circum-
stances under which evidence may be classied as illegally or improperly
obtained. Next, we examine the English position on illegally obtained evidence
in contradistinction to the American exclusionary doctrine on illegally obtained
evidence. We then we draw a parallel between Ghana and the United States, and
conclude that as far as illegally obtained evidence is concerned, the Ghanaian
legal position has been consistent with the American exclusionary rule which
teaches the rejection of evidence tainted with illegality or ofcial impropriety.12
We anchor that conclusion on the fair trial guarantees which have since 1969
been contained in every Constitution of Ghana, the Evidence Act 1975, and rele-
vant case law. Together, they evince support for the American approach. In
effect, we say that like the United States which operates a written constitution
with fair trial guarantees in its Bill of Rights, Ghanas position on illegally
obtained evidence could not be different from the American exclusionary rule.13
11
SA Brobbey, Essentials of the Ghana Law of Evidence (Datro Publications, Accra,
2014) 2267.
12
Weeks v United States 232 US 383, 392 [1914] (The tendency of those who execute
the criminal laws of the country to obtain conviction by means of unlawful seizures and
enforced confessions should nd no sanction in the judgment of the courts which are
charged all times with the support of the Constitution and to which people of all condi-
tions have a right to appeal for the maintenance of such fundamental rights.).
13
See MABK Amidu, Right to State Appointed Counsel in Criminal Justice Administra-
tion under the Constitution, 1992(199395) RGL 159, 175. (Our Constitution is mod-
elled largely along the lines of the United States Constitution even though ours contains
unnecessary details.)
Finally, we comment on the legal issues which have arisen over the Tiger-Eye
tapes on judicial corruption in Ghana.
2. Overview of the evidence law of Ghana and the nature of illegally

obtained evidence
Ghanas law of evidence traces its roots to the English common law. Indeed,
until the Evidence Act 1975 (NRCD 323) was passed, the law of evidence was
scattered in various common law rules, including the Leatham rule, and English
statutes of general application14 implanted in the country through the Supreme
Court Ordinance of 1876.15 The Evidence Act codied the common law rules of
evidence with amendments and necessary additions.
Section 179 of the Act denes evidence as testimony, writings, material
objects or any other things presented to the senses that are offered to prove the
existence or non-existence of a fact. This denition covers the traditional cate-
gories of evidence known at common law namely, testimony (including hearsay),
documents, and real evidence.16 Section 51 enacts the usual admissibility rule. It
provides that all relevant evidence is admissible except as otherwise provided
by any enactment and that no evidence is admissible except relevant evidence.
But neither the Act nor any other enactment expressly prohibits the admission of
illegally obtained evidence. The failure of the Act to directly address illegally
obtained evidence leaves a number of questions unanswered. One is not sure of
the nature and scope of such evidence, and the extent to which it is (or not)
admissible.
Be that as it may, Brobbey for instance, is of the view that evidence is
improperly or illegally obtained if the evidence is acquired, procured or received
by means, methods or procedures which y in the face of the law or dees (sic)
standards of morality or are contrary to the sense of decency or propriety.17
From that premise, it would be fair to say that evidence is improperly or illegally
obtained if it is the product of any improper or unlawful act including the fol-
lowing: (a) a criminal or tortious trespass; (b) an evasion of ofcial regulations
or code of conduct; (c) an unlawful arrest, search or seizure; (d) torture, cruel,
inhuman or degrading treatment; (e) entrapment, deceit or fraud; or (f) unlawful
interception of communications.18
14
Memorandum to the Evidence Act, 1975 (The Evidence [Act] has been prepared as
part of the programme of law reform, and follows the detailed recommendations of the
Law Reform Commission. The law of evidence is at present in a highly unsatisfactory
state, being derived in large measure from old English common law which is excessively
complex, difcult to ascertain, sometimes based on uncertain principles, and often unsuit-
able for application in Ghanaian circumstances.) quoted in Agyemang (n 8) at 6.
15
The Supreme Court Ordinance of 1876 established the countrys judicial system and
specied the applicable sources of law after it was annexed as British colony in 1874.
16
C Tapper, Cross & Tapper on Evidence (10th edn LexisNexis, UK 2004) 28.
17
Brobbey (n 11) 218.
18
Tapper (n 16) 53154. (The author discusses illegally obtained evidence under headings
including most of the ones listed above.)
Illegally obtained evidence generally takes two forms: (i) that which is
directly obtained from an illegal or improper means like an illegal arrest, a war-
rantless search or seizure or torture (the poisonous tree); and (ii) that which is
obtained or discovered through the knowledge or aid of the initial unlawful evi-
dence (the fruit of the poisonous tree).
So, suppose Bob is being investigated for robbery. Two police ofcers go to
his home without a warrant and conduct a search. They rummage the drawers of
his closet and nd an unlicensed pistol believed to have been used in the rob-
bery, and ve rounds of ammunition. They also nd his personal diary in which
he has recorded details of several robbery operations including the one he is
being investigated for. Having been unlawfully seized, the pistol, the ammunition
and the diary would be considered illegally obtained evidence if he were tried
for robbery.
Suppose further that the ofcers read from Bobs diary that a body was once
buried in his backyard. They return later with more ofcers and equipment to
dig up several spots in the backyard. Eventually, they uncover the skeletal
remains of a human body. DNA testing reveals that the skeleton is that of Sam,
a 10-year-old boy who was kidnapped from school three years earlier and was
never heard of again. Bob is charged with kidnapping and murder. Because the
skeleton and the DNA test results would not have been obtained but for the ini-
tial unlawful seizure of Bobs diary, the skeleton and DNA test results are fruits
of the poisonous tree. The diary is the poisoned tree.
In Weeks v The United States, United States Supreme Court declared that,
[t]he tendency of those who execute the criminal laws of the country to obtain con-
victions by means of unlawful searches and enforced confessionsshould nd no
sanction in the judgment of the courts which are charged at all times with the sup-
port of the Constitution and to which people of all conditions have a right to
appeal for the maintenance of such fundamental rights.19
Beginning with this case, the Court has developed a doctrine, (the exclusionary
rule) by which illegally obtained evidence (whether in the nature of the poi-
sonous tree or its fruits), are excluded from criminal proceedings.
The exclusionary rule has had its fair share of praise and criticism. Car-
dozo, for instance, thought that the rule allows criminals to go free because
the constable has blundered.20 So, to maintain a fair balance between the fun-
damental liberties of the individual and the need for the criminal justice sys-
tem to prosecute and punish criminals, the Court has developed a number of
exceptions to the rule. Despite the exceptions, the Court has made sure to pro-
tect the core of the rule. At the other side of the Atlantic, however, English
law has largely maintained its inclusionary approach to the admissibility of
evidence. Other than the recent inroads made by the Police and Criminal
19
Weeks (n 12).
20
People v Defore 242 N.Y. 13, 21 [1926].
Evidence Act 198421 and the Human Rights Act 1998,22 the English courts
have stuck to the philosophy in R v Leatham in contrast to the American
exclusionary rule.
3. The inclusionary and exclusionary rules on admissibility of evidence

Within the common law world, England and the United States typify the two
sides to the debate on illegally obtained evidence. The English position is that,
as a general rule, illegally obtained evidence is admissible in criminal trials.23
The American position is antithetical to the English one.24 Both doctrines are
supported by cogent legal justications, yet they are not without criticisms. This
section outlines a brief historical background of both rules as well as their ratio-
nale. It goes on to describe the extent of applicability of the rules in their respec-
tive jurisdiction. The exceptions, limitations and relevant criticisms of both rules
are also pointed out. The section ultimately concludes by juxtaposing the English
inclusionary rule with the American exclusionary rule.
3.1. The English inclusionary rule

The inclusionary rule is the common law position on admissibility of illegally
obtained evidence established in R v Leatham.25 There, the defendant, charged
with bribery and other corrupt practices objected to the production of a letter dis-
covered as a result of statements he made during an inquiry before a Commis-
sion set up under the Corrupt Practices Act, 1854. The defendant alleged that the
evidence was inadmissible because the Act provided that answers given before
the Commission should not be admissible against him. The Court of Queens
Bench held that though his answers could not be used against him, yet if those
statements led to the discovery of other probative evidence such as the letter in
this case, such subsequent evidence was admissible. Crompton J couched the
rule thus: It does not matter how you get it; if you steal it even, it will be
admissible in evidence.26 The implication of the rule is that in English criminal
courts, once relevant and probative evidence is presented, the evidence will be
admissible regardless of how it was obtained. The English rule is therefore an
all-inclusive rule. The rationale for the inclusionary rule is threefold. First, the
English courts consider illegality of evidence as mutually exclusive from its
21
Section 78 of the Act empowers the courts to disallow a piece of evidence if it appears
to the court that having regard to all the circumstances, including the manner in which
the evidence was obtained, the admission of the evidence would have such an adverse
effect on the fairness of the proceedings that the court ought not to admit it. This provi-
sion vests a court with the discretion to mitigate the principle in Leatham and its line of
cases, but stops short of abolishing it.
22
The Human Right Act domesticates the European Convention of Fundamental Human
Rights and Freedoms, 1950. English courts therefore have to, now, apply common law
principles including those on evidence in conformity with fair trial guarantees of the Con-
vention.
23
See R v Leatham (n 9).
24
Weeks (n 12).
25
Leatham (n 9).
26
Ibid 501.
relevance and admissibility.27 Second, the rule is deemed to facilitate the

conviction of guilty criminals.28 Third, it is thought that the admissibility of ille-
gally obtained evidence does not necessarily bear on the fairness or otherwise of
a trial.29
It is important to note that even though the inclusionary rule is generally
all-embracing, it has a caveat. The rule does not apply to illegally obtained con-
fessions.30 The primary reason for this exception is that illegally obtained confes-
sions are believed to be unreliable and unduly prejudicial.31 Nonetheless, any
evidence found or obtained as a result of an illegally obtained confession is
admissible.32
The application of the inclusionary rule is also qualied by judicial discre-
tion.33 This discretionary power may be exercised by a judge under the common
law duty to ensure fair trial.34 The Police and Criminal Evidence Act 1984
(PACE) essentially codies the common law position by providing in section 78
that
[i]n any proceedings the court may refuse to allow evidence on which the prosecu-
tion proposes to rely to be given if it appears to the court that, having regard to all
the circumstances, including the circumstances in which the evidence was obtained,
the admission of the evidence would have such an adverse effect on the fairness of
the proceedings that the court ought not to admit it.35
Often though, the scope of the discretion to exclude has been narrowly construed
as was the case in R v Sang.36 In that case, the appellant was indicted for his
role in a conspiracy to issue forged US bank notes. He pleaded not guilty to the
charge and applied for a voir dire alleging that he had been induced to commit
the crime by an agent provocateur. Instead of holding the voir dire, the trial
judge invited counsel on both sides to make legal submissions on whether the
courts discretion to exclude prejudicial evidence covered evidence obtained by,
or with the aid of, an agent provocateur. He then ruled, without holding the voir
dire, that even if it were proved that the appellant was instigated by an agent
provocateur to commit the crime, the court did not have the discretion to exclude
27
In Kuruma v The Queen [1955] A.C. 197, 204. Lord Goddard C.J. observed that when
it is a question of the admissibility of evidence, strictly it is not whether the method by
which it was obtained is tortuous but excusable, but whether what has been obtained is
relevant to the issue being tried.
28
Sharon Williams, Exclusion of Illegally Obtained Evidence: A Comparison of English
and American Law (19881989) 57 UMKC L Rev 315.
29
Ibid.
30
R v Sang [1979] 2 All ER 1222.
31
TE Atkinson, Admissibility of Evidence Obtained Through Unreasonable Searches and
Seizures (1925) 25 Colum L Rev 11.
32
See R v Warickshall 168 E.R. 234, 235 [1783].
33
See Kuruma (n 27) 197 ([T]he judge always has a discretion to disallow evidence if
the strict rules of admissibility would operate unfairly against an accused person.)
34
Ibid; ALT Choo and S Nash, Improperly Obtained Evidence in the Commonwealth:
Lessons for England and Wales?(2007) 11(2) Intl J Evidence & Proof 75, 78.
35
PACE 78. See also, K Grevling, Fairness and the Exclusion of Evidence under Sec-
tion 78(1) of the Police and Criminal Evidence Act (1997) 113 LQR 667.
36
[1979] 2 All ER 1222.
the evidence. An appeal against the judgment was dismissed by the Court of
Appeal. In the House of Lords, their Lordships considered the issue regarding a
trial judges discretion to exclude prejudicial evidence. Lord Diplock declared,
that a trial judge always had discretion to refuse to admit evidence if he believed
that its prejudicial effect outweighed its probative value. He, however, noted that
a judge could not exercise this discretion on the mere grounds that the evidence
was illegally obtained by an agent provocateur since the court is not concerned
with how the evidence was obtained.37
Professor Heydon has criticized the English inclusionary rule as obscure in
its origins, difcult to state, and the subject of a volume of dissent.38 The inclu-
sionary rule, in our opinion, could also be seen as putting the justice system and
judicial integrity in a very compromising spot that makes justice susceptible to
unwarranted exploitation. It is not therefore surprising that recently the English
courts are beginning to see reason in watering down the rule. In A and Others v
Secretary of State for the Home Department (No.2),39 Lord Hoffman acknowl-
edged that since Kuruma the law has moved on and consequently, the courts
will not shut their eyes to the way the accused was brought before the court or
the evidence of his guilt was obtained.40 He added that English courts may now
reject a piece of evidence if the methods by which it was obtained would com-
promise the integrity of the judicial process, or dishonor the administration of
justice.41
3.2. The American Exclusionary Rule42

The Fourth Amendment to the US Constitution is one of the fundamental guar-
antees of the exclusionary rule.43 The Amendment provides that
[t]he right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause supported by oath or afrmation, and particu-
larly describing the place to be searched and the person or things to be seized.
37
Ibid 1231; See Lord Diplock earlier at 1230: It is no part of a judges function to exer-
cise disciplinary powers over the police or prosecution as respects the way in which evi-
dence to be used at the trial is obtained by them.
38
Williams (n 28) 316 (citing Heydon, Illegally Obtained Evidence (1) (1973) CLR
603).
39
[2006] 1 All ER 575.
40
Ibid 620.
41
Ibid.
42
For the rules origins, the literature abounds with discussions of the familiar triumvi-
rate: Weeks v United States 232 US 383 [1914], Wolf v Colorado 388 US 25 [1914], and
Mapp v Ohio 367 US 643 [1961] and its spiritual ancestors Boyd v United States 116
US616 [1886], Entick v Carrington 95 ER 807 [1765], and Wilkes v Wood 98 ER 489
(KB 1763): AG Francois, On Exorcising the Exclusionary Demons: An Essay on
Rhetoric, Principle, and the Exclusionary Rule (1984) 53 UCLR 49, 534
43
Captain SJ Kaczynski, The Admissibility of Illegally Obtained Evidence: American
and Foreign Approaches Compared (1983) 101 MLR 83, 84. Note also that the Fifth
and Sixth amendments are also constitutional guarantees to the exclusionary principle: JA
Levy, The Exclusionary Rule (1997) 85 Geo L J 969, 969.
This constitutional backing moves the exclusionary rule from a mere evidential
rule to the status of an almost-impregnable constitutional doctrine.44 Yet, up until
the early part of the Twentieth Century, the United States position on illegally
obtained evidence paralleled the orthodox English rule.45 Seeds of what would
later become the exclusionary rule were however sown as far back as 1886 when
the question of illegally obtained evidence rst came up in Boyd v United
States.46 In Boyd, the question was whether the compulsory production of a per-
sons private papers to be used against him in a criminal or quasi-criminal pro-
ceeding was an unreasonable search and seizure within the meaning of the
Fourth Amendment. The Court held that it was, since the physical invasion of
the home is not necessary for an act to implicate the search and seizure clause of
the Fourth Amendment. Accordingly, in that case the court concluded that
the notice to produce the invoice in [the] case, the order by virtue of which it was
issued, and the law which authorised the order were unconstitutional and void, and
that the inspection by the district attorney of the said invoice, when produced in
obedience to the said notice, and its admission in evidence by the court, were erro-
neous and unconstitutional proceedings.47
After a twenty-year retreat, the court re-launched the exclusionary rule in Weeks
v United States48 and never looked back. There, the defendant had been charged
with using the mail to transport lottery tickets or coupons contrary to federal
law. He was arrested without a warrant. Other police ofcers also conducted a
warrantless search of his house and seized certain papers which they handed over
to the U.S. Marshal to be used as evidence at trial. Before the trial began, the
defendant led a petition for the return of the seized property on grounds that
their seizure without a warrant violated his constitutional rights secured by the
Fourth Amendment. The District Court for the Western District of Missouri
denied his petition and proceeded to try and convict him. On appeal, the
Supreme Court of the United States held that the seizure of the defendants
papers violated his rights and that by holding and using them as evidence in the
44
Williams (n 28) 332. Cf. L Rosenthal, Seven Theses in Grudging Defense of the
Exclusionary Rule (2013) 10 Ohio St J Crim L 525, 52532. Prof Rosenthal states that
the exclusionary rule is not constitutionally required rather it is a creation of the court to
compel respect for the constitutional guaranty.
45
See AS Brent, Illegally Obtained Evidence: An Historical and Comparative Analysis
(19831984) 48 Sask L Rev 1, 19. Brent discusses the rst reported case in the United
States Commonwealth v Dana, 43 Mass. (2 Met.) 329 (1841) on illegally obtained
evidence where the English common law rule was applied by the court. Ray explains that
there was about a twenty-year period of recession from the Boyd rule until 1914 when it
was revived by Weeks. See RR Ray, Restriction on the Use of Illegally Obtained Evi-
dence (1955) 1 Sw LJ 434, 435.
46
116 US 616 [1886].
47
Ibid 638 (emphasis added).
48
232 US 383 [1914]. See P Stewart, The Road to Mapp v. Ohio and Beyond: The Ori-
gins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases
(1983) 83 CLR 1365, 13727 for more details on the historical development of the exclu-
sionary rule.
trial, the District Court committed a prejudicial error. To sanction such pro-
ceedings, in the courts view, would be to afrm by judicial decision manifest
neglect if not an open deance of the prohibitions of the Constitution intended
for the protection of the people against such unauthorised action.49 It reversed
the judgment of the District Court and thus barred the admission of evidence
secured through an illegal search or seizure by the federal judiciary.
Almost half a century later,50 the rule was applied to the states in Mapp v
Ohio51 thereby closing the only courtroom door remaining open to evidence
secured by ofcial lawlessness.52 In Mapp, the appellant appealed the judgment
of the Ohio Supreme Court which convicted her for possessing lewd materials in
violation of an Ohio criminal statute. The appellant contended that the evidence
presented against her was obtained through an illegal search conducted at her
residence in violation of the Fourth Amendment. The Supreme Court of the Uni-
ted States held in favor of the appellant. It reasoned that the Due Process Clause
of the Fourteenth Amendment extended to the states the Fourth Amendments
protection against unreasonable searches and seizures. In the Courts view, evi-
dence obtained through an unconstitutional search was inadmissible and vitiated
a conviction. The Mapp decision therefore extended the exclusionary rule to
criminal prosecutions in state courts.
Apart from the expansion of its jurisdictional reach, the exclusionary rule has
also widened in terms of subject matter. Although the rule stemmed from
searches and seizures, its scope has broadened to cover other areas such as
illegal detention,53 wiretapping54 and also incriminating secondary evidence,
49
Weeks (n 12) 394.
50
In the interim, two signicant United States Supreme Court cases decided prior to
Mapp are worth mentioning. The rst is Wolf v People of State of Colorado 338 US 25
[1949]. In Wolf, Justice Frankfurter delivering the opinion of the court said that the court
will stoutly adhere to the decision in Weeks although the decision was not derived from
the explicit requirements of the Fourth Amendment or a Congressional legislation policy
on the enforcement of the Constitution. The Wolf court therefore did not extend the exclu-
sionary rule to States. The second case is Rochin v California 342 US 165 [1952]. There,
Rochin was convicted of possessing morphine. The deputy sheriffs forcibly entered the
defendants residence and forced an emetic solution through a tube into the accuseds
stomach to force out the morphine he had swallowed. The retrieved substance was used
as evidence against Rochin, hence his conviction. The Supreme Court of the United
States granted certiorari and held per Justice Frankfurter that the means by which the evi-
dence was obtained was brutal and offends the Due Process Clause. The court, unwilling
to offer brutality as a cloak of the law, excluded that evidence. See J Dressler and AC
Michaels, Understanding Criminal Procedure, Volume 1: Investigation (6th edn Lexis-
Nexis, 2013) 3401. (Subsequent cases distinguished the Rochin holding and interpreted
it narrowly until Mapp changed the status quo.)
51
367 US 643 [1961]. [A]ll evidence obtained by searches and seizures in violation of
the Constitution is, by that same authority, inadmissible in a state court Ibid 655.
52
Ibid 6545.
53
See Ray (n 45) 436, Thus where a person has been arrested and held for an unreason-
able length of time before being brought before a magistrate a confession made during
that time is regarded as unlawfully obtained and therefore inadmissible.
54
Ibid.
otherwise known as fruits of the poisonous tree.55 The justication for the
exclusionary rule is tripartite: To deter the police from carrying out unreasonable
searches and seizures,56 to protect the constitutional rights of the citizens57 and
to protect judicial integrity.58
3.2.1. Exceptions to the exclusionary rule

Like most legal rules, the exclusionary rule is characterized by a number of
exceptions. These include the Good Faith,59 Inevitable Discovery,60 Attenua-
tion,61 and Independent Source62 exceptions.
In United States v Leon63 a search warrant that had been issued was later
found to be invalid during the trial. The police ofcers had reasonably and in
good faith relied on the warrant. On those facts, the Supreme Court established
the Good Faith exception for similar instances in which a reasonably well-trained
ofcer would have believed, albeit erroneously, that the warrant under which he
conducted a search or seizure was valid.64 Accordingly, if the police obtain evi-
dence relying in good faith on a warrant that later turns out to be invalid, the
evidence would be admitted notwithstanding the invalidity of the warrant.
55
WT Pizzi, The Need to Overrule Mapp v. Ohio (2011) 82 UCLR 679, 680. The term
fruit of the poisonous tree was rst used in Nardone v United States 308 US 338, 341
[1939] by Justice Frankfurter. Frankfurter J. added that, To forbid the direct use of meth-
ods thus characterized but to put no curb on their full indirect use would only invite the
very methods deemed inconsistent with ethical standards and destructive of personal lib-
erty Ibid 340.
56
Mapp v Ohio 367 US 643 [1961]. In United States v Calandra 414 US 338, 348
[1974], Justice Powell observed, [T]he rule is a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent effect.
57
M Cloud, Symposium on Reform of the Exclusionary Rule: Judicial Review and the
Exclusionary Rule, 26 PLR 835, 837. This right also allowed the judiciary to craft an
appropriate remedy where there is a violation by the other branches of government partic-
ularly the executive branch. Ibid 838. See Williams (n 28) 315 (citing Heydon, Illegally
Obtained Evidence (2) (1973) CLR 690, 590).
58
Mapp (n 51) 659. Citing Brandeis J in Olmstead v United States 277 US 438, 485
[1928] the Mapp court also stated that [the] Government is the potent, the omnipresent
teacher, [teaching] the whole people by its example If the Government becomes a law-
breaker, it breeds contempt for law; it invites every man to become a law unto himself; it
invites anarchy.
59
United States v Leon 468 US 897 [1984]. This allows evidence though obtained ille-
gally to be admissible if police ofcers in honest belief relied on a search warrant later
found to lack probable cause.
60
Nix v Williams 467 US 431 [1984]. Evidence that would have eventually been discov-
ered without a constitutional violation are admissible.
61
Wong Sun v United States 371 US 471 [1963]. The attenuation exception to admissibil-
ity of illegally obtained evidence relies on the degree of attenuation between the illegal
conduct and the discovery. See Kaczynski (n 43) 90.
62
Silverthorn Lumber Co. Inc v United States 251 US 385 [1920]. Any fact obtained by
irregularly by the police does not become sacred and inaccessible. If knowledge of them
is gained from an independent source, they may be proved like any others Ibid 392.
63
Leon (n 59).
64
Ibid 9235; See Dressler and Michaels (n 50) 36.
The Inevitable Discovery exception was established in Nix v Williams.65 The

respondent, charged with rst degree murder was being transported from Daven-
port to Des Moines, within the State of Iowa. An ofcer (contrary to a promise
made to the respondents counsel) started a conversation with the respondent. This
led him to make incriminating statements giving clues to the police about the loca-
tion of the deceaseds body. The respondent moved for the suppression of the evi-
dence of the body but the trial court denied the motion holding the body would
inevitably have been found. This inevitable or ultimate discovery exception to the
exclusionary rule was ultimately afrmed by the US Supreme Court. It is applica-
ble where the prosecution proves that the challenged evidence would ultimately or
inevitably have been discovered notwithstanding the constitutional violation.
The Attenuation (the Dissipation of Taint) exception was established in
Wong Sun.66 There it was held that the exclusionary rule does not apply where
the connection between the lawless conduct of the police and the discovery of
the challenged evidence has become so attenuated as to dissipate the taint of
the evidence.67 In other words, a piece of evidence would not be suppressed
or excluded if it can be shown that though the police initially committed a con-
stitutional infraction when arresting or investigating the accused, the means by
which the impugned evidence was subsequently obtained is sufciently distin-
guishable from, or not tainted by, the infraction.68
The Independent Source exception may be applied under two circumstances.
The rst is where the evidence being challenged was rst obtained through a
lawful means and the same was later obtained through an unlawful means. The
evidence obtained rst will be admissible because it was obtained independent of
the second search.69 The second is where the rst evidence was obtained through
an illegal means but the second similar or same evidence was obtained through
legal means independent of the rst.70 The second situation was the fact pattern
in Murray v United States71 where marijuana used as evidence against the defen-
dants was merely observed during an unlawful entry but was later seized upon a
subsequent lawful entry pursuant to a valid warrant. The court remanded to the
lower court the determination of whether the second entry was independent of
the rst. That is, whether the government agents would have sought warrant if
they had not earlier entered the warehouse.
Other exceptions to the exclusionary rule are the Impeachment72 and the Exi-
gent Circumstances73 exceptions. Also, the Court has held in Hudson v Michigan74
65
Nix (n 60).
66
Ibid 39.
67
Wong Sung (n 61) 487 (citing Nardone v United States, 308 US 338, 341).
68
Ibid 488.
69
Dressler and Michaels (n 50) 375.
70
Ibid.
71
487 US 533 [1988].
72
James v Illinois 493 US 307 [1990]; See also Levy (n 43) 9801.( Illegally obtained
evidence may be admissible if used in contexts outside of the prosecutions case-in-
chief, such as for the impeachment of the defendant but not his witnesses.)
73
See Warden v Hayden 387 US 294 [1967]; Minnesota v Olson 495 US 91, 100 [1990]
([A] warrantless intrusion may be justied by hot pursuit of a eeing felon, or imminent
destruction of evidence.)
74
547 US 586 [2006].
that a violation of the Knock-and-Announce rule would not require the suppression
of all evidence found in a search. To protect the expectation of privacy in the home,
the Fourth Amendment requires that police ofcers entering a dwelling must
knock on the door and announce their identity and purpose before attempting a for-
cible entry75 if the occupier does not allow entry within reasonable time. In Hud-
son the defendant moved to suppress evidence obtained by the police on the
grounds that the premature entry of the police violated his Fourth Amendment
rights. The Court disagreed that a violation of the Knock-and-Announce rule
requires the suppression of all evidence obtained in violation of it. The opinion
offered an insight into the considerations that inform the Courts decision to apply
the exclusionary rule or invoke one of the aforementioned exceptions in any given
situation. First, the Court noted that suppression of evidence has always been [the]
last resort, not [the] rst impulse.76 Secondly, it observed that the exclusionary rule
was applicable only where its deterrence benets outweigh its substantial social
costs such as setting the guilty free and the dangerous at large.77 Thirdly, it noted
that evidence would be suppressed only if the interest protected by the constitu-
tional guarantee that has been violated would be served by suppressing the evi-
dence obtained.78
3.2.2. Criticisms of the exclusionary rule

The exclusionary rule has been criticized as a perverse and unique doctrine that
frees criminals for repugnant and hyper-technical reasons.79 Like Cardozo,80
Dean Wigmore, an authority on the law of evidence in the early Twentieth Cen-
tury, also criticized the rule as one that regards the over-zealous ofcer of the
law as a greater danger to the community than the unpunished murderer or
embezzler or panderer.81
The rule has also attracted criticism for its many exceptions. Justice Stewart
has, for instance, likened it to a bit jerry built like a roller coaster track con-
structed while the roller coaster sped along.82 That [e]ach new piece of track
was attached hastily and imperfectly to the one before it, just in time to prevent
the roller coaster from crashing, but without the opportunity to measure the
curves and dips preceding it or to contemplate the twists and turns that inevitably
lay ahead.83 It has also been argued that the numerous exceptions to the
75
Richards v Wisconsin 520 US 385 [1997].
76
Ibid 591.
77
Ibid.
78
Ibid 593.
79
Francois (n 42) 49. The exclusionary rule seems to provide a windfall to the factually
guilty and hampers the search for truth. Thus characterizing criminal trials as a search for
error rather than for truth. Ibid 61.
80
Defore (n 20).
81
K-H Hsieh, The Exclusionary Rule of Evidence in the United Kingdom, United States
and China 71 (2011) (PhD thesis, University of Edinburgh 2011) (citing JH Wigmore,
Using Evidence Obtained by Illegal Search and Seizure (1922) 8 ABAJ 479, 482).
82
Stewart (n 48) 1366.
83
Ibid.
exclusionary rule have in reality greatly reduced its applicability and impact.84
This assertion comes with the prophecy that the Roberts Court will eventually
retract the exclusionary rule and apply it only upon proof of culpable or egre-
gious police conduct.85 Nevertheless, we do not think that it can be seriously
argued that the exclusionary rule is zzling out. It is here to stay. Consequently,
in our view, the various exceptions must rather be seen as creating a degree of
elasticity necessary for the rules applicability in a dynamic society, and not as
the shadows of its imminent death.
3.3. Conclusion on the juxtaposition of the inclusionary and exclusionary

rules
It would seem from the discussion in this section that the inclusionary and exclu-
sionary rules of admissibility are polarized primarily because of their dissimilar
outlook. The English inclusionary rule is focused on the defendant seeking jus-
tice by ensuring that the criminal is put behind bars even if the prosecutors end
up dirtying their hands in the process. On the other side, the American exclu-
sionary rule is protective. Shielding and respecting the rights, liberty and dignity
of all citizens, it is careful not to taint the sanctuary of justice. The point in issue
then is: Should the courts focus so much on penalizing the delinquent minority
by whatever means possible and open Pandoras box? Or should they prioritize
protecting the law abiding majority and judicial integrity and risk the getaway of
the recalcitrant few?
4. The Ghanaian position on illegally obtained evidence

Our view as indicated from the outset of this paper is that the Ghanaian law on
illegally obtained evidence is no different from the American exclusionary rule.
Under US Federal Constitutional Law, the exclusionary rule may be triggered by
three classes of constitutional violations. It implicates, (i) evidence gained from
an unreasonable search or seizure in violation of the Fourth Amendment (e.g.
Mapp v Ohio); (ii) improperly elicited self-incriminatory statements gathered in
violation of the Fifth Amendment (e.g. Miranda v Arizona86); and (iii) evidence
gained in situations where the government violated the defendants Sixth Amend-
ment right to counsel (e.g., Escobedo v Illinois87 and Miranda v Arizona).88
84
T Maclin and J Rader, The Exclusionary Rule: No More Chipping Away: The Roberts
Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule (2012) 81
MLJ 1183, 1187.
85
Ibid 1227. See Pizzi (n 55) 682 where he discusses two Supreme Court cases: Hudson
v Michigan 547 US 586 [2006] and Herring v United States 555 US 135 [2009] as por-
traying the courts rethinking the exclusionary rule. Also see C Slobogin, The Exclusion-
ary Rule: Is It on Its Way Out? Should It Be? (20122013) 10 Ohio St J Crim L 341
which mentions in addition to the two cases, Davis v United States 131 S. Ct. 2419
(2011) and makes the same observation.
86
384 US 439 [1966].
87
378 US 478 [1964].
88
Exclusionary Rule (Cornell Legal Info. Inst.) <https://www.law.cornell.edu/wex/exclu
sionary_rule> accessed 27 February 2016.
Analyzed from these three broad perspectives, one cannot but conclude that there
have always been Ghanaian parallels of these American principles which compel
the application of the exclusionary rule. We now proceed to elaborate.
4.1. Evidence obtained from searches and seizures in violation of

constitutional rights
A fundamental principle underlying written constitutions is their supremacy over
any ofcial act or omission. Supremacy is presumed; it need not be declared by
the constitution itself.89 It is against this backdrop that written constitutions serve
as the standard against which ofcial conduct is measured. The courts, as the
ultimate interpreters of the constitution, have the power and duty to uphold it.
The consequence is that governmental action that is contrary to the constitution
will be declared void and unconstitutional.90
Where the written constitution contains a Bill of Rights, securing to the peo-
ple certain fundamental liberties, the presumption of the constitutions supremacy
applies to it as well. No legislation or conduct of government or its agent may
override, abridge or interfere with such liberties. The courts have the power
and indeed the duty to uphold these liberties against any encroachment.
Though fundamental liberties may be respected under a non-written constitu-
tion, they are not necessarily entrenched or secured.91 They exist in danger of
being whittled away by pernicious legislation which the courts cannot declare
unconstitutional. On the other hand, though a written constitution with a Bill of
Rights does not necessarily guarantee respect for fundamental liberties, it at least
creates a standard by which the conduct of government may be measured. The
Fourth and Sixth Amendments of the US Constitution, as well as its Due Process
and Self-Incrimination Clauses provide such standards for measuring the conduct
of the police in criminal investigations and evidence gathering. That is why there
are constitutional bases for the exclusionary rule.
89
See Marbury v Madison 5 US 137, 177 [1803] (Marshall CJ: Certainly all those who
have framed written Constitutions contemplate them as forming the fundamental and
paramount law of the nation, and consequently the theory of every such government must
be that an act of the Legislature repugnant to the Constitution is void. This theory is
essentially attached to a written Constitution.)
90
See Adofo v Attorney General & Cocobod [2005-2006] SCGLR 42, 47 (Date-Bah JSC:
The doctrine of supremacy of the Constitution should logically imply the power of judi-
cial review in order to enforce that supremacy. Thus, even if there had been no
express power in the Constitution for this court to strike down offending legislation, we
would have been willing to imply one.)
91
See RD Lumb, Australian Constitutionalism (Butterworths 1983) 103 (The creativity
of the judges [in a common law system without a constitutional Bill of Rights] is
restricted by the ground rules of the system which does not have its source in a funda-
mental constitutional document which is subject to nal review by a constitutional court.
As a corollary of this, the doctrine of parliamentary sovereignty enables the rules to be
changed and even abrogated. Judicial decisions even of the most basic nature (whatever
may be the conventions which restrict the legislative power) are subject to being super-
seded by legislation which, although open to interpretation, is not open to invalidation by
a constitutional court.) Quoted in RS French, The Common Law and Protection of
Human Rights (Paper presented to the Anglo Australasian Lawyers Society; Sydney,
Australia; 4 September 2009.)
On the other hand, the unwritten nature of the English Constitution and its
lack of a Bill of Rights, have not aided the development of similar constitution-
ally entrenched standards for measuring police conduct.92 Until as late as 1998
when the UK passed the Human Rights Act, 1998 to domesticate the European
Convention on Fundamental Human Rights and Freedoms 1950, the British
could not boast of a codied Bill of Rights in the proper sense of the term.93 All
that existed was a mass of civil and political rights scattered in centuries-old case
law. Being common law based, these rights were vulnerable and limited, and
ever in jeopardy of modication by the courts or abolition by a sovereign Par-
liament.94 Accordingly, it is conceivable that an exclusionary rule requiring the
suppression of evidence obtained in violation of entrenched constitutional rights
has not developed.
Ghana on the other hand has embraced constitutional principles similar to
those underlying the American constitutional system at least since the 1969 Sec-
ond Republican Constitution. Following the failure of constitutionalism under the
1960 First Republican Constitution, as epitomized by cases like Re Akoto,95
the framers ensured that the countrys Second Republican Constitution embodied
the ideals of a limited government under law, fundamental human rights and
judicial review. These pillars of the American conception of constitutionalism
which the Re Akoto court rejected became the cornerstones of constitutional
interpretation. Thus in Okorie v The Republic96 for instance, Azu Crabbe CJ
92
See C Tapper, British Government and the Constitution: Text, Cases and Materials (5th
edn Butterworths, 2002) 132 (Since nothing in the British Constitution is guaranteed
against alteration, the rights that the individual has against the state are in no way
entrenchedIn any event, as we have seen, the rights of Englishmen have traditionally
been construed as a merely residual liberty to act within the limits of what the law does
not prohibit.); See also Sir L Scarman, English Law The New Dimension (Stevens &
Sons,1974) 15, where he argues for an English Bill of Rights that should be entrenched
against all encroachment, including the power of the state.
93
Nana Dr. SKB Asante, Reections on the Constitution, Law and Development (J.B.
Danquah Memorial Lecture Series 35, March 2002) 27 (Traditionally the British had no
justiciable Bill of Rights. Although this was partly a reection of the fact that it has no
written constitution, British jurists were traditionally uncomfortable adjudicating on
human rights issues on the ground that these inevitably involved the determination of
sensitive political or social issues which were more appropriate for Parliament than the
Judiciary.)
94
See J Go, Modeling the State: Postcolonial Constitutions in Asia and Africa (2002)
39(4) Southeast Asian Studies 558, 576: (As is well-known among constitutional schol-
ars, the British model of fundamental rights is unique. Unlike the US or France, human
rights in Britain have arisen as common law or as statutory rights and have not been
entrenched in a single-document written constitution. This is due to the principle of par-
liamentary sovereignty as laid out long ago by A.V. Dicey: parliament has the right to
make or unmake laws, which means that no courts can overrule Parliament and that,
therefore, there is no urgent need to have a formal constitution with a bill of rights.)
95
[1961] GLR 523 (In Re Akoto the Supreme Court was urged to follow the American
reasoning on the nature of a written Constitution to strike down the Prevention Deten-
tion Act (PDA), a pernicious piece of legislation that was being used by the government
to suppress dissent and other fundamental liberties. The Court erred on the side of arbi-
trary power rather than constitutionalism. It upheld the PDA and thereby failed to
entrench fundamental human rights and supremacy of the constitution.)
96
[1974] 2 GLR 272.
speaking on behalf of the Court of Appeal said that the 1969 Constitutions
guarantee of the right to consult counsel is based on the Sixth Amendment to
the Constitution of the United States of America and so its interpretation should
be made consistent with the decisions of the Supreme Court of the United States
on the Sixth Amendment, which, though not binding upon this court, are no
doubt of persuasive authority in this country.97 Also, in Peoples Popular Party
v Attorney General,98 where the court faced a choice between English and
American philosophy for interpreting certain constitutional rights, the court opted
for the American approach. Justice Hayfron-Benjamin observed that
[i]n enforcing the provisions of Chapter four of our Constitution the English deci-
sions on the liberty of the subject are not a sure guide. England has no written
constitution I am of the view that the American experience is a better guide in
applying the provisions of articles 12 to 27 of our Constitution and it is from that
experience that I propose to seek guidance, not forgetting that in the last analysis
the actual words of our Constitution must be interpreted according to our own rules
of statutory interpretation.99
Under the Third Republican Constitution, the doctrine of supremacy of the con-
stitution was again entrenched. The courts applied it with conviction and force-
fulness. In Tuffour v Attorney General100 Sowah JSC was emphatic that No
person can make lawful what the Constitution says is unlawful. No person can
make unlawful what the Constitution says is lawful. The conduct must conform
to due process of law as laid down in the fundamental law of the land or it is
unlawful and invalid.
Under the Fourth Republic, the Supreme Court has not ceased to emphasize
the general supremacy of the constitution in the American understanding of the
term. But apart from that, it has also in specic instances, resorted to American
constitutional principles to guide its interpretation and enforcement of some pro-
visions of the 1992 Constitution. In Tsatsu Tsikata v The Republic101 the Court
had to decide whether the provision of a criminal legislation that fails to clearly
dene a criminal offense may be struck down under article 19(5) of the 1992
Constitution. Answering the question in the afrmative, the Court imported the
American constitutional doctrine of void-for-vagueness into Ghanaian constitu-
tional jurisprudence despite the absence of express constitutional provisions to
that effect. It justied its decision on the grounds that the Due Process Clause of
the Fourteenth Amendment under which the US Supreme Court implied the doc-
trine of void-for-vagueness is analogous to articles 14 and 19 of the 1992 Con-
stitution of Ghana.102
Apart from showing that Ghanaian constitutional law is generally modeled on
American constitutional thought, Tsatsu Tsikata v The Republic reveals another
97
Ibid 2812.
98
[1971] 1 GLR 138.
99
100
[1980] GLR 637, 656.
101
[20032004] SCGLR 1068.
102
Ibid 1091.
signicant thing. It shows that American constitutional doctrines, particularly

those implied under the Fourth Amendment or under the Due Process Clause,
are more appropriate guideposts for resolving vexed questions of evidence and
criminal procedure in Ghana, than English jurisprudence. Mapp, which for the
rst time applied the exclusionary rule announced in Weeks to the States, was
decided under the Due Process Clause of the Fourteenth Amendment. Seen in
this light, there is no valid reason why Mapp v Ohio and its progenitor or proge-
nies should not provide useful guidance to Ghanaian courts in dealing with the
admissibility of illegally obtained evidence.
Weeks, Mapp and all their line of cases protect the same constitutional inter-
ests of liberty and privacy of the individual that all constitutions of Ghana post-
1966 have protected. Articles 12(c), 15 and 19 of the 1969 Constitution provided
for the liberty of the individual and protection against intrusion with his person,
home or correspondence. These protections were part of the 1979 Constitution as
articles 21 and 25. Under the current 1992 Constitution, article 14 protects the
individual from unlawful, unreasonable or arbitrary arrests and restrictions. Arti-
cle 18(2) prohibits all forms of interference with the privacy of the home, corre-
spondence or communication of the individual which are not in accordance with
law and necessary in a free democratic society for public safety, morality or the
protection of the rights of others.
If the Constitution and its Bill of Rights are the supreme law of the land,
then like what pertains in the United States, evidence procured in violation of
these fundamental liberties can nd no sanction in the courts which are charged
with the duty to enforce the Constitution against the government and all other
authorities. To sanction such evidence will be to subvert the rule of law and the
precepts of fair trial enshrined in the Constitution. Accordingly, it would appear
that the general rule on admissibility of evidence indicated in section 51 of the
Evidence Act cannot be read to trump constitutional guarantees of fair trial.
Instead, it can only be read with the necessary qualications or adaptations to
enable effect to be given to the exclusionary rule which, though not expressly
mentioned in the Constitution, is impliedly commanded by it.
4.2. Involuntary confessions and other self-incriminatory evidence

On involuntary confessions and other self-incriminatory pieces of evidence, the
Ghanaian legal position like the American one has always been clear: A court
cannot admit, let alone convict on the basis of, such evidence. Every constitution
of Ghana since 1969 has prohibited torture and all other forms of degrading or
dehumanizing treatment. The privilege against self-incrimination which prohibits
the compulsion of a person to produce inculpatory evidence against himself has
also been part of the Bill of Rights of each of these constitutions.103 It would be
inconceivable for a court which is charged with the application or enforcement
of the constitution to repudiate that trust by sanctioning evidence that is the pro-
duct of constitutional prohibitions.
103
See article 20(10) of the 1969 Constitution; article 26(9) of the 1979 Constitution and
article 19(10) of the 1992 Constitution.
But it does not end there. The Evidence Act 1975 further bolsters the consti-
tutional rules. It provides that evidence of a hearsay statement made by an
accused admitting matter which (a) constitutes; or (b) forms an essential part
of; or (c) taken together with other information already disclosed by him is a
basis for an inference of, the commission of a crime for which he is being tried
in the action is not admissible against him unless the statement was made volun-
tarily.104 By this provision, an alleged confession by an accused person that was
not made voluntarily is prohibited. To determine voluntariness, the Act enjoins
the court to consider factors including whether
(i) the accused was induced to make statement by being subjected to cruel or
inhuman conditions, or by the iniction of physical suffering upon him
by a public ofcial, or by a person who has a direct interest in the out-
come of the action, or by a person acting at the request or direction of a
public ofcial or such interested person; or
(ii) the accused was induced to make the statement by a threat or promise
which was likely to cause him to make such a statement falsely, and the
person making the threat or promise was a public ofcial, or a person
who has a direct interest in the outcome of the action, or a person acting
at the request or direction of public ofcial or such an interested per-
son.105
As an additional safeguard, the Act provides that a confession made by a per-

son who is under arrest, detention or restriction by the state is not admissible
unless it was made in the presence of an independent witness.106
In Republic v Agyiri107 the accused was arrested, handcuffed and severely
beaten. He was then made to thumbprint a statement written for him by the
police. He objected to the admission of the statement when the prosecution
sought to tender it at his trial for murder. Given the scars on his body and the
failure of the prosecution to produce the independent witness who allegedly wit-
nessed the taking of the statement, the court held that the prosecution had failed
to prove that the accused was not beaten and forced to thumb-print a fabricated
confession statement.108 The statement was accordingly rejected.
It is, therefore, clear that Ghanaian law, both constitutional and statutory, is
congruent with the limb of the American exclusionary rule that prohibits the
admission of involuntary confessions and other self-incriminatory evidence.
104
Evidence Act, s 97(4).
105
Evidence Act 1975, s 120(5)
106
Evidence Act 1975 (NCRCD 323), s 120(2); According to subsection (3) The inde-
pendent witness must be a person who (a) can understand the language spoken by
accused; (b) can read and understand the language in which the statement is made, and
where the statement is in writing the independent witness must certify in writing that the
statement was made voluntarily in his presence and that the contents were fully under-
stood by the accused.
107
[198283] GLR 251.
108
Ibid 253.
4.3. Evidence obtained in violation of a suspects right to counsel

The right of a suspect or an accused to have access to, and consult with, a
lawyer of his choice is an indispensable element of due process. The presence of
the lawyer during custodial interrogation is a necessary check on police miscon-
duct. In most cases that could be the only thing that stands between a suspect
and torture, intimidation, threats, or deceptions that result in self-incrimination. It
is for this reason that the that US Supreme Court extended the exclusionary rule
to cover evidence obtained in violation of the Sixth Amendments right to coun-
sel starting with Escobedo v Illinois.109
Mr. Escobedo was arrested for the murder of his brother-in-law. His lawyer
got him released on a writ of habeas corpus, but he was later re-arrested. This
time, the police denied his request to consult with his lawyer. Even when the
lawyer came to the station requesting to see Mr. Escobedo, the police would not
let him. Following an interrogation session in which Mr. Escobedo was con-
fronted with one of his accusers, he made some incriminating admissions. These
were used against him at his trial for the murder of his brother-in-law. He was
convicted. But the United States Supreme Court reversed. The Court held that
where an investigation has begun to focus on a particular suspect including
cases in which the suspect has been taken into custody no statement elicited
by the police during the interrogation may be used against [the suspect] at a
criminal trial110 if (a) the suspect has requested and been denied an opportunity
to consult with his lawyer111; and (b) the police have not effectively warned
him of his absolute constitutional right to remain silent.112 This ratio was
afrmed in Miranda v Arizona113 as part of what has become known as the
Miranda rights. In Miranda, the court held that if the police interrogate a person
in their custody without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the defendant know-
ingly and intelligibly waived his privilege against self-incrimination and his right
to retained or appointed counsel.114 And unless and until the Miranda warnings
including the right to counsel are given, or a waiver by the defendant is demon-
strated by the prosecution at trial, the Courts view was that no evidence
obtained as result of interrogation can be used against the defendant.115
Consistent with the view that the American experience is a better guide, the
Ghanaian Court of Appeal endorsed the Miranda exclusionary rule in Okorie v
The Republic.116 Azu Crabbe CJ reasoned that American constitutional jurispru-
dence on the effective assistance of counsel should guide the interpretation of
109
Escobedo (n 87).
110
Ibid 491.
111
Ibid.
112
Ibid 497.
113
Miranda (n 86).
114
115
The exclusionary rule based on the Sixth Amendment right to counsel applies in two
contexts: (a) the pre-trial custodial interrogation cases like Escobedo and Miranda and (b)
the post-indictment cases in which a defendant is interrogated without the presence of his
counsel. For more on the latter see cases like Massiah v United States 377 US 201
[1964] and Brewer v Williams 430 US 387 [1977].
116
Okorie (n 96).
the right to counsel provided in article 15 of the 1969 Constitution. There, the
question was whether an investigatory statement obtained from a suspect was
admissible at trial although the police had failed to advise him of his constitu-
tional right to counsel. The Chief Justice made three important conclusions: (a)
that the right to consult counsel appears to have been deliberately inserted by
the Constitution-makers, having regard to the wanton suppression of personal lib-
erty during the First Republic117; (b) that the guarantee of the right to consult
counsel is based on the Sixth Amendment to the Constitution of the United
States of America118; and (c), that its interpretation should, therefore, be made
consistent with the decisions of the Supreme Court of the United States on the
Sixth Amendment, which, though not binding upon this court, are no doubt of
persuasive authority in this country.119 So interpreted, he held that a departure
from the procedures required by article 15(2) would render inadmissible at the
resulting trial any confessional statement obtained from a suspect.120
Article 14(2) of the current 1992 Constitution which guarantees the right to
counsel is a near verbatim reproduction of article 21(2) of the 1979 Constitution
which in turn was based on the 1969 Constitutions formulation of the right to
counsel.121 It stands to reason therefore that the Miranda exclusionary rule as
endorsed in Okorie is applicable under the 1992 Constitution, and has been part
of the constitutional rules of Ghana at least since 1969.
4.4. Illegally obtained evidence in periods when the constitution had been
suspended
From the above analyses, it is evident that all the three broad bases upon which
the American exclusionary rule rests have had, and continue to have, have their
equivalents under Ghanaian law. It follows that there cannot be any legitimate or
logical justication for Leatham, Kuruma and similar English authorities to hold
sway in Ghanaian courts as far as the admissibility of illegally obtained evidence
is concerned. But, would this conclusion be different for periods in Ghanas his-
tory when the relevant constitution had been suspended following a military
intervention?
We do not think so, save for the three year period when the Criminal Proce-
dure (Amendment) Decree, 1975 (SMCD 3) was in force. The suspension of the
1969 Constitution by the military in 1972 did not abrogate the human right pro-
visions of that constitution or the powers of the courts to enforce them. In
Republic v Akosah122 the question was whether self-incriminating statements
117
Ibid 281.
118
Ibid.
119
Ibid 2812.
120
Ibid 282.
121
See the recent case of Sammy Crabbe v Attorney General (Suit No. HRCM/04/09;
Judgment:18 Aug. 2009), where the High Court applied the Okorie case and held that it
was a violation of article 14(2) of the 1992 Constitution for a law enforcement agency to
deny a persons access to his or her lawyer during any meetings, conversations, or inter-
rogations or any other forms of communication with such agency.
122
[1975] 2 GLR 406.
obtained from the defendants in violation of the right to counsel were admissible.
The prosecution argued that because the 1969 Constitution had been suspended,
its human rights provisions including the right to counsel must also be deemed
to have been suspended. The court rejected that argument and thereby excluded
the statements. Justice Taylor reasoned that since under the National Liberation
Council (Establishment) Proclamation, 1972, enactments and rules of law in
existence immediately before 13 January 1972 were saved and not abrogated
despite the suspension of the 1969 Constitution, and since the right to counsel
contained in the Constitution was clearly a rule of law, i.e. a fundamental
human right, it was pertinent to the question of admissibility of the incrimina-
tory the statements made by the accused.123
Following Republic v Akosah, another case, Marhaba & Others v The
Republic124 came before Justice Taylor on appeal. Counsel for the appellant
challenged the admissibility of certain statements obtained in violation of the
appellants the right to counsel and argued for their exclusion relying on Okorie.
Sensing that Justice Taylor may exclude the impugned statements like he did in
Republic v Akosah, the Supreme Military Council government passed and back-
dated SMCD 3 in which it decreed that the provisions of article 15(2) of the
suspended Constitution of 1969 shall not render any statement inadmissible as
evidence.125 The law practically created created a hiatus in the application of
the exclusionary rule that was announced in Okorie and applied in Republic v
Akosah. But considering the motivations behind the passage of SMCD 3 and its
oppressive nature, it must be limited to its peculiar circumstances and not seen
as a legitimate abolition of the exclusionary rule announced in Okorie. Of
course, the Supreme Military Council had spoken and the duty of the courts
[was] to give effect to the legislative at126; nevertheless, in the Marhaba case,
Justice Taylor did not concede the legitimacy of SMCD 3. In fact, he
denounced it when he said that it is innitely better and a good measure of an
advanced and civilised criminal justice system where the police endeavour to
carry out investigations in order to obtain independent material pointing to guilt
instead of their being encouraged to browbeat the citizen to make admissions to
be used subsequently in convicting the citizen.127 Thus, although the principle
in the Okorie and Akosah cases suffered a setback with the enactment of SMCD
3, the courts still recognized that the proper and legitimate position was that
when evidence had been obtained in violation of fundamental civil liberties,
such as the right to counsel, it would be an affront to any civilized system of
justice for a court to admit it. In other words, SCMD 3 rather afrmed that the
inadmissibility of illegally obtained evidence was the default rule of the justice
system, unless the hands of the courts were tied to do otherwise by an oppres-
sive and illegitimate at.
123
Ibid.
124
[1979] GLR 90.
125
Section 2 of SCMD 3.
126
Marhaba (n 124) 97.
127
Ibid.
In any case, with the entry into force of the 1979 Constitution, on 24
September 1979 and in light of its supremacy clause, SMCD 3 was rendered a
piece of nauseous debris on the statute books.128 The exclusionary rule in the
Okorie and Akosah cases was resuscitated. Although the 1979 Constitution was
also suspended through the coup of 31st December 1981 that ushered in the Pro-
visional National Defence Council (PNDC), in our view, the resuscitated princi-
ple in Republic v Akosah129 remained unaffected. Indeed, the PNDC
(Establishment) Proclamation (Supplementary and Consequential Provision) Law
1982 (PNDCL 42) provided that all organs of government, persons and authori-
ties exercising legislative, executive or judicial power shall be guided in the per-
formance of their functions byrespect for fundamental human rights and the
dignity of the human person.130 Accordingly, in a case like Amoah v The
Republic131 that was decided during the PNDC era, the court held that the right
to counsel of ones choice cannot be said to be outside the scope of what can be
regarded as fundamental human right worthy of recognition and enforcement
by the courts.132 So, even though the 1979 Constitution had been suspended,
the core and fundamental values like human rights enshrined it still applied
within the legal system.
It, therefore, stands to reason that at least since 1969, the liberty of the indi-
vidual and his right to protection from governmental interference of his home,
correspondence or communication have been core constitutional values of our
legal system. These fundamental civil liberties applied irrespective of whether
the country had an operative written constitution. It is for this reason that we
argue that the Ghanaian position on illegally obtained evidence could not have
been different from the American exclusionary rule. Thus, except for the peculiar
circumstances under SMCD 3, we do not consider that a court that faced the
question of whether to admit evidence obtained in violation of a suspects liberty
or protection from unreasonable governmental interference with his home or
communication, could have lawfully shut its eyes to the governments illegal
conduct. To declare that, in the administration of the criminal law, the end justi-
es the means to declare that the Government may commit crimes in order to
secure the conviction of a private criminal would bring terrible retribution.133
It would be a failure of the rule of the law that invites every man to become a
law unto himself.134 A court of justice cannot but set its face against such
government lawlessness.
128
See AA Ankoma, What is it About the Right to Counsel that the BNI does not
Understand?(I-Can-Ghana.Com, 25 August 2009) <http://www.i-can-ghana.com/?p=93>
accessed 5 October 2016.
129
Akosah (n 122).
130
Emphasis added.
131
[198990] 1 GLR 266, 284.
132
Regarding the admissibility of a suspect statement obtained in violation of the right to
counsel, the later case of Nyarko v The Republic [199293] 4 GBR 1545 sought to sug-
gest that SMCD 3 was still applicable during the PNDC era. But in light of the fact that
law was squashed by the 1979 Constitution and PNDCL 42 also enjoined respect for
fundamental human rights during the PNDC era, the view in the Nyarko case must be
regarded as per incuriam: see Ankoma (n 128).
133
Olmstead v United States 277 US 438, 485 (per Brandeis J).
134
Ibid.
5. Admissibility of the Tiger-Eye tapes on judicial corruption

The response of the Judicial Council (headed by the Chief Justice) to the corrup-
tion that the Tiger-Eye tapes uncovered was swift and decisive. The Council sus-
pended the implicated judicial ofcials and instituted disciplinary proceedings.
But the impugned judicial ofcials would not go down without a ght. Several
of them led lawsuits challenging the propriety and legality of the method
employed by Tiger-Eye in obtaining the videos.135 Others alleged entrapment.136
Opinions of lawyers and legal analysts on the legal issues implicated by the
videos sharply differed.137 While some argued that the videos would be admissi-
ble in any criminal or disciplinary proceeding regardless of how it was procured,
others cited constitutional issues like privacy to spell the doomed fate of the
tapes.
In our view, the essential question raised by the Tiger-Eye tapes is: Under
what circumstances will a piece of evidence procured by a private citizen (e.g. a
journalist) through an undercover investigation be admissible in either criminal
or disciplinary proceedings?
We believe this question must be considered from two perspectives: (i) where
the private citizen engages in a transaction or discourse with the wrongdoer with
the view to gathering evidence of the wrong doing; and (ii) where without mak-
ing any contact with the wrongdoer the private citizen surreptitiously gathers evi-
dence of the wrong doing by, say, intercepting the correspondence of the
wrongdoer or recording his communications.
In rst scenario, the private citizen does not need any authorization, or war-
rant to carry out his investigation. The evidence gathered may lawfully be the
basis of a criminal trial or disciplinary proceeding. We adopt the reasoning in the
United States v White138 for this position. In that case, it was held that the
Fourth Amendment affords no protection to a wrongdoers misplaced belief that
a person in whom he voluntarily condes his wrong doing will not reveal it.139
The Court said that a police agent (or an informant) who conceals his police
connections may write down for ofcial use his conversations with a defendant
and testify concerning them, without a warrant authorizing his encounters with
the defendant.140 By the same line of reasoning, the court thought that no dif-
ferent result is required if the agent instead of immediately transcribing his con-
versations with the defendant, either simultaneously records them with electronic
equipment which he is carrying on his person, or carries radio equipment which
simultaneously transmits the conversation.141
Thus in our view, where a private citizen establishes contact with the wrong-
doer (even if it is by disguise), there is some element of voluntary disclosure by
135
Judicial Scandal: Indicted Derry Sues Anas (Starrfmonline.Com, 14 September 2015)
<http://www.starrfmonline.com/1.6851023> accessed 5 April 2016.
136
MABanasseh, Justice Derry sues Anas over video Graphic.Com.Gh (15 September
2015) <http://www.graphic.com.gh/news/general-news/49458-justice-dery-sues-anas-over-
video.html> accessed 5 April 2016.
137
Ghanaweb (n 3).
138
401 US 745.
139
Ibid 749.
140
Ibid 751.
141
Ibid.
the wrongdoer. The wrongdoer divulges his wrongdoing consciously and fully
aware of the risk that the trust he has reposed in the private citizen may be brea-
ched. If it is in fact breached, as it would be when a report is made to the
authorities, the wrongdoer must live with the consequences and have himself to
blame.
The same conclusion cannot, however, be reached for a scenario where with-
out making any contact with the wrongdoer the private citizen embarks on a sur-
reptitious and warrantless interception of the wrongdoers communication or
correspondence. Such modus operandi breach the expectation of privacy that any
ordinary person would have in their correspondence or communication. Since the
Constitution protects the privacy of the home, communication and correspon-
dence, evidence procured as result of such a method will be a poisoned tree or
the fruits of the poisoned tree. This is especially so when one recognises that
in Ghana, the Constitution applies horizontally to actions of private actors, as it
applies vertically to governmental action. Where applicable to them, all natural
and legal persons in Ghana are required to respect the fundamental human rights
and freedoms enshrined in the Constitution.142 Accordingly, if a private citizen
focuses an undercover investigation on a particular suspected wrongdoer without
rst initiating contact with the wrongdoer for his voluntary participation in the
sting operation, we consider that the evidence procured will be inadmissible in
criminal trials and disciplinary proceedings for the same reasons that evidence
illegally procured by the government would be inadmissible.
Because the Tiger-Eye tapes were lmed through an undercover investigative
operation in which the implicated judicial ofcials voluntarily participated, we
think the tapes are free of any admissibility challenges including the charge of
entrapment. There is, therefore, no reason why they should not, in accordance
with the reasoning in United States v White,143 be admissible in a criminal or
disciplinary proceeding.
6. Concluding thoughts
The Ghanaian constitutional framework backed by persuasive case law, without a
doubt, mirrors the American exclusionary rule on the admissibility of illegally
obtained evidence. The popular view that the English inclusionary rule is control-
ling is merely another instance of blindly following the jurisprudence of the ex-
metropolis for which there are no cogent justications. The American exclusion-
ary rule, as indicated in this paper, generally prevents crime-on-crime by priori-
tizing the integrity of the judicial system. For a country like Ghana that is still in
its formative years of democratic governance, the integrity of the judicial process
is of utmost importance, a status the exclusionary rule guarantees. We, therefore,
submit from the foregoing arguments that the Ghanaian position on the admissi-
bility of illegally obtained evidence parallels the American exclusionary rule sub-
ject to narrowly-tailored exceptions that peculiar cases may admit of.
142
1992 Constitution, article 12(1).
143
White (n 138).
Notes on contributors
Christopher Yaw Nyinevi is a lawyer and legal academic with the Kwame Nkrumah
University of Science and Technology (Faculty of Law), Kumasi, the same institution
from which he graduated with a Bachelor of Laws (LL.B) in 2010. He also has an LL.M
in International Law & Justice from the Fordham University School of Law, New York,
USA, where studied from 2010 to 2011 under the Vivian Leitner Global South LL.M
Scholars Program. At the Kwame Nkrumah University of Science & Technology Faculty
of Law, Mr Nyinevi teaches courses including Public International Law and Legal Writ-
ing. His current research interest is the interface between constitutional design and socioe-
conomic development in sub-Saharan Africa.
Maame Efua Addadzi-Koom graduated from the Kwame Nkrumah University of Science
and Technology (Faculty of Law) Kumasi, with a Bachelor of Laws (First Class Honors)
in 2015. She then attended Fordham University School of Law, New York, USA where
she graduated, in May 2016, with an LL.M in International Law & Justice. She was a
beneciary the Vivian Leitner Global South LL.M Scholars Program, a fellowship admin-
istered by the Leitner Center for International Law & Justice at the Fordham Law School.
She is currently a student at the Ghana School of Law and an assistant lecturer at the
KNUST Faculty of Law.

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Commonwealth Law Bulletin, 2017

To admit or not to admit: a comparative constitutional

During criminal investigations, law enforcement agents sometimes out the

2017 Commonwealth Secretariat

it constitutes no valid objection to their admissibility, provided they are pertinent to

2. Overview of the evidence law of Ghana and the nature of illegally

3. The inclusionary and exclusionary rules on admissibility of evidence

3.1. The English inclusionary rule

relevance and admissibility.27 Second, the rule is deemed to facilitate the

3.2. The American Exclusionary Rule42

3.2.1. Exceptions to the exclusionary rule

The Inevitable Discovery exception was established in Nix v Williams.65 The

3.2.2. Criticisms of the exclusionary rule

3.3. Conclusion on the juxtaposition of the inclusionary and exclusionary

4. The Ghanaian position on illegally obtained evidence

4.1. Evidence obtained from searches and seizures in violation of

signicant thing. It shows that American constitutional doctrines, particularly

4.2. Involuntary confessions and other self-incriminatory evidence

As an additional safeguard, the Act provides that a confession made by a per-

4.3. Evidence obtained in violation of a suspects right to counsel

5. Admissibility of the Tiger-Eye tapes on judicial corruption

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Illegally Obtained Evidence (Chris &amp; Efua)

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Illegally Obtained Evidence (Chris &amp; Efua)

Caricato da

Copyright:

Formati disponibili

Commonwealth Law Bulletin, 2017

To admit or not to admit: a comparative constitutional

During criminal investigations, law enforcement agents sometimes out the

2017 Commonwealth Secretariat

it constitutes no valid objection to their admissibility, provided they are pertinent to

2. Overview of the evidence law of Ghana and the nature of illegally

3. The inclusionary and exclusionary rules on admissibility of evidence

3.1. The English inclusionary rule

relevance and admissibility.27 Second, the rule is deemed to facilitate the

3.2. The American Exclusionary Rule42

3.2.1. Exceptions to the exclusionary rule

The Inevitable Discovery exception was established in Nix v Williams.65 The

3.2.2. Criticisms of the exclusionary rule

3.3. Conclusion on the juxtaposition of the inclusionary and exclusionary

4. The Ghanaian position on illegally obtained evidence

4.1. Evidence obtained from searches and seizures in violation of

signicant thing. It shows that American constitutional doctrines, particularly

4.2. Involuntary confessions and other self-incriminatory evidence

As an additional safeguard, the Act provides that a confession made by a per-

4.3. Evidence obtained in violation of a suspects right to counsel

5. Admissibility of the Tiger-Eye tapes on judicial corruption

Potrebbero piacerti anche

Illegally Obtained Evidence (Chris & Efua)

Illegally Obtained Evidence (Chris & Efua)