ADMISSIBILITY AND STANDARD OF PROOF OF FORENSIC EVIDENCE IN WILDLIFE CRIMES IN KENYA

Transcription

1 ADMISSIBILITY AND STANDARD OF PROOF OF FORENSIC EVIDENCE IN WILDLIFE CRIMES IN KENYA Didi Wamukoya

2 INTRODUCTION

3 INTRODUCTION Forensic evidence is an important tool in the adjudication of criminal evidence. DNA evidence is said to be one of the most reliable forms of forensic evidence today.

4 THE NATURE OF WILDLIFE CRIMES Wildlife law is a subsector of environmental law. Environmental crimes are often regarded as public welfare offences. Such offences create strict criminal liability. This means that the requirement for mens rea or knowledge of the offense is not required to be proved. The prosecution only has to prove the actus reus (guilty act).

5 THE NATURE OF WILDLIFE CRIMES An illustration: Any person who kills any animal capable of being stolen with the intent to steal the skin or carcass, or any part of the skin or carcass, is guilty of an offence (Section 289, Penal Code). Except as otherwise expressly provided in this Act, any person who hunts any protected animal shall be guilty of a forfeiture offense (Section 22 Wildlife Act).

6 THE NATURE OF THE KENYAN LEGAL SYSTEM Kenya s legal system is an adversarial system. The investigative role of courts is therefore limited. The role of courts is constrained to being impartial arbiters ensuring the observance of trial rules. The court can therefore only rely on the evidence and exhibits brought before it. This prevents them from confronting the full range of issues concerning the entire forensic analysis process.

7 STANDARD OF PROOF

8 CONSTITUTIONAL PROVISIONS Article 50(2)(a) of the CoK provides that every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.

9 STANDARD OF PROOF In criminal cases, the burden of proof is on the prosecution and the standard of proof is proof beyond reasonable doubt. This means that more evidence is needed to find the accused person at fault.

10 STANDARD OF PROOF IN WILDLIFE CRIMES Due to the fact that wildlife crimes are strict liability crimes, the standard of proof is lowered compared to penal crimes because the prosecution does not have to prove the criminal intent of the accused person.

11 STANDARD OF PROOF FOR FORENSIC EVIDENCE If it is the prosecution relying on the forensic evidence, then the standard of proof using that evidence remains proof beyond reasonable doubt. This means that all procedural aspects relating to that evidence must be followed to avoid any doubt being raised as to the credibility of that evidence.

12 ADMISSIBILITY

13 INTRODUCTION Forensic evidence is generally accepted as a form of evidence in Kenyan courts. Kenyan courts have stated that technology and science is often brutally accurate (Daniel Onyango Ohanga vs R [2013] eklr). This means that from the face value, the courts will accept the accuracy of forensic evidence unless there is doubt created by the defense. Due to the adversarial court system, courts cannot inquire deeper into such evidence where the defense fails to do so.

14 WHAT IS ADMISSIBILITY? Admissibility means that an item of evidence is capable of being admitted or accepted as evidence by the court (Sec 2 Evidence Act). It is any evidence which is allowed to be introduced in court in order to prove or disprove a fact.

15 RULES THAT DETERMINE ADMISSIBILITY There are a number of rules that determine what evidence may be admitted and under what conditions. The rules of admissibility of evidence provide a framework to help preserve the integrity of the evidence. The two basic rules of admissibility are: Relevance Competence

16 1. RELEVANCE Relevance has 2 components: Materiality Probativeness

17 (A) MATERIALITY This means that the evidence applies to the case at hand and not some other case.

18 (B) PROBATIVENESS Evidence is probative if it tends to make a fact or issue more or less plausible than if the evidence were not present. This element is what justifies the relevance of forensic evidence.

19 2. COMPETENCE Competence of evidence is a collection of rules and constraints that evidence must pass in order to be admissible. One of the important rules of competence that affect forensic evidence is the reliability rule. Evidence must be reliable if the court is to be able to use it in reaching a just decision. Reliability may be challenged on the following grounds: Falsifiability Knowledge of error rates Peer review General acceptance Scientific principles

20 (A) FALSIFIABILITY This tool simply means that the principle or theory behind a new technique or forensic procedure has been repeatedly tested to see whether it is false. and If the theory is verified, then this is a good measure of the validity of that technique.

21 (B) KNOWLEDGE OF ERROR RATES The error rates or the results of the scientific process can be questioned. The court may wish to know the error rates so as to presumably make some determination as to the reliability and validity of the scientific process.

22 (D) GENERAL ACCEPTANCE The method or technique used can be questioned to ascertain whether it has been generally accepted in the relevant field as the technique to be used in coming up with the results sought.

23 (E) SCIENTIFIC PRINCIPLES The scientific technique used must be based on scientific principles and not speculation and the scientific basis for the principles must be demonstrated in court.

24 CONCLUSION Courts generally do not assess how the forensic analysis has been performed, the protocols and standard operating procedures followed and the quality controls that were in place to monitor the quality assurance process. Courts are also unwilling to challenge the accuracy of scientific test results. Until the courts rule on the admissibility of such evidence, laboratories have to guess what quality control efforts each court might demand of them.

25 THANK YOU Q & A