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WATCH RELATED VIDEO: FRUIT OF POISONOUS TREEContent:
- Section 24(2) – Exclusion of evidence
- Fruits of the Poisonous Tree
- 1538.5 Motion to Suppress and the Harvey-Madden-Remer Doctrine
- Rethinking the ‘Fruits of the poisonous tree’ doctrine: Should the ‘ends’ justify the ‘means’?
- FRUITS OF THE POISONOUS TREE
- Understanding the doctrine of the fruit of the poisonous tree
Section 24(2) – Exclusion of evidence
You may freely eat of every tree of the garden; but of the tree of the knowledge of good and evil you shall not eat, for in the day that you eat of it you shall die. One of the most important questions raised in the context of criminal law cases is whether unlawfully obtained evidence is admissible.
However, this approach is at odds with another strong current in Israeli jurisprudence. The Basic-Law: Human Dignity and Liberty, a statute subsequently granted constitutional status by the Israeli Supreme Court, and which thus forms an essential part of the future Israeli written constitution , is more likely to support the alternative path: that evidence obtained by unlawful means should not be used despite the social costs this may cause.
Given the constitutional revolution represented by the Basic-Law, the question of the admissibly of the evidence is currently being reassessed, although the issue has yet to reappear before the Israeli Supreme Court. The literature discussing the Israeli law of evidentiary exclusion is also fundamentally misguided.
There are two major schools of thought: comparative and constitutional. The comparative school weighs the value of the exclusionary rule by examining the experience of jurisdictions that have adopted the rule primarily the United States.
The second school correctly applies the superseding constitutional commitments of the Basic-Law to human rights to modify prior statutes and case-law. This demonstrates an inaccurate understanding of the issue, as it confuses between two different and separate proceedings. However, no literature has yet discussed whether a trial court violates the Basic-Law by admitting unlawfully obtained evidence.
In the second section, I discuss the legal approach taken by some other legal systems, namely US, Canadian, English and German law.
The legal mechanism of the Basic-Law is that whenever a protected right — anchored or incorporated in the Basic-Law — is violated by a state action — namely one of the three governmental branches — that state action is void, being unconstitutional, unless it meets the elements of the Limitation Clause article 8 of the Basic-Law , which offers a balancing formula that allows such violation under certain criteria.
That is, 1 that the authority for such violation be anchored in a statute; 2 that the action befit the values of the State of Israel — central amongst them its Jewish and democratic nature; 3 that the violation be undertaken for a proper purpose; and 4 that the infringement be done in proportionality, namely it requires that the authority scrutinize and fine tune even the smallest details of its action, and consider the myriad of potential alternatives, to determine the least offensive means.
The question of the admissibility of poisonous evidence cuts to the core of the law of evidence and criminal procedure, both of which are fields influenced by the constitutional revolution ofThese constitutional requirements were not merely decorative, but rather required substantial reforms in the criminal law, starting with the process of reconsideration of the commitment of Israeli law to adopting a constitutional exclusionary rule 2.
Before examining the impact of the Basic-Law on the law of evidence, we must examine the established prior case-law that analyzes whether unlawfully obtained evidence may be used at trial. Despite the traditional competition between the legislature and the judiciary in shaping the law, it is the Supreme Court which has so far dominated as concerns the exclusionary rule in Israeli law.
This legislative action was a consequence of American influence on the Israeli legal system. Nevertheless, these statutes were interpreted by the judiciary as not stating specific new rules, but rather as creating exceptions to the general original rule 7.
According to this rule, relevant evidence will be not excluded on the mere ground that it was obtained unlawfully, regardless how extreme the means have been which were used to obtain that evidence. Thus, it is no impediment to the use of evidence if it was obtained through an infringement of constitutional rights, eg through the use of violence, or by humiliation. The main concern is not whether such evidence is admissible, but how much weight it carries, thus attributing higher value to revealing the truth than to the protection of constitutional rights 8.
On this basis, the Israeli Supreme Court has thus far rejected the fruits-of-the-poisonous-tree doctrine 9 , whereby evidence which was obtained unlawfully, by violation of constitutional rights, both directly or indirectly, should be excluded and inadmissible, simply because it was obtained in circumstances of an unlawful or unconstitutional actionThe Supreme Court, while being aware of the fruits-of-the-poisonous-tree doctrine, has consistently dismissed its approach, even though several cases hint at a desire to adopt such a ruleThe rationale behind this consistent rejection was that the requirements of admissibility were separate and distinct from the means in which the poisonous evidence was obtainedThis consistent attitude resulted in the rejection of many flexible theories that provide discretion to the judiciary whether it should exclude unlawfully obtained evidence under extreme circumstancesThe Supreme Court instead insisted on a weighing rule, in which poisonous evidence will not be excluded, but will rather be given less weight than other evidenceThe Court downplayed the deterrent function of evidentiary exclusion, noting that questions of deterrence were adequately resolved by actions before disciplinary courts.
Thus, the primary concern of the judiciary was the relevance of the evidence rather than its admissibilityUnlike the judicial consensus, Israeli legal academics offer a range of solutions for dealing with unlawfully obtained evidence, each based on comparative legal theories and rationales.
But, critically, the judiciary has not yet engaged in a fresh examination of the constitutional parameters, despite the fact that the constitutional language and spirit affect every case.
These two points will be discussed step by step. When the Israeli state was established, all efforts aimed at introducing a written constitution failed, basically because there were large and deep disputes upon many fundamental constitutional issues. Yet, until , all enacted basic-laws had not been granted any constitutional status, mainly as they were not formulated as anticipating essential parts of the future Israeli written constitution. The turning point was in , when Basic-Law: Human Dignity and Liberty was enacted, which focused on the protection of human rights against any infringement by any of the governmental branches.
In Bank Hamezrahee , the Supreme Court held that the Basic-Law is part of the future Israeli constitution, based on the Harrary decision, and that meanwhile it has to be considered as constitutional norm, in which it will govern in cases of conflict with other ordinary acts. According to the Basic-Law, state action that infringes on constitutional rights, anchored or incorporated in the Basic-Law, is unconstitutional, and thus void, unless such an infringement is covered by of the Limitation Clause.
In , therefore, the Israeli legislature enacted sweeping statutory reform in the area of basic human rights in the guise of the Basic-Law: Human Dignity and Liberty. The judicial branch recognized the extraordinary nature of the Basic-Law by granting the Basic-Law constitutional status. This constitutional revolution had acute implications on several areas of Israeli law, including criminal law, evidence law, and criminal procedure.
Both statutes clearly reflect the massive effect of the constitutional revolution of the Basic-Law on the criminal law. Representing one of the three branches of public authority, the Israeli Supreme Court has an obligation to respect 19 all the rights enshrined in the Basic-Law. Accordingly, the Supreme Court held, in a landmark decision, that even ordinary statutes enacted prior to the Basic-Law must be interpreted in light of the constitutional nature of the Basic-LawYet, these constitutional steps, which have already led to constitutional reforms in several fields of criminal law, require a serious constitutional scrutiny of all criminal law as one unit, including criminal procedure and evidence, in order to achieve constitutional harmony.
In other words, scrutinizing individual statutes is not sufficient. Rather, the whole of Israeli jurisprudence must be examined for consistency with the superseding constitutional principles set forth in the Basic-Law.
That said, even constitutional rights are not absolute; therefore when they conflict with other protected interests, questions of balance are raised. Protecting constitutional rights has a social cost.
The Limitation Clause of the Basic-Law explicitly addressed this costIt has been designed to establish a constitutional balance between the protected constitutional rights and the protected social interests, all in accordance with its four elements: 1 that the authority for such violation be anchored in a statute; 2 that the action befit the values of the State of Israel; 3 that the violation be undertaken for a proper purpose; and 4 that the infringement be done in proportionality.
Once constitutional commitments are made, the legislature is no longer free to act as it pleases, and is no longer at liberty to choose any point of balance between individual rights and social interests. The most important element of the Limitation Clause is the fourth element on proportionality 22 , which provides that the violation of the protected constitutional rights shall not be to a degree that is greater than necessary.
That is, the authority must scrutinize and fine tune even the smallest details of its action, and must consider all alternatives, to determine the least offensive means. It is a critical instrument for protecting constitutional basic rights and for determining the ideal point of balance in cases of confrontation between a constitutional right and other protected interest. This instrument binds not only the legislature but also the judiciary. Following the constitutional revolution of , several areas of the Israeli legal system adapted to the new constitutional commitments.
In parallel, the judiciary, and especially the Israeli Supreme Court, as being obligated to respect all human rights according to their constitutional nature, joined this constitutional revolution by systematically examining the new constitutional aspects of numerous legal issues argued before it. This tendency was especially common in the field of criminal law. This debate must now be held, regardless of its outcome.
It requires confronting the classic rationales of the fruits-of-the-poisonous-tree doctrine with other constitutional norms. Such an analysis tends towards the conclusion that the constitutional revolution of fundamentally alters the balance of the interests involved. And, even if this new constitutional balancing analysis is not eventually adopted, it is indisputable that constitutional principles of human rights are more likely to support the adoption of the exclusionary rule outright, rather than its abandonmentIn the following, I will first examine the constitutional literature discussing the impact of superseding constitutional commitments on existing law; I then apply this theory to the fruits-of-the-poisonous-tree doctrine, in order to determine whether that law has been altered as a result of the constitutional revolution.
In support of adopting the exclusionary rule, Eliaho Harnon 24 wrote that the rise of the human rights status to a constitutional level requires those rights to be strictly protectedUnder this status based argument, it is only under extreme circumstances that a trial court would have the discretion to admit unlawfully obtained evidence. Emphasizing the religious reference of the Basic-Law, Menahem Alon 28 former Vice-President of the Israeli Supreme Court argues that the synthesis between the Jewish values and the democratic values — which are anchored in articles 1A and 8 of the Basic-Law — requires providing the court with discretion to examine ad-hoc the concrete circumstances of each case, focusing on the constitutional right of dignity, which is protected both within the Jewish values and the democratic values.
It should be observed, though, that this debate has hitherto focussed on the impact of the constitutional debate itself, rather than on the precise application of the mechanism of the Basic-Law. This is a new argument that has not been addressed before by either the Israeli literature or, indeed, by the Supreme Court. One main novelty of this argument is to shift of the spotlight to trial court action rather than police action: by admitting unlawfully obtained evidence beyond what is permitted by the Limitation Clause, the trial court violates the constitutional mechanism of the Basic-Law.
I would also argue that the police action by which evidence is unlawfully obtained should be subjected to separate proceedings.
No system of criminal justice values truth above all other considerations… A legal system must reach a decision on an acceptable demarcation between permissible and impermissible methods, usually by way of political compromiseFor others, it provides an argument against a discussion of the exclusionary rule, mainly on the ground that the Israeli legal system shows one important difference to those other legal systems to which it is most frequently compared, as the Israeli legal system has no juries.
The US legal system was the first to introduce a mandatory exclusionary rule for unlawfully obtained evidence, in consequence of failed disciplinary procedures against police investigators who were involved in obtaining evidence unlawfully. In , in the Mapp case, the exclusionary rule was extended to all state courts. The Mapp case was a landmark decision, because it saw the exclusionary rule as a constitutional principle rather than as a rule of evidence.
This constitutional advance was achieved through the incorporation of the exclusionary rule into the constitutional right to due process, under the Fourteenth Amendment of the U. Constitution, and thus the application of the Fourteenth Amendment to the Fourth AmendmentNothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.
While this principle of judicial integrity is at the core of United States jurisprudence, Israeli jurisprudence has not yet applied this basic analysis to its evidentiary rules. Both statutes and ensuing judgments generated fundamental changes in English law, especially in the law of evidence. As regards unlawfully obtained evidence, sec. Thus, courts were given wide discretion for excluding unfair evidence; compared to the very limited and strict discretion they had prior to the PACE, ie to exclude the evidence only under extreme exceptional circumstances.
A case which went before the House of Lords 36 in concerns the admissibility of evidence in English courts which was allegedly obtained under torture outside the United Kingdom by officials of a foreign state, perhaps in detention centres in Algeria, Morocco or JordanMy view is that the unlawfulness, by which the evidence was obtained, is in itself sufficient to exclude such evidence, regardless of whether the unlawfulness took place outside or within the UK.
Again, this is a question of the integrity of the trial court. On that assumption, it makes no sense to distinguish according to the place where the evidence was unlawfully obtained. Nor does it make sense to grant additional consideration to the factor that the torture might have been committed by US or local interrogators. Once the unlawful obtained evidence is brought to British courts, the unlawfulness by which the evidence was obtained in itself compels the trial court to exclude this evidence.
As the main concern of this article is the development of Israeli law, however, this appears not the right place to discuss any further the likely or desirable implications of that case on English law.
While this article was at proofreading stage, the House of Lords handed down its decision in A FC v Home Secretary , which now largely provides good authority for the propositions which I had made in the previous paragraph.
In view of the great importance of this case, I have added a postscript to my conclusion below at VII. Similar to English law, Canadian law has enacted legislation which tends to exclude unlawfully obtained evidence. Under the largely criticized Wray rule 38 , which was prevalent until , relevant evidence is admissible evidence, regardless of the means used to obtain it.
In , the Canadian Charter of Rights and Freedoms came into force. Article 24 of the Charter creates a flexible exclusionary rule for unlawfully obtained evidence.
This applies to all cases for which, under the concrete circumstances, the admissibility of such evidence would prevent the legal system from doing justice, and accordingly damage its reputation. German law is of particular interest in the present context because, like Israeli law, German law makes no use of juries for criminal trials. In this context, it is worth mentioning the following recent and highly controversial case.
Fruits of the Poisonous Tree
A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth good fruit. It is a legal metaphor in the United States criminal justice system, which prohibits the admission of evidence fruit procured from illegal arrests, seizures, coercion poisonous tree. This doctrine was first indicated in Boyd v. However, the actual phrase was coined by J.
closure of confidential matter with the "fruit of the poisonous tree" 52 California Evidence Code section , representing the.
1538.5 Motion to Suppress and the Harvey-Madden-Remer Doctrine
The purpose of section 24 2 is to maintain the good repute of the administration of justice. Section 24 2 looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. This inquiry is an objective one, which asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute R. Grant ,  2 S. The focus of section 24 2 is not only long-term, but is also prospective and societal. Section 24 2 starts from the proposition that the fact of the Charter breach means damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Further, the section is not aimed at the impact of state misconduct upon the particular criminal trial, such as punishing the police or providing compensation to the accused, but rather at the broad impact of admission of the evidence on the long-term repute of the justice system R. Le , SCC 34 at paragraph ; Grant, supra at paragraphsLike section 24 1 , section 24 2 of the Charter is a remedial provision. It is not an "independent source of Charter rights" but merely provides a remedy for their breach R.
Rethinking the ‘Fruits of the poisonous tree’ doctrine: Should the ‘ends’ justify the ‘means’?
The essential and fundamental part of a justice delivery system in a dynamic society is Criminal Justice', since it has direct impact on the lives of the individuals. The fate of an under trial individuals life and liberties is based on the verdict of the Judiciary in a legal proceeding. A free and fair trial demands compliance of statutory rules and principles of equity and justice. While the procedure of conducting a proper trial is laid down under the codified laws in India, however, at times to meet the justified ends, means to the same are compromised with. Therefore, the following study deals with the need to consider the protections against the illegal means of obtaining evidence, against under trial individuals under the Indian Judicial System and reforms to cater to the need of the hour, in view of the recognised right to Privacy as a Fundamental Right'.
The chapter analyzes the rationales for excluding relevant evidence with the aim of establishing the ideal type of exclusion system for each rationale. The authors then review to what extent individual legal systems have actually altered their legal rules in accordance with these ideal systems.
FRUITS OF THE POISONOUS TREE
It holds that evidence fruit obtained through illegal means such as search and seizure which is a tainted source tree , would also be tainted and would be inadmissible. United States [i] , wherein it was held that evidence obtained by wiretapping was inadmissible as it fell afoul of the protection granted by the Fourth Amendment to the U. Constitution, which guaranteed right to privacy. The doctrine was primarily enunciated to deter law enforcement agencies from violating the constitutionally guaranteed rights of life and personal liberty. Though the genesis of the doctrine was in a criminal case, it is now being increasingly applied in civil cases in the United States.
Understanding the doctrine of the fruit of the poisonous tree
An amendment to the Code of Criminal Procedure became effective in July , after more than three years of legislative works. It introduced the model of adversarial proceedings. Now, a new proposal of changes to the criminal procedure has been presented and sent to a Sejm committee. In a nutshell, the new law is to restore the model of inquisitorial proceedings. The Foundation also approved the proposed revocation of Article 59a of the Criminal Code that enabled victims to request the discontinuation of criminal proceedings against perpetrators of certain misdemeanours. Unfortunately, the proposed amendment limits the scope of compensatory liability for judicial errors. According to the HFHR, the proposed regulation will prevent parties from asserting compensation for losses sustained in criminal proceedings due to the illegal application of penal measures such as disqualification from a profession or a prohibition of driving vehicles, which can sometimes be more onerous for an individual than the main penalty itself. Furthermore, if the amendment becomes law, compensation for illegitimate use of the procedural coercive measures other than detention will be available only as a civil remedy.
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A junior attorney, seeking to gain justice for her father's murder, uses legal loopholes to free a drug dealer and set up her father's killer. The team is at a train station, waiting to intercept a delivery of kilos of Colombian cocaine to Roberto Enriquez. Enriquez meets Skip Jordan , and instead of the cocaine, Jordan leaves him only one kilo—inside a stuffed gorilla. The deal goes completely sour when Crockett stops a would-be armed robber, and a patron panics when she sees Crockett's gun and the whole place erupts in screams, causing the dealers to run.RELATED VIDEO: Fruit of the poisonous tree
Robert M. The People appeal, pursuant to permission granted by a Justice of the Appellate Division, from an order of that Court reversing a judgment of conviction of defendant of murder in the second degree, of weapons and cocaine possession and of tampering with physical evidence, and granting defendant's motion to suppress physical evidence and his incriminating statements. The People make two arguments on their appeal. First, they argue that, contrary to the conclusion of the Appellate Division, the requirement of a founded suspicion of criminal activity does not apply when the police seek consent to search a vehicle following a stop for a traffic violation see, People v Hollman, 79 N.
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The material presented as evidence must affect the issue or question. It must have a bearing on the outcome of the case. It requires both:. The evidence must therefore have probative value.