Oxford University Comparative Law Forum
"Did God say, 'You shall not eat of any tree of the garden'?"*
Rethinking the "Fruits of the Poisonous Tree" in Israeli Constitutional Law
Mohammed Saif-Alden Wattad**
(2005) Oxford U Comparative L Forum 5 at ouclf.iuscomp.org
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Table of contents
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
One of the most important questions raised in the context of criminal law cases
is whether unlawfully obtained evidence is admissible. The basic tension is
between the putative offender's human rights, and society's interest
in discovering the truth. The Israeli Supreme Court has distinguished consistently
between the question of the admissibly of the evidence and the question of the
infringement of the offender's human rights. The Court's conclusion
has been to disentangle the two, such that evidence that violates the offender's
human rights may remain admissible.
However, this approach is at odds with another strong current in Israeli jurisprudence.
The 1992 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). This article will demonstrate that the comparative
apporach, while useful, is not an end in itself but needs to be related to Israel's
fundamental constitutional commitments, which in many ways still need to be
refined in their application to the issue of unlawfully obtained evidence. The
second school correctly applies the superseding constitutional commitments of
the Basic-Law to human rights to modify prior statutes and case-law. But thus
far the constitutional school has focused solely on the police's actions which
violated the offenders' constitutional rights, and thus sought the inadmissibly
of unlawfully obtained evidence. 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.
This article adopts a new "integrity of the court" approach. It begins
by discussing the impact of the "Constitutional Revolution"1
of 1992 on evidence law and criminal procedure law, particularly as applied
to the question of unlawfully obtained evidence. In the first section, I present
the attitude of Israeli law - of both the Supreme Court's landmark decisions
and of Israeli academics. In the second section, I discuss the legal approach
taken by some other legal systems, namely US, Canadian, English and German law.
Finally, I argue that the Israeli discussion of the adoption of the "fruits
of the poisonous tree" theory (or poisonous evidence fruits theory) misses
the point, since Israeli law is committed to a "Constitutional Exclusionary
Rule." This rule is established expressly in the Basic-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. This analysis will guide the article's discussion
of whether the adoption of the basic concept of the "fruits of the poisonous
tree" theory is necessary in Israeli jurisprudence.
In a postcript, the article discusses the very recent decision of the House
of Lords in A (FC) and Others v Secretary of State for the HomeDepartment
 UKHL 71.
II. Constitutional Reform and Evidentiary Exclusion
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 of 1992. These 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 rule2. 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.
B. The "Fruits of the Poisonous Tree" Theory in Israeli Law
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. The legislature's contribution has
thus far been limited to three specific statutory pronouncements, regarding3
evidence obtained by unlawful eavesdropping5,
and evidence obtained in violation of the right to privacy6.
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 rule7. 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 rights8. On this basis, the Israeli Supreme Court
has thus far rejected the fruits-of-the-poisonous-tree doctrine9, 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 action10.
The Supreme Court's position found expression in its landmark judgment
in the Vaa'kneen case11, where it held that all relevant evidence,
except a coerced confession, is admissible, even if unlawfully obtained12. The
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 rule13. The rationale behind this consistent rejection
was that the requirements of admissibility were separate and distinct from the
means in which the poisonous evidence was obtained14. This 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 circumstances15. The 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 evidence16.
When arguing why the poisonous fruit theory should be rejected, the Court relied
on the primacy of the "truth revealing" interest17.
The 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 admissibility18.
C. The "Fruits of the Poisonous Tree" Theory in Israeli Legal
Unlike 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. The debate pm the poisonous evidence "dilemma"
received fresh impetus from the enactment of the "Basic-Law: Human Dignity
and Liberty" (see below, III). 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. In their
writings, academics focus in particular on two subjects: first, the rationales
for the "fruits of the poisonous tree" theory, and second, the need
for constitutional re-examination of the Vaa'kneen case, including
its rationales, following the constitutional revolution of 1992. These two points
will be discussed step by step.
III. Constitutional Rethinking Following the Constitutional Revolution
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. Therefore, Congress resolved in
the famous Harrary decision that a constitution for Israel should be
established "chapter by chapter," whereby basic-laws were the form
that these chapters took. Yet, until 1992, 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 1992, 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 1992, 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. In criminal procedure, an
important further step was taken in 1996 with the enactment of two statutes
on criminal procedures, both of which were formulated in harmony with the constitutional
revolution: (1) the Criminal Procedures Law (Enforcement Authorities -
Custodies) of 1996; and (2) the Criminal Procedures Law (Enforcement Authorities
- Search in the Suspicious' Body) of 1996. 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 respect19 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-Law20.
Yet, 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 cost21. It 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 legislature's actions are constrained
by its pre-commitment to constitutional principles.
The most important element of the Limitation Clause is the fourth element on
proportionality22, 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.
Criminal law introduces the interest of "revealing the truth" as
competing with the interrogated person's human rights. I would assume
that "revealing the truth" is a basic protected interest in all
legal systems, governed by a constitutional-democratic regime, where the principle
of the "Rule of Law" is the highest norm.
Following the constitutional revolution of 1992, several areas of the Israeli
legal system adapted to the new constitutional commitments. This constitutional
inspiration was well announced by the legislature, in which new "suits"
were tailored for several statutes to substitute the old ordinary "suits,"
articulating new norms to meet the constitutional requirements of protecting
constitutional rights according to the Basic-Law, and limiting all infringements
to those permitted by the Limitation Clause. This was an obvious outcome of
the legislature's obligation to respect all human rights in accordance
with the new constitutional statement, connecting previously enacted statutes
to the superseding constitutional law. 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.
The essential question, therefore, is whether the Vaa'kneen judgment
should be overruled, and whether the adoption of the fruits-of-the-poisonous-tree
doctrine is a necessary consequence of the constitutional revolution of 1992.
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 1992 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 abandonment23. In 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
In support of adopting the exclusionary rule, Eliaho Harnon24 wrote that the
rise of the human rights status to a constitutional level requires those rights
to be strictly protected25. Under this status based argument, it is only under
extreme circumstances that a trial court would have the discretion to admit
unlawfully obtained evidence. Harnon concludes that the judiciary is permitted
to adopt this "relative exclusionary rule" as a matter of the superseding
constitutional principle set out in the Basic-Law26. In a similar vein, Emanuel
Gross27 suggests that the maintenance of a defendant's procedural rights
at trial requires an interpretation of the Basic-Law that reaches a new constitutional
Emphasizing the religious reference of the Basic-Law, Menahem Alon28 (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
The Israeli literature on constitutional rethinking has made great strides
by suggesting various solutions to the "dilemma" of the evidentiary
status of "poisonous evidence." The basic maxim, which is common
ground to this academic debate, is the obligation to protect human rights. 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. I would argue that the application of the
mechanism of the Basic-Law will inevitably produce a general mandatory constitutional
exclusionary rule, subject to exceptions where the court's permission
of the admissibly of the unlawfully obtained evidence meets the Limitation Clause's
elements. 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.
IV. The Exclusionary Rule in Comparative Perspective
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 compromise29.
Comparative law has greatly affected the Israeli discussion on the evidentiary
status of "poisonous evidence." For some, this comparative examination
is a turning point towards legal reform based on constitutional enlightenment.
For 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. Since the central concern of this
article is the Israeli "dilemma" rather than other legal systems,
in this section I will present the only basic outlines lines for several comparative
leading legal systems.
A. American Law
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.
The "fruits of the poisonous tree" doctrine first appeared in 1914
the Weeks case30, where the Court held that the exclusionary rule applied
in federal courts only. In 1961, 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.S. Constitution, and thus the
application of the Fourteenth Amendment to the Fourth Amendment31. The basic rationale
for this doctrine was presented as regards to "the imperative of judicial
integrity;" thereby "the criminal goes free, if he must, but it
is the law that sets him free. Nothing 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."32 In presenting the Mapp judgment, Justice
[W]e can no longer permit that right to remain an empty promise… Our decision,
founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him, to the police officer no less than that to
which honest law enforcement is entitled, and, to the courts, that judicial
integrity so necessary in the true administration of justice...33
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.
B. English Law
English law represents a slightly different approach: historically, English
courts held that "poisonous evidence" was inadmissible only at the
court's discretion; a discretion that was, however, rarely used, and was limited
to extreme exceptional circumstances.34
This approach has to some degree been superseded by statute. In early 1985,
Parliament enacted the Code of Practice and the Police and Criminal Evidence
Act 1984 (PACE). Both statutes and ensuing judgments generated fundamental changes
in English law, especially in the law of evidence. As regards unlawfully obtained
evidence, sec. 78 PACE, entitled exclusion of unfair evidence, states that courts
have the discretion to exclude unlawfully obtained evidence, taking in consideration
all the circumstances in which the evidence was obtained, as the submission
of such evidence has a negative impact on the fairness of a trial35.
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 Lords36 in 2005 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 Jordan37. My 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).
C. Canadian Law
Similar to English law, Canadian law has enacted legislation which tends to
exclude unlawfully obtained evidence. Under the largely criticized Wray
was prevalent until 1982, relevant evidence is admissible evidence, regardless
of the means used to obtain it. In 1982, 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.
In application of this rule, it was held that courts would generally examine
whether admitting unlawfully obtained evidence would deny the defendant's right
to due process, considering that due process is the most important aspect of
the reputation which legal system enjoys. Courts will pay great attention to:
"(1) what kind of evidence was obtained? (2) What Charter right was infringed?
(3) Was the Charter violation serious or was it of a merely technical nature?
(3) Was it deliberate, willful or flagrant, or was it inadvertent or committed
in good faith? (4) Did it occur in circumstances of urgency or necessity? (5)
Were there other investigatory techniques available? (6) Would the evidence
have been obtained in any event? (7) Is the offence serious? (8) Is the evidence
essential to substantiate the charge? (9) Are other remedies available?"39
D. German Law
German law is of particular interest in the present context because, like Israeli
law, German law makes no use of juries for criminal trials.
German law remains faithful to the "balancing" theory, whereby
the relevance of the evidence is balanced against the harm to the defendant40.
Hence, Germany has several exclusionary rules that distinguish between different
kinds of evidence:41 (1) Evidence which was obtained by using cruel measures must
be excluded as a matter of protecting judicial due process; (2) evidence which
was not obtained by using cruel measures must be examined to determine whether
its admissibility violates the defendant's right to privacy under the
specific circumstances; and (3) evidence which was obtained unlawfully but not
unconstitutionally may be excluded at the court's discretion under the
totality of the circumstances.
In this context, it is worth mentioning the following recent and highly controversial
case. When a child had been abducted, the vice-president of the Frankfurt police
force, believing that this was the last resort to save the child's life,
had threatened the use of violence against the main suspect unless he revealed
the place where the child was hidden. Under the impression of this threat, the
suspect, who in fact had already killed the child, led the police to the place
where the body was hidden. The Bundesgerichtshof (Federal Court of Justice)
upheld the conviction of the offender on the ground that he had repeated a confession
after having been informed that the use of his previous confession might be
unsafe42. The case is presently pending before the European Court of Human Rights43.
The police officer was recently convicted by a criminal court for his unlawful
threat of torture44.
When sifting the insights we may have gained from this comparative inquiry45,
The following deserve particular emphasis: (1) All four of the above jurisdictions
have acknowledged the importance of a constitutional analysis for our particular
legal problem, and consequently the need to modify the rules of evidence in
the light of constitutional law, and that in spite of the jurisprudential differences
that may exist between those legal systems46. (2) US law provides us with a remarkable
rule of "Judicial Integrity," according to which courts must refrain
from affirming unlawful actions committed by other governmental bodies. (3)
German law represents the outstanding balancing theory, demonstrated by the
principle of proportionality, namely balancing the relevance of the evidence
against the harm this might do to the defendant's right to fair trial.
(4) Notably, English law, Canadian law, and German law formulate several considerations
which the court may consider in making its determination over the admissibility
of unlawful obtained evidence.
With these four insights, let us now examine the extent to which these have
influenced the Israeli Basic-Law, as well as the extent to which these may take
place in outlining my theory as to the Israeli constitutional mechanism in solving
the dilemma at stake.
V. The Exclusionary Rule of Basic-Law: Human Dignity and Liberty -
The Story of the Lost Child
The Israeli Basic-Law: Human Dignity and Liberty limits the discussion on the
exclusionary rule to a specific constitutional mechanism rather than to general
constitutional analysis. That is, no governmental branch is allowed to infringe
on any constitutional protected right unless such infringement is covered by
the Limitation Clause. Whereas the traditional analysis focuses on the police
action as violation, I will focus on the trial court's action of admitting
unlawfully obtained evidence. Whereas the traditional analysis focuses on general
individual rights, such as privacy and liberty, I will focus on a specific procedural
right, ie due process. Finally, whereas the traditional analysis grants
the court discretion to exclude unlawfully obtained evidence in extreme circumstances,
I argue that such discretion is subject to the elements of the Limitation Clause,
and must be applied accordingly. This is an entirely new point of view in the
In the Israeli literature, the arguments are basically divided into two defined
categories; systemic arguments (arguments that concern the reputation of the
judiciary and other systemic concerns) and non-systemic arguments (arguments
derived from substantive law or normative analysis).
A. Non-Systemic Arguments
The first line of normative theory focuses on the interest in revealing the
truth, which is supposedly achieved only by examining the truthfulness and the
reliability of the evidence. Under this approach, no truthful and reliable evidence
should be excluded, even if unlawfully obtained. The authorities' actions
would be examined in separate proceedings - for example by way of disciplinary
procedures47, or civil lawsuits for compensation, or even criminal proceedings.
The opposing normative argument emphasizes that the main rationale for the
poisonous fruits evidence theory is to deter the authorities from violating
constitutional norms that protect human rights. In other words, if courts exclude
unlawfully obtained evidence, the police authorities are unlikely to obtain
evidence by unlawful means in the future, simply because such evidence will
Doron Menasheh48 opposes this argument, alleging that the poisonous fruits evidence
theory is ineffective, since by the exclusion of the poisonous evidence, the
authorities will be standing again at the same point from which they began:
the poisonous evidence will not be before the trial court, namely there is no
incentive to avoid unlawfully obtaining evidence, as if the court accepts such
evidence, then the prosecution is in an advanced position in trial, but if the
court excludes such evidence, then it is just that the trial starts from the
point where which it was initially supposed to start from. Moreover, the evidence
will not be excluded every time. In this situation, the authorities have no
incentive to avoid submitting the poisonous evidence, but may instead decide
to obtain relevant evidence unlawfully, and take their chances with exclusion.
Therefore, Menasheh argues, adopting the poisonous evidence fruits theory will
not fulfil the rational of deterring the authorities.49
B. Systemic Arguments
The systemic arguments focus, in particular, on the principle of the "legitimacy
of the verdict" as grounds for excluding evidence where human rights have
been violated by the authorities. These arguments support, therefore, a rule
of exclusion rather than a rule that would attach less credibility to unlawfully
Under the "legitimacy of the verdict" principle, rationales of the
"judicial reputation" and the "judicial moral authority"
combine to support the basis for the poisonous fruits evidence theory. These
systemic arguments might be well grouped under the title of "The Imperative
of Judicial Integrity," as was stated by Justice Clark of the Supreme
Court of the United States in the Mapp judgment. This position was also
adopted by the Canadian Supreme Court51.
Article 11 of the Basic-Law: Human Dignity and Liberty requires all governmental
branches, including the judiciary, to respect the constitutional rights and
freedoms enshrined in the Basic-Law, except where such infringements are permitted
under the conditions of the Limitation Clause52. The Limitation Clause establishes
the ideal constitutional balance, in cases of confrontation between protected
interests and protected human rights53.
As previously discussed, both the legislature and the judiciary have showed
a keen interest in the 1992 constitutional revolution, each in their own way.
Sometimes this over-willingness led to constitutional panic, in which minor
but important points were lost in the general drive to re-value the law following
the passage of the new constitutional statute. Both paved their ways extremely
successfully toward the maxims of the "Basic-Law: Human Dignity and Liberty,"
but have yet to find the lost child, called the "Exclusionary Rule."
The Israeli academics made rational constitutional efforts, aided by comparative
methodology, trying to find the correct solution to this dilemma. Nevertheless,
the judiciary has to date not taken any serious step toward re-examination of
the Vaa'kneen rule in light of the new constitutional commitments.
However, although academics have moved one step in the right direction, they
have not found the lost child, located so brilliantly in the US by Justice Clark
in the Mapp case. In the Israeli context, the Basic-Law is the correct
normative frame for examining all kinds of violations of constitutional human
rights54. This is not just a general frame, but should also and particularly be
applied to the evidentiary status of unlawfully obtained evidence. The Israeli
Basic-Law expresses, even more clearly than the U.S. Constitution, a mandatory
constitutional exclusionary rule, or at least a mandatory constitutional balancing-exclusionary
rule. But we still need to take one step forward and bring the "lost child"
home. This is the main issue and provides the normative framework for the following
The traditional way of treating cases in which "poisonous evidence"
is involved is to focus on unlawful police conduct. This is what is done in
several other legal systems, and this is also the basic motivation of the Israeli
legal discussion. Yet this traditional focus on the role of police is fundamentally
lacking. The argument from deterrence, which asks whether the police have violated
constitutional rights by improperly obtaining evidence, asks precisely the wrong
question. Unlawful police conduct is not to be examined in criminal trials directed
at third parties; rather such conduct should be examined in separate judicial
proceedings. The critical governmental action to be examined is the conduct
of the court which admits unlawfully obtained evidence. As it was magnificently
demonstrated by the United States Supreme Court, as well as by the Canadian
Supreme court55, courts represent a very important and distinguished governmental
branch, and should not give their imprimatur to unconstitutional actions. By
confirming the admissibility of "poisonous evidence," the court
joins the police in their unlawful action. Such court decisions must themselves
be examined according to the constitutional normative framework of human rights,
that is, according to the Limitation Clause's conditions of the Basic-Law.
It is worthwhile mentioning that the prosecution does not have the right to
submit "poisonous evidence," neither is it finally responsible for
admitting such evidence; it has only its administrative discretion to ask the
trial court to admit the evidence. By confirming the admissibility of "poisonous
evidence," the trial court violates the defendant's constitutional
rights, not merely by doing nothing or simply by adding its seal to the unlawful
action, but rather by active confirmation through positive decision56. It should
be noted in this context that the focus should be on the unlawfulness of the
means by which any evidence provided before the court was obtained, regardless
of whether this evidence was obtained by violating the defendant's constitutional
rights, or by violating constitutional rights of another person whose testimony
is now submitted to the trial. By allowing the submission of any unlawfully
obtained evidence, the trial court violates the defendant's constitutional right
to due process. Therefore, it is not a mere question of "the imperative
of judicial integrity," as Justice Clark presented it, but rather an active
violation by the trial court, for which it must be treated the same as any other
governmental branch. This notion which had been developed by the Supreme Court
of the United States, and which was incorporated in article 11 of the Israeli
Basic-Law as a binding rule, prohibits also the judiciary from violating any
constitutionally protected right. Israeli courts are thus bound by statute to
respect all rights protected by the Basic-Law.
The impact of the Israeli constitutional revolution on criminal law -
especially on criminal procedures and evidence law - was to raise several
rights to a constitutional level. These rights were not all explicitly enshrined
in the Basic-Law, but have been incorporated by way of its interpretation. These
"unwritten" rights include the right to due process (or the right
to fair trial). If there were no constitutional right to due process, none of
its individual components can be protected, ie the right to counsel,
the right to cross-examination, the right to call witnesses, and similar other
rights. The right to due process in law is one of the major constitutional rights;
it is the soul of constitutional evolution in every legal system. The importance
of the right to due process is well emphasized in criminal law, where human
rights are most likely to be violated. Therefore, due process stems from the
Basic-Law, and a formalist construction of the Basic-Law would be methodologically
The only question that remains to be discussed, therefore, concerns the remedy
to which the defendant is entitled. Is it that "the criminal is to go
free because the constable has blundered," as Justice Cardozo famously
asked in the Defore57 case? Or is it that "we can no longer permit
that right to remain an empty promise," as Justice Clark announced in
the Mapp case?
This question involves delicate problems in criminal law, in constitutional
law, and in legal philosophy. As has been argued above, the establishment of
the Basic-Law requires a mandatory constitutional exclusionary rule for all
unconstitutional violations committed by any of the governmental branches, subject
to constitutional balances according to the Limitation Clause. Courts no longer
have any discretion whether to exclude "poisonous evidence" or not.
Once it has been established that evidence was unlawfully obtained, a court
is no more free to violate the constitutional rights of the defendant than the
police. It is only within the condition of the Limitation Clause that a court
can exercise some severely limited discretion.58
This leaves the possibility that evidence, although obtained unlawfully, is
nevertheless constitutionally admissible, but only if the trial court keeps
within the boundaries established by the Limitation Clause. Otherwise, the submission
of "poisonous evidence" violates the constitutional balances according
to the Basic-Law, and therefore must be excluded.
Examining the admissibility of "poisonous evidence" under the Limitation
Clause reveals a confrontation between the protected social interest of "revealing
the truth," and the defendant's constitutional right to due process.
On the one hand, the "truth revealing" interest is one of the fundamental
principles of any democratic and constitutional legal system. Nevertheless,
the notion of absolute interests or rights has been rejected; all interests
and rights must be protected relatively to other confronted interests or rights.
Yet the commitment of the courts to the truth-revealing function is inherently
limited. The court's obligation to reveal the truth is a limited commitment;
it is limited to the truth that can be derived from admissible evidence only.
This is an inevitable conclusion, as otherwise human rights are exposed widely
to unlimited violations, whereas the Israeli constitutional legal system, like
most constitutional legal systems, places tight restrictions on the infringement
of human rights. But even if I am being inaccurate in granting constitutional
definition or value to the meaning of the "Truth," still a normative
argument would support the same conclusion. That is, there is no guarantee that
the admissibility of "poisonous evidence" would reveal "factual
truth." In the absence of such a guarantee, it is obvious that the court's
main mission is to derive the "legal or judicial truth" from admissible
evidence, regardless of the reliability of "poisonous evidence."
Therefore, there are admittedly some circumstances in which a court's
desire to reveal the truth contravenes the defendant's right to due process.
Indeed, it may be the case that trial courts do not have the function to protect
the interest of deterring the police, who are subject to other proceedings.
Here, our complicated "dilemma" is limited truly to the thirty-one
words of the Limitation Clause59. As provided, the Limitation Clause establishes
four elements, which all must be met before the defendant's right to due
process may be infringed. The four elements required are: (1) that the authority
for such infringement be based on a statute; (2) that the action befits the
values of the State of Israel - central amongst them its Jewish and democratic
nature; (3) that the infringement be undertaken for a proper purpose; and (4)
that the infringement must be proportional.
It is perhaps conceivable that a court's admission of "poisonous
evidence" may under some extreme circumstances fit the values of the State
of Israel, and that the violation may be undertaken for a proper purpose -
revealing the truth.
Moreover, while, the authority for the infringement on due process must be
grounded in a statute, the Supreme Court of Israel has determined that such
statutory authority exists. The required anchor appears in the general statutory
authority for judicial review, as established in the Bank Hamezrahee
case60, as a due consequence of the legislation of the Basic-Law, namely the court's
authority to permit an infringement of human rights subject to the Limitations
Clause. This basis can also be found in the particular power established in
article 15 of Basic-Law: Judging, which grants the High Court of Justice the
authority to grant all kinds of remedies, including constitutional remedies,
solely as a matter of making justice.61
The last element established by the Limitation Clause is the proportionality
requirement, which was fully adopted from the German law62. The Basic-Law: Human
Dignity and Liberty states that the rights protected by it may not be infringed
upon to a degree that is greater than necessary. A similar proportionality rule
also applies to general human rights not encompassed in the Basic-Law, as established
by the judiciary. In recent years, this proportionality requirement stands at
the centre of discussions concerning the safeguarding of human rights in Israel.
This requirement also applies, under administrative law, to violations of protected
rights and interests that are not fundamental rights. It applies, directly or
by way of analogy, to the activities of all governmental authorities -
the legislative authority, the executive authority, and the judicial authority.
Proportionality is the most important of the four basic elements included in
the Limitation Clause, as it places the most significant and heaviest burden
on the governmental authorities. The principle of proportionality as applied
to the Basic-Law requires that the infringement shall be done proportionally;
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
On closer look, this is a group of principles. Under the influence of other
legal systems, Israeli jurisprudence has broken up the proportionality test
into three balancing tests, as this was originally developed by the German law64,
where a governmental action is rendered proportional only if it satisfies all
three. The first test requires that the action be appropriate for the attainment
of its purpose. If the measure taken does not contribute to the fulfilment of
the purpose in the way in which it aspires to, the infringement of human rights
is deemed unlawful. The second test requires that, from amongst the alternative
measures, which advance the fulfilment of the purpose, the measure chosen be
the one that infringes least upon the protected right or interest. The third
test requires that the action infringing upon protected rights or interests
be carried out only if there is a reasonable relationship between the benefit
that is derived from the action and the harm which attaining this benefit causes.
An action which results in a severe violation of a basic right, and whose purpose
- even if worthy in itself - carries only a minor significance,
is likely to be prohibited. This is a general test, which requires the overall
balance of harms to be generally reasonable.65
From this analysis, it becomes clear that the proportionality requirement is
the main element on which the dilemma of poisonous evidence turns. Based on
the three tests, which compose together the proportionality requirement, the
court itself must show that admitting poisonous evidence will help to reveal
the truth66; that "truth revealing" will be achieved solely by admitting
the "poisonous evidence;" that there are no other measures which
can be used for achieving this purpose, such as making only part of the "poisonous
evidence" admissible, or in other circumstances where the truth, namely
the legal/judicial truth, can be revealed without the "poisonous evidence,"
then exclude the "poisonous evidence" in those cases, and that there
is a reasonable relationship between the benefit that is derived from the action
and the harm which attaining this benefit causes. Thus if the admissibility
of the "poisonous evidence" is needed only to contribute to the
prosecution's evidence, rather than being critical for revealing the truth,
and of the defendant's constitutional right to due process is severely
infringed, then the evidence must be excluded. In applying the proportionality
principle, courts may rely on the experience of other leading constitutional
jurisdictions, including those discussed above, and accordingly consider some,
but not all,67 of the factors employed in these jurisdictions.
Finally, the "dilemma" of the "poisonous evidence"
is not anymore a matter of wide, general and independent judicial discretion
but rather a limited, directed and instructed judicial discretion, and therefore
there is no need for any further legislative action, since the solution to the
poisonous evidence problem is explicitly anchored in the Basic-Law. The Basic-Law
establishes a constitutional mandatory exclusionary rule, within the limits
established by the Limitation Clause. Where this Limitation Clause applies,
various remedies may be invoked, depending on the constitutional balance that
the court asserts. Therefore, in some cases the exclusionary rule will be absolute.
In other cases, the exclusionary rule will be partial. And there might also
be circumstances in which the "poisonous evidence" will not be excluded
at all. It is difficult to square these constitutional requirements with the
present practice of the Israeli Supreme Court to weigh unlawfully obtained evidence
as being more or less convincing. Courts cannot weigh evidence unless it is
admissible. Weighing evidence and admitting evidence cannot replace each other:
even where a court admits unlawfully obtained evidence under the Limitation
Clause; it may still find such evidence less reliable due to the manner in which
it was obtained.
I am aware that the approach which I propose, ie placing the conduct
of the trial court on the spot, involves sensitive issues. However, the Basic-Law
represents a fundamental commitment, which cannot be easily set aside on the
ground that complying with the law would make the work of courts more difficult.
It is mandatory not simply because it is part of the Basic-Law, but more importantly
because of the constitutional nature of that law.
Because you have listened to the voice of your wife, and have eaten of
the tree of which I commanded to you, 'You shall not eat of it,' cursed is the
ground because of you; in toil you shall eat of it all the days of your life;
thorns and thistles it shall bring forth you; and shall eat the plants of the
The dilemma of unlawfully obtained evidence presents essential challenges to
the basic historical, traditional, philosophical, and classical principles of
the Israeli legal system. It involves the essential and ongoing debate on the
relative importance of procedural law and substantive law, especially in criminal
law69. With respect to the poisonous evidence dilemma, this debate centres around
the recent enactment of the Basic-Law: Human Dignity and Liberty, which to some
extent had borrowed several constitutional concepts from some leading legal
systems, among them those of Canada, Germany, the United States, and England.
Such an import accounts not only for the formal structure of the Israeli Basic-Law,
but even more so for the incorporation of the right to due process (or fair
trial), the freedom of expression, and the right to equality in the Basic-Law,
even though these rights are not included in the Basic-Law. The same is true
for the adoption of the theory of balancing in the Limitation Clause, which
was expressly borrowed from the Canadian Charter70, and by incorporating the three
balancing tests of the proportionality principle, which found its origins in
German Law71. However, the Basic-Law has generated a substantive formula which
has changed the constitutional balance. One fascinating feature of this constitutional
influence is that no perpetual status of supremacy is granted to any right or
protected interest. Rather, temporary primacy is given, according to ad-hoc
scrutiny of the concrete circumstances of each case.
However, in my view, constitutional analysis, rather than normative, or comparative
analysis in itself, provides the answer to the thorny problem of poisonous evidence.
The comparative inquiry was of an utmost importance prior to 1992. Once, however,
the Israeli Basic-Law had been established as a result of a comparative survey,
Israeli law became independent, as it now had its own proper constitutional
mechanism. Therefore, in order to answer the thorny question of the permissibility
of unlawful obtained evidence, courts now have to employ Israel's own
constitutional mechanism as articulated by the Israeli Basic-Law. This does
of course not mean that the court may not draw lessons from the experience of
other comparative jurisdictions, especially in applying the proportionality
Such comparative studies would be beneficial, and such lessons might even be
drawn successfully giving the extent to which the Israeli law is affected and
thus resembles other jurisdictions. Like German law, Israeli law is not based
on a jury system. At the same time, Israeli law has successfully modified its
constitutional regime in light of those jurisdictions which enjoy a codified
constitution, eg the United States and Canada. And even though Israeli
law does not have a jury system, it has nevertheless made use of the experience
obtained by legal systems which use juries.73
Like the United Kingdom, Israel is one of the rare countries that are bound
by constitutionalism74 rather than by codified constitutional principles75. The
admissibility of "poisonous evidence," as a function of the desire
to reveal the absolute truth, cannot help but regard the defendant as a means
to the truth-seeking goal rather than as an end. This treatment of people as
means violates basic constitutionalist principles. However, I feel that the
principle of proportionality can provide a powerful tool for judicial review
in general, and for the protection of human rights in particular, and thus efforts
to further develop this touchstone principle and its application are needed
and will be extremely rewarding.76
The "Truth" is much more valuable than we imagine, and it is far
from being captured, it might be even more valuable than the truth that already
was found. The "Absolute Truth" is a priceless treasure, a biblical
theme, and it is Eve's evil willing to reveal it77.
The "absolute truth" is a diamond, well sharpener and well sharpened.
A truth which needs to be approved by others cannot be "absolute truth."
For "absolute truth," not even the consensus of all the cosmos will
add any unique value, just as its universal rejection will not detract any of
its unique value. Unfortunately, we have hitherto not been granted anything
like this absolute truth, as announced by Khalil Gubran: "Say not, "I
have found the truth," but rather, "I have found a truth.""78
This is the maxim that:
The new faith is that the truth must lie not with a doctrine
that takes the maximization of aggregate or average general welfare for its
goal, but with a doctrine of basic human rights, protecting specific basic liberties
and interests of individuals...79
This is what I would call Justice administrated according to The Law.
Shortly before publication of this article, the House of Lords handed down
its decision in A (FC) v Home Secretary.80 The question at stake was: "May
the Special Immigration Appeals Commission, a superior court of record established
by statute, when hearing an appeal under section 25 of the Anti-terrorism, Crime
and Security Act 2001 by a person certified and detained under sections 21 and
23 of that Act, receive evidence which has or may have been procured by torture
inflicted, in order to obtain evidence, by officials of a foreign state without
the complicity of the British authorities?"81 The House of Lords answered
clearly in the negative, holding that evidence which has been obtained by means
of torture is inadmissible in UK courts, regardless of whether it was obtained
by officials of a foreign state and outside of the UK territory.
This case provides several important insights for our discussion. It has an
utmost importance not only for British law, but also for other legal systems.
It should be mentioned at the outset that the case was decided by a panel of
seven Law Lords, and while they all agreed on the main question with the leading
opinion given by Lord Bingham, the others nevertheless all formulated concurring
opinions. Rather than analyzing those individual opinions, I will focus on the
general insights provided by the House of Lords. It is worth emphasizing, although
perhaps not surprising, that all of their Lordships agree that torture is a
For this, their Lordships relied inter alia on the Common Law, the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment
of 1984 (hereinafter: The Convention against Torture), and the European Convention
on Human Rights of 1950 (hereinafter: the European Convention).
Thus, the first important insight is this reliance on three different sources
(although not all of them were expressly mentioned by all of their Lordships),
ie: (a) the Common Law; (b) International Law; and (c) European Law.
This large view of the universal and the international grounds supports the
exclusion of unlawful obtained evidence not only in the UK but also in other
As to the Common Law, the position is well explained by Lord Bingham83:
it compels courts to reject evidence obtained under torture as unreliable, unfair,
offensive to ordinary standards of humanity and decency and incompatible with
the principles which should animate a tribunal seeking to administer justice.84
As to International Law, regard must be given to Article 15 of the Convention
against Torture, which provides that "Each State Party shall ensure that
any statement which is established to have been made as a result of torture
shall not be invoked as evidence in any proceedings, except against a person
accused of torture as evidence that the statement was made." It is worth
noting in the context that their Lordships enquired how other legal systems
applied Article 15, in particular by drawing on the experience made in the recent
German El Motassadeq case.85
Similarly, when discussing the prohibition of torture in Art. 3 of the European
Convention on Human Rights and how this would prohibit the use of evidence obtained
the House of Lords examined the application of this provision by some other
courts in Europe87.
A second theme which runs through this case even though not all aspects have
been mentioned by all of their Lordships, concerns two particular reasons for
not admitting such evidence, namely (a) the questionable reliability of such
and (b) maintaining the integrity of the judiciary. I will focus on the latter
issue because it coincides most with what I have discussed above. Lord Hoffmann
magnificently pronounced that if the purpose of the exclusionary rule is to
preserve the integrity of the judicial process and the honour of English law,
then the stain which is attached to such evidence will defile an English court
whatever the nationality of the torturer. Lord Hoffmann emphasized that there
is no doubt that the purpose of the rule is to uphold the integrity of the administration
This is not the place for a fuller analysis of A (FC) v Home Secretary.
The question remains, of course, how the above relates to Israeli law. Four
main points can be made:
(1) A (FC) v Home Secretary shows the importance of comparative inquiry,
especially in this filed of the law.
(2) The case accords special value, perhaps even dominant value, to the integrity
of the judiciary.
(3) The same case makes a significant contribution to a trend led by the common
law family, of which Israel is part, especially in the field of criminal law.
(4) The case relies on Article 15 of the Convention against Torture, which explicitly
declares evidence which was obtained by torture to be inadmissible. The same
Convention was signed by Israel on 22 October 1986, and its instrument of ratification
deposited on 3 October 1991.90
The House of Lords shows us how this Convention is to be taken serious.
It has been shown above that A (FC) v Home Secretary combines several
different approaches. For Israeli law, it is not only the outcome, and certainly
not every one of those different approaches which are most important. The most
significant aspect of this case from a comparative perspective is the general
view which it takes on our question. This is a wide, comparative, international,
and universal point of view. Such a wide view provides a deep insight on the
main purpose of the exclusionary rule, namely the integrity of the judiciary.
Israel has in the past benefited from comparative insight, and is affected by
international law. Israel is bound by the Convention against Torture, Israel
is part of the common law, and Israeli courts refer intensively to the experience
of other legal systems. In fact, Israeli criminal law is influenced by US, UK,
German, and Canadian law. For all these reasons, A (FC) v Home Secretary
deserves to receive special attention by Israeli law.
It may therefore be appropriate to end on the following note. In his opinion
in A (FC) v Home Secretary, Lord Carswell relied on a case decided by
the Israeli Supreme Court in 199991
which provides that "[a]lthough a democracy must often fight with one hand
tied behind its back, it nonetheless has the upper hand. Preserving the rule
of law and recognition of an individual's liberty constitutes an important component
in its understanding of security. At the end of the day, they strengthen its
spirit and its strength and allow it to overcome its difficulties". This
should also be the leading rule for the Israeli discussion on the theory of
the "fruits of the poisonous tree".
candidate, Columbia University Law School, specialized in comparative aspects
of criminal law and constitutional law. The author is most grateful to Justice
(ret.) Dalia Dorner, Professor George P. Fletcher, Professor Louis Henkin, Joshua
A. T. Fairfield, Judge Rosemary Barkett, Professor Emanuel Gross, Dr. Barak
Medina, Mr. Moshe Cohen, Mr. Luis Ernesto Chiesa Aponte, and Mr. Saif-Alden
Wattad. Without their advice and support none of this would have been possible.
All opinions and errors (and, if applicable, errors of opinion) are my own.
1 The constitutional
revolution was brought about by the adoption of two so-called basic-laws: Basic-Law:
Human Dignity and Liberty, and Basic-Law: Freedom of Occupation - both
were constituted in 1992. The constitutional status of Basic-Law: Human Dignity
and Liberty, as well as of the other basic-law, is based mainly on historical
analysis of the enactment of the Basic-Law. See: Civil Appeal 6821/93 Bank
Hamezrahee Ha-Meuohad v Megdal Kfar Shetufey, 49(4) P.D. 221 (Supreme Court
of Israel); The United States Supreme Court CJ Marshall's opinion in Marbury
v Madison, 1 Cranch, 5 U.S. 137 (1803); M. Shamgar, 'On the Written Constitution,'
9 Is L Rev (1974) 467 (See bellow, III).
Alon, 'Hoqi Ha-Yesod - Egoon Arakheha Shel Medinah Yehudet Ve-Democratit:
Sugeyot Be-Mishpat Ha-Plili' (in Hebrew) ['Basic-Laws - The Establishment
of Jewish and Democratic State Values: Issues in Criminal Law'] (1996) 13 Mahqarey
Mishpat 27, 79; Emanuel Gross, 'Trufot Hoqateyut' (in Hebrew) ['Constitutional
Remedies'] (1998) 4 Mishpat Ummimshal 433, 479.
3 Eliaho Harnon,
'Reayut She-Husgo She-Lu Ka-Den: Mabat Ha-Shvaa'tee' (in Hebrew) ['Unlawfully
Obtained Evidence: Comparative Perspective'], in Aharon Barak and A. Mazoz
eds., Sefer Landuy (in Hebrew) [Landuy Book] (2nd Vol, Borsee Tel-Aviv
Publishing, 1995), 983.
12 of the Evidence Order [New Version] of 1996 (Israel). See more: Criminal
Appeal 154/85 Abrushmey v The State of Israel, 41(1) P.D. 387 (Supreme
Court of Israel); Criminal Appeal 168/82 Muadey v The State of Israel,
38(1) P.D. 197 (Supreme Court of Israel); Criminal Appeal 183/78, 191/79 Abu
Medjem v The State of Israel, 34(4) P.D. 533, 539 (Supreme Court of Israel);
Eliaho Harnon, Deney Ha-Reayut (in Hebrew) [Evidence Law] (2nd Vol, The
Harry Sacher Institute for Legislation and Comparative Law, 1977), 252-4; Eliaho
Harnon, 'Arbaem Shanah Le-Seder Ha-Den Ve-Deney Ha-Reayut Be-Mishpateem Pliliem'
(in Hebrew) ['Forty Years for the Law Procedure and the Evidence Law'] (1990)
19 Mishpateem 703, 709-11.
13(A) of The Secret Listening-in Act of 1979 (Israel). See more: A. Shtain,
'Haa`zanat Seteir U-Maa`qaveem Aleqtroneem Nestareem Ke-Emtzaeey Le-Qedumah
Shel Haqirah Plilit U-Bethuneet,' (in Hebrew) ['Secret Listening-in and
Hidden Electronic Surveillances as Instruments for Developing Criminal Interrogation
and Security Interrogation,'] (1984-1985) 14 Mishpateem 572; N. Zaltzman,
'The Israel Approach to Evidence Obtained in Violation of the Right to Privacy'
(1983) 18 Is L Rev 215.
32 of The Privacy Protection Act of 1981 (Israel).
7 See: Muadey
(n 4) 262; Additional Hearing 9/83 (H.C.J. 249/82) The Military Court of
Appeal v Vaa'kneen, 42(3) P.D. 837 (Supreme Court of Israel); H.C.J. 3815,
316/90 Gelat v The Minister of Justice, 45(3) P.D. 414, 420 (Supreme
Court of Israel).
8 See: Muadey,
ibid, Criminal Appeal 480/85 Qurtam v The State of Israel, 40(3) P.D.
673 (Supreme Court of Israel).
Appeal 2286/91 The State of Israel v Ieluz, 45(4) P.D. 289, 304 (Supreme
Court of Israel).
v United States 232 U.S. 383 (1914) (US); Wong Sun v United States
371 U.S. 471(1963) (US).
11 (n 7).
12 On the
contrary, American law has adopted a mandatory exclusion rule. See below at
Appeal 161/77 Zohar v The State of Israel, 32(1) P.D. 326 (Supreme Court
of Israel); Criminal Appeal 260/78 Sleman v The General Attorney of Israel,
33(2) P.D. 204, 207 (Supreme Court of Israel); M. Ben-Zeav, 'Reayut She-Husgo
She-Lu Ka-Halakhah -Ha-Umnam Nefretza Ha-Derekh Le-Eqaron Ha-Bselah?'
(in Hebrew) ['Unlawfully Obtained Evidence - Was the Path Paved for the
Exclusionary Rule?'] (1980) 4 Ha-Braqleet 309, 318; Criminal Appeal
334/86 Sabah v The State of Israel, 44(3) P.D. 857, 864 (Supreme Court
of Israel); Criminal Appeal 16/82 Malqa v The State of Israel, 36(4)
P.D. 309, 318 (Supreme Court of Israel); On the contrary see: Criminal Appeal
553/82 (Various Applications 564, 565/83) Zakai v The State of Israel,
38(3) P.D. 57, 68 (Supreme Court of Israel).
Appeal 127/76 Baranes v The State of Israel, 30(3) P.D. 507, 516 (Supreme
Court of Israel).
Appeal 476/79 Bolus v The State of Israel, 35(1) P.D. 785, 801 (Supreme
Court of Israel).
Hearing 23/85 The State of Israel v Tobul, 42(4) P.D. 309, 357 (Supreme
Court of Israel); Aharon Barak, Shequl Daa't Sheputey (in Hebrew) [Judicial
Discretion] (Ppiruss, Tel-Aviv University Publishing, 1987), 502.
Vaa'kneen (n 7), 873; Criminal Various Applications 2145/92 The State
of Israel v Guatta, 46(5) P.D. 704 (Supreme Court of Israel); H.C.J. 355/79
Qatalan v The Prisons Service, 34(3) P.D. 294 (Supreme Court of Israel).
Appeal 951/80 Qaneer v The State of Israel, 35(3) P.D. 505 (Supreme Court
of Israel); Criminal Appeal 559/77 Mierey v The State of Israel, 32(2)
P.D. 180, 182 (Supreme Court of Israel).
11 of the Basic-Law: Human Dignity and Liberty (Israel).
Various Applications 537/95 Ganyimat v The State of Israel, 49(3) P.D.
355, 414 (Supreme Court of Israel); Criminal Additional Hearing 2316/95 Ganyimat
v The State of Israel, 49(4) P.D. 589 (Supreme Court of Israel). Even though
there were several opinions on this question, it was concluded by the majority
that the Basic-Law affects the interpretation of other statutes which were enacted
before the basic-statute. See more: H.C.J. 4541/94 Miler v The Security Minister,
49(4) P.D. 94, 138 (Supreme Court of Israel).
8 of the Basic-Law.
Dorner, 'Medatiyot' (in Hebrew) ['Proportionality'], in Aharon Barak
and Haim Berinzon eds, Sefer Berinzon (in Hebrew) [Berinzon Book] (2nd
Vol, Navo Publishing, Jerusalem, 2000), 281.
Barak, 'Ha-Constitutzhunelezitzya Shel Maa'rekhet Ha-Mishpat Be-A'qvout Huqi
Ha-Yesod Vehashlakhoteha a'l Ha-Mishpat Ha-Plili (Ha-Mahotee Ve-Hadeyonee)'
(in Hebrew) ['The Constitutionalism of the Judicial System in Consequence of
Basic-Laws and its Sequences on Criminal Law (The Substantive and the Procedural']
(1996) 13(1) Mahqarey Mishpat 5, 24.
Harnon, 'Reaut She-Hosgo She-Lu Kadeen - Haeem Heshtanah Ha-Matzav
Ha-Mishpatee Beaqvot Huq-Yesus: Kvod Ha-Adam Ve-Heruto' (in Hebrew) ['Unlawfully
Obtained Evidence - Was the Legal Status Changed in Consequence of the
Basic-Law: Human Dignity and Liberty'] (1996) 13 Mahqarey Mishpat 139,
25 See also:
Aharon Barak, 'Ha-Mahpekhah Ha-Hoqatet: Zkhoyut Yesud Moganout' (in
Hebrew) ['The Constitutional Revolution: Protected Basic Rights'] (1992) 1
Mishpat Ummimshal 9.
could be achieved either by an amendment to the Evidence Order, or by adding
a specific article to Basic-Law: Human Dignity and Liberty.
27 (n 2).
28 (n 2).
Ashworth, 'Excluding Evidence as Protecting Rights' (1977) Crim L Rev
30 232 U.S.
383 (1914); People v Cahan 282 p.2d 905 (1955).
v Colorado, 338 U.S. 25 (1949).
Elkins v United States, 364 U.S. 206, 222 (1960). See also: Dissenting opinion
of Justice Brandies in Olmstead v United States, 277 U.S. 438, 485 (1928),
George P. Fletcher and N. Baldwin, Jr., 'Due Process and the Exclusionary Rule
- Integrity and Justification' (1987) 39 University of Florida L Rev
505, 525-31; United States v Leon 468 U.S. 897 (1984); Rakas v Illinois
439 U.S. 128 (1978); Minnick v Mississippi (1990) 112 L. Ed. 2d 489;
R. Penner, 'Illegal Obtained Evidence and The Right to Privacy: Some Policy
Considerations', Aspects of Privacy Law: Essays in Honour of John M. Sharp
(ed. D. Gibson, Toronto, 1980), 353-4; R. R. Price, "Of Privacy and Prisons",
Aspects of Privacy Law: Essays in Honour of John M. Sharp (D. Gibson ed., Toronto,
1980), 375-401; Wolfish v Levi 439 F. Supp. 114 (1977); Wolfish v
Levi 573 F. 2d 118 (1978); Rochin v California 342 U.S 165 (1952);
H. Gross, Privacy - Its Legal Protection (New York, 1964), 69;
P.A. Dionisopoulpus and C.R. Ducat, The Right to Privacy: Essays and Cases
(St. Paul, 1976) 101.
33 367 U.S.
643, 660 (1961).
v Sang  All ER 1222, 1229 (HL).
35 M. Zander,
The Police and Criminal Evidence Act 1984 (London, 2nd edn, 1990), 201-7.
(FC) and Others v Secretary of State for the Home Department  UKHL
accessed 26 October 2005.
v Wray  S.C.R. 272, 11 D.L.R. (3d) 673.
v Collins  1 S.C.R. 265, 283-4, 38 D.L.R. (4th) 508; Elman, 'Retuning
to Wray: Some Recent Cases on Section 24 of the Charter' (1988) 26 Alberta
L Rev 604.
Bradley, 'The Emerging International Consensus as to Criminal Procedure Rule'
(1993) 14 Michigan J of Int'l L 171.
Bradley, 'The Exclusionary Rule in Germany' (1983) 96 Harv L Rev 1032.
42 BGH 21.5.2004,
2 StR 35/04, see link.
no. 22978/05, Gäfgen v. Germany.
44 LG Frankfurt
19.12.2004, see link.
45 It is
remarkable that all four discussed jurisdictions are of utmost importance for
the Israeli law. The English Law has always been a legal source that the Israeli
Supreme Court referred to. In the recent decade, the American Law and the Canadian
Law have been widely cited by Israeli Justices. Recently, the Israeli Supreme
Court, in particular CJ Aharon Barak, has been referring to German Law, especially
as to the intersection between criminal law and constitutional law. A good illustration
for a wide reliance on these four comparative jurisdictions, see for example:
Criminal Appeals 4424, 4713, 4779/98 Selgado Et Al v The State of Israel,
56(5) P.D. 529 (Supreme Court of Israel).
that unlike the United States, Canada, and Germany, the United Kingdom has no
written constitution. Note also that unlike the American, the Canadian, and
the English legal systems, the German law does not rely on a jury system.
Alon (n 2), 79-83.
Menasheh, 'A'l Header Ha-Samkhout Le-Shemoosh Be-Kouh Letsorekh Hepos bnemee'
(in Hebrew) ['The Absence of the Authority to Use Power for the Purpose of Internal
Search'] (2003) 6 Mishpat Ummimshal 619; Doron Menasheh, 'Le-Mahouto
Ha-Logit Ve-Hanurmatevit Shel Sea'eef 11 Le-Huq Seder Ha-Den Ha-Plili (Samkhoyout
Akhefah - Hepos Be-Gouf Ha-Hashoud) - 1996' (in Hebrew) ['The
Logic and Normative Essence of Article 11 of the Criminal Law Procedures (Enforcement
Authorities - Search in the Suspicious Body) - 1996'] (2002) 2
Qeriat Ha-Mishpat 295.
M. Sevilla, 'The Exclusionary Rule and Police Perjury', (1973) 11 San Diego
L Rev 83.
v Cross  19 ALR 641 (HC) (UK).
Mapp v Ohio 367 U.S. 643 (1961) (US). See more: The Canadian Charter
of Rights and Freedoms, 1982, Section 24; R v Jacoy  1 WWR 354
Article 8 of Basic-Law: Human Dignity and Liberty (Israel).
53 We saw
above such a balancing approach in German law.
54 (n 51).
55 (n 50).
New York Times Co. v Sullivan, 376 U.S. 254 (1964) (US).
v Defore, 242 N.Y. 13, 21 (1926) (US).
58 To some
degree, this position resembles the English law, which entitles courts wide
discretion for excluding unfair evidence.
59 By this
I mean the confrontation between the right to due process and the interest in
61 On the
one hand, article 15 of Basic-Law: 'Judging' entitles courts with the power
of granting the defendant the remedy of excluding unlawfully obtained evidence,
but on the other hand it entitles the court the power of granting the prosecution
the permission to submit unlawfully obtained evidence. It is interesting to
examine the question in the second situation, since this power is anchored in
a basic-law and sits in contrast to the court's requirement to protect
human rights according to Basic-Law: Human Dignity and Liberty. Here we have
an interesting confrontation between two basic-laws, and the question is: Who
will be on top? I will leave this discussion for a separate legal research.
63 To the
best of my knowledge, the three balancing tests of the proportionality principle
were originally developed by the German Federal Constitutional Court in BVerfG
7.4.1964, BVerfGE 17, 306. The proportionality principle was developed by F.
G. Jacobs, 'Recent Developments in the principle of proportionality in European
Community Law' in E. Ellis, The Principle of Proportionality in the Laws
of Europe (Oxford, 1997). Addressing the German origins of the proportionality
principle, see: Labor Appeal 30035/97 The State of Israel v Nahary, 35
P.D.L. 318 (Highest Labor Court of Law of Israel); Yitzhak Zamir, 'Ha-Mishpat
Ha-Minhalee Shel Israel Be-Hashvaah La-Mishpat Ha-Minhalee Shel Germany'
(in Hebrew) ['The Israeli Administrative Law in Comparison with the German Administrative
Law'] (1994) 2 Mishpat Ummimshal 109.
Dorner (n 22).
66 I refer
to the legal/judicial truth.
these factors which meet the nature of the proportionality principle as articulated
in the Israeli Basic-Law.
Appeal 1/48 Sylvester v The General Attorney of Israel, 1 P.D. 5 (Supreme
Court of Israel); Criminal Appeal 321/62 Cohen v The General Attorney of
Israel, 17(2) P.D. 846, 851 (Supreme Court of Israel); Criminal Appeal 164/62
Deyament v The General Attorney of Israel, 16(4) P.D. 2359, 2362 (Supreme
Court of Israel). See also: Civil Appeal 227/62 Hakhmey v The State of Israel,
17(1) P.D. 141, 150 (Supreme Court of Israel); Additional Hearing 6/60 Barukh
v Autolngey, 14 P.D. 771, 772 (Supreme Court of Israel).
2 of the Canadian Charter.
71 (n 62).
72 (n 65).
73 See for
instance: Criminal Appeal 5031/01 Plonit v The State of Israel, 57 (6)
P.D. 625 (Supreme Court of Israel).
Elections Appeal 1/65 Yrdur v Chairman of the Elections Central Committee
for the Sixth Knesset, 19(3) P.D. 365, 391 (Justice Yual Zussman) (Supreme
Court of Israel).
obligation is enforced through the Supreme Court's power to interpret
statutes in accordance with the constitutional nature of the Basic-Law, rather
than in accordance with the words of the Basic-Law.
Dorner (n 22).
Khalil Gubran, 'On Self-Knowledge' in The Prophet (Alfred A. Knopf,
Inc., 1923), 54.
Hart, 'Between Utility and Rights' (1979) 79 Colum L Rev 828, 828 (emphasis
(FC) and Others v Secretary of State for the Home Department  UKHL
Bingham, para. 1.
that the House of Lords, remarkably, relied not only on the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, but also
on the pre-Convention US case Filartiga v Pena-Irala, 630 F 2d 876 (1980).
See: Ibid., para. 37.
84 See also
the opinions of: Lord Hope, para. 112, and Lord Carswell, para. 152.
of the Higher Regional Court of Hamburg, 14 June 2005, para 2. See: Lord Bingham,
para. 37. See also and compare: Lord Hopp, para. 122-5, and Lord Rodger, para.
Bingham, Para. 37.
the Supreme Court of the Netherlands, see: Pereira, 1 October 1996, nr
103.094, para 6.2.
Lord Bigham, para. 11-7, Lord Careswell, para. 147, and Lord Brown, para. 161.
Compare: Lord Rodger, para. 130.
Hoffmann, para. 91.
90 The Convention
entered into force on 2 November 1991. Israel has never made any reservation
on Article 15.
5100/94 Public committee Against Torture in Israel v The State of Israel,
53 (4) P.D. 817, 842-3 (Supreme Court of Israel).
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