“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 | How to cite this article

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.***

I. Introduction

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 [2005] UKHL 71.

II. Constitutional Reform and Evidentiary Exclusion

A. General

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 coercive confessions4, 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 Literature

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 revolution.

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 balance.

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 values.

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 Clark stated:

[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 rule38, which 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.

E. Conclusions

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 Israeli discussion.

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 be excluded.

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 obtained evidence50. 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 discussion.

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 inappropriate.

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 means.63

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.

VI. Conclusion

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 field.68

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 principle72. 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.

VII. Postscript

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 prohibited practice82. 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 jurisdictions.

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 under torture86, 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 unlawful evidence88; 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 of justice.89

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”.

Endnotes

* Genesis Book, 3:1.

** Doctoral 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.

*** Genesis Book, 2:17-8.

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).

2 Menahem 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.

4 Article 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.

5 Article 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.

6 Article 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).

9 Criminal Appeal 2286/91 The State of Israel v Ieluz, 45(4) P.D. 289, 304 (Supreme Court of Israel).

10 Weeks 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 IVA.

13 Criminal 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).

14 Criminal Appeal 127/76 Baranes v The State of Israel, 30(3) P.D. 507, 516 (Supreme Court of Israel).

15 Criminal Appeal 476/79 Bolus v The State of Israel, 35(1) P.D. 785, 801 (Supreme Court of Israel).

16 Additional 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.

17 See: 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).

18 Criminal 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).

19 Article 11 of the Basic-Law: Human Dignity and Liberty (Israel).

20 Criminal 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).

21 Article 8 of the Basic-Law.

22 Dalia 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.

23 Aharon 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.

24 Eliaho 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, 150.

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.

26 This 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).

29 A.J. Ashworth, ‘Excluding Evidence as Protecting Rights’ (1977) Crim L Rev 723, 732-3.

30 232 U.S. 383 (1914); People v Cahan 282 p.2d 905 (1955).

31 Wolf v Colorado, 338 U.S. 25 (1949).

32 See: 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).

34 R. v Sang [1979] All ER 1222, 1229 (HL).

35 M. Zander, The Police and Criminal Evidence Act 1984 (London, 2nd edn, 1990), 201-7.

36 A (FC) and Others v Secretary of State for the Home Department [2005] UKHL 71.

37 See: http://news.bbc.co.uk/1/hi/uk_politics/4363254.stm; http://news.bbc.co.uk/1/hi/uk_politics/4347694.stm accessed 26 October 2005.

38 R. v Wray [1970] S.C.R. 272, 11 D.L.R. (3d) 673.

39 R. v Collins [1987] 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.

40 C.M. Bradley, ‘The Emerging International Consensus as to Criminal Procedure Rule’ (1993) 14 Michigan J of Int’l L 171.

41 C.M. Bradley, ‘The Exclusionary Rule in Germany’ (1983) 96 Harv L Rev 1032.

42 BGH 21.5.2004, 2 StR 35/04, see link.

43 Case 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).

46 Note 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.

47 Menahem Alon (n 2), 79-83.

48 Doron 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.

49 Charles M. Sevilla, ‘The Exclusionary Rule and Police Perjury’, (1973) 11 San Diego L Rev 83.

50 Bunning v Cross [1978] 19 ALR 641 (HC) (UK).

51 See: Mapp v Ohio 367 U.S. 643 (1961) (US). See more: The Canadian Charter of Rights and Freedoms, 1982, Section 24; R v Jacoy [1989] 1 WWR 354 (Canada).

52 See: 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).

56 See: New York Times Co. v Sullivan, 376 U.S. 254 (1964) (US).

57 People 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 revealing truth.

60 (Note 1).

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.

62 See: Infra.

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.

64 Ibid.

65 See: Dorner (n 22).

66 I refer to the legal/judicial truth.

67 Only these factors which meet the nature of the proportionality principle as articulated in the Israeli Basic-Law.

68 Genesis Book, 3:17-9.

69 Criminal 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).

70 Section 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).

74 See: 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).

75 This 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.

76 See: Dorner (n 22).

77 Genesis Book, 3:4.

78 Gubran Khalil Gubran, ‘On Self-Knowledge’ in The Prophet (Alfred A. Knopf, Inc., 1923), 54.

79 H.L.A Hart, ‘Between Utility and Rights’ (1979) 79 Colum L Rev 828, 828 (emphasis added).

80 A (FC) and Others v Secretary of State for the Home Department [2005] UKHL 71.

81 Lord Bingham, para. 1.

82 Note 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.

83 Ibid., Para. 52.

84 See also the opinions of: Lord Hope, para. 112, and Lord Carswell, para. 152.

85 Decision 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. 140.

86 Lord Bingham, Para. 37.

87 Eg: the Supreme Court of the Netherlands, see: Pereira, 1 October 1996, nr 103.094, para 6.2.

88 See: Lord Bigham, para. 11-7, Lord Careswell, para. 147, and Lord Brown, para. 161. Compare: Lord Rodger, para. 130.

89 Lord Hoffmann, para. 91.

90 The Convention entered into force on 2 November 1991. Israel has never made any reservation on Article 15.

91 H.C.J. 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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