Fruit of the poisonous tree

Fruit of the poisoned tree ( fruit of the poisonous tree ) is a metaphor of the judge Felix Frankfurter, with whom he established a landmark judgment of the Supreme Court of the United States 1939. This decision established in U.S. law a broader prohibition on illegally obtained evidence. Fruit of the poisoned tree called since a rule of customary law for the criminal trial, the legal principle is also applied in Germany in four specific cases.

The figure of speech according to criminal investigation bodies may in cases of suspected a source of evidence suggest ( tree), which can lead to solving the case and evidence in legal proceedings ( fruits). However, if they access it without having to observe constitutional criteria, make this evidence unusable, so they poison the tree. Once secured, this faulty evidence may not be used to circumvent the already injured bids and to identify further evidence, because this new evidence is flawed and not used in court. You are unpalatable to the rule of law as a fruit of the poisoned tree.

3.1 Formal statements
3.2 Substantive statements

4.1 exceptions
4.2 Gutglaubensgrundsatz
4.4 The case of United States against Ceccolini

5.1 System comparison ( digression ) 5.1.1 Absolute and relative prohibitions
5.1.3 Burden of proof and proof mode

5.3.1 Quasi-Fernwirkung/Fortwirkung
5.3.2 G10 cases
5.3.3 telecommunications interceptions by the Criminal Procedure Code
5.3.4 monitoring of dwellings ( Big bugging )

Background

The defendant Frank Nardone was sentenced at an earlier method which has been examined by the Supreme Court: In the first trial, he was convicted of smuggling alcohol, after federal officials had tapped his phone lines. The conviction was overturned by the Supreme Court, because the interception measure against the Telecommunications Act of 1934 violated and their results may not be used. The rules infringed translated simply by law to the Fourth and Fifth Amendment.

Back Referred to the first instance, was again indicted, this time not because of alcohol smuggling, but because of tax fraud that resulted from the smuggling operations. Thus, the prosecution shifted not only the factual basis of the complaint made, but also changed the legal point of view from which they raised him. Therefore, the trial judge found himself because of the old calculation error on a verdict not prevented, because it is time for a tax offense concerned and other evidence and facts have been named.

Past trends in jurisprudence ( digression )

The fruit of the poisoned tree throw on a legal issue that was evaluated, inter alia, the standard of the Fourth Amendment to the U.S. Constitution. The fundamental right to protection against arbitrary measures of investigation of the state as arrest and search is rooted in the tradition of the British Habeas Corpus Act, and will not only ensure the personal freedom of the citizen, but also protect him against self-incrimination and is closely related to the claim together on fair trial.

Exclusion or barrier principle

In 1914, the Supreme Court therefore decided to enforce the fundamental rights that if investigative bodies by unlawful arrest, improper search or willensbeugende survey methods gain evidence, these are excluded from the recovery in a process ( exclusionary rule ).

The case Silverthorne against USA

In 1920 became apparent that the court does not want to remain there to lock only individual unlawfully obtained evidence for further evidence, but everything that has been obtained from them:

" The essence of a commission forbidding the acquisition of evidence in a Certain Way is not Merely evidence did so -acquired Shall not be used before the Court but did it Shall not be used at all Of course this does not mean the facts did Malthus Obtained become sacred and inaccessible. If knowledge of them is Gained from at independent source Proved They 'may be like any others, but the knowledge Gained by the Government 's own wrong can not be used ... "

"The meaning of a provision to prohibit the profits of evidence in a certain way, is not merely that such a proof of acquired shall not be used in court, but that he must not be used. Of course, this does not mean that the facts thus acquired would be untouchable and inaccessible. If you otherwise and independently of this came to their attention, they can be claimed - as everyone else. The findings obtained by the injustice of the law enforcement agencies, but can not be used. "

The decision

The Supreme Court reversed the second conviction of the accused and developed its case law on the effect that the shortcoming of illegally obtained evidence has a long-range effect, and specific purpose procedural enforcement mechanisms of the graded pleading and burden of proof:

" The burden is, of course, on the accused in the first instance to prove ... that wire -tapping which unlawfully employed. Once did is established ... the trial judge must give opportunity, HOWEVER Closely confined, to the accused to prove a substantial portion did of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court did its proof had an independent origin. "

" First, the burden of proof is on the defendant to prove, of course ... that the interception of his telephone was held unlawful. Once this is established ..., the trial court the defendant must, though to a limited extent provide an opportunity to further demonstrate that to a considerable degree the run against him is a fruit of the poisoned tree. This gives the prosecution a reasonable opportunity to convince the trial court that its proof had an independent origin of it. "

Formal statements

An examination of the formal legality of criminal convictions played no significant role.

Substantive statements

In material terms, the o a principles are classified as follows:

In a first step, courts have the exclusion or blocking principle ( exclusionary rule ) have already been developed to apply. After that evidence illegally obtained shall not support the accusation accusation. Criminal courts must recognize the remaining evidence in the verdict. Already in the taking of evidence, the court may not allow faulty evidence are presented.
Will argue that some of the remaining evidence of product knowledge are faulty evidence (fruit of the poisoned tree), the accused, he must prove the causal or other connection.
The prosecution may commence a counter-evidence that they would have come to the remaining evidence without the erroneous information, in particular to show more determination pathways that are unaffected by the method error, so a clean way (clean path).

Consequences and further developments

Exceptions

Exceptions to the exclusion and barrier principle also apply to fruit of the poisoned tree. The Supreme Court also determined that the exclusion principle does not apply in the following situations:

In parole procedures or processes whose object is the revocation of early release prisoners
In tax matters
In deportation proceedings
When government officials outside the U.S. to win and / or secure evidence
If a private person ( without connection to the executive) wins the evidence and / or secure
If the defendant decides to testify in his own method - he can according to U.S. law - so fruit of the poisoned tree can be used, but limited to shatter his credibility and the credibility of his testimony.

Gutglaubensgrundsatz

If a judicial determination arrangement such as canceled an interception or search warrant after obtaining evidence or to them leading insights, because she has been erroneous, the findings of the investigating bodies may nevertheless be used, if they acted in good faith and entitled to the balance of Investigation Order familiar ( good faith rule ).

However, this principle does not apply,

When determining arrangement is formal and legally flawed, as this good faith per se preclude
When the EIO not accurately referred to the investigating subject
When investigating bodies act fraudulently and thereby obtain an EIO.

The case against Wong Sun USA

1963 clarified the Supreme Court, the doctrine of the fruit of the poisoned tree in terms of how closely in this sense, the connection between tree and fruit should be - that is, the relationship between the faulted primary evidence and secondary evidence - and as is procedurally implement. Accordingly, the trial judge must determine at or already recognizability of a faulty primary evidence which is not based in accordance with the exclusion principle the accusation accusation investigate itself, under what circumstances now put forward secondary evidence were recovered. He must examine in a separate hearing process without a jury happened the transmitted sequence determination whether an otherwise existing causal determination approach led to the secondary evidence. What is needed is a positive result that other sufficiently different means of prosecution bodies have promoted the secondary evidence to light.

Only after this addition process, the regular evidence - be made - possibly before a jury.

The case against U.S. Ceccolini

In 1978 the court ruled again on the connection between the fruit and the poisoned tree. The trial judge also has to examine whether from quantitative - was solved reasons, the relationship between the faulted primary evidence and secondary evidence - v. a time.

In this case, the evidence against the accused in law were not considered because a prosecution witness was a year earlier arrested and interrogated illegally. Months after his release, he was interviewed again without a thematic relationship had been established with the arrest. Exist at the quality of this second statement, no concerns because they had neither a new willing diffractive context ( and the exclusion principle could not be relevant ), nor the witness felt by its previous submissions predetermined. The incriminating statement was therefore neither a poisoned tree nor its fruit.

Legal situation in Germany

System comparison ( digression )

In Germany fruit of the poisoned tree are discussed distance effect or extended exclusion of evidence prohibition also under the key words. While the German criminal procedure is designed without parties and as only objective truth exploration by the state ( ex parte), where the defense has mandatory participation rights, subject to the criminal in the United States as a party to the process of free and consensual disposition of the parties and relies on the so-called procedural conception of truth back: When true is not what happened objectively, but the Proven, but also what agreement between the parties exists. This difference is due not least to the fact that the German legal system classifies the entire criminal law as a branch of public law and related constitutional requirements in addition exposes, while American law simply criminal and civil process known as traditionally formed process (inter partes). In German law, therefore, a complex a system of role understanding of the process involved has emerged, with the corresponding proof theory.

Framework of the German criminal law is the monopoly of power that sees the state as the doer. As a derivation of the monopoly of power, the enforcement of state criminal claim, therefore, is an equally public task as the protection of the accused. A criminal with such a holistic approach can not be implemented in a party dominated proceedings in which the process material is disposable. It is therefore easier for process participants to extend the scope determination as to limit it. Decision -supporting this process material is not in its full width, it can be considered only in the context of the statutory offense and sentencing rules (see also analogy ban). For proof, prohibitions, this means that they are allowed only in specialized form.

In Germany, a distinction among different aspects following proof prohibitions, whereby these groups do not exclude each other:

Evidence bans (already the extraction is prohibited ) Evidence topic bans - Item is irrelevant to criminal proceedings or can not be determined, for constitutional reasons, so a breach always leads to a prohibition on the use
Evidence bans - one of the four specific evidence may not be used, the others are allowed
Methods of proof prohibitions - prohibits certain methods of obtaining evidence, such as torture (eg kidnapping J. von Metzler )

Relative and absolute - dependent on the consent of the accused after the termination of the infringement
Independent ( from a survey prohibition derived ) and dependent ( evidence was lawful in itself, a prohibition on the recycling results, for example, for constitutional reasons )

Roughly speaking, German law does for determining error compensation in the legal consequence saying before, the American law, however, the cassation of the total source of evidence: In the U.S., the doctrine of the fruit of the poisoned tree ultimately acts in both directions between evidence recovery and evidence gathering bans, and, accordingly, at their concatenation. In Germany, a prohibition on the use basically leads to a survey prohibition, but the converse is not true: From a survey ban a recycling ban does not automatically follow. Therefore, a long-range effect is such not recognized: Prohibition of exploitation → elevation → Prohibition Prohibition of exploitation, etc. (see below).

Absolute and relative prohibitions

Discovery rules have a dualistic character: they are the equal participation of the accused as a quasi- Mitaufklärer secure (participation aspect ) and the investigation solely on factual evidence relevant and quality limit (quality aspect). Is a measure of investigation, moreover, they can independently and be challenged immediately and for the parties to the taking of evidence at the trial not to be seen.

Certain evidence bans have therefore in the first case a relative component, which depends upon whether in the event of a rule violation, the protected party to the proceedings at a later stage be sent in writing to the recovery and thus ultimately exercises its freedom of disposition. This is especially the case for violations of § 55, § 136, § 163a Code of Criminal Procedure ( CCP), ie as a protection against self-incrimination ( nemo tenetur se ipsum accusare ).

Proof prohibitions, however, ensure the quality of the evidence, apply absolutely and on a consent of the accused, it does not matter. These are mainly bans illegal interrogation methods such as abuse, deception, hypnosis, coercion, threats and the like. ( § 136a Code of Criminal Procedure ). At most, violations can be "cured" by - if possible - the proof will be charged regular compliant again.

The "Not at all " argument in the case of Silverthorne against USA is not alien to German law. Investigative acts are always fundamental rights onerous government intervention and require an additional public justification (see also subject of the law, prohibition of abuse ). The Code of Criminal Procedure compliant truth research finds there its extreme limit, where the state criminal claim of individual interests is limited. Here is the formula: No truth at all costs. This is especially the case with heavy interventions in the general personal rights of the accused (so-called core area of private life ). In that regard, unwritten, but potent evidence bans from constitutional principles have developed, which are measured at the scale of the so-called three - sphere theory - such as diary entries.

Burden of proof and proof mode

Unlike in the U.S., the defendant is generally based on the Code of Criminal Procedure no-evidence burden: he relies on detailed estimation error, he does not need them to prove. Also, do not we need a proof application, since such aspects of its own motion shall be tested. However, he makes the request, investigative bodies and the trial court are subject to it and have to explore the facts - § 163a, Section 2, § 244 Code of Criminal Procedure. The court examined estimation error in the free proof. The principle benefit of the doubt is not regarded. If the violation is not proved, the evidence is recyclable.

State of opinion in jurisprudence

Because of these differences between systems is the doctrine of the fruit of the poisoned tree in German legal practice - not recognized while she finds approval according to the prevailing jurisprudential opinion - up to individual cases:

According to the jurisprudence of the Federal Court applies in principle no action at a distance: A breach of procedure may not terminate the entire investigation and lead to the abandonment of the goal of truth exploration. The test of a "clean way" is perceived as arbitrary and both in an investigation hypothesis and on the price actually happened transmitted investigation process. A remote effect targets its primary objective to discipline investigative bodies and any violations from the outset to fail of success. This is - unlike a party process - not necessary, since the Code of Criminal Procedure, a prosecutor conceive as the " most objective authority in the world", which is also found in favor of the accused and the process results and an action must do remedies for him.
After the counter- opinion should in principle apply action at a distance because of the risk of circumvention of evidence prohibited, unless the evidence would have been most likely also obtained lawfully. Particularly critical in the disciplining argument is seen as circular reasoning according to the pattern " Because it can not be, what must not be": Would the organs of a well- functioning justice require no discipline, there is no objection to discipline - hedging mechanisms. You never would anyway apply.
Occasionally, a trade-off is proposed on the ratio between the weight of the offense and the severity of the crime.
Another opinion suggests an action at a distance in front as far as the scope of the violated norm is sufficient, and thus ultimately refers to the so-called legal system theory.

Exceptionally application of the doctrine of the fruit of the poisoned tree

The fundamental rejection of the doctrine of the fruit of the poisoned tree knows the following main exceptions:

Quasi-Fernwirkung/Fortwirkung

In cases of quality-oriented illegally obtained as in § 136a Code of Criminal Procedure, a quasi - long-range effect is recognized when a detection error is not continued, but its results are held to the accused and he under the influence of which leads to further evidence (Fort effect).

Trial: In violation of § 136a Code of Criminal Procedure, the court at the trial must first determine this, then explore its own motion whether and how far it has continued to be felt, which is the range of the evidence that would be described as a poisoned tree. To this extent there is a recovery indisponibles ban, due to lack of evidence quality. However, the court may, after a so-called qualified instruction of the accused, that is, on the unexploitability of date in violation of § 136a of the Code of Criminal evidence obtained, hear the accused again and then use a performance- forming confession. Fruits, consisting of evidence that have been obtained in violation of § 136a Code of Criminal Procedure, but are usable in legal practice.

Ermittlungs-/Zwischenverfahren: however, durations investigations are still on and more evidence finds possible, an investigating magistrate or prosecutor has to end the lingering effects of the infringement and an erroneous image when the accused and the defense, for example by an appropriate instruction on the unexploitability to removed in order to allow a rule-compliant stock reassessment of the evidence or other submissions, as in a case or the U.S. against Ceccolini. However, only an effective - temporal and thematic - break interrupts this continuous effect and leads to usable evidence.

G10 cases

If intelligence agencies secretly determine in accordance with the G10 - law and go beyond this authorization, there is a long-distance effect for fruit of the poisoned tree. An exception is at best when they encounter this investigative leads offenses other than the suspected, which are also listed in the catalog for investigation after the G10 Act ( catalog offenses).

Telecommunications interceptions by the Criminal Procedure Code

Determines the prosecutor secretly (§ § 100a et seq Code of Criminal Procedure ) and absent in the investigative measures arrangement essential material conditions, so the insights gained by the case law of the Federal Court may not be used. This also applies to so-called incidental findings. However, the accused has expressly objected to a recovery of the relevant evidence in the proceedings. In a chain of telecommunications monitoring even every measure must be reported separately, a chain validation does not occur.

Surveillance of private premises ( Big bugging )

If a flat monitors, are particularly strict standards because they allow companies in the last refuge of a man penetrates and this can be justified at best of very serious offenses. If there is still here a detection error, is to reach for the jurisprudence of the Federal Constitutional Court, a distance effect. These requirements were inadequately implemented in two legislative attempts, so that they are not yet codified.

Versus James Clark McReynolds Louis Brandeis Pierce Butler (justice) Owen Roberts Hugo Black Stanley Forman Reed William O. Douglas Per curiam decision Custom (law) Indictment Search and seizure Right to a fair trial Monopoly on violence Federal Constitutional Court of Germany Black Site The Star Chamber Hamdan v. Rumsfeld

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