Say what you will about the departing coalition government, on its last day in office, it managed to change decades of improper police action in getting testimonies and confessions from suspects: the Knesset plenum on Thursday approved in second and third reading a law to disqualify evidence obtained illegally, including defendants’ confessions.
Courts today tend to accept evidence obtained in violation of rights but give it less weight, dismissing them entirely only in exceptional cases. Anchoring the rules of disqualification of evidence in a Knesset legislation may affect pending criminal trials, most notably Benjamin Netanyahu’s trial, in which the defense raised many allegations of violating the rights of suspects and interrogated witnesses.
The law, initiated by Justice Minister Gideon Sa’ar, expands the discretion of the courts and the rule outlined in the case law regarding the disqualification of evidence, and provides that a judge may not accept a confession, an object, or any other evidence “if they are satisfied that the evidence was obtained unlawfully and that its admission at trial would infringe the right to a fair trial, with regard to the public interest in obtaining the evidence.”
The fruit of the poisonous tree is a legal metaphor used in US law to describe evidence that was obtained illegally. The logic of the terminology is that if the source (the “tree”) of the evidence or the evidence itself is tainted, then anything gained (the “fruit”) from it is tainted as well. The doctrine underlying the name was first described in Silverthorne Lumber Co. v. the United States, 1920, and the term’s first use was by Justice Felix Frankfurter in Nardone v. United States (1939).
The law was passed following the recommendations of a committee headed by retired Supreme Court Justice Edna Arbel, which debated the issue following a private bill submitted by MK Sa’ar in the 23rd Knesset. The committee recommended enshrining in legislation the rule authorizing the courts to disqualify evidence obtained illegally, and proposed that the law determine that a material violation of the right to a fair trial is required to allow for disqualification of evidence.
Israel’s Supreme Court addressed the issue in its 2006 Issacharov ruling which granted a soldier’s appeal to disqualify his confession about drug use that was made before he was told he was allowed to consult an attorney.
Prof. Gabriel Halevi from the Ono Academic Campus opposed the new law. He told Haaretz last year that “the ‘fruit of the poisoned tree’ doctrine was created in the United States at a time when whenever police officers saw a black man driving a car, it was clear to them that he had stolen it and they would beat him and get a confession out of him. But we are not there,” he claimed, an opinion he might change should he get to spend a few weeks in the Shin Bet’s dungeon.
Halevi insisted: “This bill basically wants to educate the police and tell the cops: you have to act legally,” to which we say, Amen to that, brother.