Viktor Bérces: Evidence in Criminal Proceedings
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Chapter V. The Anglo-Saxon system of evidence today
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5.3. Characteristics of the US evidence system
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5.3.4. Prohibitions on evidence
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5.3.4.3. Interpretation of the secondary exclusion rules in a case-law approach

5.3.4.3. Interpretation of the secondary exclusion rules in a case-law approach

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The secondary exclusion rules apply to cases where the competent authorities (courts) wish to use so-called “secondary” evidence that has become known on the basis of evidence obtained unlawfully.1 Two basic principles have emerged in US jurisprudence regarding their legal fate:

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  1. Under the “fruit of the poisonous tree doctrine”, the use of both unlawful evidence and evidence obtained as a result of the unlawful use is prohibited. The doctrine was established by the Supreme Court in Nardonne v. United States (1939) and has since been applied, with some restrictions, in all US states to this day. 2
    According to Tremmel, while this principle is consistent with the rule of law and respect for human rights, it is too strict a rule in itself and can only be accepted as a necessary and sufficient solution with certain restrictions.3 At the same time, US criminal procedure literature and jurisprudence pays particular attention to the definition of the types of “poisoned tree”. The categorisation is based on the nature and the ranking of the constitutional right concerned.4
  2. Under the “silver platter doctrine”, evidence obtained unlawfully by national authorities at an earlier stage of the procedure cannot be used only in national proceedings, but can be used in federal court if certain conditions are met. 5
  3. Based on the principle of “evidence excluded halfway”, official evidence obtained in violation of the accused’s procedural rights must be excluded from the proceedings, unless its use is requested by the defence6 and it is in the defence’s favour.
  4. The principle of “expert circumvention” allows the use as evidence of expert opinions that the expert has prepared purely on the basis of spontaneous statements or hearsay evidence, in other words, “smuggling” evidence back into the criminal proceedings that was once excluded due to the wrongful conduct of the authority, but which the expert learned about and (subsequently) incorporated into his or her opinion.
    According to the American literature, typical cases where this principle is applied include domestic violence proceedings in which the spontaneous statements of the relative form the content of the expert opinions. In such cases, two types of “pre-situations” can occur:
    • a relative is questioned as a witness by the authority without being warned of his right to immunity, although he should have it, and during this questioning the authority accuses his relative in a position of incrimination of having committed a crime; in this case, the authority is therefore unlawfully obtaining the statement of the relative and it cannot be taken into account as evidence; however, if the expert has some knowledge of this statement, he can include it in the expert opinion;
    • in the other case, there is no prior or unlawful interrogation, but the expert nevertheless includes information in the opinion which is based on hearsay, so that he or she does not ultimately obtain this information in the course of his or her statutory procedure.7
1 It should be noted that the level of these rules was also the earliest and most detailed in the US literature.
2 Gácsi ibid. 55.
3 Tremmel (2006) ibid. 164.
4 If a suspect is arrested for lack of probable cause and is informed of his “Miranda” rights by the investigating authority before questioning, any confession he may make should not in principle be excluded from evidence. However, since the condition for arrest was absent in the first place, this confession should be excluded from evidence as the fruit of the poisonous tree of the Fourth Amendment. In Gácsi ibid. 58.
5 Gácsi ibid. 55.
6 In some Member States, a statement of consent from the defendant is sufficient. In Gácsi ibid. 55.
7 Gácsi ibid. 56.
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