Fruits of the poisoned tree
| Nardone versus USA | ||||||||
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Decided December 11, 1939 |
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| If the prosecution unlawfully gains evidence against a suspect, this may not be used in a trial against him (exclusionary rule). If it leads to further evidence, then this may not be used as a matter of principle (fruit of the poisonous tree). However, they can be admitted if the prosecution proves that they have some other legal origin (clean path). | ||||||||
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| 4. Amendment to the US Constitution , Art. 605 Telecommunications Act of 1934 |
Fruit of the poisonous tree ( Engl. Fruit of the poisonous tree ) is a metaphor of the judge Felix Frankfurter , with whom he 1939, a landmark decision of the United States Supreme Court reasoned. This decision established an extended prohibition on the use of illegally obtained evidence in US law . Since then, the fruit of the poisoned tree has been a customary law rule for criminal proceedings , the legal concept of which is also used in Germany in four specific cases.
According to the linguistic image, criminal investigation bodies can suspect a source of evidence in the event of suspicion (tree), which can lead to the clarification of the case and evidence that can be used in court (fruits). If, however, they access it without observing the rule of law, they make this evidence unusable, so they poison the tree. Once secured, this incorrect evidence must not be used to circumvent the already violated commandments and to determine further evidence, because this new evidence is also incorrect and cannot be used in court. For a constitutional state they are inedible as the fruits of the poisoned tree.
background
The defendant Frank Nardone was sentenced in a previous procedure, which was reviewed by the Supreme Court: In the first trial, he was convicted of smuggling alcohol after federal agents his phone lines tapped had. The guilty verdict was overturned by the Supreme Court because the wiretapping measure violated the Telecommunications Act of 1934 and its results could not be exploited. The violated norms simply implement the IV. And V constitutional amendments.
The charges were referred back to the first instance , but this time not with alcohol smuggling, but with tax fraud resulting from the smuggling transactions. So the prosecution not only shifted the factual basis of the allegation but also changed the legal aspect under which it was made. The judge was therefore not prevented from a guilty verdict because of the old investigative errors, since this time it was a tax offense and other evidence and facts were named.
Earlier tendencies in case law (excursus)
The fruits of the poisoned tree pose a legal problem which u. a. was judged on the standard of the IV Amendment to the US Constitution. The fundamental right to protection from arbitrary state investigations such as arrest and search is rooted in the tradition of the British Habeas Corpus Act and seeks not only to secure the personal freedom of the citizen, but also to protect him from self-incriminations and is closely related to the right to a fair trial .
Exclusion or blocking principle
In order to enforce these basic rights, the Supreme Court had already decided in 1914 that if investigative organs obtain evidence through illegal arrest, improper search or disapproving questioning methods, it will be excluded from use in a process (exclusionary rule) .
The Silverthorne v. USA case
In 1920 it became apparent that the court did not want to stick to blocking only individual unlawful evidence for further taking of evidence , but everything that was gained from it:
“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used ... ”
“The point of a provision that prohibits obtaining evidence in a particular way is not just that evidence obtained in this way cannot be used in court proceedings, but that it cannot be used at all. Of course, this does not mean that the facts thus obtained become inviolable and inaccessible. If one comes to their knowledge in another and independent way, they can also be asserted and proven like others; but that knowledge that one receives due to injustice carried out by the state organs themselves cannot be used ... "
The decision
The Supreme Court also overturned the accused's second conviction and further developed its case law to the effect that the shortcoming of illegally obtained evidence has a long-range effect, and it determined procedural enforcement mechanisms for this purpose, the graduated burden of presentation and proof :
"The burden is, of course, on the accused in the first instance to prove ... that wire-tapping was unlawfully employed. Once that is established ... the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin. "
“First of all, the burden of proof lies with the defendant ... to prove that the tapping of his telephone took place unlawfully. Once this has been established ... the judge must, however, give the accused to a limited extent the opportunity to prove that the proceedings against him are, to a considerable extent, the fruit of the poisoned tree. This gives the prosecution ample opportunity to convince the trial court that their evidence was of independent origin. "
Formal statements
An examination of the formal legality of the criminal judgments did not play an essential role.
Material statements
In material terms, the above are To classify principles as follows:
- In a first step, courts have to apply the already developed exclusionary rule . Thereafter, unlawfully obtained evidence may not support the charge. The criminal courts must consider the remaining evidence in reaching a verdict. Even when taking evidence, the judge must not allow incorrect evidence to be presented.
- If the accused wants to assert that some of the remaining evidence is a product of the findings of faulty evidence (fruits of the poisoned tree), he must prove the causal or other connection.
- The prosecution can commence a rebuttal that they would have come to the remaining evidence without the erroneous findings, especially regarding further investigation paths that are unaffected by the procedural errors, so a clean way (clean path) .
Consequences and further developments
Exceptions
Exceptions to the principle of exclusion and blocking also apply to the fruits of the poisoned tree. The Supreme Court also stated that the principle of exclusion does not apply in the following situations:
- in probation proceedings or trials whose object is the revocation of early release
- in tax matters
- in deportation proceedings
- when government officials outside of the United States gain and / or secure evidence
- if a private person (with no connection to the executive branch) wins and / or secures the evidence
- if the defendant chooses to testify in his own trial - which he can under US law - fruits from the poisoned tree can be used, but limited to shattering his or her credibility or testimony.
Principle of good faith
If a judicial investigation order, such as a wiretapping or search warrant, is revoked after evidence or knowledge leading to it has been obtained because it was incorrect, the investigative bodies' findings can still be used if they acted in good faith and are entitled to the existence of the investigation order trusted (good faith rule) .
However, this principle does not apply
- if the investigation order is formally and legally incorrect, as this excludes good faith per se
- if the investigation order does not precisely specify the subject of the investigation
- if investigative bodies act fraudulently and thereby obtain an investigation order.
The Wong Sun v. USA case
In 1963 the Supreme Court specified the doctrine on the fruits of the poisoned tree to the effect of how close the connection between tree and fruit should be in this sense - i.e. the connection between the faulty primary evidence and the secondary evidence - and how this is to be implemented procedurally. Accordingly, if incorrect primary evidence is found or is already recognizable, which according to the principle of exclusion does not support the charge, the judge himself must examine the circumstances under which secondary evidence has now been obtained. In a separate hearing without a jury, he must investigate whether another investigative approach in the course of the investigation has causally led to the secondary evidence. What is required is a positive finding that other sufficiently different means of the prosecuting organs have brought the secondary evidence to light.
The regular evidence - possibly in front of a jury - can only be provided after this secondary procedure has been concluded.
The US vs. Ceccolini case
In 1978 the court ruled again on the connection between the fruit and the poisoned tree. The judge also has to examine whether quantitative - v. a. temporal reasons, the connection between the faulty primary evidence and the secondary evidence has been resolved.
In this case, evidence against the accused was wrongly ignored because a witness was illegally arrested and questioned a year earlier. Months after his release, he was interviewed again without any thematic connection to the arrest. There are no concerns about the quality of this second testimony, since it neither had a new will-defying context (and the principle of exclusion may not apply), nor did the witness feel predetermined by his earlier statements. The incriminating statement was therefore neither a poisoned tree nor its fruit.
Legal situation in Germany
System comparison (excursus)
In Germany, fruits of the poisoned tree are also discussed under the key words long-range effect or an extended ban on the use of evidence . While the German criminal proceedings without parties and the only objective truth investigation by the state is designed ( ex parte ) , in which the defense has mandatory participation rights, the Criminal subject in the United States as a party to the process of free and consensual disposition of the parties and accesses the so-called. processual concept of truth : What is considered true is not what has happened objectively, but what has been proven, but also what is agreed between the parties. This difference is not least due to the fact that the German legal system classifies the entire criminal law as a branch of public law and also exposes the associated constitutional requirements, while American law simply recognizes criminal and civil proceedings as traditionally formed procedures ( inter partes ) . In German law, therefore, a more complex system of understanding the roles of those involved in the process has emerged, with which the doctrine of evidence corresponds.
The framework of German criminal law is the monopoly of force , which sees the state as the agent. As a derivative of the monopoly of force, enforcing the state's right to punishment is therefore a public task as well as protecting the accused. A criminal law with such a holistic approach cannot be implemented in a party-dominated procedure in which the process material is available. It is therefore easier for those involved in the process to expand the scope of the investigation than to limit it. However, this process material is not decisive in its full breadth, it can only be taken into account within the framework of the statutory criminal offense and the rules on sentencing (see also prohibition of analogy ). For bans on evidence this means that they are only admissible in a specialized form.
In Germany, a distinction is made between the following prohibitions of proof under various aspects, whereby these groups are not mutually exclusive:
- Prohibition of gathering evidence (extraction is already prohibited)
- Prohibition of the subject of evidence - the object is irrelevant for criminal proceedings or may not be identified for constitutional reasons, so a violation always leads to a ban on exploitation
- Prohibition of evidence - one of the four pieces of evidence ( certificate , witness , expert opinion , inspection ) may not be used, the others are permissible
- Evidence Method Prohibitions - Prohibits certain methods of obtaining evidence, not just torture, but e.g. B. Fatigue and Deception
- Evidence prohibitions
- relative and absolute - depending on the consent of the accused after the offense has ended
- self-employed (derived from a collection ban) and employed (collecting evidence was in itself lawful, a ban on exploitation arises e.g. for constitutional reasons)
Roughly speaking, German law provides for compensation in legal consequences for investigative errors , while American law provides for the cassation of the entire source of evidence: In the USA, the doctrine of the fruits of the poisoned tree ultimately works in both directions between the prohibition of the use of evidence and the prohibition of taking evidence, and accordingly when chaining them. In Germany, an exploitation ban generally leads to a collection ban, but the reverse does not apply: a collection ban does not automatically lead to a utilization ban. Therefore, a remote effect is not recognized in this way: Exploitation ban → Collection ban → Exploitation ban etc. ( see below ).
Absolute and relative prohibitions
Investigation rules have a dualistic character: They are intended to ensure the equal participation of the accused as a quasi-co-investigator (participation aspect) and limit the investigation process solely to evidence relevant to the facts of the case and qualitative evidence (quality aspect ). If an investigative act goes beyond this, it can be challenged independently and immediately and the parties do not need to wait for evidence to be taken during the main hearing .
Certain prohibitions of evidence therefore have a relative validity in the first case, which depends on whether, in the event of a rule violation, the protected party involved in the proceedings gives his consent to the exploitation at a later stage and thus ultimately exercises his freedom of disposition. This is especially the case with violations of § 55 , § 136 , § 163a of the Code of Criminal Procedure (StPO) , i.e. as protection against self-incrimination ( nemo tenetur se ipsum accusare ).
Prohibitions of evidence, on the other hand, which ensure the quality of the taking of evidence, apply absolutely and the consent of the accused is not important. Above all, these are prohibitions on inadmissible interrogation methods such as abuse, deception, hypnosis, coercion, threats and the like. Ä. ( § 136a StPO). At most, violations can be "cured" by - if possible - the evidence is collected again in accordance with the rules. l
"Not at all" argument
The “not at all” argument in the Silverthorne v. USA case is not alien to German law. Investigative acts are always state interventions that pollute fundamental rights and require additional justification under public law (see also reservation of the law , prohibition of excess ). The StPO-compliant research into truth finds its extreme limit where the state's claim to punishment is limited by individual interests. The following formula applies here: no finding the truth at any price. This is especially the case with serious encroachments on the general personality rights of the accused (so-called core area of private life ). In this respect, unwritten, but strongly effective prohibitions of evidence have developed from constitutional principles, which are measured against the yardstick of the so-called three-sphere theory - for example in diary entries.
Burden of proof and mode of proof
In contrast to the USA , according to the Code of Criminal Procedure, the accused is basically not burdened with evidence : if he invokes investigative errors, he does not need to prove them. A request for evidence is also not required , as such aspects must be examined ex officio . However, if he makes such a request, the investigative bodies and the trial court are bound by it and have to investigate the facts - Section 163a (2), Section 244 of the Code of Criminal Procedure. The court is investigating investigative errors in the free evidence . The principle in dubio pro reo does not apply. If the violation is not proven, the evidence can be used.
State of mind in law
Because of these system differences, the doctrine of the fruits of the poisoned tree is not recognized in German legal practice - with the exception of individual cases - while the prevailing legal opinion agrees with it:
- According to the case law of the Federal Court of Justice, there is basically no long-range effect: a procedural violation must not end the entire investigation and lead to the abandonment of the goal of truth research. The examination of a “ clean path ” is felt to be arbitrary, both in the case of an investigation hypothesis and on the basis of the investigation process that actually occurred. A long-range effect is primarily aimed at disciplining investigative organs and preventing any violations from succeeding from the outset. This is - unlike in a party trial - not necessary, since the Code of Criminal Procedure conceives a public prosecutor's office as the "most objective authority in the world", which also investigates and conducts the process in favor of the accused and even has legal remedies for him.
- According to the contrary opinion, because of the risk of evasion of the prohibition of evidence, action at a distance should in principle apply, unless the evidence would most likely also have been legally obtained. The disciplinary argument is seen particularly critically, as a circular argument based on the pattern “Because it cannot be what must not be” : If the organs of a well-functioning administration of justice do not need discipline, there is nothing to object to discipline safeguarding mechanisms. They would never be used anyway.
- Occasionally, a balance is suggested between the weight of the offense and the gravity of the offense.
- Another opinion suggests a long-range effect only insofar as the scope of protection of the violated norm extends and thus ultimately refers to the so-called legal circle theory .
Exceptionally application of the doctrine of the fruits of the poisoned tree
The fundamental rejection of the doctrine of the fruits of the poisoned tree has the following exceptions:
Quasi-remote effect / continued effect
In cases of quality-oriented prohibitions on exploitation as in Section 136a StPO, a quasi-remote effect is recognized if an investigative error is not continued, but its results are held up to the accused and, under the influence of this, he leads to further evidence (continued effect).
Main proceedings : In the event of a violation of Section 136a StPO, the court must first determine this in the main hearing, then continue to investigate ex officio whether and how far it has continued, i.e. the area of evidence that could be described as a poisoned tree. To this extent, there is an indisposable ban on exploitation, as there is a lack of quality of evidence. However, after a so-called qualified instruction of the accused, i. H. about the unusability of evidence previously obtained in violation of Section 136a StPO, question the accused again and then use a confession made. Fruits obtained from evidence obtained in violation of Section 136a StPO can, however, be used in legal practice.
Investigation / interim proceedings : If, on the other hand, investigations are still ongoing and further evidence can be found, an investigating judge or public prosecutor must terminate the continued effect of the violation and provide a faulty picture for the accused and the defense e.g. B. to eliminate by a corresponding instruction about the unusability in order to enable a rule-compliant new collection of the evidence or further submissions , similar to the above. Case of the USA against Ceccolini . However, only an effective - temporal and thematic - caesura interrupts this continued effect and leads to usable evidence.
G 10 measures
If intelligence services investigate clandestinely under the Article 10 Act and go beyond this authorization, there is a long-range effect for the fruits of the poisoned tree. There is an exception if they come across investigative approaches other than the suspected criminal offenses that are also listed in the catalog for investigations under Article 10 Act ( catalog offenses ).
Telecommunications interception measures according to the Code of Criminal Procedure
If the public prosecutor's office investigates secretly (§ § 100a ff. StPO) and essential factual prerequisites are missing in the investigative measures order, the knowledge gained may not be used according to the case law of the Federal Court of Justice. This also applies to so-called chance finds . However, the accused must expressly object to the use of corresponding evidence in the proceedings. In the case of a chain of telecommunications monitoring, each measure must be reprimanded separately; a chain review does not take place.
Housing surveillance ( large eavesdropping )
If an apartment is monitored, particularly strict standards apply, as this is how you break into the last refuge of a person and this can only be justified in the case of particularly serious crimes. However, if there is an investigation error here, according to the case law of the Federal Constitutional Court , a remote effect should also apply. These requirements were insufficiently implemented in two legislative attempts, so that they have not yet been codified.
See also
literature
- Craig M. Bradley (Ed.): The Rehnquist Legacy. Cambridge University Press, Cambridge et al. 2006, ISBN 0-521-85919-0 .
- Daniel E. Hall: Criminal Law and Procedure. 4th edition. Thomson Delmar Learning, Clifton Park NY et al. 2003, ISBN 1-4018-1559-6 .
- Kenneth Harris: Prohibition of exploitation of indirectly obtained evidence: The doctrine of remote control in the jurisprudence in German and American law. In: Defense lawyer . Vol. 11, 1991, pp. 313-322.
- Luther E. Jones Jr .: Fruit of the Poisonous Tree. In: South Texas Law Journal. 9, 1966/1967, ISSN 0038-3546 , pp. 17-22.
- Lutz Meyer-Goßner / Bertram Schmitt : Code of Criminal Procedure. Courts Constitution Act, ancillary laws and supplementary provisions (= Beck's short comments. 6), CH Beck Verlag , Munich, 61st edition 2018, ISBN 3-406-54953-5 .
- Jan Reinecke: The remote effect of prohibitions on the use of evidence (= legal research and development. Vol. 240). VVF, Munich 1990, ISBN 3-88259-722-4 (also: Hamburg, University, dissertation, 1989).
- Svenja Schröder: Prohibitions on the utilization of evidence and the hypothesis of lawful obtaining of evidence in criminal proceedings (= writings on procedural law. Vol. 102). Duncker and Humblot, Berlin 1992, ISBN 3-428-07405-X (At the same time: Passau, University, dissertation, 1991).
- Bernard Schwartz (Ed.): The Warren Court. A Retrospective. Oxford University Press, New York NY et al. 1996, ISBN 0-19-510439-0 .
Web links
- Hans Meyer-Mews, hands off the forbidden fruits - long-range effect in criminal procedure law [1]
Individual evidence
- ↑ 48 Stat. 1064, 1103; 47 USC, 605, 47 USCA 605
- ↑ Weeks v. United States , 232 US 383 (1914)
- ↑ Silverthorne Lumber Co. v. United States , docket # 19-358 , 251 US 385 (1920)
- ^ Harris v. new York
- ↑ United States v. Leon, 468 US 897 (1984)
- ^ Wong Sun v. United States, 371 US 471 , 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)
- ↑ United States v. Ceccolini, 435 US 268 , 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978)
- ↑ The controversy in the USA about the limitation and exclusion of legal protection was conducted, among other things, and especially with regard to the aspect of procedural truth, cf. on this the decisions Rasul against Bush , Hamdi against Rumsfeld , Hamdan against Rumsfeld
- ↑ Meyer-Goßner, § 136a margin no. 32
- ↑ BGH MDR 1951 p. 658 [D]; BGHSt 16, 164 (166); BGH NJW 1994 p. 2904 f .; Meyer-Goßner, § 136a margin no. 32
- ↑ BGHSt 27, 358; 32, 68 (70); BGHR StPO § 110a remote action; OLG Hamburg MDR 1976 p. 601; OLG Stuttgart 1973 p. 1941; Ranft, Festschrift für Spendel p. 735
- ↑ Bradley GA 1985 p. 101; Harris StV 1991 p. 313; Herrmann JZ 1985 p. 608
- ↑ Grünwald JZ 1966 p. 500; Haffke GA 1973 p. 79; Maiwald JuS 1978 p. 384
- ↑ Roxin StPO, § 24, Rn. 44; Küpper JZ 1990 p. 23; Reinecke, The remote effect of prohibitions to use evidence, 1990, p. 247; Müssig GA 1999 p. 137; clean path is also considering: BGHSt 24, 125 (130); NStZ 1989 p. 375; Roxin ibid; Rogall NStZ 1988 p. 385; for a close examination of the specific investigation process: Schröder, prohibitions on the use of evidence and the hypothesis of lawful obtaining of evidence in criminal proceedings, 1992 pp. 113 and 175
- ↑ Maiwald JuS 1978 p. 384; Rogall, SK § 136a margin no. 94 and JZ 1996 p. 948
- ↑ Beulke ZStW 103, 657
- ↑ a b BGH 1 StR 316/05 (PDF; 91 kB); BGHSt 31, 304 (308 f.); 48, 240 (248); LR / Gössel, StPO, introduction K Rz. 97
- ^ LG Frankfurt StV 2003, 325
- ↑ Meyer-Goßner, § 136a margin no. 30th
- ↑ BGHSt 32, 68 (70); 35, 328 (332)
- ↑ BGHSt 29, 244; NJW 1987 p. 2525 f.
- ↑ BVerfGE of March 3, 2004, Az .: 1 BvR 2378/98 and 1 BvR 1084/99 margin no. 184 and 184
- ↑ ( BGBl. 2005 I p. 1841 )
