The article proposes a new model for the exclusion of evidence obtained as an indirect result of police illegality, which aims to strike the appropriate balance between the intrinsic and the extrinsic objectives of criminal evidence—truth seeking vis-à-vis procedural values. To this end, the article critically examines the underlying theories and the doctrinal approaches to the admissibility of derivative evidence in three legal systems: the United States, the European Court of Human Rights, and Israel. Whereas deterrence, which is the sole justification under current U.S. law, is conceived of as the only theory that clearly warrants the suppression of derivative evidence, the rationales for exclusion that prevail in other jurisdictions—moral integrity and the protection of rights—are regarded as predominantly entailing the suppression of primary evidence. The article argues, however, that all three rationales may equally mandate the suppression of derivative evidence and that only a combination of the guiding principles could sustain a coherent theory for the exclusionary doctrine. It also contends that the different doctrinal approaches are largely based on the degree of each legal system’s adherence to considerations associated with the “crime control model,” and that a narrowly construed discretionary regime, based exclusively on due process considerations, is preferable to a rigid one, as it enables the courts to avoid the adverse consequences of exclusion.
Lost between the fruits and the tree: In search of a coherent theoretical model for the exclusion of derivative evidence
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Yuval Merin; Lost between the fruits and the tree: In search of a coherent theoretical model for the exclusion of derivative evidence. New Criminal Law Review 1 May 2015; 18 (2): 273–329. doi: https://doi.org/10.1525/nclr.2015.18.2.273
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