Legal Experts Split on Bill Disqualifying Use of Illegally Obtained Evidence in Israel

Chen Maanit
Chen Maanit
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Police officers arrest a suspect, for illustrative purposes only.
Police officers arrest a suspect, for illustrative purposes only. Credit: Nir Keidar
Chen Maanit
Chen Maanit

Israel took a significant yet divisive step to codifying the ineligibility of unlawfully obtained evidence, after a bill proposed by Justice Minister Gideon Sa’ar was approved by the Ministerial Committee for Legislation on Sunday.

The proposed law, which seeks to enshrine the court's authority to disqualify illegally obtained evidence, will soon advance to its first reading in Knesset.

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It would apply to all kinds of evidence – including confessions, witness statements and forensics evidence – and also go beyond existing case law to exclude evidence unlawfully obtained, even if not from the defendant itself. 

Justice Minister Gideon Sa'ar at the Knesset, Monday.Credit: Emil Salman

The legislation would bring Israeli evidentiary law closer to U.S. law, where the "fruit of the poisonous tree" doctrine requires courts to disqualify illegally obtained evidence, except for in certain exceptional circumstances.

Unlike the U.S. law, however, the proposed legislation would not automatically disqualify such evidence and the courts would retain limited discretion to not disqualify such evidence.  

At the heart of the proposed legislation is the so-called “Issacharov Doctrine,” named after the Supreme Court’s May 2006 ruling in a case involving a defendant with the same name.

Prof. Yoav Sapir of Tel Aviv University (R) and Attorney General Avichai Mendelblit (L), last month.Credit: Ilan Assayag

In that trailblazing decision, the Supreme Court ruled that the court has discretion to exclude such evidence if admitting it would violate a defendant’s rights to a fair trial and/or other rights set forth in the Basic Law on Human Dignity and Freedom. On that basis, the Court excluded the confession that the defendant argued had been unlawfully obtained from him. 

Until the Issacharov ruling, Israeli courts did not generally disqualify illegally acquired evidence, but rather gave it less weight if it was obtained in violation of the detainee’s rights or in violation of the law. In December 2010, in another case, the Supreme Court expanded the Issacharov Doctrine to include physical evidence. 

A court divided

Adv. Jacques Chen (L) with his clients Shaul and Iris Elovitch at the Jerusalem District Court, last month. Credit: Ohad Zwigenberg

As the bill advances through the legislative process, Israeli legal scholars remain at loggerheads on the proposed legislation, with some arguing that it doesn’t go far enough and others arguing that it goes too far.

Former National Public Defender Prof. Yoav Sapir of Tel Aviv University ardently supports the bill, as it relates to “one of the more important Supreme Court rulings in recent decades,” because of its far-reaching effects that impact how investigators conduct searches and covert interrogation exercises, as well as when suspects must be told that they have the right to consult legal counsel.

In Sapir’s opinion, it is critical for such important and essential criminal legal precedent to be codified, because once set forth in law, it becomes “more difficult for the courts to go backwards.”  Sapir also praises the legislation for parting ways with U.S. jurisprudence, insofar as it allows judges to decide whether to disqualify the evidence, instead of requiring them to do so. According to Sapir, that aspect of the U.S. doctrine has resulted in the recognition of exceptions that have effectively swallowed the rule.  

Adv. Jacques Chen, Shaul Elovitch’s lawyer in Case 4000 (the Bezeq-Walla case) and a former senior prosecutor, believes that the bill doesn’t go far enough and simply parrots existing case law. It would be much better, Chen says, if “instead of the default being that the court may disqualify evidence obtained illegally” the law required the “evidence to be disqualified unless the court finds exceptional circumstances not to do so and justifies it.” Chen takes issue with Sapir’s argument that such an absolute requirement would eventually lead to the recognition of exceptions that undermine it, calling it a “castrating argument.”

Unlike Sapir and Chen, Prof. Gabriel Hallevy, a professor of criminal law and criminal justice at Ono Academic College firmly opposes the law. He argues that the specifics of the U.S. context that gave rise to the “fruit of the poisonous tree” doctrine aren’t relevant in Israel: “The ‘fruit of the poisonous tree’ doctrine was created in the United States at a time that 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 drive a confession out of him. But we are not there," says Hallevy.

Hallevy believes that the proposed legislation aims to educate the police, but that there are more effective ways of incentivizing officers to act legally, such as disciplinary actions, without creating a moral and public hazard whereby guilty criminals are acquitted due to police error or misconduct. 

Ultimately, even if the bill garners enough support to become law, it remains to be seen how it will be implemented by the courts. Time will tell what impact, if any, it will have on pending criminal trials, including Former Prime Minister Benjamin Netanyahu’s corruption trial, in which arguments regarding the admissibility of evidence have taken center stage.

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