The Admissibility of Secondary Evidence – Is the US-American Fruit of the Poisonous Tree Doctrine Being Replaced by the Balancing Exercise?

Abstract

Defendants must only be convicted in criminal proceedings if the court is convinced of their guilt. In functioning states with proper legal systems, this will only be the case when evidence sufficiently confirms the defendants commission or participation in an act or omission which is classified as a crime under the state’s law. Consequently, if there is no such evidence or a court is in doubt, defendants must be acquitted on trial.

Usually, the evidence which courts base their criminal judgements on will have been uncovered through prior investigations by the police or prosecutors. During these investigations, finding a piece of evidence through the first investigative measure (“primary evidence”) often will lead to the discovery of further evidence elsewhere through another investigative measure (“secondary evidence”). Both primary and secondary evidence are then presented to the court and, of course, both can be used to support the court’s decision about the defendant’s guilt or innocence.