Fruit of the Poisonous Tree

• Author: Barbara Allen Babcock
• Pages: 1157-1158

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No DOCTRINE in constitutional CRIMINAL PROCEDURE has created more confusion than the disarmingly simple proposition that when the state has violated FUNDAMENTAL RIGHTS, it may receive no benefit from the violation. The "poisonous tree" is the violation, an illegal search for instance, in which the key to a safe deposit is found. Clearly under the EXCLUSIONARY RULE the government may not use as EVIDENCE the discovery of the key; but neither may it use whatever incriminating items are in the safe deposit box. These are the "fruits."

The existence of a "poisonous tree," however, does not mean that all that is discovered after the tree sprouts is automatically a "fruit." The issue in its classic though grammatically inelegant formulation is: "whether, granting establishment of the primary illegality, [the evidence] has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint" (WONG SUN V. UNITED STATES, 1963). Many exceptions to the fruits doctrine have evolved from these words and have been variously named by courts and commentators, although the basic question is always how far from the tree the fruit has fallen.

The exception used most often is "attenuation": too much has intervened between the primary illegality and the gathering of the fruit. In Wong Sun itself, a confession made after an illegal ARREST was found not to be a fruit because of the passage of time between the arrest and confession, during which the accused was free on BAIL. Another exception is labeled "independent source"; the idea is that although the evidence could have been a fruit, it was actually uncovered by means distinguishable from the primary illegality. Closely allied to the independent source exception is that of "inevitable discovery," which the Supreme Court endorsed in NIX V. WILLIAMS (1984). Although the body of the deceased was discovered through a blatant violation of the defendant's Sixth Amendment RIGHT TO COUNSEL, the Court held that it would have been found through other proper investigative techniques that the police were employing at the time that the primary illegality was committed. The burden is on

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the government to show that the discovery would have been "inevitable." Finally, while refusing to establish an across-the-board rule that eyewitness testimony could never be a fruit, the Supreme Court has indicated that the free will of a...