[FOUNTAIN]Tapes and the fruit of a poisonous tree

On Dec. 20, 1937, the Supreme Court of the United States passed a meaningful decision. In the case of Nardone v. the United States, a prosecution based on an eavesdropped telephone conversation of alcohol smugglers by federal agents, the court ruled that the illegally collected evidence was not admissible in a criminal trial.
Two years later, the case returned to the Supreme Court. This time, the investigation agency used the intercepted conversation as a clue for a further investigation and presented new evidence. The court denied this evidence. The Supreme Court decision stated, “To forbid the direct use of methods thus characterized but to put no curb on their full indirect use would only invite the very methods deemed inconsistent with ethical standards and destructive of personal liberty.”
The decision was the first to use a phrase, “a fruit of a poisonous tree,” meaning the fruit growing on a poisonous tree is also poisonous. Nardone v. the United States established a Supreme Court precedent not only that illegally and unlawfully obtained facts, or the poisonous tree, have no legitimacy as evidence but also that the derived evidence from the poisonous tree, or the fruit, must be excluded. Today, the precedent has become a standard of judgment for criminal trials.
In 1980, the German magazine Der Spiegel ran an article about government secrets. An investigation agency had pointed out a journalist who had allegedly given out confidential information and considered him a suspect. The agency obtained a warrant from the court and eavesdropped on the journalist’s conversations. The investigators revealed that the journalist had hidden a confidential document at his sister’s house. But the Federal Supreme Court of Germany denied the document’s legitimacy as evidence because it was “fruit of a poisonous tree.”
Facts obtained from illegally intercepted conversations, confessions of suspects arrested without warrants, and evidence collected from documents seized without going through proper procedures are the typical fruits of the poisonous tree. The prosecutors have brought up this theory on the disclosure case of the tapes containing illegally intercepted material by the National Security Planning Agency. They argue that there is little possibility that the court will admit the eavesdropped material, which is a byproduct of an unlawful act, as evidence even if they investigate. By disregarding such evidence, the court can also contribute to eradicating unlawful investigation customs.
Poisonous fruit is sensational. When you are tempted by the fruit without eliminating the poisonous tree of state power abuse, legal security will be shaken.

by Ko Dae-hoon

The writer is a deputy city news editor for the JoongAng Ilbo.