1. A young man will be convicted in this particular case despite of his reasoning. In the classic situation, in which the police first obtain a confession, later ruled inadmissible, then, by virtue of information provided in the confession, discover some other incriminating evidence, the general principle of English law is that the latter evidence is not inadmissible. By contrast, the general principle of law in the United States is quite the reverse. Where some violation of a person’s constitutional rights has led to the obtaining of primary, incriminating evidence, not only that evidence but also any derivative evidence flowing therefrom is to be suppressed. This is known as the doctrine of the ‘fruit of the poisonous tree’. So, applied to Warickshall, it would result in the prosecution not being permitted to adduce evidence that the stolen goods to which Warickshall had referred in her confession had been found in the bed of her lodgings.
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This is not the place for a comprehensive discussion of the many manifestations of the basic poisonous fruit doctrine. The three such manifestations most relevant for present purposes are, first, that which Warickshall itself exemplifies, i.e. the primary evidence is a confession, the derivative evidence non-confessional; secondly that in which both the primary and the derivative evidence are confessional; and thirdly that in which, whether or not primary evidence is acquired at all, there has been a breach of a person’s Fourth Amendment rights which has resulted in the police acquiring derivative evidence in the shape of a confession.
2. In this case, the evidence against Watson should be surpassed by the court. A confession was made following an unlawful arrest. In order for the chain of causation to be broken and for the confession to be admissible, despite the initial illegality, it must be the product of an ‘act of free will unaffected by the initial illegality’. The problem of causation is likely to be much less acute in the two situations where the primary evidence is a confession. Where the derivative evidence is non-confessional (the stolen goods, the murder weapon, the dead body), it is very likely that the immediate and sole cause of its discovery will indeed be the accused’s confession. Otherwise, why did not the police find it for themselves?
Since, in effect, the fruit is to be excluded only if it is of the poisonous tree, the element of causation just described is implicit in the doctrine itself. Therefore, where the taint has become so attenuated that it is not properly considered as still operative, but merely as background material, the doctrine is inapplicable. For example, in Re RPS, the accused had, by the time he confessed a second time, already appeared in court with counsel in order to have his earlier confession suppressed, so he could not sensibly claim that the second confession was the fruit of the first. Equally, where the derivative evidence was actually obtained through an independent source free of the taint associated with the primary evidence, the fruits doctrine has no call to apply, for the derivative evidence comes from another (non-poisonous) tree.
3. The informant can appear as a witness in the case described. A genuine exception to the poisonous tree doctrine is provided by the inevitable discovery rule. It states that, where the derivative evidence would inevitably have been discovered without recourse to the primary, tainted evidence, the former is admissible. In Nix v. Williams, the Supreme Court adopted and applied that rule. Williams had led the police to the dead body of his victim. An earlier Supreme Court decision had ruled that evidence of Williams’s confession to the police and his leading them to the body was inadmissible because acquired in breach of his Sixth Amendment right to counsel.
The question for decision in Nix v. Williams was whether or not evidence of the condition of the body itself should, because of the fruits doctrine, also be ruled inadmissible. By majority, the Supreme Court held that this material was admissible since the prosecution had established, by a preponderance of the evidence, that the body would inevitably have been discovered (within another three to five hours) had not Williams directed the police to it. It seems that a search of the general area in which the body was situated had been suspended when it was learned that Williams was co-operating with the police. There does seem to be plenty of scope here for post hoc rationalization of the way in which the search would have proceeded, and much must depend upon the degree to which the prosecution must prove the inevitability of discovery. Indeed, the minority dissented for that very reason, Justices Brennan and Marshall proposing that clear and convincing evidence should be required.
4. Both defendants’ statements and the gun should be admitted as evidence in this case. Yet another aspect of Supreme Court disenchantment with Miranda is that the fruits doctrine seems to be inapplicable where the reason for exclusion of a first confession is failure to comply with the Miranda requirements. Oregon v. Elstad establishes that that is the case where the derivative evidence is a second confession, but it may also be the case where it is non-confessional.
It is implicit in Oregon v. Elstad that the fruits doctrine applies with full force where the first confession was involuntary for purposes of the common law rule of exclusion. Why, then, does it not apply where there was a breach only of Miranda? Once again, the majority stressed the prophylactic nature of the Miranda rule, which means that compliance with its dictates is not a requirement of the Fifth Amendment itself.
On that reasoning, the Court was free of the need to suppress as a matter of direct constitutional command and might consider afresh the good sense of applying the fruits doctrine. The majority concluded that no additional sound purpose would be served by excluding a second confession where it was involuntary and had itself been attended by full compliance with Miranda. The decision is striking for Elstad had, before he confessed the first time, not been warned at all of his rights. In other words, no more gross breach of Miranda could be imagined.—————————————————————————–
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