Law of Evidence

Balancing the admittance of illicitly obtained evidence through the lure of the remedy provided by the poisonous fruit

Introduction

At times, the functionaries of the state may indulge in illegal methods for obtaining evidence in their zeal to bring the culprits to book. The evidence may be reliable, yet it raises the question of admissibility because it is tainted with illegality. The Indian Evidence Act does not give an answer to this question, except that S. 27 of the Act provides that if anything is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much information as relates distinctly to the fact thereby discovered may be proved.

The police are given special but fettered powers to get as much information as necessary to establish whether there is an offence committed or not. Against this backdrop, this article exhumes the principles of criminal procedure regarding search, and seizure. In this article, I shall explore the nuances of admissibility of the ‘tainted fruit’ (evidence obtained illicitly) and the position of the Indian jurisprudence. The juxtaposition here is to an extent exclusive to India and the United States, as it was Justice Frankfurter, who coined the phrase, “fruit of poisonous tree,” in Nardone v. The United States. I shall also explore the legal consequences which follows if the search procedure is not complied with.

There are other concerns related, which may not be as apparent prima facie, with the admissibility of the ‘tainted fruit,’ such as concerns of violations of the fundamental right of privacy under Article 21 of the Constitution, and in the case of United States, it would be a concern due to the potential violation of the Fourth Amendment rights.

The Exclusionary Rule – ( A Consequence of Illegal Search ?)

An important facet of the consequence of illegal search is the exclusionary rule. It has been held by the courts in this country consistently that evidence obtained by illegal search cannot be shut out on that ground alone. The primary remedy in illegal search cases is known as the exclusionary rule. This means that any evidence obtained through an illegal search is excluded and cannot be used against the defendant at his or her trial.

A Constitution Bench of the Supreme Court considered this question in Pooran Mal v. Director of Inspection. In this case it was urged that the material obtained by an illegal search be not permitted to be used in evidence. The High Court rejected this contention even after assuming the search to be illegal. The Supreme Court upheld this decision and said:

So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and courts in India and England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.

The Supreme Court relied on the decisions in Emperor v. Allahabad Khan, Kuruma v. R, and Barindra Kumar Ghosh v. The Emperor. This principle was reiterated by another Constitution Bench of the Supreme Court in State of Kerala v. Alasserry Mohammed  when it categorically rejected the exclusionary rule.

It is a step toward benevolent jurisprudence wherein post-Balbir Singh decisions have gone back to the original position. In State of Punjab v. Jasbir Singh, the precedent of Balbir Singh  was not followed, by stating – “The evidence collected in breach of mandatory requirement does not become inadmissible. It is settled law that evidence collected during investigation in violation of the statutory provisions does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case is to be considered on its own backdrop.”

The Effect of Illegal Search on the Admissibility of Evidence

Courts in India are of the view that no legislation bars admissibility of evidence on grounds of search being illegal or otherwise. Under the Indian Evidence Act, 1872, which was codified during the colonial regime, only test for admissibility of evidence is the relevance of facts. Interestingly, in Britain whose precedent India follows, has itself provided for exclusion of illegally obtained evidence. Even though the system in India provides for certain checks in a matter of searches, non-adherence to the principles of search does not render the search invalid but only irregular.

Evidence seized by police through the use of illegally acquired information is generally not admissible in a criminal trial. However, if the government can show that the acquisition was sufficiently attenuated by time or circumstance from the prior illegality, the general bar is removed and the evidence can be introduced. The general rule is that illegal or irregular means of procuring evidence is not cause for its rejection at the trial. There is little or no dissent from the general proposition; it applies whether the evidence is oral, written, or real. The primary reason why such confessions are inadmissible is that they are thought to be unreliable and unduly prejudicial.

The general approach of the judiciary has been not to exclude the illegally obtained evidence on the ground that the method of collection adopted by the authorities does not affect its reliability and hence it is admissible on account of its relevance at the trial, with a few exceptions. The latest case on the subject is namely, State of Maharashtra v. Natwarlal Damodardas Soni. Here the premises of the accused were searched and gold was seized by the authorities. He was as a consequence charged with certain offences. His contention was that as the search was illegal the seizure was inadmissible in evidence. It was held, assuming that the search was illegal, it did not affect the validity of the seizure and its admissibility in evidence. At the most the court may be inclined to examine carefully the evidence relating to the seizure.

The overwhelming judicial view is thus that illegally obtained evidence is admissible except where a prejudice is caused to the accused. Further, such an evidence is to be viewed with care and caution.

Arguments For and Against Excluding Evidence Obtained Illegally

There are arguments both in favour and against using such evidence. These may be briefly mentioned. The arguments for excluding such evidence are –

  1. In the absence of other remedies, the rules are necessary to deter the illegal methods of obtaining evidence.
  2. By eliminating the apparent condonation of illegal police practices, they contribute towards respect for the legal system.
  3. They free judges from what is felt by some of them to be repugnant complicity in the “dirty business.”

There are also arguments for not excluding such evidence, which are as follows –

  1. The evidence illegally obtained is true and reliable and what the courts need is reliable evidence to decide issues before them.
  2. Exclusion of such evidence does not give any remedy against the illegality because the illegality has already taken place. The exclusion has the effect of acquitting the accused against whom the society is entitled to protection. The effect of exclusion is that both the accused and the person who committed illegality in obtaining evidence escape.

The point upon which the courts and writers divide is whether evidence is admissible when obtained in violation of constitutional guarantees against unreasonable searches and seizures. A proposal to make evidence obtained by unlawful search inadmissible against an accused by express constitutional enactment failed to pass the 1921 Constitutional Convention of Louisiana. Evidence obtained through unconstitutional search cannot be excluded because of its unreliability.

The Remedy of The ‘Fruit of the Poisonous Tree Doctrine’

The doctrine of ‘fruit of a poisonous tree’ is a metaphorical technique used to describe illegally obtained evidence. Emanating in the United States of America, it states that if the source of evidence (i.e. the tree) is tainted, then any product of that source will also be treated as contaminated. This doctrine seeks to look at the evidentiary value of certain evidences from a different lens and invokes a reaction from the court as to its authenticity. It makes illegally obtained secondary evidence inadmissible in a court of law.

Information obtained from those sources is not allowed according to the law of exclusion. The fruit of a poisonous tree doctrine is an extension to that law. The initially seized evidence customarily represents the “poisonous tree,” but that evidence is itself the first-generation fruit of some illicit governmental activity. Thus, the books and records seized in Weeks v. United States were the first-generation fruit of an unlawful search and seizure and they were subsequently excluded.

Of course, there must be a significant relationship between the unlawful activity and the evidence seized to warrant exclusion. Hence, although the Weeks opinion is silent on causation, it is evident that there was a causal relationship between the illegal search and seizure and the documentary evidence which it uncovered.

Given the right to be secure within the privacy of one’s home from unreasonable searches and seizures, to admit evidence obtained in violation of this right would be, in effect, to “grant the right but in reality to withhold its privilege and enjoyment.”. This rationale also underlies the exclusion of coerced confessions.

The more outrageous the violation, the stronger deterrent we need, and consequently the wider the sweep of the “fruits doctrine” should be. If, on the other hand, the rule violated stands low in our hierarchy of values, the argument that violation must be deterred at all costs is considerably less compelling.

In common law jurisdictions like India, the application of this doctrine has been rather weak. There is an absence of legislative sanction that allows for excessive discretion by courts to exclude illegally obtained evidence. In the Indian Evidence Act of 1872, relevant facts under Section 3 are the only factor considered while contemplating admissibility. Even though its impropriety or illicit collection reduces the weight and importance it carries, it nonetheless is relevant. This shows that India follows the strictest form of legality in this regard and is ‘statute-oriented’ approach.

In criminal prosecutions the exclusionary rule conflicts with another interest of society convicting the guilty. Hence, departures ‘from the primary evidentiary criteria of relevancy and trustworthiness must be justified by some strong social policy.’

The policies of admitting relevant and reliable evidence and convicting the guilty create a shield to repel the exclusionary rule’s effects. This may well explain the continued vitality, if not the origin of, the standing requirement, the use of illegally obtained evidence for impeachment purposes, the harmless error rule, the refusal of courts to go behind guilty pleas, and the ‘attenuation of the taint’ doctrine.

Conclusion

The consequences that could flow from non-compliance with search procedure in grave, especially in India, as the courts are of the opinion that even though the evidence is illicitly obtained, it is still admissible to the extent of relevance. It is upon the discretion of the court whether or not to allow admittance of the “tainted fruit.” The effect of admissibility of illicitly obtained evidence could even violate the individual’s fundamental right to privacy. In my opinion, the position in India, ought to change and uphold the fundamental right to privacy to atleast a reasonable extent.

There is a marked difference in the Indian and American jurisprudence, regarding the admissibility of the ‘tainted fruit.’ In the context of the United States, the convoluted maze of conflicting rules and approaches found in the subset of Fourth Amendment cases that involve tainted warrants reflects the overall incoherence of the Supreme Court’s Fourth Amendment jurisprudence. At bottom, the exclusionary rule is meant to incentivize constitutional methods of criminal investigation. If law enforcement officials can simply sanitize any impermissible search by obtaining a warrant using the information uncovered by that predicate search, they have no reason to toe the constitutional line.

If deterrence is the main goal, the rule should probably be mandatory except in those situations where a reasonably well-trained officer would be unaware of a substantial risk that search and seizure rules were violated.


ABOUT THE AUTHOR

Eeshan Krishnatria

photograph

Eeshan is a third-year student from National Law University, Jodhpur. His areas of interest are Criminal Law, Constitutional Law, and Company Law. 

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