Suriel Frank Osorio Hernndez *-

The doctrine of the "fruit of the poisonous tree" according to which is inadmissible
at trial the evidence illegally obtained must be considered as within our practice of
law as a blunt tool to prevent lawsuits, whether oral or mixed traditional , may be
contaminated with illegal evidence, says the author.

The doctrine of the fruit of the poisonous tree is a legal product of metaphor used
to describe the product obtained evidence of a prior illegal act which was adjusted
to the formality of the process and therefore inadmissible at trial court. This
doctrine had its origin in the case Silverthorne Lumber Co. v. US, US 251 385
(1920) 1 in the United States, the analysis looked at the government's attempt to
use information obtained from accounting records original product of an illegal
intrusion address Silverthorne Lumber Company, for lack of warrant , which
kidnapped the physical records and ledgers that eventually returned to resolve
illegal the act, but not before making copies of such information then used to apply
the respective warrant against the owners, resolving the Court order that had been
issued based on information obtained in an illegal act contrary to the fundamental
rights of citizens were revoked.

In the case of our country, the requirement that the tests provide any trial are only
those that have been obtained legally, established in Articles 14, 17 and 20,
paragraph A, section IX, in relation to set out in Article 1 of the Constitution of the
United Mexican States. In the case of the United States, this principle is derived
from the Fourth Amendment.

In general, the provision establishing the Constitution, considered exclusionary

rule, which prohibits any evidence obtained in violation of fundamental rights is
void, not only applies to anything that is the product of illegal act of government
agents, but also for what is called secondary evidence, 2 which is typically the
"fruit of the poisonous tree" .3

This doctrine establishes three major exceptions worth looking into in order to
know the scope of it. The secondary evidence is admissible only under one of
three circumstances: 1) if it was discovered as a result of an independent source,
2) if it had been discovered inevitably despite the illegal and 3 act) the attenuated
link between the unlawful act and the evidence contaminada.4

In the first case, the analysis should cover the particular act alleged to be illegal
and the exact time when the secondary evidence, for purposes of determining
whether or not this was obtained was second product that poisoned tree; ie the
assumption of "independent source" applies if the evidence alleged to be illegal
was obtained based on a legal action agents government.5 Imagine police say
legally everyday person "D "during a criminal investigation; in the diary to "W",
who is an eyewitness to the criminal conduct of the person "D" is identified. The
authority contacts the witness "W", which accepts testify in trial of "D".
Subsequently, the authority Catea the home of "D", but this time do it illegally,
without a warrant, and discover documents that the witness "W" appears again
related. Under the assumption of independent source, you can not claim that the
testimony of "W" is the fruit of the poisonous tree, as this witness data were
obtained from the first legal action research mode.

In the second case, that the evidence alleged to be illegal inevitably would have
been discovered despite the illegal act, it is noted that the analysis, unlike the
previous assumption about the source, must tackle the circumstances of time and
place evidence was obtained, ruling that the unlawful act had been the only way to
get the evidence alleged to be inadmisible.6 Imagine the investigating police
conduct a search without a warrant at the accused home; while you are there, the
wife of the suspect is questioned, and she tells them that her husband is outside in
the neighborhood, selling drugs, and is to come. The officers on the street waiting
the arrival of the accused who addressed immediately. The strong odor of
marijuana bouncing betrays his criminal conduct, so that agents come to make a
review of your vehicle, whose trunk are several kilos of drugs. In this particular
case, the information obtained from the wife of the accused is not a prerequisite
for the arrest occurred, regardless of who performed the illegal intrusion by
government agents. Here, awaiting the arrival of the defendant as part of a joint
investigation procedure had been found under the same conditions for the arrest,
ie the first time was not a prerequisite for the occurrence of the second moment.
Obtaining the evidence was inevitable according to the way in which the arrest
occurred.

Finally, in what regards the third course, on the attenuated link between the
unlawful act and contaminated evidence, explained as to the circumstances of time
and how the performance of both government officials and those who allege
unlawful the evidence; in this particular case it is necessary to establish that
although the contaminated evidence arises under an illegal act, the analysis on this
unlawfulness must be on whether this act outside the law truly originated
obtaining the evidence or that relationship is so tenuous that may be considered
free from the effects of the illegal act, stating that this analysis corresponds
directly to the judge and depends on self-determination in the judicial activity, and
especially in respect particular.7 Imagine if a subject is arrested illegally and taken
to the offices of the Attorney General where he was notified that he is being
investigated for a crime of theft. He later left to itself on the grounds that his
detention was illegal. But hours later the subject returned and after you are read
your rights as a defendant decides to testify about the facts and accept
responsibility. In light of this third scenario, although it seems that the confession
was obtained as a result of the psychological pressure of authority for its action to
stop illegally, the fact is that once it is released voluntarily the defendant decides
to return and confess his criminal conduct, so that then the effects of the illegal act
of investigating officers are attenuated leading to the admission of the confession
as a result of a voluntary act of the accused and legal. In the event the defendant
to stop, take him to the offices of research, without a warrant, and being in that
place will be informed of your rights and the defendant then decides to confess,
under the analysis of this third course, would be in the presence of an illegal act
and the confession would be fruit of the poisonous tree because the circumstances
in which the confession is generated are immediate product of an unlawful act, not
being allowed the accused to reflect on this illegality and originating therefore its
confession.

In this regard, the Supreme Court of Justice has established a legal test that opens
the possibility of using this type of argument in a legal process that must be
resolved by the tribunal. This criterion has the category "illegal evidence. the right
to due process includes the right not to be judged from evidence obtained outside
the constitutional and legal requirements ", the contents of the letter says:" To
demand the annulment of the illegal evidence is a guarantee that assists you to
accused throughout the process and whose protection can make to the courts
alleging as grounds: i) Article 14 of the Constitution, to make it a condition of
validity of a criminal conviction, respect for the essential formalities of procedure,
ii) the right that judges conduct themselves with fairness, in terms of Article 17 of
the Constitution and iii) the right to an adequate defense that every accused
person in accordance with Article 20, section IX, of the Constitution of the United
Mexican States. In this sense, respect for the right to be tried by impartial courts
and the right to an adequate defense, it is clear that a test whose production has
been uneven (either because they violate the constitutional order or legal) is
intended, it can not but to be considered invalid. Otherwise, it is clear that the
accused would be disadvantaged status to enforce his defense. Thus, the
exclusionary rule of illegal evidence is implicitly provided for in our constitutional
order. Furthermore, Article 206 of the Federal Code of Criminal Procedure
provides, conversely, that any evidence that goes against the law must be upheld.
This derives from the preferred position of fundamental rights in the system and its
asserted condition inviolable. "

Thus, under the wording of the above criteria, the theory studied here can be
referenced within a legal argument and must be regarded as within our practice of
law as a blunt tool to prevent lawsuits, and whether oral or traditional mixed, can
be contaminated with illegal evidence, since the exclusionary rule of illegal
evidence, although it is not literally mentioned, is implicitly contained in section IX,
paragraph A of Article 20 of the Constitution, especially since Article One of the
Constitution, in the second and third paragraphs, states that the authorities are
obliged to respect and guarantee human rights in accordance with federal8
Constitution and the treaties to which this subject matter is Mexico, ie, to "apply a
constitutional control "or" control of compliance ".

NOTES

* Frank Osorio Hernndez Suriel is master of law in advocacy for the Southwestern
Law School in Los Angeles, California, and international certified trainer oral
litigation techniques by the National Institute for Trial Advocacy in Louisville,
Colorado.

[1] See List of the Supreme Court Cases, vol. 251, case 385 (1920).

2 Joshua Dressler, Understanding Criminal Procedure, 3rd ed., Lexis Nexis, 2002,
p. 413.

3 Idem.

4 James J. Tomkovicz, Criminal Procedure, Law Course Outlines, 2007, p. 218.

See Wayne R. LaFave 5, Criminal Procedure, 5th ed., West, 2009, p. 525-531.

6 Idem.

7 See Joshua Dressler and Alan C. Michaels, Undestanding Criminal Procedure, 4th
ed., Lexis Nexis, 2006, p. 408

8 Constitution of the United Mexican

States, http://www.diputados.gob.mx/LeyesBiblio/ref/cpeum.htm.