On June 30, 2022, the Knesset (Israel’s parliament) approved the Evidence Ordinance (Amendment No. 19) Law, 5782-2022 (amendment law). The amendment law added section 56A(a)–(b) to the Evidence Ordinance [New Version] 5731-1971, as amended (the law). The new provision regulates the rules that apply to the disqualification of unlawfully obtained evidence in criminal trials. The rules are referred to in the Israeli press as the Israeli version of the “fruit of the poisonous tree” doctrine.
The amendment law was approved unanimously against the background of the agreements between the coalition and the opposition to dissolve the Knesset.
Rules Governing Inadmissibility of Evidence
In accordance with section 56 of the law,
[e]vidence that is inadmissible in a criminal trial and was obtained by mistake or inadvertently will not serve as proof of guilt and no verdict may be based on it; nevertheless, the fact that the court heard the evidence will not invalidate the verdict, unless the court believes that the defendant would not have been convicted had the evidence not been given or there is no sufficient evidence other than the [inadmissible evidence] to support the conviction.
Section 56A(a) added by the amendment law authorizes a court adjudicating a criminal trial to disqualify evidence that was obtained unlawfully, including any item or statement by a defendant or a witness, or any other evidence, if the court has determined that “its admission would materially prejudice the right to due process, taking into account the nature and severity of the violation, the extent to which the violation affects the evidence obtained, and the public interest in admitting or not admitting the evidence; in this subsection, ‘violation’ means obtaining evidence unlawfully.”
In accordance with section 56A(b), the authority to not admit evidence obtained unlawfully under section 56A(a) does not affect rules established by other legislation governing inadmissibility of evidence. According to the explanatory notes of the amendment law’s draft bill, such rules include those governing inadmissibility of coerced admissions, unlawful wiretapping, or violation of privacy rights.
Objectives of the Amendment Law
According to the draft bill’s explanatory notes, the amendment law’s objective was to protect suspects’ and defendants’ rights and “the fairness and purity of criminal proceedings,” as well as to educate and deter investigative authorities from engaging in unlawful investigative activities.
The amendment law was intended to provide a legislative basis for the disqualification of evidence, previously addressed by the Supreme Court’s ruling in the Issacharov precedent. The inadmissibility rule established by the court was intended to promote fairness and prevent violation of an individual’s right to due process, recognizing that the admission of unlawfully obtained evidence in trial might
tarnish the conviction and undermine its legitimacy, even if there is no concern for the veracity of the evidence. Admission of the evidence may lead to the court being perceived as having legitimized … after the fact the illegality of the investigators’ behavior, which could harm the purity of the judicial process, the public’s trust in it, and the protection of the defendant’s rights. There is also a concern that basing a conviction on evidence of this type may create an incentive for future unlawful investigative actions. (Amendment Law Draft Bill, p. 56.)
The inadmissibility rule, however, provided the court discretion in excluding evidence in order to balance the interest in protecting the fairness of the criminal proceedings with other objectives, such as discovering the truth and protecting public welfare. The conditions guiding the court in exercising its authority were further developed by judicial decisions rendered following the Issacharov precedent.
According to the explanatory notes, the amendment law would provide for the first time a legislative basis for the authority of courts to disqualify evidence obtained illegally and thus strengthen the right to due process. It would give the courts broad discretion to evaluate “the intensity of the violation while balancing all the considerations relating to the matter, in accordance with the circumstances of each case.” (P. 57.)
According to an Israeli press report, the amendment law reflects “softening” of the initial proposal by Minister of Justice Gideon Saar on the subject:
Sa’ar requested that evidence and testimonies that were unlawfully collected during police investigation be easily disqualified, while the version formulated by the Ministry of Justice stated that “a bill to amend the Evidence Ordinance (Disqualification of Evidence) is intended to enshrine in legislation the power of the court to disqualify evidence obtained unlawfully. The proposal establishes a relative disqualification rule that leaves the court broad discretion in making the decision.”…
The proposal … was softened because … the Israel Security Agency [ISA] and the Police Investigations Division expressed genuine concern about the approval of the law. Security officials involved in the legislation have expressed concern that the limitations imposed by the law will have a significant impact on ISA interrogations [and] on the work of collaborators, who sometimes work illegally, and will dramatically interfere with the operation of Jewish agents among extremist subversive organizations. The police were concerned about the law mainly on two levels – efforts to eradicate organized crime and the eradication of heavy economic crime. According to senior officials, the main concern is that organized crime lawyers, who are considered very sophisticated, will exploit every loophole in the law to release their clients, ask for the disclosure of secret evidence and expose frightened witnesses, thereby thwarting methods of exposing serious criminal elements and thwarting progress in investigations. With regard to economic crime, there is also concern that methods involving cyber and hacking into computers will not be permitted.