Sa’ar proposes new bill to strike problematic evidence

Campaign seeks to reduce false convictions, investigation abuses

Justice Minister Gideon Sa’ar on Monday officially put forth his bill to strike evidence which law enforcement obtained under problematic circumstances.

If all goes as Sa’ar plans, the government will approve the bill in 21 days, following which it will go to the Knesset for consideration.

The purposes of the new bill are to toss out evidence which police obtained in a manner that violated suspects’ rights as well as to deter such abuses in the future.

Part of the impact of striking such evidence from the record could be to increase the number of acquittals in the near future and even overturn some prior convictions.

Under the law, in order to disqualify evidence, the evidence must have been obtained in a way that “harms the right to a fair trial, which takes into account the public interest.”

The law has a wide application to the extent that it can apply, not only to evidence illegally obtained from the defendant, but it will also apply to evidence illegally obtained from third-party witnesses.

It is modeled after the principle of disqualifying evidence which is “the fruit of the poisonous tree,” meaning if the foundation of certain fruits (evidence) is poisonous (invalid) because the tree itself is poisonous (evidence was obtained illegally), then nothing (no conviction) can come of it.

Sa’ar’s proposed law comes after a task force headed by former Supreme Court justice Edna

Arbel recommended a similar law to him.

However, the Arbel commission had suggested a slightly narrower power for disqualifying evidence, suggesting that courts would need to weigh a wide variety of competing values before disqualification.

In contrast, Sa’ar’s bill will give broader power to courts to disqualify – as long as the evidence was obtained illegally – without having to consider any other competing legal principles, such as whether the judge thinks the defendant committed the crime.

The only other principle judges would need to consider would be the general public interest, but this would usually be neutral and not prevent disqualification because the public has an interest in preventing abuse by law enforcement.

The bill would anchor into law a judicial principle enunciated in the 2006 court decision known as Yisascharov, which allows judges to disqualify improperly obtained evidence, but leans toward them frequently accepting such evidence in practice as long as they think the defendant is guilty.

Sa’ar said that the new bill is important to maintain “the purity of judicial processes, the right of defendants to a fair trial and the obligation of law enforcement to act within the law.

Israel Bar Association President Avi Himi came out in favor of Sa’ar’s proposal.

A large segment of the bar association is defense lawyers whose clients would benefit from the new bill.