Features of the Implementation of the American “Fruit of the Poisonous Tree” Doctrine in Georgian Criminal Procedural Legislation, Comparative Analysis, and Assessment of International Relevance

Abstract

Article 72 of the Criminal Procedure Code of Georgia, in comparison with the previous Criminal Procedure Code, provides a limited list of items that may be considered inadmissible evidence. First of all, it should be noted that the current Georgian procedural legislation incorporates the long-established judicial doctrine in the American system of criminal procedure known as the “fruit of the poisonous tree”, which is a legal theory and serves as a basis for the exclusion of evidence in criminal cases. According to this doctrine, evidence obtained through a substantial violation, as well as other evidence lawfully obtained based on such evidence, is inadmissible and has no legal force if it worsens the legal position of the accused.

The paper demonstrates the features of the implementation of the so-called “fruit of the poisonous tree” judicial doctrine in Georgian criminal procedural legislation and judicial practice. The lawful implementation of this doctrine is of crucial importance in the process of administering justice with regard to the protection of human rights guaranteed by the Constitution.

Based on investigative and judicial practice, the paper also presents the type of inadmissible evidence provided for in Article 72, Part 2 of the Criminal Procedure Code of Georgia, which is obtained legally, but where there is no reasonable doubt regarding its possible replacement, substantial alteration of its characteristics, or the substantial disappearance of traces left on it.

Keywords: Inadmissible evidence, exclusion of evidence, judicial doctrine, authenticity of evidence, exclusionary rule of evidence.

Introduction

In Georgian criminal procedure, the admissibility of evidence is one of the key elements in ensuring a fair trial, since it is through evidence alone that the factual circumstances of a case are established and a final procedural decision is made. In this context, the provision of Article 31(10) of the Constitution of Georgia acquires fundamental importance, according to which evidence obtained in violation of the law has no legal force.

The issue of inadmissible evidence was regulated in more detail by the previous Criminal Procedure Code of Georgia, which under Article 111 defined a list of circumstances under which evidence lost its legal force (for example, evidence obtained by an unauthorized person; from a source not provided for by law; in violation of the established legal procedure; as well as through the use of violence, threat, deception, blackmail, humiliation of a person, or other unlawful acts; or obtained from a person who violated the law or who is unable to indicate from which source, where, when, and how the information he/she presents was obtained).

The current Criminal Procedure Code of Georgia, under Article 72, compared to the previous regulation, has given the institution of inadmissible evidence a more functional content and has introduced into the legal system an approach characteristic of American criminal procedure law—namely, the judicial doctrine known as the “fruit of the poisonous tree”, which serves as a basis for the exclusion of evidence from criminal proceedings. According to this doctrine, evidence obtained through a substantial violation, as well as other evidence lawfully obtained based on such evidence, is inadmissible and has no legal force if it worsens the legal position of the accused.

Although Article 72 formally reflects the basic logic of this doctrine, a number of problematic issues still exist in Georgian legal doctrine and judicial practice, which determine the relevance of this research. In particular, it has not been sufficiently studied how consistently derivative (derivative) evidence is excluded in judicial practice, by what criteria a “substantial violation” is determined, and how this institution is applied in cases where evidence is formally obtained lawfully, yet there is reasonable doubt regarding its authenticity (Article 72(2) of the Criminal Procedure Code). At the same time, the assessment of how this institution is applied in practice in relation to international standards of fair trial—particularly Article 6 of the ECHR and Article 14 of the ICCPR—remains a separate research necessity. It is possible to identify a distinction between the formal transplantation of the doctrine and its effective functional operation in Georgian criminal proceedings.

Accordingly, the main research question of the paper is formulated as follows: how effectively and consistently is the “fruit of the poisonous tree” judicial doctrine implemented in Georgian criminal procedural law (within the framework of Article 72 of the Criminal Procedure Code), and to what extent does it ensure the protection of fundamental human rights in judicial practice?

The aim of the research is, on the one hand, to determine the practical features of the application of Article 72 of the Criminal Procedure Code of Georgia, and on the other hand, to assess the effectiveness of this norm in relation to the constitutional and international framework of human rights protection. To achieve this aim, the paper sets the following objectives: (1) to analyze the normative content of Article 72; (2) to compare the Georgian model with the U.S. exclusionary rule and the “fruit of the poisonous tree” doctrine; (3) to evaluate judicial practice in terms of how uniformly and predictably inadmissible evidence is excluded.

The novelty of the paper lies in the fact that it examines the “fruit of the poisonous tree” doctrine in the Georgian legal context, not merely as a normative transplantation (legal transplant), but as a functional procedural mechanism whose real effectiveness is assessed based on judicial practice. The research particularly focuses on issues that have been relatively under-analyzed in Georgian legal scholarship, including the practical criteria for excluding derivative evidence, the standard defining a “substantial violation”, and the practical significance of reasonable doubt regarding the authenticity of evidence (Article 72(2) of the Criminal Procedure Code). In addition, the paper proposes an evaluative framework that considers the Georgian approach in relation to international human rights standards (ECHR, ICCPR), which gives the research findings broader comparative and international applicability.

The practical and theoretical significance of the paper is expressed in the fact that its results represent an assessment of the legal transplantation of exclusionary doctrines in the Georgian context, which creates the possibility that the conclusions drawn may also be applied in other common law systems (e.g., England and Wales), where it is the judge who decides whether a given piece of evidence should be deemed inadmissible.

Methodology

The paper employs doctrinal and comparative-legal research methods aimed at identifying and assessing the features of the implementation of the “fruit of the poisonous tree” doctrine in Georgian criminal procedural law.

The research is based on a normative analysis of Article 31 of the Constitution of Georgia and Article 72 of the Criminal Procedure Code, including an examination of issues such as the inadmissibility of evidence, the exclusion of derivative evidence, and the criteria of evidentiary authenticity.

Within the framework of comparative legal analysis, the Georgian regulation is assessed in relation to the exclusionary rule developed in the United States legal system and the “fruit of the poisonous tree” doctrine, with reference to relevant judicial precedents.

The paper also relies on the study of Georgian judicial practice, in particular the analysis of the positions of the Supreme Court of Georgia, in order to identify trends in the practical application of Article 72 and the consistency of its use.

The international dimension is considered through the integration of human rights protection standards, specifically in the context of Article 6 of the ECHR and Article 14 of the ICCPR, on the basis of which the compliance of Georgian practice is assessed.

In forming conclusions, systematic and teleological interpretation methods are applied to evaluate the institution of inadmissible evidence as a mechanism for protecting rights, controlling law enforcement authorities, and ensuring fair criminal proceedings.

The research is based on the analytical framework of legal transplants and assesses the effectiveness of the transplantation of exclusionary doctrines in the Georgian context, which makes it possible for the findings to be applied in other common law systems (e.g., England and Wales), where it is solely the judge who decides whether a given piece of evidence is admissible.

FINDINGS AND DISCUSSION
1. Comparative-legal aspects of doctrines in the administration of justice

1.1. General Characteristics of the Judicial Doctrine of the “Fruit of the Poisonous Tree”

For comparative analysis, it is necessary to conduct a parallel examination of Georgian law with the corresponding doctrine and case law of the United States, specifically by analyzing the model established under Article 72 of the Criminal Procedure Code of Georgia in parallel with the U.S. “fruit of the poisonous tree” doctrine, to identify their similarities, differences, and features of implementation.

The judicial doctrine of the “fruit of the poisonous tree” forms part of the exclusionary rule in current U.S. criminal procedural law. The exclusionary rule was first applied by the U.S. Supreme Court in 1914 in Weeks v. United States. The case concerned a violation of the Fourth Amendment by a federal agent, where evidence was obtained through the unlawful seizure of private correspondence. The Supreme Court held that the prosecution must not be based on letters and correspondence unlawfully seized from a person’s home. Subsequently, the scope of the exclusionary rule was expanded, and it was also applied to evidence obtained based on unlawfully acquired information. According to the exclusionary rule, information obtained through an unlawful search, arrest, or coercive interrogation must not be admitted in a criminal case.

The “fruit of the poisonous tree” doctrine goes further, establishing that evidence subsequently obtained based on information derived[1] from an unlawful source must also be excluded from criminal case materials.

Like the exclusionary rule, the purpose of the “fruit of the poisonous tree” doctrine is to prevent unauthorized searches and other unconstitutional actions. Naturally, unlawful searches conducted by law enforcement agencies result in violations of constitutional rights, such as the right to personal inviolability, property rights, and others. In the United States, human rights are strictly protected by the Constitution, and violations of these rights entail serious consequences.[2] Any violation of the Bill of Rights in criminal proceedings leads to the exclusion of evidence from the criminal case. On this basis, the scope of the exclusionary rule was expanded, and from 1920 the “fruit of the poisonous tree” doctrine became established following the U.S. Supreme Court’s decision in Silverthorne Lumber Co. v. United States.

The facts of the case were as follows: Frederick Silverthorne was suspected of violating federal laws in the timber business, and federal agents conducted a search of his office without a valid warrant. Based on the information obtained during this unlawful search, the prosecutor also requested authorization to obtain additional documents, which the court granted. Silverthorne, who did not plead guilty, refused to submit the documents and was subsequently arrested for contempt of court.

The case was later brought before the U.S. Supreme Court. The Court held that the search of Silverthorne’s office had been conducted unlawfully; therefore, the prosecution should not have been based on information obtained through that search. The U.S. government argued that it was entitled to make copies of the documents and use the information derived from them for prosecution. The Court rejected this argument and held that, under the exclusionary rule, information obtained unlawfully must not be used at all in criminal proceedings.

Silverthorne had sought only the exclusion of the information obtained through the initial unlawful search, but it was precisely this initial act that opened the way for the exclusion of subsequently obtained evidence. Thus, this is a case where an initial investigative action was conducted unlawfully, which led to the invalidation of later legal actions.[3]

The purpose of the “fruit of the poisonous tree” doctrine is precisely to ensure that legal consequences do not arise either from the initial unlawful act or from subsequent acts based on it.

The term “fruit of the poisonous tree” was first used by U.S. Supreme Court Justice Felix Frankfurter in 1939 to justify the Court’s decision in Nardone v. United States.

The essence of the case was as follows: the first-instance court of the United States rendered a guilty verdict against Frank Nardone, finding him guilty of smuggling and concealing alcoholic substances. The primary evidence in the case consisted of information obtained through the interception of telephone conversations. Frank Nardone appealed the verdict to the appellate court on the grounds that the evidence against him had been obtained in violation of the Fourth Amendment of the U.S. Constitution. The appellate court established that, during the interception of Nardone’s telephone conversations, the 1934 Communications Act had been violated. The appellate court overturned the first-instance court’s guilty verdict and emphasized that the defendant had no opportunity to prove that the data used against him constituted the “fruit of the poisonous tree”.[4]

This decision subsequently acquired guiding significance for other courts, meaning that if law enforcement agencies obtain evidence through a gross violation of law (i.e., “poisoning the tree”), then evidence obtained based on such material (“the fruit poisoned by the tree”)[5] cannot be used as evidence. It should be noted that under U.S. procedural law, to protect the rights of each citizen, evidence obtained in violation of procedural law is not considered admissible.

The necessity of classifying the grounds for admissibility of evidence in the U.S. administration of justice is divided, according to the method of their determination, into two groups: general and special.[6] This division is caused by the influence of the “fruit of the poisonous tree” doctrine, which provides both a basis for the inadmissibility of evidence and a mechanism for restoring the legal force of inadmissible evidence. As noted above, this doctrine originated in the body of U.S. Supreme Court precedent in the 1920s. As stated in a decision of the U.S. Supreme Court: “The essence of the rule prohibiting the obtaining of evidence by certain means is that not only evidence obtained unlawfully may not be used in our courts, but such evidence may not be used at all”.[7] In other words, the “poisonous tree” produces “poisonous fruit”; the acquisition of evidence based on information obtained from inadmissible evidence renders it inadmissible.

It should be noted that some American scholars effectively allow the use of the “fruit of the poisonous tree”. As D. Fauver notes, information that was obtained from an improper source (for example, from a person who cannot testify as a witness, or from an expert subject to recusal) and has therefore been deemed inadmissible may, in certain cases, be used in a manner similar to operational intelligence.[8] L. Hurley refers to this doctrine as a postulate of evidentiary law. According to him, the poisoned tree produces poisonous fruit. This postulate, in his view, means that if evidence is obtained unlawfully and its reliability is thereby called into question, then other evidence derived from the examination of the first becomes doubtful and therefore inadmissible. As we can see, he applies this doctrine only when a violation of admissibility conditions calls the reliability of the evidence into question.[9] Accordingly, it is necessary to determine whether there should be a relationship between admissibility and evidentiary reliability here, or whether the “fruit of the poisonous tree” arises in other circumstances, where evidence is deemed inadmissible but affects reliability. Finally, the author’s reference to the “fruit” arising from the examination of the “first” piece of evidence remains unclear. S. McCracken notes that if investigative actions are excluded from the category of admissible procedures, during which physical evidence was seized, then factual data obtained as a result of their examination (for example, in an expert report) must also be declared inadmissible.

The exclusionary rule of evidence in the United States became a subject of intense debate starting in the 1980s. It is undisputed that the evidentiary process must be conducted within a strict legal framework; however, its absolute formalization is also unjustified. Due to the emergence of certain problems, exceptions to the “fruit of the poisonous tree” doctrine were established through judicial precedent. Three doctrines limit the legal scope of the “fruit of the poisonous tree” theory: 1. the independent source doctrine; 2. the inevitable discovery doctrine; 3. the attenuation (or purification/mitigation of illegality) doctrine.

According to the independent source doctrine, evidence is admissible if it originates from two sources, only one of which is tainted. The independent source doctrine allows the preservation of information in criminal proceedings if the reliability of the information is confirmed. This rule, on the one hand, ensures the legality of evidence, and on the other hand, does not endanger the sufficiency of evidence.

There are various legal methods for preserving the legal force of evidence, such as obtaining additional new factual data confirming the circumstances contained in questionable evidence; identifying another source of information containing similar data, etc. In this regard, the case United States v. Akridge is noteworthy, where the independent source doctrine is identified as one of the exceptions, and the following example is given: if the police had an “independent source” for discovering the evidence, such evidence should not be excluded.[10]

1.2 The Inevitable Discovery Doctrine

This doctrine establishes the following exception to the exclusionary rule: unlawfully obtained information is admissible if it is established with a high degree of probability that, under normal investigative conditions, the evidence would inevitably have been discovered. However, in such cases, the reliability of the evidence is not actually confirmed. When assessing the admissibility of evidence, a mere assumption of the existence or non-existence of a fact cannot be sufficient, even if such an assumption is highly probable. Any doubt must be resolved in favor of the accused, which is the main legal guarantee of the presumption of innocence.[11]

1.3 The Attenuation (Mitigation of Illegality) Doctrine

As for this doctrine, it provides that if the causal connection between the “initial error and the final piece of evidence is weak, the judge may conclude that the error has been forgotten, attenuated, or purged”.[12]
2. Procedural Issues in Judicial Practice

According to the judicial doctrine of the “fruit of the poisonous tree”, if a court declares the execution of a search of a person’s residential premises inadmissible, then the firearm seized as a result of that search is also considered inadmissible evidence. Furthermore, if other types of evidence are lawfully obtained based on such inadmissible evidence (for example, witness testimony, etc.), and this worsens the legal position of the accused, all collected evidence in the case is deemed inadmissible and has no legal force.

In the practice of Georgian courts, there are examples of the actual application of the discussed doctrine. In particular, in a cassation protest, the prosecutor requested the annulment of an acquittal judgment delivered by a city court in the case of K., on the grounds of substantial violations of the requirements of the Criminal Procedure Code of Georgia. One of these alleged violations, in the prosecutor’s view, was the following: the judge unjustifiably excluded from the case file the search protocol conducted in K.’s office, physical evidence—namely a grenade and two launching devices—and the conclusions of ballistic and explosive expert examinations.[13]

The Supreme Court of Georgia upheld the acquittal judgment and stated the following: the arguments presented in the cassation protest by the prosecutor, according to which the judge unjustifiably excluded part of the evidence from the case file, are contrary to the applicable legislation. The judge correctly excluded from the case file such evidence as the search protocol conducted in K.’s office, a hand grenade, two metal objects in the form of pens, which were recognized as firearms, as well as the conclusions of ballistic and explosive-technical expert examinations, since these pieces of evidence had been obtained in violation of the law.

The Supreme Court, referring to the violations of the Criminal Procedure Code of Georgia committed during the search in K.’s office, further noted that, given that in the present case the seizure of items was carried out in violation of the law, the judge correctly excluded from the case file both the physical evidence and the expert opinions based on them.

In judicial practice, Georgian courts have also issued similar decisions in which a personal search report, during which items were seized from the victim, was declared inadmissible. In fact, the personal search was substituted by an investigative action such as a seizure. In this case, the results of the personal search did not meet the admissibility criterion of proper evidentiary collection methods. In effect, by applying the “fruit of the poisonous tree” doctrine, the court also declared inadmissible an expert opinion containing conclusions on the mechanism of inflicting damage to these items. As can be seen, the court adopted a fully reasoned and lawful decision. It is no secret that theoretical provisions are not always fully reflected in practice.

On 26 July 2016, the Criminal Chamber of the Supreme Court of Georgia considered the cassation appeal of the prosecutor of the Gldani–Nadzaladevi District Prosecutor’s Office of Tbilisi against the judgment of the Criminal Chamber of the Tbilisi Court of Appeals of 22 March 2016, according to which G. Z., G. K., and I. T. were charged with having, on 12 December 2014 at 23:50, while travelling in a taxi driven by Z. B. in an “Opel Vectra” vehicle with license plate number ..., by prior agreement and through threats of life-endangering violence, stolen 25 GEL in cash; a car stereo with a monitor; a “Samsung” mobile phone with SIM card ...; an “Osram” round-shaped flashlight; a silver chain; a souvenir dagger with its sheath; and an “Orient” wristwatch. After that, G. K. forced the driver under threat to remove his sleeveless so-called “duty” jacket. Since Z. B. faced a real threat of loss of life and injury, he complied with the demand and removed the jacket, which was worn by I. T. Subsequently, they opened the vehicle’s trunk, where car tools and spare parts were kept, which the members of the criminal group appropriated and divided among themselves. As a result of the criminal act, the victim Z. B. suffered both moral and property damage in the amount of 700 GEL.

By the judgment of the Criminal Chamber of the Tbilisi City Court of 2 September 2015, G. Z., G. K., and I. T. were acquitted of the charges brought against them under Article 179(2)(b) and 179(3)(a) of the Criminal Code.

Based on the appellate complaint submitted by the prosecutor of the Gldani–Nadzaladevi District Prosecutor’s Office, the Criminal Chamber of the Tbilisi Court of Appeals, by its judgment of 22 March 2016, upheld the decision rendered by the court of first instance.

The acquittal judgment of the judicial authorities was based on the finding that the collection of evidence, namely the investigative actions, had been carried out in substantial violation of the law. In particular, according to the case materials, the inspection of the vehicle belonging to the victim Z. B. was conducted on 13 December 2014, between 01:57 and 03:55. The inspection report states that the victim allegedly gave written consent to the inspection of the vehicle and signed it; however, no written consent from the victim for the investigative action was found in the case file.

According to the victim Z. B.’s testimony given before the court of first instance, he did not attend the inspection of the vehicle. He also stated that on that day, apart from his interrogation, he did not sign any other document, and during his testimony, the investigator did not show him any additional documents. Furthermore, the victim’s interrogation at the police station took place on 13 December 2014, from 01:00 to 02:00, that is, at the time when the vehicle inspection was being conducted at the scene.

In court, the investigator stated that the victim did not attend the inspection of the vehicle, which in turn contradicted the testimony given by the expert in court, according to which the vehicle inspection was conducted in the presence of the victim. At the same time, the vehicle inspection report was drawn up in substantial violation of the requirements of Article 125(2) of the Criminal Procedure Code of Georgia and could not serve as a basis for a guilty verdict.

Between 01:57 and 03:55 on 13 December 2014, in the presence of experts, an inspection of the “Opel Vectra” vehicle was conducted, during which samples of odour traces and fingerprints were collected, as well as micro-particle samples from the surface of the vehicle seat. Dactyloscopic and odorological expert examinations were carried out. According to the dactyloscopic expert report, the fingerprint trace obtained was identical to the palm print sample of G. K.’s left hand. According to the odorological expert report, it was established that four odour trace samples taken from the rear seat of the vehicle were identical to the odour samples taken from G. T., G. K., and G. Z.

The Criminal Chamber of the Supreme Court of Georgia, by its judgment №251ap–16 of 26 July 2016, upheld the acquittal judgments rendered by the lower court instances. It also, like the first-instance and appellate courts, did not take into account the dactyloscopic and odorological expert reports, which had implicated the defendants in the incriminated acts, and stated that, pursuant to Article 72(1) of the Criminal Procedure Code of Georgia, evidence obtained through a substantial violation, as well as other evidence lawfully obtained based on such evidence, is inadmissible and has no legal force if it worsens the legal position of the accused.[14]

In this regard, there is a differing viewpoint. For example, Ia Chkheidze considers the “fruit of the poisonous tree” judicial doctrine to be incorrect. The researcher writes: “Criminal proceedings will only have a claim to objectivity when the case contains objective evidence. In turn, it is impossible even to speak about the objectivity of evidence if the source of this information is unreliable. Therefore, information obtained based on unlawful information must be considered inadmissible evidence, and no exceptions should be allowed, as is established by Article 72 of the Criminal Procedure Code”.[15]

It is evident that in criminal proceedings, the admissibility of false, unreliable, or doubtful evidence would simultaneously imply the possibility of imposing liability on an innocent person, which contradicts not only constitutionally guaranteed human rights but also the objectives of criminal prosecution itself.

According to Article 72 of the Criminal Procedure Code of Georgia, it is impermissible to confuse evidence with the testimony of the accused, which was given at the investigative stage without a lawyer or even with the participation of a lawyer, and which has not been confirmed either by the case materials or by the accused during interrogation in court.

The inadmissibility of the accused’s interrogation at the investigative stage constitutes a special ground, since in this case Article 72 of the Criminal Procedure Code of Georgia does not link such consequences to any violation of a legal norm. During interrogation of the accused, it is possible to comply with all procedural requirements even in the absence of a lawyer, and only due to their non-confirmation in court is the judge obliged to declare such statements inadmissible.[16]

Thus, if one follows the “fruit of the poisonous tree” doctrine, then evidence obtained based on inadmissible testimony of the accused and/or other participants in the proceedings must also be declared inadmissible by the court. At the same time, the inadmissibility of testimony in this case should be conditioned by a violation of the norms of the Criminal Procedure Code. This doctrine represents a logical “continuation” of the sanction for procedural violations.

A different situation arises with regard to the consequences of excluding the accused’s testimony when such statements are not confirmed during interrogation at trial; this requirement serves as a specific mechanism restraining the investigative authorities from “excessive activity” during the interrogation of the accused. The restraining mechanism here is based on the fact that such “excessive activity” does not produce a favorable result for the prosecution, as the statements will be deemed inadmissible and cannot form the basis of the accusation.[17]

It is also important to consider the circumstances specified in Article 72(2) of the Criminal Procedure Code regarding the inadmissibility of evidence that has been obtained in compliance with the procedures established by this Code, but where there is unresolved reasonable doubt concerning its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces left on it.

This legal norm has exceptionally important practical significance in the field of human rights protection. On 23 April 2014, police officers of the Main Division of the Tbilisi Ministry of Internal Affairs conducted a personal search of Z. G.-shvili, who was accused of murder. The seized items were packaged and sealed. The search protocol recorded the following items: 220 GEL in cash, a “Metromani” card, one bullet, medications, and cigarettes.[18]

More than nine months later, during the judicial examination stage, an inspection of the items seized during the personal search of the accused was conducted, during which additional items were discovered, namely a lighter and receipts for the purchase of medication, which had not been recorded in the search protocol at all. Moreover, during the court hearing, the prosecutor presented a sealed and packaged mobile phone to the court and explained that this phone had been seized from the accused Z. G. during a personal search conducted on 26 April 2014, but the investigator had failed to inspect it and include it in the search protocol (the prosecution did not even include the mobile phone in the list of evidence).

As it turned out, the mobile phone seized during the search had been stored in the police department for more than nine months, and therefore, there was unresolved reasonable doubt regarding its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces on it. For this reason, the judge declared the mobile phone inadmissible as evidence on this basis.

According to Article 72(3) of the Criminal Procedure Code of Georgia, the burden of proving the admissibility of prosecution evidence and the inadmissibility of defense evidence lies with the prosecutor; however, the issue of declaring evidence inadmissible is ultimately decided by the court. The court’s decision must be reasoned.

For example, by the ruling of the Investigative Chamber of the Tbilisi Court of Appeals of 2 February 2018, the complaint of the defense counsel was upheld. It was established that, during the pre-trial hearing of 25 January 2018, the judge of the Tbilisi City Court granted the prosecution’s motion to declare part of the defense evidence inadmissible, and accordingly excluded from evidence a letter dated 21 September 2017 issued by the National Forensic Bureau named after Levan Samkharauli (XXX), as well as photographic illustrations attached to the inspection report prepared by the defense.

The pre-trial judge based the inadmissibility of the defense evidence on the following grounds: (1) the authenticity of the letter XXX of the National Forensic Bureau could not be established, and it was unclear on what basis it had been obtained; (2) although no procedural norms of the Criminal Procedure Code were violated during the inspection, the attachment of photographs to this report constituted a separate new investigative action, thereby violating the requirements of Article 136 of the Criminal Procedure Code.

The ruling of the Investigative Chamber of the Court of Appeals indicates that, with regard to the authenticity of evidence, Article 72(2) and (4) of the Criminal Procedure Code of Georgia provides the following: evidence is inadmissible if it has been obtained in compliance with the procedures established by this Code, but there remains unresolved reasonable doubt regarding its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces left on it.[19]

As follows from the challenged decision, the judge of the pre-trial hearing considered as a questionable circumstance the fact that the case file did not contain, nor was there any preceding application from the lawyer on the basis of which the National Forensic Bureau issued a written response. In this regard, the judge of the Investigative Chamber noted that the letter of the forensic institution was issued based on a lawyer’s application, and this is confirmed by a letter issued on behalf of the Head of the Legal Department of the National Forensic Bureau, which, in addition to the content of the application, also indicates its registration number.

The judge of the Investigative Chamber concluded that the absence of a copy of the lawyer’s application does not deprive the disputed letter of its authentic character and legal force, since its origin is known and reasonable doubt regarding its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces on it has been excluded.

As for the inspection report prepared by the lawyer and the attached photographs, the judge of the Investigative Chamber explained that inspection is an investigative action which, in this case, was conducted by the defense in order to clarify circumstances relevant to the case. Moreover, Article 126(3) of the Criminal Procedure Code of Georgia allows inspection to be conducted using technical means, provided that this does not lead to the destruction or damage of an object, document, substance, or other item of information, or traces existing on it.

Criminal procedural law considers the use of technical means during investigative actions as an integral and inseparable component of the investigative act carried out to obtain evidence, serving as a means of better recording facts and events and presenting them clearly to the court and the parties. In this case, photographing does not constitute an independent investigative or procedural action; rather, it is an integral part of the inspection protocol and visually reflects what is described in written form in the protocol.

The judge clarified that, in the present case, the photographing carried out during the inspection is fundamentally different in both substance and procedural form from the regulations under Article 136 of the Criminal Procedure Code concerning the retrieval of documents or information.

The retrieval of a document or information is the direct acquisition, for a criminal case, of information or documents that are stored in computer systems or electronic data storage media.[20]

In the procedural law of the United States, separate rules are established for each type of evidence regarding its classification and admissibility. In general, these rules constitute the majority of legal provisions governing proof in criminal proceedings. For example, as a general rule, hearsay evidence is considered inadmissible, since it refers to testimony that is not based on the witness’s direct perception of facts and events but is obtained from other sources (for example, from eyewitnesses). Long-standing experience has shown that such testimony carries a high probability of error. Nevertheless, under certain conditions, such evidence is still admissible in U.S. criminal proceedings—for example, statements made by a dying person regarding the cause of death and the circumstances of the criminal act causing it, provided that the declarant had no hope of survival.[21]

Many other exceptions are also provided in evidence law, as well as in other provisions. These exceptions are often indeterminate, which creates conditions for broad judicial discretion in decision-making by judges and in instructing juries.

This phenomenon is further illustrated by the provisions set out in Rules 402 and 403 of the Uniform Rules of Evidence. The first of these contains a general provision: “All relevant evidence is admissible, except as otherwise provided by law, by these rules, or by other rules applied by state courts. Evidence that is not relevant is inadmissible”. The second rule establishes a broad exception: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence”.

Exceptions also characterize provisions concerning the admissibility of the defendant’s statements, regardless of whether he has pleaded guilty. For example, statements made in sleep are considered inadmissible evidence. Likewise, a statement that another person has already confessed to the commission of the crime cannot be treated as evidence; that person must be summoned and examined in court. Statements and confessions made by the accused outside the proceedings, or by a third person acting on his behalf, may under certain circumstances be used in court as evidence against the accused.

Historically, in England, evidentiary law was not regarded as an instrument for ensuring individual rights. Its main purpose was to establish rules of proof that would allow the exclusion or non-admission of doubtful evidence from proceedings. From the perspective of English judges, if evidence does not raise doubt (even if obtained in violation of procedure) and fulfils its procedural function related to establishing the facts of the case to reach a fair judgment, there is no reason to exclude such evidence.

According to a common English interpretation, the key characteristics of evidence are not admissibility but relevance and reliability. This is also due to the fact that in English criminal proceedings, the institution of preliminary investigation has never existed, meaning that there was no formally regulated activity of state bodies concerning the collection of evidence prior to court proceedings. It therefore follows logically that if the procedure of evidence collection is not regulated before or outside the trial, it cannot be violated. Here, direct analogies with civil procedure can be observed: for example, a document, even if it appears doubtful, does not prevent its use by the claimant.

The growing judicial interest in the procedures of evidence collection, and not only its examination and evaluation, has become particularly evident in recent years, as the legislator has changed its approach to pre-trial investigation, which is gradually becoming a full-fledged stage of English criminal proceedings. This is reflected in the Police and Criminal Evidence Act 1984, which regulates in considerable detail the procedural actions of the police during pre-trial proceedings, addressing compliance with or violation of the law in the collection of evidence and, consequently, judicial control over such actions. One of the elements of such control is the court’s assessment of evidence obtained in violation of the law.

In legal literature, the view has been expressed that any procedural violation—i.e., any collection and examination of evidence in disregard of procedural law provisions—inevitably leads to the loss of evidentiary force, and therefore, such evidence must in all cases be declared inadmissible.

There is also another viewpoint, according to which, if the body conducting the proceedings has violated not the general principles of criminal procedural law, but rather a specific procedural norm whose correction is possible and whose violation cannot affect the equality of the parties and the adversarial principle, the court may decide not to declare such evidence inadmissible. For example, during the interrogation of a witness, the person was not informed that they had the right not to testify against themselves or their close relatives; however, the witness later stated that this omission did not influence the testimony they gave. According to the authors, such evidence may be considered admissible.[22]

We share this latter view and consider that, if a non-substantial procedural violation is committed during the proceedings, the court should have the right not to declare the obtained evidence inadmissible (unlawful).[23] For instance, if a person under the age of 14 was present at the court hearing, this constitutes a procedural violation (Article 182(8) of the Criminal Procedure Code of Georgia), but this violation is so minor that the evidence examined during that period in court should not be considered inadmissible. The same approach should apply in cases where, during the interrogation of a witness, the investigator omitted to indicate the place where the investigative action was conducted, and so on.

Conversely, if evidence is obtained in substantial violation of procedural law—for example, if the accused’s confession was obtained through beating, torture, blackmail, or other unlawful methods—such evidence must be considered inadmissible and has no procedural force whatsoever.

The doctrine discussed is not merely a theoretical model. It is effectively recognized by Georgian courts and should be applied in all criminal cases. Of course, the introduction and establishment of the “fruit of the poisonous tree” doctrine in the Criminal Procedure Code requires detailed elaboration and a careful approach to the formulation of the relevant legal norms.

Conclusion

Thus, the admissibility of evidence presupposes compliance with numerous rules established by law. Only strictly defined procedural regulations should ensure that information is granted evidentiary force; otherwise, it has no significance for criminal proceedings. Moreover, the admissibility of evidence also implies the granting of legal force to information that is relevant to the case. “Legal force” in criminal proceedings refers to the possibility of using information in a case, establishing relevant factual circumstances through it, and making procedural decisions on that basis.

If information is not properly incorporated into procedural form and does not acquire the status of evidence, it has no legal force and will be considered inadmissible evidence; through it, no procedural decision can be made, and its use in criminal proceedings is excluded.

As the study of investigative and judicial practice has shown, the judicial doctrine of the “fruit of the poisonous tree”, which has already been implemented in Georgian procedural law from the criminal procedural legislation of the United States, represents one of the most important guarantees of human rights protection in practice. Naturally, this requires further theoretical research and continued analysis of investigative and judicial practice.

References

Scientific literature:

Chkheidze, I. (2010). The Problem of Admissibility of Evidence in Criminal Proceedings. “Meridiani” Publishing, Tbilisi. (in Georgian);

Cole, G., Smith, D. (2010). Criminal justice in America (6^th edition). Wadsworth Publishing;

Langer, M. (2004). From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, Vol. 45, №1;

McCrackin, S. (1985). New York v. Quarles: The Public Safety Exception to Miranda. Tulane Law Review 59;

Oshkhareli, M. (2010). Proof and Evidence in Criminal Proceedings. Dissertation for the Academic Degree of Doctor of Law. Tbilisi State University of Economic Relations, Tbilisi. (In Georgian);

Pradel, J. (1999). Comparative Criminal Law. Sani Publishing, Tbilisi. (Transl.). (In Georgian);

Tumanishvili, G. (2014). Review of the General Part of Criminal Proceedings, “World of Lawyers’” Publishing. (In Georgian).

Normative act:

Criminal Procedure Code of Georgia. (2009). <https://matsne.gov.ge/ka/document/view/90034?publication=157>;

Police and Criminal Evidence Act of the UK. (1984). <https://www.legislation.gov.uk/ukpga/1984/60/contents>.

Court decisions:

Criminal case against Z. G. Case No. 616230414001;

Nardone v. United States. (1939). 308 U.S. 338;

Silverthorne Lumber Co., Inc. v. United States. (1920). 251 U.S. 385. <https://supreme.justia. com/cases/ federal/us/ 251/385/>;

Supreme Court of Georgia. (2016). Decisions of the Supreme Court of Georgia on Criminal Cases, Criminal Procedure 7-9;

Tbilisi Court of Appeal. Ruling of the Investigative Panel of the Tbilisi Court of Appeal, Case No. SG 133-18;

United States of America (Plaintiff-appellee) v. Stephen D. Akridge (Defendant-appellant). (2003). 346 F.3d 618 (6^th Cir.). <https://law.justia.com/cases/federal/appellate-courts/F3/346/618/510756/>;

Weeks v. United States. (1914). 232 U.S. 383. <https://supreme.justia.com/cases/federal/us/ 232/383/>;

Supplementary materials:

Fauver, D. (14.11.2003). Evidence Not Suppressed Despite Failure to Give Miranda Warning. The Daily Record (St. Louis, Mo./St. Louis Countian);

Hurley, L. (02.06.2003). Reversal Leaves Federal Case Intact, Prosecutor Says. The Daily Record (Baltimore, Md.).

Footnotes

[1] Weeks v. United States. (1914). 232 U.S. 383. <https://supreme.justia.com/cases/federal/us/ 232/383/>.

[2] Silverthorne Lumber Co., Inc. v. United States. (1920). 251 U.S. 385. <https://supreme.justia. com/cases/ federal/us/ 251/385/>.

[3] Chkheidze, I. (2010). The Problem of Admissibility of Evidence in Criminal Proceedings. “Meridiani” Publishing, Tbilisi, pp. 71-72.

[4] Oshkhareli, M. (2010). Proof and Evidence in Criminal Proceedings. Dissertation for the Academic Degree of Doctor of Law. Tbilisi State University of Economic Relations, Tbilisi, p. 57. (In Georgian); Tumanishvili, G. (2014). Review of the General Part of Criminal Proceedings, “World of Lawyers’” Publishing, pp. 299-302. (In Georgian).

[5] “Fruit of the poisonous tree” doctrine. (See Nardone v. United States. (1939). 308 U.S. 338).

[6] Silverthorne Lumber Co. v. United States. (1920). 251 U.S. 385, 392; Nardone v. United States. (1939). 308 U.S. 338.

[7] Fauver, D. (14.11.2003). Evidence Not Suppressed Despite Failure to Give Miranda Warning. The Daily Record (St. Louis, Mo./St. Louis Countian).

[8] Hurley, L. (02.06.2003). Reversal Leaves Federal Case Intact, Prosecutor Says. The Daily Record (Baltimore, Md.).

[9] McCrackin, S. (1985). New York v. Quarles: The Public Safety Exception to Miranda. Tulane Law Review 59.

[10]United States of America (Plaintiff-appellee) v. Stephen D. Akridge (Defendant-appellant). (2003). 346 F.3d 618 (6^th Cir.). <https://law.justia.com/cases/federal/appellate-courts/F3/346/618/510756/>.

[11] Chkheidze, I. (2010). The Problem of Admissibility of Evidence in the Criminal Process. “MeriDiani” Publishing, Tbilisi, pp. 74-75. (In Georgian).

[12] Pradel, J. (1999). Comparative Criminal Law. Sani Publishing, Tbilisi, pp. 319-320 (Transl.). (In Georgian).

[13] Criminal case against Z. G. Case No. 616230414001.

[14] Supreme Court of Georgia. (2016). Decisions of the Supreme Court of Georgia on Criminal Cases, Criminal Procedure 7-9, pp. 28–42.

[15] Chkheidze I. (2010). The Problem of Admissibility of Evidence in Criminal Proceedings. “Meridiani” Publishing, Tbilisi, p. 200. (In Georgian).

[16] McCrackin, S. (1985). New York v. Quarles: The Public Safety Exception to Miranda. Tulane Law Review 59.

[17] Criminal case against Z. G. Case No. 616230414001.

[18] Ibid.

[19] Tbilisi Court of Appeal. Ruling of the Investigative Panel of the Tbilisi Court of Appeal, Case No. SG 133-18. <www.tbappel.court.ge>.

[20] Police and Criminal Evidence Act of the UK. (1984). <https://www.legislation.gov.uk/ukpga/1984/60/contents>.

[21] Ibid.

[22] Cole, G., Smith, D. (2010). Criminal justice in America (6^th edition). Wadsworth Publishing, p. 32.

[23] Langer, M. (2004). From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, Vol. 45, №1, рр.1-64.