This Article presents a revolution in the rules of confessions and their admissibility. It proposes to diverge from the dichotomous test of admissibility currently applied in the rules of evidence, concerning rejecting invalid evidence, in order to recognize the possibility of applying the blue pencil doctrine in the same manner. According to our suggestion, courts should partially recognize the admissibility of late confessions, despite the fact that the source of the late confession is an invalid confession previously given. Recently, Israel’s Supreme Court has determined that a late confession given after an invalid confession is considered admissible. In other words, the court has decided to apply a relative nullification of improper practices by law-enforcement authorities and therefore, apply, in a new manner, the blue pencil doctrine, a doctrine that is usually used in contract law.
This Article is dedicated to the theoretical and practical justifications to accept late confessions, emphasizing the rules of evidence as they exist in statute, as well as the question of incentivization of improper behavior by law enforcement authorities. The Article addresses the question of whether it is appropriate to acknowledge the American jurisprudence principle, known as the “fruit of the poisonous tree” doctrine. As this Article describes, our proposed solution would be to maintain the reliability of a late confession, in contrast to the American doctrine of fruit of the poisonous tree. Thus, this Article would present an alternative legal principle, which may prove more fitting for this matter, in light of the principles of the rules of evidence in the Israeli legal system.
Doron Menashe and Guy Alon, CRIMINAL LAW—DOES A CONFESSION MATTER? A DEFENDANT’S CONFESSION AS IRRELEVANT TO PROVE HIS GUILT, 42 W. New Eng. L. Rev. 191 (2020), https://digitalcommons.law.wne.edu/lawreview/vol42/iss2/2