I have a question.

I deserve this.

Don't be sour. This question is agricultural.

Of course it is.

It's about fruits and trees and some kind of poison or something?

Where did you pick that up?

Twitter and Reddit, mostly. People are saying that Special Counsel Robert Mueller's investigation is going to be derailed, and everyone's case is going to get thrown out, because it's all fruit of the poisonous tree.

Yes, that sounds like something that people on Twitter and Reddit would say.

So you're saying "fruit of the poisonous tree" isn't a thing?

It is a thing. But it is not anything like the thing being imagined here.

Look, I know you're a federal criminal defense lawyer and everything, but the fellow on Twitter seemed quite firm about this.

I'm sure.

Why not? I mean, if Mueller's team made mistakes or committed misconduct, couldn't that taint the entire investigation?

Not at all in the way people are arguing.

So what is "fruit of the poisonous tree," anyway?

"Fruit of the poisonous tree" is a metaphor used to describe part of the exclusionary rule.

The exclusionary rule, in brief, provides that when the government illegally seizes evidence in violation of your rights, it can't use that evidence against you in court. So, if the cops burst into your house and search it and seize evidence without a warrant, and no exception to the warrant requirement applies, the government can't use the illegally seized evidence against you when it prosecutes you for a crime.

The "fruit of the poisonous tree" doctrine is just an extension of that. It provides that if the government uses illegally seized evidence to obtain more evidence, that more evidence is also inadmissible in court. So, if the government raided and searched your house illegally, and seized evidence from your house illegally, then used that evidence to go get a search warrant for your office, the evidence seized from your office is inadmissible.

So why doesn't that apply to the Special Counsel investigation? People are saying Mueller's team broke the law and violated rights. Doesn't that make everything he does fruit of the poisonous tree?

No. The doctrine doesn't work that way.

It's true that people are arguing that Mueller's investigation is tainted because (among other reasons) a FISA warrant application to surveil Carter Page didn't adequately disclose the partisan nature of the information it relied upon, and that the entire investigation must therefore be shut down because of that and various other wrongdoing.

This argument is completely detached from the law for numerous reasons.

First, there's the concept of standing. "Standing" means that I cant' assert violations of your rights to get a court to exclude evidence. The "tree" has to be a violation of your rights for you to use the doctrine. So if the cops illegally search your house, and try to use the resulting evidence against me, I can't get it thrown out unless I had some sort of right to privacy in your house — as a tenant, for instance. But if the cops illegally search me, violating my rights, and then use the resulting evidence to get a search warrant for your house, and find more evidence there, then I might get that evidence suppressed because the "tree" is a violation of my rights.

In the Special Counsel's case, the only people who could conceivably claim "fruit of the poisonous tree" based on a bad FISA warrant application would be people whose rights were violated by that warrant — that is, Carter Page, and perhaps someone recorded talking to him.

Okay. What else?

Then there's the concept that the "fruit of the poisonous tree" doctrine allows exclusion of specific evidence resulting from violation of a particular defendant's rights. It doesn't require the shutting down of entire investigations.

Put another way, the question is whether the defendant can draw a direct line between a violation of his or her rights and a piece of evidence. The courts have rejected a "but for" theory of the doctrine. That is, the question isn't "would the police have done the things they did but for the violation of my rights." "The Court has never held that evidence is 'fruit of the poisonous tree' simply because “it would not have come to light but for the illegal actions of the police.'" So, for instance, even if the police become interested in searching my house because of evidence they seized illegally from me, so long as the warrant application to search my house does not include any of the illegally seized evidence, it's not fruit of the poisonous tree.

There's a related concept called attenuation. "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance." The most common example of this is a voluntary statement. Generally, if the police illegally seize evidence, and then come and ask me about it, and I make a voluntary statement, courts consider the connection between the illegal seizure and the statement attenuated by my voluntary act, so that my statement is not suppressed. So, in the case of the Special Counsel, Papadopoulos and Flynn pleaded guilty to lying to the FBI during voluntary statements to them. Even if the Special Counsel got to that interview by violating rights, and even if those were Papadopoulos's and Flynn's rights, the voluntary statements would generally be treated as breaking the chain and would be admissible.

So the whole argument isn't plausible?

It's highly implausible on multiple levels. For instance, the theory seems to be that the FISA warrant for Carter Page did disclose that it was based on information from a partisan source, but didn't disclose how partisan the source was. We defense lawyers would love it if arguments like that worked — "yes, the government conceded their source was skeevy, but not how very skeevy" — but they just don't. The entire "fruit of the poisonous tree" argument about the Mueller investigation relies on courts acting in the way defense lawyers dream they would, but definitely haven't, at least since the Warren Court. Fourth Amendment rights, Fifth Amendment rights, the exclusionary rule — all of these things have been relentlessly marched back in the half-century since their high water mark.

So, basically, investigators can pull whatever misconduct they want, and if you can't draw a short line between the misconduct and a piece of evidence they want to admit against you, you're out of luck?

Not quite. There's a doctrine called "outrageous government misconduct." Basically, when the government's conduct in the case is so outrageous that it violates the due process rights of the defendants, the case can be thrown out. It's an extremely difficult doctrine to invoke and very rarely succeeds, and appellate courts usually reject it, so don't let me catch you citing it on Twitter.

To get a sense of how rare it is for this doctrine to be invoked, consider this case from the Ninth Circuit reversing a trial court's dismissal of a case under this doctrine. Bear in mind the Ninth Circuit is the most liberal and defendant-friendly circuit:

A prosecution results from outrageous government conduct when the actions of law enforcement officers or informants are "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). A federal court must dismiss a prosecution based on such actions. The standard for dismissal on this ground is "extremely high." United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). Dismissals are "limited to extreme cases in which the government's conduct violates fundamental fairness." United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003). An indictment can be dismissed only where the government's conduct is "so grossly shocking and so outrageous as to violate the universal sense of 796*796 justice." United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir.2011) (quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991)).

Underplaying how bad a source was, or losing texts, would definitely not cut it as outrageous government misconduct.

So are you pleased that these people are wrong?

Hell no. I'd like to see a robust exclusionary rule, a robust application of the fruit of the poisonous tree doctrine, and a resurgence in the vigor of the Fourth and Fifth Amendments, which have suffered since the 1970s.

I am, however, deeply annoyed that political factions that have lauded "law and order," deified law enforcement and insulated them from consequences, and generally denigrated the criminal defense function and the concept of defendants' rights are suddenly pretending to be devoted defense advocates.

Last 5 posts by Ken White