Unlawful Evidence: the Fruit of the Poisonous Tree in Spain (2026)
Last updated:
listIn this article
lightbulbKey Takeaways
- check_circleArt. 11.1 Judiciary Act: unlawful evidence is null
- check_circleNullity reaches the derived evidence
- check_circleExceptions: independent source, chance discovery
- check_circleRaised as a preliminary objection
Quick answer
Article 11.1 of the Organic Law of the Judiciary provides that evidence obtained, directly or indirectly, by breaching fundamental rights or freedoms has no effect: such evidence is null and cannot be assessed. The fruit of the poisonous tree doctrine extends the nullity to derived evidence, provided there is a connection of unlawfulness. Case law recognises exceptions that break that connection — independent source, inevitable discovery, chance discovery and a voluntary later confession with legal assistance. The unlawfulness is raised as a preliminary objection at the start of the trial and, if rejected, repeated on appeal.
Need help with your case? Talk to a criminal defense lawyer at Alonso Sala.
Unlawful evidence is one of the most powerful concepts in criminal defence: evidence obtained by breaching fundamental rights cannot be used to convict. As criminal lawyers, we explain its scope.
What Article 11.1 of the Judiciary Act Says
Article 11.1 of the Organic Law of the Judiciary provides that evidence obtained, directly or indirectly, by breaching fundamental rights or freedoms shall have no effect. The consequence is that such evidence is null and cannot be assessed.
The Fruit of the Poisonous Tree
The fruit of the poisonous tree doctrine extends the nullity: if the original evidence is unlawful, the derived evidence is also tainted. If a void search leads to finding a weapon, that find may also be excluded. The key is the connection of unlawfulness between the unlawful evidence and the derived one.
The Exceptions to Nullity
- Independent source: the evidence would have been obtained by another lawful route.
- Inevitable discovery: the find would have happened anyway.
- Chance discovery: an unsought find during a lawful operation.
- Voluntary later confession, with legal assistance, that breaks the chain.
When to raise it
The unlawfulness of evidence is raised as a preliminary objection at the start of the trial and, if rejected, repeated on appeal. Spotting it in time can dismantle the whole prosecution case.
The Role of the Defence
A rigorous defence examines how each piece of evidence was obtained: the lawfulness of searches, wiretaps and arrests. If the essential evidence is unlawful, the prosecution may be left without support.
Do you believe the evidence was obtained unlawfully?
We analyse the chain of evidence and raise the nullity of unlawful evidence.
📞 Call us: +34 91 078 65 74
⚖️ Need a criminal lawyer?
Criminal defence with a thorough analysis of the lawfulness of the evidence.
gavelDo you need criminal defense in this area?
We are criminal defense lawyers specializing in general criminal defense. We act urgently to protect your rights.