Unlawful Evidence: the Fruit of the Poisonous Tree in Spain (2026)
In this article
Key Takeaways
- Art. 11.1 Judiciary Act: unlawful evidence is null
- Nullity reaches the derived evidence
- Exceptions: independent source, chance discovery
- Raised as a preliminary objection
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.
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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.
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Frequently asked questions
What does Art. 11.1 of the Judiciary Act say about unlawful evidence?
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 by the court.
What is the fruit of the poisonous tree doctrine?
It extends the nullity of unlawful evidence to the evidence derived from it: if the original evidence is unlawful, the findings that derive from it are also tainted. The key is the connection of unlawfulness between the unlawful evidence and the derived evidence.
What exceptions limit the nullity of derived evidence?
Independent source (the evidence would have been obtained through another lawful route), inevitable discovery, chance discovery during a lawful operation, and a voluntary later confession with legal assistance, which breaks the chain.
When is the unlawfulness of evidence raised?
It 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 if the essential evidence turns out to be unlawful.
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