Publication of leaks creates a conundrum

Wikileaks: Not “fruit of the poisonous tree”

In the U.S.A., if law enforcement seizes potential evidence without a warrant, that property is deemed “fruit of the poisonous tree” and not admissible as evidence at trial.

If, however, a private individual seizes the potential evidence without a warrant and then produces the property to the prosecution team (which includes the police as well as the government attorneys), the doctrine of the “fruit of the poisonous tree” is not applied, and the property is admissible as evidence at trial.

The distinction here is that Wikileaks did not seize any property, it received it. The layperson might want to exclaim, “Then Wikileaks was like a fence.” Well, certainly Wikileaks received it with the intent to publish it. But did Wikileaks have a fence-like profit motive? That is, did Wikileaks receive the property with the intent to sell it or not to sell it? Or did WikiLeaks have a courageous, if not patriotic, motive to bring transparency to a government vulnerable to being called a tyrannical one?

The answers are not easy . . . either factually or legally. And how deeply are morals and ethics involved in the fairly complicated conundrum?

Barbara C. Johnson

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