Don’t Just Ask to Suppress the Involuntary Statement and the Evidence That’s Fruit of the Poisonous Tree; Ask For a Full Kastigar Hearing

December 11, 2012
By Hanging Out with Carl Gunn


  • The remedy for a coerced confession isn’t just suppression of the fruit of the poisonous tree but a full “Kastigarhearing.”
  • That puts the full burden on the government and precludes application of the “independent source,” “inevitable discovery,” and “attenuated basis” exceptions to the fruit of the poisonous tree doctrine.
  • It also requires not just proof that the government’s actual evidence is untainted, but also proof that the involuntary statement didn’t affect the decision to indict, decisions about plea offers, the focus of the investigation, and the prosecutors’ plans for cross-examination and other trial strategy


In my post four weeks ago (“If You Don’t Have Miranda or Misconduct, Think About McNabb and Mallory” linked at the right), I made a passing reference to the rule that the remedy for an involuntary statement goes beyond suppression of just the statement itself. This reminded me of some case law on the scope of that remedy that I ran across several years back when I was working on a contribution to the wonderful San Diego Federal Defender’s Office criminal practice manual, Defending a Federal Criminal Case. That case law suggested a scope of the remedy for an involuntary statement that I hadn’t thought about asking for in the usual law enforcement coercive interrogation context.

In particular, the Ninth Circuit case of United States v. Anderson, 79 F.3d 1522 (9th Cir. 1996) talks about the right not just to suppress the “fruit of the poisonous tree,” but to what’s called a “Kastigar hearing.” This is a hearing based on the 1972 Supreme Court case of Kastigar v. United States, 406 U.S. 441 (1972), which held that a witness who is compelled to testify after being given immunity under 18 U.S.C. § 6002 (which is required by the Fifth Amendment) and then later prosecuted has a right to a hearing at which the government has “the heavy burden of proving that all evidence it proposes to use was derived from legitimate, independent sources.” Kastigar, 406 U.S. at 461-62. The Ninth Circuit Anderson case held that this right to a Kastigarhearing extends beyond cases where testimony was compelled based on an immunity order to any case in which “the free will of the witness was overborne” (quoting United States v. Washington, 431 U.S. 181, 188 (1977)) and “a defendant’s statements were compelled in violation of the fifth amendment.”Anderson, 79 F.3d at 1526. In other words, the Kastigar hearing protection extends to any involuntary statement obtained in violation of the Fifth Amendment, not just the more narrowKastigar circumstance of testimony compelled after an immunity order.

The reasoning in the Kastigar case and the later plurality opinion in Chavez v. Martinez, 538 U.S. 760 (2003) supports the conclusion in Anderson, moreover. Kastigar itself stated that the 18 U.S.C. § 6002 immunity it was considering there was “analogous to the Fifth Amendment requirement in cases of coerced confessions” and that a defendant who was granted immunity was in a stronger position only because the defendant making a coerced confession claim “must first prevail in a voluntariness hearing before his confession and evidence derived from it become inadmissible.” Kastigar, 406 U.S. at 461.Chavez rejected a § 1983 claim that the Fifth Amendment was violated when police coerced a confession by explaining that individuals subjected to coercive police interrogation are not denied their Fifth Amendment rights because the Fifth Amendment provides “automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.” Chavez, 538 U.S. at 769 (plurality opinion) (emphasis in original). The Court then expressly stated: “This protection is, in fact, coextensive with the use and derivative use immunity mandated by Kastigar.” 770.

The point is worth arguing because Kastigar provides stronger protection than the ordinary fruit of the poisonous tree doctrine in at least three ways. First, the burden is different, or at least more formalized and structured. A defendant seeking to show evidence is “fruit of the poisonous tree” has an initial burden which the Ninth Circuit has described as requiring the defendant to “first establish a factual nexus between the illegality and the challenged evidence.” United States v. Alexander, 761 F.2d 1294, 1299 (9th Cir. 1985) (quoting United States v. Spetz, 721 F.2d 1457, 1468 (9th Cir. 1983)). And the court has further stated that “[t]he mere establishment of [the illegality] does not place upon the Government the burden of affirmatively proving that each and every piece of evidence is free of taint.” Id. Yet aKastigar hearing places precisely this burden on the government; it requires that “before trial the government must show that any evidence it intends to present is derived from a source independent of immunized testimony.” United States v. Crowson, 828 F.2d 1427, 1429 (9th Cir. 1987)

Second, there are the “independent source,” “inevitable discovery,” and “attenuated basis” exceptions to the fruit of the poisonous tree doctrine. United States v. Smith, 155 F.3d 1051, 1060 (9th Cir. 1998). The independent source exception may not make the fruit of the poisonous tree narrower than the evidence to be suppressed under Kastigar since Kastigar holds it sufficient for the government to prove, as noted in the preceding paragraph, that the evidence it intends to present “is derived from a source independent of immunized testimony.” But the inevitable discovery and attenuation exceptions certainly seem to make the fruit of the poisonous tree narrower. The Ninth Circuit has held that the attenuation exception means that “the baseline inquiry in evaluating taint [under the fruit of the poisonous tree doctrine] is not whether [the illegality] was the ‘impetus’ for the investigation or whether there exists an unbroken ‘causal chain’ between the search and the incriminating evidence; rather, courts must determine whether ‘anything seized illegally, or any leads gained from illegal activity, tend[ed] significantly to direct the investigation toward the specific evidence sought to be suppressed.’” Smith, 155 F.3d at 1061 (quoting United States v. Cales, 493 F.3d 1215, 1216 (9th Cir. 1974)) (emphasis added in Smith). Kastigar and its progeny, in contrast, apply to, inter alia, mere “assistance in focusing the investigation,” as noted in the next paragraph, and say nothing to suggest that an unbroken causal chain is insufficient. There is also no exception under Kastigar for evidence that would have been inevitably discovered.

Finally, the scope of the inquiry under Kastigar is broader – at least in degree, and possibly in kind as well. The fruit of the poisonous tree doctrine is generally applied only to evidence that is introduced at trial, though it may be evidence that is reached several steps after the coerced statement that is the “primary illegality,” Wong Sun v. United States, 371 U.S. 471, 488 (1963). Kastigar, in contrast, extends beyond just evidence; it applies to both evidentiary use of the statement or testimony and non-evidentiary use of the statement or testimony, which includes things such as “assistance in focusing the investigation, deciding to initiate the prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.” United States v. Crowson, 828 F.2d at 1430 (quoting United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973)). See also United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003).

The high hurdle which a Kastigar hearing creates for the government is perhaps best illustrated by the proceedings which were the subject of appeal in United States v. North, 910 F.2d 843 (D.C. Cir. 1990) and United States v. North, 920 F.2d 940 (D.C. Cir. 1990), the court of appeals opinions for the prosecution of Oliver North arising out of the Iran/Contra scandal in the 1980’s. For those of you old enough to have been alive and paid attention at the time and young enough to still remember (though I guess it’s just the short term memory that goes with age, isn’t it?), North’s case actually got dismissed because the prosecution wasn’t able to show its case was completely independent of testimony he’d been compelled to give in Congressional hearings under an immunity order. North did have the advantage of a greater potential for taint created by the high profile and media coverage of the Congressional investigation in which he was forced to testify, but the government had the advantage of being able to plan ahead of time for what it would have to prove in a Kastigar hearing. And it failed to carry its burden even then.

So think about this broader remedy next time you have an involuntary statement issue. Don’t ask just to suppress the other evidence that’s fruit of the poisonous tree and don’t let the government argue the inevitable discovery and attenuation exceptions it could argue under that doctrine. Argue you’re entitled to a Kastigar hearing, that the ordinary fruit of the poisonous tree exceptions don’t apply, and it’s not just evidence the government needs to show is untainted, but also its decision to indict, its decisions about plea offers, the focus of its investigation, and its plans for cross-examination and other trial strategy. It may be tough for the government to show that.