Doctrines Without Borders: The 'New' Israeli Exclusionary Rule and the Dangers of Legal Transplantation

43 Pages Posted: 12 May 2012 Last revised: 21 Jan 2018

See all articles by Binyamin Blum

Binyamin Blum

UC Hastings; Hebrew University of Jerusalem - Faculty of Law; Stanford Law School

Date Written: April 1, 2008

Abstract

In 2006, as part of Israel's "Constitutional Revolution" the Supreme Court adopted a new exclusionary rule for unlawfully obtained evidence. Ostensibly based on the Canadian model, this exclusionary rule was framed as a significant departure from previous doctrine that did not allow exclusion of unlawfully obtained evidence, enabling courts to only discount its weight. The article shows that this distinction between "admissibility" and "weight" is one borrowed from bifurcated judicial systems but does not translate well into the Israeli unitary judiciary. The jurisprudence concerning the exclusionary rule, it is argued, represents a broader, more troubling phenomenon of legal grafting, whereby Israeli courts mimic other common law jurisdictions without properly accounting for structural differences.

Keywords: Exclusionary Rule, Legal Transplants, Legal Grafting, Issacharov

Suggested Citation

Blum, Binyamin, Doctrines Without Borders: The 'New' Israeli Exclusionary Rule and the Dangers of Legal Transplantation (April 1, 2008). Stanford Law Review, Vol. 60, No. 2131, 2008, Available at SSRN: https://ssrn.com/abstract=1715245

Binyamin Blum (Contact Author)

UC Hastings ( email )

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Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
+972-2-588-2560 (Phone)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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