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

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