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OrinKerr's profile
Orin Kerr
Orin Kerr
Orin Kerr
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Law professor at Cal @BerkeleyLaw. https://www.law.berkeley.edu/our-faculty/faculty-profiles/orin-kerr/ …

Berkeley, California
OrinKerr.com
Joined March 2013

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    Orin Kerr‏Verified account @OrinKerr Mar 3

    Students of the 4th Amendment often use a phrase, "fruit of the poisonous tree," that you don't hear outside 4th Amendment law. But where does the phrase come from? A thread.

    4:10 PM - 3 Mar 2021
    • 52 Retweets
    • 240 Likes
    • lucky Santiago Debbie, The Crabby Dragon mccDrama Cristian Jordan Carr Peterson Judy P IM Christopher, Esq.
    14 replies 52 retweets 240 likes
      1. New conversation
      2. Orin Kerr‏Verified account @OrinKerr Mar 3

        As background, the phrase is used in the setting of the exclusionary rule. Evidence is a "fruit of the poisonous tree" if it was discovered as a result of a 4th Amendment violation, and it can't be used in court. Its source makes it "poisoned," from the "tree" of the violation.

        1 reply 3 retweets 30 likes
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      3. Orin Kerr‏Verified account @OrinKerr Mar 3

        The easy answer for where the phrase originated is that it comes from Justice Frankfurter's opinion in Nardone v. United States, 308 U.S. 338 (1939), a statutory case on the 1934 Communications Act and its the suppression remedy for unlawful wiretapping. https://scholar.google.com/scholar_case?case=9606379924662568827&q=Nardone+v.+United+States,+308+U.S.+338&hl=en&as_sdt=2006 …pic.twitter.com/E2Zh5MksHB

        1 reply 4 retweets 28 likes
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      4. Orin Kerr‏Verified account @OrinKerr Mar 3

        That phrase was then imported into Fourth Amendment caselaw in Wong Sun v. United States, 371 U.S. 471 (1963).pic.twitter.com/Y3TALr6X6v

        2 replies 1 retweet 27 likes
        Show this thread
      5. Orin Kerr‏Verified account @OrinKerr Mar 3

        But where did Justice Frankfurter get the phrase in his 1939 Nardone opinion? On that, unfortunately, I only have speculation. As far as I can tell on Westlaw, no court decision before Nardone used the phrase.

        2 replies 1 retweet 27 likes
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      6. Orin Kerr‏Verified account @OrinKerr Mar 3

        I checked the briefs in Nardone, and Nardone's brief used part of it. A traditional concept in criminal law is the "fruits of crime," that is, ill-gotten gains, like stolen goods. Nardone's brief described information discovered from illegal wiretapping as a "fruit" of it:pic.twitter.com/Qwi9yTHf2U

        1 reply 1 retweet 26 likes
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      7. Orin Kerr‏Verified account @OrinKerr Mar 3

        Perhaps Frankfurter took that line and added the part about the "poisonous tree." Although Frankfurter was not religious, he may have meant it to be a biblical reference to the eviction from the Garden of Eden -- eating the fruit of the forbidden tree.pic.twitter.com/oHOgb3LlhP

        3 replies 1 retweet 34 likes
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      8. Orin Kerr‏Verified account @OrinKerr Mar 3

        I looked on Google's n-gram viewer, too, to see how and when the phrased was used in books. With a small number of exceptions, it seems to have really started with Frankfurter's Nardone decision in 1939.pic.twitter.com/E56N7gkhJB

        1 reply 2 retweets 27 likes
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      9. Orin Kerr‏Verified account @OrinKerr Mar 3

        But what about the blips mentioning "fruit of the poisonous tree" in the 19th Century? Some were references to Genesis and the Garden of Eden. Here's one from 1853 in reference to slavery, also perhaps intended as a biblical reference. https://www.google.com/books/edition/Daniel_Webster_as_a_Jurist/1d8TAAAAYAAJ?hl=en&gbpv=1 …pic.twitter.com/Te4OxmPfYd

        2 replies 4 retweets 29 likes
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      10. Orin Kerr‏Verified account @OrinKerr Mar 3

        In short, it's not entirely clear where Frankfurter got it, but it may have been a play on the phrase in the Nardone briefs or else a biblical reference. Either way it stuck, and it is used all the time today in discussions of the Fourth Amendment exclusionary rule. /end

        14 replies 3 retweets 67 likes
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      11. End of conversation
      1. Larry from Pa‏ @east_side52 Mar 3
        Replying to @OrinKerr

        Are you saying that Hegseth forgot to tell us about those salt of the earth folk in diners who discuss the exclusionary rules under the 4th Amendment when they take a break for debating 10th Amendment jurisprudence?

        1 reply 0 retweets 4 likes
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