Introduction

In Colombia, the classification of evidence into illicit, unconstitutional, and illegal categories plays a crucial role in safeguarding due process and protecting fundamental rights. Illicit evidence is defined as that obtained through actions that breach the guarantees owed to the investigated, accused, or adjudicated individual, rendering such evidence absolutely null and void. While the term "unconstitutional evidence" is frequently used interchangeably with illicit evidence, it specifically emphasizes the violation of constitutional rights, underscoring its substantive impact on the legal process. In contrast, illegal or irregular evidence pertains to breaches of procedural formalities without necessarily infringing upon essential rights, thereby representing an infraction of the trial's proper procedural requirements.

In the United States, the classification and treatment of evidence obtained through unauthorized means is pivotal to protecting constitutional rights and maintaining judicial integrity. Defining several categories, such as: illicit evidence, which is obtained through means not authorized by law; unconstitutional evidence, procured in violation of a defendant’s constitutional rights; and illegal evidence, a broader term covering any evidence acquired in breach of legal norms. The exclusionary rule, a cornerstone of U.S. evidentiary practice, mandates that evidence obtained via unconstitutional searches or other illegal methods be excluded from trial to deter improper police conduct. Nevertheless, several exceptions, as independent source, inevitable discovery, and attenuation doctrines, which may allow the admission of such evidence under specific conditions.

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1. What is “illicit”, “Unconstitutional”, and “illegal” evidence, in Colombian law?

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According to the Constitutional Court, illicit evidence refers relates to, and evidence that adopted through illicit actions which violate the guarantees afforded to the investigated, accused, or adjudicated individual. With respect to due process, the legislature has established specific conditions for the collection of evidence and substantive requirements tailored to each type of evidence, the fulfillment of which must be assessed by the judicial officer when determining whether a particular piece of evidence is illicit. (Saulo Arboleda Gómez Vs. Fiscalía General de la Nación y la Sala de Casación Penal de la Corte Suprema de Justicia , 2002), according to that, we can say that, means of evidence is deemed illicit if its acquisition deviates from due process, that is, if it fails to adhere to the established procedural formalities prescribed by the relevant trial codes. (Toscano, 2022)

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On the other hand, while often used interchangeably with "illicit evidence," the term "unconstitutional evidence" specifically highlights breaches of fundamental rights guaranteed by the Constitution, also, the Constitutional Court has determined that not every procedural irregularity involving the collection, gathering, and evaluation of evidence necessarily constitutes a violation of due process. Minor irregularities, for instance, are not covered by the final provision of Article 29 of the Colombian Constitution.

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Furthermore, the Court distinguishes between illegal evidence (evidence that affects due process from a formal procedural standpoint, meaning it is incompatible with the established procedural forms of each trial , which we will explore lines below)and unconstitutional evidence, which similarly violates due process but from a substantive perspective because it is obtained through the infringement of fundamental rights.

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Finally, Illegal or irregular evidence refers to evidence that does not comply with the essential legal formalities required for its production. Unlike illicit or unconstitutional evidence, illegal evidence does not necessarily involve a violation of fundamental rights. Instead, it represents an infraction of formal procedural rules. The Supreme Court of Colombia has determined that Illegal or irregular evidence refers to any means of evidence that does not conform to the governing law, thereby affecting the requirements for submission, inclusion, issuance, practice, or evaluation. Consequently, such evidence is deemed either prohibited or rendered ineffective, with its consequences outlined in the very provisions that regulate it. (Maria de Jesus Jimenez de Lopez Vs. Tribunal Superior del Distrito Judicial de San Andrés, Providencia y Santa Catalina, Islas, 2017), and also, that the defects found in illegal evidence can, on the contrary, be remedied, and it is even possible that, despite the irregularity, its persuasive value remains intact. (Defensoria de Familia Vs. Francisco Franco Portela Rodriguez, 2008)

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In summary, there is a clear distinction between various forms of evidence obtained in contravention of the Colombian legal standards. Illicit evidence is strictly defined as evidence acquired in violation of due process and fundamental rights, rendering it null if its collection deviates from established procedural formalities. Although the terms "illicit evidence" and "unconstitutional evidence" are often used interchangeably, the latter specifically underscores breaches of constitutional guarantees. At the same time, illegal or irregular evidence, which is characterized by non-compliance with formal procedural requirements; does not automatically imply a violation of fundamental rights, and its defects may, in some cases, be remedied without diminishing its persuasive value.

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2. Fruit of the Poisonous Tree

The "fruit of the poisonous tree" doctrine mandates that any evidence derived from an illicit (and unconstitutional) source is inadmissible, unless one of the recognized exceptions applies. These exceptions include the Independent Source doctrine, which permits admission when the evidence originates from a separate, lawful source; the Purged Taint exception, where the connection between the initial illegality and the derivative evidence is sufficiently weakened; and the Inevitable Discovery doctrine, which allows for evidence that would have been discovered lawfully regardless of the initial breach. These safeguards are crucial to prevent the excessive suppression of essential evidence while still upholding due process. Additionally, in cases of irregular evidence, procedural defects can sometimes be remedied through legal mechanisms such as validation, rectification, or curing.

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3. In the U.S.

Illicit evidence refers to evidence obtained through methods that are unauthorized by law, or obtained through unlawful, unethical, or improper means as in (Gorman v. State, 1932), the Court of Appeals of Maryland, reversed a judgment and granted a new trial, because, in this case, The officer entered the defendant’s home without a search warrant or an arrest warrant, despite the defendant being suspected of a misdemeanor. The officer’s knowledge at the time of entry was virtually unchanged from what he had at the end of the previous day, which was considered by the Judge unreasonable. The Fourth Amendment to the United States Constitution guarantees individuals the right to be free from such searches, a protection that is also broadly incorporated into the constitutions of various states. It is important to clarify that 'illicit evidence' is a broad term that may encompass unconstitutional or illegal evidence.

On the other hand, "Unconstitutional evidence" refers to evidence obtained in violation of constitutional rights, particularly those protected under the Fourth, Fifth, or Sixth Amendments. It constitutes a specific subset, it can sometimes overlaps with illicit or illegal evidence (as we will see lines below),  this specifically address the violations of the constitutional rights of the party involved.

Illicit evidence also overlaps with illegal evidence, but “illegal evidence” may also include evidence obtained through unethical or improper means that do not necessarily violate statutory or constitutional provisions. For example, evidence acquired through deception or breaches of professional conduct rules may be deemed illicit, though its admissibility depends on the specific circumstances and applicable jurisdictional rules.

The exclusionary rule and the "fruit of the poisonous tree" doctrine are also key principles that render such evidence inadmissible in criminal trials, this rule applies to both direct evidence and derivative evidence, as in (State v. Ratliff , 1972), the Supreme Court of North Carolina ruled that when this rule applies, both direct and derivative evidence are inadmissible at trial.

There are exceptions to the rules regarding illicit, unconstitutional, and illegal evidence in legal proceedings, such as the independent source doctrine, the inevitable discovery doctrine, and the attenuation doctrine. The inevitable discovery doctrine permits the use of evidence that would have been discovered eventually through lawful means, regardless of the unconstitutional action that initially uncovered it. This doctrine is based on the premise that the evidence would have come to light without the illegal conduct (People v. Jordan, 1990).

The independent source doctrine allows for the admission of evidence that was obtained independently of the illegal search or seizure (Warick v. Commonwealth, 2019),it serves as a key exception to the Fourth Amendment’s exclusionary rule, permitting the admission of evidence initially discovered through unconstitutional means, provided it is later obtained through an independent, lawful source untainted by the original illegality. Usually, Courts use a Two-Prong Test for Admissibility in this cases, I. Absence of Motivational Taint; and II. Magistrate Neutrality, as seen in (COMMONWEALTH vs. EDDIE TORRES, 2023), this means that, for the rule to apply, the evidence must be as independent as possible from the unlawfully obtained evidence to be deemed admissible at trial.

In addition, the attenuation doctrine applies when the connection between an unconstitutional act and the evidence is sufficiently weakened or disrupted by an intervening circumstance, thereby neutralizing the taint of the illegal action. In other words, if the link between the unlawful conduct and the evidence is sufficiently attenuated, the evidence may still be deemed admissible. (State v. Pearson, 1985).

Finally, the good faith exception allows evidence obtained through technically unconstitutional searches to be admitted in court if law enforcement officers acted with a reasonable, good-faith belief that their actions complied with the law., also it requires objective reasonableness standard and proper conduct throughout the search (Straus, 2024).

In the United States, the concepts of 'unconstitutional,' 'illegal,' and 'illicit' evidence often overlap, lacking the clearly defined distinctions found in Colombian law. American courts generally categorize all unlawfully obtained evidence under a single framework, prioritizing the way it was acquired rather than drawing fine semantic distinctions. Under this doctrine, evidence obtained in violation of a defendant’s rights is deemed inadmissible, and any derivative evidence stemming from the initial illegality is likewise excluded. Landmark cases such as (Gorman v. State, 1932), and  (State v. Ratliff , 1972) illustrate this approach, demonstrating how courts assess unlawful evidence without strictly differentiating between 'unconstitutional' and 'illegal' conduct. This stands in contrast to Colombian law, which distinctly classifies various categories of unlawfully obtained evidence.

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4. Conclusions

As previously analyzed, in both Colombian and U.S. legal systems, the exclusion of illegally obtained evidence serves as a crucial mechanism to safeguard fundamental rights and due process. However, the approach taken by each jurisdiction differs significantly. In Colombia, legal doctrine tends to distinguish more clearly between unconstitutional, illegal, and illicit evidence, categorizing them according to their nature and legal consequences. By contrast, in the United States, these concepts frequently overlap, with courts focusing primarily on evidence acquisition rather than on strict categorical definitions. The exclusionary rule and the fruit of the poisonous tree doctrine serve as key mechanisms in U.S. and Colombia, preventing the use of unlawfully obtained evidence regardless of whether it is labeled unconstitutional, illegal, or illicit. 

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Ultimately, these distinctions reflect broader legal philosophies and the foundational principles of each legal system. Colombia’s rigid stance on differentiating unconstitutional, illegal, and illicit evidence aligns with its civil law tradition, which emphasizes legal certainty, codified rules, and strict procedural adherence to safeguard due process. In contrast, the United States, with its common law framework, adopts a more pragmatic and flexible approach, prioritizing judicial discretion and case law evolution in determining the admissibility of evidence. This flexibility allows U.S. courts to assess evidentiary issues contextually, applying doctrines like the exclusionary rule and its exceptions rather than adhering to rigid classifications. While both systems aim to prevent the use of unlawfully obtained evidence, their differing approaches illustrate the tension between legal formalism and judicial pragmatism, shaping how each jurisdiction balances justice, procedural integrity, and effective law enforcement.

Bibliography

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COMMONWEALTH vs. EDDIE TORRES, 22-P-389 (Massachusetts Appeals Court March 6, 2023).

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