## Facts

- Rafael Issacharov, an Israel Defense Forces soldier, was arrested for being absent without leave and taken to a military prison.
- During intake, authorities found a small amount of marijuana concealed in his clothing.
- A military police investigator interrogated Issacharov without informing him, beforehand, of his right to consult an attorney.
- The trial court found the failure to advise of the right to counsel was unlawful and intentional.
- During the interrogation, Issacharov admitted to possessing and using cannabis while in service and provided a urine sample that tested positive for prior drug use.
- He was informed of the right to consult counsel only after the interrogation and confession.
- At the time, Israeli law generally treated unlawfully obtained evidence as affecting weight rather than admissibility, subject to limited exceptions (such as involuntary confessions).

## Issues

1. Whether, absent explicit legislation and in light of the Basic Law: Human Dignity and Liberty, courts have authority to adopt a judge-made exclusionary doctrine permitting exclusion of illegally obtained evidence.
2. If such authority exists, whether Issacharov’s confession (and related evidence) should be excluded because it resulted from an intentional denial of the right to consult counsel, and what effect exclusion has on the conviction.

## Decision

- The Supreme Court recognized a general, judge-made exclusionary doctrine for illegally obtained evidence.
- The Court adopted a relative (discretionary) rule rather than an automatic rule of exclusion.
- Evidence obtained unlawfully may be excluded when, considering all circumstances, admitting it would substantially violate the accused’s right to a fair trial.
- Applying the doctrine, the Court held the intentional failure to inform Issacharov of the right to consult counsel before interrogation justified excluding the confession.
- The Court set aside the conviction that depended on the unlawfully obtained confession and addressed consequences for related evidence and further proceedings.

## Legal Principles

- Courts may exclude unlawfully obtained evidence when admission would materially impair the fairness of the criminal trial.
- The doctrine is preventive and fairness-focused: the principal aim is to avoid an unfair trial, not to punish investigators.
- The doctrine applies to all types of evidence, though the analysis may vary with the right violated and the context of acquisition.
- The exclusion decision is guided by a contextual balancing inquiry, including:
  - the nature and severity of the illegality (including intentional or serious violations);
  - the seriousness of the charged offense;
  - the causal connection between the illegality and the evidence obtained; and
  - the social costs and benefits of exclusion, weighed against truth-seeking interests.
- Denial of the right to consult counsel at the interrogation stage can support exclusion where it bears directly on the fairness of the process and the reliability and procurement of the statement.

## Conclusion

The court established a general, discretionary exclusionary rule permitting suppression of illegally obtained evidence when admission would substantially compromise the right to a fair trial, and it applied that rule to exclude a confession obtained after an intentional denial of pre-interrogation access to counsel, requiring reversal of the confession-based conviction.


Issacharov v. Chief Military Prosecutor, CrimA 5121/98, 61(1) P.D. 461 (Isr. 2006)