Milk of the Poisonous Tree

by Sherry F. Colb

In my Verdict column this week, I consider the very different ways in which the law handles "Fruit of the Poisonous Tree," depending on whether the poisonous tree is a Fourth Amendment violation (an unreasonable search or seizure)--in which case the doctrine provides for suppressing the resulting evidence--or whether the poisonous tree is the theft and copying (or cyber-theft) of private documents--in which case the doctrine provides First Amendment protection for the publication of the resulting material.  I explore these differences in the context of the recent cyber-attack on Sony and discuss whether it makes sense to maintain such a distinction, which turns mainly on the public/private split.

In this post, I want to consider a related question.  This question is how people who would refuse themselves to directly inflict suffering or death on a nonhuman animal (other than in an emergency situation) nonetheless purchase and consume the immediate products of such violence, including flesh, dairy, and eggs on a daily basis.  (I take up a version of this question in greater detail in chapter 6 of my book, Mind If I Order the Cheeseburger? and Other Questions People Ask Vegans, a chapter entitled "Aren't The Animals Dead Already Anyway?").

First, let me elaborate the idea of the Fruit of the Poisonous Tree.  If someone has committed a wrong in acquiring some product, whether that product is evidence of crime, personal information about Sony officials, or the lacteal secretions of a grieving mother cow whose baby was taken from her at birth, it is wrongful to utilize and enjoy the "benefits" of that product just as it was wrongful to commit the harm that resulted in the product's acquisition in the first place.  In other words, one becomes an accomplice in the initial wrongdoing by taking the fruits of that wrongdoing and utilizing them as a source of pleasure, information, etc.

In each of the Fruit of the Poisonous Tree contexts, there are two separate harms associated with benefiting from the wrongdoing.  First, one directly rewards the commission of the initial wrong by utilizing the fruits of the wrong in precisely the manner contemplated by the first wrongdoer.  For Fourth Amendment violations, the police who search homes without probable cause do so, at least in part, in the hopes of finding evidence that prosecutors can then utilize to obtain convictions.

For computer hackers who aim to uncover personal information about targeted individuals, the hackers (one can guess, although their motives may be less clear than those of the police) act in the hopes of having news outlets widely disseminate the hacked information and thereby either embarrass the targets, bring glory to the hackers, or perhaps expose some terrible secret that was kept by the targets (a goal akin to whistleblowing).  If the recipient of the ill-gotten goods goes ahead and does what the unconstitutional actors/hackers hoped he or she would do, then there is every incentive in place for the initial wrongdoers to repeat its, his, or her misconduct, since the misconduct bore the anticipated fruit. Receiving a paycheck likewise motivates an employee to return for another day of work.

The second harm is one of moral complicity.  Regardless of what the incentives for future conduct might be, partaking in wrongly-obtained goods makes an actor an accessory to the misconduct that first took place.  For this reason, you might be reluctant to wear a piece of jewelry that was taken from a corpse, even if wearing the jewelry will have no effect on (and may not even be known to) the person who committed the murder and who left the stolen jewelry for you to find.

In the context of consuming animal products, there is no question that those who produce the products--those who forcibly bring sentient living beings into existence, mutilate them, rob them of their children and other loved ones, and then brutally slaughter them--do so because people demand animal products with their dollars and cents.  If someone purchases dairy products, she thereby sends the market a signal that she wants farmers to continue to breed cows, take away their babies and divert the babies' milk to the human market, and slaughter the animals long before they live out their life spans so they can be replaced with more "productive" animals.  She literally "demands" more of the same atrocities that produced the dairy product (organic or otherwise) in the first place.

Unlike police and cyber-hackers, moreover, those who hurt and slaughter animals for a living--especially slaughterhouse workers--do so only because there is demand for the products of the violence.  Were demand to disappear, the slaughterhouse doors would close, and no one would dream of one day growing up to slaughter animals for a living.  Police, on the other hand, might still conduct unreasonable searches and seizures, even if the evidence were inadmissible (because police might hope to find potential victims or because, less flatteringly, some might wish to exercise power over the population), and cyber-hackers would probably still hack (for the same unknown reasons that virus-creators create viruses).

As to complicity, it is moral complicity that stops an increasing number of us from eating a slaughtered animal or the animal's stolen secretions, even if these so-called "foods" are "left-overs," and no one (other than us) would know that we ate them.  Moreso even than stolen data, the flesh and bodily secretions of an animal are intimately the rightful property of that animal, and it is not for us to partake in it.  Furthermore, returning to incentives, the impact of our choices--the choices of a highly social species such as humans--are far greater than we might imagine.  Because you decide that you will become vegan and begin consuming only non-animal-derived foods and other products, the people around you will notice, ask questions, and begin to reconsider their own largely unexamined choices as well.  This is the process that first got me thinking about veganism, and it has happened for many of the beloved friends in my own social circles.

By becoming vegan, you therefore not only decrease demand for deliberate and profound violence against animals as aware, emotionally complex, and capable of joy and suffering as the canine and feline companions who grace so many homes in this country.  You also set an example for others, whose fundamental compassion for their fellow earthlings may be germinating and just waiting for someone to show them how to proceed.  When it comes to violence against animals, let us not drink the milk (or eggs or meat) of the poisonous tree.  It is rotten, and the alternative is delicious, peaceful, healthful, and far better for the environment.  If you believe that it is wrong to hurt an animal unnecessarily, you have already made the judgment that veganism is for you.  Here are some resources to get you started:;;  Make this life-affirming choice one of your New Year's resolutions.  And a happy and healthy New Year to you all.