In recent work, Conee and Feldman have drawn a distinction between one's ultimate evidence (i.e., that which is evidence without one needing further evidence for it to be evidence) and one's derivative evidence
(i.e., that which is evidence, but only because one has further evidence that confers this status upon it) and argued that one's ultimate evidence consists of experiences.
Even so, two important examples of the potential difference between trial in a federal court and that in a military commission are (1) the handling of hearsay evidence and out-of-court affidavits attesting to scientific or technical test results; and (2) the handling of derivative evidence.
Derivative evidence is evidence that the government discovers as a result of statements or evidence that it obtains directly from the suspect.
Violations can result in imprisonment for not more than five years; fines up to $250,000 (up to $500,000 for organizations); in civil liability for damages, attorneys' fees and possibly punitive damages; in disciplinary action against any attorneys involved; and in suppression of any derivative evidence
. Congress has created separate but comparable protective schemes for electronic communications (e.g., e-mail) and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices.
Out of the five cases reviewed by the Supreme Court in 2004 involving the privilege against self-incrimination, three of them involved the admissibility of derivative evidence
of unwarned, yet otherwise voluntary, statements.
is material having originated from the original evidence (e.g., grown cultures, amplified DNA).
The Court determined that derivative evidence
, such as the witness' identity, may be suppressed, but only if the police obtained it by infringing on the defendant's constitutional rights.
The exclusion is so broad that other derivative evidence
of protected information has also been excluded.
"The Scholarship of Poliziano and Its Context" describes a revolution in this second, philological style of reading, for Angelo Poliziano, the famous Florentine scholar, developed the modern method of arranging both manuscripts and historical sources genealogically in order to eliminate derivative evidence
. The path from the Renaissance to modernity, however, is not always straight, as we see in "Traditions of Invention and Inventions of Tradition in Renaissance Italy: Annius of Viterbo," an essay which shows how the rules for the systematic evaluation of sources were permanently refined by one of the greatest forgers of the Renaissance.
During the period roughly extending to the 1950s, physical evidence uncovered as a result of an involuntary confession was, unsurprisingly, admissible - because the derivative evidence
, unlike the confession, was reliable.(27) Indeed, "it was generally held that if the extrinsic evidence corroborated the confession ...
In its 2004 term, the Court heard arguments on three cases that involved the admissibility of derivative evidence
obtained through the use of unwarned statements.
In most jurisdictions,(12) transactional immunity is not required, and employees can still be prosecuted for criminal conduct discussed during compelled interviews, as long as neither the employees' compelled statements nor any derivative evidence
is part of the government's case.