Scharf: Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?

Michael Scharf (Case Western Reserve Univ. - Law) has posted Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible? (Washington & Lee Law Review, forthcoming). Here's the abstract:

Written by a consultant to the United Nations' newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year - whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility should be considered notwithstanding the international exclusionary rule for evidence procured by torture. The issue of whether there should be exceptions to the torture evidence exclusionary rule (and how those exceptions should be crafted to avoid abuse) has significant implications beyond the international tribunal, in particular with respect to the admissibility of statements obtained by torture in cases before military commissions and federal courts in the United States and across the globe. The article analyzes and critiques three possible exceptions to the torture evidence exclusionary rule: (1) that the exclusionary rule should not apply to evidence resulting from preliminary questioning before the application of actual; (2) that the exclusionary rule should not apply to evidence obtained by third-party authorities; and (3) that the exclusionary rule should not apply to evidence used against the leaders of the regime who were ultimately responsible for the acts of torture. To avoid pernicious use of these exceptions and to ensure that they are not applied in a manner that will undermine the purposes of the Torture Convention in future cases, the author proposes and discusses four criteria that should be satisfied before a court can consider evidence that was obtained by torture or cruel, inhuman or degrading methods of interrogation: (1) evidence obtained by torture or cruel, inhuman and degrading means must never be used in a trial where the victim of such abuse is the defendant; (2) such evidence must never be used where the prosecuting authorities were directly or indirectly involved in the acts of ill-treatment; (3) evidence obtained through the use of such ill-treatment must not be considered unless it meets a high level of corroboration; and (4) evidence derived from torture or cruel, inhuman or degrading treatment should not be admitted if, with reasonable efforts, the prosecution could obtain non-tainted evidence that would be effective in establishing criminal liability. Finally, drawing by analogy from the debate concerning citations to unethically obtained medical data, the author suggests that if a tribunal or court were to admit evidence in a case that meets these criteria, it should specifically acknowledge that the evidence was obtained through torture or cruel, inhuman or degrading treatment, and would ordinarily have been excluded because of concerns about reliability, deterrence, and defiling the administration of justice.