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

Table of ContentsI. Introduction 131II. Background 133A. History of the Torture Evidence Exclusionary Rule 133B. The Importance of the Tuol Sleng Evidence 136III. An Analysis of Three Possible Grounds for Admitting the Tuol Sleng Evidence 139A. An Exception for Preliminary Questions 1391. Torture Versus Cruel, Inhuman, and Degrading Treatment 1412. An Analogy to the Booking Questions Exception Under the Miranda Rule 1433. Should the Exclusionary Rule Apply to Cruel, Inhuman, and Degrading Treatment As Well As Torture? 1454. Application of the Doctrine of Necessity 147B. An Exception for Evidence Obtained by Third Parties 1511. The Silver Platter Doctrine 1522. Jus Cogens and the Torture Exclusionary Rule 155C. An Expanded Exception for cases Against the Torturer 1591. Canons of Statutory Construction and Principles of Treaty Interpretation 1592. An Analogy to the Use of Unethically Obtained Medical Data "162IV. Conclusion 168It is one thing to condemn torture, as we all do. It is another to find a solution to the question that this case raises which occupies Ae moral high ground but at Ae same time serves the public interest and is practicable. Condemnation is easy. Finding a solution to the question is much more difficultLord Hope of Craighead,British House of Lords, 2005(1)I. IntroductionThis Article examines whether there should be expanded exceptions to the torture evidence exclusionary rule, and if so, how those exceptions should be crafted to avoid abuse. Rather than explore the question in the hotly debated context of terrorist prosecutions, this Article uses a very different kind of case study which presents the issue in a fresh light that challenges the general assumptions about the morality, efficacy, and legality of admitting evidence obtained by torture.In October 2006, the author of this Article was invited to help lead the first training session for the investigative judges and prosecutors of the United Nations' newly established Cambodia Genocide Tribunal, known as the Extraordinary Chambers in the Courts of Cambodia.2 One of the most contentious issues that arose during the session was the question of whether the Cambodia Tribunal could admit evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Toul Sleng torture facility. What makes the issue novel is that the evidence the Tribunal is interested in is not the substance of the victims' torture-induced confessions but the background biographical information provided by the victims at the start of, or just prior to their interrogation, such as the location and type of work they did for the regime, as well as the names and the responsibilities of their superiors and subordinates.While in Phnom Penh, this author was given a tour of the Tuol Sleng facility, which has been maintained by the Cambodian government as a memorial exactly as it was the day the Khmer Rouge regime fell in January 1979. Each dank room at Tuol Sleng contains a rusty metal bed frame with large manacles and assorted implements of torment, under which can be seen the faded brownish stain from pools of blood, and above which hang large black and white photos of the anguished faces and broken bodies of the last occupants of that room the day the facility was liberated by the Vietnamese army. …