22 Tainted by Torture: Examining the Use of Torture Evidence | 2018 The accused, Mthembu, was a taxi operator sentenced to twenty-three years’ imprisonment for stealing two vehicles and the armed robbery of a post office. His conviction and resulting sentence were based on evidence obtained from Mr Ramseroop, his accomplice, who had only volunteered the information after being subjected to torture. When dealing with the admissibility of this evidence the court remarked that, in its pre-constitutional era, all evidence regardless of how it was obtained was considered relevant but s35(5) of the Constitution required evidence that was improperly obtained from any person (not only from the accused) to be excluded. Even when the evidence is reliable and necessary to secure a conviction for serious charges, if torture has been used, it cannot be admissible. ‘The absolute prohibition on the use of torture in both our law and in international law therefore demands that ‘any evidence’ which is obtained as a result of torture must be excluded ‘in any proceedings’.81 The Court further stated: ‘To admit Ramseroop’s testimony [...] would require us to shut our eyes to the manner in which the police obtained this information from him. More seriously, it is tantamount to involving the judicial process in ‘moral defilement’. This ‘would compromise the integrity of the judicial process (and) dishonour the administration of justice’. In the long term, the admission of torture-induced evidence can only have a corrosive effect on the criminal justice system’.82 In the United Kingdom, whilst there is no express statutory prohibition on reliance on third party ‘torture evidence’, the House of Lords has confirmed that this is prohibited by common law: ‘The principles of the common law, standing alone […] compel the exclusion of third party torture evidence as unreliable, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice’.83 ii) The ‘reliability’ doctrine in the United States of America In criminal cases in the United States of America, third party ‘torture evidence’ would be subject to standard evidentiary rules concerning hearsay, which generally prohibit the introduction of out-of-court statements.84 However, the hearsay rules are complex and would not bar third party ‘torture evidence’ in all cases. CASE STUDY MTHEMBU 80 The United States Supreme Court has not determined whether the admission of coerced third party statements would violate a defendant’s constitutional rights,85 and judicial interpretation of US exclusionary rules regarding third party testimony are complex and vary across states.86 Defendants may be required to show that they have legal standing to challenge the evidence, which may require showing that admission of the evidence violates a right personal to the defendant, rather than the third party. The Supreme Court of California has, for example, held that: ‘[I]f the defendant seeks to exclude a third party’s testimony on the ground the testimony is somehow coerced or involuntary, any basis for excluding [the third party’s] testimony must be found in a federal constitutional right personal to the defendant’87 (emphasis added). It further held: ‘It is settled that the accused has no standing to object to a violation of another’s Fifth Amendment privilege against self-incrimination. Similarly, a defendant has no standing to complain of violations of another’s Fourth Amendment rights’.88 A number of US federal and state courts bar the admission of third party evidence obtained by coercion if the evidence is not ‘reliable’.89 The Supreme Court of Wisconsin, for example, has ruled that coerced third party testimony is inadmissible if the defendant can show that police misconduct was ‘egregious’ and that the resulting testimony is therefore unreliable.90 Because of the hearsay rules, issues regarding third party evidence may arise, in particular, when witnesses give testimony in court. Whatever the circumstances surrounding previous out of court statements, a separate question may also arise whether the live testimony is also unreliable.91 In this context, the Supreme Court of California has required the defendant to show that the fresh statement is unreliable, for example by showing it is tainted by earlier or on-going coercion: ‘Testimony of third parties that is offered at trial should not be subject to exclusion unless the defendant demonstrates that improper coercion has impaired the reliability of the testimony. We believe, as federal courts have stated in the cases discussed above, that a