26 Tainted by Torture: Examining the Use of Torture Evidence | 2018 53 See generally Kaye et al., McCormick on Evidence, 7th edn. (2013); Gleeson et al., Federal Criminal Practice: A Second Circuit Handbook, 16th edn. (2016); 18 U.S.C. § 3501(a): Admissibility of confessions. 54 Article 117(1) of Law No. 8 of 1981 on the Law of Criminal Procedure states that ‘the testimony of a suspect or witness given to an investigator shall be given without undue pressure from anyone in whatsoever nature’. Article 422 of the Indonesian Criminal Code further stipulates that any state government official who ‘makes use of any means of coercion’ to obtain either a confession or information is punishable by up to four years of imprisonment. 55 UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak: addendum: mission to Indonesia, 10 March 2008, A/HRC/7/3/Add.7. See also UN Committee Against Torture (CAT), Consideration of Reports Submitted By States Parties Under Article 19 of the Convention, 2 July 2008, CAT/C/IDN/CO/2. 56 JH Burgers and H Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, Or Degrading Treatment Or Punishment (Martinus Nijhoff, 1988), p.148. 57 The UN Committee Against Torture (CAT) has noted that ‘the obligations in Articles 2 (whereby ‘no exceptional circumstances whatsoever may be invoked as a justification of torture’), 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and 16 (prohibiting cruel, inhuman or degrading treatment or punishment) must be observed in all circumstances’ (from CAT, General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, para 6). See also UN HRC, General Comment no. 32: Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007, para 6: ‘The guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non derogable rights. […] no statements or confessions or, in principle, other evidence obtained in violation of this provision may be invoked as evidence in any proceedings covered by Article 14, including during a state of emergency, except if a statement or confession obtained in violation of Article 7 is used as evidence that torture or other treatment prohibited by this provision occurred’. 58 Bunning v Cross [1978] HCA 22, 141 CLR 54. 59 Evidence Act 1906 (WA), Section 112. 60 In this case legislation provides that the admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind (Commonwealth Evidence Act 1995, Section 84). 61 Thai Criminal Procedure Code, B.E. 2477. (1934), Article 226. 62 Constitution of the Kingdom of Thailand, B.E. 2560 (2017), Article 28(3). 63 Thai Criminal Procedure Code, Article 226(1). 64 Ibid, Article 226(2). 65 Burgers and Danelius, The United Nations Convention Against Torture, p.148. 66 UN General Assembly, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 9 December 1975, A/RES/3452(XXX), Article 12. 67 UN General Assembly, International Covenant on Civil and Political Rights, Article 7; OAU, African Charter, Article 5; OAS, American Convention on Human Rights, Article 5; Council of Europe, European Convention on Human Rights, Article 3. See also, African Commission on Human and Peoples’ Rights, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines) (2002), Guideline 29; Inter-American Commission on Human Rights, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Res. 1/08, 3-14 March 2008, Principle V. 68 For example, UN General Assembly, Report on torture and other cruel, inhuman or degrading treatment or punishment, submitted by Sir Nigel Rodley, Special Rapporteur, 1 October 1999, A/54/426, para 12(e). 69 HRC, CCPR General Comment No. 20, para 12; HCR, General Comment No. 32, para 60; CAT, General Comment No. 2, para 6. The ECtHR took this position in a succession of cases, including Söylemez v Turkey, para 23; Jalloh v Germany, para 99; Haci Özen v Turkey, App no. 46286/99, 12 April 2007, paras 101-105; Levinta v Moldova, App no. 17332/03, 16 December 2008, paras 97-100; Gäfgen v Germany, para 166; Stanimirovic v Serbia, App no. 26088/06, 18 October 2011, paras 51-52. 70 For example, CAT, General Comment No. 2, where the Committee noted that it ‘considers that articles 3-15 are […] obligatory as applied to both torture and ill-treatment’. 71 M. Nowak and E. McArthur, The United Nations Convention Against Torture: A Commentary (Oxford University Press, 2008), pp. 534-535, 572. 72 Ibid. 73 Police and Criminal Evidence Act 1984, Section 76. 74 Cabrera-García and Montiel Flores v Mexico (Preliminary Objection, Merits, Reparations and Costs) Series C No. 220, 26 November 2010, para 167. 75 GK v Switzerland, CAT/C/30/D/219/2002, para 6.10. 76 UN Committee Against Torture (CAT), UN Committee Against Torture: Conclusions and Recommendations, United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Overseas Territories, 10 December 2004, CAT/C/CR/33/3, para 4(a)(i). Furthermore, it expressed concern that ‘the State party’s law has been interpreted to exclude the use of evidence extracted by torture only where the State party’s officials were complicit’. The CAT issued these conclusions and recommendations following the decision of the English Court of Appeal in A and Others, where it was held that evidence obtained through torture by a foreign state would be admissible in an English court (A and Others v Secretary of State for the Home Department (No. 2) [2004] EWCA Civ 1123, 11 August 2004, paras 253-254 (per Laws LJ)). That ruling was subsequently overruled by the House of Lords. 77 Federal Constitution of Brazil, Article 5, Section LVI; Spanish Judiciary Act, Article 11.1 (Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial); Federal Constitution of Mexico, Article 20 A IX. 78 Constitution of the Republic of South Africa, Chapter 2 – Bill of Rights (1996), Section 35(5). 79 S v Mthembu (379/07) [2008] ZASCA 51, para 27. 80 Ibid. 81 Ibid, para 32. 82 Ibid, para 36. 83 A & Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71. 84 Federal Rules of Evidence, Article VIII. See also W Lafave et al., Criminal Procedure (2015, 4th edn), para 9.1(a): ‘Questions of standing seldom arise as to confessions because established evidentiary rules normally permit a confession to be admitted as substantive evidence only against the maker.’ 85 Samuel v Frank, 525 F.3d 566, 569 (7th Cir. 2008). 86 Katherine Sheridan, ‘Excluding Coerced Witness Testimony to Protect a Criminal Defendant’s Right to Due Process of Law and Adequately Deter Police Misconduct’, Fordham Urban Law Journal, 38 (2011), p.1242. 87 People v Badgett (1995) 10 Cal.4th 330, 41 Cal.Rptr.2d 635; 895 P.2d 877. 88 Ibid. 89 Ibid. 90 State v Samuel, 252 Wis.2d 26 (Wis. 2002). 91 Douglas v Woodford, 316 F.3d 1079 (2003). 92 People v Badgett, 895 P.2d 877, 886–87 (Cal. 1995). 93 Bradford v Johnson, 354 F. Supp. 1331 - Dist. Court, ED Michigan 1972 Para. 1336. 94 Douglas v Woodford, 316 F.3d 1079 (9th Cir. 2003); Williams v Woodford, 384 F.3d 567 (9th Cir. 2004); People v Williams, 233 P.3d 1000 (Cal. 2010). 95 689 F.Supp.2d 38 (2009).