28 Tainted by Torture: Examining the Use of Torture Evidence | 2018 Chapter III: A fair process to identify and exclude ‘torture evidence’ In practice, if the prohibition on ‘torture evidence’ is to be effective, a fair and effective procedure must be put in place to establish whether evidence was obtained by torture. As discussed below, some aspects of this have been explicitly addressed by international human rights monitoring bodies and courts (particularly relating to the question of the burden of proof). However, in general, this is an area where international human rights standards pertaining to the exclusionary rule are not clear. III.1 Triggering the procedure The first stage in the procedure for excluding ‘torture evidence’ is to raise the issue of whether evidence has been obtained as a result of torture. But who is able to do this? i) In all of the countries we examined, defendants had the right to trigger the procedure for the exclusion of evidence obtained by torture. It is logical that a defendant would frequently wish to take the initiative to do this if it results in the exclusion of evidence on which the prosecution seeks to rely. ii) However, arguably, it should also be incumbent on the prosecution and the judiciary to raise this issue of their own accord where they have reason to suspect torture: after all, they are agents of the state and the state is responsible for the exclusion of ‘torture evidence’. This also aligns with the state’s independent obligation to investigate allegations of torture which is not contingent on the victim filing a complaint.117 Also, a defendant who has been tortured may not always be in a position to raise this with the competent authorities, particularly when they remain in detention and/or are vulnerable to reprisals. In France and Spain, for example, an investigating judge or prosecutor can initiate the procedure to exclude evidence if they suspect that evidence was obtained by torture.118 At what point in the criminal case should this issue be raised? i) Many countries allow challenges to the admissibility of evidence in advance of the trial, such as China,119 Mexico120 and Spain.121 Enabling early challenges to ‘torture evidence’ can be important, particularly when a confession obtained by torture is the only evidence linking an accused person to a crime, and this is the basis upon which an accused person is in pretrial detention. However, such early challenges require a defendant to know that the prosecution intends to rely on ‘torture evidence’ (which a defendant may not know if that evidence was obtained from a third party). Often the trigger will be the attempt by a prosecutor to introduce confession evidence at the start of the trial or just in advance of it. ii) Many countries require the admissibility of evidence to be challenged at the trial stage, but before the trial has actually begun. Making a decision on whether to exclude evidence at this stage (as opposed to later in the process or during the sentencing phase) has a number of advantages: (a) the defence should have had an opportunity to consider the prosecution’s case – in many countries this may also be the first time a defendant (particularly an indigent one) has had the active engagement of a lawyer; (b) courts prefer to get these preliminary issues out of the way so that a decision can be made on whether to proceed to trial (for example, if a confession is excluded there may not be sufficient evidence to prosecute) and, if so, to plan the trial; and (c) for countries that use jury trials this means that, if the defendant is successful in excluding evidence, the jury never becomes aware of the excluded evidence, ensuring they are not prejudiced by it. iii) Because of these advantages, some countries are prescriptive about requiring applications to be