29 made at the start of the case. However, in practice, this can be unreasonable if the state is allowed to adduce evidence part-way through proceedings or if the defendant has not reported the torture to their lawyer (defendants who have been tortured or held in incommunicado detention may have had limited access to a lawyer and may still be suffering trauma as a result of what has happened to them). A number of the countries examined have sought to address this by creating some flexibility. For example, in US federal and state courts there is a growing recognition that it may be impossible for the defendant to challenge evidence at the beginning of a trial. In federal cases, the defendant can bring a motion to suppress evidence mid-trial if good cause can be shown.122 Similarly, in China evidence can be challenged during the trial but the individual making the challenge must give an explanation of why they did not challenge it earlier.123 In terms of the burden of proof, international jurisprudence draws a distinction between the burden of proof that must be met to trigger a procedure and the burden of proof which must then be applied to ‘establish’ whether evidence was procured by torture and should therefore be excluded. These are considered further below. III.2 The forum and process Given the importance of the decision to exclude evidence and its potential impact on the outcome of a criminal case, the process for making that decision must meet standards relating to the right to a fair trial under international law, including: i) ii) The determination must be made by an ‘independent and impartial tribunal’: a body that is free to decide the matter independently and impartially, on the basis of the facts and in accordance with the law, without any interference.124 The right for an oral hearing which the parties (including, notably, the defendant)125 and members of the public, including the media, can attend.126 iii) The right to the assistance of a lawyer, paid for by the state where necessary: without the effective assistance of a lawyer (engaged in advance of the trial),127 there is minimal likelihood in practice that a defendant would be able successfully to challenge the admissibility of ‘torture evidence’.128 iv) The right to meet and have confidential communication with a lawyer well in advance of the trial commencing: without this a defendant is unlikely to be able to highlight torture and to obtain advice on how to challenge resulting evidence.129 v) The right to timely disclosure of material evidence (both evidence supporting the prosecution and exculpatory evidence): without this a defendant will not know what evidence is being relied on, including possible ‘torture evidence’.130 vi) The right to call and question witnesses: in this context, for example, to cross-examine third parties about the context in which they gave evidence against the defendant or to question police officers to whom confessions were given regarding the context in which that occurred.131 vii) The right to translation and interpretation for defendants who need it.132 Assuming that evidence (which was alleged to have been obtained by torture) is admitted and the person is convicted, the violation of any one of these due process rights during the process of deciding whether to exclude ‘torture evidence’ would not necessarily result in an overall violation of the right to a fair trial. This is because, in general, the test which is applied is whether the violation affects the ‘overall fairness’ of the trial. Given the importance of the prohibition on admitting ‘torture evidence’, it is likely that denial of rights that comes to light in the process for testing the admissibility of evidence alleged to have been obtained by torture would undermine the overall fairness of the trial. For example, in the context of denial of early access to a lawyer, the European Court of Human Rights has held that the rights of the