DAY 3 - JUAN E. MÉNDEZ Juan E. Méndez* “Torture-tainted evidence and the exclusionary rule” *Juan E. Méndez, Faculty Director of Anti-Torture Initiative Introduction The exclusionary rule (Article 15 of the UN Convention Against Torture) is an important piece of the elaborate and sophisticated normative framework of International Law surrounding torture and illtreatment. All my predecessors and my successor as Special Rapporteur on Torture (SRT) have had – like me – multiple occasions to comment on it in country reports and in Observations regarding communications sent to us denouncing instances of torture. Nevertheless, the conventional clause in the CAT contains language that has given rise to equivocal interpretations of the State’s obligation in the presence of evidence possibly obtained by torture, and more seriously has lent itself to bad faith interpretations of the clause. Challenges in the language of CAT Article 15 mandates exclusion of evidence that has been determined to have been obtained under torture. This language is deficient because it provides States and authorities with an easy way out: in many countries, courts and prosecutors insist on admitting statements or declarations unless the defendant proves the existence of torture to the court’s satisfaction. This constitutes an unwarranted shift in the burden of proof to the defendant, who is most often in the worst possible position to provide evidence of torture, especially if the defendant is still in custody and without the wherewithal to obtain the services of a qualified forensic doctor. An interpretation in good faith, and consistent with the State’s other due process obligations, would insist that it is up to the prosecution to prove that the statement or declaration and all other means of evidence have been lawfully obtained. In addition, Art. 15 refers only to statements and declarations. In some jurisdictions, evidence that was obtained in a search, seizure or a statement of a second suspect and only indirectly originated from torture is frequently admissible. The object and purpose of the exclusionary rule is not only to provide for a fair trial but also to discourage torture, as stated in the US Supreme Court case called Mapp v. Ohio (Supreme Court of the US, 367U.S.643 (1961)). An interpretation consistent with that object and purpose of the norm would apply the “fruit of the poisonous tree” doctrine and exclude all evidence directly or indirectly related to torture. 28