GÄFGEN v. GERMANY JUDGMENT
19
United States, decision of 14 January 2009, 555 US ... (2009), part II. A.,
with further references). The prohibition applies to information obtained
from coerced confessions (see, on the issue of coercion, US Supreme Court,
no. 50, Blackburn v. Alabama, decision of 11 January 1960, 361 US 199
(1960), pp. 205-07, and US Supreme Court, no. 8, Townsend v. Sain,
decision of 18 March 1963, 372 US 293 (1963), pp. 293 and 307-09),
meaning that if the confession leads to additional evidence, such evidence is
also inadmissible in court in addition to the confession itself (compare Nix,
cited above, p. 441, and Segura, cited above, p. 804). The evidence is to be
excluded, however, only if the illegality is the proximate cause of the
discovery of the evidence. In other words, evidence will be excluded if it
can be shown that “but for” the illegal conduct it would not have been
found. The exclusionary rule does not apply where the connection between
the illegal police conduct and the discovery of the evidence is so remote as
to dissipate the taint. This is the case, for example, where the police relied
on an independent source to find the evidence (see Nix, cited above,
pp. 441-44, and Segura, cited above, pp. 796-97, 804-05 and 815, with
further references) or where the evidence would ultimately or inevitably
have been discovered even had no violation of any constitutional provision
taken place (see Nix, cited above, pp. 441-44).
74. The exclusionary rule is also applied in other jurisdictions. The
Supreme Court of Appeal of South Africa found in its recent judgment of
10 April 2008 in the case of Mthembu v. The State, case no. 379/2007,
[2008] ZASCA 51 as follows:
“Summary: The evidence of an accomplice extracted through torture (including real
evidence derived from it) is inadmissible ...
...
33. ... The Hilux and the metal box were real evidence critical to the State’s case
against the appellant on the robbery counts. Ordinarily, as I have mentioned, such
evidence would not be excluded because it exists independently of any constitutional
violation. But these discoveries were made as [a] result of the police having tortured
Ramseroop. There is no suggestion that the discoveries would have been made in any
event. If they had the outcome of this case might have been different.
34. Ramseroop made his statement to the police immediately after the metal box
was discovered at his home following his torture. That his subsequent testimony was
given apparently voluntarily does not detract from the fact that the information
contained in that statement pertaining to the Hilux and metal box was extracted
through torture. ... therefore, there is an inextricable link between his torture and the
nature of the evidence that was tendered in court. The torture has stained the evidence
irredeemably.
...
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