Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?

This Article examines whether there should be exceptions to the international exclusionary rule for evidence obtained by torture, and if so, how those exceptions should be crafted to avoid abuse. Rather than explore the question in the hotly debated milieu of terrorist prosecutions, this Article analyzes and critiques three possible exceptions to the torture evidence exclusionary rule in the context of whether the newly established U.N. Cambodia Genocide Tribunal should admit evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility: (1) that the exclusionary rule should not apply to evidence resulting from preliminary questioning before the application of actual torture; (2) that the exclusionary rule should not apply to evidence obtained by third party authorities; and (3) that the exclusionary rule should not apply to evidence used against the leaders of the regime who were ultimately responsible for the acts of torture.