Article by: Geoffrey S. Corn & Kevin Cieply

42 PEPP. L. REV. 467 (2015)

Imagine a defendant is brought to trial in a U.S. district court. Key to the prosecution’s case is the defendant’s confession—a confession extracted by coercive methods used by foreign government agents. That the defendant was subjected to official maltreatment is not in dispute; the U.S. Attorney prosecuting the case concedes that the methods used to extract the confession would certainly qualify as coercion in violation of due process had the agents been U.S. government actors. But, she argues, because the agents responsible for the coercion were officials of another country, the confession is beyond the scope of due process based exclusion and must be admitted. And, while the methods used to procure the confession will certainly raise reliability concerns, she argues that such concerns relate only to the confession’s probative value, and not admissibility. Of course, a prosecutor in this situation is unlikely to offer such a confession without the expectation that it will align with other evidence. Accordingly, exempting such confessions from the scope of due process scrutiny will not only tacitly endorse the official maltreatment of the defendant, but will also likely produce a devastating evidentiary consequence against him. For both these reasons, the defendant moves to prohibit the introduction of his confession. While he is able to provide a compelling factual basis for exclusion—the conceded coercion he was subjected to—his legal basis is far less conclusive.

The prosecution’s concession of coercion would appear to make exclusion an easy call. It is, however, anything but. Indeed, because of the lack of official United States government responsibility for the coercion, it is questionable whether due process bars admission of a confession coerced at the hands of foreign government actors even when offered against the defendant by the United States. Admissibility of such confessions is ostensibly consistent with the Supreme Court’s seminal coercion decision in Colorado v. Connelly. This Article questions whether Connelly actually compels such a pernicious outcome, and argues that no U.S. court should allow the use against a defendant of a confession procured by coercion at the hands of any government official, even those of foreign governments.

It is, of course, impossible to predict how the Supreme Court might rule on the admissibility of evidence of coercive treatment procured by foreign government officials but offered against a defendant in U.S. court. However, it is certainly plausible that the Court will decide that torture and other forms of coercion are so abhorrent as to justify extending exclusion to such confessions—an extension likely to be justified by either due process or self-incrimination analyses or by a combination of both. Connelly may be an obstacle to such an outcome, but it is not insurmountable. In Connelly, the Court declined to apply the due process exclusion to the confession that by all accounts was not the product of Connelly’s free will. But in that case the defendant’s free will was overborne by his own mental illness, making it distinguishable from the issue presented in this Article.

This Article therefore proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation’s fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court’s language in that case, and the potential of that language in prohibiting the admission of evidence obtained by foreign official coercion. The Article concludes by calling on federal and state courts to exclude statements obtained under such circumstances and encourages Congress to end any uncertainty surrounding this issue by enacting appropriate legislation that prohibits the use of any evidence extracted by torture or by cruel, inhuman, and degrading treatment in criminal trials.

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