Part III The Trial, 10 Rules Governing the Presentation of Testimonial Evidence
Colleen M. Rohan
Edited By: Karim A. A. Khan, Caroline Buisman, Christopher Gosnell
- Evidence — Admissibility of evidence
The cases brought before the International Criminal Court (ICC) and the ad hoc international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) present a unique range of challenges for all parties who participate in the trial proceedings: the prosecution, the defence, and the three judges who comprise the trial chambers. The cases involve allegations of the most serious criminal conduct recognized under international law: war crimes and crimes against humanity. The accused are, for the most part, individuals who held public office, or were high ranking members of the military or the police in their own countries. The cases arise from armed conflicts of both internal and international scope, which are often still fresh in the collective memories of those who survived them.
The trials also take place under the hot light of widespread, international scrutiny. Trial proceedings are broadcast throughout the world as they occur and public opinion about the accused, the trials, their participants, and the verdicts which are returned can have and have had a direct impact on the development of legal, social, and political attitudes throughout the world.
(p. 500) It is the responsibility of the parties to these politically charged, factually and legally complex cases, to employ a trial process which is orderly, ethical, and fair to all concerned, including the accused, victims, and witnesses.
The ICC and the ad hoc tribunals have each codified its own sui generis mix of legal principles and procedures, taken from both the civil and common law legal traditions.1 Jurisprudence interpreting the rules of procedure has developed over the years as the tribunals have resolved individual cases; learning from the mistakes and successes occasioned by the procedures which were adopted.
This chapter discusses the procedural rules which govern the presentation of viva voce testimony during criminal trials in the existing international courts. It is not meant to constitute an exhaustive survey of all jurisprudence on this subject, as the application and effect of the procedural rules is an ever evolving process that can vary, depending on the specific factual circumstances of an individual case. Instead, it is meant to provide an overview of the kinds of issues which may arise during trial which have a direct effect on the manner in which viva voce testimony is elicited and received by the trial chambers.
Before describing the rules governing the presentation of testimonial evidence during international trial proceedings, it is useful to provide a brief background describing the information made available to counsel, through disclosure and the filing of pre-trial briefs, before trial begins. The nature and timing of the production of this information affects the manner in which the trial process unfolds, the number of witnesses who may be called, and the available basis for the examination of witnesses. It also reflects the growing trend at the ad hoc tribunals as well as the ICC towards the adoption of procedures more familiar to the civil, rather than common law system.
In addition to any disclosure provided to the accused pre-trial, the prosecutor is required to file a pre-trial brief which must contain a summary of the evidence the prosecutor intends to produce at trial. This brief must contain the name or pseudonym of each witness who will give evidence, a summary of the facts to which each witness will testify, the points in the indictment to which each witness will testify, the total number of witnesses, an indication as to whether the witness will testify in person or by submission of a written statement or use of a transcript of a witness’s prior testimony before the tribunal, and an estimate of the amount of time required for each witness. The prosecution must also provide the accused (p. 501) with a list of the exhibits it will use at trial, copies of those exhibits, and describe any defence objections to the authenticity of any exhibits.2
This process comports with the accused’s right to notice of the ‘nature and cause of the accusations’ against him or her.3 It also arguably reflects a shift in international courts in the direction of the civil law approach4 of creating a trial dossier, albeit with important differences, in which the statements of witnesses, documentary evidence and other matters are made available to the Trial Chamber before trial commences.5
The prosecution has a continuing obligation to provide the defence with any exculpatory evidence which is in its possession before, during, and after trial, whenever it is that such evidence becomes available to the prosecution.6 That obligation comports with and enforces the accused’s right to a fair trial and, in any event, should certainly be mandated for ethical reasons.7
After the prosecution pre-trial brief is filed the defence ‘shall’ (at the ICTY) or ‘may’ (at the ICTR) file its own pre-trial brief. The required contents of this brief varies between the ad hoc tribunals, but the brief, as a general proposition, should provide the Trial Chamber with an idea of which aspects of the prosecution case the defence is likely to contest.8 This procedure also represents a significant adoption of civil law legal tradition. In the common law, adversarial References(p. 502) system the defence is not required, with very limited exceptions,9 to disclose any information regarding the nature of its case prior to the completion of the prosecution case-in-chief. Requiring such a practice would violate fundamental procedural protections embraced by the adversarial system intended to enforce the presumption of innocence, the accused’s right to remain silent prior to and at trial, as well as the requirement that the prosecution bears the burden of proof at trial.10
At the conclusion of the prosecution case-in-chief at trial the defence ‘shall’ (at the ICTY) and ‘may’ (at the ICTR), file a brief which provides the list of witnesses it intends to call to at trial, the name or pseudonym of each witness, a summary of the facts to which each witness will testify, the points in the Indictment to which each witness will testify, an indication of whether the witness will appear in person or by way of written statement or prior testimony, and the estimated length of time for each witness. The defence must also provide the prosecution with a list of the exhibits it intends to produce at trial and copies of those exhibits. If the prosecution has any objection to the authenticity of any defence exhibits, those objections should be included.11
The rules at the ICC on this topic provide for similar disclosure. Rule 76 of the ICC Rules of Procedure and Evidence (‘ICC Rules’) requires that the prosecution provide the defence with the names of the witnesses it intends to call at trial and copies of any prior statements made by those witnesses ‘sufficiently in advance [of trial] to enable the adequate preparation of the defence.’12 The prosecution is required to permit the defence to inspect any books, documents, photographs or other tangible objects in its possession or control which are material to the preparation of the defence or are intended for use by the prosecutor as evidence, either at the confirmation hearing or at trial.13
The defence has a similar, though narrower obligation. It must permit the prosecution to inspect any books, documents, photographs or other tangible objects References(p. 503) in its possession or control which it intends to use as evidence at the confirmation hearing or at trial.14
These witness and exhibit lists set the general time parameters of the trial by providing the Trial Chamber with an approximation of how long the examination of each witness is likely to take and, therefore, how long the trial is likely to last. Items disclosed via the prosecution and defence filings also provide the basis for the factual examination of witnesses.
Needless to say, the late addition of witnesses or exhibits occurs, but it should be permitted, under the relevant rules at the ad hoc tribunals only upon a showing of good cause as to why the information was not revealed when the pre-trial briefs were filed.15 The reason for this provision is premised on the fundamental rights of the accused to a fair and expeditious trial as well as the right to be afforded adequate time and facilities for the preparation of the defence.16 A trial chamber must, therefore, be satisfied that any amendments to the pre-trial brief’s witness or exhibit list, which happen after the trial itself has already begun, provide the ‘accused sufficient notice and do not adversely affect his ability to prepare for trial.’17 It has the discretion to refuse to hear a witness whose name was not provided to the Chamber and opposing counsel as of the date of the pre-trial conference; a conference usually held within less than five days of the commencement of trial.18
The ICC uses a similar procedure. It requires that the prosecution, after providing access to its initial witness names and statements, ‘subsequently advise the defence of the names of any additional prosecution witnesses and provide copies of their statements when the decision is made to call those witnesses.’19
In practice, each case will depend on its specific circumstances but, as a general rule, the addition of a new witness or exhibit will be permitted unless doing so will result in undue prejudice to the opposing party. That can occur, for example, when a new witness is proposed very late in the presentation of evidence or when a new exhibit is proposed which has never been previously disclosed to the References(p. 504) opposing party, thereby foreclosing any effective means for investigating the new evidence and/or using it for cross examination.
Under all relevant international conventions, individuals accused of crime are entitled to the presumption of innocence.20 The prosecution bears the burden of proof at trial and it is a significant burden. The accused is entitled to an acquittal unless the prosecution can prove the accused’s guilt beyond a reasonable doubt.21
At the ad hoc tribunals as well as the ICC, an essentially adversarial process is employed regarding presentation of viva voce testimony at trial. Each party is entitled to present its own witnesses and to cross-examination the witnesses presented by the opposing party. Because the prosecution must meet its affirmative burden of proof to go forward with its case, it presents its evidence first. In keeping with the presumption of innocence, the accused has no burden to go forward with any affirmative evidence at trial at all, though most accused do. The defence evidence is presented, with rare exception, only after the prosecution case-in-chief is concluded.22 Deviations from this general sequence are within the discretion of the Trial Chamber, but are likely to occur only at the request of a party and upon a showing that the interests of justice require it.
(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:
(v) evidence ordered by the Trial Chamber pursuant to Rule 98;23 and
References(p. 505) (vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment.
(B) Examination, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness.
Similar, albeit more flexible rules have been enacted at the ICC where Rule 140(1) provides that if the presiding judge does not give directions regarding the order of examination, the ‘Prosecution and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If no agreement can be reached, the Presiding Judge shall issue directions.’ The same rule provides, however, that the defence ‘shall have’ the right to be the last to examine a witness.24
At the ICC the Trial Chamber has the right to question a witness before that witness is questioned by one of the parties; a provision which, in theory, permits the Trial Chamber to examine a witness on substantive issues before it has heard the evidence the party presenting the witness intended to produce through that witness.25 It remains to be seen how often and to what extent this right is exercised by chambers at the ICC.26 Extensive questioning from the bench on substantive matters before examination by either the prosecution or the accused, should that occur, has the potential to undermine the party-driven, adversarial nature of the presentation of evidence at trial which underlies the rules of evidence and procedure adopted at the ICC.
The procedures adopted for the presentation of viva voce testimony at the Special Tribunal for Lebanon (STL), which follow, for the most part, the civil law approach to the investigation and presentation of its cases, allow a trial chamber two options regarding the presentation of viva voce testimony. If the Trial Chamber believes that the dossier of the case submitted to it by the pre-trial judge is sufficiently informative and complete, each witness at trial ‘shall first be questioned by the Presiding Judge and any other member of the Chamber, then by the Party that has called the witness, and subsequently cross-examined by the other Party, if the other Party elects to exercise its right of cross-examination.’27
References(p. 506) If the Trial Chamber does not consider the file submitted to it by the pre-trial judge to be sufficient in order for the Trial Chamber to lead the questioning of witnesses, then a witness ‘shall first be examined by the Party that called them, then cross-examined by the other Party, if the other Party elects to exercise its right of cross-examination.’ The presiding judge and other members of the Trial Chamber, however ‘may at any time ask questions.’28 The presiding judge also has the discretion ‘wherever it considers that this is required by the interests of justice’ to depart from either of these two modes of proceeding.29
As can readily be seen from these different approaches, there are significant variations between the systems of law utilized in the international courts and no agreement yet as to whether a consistent approach must be adopted for cases tried on the international stage or, if so, what that approach can or should be.
The trial chamber in all international courts is required to exercise control over the questioning of witnesses and the presentation of evidence so as to: (1) make the interrogation and presentation effective for the ascertainment of the truth, and; (2) to avoid the needless consumption of time.30 A trial chamber is also charged with the duty to control the manner of questioning of a witness to avoid any harassment or intimidation of the witness.31 In addition, given that the cases tried in the international courts can involve testimony from hundreds of witnesses, the presentation of tens of thousands of pages of documentary evidence, and consume months or years of trial, it is common practice for trial chambers to require that the parties inform the chambers and their opposing counsel of the order in which witnesses will be called at trial, the scheduled date of their appearance, and provide a list of the documents, if any, which will be used during the examination of the upcoming witnesses.32 This type of schedule makes it possible for the trial chambers and counsel to be prepared for a witness on the date the witness appears to testify.
Direct examination constitutes the procedure used by a party to present its affirmative case at trial.33 In accordance with the provisions of the Statutes of References(p. 507) the tribunals and the Rules of Procedure and Evidence, the Trial Chamber has the duty to ensure that the trial is fair and expeditious with full respect for the rights of the accused and with due regard for the protection of victims and witnesses. Hence, the trial chamber has the duty to exercise control over the mode and order of examining witnesses and presenting evidence, as well as the order in which witnesses appear.34 Though specific rules exist governing the order of examination of witnesses and the mode of examination, the trial chamber always has the discretion to control the proceedings before it in line with these basic principles.
As a general rule, the party presenting a witness must limit the direct examination of that witness to the subjects raised in the summaries contained in its pre-trial brief, which were prepared for that witness and served on opposing counsel prior to the witness’ testimony.35 A party questioning its own witness during examination-in-chief (or ‘direct examination’) is, with limited exceptions, not permitted to ask leading questions of that witness.36 Leading questions are those which, by their wording, suggest the answer to the witness. For example, if the color of a jacket worn by a perpetrator is in dispute in a case, it is improper for a party to ask its own witness during direct examination: ‘Was the man who detained you wearing a blue jacket?’ The question is leading since the colour of the jacket is suggested to the witness in the question itself. A proper, non-leading question would be: ‘Can you please describe the clothing worn by the man who detained you?’ or, alternatively, ‘What was the color of the clothing worn by the man who detained you?’
The reason for this rule is self-evident. The substantive evidence must come from the witness who is appearing in court; not from the questions posed to that witness by a prosecutor or defence counsel. The prohibition on asking leading questions also assists the trial chamber in its fact-finding function by giving it a solid basis upon which to assess what credibility or weight to assign to viva voce testimony. A witness who has been prompted, by virtue of the content of a leading question, to provide an answer consistent with the content of that question, poses a problem for the fact-finder. The witness may be telling the truth as the witness remembers it. On the other hand, the witness may be testifying as he or she is because the question posed to the witness improperly prompted the answer which was ultimately given.
References(p. 508) Given the importance of concentrating the testimony on the issues which are actually in dispute, direct examination should also be comprised of clear, concise questions which focus on those issues. It is good practice to ask only one question at a time and to cover only one subject in each question. Long, complicated or compound questions risk confusing the witness and can result in ambiguous answers which, in turn, can create an ambiguous record which may not be of much assistance to the trial chamber.37 It is not uncommon for a trial chamber to intervene when such questions are asked, even if no objection was raised by the opposing party, for precisely that reason.
A party may expand the scope of its direct examination of its witness to include subjects not previously contained in that witness’ pre-trial statements or pre-trial summary of that witness’s anticipated testimony, if new information arose just prior to the witness’s appearance at trial. When this occurs the presenting party must inform the trial chamber and the opposing parties of the new information ‘as soon as possible’ so that the opposing parties have the opportunity to prepare for cross-examination on the newly disclosed material.38 This is not a rule which is intended to be mechanistically applied. Its purpose is to provide the opposing party with fair notice of the evidence likely to be presented at trial so that the opposing party can prepare to meet that evidence if need be.39
Pre-trial summaries of the anticipated testimony from trial witnesses are expected to contain the list of subjects the witnesses will address along with references to the major facts which underlie those subjects. They need not contain every detail to which the witness might refer when actually testifying, however. A pre-trial written summary of a trial witness’ anticipated testimony will be viewed in conjunction with the witness’ previous statements which, as mentioned earlier, must be disclosed to the opposing party prior to trial. If previous witness statements have been disclosed, an objection alleging that a particular witness’ trial testimony strays beyond the pre-trial summary of it is likely not well founded.
On the other hand, if the proposed testimony involves matters which are substantially new and material to the case, and were not contained in the pre-trial witness summaries or other disclosure, the opposing party cannot be considered to be on (p. 509) notice of that evidence and the trial chamber has the discretion to exclude it.40 In practice, exclusion of potentially relevant evidence is unlikely if granting an adjournment or delaying presentation of the evidence until later in trial will provide the opposing party with the opportunity to reasonably evaluate and investigate the evidence.41 However, evidence has been excluded or has been stricken after being heard at trial when the opposing party was taken by surprise and had no meaningful opportunity to prepare to meet that evidence.42
Substantially similar provisions apply when a witness volunteers new information during his or her trial testimony which was never mentioned by the witness prior to trial and therefore could not have been included in pre-trial disclosure. If the new information is material to the case and prejudicial to the accused, the defence must be afforded time to investigate the information and/or the witness’s credibility, and to recall the witness at a later date for further cross-examination if need be, to ensure the accused is provided with a fair trial.43
A party presenting its case may only request the admission of exhibits in evidence at trial, including those offered through the direct testimony of its witnesses, when those exhibits have previously been included on the pre-trial exhibit list contained in its pre-trial brief.44 If a party wishes, once trial has begun, to present an exhibit that was not on that list, it must request leave from the trial chamber, prior to or during the appearance of the witness, to add that exhibit to its exhibit list. Although such applications are often heard and ruled upon orally, if the opposing party objects to the addition of the new exhibit, a trial chamber may require a written motion so that the opposing party has a reasonable opportunity to present its objections.
As mentioned above, a party offering an exhibit at trial which was not disclosed prior to trial must make a showing of good cause as to why the exhibit in question is essential to its case, the reasons why the exhibit was not on the original pre-trial exhibit list, and why the late production of the exhibit will not be prejudicial to the rights of the opposing party.45 The trial chamber, in determining whether to allow an amendment to the pre-trial exhibit list can take into account whether the proposed evidence is relevant, of probative value, and whether good cause for (p. 510) amending the exhibit list ‘at this time’ is shown.46 In general, additions to the exhibit list will be allowed if the exhibit in question was previously disclosed to the opposing party and/or when there will be no prejudice to the opposing party arising from the late addition of an exhibit.
Finally, individuals who are to be called as witnesses at trial may not be present during the trial proceedings which occur prior to the date of their own testimony.47 The exception to this rule is that investigators and/or experts employed by a party to the proceedings are permitted to observe the proceedings as part of their advisory function for the party with whom they work.48 When it is revealed that a witness has followed the trial proceedings or otherwise informed him or herself of the content of the evidence and testimony prior to that witness’ appearance, that fact can be used as cause to give less weight to the testimony of that witness.49
Undisputed foundational matters
There are exceptions to the prohibition on asking leading questions during a direct examination. When such exceptions apply, a party may and sometimes should request leave of the trial chamber to examine the witness using leading questions.50 These exceptions vary from case to case depending on the witness and the nature of the evidence to be elicited from the witness.
One example arises when the substance of the testimony at issue is not in dispute, such as the occupation of the witness or the fact the witness was present at a particular place or experienced a particular event. Such information may usually be elicited from a witness using leading questions so that the time spent on the direct examination can focus on the information which is actually relevant and probative of the disputed issues in the case.51 Many judges, in fact, may request References(p. 511) that leading questions be used to elicit this type of information to avoid wasting precious court time on foundational matters which are not in dispute or are of no consequence to the outcome of the case.
Witness who must be led due to his or her status
Leading questions may be permitted with a child witness who, depending on his or her age, may need more direction as to what information is being asked of him or her as a means of focusing the testimony on the relevant issues. Similarly, mentally impaired witnesses or elderly or infirm witnesses may also require some direction in order to focus their testimony on the disputed issues at hand and to keep it focused there; necessitating the use of leading questions to that extent. It may also be appropriate to use leading questions with a particularly vulnerable, frightened or emotionally distressed witness so as to rapidly cover issues which are not really in dispute or which do not go to the heart of the issues in dispute.
Even with such witnesses, however, if the information which is being sought goes to important, disputed issues in the case—such as the acts or conduct of the accused, the identification or lack of identification of the accused, corroboration or lack of corroboration of an alibi—leading questions, which by their nature suggest the answer to the witness, may not be permitted in such sensitive areas, if the opposing party objects to them.
Objections to such questions have a proper legal basis (the question is leading), should be raised, and will probably be sustained.52 The party presenting the witness is still free, of course, to examine him or her on the facts in question, however, that examination cannot occur by use of leading questions unless the trial chamber decides to allow it.
‘Hostile’ witnesses or impeaching your own witness
Another exception to the rule requiring that leading questions may not be used during the direct examination of a party’s own witness is when a witness has been declared to be ‘hostile’ to the party who called the witness. In order for a witness to be declared ‘hostile’ it must become apparent during the course of the witness’ direct examination that the witness is ‘not prepared to speak the truth at the instance of the party who called the witness.’53
(p. 512) This situation typically arises when a witness, who has given a prior statement of some kind to the party who called the witness at trial, repudiates all or part of that prior statement during his or her direct testimony at trial. When that occurs, the party who called the witness may ask that the witness be declared ‘hostile.’ If the trial chamber grants that request the party who called the witness is then free to ‘cross-examine its own witness’ by using leading questions regarding those aspects of the witness’ in-court testimony which vary from the witness’s prior statement.
Notwithstanding the exact form this examination procedure may take, it is the trial chamber, not the party who called the witness, who determines whether the witness is, in fact, ‘hostile.’ The trial chamber also determines whether it is appropriate to permit the use of leading questions in the examination of the witness.54
Before making this determination, the general practice is to require the party who called the witness to lay an evidentiary foundation for a declaration of hostility. In doing so it is not sufficient for the calling party to merely show that the witness is giving answers which are unfavourable to its case. The calling party must demonstrate through questioning that the witness is willfully not answering questions consistently with what the witness said in his or her pre-trial statements.55 The calling party is usually required to first give the witness the chance to read his or her prior statement or to review other documents which may remind the witness of what was said in the prior statement—a process known as refreshing a witness’s recollection. The witness is afforded this courtesy in the event that the witness is not willfully fabricating or refusing to answer questions, but has simply forgotten some aspect of his or her pre-trial statement.56
It may also be, in such circumstances, that the trial chamber will permit the calling party to confront the witness with his or her prior inconsistent statement, and ask leading questions about discreet aspects of it to clarify a particular contradiction, without finding it appropriate to declare the witness to be hostile.57 A trial chamber also has the discretion to be flexible in its approach to this situation and to determine, on a question-by-question basis, whether to allow a party to (p. 513) put leading questions to its own witness and, if so, in relation to only certain issues.58
An important substantive issue which may arise when a witness is declared to be hostile is whether the prior statement of that witness may be admitted into evidence, not just to call the credibility of the witness’s in-court testimony into question by pointing out the contradictions between the witness’s pre-trial statements and trial testimony, but as affirmative proof of the truth of the substance of the prior statement. In Limaj et al, the Trial Chamber ruled that a prior statement was admissible for the truth of its contents for two reasons. The first was that hearsay, as a general matter, is admissible at the ad hoc tribunals so long as there is a showing that the hearsay is not unreliable. The second was the Trial Chamber’s observation that even in common law jurisdictions, which do not generally allow for admission of hearsay, an exception is made for prior inconsistent statements made by witnesses under oath. It also noted that in a growing number of jurisdictions, unsworn prior inconsistent statements are admissible for their substantive truth in these circumstances, and not just for impeachment purposes.59 Of course the question still remains, and it is one the Trial Chamber must ultimately resolve, as to which, if any, of the witness’ statements can safely be relied upon as representing the ‘truth.’
Cross-examination shall be limited to the subject matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject matter of that case.60
At the ICC, Rule 140, which addresses the conduct of the proceedings and testimony at trial, provides that the prosecution and defence may question a witness presented by the opposing party ‘about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters.’61
References(p. 514) Although these rules suggest that the scope of permissible cross-examination may be broad, there are limits. A trial chamber may disallow questions which are irrelevant either because they are beyond the Indictment’s temporal scope or because they are unrelated to the specific facts of the violations alleged in the Indictment.62 The applicable rules do not limit, however, the matters that may be raised during cross-examination which are directed solely at the credibility of a witness, so long as the questions proposed are based in fact and offered in good faith.63 Cross-examination must also be conducted within reasonable time limits.64 The trial chamber may disallow improper, repetitive, irrelevant or unfair questions, including those which constitute an unwarranted attack on the witness or which fall outside the parameters listed here.65
While, in principle, the parameters of cross-examination will be defined by the general subject-matter discussed during the direct examination and matters affecting the credibility of the witness, the trial chamber always has the discretion to grant leave to the cross-examining party to enquire into additional matters, as if on direct examination.66 Typically this situation arises when an opposing party’s witness is able to present evidence related to the cross-examining party’s case, which was not elicited during the witness’ direct examination.67 However, ‘cross-examination’ which does not deal with a subject raised during the direct examination of the witness or issues related to credibility or reliability is not strictly speaking cross-examination but an examination which resembles direct examination. As a result the rules applying to direct examination must usually be respected during questioning in these new areas. Consequently, leading questions will generally not be permitted during this type of examination, even though it occurs in conjunction with cross-examination.68
Again, though the trial chamber has the duty to control the mode of examination at trial, it has no sua sponte duty to raise evidentiary objections regarding the form of questioning. It is the duty of the parties to pay attention to the manner in which examination is proceeding and to interpose proper objections on its own References(p. 515) behalf when, for example, a party uses or continues to use leading questions while examining a witness on matters which should not be elicited in that fashion.
As with direct examination, each cross-examining party must disclose to all other parties a list of the evidence it intends to use during the course of cross-examination before beginning that cross-examination. The cross-examining party must also provide the other parties with materials to be used on cross-examination which are not already in the possession of the other parties. If a party seeks to use a document or material during cross-examination which has not been previously disclosed in this fashion, it may still do so upon a showing of good cause. When necessary, the opposing party or parties may ask for a short adjournment in order to examine such new material.69
The practice regarding the timing of this disclosure can vary when the questioning involves a prosecution witness who will be cross-examined by the defence. An accused is presumed innocent. The prosecution bears the burden of establishing guilt beyond a reasonable doubt based on its own independent evidence without requiring the defence to reveal anything. Hence, until the end of the prosecution case the defence is not under any obligation to provide the prosecution with any information that could reveal the strategy of its case, with the exception of matters which must be included in the accused’s pre-trial brief, notification of any special defence, such as alibi or diminished capacity to be raised at trial, and the filing at the close of the prosecution case of a list of witnesses and exhibits the defence intends to present at trial.70
Based on these principles, the Halilović Trial Chamber at the ICTY held that the defence is not obliged to provide the prosecution, in advance, with a list of the materials it intends to use during cross-examination but only with ‘those documents actually used in court during cross-examination, at the time the documents are shown to the witness.’71
Other trial chambers have taken a different view of this issue. In the Haradinaj case, for example, the Trial Chamber held that the defence was obliged to provide the prosecution, in advance, with the list of materials it intended to use during cross-examination of prosecution witnesses as a matter of fairness to the prosecution. It also required the defence to release this information at the beginning of the direct examination of the witness in question. However, it ruled that these materials need not be given to the prosecution until after the witness had been sworn and therefore could no longer be approached by either (p. 516) party. This requirement was imposed to obviate any concern that a witness could be questioned or coached before beginning his or her direct examination, about matters raised by the defence materials which would be used during cross examination.72
The procedures at the ICC related to this issue are still in a state of development. In the Lubanga case the Trial Chamber order the defence to notify the prosecution three days in advance about the documents it was going to use during cross-examination.73 However it also directed that the defence was under no obligation to explain in advance the purpose underlying the anticipated use of a document during cross-examination.74
‘Putting the case’ to a witness
Rule 90(H)(ii) of the ICTY Rules and Rule 90(G)(ii) of the ICTR Rules require that a cross-examining party ‘put to a witness’ who is able to give evidence relevant to the case for the cross-examining party, the nature of its case that is in contradiction to the witness’ evidence during his or her testimony in chief.
The threshold for satisfying the requirement to ‘put’ one’s case to a witness is not high. The cross-examining party fulfils the requirement to put to the witness ‘the nature of its case’ by explaining the general substance of that portion of its case which conflicts with the evidence of the witness.75 The party need not explain every detail of the contradictory evidence it intends to adduce and it is allowed flexibility depending on the circumstances at trial.76 It also need not explain the source of the contradictory evidence.77
The central purpose of this rule is to promote the fairness of the proceedings by enabling the witness on the stand to appreciate the context of the cross-examining party’s questions, and have the opportunity to comment on the References(p. 517) contradictory version of the events in question.78 When properly followed the rule may also assist the trial chamber in judging the credibility of the contradictory evidence.
A similar rule has been employed at the ICC. The defence is required to put its case to a witness, when appropriate, so that the witness has the opportunity to respond to the defence allegation while the witness is still available in court to answer questions from both parties and from the bench.79
When a cross-examining party fails to satisfactorily put the nature of its case to a witness, it may run the risk of being precluded later on from adducing the contradictory evidence, if that evidence is not otherwise already before the trial chamber.80 Similarly, when a cross-examining party does put its case to a witness and relies on specific evidence (such as the statement of a particular witness it intends to call), that specific evidence must be presented at some later point.81
However, as the Popović Trial Chamber pointed out at the ICTY, the disclosure of the details of that evidence is a separate matter when the cross-examining party is the defence. There is no obligation under the rules to disclose the identity of a witness the defence intends to call until after the close of the prosecution’s case.82 This holding is in conformance with the requirement that the accused is presumed innocent and the prosecution bears the burden of proof at trial. Moreover, depending on the substance of the prosecution’s proof, the defence may decide at the close of the prosecution case, not to call the witness at all.
Use of prior statements to refresh recollection or for impeachment
Prior statements made by a testifying witness, whether those statements are in evidence or not, may be used to impeach a witness or to refresh a witness’ memory both during examination-in-chief and during cross-examination.83
Although there are limits, any number of items may be used as a means of refreshing a witness’ memory, be it a prior statement or some other form of documentary (p. 518) or other evidence.84 Portions of a written statement which have not been admitted in evidence, for example, may be used to refresh the memory of that witness during direct or cross-examination85 as can notebooks or diaries prepared by the witness that contain the memories of the witness.86 The trial chamber may consider, of course, the means used and the circumstances in which the witness’ memory was refreshed when assessing the reliability and credibility of the witness’ testimony or any claim by the witness that the process used did not serve to refresh his or her memory.87
In principle, however, a witness must testify to what he or she remembers and is not permitted to simply read from prior statements given before trial began. Thus a request by the examining party to show a witness his or her prior statement to refresh recollection during examination in court may be denied if the witness does not appear to lack memory and/or demonstrates the ability to recall and relate the evidence which is the subject of the testimony.88
When a witness is going to be confronted with all or portions of his or her earlier written statement in an effort to impeach the witness by pointing out contradictions between the witness’s prior statement and in-court testimony, the most important rule of practice is that the party confronting the witness should provide him or her with a copy of the prior written statement as a matter of courtesy.89 This can occur while the witness is present in court, on the witness stand. It is entirely permissible to ask that the witness be given what time is needed for the (p. 519) witness to review the prior statement and to proceed with questioning regarding its contents thereafter.
Use of statements of third parties to confront testifying witness
From time to time a cross-examining party may wish to confront a testifying witness with the testimony or statement of another witness in order to challenge the accuracy, reliability or credibility of the third party witness or the testifying witness. Although the rules can vary from case to case, the current general practice at the ad hoc tribunals is that the cross-examining party shall put to the testifying witness the evidence of the previous witness without identifying that previous witness.90 A party may ask a witness, during cross-examination, whether the witness agrees or disagrees with a statement made by a third party witness. However, a party may never ask a witness to comment on the credibility of other witnesses.91
When a testifying witness is confronted with the statement of a third party witness, the only evidence which will be given weight is the response of the witness currently being examined. The substance of the third party witness statement is not evidence and will be given no weight unless and until that third party witness is also called to testify at trial or his or her statement is otherwise admitted under other rules.92
Though this rule can also differ from case to case, a party will not in all cases be allowed to read verbatim quotes from the third party witness statement if that statement has not yet been admitted in evidence. The concern when statements are quoted verbatim during examination is that the process may create the misleading impression, for the witness who is testifying, that the quoted statement has already been deemed to be reliable.93
Once cross-examination is concluded, the party who presented the witness is usually permitted to question the witness again; a process called ‘rebuttal.’ After any rebuttal is concluded, the opposing party may also re-examine the witness in what is referred to as ‘rejoinder.’ The rules governing rebuttal and rejoinder examinations are the same as those governing direct and cross-examination. A party conducting a re-direct examination of its own witness is constrained not to ask leading questions. The re-direct examination must be limited to matters raised during cross-examination and may not be used to introduce new topics or matters overlooked during the initial direct examination. Re-direct examination is meant to be a process whereby a party calling a witness may seek to explain or clarify any points that arose in cross-examination and appear to be unfavorable to that party’s case.94 Needless to say, if a witness is not cross-examined, there can be no re-direct examination.
Likewise, rejoinder examination, after a re-direct, is limited to new matters raised in the re-direct and also may not be used to introduce, for the first time, subjects or issues overlooked during the course of the original cross-examination.
Additionally, when questions are put to a witness by the trial chamber during or after cross-examination or re-examination has been completed, if those questions raise entirely new matters, the opponent is entitled to further examine the witness on such new matters.95
None of these rules are absolute. As mentioned earlier the rules governing the order of examination of witnesses at the ICC appear to be potentially more flexible than those at the ad hoc tribunals. Additionally, a trial chamber always has the discretion, upon a proper showing of good cause, to allow a party to re-open its case to introduce a new topic if it is in the interests of justice to allow it and if there is no finding that such a process will cause prejudice to the opposing party. In general, however, that showing must be strong before any variance from the proper order of examination will be allowed, particularly when the request to re-open involves venturing into entirely new areas never before raised by the party seeking to re-open its case.
The same rules apply in cases involving more than one accused. After the presentation of testimony from a witness presented by the prosecution, each accused will have the opportunity to cross-examine that witness. Usually the order in which that examination is conducted will follow the sequence in which the accused are named in the Indictment, but it does not have to follow that order. The accused are, in most cases, free to determine which accused will examine the witness first and, depending on the circumstances in any individual trial, it is often the case that only some of the accused need to or wish to examine the witness at all.
In cases in which an affirmative defence is put forward by one or more of the accused in a multi-accused case, one common practice is for the accused who is calling the witness to conduct direct-examination of that witness, which is then followed by cross-examination of the witness by the other accused. The prosecutor is the last party to cross-examine the witness. The accused who called the witness is then free to conduct a re-direct examination if necessary.96
This procedure can raise the issue, depending on the individual circumstances in a case, of whether it is an infringement upon the right of an accused, who did not call the particular witness in question, to be precluded from further cross-examination of that witness (as opposed to only rebuttal examination) when the prosecutor’s cross-examination raises issues of substantive importance to that accused.
the determination of whether to allow cross-examination of a witness by a Defence team [after the completion of the Prosecution cross-examination] will continue to require a case-by-case analysis and will depend on the actual subject matter of the Prosecution’s cross-examination of each witness at issue.97
This same general procedure has been utilized at the ICTY. There, too, the jurisprudence provides that after a witness called by one accused has been cross-examined by the co-accused and the prosecution, permission for any of the co-accused to conduct further cross-examination will be granted on a case by case basis and ‘under exceptional circumstances,’ with the leave of the trial chamber.98
(p. 522) The overriding principle at stake is, of course, the rights of the accused, regardless of the content of procedural rules imposed, to the efficient presentation of evidence at trial, to be afforded the right to confront the witnesses presented against him or her at trial, to meet the prosecution evidence, and to present a defence.
During the early years of the ICTY and for many years thereafter, the ICTY Rules specifically expressed a preference for viva voce testimony at trial.99 The ICTR Rules still express a preference for viva voce testimony.100 Both tribunals nonetheless allow for the admission of written witness statements or prior testimony as part of a party’s case-in-chief, in lieu of or in conjunction with the presentation of viva voce testimony at trial.101
Rule 92ter at the ICTY,102 and ICTR Rule 92bis(E) which is somewhat similar,103 allow for the introduction of written witness statements in lieu of direct examination, in whole or part, when the witness will also appear in court and be available for cross-examination by the opposing party or questioning by the trial chamber.
The idea underlying the enactment of the ICTY’s Rule 92ter was that the written statement and/or prior testimony could be admitted in lieu of oral testimony on direct examination, thereby resulting in substantial savings of in-court time normally expended eliciting the direct examination.104 When this procedure is References(p. 523) invoked the witness takes the solemn declaration promising to tell the truth. The witness is then presented with his or her prior written statement or prior testimony and asked to attest to the truth of its contents. This ‘92ter statement’ becomes, in effect, the direct examination of that witness, though additional questions may be asked by the party presenting the witness. Cross-examination is then conducted according to the usual rules.
The Rome Statute of the ICC reflects a specific preference for viva voce testimony. It provides that the ‘testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in Article 68 or in the Rules of Procedure and Evidence …’ (emphasis added)105
The Rome Statute and the ICC Rules permit, however, under specified circumstances, the presentation of testimony by means of video or audio technology;106 an exception to the rule that witnesses shall testify ‘in person.’107 Testimony presented by means of video or audio technology, however, must still occur under circumstances which ‘permit(s) the witness to be examined by the Prosecutor, the Defence, and by the Chamber itself, at the time that the witness so testifies’ (emphasis added).108
The ICC Rules also permit, in select instances, the use of the prior written testimony or statements of a witness.109
The admission of written witness statements in lieu of viva voce testimony on direct examination is yet another reflection of the ongoing adoption in the international courts of procedural practices more familiar to civil law jurisdictions.110 The common law, adversarial system allows for the admission of written ‘testimony’ only in exceptional instances and requires strict adherence to proof References(p. 524) of specified foundational matters before such statements will be considered as evidence.111
An important difference between procedures utilized in traditional civil law jurisdictions and the pre-trial investigation which results in the production of written statements in the international courts, is that in the international courts pre-trial investigation is party driven. There is no provision for the participation of a neutral, investigating magistrate during the pre-trial investigation who, unlike the parties, is bound to seek out exculpatory as well as inculpatory evidence with equal determination.112
The cross-examiners role remains the same however; to confront and challenge the evidence when necessary so as to assist the trial chamber in its evaluation of its reliability and credibility.
The general rules applicable to the presentation of testimony during international criminal trials can also vary depending on the status of a particular witness. Some examples of this are given below. Practitioners should remember, however, that the trial chamber is always vested with the discretion to control the manner in which a particular witness is examined, depending on the particular circumstances which relate to that witness.
Under all existing international instruments which address the subject, no accused can be compelled to testify against himself or herself at trial.113 The accused always has the right, of course, to testify on his or her own behalf if he or she chooses. If the accused does choose to testify as part of the defence case he or she, like any other witness, must make a solemn declaration promising to tell References(p. 525) the truth and will be subject to cross-examination by the prosecution and/or any co-accused. Testimony from an accused will usually be afforded greater weight if it occurs early on in the defence case.
In the Limaj et al case at the ICTY, for example, one of the three accused, Mr Limaj, testified at trial and did so as the first witness for the defence, before any other defence witnesses had been heard. The Trial Chamber pointed out in its Judgment that the fact Mr Limaj testified ‘before any other Defence witnesses were called […] counts in his favor in the assessment of credibility.’114
In civil law jurisdictions the accused does not have the right to present his or her own sworn testimony at trial. The underlying reason is that a dossier containing the results of the pre-trial investigation is made available to the trial court in civil jurisdictions. That dossier is ‘the case’ with no distinction existing, as is true in common law jurisdictions, between prosecution evidence and defence evidence. An accused may not be allowed to take an oath and offer testimony at trial, though the accused may be allowed to make an unsworn statement.115
Rule 84bis at the ICTY, similar to the civil law tradition, provides a procedure whereby an accused may make an unsworn statement at trial, which will not be cross-examined.116 An accused’s statement given in accordance with Rule 84bis can be given after the opening statements of the parties at the beginning of trial or, if the defence elects to defer its opening statement,117after the opening statement by the prosecution. There is no absolute right to make such a statement, however. The rule provides such a statement can be made if the accused wishes to do so and if ‘the Trial Chamber so decides.’ The rule also makes clear that such a statement will be made ‘under the control of the Trial Chamber.’118 An accused who improperly uses his or her opportunity to present an unsworn statement will be cut off if the statement strays beyond matters relevant to the issues at trial or other matters related to the accused.
Article 67 of the Rome Statute, which delineates the rights of the accused in trial before the ICC, allows for a similar procedure. It provides that an accused may ‘make an unsworn oral or written statement in his or her defence’119 and adds the References(p. 526) caveat, in keeping with the presumption of innocence, that the accused also has the right ‘not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.’120
The STL procedure, though it essentially follows the civil law tradition regarding statements from the accused, represents an interesting amalgamation of civil and common law on this issue. Rule 144(A) provides that an accused ‘may make statements to the Trial Chamber at any stage of the proceedings, provided such statements are relevant to the case at issue.’ This rule comports with most civil law courts in which the accused is allowed to make a statement, including simple observations on the proceedings, at any point during trial. The STL judges are free to question the accused, on their own accord or upon request from one of the parties, at any stage of the trial proceedings, however the accused is not required to answer such questions; a practice also familiar in civil law jurisdictions. At the STL, however, unlike most civil law jurisdictions, the accused must be advised of his right to remain silent before such questioning occurs and the rules specifically provide that no adverse inference may be drawn from the exercise of this right.121
An accused at the STL cannot be compelled to make a solemn declaration before making a statement or answering a question, but unlike the civil law system, he or she may do so if he or she chooses. As in common law jurisdictions, an accused at the STL may also appear as a witness in his or her own defence.122
A trial chamber is free to grant an unsworn statement given by an accused whatever weight it chooses.123 Depending on the circumstances, such a statement may not be afforded very much weight precisely because it is an unsworn statement and the accused will not be examined about its contents.124
In sum, in this area of the law the international courts have adopted a significant aspect of civil law procedure. Indeed, in common law jurisdictions there is no provision for the taking of unsworn statements from an accused at trial nor can an accused make comments during the course of trial, except through his or her counsel. An accused always has the right to testify as part of the defence case in common law courts, but only under oath and only when subject to cross-examination.
Proceedings at the ad hoc tribunals have frequently involved testimony from individuals who were or are themselves suspected of having committed war crimes or References(p. 527) crimes against humanity, or whose testimony may serve to incriminate them in violations of international law or the law of a domestic jurisdiction. On occasion such witnesses may be testifying pursuant to a plea bargain or other arrangement made with the prosecution, whereby they have agreed to testify against the accused in exchange for a promise from the prosecution not to prosecute them or, in the case of plea bargains, to advocate for a reduced sentence.
It also occurs that witnesses who are testifying without the benefit of this type of protection may be called upon to answer questions which could serve to be personally incriminating to the witness. Whereas an accused has the right not to be compelled to testify against him or herself or to confess guilt, the same right does not attach to a witness who has voluntarily agreed to appear at trial or who has been subpoenaed to testify at trial.
The ICTY and ICTR Rules provide that a witness ‘may object’ to making any statement which might tend to incriminate the witness,125 or ‘refuse to make’ any statement which might tend to incriminate the witness.126 When this occurs, under the rules of both tribunals, the trial chamber may nonetheless ‘compel the witness to answer the question.’ Testimony which is compelled in this fashion ‘shall not’ be used as evidence in a subsequent prosecution against the witness for any offence other than false testimony or perjury.127
The practical manner in which this kind of situation can unfold during trial proceedings is not as simple as these rules suggest. Though the rules make it clear that a witness who is compelled to testify to self-incriminating evidence during a tribunal proceeding may not subsequently be prosecuted at the tribunal, nothing in the rules specifically precludes prosecution under domestic law or in domestic war crimes courts.
Although no rule of procedure or evidence at the ad hoc tribunals specifically requires it, sound ethical practice would appear to dictate that when it becomes apparent that a witness is going to incriminate him or herself the trial chamber should advise the witness of the potential of a later prosecution based on his or her testimony and, in appropriate cases, provide an attorney to represent the witness and advise him or her on the potential ramifications of the anticipated testimony. A witness, fearing that his or her answers may result in exposure to criminal prosecution, who refuses on that basis to answer questions, may be held in contempt of the tribunal;128 additional cause for such a witness to be provided with the advice of independent counsel before embarking that course.129
References(p. 528) The rules regarding witnesses whose testimony may tend to be self-incriminating are different at the ICC and appear to be more comprehensive. There, when a witness is notified under ICC, Rule 190 that his or her presence as a witness is requested, the witness is also notified of the provisions related to self-incrimination.130 If a witness has not been so notified before his or her appearance in court, the trial chamber is required to do so before the witness’ testimony begins.131
At the ICC a witness may object to making any statement that might tend to incriminate him or her.132 If the witness in question has been given assurance, prior to his or her testimony, that he or she will not be prosecuted, then the witness may be required to answer incriminating questions regardless of his or her objection to it.133 In the case of other witnesses, the trial chamber may require the witness to answer the self-incriminating questions only after assuring the witness that the evidence provided in response to the questions will be kept confidential, never disclosed to the public or any state, and will never be used either directly or indirectly against the witness in any prosecution at the ICC.134
Before giving these assurances, however, the trial chamber is required to seek the views of the prosecutor regarding whether the assurance should be given to the particular witness.135 In determining whether to give such assurance, the trial chamber must consider the importance of the anticipated evidence from the witness, whether the witness will be providing unique evidence, the nature of the possible self-incrimination if that is known, and the sufficiency of the protections for the witness in the particular circumstances.136
References(p. 529) Under the relevant ICC Rules, if the trial chamber determines that it would not be appropriate to provide an assurance to a witness concerned with self-incrimination, it ‘shall not require the witness to answer the question.’137 In addition, the ICC Rules specifically provide that a witness appearing at the ICC who is the spouse, child or parent of an accused ‘shall not be required by a Chamber to make any statement that might tend to incriminate the accused person.’138
Expert witnesses are distinguished from witnesses of fact and are subject to different rules regarding the manner in which they can be questioned at trial. The testimony of a witness of fact is generally limited to matters about which the witness has personal knowledge,139 although this does not exclude the admission of hearsay evidence or certain opinions and conclusions when the opinions or conclusions are based on the witness’ personal knowledge or experience.140
An expert, on the other hand, is a person who, by virtue of specialized knowledge, training or skill, can assist the trial chamber to understand or determine an issue in dispute.141 Experts are free to give their opinions and conclusions; indeed, that is the primary purpose of their testimony. They are also free to testify to hearsay matters upon which they relied in forming their opinions or conclusions including—unlike lay witnesses—statements, written reports, articles published in their field of expertise and other materials, so long as such materials are relevant to and form part of the basis for the expert opinion which will ultimately be offered.
The qualifications and expertise of a witness proposed as an expert witness can be determined by reference to the witness’ curriculum vitae, including any scholarly articles or other publications authored by the witness. The witness’ former and present positions in his or her claimed area of expertise, as well as his or her professional experience, are also of critical importance in assessing whether the witness qualifies as an expert.142
References(p. 530) A party offering an individual as an expert witness must first, unless the witness’ expertise has not been challenged by the opposing party, examine the witness to establish these foundational matters before the party can proceed to examine the witness regarding his or her expert opinions or conclusions. If the qualifications of a proposed expert witness are contested by the opposing party, a ruling from the trial chamber will be necessary. The trial chamber is also free, as in the case of all witnesses, to question the witness itself regarding these foundational matters.
Various procedures have been put in place at both the ICTY and the ICTR to resolve challenges to expert witness testimony, when possible, prior to the onset of trial. Rule 94bis at the ICTY provides that the full statement and/or report of any expert witness to be called by a party shall be disclosed within the time limit prescribed by the trial chamber or by the pre-trial judge.143 Rule 94bis at the ICTR sets forth a potentially more restrictive or potentially more lenient regimen for the disclosure of expert reports and/or statements to the opposing party. It provides that notwithstanding other rules regulating disclosure, the full statement of any expert witness called by a party shall be disclosed to the opposing party ‘as early as possible’ and shall be filed with the trial chamber not less than 21 days prior to the date on which the expert is expected to testify.144
Within 30 days of disclosure of an expert statement or report or such other time prescribed by the trial chamber or pre-trial judge (at the ICTY)145 and within 14 days ‘of the filing of the statement of the expert witness’ (at the ICTR), the opposing party shall file a notice to the trial chamber indicating whether: (i) it accepts the expert witness statement and/or report; or (ii) it wishes to cross-examine the expert witness; and (iii) if it challenges the qualifications of the witness as an expert or the relevance of all or parts of the statement and/or report and, if so, which parts.146
If the opposing party accepts the statement and/or report of the expert witness, the statement and/or report may be admitted into evidence by the trial chamber without calling the witness to testify in person.147 The substance of the expert opinion, in such cases, will be assessed by the trial chamber without benefit of any cross-examination or other testing of the merits of that opinion.148 If, on the other hand, the opposing party does challenge all or part of the expert’s report or statements or challenges the qualifications of the expert, then the proposed expert References(p. 531) must appear for viva voce testimony so that he or she can be cross-examined by the opposing party.
A report submitted by an expert, as well as the expert’s testimony itself, must meet minimum standards of reliability just like all other evidence. That is, there must be sufficient information as to the sources used in support of the statements and/or conclusions contained in the report; a common area of exploration on cross-examination. The sources must be clearly indicated and accessible in order to allow the opposing party or the trial chamber to have a basis upon which to test or assess the matters upon which the expert witness relied when formulating and reaching his or her expert conclusions.149 In the absence of clear references or accessible sources, the trial chamber has the discretion to treat such a statement or report, not as expert opinion at all, but as he personal opinion of the witness and to weigh the evidence accordingly.150
When a report is submitted as part of an expert’s testimony, the report is subject to the requirements that it is relevant and of probative value, just as all evidence must be. In some chambers, only those parts of the report or any further material which is actually put to the witness during his or her testimony will be admitted into evidence. The sources relied upon by the expert—such as hearsay reports of others, results of scientific tests and the like—will not necessarily be admitted wholesale.151
Counsel presented with an expert report or statement, which is of importance regarding disputed issues in a case, and which does not appear to meet the applicable standards, is well advised to consider challenging that report prior to trial so that the expert will be made available for cross-examination at trial regarding any and all underlying weaknesses related to that expert’s ultimate opinions.
An expert is expected to make statements and draw conclusions independently and impartially. This is also an area which opposing counsel may wish to explore on cross-examination, and it is a proper one, as it is not always the case that witnesses offered as experts are, in fact, providing an independent, impartial opinion, untainted by the position being put forward by a party to the trial.152 Concerns raised, either pre-trial or during the examination of an expert, regarding an (p. 532) expert’s impartiality do not necessarily affect the admissibility of the expert’s statement or report, but, as with a poorly sourced report, may well affect the weight given to the expert’s evidence and/or conclusions by the trial chamber.153
An expert’s testimony or report must also be relevant and probative to the issues in dispute at trial. Admission of expert testimony and/or an expert report is subject to the same rules governing the relevancy of evidence as any other kind of testimonial evidence offered at trial.154 A different or higher standard does not apply to experts.155
The content of an expert’s testimony or report must fall within the particular area of expertise for that expert witness before it can be admitted in evidence.156 This is a frequent item of contention when expert witnesses are called to testify at trial. The legal requirement is that the statements or reports of an expert witness will only be treated as expert evidence insofar as they are based on the expert’s particular knowledge, skills or training. Statements that fall outside a witness’ area of expertise should be treated as the personal opinions of the witness and receive weight, if any, in accordance with that status. A pathologist, for example, called to testify about the cause of death for a particular individual, has no expert basis for testifying to his or her view that the same individual was killed during a particular battle waged near the area where the body was found. That opinion is well outside the pathologist’s area of expertise and is excludable for that reason alone, though, depending on the personal knowledge of the expert, it may be admissible as lay opinion.
Where a party chooses to call a highly qualified or skilled individual as a factual, rather than an expert witness, it implicitly makes a choice to limit the witness’s testimony to matters which he personally saw, heard, or experienced157 (emphasis added).
References(p. 533) Expert witnesses also may not offer expert opinions on ultimate issues of fact or law or opinion on the criminal liability of the accused and examinations of experts must be limited accordingly. Ultimate issues of fact or law are matters which fall solely within the competence of the trial chamber which is charged with the obligation to weigh all the evidence presented at trial in the process of reaching its ultimate findings of fact.158
The general rule at the ad hoc tribunals as well as the ICC prefers that witnesses testify in person. The ad hoc tribunals and the ICC159 provide, however, that the testimony of a witness may take place by video-link when good cause is shown as to why the witness cannot or should not be required to appear in person.
Certain criteria, designed to protect and promote the interests of justice, must be met before testimony by video-link will be allowed. They include: (a) the witness must be unable, or have good reasons to be unwilling, to come to the seat of the tribunal; (b) the testimony of the witness must be sufficiently important to make it unfair to the requesting party to proceed without it; and (c) the accused must not be prejudiced in the exercise of his or her right to confront the witness.160
The kinds of situations found sufficient to warrant the arrangement of video-link testimony are varied, of course, but include medical conditions precluding travel,161old age and/or poor health caused by old age162 and the safety of the witness. They may also include witnesses who will suffer economic or other hardships if brought to the seat of the Tribunal to testify.163 Video-link testimony is References(p. 534) also unlikely to be granted unless there is a showing that the witness in question is of significant importance to the case.164
Video-link conferences can be set up in any number of ways. Usually efforts are made to have the video-link testimony occur in a setting, which is conducive to the gravity of the trial proceedings, such as a courthouse or tribunal related office. A member of the registry will be physically present at that venue and sit with the witness during his or her testimony. Documents or other evidentiary matters which are to be put to the witness during his or her testimony are, when possible, provided to the representative of the registry ahead of time so that they will be physically available in the room with the witness at the time the video-link testimony occurs.
This latter provision raises an issue which can directly affect resolution of the final criteria for the granting or denying of a video-link request; whether allowing testimony via video-link will result in prejudice to the accused’s right to confront the witnesses against him or her at trial. Although the mere fact that a witness will be heard by video-link is not cause to find the accused’s right to confrontation has been detrimentally curtailed, that right can arguably be prejudiced when the accused has a significant number of documents to show the witness during his or her testimony. It may also be curtailed in those instances in which the defence cannot effectively present documentary or other evidence to the witness because, for example, the witness is removed from the seat of the tribunal and then during the video-link proceeding gives entirely unanticipated testimony.
In all other respects, video-link testimony proceeds in precisely the same way as testimony presented in court. The one exception is that an individual testifying by video-link can only see the face of the individual who is actually questioning him or her. They do not have a full view of the courtroom; a factor worth keeping in mind as it may or may not affect the quality of the testimony.
If the Prosecutor is in possession of information which has been provided to him on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.165
References(p. 535) These rules were drafted to incorporate safeguards for the protection of certain state interests as one means to encourage states to fulfill their cooperation obligations under the Tribunal’s Statute and Rules.166 Rule 70 allows for a person or an entity, such as a state, to provide information to either the prosecution or the defence on a confidential basis.167 In providing such information a person or state is not required to justify the reasons for the need for confidentiality on national security grounds or otherwise.168
A party may, after receiving information covered by Rule 70, decide that it wishes to present that information at trial. Before it can do so it must obtain the consent of the individual or entity which provided the confidential information. If that consent is obtained, then significant restrictions on the presentation and examination of that information at trial can and do take place, regardless of all the other rules regarding the conduct of trial and the examination of witnesses.
Rule 70(C), for example, provides that when Rule 70 information is presented at trial, and notwithstanding Rule 98, the trial chamber may not order the production of additional or related evidence from the person or entity which provided the initial Rule 70 information. The trial chamber also may not itself summon that person or a representative of that entity as a witness or order their attendance at trial. The trial chamber may not use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence. All these provisions constitute significant restrictions on the examination of viva voce ‘Rule 70 witnesses’ at trial, not to mention on the power of the trial chamber. The restrictions preclude, in essence, any independent exploration of the information or testimony given under Rule 70 no matter what the nature of that information may be.
Similarly, if the prosecutor calls a witness to testify to information originally provided to the prosecutor under Rule 70 (which will occur only with that witness’s consent), the trial chamber may not compel that witness, unlike other witnesses, to answer questions relating to the information or its origin, if the witness declines to answer on grounds of confidentiality.169
An accused still retains the right, under Rule 70(E), to challenge evidence presented by the prosecution under Rule 70(B), but any such challenges are subject to the same limitations imposed on the trial chamber, as contained in Rule 70(C) and (D). Thus, for example, as has occurred in a number of cases at the References(p. 536) ad hoc tribunals, and contrary to the otherwise applicable provisions of Rule 90(H), a ‘Rule 70 witness’ generally may not be cross-examined on any subject not specifically contained in the subject-matter covered during his or her direct examination.
Any number of other restrictions might apply when a Rule 70 witness is called to testify. It is not uncommon, for example, for such testimony to be given only in private session so that it is not made available to the public, for government representatives from the witness’ country of origin to insist they be present when the witness testifies and have the ability to interpose objections, or for attempts to be made to limit the scope of cross-examination as a condition for the witness appearing at trial.170 Moreover, there appears to be no consistent resolution as to when the imposition of these or similar restrictions serves to essentially deny the accused his right to confront and cross-examine the witnesses against him at trial.171
The only overriding rule that can be drawn from the existing jurisprudence is that there is nothing in Rule 70 which affects a trial chamber’s power to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial; a factor of considerable importance when significant restrictions are placed on an accused’s ability to challenge evidence presented by the opposing party because the accused is foreclosed from effectively cross-examining that evidence.172
The rules at the ad hoc tribunals173 as well as Article 68 of the Rome Statute of the ICC make various provisions for the imposition of measures to safeguard and protect the privacy and security of victims and witnesses, provided that the measures taken are consistent with the rights of the accused.
Motions seeking the protection of witnesses (including victims) at the ad hoc tribunals are common and, given the nature of their contents, are invariably filed confidentially. The rules outline the various procedures which can and are taken to protect witnesses who believe their own safety or the safety of others close References(p. 537) to them may be jeopardized if their participation in trial proceedings becomes known to the public.174
Trial chambers have the discretion to expunge the name and any identifying information of a protected witness from the public record of a trial, to order that all records identifying a protected witness remain confidential, to provide that face or voice altering devices be used when a protected witness testifies or to order the use of only closed circuit television for such testimony, to assign a pseudonym for the protected witness, or to impose any one or all of these measures.175 Trial counsel are duty bound to honor any and all protective measures which are imposed and risk being held in contempt of the tribunal and/or losing their rights of audience before the tribunal for the knowing violation of this duty.176
On the other hand, trial counsel who believe requested protective measures are unwarranted are free to contest them and seek a ruling from the trial chambers as to whether the measures should be allowed or not. Practitioners should be forewarned, however, that once protective measures have been ordered for a particular individual in any proceeding before the tribunal—whether the individual is a victim or any other kind of witness177—those protective measures will remain in place for any subsequent trials at the tribunal or for any other jurisdiction in which the same individual is called to testify, unless the protective measures are rescinded, varied or augmented under the rules.178 Counsel who is questioning an individual in one trial about matters relating to a protected witness from another trial, must, therefore, continue to abide by whatever protections were granted to that witness, including the use of pseudonyms or any other relevant protective measures.
If a party seeks to have the protective measures rescinded, varied or augmented, it must apply for that relief to the chamber which ordered the original protective measures or, if that chamber no longer remains, to the chamber or jurisdiction presiding over any subsequent proceedings.179
References(p. 538) Direct or cross-examination of a protected witness must, therefore, never contain reference to a protected witness’ actual name, when a pseudonym has been ordered. When this occurs inadvertently, as it occasionally does, the tape of the trial proceedings can be redacted to exclude that mistake. Any counsel who repeatedly makes this error, however, is likely to suffer sanctions. In addition, it sometimes occurs that references made to a protected witness’ occupation, place of residence, military rank, political office or other matters could serve to essentially identify that witness, despite the use of a pseudonym. When that is the case, counsel can and should request that the trial proceedings move into private or closed session so that the examination at hand can proceed without violating whatever protective measures were imposed.180
ICTY, Rule 90(A), ICTR, Rule 90(B), and ICC, Rule 66(1) all provide that every witness shall, before giving evidence, make the following solemn declaration: ‘I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.’ This requirement is fundamental to the integrity of the trial proceedings since testimony given under oath, and therefore on pain of perjury, is a basic means for attempting to insure that testimony given at trial is truthful, accurate, and reliable.
A child who, in the opinion of the Chamber, does not understand the nature of a solemn declaration, may be permitted to testify without that formality, if the Chamber is of the opinion that the child is sufficiently mature to be able to report the facts of which the child had knowledge and understands the duty to tell the truth.181
Both tribunals require, however, that ‘a judgment … cannot be based on such testimony alone.’182
This rule was been applied to an adult witness at the ICTY, at least in one instance. In Haradinaj et al, an elderly and infirm witness testified as part of the References(p. 539) prosecution case by means of a video-link connection. The witness did not take the solemn declaration required under Rule 90(A), even though it was read to him and explained several times.183 He was nonetheless allowed to go forward with his testimony. The defence subsequently argued his testimony could not remain in evidence as the witness ‘was demonstrably confused about the nature of the proceedings and his role therein,’ and the witness never did take, or apparently understand, the solemn declaration.184
The Trial Chamber agreed that the witness ‘seemed confused by the oath-taking procedure,’185 but noted that when he was asked during his testimony if he would promise to tell the truth, he replied: ‘[t]hat’s what I’m telling you, the truth, what happened to me … Everything that happened to me, I told you the truth.’186 The witness also appeared to understand factual questions put to him; a circumstance cited by the Trial Chamber as cause to find that he was not confused about his role to be a witness in a trial proceeding. Based on this, the Chamber concluded the witness understood he was under an obligation to tell the truth and allowed his evidence to stand, even though the witness never took the solemn declaration required under the rules.187
A person under the age of 18 or a person whose judgement has been impaired and who, in the opinion of the Chamber, does not understand the nature of a solemn undertaking may be allowed to testify without this solemn undertaking if the Chamber considers that the person is able to describe matters of which he or she has knowledge and that the person understands the meaning of the duty to tell speak the truth.188
Thus, witnesses who are children and do not understand the oath or witnesses who suffer from a disability which impairs their understanding of the need to take the solemn declaration may still be permitted to testify if the pre-requisite conditions allowing for such testimony are met. The ICC Rules do not appear to provide, as do the rules at the ICTY and ICTR, that a conviction cannot stand on such testimony alone; an important omission since, by definition, a witness excused from taking the oath is an individual whose ‘judgement is impaired.’ If such unsworn testimony is allowed, principles of fairness to all the parties as well References(p. 540) as the chamber’s duty to ensure a fair trial would appear, at minimum, to require that such testimony be given less weight than testimony provided by witnesses who understand the oath and the need to take it, including the potential consequences if they provide anything other than truthful testimony once the solemn declaration has been made.
Trials before the international courts, as with all courts, may sometimes require testimony from individuals who are suffering from mental or emotional disabilities at the time of their testimony. Questions can arise as to how to examine such an individual, how to enforce the rights of the parties if the witness has significant difficulty in testifying, and what weight can properly be assigned to the witness’ testimony.
When this occurs, the trial chamber is faced with a difficult balancing test between: (1) the right of the party who is calling the witness to elicit the witness’s testimony; (2) the right of the party faced with cross-examination of such a witness to have an adequate opportunity to test that witness’s ability to reliably recall and relate the facts at issue; and, (3) the protection of the witness who is in a fragile emotional or mental state at the time the witness comes to court.
Needless to say, each case depends on its particular facts however a trial chamber will undoubtedly give considerable weight to the third of these factors in its attempt to resolve the conflicting, and equally important, interests which are at stake in such situations. In all cases, the trial chamber, in balancing these factors, must do so according to what it perceives to be the interests of justice.
Issues involving subjects as sensitive as a witness’ mental or emotional competency will, with rare exception, be heard and resolved in closed or private session. If counsel believes that such an issue is potentially at hand with a scheduled witness, counsel should raise it with the trial chamber and, if appropriate, request a private session hearing in which to resolve it. If the disability of the witness only becomes apparent after the witness’ testimony has begun, then counsel should intervene at that point so that the issue can be resolved while the witness is still available and before the testimony has concluded.
When confronted with a witness claiming to have or appearing to have some form of mental or physical disability, the trial chamber is required, as a first step, to assess whether or not the disability is real. In the Rwamakuba case at the ICTR, for example, a witness testifying viva voce blamed the numerous discrepancies in her prior written statements on lapses of memory caused by ‘amnesia.’189 The Trial Chamber found that the witness’s viva voce testimony, which was comprised (p. 541) of a number of internally inconsistent versions of the same series of events, was entirely lacking in credibility. Equally lacking in credibility, however, was the amnesia claim which, as the Trial Chamber pointed out, was not supported by any independent proof and, in any event, even if true, would simply provide another basis upon which to reject the reliability of the witness’ testimony.190
A different result occurred in the Haradinaj et al case at the ICTY. There it became apparent, during the early portion of the testimony of a prosecution witness, that the witness was suffering signs of ‘distress,’ which resulted in the Trial Chamber adjourning the examination so that the witness’ mental and emotional state could be evaluated. The witness ultimately returned to court but as his testimony continued, defence counsel asked to intervene to conduct a short voir dire of the witness regarding his current mental state. During that examination the witness revealed his existing mental health issues,191 including that he sometimes experienced auditory and visual hallucinations.192 In light of that information, the Trial Chamber referred the witness for a medical evaluation and ultimately excused him from further testimony.
A dispute arose thereafter as to whether that evidence the witness was able to provide could remain in the record, since the witness did not complete his direct examination and was never cross-examined.193
The Trial Chamber excluded the testimony. In doing so, it noted that the accused’s right to cross-examine the witness was not absolute and that not all restrictions on cross-examination necessarily entail a violation of that right or a violation of the right to a fair trial.194 It agreed that testimony which has never been tested by cross-examination is not, on its own, sufficient for a conviction, and requires corroboration,195 and acknowledged that aspects of the witness’ testimony which went directly to the acts and conduct of one of the accused were entirely uncorroborated.196 There were also inconsistencies between the witness’ in-court testimony and his prior statements.197 These circumstances taken as a whole, caused the Chamber to exclude the witness’ partial testimony, not just because it had (p. 542) never been cross-examined but because there were reasons to find the testimony was unreliable.
Testimony offered by witnesses who are suffering from present emotional or psychological distress is not uncommon in the international courts given the nature and subject-matter of the cases tried before such courts. A trial chamber has the power and duty to control the mode of questioning of such witnesses and to be cognizant of the vulnerabilities of the witnesses who appear before it. As illustrated in Haradinaj, however, those duties also include the concurrent obligation to protect the accused’s right to a fair trial.
Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the rules of Procedure and Evidence.199
b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art References(p. 543) or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.
The precise role that victims can or should play in criminal proceedings brought against individual accused at the ICC has been a controversial topic and will undoubtedly remain the subject of litigation there well into the future. At present, based on what interpretation of the existing rules has taken place thus far, there is a trend to expand the role of victims in criminal trials, arguably well beyond that anticipated for them when the Rome Statute first came into force.
The Appeals Chamber at the ICC has had occasion, in the Lubanga case, to both define who qualifies as a victim for purposes of intervention in criminal proceedings at the ICC and to describe the nature and extent of victims’ potential participation in pre-trial and trial proceedings.
In relation to the object and purpose of rule 85, the Appeals Chambers considers that the rule does not have the effect of mandating participation of victims instead the object and purpose of rule 85 is to define who are victims. Thus, whilst the ordinary meaning of rule 85 does not per se, limit the notion of victims to victims of the crimes charged, the effect of article 68(3) of the Statute is that the participation of victims in the trial proceedings … is limited to those victims who are linked to the charges.202
In a split vote, the majority of the Appeals Chamber in Lubanga found that nothing in the existing statutory scheme for the ICC precluded qualified victims from leading evidence pertaining to the guilt or innocence of the accused, questioning witnesses and/or challenging the admissibility or relevance of evidence during trial proceedings.203
In reaching this conclusion the Lubanga majority underscored that the right to lead evidence pertaining to the guilt or innocence of the accused and the right to challenge the admissibility or relevance of evidence in trial proceedings belonged References(p. 544) ‘primarily with the parties, namely the Prosecutor and the Defence.’204 However, the majority was of the view that ‘to give effect to the spirit and intention of article 68(3) of the Statute in the context of trial proceedings it must be interpreted so as to make participation by victims meaningful.’ The majority concluded that if victims were not permitted to lead evidence, question witnesses and/or challenge evidence ‘their right to participate in the trial would potentially become ineffectual.’205
Two strong dissenting opinions were filed in the Lubanga Appeal Judgment both emphasizing that permitting such an expanded form of victim participation during trial improperly usurped the prosecutor’s function as the only authority permitted under the governing statutes to ‘prove the guilt of the accused.’206 Both argued that the relevant ICC Statutes clearly permitted only the parties to lead evidence, question witnesses and challenge the admissibility of evidence.207 Both also submitted that under the existing statutory scheme the participation of victims in the proceedings is confined to the ‘expression of their views and concerns.’208 As noted by Judge Kirsch: ‘[t]here is a sizeable difference between presenting views and concerns in relation to issues that arise at the trial that affect the personal interests of victims and presenting a prosecution case by leading additional evidence—independent of that led by the Prosecution—on guilt.’209
Subsequently, the Lubanga Trial Chamber has permitted legal representatives of victims to participate in the presentation and elicitation of evidence in the Lubanga trial. The Chamber has ruled that the legal representatives may ask supplementary questions, regardless of whether or not the questions reflect the views of the victims, when the questions are relevant and may assist the Chamber in determining the truth.210 They may also examine expert witnesses in relation to issues in which the victims have a personal interest, regarding the context and history relevant to charges brought against the accused, and regarding matters within the expertise of the individual expert witness.211 The legal representatives are constrained to conduct their examinations in a neutral, non-leading manner unless there is a contrary indication from the trial chamber.212 When the legal References(p. 545) representatives do conduct examination of prosecution witnesses, it takes place right after the prosecution’s direct examination and is followed by the defence examination.213
In sum it appears, at least at the present time, that counsel practicing at the ICC can expect to encounter active participation by victim representatives in the daily conduct of pre-trial and trial proceedings including the presentation of viva voce testimony. Indeed, as pointed out by the dissenters in Lubanga, once one accepts the principle that victims can lead evidence at trial, applications by victims to take such a role may ‘understandably, be frequent and numerous.’214 Although in the essentially party-driven, adversarial trial process put in place by the Rome Statute and the ICC Rules it is not ‘the victims’ domain either to reinforce the prosecution or dispute the defence,’215 it appears that the Lubanga Appeal Judgment, unless it is discredited or modified in future litigation, currently permits both.
Both the ICTY and ICTR Rules provide that the trial chamber can order the production of documentary evidence and/or can call witnesses, on its own motion, to testify in the proceedings.216 Both tribunals’ rules provide that while there is a sequence for the examination of witnesses called by the parties, ‘a Judge may at any stage put any question to the witness.’217
The ICC Rules are similar, though potentially more expansive. As mentioned earlier, they provide that the trial chamber ‘has the right to question a witness before or after a witness is questioned by’ one of the parties.218
Despite the fact that the ad hoc tribunals and the ICC employ an essentially adversarial system for the presentation of viva voce testimony at trial, the provisions allowing for questioning of witnesses on substantive issues by the trial chamber stand in stark contrast to the common law system which is the origin of the adversarial process of witness examination in the international courts.
References(p. 546) In the common law, adversarial system, the trial judge plays a role entirely independent from the parties. The trial judge is not, as a general matter, provided prior to trial with the statements of anticipated trial witnesses or any other substantive evidence which the parties intend to produce at trial. Instead his or her role during trial is primarily limited to deciding questions of law and procedure which may arise at the case progresses. The sequence in which witnesses are called and the direct and cross-examination of those witnesses is entirely driven by the parties; not the court, with only rare exception. Trial judges in the common law system can and on occasion do ask questions of witnesses, however such questioning must occur only within reasonable limits, will generally involve seeking clarification of points already brought out by the parties, and is permissible given a trial court’s duty, as an impartial arbiter, to see that justice is done. Trial judges who take an active role in the examination of witnesses risk being accused of judicial misconduct and/or of being seen as improperly aligning themselves with one of the parties; activity antithetical to the requirement that the common law judge act only as a neutral arbiter of the trial process.219
In civil law jurisdictions, as alluded to earlier, the trial judge is provided with a dossier which contains all the evidence produced after a complete, pre-trial investigation of the case conducted by a judicial officer. Hence the trial judge is fully informed of the nature and substance of the case prior to trial, and plays an active role in the trial as a result. It is the judge who calls and questions the witnesses at trial. The advocate’s role is vastly more curtailed than that of an advocate in an adversarial system, and is generally limited to covering points not already raised by the judge, or asking the judge to pose certain questions to the witnesses.The provision at the ad hoc tribunals and the ICC allowing for judges to call witnesses and to put questions to witnesses at any time during the trial proceedings on substantive issues can create a very problematic dilemma for the advocates who are, under the same rules, investigating, organizing and presenting their cases in a partisan fashion which reflects and follows all the rules governing the adversarial presentation of a case.
Despite the adversarial nature of the trials, the trial chambers at the ad hoc tribunals and the ICC are provided with summaries of witness statements and the list of exhibits likely to be presented by the parties, before the trial begins. Being thus informed, the trial chambers may, and very often do, take an active (p. 547) part in the questioning of witnesses, including on subjects not raised by the parties.220
There is a profound difference, however, between the dossiers made available to trial courts in civil law jurisdictions and the witness statements and other matters made available to trial chambers at the ad hoc tribunals and the ICC. As also mentioned earlier, investigations of cases at the ICTY, ICTR, and ICC are not overseen by a neutral judicial officer. They are partisan investigations done for the purpose of gathering evidence in support of a party’s case. There is no duty, for example, on the part of the prosecution when gathering written witness statements, unlike civil law procedures, to actively seek out exculpatory evidence or to pursue potential theories which are at variance with the prosecution view of its case. The prosecution is free to, and does, focus the investigation and preparation of its case to those matters most relevant to the theory underlying its Indictment and to those individuals who will be best suited, in its view, to present its case as witnesses at trial.
Not surprisingly, given these circumstances, the process of judicial questioning of witnesses at trial is not without controversy. It also reflects the significant philosophical differences between the common law assumption that the trial proceedings must be party-driven, and the civil law assumption that a judge should take an active role in the trial, specifically in the questioning of witnesses.
In the Prlić case at the ICTY, for example, the Trial Chamber was particularly active in interrupting the questioning by the parties and conducting significantly long examinations. Ultimately the prosecution objected to the ‘long and frequent’ interventions by the trial judges, arguing that this affected the quality of the examinations being conducted by the parties.221 This kind of objection is understandable given the essentially adversarial rules governing the presentation of testimony at trial. A party to an adversarial trial process will generally have a theory of how to go about presenting its evidence, a plan as to how to go about presenting that theory, and specific reasons for calling certain witnesses in a particular order so that its case can unfold in a logical, coherent fashion which best represents the theory of the case.222
In Prlić, the prosecution proposed that the Trial Chamber wait until each party, respectively, completed its examination of a witness before the Chamber put References(p. 548) any questions to that witness. The Trial Chamber rejected that solution. It held instead that ‘the Judges may put their questions to the witness after each party has finished the direct or cross-examination of the witness.’223 It insisted, however, that in the interests of judicial economy, ‘the Judges will not wait for the end of the examination of a witness by a party if they wish to question a witness about a document; they will do so at the time that the document is discussed in court.’224
Although the trial chambers’ concern regarding judicial economy is a proper and understandable one and there is no doubt that a trial chamber may properly and reasonably interrupt the direct or cross-examination of a witness to ask specific questions of concern to the chamber, ‘long and frequent’ interventions from the bench, depending on the subject-matter and nature of those interventions, can have precisely the opposite effect. The party in question must, once that line or lines of questioning has concluded, attempt to re-focus the witness’ testimony on the issues the party seeks to present through that witness as part of its case. It may or may not also feel compelled to present additional testimony to address the subject-matters raised by the trial chamber.
That process can be particularly troubling from the perspective of the defence since issues raised by judicial questioning on matters which were otherwise not raised by the prosecution in its case—depending, again, on the nature and subject-matter of such questioning—may serve to improperly shift the burden of proof to the defence by, in essence, requiring a response from the accused. The adversarial trial process, however, anticipates and demands that the prosecution always bears the burden of proof at trial. The accused is not required to go forward with its proof until it has seen and assessed the strength or weakness of the whole of the prosecution proof. Lengthy interventions from a trial chamber, whose case file is not a dossier, but rather select portions of the prosecution pre-trial investigation and a skeletal defence pre-trial brief, can always risk inadvertently running afoul of this basic principle and undermining the rights of the accused as a result.
The rules at the ad hoc tribunals and the ICC also allow a trial chamber to call witnesses on its own motion. When the trial chamber decides to do so, it is not required to provide the parties with access to such a witness before that witness testifies.
In the Krajišnik case at the ICTY, for example, the Chamber outlined procedures for the questioning of four witnesses which the Chamber intended to call at trial after the close of the defence case. They included the provision that a legal officer from Chambers would conduct audio-recorded interviews of the witnesses in (p. 549) issue. Though the parties requested the opportunity to have access to the witnesses before their testimony was presented, the Chamber refused to allow it, reasoning that ‘since in principle the parties are to be given adequate notice of the expected testimony of a Chamber witness,’ this removed ‘the main reason for a party wanting to make contact with the witness.’225
In Krajišnik, however, the witnesses in question had already been considered by one or both of the parties to the proceedings as potential trial witnesses, hence the Trial Chamber opined that it was ‘entirely predictable to the parties that the Chamber would wish to hear them, due to the pre-eminent positions they held at the time.’226 The Trial Chamber nonetheless left open the possibility that ‘in very exceptional circumstances,’ it might allow preliminary contact with a chamber witness, to be decided on a case by case basis.227 The Trial Chamber also invited the parties to provide the Chamber, prior to the legal officer’s interview of the witnesses, with a list of material suitable for disclosure in the form of interview records or witness statements relating to the witnesses the Chamber wished to call.228
The rules for the actual questioning of these witnesses in Krajsinik mirrored those governing the viva voce examination of witnesses called by the parties, though not entirely. The Krajsinik Chamber instructed the parties that it would question the witnesses on direct examination first. However, it also held that ‘the constraints on questioning a witness which are placed upon the party calling the witness’ were ‘not to apply to the judges.’229 This caveat appeared to indicate that the Trial Chamber would be free to ask the witnesses leading questions during its direct examination.
Both the prosecution and the defence were to be permitted to cross-examine the witnesses, in that order, however, cross-examination was limited to the subject-matter of the witness’ statement to the legal officer, the answers the witness gave during in-court testimony, matters raised by answers elicited on cross-examination by one of the parties, and questions going to the credibility of the witness.230 Even though ICTY Rule 90(H)(ii) provides that where a witness is able to give evidence relevant to the case for the cross-examining party, the cross-examining party may properly elicit such matters; that leeway was apparently not permitted as to the Chamber’s witnesses in Krajsinik. Re-examination by the Trial Chamber and further cross-examination, based upon matters raised in the re-examination was allowed, however.231
References(p. 550) 7. Conclusion
The rules and procedures which govern the taking of viva voce testimony during international criminal trials represent a unique mix of civil and common law principles and, as such, represent a challenge to any practitioner appearing before these courts. No single legal tradition can be or is relied upon as a means for governing the examination of witnesses at trial. Moreover, the rules are not as yet consistently interpreted or applied and the jurisprudence regarding them continues to be in a state of flux. The ongoing evolution of these rules, despite what appears to be a current trend towards the increasing adoption of certain civil law traditions, cannot be predicted. What must remain unchanged, however, is the fundamental purpose of the rules, which is to ensure fair and expeditious trials consistent with the protection of the dignity of victims and witnesses as well as the protection of the dignity and rights of those who stand accused of crime before our international courts.
* The author has served as counsel and legal consultant on various cases before the ICTY. She is a founding member of the International Criminal Law Bureau, Chairperson of the Association of Defence Council-ICTY Disciplinary Council and member of the ICTY Disciplinary Board.
2 ICTY Rules of Procedure and Evidence (‘ICTY Rules’), Rule 65ter(E); ICTR Rules of Procedure and Evidence (‘ICTR Rules’), Rule 73bis(B). The intention underlying these rules is to alert the trial chamber to objections to trial exhibits which are already known at the time the pretrial brief is filed. Objections to exhibits can always also be made at any later stage in the proceedings. And see ICC Rules, Rules 76, 77, 84 [all relating to pre-trial disclosure].
4 See Daryl A. Mundis, ‘From “Common Law” Towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and Evidence’ (2001) 14 Leiden J Intl Crim. L, 367, 367–82 (2001), for a discussion of this historical shift as it was and is occurring at the ICTY.
5 In common law jurisdictions, as a general rule, the prosecution is required to inform the defence of the witnesses it intends to call at trial and also provide it with statements made by those witnesses or reports prepared by them prior to trial. However, it is not required that this disclosure occur by means of a formal pleading and this information is not made available to the trial court pre-trial.
7 ICCPR, Art. 14(1); ECHR, Art. 6(1). And see ICTY, ‘Standards of Professional Conduct for Prosecution Counsel’, s 2(h), which provides that the Office of the Prosecutor is required ‘to assist the Tribunal to arrive at the truth and to do justice for the international community, victims and the accused.’ A similar, more detailed, provision is contained in the pending ‘Draft Code of Professional Conduct for Prosecutors of the International Criminal Court’, which provides, at Art. 7(2) that the prosecution shall ‘ensure to the best of their abilities that a just verdict is reached at the end of the trial process and not strive for a conviction at all costs.’
8 ICTY Rules, Rule 65ter(F) (providing the filing of a defence pre-trial brief is mandatory, however the defence is not required to reveal all aspects of its case in this brief, but only the nature of the defence ‘in general terms’); ICTR Rules, Rule 73bis(F) (providing that the trial chamber ‘may’ order the defence to file a statement of ‘admitted facts and law,’ and ‘may’ order the defence to file a pre-trial brief which addresses ‘the factual and legal issues’].
9 Those exceptions, which are reflected in most rules of procedure for international courts, require that the accused disclose to the prosecution and the trial chamber, before trial, his or her intention to rely on alibi or any special defence, such as diminished capacity or lack of mental responsibility. See, eg, ICTY Rules, Rule 67(B), ICC Rules, Rule 79 et seq.
10 The practical and philosophical differences between the party-driven, adversarial, common law system and the civil law system, in which cases are prepared for trial by a neutral, investigating judicial officer, are legion and well beyond the scope of this chapter. For an interesting analysis and comparison of aspects of the two systems as well as the historical, social and philosophical considerations which underlie each, see P. J. van Koppen and S. D. Penrod (eds), ‘Adversarial versus Inquisitorial Justice’ (New York, Kluwer Academic /Plenun Publishers, 2003). This compilation of articles includes a chapter which discusses the ‘The Styles of Trial Procedure at the International Criminal Tribunal for the Former Yugoslavia,’ written by Francis J Pakes.
15 Prosecutor v. Dragomir Milošević (Decision on Prosecution’s Second Motion For Leave to Amend Its Rule 65ter Exhibit List) IT-98-29/1-T (14 February 2007)  [hereinafter ‘Dragomir Milošević Prosecution’s Motion’]; Prosecutor v. Popović (Decision Permitting the Addition of One Exhibit to the Prosecution’s Rule 65ter List and Denying An Oral Request for Certification Pursuant to Rule 73(B)) IT-05-88-T (16 January 2007)  [hereinafter ‘Popivic Decision Permitting the Addition of One Exhibit’].
22 It is possible, with leave of the trial chamber, for a defence witness to be called out of order if the witness’ testimony is crucial and the witness potentially will not be available by the time the defence case is likely to begin; for example, a terminally ill witness or an important expert unable to attend on the dates set for the defence case. The instances in which it is wise for a defence witness to be called to testify before the defence has heard the entirety of the prosecution evidence, however, will be relatively rare.
23 ICTY Rules, Rule 98 and ICTR Rules, Rule 98, both provide that: ‘[a] Trial Chamber may order either party to produce additional evidence. It may proprio motu summon witnesses and order their attendance.’ The potential ramifications of this provision are discussed later in this chapter.
26 Judges at the ICTY and ICTR may, as just noted, put a question to a witness at any time. In practice, however, it is very rare for the bench to question a witness before the party who is presenting that witness except as to limited matters, usually procedural in nature, such as advising the witness about court procedures or protective measures.
30 ICTY Rules, Rule 90(F); ICTR Rules, Rule 90(F). And see Rome Statute, Art. 64(2) requiring that the trial chamber ‘shall ensure the trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’
32 See, eg, Prosecutor v. Delić (Decision Adopting Guidelines on the Admission and Presentation of Evidence and Conduct of Counsel in Court) IT-04-83-T (24 July 2007)  [hereinafter ‘Delić Decision Adopting Guidelines’]; Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06-T-119 (5 February 2009).
33 The accused has the right, of course, if he or she chooses, to remain silent at trial and to rest on the strength of the prosecution evidence without putting any affirmative defence forward. In Prosecutor v. Haradinaj IT-04-84-T, at the ICTY, the three accused chose not to present an affirmative defence case after the prosecution rested. Two were acquitted on all 37 counts alleged in the Indictment; one was convicted of 3 counts.
37 See, eg, Delić Decision Adopting Guidelines (n 33 above) ; Prosecutor v. Martić (Revised Version of the Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and the Conduct of Counsel in Court) IT-95-11-T (19 May 2005) ; Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (5 May 2009) Transcript, 168.
38 Prlić Decision Adopting Guidelines (n 35 above) ; Prosecutor v. Halilović (Decision on Prosecution Motion to Vary It’s Rule 65ter Witness List) IT-01-48-T (7 February 2005)  (preparation of defence includes adequate time and facilities to prepare for cross-examination of prosecution witnesses).
44 The exceptions to this rule include instances in which the opposing party does not object to admission of the exhibit in question and exhibits which, perforce, are created in court during the testimony of a witness, such as notations on maps, diagrams drawn during testimony and the like.
47 ICTY Rules, Rule 90(C) provides: ‘[a] witness, other than an expert, who has not yet testified shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying.’ An accused, who chooses to testify on his or her own behalf, is an exception to this rule, given the accused’s simultaneous right to be present at trial and to testify as part of the defence case if he or she elects to do so.
48 ICTY Rules, Rule 90(D) states: ‘[n]otwithstanding paragraph (C), upon order of the Chamber, an investigator in charge of a party’s investigation shall not be precluded from being called as a witness on the ground that he or she has been present in the courtroom during the proceedings.’
49 ICC Rules, Rule 140(3) provides: ‘[w]hen a witness testifies after hearing the testimony of others, this fact shall be noted in the record and considered by the Trial Chamber when evaluating the evidence.’ See also Prosecutor v. Simić (Judgment) IT-95-9-T (17 October 2003) .
50 Prlić Decision Adopting Guidelines (n 34 above) .
51 See, eg, Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (26 January 2009) Transcript, 107, allowing leading questions on direct examination regarding matters such a general background, place of birth, education, circumstances of past life; and Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (3 February 2009) Transcript, 56 [same].
52 It is the obligation of the opposing party to object when it believes an improper question has been asked. The trial chamber, though it has the duty to control the ‘mode’ of interrogating witnesses, has no duty to intervene simply because a legally objectionable question has been asked, though it may, nonetheless, sometimes do so to assure a fair trial and/or a clear record.
53 Prosecutor v. Limaj (Decision on the Prosecution’s Motions to Admit Prior Statements as Substantive Evidence) IT-03-66-T (25 April 2006)  [hereinafter ‘Limaj Decision on the Prosecution’s Motion’]. A ‘hostile’ witness must be distinguished from a witness who has simply forgotten a prior statement or portions of a prior statement.
54 Prosecutor v. Popović (Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness) IT-05-88-AR73.3 (1 February 2008)  [hereinafter ‘Popović Decision on Appeals Against Decision on Impeachment’] (specifically rejecting the contention that the party who called the witness is entitled to determine if the witness is hostile or not).
55 Prosecutor v. Katanga, ICC-01/04-01/07, Transcript, 8 February 2010, 64–8; 9 February 2010, 19–21, oral decision (also holding that once a witness has been declared to be hostile, that status will remain in place for the rest of the witness’s testimony).
56 Limaj Decision on the Prosecution’s Motion (n 53 above)  (before concluding that a witness is willfully not answering questions and therefore hostile, the witness should be given the chance to refresh his or her recollection).
57 Popović Decision on Appeals Against Decision on Impeachment (n 54 above) –.
59 Limaj Decision on the Prosecution’s Motion (n 53 above) –; and see Popović Decision on Appeals Against Decision on Impeachment (n 54 above)  (following the rule enunciated in Limaj Decision on the Prosecution’s Motion).
62 Delić Decision Adopting Guidelines (n 33 above) .
65 An example of an ‘unwarranted attack’ on a witness is found in the Krajišnik case where, in the Trial Chamber’s view, the allegation by the cross-examining party that a witness had engaged in serious criminal conduct was not allowed, in the absence of a showing of reasonable grounds to believe that conduct had occurred. See also Prosecutor v. Bagosora (Oral Decision on Cross-Examination) ICTR-96-7 (9 May 2005) Transcript, 27–8 (employing a similar limitation and solution).
68 Prlić Decision Adopting Guidelines (n 35 above) .
72 See, eg, Prosecutor v. Haradinaj (Decision on Notification of Cross-Examination Material) IT-04-84-T (31 May 2007). The same procedure was adopted in Prosecutor v. Stanišić (Order on Revised Guidelines on the Admission and Presentation of Evidence) IT-08-91-T (2 October 2009)  [hereinafter ‘Stanišić Order on Revised Guidelines’].
75 Prosecutor v. Orić (Decision on Partly Confidential Defence Motion Regarding the Consequences of a Party Failing to Put Its Case to Witnesses Pursuant to Rule 90(H)(ii)) IT-03-68-T (17 January 2006) –.
76 Prosecutor v. Milutinović (Decision on Use of Time) IT-05-87-T (9 October 2006)  (emphasizing that it is not always necessary to put the defence case, in all its detail, to each and every witness called by the prosecution, because such an approach risks the ‘needless consumption of time’ prohibited by Rule 90(F)(ii)).
77 Prosecutor v. Brđanin (Decision on Motion to Declare Rule 90(H)(ii) Void to the Extent It is in Violation of Article 21 of the Statute of the International Tribunal) IT-99-36-T (22 March 2002) , .
78 Prosecutor v. Popović (Order Setting Forth Guidelines for the Procedure Under Rule 90(H) (ii)) IT-05-88-T (6 March 2007)  [hereinafter ‘Popović Order Setting Forth Guidelines’]; and see Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (9 February 2009) Transcript, 44–7.
81 Popović Order Setting Forth Guidelines (n 79 above).
83 Prosecutor v. Simić (Decision on Prosecution Interlocutory Appeals on the Use of Statements not Admitted into Evidence Pursuant to Rule 92bis as a Basis to Challenge Credibility and to Refresh Memory) IT-95-9 and IT-95-9-AR73.7 (23 May 2003) ,  [hereinafter ‘Simić Decision on Prosecution Interlocutory Appeals’]. And see Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (6 May 2009) Transcript, 169; reciting same procedure.
84 See Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (7 July 2009) Transcript, 7 (witness can refresh memory by reviewing witness’s prior statement); Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (16 January 2009) Transcript, 16–29 (witness can refresh memory by reviewing any exhibits or documents referred to in witness’ statement; any notes prepared by witness; documents contained in witness’s computer); Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (16 January 2009) Transcript, 16–29 (witness may not review investigator’s notes or screening notes as means to refresh the witness’ memory or documents which the witness does not recognize).
88 Prosecutor v. Katanga (Oral Decision) ICC-01/04-01/07 (27 November 2009) Transcript, 27; Prosecutor v. Katanga (Oral Decision) ICC-01/04-01/07 (8 February 2010) Transcript, 63–4; Prosecutor v. Katanga (Oral Decision) ICC-01/04-01/07 (10 February 2010) Transcript 51–6; and see Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (7 July 2009) Transcript, 7; Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (16 January 2009) Transcript, 16–29; (use of prior statement to refresh memory in court permitted only upon showing that witness’ memory is lacking, his or her testimony would benefit from review of statement, and witness agrees document used to refresh memory contains his or her recollection of the events).
90 Prosecutor v. Simić (Oral Decision) T-95-9-AR73.7 (13 March 2003) , ; Prosecutor v. Brđanin (Oral Decision) IT-99-36-T (14 October 2002)  , (‘… it’s not right that you present the witness with information leading him to understand that another witness also coming from the political arena gives a completely different story to his with regard to some details at least’); Delić Decision Adopting (n 33 above) ; Stanišić Order on Revised Guidelines (n 73 above) .
91 Prosecutor v. Kvočka (Oral Decision) IT-98-30/1 (28 August 2000) Transcript, 4,220–1; Prosecutor v. Krajišnik (Oral Decision) IT-00-39-T (5 December 2005) Transcript, 19,215; Stanišić Order on Revised Guidelines (n 73 above) .
92 See, eg, Prosecutor v. Popović (Decision on Defence Request for Guidelines Concerning the Use of Statements Not in Evidence and the Admissibility of Evidence During Cross-Examination) IT-05-88-T (17 December 2008) [hereinafter ‘Popović Decision on Defence Request’]; Prosecutor v. Delić (Addendum to Decision Adopting Guidelines on the Admission and Presentation of Evidence and Conduct of Counsel in Court) IT-04-83-T (22 October 2007)  (‘Where a witness is confronted in court with the statement or transcript of another witness who is scheduled to come to testify in the present case, and where that witness ultimately does not testify, the Trial Chamber shall disregard the part of the testimony where the witness was confronted with the statement or transcript of the witness who ultimately did not testify.’)
93 See Popović Decision on Defence Request (n 93 above)  (holding that as a general rule it is sufficient for a party to put its case to the witness in summary form, though in some instances more detail might be necessary, and that this is a matter which must be resolved on a case by case basis). But see Stanišić Order on Revised Guidelines (n 73 above)  (directing that the parties ‘shall’ quote the directly relevant passage of a witness statement and avoid paraphrasing it).
94 Prosecutor v. Kupreškić (Decision on Order of Presentation of Evidence) IT-95-16-T (21 January 1999)  [hereinafter ‘Kupreškić Decision on Order of Presentation’]; Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (27 February 2009) Transcript, 22–4, 37–8, 41–3 (holding questions during re-direct examination should not exceed the scope of cross-examination).
95 Kupreškić Decision on Order of the Presentation (n 94) .
98 See, eg, Prlić Decision Adopting Guidelines (n 35 above) .
99 See Prosecutor v. Kordić (Decision on Appeal Regarding Statement of a Deceased Witness) IT-95-14/2-AR73.5 (21 July 2000) ; Prosecutor v. Blagojević (Trial Judgment) IT-02-60-T (17 January 2005) .
100 ICTR Rules, Rule 90(A): ‘Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in rule 71.’
101 The rules setting forth the conditions pre-requisite to the admission of such written statements are discussed in other chapters. The focus here is on how the admission of such statements affects the taking of testimony at trial.
102 ICTY Rules, Rule 92ter provides: ‘A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement or transcript of evidence given by a witness in proceedings before the Tribunal, under the following conditions: (i) the witness is present in court; (ii) the witness is available for cross-examination and any questioning by the Judges; and (iii) the witness attests that the written statement or transcript accurately reflects that witness’ declaration and what the witness would say if examined.’
103 ICTR Rules, Rule 92bis(E) provides: ‘Subject to any order of the Trial Chamber to the contrary, a party seeking to adduce a written statement or transcript shall given fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination.’
104 See comparable discussion of the same intent regarding Rule 89(F) in Prosecutor v. Krajišnik (Trial Judgment) IT-00-39-T (27 September 2006)  [hereinafter ‘Krajišnik Trial Judgment’] (‘This procedure was implemented for the purpose of reducing the amount of time spent in examination of witnesses, by focusing on the most important points of their expected testimony’).
105 Rome Statute, Art. 69(2) provides in pertinent part, that the Court shall take such measures, in the case of particularly vulnerable witnesses, such as children, the elderly, victims of sexual crimes and the like, to protect the safety, physical and psychological well-being, dignity and privacy of such individuals, though the measures ‘shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.’ Subsection (2) of Art. 68 provides that the Court may, for example, hear the testimony from such witnesses in camera, ‘or allow the presentation of their evidence by electronic or other special means …’.
110 See, eg, Eugene O’Sullivan and Deirdre Montgomery ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’ (forthcoming) J Intl Crim. Justice [hereinafter ‘O’Sullivan & Montgomery’], for a thought provoking, in-depth discussion of various procedural rules developed over time at the ICTY, including the increasing use of written witness statements, which raise serious questions regarding the extent to which the right of the accused to confront and cross-examine witnesses presented against him or her at trial is being undermined.
111 The most common exception allows for the admission of prior testimony, taken under oath in the same case or another case when there is proof that the witness is legally unavailable. Even then, the party offering such evidence must establish that the witness was cross-examined during the prior testimony by a party representing the interests of, or having motives similar to, those of the accused on trial. See United States Federal Rules of Evidence, Rule 804(b)(1) (hearsay exception, prior testimony when declarant unavailable). Written witness statements from a witness who has never faced cross-examination on their contents, are not permitted in the adversarial process and their admission would be seen as a direct violation of the accused’s right to confront and cross-examine the witnesses presented against the accused at trial.
112 The recently established Special Tribunal for Lebanon (STL) represents a deviation from this practice. The Rules of Procedure and Evidence for that tribunal, promulgated in June 2009, which embody to a great extent principles fundamental to Lebanese law, anticipate the active participation of the pre-trial judge in the pre-trial investigation and preparation of cases brought before the tribunal. See generally, STL Rules, Rule 88 and Rule 89. Nonetheless the rules also provide for independent Prosecution investigation of its cases.
114 Prosecutor v. Limaj (Trial Judgment) IT-03-66-T (30 November 2005)  (The Trial Chamber also emphasized, in making this finding, that Mr Limaj’s decision to testify did not create any burden on him or any of the other accused to prove their innocence, noting that the burden of proof always remains with the prosecution whether the accused testifies or not).
115 See Giuliano Turone, ‘The Denial of the Accused’s Right to Make Unsworn Statements in Delalić’ (2004) 2(2) J Intl Crim. Justice 455, 455–8 (discussing the differences between the civil and common law traditions on this subject).
117 ICTY Rules, Rule 84 and ICTR Rules, Rule 84 provide that each party may make an opening statement but that the defence may elect to make its opening statement, if any, after the conclusion of the prosecutor’s presentation of evidence and before the presentation of any defence evidence.
129 The ICC Rules have obviated this problem. They specifically provide that when an issue of self-incrimination arises during the course of the proceedings, ‘the Chamber shall suspend the taking of the testimony and provide the witness with an opportunity to obtain legal advice if he or she so requests …’. ICC Rules, Rule 74(10) (emphasis added).
134 ICC Rules, Rule 74(3)(c). To give effect to these assurances the trial chamber is required to receive the evidence at issue only in camera, order that the identity of the witness and content of his or her evidence will not be disclosed, advise all parties of the consequences of a breach of that order, order the sealing of any record of the proceedings, and use protective measures regarding any decision of the court to ensure that the identity of the witness and content of his or her evidence are never disclosed. ICC Rules, Rule 74(7) et seq and see Prosecutor v. Lubanga (Oral Decision) ICC-01/04-01/06 (28 January 2009) Transcript, 110, noting that if formal assurances are given to a witness it is likely the whole or major part of the testimony will take place in closed session.
135 ICC Rules, Rule 74(4). At the ICC, the prosecutor is also required (unlike at the ad hoc tribunals) when he or she is aware that the testimony of a witness may raises issues with respect to self-incrimination, to request an in camera hearing with the trial chamber and tell the chamber about the matter before the witness’ testimony begins. ICC Rules, Rule 74(8).
136 ICC Rules, Rule 74(5) et seq, and see Prosecutor v. Lubanga ICC-01/04-01/06 (12 May 2009) Transcript, 2–4 (finding that if formal assurances are provided under Rule 74, the public must be excluded from the entirety or the major part of the evidence provided by the witness).
137 ICC Rules, Rule 74(6); which also provides that the trial chamber may still continue the questioning of the witness on any other matters that do not involve exposing the witness to self-incrimination.
140 Krajišnik Trial Judgment (n 105 above) [13,085–6]
141 Prosecutor v. Galić (Decision Concerning the Expert Witness Ewa Tabeau and Richard Philipps) IT-93-29-T (3 July 2002) ; Prosecutor v. Blagojević (Decision on Prosecution’s Motion for Admission of Expert Statements) IT-02-60-T (7 November 2003) .
148 If grounds are revealed or developed upon which to challenge an expert, after these deadlines have already expired, counsel is still free to seek leave of the trial chamber, based upon a proper showing of good cause, for relief from those deadlines, and should seek such relief when the interests of justice require it.
152 Prosecutor v. Ðorđević (Decision on Defence Notice Under Rule 94bis) IT-05-87/1-T (5 March 2009) – (excluding expert report of prosecution employee who actively investigated the facts of the prosecution case and participated in the interview of prosecution witnesses as well as the accused in a related case).
153 Slobodan Milošević Decision on Admissibility (n 143 above) ; Prosecutor v. Brđanin (Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown) IT-99-36-T (3 June 2003)  [hereinafter ‘Brđanin Decision on Prosecutions Submission’].
155 Brđanin Decision on Prosecutions Submission (n 154 above) .
156 Prosecutor v. Martić (Decision on Prosecution’s Motions for Admission of Transcripts Pursuant to Rule 92bis and 94bis) IT-95-11-T (3 January 2006) ; Prosecutor v. Delalić [Order on Motion of Esad Landzo to Admit as Additional Evidence the Opinion of Francisco Villalobos Brenes] IT-96-21-A (14 February 2000) .
157 Prosecutor v. Karemera [Decision on ‘Requete de la Defence de M. Ngirumpatse en Retrait de la Deposition du Temoin GFJ et des Pieces Afferentes’] ICTR-98-44-T (6 August 2008) , citing Prosecutor v. Ndindiliyimana (Decision on the Prosecution’s Motion Opposing the Testimony of Witness DE4-30 as a Factual Witness) ICTR-00-56-T (16 May 2007) .
160 Prosecutor v. Haradinaj (Decision on Prosecution’s Confidential Motion for Testimony to be Heard via Video-Conference Link) IT-04-84-T (21 March 2007) ; see also Prosecutor v. Bagosora (Decision of Prosecution Request for Testimony of Witness BT via Video-Link) ICTR-96-7-T (8 October 2004) .
162 See, eg, Prosecutor v. Dragomir Milošević (Decision on Defence Motion for an Order to Retrieve the Testimony of Witness T-16 by Video-Conference Link) IT-98-29/1-T (5 July 2007); Prosecutor v. Martić (Decision on Defence Motion for the Testimony of Professor Smilja Avramov via Video-Conference Link) IT-95-11-T (10 November 2006); Prosecutor v. Strugar (Decision on the Prosecution Motion to Admit Evidence Via Video-Conference Link) IT-01-42-T (21 November 2005).
163 See, eg, Prosecutor v. Orić (Decision on Prosecution Motion for the Testimony of Witnesses via Video-Conference Link) IT-03-68-T (2 November 2004) (witness diagnosed with airplane phobia; witness who was nursing mother); Prosecutor v. Simić (Order to Receive Testimony via Video-Conference Link Pursuant to Rule 71bis) IT-95-9-T (14 February 2003) (witness sole caretaker of his seriously ill wife).
170 See, eg, Prosecutor v. Milutinović (Second Decision on Prosecution Motion for Leave to Amend its Rule 65ter Witness List to Add Wesley Clark) IT-05-87-T (16 February 2007) (in which several of these and other restrictions were requested).
171 See, O’Sullivan & Montgomery (n 110 above), containing an interesting comparison between the Slobodan Milošević and Milutinović cases, in which testimony from the same Rule 70 witness, covering similar subjects, offered with similar demands for restrictions on that testimony was admitted in one case (Milošević) but excluded in the other (Milutinović).
172 ICTY Rules, Rule 70(G), ICTR Rules, Rule 70(G), and see Prosecutor v. Brđanin (Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002) IT-99-36-T (23 May 2002) .
174 There are no provisions for anonymous witnesses at the ad hoc tribunals or the ICC. The accused is entitled to know the identity of protected witnesses and the contents of their statements and/or testimony. The STL, however, does allow evidence from individuals whose identity will not be revealed to the accused. (See STL Rules, Rule 93 (explaining the circumstances under which statements may be taken from individuals whose identities will not be revealed to the accused)). STL Rules, Rule 159 provides, however, that ‘A conviction may not be based solely, or to a decision extent, on the statement of a witness made pursuant to Rule 93.’
176 See, eg, ICTY Rules, Rule 77(A)(ii), providing that anyone who knowingly and willfully discloses information relating to proceedings before the tribunal in violation of an order of a Chamber may be held in contempt of the tribunal.
180 ICCPR, Art. 14(1); ECHR, Art. 6(1); ICTY Rules, Rule 78; ICTR Rules, Rule 78, and Art. 67(1) of the Rome Statute all provide that an accused is entitled to a public trial. However exceptions are routinely made when a public hearing would jeopardize the safety of a witness or the need to keep sensitive information confidential. All the international courts provide for various means for closing proceedings to the public at large when these issues arise. The entire record of these private proceedings is kept, however and the trial chamber is required to make public the reasons for granting such closed session. See, eg, ICTY Rule 79(B); ICTR Rule 79(B).
184 Haradinaj Decision (n 183 above) .
185 Haradinaj Decision (n 183) .
188 The ICTY and ICTR Rules do not define when a person is no longer considered to be a ‘child.’ The ICC Rule on this issue is somewhat surprising as it appears to make an exception regarding the taking of the solemn declaration for anyone who is under the age of 18; even though an 18-year-old is well within the range of those individuals who are able to understand the reason for the taking of the solemn declaration.
191 Prosecutor v. Haradinaj (Reasons for Trial Chamber’s Decision to Exclude the Evidence of Witness 55 Under Rule 89(D) and Deny His Testimony Pursuant to Rule 92quater) 14 December 2007  [hereinafter ‘Haradinaj Witness Decision’].
194 Ibid, . And see Prosecution v. Brđanin (Oral Decision) IT-99-36-T (24 February 2004) Transcript, 25083; Prosecutor v. Martić (Decision on Defence Motion to Exclude the Testimony of Milan Babic, Together With Associated Exhibits From Evidence) IT-95-11-T (9 June 2006) .
195 Haradinaj Witness Decision (n 191) ; and see Prosecutor v. Martić (Appeals Judgment) IT-95-11-A ; Prosecutor v. Brđanin (Trial Judgment) IT-99-36-T 1 September 2004 [nn 944 and 2261].
196 Haradinaj Witness Decision (n 191) .
198 Prosecutor v. Lubanga (Judgment on the appeals of the Prosecutor and The Defence against Trial Chamber I’s Decision on Victim’s Participation on 18 January 2008, Majority Opinion) ICC-01/04-01/06 OA 9 OA 10 (11 July 2008)  [hereinafter ‘Lubanga Appeals Decision’].
199 A provision for similar participation of victims in pre-trial and trial proceedings is not contained in the Rules of Procedure and Evidence or the Statutes of the ICTY and ICTR. The Extraordinary Chambers in the Courts of Cambodia provides for victim participation as ‘civil parties’ under a scheme unique to the ECCC and very different from that put in place at the ICC. At the ECCC, for example, victim participation in proceedings as ‘civil parties’ is intended to be supportive of the prosecution. (See ECCC Internal Rules, Rule 23 et seq) The STL provides for victim participation in pre-trial and trial proceedings in a fashion similar to that codified in Art. 68(3) of the Rome Statute. (STL Rules, Rules 86, 87.) ECCC and STL procedures are based on civil law systems, unlike the ICC which, under the Rome Statute, envisioned that the ‘entire process, from investigation to trial, is fashioned on the principles of an adversarial hearing.’ Prosecutor v. Lubanga (Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victim’s Participation on 18 January 2008, Partly Dissenting Opinion of Judge Philippe Kirsch) ICC-01/04-01/06 OA 9 OA 10 (23 July 2008) .
200 Prosecutor v. Lubanga (Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Majority Opinion) ICC-01/04-01/06 OA 9OA 10 (11 July 2008) – [hereinafter ‘Lubanga Appeal Judgment’].
202 Lubanga Appeal Judgment (n 201 above) .
207 Ibid, Dissenting Opinion of Judge Kirsch (23 July 2008) ; Ibid, Dissenting Opinion of Judge Pikis (29 August 2008)  (pointing out that the adversary of the accused is the prosecutor ‘and none other’ and that the accused ‘cannot have more than one accuser’).
214 Lubanga Appeal Judgment (n 201 above), Dissenting Opinion of Judge Kirsch (23 July 2008) .
218 ICC Rules, Rule 140(2)(c). The STL, as noted earlier, has adopted primarily civil law oriented procedures. The rules at the STL anticipate that the presiding judge shall be the first individual to question a trial witness, unless, for some reason, the dossier provided to the presiding judge is incomplete and/or the presiding judge chooses not to exercise his or her discretion to lead the questioning of a trial witness.
219 Although there are many cases in which judge’s have been found to exceed these bounds in the common law system, one case—People v. Santana (2000) 80 Cal. App. 4th [a state court case]—is particularly illustrative of all of these points. In the Santana case the trial judge actively questioned witnesses about substantive factual issues in dispute at trial; a process which was held to be disparaging to the defence, given the nature of the judge’s questions, as it created the impression the judge was allying himself with the prosecution. The conviction in the case was reversed based on judicial misconduct.
222 At one point during the direct examination of a defence witness, the Trial Chamber interrupted the examination to ask that witness certain questions. Defence counsel was constrained to tell the Chambers that the subject of concern to the Chamber would be addressed by the next witness; not the witness being examined at that point, telling the Chamber that it was preempting her case. Prosecutor v. Prlić (Oral Decision) IT-04-74-T (19 February 2009) Transcript, 36, 682–4.