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Oxford Law Citator
Contents
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Preliminary Material
Foreword
Preface
Contents—Summary
Contents
Table of Cases
Table of National Legislation
Australia
New South Wales
Belgium
Canada
France
Germany
India
Italy
Netherlands
Russia
United Kingdom
United States of America
Table of Legislation for International Tribunals
East Timor Special Panel for Serious Crimes (ETSPSC)
Extraordinary Chambers in the Courts of Cambodia (ECCC)
International Court of Justice
International Criminal Court (ICC)
International Criminal Tribunal for Rwanda (ICTR)
International Criminal Tribunal for Yugoslavia (ICTY)
International Military Tribunal for the Far East at Tokyo (IMTFE)
International Military Tribunal at Nuremberg (IMT)
Iraqi High Tribunal (IHT)
Special Court for Sierra Leone (SCSL)
Special Tribunal for Lebanon (STL)
War Crimes Chamber of the Court of Bosnia and Herzegovina (CtBiH)
Table of United Nations Legislation
Table of Treaties and Conventions
European Secondary Legislation
Miscellaneous Legislation
List of Abbreviations
Main Text
Introduction
Part I Antecedents and context of International Criminal Trials
1 Principles of Civil Law
1 Introduction
2 Historical Background of Civil Law Criminal Justice Systems
3 Objectives of Criminal Justice
3.1 Truth-finding
3.2 Fair trial
4 Fact-finders
5 Collection of Evidence
5.1 Basic principles
5.2 Prosecutor
5.3 Investigative judge
5.4 Dossier
5.5 Control of the court over the collection of evidence
6 Presentation of Evidence
6.1 General principles
6.2 Control over questioning
7 Participation of Civil Parties
8 Admissibility of Evidence
9 Evaluation of the Evidence
9.1 Standard of proof
9.2 Burden of proof
10 Appeal
10.1 Cassation
11 The Netherlands
11.1 Collection of evidence
11.2 Presentation of evidence
Calling witnesses
Examination of witnesses
Examination of the accused
11.3 Rules of admissibility of evidence
Evidentiary system
Rule of immediacy
Written statements in lieu of oral testimony
Hearsay evidence
Anonymous witnesses
Testimony of a co-accused
Irregularly obtained evidence
Consequences of obtaining evidence irregularly
11.4 Deliberation
11.5 Conclusion
12 France
12.1 Historical introduction to the French criminal procedure
12.2 The burden of proof
The presumption of innocence
Limitations to the presumption of innocence
The role of the accused
The means of the accused
The role of the judge
The role of the ‘partie civile’
12.3 The administration of evidence
General principles
Admission of evidence
The purpose of evidence
Administration of evidence
Communication of evidence
Sanctioning evidence
Invalid evidence
Invalidation procedure
Consequences of the invalidation
Particular rules
Declarations
Clues
12.4 Appreciation of evidence
Principle
Exceptions
12.5 Conclusion
13 Italy
13.1 An adversarial system in a civil law country
13.2 The old inquisitorial criminal proceeding
13.3 The reasons for a new criminal proceeding
13.4 The tortuous road towards the adversarial model
13.5 The criminal proceeding
Preliminary investigation and pre-trial hearing
Trial and rule of evidence
Special proceedings
Penal decree proceeding
Penalty upon request
Summary trial
13.6 Conclusion
14 General Conclusion
2 International Criminal Law and Common Law Rules of Evidence
1 Introduction: Common Law, Civil Law, and Rules of Evidence
2 The Development of Rules of Evidence in England
3 Substantive Overview of the Rules of Evidence
3.1 Structural rules
Role of judge and jury
Burden and standard of proof
Competence and compellability of witnesses
(i) Age
(ii) Mental disability
(iii) Potential liability
(iv) Familial relationship
Expert witnesses
The examination of witnesses
Authentication and identification of exhibits
3.2 Preferential rules
The best evidence rule
3.3 Analytic rules
The rule against hearsay
(i) Definition
(ii) Dangers and fairness issues
(iii) Exceptions to the rule
(iv) Hearsay in contemporary English criminal practice
(v) Hearsay in international criminal law
Confessions
The accused’s silence as evidence
3.4 Prophylactic rules
Character evidence
(i) Good character
(ii) Bad character
General exclusion of evidence of sexual behaviour of complainants
3.5 Simplificatory rules
3.6 Quantitative rules
Corroboration
3.7 Exclusionary rules based on extrinsic policy factors
Privileges
(i) Lawyer-client privilege
(ii) Medical privilege
(iii) Religious privileges
(iv) International Committee of the Red Cross (ICRC)
(v) Familial privileges
(vi) Journalistic privilege
(vii) Miscellaneous provisions
Public interest immunity
3.8 Discretionary rules
4 Are Exclusionary Rules of Evidence Useful in International Criminal Law?
4.1 The scale of international trials
4.2 The inherent probability of perjury and fabrication
4.3 The use of rules of evidence to limit and thereby control proceedings
3 The Nature and Evolution of the Rules of Procedure and Evidence
1 Introduction
2 Drafting the Statute and Rules of Procedure
3 Incorporation of Civil Law Elements into the Rules
3.1 Some general features of the civil law system
3.2 Reasons for bringing some civil law elements into the proceedings
3.3 Judges’ control over the proceedings
4 Plea Agreements
5 ‘Proofing’ Witnesses
6 Motions for Judgment of Acquittal
7 Referral of the Indictment to Another Court
8 Conclusion
4 Interpretative Methodologies and the Use of Precedent in Cases Before International Criminal Courts
1 Introduction
2 Sources of Law and Hierarchy of Norms
3 The Vienna Convention on the Law of Treaties
4 Resort to Municipal Law Principles of Interpretation
5 Judgments of the International Court of Justice
6 Judgments of International Human Rights Courts and Bodies
7 Judgments of Post World War II Courts and Tribunals
7.1 References to national law and decisions of national courts
8 Principles of Precedent
9 Conclusion
5 The Changing Context of Evidential Rules
1 Introduction
2 No Contemporaneous Judicial Oversight of Investigations
3 The Rising Tide of Information in International Criminal Courts
4 The Trend Towards More Robust Rules of Evidence
5 Conclusion
Part II Before the Trial Begins
6 Collection of Evidence
1 Introduction
2 Relationship between Rules on Collection of Evidence and Exclusion of Evidence
2.1 Rules on collection of evidence
Power-based rules
Rights-based rules
(i) Article 55 and ad hoc tribunal equivalents
(ii) Internationally recognized human rights
Procedural rules
2.2 Rules on exclusion of evidence
3 Powers of an International Prosecutor to Collect Evidence
3.1 Division of power between international prosecutors and states in collecting evidence
ICC
Ad hoc tribunals
3.2 International prosecutor’s power to conduct their own investigation on the territory of states
ICC
Failed State Exception
Non-Compulsory-Measures Exception
Ad hoc tribunals
3.3 International prosecutor’s power to collect testimonial evidence
Witness interviews
ICC
Ad hoc tribunals
Suspect interviews
ICC
Ad hoc tribunals
3.4 International prosecutor’s power to collect physical evidence
Searches and documents
ICC
Ad hoc tribunals
Biometric data and covert measures
3.5 Overview of power-based rules on collection of evidence
3.6 Effect of violations of power-based rules on admissibility of evidence
4 Rules on Collecting Testimonial Evidence: Witness and Suspect Interviews
4.1 Rights-based rules
Witness interviews
The right not to incriminate oneself or confess guilt
The right not to be subjected to torture or other cruel, inhuman or degrading treatment
The right to an interpreter
Suspect interviews
Suspect’s right to be informed of suspect status
Suspect’s right to remain silent
Suspect’s right to counsel
4.2 Procedural rules
Witness interviews
Recording the interview
Participation of defence and/or a judge in the interview
Suspect interviews
4.3 Violations of rules governing the collection of testimonial evidence
5 Rules on Collecting Physical Evidence: Searches, Covert Measures, Biometric Data, and Documents
5.1 Rights-based rules
Search and seizure
(i) Lawful
(ii) Proportionate
Covert measures
Biometric data
Documents
5.2 Procedural rules
Chain of custody
Article 56
5.3 Violations of rules on collecting physical evidence
6 Conclusion
Relevance of who collects the evidence
Whether the violation is of a ‘minor’ or ‘serious’ nature
Whether some violations of rules on evidence-collection lead to automatic exclusion of the evidence
Relevance of whether the crime that an accused is charged with is ‘serious’ or not
7 Disclosure of Evidence
1 Introduction
2 Disclosure in National Systems
3 Disclosure at the International Tribunals and the Special Court
4 Practical Aspects of Disclosure at the International Tribunals and Special Court
5 Prosecution Disclosure under Rule 66
5.1 Pre-trial disclosure pursuant to Rule 66(A)
5.2 Remedies for violations of Rule 66(A)
5.3 Prosecution disclosure pursuant to Rule 66(B)
6 Disclosure of Exculpatory Material under Rule 68
6.1 Initial determination by the prosecution
6.2 Identification of exculpatory material
6.3 The scope of ‘exculpatory material’
6.4 Duty to disclose materials in the ‘actual knowledge’ of the prosecutor
6.5 Remedies for violation of Rule 68
7 Defence Disclosure
7.1 Witness statements
7.2 Witness particulars
7.3 Disclosure of other evidence
8 Disclosure of Documents to be used in Cross-Examination
9 Rule 98 and Orders to Parties to Obtain Evidence
10 Exceptions to Disclosure Obligations
11 Disclosure at the International Criminal Court
11.1 Prosecution disclosure at the ICC
11.2 Disclosure and victims at the ICC
11.3 Defence disclosure at the ICC
12 Approach to Disclosure at the ECCC, IHT, and Special Tribunal for Lebanon
12.1 The Extraordinary Chambers in the Courts of Cambodia (ECCC)
12.2 The Iraqi High Tribunal (IHT)
12.3 The Special Tribunal for Lebanon (STL)
13 Conclusion
Part III The Trial
8 Admissibility of Evidence
1 Introduction
2 The Common Statutory Framework of the International Criminal Tribunals
3 Probative Value
3.1 Introduction
3.2 Discretion and probative value
3.3 Hearsay is not a characteristic precluding admissibility
3.4 Witness statements or affidavits as a sub-category of hearsay of particular concern
3.5 Codification: Rule 92 bis and ICTY 92 quater
3.6 The ambiguous scope of Rule 92 bis and a formal divergence between the ICTY and ICTR
3.7 Convergent application of Rule 92 bis at the ICTY and ICTR, and the distinction between testimonial and documentary evidence
3.8 Borderline categories: media and police reports
3.9 The admissibility of witness statements under the ICC Statute and Rules, and the potential relevance of ICTY and ICTR jurisprudence
3.10 The admissibility of suspect interviews
3.11 Probative value and proportionality
4 Prejudice
4.1 Introduction
4.2 Prejudice, rights, and rules
4.3 Prejudice arising from the sequence of presentation of evidence as a basis of inadmissibility
4.4 Pattern of conduct, context, and character evidence
5 Relevance
5.1 Introduction
5.2 Relevance and the relationship between documentary and testimonial evidence
5.3 The relevance of alleged wrongdoing by the other side in the conflict
6 Conclusion
9 Documentary Evidence
1 Introduction
2 Definition of Documentary Evidence
3 Admissibility of Documentary Evidence
3.1 Principles of admissibility
3.2 Variation between the different courts and tribunals
3.3 The basic Rules governing admissibility
3.4 Standard of proof to establish relevance and probative value
3.5 Reliability
3.6 Admission by judicial notice
4 Recorded Testimonial Evidence
4.1 The introduction of Rule 92bis
4.2 Statements NOT on the acts and conduct of the accused
ICTY/ICTR Rule 92bis: proof of facts other than by oral evidence
SCSL Rule 92bis: Alternative Proof of Facts
4.3 Statements concerning the acts and conduct of the accused
ICTY Rule 89(F): an alternate route to putting statements in evidence
Rules 92ter, 92quater, and 92quinquies: codification of statement admission
4.4 Admission of statements at the ICC
5 Exclusion of Documentary Evidence
5.1 The ‘fair trial’ criterion
5.2 The ‘integrity of the proceedings’ criterion
6 Modalities and Timing of Introducing Documentary Evidence
6.1 Introducing documentary evidence with or without witnesses
6.2 Timing of introducing documentary evidence
7 Use of Documentary Evidence: Purpose for Admission
7.1 Contemporaneous documentary evidence
7.2 Judicial documents
7.3 Analytical books and reports, and expert reports about facts at issue
7.4 Statements
7.5 Impeachment documents
8 Assessing Weight and Probative Value of Documentary Evidence
8.1 Assessing credibility of documentary evidence
8.2 Assessing authenticity of documentary evidence
8.3 The significance of corroboration of documentary evidence
8.4 The significance of inconsistencies in documentary evidence
9 Advantages and Disadvantages of Documentary Evidence
10 Rules Governing the Presentation of Testimonial Evidence
1 Introduction
2 Disclosure of Evidence to Be Used at Trial
3 The Order of Examination of Viva Voce Witnesses
3.1 Direct examination
Undisputed foundational matters
Witness who must be led due to his or her status
‘Hostile’ witnesses or impeaching your own witness
3.2 Cross-examination
‘Putting the case’ to a witness
Use of prior statements to refresh recollection or for impeachment
Use of statements of third parties to confront testifying witness
3.3 Rebuttal and rejoinder examination
3.4 Procedures for examination and cross-examination in multi-accused cases
3.5 Use of written witness statements in lieu of viva voce testimony
4 Rules Related to the Status of a Witness
4.1 Testimony from the accused
4.2 Testimony from witnesses who are suspects or who may incriminate themselves
4.3 Expert witnesses
4.4 Video-link testimony
4.5 Rule 70 at the ICTY and ICTR, and Rule 82 at the ICC
4.6 Protected witnesses
4.7 Witnesses unable to take or understand the solemn declaration to tell the truth
4.8 Mentally impaired or unstable witnesses
5 Participation of Victims in Trial Proceedings
6 Examination of Witnesses by the Trial Chamber
7 Conclusion
11 Evidentiary Privileges
1 Introduction
2 Privilege Defined
2.1 Sources of privilege
3 Journalist Privilege
3.1 Journalist privilege at the ad hoc tribunals
Post-Brđanin jurisprudence
3.2 Journalist privilege at the International Criminal Court
4 Privilege of International Organizations and their Staff
5 State Secrets Privilege
5.1 State secrets privilege defined
5.2 State secrets privilege and the ad hoc tribunals
The review procedure
Subpoenas against state officials
5.3 The International Criminal Court and Article 72
5.4 Future considerations regarding national security privilege
Proper invocation
Enforcement
6 Lawyer—Client Privilege
6.1 Lawyer—client privilege defined
6.2 Lawyer—client privilege at the ad hoc tribunals
Application of the lawyer—client privilege when an accused takes the stand
Communications protected by the privilege
Persons benefiting from the privilege
6.3 Lawyer—client privilege at the International Criminal Court
7 Communications between Medical Professionals and their Patients
8 Communications with Members of a Religious Clergy
9 Privilege as Shield
10 Conclusion
12 Expert Evidence
1 Introduction
2 International Tribunal Rules
3 Voir Dire or In Limine Motion: The Gatekeeping Function
3.1 Judicially driven experts at the ICC
3.2 Ad hoc approach through 89(C) relevance and reliability determinations
4 Qualification of An Expert
5 Outside the Scope of Expertise
6 On Ultimate Issues of Law or Fact
7 Bias
8 Reliability as a Preliminary Contention
9 Fact or Expert Witnesses
10 Need an Expert Testify?
11 Reliability
12 Access to Sources of Opinion
13 Expert’s Methodology
14 A Note on Social Scientists as Expert Witnesses
15 A Comparative Exercise
15.1 Civil law
15.2 Common law
United States
India
16 Conclusion
13 Reasonable Doubt Standard of Proof in International Criminal Trials
1 Introduction
2 How is Reasonable Doubt Defined in the International Tribunals?
3 What Must be Proved Beyond a Reasonable Doubt Before a Conviction can be Returned?
4 The Principle of In Dubio Pro Reo
5 The Reasonable Doubt Standard as it Relates to Evaluation of Affirmative Defence Evidence
6 The Effect of the Trial Standard of Proof Beyond a Reasonable Doubt on Appellate Standards of Review
7 The Propriety of Prosecution Appeals from Acquittals Based Solely on Factual Findings
8 Conclusion
14 The Standard of Proof in Pre-Trial Proceedings
1 Introduction
2 Charging Documents, Warrants of Arrest, and the Confirmation of Charges
2.1 ICTY and ICTR: a prima facie case
2.2 ICC: warrant of arrest under Article 58: ‘reasonable grounds to believe’
2.3 Confirmation of charges under Article 61: ‘substantial grounds to believe’
3 Motion for Acquittal at Close of Prosecution Case: ICTY, Rule 98 bis
4 Conclusion
Part IV Proof of Facts Other than Through Evidence at Trial
15 Judicial Notice
1 Introduction
2 Comparison of Rules
2.1 Judicial notice at four international courts
2.2 Judicial notice distinguished
3 Facts of Common Knowledge
4 Adjudicated Facts
5 Documentary Evidence
6 Mandatory or Discretionary Nature of Judicial Notice
7 Legal Effect of Judicial Notice
8 Protection of the Rights of the Accused
9 Developments in Practice
9.1 ICTR
9.2 ICTY
9.3 Special Court for Sierra Leone
9.4 ICC
10 Conclusion
16 Additional Evidence on Appeal, Review Proceedings, and the Remedy of Reconsideration
1 Additional Evidence on Appeal
1.1 Introduction
1.2 Overview and purpose of Rule 115
1.3 Admissibility of evidence under Rule 115
Timing of bringing of motion
Availability at trial
Relevance and credibility
Decisive factor on decision
1.4 Circumstances when evidence admitted on appeal
Standard of review
Examples of where evidence admitted on appeal
Experience of ICTR
Experience of ICTY
1.5 Rebuttal and rejoinder material
Rebuttal evidence
Rejoinder evidence
1.6 Funding investigations at the appeal stage
1.7 Conclusion
2 Review
2.1 Introduction
2.2 General standard of review
2.3 The types of decisions subject to review
2.4 Proper forum
2.5 Procedure
2.6 Distinction between Rule 115 and Rule 89(C)
2.7 Determination of the ‘new fact’
New fact
Unknown and not discoverable through due diligence
Finding of lack of due diligence
2.8 Interaction with disclosure obligations
2.9 Assistance of counsel
3 Reconsideration
3.1 Introduction
3.2 Čelebići holding
3.3 Zigić holding
3.4 Differing voices from the Appeals Chamber
3.5 Conclusion
Further Material
Index
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Table of National Legislation
Edited By: Karim A. A. Khan, Caroline Buisman, Christopher Gosnell
From:
Principles of Evidence in International Criminal Justice
Edited By: Karim A. A. Khan, Caroline Buisman, Christopher Gosnell
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:
28 October 2010
ISBN:
9780199588923
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