Case No. IT-02-60-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Registrar:
Mr. Hans Holthuis

Decision:
7 November 2003

PROSECUTOR

v.

VIDOJE BLAGOJEVIC
DRAGAN JOKIC

__________________________________

DECISION ON PROSECUTION’S MOTIONS FOR ADMISSION OF EXPERT STATEMENTS

__________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic

 

    TRIAL CHAMBER I, SECTION A, (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seized of various motions and supporting submissions filed by the Office of the Prosecutor (“Prosecution”) related to the admission of evidence, in the form of written statements, reports or transcripts of prior testimony, from expert witnesses pursuant to Rule 92 bis of the Rules of Procedure and Evidence (“Rules”) and Rule 94 bis of the Rules.1

    THE TRIAL CHAMBER, HAVING CONSIDERED the oral and written submissions of the Parties,

    HEREBY RENDERS ITS DECISION.

    I. PROCEDURAL BACKGROUND

  1. On 17 February 2003, the Prosecution provided notice to the Trial Chamber of its disclosure of twenty expert reports2 to the defence for the Accused, Vidoje Blagojevic and Dragan Jokic,3 (collectively, “Defence”, and respectively, “Blagojevic Defence” and “Jokic Defence ”) and submitted the reports to the Trial Chamber.4 Simultaneously, in its 92 bis Motion the Prosecution sought to have admitted pursuant to Rule 92 bis (B), among other statements, six of the expert reports that were submitted with the 94 bis Notice,5 and the transcripts of the prior testimony of another seven experts in the case Prosecutor v. Radislav Krstic, Case No. IT-98-33-T (“Krstic Trial”) pursuant to Rule 92 bis (D), whose reports were submitted with the 94 bis Notice.6 In addition, the prior testimony of a Prosecution Analyst,7 for whom no expert report was provided, was submitted in the 92 bis Motion for admission pursuant to Rule 92 bis (D). The Prosecution’s submissions on the admission of evidence pursuant to Rule 92 bis has been discussed in a prior Trial Chamber decision and will not be elaborated upon in this Decision,8 beyond what is necessary to consider the witnesses discussed herein.

  2. At a Status Conference held on 27 March 2003 (“Status Conference”), the Pre-Trial Judge stated that the decision on the admissibility of statements or transcripts under Rule 92 bis or expert reports under Rule 94 bis of the Rules should be taken by the judges hearing the case.9

  3. The Trial Chamber received responses from the Defence to the 94 bis Notice10 and the 92 bis Motion11 on 31 March 2003, in accordance with the scheduling order for filings issued by the Pre-Trial Judge.12

  4. In Blagojevic’s 94 bis Response, the Blagojevic Defence submits that it wishes to cross-examine six of the experts,13 while it accepts the remaining expert witness statements. In Blagojevic’s 92 bis Response, the Blagojevic Defence accepts the expert reports or transcripts of former testimony without cross-examination of ten of the same experts that it accepts in Blagojevic’s 94 bis Response. The Blagojevic Defence objects to the admission of the former testimony of three witnesses submitted pursuant to Rule 92 bis (D) and one witness statement pursuant to Rule 92 bis (B).14

  5. In Jokic’s 94 bis Response, the Jokic Defence submits that seven of the proposed expert reports require live testimony and cross-examination,15 while it accepts the remaining expert reports in lieu of live testimony. In Jokic’s 92 bis Response the Jokic Defence requests that the Trial Chamber deny the 92 bis Motion in full; alternatively, if the Trial Chamber grants the 92 bis Motion, it requests that all witnesses will be called for cross-examination .

  6. In accordance with a request made by the Pre-Trial Judge at the Status Conference , on 22 April 2003, the Prosecution provided notice of disclosure to the Defence of an additional expert report16 pursuant to Rule 94 bis, and of an outline of the expected report and testimony of another expert.17 It also disclosed one updated expert report18 and announced three more updated expert reports19 would be forthcoming.

  7. On the same day the Prosecution filed its 92 bis Reply, in which it again submits that no cross-examination is necessary for any of the witnesses proposed under Rule 92 bis of the Rules.20 It further requests that the expert reports that were listed in the 94 bis Notice, but had not been included in the 92 bis Motion, also be admitted under Rule 92 bis (B) without cross-examination.21 It exempts from this request those experts who it had proposed to call as live witnesses .22

  8. On 30 May 2003, the Prosecution filed its 30 May 94 bis Notice, to which it attached two updated expert reports.23 In “Dragan Jokic’s Response to the Prosecution’s Notice of Disclosure of Expert Witness Statements under Rule 94 bis,” filed on 30 June 2003, the Jokic Defence accepted the two updated expert reports to be admitted into evidence without calling the experts to testify in person. The Blagojevic Defence did not file a response .

  9. Following the guilty plea of former co-accused Momir Nikolic, the Prosecution requested leave to delete three of the experts24 from its witness list,25 and this request was granted by the Trial Chamber on 25 June 2003.26

  10. On 23 June 2003, the Prosecution notified the Trial Chamber of the disclosure of a previously announced military expert report.27

  11. On 23 July 2003, the Trial Chamber held a hearing concerning the status of the expert reports (“Hearing”) and sought specific reasons from the Defence as to their objections to certain expert reports or their concrete reasons for requiring certain expert witnesses to be called for cross-examination. At the Hearing, the Blagojevic Defence objected to the recently disclosed military expert report28 and gave reasons for its objection to some of the previously submitted expert reports and its request to cross-examine these experts.29 The Prosecution restated its request that the transcript testimony of Demographer Helge Brunborg be admitted under Rule 92 bis (D) while not objecting to calling him for cross-examination regarding his qualifications and his updated report.30 The Prosecution further promised to revisit the expert report of firearm examiner Martin Ols.31

  12. The Jokic Defence stated during the Hearing that it changed its position in relation to the witnesses proposed under Rule 92 bis, as presented in Jokic’s 92 bis Response,32 and no longer objects to the admission of the proposed Rule 92 bis (D) former testimony of expert witnesses from the Krstic Trial,33 with the exception of the Prosecution Analyst, whom it still seeks to cross-examine .34 It also objected to the recently disclosed military expert report.35 The Jokic Defence further informed the Trial Chamber that it had agreed with the Prosecution to revisit five expert witnesses.36

  13. On 23 July 2003, the Prosecution disclosed a new expert report under Rule 94 bis.37 The Blagojevic Defence accepts this report,38 while the Jokic Defence requests the expert to be called for cross-examination.39 On 28 July 2003, the Jokic Defence further informed the Trial Chamber that it continues to seek live testimony and cross examination of two of the five expert witnesses it had revisited, irrespective of their testimony being offered under Rule 94 bis or 92 bis of the Rules.40

  14. In its Motion to Amend Witness List, filed on 3 September 2003, the Prosecution requests leave to withdraw three experts from its witness list.41

  15. Finally, on 10 October 2003 the Prosecution provided notice of disclosure of three additional expert reports42 under Rule 94 bis.43

    II. APPLICABLE LAW

  16. Rule 92 bis of the Rules (“Proof of Facts other than by Oral Evidence ”) provides, in relevant part:

    (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

    (i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:

    (a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;

    (b) relates to relevant historical, political or military background;

    (c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;

    (d) concerns the impact of crimes upon victims;

    (e) relates to issues of the character of the accused; or

    (f) relates to factors to be taken into account in determining sentence.

    (ii) Factors against admitting evidence in the form of a written statement include whether :

    (a) there is an overriding public interest in the evidence in question being presented orally;

    (b) a party objecting can demonstrate that its nature and source renders it unreliable , or that its prejudicial effect outweighs its probative value; or

    (c) there are any other factors which make it appropriate for the witness to attend for cross-examination.

    (B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person’s knowledge and belief and

    (i) the declaration is witnessed by:

    (a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or

    (b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose ; and

    (ii) the person witnessing the declaration verifies in writing:

    (a) that the person making the statement is the person identified in the said statement ;

    (b) that the person making the statement stated that the contents of the written statement are, to the best of that person’s knowledge and belief, true and correct ;

    (c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and

    (d) the date and place of the declaration.

    The declaration shall be attached to the written statement presented to the Trial Chamber.

    […]

    (D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.

    (E) […] 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.44

  17. Rule 94 bis of the Rules (“Testimony of Expert Witnesses”) provides :

    (A) The full statement 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.

    (B) Within thirty days of disclosure of the statement of the expert witness, or such other time prescribed by the Trial Chamber or pre-trial Judge, the opposing party shall file a notice indicating whether:

    (i) it accepts the expert witness statement; or

    (ii) it wishes to cross-examine the expert witness; and

    (iii) it challenges the qualifications of the witness as an expert or the relevance of all or parts of the report and, if so, which parts.

    (C) If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.

    III. DISCUSSION

  18. Through its various motions and submissions, the Prosecution has submitted most of the reports of the expert witnesses whom it does not seek to call as live witnesses under both Rule 94 bis and Rule 92 bis (B) or (D) of the Rules. It offered during the Status Conference that it filed the expert reports under Rule 94 bis to determine whether the Defence object, and, barring an objection, thereby have the reports admitted; the submission of the reports or former testimony under Rule 92 bis was simply “another means” of having certain reports or former testimony from the Krstic Trial admitted.45 The Trial Chamber notes that the Defence has offered no submissions on the applicability of Rule 92 bis versus Rule 94 bis to expert statements.

    1. Admission of Evidence of Expert Witnesses pursuant to Rule 94 bis of the Rules

  19. Rule 94 bis of the Rules is the general Rule dealing explicitly with expert witnesses. The Trial Chamber agrees with the Trial Chamber in the Prosecutor v. Stanislav Galic case that an expert is “a person whom by virtue of some specialised knowledge, skill or training can assist the trier of fact to understand or determine an issue in dispute”46 meaning an issue or allegation upon which the Trial Chamber must make a determination or finding . The Trial Chamber notes that one of the distinctions between an expert witness and a fact witness is that due to the qualifications of an expert, he or she can give opinions and draw conclusions and present them to the Trial Chamber. The Trial Chamber endorses the view of the Galic Trial Chamber that “an expert witness is expected to give his or her expert opinion in full transparency of the established or assumed facts he or she relies upon and of the methods used when applying his or her knowledge, experience or skills to form his or her expert opinion.”47 Rule 94 bis (A) provides a timetable for disclosure of expert witness statements and Rule 94 bis (B) requests the opposing party to respond in reaction to the disclosure of an expert witness statement.

  20. The Trial Chamber finds that standard practice within the Tribunal has been to tender and admit expert reports through Rule 94 bis.48

    2. Application of Rule 92 bis to expert witnesses in light of Rule 94 bis

  21. Rule 94 bis already existed when Rule 92 bis was introduced. The adoption of Rule 92 bis opened the possibility for the admission of written statements other than only expert witness statements, when these statements go to other than the acts and conduct of the accused. As Rule 92 bis (A)( i)(b) and (c) provide for the admission of a written statement in which the evidence in question “relates to relevant historical, political or military background” or “consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates,” it appears to encompass evidence that is often subject of expert testimony. In this respect, the two Rules therefore show an overlap. Rule 94 bis is distinct from Rule 92 bis, however, as it provides for a strict procedure for the tendering of expert witness statements, and in addition, Rule 94 bis (B) (iii) invites the opposing party to indicate if it challenges the qualifications of the witness as an expert, which again stresses the distinction between the evidence of experts and non-experts.

  22. The question before the Trial Chamber is therefore whether Rule 92 bis also applies to expert witnesses or whether Rule 94 bis is an exclusive provision dealing with expert witnesses.

  23. The Appeals Chamber, in its decision of 7 June 2002 in the case Prosecutor v. Stanislav Galic,49 dealt with the application of Rule 92 bis to expert witnesses. The issue before the Appeals Chamber was the admissibility of the written statement of a deceased expert under Rule 92 bis (C). The Appeals Chamber noted that Rule 94 bis has two separate functions. One function is to provide a timetable for the disclosure of expert witness statements separate to the one under Rules 65 ter and 66 (A) (ii). The other function is, in contrast to the provisions in Rules 65 ter and 66 (A) (ii), to require the opposing party to react to the expert statement , once it has been disclosed, and, depending upon whether the opposing party wishes to cross-examine the expert, to provide for the admission of the expert statement without calling the expert witness to testify.50 The Appeals Chamber therefore found that there is a distinction for experts versus non-experts.51

  24. The Appeals Chamber further held, however, that the application of Rule 92 bis to expert witnesses is not inconsistent with Rule 94 bis. It found that Rule 92 bis provides explicitly for the admission of a written statement that “relates to relevant historical, political or military background”, which is often the subject of expert evidence.52 Finally, the Appeals Chamber concluded that “[t]here is nothing in either Rule which would debar the written statement of an expert witness, or the transcript of the expert’s evidence in proceedings before the Tribunal, being accepted in lieu of his oral testimony where the interests of justice would allow that course in order to save time, with the rights of the other party to cross-examine the expert being determined in accordance with Rule 92 bis.”53

  25. The Trial Chamber therefore finds that in light of the Galic Appeals Decision expert witness statements are generally admissible under Rule 92 bis of the Rules, provided the other requirements of Rule 92 bis are satisfied. However, the Trial Chamber notes that the Galic Appeals Decision dealt with a particular situation i.e. the admission of the statement of a deceased expert and only Rule 92 bis (C) contains a specific provision for the admission of statements of deceased witness.

  26. Rule 92 bis (E) provides explicitly for the Trial Chamber to decide whether to admit the statement or transcript testimony of a witness, bearing in mind the general restrictions on admission of evidence under this Rule, and whether to require the witness to appear for cross-examination. On condition that the requirements set out in Rule 92 bis (A) - (D) are met Rule 92 bis (E) therefore provides the Trial Chamber with full discretion. Turning to Rule 94 bis (C) it reads: “[i]f the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.” The Trial Chamber finds that the argumentum e contrario of the provision of Rule 94 bis (C) is that in cases where the opposing party does not accept the statement of the expert witness on grounds not to be considered unreasonable, the statement can only be admitted into evidence after the expert had been called and has testified in person.

  27. The Trial Chamber finds that Rule 94 bis (C) is a specific provision regarding the admission of expert statements, and that its application cannot be avoided simply by tendering the statements under Rule 92 bis, where more discretion exists for the Trial Chamber. In cases in which the opposing party objects to the statement of the expert witness, the right of the opposing party to cross -examine the expert should not be determined without considering the argumentum e contrario of the provision of Rule 94 bis (C), even when deciding upon the admissibility of an expert statement under Rule 92 bis. The Trial Chamber therefore finds that in such cases the discretion provided for in Rule 92 bis (E) has to be exercised in light of Rule 94 bis (C).54

  28. As it is Rule 94 bis that provides for a clear procedure regarding the admission of expert reports which includes the right of the opposing party to challenge the qualifications of a proposed expert witness the Trial Chamber therefore considers Rule 92 bis as lex generalis for the admission of witness statements and Rule 94 bis as lex specialis for expert witness statements. Therefore , the Trial Chamber will accept reports tendered both under Rule 92 bis ( B) and Rule 94 bis under Rule 94 bis.55

    3. Analysis of the proposed 94 bis and/or 92 bis expert witnesses

  29. The Trial Chamber first establishes that it is satisfied on the basis of the curriculum vitae attached to the expert reports that the authors of said reports qualify as experts, as they show that the authors have specialised knowledge, skill or training to provide the information contained therein.56

  30. The military analyst Richard Butler and the investigator Dean Manning are live witnesses whose reports were exclusively submitted pursuant to Rule 94 bis . Richard Butler’s reports deal with the Army of Republika Srpska (“VRS”) Brigade Command Responsibility and information allegedly linking the VRS to the crimes committed in the Srebrenica ‘safe area’ in July 1995.57 Dean Manning’s reports provide a summary of the forensic evidence regarding the execution points and mass graves. The Trial Chamber finds these reports to be highly relevant to the case and admissible under Rule 89 and its Guidelines on the Standards Governing the Admission of Evidence.58 The Defence will have the opportunity to cross-examine Richard Butler and Dean Manning during their testimony before the Trial Chamber.

  31. The expert report of General Patrick Cordingley, who also is proposed as viva voce witness, was submitted only pursuant to Rule 94 bis. The report , which primarily deals with the military command and control in the VRS and VRS brigade command responsibility, specifically in the Zvornik and Bratunac Brigades , is structured in a question-answer format. General Cordingley provides an interpretation of documents presented to him basing his answers only on his long training and command experience in the British Army and NATO forces. The Trial Chamber finds General Cordingley’s submissions appropriate only to evaluate his qualifications. In light of the information provided through Richard Butler’s report on the VRS Brigade Command Responsibility the Trial Chamber is not satisfied of the relevance and probative value of General Cordingley’s report. The Trial Chamber finds, however, that there may be relevant information that General Cordingley can provide during his live testimony, including certain information contained in his report, and therefore, allows the Prosecution to maintain him on its witness list.

  32. The Prosecution requests leave to withdraw Martin Ols from the 92 bis witness list, but will move for admission of his ballistic expert report during the live testimony of Dean Manning.59 The Defence and the Trial Chamber will have the opportunity to raise any issues arising from the Martin Ols report with Dean Manning during his testimony; depending on whether any clarifications are necessary following the live testimony of Dean Manning, the Trial Chamber will order the Prosecution to call Martin Ols to address these points before deciding on the admission of his report.

  33. In its Motion to Amend Witness List, the Prosecution requests leave to remove from its witness list W.P.F. Fagel and C.H.W. Ten Camp; and the report “Examination of Stamp Impressions”, dated 9 May 2001, written by J.A. de Koeijer. The reports of W.P.F. Fagel, C.H.W. Ten Camp and J.A. de Koeijer all deal with one Krstic Trial exhibit that establishes the date that General Krstic took over the command of the Drina Corps. The Prosecution submits that it intends to introduce and lay the foundation for this exhibit during trial and that it may only resubmit the said expert reports in the event that the Defence challenge the admissibility of this document.60 The Trial Chamber therefore finds the request for leave to withdraw the expert reports appropriate and grants the motion.

  34. The Accused object to the admission of the transcript testimony of the Prosecution Analyst, submitted pursuant to Rule 92 bis (D).61 The Prosecution Analyst, who worked on the Prosecution’s intercept project, compiling the intercept database, testified during the Krstic Trial in regard to the accuracy, authenticity and reliability of the communication intercepts. She described in her testimony the different factors being considered to determine the reliability of the intercepts62 and found the intercepts to be “genuine” and “absolutely reliable”.63 The Trial Chamber is satisfied of the relevance and probative value of this transcript testimony to the current proceedings. It is further satisfied that this testimony does not go to proof the acts and conduct of the accused.64 In considering whether the expert shall be called pursuant to Rule 92 bis (E) to appear for cross-examination, the Trial Chamber refers to its first decision on the admission of witness statements pursuant to 92 bis laying out the relevant criteria.65 The Trial Chamber has to assess whether the testimony goes to proof of a critical element of the Prosecution’s case against the Accused and whether the cross-examination of the witness in the Krstic Trial dealt adequately with the issues relevant to the defence in the current proceedings.66 The Trial Chamber finds that it is not necessary to call the Prosecution Analyst for cross -examination as the Defence has not identified any issues concerning the accuracy , authenticity and reliability of the communication intercepts which were not addressed during the examination, cross-examination and questioning by the judges in the Krstic Trial.

  35. The Accused do not object to the admission of the statements and transcript testimony of John Clark, William Haglund, Christopher Lawrence, Richard Wright and José Pablo Baraybar submitted pursuant to 94 bis and 92 bis (D).67 This expert evidence deals with exhumations of mass graves and forensic examination to determine the gender, age and cause of death of the exhumed people from these mass graves. The Trial Chamber is satisfied of the relevance and probative value of these reports and transcripts to these proceedings. The Trial Chamber is further satisfied that none of the information contained in the statements or transcripts dealing with forensic evidence relates to the acts and conduct of the accused as charged in the Indictment. It further finds that the transcript testimonies presented to the Trial Chamber pursuant to 92 bis (D) provides together with the reports submitted under Rule 94 bis a complete picture of the expert evidence.

  36. The Blagojevic Defence objects to the admission of the demographic expert reports of Helge Brunborg pursuant to 94 bis and 92 bis (D). The Blagojevic Defence claims that Helge Brunborg might not be objective as he worked for the Prosecution as an “in-house expert”.68 It argues that Helge Brunborg’s demographic report and its updated version will be used by the Prosecution to prove genocide.69 The Blagojevic Defence further asserts that it needs to cross-examine Helge Brunborg because he was not thoroughly cross-examined during the Krstic Trial and an updated report has been submitted.70 The Prosecution does not object to calling the witness for cross-examination regarding his qualifications and his updated report, but argues that the original report is appropriate for admission.71

  37. The Trial Chamber finds Helge Brunborg’s reports on the number of missing and dead from Srebrenica highly relevant to these proceedings and having probative value. The Trial Chamber is further satisfied with the qualifications of Helge Brunborg as expert as he meets the criteria set out above, which includes his specialisation in demography. The Trial Chamber rejects the Blagojevic Defence argument that simply because Mr. Brunborg worked with the Prosecution he may not be considered as an appropriate person to be called as an expert and must be viewed as lacking objectivity;72 the Trial Chamber will take into account all relevant factors of this witness when it assesses the evidentiary value of his reports. The reports do not go to prove the acts and conduct of the Accused.73 The Trial Chamber therefore finds both reports together with the transcript testimony appropriate for admission . Regarding whether Helge Brunborg shall be called for cross-examination pursuant to Rules 94 bis (C) and 92 bis (E) the Trial Chamber holds that the grounds provided by the Blagojevic Defence are not to be considered unreasonable as the Prosecution stated that it may use the reports to prove genocide and the Defence Counsel in the Krstic Trial was in fact not able to review all submissions before his cross-examination.74 In addition, the updated report on which the witness was not cross-examined yet cannot be seen separated from his initial report. The Trial Chamber therefore finds that Helge Brunborg shall be called for cross-examination on both reports.

  38. The accused do not object to the admission of the reports of A.D. Kloosterman , Freddy Peccerelli, Anthony Brown, S.E. Maljaars and J.A. de Koeijer75 which are submitted pursuant to 94 bis and 92 bis (B).76 The Trial Chamber notes that there is no reason for these reports to be submitted under Rule 92 bis, wherefore it is considering them only under the lex specialis Rule 94 bis. These reports provide forensic evidence on excavations , exhumations and examination of blood, textile and soil samples from different mass gravesites and alleged execution points; and the analysis on alterations made in one document. The Trial Chamber is satisfied of the relevance of these reports to these proceedings and their probative value. The Trial Chamber does not find it necessary to call these experts to testify in person as the reports are clear and comprehensive.

  39. The Jokic Defence requests to call expert Michael Maloney for cross-examination , who co-authored a report with expert Michael Brown on the collection of blood and tissue samples from two alleged execution sites, which was submitted pursuant to Rules 94 bis and 92 bis (B). The Trial Chamber notes that there is no reason for the report to be submitted under Rule 92 bis, wherefore it is considering the report only under the lex specialis Rule 94 bis . The Trial Chamber finds the report relevant and of probative value. The Jokic Defence based its request for cross-examination of Michael Maloney on the grounds that Michael Maloney and Michael Brown had personally dealt with Jokic and have personal information about him.77 The Trial Chamber therefore does not find this request being related to the substance of the expert report and as such not reasonable.

  40. The expert report of handwriting expert Kate Barr, which was submitted pursuant to Rule 94 bis deals with the question of whether Dragan Jokic wrote entries in the Unofficial Duty Officer’s Log Book of the Zvornik Brigade up to the date of 15 July 1995. The Jokic Defence seeks to cross-examine Kate Barr.78 As the report goes to prove entries made by Dragan Jokic into the unofficial Duty Officer’s Log Book of the Zvornik Brigade during the “critical period”, as specified in the Indictment, and as the Trial Chamber needs more information on the conclusion drawn by the expert in order to assess her findings, The Trial Chamber requests Kate Barr to be called to testify in person.

  41. The latest expert reports submitted pursuant to Rule 94 bis are two further reports on excavations from expert José Baraybar79 and a report on the examination of evidence from one alleged execution site from expert Michael Hedley.80 The Chamber is satisfied of the relevance and probative value of the reports. As the Defence does not object to these reports81 and the Trial Chamber finds them comprehensive it holds them admissible under Rule 94 bis.

    IV. DISPOSITION

  42. The Trial Chamber ORDERS the deletion of experts W.P.F. Fagel and C. H.W. Ten Camp from the witness list; of expert Martin Ols from the 92 bis witness list and the deletion of J.A. de Koeijer’s report “Examination of Stamp Impressions“, dated 9 May 2001, from the list of submitted expert reports;

  43. Pursuant to Rule 94 bis of the Rules, the Trial Chamber ADMITS the reports of Richard Butler, Dean Manning, A.D. Kloosterman, Freddy Peccerelli, Anthony Brown, S.E. Maljaars, Michael Brown, Michael Maloney, José Baraybar82, J.A. de Koeijer83 and Michael Hedley;

  44. Pursuant to Rule 92 bis (D) of the Rules, the Trial Chamber ADMITS the transcript testimony of Stephanie Frease;

  45. Pursuant to Rules 94 bis and 92 bis (D) of the Rules, the Trial Chamber FURTHER ADMITS the expert reports and transcript testimonies of John Clark, William Haglund,84 Christopher Lawrence, Richard Wright, José Pablo Baraybar85 and Helge Brunborg;

  46. The Trial Chamber DENIES the admission of the expert report of General Patrick Cordingley; FURTHER DENIES at this stage the admission of the expert report of Kate Barr;

  47. The Trial Chamber, pursuant to Rule 94 bis and 92 bis (E), FURTHER ORDERS the Prosecution to call Helge Brunborg to be cross-examined by the Blagojevic Defence, and, pursuant to Rule 94 bis, to call Kate Barr to testify in person and be cross-examined by the Jokic Defence.

Done in French and English, the English version being authoritative.

Dated this seventh day of November 2003,
At The Hague
The Netherlands

_________________
Judge Liu Daqun
Presiding

[Seal of the Tribunal]


1 - Prosecution’s Notice of Disclosure of Expert Witness Statements under Rule 94 bis, dated 14 February 2003 and filed on 17 February 2003 (“94 bis Notice”); Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis and Incorporated Motion in limine to Admit Related Exhibits, dated 14 February 2003 and filed on 18 February 2003 (“92 bis Motion”); Prosecution’s Consolidated Reply Regarding its 14 February 2003 Motion for Admission of Evidence under Rule 92 bis and Incorporated Motion for Admission of Nine Additional Witness Statements under Rule 92 bis, filed on a partially confidential basis on 22 April 2003 (“92 bis Reply”); Prosecution’s Notice of Filing Updated Expert Materials, filed on 22 April 2003; Prosecution’s Notice Regarding Status of Updated Expert Reports, filed on 22 April 2003; Prosecution’s Notice of Disclosure of Expert Witness Statements under Rule 94 bis, filed on 30 May 2003 (“30 May 94 bis Notice”); Prosecution’s Notice of Rule 94 bis Disclosure of Expert Report of General Patrick Cordingley, filed on 23 June 2003; Prosecution’s Notice of Rule 94 bis Disclosure of Expert Report of Kate Barr, filed 23 July 2003 (“23 July 94 bis Notice”); Prosecution’s Motion to Amend Witness List and Incorporated Motion to Admit Evidence under Rule 92 bis, filed on a partially confidential basis on 3 September 2003 (“Motion to Amend Witness List”); and Prosecution’s Notice of Disclosure of Expert Witness Statements under Rule 94 bis, filed on 10 October 2003.
2 - 94 bis Notice. These are the expert reports of A.D. Kloosterman (DNA Analysis Expert), Johan de Koeijer (Forensic Document Analyst), Fredy Peccerelli (Anthropologist), Anthony Brown (Palynologist), Michael Maloney/Michael E. Brown (US Navy Special Agents), Martin Ols (Firearm Examiner), John Clark (Forensic Pathologist), William Haglund (Anthropologist), Christopher Lawrence (Forensic Pathologist), Richard Wright (Anthropologist), José Baraybar (Anthropologist), Helge Brunborg (Demographer), Peter French (Tape and Voice Analysis Expert), Robert Greenberg (BCS Phonetics Expert), Dean Manning (Report of Srebrenica Investigation), P. de Bruyn (Forensic Explosives Analyst), W.P. Fagel (Comparative Handwriting Analyst), Mark Mills (Seiko Watch Analyst), C.H.W. Ten Camp (Forensic Document Analyst), Richard Butler (Military Analyst). The Experts de Bruyn and Mills were subsequently withdrawn. See, Prosecution’s Motion for Leave to Amend Witness List, 27 February 2003.
3 - At the time that the 94 bis Notice was filed, two additional accused – Momir Nikolic and Dragan Obrenovic – were joined to this case; as they have subsequently been separated from these proceedings, the Trial Chamber will not address their submissions on this matter.
4 - The two reports of Richard Butler had been disclosed and submitted on 31 October 2002 and 1 November 2002. Additionally, a report on textile investigation written by S.E. Maljaars (forensic textile Analyst) was also submitted on 17 February 2003, although it was not listed in the 94 bis Notice.
5 - Anthony Brown, Michael Maloney/Michael E. Brown, Martin Ols, Johan de Koeijer, Fredy Peccerelli, A.D. Kloosterman.
6 - José Baraybar, Helge Brunborg, John Clark, Robert Greenberg, William Haglund, Christopher Lawrence and Richard Wright.
7 - Stephanie Frease on Prosecution investigation related to intercepts (“Prosecution Analyst”).
8 - First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior testimony pursuant to Rule 92 bis, 12 June 2003 (First 92 bis Decision).
9 - Status Conference, 27 March 2003, Transcript page (“T.”) 127.
10 - Vidoje Blagojevic’s Response to the Prosecution’s Notice of Expert Witness Statements under Rule 94 bis, (“Blagojevic’s 94 bis Response”) and Dragan Jokic’s Response to “Prosecution’s Notice of Disclosure of Expert Witness Statements under Rule 94 bis” (“Jokic’s 94 bis Response”).
11 - Vidoje Blagojevic’s Response to the Prosecution’s Motion Concerning Rule 92 bis, (“Blagojevic’s 92 bis Response”) and Dragan Jokic’s Response to “Prosecution’s Motion for Admission of Prior Testimony and Witness Statements Pursuant to Rule 92 bis and Incorporated Motion in limine to Introduce [sic] Related Exhibits” (“Jokic’s 92 bis Response”).
12 - Order for Filings Related to 92 bis and 94 bis, 20 February 2003.
13 - These were the experts Helge Brunborg, P. de Bruyn, Peter French, Robert Greenberg, Martin Ols and Richard Butler.
14 - All but one of these witnesses were objected to in Blagojevic’s 94 bis Response; the additional witness is Stephanie Frease.
15 - These were the reports of: Michael Maloney, Michael Brown, Peter French, Robert Greenberg, Dean Manning, Richard Butler, W.P. Fagel and C.H.W. Ten Camp.
16 - Expert report of Jurrien Bijhold (Photographic and Video Forensics Analyst).
17 - General Patrick Cordingley.
18 - Updated expert report of Richard Butler.
19 - Updated expert reports of John Clark, Dean Manning and Helge Brunborg. Following the Trial Chamber’s Decision on Prosecution’s Notice of Identification of Handwriting Analysis Expert and Motion for Extension of Time to File Reports of Handwriting Expert and Dean Manning, issued on a confidential basis on 7 July 2003, the updated expert report of Dean Manning was disclosed to the Defence on 25 August 2003.
20 - 92 bis Reply, para. 5.
21 - 92 bis Reply, para. 16. These were the reports of S.E. Maljaars, C.H.W. Ten Camp and W.P.F. Fagel. Additionally it asked for the report written by Jurrien Bijhold, of which disclosure pursuant to Rule 94 bis the Chamber was notified the same day, to be admitted under Rule 92 bis (B) without cross-examination.
22 - These were the experts Richard Butler, Dean Manning and Peter French. See, Prosecution’s Notice of Filing Additional Witness Information, filed confidentially on 22 April 2003.
23 - These were the reports of John Clark and Helge Brunborg.
24 - These were the experts Peter French, Robert Greenberg and Jurrien Bijhold.
25 - Prosecution’s Motion to Amend Witness List and Incorporated Motion to Admit Evidence under Rule 92 bis, filed confidentially on 10 June 2003.
26 - Decision on Prosecution’s Motion to Amend Witness List.
27 - Prosecution’s Notice of Rule 94 bis Disclosure of Expert Report of General Patrick Cordingley. Patrick Cordingley is proposed as live witness; See, Prosecution’s Motion to amend witness list and Incorporated Motion to Admit Evidence Under Rule 92 bis filed confidentially on 20 June 2003, and Prosecution’s Notice of Filing Revised Witness List, filed on 15 July 2003.
28 - It objected to the report of General Patrick Cordingley, both as to its form and in substance, and indicated that it wishes to cross-examine him. Hearing, T. 1448. See also, Vidoje Blagojevic’s Response to Prosecution’s Notice of Rule 94 bis Disclosure of Expert Report of General Patrick Cordingley, which was filed on 23 July 2003.
29 - The Blagojevic Defence restated that it objects to Richard Butler’s reports and want to cross-examine him. Hearing, T. 1448. The Blagojevic Defence also clarified why it objects to the expert reports of Helge Brunborg (initial report and updated report) and Martin Ols and wants to cross-examine the two experts. Concerning Helge Brunborg it put into question his objectivity on the ground that he worked for the Prosecution as an in-house expert. It further argued that his testimony is very critical to the genocide charge, that he was not thoroughly cross-examined in the Krstic Trial and that, particularly in light of the fact that he submitted an updated report, he needs to be cross-examined. As regards Martin Ols, the Blagojevic Defence challenged the relevance of his testimony. Hearing, T. 1438-1442; 1451-1454.
30 - Helge Brunborg, see Hearing (T. 1449).
31 - Hearing, T. 1442.
32 - The Jokic Defence argued originally in its 92 bis Response that because of the ‘joint criminal enterprise’ theory in the Indictment “[…] each and every witness statement and morsel of evidence proposed to be presented for consideration by the Trial Chamber becomes relevant to an ‘act and/or conduct of the accused’.” See, Jokic’s 92 bis Response, para. 9. However, during the Hearing, the Jokic Defence changed their submissions and limited its objections to specific reports. See, Hearing, T. 1442-1443.
33 - Hearing, (T. 1437-1438).
34 - Stephanie Frease, see Hearing (T. 1443). The Jokic Defence also stated that it wishes to cross-examine the proposed live witness experts Richard Butler and Dean Manning. Hearing, T. 1443.
35 - Expert report of General Patrick Cordingley: “[…] we ask that the Court order that a more formal expert report be issued and that, of course, it not be admitted in evidence in any form except if the witness will appear in Court to testify.” Hearing, T. 1450.
36 - These were the witnesses C.H.W. Ten Camp, W.P.F. Fagel, S. E. Maljaars, Michael Brown and Michael Maloney. Hearing, T. 1442. Concerning Michael Brown and Michael Maloney the Jokic Defence argued that they would have personal information regarding Dragan Jokic, wherefore it would require them for cross-examination. Hearing, T. 1442-1443. With regard to C.H.W. Ten Camp and W.P.F. Fagel the Jokic Defence argued that their forensic document analysis of one exhibit in the Krstic Trial that deals with Krstic’s takeover of the Drina Corps command would be irrelevant for this case. Hearing, T. 1445.
37 - Prosecution’s Notice of Rule 94 bis Disclosure of Expert Report of Kate Barr (Handwriting Expert).
38 - Vidoje Blagojevic’s Response to Prosecution’s Notice of Rule 94 bis Disclosure of Expert Report of Kate Barr, filed on 28 July 2003.
39 - Hearing, T. 1447.
40 - Dragan Jokic’s Notification to the Trial Chamber of his Intent to Cross Examine, Pursuant to Rule 94 bis, Michael Maloney and Dr. W.P.F. Fagel (“Jokic’s Notification”).
41 - The Prosecution asks to withdraw the expert reports of W.P.F. Fagel and C.H.W. Ten Camp from its 94 bis submission and the expert report of Martin Ols from its 92 bis list. The Prosecution still wants to introduce the expert report of Martin Ols as supporting material with the live testimony of expert Dean Manning. Regarding the expert J.A. de Koeijer the Prosecution wishes to withdraw his report “Examination of Stamp Impressions”, dated 9 May 2001, but not his report “Analysis of documents from the Tribunal for the Former Yugoslavia”, dated 15 November 1999, dealing with alterations made to entries contained in the Zvornik Brigade military police log book, wherefore expert J.A. de Koeijer is not requested to be removed from the witness list.
42 - Two further reports of José Baraybar (Forensic Anthropologist) and a report written by Michael Hedley (Scene of Crime Officer).
43 - Prosecution’s Notice of Disclosure of Expert Witness Statements under Rule 94 bis. The Prosecution informs the Trial Chamber in its notice of disclosure that José Baraybar’ s reports were disclosed to the Defence in English on 25 August 2003 and in BCS on 17 September 2003; and that Michael Hedley’s report was disclosed in both English and BCS on 30 September 2003. The Defence did not file responses. As the Defence did not file responses within 30 days of disclosure provided for by Rule 94 bis (B) the Trial Chamber interprets the Defence’s lack of filing responses that it does not object to these reports. In the “Prosecution’s Motion to Amend Witness List”, filed as well on 10 October 2003, the Prosecution states that the report of Michael Hedley (Scene of Crime Officer) is one of the reports on which Dean Manning’s summary reports are based on and that there is no need for Michael Hedley’s live testimony; instead his findings will be included in Dean Manning’s testimony.
44 - Rules 94 bis and 92 bis have to be applied together with the general provisions of Rule 89 which provides in relevant part: “[…] (C) A Chamber may admit any relevant evidence which it deems to have probative value. (D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. (E) […] (F) A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.”
45 - “[...] all our expert reports were filed under 94 to see if Defence would object or not object, and if they don’t, then the reports come in. And those experts that we felt did not necessarily go to the acts or conducts of the accused we filed under 92 bis as another means of allowing them into evidence based on, of course, the Trial Chamber’s view on the 92 bis ruling.” Status Conference, 27 March 2003, T. 134.
46 - Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, 3 July 2002, page 2 (“Galic Trial Decision”).
47 - Id.
48 - See, e.g., Galic Trial Decision and Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Decision on Prosecution’s Application for Admission of Written Statement of Dr. Berko Zecevic Pursuant to Rule 92 bis (A), 9 September 2003.
49 - Prosecutor v. Stanislav Galic, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002 (“Galic Appeals Decision”),
50 - Galic Appeals Decision, para. 39.
51 - “[i]n this sense, there is a clear distinction made in Rule 92 bis between expert witnesses and other witnesses.” Id.
52 - Galic Appeals Decision, para. 40.
53 - Id.
54 - The Galic Appeals Decision does not deal with the application of 92 bis (E), but only with 92 bis (C). Therefore it does not provide a finding in regard to the discretionary provision of Rule 92 bis (E) in light of Rule 94 bis (C).
55 - The Trial Chamber will decide on the admission of the expert reports exclusively submitted under Rule 94 bis only pursuant to Rule 94 bis and on the admission of transcripts of former witness testimony submitted exclusively under Rule 92 bis (D) only pursuant to Rule 92 bis (D).
56 - See, e.g., Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003.
57 - See “VRS Brigade Command Responsibility Report”, disclosed on 31 October 2002 and “Srebrenica Military Narrative (Revised) Operation “Krivaja 95”, disclosed 1 November 2002.
58 - Guidelines on the Standards Governing the Admission of Evidence, issued by the Trial Chamber on 23 April 2003.
59 - The Prosecution submits that the ballistic expert report of Martin Ols “[...] provides evidence linking primary and secondary graves by comparing shell casings found in those graves (thereby suggesting common perpetrators)” that supports Dean Manning’s testimony and report. See Motion to Amend Witness List, para. 2.
60 - Motion to Amend Witness List, para. 2.
61 - The Blagojevic Defence, in its 92 bis Response, opposed the admission of certain expert statements submitted under Rule 92 bis, including the transcript testimony of the Prosecution Analyst, “[…] on the basis that they are either unreliable as such, or that it would be in the interest of justice to have the witnesses appear for cross-examination.” See, Blagojevic’s 92 bis Response, para. 5.
62 - To assess the reliability of the intercepts they were looking for internal consistency by comparing the intercept printouts with the notebooks they received; they analyzed intercepts coming from different locations; they interviewed some of the intercept operators to understand the intercepting process and compared their findings with documents provided by third sources. See Krstic Trial, T. 8929-8932.
63 - Krstic Trial, T. 8938-8939.
64 - For a determination of the scope of Rule 92 bis see the Trial Chamber’s “First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis”, issued on 12 June 2003. In its Decision the Trial Chamber referred to the finding in the Galic Appeals Decision that Rule 92 bis (A) excludes a written statement which goes to proof of any act or conduct of the accused which the Prosecution relies upon to establish: (a) that the accused committed (that is, that he personally physically perpetrated) any of the crimes charged himself, or (b) that he planned, instigated or ordered the crimes charged, or (c) that he otherwise aided and abetted those who actually commit the crimes in their planning, operation or execution of those crimes, or (d) that he was a superior to those who actually did commit the crimes, or (e) that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or (f) that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts. See Galic Appeals Decision, para. 10.
65 - See, First 92 bis Decision.
66 - Id., para. 26.
67 - See, Blagojevic’s 94 bis Response, Blagojevic’s 92 bis Response, Jokic’s 94 bis Response and Jokic’s 92 bis Response. The Prosecution argues that “[f]or the most part, the testimony of these witnesses goes to forensic evidence of the mass executions, burials and reburials that took place after the fall of Srebrenica in July 1995” which, it asserts, is crime-base evidence not disputed by the Defence. The Prosecution submits that it therefore goes to proof of a matter other than the acts and conduct of the accused. The Prosecution further asserts that the testimony of the experts was subject to cross-examination during the Krstic Trial and that the qualifications of the experts and the reliability of their testimony were assessed by the Krstic Trial Chamber. See, 92 bis Motion, para 16.
68 - Hearing, T. 1438, 1451. See also, Hearing T. 1441: “And I want to stress again, he is a Prosecution’s paid employee at the time that he makes this report. Hardly someone that I would consider or anyone else would consider, at least from the Defence bar, an objective, qualified expert witness. He may be a qualified expert witness, but objective, that’s the part that I take exception to.”
69 - Id. T. 1440, 1451. The Prosecution stated that they may well use this report in making their arguments regarding genocide. (T. 1452)
70 - Hearing, T. 1440-1441. The Blagojevic Defence stresses that “[…] the attorney in that particular case [the Krstic Trial] indicated that he did not have all of the material prior to commencing the cross. I do believe it violates Mr. Blagojevic’s right to confrontation, especially if the Court, the Trial Chamber, is going to be relying on this particular report in making a decision whether there was genocide or complicity to commit genocide.” (T. 1452-1453)
71 - Hearing, T. 1449. The Trial Chamber notes that the Defences Counsel in the Krstic Trial did not claim being not well enough prepared for the cross-examination because of the late disclosure of documents. See, Krstic Trial, T. 4085.
72 - See, Galic Trial Decision, page 3: “the mere fact that the expert witness is employed by or paid by a party or a party related agency does not disqualify him or her to be called and testify as an expert witness.”
73 - See, Footnote 64.
74 - Krstic Trial, T. 4085.
75 - “Analysis of documents from the Tribunal for the Former Yugoslavia”, dated 15 November 1999.
76 - The Trial Chamber notes that during the hearing the Jokic Defence informed the Trial Chamber that it had agreed to revisit five witnesses: C.H.W. Ten Camp and W.P.F. Fagel, whom the Prosecution asks in its Motion to Amend witness list to be withdrawn from the witness list; S. E. Maljaars, Michael Brown and Michael Maloney. After reviewing these five witnesses the Jokic Defence, in Dragan Jokic’s Notification, only continues to require cross-examination of W.P.F. Fagel and Michael Maloney.
77 - Hearing, T. 1443.
78 - Hearing, T. 1447. “But I would also request that Ms. K. Barr be called as a witness in the courtroom. Once her document is analysed by our expert, then we would like to have the opportunity to cross-examine her on her techniques and the facilities that they use and authenticate its reliability or disprove the reliability of the report.”
79 - “Report on Excavations at Glogova 2, Bosnia and Herzegovina, 1999-2001” and “Report on Excavations at the Site of Zelani Jadar 6, Bosnia and Herzegovina 2001”.
80 - The Trial Chamber admits Michael Hedley to be added to the witness list.
81 - See, Footnote 43.
82 - These are the reports dealt with under para. 41.
83 - This is the report dealt with under para. 38.
84 - The Trial Chamber notes that it will only consider the factual findings in the exhumation reports of William Haglund while legal findings regarding the manner of death will not be taken into account.
85 - This is the report dealt with under para. 35.