Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4617

1 Friday, 28th November 1997

2 (9.30 am)

3 JUDGE JORDA: Please be seated. Mr. Registrar, could you

4 have the accused brought in, please?

5 (Accused brought in)

6 JUDGE JORDA: Good morning, everyone is all set, everyone

7 can hear me? The accused can hear me as well? Can you

8 hear me, General Blaskic as well? Fine. So we are here

9 for the first part of this morning's work.

10 This is an open session, relative to two motions,

11 one of them filed on 17th November by the Defence. This

12 is for reconsideration of the decisions taken by the

13 Chamber on the matter of admissibility of authentic

14 exculpatory evidence. There have been several documents

15 relating to that -- that was rather on 5th November

16 there, the Prosecution's response, then 30th September.

17 So there was a matter of admissibility there of the

18 hearsay testimony, and that also gave rise to several

19 documents, the latest one being quite recent.

20 Mr. Registrar, my translation does not have a date on

21 it.

22 THE INTERPRETER: I apologise, the first date was September

23 rather than November.

24 JUDGE JORDA: At all events, this latest one seems very

25 recent indeed. There has been a third motion issued

Page 4618

1 very recently, this is from the Prosecutor, this motion

2 seeks clarification of an order in which we required

3 advanced disclosure of the names of witnesses, this was

4 in advance of witnesses appearing in the trial. I do

5 not know if it is a matter of language, of translation

6 or whether it is a substantive matter, but at all events

7 we will not be addressing that now, as we said the other

8 day, because we do not have any reply on the part of the

9 Defence. I am sure that will be forthcoming soon, and

10 in December I am sure we will have occasion to address

11 that.

12 If there are no preliminary comments, I would

13 suggest we move right on, that we ask Mr. Hayman to

14 indicate briefly what he has to say with regard to the

15 motion of 17th September, and then the other documents

16 that the Defence have submitted and, of course, after

17 that we will hear the Prosecution. So it is Mr. Hayman,

18 is it? Please proceed, sir.

19 MR. HAYMAN: Thank you, Mr. President, your Honours, learned

20 counsel. Did your Honour indicate that you wished to

21 begin with the hearsay motion or the motion re

22 authentication?

23 JUDGE JORDA: No, I just took things in chronological

24 order. I thought the first motion dated from

25 17th September, so that is one way of tackling the

Page 4619

1 issue, but if you prefer beginning with hearsay, we

2 could do that as well, but I thought it would be the

3 motion for reconsideration of the ruling for exculpatory

4 documentary evidence.

5 MR. HAYMAN: If I could begin with the hearsay matter, your

6 Honour, there is maybe a certain logical order to it.

7 JUDGE JORDA: If you are introducing a point of logic, let

8 me consult fellow judges. No problem with us beginning

9 with the hearsay matter, so let us follow logic. If

10 there is no objection on the part of the Prosecution?

11 Fine Mr. Hayman, you have chosen the arm, so please go

12 right ahead. We will begin with hearsay then.

13 MR. HAYMAN: Thank you, Mr. President. I would like to ask

14 three questions and then briefly try and answer them

15 with respect to this motion.

16 The first question, it seems to the Defence, is:

17 is there a limit on the use and method of presentation

18 of hearsay or derivative evidence before this Tribunal?

19 Second: what sources of authority might the

20 Tribunal look to to answer that question?

21 Third: what specific rule or rules does the

22 Defence urge this Trial Chamber to adopt with respect to

23 the use and method of presentation for hearsay or

24 derivative evidence?

25 With respect to the first question, "is there a

Page 4620

1 limit on the use and method of presentation of hearsay

2 evidence before this Tribunal", the Prosecutor's

3 position, I think, fairly can be summarised that they

4 maintain all questions relating to hearsay and

5 derivative evidence go to weight and neither

6 admissibility nor the form of presentation; that is

7 hearsay evidence should simply come in, the way all

8 other evidence comes in, and the Trial Chamber will sort

9 it out and give each item of evidence the appropriate

10 weight.

11 While we the Defence do not doubt the great skills

12 and talents of this Trial Chamber in sorting evidence

13 and assigning weight, we suggest there are limits to the

14 method of presentation of hearsay, because no one,

15 including your learned honours, can sort and evaluate

16 evidence without the proper identifying information

17 concerning that evidence and the circumstances which

18 gave rise to that evidence.

19 We also maintain there must be a limit on the

20 substantive use of hearsay because, among other things,

21 of the constraints contained in Article 21(4)(e), which

22 assures the accused the right to cross-examine all

23 witnesses against him. No Trial Chamber, with all due

24 respect to Trial Chamber II, which has issued a written

25 ruling some time ago in the matter of hearsay, still no

Page 4621

1 Trial Chamber has clearly articulated, we believe, what

2 the limits on the use and method of presentation of

3 hearsay are before this Tribunal.

4 What Trial Chamber II has said is that a Trial

5 Chamber should look at a hearsay statement, and the

6 content of the statement and the circumstances in which

7 it was made in order to determine sufficient reliability

8 to make the statement probative evidence which is

9 necessary for the Tribunal to admit it under Rule 89(C),

10 which states that a Trial Chamber may admit evidence

11 found to have probative value. The corollary, of

12 course, is evidence without probative value should be

13 excluded because we are all wasting our time admitting

14 and studying and evaluating evidence that is not

15 probative.

16 We are not suggesting either a common law nor a

17 civil law approach to hearsay. We believe that the

18 specific procedures and practices before the Tribunal

19 must be looked to in order to find what regulation of

20 the use of hearsay is appropriate before this court.

21 Question two: to what authorities or sources

22 should this Tribunal look for guidance? There are

23 certainly existing bodies of national and international

24 law. Common law hearsay rules are well known, but

25 I will not dwell on them. I simply note that at least

Page 4622

1 in my jurisdiction, the United States, all hearsay rules

2 apply equally with respect to jury proceedings and court

3 proceedings or proceedings tried before professional

4 judges. There is no distinction between the hearsay

5 rules in my system between those two types of

6 proceedings.

7 The civil law approach is more interesting for me

8 as a common law lawyer, certainly stimulating, and a

9 dangerous topic for me to speak of given the company in

10 this courtroom, but I will try. First, the law of the

11 former Yugoslavia is of some importance, I think, and

12 under the 1976 Yugoslav law on criminal procedure, in

13 section 2.32(2), a witness is required to state the

14 source of his or her evidence, they are required to

15 identify if the testimony they are giving, in whole or

16 in part, is based on derivative or hearsay testimony,

17 and if it is derivative or hearsay in nature, the

18 testimony to be sure is admissible, but it is generally

19 suspect within the Yugoslav -- former Yugoslav law on

20 criminal procedure.

21 More vigorous limits on the use of hearsay appear

22 in the European Human Rights Convention in section

23 6(3)(D), which assures the accused the right to examine

24 witnesses against him. In this regard I note that this

25 section of the Convention is indeed very similar to

Page 4623

1 Article 21(4)(e) of the Tribunal Statute. So there is

2 guidance, but it is not clear. There is room for

3 interpretation and the Defence believes that this Trial

4 Chamber and this Tribunal indeed should be a model for

5 future international criminal law jurisprudence in this

6 area. Where else can the Tribunal look? We submit that

7 we should all look to sound fact-finding procedures in

8 light of the unique procedures used by this Tribunal.

9 The Prosecution urges that the first rule, if you

10 will, if you can call it a rule, would be that a witness

11 need not state with clarity whether their evidence is

12 direct, that is percipient, or whether it is derivative,

13 that is based on either oral hearsay or documents. To

14 date, no rule has been enforced in this courtroom

15 requiring what we would call a foundation to be laid,

16 where evidence is derivative; that is the witnesses

17 state that the testimony they are giving is derivative

18 and how they came about that evidence. Indeed, we have

19 seen in the Prosecutor's presentation that directs and

20 derivative evidence have been totally intermixed with

21 virtually no effort to distinguish.

22 I can recall for the court the testimony of

23 Abdulah Ahmic, not controversial testimony, I think,

24 that is not my point, I am not challenging the

25 substantive testimony, but we will recall, if the court

Page 4624

1 will, the 24 or 29 homes in the area of Ahmici where

2 Mr. Ahmic identified the victims by name and said they

3 were all killed on the 16th or whatever of April 1993.

4 On his direct examination, there was no foundation laid

5 for that testimony. In the cross-examination of my

6 colleague and co-counsel, it was revealed that Mr. Ahmic

7 gained that information not from being on the scene, as

8 you will recall he was hiding in a canal or a stream at

9 the time, but from reading a newspaper after he arrived

10 in Zenica.

11 There are a number of comments one could make

12 about that, but the basic comment is this court can read

13 newspaper articles as well as anyone else, better,

14 I would submit, and it is a more efficient and

15 appropriate way for the court to obtain that type of

16 information. But in any event, we think that a

17 foundation should be laid and that the record should be

18 clear as to where evidence is coming from and that the

19 burden for that, and I will get to this in a moment,

20 lies on the party putting that evidence forward. It is

21 not sufficient to simply say, "it is a matter for

22 cross-examination".

23 Why, though, is, in terms of the integrity of the

24 fact-finding processes of this Tribunal, why should

25 hearsay or derivative evidence be treated any

Page 4625

1 differently in terms of process? Well, several things

2 come to mind. One is the statements of the declarant,

3 the person making the out of court statement, were not

4 made under oath. The oath is an important feature of

5 any court proceedings, and here out of court statements

6 are not under oath. They are frequently casual

7 statements, they may be statements made in a humorous

8 light, they may be statements made under duress;

9 whatever they are, they are not under oath.

10 Second, out of court statements by a declarant are

11 made outside of the presence of your Honours, and you

12 are denied the opportunity to observe the demeanour of

13 the declarant.

14 Third, the court is denied the opportunity to

15 examine the declarant and put any clarifying questions

16 that it may have to the declarant.

17 Lastly fourth, and here I allude to the European

18 Human Rights Convention, as well as Article 21 of this

19 Tribunal's own Statute, where out of court statements

20 are admitted, the accused through his counsel is denied

21 the opportunity to cross-examine the declarant --

22 keeping in mind, of course, that the witness, if the

23 witness is repeating out of court statements of another,

24 the witness is not a witness to the matters being

25 related, but simply a messenger, because the witness,

Page 4626

1 the person who saw or heard and related verbally the

2 contents of what he or she saw or heard is not here,

3 they are somewhere else. They are not here to be

4 examined, challenged, questioned, observed as to matters

5 such as possible bias, ability to perceive the event or

6 even possible fabrication.

7 One reaches an extreme with respect to these

8 problems where the out of court declarant is not even

9 identified in the narrative being given by the witness,

10 which we have named so-called "anonymous hearsay". In

11 that circumstance, where the declarant is not even

12 identified, the accused, through his counsel, we cannot

13 investigate this speaker, this declarant. We cannot

14 even attempt coherently to impeach the statements of the

15 out of court declarant through other evidence or

16 testimony because we do not know the identity of that

17 declarant.

18 Which brings me to my third and last question on

19 this matter: what rule or rules in concrete terms does

20 the Defence urge this Trial Chamber to consider and, if

21 it finds it appropriate, adopt? First, we feel strongly

22 there should be a rule of procedure governing the

23 presentation of hearsay or derivative evidence. The

24 court and the parties must be informed when hearsay

25 evidence is given. It should not be mixed,

Page 4627

1 inadvertently concealed or hidden in and among other

2 evidence. A foundation needs to be laid for it, and it

3 is not sufficient to leave the "clarification" of

4 whether evidence is direct or hearsay to

5 cross-examination. Number one, I think that procedure

6 is not fair to the party conducting the

7 cross-examination, whether it is the accused or the

8 Prosecutor, and also as we have seen the need on the

9 part of the cross-examining party to go through a

10 witness's narrative and determine what is direct and

11 what is based on hearsay, and chase down all the

12 threads, it takes an incredibly long period of time to

13 do so, it is redundant, it is wasteful and it need not

14 be engaged in if there is a basic rule that a foundation

15 should be laid for hearsay testimony.

16 In this regard, what do the court and the parties

17 need to know at the time hearsay evidence is admitted or

18 considered? One, is the evidence hearsay? Is it direct

19 or is it derivative?

20 Two, if it is hearsay, who is the ultimate

21 declarant? That is, who is the out of court speaker,

22 and if it is double or triple hearsay, who are the

23 intermediate declarants or messengers that were involved

24 in the chain of statements which the witness in court is

25 recounting.

Page 4628

1 Third, what is the content of the statement? That

2 is, a clear statement of, "I was told X", not something

3 more general, but a clear statement of the content of

4 the out of court statement, so that it is not confused

5 and mixed with the witness's own opinions and

6 observations.

7 Fourth, we submit the court and the parties need

8 to know, to the extent it is known by the witness, when

9 and under what circumstances was the statement given.

10 Ideally, this will include some time and place and even

11 who else was present, but that may not be known in all

12 circumstances, and we are not suggesting a dogmatic or

13 doctrinaire rule in this regard, it should be a flexible

14 and practical rule.

15 What we are urging in terms of rule of process is

16 a good trial practice in any system. It goes to

17 establishing a foundation for a witness's testimony and

18 it will contribute to the integrity of the fact-finding

19 process before this Tribunal. If the Trial Chamber were

20 inclined to adopt this kind of rule, how might it be

21 implemented? Of course, that is a matter up to

22 your Honours, but we modestly propose that one method

23 would be when a witness is giving their initial

24 narrative, they be told, "please tell us what you saw

25 with your own eyes, what you experienced, and if you are

Page 4629

1 relating something that you heard from another person,

2 tell us that that was the case, so we will know". Then

3 the burden should be placed on the parties, when they

4 follow up on any derivative or hearsay testimony, to lay

5 a more specific foundation, for example, "madam, did you

6 have a conversation? When was it? What were you

7 told?". Not lengthy questions, not time consuming, but

8 they will contribute to the clarity of the fact-finding

9 process in this case and indeed other cases if adopted

10 in other matters.

11 If adopted, this kind of a procedural rule would

12 enable the court to identify any hearsay that it

13 believes lacks sufficient indicia of reliability to be

14 admitted. Even if the court declines to have any

15 threshold requirement for admissibility, this type of a

16 procedure would enable the court to have the facts, the

17 tools that it needs to give a proper weight to hearsay

18 evidence in your deliberations, which is critical to our

19 client and our client's interests. Without that

20 identifying information, how can any tryer of fact give

21 proper weight to derivative evidence? It will serve to

22 focus, if adopted, the witness's testimony on direct

23 examination on the matters that they were percipient to

24 and we believe would result in more efficient direct

25 examinations, and it will clearly shorten

Page 4630

1 cross-examination because the unfair burden on the

2 cross-examining party of revisiting all the facts

3 narrated and trying to sort out what was direct and what

4 was derivative will be, if not totally lifted, certainly

5 ameliorated.

6 There is though a second rule we urge this

7 Tribunal to consider, and that is not a rule of

8 procedure, but a rule of substance. That would be a

9 substantive rule that recognises to give meaningful

10 effect to Article 21(4)(e) and Rule 89(C). There will

11 be occasions when this court should exclude material

12 hearsay statements whose admission would violate either

13 one or both of these rules and what I mean is under Rule

14 89(C), if a statement does not have sufficient

15 reliability to be probative it should be excluded and

16 under Article 21, if admission of hearsay testimony

17 would violate the accused's right to cross-examine the

18 witness, the source, if you will (although that is not a

19 word that has specific meaning, as we will see later

20 this morning), that the court should have the power, we

21 should recognise the power of the court to exclude

22 hearsay statements under either or both of those rules,

23 and I submit the court has already recognised the

24 validity of exclusion of hearsay statements under

25 Article 21 when it excluded the letter from President

Page 4631

1 Izetbegovic that was proffered by the Prosecution in the

2 very first days of this case. I submit that letter was

3 excluded not because it lacked reliability under Rule

4 89(C), we had no reason to doubt it was not a letter

5 from President Izetbegovic, but it was excluded under

6 Article 21, because to deny the accused any ability to

7 cross-examine the declarant, the author of that letter,

8 would have been wrong.

9 So we urge the court to recognise that both of

10 these grounds can be, in appropriate circumstances, when

11 found in the court's exercise of its discretion,

12 legitimate grounds for excluding certain hearsay

13 evidence. We are not seeking that the court scrutinise

14 or catalogue hypothetical situations at all, we simply

15 think that recognition of these two rules, one

16 procedural and one substantive, will facilitate

17 addressing this issue in the days and months ahead.

18 Mr. President, your Honours, those are my comments

19 with respect to the hearsay matter. Thank you.

20 JUDGE JORDA: Thank you, Mr. Hayman. Well, maybe you could

21 add some points of clarification after we have heard the

22 arguments from the Office of the Prosecution.

23 Mr. Harmon, I assume?

24 MR. HARMON: Yes, good morning, Mr. President, good morning,

25 counsel.

Page 4632

1 During the course of this trial, the Defence has

2 initially urged the Trial Chamber to prohibit the

3 admission of hearsay evidence and the Trial Chamber

4 rejected this position. In its present motion, the

5 Defence makes a standing objection to the admission of

6 hearsay evidence without two requirements, the first

7 being a foundation for such hearsay and the second being

8 a judicial finding, I repeat a judicial finding of the

9 trustworthiness of the out of court statement in

10 question.

11 The Defence further contends that there can be no

12 evaluation of trustworthiness of hearsay statements

13 unless a number of conditions are met. The first is

14 that the court declarant, the out of court declarant is

15 identified, and the time, the place, the circumstances

16 and the content of the statement are specified by the

17 witness.

18 The Defence cites in its papers as an example of

19 the type of hearsay evidence it seeks to exclude the

20 testimony of Dr Fuad Zeco, who testified that while he

21 was detained at the veterinary station and at the

22 Dubravica school that multiple unidentified detainees

23 identified the locations where they were forced by the

24 HVO to dig trenches. The Defence seeks to impose

25 conditions akin to those in a common law system on the

Page 4633

1 Trial Chamber's ability to receive hearsay evidence and

2 to evaluate hearsay evidence. Neither the Rules of the

3 Tribunal nor the decision in the Tadic case required the

4 conditions that the Defence now seeks to impose on the

5 Trial Chamber.

6 This Trial Chamber is an unique institution, it

7 has its own rules. The uniqueness of the institution

8 and the rules have been repeatedly acknowledged and are

9 in fact acknowledged in the rules themselves, where they

10 say the Chambers are not bound by national rules of

11 evidence and any efforts by the Defence to impose upon

12 the Chamber common law rules and procedures should be

13 rejected.

14 The rule of evidence that is applicable to the

15 reception of evidence by the Trial Chamber is Rule 89,

16 and the relevant subpart of that Rule is 89(C), which

17 states:

18 "A Chamber may admit any relevant evidence that it

19 deems to have probative value."

20 The two requirements in 89(C) that are set forth

21 are (i) that the evidence be relevant and (ii) that it

22 have probative value. The rule does not expressly

23 require any specific type of foundation to be laid, nor

24 does it require a judicial finding of trustworthiness

25 for any particular type of evidence that it hears and

Page 4634

1 receives.

2 The Tadic decision, Mr. President and your Honours,

3 was an unanimous decision and it recognised that

4 reliability was a component of whether a piece of

5 evidence had probative value. The decision also said

6 that the Trial Chamber should pay attention to indicia

7 of reliability, such as whether a statement is

8 voluntary, truthful and trustworthy. The Trial Chamber

9 in the Tadic decision suggested that the judges who are

10 hearing hearsay evidence should consider the

11 circumstances under which the evidence arose and the

12 content of the statement, and we fully agree with the

13 decision in this respect.

14 In this case, Mr. President and your Honours, all

15 of the judges in this chamber and in other chambers of

16 the Tribunal are judges who are able to determine as

17 a result of their experience and their training whether

18 evidence is reliability and are able to determine what

19 weight should be given to the particular piece of

20 evidence. In making its determination of whether

21 certain hearsay is reliable, the court may consider,

22 among other factors, but not be bound by any particular

23 factor, the demeanour and truthfulness of a witness, the

24 extent to which a witness has any biases, the extent to

25 which the testimony, the hearsay testimony that the

Page 4635

1 witness is relating has been corroborated in part or in

2 whole by other witnesses, the totality of the evidence

3 in the course of the trial.

4 For example, Mr. President and your Honours, a

5 piece of hearsay evidence standing alone may appear to

6 be of dubious reliability, but when assessed in context

7 of all of the other evidence heard in the course of the

8 trial, it may in the minds of the tryers of fact be

9 assessed to be reliable in the final analysis. The

10 contrary is also true. A piece of hearsay evidence that

11 appears initially to be reliable at the outset may after

12 listening to the totality of the evidence become quite

13 obviously unreliable, or appear to be unreliable. In

14 that regard, Mr. President, Rule 89(D) is critical to the

15 issue raised by the Defence in this case. 89(D) states:

16 "A Trial Chamber may exclude evidence if its

17 probative value is substantially outweighed by the need

18 to ensure a fair trial."

19 Paragraph 19 of the Tadic opinion on hearsay

20 states, and I quote:

21 "Moreover, Sub-rule 89(D) provides further

22 protection against the prejudice to the Defence for

23 evidence that has been admitted as relevant and having

24 probative value it may later be excluded. Pursuant to

25 this Sub-rule, the trial judges have the opportunity to

Page 4636

1 consider the evidence, place it in the context of the

2 trial and then exclude it if it is substantially

3 outweighed by the need to ensure a fair trial."

4 Turning to the example cited by the Defence, the

5 testimony of Dr Fuad Zeco about being informed by

6 unidentified civilians that they were being forced to

7 dig trenches at numerous locations, it was clearly

8 hearsay. It has been received by this Trial Chamber.

9 Should it be excluded? The Prosecutor would

10 respectfully submit that it should not, for the

11 following reasons. The Trial Chamber heard from

12 Dr Zeco, a gentleman who was the local veterinarian in

13 Vitez, it had an opportunity to observe him, to assess

14 his demeanour and any possible biases he could have when

15 he identified nine locations where civilians were taken

16 by the HVO to dig trenches.

17 The Trial Chamber also heard from Dr Zeco that

18 during his period of captivity in both the veterinary

19 station and in the Dubravica school, he had an unique

20 opportunity to hear from fellow captives who had been

21 taken to dig trenches. While in captivity,

22 Mr. President, he testified that it became clear to him

23 that many of the Muslim men who were being taken to dig

24 trenches were being repeatedly taken out to dig trenches

25 and they were bordering on, and in many cases were

Page 4637

1 exhausted and as a result of that, he and two other men

2 went to the commander of the Dubravica school, the HVO

3 commander, and suggested a procedure whereby the Muslims

4 themselves would select and identify the men who were

5 needed to be taken out to dig trenches. That would

6 essentially spread the pain more equally.

7 You have heard, Mr. President, from other

8 witnesses -- from another witness that the Croat

9 commander came into the Dubravica school and at one

10 point requested that the Muslims identify men who were

11 needed to dig trenches. That corroborated what Dr Zeco

12 had to say. The Chamber has also heard from various

13 civilians themselves who were taken to various different

14 locations to dig trenches, and the court has heard that

15 civilians were taken on a daily basis by the HVO from

16 the Dubravica school, from the cinema, from the vet

17 station to a variety of locations where trenches were

18 dug.

19 The court will also hear additional evidence from

20 other civilians who were forced to dig trenches and we

21 will present evidence in the course of this trial about

22 the routine HVO practice of using civilians to dig

23 trenches in various locations.

24 Under the Defence proposal, Mr. President and

25 your Honours, Dr Zeco's testimony about locations where

Page 4638

1 these civilians were forced to dig trenches should be

2 rejected, because he could not identify, four years

3 later, the specific individuals who told him about those

4 particular locations. The fact that Dr Zeco could not

5 specifically name the individuals who told him that they

6 were forced to dig trenches at these locations in the

7 context and the circumstances of his captivity, in light

8 of the other evidence adduced during the trial, suggests

9 that the hearsay statement is reliable and should be

10 considered by this Trial Chamber. What weight the Trial

11 Chamber attaches to it is wholly within the judgement of

12 the Trial Chamber and we respect your ability to make

13 those determinations.

14 Mr. President, I have nothing further to add on

15 this particular point. Our brief is clear and our

16 positions are articulated in it. Thank you very much.

17 JUDGE JORDA: Thank you.

18 Mr. Hayman, would you like to reply to that,

19 without restating your arguments, just touching on the

20 points raised by the Prosecution? If you care to do so,

21 please proceed, sir.

22 MR. HAYMAN: Thank you, Mr. President. Just for a moment.

23 With respect to the evidence of Dr Zeco on this point,

24 if one looks at what the good doctor related, and

25 compares it to the testimony of the direct witnesses,

Page 4639

1 witnesses who had direct knowledge of trench digging, we

2 in fact will find, and the court will, if it is material

3 in its deliberations, that Dr Zeco's information was in

4 large part not reliable. He identified locations that

5 have not been identified otherwise through direct

6 witnesses, and indeed some of the locations he

7 identified as being the sites of trench digging are on

8 the wrong side of the front-line at the time. So if

9 those anonymous hearsay declarations were truly material

10 to this court's deliberations, and I think they will not

11 be by the end of the case, if they were, we submit the

12 court's reliance on those anonymous hearsay, out of

13 court statements which we cannot possibly impeach or

14 investigate those declarants because we do not know who

15 they are, it would be error to rely on those for a

16 material purpose in your deliberations.

17 It is not a real issue, because I do not think

18 those statements will be material, but consider another

19 example. Just last week, Lieutenant Colonel Watters

20 testified of the opinions of an interpreter who was

21 present at a scene, the only evidence adduced, I submit

22 to date in this case, that has any proffered connection

23 to the accused's state of mind, and it is the out of

24 court opinion statements of someone as to whom it has

25 not even been shown is unavailable to testify, him or

Page 4640

1 herself, in a legal sense. I think that is a shame,

2 your Honour, that that evidence is in the record in this

3 case under those circumstances.

4 What I did not hear the Prosecutor address, and

5 I think it is telling, is why should there not be a

6 foundation for hearsay? Why should this court not know

7 when hearsay evidence is being put in? Hearsay should

8 not be slipped in and interwoven with other evidence, it

9 should be there on the table for the court to see what

10 it is and treat it in the way it deems appropriate.

11 That is my response, your Honour.

12 JUDGE JORDA: You have done, Mr. Hayman?

13 MR. HAYMAN: Yes, your Honour.

14 JUDGE JORDA: Fine, let me look towards fellow judges.

15 Judge Riad, you have any questions or points you would

16 like to make?

17 JUDGE RIAD: Good morning, Mr. Hayman.

18 MR. HAYMAN: Good morning, your Honour.

19 JUDGE RIAD: Just for my knowledge, you referred to Yugoslav

20 law and I just wanted to know, do you have any more

21 specific details about how they considered hearsay

22 evidence?

23 MR. HAYMAN: I do not, your Honour. I know that a witness is

24 required to state his or her source, and that it is

25 admitted and that it is generally viewed as suspect, but

Page 4641

1 perhaps Mr. Nobilo, these sections are in his mother

2 tongue, perhaps he can shed more light on that, your

3 Honour.

4 MR. NOBILO: Good morning, your Honours. According to the

5 legal system I come from, hearsay evidence is accepted

6 only exceptionally, if the court is unable to reach the

7 source from whom the witness obtained the information,

8 because if that person has relevant knowledge, then he

9 is the suitable person to be called as a witness, rather

10 than someone else who heard it from him. In the event

11 that that is not possible, then the witness must

12 indicate with precision who he heard it from, under

13 which circumstances and all the other circumstances that

14 may be of assistance in assessing the truthfulness of

15 that evidence. That is the substance of the rules

16 regarding hearsay evidence in the legal system I come

17 from.

18 JUDGE RIAD: Thank you, Mr. Nobilo.

19 JUDGE JORDA: Judge Shahabuddeen?

20 JUDGE SHAHABUDDEEN: Mr. Hayman, I was very interested in

21 your arguments. Do I understand you to be taking this

22 position: you are not attacking the principle that

23 hearsay evidence is admissible, you are directing your

24 fire to the limits of admissibility of that type of

25 evidence?

Page 4642

1 MR. HAYMAN: Yes, your Honour, exactly.

2 JUDGE SHAHABUDDEEN: Indeed, when I look at Rule 89(C) of

3 the Rules of court, read with 89(A), I think there is a

4 fair implication there favouring the view that hearsay

5 is admissible. Then let us look at the Statute, Article

6 21(4)(e) to which you have correctly referred. On the

7 footing that hearsay is in principle admissible, should

8 the Tribunal construe the right of examination there as

9 not necessarily equivalent to a right of confrontation

10 with the source from which the hearsay evidence

11 originally flows; would that be a correct view?

12 MR. HAYMAN: Well, I think to the extent Article 21 is based,

13 it appears, on the European Human Rights Convention

14 section, we know first of all that the European human

15 rights court has interpreted that provision of the

16 Convention to convey a right of confrontation and

17 cross-examination, either in court or at some other

18 time, and where it were the principal evidence upon

19 which a criminal court relies is statements upon which

20 the accused has not been able to exercise that right of

21 confrontation, the convictions have been overturned, and

22 we have cited those cases.

23 I agree that under 21(4)(e) the term "witness" is

24 used, which raises the question, who is the witness? If

25 a witness comes into court and relates a conversation in

Page 4643

1 which they obtained all their pertinent testimony from

2 someone else, are they the witness, or are they a

3 messenger? To give real meaning to 21(4)(e), should the

4 court view the witness, the person really offering the

5 proof, as the person who saw the event, made the

6 statement which is been merely conveyed to the court.

7 Our position is certainly that there has to be

8 something more than simply a right to examine the

9 witness who is present, because if all hearsay comes in

10 and there is no other limitation, then every fact, every

11 bit of testimony could be brought to this court by

12 messengers, the accused would have no opportunity to

13 actually confront and cross-examine the persons whose

14 observations, opinions and so forth lay the foundation

15 and form the structure for the Prosecutor's case, and

16 that is not a role model for future successful

17 international criminal jurisprudence, with all due

18 respect.

19 JUDGE SHAHABUDDEEN: I thank you. Let us look at this

20 aspect. On the footing that hearsay is in principle

21 admissible, is there an unlimited right of confrontation

22 under Statute 21(4)(e) with the original source of the

23 evidence?

24 MR. HAYMAN: It is not clear, your Honour, from the Statute

25 or the Rules. I think the court would be prudent to

Page 4644

1 adopt a balancing test, where a good number of

2 observations, hearsay observations that do not form, if

3 you will, the crux of the case, do not go to key

4 elements, such as the only evidence admitted to date

5 that might tend to bear on the accused's state of mind,

6 those general observations, the court might well find as

7 a result of a balance there is no violation of Article

8 21(4)(e); right, but as to others, I think there would

9 be, so I agree, it is not an all or nothing venture.

10 JUDGE SHAHABUDDEEN: So you would not take your thesis as

11 far as to rely on Statute 21(4)(e) as designed entirely

12 to ensure a right of confrontation?

13 MR. HAYMAN: I agree, I think you must read it in light of

14 Rule 89.

15 JUDGE SHAHABUDDEEN: Because if you did that, there would be

16 difficulty reconciling a competence to admit hearsay

17 evidence with an unlimited right of confrontation, would

18 there not?

19 MR. HAYMAN: There is, and that takes you to reliability and

20 protecting the core rights of the accused to confront

21 important evidence against him.

22 JUDGE SHAHABUDDEEN: On that basis, that hearsay evidence is

23 in principle admissible, would you have any observation

24 on the proposition that what Statute 21(4)(e) is

25 designed to give to a party, I think the Defence in this

Page 4645

1 case, is a right to examine the witness in the box, and

2 through him to attack the sources of any hearsay

3 evidence which he produces, with a view to questioning

4 the reliability of those sources, and to assisting the

5 Tribunal to place a proper evaluation on those sources.

6 MR. HAYMAN: I think that would be a dangerous

7 interpretation, and I think if that were the

8 interpretation, then this court should have admitted the

9 letter from President Izetbegovic, because Rule 21(4)(e)

10 would not have excluded it. I think 21(4)(e) has to

11 have something more than simply the right to examine the

12 messenger in the case of hearsay and derivative

13 evidence.

14 JUDGE SHAHABUDDEEN: Either there is an open-ended right of

15 confrontation or, if that right is a limited one, then

16 the right conferred by 21(4)(e) must be directed to

17 examining the witness in the box and attacking his

18 sources of information with a view to demonstrating to

19 the court that the hearsay evidence which he has given

20 is either not reliable or not probative. Is that a

21 possible reading, do you think?

22 MR. HAYMAN: Your interpretation, your Honour, is a clear

23 one. You take from the text a clear and strong

24 interpretation, but I would respectfully submit that if

25 the Prosecutor, if they brought in summary witnesses, if

Page 4646

1 they brought in their investigators to recount the

2 horrors and the tragedies we have heard of and did not

3 bring in original witnesses, particularly with no

4 showing of unavailability of those original source

5 witnesses, the court would put its foot down under Rule

6 21(4)(e) and say, "no, it is inappropriate, you are

7 treading on this man's basic rights under our Statute,

8 under the European Human Rights Convention and under

9 general principles in many national law systems".

10 JUDGE SHAHABUDDEEN: Last question. What I have a slight

11 difficulty with in your very interesting submissions is

12 this: if you concede that hearsay evidence is

13 admissible, is that wholly reconcilable with the view

14 that the witness referred to in 21(4)(e) of the Statute

15 includes the original source of the hearsay evidence and

16 is not limited to the person testifying before the

17 court?

18 MR. HAYMAN: I take your question as: if Rule 89 is a general

19 rule of admissibility and admission, then how can

20 21(4)(e) reach anyone other than the witness in the

21 box?


23 MR. HAYMAN: I think it has to, your Honour. If I am

24 stretching the words, it is a time-honoured tradition in

25 many, many courts and in jurisprudence in general that

Page 4647

1 this court and this Tribunal has an obligation to

2 protect the core rights of the accused, and if 21(4)(e)

3 is limited to messengers in the witness box I think this

4 court would not condone it and therefore I think there

5 should be a rule that should recognise that the court

6 has that power and that 21(4)(e) gives it that power,

7 and that is what we are urging you to do.

8 JUDGE SHAHABUDDEEN: Mr. Hayman, your arguments are very

9 lucid and I appreciate them. My mind is completely

10 open.

11 MR. HAYMAN: Thank you, your Honour.

12 JUDGE JORDA: Thank you, dear colleagues. Your questions

13 were quite relevant and I think you have cleared things

14 up to me to a large extent. But first a question to the

15 Prosecution. The testimony taken out of court, that

16 testimony, is it given under oath or not? I have

17 understood that it is not under oath, is it?

18 MR. HARMON: Mr. President, the statement that is made out of

19 court is not under oath. The statement of the

20 messenger, so to say, is under oath and is subject to

21 examination by the judges and by counsel as to the

22 circumstances under which the statement was made and the

23 reliability of the statement.

24 JUDGE JORDA: I am talking about the witness who comes here,

25 Dr Zeco for instance, when he made his statement, his

Page 4648

1 initial statement to your investigators, he made that

2 under oath, did he, is that right?

3 MR. HARMON: There is a declaration at the end of the witness

4 statements, yes, Mr. President. I am not sure it is

5 under oath, but there is a declaration attached to it

6 and he has come and every witness who comes before this

7 Chamber gives his or her testimony under oath.

8 JUDGE JORDA: Yes, fine. So we are talking about the prior

9 statement. We would not really call it an oath, so the

10 speaker, the witness, when he is in court, when he was

11 speaking with the Office of the Prosecution three or

12 four months earlier, was not under oath. I want to keep

13 going if I might, Mr. Hayman, but if you have a point of

14 clarification you would like to raise, go right ahead,

15 Mr. Hayman.

16 MR. HARMON: Mr. President, I do not mean to interrupt

17 counsel, but I can get the declaration. I am not

18 completely cognisant --

19 JUDGE JORDA: One second, you are interrupting Mr. Hayman who

20 is interrupting me. Let us be clear here. We are quite

21 open, but first let us hear the interruption of

22 Mr. Hayman, then we will hear the interruption by

23 Mr. Harmon and then I will come back to my question.

24 Just a matter of clarification, Mr. Hayman?

25 MR. HAYMAN: Yes, it might save time. When I referred to

Page 4649

1 statements not being under oath, I was referring to the

2 statements of the declarants. So for example, these

3 unidentified men in the Dubravica school who made

4 statements to Dr Zeco, their statements were not under

5 oath. As to prior statements of witnesses, I think

6 there is a declaration, but there is no penalty to it.

7 There is no exposure to any type of perjury or false

8 statement charge.

9 JUDGE JORDA: Fine. We can agree with that, Mr. Harmon?

10 MR. HARMON: Yes, Mr. President.

11 JUDGE JORDA: Fine, thank you. Now, Mr. Hayman, I have a

12 question for you. When you plan your cross-examination,

13 you have all the initial statements, that is on the

14 basis of the order by the court, and you do refer to

15 them, you cite them and you do confront the witness on

16 the basis of their contents, so you do elaborate a plan

17 when it comes to citing witnesses. There is nothing

18 hindering you -- this is my question: what would stop

19 you when it comes to a point you believe to be

20 important, when it comes to the rights you have under

21 Article 21(4)(e), why not have another witness come, or

22 even the same witness cited, with reference to Dr Zeco,

23 so that you could put questions to him on the

24 reliability of what he heard. There is nothing

25 hindering you from doing that, is there? Was that

Page 4650

1 question clear to you, Mr. Hayman, or would you like me

2 to spell it out a bit more?

3 You are entitled to cross-examination, both let us

4 take the example of Dr Zeco, Dr Zeco is there, so you

5 can confront him and have him say that that is only

6 hearsay evidence he is providing, and if you think that

7 the testimony is so important, or the witness is so

8 important in connection with the fact that it is hearsay

9 and that it is prejudicial to your client, what would

10 hinder you in three or four month's time, when you are

11 calling your own witnesses, to either have him come back

12 or call other witnesses that would show that his

13 testimony was not appropriate? So as I said, this is in

14 the context of Article 21(4)(e). You do have that

15 right, do you not?

16 MR. HAYMAN: We have the ability to try and recall witnesses

17 and bring in other witnesses. I think we have three

18 basic objections to the practice that is being followed

19 by the Prosecution now. One is there is no foundation

20 being laid, so hearsay is being concealed, if you will,

21 and I am not saying purposefully, but it is being

22 concealed in the overall narrative of the witness, no

23 attempt to sort it out and identify it is being made.

24 That puts an unfair burden on the cross-examining party,

25 because we all have limits to patience and this court is

Page 4651

1 going to have a limit to this patience when it comes to

2 recounting a narrative to try and sort out what is

3 direct and derivative, so we think that is unfair.

4 Second, where the declarants are anonymous, our

5 ability to go out and investigate and bring in other

6 witnesses who may be able to challenge those statements

7 is very difficult, because an anonymous declarant with

8 no time and place -- here we had a place, but we had a

9 period of days; very, very difficult to do, I would

10 submit, your Honour:

11 Lastly, if something is truly critical -- I hope

12 the court will not rely at all on the out of court

13 opinions of this interpreter that were related by

14 Lieutenant Colonel Watters, indeed for some of the

15 reasons we were able to elicit on cross-examination, but

16 with great difficulty, as the court will recall. There

17 is a point at which basic rights are violated. We are

18 simply asking the court, let us recognise that, so that

19 we have a framework for future discussions in addressing

20 these issues and these rights.

21 JUDGE JORDA: But what about Rule 89? Are you saying that

22 runs counter to the Statute? You are not going that

23 far, are you?

24 MR. HAYMAN: Counter to the Statute. I think that, your

25 Honour, one can look to Rule 89 to help understand and

Page 4652

1 interpret Article 21, and as Judge Shahabuddeen has

2 suggested and I agree with, Rule 89 strongly indicates

3 that the right in Article 21(4)(e) is not absolute, it

4 is not absolute. We agree with that, but I am not

5 suggesting that Rule 89 is invalid, I am suggesting that

6 this court should, indeed it must, give some teeth to

7 Article 21(4)(e), because if the rule is, any and all

8 hearsay comes in, there are no limits, then that is a

9 very dangerous precedent. We should not allow that.

10 JUDGE JORDA: This may well be my last question, Mr. Hayman.

11 Do you think the judges are able to make a distinction

12 between direct testimony and hearsay testimony?

13 MR. HAYMAN: If it is not properly identified in the

14 witness's testimony, no one can tell the difference,

15 your Honour. We will recall perhaps the testimony --

16 JUDGE JORDA: I am a bit surprised, quite frankly,

17 Mr. Hayman. All the legal systems throughout the world,

18 I do not want to make specific reference to my own, you

19 would be quite frightened away by my own. You should

20 not plead in France, if you were before a French court,

21 you would be quite unhappy there, but I think hearsay

22 testimony is something you can find practically

23 anywhere, it is a typical case. "Yes, I saw houses

24 burning, I saw the houses burning in Ahmici", let us

25 say, "I think they were set by the HVO", and then the

Page 4653

1 question is, "why do you believe that?", "well, I heard

2 someone say so"; it is hearsay. I think the judges can

3 make a distinction between what the witness is saying

4 and what the witness says he heard.

5 Of course, I am not going to touch now on matters

6 we will be raising in our deliberation, but we still

7 have the status conference coming up, but maybe it is

8 because we only rely on having witnesses present.

9 Perhaps we could work on a different basis, where the

10 Prosecution for now and the Defence later would be in

11 the position to corroborate, where we would not be

12 working just on the basis of testimony, but where we do

13 have witnesses as the basis, of course, we do have this

14 issue of direct and hearsay testimony.

15 I maybe overdo it when it comes to reading texts,

16 but I am very demanding and I think the texts say what

17 they say for the time being. That, of course, does not

18 hinder you, jurisprudence, playing its role in the

19 judges' working on that basis and taking our decisions,

20 but I am wondering, Mr. Hayman, whether you are not

21 asking for the judges to adopt something from your legal

22 system, which is not in the Statute and the Rules. The

23 Statute and the Rules do not say, "do not do common law,

24 do not do civil law", whatever. The judges are here to

25 work on the basis of a number of rules and establish

Page 4654

1 criminal responsibility.

2 I think Judge Riad wanted to put a question on

3 this point.

4 JUDGE RIAD: Thank you, Mr. Chairman. I just want to sum up

5 for myself. The real condition you are putting is some

6 kind of procedural one, when you said there should be a

7 method of implementation, when the witness should

8 indicate what is hearsay and what is direct. That is

9 really the very clear condition. The other conditions

10 you mentioned were some kind of directives to the

11 Tribunal when they consider their, let us say,

12 reliability of the hearsay. When you said there should

13 be a chain of declarants, a clear contest of the

14 statement, these are almost directives for the judges,

15 and not specific procedural conditions.

16 MR. HAYMAN: I think that is right, your Honour, although

17 where a witness knows the date and time and circumstance

18 of the statement, we think that should be elicited, it

19 should be a burden on the party putting the evidence

20 forward, because that is a more efficient way to get

21 that information on the table in front of your Honours

22 and the parties.

23 JUDGE RIAD: This would be a good thing to enlighten the

24 Tribunal.

25 MR. HAYMAN: Absolutely, and it will save time, because you

Page 4655

1 will not have the cross-examiners, which for the time

2 being are myself and Mr. Nobilo, revisiting all these

3 lengthy testimony to try and sort out, "what did you

4 know and what did you not know?", because I am sure we

5 have missed some. There are statements we have learned

6 in the final questions of cross-examination that they

7 were derivative and there are others I am sure we have

8 missed and this Tribunal will never know if certain

9 contents or certain items of evidence given were direct

10 or hearsay, and that is not good. We think it should be

11 put on the table so the court knows what evidence it has

12 and that will lead to a more reliable fact-finding

13 process.

14 JUDGE RIAD: You have expressed clearly that there should be

15 an indication of what is derivative and what is direct.

16 That should be done in court. The other has to be done

17 by the judges and you are advising them that they should

18 take care of that.

19 MR. HAYMAN: I would submit that once a procedural rule is

20 implemented, then the Tribunal will be in a position to

21 implement whatever substantive rule on hearsay it finds

22 appropriate, but without a procedural rule to identify

23 hearsay, then there can be no meaningful test for

24 reliability, there can be no meaningful test to afford

25 whatever Article 21 rights there are that are implicated

Page 4656

1 here.

2 JUDGE RIAD: Thank you very much.

3 MR. HAYMAN: Thank you.

4 JUDGE SHAHABUDDEEN: One last question, Mr. Hayman. Your

5 arguments are so engaging that I am tempted to put one

6 last question to you. If you accept that hearsay

7 evidence is in principle admissible, then would you

8 think it right to leave it to the judges to apply a

9 customary rule of evaluation which would take into

10 account, for example, whether the particular hearsay

11 evidence is firsthand hearsay, or second hand hearsay, or

12 third hand hearsay; you know judges would normally take

13 account of that aspect. Would you think the judges

14 might be left to take that into account?

15 MR. HAYMAN: If the hearsay has been identified as such, and

16 the circumstances are on the table, I think the court is

17 free to evaluate reliability as it sees fit and if there

18 is sufficient reliability, hearsay should be admitted.

19 JUDGE SHAHABUDDEEN: Let us go back to your remark about if

20 the circumstances are before the court; would it not be

21 open to counsel for a party to help to place those

22 circumstances before the court by examining the witness

23 who is actually in front of the court on points relevant

24 to the determination as to whether the particular

25 hearsay evidence is firsthand hearsay or second hand

Page 4657

1 hearsay or third hand hearsay et cetera, and would that

2 not help the court?

3 MR. HAYMAN: It would, and that is part of counsel's

4 obligation, although we think a foundation should be

5 laid first, so that it is identified. Then we can pull

6 it out and your Honours can conduct whatever evaluation

7 is appropriate.

8 JUDGE SHAHABUDDEEN: Thank you very much.

9 MR. HAYMAN: Thank you.

10 JUDGE JORDA: Mr. Hayman, if you might allow me a comment.

11 You said that the counsel for the accused is not in the

12 position, does not have the time, the means to make

13 these distinctions, and you say that the judges should

14 come up with a rule. Judges coming up with a rule --

15 judges apply rules, they do not go about creating them.

16 For instance, would you go so far as to think that the

17 judges should be playing a more active role at trial,

18 because you have to be consistent? You yourself who

19 have the initial statements, if you cite them in your

20 cross-examination, it is hard for you to distinguish the

21 direct from the derivative evidence, it is even more

22 difficult for the judges. What they can do in the event

23 of doubt, they can exclude following evidence,

24 cross-examination, to the effect that the houses had all

25 been burned and that that was not relevant evidence. Do

Page 4658

1 you think that we should be playing a more active role,

2 we should have a full case file and that we should have

3 a plan for questioning? I am already moving into the

4 ground of the status conference, as it were. I take it

5 you will say no. That is what I would assume.

6 MR. HAYMAN: No, your Honour, we want the court, we want

7 your Honours to be more involved in the active trial of

8 the case, because we think that will speed the process.

9 But as to hearsay, what I am saying, your Honour, is, it

10 is counsel's job to develop the circumstances of hearsay

11 evidence so that the court -- with the court so it can

12 be evaluated, but where it is not identified and no

13 attempt is made, and no attempt is being made in the

14 Prosecutor's presentations, to identify what is hearsay

15 and what is not, that quite frankly is just not a sound

16 procedure. Certainly the court can direct matters like

17 foundation and other procedural matters that are totally

18 within the court's discretion, we believe.

19 JUDGE JORDA: Fine. Well, we are running a little later

20 than planned. I think we can leave it at that, if there

21 are not any other points of clarification in relation to

22 hearsay. Then I am going to give you the floor,

23 Mr. Hayman. It is calling into question the decision of

24 the judges, as it were, because we have taken a

25 decision, and you want that decision to be reconsidered

Page 4659

1 by the very same judges, so I am a bit concerned. Maybe

2 you could tell us a little bit more about your motion

3 that dates back to September as well, so this Chamber is

4 to reconsider the decision that had to do with

5 exculpatory evidence which had been regarded as

6 authentic, so could you briefly sum up your main

7 argument, sir?

8 MR. HAYMAN: Yes, Mr. President, thank you. We thought long

9 and hard before we brought this motion, your Honours,

10 because it is delicate, indeed in some ways

11 uncomfortable to ask the Trial Chamber to reconsider a

12 decision that has been made, and I do not think we have

13 done it very often, but we have done it here, because we

14 think this is very important. By this motion, we ask

15 the Chamber to reconsider the ruling that even after a

16 document -- that ruling holds that even after a document

17 has been authenticated, Defence counsel must provide the

18 Prosecution -- the court has said the court, but also

19 importantly provide to the Prosecution -- information

20 concerning how we obtained the particular copy of the

21 document that was placed before the witness and

22 authenticated, thereby disclosing our sources and

23 methods of investigation.

24 We believe, your Honours, and if one looks to how

25 this issue arose, this was not raised by the Prosecutor

Page 4660

1 with respect to any true concern about the authenticity

2 of the document and documents that had been put in front

3 of the witness, Mr. Djidic, and that had been

4 identified. It was an attempt by the Prosecutor to gain

5 a tactical advantage by imposing a discovery obligation

6 on the Defence that does not exist in the Statute of the

7 Rules, and that is unprecedented in any other Trial

8 Chamber or any other proceeding before this Tribunal.

9 No other Tribunal -- no other Trial Chamber in any

10 other case, our search of the records indicates, has

11 imposed any type of requirement of this nature. Indeed,

12 the court has alluded to a new motion, which we will

13 respond to next week, in which the Prosecutor seeks to

14 make another discovery obligation and impose it on the

15 Defence. We think that is telling as well. In our

16 reply brief, your Honours, we discussed the differences

17 between authenticity, authorship, source --

18 JUDGE JORDA: Which motion are you referring to, Mr. Hayman?

19 Just to be perfectly clear. You said that in your

20 reply --

21 MR. HAYMAN: In the response to this motion regarding the

22 authentication of documents, your Honour. I hope that

23 has gotten before the court. I know it has been

24 translated and I have seen our reply brief in both

25 languages of the Tribunal. So we attempted to clarify

Page 4661

1 those terms, I will not repeat. Importantly, we do not

2 by our motion seek to restrain the Prosecutor or

3 restrain the court from questioning the authenticity of

4 documents put before it. Absolutely not. The

5 Prosecutor is free to express every concern about the

6 authenticity of documents; so is the court. But please,

7 if one looks at their response, there has been no

8 concern stated about the authenticity of the documents

9 in question. They have yet to articulate any concern

10 about authenticity; indeed if you ask, "how were these

11 documents authenticated?", they were authenticated by a

12 Prosecution witness. Are they attacking their own

13 witness? They are seeking to gain a tactical advantage

14 by creating a discovery obligation and imposing it on

15 the Defence which does not exist and should not, even

16 more importantly, should not exist.

17 The issue is, how is authenticity to be determined

18 in proceedings before the Tribunal. We submit

19 authenticity is to be determined through the testimony

20 of competent witnesses or by stipulation between the

21 parties. Indeed, if a party wishes to contest

22 authenticity after a witness has authenticated a

23 document, it can ask that the document be held in

24 abeyance and that the party either conduct voir dire of

25 the witness, or that the document be held in abeyance

Page 4662

1 until cross-examination on the document has been

2 concluded. That did not happen here. There were no

3 such requests. There was simply a request for Defence

4 counsel to assume the role of witnesses and disclose

5 what we believe is confidential and privileged

6 information regarding our sources and methods of

7 investigation.

8 But whatever Mr. Nobilo and I are, we are

9 advocates. We are not witnesses. It would be very

10 different if we had been summoned in a civil law system

11 to come and give evidence to the court. Given the

12 adversary nature, the fundamental adversary nature of

13 the proceedings in this Tribunal, we submit it is wrong

14 to impose on counsel, against counsel's will and without

15 the consent of counsel's client, that is counsel for the

16 accused, to compel us to reveal this information

17 concerning our confidential sources and methods. To do

18 that, we submit, confuses the proper role of counsel in

19 what is fundamentally an adversary system here in the

20 International Tribunal for the former Yugoslavia.

21 A subsidiary point is: how do we handle documents

22 that have not yet been authenticated? There have been

23 some conflicting opinions voiced in the course of the

24 proceedings on this point. Indeed, it has been

25 suggested by the Prosecution's office that if a document

Page 4663

1 has not yet been authenticated, it cannot be shown to a

2 witness. A witness cannot be questioned about the

3 document. We do not agree with that. First, we have to

4 be free to show a document to a witness in order to

5 authenticate it, or to try; and second, there will be

6 occasions when a document that a particular witness

7 cannot authenticate and a document that has not been

8 authenticated by any prior witness needs to be shown to

9 the witness in the box and questioned about the

10 document, because if we are not able to do that, and the

11 document is subsequently authenticated and admitted, we

12 may have to recall all the prior witnesses who had

13 relevant testimony to give about that document.

14 So what I am suggesting is: documents that cannot

15 be authenticated yet, they should be marked for

16 identification, and we should be free to show them, and

17 the Prosecution as well, when we come to the Defence

18 case, to show them to witnesses in the box, again with

19 due regard for the efficiency and speed of the

20 proceedings, and question those witnesses about them

21 prior to admission. Of course, if the document is never

22 authenticated and admitted, then it will never be

23 evidence, and we do not contest that.

24 Lastly, there is a subsidiary issue here with

25 respect to the Rule 68 information, and those are

Page 4664

1 documents such as Mil Info Summs that the Prosecution

2 has given us pursuant to its obligation under Rule 68 to

3 provide exculpatory information. There, we have run

4 into a problem that these documents are so heavily

5 redacted, many of them, that it is not clear exactly

6 what the document is. It may have a hand-written

7 notation at the top "Mil Info Summ" and a date, but it

8 is not clear, for example, as Lieutenant Colonel Watters

9 pointed out, is a particular item of information in a

10 Mil Info Summ, where is it from, what is it, what is the

11 information? Indeed, is it a Mil Info Summ?

12 We have offered some of those documents early on;

13 more recently this objection has not been made, perhaps

14 because we filed our motion, but early on, an objection

15 was made that the Prosecutor did not know how it came

16 upon these documents that it had given to us and

17 therefore the document could not be admitted, because

18 the Defence only knew we got it from the Prosecution and

19 the Prosecution could not say from the records available

20 here in court where it got it.

21 We do think this is an untenable position by the

22 Prosecutor and all we ask on that subsidiary issue,

23 which is fully raised in the briefs, is that the court

24 address it, give us a clear ruling, so that either the

25 Prosecutor is obliged to tell us the nature of these

Page 4665

1 documents, the date and so forth, or if not, the court

2 state that that request is denied. Thank you,

3 your Honours.

4 JUDGE JORDA: Mr. Kehoe, please? First, I would like to ask

5 Mr. Dubuisson before we hear Mr. Kehoe; I have got the

6 reply from the Prosecutor, is there another document,

7 just to be clear on this?

8 Mr. Hayman, just a clarification to be perfectly

9 clear. I had the feeling that there were some arguments

10 you just put forward that were not in your initial

11 motion. Have you broadened the scope of your

12 argumentation? Should that be the case, was that your

13 right of reply that you have used, as it were? Maybe

14 I could ask the Registrar whether we have had another

15 motion.

16 MR. HAYMAN: I think my comments, your Honour, were within

17 the scope of our initial motion. We did file a reply

18 brief on 21st November, and it has been translated into

19 both languages of the Tribunal, and I have a copy of the

20 French.

21 JUDGE JORDA: Yes, but there is no accusation here, just

22 I had not had it. With regard to the brief comments you

23 just made, I had the feeling you had included several

24 ingredients when it came to the conclusions in your

25 motion. They were focused mainly on the source in

Page 4666

1 connection with the decisions relating to the

2 obligations which we thought applied to both the

3 Prosecution and the Defence, so with regard to the

4 source and the authors of some documents. That is why

5 I put that question to you.

6 MR. HAYMAN: Your Honour, it may be there is a greater

7 semantic issue here than I have given treatment to, and

8 that is, we believe whether a document is authentic, who

9 is the author, and what is the source of a particular

10 document brought to court, those are very different

11 things. We do not seek to limit anyone's ability, the

12 Prosecutor or the court's, to scrutinise the

13 authenticity of any document presented in court. The

14 source of a document is also different from the author,

15 we believe, and the issue raised by the Prosecutor was

16 not the authorship of a document, the issue was source;

17 how did the Defence obtain, physically obtain the copy

18 of an otherwise authentic document which the

19 Prosecutor's own witnesses had authenticated, and that

20 simply involves, how did we get it? Did we buy it on

21 the black market? Did we get it from the Prosecution's

22 witness? Was it mailed to us anonymously? Whatever,

23 how did we get it, how did we physically come to have

24 it. With all due respect, the gist of our motion is --

25 I am sorry, your Honour.

Page 4667

1 JUDGE JORDA: That is not really the motion that was

2 initially filed in connection with our decision. You

3 are addressing now the issue of how you can obtain

4 certain documents. I do not think that in the decisions

5 we took we in any way set limits to the obtaining of

6 documents. In any event, there are two other decisions

7 in particular when it came to the production of

8 documentary evidence; but as I have not read your latest

9 motion, maybe that is the problem I am having.

10 MR. HAYMAN: Your Honour, I did re-read our motion last

11 night, and again, there may be an issue of semantics,

12 and I do not know how "source" is being translated, I do

13 not know how "authenticity" is being translated, but our

14 position, I think, we have sought to make it very clear

15 and very consistent from the outset and that is, our

16 methods of investigation are private and confidential.

17 If a document is authenticated and the Prosecutor should

18 have the opportunity to contest that, ask competent

19 witnesses, express its concerns to the court. Those are

20 two separate issues.

21 JUDGE JORDA: Okay, fine.

22 Mr. Kehoe, please.

23 MR. KEHOE: Yes, Mr. President and your Honours, good

24 morning. The motion on behalf of the Defence is

25 essentially a motion to revisit an issue that this court

Page 4668

1 has decided, i.e. requesting both the Prosecution and

2 the Defence to give sources for their information. What

3 the Defence motion is tantamount to requesting is a

4 restriction of the powers of this Trial Chamber, quite

5 clearly set forth in 89(e). This Trial Chamber, as any

6 Trial Chamber, has the right and the power to request

7 verification of the authenticity of a document,

8 verification. Why? Why, so this court can make a

9 proper decision concerning the accuracy of that

10 document, whether that document is complete, whether

11 that document should be given a great amount of weight

12 or whether that document should be given a lesser amount

13 of weight.

14 The powers set forth in Rule 89(e) are, of course,

15 supplemented by the powers given to the court for the

16 ordering of a trial as promulgated in Rule 98, which by

17 its very nature is extremely broad and permits this

18 court, the President and the Trial Chamber, to request

19 additional witnesses and call witnesses and ask for

20 additional evidence as the court sees fit.

21 Suffice it to say -- and I have no intention,

22 your Honours, of revisiting every argument that we made

23 in our papers -- suffice it to say that no power given

24 to this court should be restricted in any fashion.

25 Asking questions concerning the reliability of the

Page 4669

1 document, asking questions concerning the source of that

2 document, asking any question that this Trial Chamber

3 sees fit in order to make a decision. As 89(e) sets

4 forth and as interpreted by the Tadic court, the

5 reliability of the document goes to the probative nature

6 of the document and that particular issue all too often

7 is tied up in where this document came from. We saw a

8 telling example of that particular instance in this

9 court, approximately a week and a half ago.

10 Unfortunately, several weeks after we filed the motion

11 or response to counsel's motion.

12 Where did we see that? We saw that in the BBC

13 tape that was presented by the Defence, where the tape,

14 as it was presented, first in the cross-examination of

15 Captain Tudor Ellis and then in the cross-examination of

16 Lieutenant Colonel Bryan Watters, showed the editing of

17 a piece of tape that had been provided to counsel, a

18 tape that came from the British Broadcasting

19 Corporation, which would make it appear that British

20 battalion soldiers were arming Muslim soldiers.

21 On further reflection, when one looks at a little

22 bit more of that tape from the BBC, it quite clearly

23 appears, and is, an officer in an UN vehicle examining a

24 weapon. The court needs to have the power and the right

25 to examine where a document comes from at every source.

Page 4670

1 The Prosecutor goes so far as to say that even if the

2 Defence and the Prosecution exists on the omission of a

3 document or a tape or a piece of evidence, this court

4 still has the power, should it decide to do so, to ask

5 the parties for additional information concerning the

6 source of that information. That is clearly delineated

7 under 89(e) and more broadly set forth, as I noted

8 previously, under Rule 98. This limits no person or

9 party in this courtroom. Counsel has argued to you just

10 several minutes ago that he is unable to use the

11 particular documents that he wants in cross-examination

12 because it has not been sourced. I beg to differ with

13 counsel and I will rely on the record and your Honours'

14 memories, but the only restriction that has been put on

15 Defence counsel and the Defence in the use of any

16 documents has been their ultimate admissibility. The

17 documents themselves have been used extensively in

18 cross-examination of Prosecution witnesses to date.

19 The only ruling that has come from the court,

20 Mr. President, is a holding of these particular documents

21 and these particular pieces of evidence in abeyance,

22 until a source has been provided to the court.

23 But if I may reiterate just once again, there has

24 been no restriction by this Trial Chamber on the Defence

25 in using unsourced documents in the cross-examination of

Page 4671

1 witnesses. So the question is: given how this court has

2 enabled the Defence to use these documents extensively,

3 and has merely requested additional information that the

4 court desires concerning the source, it is quite clear,

5 as we sit some months into trial, there has been

6 absolutely no prejudice to the Defence whatsoever in

7 their ability to develop their information as they see

8 fit and to develop their defence.

9 The reality of the situation, your Honours, is it

10 just simply has not happened. This court has given

11 generous free rein to the Defence to use those

12 documents. There is an argument in Defence counsel's

13 motions concerning the chilling effect on using or being

14 forced to divulge the source of some of this

15 documentation. Again, I will not address this

16 extensively, but suffice it to say, your Honours and

17 Mr. President, that this court has been very open to the

18 use and the development of protective measures to ensure

19 that anybody providing information, that person's

20 physical being would be safeguarded.

21 There are more than ample Rules set forth and

22 Articles set forth in the Tribunal's Statute and Rules

23 to give any protection to the source of information that

24 that particular source needs, so any argument that

25 somehow, in some way, given this circumstance in this

Page 4672

1 courtroom that the inability to use those documents

2 chills the Defence, I submit to your Honours is without

3 foundation, given the practice and procedure to date in

4 this Trial Chamber. It just simply does not exist.

5 Lastly, concerning the documents that Defence

6 counsel says have been unsourced by the Prosecution.

7 There has been, let me say, on several points, due to a

8 request by the Defence, and I know your Honours know

9 this, there has not been reciprocal discovery because it

10 was the decision of the Defence to choose not to operate

11 that way. Nevertheless, literally thousands of

12 documents have been supplied to the Defence under Rule

13 66(A), as is the Prosecutor's obligation to provide

14 counsel with the confirming material that was given to

15 the confirming judge and also under Rule 68, which is

16 exculpatory information. Thousands of pages,

17 thousands. In previous arguments before this court, we

18 have told this court, and again I reiterate, that,

19 pursuant to the court's instructions, the Office of the

20 Prosecutor reviewed hundreds and thousands of pages of

21 documents to comply with our Rule 68 obligations.

22 The only request that we make concerning that

23 information is a simple one. If the Defence asks the

24 Office of the Prosecutor for the source of a particular

25 document that has been provided to the Defence, either

Page 4673

1 pursuant to Rule 66(A) or pursuant to Rule 68, they only

2 need ask where it came from, but to force the Prosecutor

3 to go through an hourless, extensive process, the

4 resources for which we do not have. To source every

5 document, most of which will not be used by the Defence

6 and have not been used to date, is a burden that we

7 simply cannot undertake, given the significant manpower

8 shortages that beleaguer the Office of the Prosecutor.

9 Your Honours, I offer, my colleagues and I offer

10 the solution, an extremely reasonable solution, that

11 counsel, notwithstanding our lack of reciprocal

12 discovery, simply ask us, "what is the source of this

13 document?", and we will tell them. As I said at the

14 outset, Mr. President, your Honours, I have no intention

15 to reiterate and go through chapter and verse all of our

16 arguments, I think our arguments are adequately set

17 forth and one thing about lawyers is from time to time

18 they stand up and speak too much, so at that point,

19 Mr. President, your Honours, I have concluded my

20 argument.

21 JUDGE JORDA: Well, that is a bit of self-censorship there,

22 Mr. Kehoe. I do not know whether Mr. Hayman has any

23 points related to this he wants to touch on very

24 briefly.

25 MR. HAYMAN: Perhaps I am not as wise as my learned friend

Page 4674

1 and colleague. If I could just have a couple of

2 minutes, your Honour?

3 Rule 89(F). It is a very interesting rule,

4 "verification of authenticity". What does that mean?

5 If authenticity is established, what does it mean to

6 verify authenticity? To have two different independent

7 sources establishing authenticity, is that the

8 requirement? We submit once authenticity is established

9 to the court's satisfaction then as long as it is

10 relevant, there it is, it should be admitted.

11 Verification of authenticity cannot mean that after a

12 party has authenticated a document and the court is

13 satisfied that it is authentic, that then there is some

14 other inquiry to be performed. There simply is not.

15 We do not question, as I said, the court's

16 authority and power to ensure that only authentic

17 documents are treated as such by this court. That is

18 only appropriate.

19 The issue of the BBC tape is a red herring. First

20 of all, the Defence was very clear when we presented

21 that tape that we did not know if the witness could

22 authenticate it; first Captain Ellis and then Lieutenant

23 Colonel Watters. They were not, and it was not

24 authenticated. It has not been admitted. Indeed, the

25 adversary system, where competent witnesses testify

Page 4675

1 about context, authenticity and so forth, it did the

2 function that it should do and we now know that this

3 piece of tape, in a medley of tapes, was taken from a

4 BBC tape, because Lieutenant Colonel Watters was able to

5 tell us that. We also now know from the testimony of

6 Tudor Ellis that ITN created a medley tape with many

7 many little bits of pieces, stuck together with rock

8 music, if you will, and other audio components, a tape

9 we are still trying to get so we can see how it was

10 edited and what else was on it. So the process worked

11 with respect to the tape, and the issue is a red

12 herring, we think.

13 I am pleased that Mr. Kehoe concedes that a

14 document, even if not authenticated, may be marked and a

15 witness can be questioned about it, so I think the court

16 can take it that the parties agree on that. But we do

17 not agree that that means there is no prejudice to the

18 Defence from having a per se rule of excluding authentic

19 Defence documents, unless Defence counsel takes the

20 stand and testifies as to our methods of obtaining those

21 documents. The fact is, we need to know what the rule

22 is going to be, so that we can carry out our

23 investigation appropriately, and we are being

24 constrained, there is a chilling effect on our ability

25 to do that and indeed, if this ruling is not altered, we

Page 4676

1 may well have to make file under seal for the appellate

2 court, should there ever be an appellate proceeding, an

3 offer of proof as to how our investigation has been

4 constrained, what sources have refused to provide

5 additional documents related to this court's ruling, so

6 that the record is clear in that regard.

7 Lastly, the Prosecutor asks that to deal with the

8 issue of documents the Prosecutor has given us that we

9 give them notice before our cross-examinations of what

10 documents we will use so that they can tell us the

11 source. That would not further the integrity of the

12 fact-finding process before this court, because we

13 should not be telling witnesses before their

14 cross-examination what they are going to be shown on

15 cross-examination so that they can artificially prepare

16 to deal with those issues. It is simply not wise, it is

17 an attempt to create a new and yet another discovery

18 obligation and impose it on us, the Defence, and I note

19 that if the court modifies its prior ruling so that the

20 emphasis is on authenticity, not how the Defence

21 obtained a document, then there is no need for this

22 second issue to be addressed at all, because it will not

23 be a barrier to the court's consideration of documents

24 that originated with the Prosecution, were given to us

25 and that we are tendering to witnesses and then seeking

Page 4677

1 admission. Thank you, your Honours.

2 JUDGE JORDA: Fine. Fellow judges, any questions,


4 JUDGE RIAD: Mr. Hayman, just a question to understand the

5 bottom line which you are suggesting. You require from

6 the Prosecutor to authenticate any document, is that

7 right, if necessary?

8 MR. HAYMAN: Your Honour, as to documents they gave us under

9 the discovery rules, if there is a requirement imposed

10 by the court, a per se rule, that unless the court knows

11 how a party obtained a document it shall not be

12 admitted, then we cannot admit those documents. Unless

13 the Prosecutor articulates how they obtained it, we are

14 totally dependent on them. If that is to be the rule,

15 then we are asking the court to order the Prosecutor to

16 tell us how they came by these different documents, what

17 are they, in fact.

18 JUDGE RIAD: But you refuse reciprocity. You refuse to be

19 treated the same way.

20 MR. HAYMAN: No, we do not think any counsel, Prosecution or

21 Defence, should have to become witnesses and, in effect,

22 give testimony about their methods and sources of

23 investigation. We think documents that come before the

24 Tribunal should be treated in a standard bilateral and

25 reciprocal way. The inquiry is: is it authentic? If

Page 4678

1 the court is satisfied it is authentic, then it should

2 be admitted, if it is otherwise relevant; if it is not

3 satisfied, it should be excluded, but it should be

4 excluded because the court questions the authenticity of

5 the document, therefore it is not probative if it is not

6 authentic, not based on some per se rule relating to the

7 parties' methods of investigation.

8 JUDGE RIAD: Thank you very much.

9 JUDGE SHAHABUDDEEN: Mr. Hayman, I was interested in your

10 last remark, which I understood this way, that your

11 request that the Prosecution in making available to you

12 any exculpatory statements should also provide

13 information as to authenticity, and I thought what you

14 were saying now was that that request is only maintained

15 if the court maintains its original ruling.

16 MR. HAYMAN: I think there is a link. There are some

17 independent reasons why they should have to do it, but

18 those reasons are compounded if the court has a per se

19 "source" rule.

20 JUDGE SHAHABUDDEEN: I ask that because I see in your reply

21 at page 6, at the bottom, that you are saying there:

22 "Although the Defence urges the Trial Chamber to

23 reconsider its ruling, whether it does so or not, the

24 Prosecution should be required to provide the Defence

25 with information, if known to the Prosecutor, regarding

Page 4679

1 the author, origin, date, et cetera."

2 There is no link there, is there?

3 MR. HAYMAN: Your Honour, as I said, there are independent

4 reasons they should do it, because some of the documents

5 we have gotten are so heavily redacted, it is hard to

6 tell what they are. So I think there are independent

7 reasons, but if there is no per se source rule, then

8 that rule is eliminated as a reason and quite frankly

9 that rule is the problem that has brought this issue to,

10 for us, a crisis proportion, to crisis level.

11 JUDGE SHAHABUDDEEN: Thank you. May I turn now to the

12 Prosecution. Mr. Prosecutor, a court is jealous of its

13 powers, so when you say that Mr. Hayman is effectively

14 asking the Tribunal to impose restrictions on its

15 powers, you are striking a chord to which a court might

16 be expected to be very responsive.

17 Would you subscribe to the view that Mr. Hayman

18 does not need to be apologetic about asking the court to

19 review its earlier decision?

20 MR. KEHOE: Judge Shahabuddeen, Mr. Hayman does not have to be

21 apologetic about asking the court to review a prior

22 decision. My point at the outset, Judge Shahabuddeen,

23 was casting this argument in its most direct light, and

24 that is a request to limit the court's powers.

25 JUDGE SHAHABUDDEEN: I put this to you, I take it you accept

Page 4680

1 the customary dichotomy which distinguishes between

2 admissibility and weight.

3 MR. KEHOE: I do, judge.

4 JUDGE SHAHABUDDEEN: Am I right in understanding Mr. Hayman

5 to be taking this position: if there is a witness in the

6 box who says, "I recognise this document, I know the

7 signature, I have even seen it before", that the

8 document there upon becomes admissible, and any other

9 inquiries concerning authenticity or source or whatever

10 will then go only to weight. That is how I understand

11 him.

12 MR. KEHOE: Judge, there could very well be situations where

13 that is the case and there could very well be situations

14 where neither party has any objection to admissibility

15 of a document on that level. Nevertheless, it is still

16 the power of a Trial Chamber to request where this

17 document came from.

18 Let us turn, if you will, to the particular tape,

19 and hypothetically speaking, let us say that

20 Captain Ellis, when he was testifying, said, "yes, I do

21 recall a tape like that", and given the playing of that

22 tape on the BBC, one might say, "I remember seeing

23 something like that on television". As we move down the

24 line, this tape is shown as coming from the BBC. Even

25 if that initial Defence tape came into evidence, this

Page 4681

1 court could still question its source.

2 The position of the Prosecutor, judge, is that no

3 power concerning any document, any piece of evidence, no

4 power to question that document -- no restrictions on

5 the power to question that document should be imposed on

6 this Trial Chamber, no power.

7 JUDGE SHAHABUDDEEN: I understand you.

8 MR. KEHOE: If at the final hour the court says,

9 "notwithstanding a lack of source, given the fact that

10 a particular witness has authenticated it, we are going

11 to admit it into evidence"; that, of course, is up to

12 the Trial Chamber, it is within the discretion of the

13 Trial Chamber.

14 JUDGE SHAHABUDDEEN: I see. So the Trial Chamber could do

15 that. Then let us look at Rule 89(e), to which both

16 sides referred. Would I be right in saying that a

17 possible interpretation of that rule is that it gives

18 the court a power to request verification of

19 authenticity, but that the exercise of that power in a

20 particular case is not meant to impose a condition

21 precedent on the admissibility of the evidence in

22 question; whether the evidence is admissible depends on

23 whether it is relevant and whether it is probative, and

24 it may be all of those things even in the absence of

25 verification of authenticity. How do you react to

Page 4682

1 that?

2 MR. KEHOE: Judge, that could very well be the case, and if

3 at that juncture, as we come to the end of the trial,

4 the court is satisfied concerning those conditions, i.e.

5 authenticity, and believes that the document has been

6 verified, then the Office of the Prosecutor would have

7 no objection to the court admitting that document into

8 evidence, again, within the discretion of the Trial

9 Chamber, to make that decision as the Trial Chamber sees

10 fit.

11 I do not intend to argue in any way, shape or form

12 on any restriction to that accord. To the contrary, the

13 court has asked, due to a multitude of factors, dealing

14 with xerox copies, dealing with edited tapes, that the

15 source of these documents be presented to the Trial

16 Chamber. If the Trial Chamber requests that, the Office

17 of the Prosecutor will comply and so should the

18 Defence. Again, however, at the end of the day, if the

19 court believes that a document has been authenticated,

20 the court believes it should be admitted, then so be it,

21 it should be admitted on that score.

22 JUDGE SHAHABUDDEEN: Good. So I understand you then to be

23 taking the position that Rule 89(e), which confers on

24 the court a power to request verification of

25 authenticity, goes not to admissibility but to weight.

Page 4683

1 The court could well be in a position where, its request

2 for verification not having been complied with, it

3 proceeds to attach little or no weight to the particular

4 document.

5 MR. KEHOE: If I can answer that by being just a degree more

6 expansive, judge, I think that it goes to both. The

7 court can, because of lack of verification, exclude the

8 document, as is permitted by Rule 89, or admit it and

9 then gauge its weight accordingly, so I think that the

10 Rule as it is written provides the Chamber with a full

11 spectrum of possibilities: admissibility; not

12 admissibility; if admissibility, the weight to be given

13 to it.

14 JUDGE SHAHABUDDEEN: You say Rule 89(e) can also go to

15 admissibility.

16 MR. KEHOE: Yes, judge, I do.

17 JUDGE SHAHABUDDEEN: That is a view that will need to be

18 considered. Thank you very much.

19 JUDGE JORDA: Just a question for Mr. Hayman. Authenticity

20 of a document, how would you define that? Is it linked

21 to the source?

22 MR. HAYMAN: Authenticity, your Honour, is the question of

23 whether the document is what it purports to be. If a

24 document is an agreement between two warring factions,

25 dated on a certain date and has signatures on it, is it

Page 4684

1 in fact the document that was created on or before that

2 date and signed and executed on that date and is it a

3 true copy, if not the original. That is how I would

4 define authenticity.

5 JUDGE JORDA: But when you talk about true copy, already

6 there we are in the area of source.

7 MR. HAYMAN: I think not, your Honour, with the great respect

8 I have for you and the court, because with respect to a

9 document, a witness can look at the document such as

10 Mr. Djidic did, and said, "yes, this is the document,

11 I have seen it before, I recognise the names,

12 I recognise the signature, this is the document that we

13 generated on or about this date", and that is what is

14 different about documents from physical evidence, as

15 I note in my reply brief. You have to have a chain of

16 custody for a blood sample or a fingerprint or a human

17 hair, because they can change, they can not only be

18 altered but they can deteriorate and change over time,

19 depending on conditions of storage. But a document, if

20 you are talking about the contents of a document and not

21 a fingerprint on it, no court requires a chain of

22 custody for documents, I submit. What is required is

23 that a witness authenticate it, it is what it purports

24 to be and if not the original, it is a true copy.

25 JUDGE JORDA: But could you conceive of situations where all

Page 4685

1 the parties authenticate a document and where the

2 document turns out at the end of the day not to have

3 been authentic and if one had knowledge of the source,

4 one would have known it. Let me give an example of a

5 notary act. This is in France, I assume the same goes

6 for the Netherlands and the United States. You have

7 something equivalent when there is a transfer of

8 property. It is the source that is being authenticated,

9 as it were, so if you turn it round, the day you have a

10 public notary's document, you know the source and you

11 know that it is authentic. I am not challenging the

12 distinctions that can be made under 89(e), the customary

13 distinction between the probative value and

14 identification and authentication remains valid, but

15 I think you would agree with me that it is a bit more

16 subtle than that. With the videotape, that in this

17 connection, I will not tell you what my views on this

18 matter are, but that does go to show that in certain

19 cases there can be some confusion; everyone can agree

20 that this is a given videotape, everyone can agree that

21 it is from a given television programme, but that

22 notwithstanding, when it comes to authenticity, no

23 problem there, probative value will agree here, everyone

24 will draw their own conclusions as far as probative

25 value goes, but I do think there is a highly complex

Page 4686

1 link between superficial identification and

2 authenticity, and authenticity is already a step in

3 respect of probative value.

4 In your system, perhaps, you are saying if

5 everybody agrees that a document is authentic, it is

6 going to have a particular value. I do not think that

7 is always the case. But these are just comments I am

8 making, that is not meant as a question, unless there is

9 something you would like to add, Mr. Hayman.

10 MR. HAYMAN: To compliment the court, I think those are good

11 comments. I think to have a certified copy of a

12 document that exists in a court house or a property

13 record office, or the county clerk's office, that is

14 always desirable, but in this case, we are going to find

15 that in the chaos of war there are no central

16 repositories, central archives with complete, certainly

17 not with complete sets of documents. In the chaos of

18 war, people took documents, people fled, and so the type

19 of certified copies, with a notary stamp or whatever on

20 them, are going to be very hard to come by in this case,

21 and it is very important that the documents presented

22 not be limited to a category which in many cases will be

23 unattainable by either party.

24 JUDGE JORDA: Thank you, Mr. Hayman. I just wanted to make

25 that comment to show that the matter was perhaps a bit

Page 4687

1 more complex and subtle. I think we have done for the

2 time being, we are going to resume in about 15 minutes

3 or so for about 45 minutes, an hour, take stock without

4 re-examination. It is the usual status conference then

5 in connection with the trial of General Blaskic. So the

6 court stands adjourned, we are going to be having a

7 closed session, a status conference, in about 15 minutes

8 time.

9 (11.40 am)

10 (Hearing adjourned until 10.00 am on

11 Monday, 8th December 1997)