Case No. IT-99-36-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Registrar:
Mr. Hans Holthuis

Decision of:
3 June 2003

PROSECUTOR
v.
RADOSLAV BRDANIN

__________________________________

DECISION ON PROSECUTIONíS SUBMISSION OF STATEMENT OF EXPERT WITNESS EWAN BROWN

__________________________________

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Andrew Cayley

Counsel for the Accused:

Mr. John Ackerman
Mr. David Cunningham

 

TRIAL CHAMBER II ("Trial Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal"):

BEING SEISED OF the "Prosecutionís Submission of Statements of Expert Witnesses Pursuant to Rule 94 bis", filed on 12 December 2002, which pursuant to Rule 94bis(A) of the Rules of Procedure and Evidence ("Rules") discloses inter alia the full statement of Ewan Brown, a proposed expert witness which the Prosecution intends to call ("Witness");

NOTING the "Response to the Prosecutorís Submission of Statements of Expert Witnesses Pursuant to Rule 94 bis" and "Amended Response to the Prosecutorís Submission of Statements of Expert Witnesses Pursuant to Rule 94 bis", filed by the Defence on 2 and 3 January 2003 respectively, in which the Defence reserves the right to challenge both the expert status and the statement of the Witness;

NOTING the hearings held on 14 January, 6 February and 12 March 2003, in which the Defence indicated that it would file further submissions pursuant to Rule 94bis(B)(iii) of the Rules;

NOTING the "Response to Prosecutorís Expert Witness Submission as to Ewan Brown", filed by the Defence on 9 May 2003, in which the Defence challenges the admission of the evidence of the Witness based on the following submissions:

  1. the Witness is not qualified as an expert "in the area of military affairs in the former Yugoslavia or any other place in the world";
  2. the Witnessí statement and testimony are biased since he is a staff member of the Office of the Prosecutor;
  3. the Witnessí statement and testimony are unreliable;
  4. the Witnessí statement and testimony are not helpful to the Trial Chamber;
  5. the Witnessí statement and testimony are founded on numerous facts not in evidence before this Trial Chamber;

NOTING the Defence request that the evidence of the Witness not be admitted or alternatively that a hearing be organised by the Trial Chamber in order to determine "any reliable basis for the admission of such expert witness";

NOTING the confidential "Prosecutionís Response to Accusedís ĎResponse to Prosecutorís Expert Witness Submission as to Ewan Browní filed on 09 May 2003 and Confidential Annex "A"" and the confidential "Prosecutionís Corrigendum to Prosecutionís Response to Accusedís ĎResponse to Prosecutorís Expert Witness Submission as to Ewan Browní filed on 09 May 2003", filed on 14 and 16 May 2003 respectively, in which the Prosecution argues that:

  1. the Witness is qualified as an expert;
  2. the status of the Witness as employee of the Office of the Prosecutor has no bearing on the admissibility of his statement and evidence;
  3. the reliability of the statement and testimony of the Witness is a matter which goes to the weight of the evidence and can be tested through cross-examination;
  4. it is premature to suggest that the statement and evidence of the Witness are not helpful to the Trial Chamber;
  5. there is no requirement that the statement and testimony of an expert witness must be based solely on facts in evidence before the Trial Chamber;

NOTING that as a result the Prosecution seeks first that the statement of the Witness be admitted as expert evidence without convening a special hearing to challenge his qualifications, and second that the Witness be called viva voce in order to allow the Trial Chamber to properly assess the weight to be attributed to his evidence;

CONSIDERING the oral decision by this Trial Chamber of 19 May 2003 not to grant a further hearing as the issues in dispute have been dealt with sufficiently in written submissions;

CONSIDERING that the Defence objections in essence relate to whether the evidence of the Witness is admissible as expert evidence;

CONSIDERING that the Trial Chamber first has to decide whether the Witness is qualified as an expert, before determining whether his evidence is admissible as expert evidence;

CONSIDERING that since Rule 94bis of the Rules does not provide an explicit definition of an expert witness, the Trial Chamber adopts the following definition as set out in the jurisprudence of this Tribunal:

a person whom by virtue of some specialised knowledge, skill or training can assist the trier of fact to understand or determine an issue in dispute;1

FINDING that, on the basis of confidential Annex A attached to the Prosecutionís Response, the Witness is qualified as an expert, and that the Witness by means of his knowledge, training and practice has the necessary expertise to give evidence about the military developments in the Bosanska Krajina during 1992;

CONSIDERING that Rule 89(C) of the Rules permits the Trial Chamber to admit any relevant evidence which it deems to have probative value, and that, in order to be admissible, evidence must be relevant to the issues in trial;

CONSIDERING that Rule 94bis of the Rules does not add to the provisions of Rule 89(C) of the Rules a condition of admissibility which is not expressly prescribed by that provision, and therefore does not set a higher threshold for the admission of the evidence of an expert witness than the standard admissibility requirements enshrined in Rule 89(C) of the Rules;

CONSIDERING that the Trial Chamber has the discretionary power to assess the evidentiary value of the statement and the testimony of an expert witness, and to determine the weight to be given to expert evidence;

CONSIDERING that the mere fact that an expert witness is employed by or paid by a party does not disqualify him or her from testifying as an expert witness;

CONSIDERING that the Witnessí statement does not contain any indicia of unreliability, which would make it not probative and therefore inadmissible;

CONSIDERING that any concerns relating to the Witnessí independence and impartiality, the accuracy of his evidence, or the extent to which his evidence will be helpful to this Trial Chamber are matters of weight, not admissibility, and can be properly addressed during cross-examination;

CONSIDERING that the Rules do not stipulate that expert evidence must only be founded upon facts in evidence, but that, on the contrary, as the Prosecution rightly points out, it is inherent in expert evidence that such expertise is also based on facts not yet in evidence;

EMPHASISING that the weight to be attributed to expert evidence will be determined by the Trial Chamber at the end of the trial and in light of all the evidence adduced, and that the admission of the expert evidence of this Witness does not necessarily mean that the Trial Chamber accepts its findings;

CONSIDERING that the Defence is entitled to submit expert findings to the contrary and to call its own expert witness(es) during the presentation of its case;

FINDING therefore that the fairness of the trial would not be affected by admitting the statement of the Witness and by calling him to testify as an expert witness;

FOR THE FOREGOING REASONS

PURSUANT TO Article 21 of the Statute, Rules 89 and 94bis of the Rules;

HEREBY ORDERS AS FOLLOWS:

1. The statement of the Witness shall be admitted;

2. The Witness shall be required to appear for cross-examination.

 

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

Dated this third day of June 2003,
At The Hague
The Netherlands

_______________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Prosecutor v. Stanislav Galic, IT-98-29-T, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, 3 July 2002; Prosecutor v. Stanislav Galic, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003.