1 Thursday, 12th November, 1998
2 (The accused entered court)
3 (Open session)
4 --- Upon commencing at 9.30 a.m.
5 JUDGE MUMBA: Good morning. Mr. Registrar,
6 please call the case.
7 THE REGISTRAR: Good morning, Your Honours.
8 Case number IT-95-17/1-PT, the Prosecutor versus
9 Mr. Anto Furundzija.
10 JUDGE MUMBA: Mr. Furundzija, can you hear me
11 in a language you understand?
12 THE ACCUSED: Yes, Your Honours.
13 JUDGE MUMBA: Appearances, please? The
15 MS. SELLERS: The appearances are the same
16 for the Prosecution.
17 JUDGE MUMBA: Thank you. For the Defence?
18 MR. MISETIC: The appearances for counsel are
19 the same, Your Honour. We note for the record that
20 Dr. Younggren is no longer present in the courtroom.
21 JUDGE MUMBA: Thank you. We're proceeding
22 with the second witness in rebuttal?
23 MS. SELLERS: Yes, Your Honour.
24 JUDGE MUMBA: May we proceed, please?
25 MS. SELLERS: Good morning, Your Honour. The
1 Prosecution would like to call Dr. Craig Rath.
2 JUDGE MUMBA: Please make your solemn
4 THE WITNESS: I solemnly declare that I will
5 speak the truth, the whole truth, and nothing but the
7 JUDGE MUMBA: Thank you. Please be seated.
8 MS. SELLERS: May I proceed, Your Honour?
9 WITNESS: CRAIG RATH
10 Examined by Ms. Sellers:
11 Q. Good morning.
12 A. Good morning.
13 Q. Please state your full name for the Trial
15 A. Dr. Craig Rath.
16 Q. Would you please tell the Trial Chamber your
18 A. I'm a licensed clinical psychologist.
19 Q. Would you also describe a bit of your
20 educational background, Dr. Rath?
21 A. I have a bachelor’s degree from the University
22 of California and a masters and Ph.D. in clinical
23 psychologist from the Catholic University of America in
24 Washington, D.C.
25 MS. SELLERS: Your Honours, I have Dr. Rath's
2 JUDGE MUMBA: Yes, it will be admitted. The
3 Defence have no objection, I take it?
4 MS. SELLERS: We have already given a copy to
5 the Defence, Your Honour.
6 MR. MISETIC: We have no objection, Your
8 JUDGE MUMBA: Yes.
9 THE REGISTRAR: Prosecution Exhibit 14.
10 MS. SELLERS: Your Honour, we would like to
11 proceed with some background questions.
12 JUDGE MUMBA: Yes.
13 MS. SELLERS:
14 Q. Dr. Rath, you say that you're a clinical
15 psychologist. Are you also a forensic psychologist?
16 A. Yes, I am.
17 Q. Would you please describe your duties as a
18 forensic psychologist to the Trial Chamber?
19 A. I have completed in excess of 5.000
20 court-ordered evaluations for the courts primarily in
21 California with referrals directly from judges
22 concerning issues of competency and dangerousness of
23 sex offenders and other related issues.
24 I have also consulted with the United States
25 Air Force in excess of 100 times doing cases around the
1 United States, about two-thirds of the time for the
2 Prosecution and approximately one-third of the time for
3 the Defence, in various kinds of issues, homicides, sex
4 offences, rape, child molestation, and so on.
5 I review large numbers of transcripts of
6 police reports and court proceedings and then integrate
7 that into clinical findings in an evaluation of a
8 defendant in cases, presenting that information to the
10 Q. How long have you been engaged in the
11 practice of psychotherapy, Dr. Rath?
12 A. My psychotherapy experience dates back to
13 1971 while in training. Since that time, I have
14 maintained a private practice in psychotherapy and have
15 had -- I'm sorry, since I was licensed in 1979, I've
16 maintained a private practice. Before that, I worked
17 in a large state hospital doing psychotherapy primarily
18 with sexual offenders, many of whom were abused
19 themselves in their own backgrounds.
20 I have received referrals from what are known
21 in California in the United States as a victim/witness
22 programme, so that victims in violent crimes can
23 receive psychotherapy. In that regard, and from other
24 referral sources, I have completed psychotherapy with
25 many dozens of victims of rape.
1 Q. Dr. Rath, in your private practice, have you
2 counselled victims of traumatic experiences, including
3 violent sexual assaults?
4 A. Yes, I have done so, including issues that
5 would be relevant to this particular case.
6 Q. Have you ever counselled victims who were
7 held captive by a group and subjected to sexual
9 A. Yes. For a period of time in California
10 gang warfare seemed to involve kidnapping the women
11 from one group, gang raping them, and then returning
12 them as an affront or an insult to the other gang. I
13 have done therapy with three women that I can think of
14 who were kidnapped, subjected to multiple rape, and
15 then returned. This is not counting the ones who were
16 killed, of course, I've been involved in those cases,
17 but they were then returned, and one was held as long
18 as 12 hours.
19 Q. In your therapy with these women, were they
20 diagnosed for Post Traumatic Stress Syndrome?
21 A. Yes. Those three were diagnosed by me as
22 having Post Traumatic Stress Disorder and were then
23 successfully treated.
24 Q. Dr. Rath, are you familiar with the study of
1 A. I am. My doctoral dissertation was in the
2 area of observational learning, basically how we
3 remember what we see and hear, and that was completed
4 in 1978. Thereafter, I began teaching, and I've taught
5 approximately 15 upper division and graduate psychology
6 courses in various areas involving memory, including
7 human memory, human information processing, human
8 perception, developmental psychology, abnormal
9 psychology, and such related courses.
10 On the basis of my doctoral dissertation, I
11 have been recognised as an expert in the Air Force
12 courts and the Superior Courts in the State of
13 California in the United States as an expert who was
14 appropriate to provide information to a trier of fact
15 concerning these issues.
16 MS. SELLERS: Your Honours, the Prosecution
17 offers Dr. Craig Rath as an expert in clinical and
18 forensic psychology.
19 JUDGE MUMBA: Yes.
20 MS. SELLERS:
21 Q. Dr. Rath, you've heard testimony over the
22 past two days about Post Traumatic Stress Disorder?
23 A. Yes, I have.
24 Q. That it's manifested from a traumatic event.
25 Based upon your clinical experience, do you agree with
1 that analysis?
2 A. The Post Traumatic Stress Disorder step 1 is
3 to experience a traumatic event outside the range of
4 normal human experience, and that is, by definition,
5 what transpires if one is diagnosed with that disorder.
6 Q. Will everyone exposed to a traumatic event,
7 therefore, develop Post Traumatic Stress Disorder?
8 A. No. Only a minority of people exposed to the
9 traumatic eventually develop Post Traumatic Stress
10 Disorder. What happens is each individual has a schema
11 or way of looking at themselves and the world. If
12 something happens to them that is so alien that they
13 cannot process that information and sort of integrate
14 it into their own schema, they start to try to do it
15 over and over again. Those are the intrusive kinds of
16 recollections that we've been hearing about. The
17 person becomes more and more agitated and frustrated
18 and tries to avoid doing that but cannot do so. That
19 maladaptive way of dealing with the original trauma is
20 what we know as Post Traumatic Stress Disorder.
21 Q. Dr. Rath, based upon your experience as a
22 clinician, what behaviour is consistent with someone
23 who is traumatised but who did not develop Post
24 Traumatic Stress Syndrome?
25 A. Individuals going through significant traumas
1 normally have a period of being agitated or upset about
2 it. If they resolve it, there's no symptomatology
3 thereafter. Much as if a loved one died, one goes
4 through what is known as an uncomplicated bereavement
5 for a period of time and then the issue resolves.
6 If the individual cannot deal with it, there
7 are different ways of handling it. One would be to
8 become depressed. Another would be to develop Post
9 Traumatic Stress Disorder or some other type of anxiety
10 disorder, such that Post Traumatic Stress Disorder is
11 simply one maladaptive manner of dealing with the
12 original trauma.
13 Q. Dr. Rath, are you familiar with different
14 types of psychotherapy used by clinicians?
15 A. Yes, I am.
16 Q. Have you ever supervised other therapists who
17 use various types of psychotherapy?
18 A. Yes. I worked as an administrator for a
19 period of time supervising clinicians doing therapy
20 with abused adolescents. I also was a clinical
21 supervisor in a hospital setting of psychology
22 interns. I have also supervised individuals who need
23 supervised hours to receive their license, and they
24 were dealing with victims of various types of trauma,
25 including rape.
1 MS. SELLERS: Your Honours, I will ask, at
2 this time, for the next portion, could we please move
3 into private session?
4 JUDGE MUMBA: Yes. Can we move into private
6 (Private session)
11 Page 1252 redacted. Private session.
11 Page 1253 redacted. Private session.
11 Page 1254 redacted. Private session.
11 Page 1255 redacted. Private session.
11 Page 1256 redacted. Private session.
11 Page 1257 redacted. Private session.
4 (Open session)
5 MS. SELLERS:
6 Q. Dr. Rath, based on your experience as a
7 clinician and your training, would it be typical that
8 the details of traumatic events emerge from a patient
9 in the initial stages?
10 A. In the initial stages of therapy the patient
11 will relive the original trauma intellectually,
12 thinking about it, and emotionally. In other words,
13 the emotions and intellect are fused together such that
14 when the person thinks about the original trauma, they
15 become very upset; hence, the person is having what is
16 known as an emotional reliving of the traumatic event
17 with a memory of what happened, as well as the
18 emotional component of what happened. That's the
19 essence of the pathology, that you cannot think about
20 what happened without experiencing the same emotions
22 Q. And how do the details of the event come
24 A. When the person is having an intrusive
25 recollection or re-experiencing the trauma in therapy,
1 they may remember and become emotionally upset about
2 specific instances of the trauma, or a more global
3 memory of the trauma, per se, such that the memories
4 are rather scattered and somewhat disorganised,
5 depending on what triggers them; which is not to say
6 that they are inaccurate, only that they are not well
7 organised. What happens in therapy thereafter is to
8 provide the patient with a normal organisation for that
10 In other words, a woman comes in and blames
11 herself for a rape because she feels her dress was too
12 provocative. That is one way to organise the material
13 which is very upsetting and produces symptoms. In the
14 course of therapy, the woman comes to review, to
15 interpret the incident differently, in a way that is
16 more normative and less productive of inappropriate
18 Q. Dr. Rath, can you equate this organisation of
19 the memory or this unfolding of the story with
20 contamination of a story?
21 A. No, disorganisation is not the same as
22 contamination. When someone has PTSD, that by
23 definition means they haven't organised the symptoms
24 into their view of the world and themselves, and that
25 is not the same thing as accuracy, for example. Simply
1 that in the course of therapy, the person needs to put
2 the trauma and their feelings about the trauma into
3 some particular framework.
4 Q. Dr. Rath, could you please explain why people
5 would exhibit emotional reactions to the flashbacks?
6 A. A person undergoes a trauma, and let me give
7 you a concrete example. Let's suppose that two
8 soldiers go to Vietnam. One soldier is a very
9 aggressive person who views himself as doing something
10 very positive by killing the enemy. The second soldier
11 is a draftee who views himself as a passive and good
12 person. Both of them go to Vietnam
13 help attack a village where civilians are killed. The
14 first soldier goes back to the United States
15 symptomatology because what was traumatically
16 experienced can be easily integrated into his view of
17 the world.
18 Patient two, the passive draftee, goes back
19 and is haunted by the memory of what happened because
20 he cannot reconcile the experience of the trauma with
21 his view of himself. Hence, both individuals go
22 through almost an identical trauma, one has symptoms
23 and one does not.
24 Q. Dr. Rath, I would like to ask you, if the
25 intrusive memories are always present, in your opinion,
1 how does that account for the further unveiling of
2 details within the story of the patient?
3 A. What happens in therapy is that a patient
4 will re-experience a part of the traumatic event.
5 Let's suppose a woman may suddenly remember what the
6 weight of the man on top of her felt like. That will
7 then remind her, or she may associate to other aspects
8 of the rape simply by means of association, such that
9 as you go through therapy the story unfolds and becomes
10 richer and more detailed simply by the process of
11 association as one is reminded of one aspect or another
12 of the original trauma.
13 Q. Thank you, Doctor.
14 MS. SELLERS: Your Honours, I have no further
15 questions of Dr. Rath.
16 JUDGE MUMBA: Yes, Mr. Misetic, Defence?
17 Cross-examined by Mr. Misetic.
18 MR. MISETIC:
19 Q. Dr. Rath, good morning.
20 A. Good morning.
21 Q. It is true, you have not published any
22 articles on Post Traumatic Stress Disorder; isn't that
24 A. Correct, I'm a clinician not a researcher.
25 Q. And you said you did no research on Post
1 Traumatic Stress Disorder?
2 A. I do.
3 Q. What type of research do you do?
4 A. I'm sorry, I do not.
14 Q. It's your position, is it not, that Medica
15 was a competent institution in treating victims of
16 trauma and Post Traumatic Stress Disorder?
17 A. As far as I know, they were competent, but I
18 understand from their materials they had limitations in
19 their ability to deliver services, for reasons such as
20 being in a war zone.
21 Q. I understand that distinction, but in terms
22 of their competence in being able to diagnose a patient
23 or realise whether or not they are giving therapy to
24 somebody; you feel they would be competent enough to do
25 that, do you not?
1 A. As far as I know, that's true. They seem to
2 have approximately gotten correct the symptoms for
3 PTSD, and I have no reason to believe that their
4 therapy ability is any different than their diagnostic
6 Q. But my specific question is they would be
7 competent enough to know whether they have been
8 providing therapy, psychological therapy, specifically,
9 to a patient; correct?
10 A. They would view --
11 Q. It's a pretty simple question, Doctor. Are
12 they competent enough to know whether they are giving
13 someone psychological therapy or not?
14 A. It's not so simple a question as you pose
1 indeed treatment, and that institute is competent,
2 according to you; shouldn't we accept the word of that
3 competent institution whose seal, which document bears
4 their seal, they indeed felt they were performing
5 psychological treatment?
10 Q. You understand, do you not, Doctor, that
11 there are differences between the United States
12 Bosnia in terms of certain medical references and that
13 what you call psychotherapy, may in Bosnia
14 to as psychological therapy?
15 A. Oh, it's not the word or semantics that I'm
16 concerned with. (redacted)
22 Q. Doctor, you talked about the use of therapy
23 to help a trauma patient organise her thoughts,
24 organise the disorganised memories that she has.
25 A. Yes, to integrate what happened into the view
1 of themselves and the world.
7 A. No.
8 Q. Your recommendation as a professional.
9 A. No, a person who has untreated Post Traumatic
10 Stress Disorder will not have their symptoms and
11 feelings organised, which is not to say that they are
12 necessarily inaccurate, and will require further
13 treatment periodically thereafter.
14 Q. We can, of course, say nothing is necessary;
1 People got along in many ways, in many
2 different ways before psychotherapy even arrived on the
3 scene, and some patients do that.
4 Q. Against your recommendation; wouldn't that be
5 correct, Doctor?
6 A. Well, my recommendation for a patient is that
7 they engage in therapy, and sometimes they do not
9 Q. I understand that, but you recommend therapy
10 because it is the better course for a patient,
11 regardless of what they might feel they need?
12 A. From my perspective, I do, because I'm aware
13 of the efficacy of psychotherapy and these kinds of
14 cases. Many educated people would not necessarily
15 recommend that sort of therapy, because they wouldn't
16 know about it.
17 MR. MISETIC: Thank you, Your Honours.
18 I have nothing further.
19 JUDGE MUMBA: Any re-examination?
20 MS. SELLERS: No, Your Honour.
21 JUDGE MUMBA: Thank you very much.
22 THE WITNESS: You're welcome, Your Honour.
23 JUDGE MUMBA: Can we release the witness?
24 MS. SELLERS: Yes, Your Honour, that would be
25 the rebuttal case.
1 THE INTERPRETER: Microphone, please.
2 JUDGE MUMBA: Microphone.
3 MS. SELLERS: I'm sorry. Yes, that would be
4 the rebuttal case of the Prosecution.
5 JUDGE MUMBA: Defence?
6 MR. MISETIC: First, the witness may be
7 released, and Mr. Davidson will be doing the rejoinder
8 with Dr. C.A. Morgan.
9 MR. DAVIDSON: Your Honour, I would like to
10 talk for five minutes with Dr. Morgan concerning
11 Dr. Rath's testimony so we can move there quickly, and
12 I would also like to set up the board with the items
13 that we had both during his testimony and that of
14 Dr. Brown. It would take about five minutes to do
16 JUDGE MUMBA: The Court will rise then for
17 ten minutes to give you the opportunity.
18 --- Recess taken at 10.12 a.m.
19 --- On resuming at 10.23 a.m.
20 MR. BLAXILL: Your Honours?
21 JUDGE MUMBA: Yes?
22 MR. DAVIDSON: We're going to begin with a
23 few questions of the witness relating to Witness A
24 specifically, the boards, and the treatment at Medica,
25 and for that reason, I think we should go into private
1 session or closed session.
2 JUDGE MUMBA: Yes. In those questions, are
3 you going to use the boards?
4 MR. DAVIDSON: Yes, I am.
5 JUDGE MUMBA: Then we have to be in closed
7 (Closed Session)
13 Pages 1269 to 1291 redacted – in closed session
14 Pages 1291 to 1294 redacted – in Private session
21 (Open session)
22 MR. DAVIDSON:
23 Q. I would like to take you through a brief
24 series of questions, Dr. Morgan, relating specifically
25 to Dr. Brown's comments relating to your testimony as
1 to Witness A, not a discussion about what he said, what
2 you said. I want to limit this so that we don't spend
3 the rest of the morning here.
4 A. All right.
5 Q. Dr. Brown, in reviewing the inconsistencies
6 in Witness A's testimony, said that you ignored a body
7 of evidence regarding accuracy of memory. Is there a
8 body of evidence or control studies relating to the
9 accuracy of memory in PTSD patients?
10 A. No, there is not. There is a large body of
11 data about how human beings remember things, and I had
12 mentioned in my earlier testimony that I didn't think
13 the Court wanted a review of that information. In Post
14 Traumatic Stress Disorder, there is a very limited
15 number of studies that have actually examined accuracy,
16 if what we mean by "accuracy" is how well people with
17 PTSD have scored or performed on a specific kind of
18 memory test in neurologic testing.
19 There are a few studies that have looked at
20 recall memory in people with PTSD, including women with
21 sexual assault related PTSD, that have shown that
22 recall is more poor in people with Post Traumatic
23 Stress Disorder. Those are studies where they're asked
24 to learn a list of words and then recall them from
1 Apart from those studies, I'm not aware of
2 any that have addressed the issue of accuracy in Post
3 Traumatic Stress Disorder.
4 Q. Let's go on to another aspect of Dr. Brown's
5 testimony relating to the comparison between PTSD
6 victims who have suffered direct trauma vis-à-vis
7 people who have experienced what he referred to as
8 "indirect trauma" and that relationship to what he
9 referred to as "their memory as to the gist." Can you
10 comment on that, please?
11 A. Yes, I can. We did not find, in our studies
12 of Desert Storm veterans, nor did Dr. Roemer find in
13 her study that involved veterans who were deployed to
14 Somalia, that individuals who sustained a personal or
15 physical injury were more inconsistent or more
16 consistent in their memory. Both of our studies have
17 been compatible in that they both show that the best
18 sort of predictor, if you will, of inconsistency is the
19 number of symptoms of PTSD a person has and not whether
20 or not they were physically injured.
21 In terms of "gist," I believe that Dr. Brown
22 referred to gist as being defined -- I remember two of
23 the components. Excuse me if I don't remember the
24 third. I remember that one was personal meaningfulness
25 and plot relevance.
1 Q. I think the third one was central action.
2 A. Central action, all right. Using that
3 definition of gist, almost all of the items in our
4 study could be included as gist.
5 For example, in my view, one of the most
6 subjective items in our study for consistency of memory
7 was asking veterans, "Did you feel that your life was
8 put at risk; was there a threat to your personal
9 safety," as opposed to, perhaps, a more objective item,
10 such as, "Did you witness the death of a friend?"
11 Using Dr. Brown's definition of gist, personal
12 meaningfulness, I could argue, relates directly to how
13 much I feel I've been personally threatened in a war
14 zone, and so if I was filling out the item, did I feel
15 my life was personally threatened or I was at personal
16 risk, and the word "personal" was actually in our
17 questionnaire --
18 Q. Slow down a little bit.
19 A. -- then that would be a gist item. My view
20 and Dr. Southwick's view and, I believe, also in
21 Dr. Roemer's view, as expressed in her paper, is that
22 what we have formally thought was, perhaps, gist and
23 unchanging may have to be rethought.
24 Now, there is evidence from interviewing camp
25 survivors from World War II that certain things appear
1 to be remembered. People remember they were in a
2 prison camp. They remember they were malnourished.
3 They remember they were mistreated from 40 years ago,
4 50 years ago; however, they were unable to remember or
5 identify the person who had tortured them nearly daily
6 or faces.
7 In the Desert Storm veterans, they all
8 remember they had been to the Gulf War, that they had
9 been in Kuwait and in Iraq, and they knew that they
10 came home with fewer unit members than went with them,
11 but they changed their answers to nearly everything
12 else. The only items they didn't change was
13 their gender, the branch in the military that they had
14 belonged to, and whether or not they had been in an
15 aircraft that was shot down or in a ship, and they were
16 an army unit so they hadn't been with the Air Force or
17 the Navy.
2 So I agree that some things appear to remain
3 consistently reported over time, but I do believe that
4 it's not always what we thought it would be and that
5 it's become very difficult to determine what is gist,
6 apart from where people were and, sort of, in a general
7 type what happened, and that that becomes very
8 difficult to determine as people are more sick.
9 The inconsistencies in memory that we've
10 measured and that Dr. Roemer measured, they are not
11 caused by PTSD. I know that Dr. Brown had mentioned
12 that I was saying they were caused. I believe that
13 they may just be another symptom of Post Traumatic
14 Stress Disorder. They are like having another symptom,
15 saying the sicker they are, the more nightmares people
16 have; the sicker they are, the more inconsistencies in
17 their reported memory they have, which makes a more
18 precise determination of what gist is very hard in
19 people with Post Traumatic Stress Disorder.
20 Q. Dr. Morgan, Dr. Brown, in talking about your
21 testimony, implied that you testified that
22 inconsistency implies inaccuracy, and then he discussed
23 a series of tests, one by Yuille, one by Linda
24 Williams, and one by Connie Dahlenberg which
25 purportedly supported the concept that, over a period
1 of time, details come forward. In other words, you
2 remember more as time goes by. To some extent,
3 Dr. Craig Rath, this morning, talked about the same
4 thing, going to therapy, remembering a few items, and
5 as the therapy goes on, you add in more details.
6 A. Yes.
7 Q. Can you comment on Dr. Brown's
8 characterisation of your testimony and his supporting
9 data that he referred to, the Yuille study and the
10 Linda Williams study and the Connie Dahlenberg study
11 and their alleged relationship, if any, with PTSD
12 victims? Do you understand the question?
13 A. I believe so. The study by Yuille that was
14 referred to was held up as an example that witnesses
15 remember what they have seen, and that over time they
16 remember even more. There are several aspects of that
17 study that I think have to be made really clear so it
18 is not misinterpreted.
19 In that study there was no controlling for
20 contamination by media. People were able to go home
21 after the robbery and watch the news, read the
22 newspapers. There's no evidence that they were
23 sequestered; so even though the finding wasn't that
24 large, but details increased for some things. We
25 cannot say that it proves that memory improves in
1 accuracy over time. What we can say is that people
2 reported more things, but they may have gotten them
3 from the news or the television or talking to one
5 Second, in Yuille's study they didn't
6 evaluate for Post Traumatic Stress Disorder; so once
7 again, it is not a study about post-traumatic stress.
8 But I think, third, and most importantly in
9 my view, is they reported a decline in visual accuracy
10 and that the people got only about 52 per cent of it
12 People were very poor at describing
13 perpetrators. They were good at saying there was a
14 man, there was a gun, somebody chased somebody, they
15 got shot. In describing actions, people performed
16 quite well, but when it came to visual descriptions of
17 what did they look like, what were they wearing, what
18 were their names, people did very poorly.
19 Fifty-two per cent on any academic test is
20 nearly an F, 70 per cent would be a C. So I don't know
21 quite how to put that in perspective, but it's almost
22 like saying they are half wrong all the time.
23 Given that, I still don't believe that that
24 study should be legitimately applied to PTSD, because
25 it is not a study of PTSD, it is a study that says
1 people just don't remember how to describe perpetrators
2 very well at all, and they describe activity.
3 The Williams study that was referred to, and
4 the Dahlenberg study, are studies that look at
5 recovered memory, people who have had recovered
6 memory. One study includes people who have had
7 continuous memory for childhood abuse. So neither is
8 about Post Traumatic Stress Disorder or memory in Post
9 Traumatic Stress Disorder.
10 However, in the most generous light I can
11 think of, they are studies that provide evidence that
12 some people who say they were abused as children, will
13 also say that there was some point in their life they
14 didn't remember it, and that is about 13 per cent of
15 the group.
16 The studies also showed that people who tried
17 to compare what they could remember with their early
18 abuse were not highly accurate. The percentage is
19 around 61 per cent.
20 So although it is not a study of PTSD, there
21 is data there that gives a suggestion that they were
22 quite good at going back and remembering things. Over
23 61 per cent, in my view, is not good, and it actually
24 matches our data from the Desert Storm study and Dr.
25 Roemer's study where about 60 per cent of the answers
1 were consistent. Somewhere between 20 and 40 per cent
2 of the answers, depending on the item, were highly
3 inconsistent. So they are not studies of PTSD, but
4 studies about people who were abused as children, and I
5 don't believe they are relevant to the material I
6 reviewed around Witness A. (redacted)
11 as a scientist, I am reluctant to compare studies that
12 not about the same people. I don't think it's wise.
13 We can draw erroneous conclusions from doing that.
14 We'd be comparing apples and oranges and pretending
15 they are all apples, that it would be legitimate to
16 compare two groups.
17 Q. Let me go forward into another area of
18 Dr. Brown's testimony yesterday. In criticising your
19 comments about inconsistencies, there was testimony by
20 Dr. Brown relating to trauma amnesia, someone has a
21 trauma, forgets it, it comes back to them, they are not
22 inconsistencies, he testified, they are really
23 amnesiacs who forget the injury.
24 In response to questions both by the
25 Prosecutor and Defence, he referred to a couple of
1 studies, one involving Australian fire-fighters, and a
2 study relating to a shoot-out in California
3 children. Do you recall that testimony?
4 A. Yes, I do.
5 Q. Can you comment on that, with respect to your
6 analysis and that which you testified to on direct?
7 A. Yes. Once again, (redacted)
10 (redacted). The point made in both of those
11 studies is that some people who are physically injured
12 did not report being physically injured at a later time
14 While I don't disagree with the results of
15 those studies, I don't agree with them being applied to
16 this case, and this is why: The study of the children
17 who were shot at in the Los Angeles
18 study of children, and we do know that children's
19 thinking and children's biology is very different and
20 that we don't compare studies in children to studies in
22 But the studies did show that some of the
23 children who had actually been shot, when asked later
24 about it, couldn't remember it. That is compatible
25 with what we found in our Desert Storm study where
1 people who said they sustained injury at a later point
2 said no, they had not. But I'm uncomfortable saying
3 that because they found it in a children's study we
4 would then find that in adults.
5 The study by Cindy MacFarlane, looking at the
6 Australian fire-fighters, did indicate that the
7 fire-fighters who had worked on a large fire and who had
8 had some symptoms or full PTSD, at a later point in
9 time, when reinterviewed, some of the people who had
10 actually been injured during the fire stopped reporting
11 that they had been injured.
12 We don't know if that is because they had
13 smoke inhalation injury and whether or not they had
14 some injury to their brain. We don't know if that's
15 like the data we saw in our studies, where people just
16 stop reporting that they have been injured, or whether
17 in fact their memory, however one wishes to define it
18 in their head, has changed.
19 I think the studies both simply provide
20 evidence that people who are physically injured stop
21 reporting that they were, and it could be interpreted
22 that if that's a gist, being injured, being physically
23 injured, something that's plot relevant, personally
24 meaningful and of central importance -- and, I think,
25 most people would agree central importance is something
1 that's happening to their own body and is harmful or
2 damaging to it -- would not be forgotten, if that is
3 what gist is, these would be examples of gist changing,
4 and in my view would be examples of the fact that
5 memory, for gist, can change.
6 Q. In light of that, let me ask one last
7 question on the area of gist, and then we will move
9 In Dr. Brown's testimony yesterday he was
10 asked questions relating to identification, and he said
11 the gist is usually well remembered and accurately
12 remembered, that it's well established as a scientific
13 term in most of the memory research. Then he went on
14 to say that with respect to identifications, he said,
15 "Common errors of memory are height and hair colour,
16 among other things, but not other physical
18 Can you comment on that, with respect to the
19 concept of gist, as it appears in the literature and as
20 you understand it as a scientist?
6 So it becomes very difficult, once we say
7 that hair colour isn't gist, it's a detail that can go
8 away, or height is a detail that can drop away; it's
9 hard for me, actually, to imagine what's left, maybe
10 facial features. But as I read through her statements,
16 So I wasn't sure what to do with Dr. Brown's
17 testimony about gist. (redacted)
19 (redacted). There are, in my view,
20 inconsistencies in the report about where, when and how
21 things happened, and yet, there are some elements that
22 have stayed the same. If that's what we call gist,
2 call that gist, something that we maybe would be able
3 to count on, that we would consider reliable. But I
4 think what most people have considered gist has now
5 been shown not to be indelibly imprinted in our minds.
6 Q. Doctor, I would like to end your examination
7 by asking you a question relating to the thrust of the
8 testimony, and that in part was asked of you by
9 Mr. Blaxill on cross-examination yesterday, relating to
10 the paper that's about to be published relating to
11 Desert Storm, and the last sentence of that relating to
12 a warning or a caveat to clinicians pertaining to
13 rejection or nonrejection of PTSD testimony.
14 A. Yes.
15 Q. I'd like you to comment on that so you can
16 put into perspective your comments here for the Trial
18 A. When I write a paper, after presenting the
19 data in a paper, I, like my colleagues, are usually
20 then invited -- the next section of a paper is for
21 comment, and we offer possible explanations for the
22 data. Sort of the standard format these days of a
23 scientific paper, it starts out with an introduction of
24 the general topic, then we say this is how we did what
25 we did, this is what we found, and here are some ways
1 that we may want to think about it.
2 The journal to which we submitted the paper
3 is a journal that is read, by the most part, by
4 clinicians. It is not a journal directed towards the
5 Court or otherwise. We were aware that in our previous
6 publication some people had used our findings to make
7 detrimental statements about people with Post Traumatic
8 Stress Disorder. The fact that we found that reported
9 memory changed had led some individuals to state that
10 you just shouldn't believe people categorically, who
11 have PTSD.
12 I said in the paper that this -- people with
13 PTSD should not automatically be considered unreliable,
14 because it appears that inconsistencies are very much
15 like a symptom of PTSD, and I would like to caution
16 clinicians from being sceptical of their patients or
17 doubting their patients or not accepting their patients
18 even for treatment if they have been inconsistent.
19 I think that would be terrible if a clinician
20 said, "Well, you've told me two different stories, you
21 must be lying, I'm not seeing you, I'm not going to
22 treat you," rather than recognising that the memories
23 for what happened may have changed and that the person
24 who is suffering may not, in fact, know a lot about
25 exactly what happened to them. They know something
1 terrible has happened, but they may have gotten a lot
2 of it wrong. So the statement in our paper that I
3 wrote is to encourage clinicians not to leap to a
5 Also, very often in the United States,
6 patients will come into a clinic with a letter from the
7 Court where they have been called to jury duty. They
8 will come in and say, "Can I go to jury duty?" I did
9 not want to encourage clinicians to take it upon
10 themselves to decide, sort of ipso facto, or just like
11 that, because they had PTSD, a person could not take
12 part in their civic responsibilities or privileges. (redacted)
18 (redacted). There are some portions of the accounts
19 that appear to be consistent and match what other
20 statements I've read, describe from Witness D.
21 I think, in my view, it would be
22 inappropriate for me to say, well, Witness A, shouldn't
23 even be considered, she has PTSD, don't even consider
24 anything Witness A has to say, because, just like that,
1 Based now on our studies, and I have to say
2 reviewing this certainly has helped me think about it a
3 great deal, I do believe that a single source of
4 information for reported memory -- if I'm getting
5 reports of memory from one individual who has Post
6 Traumatic Stress Disorder, I personally, I would not
7 consider those reports scientifically reliable, because
8 they change. I would want independent corroborating
9 evidence of some sort.
10 Most clinicians who are focused in doing
11 therapy don't have to worry about it, because they work
12 with where the patient is, emotionally and
13 psychologically, and they take the story as it goes,
14 and the goal is to work on relieving the stress.
15 Q. Thank you, Doctor. I have no further
17 JUDGE MUMBA: Thank you. Any
19 Cross-examined by Mr. Blaxill.
20 MR. BLAXILL: Thank you, Your Honours.
21 Q. Good morning, Dr. Morgan.
22 A. Good morning.
23 MR. BLAXILL: Your Honours, the first thing I
24 would like to bring to your attention is a portion of
25 this recent rejoinder testimony which, with respect,
1 exceeds the boundaries of rejoinder.
2 In the case in chief, as to the mental
3 condition, treatment, psychological counselling, et
4 cetera, (redacted)
8 We had addressed that in a preliminary way
9 only, and it did not then appear in the Defence
10 materials as a question to be addressed and tackled in
11 rejoinder, and it was not advanced through any of the
12 hearing in the last couple of days.
13 I am, however, having pointed that out, Your
14 Honours, I am in a position to put certain propositions
15 to this witness, (redacted)
21 MR. MISETIC: We would just note to the
22 Prosecution if it's their wish to move that document
23 into evidence, we would have no objection to it, if
24 that will alleviate the problem.
25 JUDGE MUMBA: Thank you.
1 MR. BLAXILL: I am grateful to my friend for
2 the offer; however, there are certain issues I would
3 wish to put from this document to the witness orally,
4 Ma'am. We can perhaps move it into evidence later, if
5 that proves appropriate.
11 Page 1315 redacted.
11 Page 1316 redacted.
7 Q. So the level of immediacy is, what, seconds
8 or minutes, then, presumably?
9 A. In that instance it's certainly minutes.
10 Q. Certainly minutes.
11 A. Yes.
12 Q. So something that may have --
13 THE INTERPRETER: Could you slow down,
14 please, counsel?
15 JUDGE MUMBA: Please slow down for the
17 Q. Would you expect that that might well be
18 properly remembered?
19 A. Yes.
11 Page 1318 redacted.
5 MR. BLAXILL: At this point, Madam President,
6 I will be wanting to make certain direct references to
7 the evidence that appeared on the charts, but I will
8 have no requirement or request of the Chamber to have
9 the charts shown again. Accordingly, I think private
10 session for a short while would be appropriate, and it
11 won't be for long.
12 JUDGE MUMBA: Yes, Mr. Registrar.
13 MR. BLAXILL: Noting the time, Ma'am, I see
14 it's just before 12.30. I'm not sure what you want to
16 JUDGE MUMBA: It is the intention of the
17 Trial Chamber to go on with cross-examination and
18 complete the re-examination, if any.
19 MR. BLAXILL: Fine, Madam.
20 (Private session)
11 Pages 1320-1345 redacted. Private session.
1 (Open session)
17 DSM-IV there is a provision that where a diagnosis is
18 made of another major disorder concurrently with PTSD,
19 that other disorder is to be diagnosed also?
20 A. In DSM, on Axis I for the focus of treatment,
21 we encourage clinicians to diagnose as many of the
22 identifiable disorders as possible. It's not always
23 done, but we encourage it, and DSM encourages
24 clinicians to do the same.
25 Q. In other words, it does expressly make
1 reference to so doing?
2 A. Yes, it encourages people directly in the
3 manual to do that.
10 purpose in the Physician's Desk Reference. That isn't
11 to say it is not used by some clinicians; but no, it's
12 not a stated purpose, no.
13 Q. Thank you very much, Doctor.
14 MR. BLAXILL: That concludes my questions,
16 JUDGE MUMBA: Anything?
17 MR. DAVIDSON: Your Honour, nothing in
19 JUDGE MUMBA: Thank you very much, witness.
20 You can be released.
21 MR. BLAXILL: I have no objection.
22 JUDGE MUMBA: Microphone.
23 MR. DAVIDSON: We are now, I think, done with
24 the taking of testimony, and we will go to arguments.
25 If there is no objection, I would ask that Dr. Morgan
1 could stay.
2 JUDGE MUMBA: You mean stay, remain? Yes,
3 there is no objection, yes, he can.
4 MR. DAVIDSON: Thank you very much, Your
6 MR. BLAXILL: Your Honour, I assume the same
7 would go for Dr. Rath, as he is present at the same
9 JUDGE MUMBA: Yes, Dr. Rath can stay.
10 We are going to closing arguments and the
11 Prosecution will begin.
12 MS. HOLLIS: Your Honour, because it is going
13 to be necessary to go into specific information in
14 these closing remarks we ask that we do this in private
16 JUDGE MUMBA: All right, can we go into
17 private session.
18 MR. MISETIC: Yes, Your Honour, we object --
19 it's on, right? We object to having closing argument
20 in closed session. Clearly the issues raised in this
21 case have been public in nature, amicus briefs have
22 also been filed, and for the sake of having a thorough
23 discussion or airing of the issues, we would request,
24 also as a matter of right to a public trial, that the
25 closing arguments at least be held in public so that
1 everyone knows exactly what the evidence was or was not
2 in the case.
3 And I think it would be appropriate at the
4 end, in terms of a ruling, whatever it is, comes down,
5 that people have had an opportunity to analyse what had
6 happened before, when the ruling comes. Thank you.
7 MS. HOLLIS: Your Honour, may the Prosecutor
8 make comment before the Judges confer? We have heard
9 this argument and would like to make comment for the
11 Your Honour, this statute of this Tribunal
12 says when we look at how you define a fair trial,
13 including a public trial, you have to include what is
14 necessary for the protection of victims of witnesses.
15 This Chamber saw fit, upon appropriate
16 showing, to say that information concerning Witness A
17 was of such a nature that it warranted closed session
19 It is the Prosecution's submission that the
20 Prosecution, as well as others, have in fact violated
21 that order. The fact that that has been violated in
22 the first trial, and we submit in this trial, is not
23 something that can be used against Witness A. It is
24 our position that in this trial, as in the earlier
25 proceedings, there have been instances where
1 information relevant to who Witness A is, highly
2 relevant, and to her circumstances, have been put
3 forward in open session.
4 Witness A is not here to ask you to enforce
5 the protective measures on her behalf. The Prosecution
6 takes full responsibility for any inadvertent
7 violations of that order we have engaged in, but we
8 believe it is the witness's concerns that are the basis
9 of the order, and we believe any meaningful closing
10 argument will have to go into areas that are the areas
11 that are protected by the existing protective order in
12 this case, and we suggest the accused's right to a fair
13 trial is not impacted, and he has no right to a public
14 airing of information this Trial Chamber has decided
15 should not be open to the public. Thank you, Your
17 JUDGE MUMBA: Thank you.
18 After due consideration, the Trial Chamber is
19 of the view that the right to a public trial does
20 affect even the manner in which the closing sessions
21 are, closing arguments are delivered; so it is our
22 decision that for whatever closing argument which does
23 not go into revealing any matters that may identify
24 Witness A, we will go into public session, but when you
25 reach a stage where you feel the analysis of your
1 evidence and your application of the principles of law
2 involved will entail disclosing identifying matter for
3 those witnesses who gave evidence in closed session,
4 you will say so and we can go into private session.
5 MS. HOLLIS: Then I request we go into
6 private session.
7 JUDGE MUMBA: At the beginning?
8 MS. HOLLIS: Yes.
9 JUDGE MUMBA: We will go into private session
10 for now.
11 (Private session)
11 Page 1352 redacted. Private session.
11 Page 1353 redacted. Private session.
11 Page 1354 redacted. Private session.
11 Page 1355 redacted. Private session.
4 (Open session)
5 MS. HOLLIS: Thank you. Again, Your Honours,
6 indicating that when you look at this evidence
7 concerning what might happen if you are in a group
8 therapy session, what might happen if you're in an
9 imagery session, what might happen if you're in dream
10 therapy, it's speculation regarding the evidence here.
11 It's not supported by the evidence, nor is it a
12 reasonable inference from the evidence before you.
13 We suggest that the Defence evidence also
14 speculates about some undefined contamination from
15 caregivers at Medica, and this is done in terms of
16 mixing goals. But when you look at the essence of what
17 that means in terms of mixing goals, it's not that an
18 institution has different goals, it's that the person
19 who is giving care to a patient is carrying out
20 contrary goals at the same time. Again, there is
21 absolutely no evidence here to show that in these
22 sessions with Witness A there was anything like that
23 going on. Again, going back to the earlier remarks
24 about whether such a person would even be open to that,
25 we suggest that it is not a reasonable explanation of
1 the evidence in this case. Indeed, there's no evidence
2 that the institution mixed goals in terms of who it
3 assigned to do what. Again, this is pure speculation.
4 There has also been testimony about
5 contamination in other ways from, perhaps, outside
6 sources. But, again, looking at contamination from
7 outside sources, the idea is that they are interjecting
8 false information into a person, and that person is
9 accepting that and it becomes part of their own
10 memory. At least that's the Prosecution's
11 interpretation of that evidence. Again, looking at the
12 evidence before you, we suggest that is pure
13 speculation that has no foundation in any evidence, nor
14 can it be reasonably inferred from any evidence that
15 you have before you.
16 First of all, there are two key ingredients,
17 and the first one is, this person to whom the
18 implantation is being done, if you will, has to be open
19 to that, and there's no suggestion of that in this
21 Secondly, you have to have a systematic,
22 repetitive implantation of false information into
23 somebody else's head. Again, there's been speculation
24 about that. There's absolutely nothing to show that
25 that has occurred. It has to be done over a period of
1 time. There's been testimony about blitzing, about
2 repetitively giving this false information, and there's
3 also been testimony to the effect that traumatised
4 people appear to be resistant to that kind of insertion
5 of false information. There's no evidence in this case
6 pertaining to this witness to say that such a
7 phenomenon occurred.
8 In that regard, Your Honours, as you're
9 looking at this evidence carefully, we suggest that you
10 look at the instances where this witness distinguishes
11 between information this witness has and information
12 that's been provided by other individuals. We suggest
13 that's another indication of a person who is able to
14 discern what that person knows and what other
15 individuals tell him.
16 There's also been testimony and evidence
17 about biological damage to the brain, and, again, that
18 is speculative in this case. There's absolutely
19 nothing to suggest any biological damage to the brain
20 of Witness A. Testimony concerning studies regarding
21 biological damage, you have had the benefit of experts
22 on both sides address those. The concerns about these
23 subjects that were used in those kinds of tests, that
24 other impacts such as alcohol related problems could
25 have resulted in the shrinkage or the change in size
1 that was noted, the fact that the methods utilised,
2 when you're talking about the small area in the first
3 place, may have impacted those studies, you've heard
4 all of that evidence. You have also heard evidence
5 that for other subjects who did not have these alcohol
6 problems, you were looking at long-term, many, many,
7 years before you had such damage occur.
8 Another study involving a one-year study of
9 victims who had been in automobile accidents and then
10 checked a year later showed that there were no
11 significant changes. So, again, we suggest to you,
12 number one, that the evidence in this area is highly
13 controversial, and we suggest that there is no evidence
14 to support any kind of biological damage to the brain
15 undermining the credibility of this witness as to the
16 traumatic events that give rise to the charges in this
18 There's also been testimony about the
19 potential impact of some medicine that the witness was
20 taking, and if you look at that testimony very
21 carefully, we suggest to you that what you find from
22 that testimony is that it was a mild form of
23 medication. There was some discussion about retrograde
24 amnesia, and what did we learn that was, maybe 30
25 minutes or so before you take the drug, you might have
1 some problems remembering what happened. Nothing about
2 that medication tells you that Witness A's memory for
3 the traumatic events about which she testified is
4 harmed by that medication. Prosecution Exhibit 15
5 tells you exactly the opposite.
6 Now, turning to the impact of any sort of
7 diagnoses that may have been made, the effects or the
8 implications of those diagnoses on Witness A's ability
9 to accurately recount to you the experiences she had
10 that are the basis for the charges in this case,
11 there's been some discussion today, for the first time,
12 about some sort of major depression, but we suggest to
13 you there's nothing to indicate it's ever been
14 diagnosed. The medicine that was given is not
15 consistent with that. Again, this is speculation as to
16 a diagnosis that was not made.
17 There's been another diagnosis, and that was
18 Post Traumatic Stress Disorder. Does this witness
19 suffer from Post Traumatic Stress Disorder or not?
20 Medica believed that was true, and Medica put that as a
21 diagnosis, and you've heard expert testimony here about
22 symptomology. It would certainly appear that the
23 symptomology you heard about would be consistent with
25 Now, if a person has PTSD, does that render
1 that person's memory for the traumatic events that
2 caused the PTSD unworthy of belief? We suggest not.
3 The evidence that you have indicates that PTSD is
4 caused by an extremely stressful, an extremely
5 traumatic event. Most assuredly, the events that are
6 the basis for these charges were extremely traumatic
7 and stressful events. But there's an interesting
8 relationship here with memory that we suggest is very
9 worthy of consideration, and that is, there's been
10 evidence here, even the Defence experts have agreed,
11 that when a person experiences something that is very
12 intense for them, that is very emotionally significant
13 for them, that, in fact, that helps you keep that
14 memory better. Now, do you keep every detail of that
15 memory? No, you don't. But what do you keep? You
16 keep the core details that are core details for you,
17 that you keep those. And there's evidence that the
18 intense experience makes you keep them, and there's
19 also evidence that if a person has PTSD, what happens?
20 They, whether they want to or not, reexperience that
21 trauma. It's not a matter of forgetting it. It's a
22 matter of not being able to forget it. It intrudes
23 into their lives, and it's a reexperience of that
24 trauma, and it's a reseeing, a revisiting of that
25 trauma. We suggest to you that that further embeds it,
1 just the core of that, into their minds.
2 We also suggest to you that the evidence in
3 this case that points to that is certainly nothing new
4 to Your Honours. It's certainly nothing new to
5 fact-finders who have to rely upon their experience
6 with the world, their common sense, in determining what
7 to believe and what not to believe.
8 Dr. Morgan told you that there is substantial
9 evidence that people remember emotionally meaningful
10 things better than neutral ones, and he said that it
11 sort of made sense that if you are threatened by
12 something, the body produces adrenaline and adrenaline
13 helps memory. Again, if you have PTSD, these are
14 memories you keep seeing over and over again.
15 Whether or not we have a valid diagnosis here
16 of Post Traumatic Stress Disorder, it's most certainly
17 true that this witness experienced horrific events,
18 traumatic events. It's very possible that she was
19 traumatised by these events. The question for Your
20 Honours is, did this trauma make her memories of the
21 traumatic event unworthy of belief?
22 Now, we suggest to you that the Akayesu
23 Court, it was considering in its decision, it said it
24 considered possible traumatisation of witnesses who
25 appear before the Tribunal. It took that into account,
1 and it concluded, as we suggest the law and common
2 sense does, that being traumatised does not, of itself,
3 mean a person is unworthy of belief. We suggest to you
4 that the Defence evidence, Dr. Morgan's evidence,
5 agrees with that.
6 In Prosecution Exhibit 10, which is his
7 article on his Desert Storm studies, the one that
8 includes the six-year point, his final sentence in that
9 study is, and he's talking about a single-source study,
10 that is to say, each individual gave his or her own
11 information. They didn't go out and verify it
12 somewhere else. So in this single-source study, his
13 last sentence says: "Inconsistencies in reports of
14 trauma should not automatically imply that a witness,
15 victim, or patient is unreliable."
16 In assessing the possible effect of trauma
17 on memory, we suggest that it is of assistance to look
18 at the testimony that tells you there are dimensions of
19 memory, that these are separate dimensions and that
20 what happens in one dimension does not necessarily
21 affect what happens in another. Dr. Brown has told you
22 that the dimensions of memory include consistency,
23 accuracy, completeness, organisation, and confidence.
24 In assessing the effect of trauma on
25 accuracy, the Prosecution suggests that the Defence
1 evidence is not overly helpful. That evidence seems to
2 focus on studies that deal with inconsistency.
3 Inconsistency, of itself, does not equate to
4 inaccuracy. Again, Your Honours, you've heard evidence
5 about this from experts. You've heard about studies in
6 this field. The Prosecution suggests to you that, as
7 Judges, as fact-finders, you know that to be true. In
8 every case, there are inconsistencies, and the question
9 that you must always address is what is the import of
10 those inconsistencies, and that is no different a
11 question than you address in this case.
12 Now, in looking at some of the evidence
13 you've had about inconsistencies and how they relate to
14 accuracy, we would note again that in Prosecution
15 Exhibit 10, in his article about the Desert Storm
16 studies, Dr. Morgan states that his data cannot be
17 generalised to court settings. He also notes that the
18 precision and potential meaning of words must be
19 re-examined, and he states that inconsistencies in
20 reports of traumatic events are common among relatively
21 healthy, non-treatment-seeking individuals. So this
22 idea of inconsistencies is nothing new for a Trial
23 Chamber such as yourselves to have to deal with.
24 THE INTERPRETER: Counsel slow down, please.
25 MS. HOLLIS: There have been some indications
1 that --
2 JUDGE MUMBA: Do slow down.
3 MS. HOLLIS: I'm sorry. I apologise. There
4 have been some examples in the Defence case about
5 inconsistency and the import of particular
6 inconsistencies. In deciding what the import of those
7 inconsistencies will be, the Prosecution strongly urges
8 you, as of course you will, to look very carefully,
9 first of all, as to whether there is an inconsistency
10 and, secondly, what it really means.
11 Now, I'd like to turn, if I could, to
12 specific instances that have been raised by the
13 Defence, and for that purpose, I would ask for a
14 private session.
15 JUDGE MUMBA: We will go into private
17 (Private session)
11 Pages 1366-1383 redacted. Private session.
21 (Open session)
22 JUDGE MUMBA: Yes, Mr. Misetic, we are in
23 open session.
24 MR. MISETIC: That's fine. Thank you, Your
25 Honour. Your Honours, good afternoon. The case of
1 Prosecutor versus Anto Furundzija is an important one,
2 with the international criminal system still in its
3 relative infancy, in terms of establishing what the
4 burdens of proof will be in future international
5 criminal cases.
6 The Prosecution, in its closing arguments,
7 acknowledges that there are inconsistencies in Witness
8 A's statements and acknowledges that other independent
9 sources contradict Witness A in various respects.
10 The Prosecution apparently argues for a
11 standard of proof which would be approximately as
12 follows: Whatever Witness A says that implicates Anto
13 Furundzija and that has not yet been contradicted by an
14 outside source is important testimony, but any evidence
15 that is contradicted, any testimony of hers that
16 contradicts itself, is either irrelevant, unimportant,
17 due to translation errors, due to cultural
18 differences. Your Honours, I would respectfully submit
19 that that is not an appropriate standard of proof.
20 The standard of proof clearly is proof beyond
21 a reasonable doubt. The Office of the Prosecutor bears
22 that burden, and it is a significant burden, not to be
23 left to arguments about what might be, perhaps there is
24 a translation error in a document, could it be due to a
25 cultural difference. The burden, I would submit, in
1 most jurisdictions is significantly higher than that.
2 It is precisely those types of doubts that are to be
3 resolved by the Prosecution and not to be held against
4 the defendant.
5 The Defence's case, in many respects, was
6 mischaracterised, both in the public and in closing
7 argument here. No one argued that a person, a victim
8 of an illness known as Post Traumatic Stress Disorder
9 was, by definition, an unreliable witness not to be
10 believed in a courtroom. The Defence's case, Your
11 Honours, certainly is not about that.
12 The Defence's case, all along and consistent
13 with the last four days of testimony, has been about
14 corroboration, has been about independent sources and
15 what they have said about Witness A's testimony or,
16 better said, lack of corroboration at certain points.
17 The experts that have testified in this case agreed -
18 agreed - that in examining victims of Post Traumatic
19 Stress Disorder or in all cases of memory, as Dr. Brown
20 put it, we can't say that they correspond to
21 historically accurate facts. He said, in criticising
22 Dr. Morgan's study for not having a "baseline," that
23 the reason a baseline, i.e., an independent source of
24 documented evidence by which we could measure the
25 accuracy or inaccuracy of a witness, is that it is that
1 independent source of documented evidence that verifies
2 whether a particular account on a particular occasion
3 was true or not.
4 That is consistent with what Dr. Morgan
5 testified about in this courtroom. To me, Your Honour,
6 he was the most knowledgeable witness about the very
7 issue that was before this Court having to do with Post
8 Traumatic Stress Disorder. He is from Yale University
9 and works at the National Centre for Post Traumatic
10 Stress Disorder and has basically devoted his life to
11 this issue. With his scientific research in the area,
12 he is considered a pioneer in the field, and we were
13 very pleased when we could bring him before this Trial
14 Chamber and have him explain what is the impact of Post
15 Traumatic Stress Disorder on the human memory.
16 The issue of Witness D's Post Traumatic
17 Stress Disorder and its implications in this case was
18 simply one more issue in a series of issues that were
19 present in the underlying case. I'm sorry. I said
20 "D." I meant "Witness A."
21 As I stated earlier, we have never been
22 arguing that you should now put a label on Witness A
23 and brand her unreliable. What our purpose was,
24 though, was to, in light of all of the inconsistencies
25 that were present in the underlying case, the
1 conflicting testimonies of very important witnesses, we
2 wanted to bring forth what a reasonable medical
3 explanation for such an occurrence would be. When we
4 found Dr. Morgan and found his study and his work in
5 the area, it jumped out at the Defence that this is
6 precisely the issue on point that could not brand
7 Witness A in advance and have you say, "Witness A, in
8 and of herself, is unreliable," but rather have an
9 explanation for why Witness A can come into this
10 courtroom, look you, look me straight in the eye and
11 say, "I am telling you the absolute truth; I know it's
12 true," and yet everyone in this courtroom, for example,
13 on Monday knew that much of her testimony was
14 contradicted by other witnesses in this case and by
15 documents that have been submitted into evidence.
16 Now, without this information, perhaps we
17 would have to conclude that Witness A was a liar.
1 woman. It could be that Medica, as Dr. Rath testified
2 this morning, perhaps they didn't know what they were
3 doing or they came up with a version of events that was
4 somewhat questionable, and Witness A had a different
5 perspective. I would submit, Your Honours, that that
6 is not the logical inference that can be drawn from
7 this evidence. The point of bringing the medical
8 information forward was to add this extra element, this
9 extra explanation, for what may be transpiring before
11 Issues were raised about whether or not
12 Witness A had Post Traumatic Stress Disorder. It
13 appears clear that Medica believed she had Post
14 Traumatic Stress Disorder, and they were the people on
15 the scene that treated her. Now, we can engage in all
16 sorts of hypothetical. What if Witness A was only
17 going for food? What if somebody made a mistake of
18 some sort? I would submit that it would be very
19 difficult to believe that, for a year and a half,
20 Medica provided treatment and services to Witness A and
21 made a continuing year-and-a-half-long mistake about
22 whom they were treating and why they were treating
24 The evidence and the reasonable inferences
25 that can be drawn from that evidence is that Witness A
1 has or had Post Traumatic Stress Disorder, and we must
2 rely on the evidence presented in drawing our
3 conclusions and not on speculation, and certainly the
4 Prosecution should not be entitled to rely on
5 speculation as proof in their case in chief.
6 If there were an issue as to whether Witness
7 A were one symptom short, first of all, we have the
8 testimony of Dr. Morgan that it is standard that a
9 person who is one symptom short can still be diagnosed
10 with PTSD by the treating psychologist or
11 psychiatrist. Second, Ms. Hollis mischaracterised what
12 Dr. Morgan's testimony this morning was about
13 depression. The point is not that she was not
14 diagnosed with depression. The point is that if there
15 is going to be an argument as to whether or not Witness
16 A was one symptom short of PTSD and, therefore,
17 misdiagnosed, then it certainly cannot be said she had
18 no illness at all. And according to Dr. Morgan, it
19 would be logical to think that Witness A had the
20 symptoms of depression.
21 Dr. Morgan testified as to his study and what
22 the effects of PTSD are or, better said, the symptom of
23 PTSD, which is inconsistency of memory. According to
24 his studies, the more symptoms of PTSD that a patient
25 has, the more inconsistent their memory. That is
1 called into question by Dr. Brown.
2 I would submit to you, Your Honours, that
3 Dr. Morgan's study was subjected to peer review, which
4 is a very high standard. These are not papers that are
5 published as letters to the editor. They are papers
6 that are published by independent scientists who
7 critique them, and if they are not bound to have some
8 scientific merit, they are not allowed to be
9 published. The study has been replicated. Another
10 independent team conducting a team of PTSD victims
11 found that they had the same results. We have had the
12 testimony of one of the pioneers in this field, and his
13 testimony was very credible. Again, I would submit to
14 you that this is not a label but yet another
15 explanation for what is transpiring in this case.
16 The Prosecution, in final argument, talked
17 about some reference to the intensity of things, and
18 that the more intense an event, the more likely we are
19 to remember it. I liked an example that I find
20 particularly relevant, since I have experienced it in
21 the not too distant past, and I'm sure that Judge
22 Cassese, as a former professor, would too, which is if
23 that is the case, we can look to our ordinary
24 experience when taking a stressful final exam and
25 giving that exam. How often do we come back, three
1 months, six months later and know more information to
2 put on that exam than we did when we took the original
3 test, despite the stress that we were under? That
4 simply is not the normal experience of people.
5 Most importantly is that Dr. Morgan's
6 conclusion is consistent with what Dr. Brown had said,
7 despite Dr. Brown's criticism. Dr. Morgan concluded, I
8 believe, this morning that the statements of PTSD
9 patients, absent some source of corroborating evidence,
10 is not scientifically reliable. Dr. Brown criticised
11 Dr. Morgan for that fact in his study. The fact of the
12 matter is Dr. Morgan was not studying the accuracy of
13 memory but rather the inconsistency of memory and, in
14 point of fact, both doctors agree on that essential
16 Now, I think it is important that if we're
17 going to talk about PTSD patients and the inconsistency
18 of memory and the validity of the study conducted by
19 Dr. Morgan that we apply that scientific conclusion to
20 the facts in this particular case and see whether that
21 has any merit.
22 It is interesting to note that as we get more
23 and more outside independent evidence, the less and
24 less corroborated Witness A's statements are. One of
25 the benefits of the reopening of this case is that that
1 phenomena, that fact has become even more evident with
2 the passage of time, with the discovery of the Medica
3 documents, with the re-examination of Dr. Mujezinovic.
4 This case was brought in November of 1995, it was
5 filed, since that time we have had Witness D come
6 forward. Despite the efforts of the Prosecution to
7 characterise that testimony as corroborative, I would
8 submit to you, Your Honours, that it is significantly
9 contradictory in the most important of legal respects.
16 mind is an even better evaluator, because most people
17 may say, you know, I don't know the exact measurement
18 of the person, but perhaps if I compared it against
19 something, I could tell you that that's the
2 MS. HOLLIS: Excuse me, Your Honour, if we're
3 going to be naming names of people, I think we need to
4 go into closed?
5 MR. MISETIC: Can we go into private?
6 MS. HOLLIS: Excuse me, private.
7 JUDGE MUMBA: Yes, let's go into private
9 (Private session)
11 Page 1395-1410 redacted. Private session.