Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1243

          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

         14  Prosecution?

         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

Page 1244

          1  Prosecution would like to call Dr. Craig Rath.

          2            JUDGE MUMBA:  Please make your solemn

          3  declaration.

          4            THE WITNESS:  I solemnly declare that I will

          5  speak the truth, the whole truth, and nothing but the

          6  truth.

          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

         14  Chamber?

         15       A.   Dr. Craig Rath.

         16       Q.   Would you please tell the Trial Chamber your

         17  profession?

         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

Page 1245

          1  CV.

          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

          7  Honours.

          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

Page 1246

          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

          9  courts.

         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.

Page 1247

          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

          8  violence?

          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

         25  memory?

Page 1248

          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

Page 1249

          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

Page 1250

          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.

Page 1251

          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

          5  session?

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          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

         21  again.

         22       Q.   And how do the details of the event come

         23  forward?

         24       A.   When the person is having an intrusive

         25  recollection or re-experiencing the trauma in therapy,

Page 1259

          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

          9  trauma.

         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

         17  symptoms.

         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

Page 1260

          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, and together they

         13  help attack a village where civilians are killed.  The

         14  first soldier goes back to the United States and has no

         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,

Page 1261

          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

         23  correct?

         24       A.   Correct, I'm a clinician not a researcher.

         25       Q.   And you said you did no research on Post

Page 1262

          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.

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         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?

Page 1263

          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

          5  ability.

          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

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Page 1264

          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?

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         10       Q.   You understand, do you not, Doctor, that

         11  there are differences between the United States and

         12  Bosnia in terms of certain medical references and that

         13  what you call psychotherapy, may in Bosnia, be referred

         14  to as psychological therapy?

         15       A.   Oh, it's not the word or semantics that I'm

         16  concerned with.  (redacted)

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         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

Page 1265

          1  of themselves and the world.

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          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;

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Page 1266

          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

          8  agree.

          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.

Page 1267

          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

         15  that.

         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

Page 1268

          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

          6  session.

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         10  (redacted)

         11  (redacted)

         12  (redacted)

         13  (redacted)

         14  (redacted)

         15  (redacted)

         16  (redacted)

         17  (redacted)

         18  (redacted)

         19  (redacted)

         20  (redacted)

         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

Page 1296

          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

         25  memory.

Page 1297

          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.

Page 1298

          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

Page 1299

          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.

         18  (redacted)

         19  (redacted)

         20  (redacted)

         21  (redacted)

         22  (redacted)

         23  (redacted)

         24  (redacted)

         25  (redacted)

Page 1300

          1  (redacted)

          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

Page 1301

          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

Page 1302

          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

          4  another.

          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

         11  right.

         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

Page 1303

          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

Page 1304

          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)

          7  (redacted)

          8  (redacted)

          9  (redacted)

         10  (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

Page 1305

          1  studies, one involving Australian fire-fighters, and a

          2  study relating to a shoot-out in California with

          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)

          8  (redacted)

          9  (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

         13  point.

         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 playground is a

         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

         21  adults.

         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

Page 1306

          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

Page 1307

          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

          8  on.

          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

         17  characteristics."

         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?

         21  (redacted)

         22  (redacted)

         23  (redacted)

         24  (redacted)

         25  (redacted)

Page 1308

          1  (redacted)

          2  (redacted)

          3  (redacted)

          4  (redacted)

          5  (redacted)

          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,

         11  (redacted)

         12  (redacted)

         13  (redacted)

         14  (redacted)

         15  (redacted)

         16            So I wasn't sure what to do with Dr. Brown's

         17  testimony about gist.  (redacted)

         18  (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,

         23  (redacted)

         24  (redacted)

         25  (redacted)

Page 1309

          1  (redacted)

          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

         17  Chamber.

         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

Page 1310

          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

Page 1311

          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

          4  conclusion.

          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)

         13  (redacted)

         14  (redacted)

         15  (redacted)

         16  (redacted)

         17  (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,

         25  unreliable.

Page 1312

          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

         16  questions.

         17            JUDGE MUMBA:  Thank you.  Any

         18  cross-examination?

         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,

Page 1313

          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)

          5  (redacted)

          6  (redacted)

          7  (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)

         16  (redacted)

         17  (redacted)

         18  (redacted)

         19  (redacted)

         20  Defence.

         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.

Page 1314

          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.

          6  (redacted)

          7  (redacted)

          8  (redacted)

          9  (redacted)

         10  (redacted)

         11  (redacted)

         12  (redacted)

         13  (redacted)

         14  (redacted)

         15  (redacted)

         16  (redacted)

         17  (redacted)

         18  (redacted)

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Page 1315

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Page 1317

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          6  (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

         16  interpreters.

         17       Q.   Would you expect that that might well be

         18  properly remembered?

         19       A.   Yes.

         20  (redacted)

         21  (redacted)

         22  (redacted)

         23  (redacted)

         24  (redacted)

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Page 1318

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Page 1319

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          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

         15  do.

         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)

         21  (redacted)

         22  (redacted)

         23  (redacted)

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         25  (redacted)

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Page 1346

          1                 (Open session)

          2  (redacted)

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         15  (redacted)

         16  (redacted)

         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

Page 1347

          1  reference to so doing?

          2       A.   Yes, it encourages people directly in the

          3  manual to do that.

          4  (redacted)

          5  (redacted)

          6  (redacted)

          7  (redacted)

          8  (redacted)

          9  (redacted)

         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,

         15  Ma'am.

         16            JUDGE MUMBA:  Anything?

         17            MR. DAVIDSON:  Your Honour, nothing in

         18  redirect.

         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

Page 1348

          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

          5  Honours.

          6            MR. BLAXILL:  Your Honour, I assume the same

          7  would go for Dr. Rath, as he is present at the same

          8  time.

          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

         15  session.

         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

Page 1349

          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

         10  record.

         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

         18  testimony.

         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

Page 1350

          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

         16  Honour.

         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

Page 1351

          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)

         12  (redacted)

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Page 1356

          1  (redacted)

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          3  (redacted)

          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

Page 1357

          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

         20  case.

         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

Page 1358

          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

Page 1359

          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

         17  case.

         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

Page 1360

          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

         24  that.

         25            Now, if a person has PTSD, does that render

Page 1361

          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,

Page 1362

          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,

Page 1363

          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

Page 1364

          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

Page 1365

          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

         16  session.

         17                 (Private session)

         18  (redacted)

         19  (redacted)

         20  (redacted)

         21  (redacted)

         22  (redacted)

         23  (redacted)

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Page 1384

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         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

Page 1385

          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

Page 1386

          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

Page 1387

          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

Page 1388

          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. 

         18  (redacted)

         19  (redacted)

         20  (redacted)

         21  (redacted)

         22  (redacted)

         23  (redacted)

         24  (redacted)

         25  (redacted)

Page 1389

          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

         10  you.

         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

         23  her.

         24            The evidence and the reasonable inferences

         25  that can be drawn from that evidence is that Witness A

Page 1390

          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

Page 1391

          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

Page 1392

          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

         15  point.

         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

Page 1393

          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.

         10  (redacted)

         11  (redacted)

         12  (redacted)

         13  (redacted)

         14  (redacted)

         15  (redacted)

         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

         20  approximation.

         21  (redacted)

         22  (redacted)

         23  (redacted)

         24  (redacted)

         25  (redacted)

Page 1394

          1  (redacted)

          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

          8  session.

          9                 (Private session)

         10  (redacted)

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