1 Monday, 3
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE MAY: Mr. Sayers, you wanted to raise a matter.
6 MR. SAYERS: Yes, Mr. President. I just wanted to take a few
7 seconds to update the Trial Chamber with the position for this week, if I
8 may. I appreciate that there are witnesses here, so I won't take too long
9 in that.
10 First, as I told the Court last week, we're ready to file our
11 exhibits today. We'll try to do that during the break. We have them
12 here, five copies for the -- three for the Judges, one for the registry,
13 one for the OTP. Each of these exhibits, booklets, has an index. It
14 looks daunting, but about 50 per cent of them are actually the separate
15 tabs, so it's fairly easy to follow.
16 In addition today, we have filed under seal, for the reason that
17 some of the witnesses have testified in closed session, our designation of
18 transcripts. I think there are six of them from prior cases.
19 With respect to the batting order for the rest of the case that
20 the Prosecution had requested, I trust that the Court has received that.
21 We faxed it to the Prosecution on Saturday, so now they know which
22 witnesses we would like to call for the remainder of the case.
23 One matter that I did want to take up. We had agreed yesterday,
24 after preparing to do this, to allow the Prosecution's audiotape expert to
25 testify after Mr. Koenig. We had requested a curriculum vitae and I had
1 thought that Dr. Broeders was in fact a technical expert, but apparently
2 he's not. He does not actually address any of the issues that Mr. Koenig
3 raises. He's a linguistics expert. He does not have a scientific
4 background in audiotape analysis, and that is a little bit of a problem.
5 At least, that's what it appears from the curriculum vitae that I was
6 given about a minute ago by the OTP.
7 With respect to the witnesses for tomorrow, there are two
8 witnesses who will testify in open session: Mr. Neimarevic and
9 Ms. Vidovic. The outlines have been prepared and distributed. The other
10 witnesses, two of them are not yet in The Hague; two are. And as soon as
11 their outlines are prepared and signed and reviewed, we will distribute
12 them to the Prosecution.
13 And I think that basically brings the Trial Chamber up to speed.
14 JUDGE MAY: Well, in relation to the exhibits and the transcripts,
15 a suitable time must be found in which their admissibility can be
16 discussed. If there's any objection, no doubt that can be towards the end
17 of your case, and perhaps in the last week we could look to do that.
18 MR. SAYERS: Yes, Mr. President.
19 JUDGE MAY: In relation to the witnesses -- I've a copy of the
20 fax, June 30th -- eight witnesses are set out. Those are the witnesses
21 for this week, I take it, ending with Mr. Jelic.
22 MR. SAYERS: That's correct, Your Honour.
23 JUDGE MAY: Now, as far as the Prosecution witness is concerned,
24 if they wish to call him, are you objecting to his being put forward?
25 What is the position?
1 MR. SAYERS: I'm not exactly sure what the witness is going to be
2 testifying about. I had thought that he was a rebuttal expert that the
3 Prosecution wanted to move up for reasons of convenience --
4 JUDGE MAY: Yes.
5 MR. SAYERS: -- so that the Court could hear all of the evidence.
6 But I do not believe that he actually rebuts the technical analysis that
7 Mr. Koenig is here to testify about today, because he doesn't have any
8 technical qualifications.
9 JUDGE MAY: That's a matter for cross-examination.
10 MR. SAYERS: Very well.
11 JUDGE MAY: So if the Prosecution wished to call the witness, you
12 would have no objection.
13 MR. SAYERS: Correct.
14 JUDGE MAY: Very well. That's proposed to take today, is it?
15 MR. SAYERS: Yes, but I would point out, Your Honour, that this is
16 essentially a rebuttal witness, so any time taken in direct and
17 cross-examination should be deducted from the time allocated for the
19 JUDGE MAY: It won't be held against you.
20 MR. SAYERS: Thank you.
21 JUDGE MAY: But that is the proposed plan today?
22 MR. SAYERS: Yes.
23 JUDGE MAY: And then you've got two witnesses for tomorrow, 2 and
24 3 on your list.
25 MR. SAYERS: Yes.
1 JUDGE MAY: And you can deal with the other five in the rest of
2 the week; that's the schedule?
3 MR. SAYERS: I would think so. With the exception of perhaps one
4 witness, all of these witnesses are relatively short. They're brought
5 here to address discrete issues in the case, Mr. President, and I don't
6 anticipate we would be more than one hour with any one of them.
7 JUDGE MAY: And the -- let me see. You say that you provided a
8 copy of the rest of your witnesses. Is that the schedule which is
10 MR. SAYERS: There's an identification of the remaining witnesses,
11 I think, at the end of our fax of July 1st, Your Honour. If you'd give me
12 a minute, I can locate it.
13 JUDGE MAY: Is that it?
14 MR. SAYERS: That's it.
15 JUDGE MAY: Perhaps we can have a copy. Maybe one has been sent
16 through and just hasn't reached us. But tell me, how many more witnesses
17 have you got after these eight, after this week?
18 MR. SAYERS: The week of July 10th, Your Honour, one witness
19 testifying here live, perhaps two; and three witnesses by videolink,
20 perhaps four, but probably three. And perhaps it might be that we would
21 take the afternoon of Wednesday of that week before the Plenary Session to
22 address the matter of exhibits, or that can be left for the next week if
23 the Trial Chamber wishes.
24 On the week of July the 17th, which is the week that we anticipate
25 closing our case, we would finish -- or at least I hope to finish one
1 witness who has previously testified, Witness DK, but I have to tell the
2 Court that we have not been successful in getting hold of him to date.
3 Then the second witness that we identified, we probably will try
4 to call in the week of July the 10th, live, right after the first
5 witness. And then there are three other witnesses, two of whom are
6 questionable, one of whom is definite. And that would -- we still
7 anticipate finishing before the end of that week, Mr. President.
8 JUDGE MAY: That sounds a relatively short week.
9 MR. SAYERS: Yes.
10 JUDGE MAY: Thank you very much. Shall we call the witness?
11 MR. NICE: Can I just make two points, I think, or three.
12 First, we are indebted to the Ministry of Defence for Dr.
13 Broeders' attendance here today -- Minister of Justice, I'm sorry. Wrong
14 ministry. There was no way that we could, through United Nations
15 arrangements, secure his attendance here, because he was supposed to be in
16 Rome. His ministry, in order to assist the Tribunal, has taken care of
17 the financial consequences of the change of his plans, and we're grateful
18 to them for that.
19 The second point relates to the order of witnesses for this week.
20 We were notified about the complete change of order after I had left The
21 Hague at about 5.00, I think, on Friday. I haven't been able to prepare
22 myself for the change of witnesses. It may be, if we don't have a natural
23 break between the expert witnesses and the first of the witnesses to be
24 called, I'd be asking for a short adjournment to deal with that.
25 And as to the last week, the 17th of July, I have yet myself to
1 see the letter that has been faxed, but it will come to my attention
2 soon. I've been told who one of the witnesses is on that week, a
3 potentially important witness, and I would be asking if that witness does
4 arrive, that he be not started before the Wednesday because of my
5 commitments to be elsewhere on the Tuesday.
6 We've also sent a letter to the Defence a copy to yourselves dated
7 the 30th of June which deals with the batting order of witnesses, thank
9 JUDGE MAY: Mr. Nice, you will be in a position to deal with the
10 exhibits and the transcript witnesses as early as possible.
11 MR. NICE: Certainly. I've got to see what quantity of material
12 is involved and how much work's going to be required of my team but yes,
13 of course, as soon as possible.
14 JUDGE MAY: If you could let us know what the position is.
15 MR. NICE: Of course.
16 JUDGE MAY: Very well. We'll have the witness, please.
17 [The witness entered court]
18 JUDGE MAY: Yes, let the witness take the declaration.
19 THE WITNESS: I solemnly declare that I will speak the truth, the
20 whole truth, and nothing but the truth.
21 JUDGE MAY: If you'd like to take a seat.
22 THE WITNESS: Thank you, sir.
23 WITNESS: BRUCE KOENIG
24 Examined by Mr. Browning:
25 Q. Mr. Koenig, could I just of all have you state your full name for
1 the record, please?
2 A. Yes, my name is Bruce E. Koenig, K-o-e-n-i-g.
3 Q. And Mr. Koenig, could you explain to the Court the number of times
4 you've testified as an expert in the area of audiotape analysis as well as
5 an idea of the jurisdictions in which you've been qualified as an expert
6 witness in that area.
7 A. Yes, sir. This would be my 320th time to testify as an expert in
8 the field of audio and video analysis. I have testified mostly in the
9 United States, in 42 of the 50 states, the District of Columbia, Guam,
10 Puerto Rico, the US Virgin Islands. I've also testified in the Turks and
11 Caicos Islands in the Caribbean.
12 Q. And have you testified for the Prosecution as well as the Defence
13 in various cases?
14 A. Yes, sir.
15 Q. Could you explain your -- the positions that you've held with the
16 Federal Bureau of Investigations and the length of tenure you spent with
17 the FBI?
18 A. Yes, sir. I came on board as a special agent of the Federal
19 Bureau of Investigations in late 1970. After finishing my training, which
20 lasted about 5 months, I was assigned to the Atlanta, Georgia office and
21 then following that, the Detroit, Michigan office where I investigated
22 various crimes consisting of bank robbery, selective service violations
23 and fugitives. In 1974, I was promoted to a supervisory special agent
24 position in the FBI laboratory, the engineering section of that, where I
25 remained until 1995 when I retired.
1 During the time I was in the laboratory, my full-time position was
2 conducting audio and video tape analysis examinations, supervising people
3 in that field. When I finished managing, for the last five or six years,
4 the entire group of about 30 or 35 engineers and technicians and
6 Q. What was the specific name of the group that you managed at your
7 retirement from the FBI?
8 A. It was called the Audio/Video Signal Processing Group.
9 Q. And can you explain the nature of what that group did and the size
10 of that group and that laboratory?
11 A. Yes, sir. The group was responsible for conducting examinations
12 of audio and videotapes for things like enhancing the intelligibility,
13 comparing voices, determining the authenticity of audio and videotapes,
14 conducting signal analysis examinations of things such as gunshots and
15 airplane crashes, and any other related areas.
16 The FBI's laboratory was then and still is by far the largest in
17 the world. In fact, it's so large that it's much larger than all other
18 governmental and private labs in the United States put together. On an
19 average year, they'll look at over 3.000 recordings to determine their
20 authenticity or enhance them for various other functions.
21 Q. Can you please explain your work history after retiring from the
23 A. Yes, sir. After retiring, for the last four-and-a-half years, I
24 set up my own business and also have several associates with the same
25 background as mine that are involved in conducting the same types of exams
1 I did at the FBI. My clients include the Federal Bureau of
2 Investigations, Office the Independent Counsel, Department of Justice,
3 numerous private attorneys, corporations and other clients.
4 Q. Can you give us an idea of the equipment available within your
5 laboratory as a consultant?
6 A. Yes, sir. I modeled my laboratory after the FBI's, so it consists
7 of professional audio and video recorders and specialised units. For
8 instance, professional microcassette playback units, special types of
9 analysis equipment, digital filtering equipment, high-end computer systems
10 with specialised software and other related equipment.
11 Q. How many years total experience do you have analysing audio and
13 A. Twenty-six years full-time experience.
14 Q. Can you give us an idea of the number of tapes you've examined
15 over that 26 years with respect to audio and video tape?
16 A. Somewhere between 12.000 and 13.000 tapes.
17 Q. And what is the total number of criminal, civil, and
18 administrative matters that you've been involved with that have raised
19 issues concerning audio or video tape analysis?
20 A. Between 4.500 and 5.000.
21 Q. On your curriculum vitae, you make reference to doing work with
22 respect to independent counsel investigations. Can you explain to the
23 Trial Chamber the nature of your work for the independent counsel and what
24 that entity is?
25 A. The Office of Independent Counsel was set up as an Act of Congress
1 to assist the Department of Justice in specialised types of investigations
2 of government employees. This was done, I believe, for political
3 reasons. Mostly to make an it an independent analysis outside the
4 government of such violations.
5 I've worked on two major investigations of that in the last few
6 years. The first one involved the secretary of the government, a man
7 named Henry Cisernos, who was Secretary of Housing and Urban Development
8 which is called HUD, involving various violations, potential violations of
9 the law. In that, his paramour at the time produced 88 tapes of various
10 conversations between the two of them. She stated that these tapes were
11 all original and unaltered. The government came to me and asked for my
12 evaluation in which I determined that all 88 tapes were copies, in fact,
13 most were copies of copies. And many of them contained various
15 The second case I worked on, major case I worked on with them,
16 involved the case against the President of the United States, William
17 Clinton, and allegations by various people involving his relationship with
18 Monica Lewinski. In that matter, I analysed a number of tapes made by an
19 individual named Linda Tripp of her conversations with Monica Lewinski.
20 Parts of my results are still sealed, but the parts that were not were my
21 findings that many of the tapes that were identified as being original
22 were, in fact, copies and to date, the government has not located the
23 originals of those tapes.
24 JUDGE ROBINSON: Mr. Koenig, with regard to this affair, what was
25 the outcome? Was your determination accepted?
1 A. Yes, Your Honour. Ultimately, the woman that made up the tapes
2 ended up with a three or four year gaol sentence, and Mr. Cisernos agreed
3 to plea to just a misdemeanour and was fined a small amount of money.
4 JUDGE ROBINSON: Thank you.
5 MR. BROWNING:
6 Q. You have also been involved, according to your curriculum vitae,
7 with analysis of acoustical information concerning the assassination of
8 President John Kennedy. Can you explain that analysis or your involvement
9 with regard to that specific project?
10 A. Yes, sir. Back in the late 1970s, there had been several
11 congressional groups that had looked into the assassination and the
12 subsequent investigation. This group came up with certain individuals who
13 claimed that there was a second gunman involved based on an acoustical
14 analysis of a police department radio traffic recording.
15 I, along with my associates at the FBI, were asked to look into
16 this and we were able to determine that, in fact, there was no evidence of
17 any gunshot sounds on that tape whatsoever including the original shots
18 that we knew were fired or from a second shooter.
19 Subsequent to that, the analysis was also performed by the
20 National Academy of Sciences which is, in my opinion, the most prestigious
21 scientific group in the United States, and they concurred with our results
22 and, in fact, came out even stronger than that in fact the original
23 scientific analysis had been done in a very poor way and had no validity.
24 Q. Did your work on that project result in any publication?
25 A. Yes, sir. My original work for the FBI was published by the
1 Department of Justice as a separate document and I subsequently published
2 a peer review article concerning the work of the congressional committee,
3 the work of the FBI and the work of the National Academy of Sciences
5 Q. Could you summarise for the Trial Chamber your formal educational
7 A. Yes, sir. I have a bachelor of science degree from the University
8 of Maryland with a double major of physics and mathematics. I've
9 completed an electronics course through De Vry Institute of Technology in
10 Chicago. I have a master's degree from George Washington University,
11 which is located in Washington, DC in the field of forensic science. I've
12 taken additional graduate level courses in my area of expertise at
13 Massachusetts Institute of Technology, the University of Utah and George
14 Mason University.
15 Q. Could you give us an idea of your publications in this field?
16 A. Yes, sir. I've published over 25 peer reviewed articles and a
17 large number of administrative type of articles for meetings. My peer
18 review articles appeared in a number of journals including the Journal of
19 the Audio Engineering Societies, Journal of the Acoustical Society of
20 America, the Journal of Forensic Identification and the Crime Laboratory
22 Q. I believe you were involved in drafting comprehensive standards on
23 spectrographic voice identification. Could you explain that publication
24 as well as the nature of spectrographic voice identification.
25 A. Yes. Spectrographic voice identification is a non-conclusive but
1 meaningful examination conducted in what we call forensic analysis. That
2 is, investigative kind of tapes, to compare a voice on a tape to a known
3 exemplar. The FBI has been operating under stringent standards since
4 probably the 1950s, but most other people in the field at the time that I
5 was called in to write the standards were operating under either no
6 standards or very loosely defined type of standards. The International
7 Association for Identification asked that I come in and be involved and
8 write such standards. I did do that. The standards were then approved by
9 the members of the International Association for Identification
10 subcommittee involved in this matter, plus the parent group. They were
11 subsequently published and are now probably the major source of standards
12 in this field.
13 Q. Before we --
14 JUDGE BENNOUNA: [Interpretation] I should like to ask Mr. Koenig:
15 When you speak about analysis allowing you to distinguish the original of
16 a particular audio recording and the copy, do you also take care of the
17 alterations? Do you take note of the alterations, and are you then in a
18 position to establish the exact difference between the original and the
19 copy? If you are examining a copy, for instance, what has been added to
20 it, changed, modified, that is, what you call alterations, does that mean
21 that you can see the change that has been introduced as against the
22 original or into the original?
23 A. Thank you for the question, Your Honour. As background and
24 authenticity examination first off must be done on the original recording,
25 to be meaningful, and when it is, three areas are determined. One is: Is
1 the tape original or not? And in my field we define "original" as a
2 recording that was made simultaneously with the information on the tape.
3 That is, there's a telephone call; the recording was made at the exact
4 time of that telephone conversation. Second, you determine if the tape
5 was stopped or started at any place during the original recording
6 process. And third, was the tape subsequently edited in any way?
7 If you only have a copy, you cannot do a meaningful examination.
8 You're very limited to what you can do. However, if you have the original
9 and a copy, then an examination can be made to determine: Is the copy an
10 accurate reproduction of the original? But you would have to have the
11 original to do that examination.
12 JUDGE BENNOUNA: Thank you.
13 MR. BROWNING: Thank you, Your Honour.
14 Q. Mr. Koenig, before we address the body of your report and the
15 conclusions and findings that you reached, perhaps it would be beneficial
16 to cover some background with regard to audiotapes and how they are
17 actually created. Could you --
18 JUDGE MAY: Mr. Browning, bear in mind that we've had the
19 witness's report and we've had the chance to look at that, so you can take
20 the matter more quickly.
21 MR. BROWNING:
22 Q. Mr. Koenig, could you explain the components of the tape recorder
23 that are significant in understanding your report, and specifically if you
24 could explain erase heads and record heads and how they work within a tape
25 recorder, please.
1 A. An analog tape recorder, for instance, like for cassettes or
2 microcassettes, basically does two functions, no matter how expensive or
3 cheap it is. One is it transports tape at a standard speed and
4 electronically takes a signal and records it and will play back whatever
5 is on the tape.
6 As part of the recording process, standard cassettes and
7 microcassettes have two magnetic heads. The first is a record-head. This
8 head is used to write the information onto the tape, moving it from an
9 electrical signal to a magnetic signal on the tape. The other head is an
10 erase-head, and that head erases whatever was on the tape previously.
11 From a physical perspective, these two heads are spaced apart.
12 For instance, on a standard cassette, the spacing is usually slightly more
13 than an inch apart, because they have to fit into the front of the
14 housings of the tapes. So one head, as you're recording along, is writing
15 the information, and the head before it is erasing anything that was there
16 prior to this recording. And these two heads are spaced physically apart,
17 again, as I said, because they have to fit into the front of the housing.
18 Q. Now, when you performed your analysis in this case, you requested
19 a copy, a digital audiotape copy of the Prosecution exhibits at issue
20 here. Could you explain what a digital audiotape copy is?
21 A. Yes, sir. Digital audiotape, or normally called a DAT, D-A-T, is
22 a professional digital format that is heavily used throughout the world in
23 the professional audio field and the forensic field and allows you to make
24 virtually a perfect copy, if done properly, of an analog tape.
25 MR. BROWNING: If I could ask the usher to distribute an exhibit,
2 JUDGE MAY: What's this supposed to be, Mr. Browning?
3 MR. BROWNING: Your Honour, this is the transmittal of the digital
4 audiotape that was made for Mr. Koenig, and I wanted him to confirm that
5 it was recorded in a manner in which he had requested.
6 If it's possible to have an exhibit number.
7 THE REGISTRAR: The document will be numbered D287/1.
8 JUDGE MAY: How did you come across this? This is a -- seems to
9 be a document written inside the Court.
10 MR. BROWNING: I believe it was provided to us by the Registrar
11 when we had asked for the digital audiotape to provide to Mr. Koenig and
12 confirmation that it was recorded by analog cable.
13 JUDGE MAY: Just one moment.
14 [Trial Chamber confers with registrar]
15 JUDGE MAY: Yes. I think it would have been better to have raised
16 this with the Court, if you proposed to put internal documents into
17 evidence, Mr. Browning, as a matter of courtesy.
18 MR. BROWNING: I apologise, Mr. President. When it was provided
19 to us, I assumed it was provided so that we could have confirmation of the
20 way in which the tape was recorded. And that's all that I was trying to
21 establish, that the tape that the witness was provided was provided in a
22 way in which he had requested. And I would be glad to withdraw the
23 exhibit and simply ask the witness if he received information that the
24 tape was recorded by a synch cable analog to a Sony DAT.
25 JUDGE MAY: Yes. Why not deal with it that way.
1 MR. BROWNING:
2 Q. Mr. Koenig, the digital audiotape that you examined, was it your
3 request that the digital audiotape be recorded by a synch cable analog to
4 a digital audiotape and recorded at 44.1 kilohertz?
5 A. Yes, sir.
6 Q. Turning to the first page of your laboratory report, you refer to
7 the digital audio tapes that you received, and designated one as Qc4, and
8 that tape had the bearing T000-456; is that correct?
9 A. I think you left a zero out. T000-0456.
10 MR. BROWNING: And the Prosecution, for ease of reference, has
11 referred to that copy as Prosecutor Exhibit 2801.4.
12 Q. And you also received a second digital audiotape which you
13 designated as Qc5, and the label on that tape was T000-0331; is that
15 A. Yes, sir.
16 Q. And for ease of reference, the Prosecution, in its filings, have
17 referred to that as Prosecutor Exhibit 2801.1.
18 When you received the digital audio tapes, how did you physically
19 store and handle those tapes?
20 A. My facility has been accepted by the US Department of Defence as a
21 top secret facility clearance, so therefore I am allowed to store and
22 analyse top secret material. So even though this was not a classified
23 matter, I stored it in an identical way; that is, I have a safe file,
24 approved by the Department of Defence, and a locked area with alarms.
25 Q. And how was the tape marked by you when you received it?
1 A. I marked it with either Qc4 or Qc5, the two tapes, my laboratory
2 number, and my initials.
3 Q. And that was actually physically marked on the tape at the time
4 you received the tapes?
5 A. On the tape housing.
6 Q. What's the reason for marking tapes such as that?
7 A. This is a standard procedure that I have been taught, both as a
8 field agent and as a forensic examiner, to be able to identify a
9 particular recording in the future. Since I handle so many tapes, there
10 would be no way for me to identify a particular recording without having
11 markings on it that tell me exactly what it is.
12 Q. And your examination of the digital audiotape recordings was
13 performed in the United States in your laboratory?
14 A. Yes, sir.
15 Q. Can you explain how an audiotape is examined for authenticity?
16 A. If a tape is an original tape, there's a series of listening and
17 instrumentation and physical examinations that are conducted of it.
18 They're usually broken down into seven areas that you use to conduct, to
19 make your decisions regarding originality, continuity, and alterations.
20 Q. And I believe you had previously indicated that an authenticity
21 exam can only be done with an original tape.
22 A. That's correct.
23 Q. You have an original tape and you do an authenticity exam. What
24 are those seven steps, if you could explain those, please.
25 A. Yes, sir. Critical listening, which is a four-step process of
1 carefully listening to the tape by playing it back on professional
2 equipment and listening on headphones. In my field, nobody uses
3 loudspeakers. Everything is done through headphones.
4 Physical inspection, which is involved with looking at the tape
5 itself to ensure that there's no physical changes to it or splices,
6 determining that it's the right length. For instance, a C-60 audio
7 cassette should run approximately 30 to 33 minutes per side.
8 Magnetic development, which is an analysis in which a ferro fluid
9 is placed on the tape and allows you to visualise the actual pattern on
10 the tape.
11 Narrow-band spectrum analysis, which is an analysis of the
12 frequencies on the tape. And by "frequencies," I'm referring to, for
13 instance, like a musical instrument. The lower notes would be lower
14 frequency and the higher notes would be higher frequency.
15 High-resolution wave analysis, which is a display of time versus
16 amplitude or volume of the signal, and it's exactly how everybody is
17 hearing, everybody else here today. We listen to sound waves. This
18 allows us to blow them up and have much greater detail.
19 The sixth one that's potentially used is called spectrographic,
20 which is a display of both time, frequency, and amplitude, all in one
22 And lastly, like most other fields of expertise, you have to have
23 a miscellaneous one, so miscellaneous is rarely used, but there are some
24 types of analysis in this field that do not fall clearly within the other
25 six areas.
1 Q. Now, with respect to a copy as opposed to an original, I take it
2 that many of the steps you just ran through cannot be, as a practical
3 matter, performed on a copy of an audiotape?
4 A. That's correct.
5 Q. Which steps, if any, is there some benefit to performing with
6 respect to a copy of an audiotape? And specifically, if you could focus
7 on the steps that you took with regard to the tapes that you were
9 A. Yes, sir. You're normally limited down to just a few types of
10 exams, and even within those areas, you're limited to what you can do
11 compared to an original tape. But in this case I did do critical
12 listening, high-resolution waveform analysis, and narrow-band spectrum
14 Q. And with respect to critical listening, can you explain what you
15 were able to discern about these tapes based upon critical listening?
16 A. There was a number of things that were obvious on these tapes by
17 listening. One is that they're representative of one or more acoustical
18 copying steps. And by "acoustical copying," I mean that the information
19 was played back through a loudspeaker, probably a very small one, and then
20 recorded into another tape recorder through a microphone. That's
21 different than cabling it from one tape recorder to another one.
22 Second, that many of the conversations you do not hear the very
23 beginning and end of the conversation or the telephone hook-up; that in a
24 number of places it sounds like the recording was stopped or started; that
25 the quality, overall quality of the tapes was relatively poor, and in fact
1 at times difficult to hear.
2 Q. And with respect to narrow band spectrum analysis, can you explain
3 how that analysis was performed on these tapes and what you were able to
4 learn as a result of that analysis?
5 A. Yes, sir. I analysed the information of these tapes using a
6 device called an FFT in which it breaks down the component frequencies.
7 By doing so, I determined that there were no indications that it was --
8 the tape recorders being used were plugged into the wall using what we
9 call AC power and that much of the information was probably consistent
10 with battery operation.
11 Also, the tapes, though it was difficult to tell because of the
12 copying process, seemed to be consistent with the limitations of a
13 telephone system.
14 Q. I want to focus for a while upon the high-resolution waveform
15 analysis and what that allowed you to learn about the tapes that you were
16 provided. And let me first of all ask you to explain what a record stop
17 signature is, that I believe you refer to in your report.
18 A. Yes, sir. A record stop signature, in my field, refers to the
19 sounds made by the tape recording system when you stop a recording
20 normally by pressing the stop button while the tape recording is in
22 Q. Does that produce a -- can that be heard, actually on the tape by
23 critical listening?
24 A. Yes, sir. Not as in much detail as you can reflect in the
25 waveform graphs, but certainly most stop signatures on cheaper tape
1 recorders produce signals that are aurally obvious to the listener.
2 Q. Do different tape recorders produce different record stop
4 A. Yes, sir.
5 Q. And is there a difference generally between a microcassette stop
6 signature and a regular cassette record stop signature?
7 A. Yes, sir. The reason they are different is for two reasons. One
8 is the standard cassette and the microcassette run at two different
9 transport speeds, that's how the tape moves within the housing. And
10 second, the spacing that's allowed within the housings, the microcassette
11 and standard cassette have very different housings, that allow where the
12 heads can be placed, changes the spacing between them. So the overall
13 effect is you get different spacing between microcassette and standard
14 cassette record stop.
15 MR. BROWNING: If I could ask the usher to distribute an exhibit,
16 please, and if I could ask that they be given two different numbers,
18 If I could first of all ask the registrar for the number for the
19 regular cassette, the larger one.
20 THE REGISTRAR: D287/1.
21 MR. BROWNING: And for the second exhibit.
22 THE REGISTRAR: D288/1.
23 MR. BROWNING:
24 Q. Mr. Koenig, if I could ask you first of all to turn to D287/1, the
25 photocopy of a regular cassette. If you could explain this exhibit and
1 particularly the placement or where a record-head and erase-head will come
2 into contact with the tape when it's played in a cassette -- when it's
3 placed in a cassette recorder.
4 A. Yes, sir. This exhibit shows a picture of a standard cassette
5 with a ruler beneath it. Where the "E" is will reflect where the
6 erase-head would go into the housing and the "R" would be where the
7 record-head would go into the housing at that point. They are
8 approximately 2.7 centimetres apart in this particular picture. There can
9 be some slight variance within that based on the particular tape
11 Q. And so the signature that's left on a regular cassette recorder is
12 a factor of the distance between the erase-head and the record-head as
13 well as the speed at which the tape is played?
14 A. That's correct.
15 Q. And if you could turn to D288/1 and explain the placement of the
16 record-head and erase-head with respect to a microcassette?
17 A. A microcassette tape runs in the opposite direction of a standard
18 cassette, that is, right to left. And in this you can see that the
19 record-head placement has been placed at zero on the ruler, and the
20 erase-head at approximately 8 to 9 millimetres away from it and the
21 spacing kind of below near the "A" on the tape itself.
22 Q. What is the speed at which a microcassette will run?
23 A. Standard speeds are either 1.2 or 2.4 centimetres per second.
24 Q. And the speed at which a regular cassette runs?
25 A. 4.8 centimetres per second.
1 MR. BROWNING: I'm going to ask the usher to distribute an
2 additional exhibit, please.
3 THE REGISTRAR: Document D289/1.
4 MR. BROWNING:
5 Q. Mr. Koenig, if I could ask you to briefly explain what you have
6 before you.
7 A. Yes, sir. These are --
8 THE INTERPRETER: Could we have them on the ELMO, please?
9 JUDGE MAY: I don't know that you're going to get much out of it
10 on the ELMO. Perhaps the witness could explain it so the interpreters
11 could follow and so the Court can follow too.
12 A. Yes, Your Honour. These are time wave forms of a number of
13 events. They all represent eight tenths of a second, the horizontal
14 access. The vertical access represents amplitude or volume of the signal
15 and the number "A", and the letters are in the upper right-hand corner.
16 "A" would represent a test stop on a microcassette recorder running at
17 2.4 centimetres per second.
18 Q. Before we turn from that page, if you could focus on that example
19 of a microcassette record stop signature. Could you explain the grouping
20 of lines on the left portion of page A to Exhibit 289/1?
21 A. Yes, sir. The portion, that very small portion, it's like a half
22 an inch long on the left side, represents the end of the recording and the
23 stopping of the record-head writing the information on the tape.
24 Q. So on the left is the actual signature of the record-head?
25 A. Yes, sir. The record-head signature with the information that was
1 in the recording up to that point.
2 Q. And then does the erase-head signature appear on this page as
4 A. Yes, sir. It appears in the middle of the graph and takes up two
5 to three inches in the middle of the graph.
6 Q. And this event, page A on Exhibit 289/1 is an event that can
7 actually be heard with the human ear?
8 A. Yes, sir.
9 Q. And the -- well, first of all, let me ask you, on this specific
10 page on this example of a microcassette record signature, what is the
11 speed at which this microcassette is running?
12 A. It's running at 2.4 centimetres per second.
13 Q. And if you could turn to page B and briefly explain this page.
14 A. Yes, sir, this is another time waveform. This is a test stop on a
15 microcassette recorder running at 1.2 centimetres per second and, in fact,
16 it is the same recorder as the one used for the 2.4 centimetres per
18 Q. And again, the grouping of lines on the left will be the
19 information for recording record-head engaged and the signature of the
20 record-head, explain to me the grouping of lines on the left-hand portion
21 of page B?
22 A. Again, this would represent the recording coming up to the point
23 where it stops and the very end of that information on the left would be
24 the record-head itself's signature of stopping.
25 Q. And the waves appearing towards the right-hand portion of page B,
1 what does that indicate?
2 A. That's the erase-head event.
3 Q. And if I could ask you to turn briefly to page C. Can you explain
4 what this page is?
5 A. Yes, sir. This, again, is a time waveform of a test stop on a
6 cassette tape recorder running at 4.8 centimetres per second. Again, on
7 the left side, is the information leading up to the record-head stop which
8 is a bigger event than on the left, and then three-quarters of the way
9 across the page, that two or three inches of information is the erase-head
11 Q. And taking these examples of a microcassette record stop signature
12 versus a regular cassette record stop signature, pages A and B, would that
13 be a signature that would be distinct and different from page C which is
14 the regular cassette?
15 A. Yes, sir. The -- again, each tape recorder might have slightly
16 different signatures on the actual thing, but the spacing would be
17 approximately the same for each of these. So therefore, the spacing on
18 microcassette recorders when they stop is different than the spacing on a
19 standard cassette when it stops.
20 Q. You have included test examples of a microcassette as well as a
21 regular cassette, but could you explain what a minicassette is?
22 A. A minicassette is actually a different format made by Phillips
23 that has not been used in the United States for approximately 15 years,
24 and in most of the world. However, I think it is available in many places
25 in the world so a lot of people -- that is the actual format, but my
1 experience has been that many people who say it's a minicassette, that's a
2 very common term in the United States, for instance, actually you are
3 referring to a microcassette. So the format actually exists although it's
4 quite rare now, but microcassettes are very dominant.
5 Q. And in one would look to a record stop signature for a
6 minicassette which is what you've referred to is cassette manufactured by
7 Phillips which is rare, how would the minicassette record stop signature
8 look in comparison to either a microcassette or a regular cassette?
9 A. It would certainly look different than a regular cassette
10 depending how the heads are formatted in that particular unit.
11 Q. And just like a microcassette or a regular cassette, a
12 minicassette would have a distinct record stop signature?
13 A. Yes, sir.
14 Q. If a conversation is recorded using a microcassette recorder, will
15 there be a record stop signature on that recording?
16 A. Well, I guess you have to look at the point that if you start
17 recording, you always have to stop. So, therefore, there must be a stop
18 some place on the tape although it could be very at the end of the side
19 which at times can be difficult to playback properly.
20 Q. And that would be if -- well let me ask you this: The typical
21 time for a microcassette runs for how long?
22 A. It would depend on the length of the tape. The most common
23 microcassette would be a MC-60 which means, depending on the speed you're
24 running at, would run something over 30 minutes or something over 60
25 minutes per side.
1 Q. So if you are using a microcassette recorder and allowed it to run
2 to the very end of that 30 or 60 minutes, then it might be difficult to
3 discern a record stop signature at the end of the microcassette?
4 A. The answer is yes. The stop would exist there but at times it
5 could be difficult to playback without specialised equipment.
6 Q. But if you are using a microcassette and are recording with a
7 microcassette and stop it short of the end of the tape, you would expect
8 to see a record stop signature on that microcassette?
9 A. That's correct.
10 Q. And if the entirety of that microcassette is then taped onto a
11 regular cassette would that microcassette signature then be copied onto
12 the regular cassette?
13 A. Yes, I would expect on a copy to see a copy of the original
14 microcassette stop probably followed by the original stop of the copying
15 tape recorder.
16 Q. And on the tapes that you examined, there was no indication of a
17 microcassette stop signature or was there?
18 A. There was not.
19 Q. Now, I take it there could be numerous explanations for why a
20 microcassette stop signature does not appear -- let me back up. If
21 someone is taping a conversation using a microcassette recorder and then
22 makes a copy of that, I take it there are numerous reasons why the
23 microcassette stop signature isn't -- is not transferred onto the copy,
24 numerous potential explanations?
25 A. Yes, sir, that would be correct.
1 Q. And one explanation would be that the micro -- a microcassette was
2 not originally used after all?
3 A. Yes, sir, that would be one explanation.
4 Q. And one potential explanation, I take it, is that the
5 microcassette stop signature could have been edited out either
6 intentionally or unintentionally?
7 A. Yes, sir.
8 Q. And I take it another potential explanation is that there was no
9 record stop signature on the original microcassette if, for example, it
10 had been recorded over?
11 A. Yes, sir.
12 Q. Another potential explanation, I take it, would be that the entire
13 microcassette was not copied onto the regular cassette?
14 A. Yes, sir.
15 Q. And then the final explanation, I guess, is what you described
16 previously, that the record stop signature could be at the very end of the
17 microcassette and would make it very difficult to discern?
18 A. Yes, sir. There is a little bit of explanation there. By that, I
19 mean in my laboratory we have specialised tape recorders, we can play it
20 back, but average person would not have such a tape recorder. So if you
21 try to play it back, it might not playback the end stop signature.
22 Q. Is there -- the tapes that you were provided for examination, is
23 there anything on those tapes to indicate that the original was recorded
24 using a microcassette recorder?
25 A. No, sir.
1 Q. And is there -- the tapes that you were provided, is there
2 anything on those tapes to indicate to you that the original -- original
3 conversations were recorded using a minicassette?
4 A. No, sir.
5 Q. Can you summarise the conclusions that you came to as a result of
6 performing a high-resolution waveform analysis on the tapes you were
8 A. Yes, sir. I was able to determine through the stop events that
9 there is at least three and possibly four different cassette tape
10 recorders used to record the information on the tapes I was provided.
11 Q. And is it possible that even more recorders were used to create
12 this tape?
13 A. Yes, sir. It's possible that some other stop events, if they ever
14 existed, could have been erased or recorded over by the present
15 information on the tape.
16 Q. So there is an absolute minimum of three regular cassette
17 recorders involved in producing the tape that you examined?
18 A. That's correct.
19 Q. And there is a possible indication of a fourth regular cassette
20 recorder involved?
21 A. Yes, sir.
22 Q. And there may, in fact, be others that you weren't able to
23 determine from your analysis of the tape, as you said, other record events
24 could have been masked some how, record stop events?
25 A. That's possible, yes, sir.
1 Q. Now, the stop signatures that you are referring to, are those the
2 result of a recording event or are they the result of a playback event and
3 could you explain the difference?
4 A. First, they are the result of a record event, that is a recorder
5 is recording and was stopped. When you play back a tape, you can
6 certainly get transients from the playback system, and playing it back
7 especially on cheaper tape recorders. But these events were reflective of
8 a tape recorder recording and then stopping.
9 Q. Now, if I could ask you to turn back to Defence Exhibit 289/1, and
10 if you could explain pages D through I of this exhibit, please. If we
11 could start with page D.
12 A. This exhibit again is another time waveform, lasting 8/10 of a
14 Q. And forgive me for stopping you, but this waveform was taken from
15 your high-resolution waveform analysis of the tape that you designated as
16 Qc5, which would be Prosecution Exhibit 2801.1.
17 A. Yes, sir.
18 Q. Please proceed.
19 A. This event occurs at 2 minutes and 58 seconds from the beginning
20 of the recording and reflects a stop event, where the record-head over on
21 the left, where you see the kind of a big straight line, sticks up, and
22 the erase-head, or what's left of it, is towards the right side of the
23 graph as a spike that goes down.
24 Q. And does this page D indicate a -- what type of tape recorder does
25 this indicate?
1 A. This represents a standard cassette. The spacing between these
2 two events is 0.580 seconds.
3 Q. And this is one of the regular cassette recorders that you were
4 able to identify the record stop signature when you analysed Qc5?
5 A. That's correct.
6 Q. If you could turn to page E and first of all explain what this
7 page is and particularly how it differs from the previous record stop
8 signature we saw on page D.
9 A. Again this is a time waveform, same spacing of timing of 0.8
10 seconds. This is another record stop, obviously probably a copy because
11 of all the kind of squiggly noise in here. This spacing is
12 0.553 seconds. And if you look back at the Exhibit D, you can tell it
13 even looks quite different. It's obviously a different tape recorder than
14 was used for the event D and my event 2 minutes and 58 seconds in. E
15 occurs 15 minutes and 57 seconds into the recording.
16 Q. And if you could turn to page F and explain this page, and
17 particularly how it differs from the earlier pages D and E.
18 A. This event occurs approximately 6 minutes and 21 seconds into the
19 tape and has a spacing between the record and erase heads of approximately
20 0.548 seconds. And again it's consistent with a standard cassette, but
21 it's different somewhat in shaping and also in spacing than the events
22 that are on the graphs D and E. So this is a different tape recorder.
23 Q. So if you compare D, E, and F, if I understand your testimony,
24 these waveform analyses reflect that at least three different regular
25 cassette recorders were used in preparing or creating this tape.
1 A. That's correct.
2 Q. And if you could briefly explain the relationship of pages F, G,
3 H, and I.
4 A. Yes, sir. These all have approximately the same spacing of
5 approximately 0.546 through 0.548. So they very well could be the same
6 tape recorder. And these would be events at 16 minutes and 51 seconds in.
7 Q. And that would be page G?
8 A. Yes, sir. Page H is 4 minutes and 39 seconds in, and I is 8
9 minutes and 39 seconds. Additionally, and that's why I said there's a
10 possibility of a fourth, F and G are a very good match with each other,
11 and H and I have somewhat different pattern designs than F and G and it's
12 possible they're a different recorder. However, the spacing between
13 recorder and erase-head are virtually identical with F and G, so therefore
14 I was not willing to say it was definitely a fourth recorder, but it's
16 Q. Now, you had explained earlier in your testimony how you were
17 provided with a digital audiotape recording. Would the fact that someone
18 had to take the Prosecution exhibit and make a copy of that on a digital
19 audiotape, could that explain one of these three or possibly four recorder
21 A. No, sir, for several reasons. First off, the digital audiotape is
22 a professional format and does not leave such signatures, and it would
23 certainly not be consistent with this type of signature even if they did.
24 Second, I had prior recordings provided by your office made on standard
25 cassettes that I went back and looked at, and they were consistent with
1 those two. So these are definitely consistent with what is on the tape
2 possessed by the Court in this matter.
3 Q. If you were to assume that the original recording of these
4 conversations was made on a microcassette, and if then you were able to
5 ascertain record stop signatures for three or possibly four tape recorders
6 on the tape that you were provided, would that be indicative of a
7 multiple-generation copy of the original tape?
8 A. It would depend. We certainly have three or more recorders
9 involved, so these could represent multigenerational copies in the sense
10 that portions of them are copied from one copy and different portions onto
11 a second copy and then a third and a fourth copy; or they could represent
12 the parts of microcassettes or other tapes being copied onto this tape the
13 Court has with different tape recorders used to make the recordings; or a
14 combination of both of them. And now, since we have a copy, it's not
15 possible to determine that.
16 JUDGE MAY: See if I've got your evidence, Mr. Koenig. Would you
17 help us. What you appear to say is this: First of all, there's no
18 support for the assertion that a microcassette recorder was used.
19 Secondly, it's not possible to authenticate the copy of a recording, but
20 only the original. Thirdly, that in this case there are three or more
21 recorders used for making these tapes, and therefore it's possible that
22 they were spliced, or something of that sort. Is that going too far or
23 not? I mean, I want to know what the conclusion you're asking, or it may
24 be the Defence in due course, will be asking us to draw.
25 A. I agree with your statements, with two slight modifications. One,
1 even though I see no indications of a microcassette on these tapes, is it
2 possible that the original was a microcassette? The answer is: It could
3 be, for all the reasons the Defence attorney mentioned.
4 Your comment at the end that I'm saying they're spliced is
5 probably wider than I would be willing to state.
6 JUDGE MAY: Yes. I mean, that is very much a layman's term,
7 obviously, but I mean all it really amounts to is that the tape may have
8 gone through a number of copies.
9 A. Yes.
10 JUDGE MAY: What explanation? It's simply copied a number of
12 A. Portions are, because these stop events occur not at the end,
13 where you might see a bunch of --
14 JUDGE MAY: Right.
15 A. They occur in between the conversations.
16 JUDGE MAY: So it's -- I'm sorry to interrupt, but it's not a case
17 of the whole tape being copied as a whole, but copied -- is this right --
18 bit by bit?
19 A. That would be one explanation, yes, Your Honour.
20 JUDGE MAY: That would be one explanation.
21 A. Yes, Your Honour.
22 JUDGE MAY: But although this explains the tape, at the end of the
23 day we're going to have to decide on the evidence what happened.
24 A. You have the much harder job, Your Honour.
25 JUDGE MAY: Thank you.
1 Mr. Browning, it's coming towards the break. If you can bring the
2 examination to a close, that would be useful.
3 MR. BROWNING: I think I will carry over slightly beyond the
4 break, but we are to the point of wrapping up before long, and I'll leave
5 it to the Court whether now is a convenient time to take a break.
6 JUDGE MAY: Take another -- we started slightly late, so take
7 another five to ten minutes.
8 MR. BROWNING: Thank you, Your Honour.
9 Q. In your report you note that, "copies must be viewed with a high
10 degree of suspicion." Can you explain that statement and the ways that
11 someone can go about altering a tape so that it is not discernible on a
12 copy of that tape?
13 A. First off, my thing of suspicion is more from a scientific aspect,
14 and the Court has to certainly look at things like chain of custody, you
15 know, if somebody involved with this conversation is vouching for it,
16 somebody who was there when it was recorded, many other aspects, legal
17 aspects and investigative aspects that I have no knowledge of, or little
18 of. And it's just suspicious from the point of view of a scientist who
19 can authenticate an original tape but cannot authenticate a copy.
20 The ways of altering a tape are numerous. From what I've heard on
21 this tape, the two likely ways, if it was altered, would be either the
22 tape was physically edited in a way to move information around on it, or
23 the more likely scenario in the modern world is the use of a computer with
24 a sound card and certain types of software programmes that make it very
25 easy to manipulate data on a tape.
1 Additionally, these tapes contain a considerable amount of noise
2 and distortion which would mask any editing attempts, if they occurred, on
3 the tape and make it very difficult, even for someone like myself, to be
4 able to discern that editing has occurred.
5 Q. You had made reference to computer programmes that are available
6 to allow one to edit a tape. Can you explain those computer programmes,
7 how they work, and to what extent are they readily available.
8 A. Yes, sir. They are very readily available. I bought a sound card
9 and it had an editing programme, a kind of a -- not a sophisticated one,
10 but an editing programme came with my computer sound card. The programmes
11 are used heavily in the music, radio, and television and other media
12 areas. Every time you listen to a radio or TV show or commercial, or even
13 a song, it most likely has been quite heavily edited. No, we don't listen
14 to it and detect that. In fact, we might even like the effects of the
15 editing. So the programmes are readily available.
16 To give you an idea, I use a professional editing programme in my
17 laboratory. It's one that's very heavily used in the United States,
18 probably the most heavily used in the professional field, and it costs
19 $400. I've seen programmes that were quite good that could be downloaded
20 free on the Internet. So the access to these programmes is pretty
21 universal at the moment.
22 Q. Would you expect that electronic warfare sections of military --
23 JUDGE MAY: I suspect that's a matter of comment. Unless the
24 witness can give us information about the former Yugoslavia in 1993, I
25 don't think it's going to be a great deal of assistance.
1 MR. BROWNING:
2 Q. Could you explain to us why it's so important to have the original
3 when you do an authenticity examination? What is it that you can do with
4 an original that just can't be done with a copy?
5 A. Well, the reasons are numerous, I have to tell you, but I can
6 certainly name a few.
7 Q. Please.
8 A. Some exams cannot be done. You cannot check for physical splices
9 on a copy, because if you physically splice the original copy, they're not
10 there anymore.
11 Q. Are there other ways that physical examination can be important
12 other than simply checking for splices?
13 A. Certainly. You want to know that the length of the tape is
14 correct; if it's a C-60, that it actually runs 31, 32 minutes a side. You
15 can check things like the batch number from the manufacturer to determine
16 when that tape was made to see if it's consistent with the time period
17 involved. So certainly there's a lot of things you can look at
19 Magnetic development, which is one of the most important
20 examinations you can conduct, which visualises the actual track on the
21 tape -- for instance, if you look at a tape you have at home, a cassette
22 tape, pull it out and look at it, you don't see anything. This allows you
23 to see the track by putting the solution on it, which doesn't hurt the
24 tape. That exam you cannot do because it's a copy. The information
25 you're looking for on the track existed on the original but it is not
1 copied over to the copy.
2 Additionally, a lot of events that may be important or in
3 actuality are not a problem can be easily resolved on original tape. For
4 instance, seeing, where I see here, three different tape recorders or
5 more, on the original tape I could determine absolutely how many tape
6 recorders were involved. I wouldn't be coming to the Court saying it's
7 three or more; I'd be saying it is exactly this.
8 When noise or distortion, like we have on these tapes, is present,
9 if it's on the original and it makes sense, it's the original tape, then
10 you realise that's what the original input signal sounded like. When you
11 hear it on a copy, you don't know if that's been added in the copying
12 process, whether it's been added for negative reasons, in the sense to
13 cover up something. Or if you see noise in certain areas but not others,
14 is that consistent with the copying process of the original? You have no
15 way of knowing. And like I said, there's just a number of things you look
16 at. Narrow-band spectrum. If somebody told me it was a battery-operated
17 tape recorder and I found information that reflected it was plugged into
18 the wall, if it's the original tape, that could be very important
19 information. But once I have a copy, I don't know if that information
20 came from the copying process or was in the original tape.
21 Q. Are there other examples where narrow-band spectrum analysis will
22 assist you if you have the original to examine, but that same sort of
23 analysis is not as beneficial with regard to a copy?
24 A. Yes, sir. There's a lot of those. For instance, if you have a
25 phone conversation, the frequency limits of phone calls is very well
1 behaved because the phone companies set them up in certain ways. Once you
2 make a copy, that can be distorted in ways that makes such analysis
4 Q. Let me focus on magnetic development.
5 JUDGE MAY: That may be a convenient moment to break.
6 MR. BROWNING: Thank you, Your Honour.
7 JUDGE MAY: Mr. Browning, would you look to tailor, please, the
8 rest of your examination.
9 MR. BROWNING: I hope to wrap up very shortly after the break,
10 Your Honour.
11 JUDGE MAY: Very well.
12 Mr. Koenig, I warn you, as I warn all witnesses, please don't
13 speak to anybody about your evidence until it's over.
14 We'll adjourn for half an hour.
15 THE WITNESS: Thank you, Your Honour.
16 --- Recess taken at 11.02 p.m.
17 --- On resuming at 11.35 a.m.
18 JUDGE MAY: Yes, Mr. Browning.
19 MR. BROWNING: Thank you, Mr. President.
20 Q. Mr. Koenig, before the break we were discussing the sort of tests
21 that can be performed on an original audiotape but cannot be performed on
22 an audiotape copy. And I'd like to specifically focus what can be done
23 with regard to magnetic development of a tape but before you do so, can
24 you -- you've discussed record stop signatures. Can you explain what a
25 record start signature is?
1 A. Yes, sir. It's the signal that occurs when you start recording on
2 a tape. That is, the tape sitting there not moving normally, and you
3 press the record and often the play button together to start it recording.
4 Q. And can you please explain, with respect to record start
5 signatures, the difference in analysing those when you have an original
6 tape versus a copy of the tape?
7 A. Yes, sir. Record start signatures are not as unique as stop
8 signatures, normally. Often the erase-head event is erased in the main
9 record signal. However, with an original tape, that information is
10 normally present when you develop it with magnetic development. So
11 therefore, you actually see the start of the erase-head which is initiated
12 through magnetic development, but normally that information is lost and
13 what you actually hear and what is copied from the original to another
15 Q. So as a practical matter, when you have an original, you can look
16 for signatures for record start events, but you generally are unable to do
17 that when you are working with a copy of the tape?
18 A. Well, you'll see characteristics of the start, even on the copy,
19 but they're not normally unique enough to be able to say, like I did on
20 the stops here, that there is a number of different recorders involved.
21 Most of the information is lost in the copying process.
22 Q. Are there any other significant pieces of information that
23 magnetic development will allow you to ascertain on an original but you're
24 not able to use as readily when you're working with a copy?
25 A. There is certainly a wealth of information that magnetic
1 development can tell you; things like matching to a particular tape
2 recorder, determining if what you think is a record event, for instance, a
3 stop or a start is really truly a record event. All that information is
4 lost when you make the copy.
5 Q. Mr. Koenig, if I could ask you, you may have in front of you but
6 -- the report of Mr. Broeders, do you have that handy, and there's one
7 specific question that I want to ask you.
8 A. Yes, sir.
9 Q. If you could turn to section 3.2.3.
10 A. Yes, sir.
11 Q. Mr. Broeders appears to be summarising your report and states,
12 "There is direct substantiation in the form of the presence of replay
13 transients for the statement for the original recordings were made on a
14 microcassette recorder."
15 Could you please comment upon that summary of your opinions and
17 A. Yes, sir. I believe he inadvertently left out the word "no", that
18 is, "there is no direct substantiation". And the word "replay transients"
19 is not a word I normally have seen in my field, but I presume it means
20 transients produced when you play something back. And in my report, I
21 didn't talk about such transients but actually what happens when you are
22 recording on a tape recorder and stopping it.
23 Q. Would you please explain the procedures that are undertaken when
24 you receive audiotape evidence or -- an entity such as the FBI receives
25 audiotape evidence, and what is done with regard to storage and handling
1 and why that is so significant?
2 A. Yes, sir. The FBI and most of the major law enforcement agencies
3 I deal with treat all evidence, and especially evidence like tapes, very
4 carefully, simply because you could have a tape and erase it and without
5 listening to it, it wouldn't look any different. Or you could make --
6 have an original and two copies of it all on the same type of tape, same
7 brand. Without marking them, you would not know which one was the
8 original and which one was a copy.
9 So therefore, they usually will mark things like initials, dates,
10 case numbers, many agencies actually mark "original" on the tape, they
11 write it right on there. And more importantly, they store it in a way,
12 often in the United States, it's an envelope that lists when it was
13 recovered, who from, the date it was made, and then the envelope itself
14 has the chain of custody. The original person has it, signs for it. If
15 that person ever gives it up, he or she signs it over to someone else so
16 they sign and the new person signs and they put the date and the time and
17 the reason for the transfer.
18 So everything is right on an envelope which makes it very
19 convenient to always know what it is, who's had it throughout the whole
20 history. And like a lot of cases it's many years sometimes from the time
21 you record a particular conversation to the time it may be used at a
22 judicial proceeding. So all of these are put that way. Where it's stored
23 is also very important. For instance, magnets on things like loud
24 speakers and other equipment can erase parts of tapes or all of tapes on
1 So like I said, it's very difficult without playing a tape back
2 and knowing what you had to start with, you just can't look at it and say
3 what it is. I can't pick up a tape here and tell you just by looking at
4 it, telling you if it has a recording on it. I have to put it into a tape
5 recorder and listen to it.
6 Q. The report that was filed with the Trial Chamber, is that a full
7 and accurate summary of your opinions and conclusions in this matter?
8 A. Concerning those particular tapes, yes, sir.
9 Q. And that report incorporates, by reference, an article that you
11 A. Yes, sir, an article that was published.
12 Q. And in that article you cite several different examples of when
13 authenticity examinations are typically performed.
14 A. Yes, sir.
15 Q. Could you give me some examples of when authenticity examinations
16 are conducted by agencies such as the FBI.
17 A. Yes, sir. The person that made the tape and had custody of it
18 dies, or is unable to testify because of illness, or the person's
19 whereabouts are unknown. The government often comes to us when they have
20 a tape that was made by the government; however, it might have blank areas
21 on it; or for some reason there was a problem with chain of custody; tapes
22 in which a tape is given to the governmental agency and the governmental
23 agency is unsure of its authenticity, maybe because the person that gave
24 them the tape has a lengthy criminal record; or other problems that might
25 make his or her testimony in court, the reliability of the tape, not very
1 acceptable to a jury or a judge.
2 Q. I take it that would also apply when there's bias or motive by the
3 person --
4 JUDGE MAY: Mr. Browning, this is a Tribunal of professional
5 Judges. I don't think we're assisted by going through what are fairly
6 obvious points.
7 MR. BROWNING:
8 Q. Mr. Koenig, can this tape that you were provided be authenticated?
9 A. No, sir, because it's a copy.
10 Q. If someone has reasonable resources and a sufficient number of
11 voice samples and is given a general instruction to -- as to the sort of
12 thing they would like a tape to say, is it possible to pick and choose
13 from those voice samples and put together a tape that will audibly sound
14 like a true and genuine conversation?
15 A. Yes, sir.
16 Q. And if that tape is then copied over, is there any way to
17 determine whether that altered tape is genuine or not?
18 A. No, sir, not in the laboratory.
19 Q. If someone is familiar with principles of forensic analysis of
20 tape recordings and someone wants to propound a tape that has been altered
21 in some way, would you expect that person to submit a copy or an original?
22 A. They would always submit a copy.
23 MR. BROWNING: Thank you. I have no further questions at this
25 MR. KOVACIC: Thank you, Your Honour. We don't have any
2 Cross-examined by Mr. Nice:
3 Q. Mr. Koenig, your last substantial answer -- I'll just read the
4 question to you again by Mr. Browning: [as read] "If someone has
5 reasonable resources and a sufficient number of voice samples and is given
6 a general instruction to -- as to the sort of thing they would like the
7 tape to say, is it possible to pick and choose from these voice samples
8 and put together a tape that will sound like true and genuine
9 conversation?" You said, "yes" to that. It's not in your report, is it?
10 A. That was a hypothetical question. It wasn't part of my analysis.
11 So the answer is no, it's not in my report.
12 Q. It's not in your report and it's outside your area of expertise,
13 because you are an engineer rather than a person with particular speech
14 skills; wouldn't that be right?
15 A. No, sir, that would not be correct.
16 Q. It is not a question of whether you can cut bits of tape from
17 different sources and paste them together into something. That's
18 something about which of course you're able to speak. But it's the last
19 part: "sound like a true and genuine conversation." Do you really say
20 you can answer that question?
21 A. Yes, sir.
22 Q. I'll come back to that later.
23 When were you first instructed in this case?
24 A. I was hired in this case on February 18th of this year.
25 Q. Never having received earlier copy tapes before Christmas or
1 anything like that?
2 A. No, sir.
3 Q. There's one part of your evidence I didn't fully understand, but I
4 think I did. You first of all received copies provided by the Defence,
5 which were not digital copies or anything like that, I think.
6 A. That's correct.
7 Q. You've since been able to compare those with digital copies of
8 materials held here at Court; is that correct?
9 A. Yes, sir.
10 Q. And there is nothing inconsistent between copies you first
11 received and the second copies to cause any concern?
12 A. I would say overall that's a correct statement. The cassette
13 copies had some of the signatures produced by the copying process which
14 the digital tapes did not. And second, the digital tapes were of higher
16 Q. Yes, but apart from that, that they were going to be of higher
17 quality because they were digital, there's no inconsistency between the
18 one and the other, nothing to suggest foul play or dirty work at the
20 A. No, sir.
21 Q. I suspect I'm going to be going too fast, so what I'm going to try
22 and do is to tune to channel 5, which is French. And you might want to do
23 it if I start going too fast. Put it around your neck, and you can then
24 hear when the translation of my question or your answer is completed and
25 we don't stretch the interpreters beyond their proper abilities. It's a
1 matter for you.
2 Is this the only report that you've prepared for Hunton & Williams
3 in with respect of this tape, or is there any other report which you've
5 A. This is the only report.
6 Q. Your instructions are not necessarily entirely clear. What were
7 you instructed to consider, please?
8 A. I was asked to examine the tapes provided to determine if there
9 was anything I could say, since they were copies, concerning their
11 Q. If we look at your very helpful article, which is appended to your
12 report --
13 MR. NICE: I'm afraid I haven't been able to detect from this side
14 of the Bench monitor housings whether the Chamber has its own reports
15 before it or whether it will want matters put on the ELMO.
16 JUDGE MAY: Put the relevant parts on the ELMO.
17 MR. NICE: Can we just put, first of all, page 8. I'm afraid it's
18 been highlighted by Mr. Broeders, but we won't let that trouble us. This
19 is within the section dealing with critical listening, and it's the last
20 paragraph on the bottom of the page on the left-hand side, please. Thank
21 you very much. Up a bit more. Other way. Up a bit. Sorry. That's it.
22 Q. The last -- this is what this paragraph says:
23 "The last general area of aural review is a detailed examination
24 of the foreground information, including pertinent voices, various
25 high-level sounds, pre- and post-conversation narratives by the operator,
1 contextual information and overriding RF transmissions. Examples of aural
2 events requiring further instrumental analysis include sudden, unnatural,
3 or linguistically peculiar changes in an individual's voice or cadence,"
4 and then inconsistency with beginning and ending times given by the
5 operator and the actual length of the recording.
6 Then this: "... an abrupt and unexplained change in the topic of
7 conversation," and then "interrupting radio transmissions."
8 May we take it from the format of your report, Mr. Koenig, that
9 you found nothing in the form of peculiar changes in a voice or cadence
10 and that you were alerted to no unexplained changes in topics of
12 A. That would be correct.
13 Q. Thank you. And that's one of the things in checking the integrity
14 of a tape recording that, overall, has to be considered?
15 A. Yes, sir.
16 Q. Thank you. There may be one other passage in your report that I
17 want to refer to, not the passage where you set out where you should
18 prepare for cross-examination and the questions that will be coming your
19 way. I needn't trouble you with that.
20 Perhaps I can just come back to page four. If the usher will be
21 good enough, we'll substitute one page for the other. It's the top of the
22 page, really. Same general topic, where you are considering how you
23 should approach the problem of the questioned tape. You list some of the
24 material that you would want to find and you say under -- you can see a
25 little "1" there:
1 "Sworn testimony or written allegations by defence, plaintiff or
2 government witnesses of tampering or other illegal acts. The description
3 of the problems should be as complete as possible, including exact
4 location in the recording, type of alleged alteration, scientific tests
5 and so on." And you then make the point which we don't challenge at all,
6 number two, "Copies of a recording cannot be authenticated and are not
7 normally accepted." But I'm concerned with the previous subparagraph.
8 Here, may I take it, you were not given any instructions by the
9 Defence as to what it was said had happened.
10 A. That would be correct.
11 Q. Just to make absolutely plain what I'm suggesting, if somebody had
12 had a conversation to borrow from, but not otherwise to relate to our
13 case, if someone were to have had a conversation where he had said, "You
14 want me to shell Zenica? Let's talk sense. Of course I'm not going to do
15 that," and you were invited to consider the possibility that that
16 conversation had been corrupted and reduced to the form of, "Let's shell
17 Zenica," then that would help in your analysis, wouldn't it? Because you
18 would know that what you were confronting was the possibility of a passage
19 being cut out and another word being picked up from the second sentence,
20 the word "let's" and placed in front of the two words "shell Zenica".
21 A. Yes, sir, that would be helpful if I had the original tape.
22 Q. If would also be helpful on a copy tape for at least two and
23 probably more reasons, wouldn't it?
24 A. It would, to some extent, be helpful, but the problem is that you
25 could have a break in a conversation that occurred on the copy that might
1 be unexplainable that would certainly be probably explainable on the
2 original. So therefore, having a -- knowing that information on a copy --
3 for instance, let's say that happened, it was some place in this recording
4 it was obvious there was a break, I, as a forensic scientist, could not
5 tell this Court what the reason was for the break on that copy. I could
6 potentially guess or give some possible scenarios; however, I would need
7 the original tape to make that determination.
8 Q. We don't have the original, so if you had received instructions as
9 to how a corrupted tape might have been created using my little example,
10 you would be able to consider context, correct, in the balance of the
12 A. Well, theoretically, maybe. However, it's so easy to make these
13 edits in ways, if you do it well, that would never be obvious, and it's a
14 copy. So therefore, I am very restricted with a copy.
15 Q. The context in the setting of the conversation as a whole is what
16 I'm referring to.
17 A. I -- I understand your question. I'm just saying that people in
18 my profession are very limited when we have a copy. You could have a copy
19 that sounds exceedingly altered and you get back to the original and
20 discover that all these areas you thought were a problem are not a problem
21 on the original.
22 Q. I'm only using your own words at page eight of your paper,
23 contextual information. I assume amongst other contextual information
24 that would guide judgement on authenticity would be the rest of the
25 conversation. It's bound to be, isn't it?
1 A. This paper relates to original recordings, and it's an accurate
2 statement of the things you need on original recordings. Finding problems
3 like that on copies is not conclusive that that tape has been altered.
4 Q. Well, rising and falling cadences applies whether it's an original
5 or a copy.
6 A. Let me give you an example why I agree with your statements
7 involving an original tape and not a copy. Let's say the original tape
8 had some of the oxide come off the tape so therefore that little section
9 wouldn't record very well. If you played the original tape back, you
10 would hear a drop-out there that might affect cadence and other linguistic
11 things just by listening. On the copy you might say, "Well, there's
12 something wrong with that." However, access to the original would quickly
13 show that it's just some take oxide missing and therefore nothing happened
14 in a suspicious way at all.
15 So this paper, like all other work in the forensic authenticity
16 field, relates to original recordings. You are very limited to the kind
17 of statements that can be made on a copy.
18 Q. The final example that I think you might like to consider which I
19 think, indeed, Mr. Broeders considers, is if you are going to cut a bit of
20 a tape out and move it around into some other bit of another tape, you may
21 have the problem that, for example, two people are speaking at the same
22 time or one person is laughing over the conversation of another which we
23 have, indeed, in these tapes. And then if you just try and splice the
24 word, in my example, "Let's talk sense", or whatever I said -- take the
25 word "let's". If that's got part of continuous laughter from another
1 speaker on the conversation, it's going to be rather difficult, isn't it?
2 That's one of the sorts of problems you will encounter.
3 A. Yes, sir, that is a concern. But the other end of the coin that
4 makes it difficult is modern editing programmes certainly allow you to
5 overlap. So someone that has a word from a source that he needs to cut
6 off may cut it off from that source and then overlap it with the next
7 person talking on a tape in a way to cover up his limitations of source
8 material to use for the editing.
9 So what I'm saying is you can make a case for either way once you
10 have an overlapping statement on a tape that's a copy, that it could have
11 been done purposefully in the copying process or, like you said, it's an
12 indication from the original that, in fact, it's continuous to that
13 section. You cannot determine that with a copy.
14 Q. I'm afraid I don't understand your answer but if you've got a word
15 that's actually part of the conversation where somebody's overspeaking
16 somebody else or speaking over someone else and you then try and insert
17 that in a piece of conversation where there's nobody speaking over someone
18 else, you've got a difficulty, as an example?
19 A. The answer is that if you knew that that was, in fact, from the
20 original tape, you would be correct. But, the other side of that is that
21 this overlapping of the two voices could have occurred purposefully in the
22 editing process where you take two samples and purposefully overlap the
23 two voices when you make the copy. It could be either way, and you would
24 have no way, after the fact, of knowing if it is overlapping speech in the
25 original recording or something that was done in the editing process.
1 Q. Before we turn from the page that you've got there before you,
2 just have a look a little further down on the left-hand side. You deal
3 with examination requests, if the usher could just move it down a little
4 further. We can see that the most -- the third largest type of referral
5 that you identify is, towards the bottom of the page, "is initiated as a
6 result of paid defence or plaintiff 'experts' who allege that the tape has
7 been altered or produced in an illegal manner."
8 That's a common experience of yours.
9 A. Yes, sir. In fact, my -- even since I have retired that is a
10 large source of my work. People that make statements about tapes that
11 ultimately prove to be not true.
12 Q. Thank you. Can I have the passage back, please.
13 And I return to my previous question. On a copy, a fortiori on an
14 original, the examining scientist will be assisted by having detailed
15 instructions from his client of what could have happened or what, indeed,
16 if the client can remember well enough, what did happen.
17 A. We would always like to have that information. I would say that
18 probably in at least half my cases, I do not, both at the FBI and
20 Q. I only have a few questions of your report because little of it is
21 in dispute. The first point is this: You deal in paragraph one on the
22 first page, the first substantive page, you deal with three possibly four
23 different types of tape recording stop signatures.
24 Now, your report didn't adduce the charts so we aren't in a
25 position to deal with them. And you don't, I think, have but correct me
1 in I am wrong, a record of exactly between these conversations where these
2 stop signs appear. If you do, let us have it.
3 A. I have a general chronology. I obviously don't speak the language
4 they are talking, and I have the times that I did list. So anyone could
5 take the tape, take the times, and find out exactly where they are
7 Q. Well, we can do that, but if you don't have otherwise listed, I
8 won't take time now. And there are only two points I want to make or
9 three about stop signs. But the first point is of course, none of these
10 stop signs occurs within a conversation, they only occur at the beginning
11 and end or at the end?
12 A. The answer is yes, sir, except they are called "stop signatures",
13 not "stop signs".
14 Q. Second point, although tape recorders, perhaps more particularly
15 modern ones, by and large do replicate their own stop signature, they are,
16 in fact, capable of producing variable and changing stop signatures;
18 A. Are you talking about a particular tape recorder?
19 Q. No. We don't know what particular tape recorder was used here,
20 just in general.
21 A. Well, I guess my question is are you talking about all tape
22 recorders taken as a thing or a particular recorder having variability?
23 Q. I'm not talking about a particular recorder because -- I see what
24 you mean, yes. If I understand your request for clarification, I'll
25 repeat my question.
1 Tape recorders, particularly modern ones, do replicate their own
2 stop signature but they are, in fact, or some are, in fact, capable of
3 producing variable stop signatures.
4 A. The answer is, variability in certain ways. Usually, the spacing
5 between the record- and erase-head, because it's physically held on a
6 block, a head block within the tape deck itself, tends to be relatively
7 invariant. However, the signature's patterning can certainly vary on
8 certain recorders from one stop to another.
9 Q. Thank you. For example, just so that I can make what I believe to
10 be Mr. Koenig's position now that -- not Mr. Koenig's position,
11 Mr. Broeders' position now that he's seen your documents clear, and if
12 I've got it wrong he'll correct me. If one looks at, I think it's the
13 last two, which is H and I on this document D289/1, if you look at those
14 two, and then come back to G and F, yes, the appearance there is, indeed,
15 of what's probably different stop signatures. Because, for example, in H,
16 before you reach the downward movement of the recording device, you have a
17 little upward movement, as an example. And if you then go back before
18 this, just so that I can complete the question to save time, and you look
19 at the beginning of the stop signature again, the -- what we see on H is
20 similar in overall shape but different in constituent lines from what we
21 see on G.
22 A. Yes, sir. I agree with the statement. In fact, that's why --
23 this was the set, these four, where I said there might only be one tape
24 recorder involved or there might be two. And I couldn't decide -- I just
25 said this one's one for sure, and possibly represents two, these four.
1 Q. Well, you accept from the previous answer, as I understand it,
2 some accuracy in my proposition to you that the same tape recorder may, in
3 certain circumstances, produce variable stop signatures?
4 A. Yes, sir.
5 Q. Thank you. The next point I think is an obvious point and I
6 suspect His Honour's already covered it, but just to be sure that I do:
7 If the original material comes from a minicassette, which we've been told
8 it did, and is copied onto different -- sorry -- onto either the same or
9 different tapes on different recorders, and then those tape recorders,
10 those tape recordings, are then loaded onto a further tape with a
11 different recorder, you will have stop signatures for each of the
12 recorders concerned, or you may do.
13 A. That would be correct.
14 Q. Thank you. As you will appreciate, Mr. Broeders takes issue with
15 what's on your last page, page 3, where you say, in bold terms, in the
16 middle of the page, "For the above reasons, and others, multiple
17 generational copies must be viewed with a high degree of suspicion
18 regarding their authenticity." There is, of course, nothing intrinsically
19 unreliable in a later generated copy of a tape from the original, nothing
20 inherently unreliable, is there?
21 A. The answer is, as I explained before, that my statements here of
22 suspicion relates to scientific analysis of the tape, and your question
23 about, 'that it could be that these tapes are fine,' is a statement that I
24 have no disagreement with. And as I explained to the Court, they need to
25 look at all the data involved. Whether somebody involved with the
1 conversation can testify, whether somebody was there when the original
2 recording was made, the chain of custody of the tape in between: These
3 are all very important factors, obviously, when you have a copy and you no
4 longer have an original tape, that a scientist can look at to determine if
5 it's authentic or not.
6 Q. Yes, but -- I'm sorry. That's all contextual material. To take a
7 homely example to make the point: A young man marries and sends a tape of
8 the wedding to his grandmother. She likes it so much, she sends a copy to
9 her children, his uncles and aunts. They like it so much, they send a
10 copy to their children, his nephews and nieces. We're now up to a
11 third-generation copy. There's nothing in the fact that it's a
12 third-generation copy to lead the nephews and nieces to believe that the
13 marriage vows weren't taken, is there? There's nothing inherently
14 unreliable in copying and copying?
15 A. I agree with your statement. However, in that statement there
16 would be a large number of people that attended the wedding, I would
17 presume, and could testify, if they had to, to the veracity of that copy
18 of a copy.
19 Q. And here, of course, we have a person, as we know, who actually
20 listened to the conversations at the beginning, listened to them over and
21 over and over and made the recordings himself. Perhaps you didn't know
22 about that.
23 A. I'm actually not familiar with the -- that's why I give you the
24 examples of things that I believe the Court should consider. I do not
25 know what evidence is available.
1 Q. No, no. The evidence is that recordings were made by others in
2 his team or whatever, but he listened to the material and so on.
3 In short, from all the material that you have been able to look at
4 and consider, there is nothing that you can point to in the copies of the
5 tapes that you've listened to -- first, the analog copies that came your
6 way from the Defence counsel; later, the digital copies -- there's nothing
7 that points to the conversations being corrupted in any way?
8 A. I would agree with your statement, other than certainly the
9 beginning and ends of the conversations in many areas are cut off.
10 Q. But if, in the process of storing or recording material from
11 stored material, the operator, whoever it is, decides he knows what he
12 wants and he knows what he doesn't want, and he simply starts the last
13 phase of this recording where the conversation begins and ends it where he
14 ends, without copying the start and stop signals of the telephone call,
15 nothing surprising in that?
16 A. It's certainly considerations the Court has to give to such
18 Q. Thank you. If we go to Mr. Broeders' report, just a couple of
19 points. First of all, where he deals -- you've got different names for
20 the tapes and so on, which is slightly confusing. And I am so simple, I
21 have to call them tape 1 and tape 2, and your Qc5 is what I'm calling tape
22 1 and your Qc4 is what I'm calling tape 2. And if we look at the material
23 in Mr. Broeders' report, at page -- well, at 126.96.36.199, he notes that
24 conversation 10 starts with "hello" and ends after some 30 minutes from
25 the beginning. He sets out how, as it were, each side -- what it comes to
1 is this: Each side of the tape ends in the same way, doesn't it, although
2 there was capacity on one of the tapes, I think it's tape 2, to take more
3 if it had wanted to?
4 A. That's correct.
5 Q. So that this fits with somebody having a tape that he knows is
6 recorded on two sides, pressing the relevant buttons so that the first one
7 runs through, and then simply turning them over and pressing the buttons
9 A. Yes, sir.
10 Q. Thank you. He also makes the point -- and I'm sure you won't have
11 overlooked this -- covers your point on dealing with poor quality. He
12 makes the point, which I'm sure you've taken account of, that the speakers
13 on the phone themselves refer to the poor quality of the line that they're
14 using, don't they, from time to time? They say the line is breaking up
15 and things like that and they can't hear each other.
16 A. It's been a while since I read the transcript, so I'll take your
17 word for it that that's true.
18 Q. Thank you very much. Let's now deal with the other exhaustive
19 analysis Mr. Broeders gives of the potentials for corrupting tapes, and we
20 see that at 4.16 his report. You didn't cover this at all your report,
21 but he's actually set out there, has he not, all the ways in which there
22 is potential for creating false tapes; correct?
23 A. This is a very large field. I'd hate to say that this was an
24 exhaustive list, and I'm sure that he would not agree to that too.
25 Q. I don't mean exhaustive in all comprehensive, but he's done his
1 best for the audience -- not the audience -- the readership that he has,
2 namely, lawyers in an important case, to survey the various potential
3 means of producing a corrupt tape?
4 A. Certainly these are major ones; yes, sir.
5 Q. And his conclusion is that the only, as it were, conceivably
6 relevant candidate is a mission in rearrangement. You'd accept that?
7 A. Yes, sir. I, from the beginning, have found no information on the
8 other ones he listed as being consistent with anything I heard on the
10 Q. Mercifully for courts at present -- things may change -- voice
11 synthesis is not yet at such a level as to be undetectable. Voice
12 synthesis lands you up sounding like Stephen Hawking, doesn't it, a little
14 A. Certainly one consideration that really this doesn't go into is
15 that it is possible to synthesize small segments of speech to fit in with
16 regular speech. And if it's short enough, the human ear is not going to
17 be sensitive to that. Even though I found no indications of that, I would
18 say that that is certainly a potential for a very sophisticated individual
19 could consider doing things like that.
20 Q. There's absolutely no empirical evidence to suggest that
21 conversations of the lengths and type that we've got here can be generated
22 in a synthetic way, bearing in mind that the defendant himself, through
23 his counsel, made it clear that he recognised the voice as his own, you
25 A. My comment wasn't meant to be a lengthy thing. It was that you
1 could sometimes fill things in over a tenth of a second or less to make
2 something fit that didn't fit very well before.
3 Q. But that's as far as it goes. You're not going to be able to
4 create a Bruce Koenig hologram, with your voice elsewhere giving evidence?
5 A. That's an interesting thought. I could increase my income if I
6 could be at two places at one time.
7 Q. Double fees. Let's just look briefly at a couple of pages of the
8 transcript to see what's being raised.
9 MR. NICE: Can we look at the first conversation, and can I have
10 it, please, in both English and in the B/C/S.
11 Q. Mr. Koenig, I suppose you, like me, don't speak B/C/S.
12 A. No, sir.
13 MR. NICE: But nevertheless, if there's a particular problem, we
14 can look at it there. If we look just at what on the English first of
15 all, is page 2, which starts with: "Let's have that VBR multiple rocket
16 launcher, friend." Lay that on the ELMO. Thank you very much.
17 Q. Not only have you not found any evidence or been advised of the
18 suggestion that there is any evidence for cutting passages or pasting
19 passages of this particular part of the conversation, but if we look at
20 the top line, "Let's have that VBR, friend. Get it ready for me, for
21 Kacuni and Lugovi over here. Let me hear it raw." That's how it reads.
22 But you're not, I think, suggesting that it's possible to pick up each one
23 of those words from other conversations and paste them together to make an
24 acceptable version of that sentence, are you?
25 A. No, sir.
1 Q. Thank you. Or, and we can simply -- we can take another example
2 to show the reverse. If we go to line 6, I think I can just about create
3 an example, which presently reads: "Listen, you prepare everything.
4 Select the targets for the mortars and the VBR and everything there is.
5 Let's burn everything." Likewise, point number 1, you're not suggesting
6 that such a sentence could be constructed from individual words?
7 A. Except where there's a break of an individual word. For instance,
8 if the person went "listen," certainly that word could be placed in.
9 Q. Right.
10 A. But when words run together, you have a lot of problems. You
11 can -- and I've seen it done in movie studios a number of times and
12 forensically once in a while -- you can, if you spend enough time,
13 sometimes get a couple of words together from different sources and make
14 them fit. But it is very difficult, if you have ten words that are
15 running together in a sentence, to put ten words together. I would agree
16 with that statement that it's very difficult.
17 Q. Thank you. I'm trying to think of an example where we can make
18 one of these sentences into the negative of what it is. Perhaps that's
19 not the best example. But if you were to say something along -- take the
20 second part of that sentence. If there had been a sentence that said:
21 "For goodness' sake, don't select the targets for the mortars and the
22 VBR," just take part of it, "For goodness' sake, don't select the targets
23 for the mortars and the VBR," then of course, in your experience, you
24 could always cut out "for goodness' sake, don't" and you're left, with
25 that little phrase, the reverse of the true meaning.
1 A. Again, it would depend -- it's easier to always take things out
2 than add, but even there, if it ran into the word "select," you would have
3 a problem. So it would have to be kind of a linguistic break at that
4 point. Normally, again, you can play tricks sometimes, but not always.
5 Q. You realise I'm trying to make the case as favourable as possible
6 for the defendant on this analysis.
7 A. That's what the Defence told me before I came here, that you've
8 been trying to do that.
9 Q. That's what I do. I think it says in your report you've got to be
10 prepared for -- I won't waste time. The Chamber can read it for
12 Can we look at page 2 of the B/C/S version, please, because this,
13 of course -- if we just lay this on the ELMO. And it creates -- it shows
14 the even greater difficulty for the B/C/S language than for the English
15 language in selecting odd bits and pieces of language. If we look at the
16 top line, third from the right, we see -- I should no doubt get the
17 pronunciation wrong, but we see the village of Kacuni, but in a particular
18 case, because in this language nouns decline: Kacune. If you come down
19 to line 18, it's not a spelling error; it's a difference, I think --
20 Mr. Kovacic will put me right, or one of the interpreters -- it's a
21 different case, Kacuni. If you come round to line 29, again it's not a
22 different name or the name of a person; it's Kacunima, which I think
23 again, is again a different case for the same noun. And of course in a
24 complicated and sophisticated language, like B/C/S or Croatian is, there's
25 all the additional potential for catching out corruption because the
1 language can be wrongly constructed or with the wrong ending for a
2 particular word. You'll agree with that?
3 A. Yes, sir.
4 Q. Yes, I have just to complete then the topic, and I think it's
5 really my last question. You were referring to a very sophisticated
6 editing programme that you can buy for $400, or something like that, and
7 so no doubt you can. But that doesn't, in any way, affect the general
8 proposition that you and people aren't yet in a position to create
9 conversations out of single words because by and large, they're not.
10 A. I think I understand what you're trying to say, but you asked if
11 you could make a conversation out of a single word, and I'm not quite sure
12 what it means.
13 Q. Well, the ones that we've been looking at. Single words?
14 A. Oh, single words. Yes, sir, I would agree that that is difficult
15 except for small samples or sets. If you've got lots of information and
16 lots of time, even then you can't always do it, but you can space two or
17 three words in a row because I've seen it done a number of times in a way
18 that can you not detect just by listening.
19 Q. That's the value of the highly sophisticated editing programmes.
20 A. Also, I think not only the editing programme, maybe that's not
21 even the most important thing, in some ways is having enough samples and
22 enough time to go through them to find what fits.
23 MR. NICE: Nothing else, thank you.
24 Re-examined by Mr. Browning:
25 Q. Mr. Koenig, I just have a few brief questions for you. Mr. Nice
1 was asking you some questions about selecting words by having someone
2 overspeaking and trying to insert those into an altered tape. If you were
3 going to include words and alter a tape and create a manufactured tape, I
4 take it you would turn to words where someone is not overspeaking as your
5 samples of voices to be included in making the tape.
6 A. That would make a lot of sense, yes, sir.
7 Q. And then once those voices were included, it would be possible to
8 add overspeaking or other noises on top of the voices that you have put on
9 the tape?
10 A. Yes, sir.
11 Q. Now, Mr. Nice had asked you some questions about the variability
12 of cassette recorders. Would that range of variability or the fact that
13 occasionally a tape recorder might have some variability, would that
14 explain the different and distinct record stop signatures that you
15 recognised in your analysis?
16 A. No, sir. The main part of my decision was based on the record of
17 erase-head distance which is on a head block within the tape recorder, it
18 is normally quite invariant. Where it went into a different pattern like
19 in the last four that we mentioned, I was not willing to say it was two
20 recorders. I just said it's possibly another recorder.
21 Q. So the range of variability for a single tape recorder that you
22 are referring to is fairly narrow range of variability?
23 A. You have less variability in the spacing between the record- and
24 erase-head than you would between the actual patterns. You can get -- how
25 the tape hits the head and for a number of other reasons, you can get some
1 variability in the shape of especially the erase-head marks, but the
2 distance would stay the same and that's what I really base my decision
4 Q. Mr. Nice had asked you some questions about piecing together an
5 altered conversation using single words. Let me focus upon phrases,
6 sentences, and breaks in a conversation or sentence. Is it easy to take
7 breaks or individual sentences and reconstruct an altered conversation
8 that sounds genuine?
9 A. Yes, sir. If the component parts are from the same general
10 environment and the person is talking generally the same way, you can
11 piece together separate phrases that are true phrases and the person
12 breaks in their speech with other phrases and sentences to make a complete
13 recording. We all see this in things like movies, music, radio,
14 commercials. These are all very heavily edited. Where the original
15 person might have spoken for 15 minutes on the commercial, done it 30
16 times or 50 times or 100 times, and they take portions of each of those
17 100 that they like and piece them together to make that commercial. Even
18 though it sounds, to the listener, as being continuous speech, it never
20 Q. Mr. Nice had asked you a series of questions about the Croatian
21 language and the example that he used was a variations of the village of
22 Kacuni. First of all, you do not speak Croatian, do you?
23 A. That's correct.
24 Q. And the fact that there might be different variations of a word
25 such as Kacuni simply means that someone trying to alter a conversation
1 might need more samples to cut and paste from?
2 A. That would be true.
3 Q. Now, on the topic of the Croatian language, when you went through
4 these tapes, I take it that the changes in individuals voice or cadence
5 was not a particular focus of your analysis since you do not speak
7 A. That would be correct. I would be listening for something that
8 was more major, and I even found a few of those areas on here but, again,
9 since it's a copy, I have -- I did not put a negative connotation on
10 that. I just felt that since it's a copy, I have no way, as a scientist,
11 to say anything negative or positive about such events.
12 Q. You do not address linguistic issues in your report but focussed
13 upon the forensic information that was available.
14 A. Yes. Since we have a copy, and I'm not familiar with the
15 language, basically anything I found there would not be meaningful, in my
16 opinion. In other words, it was very limited what I could do with a
17 copy. I looked for the signals and characteristics that would provide me
18 some conclusive information, if possible, regarding the original tape from
19 what was on the copy, and I was limited to that because it was a copy.
20 Q. And certainly you don't address linguistics in your report or in
21 your opinions?
22 A. Not in any -- directly with the language. Certainly listen for
23 flow of speech, and all and there's certainly areas on the tape where, if
24 it was on the original tape, it would be something I would consider
25 strongly to look at and analyse but since it's on a copy, it's just not
1 very meaningful to me that -- you know, I could spend a lot of time and I
2 would still be inconclusive no matter what I came up with.
3 Q. Did any of the questions or propositions that the Prosecution has
4 put to you here today in any way change your opinions in this matter?
5 A. No, sir.
6 Q. And I take it you stand by what you've told the Court here today?
7 A. Yes, sir.
8 Q. Now, Mr. Nice had asked you some questions about whether the tape
9 could have been corrupted. Is this a tape that easily could have been
11 A. That's a difficult question. Let me see if I can give you the
12 best answer I can. At one end, the hardest tape to corrupt would be a
13 tape that two people were talking and there were conversations in the
14 background, for instance, so then you not only have to worry about those
15 two people talking, but editing with a lot of people talking in the
16 background and that would become very difficult to edit. Tapes that are
17 fairly good quality with these backgrounds are probably the most
19 Here, we mostly have just the two speakers. I think most of the
20 other information we hear is probably due to the duplication processes
21 acoustically, and we have a lot of noise and distortion. So it's
22 certainly more susceptible if somebody wished to edit this information
23 than would be the other example I gave.
24 Q. Have you ever been involved in any criminal proceeding in which a
25 conviction was based on a copy of a copy --
1 JUDGE MAY: No, that is not a matter for the witness, it's a
2 matter for us.
3 MR. BROWNING: Thank you, Your Honour. No further questions.
4 JUDGE MAY: Thank you. Thank you, Mr. Koenig, that is the end of
5 your evidence. Thank you for coming to the International Tribunal to give
6 it. You are free to go, but if we are going to have some evidence, no
7 doubt your presence will be requested by the Defence.
8 MR. BROWNING: It is so requested, Mr. President.
9 JUDGE MAY: So if you'd like to go and join them, we'll hear the
10 evidence for the Prosecution.
11 THE WITNESS: Thank you, Your Honour.
12 [The witness withdrew]
13 MR. NICE: I will call Mr. Broeders whose report is before the
14 Chamber but whose curriculum vitae has now been provided this morning and
15 we would ask that that simply be added to his report and become part of
17 MR. SAYERS: Mr. President, if I may just rectify the absence of
18 seating over on our side for just a few seconds, I'd appreciate it.
19 JUDGE MAY: Yes, let the witness take the declaration.
20 THE WITNESS: I solemnly declare that I will speak the truth, the
21 whole truth, and nothing but the truth.
23 JUDGE MAY: Thank you, if you would like to take a seat.
24 WITNESS: ANTONIUS PETRUS ARNOLDUS BROEDERS
25 Examined by Mr. Nice:
1 Q. As your curriculum vitae reveals, you are Dutch, Mr. Broeders,
2 your education is set out --
3 JUDGE MAY: Perhaps for the record, we could have the witness'
4 full name.
5 MR. NICE:
6 Q. Sorry can you give us your full name, please?
7 A. Broeders, Antonius Petrus Arnoldus.
8 Q. And you are currently employed by whom?
9 A. The National Forensic Institute which is the Forensic Science
10 Laboratory of the Ministry of Justice in the Netherlands.
11 Q. Education and employment history revealed, just focussing on, as
12 it were, the last two jobs. You've been working in the Ministry of
13 Justice since when?
14 A. 1988.
15 Q. Before that, what were your skills?
16 A. Before 1988, I worked as an university lecturer in the University
17 of Nijmegen, also in the Netherlands, and I was involved basically in
18 teaching research in the areas of phonetics and linguistics and more
19 specifically in the phonetics of English, varieties of English and those
21 Q. You started your work in forensic science, as we can see, how soon
22 did you start to work on tape recordings?
23 A. I think probably in -- within two years. I'm not -- I don't
24 remember exactly what the first case was that I did, but it was pretty
25 soon after I started.
1 Q. Does that mean that you do the physical examination of tapes
2 yourself or do you do it in part working with colleagues or what?
3 A. As you can see from the report that I submitted, the work in this
4 case was done by myself and a colleague but originally, I was on my own,
5 and I used to work on my own then.
6 Q. Various skills and techniques spoken by Mr. Koenig, various
7 apparatus he uses, are you familiar with?
8 A. Well not -- I wouldn't like to say in every detail, but I'm
9 familiar with Mr. Koenig's work and with his publications, with most of
10 his publications, I think.
11 Q. And the examinations that he speaks of, do you do those yourself
12 or are they done in your laboratory for you or are they not done?
13 A. To some extent they are also done in my laboratory.
14 Q. And by you?
15 A. By me or by my colleague or together. Actually, we work in pairs.
16 Q. Your particular background, does that give you a skill different
17 from those who examine tapes from an engineering or electronic or whatever
18 it may be perspective?
19 A. Not necessarily, because I think there are basically two types of
20 questions. One is the authenticity question, the second question is the
21 integrity question. And when it comes to integrity questions, I think the
22 question of speech creation, as it were, or synthesis arises, and that is
23 an area that is, strictly speaking, different from the one of
25 Q. I summarised your opinions on the speech creation and synthesis in
1 very short order suggesting, as you had said at the end of your report,
2 that the only one potentially relevant here would be the omission of or
3 rearrangement of quantities of speech. Does that, although in very short
4 order, summarise your position?
5 A. Yes, I think it's fair to say it does.
6 Q. I'll return to that in a couple of minutes. But before I do, as
7 to stop signatures and the like, if, as is the case, they don't appear
8 anywhere within the various conversations that have been considered and
9 examined, do they have any bearing, in your judgement, on the authenticity
10 of the passages of conversation?
11 A. Not -- well, I mean, you have to make the reservation which I
12 think I've also made in my report, that it is technically possible to feed
13 analog recordings into a computer system. That manipulates the language
14 or the signal in such a way that no traces are left and then to record it
15 back on to a cassette.
16 Q. Yes.
17 A. That is always possible and that would leave no traces. So,
18 unfortunately, it is the very fact that you do not find indications of
19 tampering cannot be taken to imply that no tampering has taken place.
20 Omission is a distinct possibility technically, at any rate.
21 Q. I understand that. And I was going to come back to it in any
22 event, omission or addition, but before we come to that, given that the
23 blocks of conversation, the passages of conversation are not themselves
24 interrupted by stop signatures, do those stop signatures have any bearing
25 themselves on the integrity of the individual blocks or passages of
2 A. No.
3 Q. You've accepted, and you've heard me put to Mr. Koenig your
4 acknowledgment of the potential for excising passages or adding back in
5 passages of conversations undetected in the copy, and that is your
7 A. Yes. It is possible, but it is certainly not easy and, as I again
8 wrote in my report, it places severe limitations on the range of things
9 that you can do.
10 Q. You focused on, I think, some four conversations in these tapes.
11 You've been able to read them in English, but, like many of us here, you
12 don't speak B/C/S, I think.
13 A. No.
14 Q. Although when listening to the original, it being -- what is
15 it? -- a romance language or something, it's not a completely strange
16 language, are you able to follow the text broadly in the B/C/S original
18 A. Yes, except that for the first conversation I did -- I only had an
19 English transcription and not the B/C/S transcript.
20 Q. Sorry about that. Now that you've looked at both, or at least
21 you've looked at the English and you've had a chance today to look very
22 briefly at the B/C/S, do you have any experience of conversations of this
23 scale being concocted or simply put together from individual words?
24 A. No.
25 Q. And in your judgement, is it, without prejudice to the possible
1 exclusion of passages or the possible inclusion of discrete passages, is
2 concoction of a conversation of this size a possibility or is it something
3 that isn't possible? Which is it?
4 A. I would find it extremely unlikely for a conversation to sound the
5 way it sounds on the basis of that sort of scenario.
6 Q. And is there any empirical experience of conversations of such
7 lengths constructed in that sort of way? It's not argued by Mr. Koenig,
8 but is it possible?
9 A. Not that I'm aware of. I think, if I may add this, that the
10 examples that were given by Mr. Koenig from the movie industry are not
11 perhaps terribly relevant because -- or advertising -- the way in which
12 language is used in movies, and in advertising certainly, is rather
13 different from what appear to be actual telephone conversations that we
14 have on the contested tapes.
15 JUDGE MAY: Mr. Nice, if you could find a convenient moment, we
16 have to adjourn now at -- before the usual time, and we shall also be
17 taking a slightly longer than usual adjournment. But whatever is a
18 convenient moment.
19 MR. NICE: I'm pretty well finished. I don't have much more to
20 ask him, but if I can just keep it open until we come back --
21 JUDGE MAY: Yes.
22 MR. NICE: -- I'll tidy up anything then.
23 JUDGE MAY: Yes. If that would be a convenient moment.
24 MR. NICE: Entirely.
25 JUDGE MAY: Dr. Broeders, could I remind you, as I did Mr. Koenig,
1 not to speak to anybody about your evidence until it's over. Could you be
2 back, please, at a quarter to 3.00. We'll adjourn until then.
3 --- Luncheon recess taken at 12.54 p.m.
2 --- On resuming at 2.48 p.m.
3 JUDGE MAY: Yes, Mr. Nice.
4 MR. NICE: Just a few questions.
5 Q. Mr. Broeders, your instructions in this case were to do what so
6 far as this report was concerned?
7 A. I was originally asked to listen to the tapes, the two tapes that
8 I received, and to listen to them from the point of view of there being
9 any evidence of manipulation on the tapes. So in other words, the
10 question was with specific reference to four conversations, whether there
11 was evidence in support of manipulation.
12 Q. Did you find any?
13 A. I did not find any in those areas where I looked and that is
14 specifically within the four conversations that were specified to me and
15 they were numbers one, five, eight and ten, except, of course, that as my
16 report states, conversation number ten seems to end because the cassette
17 runs out of tape.
18 Q. Was this a preliminary or a final report?
19 A. It was a preliminary report.
20 Q. For what were we waiting or what were you waiting?
21 A. I suppose I wasn't -- not that I was waiting for anything in
22 particular, but in order to carry out the full examination, I would have
23 required a lot -- much more time than I had available.
24 Q. Did you have any detailed instructions or version of events coming
25 from the defendant or anyone else as to how this was supposed to have been
1 done if there was any corruption at all?
2 A. No, but what I did do, which is what I always do when I'm asked to
3 look into these sorts of questions is I asked the person, the
4 investigator, the UN investigator to provide me with statements as to
5 where any manipulation might have occurred because that is the routine
6 reaction. I also asked specifically for the tape recorder to be submitted
7 if that were possible because that would be a very important element in an
8 authentication examination.
9 Q. Until today, did you have any -- sorry, then you got Mr. Koenig's
10 report, yes?
11 A. Yes, that's right, yeah.
12 Q. That --
13 A. Well, actually, sorry, I did report orally on my findings at some
14 stage and then I got Mr. Koenig's report.
15 Q. Did that fill in any of the gaps that were missing?
16 A. Well, in the sense that he lists a number of features, he makes a
17 number of observations that I'm not in a position to confirm necessarily
18 because I didn't look at them. I tried to indicate in my report to what
19 extent I had looked at these or looked for these types of events, but I
20 think that as I also say in my report, it is very difficult to do useful
21 authentication work on a tape that is not reportedly the original.
22 Q. Did you have today any evidence of the detail of what Mr. Koenig
23 was going to be saying about stop signatures?
24 A. No, what I did find was that his report was relatively brief
25 considering the duration of the tapes, and although it's -- contains a
1 number of observations, there is -- there was no support in the sense of
2 measurements or pictures or, you know, indeed signatures to support the
4 Q. Thank you. Just a matter of detail so that I understand it, when
5 you've got a tape being copied and recopied, does the tape signature from
6 the last machine used to do the copying appear on that tape itself?
7 A. I suppose normally it would, except if you were to let the
8 receiving tape, if you know what I mean, run on until the end.
9 Q. You make some reference in your report to simultaneous speech and
10 laughter, matters of that sort, just explain that please, and its
12 A. Well what I try to suggest is that if you have speakers speaking
13 overlapping, speech overlapping and -- again, theoretically, it could be
14 produced from originals where the speech did not originally overlap but it
15 would be, again, extremely difficult to produce these sort of sequences in
16 such a way that they would be realistic and would also be acceptable to a
17 competent native speaker which, I must add, I am not myself.
18 Q. If asked, can you give details of the conditions in which tapes
19 were held in your laboratory, just if asked? I'm not going to trouble it
20 with you, myself. --
21 A. Yes.
22 Q. -- in light of what's been said about the matching of tapes found
23 by the Defence and those kept here. The last matter of context, in
24 assessing the authenticity of a tape or an original tape when you can deal
25 with it, you, of course, look at the tape itself and what you hear and
1 what you can see in physical examination; is that right?
2 A. Yes. Well, very briefly, I would go through basically the sort of
3 procedures that are described in Mr. Koenig's report -- article, sorry.
4 Q. He refers, in his article, to things like cadences and he also
5 reference to context. Would you accept that context is an important test
6 for authenticity?
7 A. It is. On the other hand, I suppose you have to add that some of
8 these things can only really be assessed by a very competent native
9 speaker because they are extremely subtle aspects of the language. So I
10 would not like to suggest that I was able to do that.
11 Q. And of course when you come to content, for example, whether the
12 tape contents fit other pieces of evidence heard by a Trial Chamber, which
13 may be the case here or may not, that's a matter outside your expertise
14 and moves directly to the role of the judge; is that correct?
15 A. I would imagine so, yes.
16 MR. NICE: Thank you.
17 Cross-examined by Mr. Sayers:
18 Q. Is it Dr. Broeders or Mr. Broeders?
19 A. It's Mr. Broeders.
20 Q. And you signed the report as Dr. Broeders, though, I believe, on
21 page 8.
22 A. That is -- actually, it's a Dutch academic title that I have,
23 which is not equivalent to a Ph.D. in an American or a British context.
24 So it is the first degree that is awarded at a Dutch university, which,
25 when I was a student, took six years to complete, if you were quick. It's
1 actually Latin for "doctor andus," which means "must take a doctoral
3 Q. The long and the short of it, though, I believe, is that you have
4 a basic degree in English language and literature.
5 A. That's right.
6 Q. You specialise in modern linguistics, at least your degree did?
7 A. Yes.
8 Q. And essentially you have no scientific credentials or training,
9 degrees, do you?
10 A. Well, what I did at university was I was -- one of my fields of
11 interest, of research, and of teaching was phonetics. Phonetics is a
12 branch of linguistics which also has a technical -- many technical aspects
13 to it. So in that sense, I would call myself a phonetician and I would
14 call myself competent in that field.
15 Q. Right, but that's -- phonetics, that's not the science of
16 engineering, the science of tape testing, things of that variety; right?
17 A. It's not the science of tape testing to the extent there is a
18 specific science of that, no.
19 Q. Now, how many forensic analyses of audio tapes, including waveform
20 analyses, narrow-band spectrum analyses, have you actually done yourself?
21 A. Ones that were exclusively limited to the question of
22 authentication, I would imagine about four or five in the last ten years.
23 Q. I just changed headphones because you speak rather softly. Did
24 you say four or five?
25 A. Sorry. Four or five in the last, yes, ten years.
1 Q. All right. And have you ever actually given testimony in court
2 before on the scientific aspects of audiotape analysis involving, for
3 example, waveform analysis, narrow-band spectrum analysis, spectrographic
4 analysis, things of that type?
5 A. Well, the longer you go on, the more difficult my answer is going
6 to be. When it comes to tape authenticity, I think the answer is no. I
7 have to add, to avoid confusion, that I work within a Dutch context. In a
8 Dutch context, the legal system is slightly different, and that is that we
9 have what we call an inquisitorial system, whereby reports that I write
10 are not normally challenged. Why not? Because I'm a court-appointed
11 expert. It also means that I do not have to appear in court unless
12 the -- a report is explicitly challenged, which does not happen very
14 Q. Have you ever actually authored a report yourself on tape
15 authentication issues which involves technical areas such as waveform
16 analysis, narrow-band spectrum analysis, things of that type?
17 A. Yes. In those cases that I mentioned, the four or five cases per
18 year on average, I did write reports. I should perhaps also add, to give
19 you some background to this type of work, that I get far more questions
20 about authenticity of what people claim, that tapes have been tampered
21 with, when again the routine procedure is to ask the person making the
22 claim to indicate where the tampering has been done, and in the majority
23 of cases that is the end of the story.
24 Q. Have you yourself ever actually done a waveform analysis of an
25 audiotape as opposed to being a member of a team which has performed such
1 an analysis?
2 A. The way that we work in my laboratory is that typically the work
3 is done by one examiner and is then --
4 Q. Mr. Broeders, we are pressed for time here. If you don't mind,
5 have you yourself ever done that?
6 A. Yes.
7 Q. So you know how to do it, do you?
8 A. Sorry?
9 Q. You know how to do a waveform analysis?
10 A. Yes.
11 Q. You've heard of Mr. Koenig, I'm sure.
12 A. Yes.
13 Q. He's one of the leading forensic scientists in the world
14 specialising in the forensic analysis of audiotapes, isn't he?
15 A. He's a very prominent forensic scientist in the field of audio
16 analysis and authentication.
17 Q. Well-respected, and you respect his reputation, as far as you
18 know; is that right?
19 A. Yes. I've read his articles and I find them very useful on the
21 Q. And indeed, the organisation for which Mr. Koenig worked for 25
22 years is recognised worldwide, I believe, as having expertise, tremendous
23 expertise, in the area of audiotape analysis?
24 A. Well, I don't know if that's a question that I can answer, because
25 you're now expressing a personal opinion which, you know, I find difficult
1 to either subscribe to or deny. All I can say is that I've read
2 Mr. Koenig's articles and I've found them very useful.
3 Q. They're viewed as authoritative in the field, are they not?
4 A. Yes. I would point out, though, that a number of other people
5 have also published in this field, so again to perhaps preserve the
6 balance slightly.
7 Q. Very well, Mr. Broeders. Let's see if we can agree upon some
8 general conclusions. The first proposition is that one cannot
9 authenticate a copy of an audiotape. You would agree with that
10 proposition; correct?
11 A. I suppose that is very difficult, from a purely technical point of
13 Q. Well, you, in your report, say on page 3 that only original
14 recordings or reportedly original recordings can be authenticated.
15 A. Yes. In fact, I would prefer the phrase "reportedly original." I
16 find that to say that you can authenticate an original recording is a
17 circuitous argument.
18 Q. Well, taking that argument that you make, a reportedly original
19 recording is a recording that someone reports to you to be an original,
20 and then you look at it to find out whether indeed that is so or not;
22 A. Right.
23 Q. But you can only do that if you have an original.
24 A. If you have something that is claimed to be an original.
25 Q. Right. And no one's made the claim that there are any original
1 recordings in this case.
2 A. Right.
3 Q. They're all multigeneration --
4 THE INTERPRETER: Could you please slow down for the
6 MR. SAYERS:
7 Q. They're all multiple generation copies; correct?
8 A. Well, I have to be careful here, because, as I think I say in my
9 report, I have not concentrated specifically on that question.
10 Q. You made a comment that you didn't have enough time to do a
11 thorough forensic analysis, but, Mr. Broeders, you had this tape or these
12 tapes for three months, didn't you, three entire months?
13 A. If all the time I had available -- if all the time I had I could
14 spend on these tapes, then I suppose I would have had enough time. What I
15 did in the first instance was to try and answer the questions that were
16 put to me, and at the time, given the other priorities that --
17 Q. Mr. Broeders, it was a simple question.
18 JUDGE MAY: Let the witness finish.
19 A. Given the priorities that I have in my work, I thought that I had
20 made the best I could, given the question and given the time available.
21 MR. SAYERS:
22 Q. The tapes were delivered to you on the 12th of February, or 16th
23 of February; is that correct?
24 A. The 15th of February.
25 Q. And they were picked up on the 12th of May?
1 A. Yes, that's right.
2 Q. So indeed you did have them for three months.
3 A. I'm not denying that I had them for three months.
4 Q. There was nothing to stop you from doing a waveform analysis, was
6 A. No. I wouldn't like to create the impression that I didn't do
7 waveform analyses. All I'm -- I'm trying to avoid creating the impression
8 that I did a full-fledged examination. That I didn't do. I tried to
9 specifically confine myself to the questions that I was asked, and that is
10 to concentrate on the integrity of four telephone conversations.
11 Q. Yes, Mr. Broeders. I actually heard you say that today. But when
12 we look at the third page of your report, under section 3, instructions
13 received, there really isn't any reference there to the fact that you were
14 asked to look at four conversations specifically, is there, sir?
15 A. That is not under 3, no.
16 Q. Also, item number 2 there says that you were asked to provide a
17 response to the laboratory report by Bruce E. Koenig.
18 A. That's right.
19 Q. And when were you asked to do that?
20 A. That was a couple of weeks ago, I think, beginning of June.
21 Q. When did you finish doing the preliminary examination that you've
22 referred to regarding this tape, after the tape had been delivered into
23 your custody in the middle of February of this year?
24 A. That was actually in March, mid-March, I think.
25 Q. And that, as we know, did not result in any --
1 A. Sorry. Sorry. I have to correct that. It was mid-April.
2 Q. And you didn't do any report, written report, to the people that
3 had retained you in connection with that in the month that the tapes
4 remained in your custody before they were turned over to give to OTP; is
5 that right?
6 A. No. I didn't write a written report, but I did have a telephone
7 conversation with one of the investigators.
8 Q. You didn't -- you weren't actually asked to provide a written
9 report until you had received the laboratory analysis from Mr. Koenig; is
10 that right?
11 A. After I had looked at it, yeah.
12 Q. Were you actually asked to produce this written report in response
13 to what Mr. Koenig had included in his laboratory analysis?
14 A. Well, I think that's very clear from the report because it says
15 under 3.2 I was asked to provide a response to the laboratory report.
16 Q. All right. Going back to the general conclusions, we would both
17 agree, I think, and this is stated in your report, that the absence of
18 evidence of manipulation or rearrangement of parts of a recording cannot
19 be taken to imply that the recording has not, in fact, been subjected to
21 A. Right.
22 Q. And one of the reasons that that is so is because of the
23 increasingly widespread availability of digital sound processing equipment
24 on the open market.
25 A. Yes.
1 Q. Another reason is that manipulation has been made comparatively
2 easy to do as a result of that widely available sound processing
4 A. Technically, yes.
5 Q. And, if competently done, it would leave no detectable traces, we
6 can both agree on that?
7 A. Technically yes, if done competently, but that's a very major
9 Q. Right. So if you are not given the original, you've just given a
10 copy that's been altered in some way, we can agree that there's no way to
11 tell whether it's been altered or not, we just don't know?
12 A. Not technically, no.
13 Q. And indeed that's why you need the original?
14 A. Well, there's, perhaps, one comment I should add. When you
15 examine the original, again, the answer ultimately is the same, all you
16 can say is we have found no evidence of tampering and the recording is
17 consistent with it having been made on this machine. Again, that doesn't
18 necessarily absolutely establish beyond doubt that you have an original.
19 Again, it's the absence of a report for tampering which can be
20 converted, if you like, into a conviction that something is an original,
21 but there is no scientific way, 100 per cent, foolproof, absolute way in
22 which you can prove that something is an original.
23 Q. And we can agree that the failure to find positive evidence of
24 manipulation is not necessarily scientifically indicative of the absence
25 of manipulation, and I think that you say that in your report; is that
2 A. I think you are quoting, possibly, the text.
3 Q. Let's just take a look at some of the other available materials to
4 see if they were provided to you. As you can see from Mr. Koenig's report
5 which lists the materials provided to him, one of the things sent to him
6 was a statement made by Edin Husic dated December 4th, 1999. Was that
7 provided to you?
8 A. No.
9 Q. Were you told that Mr. Husic had produced in open court yet
10 another copy of this audiotape that he had supposedly made in November or
11 December of last year?
12 A. I was given a verbal account of possibly this event. What I was
13 told was that there were two compact cassettes, one which was described as
14 an original compilation, and the other one was described as a copy of that
15 original compilation. The first is a John Players Special one, and the
16 other one is the Fuji compact cassette, which I mentioned in my report.
17 Q. Now, were you aware that Mr. Husic worked as an electronic warfare
18 officer in the 3rd Corps of the Army of Bosnia-Herzegovina in Zenica?
19 A. No.
20 Q. All right. Is it your understanding that -- well, tell us how you
21 understand that the audio cassette tapes that you were given were actually
23 A. Would you like -- again, I don't quite understand the question
24 because --
25 Q. Let me see if I can walk you through it. It's true, is it not,
1 that someone other than Mr. Husic actually heard these putative telephone
2 conversations and supposedly used a microcassette or a minicassette
3 recorder to tape them. That's your understanding of the very first
4 process, right?
5 A. Yes.
6 Q. Very well.
7 A. Roughly.
8 Q. Then these microcassettes were taken to Mr. Husic who listened to
9 them and then made, supposedly, a recording of what they said on a regular
10 cassette. Can you think of any reason why a microcassette would be used
11 to make tapes of allegedly important conversations like these rather than
12 a regular cassette recorder if microcassettes were in such short quantity
13 and regular cassettes were in obviously relatively more abundant quantity?
14 JUDGE MAY: Is that a matter for the witness? He wasn't there in
15 1993. That sounds to me it's a matter of argument or comment for you to
16 make to the Court.
17 MR. SAYERS: I just wonder, Mr. President, if I could ask the
18 witness whether there's any scientifically compelling reason why a
19 microcassette recorder would be used as oppose today a regular cassette
21 Q. Can you think of any reason, Mr. Broeders?
22 A. They are usually battery operated but that's not a scientific
23 reason that's a practical reason, and they are small.
24 JUDGE MAY: Mr. Sayers, keep the interpreters in mind, please.
25 MR. SAYERS: I actually have it tuned to channel 5, Your Honour,
1 and I will try to do a better job.
2 JUDGE MAY: Listen to it.
3 MR. SAYERS:
4 Q. Now, with important conversations, such as these are reputed to
5 be, can you think of any reason why an electronic warfare officer would
6 prefer to make copies of the originals rather than keep the originals of
7 these conversations, sir?
8 A. I have no idea but, I mean, I -- this would be pure speculation
9 and I'm not sure that it's a good idea for me to speculate.
10 Q. No, absolutely not. All right. Your understanding then is that
11 the microcassette conversation or one of them was recorded on to a regular
12 cassette and then Mr. Husic used that same cassette to record other
13 conversations that were recorded by microcassettes?
14 A. That's possible.
15 Q. But you would agree with Mr. Koenig that we don't know whether
16 that is actually the case or not because there are no microcassette stop
17 or start signatures on any of the tapes, either of the tapes given to
19 A. I have not found any positive evidence for this change of events.
20 Q. So scientifically speaking, from analysing the tapes that you were
21 given, that's one conclusion that we can definitely reach. There is, in
22 fact, no direct substantiation for the version of events told by Mr. Husic
23 which is that these conversations were originally recorded on
24 microcassettes and then subsequently rerecorded on to regular cassettes?
25 A. With the reservation that I haven't looked at the entire tape,
1 that's the -- the parts that I have looked at, I haven't found any, but I
2 think it's important to add that I wasn't looking for them because the
3 question I was asked was slightly different.
4 Q. Yes. You weren't asked to look at that particular path of
5 analysis, were you?
6 A. No, my comments in my report are simply based on the remarks made
7 by Mr. Koenig in his report. I was asked to comment on that so that's why
8 I was talking -- why I wrote about microcassettes.
9 Q. Yes, sir. And Mr. Koenig did do such an analysis and we've heard
10 his conclusions that there is no evidence on the tapes of the use of
11 microcassette recorders, and you do not disagree with that is what I hear
12 you saying.
13 A. I can't disagree. I mean I can't agree or disagree with things I
14 haven't looked at myself so I can only repeat what I have said.
15 Q. All right. Let me ask you, you said that you looked at a JPS-60
16 cassette tape, that was one of the two tapes given to you and I believe
17 that that actually had an index, a handwritten index?
18 A. Yes.
19 Q. All right. I wonder if we could have you take a look at that
20 index. I think the tape is 2801.3. You've just been shown the
21 handwritten index, Mr. Broeders it's been marked as Exhibit 2801.3. It
22 records 11 conversations on side A, correct?
23 A. It just says 1 to 11, yes.
24 Q. And records three conversations on side B, correct?
25 A. Yeah.
1 Q. All right. I notice that the dates on the second, third and
2 fourth entries have been changed. Do you know who changed those dates?
3 A. I have no idea. I mean, I wouldn't like to immediately agree that
4 they have been changed, but if you say they have been.
5 MR. SAYERS: Well why don't we put that on the ELMO and we can
6 all see for ourselves. If I could just ask the technical unit to zoom
8 Q. All right. It looks like entry number two said something
9 different from February 22nd originally, and someone's written over it,
10 the number 22 on there. Would you agree with that?
11 A. I'm not an expert on handwriting analysis. I wouldn't like to
12 comment on it.
13 Q. Did you notice this when you were looking at the index to this
15 A. I must say that I didn't pay a lot of attention to the writing
16 partly because I was primarily interested in what was on the tape rather
17 what was written on the inlay card.
18 Q. But certainly, sir, you would agree that you would expect to find
19 11 conversations on side A, and 3 conversations on side B?
20 A. Yes, I suppose one would.
21 Q. And if it turned out that there were not, in fact, 11
22 conversations on side A, and, in fact, that there were not three
23 conversations on side B, that would be one additional reason to view this
24 particular tape with some suspicion, wouldn't you agree?
25 A. Well, what actually happened was that we made a similar sort of
1 discovery in the sense that, as I think I also indicated in my report, it
2 appears that what is here listed, what are listed as two separate
3 conversations sound, on the tape, like one single telephone call.
4 Q. To whom?
5 A. To whom?
6 Q. To whom do they sound like two separate calls when --
7 A. They sounded to me like two separate calls and --
8 Q. But certainly the person that wrote these down would know whether
9 they were separate calls or not?
10 A. Not necessarily.
11 Q. You just don't know, do you?
12 A. I'm saying not necessarily.
13 Q. All right.
14 A. But what I could add is that it is not unusual for people in a
15 telephone conversation to take over from each other and for other people
16 to appear on the phone. I listen to hundreds of telephone taps every year
17 and these things are very, very regular events.
18 Q. Well, I'm going to suggest to you, Mr. Broeders, that there are,
19 in fact, ten conversations on side A, and there are actually four or five
20 conversations on side B which is considerably different from what this
21 index indicates. Now, armed with that information, that would be
22 certainly something that you, as an independent expert, would find to be
23 peculiar, wouldn't it?
24 JUDGE MAY: Wait a moment. You're putting some hypothesis to the
25 witness which it may be that he doesn't even agree with the element that
1 you put at the first place.
2 MR. SAYERS: Let me see if I can fill in the gap, Mr. President.
3 Q. Were you provided with a copy of the testimony of one of the
4 employees of the Prosecution, Mr. Alihaji Kamara who testified in this
5 case on February 25th?
6 A. I think I've tried to list all the material I received in my
8 Q. Mr. Kamara actually stated at 15060 of the transcript that there
9 were, indeed, ten conversations on side A and four or five conversations
10 on side B, not eleven, as listed on side A and three, as listed on side
11 B. So let me suggest to you, sir, that those are, indeed, the facts and
12 they throw considerable doubt upon the accuracy of the document that you
13 have before you on the ELMO. Wouldn't you agree with that?
14 JUDGE MAY: Well, I don't think that's fair for an audio expert.
15 This is a matter for argument before the Trial Chamber. The witness is
16 dealing with the tape itself and the conversations on it. You can address
17 us, Mr. Sayers, about these discrepancies.
18 MR. SAYERS: But this -- well, this tape was provided to the
19 expert for an examination, Your Honour, and it's certainly material to the
20 question of integrity which this witness has addressed, whether the
21 listing on the contents of the tape are as listed.
22 JUDGE MAY: You've made your point now let's move on to something
24 MR. SAYERS: Very well.
25 Q. Now, did anybody impose any time limits upon you to perform
1 whatever test you felt to be appropriate on the audiotape, sir?
2 A. No.
3 Q. You refer, on page one of your report, to the availability,
4 anyway, of an audiotape authentication and integrity examination and you
5 say that the preliminary integrity and authenticity examination was
6 carried out. Did you, in fact, perform any scientific tests upon these
7 tapes, any at all?
8 A. Yes.
9 Q. Which ones?
10 A. What we did was we tried to -- again, we did an analysis of the
11 tape, the JPS tape as well as the Fuji tape concentrating on the sort
12 of -- I mean actually literally following the procedures that are
13 described in Mr. Koenig's paper, starting from listening and concentrating
14 on the four conversations that the Prosecution seemed to be primarily
15 interested in trying to find whether there was any evidence in any shape
16 or form of tampering in these recordings.
17 And that means, to make matters a little more concrete, that, for
18 example, you do look at the time signal which is, in fact, a sort of
19 picture that Mr. Koenig was showing this morning. So that's a time
20 signal, a direct representation of the speech signal which will show you
21 any stop or start signatures if they are there.
22 Q. Did you make any records relating to these time signals that you
24 A. Yes.
25 Q. Have you listed them in your report?
1 A. No.
2 Q. Did you make any record relating to your examination of the --
3 A. Yes, I -- yes.
4 Q. I wonder if we could request copies of that, Your Honour, to allow
5 Mr. Koenig to look at while I am covering other matters.
6 JUDGE MAY: If the witness has it with him.
7 THE WITNESS: Well, I have some time signal pictures. I'm not
8 sure that -- again, I think you have to understand that the investigation
9 that I carried out concentrated on those four conversations. So in other
10 words, I did not perform a full-fledged authentication examination.
11 MR. SAYERS: Well, I wonder if we could just take a look at what
12 you did do.
13 JUDGE MAY: Just before -- what is it, so that we can follow what
14 you are going to challenge what Mr. Broeders found. What are we leading
15 up to? It would help to know what the area of dispute is.
16 MR. SAYERS: I don't know that there is a tremendous area of
17 dispute. It appears that there is a wide degree of convergence regarding
18 Mr. Koenig's and Mr. Broeders' conclusions. If I can just -- let me just
19 press on if I may, Your Honour, and I'll try to wrap this up within a half
20 an hour.
21 Q. The fact of the matter is that you -- and you admit this, did you
22 not do a detailed full forensic examination of the type that Mr. Koenig
24 A. I'm not sure exactly what Mr. Koenig did, because all we have is a
25 three-page report and six pages of prints of a time signal.
1 Q. But you agree that you did not do a full-fledged integrity
2 authenticity examination?
3 A. I agree.
4 Q. Now, Mr. Koenig's article outlines seven separate steps to do a
5 full-fledged audiotape forensic analysis, and I think you agree with the
6 scientific principles articulated in his article?
7 A. Yes, I do.
8 Q. The first is that you need to do a physical inspection of the tape
9 itself for the reasons articulated by Mr. Koenig and obviously that could
10 not be done here because there simply isn't an original; correct?
11 A. Yes. Of course, I mean there could even be splices in a copy.
12 Q. There could be, but you didn't see any evidence of that, did you?
13 And we don't know whether there were any splices in the original because
14 we don't have the original.
15 A. That's right.
16 Q. All right. So we couldn't do a physical inspection of the
17 original. The second thing is a waveform analysis, and we know that you
18 did not do that; right?
19 A. I did do a waveform analyses of parts of the tape that I looked
21 Q. And what did you conclude? That there were three or four, at
22 least, cassette recorder decks present, and that's the conclusion that
23 Mr. Koenig reached. You agree with that, don't you?
24 A. Yes, but the crucial difference is that -- and this is a point I
25 need to stress. There should not be confusion about what we mean by
1 "recording." What we have is a tape, is a compact cassette with what
2 appear to be a number of telephone conversations that are recorded on that
3 cassette. Now, you can call the entire cassette one recording, okay.
4 That's very confusing. The important thing is that the stop signatures
5 that Mr. Koenig has found I think are only between conversations, okay, so
6 there are no replay transients, there are no click reflexes, there are no
7 signatures found within what appear to be continuous conversations. So
8 that means that there is always an innocent, if you like, explanation
9 possible for these stop signatures.
10 Q. Yes, of course. That's one possibility. And then, of course,
11 there's the other possibility too, that there's a not-so-innocent
12 explanation for the phenomenon; correct?
13 A. I don't know, because I think it is perfectly legitimate for
14 anyone to make a copy of a telephone conversation and produce a stop
15 signature at the end of it. That is not tampering with the integrity of
16 the conversation; it just means it's a copy at times.
17 Q. Very well. Let's go on to the third item, a narrow-band spectrum
18 analysis. Once again, you could do that, but you did not do that;
20 A. I did briefly look at -- but this was again after I received
21 Mr. Koenig's report -- the question of, you know, the multigenerational
22 copies. I assume that that is based partly on the presence or absence of
23 50 hertz hum, and I have not looked fully or even, you know, begun to look
24 into that question.
25 Q. Very well. The fourth item is a spectrographic analysis. Once
1 again, you could have done that, but you didn't, did you?
2 A. I think a spectrographic analysis would not necessarily add a
3 great deal in this particular case, but, you know, it's easy to do it. I
4 mean, there's no particular problem there.
5 Q. Well, it may be easy to do, but neither you nor your colleagues
6 actually did that kind of analysis, did they?
7 A. The point is that I wonder whether it would have revealed a great
8 deal. In answering the questions that I was asked, I don't think that it
9 would have made any significant contribution.
10 Q. Very well. The fifth item is an analysis of the chemical content,
11 if you like, of the tape by doing a ferro-magnetic analysis. But in order
12 to do that, you have to have the original tape, as I understand it, and
13 since we don't have the original tape available, it would have made -- you
14 really couldn't do such a test in this case.
15 A. I wouldn't have done it anyway, because what we have is the best
16 we have, and that might have destroyed even the best we have.
17 Q. And then the sixth form of testing is critical listening, and
18 essentially that's what you did?
19 A. Yes.
20 Q. All right. Now, another point of convergence, I think, between
21 you and Mr. Koenig is that there are, indeed, many ways to manipulate a
22 tape. I think you've already said that in your direct examination today
23 and we heard the same from Mr. Koenig, and there isn't any dispute on
24 that; correct?
25 A. Right.
1 Q. There's no question that audio tapes themselves can be easily cut
2 and spliced, and I think that the result is not detectable on a copy, as
3 we've previously agreed.
4 A. It can be done in ways that are very difficult to detect and even
5 impossible to detect.
6 Q. All right. And in terms of cutting and splicing, it's far easier,
7 rather than doing what the Prosecution suggest to you, and that's create a
8 30-minute tape conversation using individual words, it's much easier just
9 to take a phrase or a stand-alone sentence and splice it into a tape to
10 make it appear as if it was said during the course of a conversation;
12 A. It's easier than the procedure and the alternative that you
13 mentioned, but it is not easy by any absolute standards, I don't think.
14 Q. And when it's done, and presuming it's done competently, the
15 result is not detectable on a copy. I think we've previously agreed to
17 A. Yes. I suppose, you know, it can be done within certain limits.
18 Q. All right. In terms of one of the fundamental questions that
19 brings us before the Court today, and that's really authentication -- in a
20 sense, the very reason that the tapes were sent to you and that they were
21 sent to Mr. Koenig -- I think the point to be made, and it's not lost on
22 anybody, is that without the original, no one can really authenticate the
23 copy of a tape as an accurate copy of the original, can they?
24 A. No. There is no scientific way of doing that. But I think there
25 is a parallel here with the question if it's claimed to be an original, in
1 a way, the same problem arises.
2 Q. To use a graphic analogy, if I may, it's almost like asking
3 someone, when you have a blood spot, to do an analysis, a DNA analysis of
4 the blood when you actually take a photograph of the blood spot to the
5 doctor. You simply can't do an analysis of the blood without the blood,
6 and a photograph of the blood or a copy of what the blood looks like just
7 won't suffice. Is that a fair analogy?
8 A. Well, whether it's fair, I don't know, but whether it's correct, I
9 think I can say that it's not correct. It's not a correct analogy.
10 JUDGE BENNOUNA: I believe, Mr. Sayers, that this question of the
11 difference between the copy and the original is not challenged. So it's
12 not necessary --
13 MR. SAYERS: I think that's correct, Your Honour, and I'll move
15 JUDGE BENNOUNA: -- and that it is impossible to work, really, to
16 evaluate from the copy. That wasn't challenged.
17 MR. SAYERS:
18 Q. Just to see if we agree about some of the advantages of actually
19 having the original, you can actually take a look at the cassette housing
20 to observe any evidence of tampering or pry marks or screw damage. That's
21 one of the comments that's made in Mr. Koenig's article, and I take it you
22 agree that that's one of the benefits of having the original available.
23 A. Anybody who is seriously determined to tamper with a cassette
24 would have the sense not to do it that way. I think that is a very
25 unrealistic scenario, because every forensic examiner would be able to
1 immediately spot these telltale signs.
2 Q. All right. He outlines a number of other benefits. One is that
3 you can inspect the reel in the housing to see whether any changes have
4 been made.
5 A. Yes. But the point I'm trying to make is that these are not the
6 real risks. The real risks are the types of tampering that can be
7 achieved by very competent individuals. And I've tried to indicate in my
8 report, because I thought that on that particular point I could not
9 entirely agree with Mr. Koenig that his statements, and on that particular
10 point, were potentially misleading to people who do not know, who do not
11 work in the field, who do not know about speech synthesis.
12 Q. One of the things that you can -- one of the pieces of valuable
13 information that you can actually derive, though, from looking at the
14 original tape is to look at the batch number that's listed on the tape,
15 and from that you can determine the date of manufacture of the tape;
17 A. That's right.
18 Q. From that you can actually see whether, chronologically, it would
19 be possible for the tape actually to have been made at the time of the
20 conversation or not.
21 A. Definitely.
22 Q. Do you know what the date of manufacture of the JPS C-60 tape was?
23 A. No.
24 Q. Now, you were given this JPS C-60 tape. Was there any marking on
25 it to indicate that it had in fact been marked as an exhibit in this
1 trial, an original exhibit?
2 A. I'd have to go back in memory. I think it was clear to me that it
3 was an important piece of evidence and it was treated accordingly. What
4 is unusual in this case, is that when I got to writing my report, I no
5 longer had the actual exhibit in my custody because I had released it
6 earlier. And that explains why I have not given more detail describing
7 the exhibit in my report, simply because I no longer had it physically in
8 the laboratory.
9 Q. Was it provided to you in an envelope or jacket or some way to
10 indicate that it had been marked as an exhibit in this case, sir?
11 A. What we do routinely is to check the data in association with
12 exhibits that are provided to us by the police or any prosecutor, and I
13 also remember signing a custody sheet, UN Tribunal custody sheet, when I
14 received the two cassettes.
15 Q. Was it your understanding that this was an original exhibit, or
17 A. I'm a scientist when it comes to these sort of questions, so I do
18 not listen to -- I mean, I don't pay too much attention to what people
19 say, whether it's an original or a copy, because that's the very
20 question. So I can't see how that really matters. I was asked a specific
21 question, but it was described as an original compilation, which is
22 somewhat of a contradiction.
23 Q. Just enlighten us. What do you mean by that, an "original
25 A. I don't know. These are not my words. It was described to me as
1 an original compilation. I was just saying that that is somewhat of a
2 contradiction in terms.
3 Q. Who was it that described that to you?
4 A. That was the investigator, Ms. Taylor.
5 Q. Now, with respect to the Fuji tape, was the same regime applied
7 A. As far as I remember, they were -- I received them together. Both
8 on same date, same occasion.
9 Q. You make an observation in your report that it's possible that the
10 Fuji tape was a copy of the JPS tape but equally possible that it was a
11 copy of a brother or parent of the JPS tape.
12 A. Yes.
13 Q. There's no way to tell, is there?
14 A. No.
15 Q. All right. Now, I think that another point of -- did you actually
16 make a record of the batch number of each one of these tapes anywhere when
17 you were looking at them?
18 A. No, we didn't do that, no.
19 Q. Is it normal practice to do that, or not?
20 A. No. It is -- but this, in a way, is not a normal case, because in
21 the sense that a normal case is one that from the very beginning -- I
22 mean, the question that we were asked was not to write a report but to do
23 a preliminary investigation.
24 Q. But when you take in audiotapes for forensic analysis in your
25 regular work, Mr. Broeders, I take it that one of the pieces of
1 information that you can ascertain from the tape itself is the batch
2 number, and that it is your regular practice to make a record of that.
3 A. I was referring to that when I said -- when I wrote my report,
4 because I no longer had access to the cassettes, I was unable to add, to
5 specify the batch numbers.
6 Q. But during the three months that they were in your possession, you
7 didn't make any record of the batch number, I take it?
8 A. No.
9 Q. All right. Now, another point of convergence, I think, between
10 Mr. Koenig and you is that when you look at these two tapes, it's apparent
11 that there are some differences between them, isn't it?
12 A. Yes.
13 Q. For example, 8.2 seconds of the text that appears on the JPS tape
14 is missing on the Fuji tape; correct?
15 A. That's right.
16 Q. There are two series of rhythmic signals on the Fuji tape that do
17 not appear on the JPS tape.
18 A. That's right.
19 Q. You make the observation that maybe these were caused by a
20 cellular phone, or a cellular telephone.
21 A. Yes.
22 Q. But you're not sure about that, are you?
23 A. Well, again you have to be careful here. What we did do in our
24 laboratory was do replication experiments, and we, with a GSM telephone --
25 this was done by people in the digital technology department at our
1 request, and my colleague was actually -- did actually -- was present at
2 part of the test. What we found was that if -- that in this way the same
3 effect would be reached, okay. So in other words, these signals are
4 consistent with having been produced by a GSM, but there may be other
5 explanations that we didn't look into.
6 Q. What exactly are you telling us: that while this recording on the
7 Fuji tape was being made, this recording of presumably a tape with
8 important contents on it, someone was calling the person making the tape
9 on a cellular telephone?
10 A. What may have happened was that in the recording process, when the
11 Fuji tape was being recorded, was being made, as it were, a GSM telephone
12 was activated.
13 Q. All right. Going back to the differences between the two tapes,
14 there's an echo on the Fuji tape that does not appear on the JPS tape; is
15 that the case?
16 A. Yes. It's in my report, I think.
17 Q. And in fact there's a delay of some period of time that's on the
18 Fuji tape that again does not appear on the JPS tape; right?
19 A. I think the delay -- isn't that the echo?
20 Q. Five hundred milliseconds, I believe.
21 A. Yeah, so -- 500 milliseconds. Yeah, that's true. Yes, that's
22 what we found.
23 Q. All right. And also one other additional difference is that the
24 overall frequency distribution on the Fuji tape contains more
25 lower-frequency energy and less higher-frequency energy than does the JPS
1 tape; right?
2 A. Right.
3 Q. All right. Did anybody at the Prosecution's office let you know
4 that the discrepancy between the conversations that we went to earlier in
5 your cross-examination, the fact that there are 10 conversations and not
6 11 conversations on side A, and more conversations than are listed on side
7 B on the JPS tape. Did anyone tell you that that was actually the subject
8 of a memorandum from one of the lawyers in the Prosecution to another of
9 the lawyers in the Prosecution --
10 A. No.
11 Q. -- making a point about the fact that there was a discrepancy?
12 A. No.
13 MR. SAYERS: All right. Thank you very much, sir. I do not have
14 any other questions.
15 MR. KOVACIC: No, sir, we don't have any questions.
16 Re-examined by Mr. Nice:
17 Q. A few things arising, please. The scientific side of the work,
18 does that require any more scientific abilities than you have or is it
19 well within your capability? What's the position?
20 A. Well, I think that's difficult for me to judge, but what I have
21 done -- I'm a member of -- I'm actually the chairman of the NC European
22 Network of Forensic Science Institute's Working Group for speech and audio
23 analysis, and not only in that capacity, but in other capacities as well,
24 we often discuss case work with colleagues, with foreign colleagues. So I
25 know how, for example, my British colleagues do their authenticity
1 integrity work, and in that sense I think I can say that we do more or
2 less the same things as they do.
3 Q. Have you given evidence here before?
4 A. In this Tribunal, no, but I've written a report. But I've never
5 been asked to testify.
6 Q. Now, you've been asked a lot of questions about what you were told
7 and what you were asked to deal with, and you've explained that you were
8 asked to provide a preliminary report. Just tell us, is the purity of a
9 scientist's results sometimes assisted by simply being left with the raw
10 material to work on?
11 A. Well, there's always the danger of bias, if that is possibly what
12 you're referring to, in the sense that the more information as a scientist
13 you receive, the more room there is for bias. On the other hand, in order
14 to do an examination properly, you have to really usually work with a
15 hypothesis or with a number of hypotheses, and you can test these
16 hypotheses. If there's no hypothesis, it's very difficult to do a useful
17 examination that will lead to usable results.
18 Q. Well, that brings me directly, I was going to come to it later,
19 but that brings me directly to the questions you've been asked by
20 Mr. Sayers. Mr. Sayers has at no point suggested to you that this
21 particular sentence or this particular phrase could have been corrupted by
22 taking this clause and that clause, has he?
23 A. No.
24 Q. If that had been done, if that sort of proposition had been put to
25 you, might you have been able to assist the Chamber with the possibility
1 or probability of such an exercise being successful?
2 A. I think it's -- would also require expertise in the original
3 language of the tape.
4 Q. Yes.
5 A. But at least it would be a testable hypothesis.
6 Q. Yes. Now, you were asked by -- who was it, by Ms. Taylor for a
7 preliminary report?
8 A. Yes.
9 Q. You subsequently spoke to me, I can't remember when exactly, but
10 if your records show you can tell us. But between the time when you spoke
11 to Ms. Taylor and the time when you spoke to me, had you been privy at all
12 to whatever particular strategy or purpose I was ensuing in having a
13 preliminary report. Did you know one way or the other what I was after?
14 A. I was -- the impression I got was, and I suppose I was also told
15 that these four conversations were more important than the others.
16 Q. Yes.
17 A. And that it would be possible for the Defence to try and argue
18 that these were not integral uninterrupted recordings.
19 Q. Was there any urgency? You made an oral report to Ms. Taylor or
20 someone else?
21 A. To Ms. Taylor.
22 Q. And was that to the effect that there was or was not any effect of
24 A. It was to the effect that there was no evidence in the four
25 conversations that I had concentrated on.
1 Q. Between making those -- that oral report and receipt of
2 Mr. Koenig's report, were you under any pressure of time to produce a
3 written report or anything else?
4 A. No.
5 Q. The rhythmic signals, by the way, do you know one way or the other
6 whether that can be produced by mere presence in proximity to a GSM
8 A. Well, I wouldn't be qualified to testify on that because that was
9 explicitly done by somebody in the digital technology department and I
10 think it would not be correct for me to comment on it.
11 Q. You've been asked a number of factual things about what other
12 witnesses may have said. There's only one I'm going to deal with because
13 it's really outside of your area, but you were asked about the use of
14 microcassettes. If a witness said -- 13698 is the page number -- no, you
15 won't have it, don't worry. The equipment switched on to that particular
16 office allowed surveyance on the basis of an interphone and there was a
17 microcassette recorder, a microtape recorder which was switched on to that
18 appliance. Does that trigger any recollection of the sort of use that
19 might be made of microcassettes or not?
20 A. There may have been -- I don't know the context in which the tapes
21 were made or allegedly recorded, but it might have been a telephone taping
22 facility. I don't know.
23 Q. You've got your waveform analyses or some form in the bag with
24 you, haven't you?
25 A. I've got a number of plots of the part of the first conversation
1 in particular which help me simply identify, locate certain utterances in
2 the conversation which I felt were important and helped me sort of follow
3 my way through the recording more specifically. Because in this first
4 recording, it's only after 50 seconds from the beginning of the recording
5 that the two progatonists are introduced. So the first 50 seconds are
6 apparently taken up by other people setting up the connection, as it were,
7 between those two speakers. And also to locate, for example, the busy
8 signal at the end of what appears to be the first telephone conversation.
9 Q. Along that topic, or on a connected topic, although as His Honour
10 said, the question of the number of phone calls on a tape, on an index is
11 really not necessarily a matter for you, but as you make clear in your
12 report when you deal with the tapes that you were asked to examine, and
13 that's another question I want to ask you about, you make it clear that
14 there is, as it were, an ambiguity as to whether you include them as two
15 conversations or one?
16 A. Yes. On my report in section 188.8.131.52, I write that I think
17 conversations one, five, eight and ten occur as part of what appear to be
18 part of calls one, five, seven and nine. So, in other words, telephone
19 call seven appears to consist of two separate conversations. In other
20 words, half-way through that conversation, it looks as though the phone is
21 passed on to another person so that all together there are three people.
22 One pair of speakers and then one of these speakers presumably passes on
23 the phone to another speaker, and these are recorded apparently as
24 separate conversations which, in fact, they are, except they are not
25 telephone conversations presumably on the inlay card which explains some
1 of the oddity, possibly.
2 Q. Yes, I think I've only got a couple more questions, and those are
3 these: On stop signals, if the Chamber wanted you to do it, or if indeed
4 I did, would you be able to do the whole analysis and if Mr. Koenig would
5 provide his charts, which he hasn't provided fully in the report, would
6 you be prepared to look at those?
7 A. Given time, that would be possible.
8 Q. Indeed would you be possible to cooperate with Mr. Koenig if that
9 would help the Chamber more as well?
10 A. Yes, I would.
11 Q. Where tapes were produced, for example, to Mr. Koenig in the
12 process of copying, do you know one way or another, whether stop signals
13 would have been left on the tape in that process simply in providing them
14 to him to listen to?
15 A. That's possible but, again, I wasn't there. So if it was done
16 with a degree, a minimum degree of competence, that shouldn't happen but
17 you never know.
18 Q. All right. And -- yes, I mean you haven't again being asked about
19 this but -- do you remember -- this is my last question you haven't been
20 asked specifically but in general, Mr. Koenig, in his answers to me
21 expressed views in agreement with my questions to him about the limited
22 possibilities for piecing together conversations, do you agree with what
23 he said about that?
24 A. Yes. I think I do. But again, I find that what I've written down
25 in my report is preferably what I would stick to because I find it more
1 difficult to express these things, to write them down is easier than to
2 express them orally. So I would rather not make a less precise statement
3 than I've made in my report.
4 MR. NICE: Your Honour, subject to further assistance that the
5 expert could give the Court, I may just refer to that briefly after he's
6 withdrawn so as in no way to affect anything he might say, that's all I
7 ask of him.
8 JUDGE MAY: Mr. Broeders, thank you for coming to the
9 International Tribunal to give your evidence. It is now concluded. You
10 are free to go.
11 THE WITNESS: Thank you.
12 [The witness withdrew]
13 MR. SAYERS: Mr. President, with the Court's permission, could
14 Mr. Koenig leave too? Thank you.
15 JUDGE MAY: Yes.
16 Mr. Nice, the state of the evidence is this, that there is an
17 application to exclude this tape --
18 MR. NICE: Yes.
19 JUDGE MAY: -- made by the Defence. At an appropriate moment, that
20 must be dealt with.
21 MR. NICE: Yes.
22 JUDGE MAY: Now, I don't know whether there's any application by
23 either party for further submissions. In the light of the evidence which
24 has been given today, they may want to consider that. And if they want to
25 make further submissions then, of course, you can, it might be a sensible
1 way of looking at it. And then before the close of Mr. Kordic's case, we
2 ought to rule on the matter. That is my suggested programme.
3 MR. NICE: Your Honour, we can deal with that before -- at any
4 time, I'm happy with that. There is quite a lot to be said about the tape
5 one way or another. I won't forecast any arguments on that.
6 JUDGE MAY: No, I'm sorry to interrupt. There is one aspect of it
7 unless anybody wants to call any more evidence about it.
8 MR. NICE: That's really what I was going to touch on and to some
9 extent, I think it's helpful to remind the Chamber of just one or two
10 features of the --
11 JUDGE MAY: Let me confer, I'm sorry to interrupt.
12 MR. NICE: Sorry.
13 [Trial Chamber confers]
14 JUDGE MAY: Mr. Nice, the matter that we were considering was
15 this, and no doubt you would have had it in mind yourself as to whether
16 Mr. Husic should be recalled in order that specific matters should be put
17 to him relating to the possibility of contamination or indeed a deliberate
18 splicing, if that is going to be the suggestion.
19 MR. NICE: I think Your Honour was ahead of me in what I was going
20 to raise, and I was just going to make two points at this stage of the
21 longish history, and I'll deal with them in reverse order.
22 First, there having been an allegation raised, however
23 incompletely and unsatisfactorily, the reason that the tapes were sent to
24 this witness at an early stage in the absence of any detail from the
25 Defence was to ensure that if there was any reason to doubt them, I
1 wouldn't rely on them in cross-examination. And I had nothing from the
2 Defence that I needed to be sure, as far as I could be, that it was proper
3 to rely on. That's why we had an oral report and waited for details. And
4 so that was my purpose, and a very proper purpose too.
5 Now, coming back to the earlier matter, Your Honours hit on a
6 matter of history and that I was going to raise in any event. Because the
7 witness wasn't just a producer of the tape, he produced a great deal, gave
8 a great deal of evidence authenticating the tapes and the conversations he
9 heard and identifying the speakers, and I raised with the Court twice that
10 the cross-examination was woefully inadequate and should have been dealt
11 with properly and fully.
12 And Your Honour can find the end of this on 13916 of the
13 transcript where, having raised it on the 4th of February, I think for the
14 second time, Your Honour suggested to Mr. Stein who was dealing with it,
15 that if there were matters he wanted to draw to your attention which he
16 normally would have done through cross-examination, he should do so and do
17 so fairly soon. In fact, nothing more was heard from them. The matter
18 was simply left waiting, eventually, for Mr. Koenig's report, and that's
19 been one of the problems with this case. The matter has never properly
20 been joined.
21 I have no objection at all to Mr. Husic coming back and there may
22 be other witnesses as well who would follow in his train if and when the
23 matter is properly joined, and indeed I raise the possibility of other
24 witnesses as well at an earlier stage saying, well, if this is going to be
25 pursued seriously, let's hear about it, because we can't just have a sort
1 of general smear allegation and so on. So --
2 JUDGE MAY: Well, I think you can take it, and there's no point
3 going back to the Defence, in my view, now, you can take it that this is
4 an issue which has been raised. The suggestion is that this is a
5 falsified document and it might as well be faced. The question is when
6 will it be appropriate to deal with it whether the normal course of events
7 would be to deal with, it would seem to me, during your rebuttal case, but
8 we'll bear in mind issues timing and the like.
9 MR. NICE: Well, I was going to raise it again in relation to the
10 suggestion that somehow there was a ration of rebuttal time from which
11 this should be deducted, because that would be quite wrong given that the
12 issue should have been raised and fully when the witness was here and not
14 I would invite the Court to let us find out how available the
15 witness is and if there is a time that he could conveniently be fitted in,
16 really at any time, because it's a free-standing issue, let's have him
17 back and fit him in in order to certainly avoid to adding on to the
18 pressures of time later.
19 [Trial Chamber confers]
20 JUDGE MAY: Yes, we'll consider that. Perhaps you can find out
21 from the witness when he's available, then we'll consider an appropriate
23 Mr. Sayers, I'm not going to ask you. The matter was raised, it
24 was dealt with in a very, if I may say, a very equivocal way by the
25 Defence, but it seems to me that you have now raised the issue as to
1 whether this is an authentic tape and you are making the suggestion, it
2 may not be directly, but by implication, that you don't accept that it's
3 original, but it is open to have been the tampered with or manufactured in
4 some way.
5 Now, unless you accept that it's authentic, it seems to me that we
6 have to pursue the matter with the witness, and he must be given the
7 opportunity of dealing with the suggestion. Unless there's something you
8 want to say about that ...
9 MR. SAYERS: Mr. President, I do not see how we could possibly
10 accept the two tapes that have been introduced into evidence as
11 authentic. They're not, and also other than the testimony of Mr. --
12 JUDGE BENNOUNA: I would like to ask you, is the Prosecutor now
13 arguing that these tapes are authentic tapes?
14 MR. NICE: A question of terminology. They are not the original
16 JUDGE BENNOUNA: Without any alteration.
17 JUDGE MAY: Do they represent the conversation as recorded, that's
18 the crucial question, and the Prosecution say it is; Defence say not.
19 MR. SAYERS: I think that's an accurate depiction of our
21 JUDGE MAY: It seems to me in those circumstances we shall have to
22 hear from the witness again so that he has the opportunity of dealing with
23 it and we'll have to consider his convenience amongst other things and
24 then deciding when he should be called.
25 Now, unless there are any other matters, that's -- concludes the
1 hearing for today. Half past nine tomorrow.
2 --- Whereupon the hearing adjourned
3 at 4.12 p.m., to be reconvened on Tuesday
4 the 4th day of July, 2000, at
5 9.30 a.m.