IN TRIAL CHAMBER I
Judge Alphons Orie, Presiding
Judge Joaquín Martín Canivell
Judge Claude Hanoteau
Mr Hans Holthuis
15 December 2005
Office of the Prosecutor
Mr Mark Harmon
Mr Alan Tieger
Counsel for the Defence
Mr Nicholas Stewart, QC
Mr David Josse
1. During the cross examination of Milorad Davidovic on 13 June 20051 and on 27 June 20052 the Defence alleged that the witness was a liar and a criminal, suggesting that he had been involved in several, quite specific, incidents of criminal activity and referring to a number of documents. In particular, on 27 June 2005 Defence counsel alleged that Mr Davidovic had seized property belonging to a dentist, and that the dentist had spoken out on local television about this episode after seeing the witness testifying on 13 June 2005.3 At the end of cross-examination, the Presiding Judge asked the Defence if the Chamber could expect some material to support the allegations4 and stated that the Chamber would like to see any such material.5 The Prosecution also highlighted the importance of laying a proper foundation for serious allegations relating to a witness.6 The Defence then provided the Prosecution with a police report relating to the guardianship of Mr Davidovic during his childhood, as well as some documents showing that Mr Davidovic, or a company with which he was affiliated, was involved in civil proceedings in Bosnia-Herzegovina.7
2. On 14 July 2005 the Trial Chamber instructed the Defence to inform the Trial Chamber by 21 July 2005 of all information it had available to support the allegations of criminal conduct on the part of the witness, since “while a party may be fully justified to put such questions to a witness, it should not be done in the absence of reasonable grounds to believe that the witness did misbehave in the way that was put to him”.8
3. On 18 July 2005 the Defence declined to submit the requested information, invoking lawyer-client privilege.9
4. On 5 September 2005, the Prosecution, in writing, objected not only to the substance of the allegations made by the Defence as being without an adequate basis, but also to the generic, unspecified claim of privilege. The Prosecution asked the Chamber to make findings that there was no proper basis for the allegations made against the witness, that the witness was treated unfairly, and that the questions put to the witness were improper. Depending on the information provided to the Chamber, it also suggested that the Chamber take additional steps, such as inviting the Defence to fulfil its offer to withdraw, immediately and unreservedly, the allegations made, inviting the Defence to apologize publicly to the witness, or issuing a warning pursuant to Rule 46(A) of the Rules of Procedure and Evidence.10
5. On 21 November 2005 the Defence, responded that it is one of the tasks of the Defence to try to discredit Prosecution witnesses. It noted that while, after further inquiries, the allegation relating to the theft of the dentist’s equipment cannot be supported, other allegations are backed by the testimony of Witness 682, who testified after Mr Davidovic. It also reiterated its conviction that Mr Davidovic is both a liar and a criminal. Finally, the Defence submitted that the Defence team is still investigating Mr Davidovic’s acts and conduct and that the Chamber should not make any pronouncement or finding on the witness’s treatment until it hears all the evidence in this case.11
6. Article 13 of the Code of Professional Conduct for Counsel Appearing before the International Tribunal states that confidentiality entails the following:
Whether or not counsel continues to represent a client, counsel shall preserve the confidentiality of the client's affairs and shall not reveal to any other person, other than to members of his team who need such information for the performance of their duties, information which has been entrusted to him in confidence or use such information to the client's detriment or to his own or another client's advantage.
7. The Chamber is somewhat hesitant to accept that all the requested information should be regarded as “information which has been entrusted to SDefence counselC in confidence”. For example, at the time when the allegations in relation to the theft of the dentist’s equipment were made on 27 June 2005, a member of the Defence team had already spoken to the dentist’s husband on the phone. The Chamber later received information that during this telephone conversation, the dentist’s husband denied that his wife had made the allegations against Mr Davidovic. Yet the Defence counsel still confronted the witness with these allegations. Without further insight into the type of information concerned, the Chamber cannot make a final determination on the question of privilege. In light of the above, however, the Chamber underscores that the refusal, on 18 July, to produce any information substantiating the allegations against Mr Davidovic, invoking privilege, is of some concern to the Chamber.
8. The Chamber will now address the issue of how the cross-examination of Mr Davidovic was conducted. The Defence has the right to ask a witness pointed questions in order to test his or her reliability and credibility, even though this may be an unpleasant experience for the witness. Subject to the overriding requirement of relevance, the Rules of the Tribunal do not limit the matters that may be raised during cross -examination which is directed solely at the credibility of the witness. Indeed, Rule 90(H)(ii) of the Rules of Procedure and Evidence of the Tribunal imposes an obligation on a party to put to a witness in cross-examination the nature of its case which is in contradiction with the evidence of that witness.12 This may well include that party’s assessment of the character of a witness.
9. Nevertheless, cross-examination is not a boundless exercise and must be conducted within reasonable limits. One such limit, deriving in part from the Chamber’s duty to protect witnesses under Article 22 of the Statute, is that witnesses should not be subjected to improper or unfair questions. The Chamber considers that where a party wishes to confront a witness with what effectively constitute allegations that the witness has engaged in serious criminal conduct, that party must have reasonable grounds to do so at the time the allegations are made. “Reasonable grounds” does not require that the party have in its possession incontrovertible evidence of wrongdoing ; it does, however, require something more than mere hunch, innuendo, or unsubstantiated hearsay.13 Putting aside the individual characteristics of a witness, the Chamber considers that strong language may be acceptable in cross-examination when a party has a solid basis for making allegations that a witness has engaged in criminal activities. The weaker the grounds for making an allegation, however, the more caution is called for on the part of cross-examining counsel.
10. Generally, the Chamber will disallow a question or sustain an objection against a question in cross-examination where, in the Chamber’s view, it constitutes an unwarranted attack on a witness. This includes a situation in which a party makes unsubstantiated allegations of criminal behaviour in relation to the witness. In the present case, the Prosecution did not object in the course of Mr Davidovic’s cross-examination. It became clear to the Chamber only at the close of the cross -examination that no material was immediately forthcoming from the Defence to support its allegations against Mr Davidovic. In these circumstances, the Chamber considers that it is appropriate to undertake a retrospective analysis of the way in which Mr Davidovic’s cross-examination was conducted. This is not, perhaps, an ideal solution for Mr Davidovic himself, and the Chamber would wish not to have to repeat such an exercise.
11. The Chamber considers that a number of questions put to Mr Davidovic did, in effect, amount to allegations that the witness had been involved in specific incidents of serious criminal conduct. These allegations were put to the witness without reservation or qualification. The Chamber highlights the allegation regarding the theft of the dentist’s equipment as the most serious example. Without access to all the information, the Chamber is unable to make a fully-informed finding as to whether the Defence had reasonable grounds, at the time of the cross-examination, to allege that Mr Davidovic had engaged in criminal conduct. Invocation of privilege, however, cannot preclude the Chamber from making any determination in this respect, as this would amount to giving the parties carte-blanche with regard to the conduct of cross-examination. The documents produced by the Defence (see paragraph 1 above), do not demonstrate that the Defence had reasonable grounds to formulate the allegations of criminal conduct in question in the way they did.
12. Since the Defence has now withdrawn the most specific allegation, the one in relation to the theft of the dentist’s equipment, on the grounds that it cannot be supported, the Chamber considers that it need go no further at this stage than to state that it regrets the use of some inappropriate phrases during the cross-examination of Mr Davidovic. The Chamber also urges caution in future when a party wishes to ask questions in cross-examination suggesting that a witness has engaged in criminal activity. The Chamber will closely monitor cross-examination of witnesses in this respect.
13. The Chamber reiterates that this decision does not in any way curtail the possibility for the Defence to tender material aimed at influencing the Chamber’s perception of Mr Davidovic credibility and reliability.
Done in English and French, the English version being authoritative.
Judge Alphons Orie
Dated this 15th day of December 2005
At The Hague,
[Seal of the Tribunal]