IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 20 March 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE MOTION BY THE PROSECUTION TO ALLOW THE
INVESTIGATORS TO FOLLOW THE TRIAL DURING
THE TESTIMONIES OF THE WITNESSES
The Office of the Prosecutor
Mr. Eric Ostberg Mr. Guiliano Turone
Ms. Teresa McHenry Ms. Elles van Duschotten
Counsel for the Accused
Ms. Edina Residovic, Mr Ekrem Galiatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Branislav Tapuskovic, Ms. Mira Tapuskovic for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. Mustafa Brackovic, Ms. Cynthia McMurrey, for Esad Landzo
I. INTRODUCTION AND PROCEDURAL BACKGROUND
Before this Trial Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian law Committed in the Territory of the Former Yugoslavia Since 1991 ("International Tribunal") is a Motion, dated 10 March 1997, (Official Record at Registry Page ("RP") D 3003 - D 3005) by the Office of the Prosecutor ("Prosecution") to permit its investigators whom it may also call as witnesses at trial, to be present in the public gallery when other witnesses are testifying before the Trial Chamber.
The Trial Chamber heard oral arguments on the Motion from both the Prosecution and the Defence ("Parties") on 11 March 1997. On the same date, it delivered an oral ruling denying the Motion and reserved its written decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the arguments of the Parties,
HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Provisions
1. The resolution of the present Motion is dependent on the interpretation given by the Trial Chamber to the first sentence of Sub-rule 90(D) of the International Tribunals Rules of Procedure and Evidence ("Rules"). The Sub-rule states as follows.
Testimony of Witnesses
(D) A witness, other than an expert, who has not yet testified shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying.
Also of relevance to the issue are the provisions of Rule 54 and Sub-rules 71(A) and (C).
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
(A) At the request of either party, a Trial Chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken for use at trial, and appoint, for that purpose, a Presiding Officer.
. . . .
(C) If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the person whose deposition is being taken.
B. The Pleadings
1. The Prosecution
2. The Prosecution contends that none of the investigators it has listed as witnesses are fact witnesses. Conceding that the investigators cannot be described as expert witnesses, within the terms of Sub-rule 90(D), it declares that they would be called as witnesses with some sort of expertise with respect only to the analysis of documents and for the authentication of the chain of custody of documents. Accordingly, the Prosecution maintains that the provisions of Sub-rule 90(D) are ordinarily inapplicable to them.
3. Since the investigators carry on their duties on a continuing basis, and there might be other issues making it necessary for the investigators to carry on with further investigations, the Prosecution submits that it would be ideal for the investigators to remain in the public gallery during the testimony of other witnesses.
4. The investigators are not foreseen to be witnesses of fact. Not granting the motion would constitute a severe hindrance to the efficient proceedings in the trial, as well as to any potential investigative work that needs to be done, either during the Prosecutions case and indeed during the case of the Defence, in case these witnesses are needed in rebuttal.
5. Defence Counsel opposed the Motion during oral argument with varying degrees of intensity.
(i). Learned Counsel for the accused, Zejnil Delalic contended that an order in the terms sought would be contrary to the provisions of Sub-rule 90(D). This is on the ground that since the Prosecution is continuing its investigations with the possibility of discovering new evidence, the investigators should not be placed in a position where they may learn of the facts that will be presented before the Trial Chamber.
(ii). Learned Counsel for the accused, Zdravko Mucic associated himself with and adopted the submissions of learned Counsel for Zejnil Delalic. However, Counsel did put forward an equality of arms argument. He stated that the Motion could be granted on one condition only: if the investigators of the Defence are also permitted to follow the testimony of other witnesses.
(iii). Learned Counsel for the accused, Hazim Delic adopted a less rigid and more analytical approach. He classified the Prosecution witnesses for this purpose as: (a) routine witnesses concerned only with the proof of or authentication of documents; (b) investigators who are also experts; (c) fact witnesses. He submitted that (a) and (b) are not caught by the provisions of Sub-rule 90D, whereas (c) will be caught. He declared that he objects only to witnesses in category (c).
(iv). Learned Counsel for the accused, Esad Landzo, supporting the submissions on behalf of Zejnil Delalic and Zdravko Mucic, added that the presence of investigators during the testimony of witnesses would be contrary to the interests of justice.
6. Viva voce testimony is an essential part of the evidence before the Trial Chamber. Evidence on depositions which is also viva voce is admissible under Rule 71. The Rules are carefully designed to protect the purity of such viva voce evidence from contamination.
7. It is an important procedural requirement that, before commencement of the hearings, an announcement is made that all witnesses in the case should go out of court and out of hearing. This practice is supported by Sub-rule 90(D) which in its first sentence states - in mandatory terms, that a witness "other than an expert" who has not yet testified, shall not be present when the testimony of another witness is given.
8. Although Sub-rule 90(D) is couched in mandatory terms by the use of the word "shall", its second sentence provides as a general rule that a witness is not necessarily disqualified from testifying because he has heard the testimony of another witness. This removes the sting from the rule and leaves enforcement a matter essentially for the discretion of the Trial Chamber. It is, however, important to note that only "expert witnesses" are excluded from the requirement that witnesses who have not testified should not be present during the testimony of other witnesses.
9. The Prosecution maintains that the provisions of Sub-rule 90(D) should be limited to fact witnesses. Since expert witnesses are excluded, it contends that the testimony of witnesses relating to analysis of documents, or for the authentication of the chain of custody of documents, though not expert, is akin to expert testimony and would fall more within the category of experts than under fact witnesses. This, to say the least, is illogical and it is a non-sequitur. It is a seductive but hardly convincing argument. There is clearly no expertise in such matters. It is not inconceivable that issues of fact may arise during the analysis or authentication of a chain of documents requiring the testimony of the investigator/witness. Such situations would take the witness out of any special category.
10. An expert witness is one specially skilled in the field of knowledge about which he is required to testify. The question of whether a person is an expert is one of law for the determination of the Trial Chamber. Expert opinion is only necessary and required where the expert can furnish the Trial Chamber with scientific, technical or such knowledge or information that is ordinarily outside the experience and knowledge of the judges of facts. A witness whose testimony only relates to the analysis of documents or authentication of a chain of documents is thus not an expert witness.
11. An investigator who has a special skill or knowledge in a particular field will undoubtedly qualify as an expert witness within Sub-rule 90(D) if he is such a witness for the Prosecution. Such an investigator will enjoy the indulgence of being present during the testimony of other witnesses. However, an investigator simpliciter, whose testimony is not founded on a special skill, knowledge, or expertise, will not be accorded the privileges of an expert witness. Accordingly the investigators, who are witnesses in respect of analysis of documents or authentication of a chain of documents are ordinary witnesses.
12. The rationale for the Sub-rule seems to be for the protection of witnesses of fact from contamination. It is a fundamental consideration of the administration of justice that the purity of its stream should be protected from pollution. This principle is attainable by ensuring that witnesses do not have access to one another before giving their testimony. The provisions of Sub-rule 90(D) are designed to ensure the purity of testimony admitted in evidence.
13. The only consideration of the Prosecution in this case is to maintain a link with its investigators during the testimony of its witnesses. This ideal, though desirable, is fraught with obvious risk to the administration of justice. There is the fear that witnesses may communicate with others. The greater interest of justice is not only to appear to keep the evidence free from contamination but actually to ensure that it is free from pollution. This ideal requires that the investigator, the link between the other witnesses and the Prosecution, who is usually seen by the accused as the Prosecutor, and by the other witnesses as their guide, should not be introduced into the public gallery during the testimony of other witnesses.
14. The Defence contends that the investigator is engaged in a continuous investigative process. The Prosecution has not denied this. Further, the Defence maintains that investigators should not be placed in a situation where they will learn of new facts that will be presented in evidence through the testimony of subsequent witnesses. There is the distinct possibility that the investigator may, through the advantage of evidence obtained from the testimony of other witnesses, proceed with further investigation to fill gaps disclosed in prior testimony of Prosecution witnesses. These are some of the undeserved advantages which the Prosecution can have over the Defence by allowing its investigators who are witnesses to remain in the public gallery during the testimony of other Prosecution witnesses. The Trial Chamber declines to permit the Prosecution to enjoy such advantages.
For the foregoing reasons, the TRIAL CHAMBER, being seised of the Motion filed by the Prosecution,
PURSUANT TO RULE 54 and SUB-RULE 90(D),
HEREBY DENIES the Motion and orders that Prosecution and Defence investigators who may be called as witnesses should not be present in the public gallery of the courtroom and should not, otherwise, follow the proceedings when other witnesses are testifying.
Done in English and French, the English text being authoritative.
Adolphus G. Karibi-Whyte
Dated this twentieth day of March 1997
At the Hague
[Seal of the Tribunal]