IN THE TRIAL CHAMBER
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Mrs. de Sampayo Garrido-Nijgh, Registrar
27 November 2000
MLADEN NALETILIC aka "TUTA"
VINKO MARTINOVIC aka "TELA"
DECISION ON THE REQUEST OF THE ACCUSED TO BE GIVEN THE OPPORTUNITY TO BE INTERROGATED UNDER APPLICATION OF A POLYGRAPH
The Office of the Prosecutor:
Mr. Kenneth Scott
Counsel for the Accused:
Mr. Kresimir Krsnik, for Mladen NALETILIC
Mr. Branko Seric, for Vinko MARTINOVIC
TRIAL CHAMBER I of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereafter "Tribunal"):
BEING SEISED of the "Request of the Accused to be Given the Opportunity to be Interrogated Under Application of a Polygraph" filed on 12 October 2000 (hereafter "the Request");
NOTING the "Prosecutors Response to the Request of the Accused Mladen Naletelic to be Given the Opportunity to be Interrogated Under Application of a Polygraph", dated 1 November 2000, addressing the objections that the Prosecutor has in respect of the Request;
NOTING that the Rules of Procedure and Evidence of the Tribunal (hereafter "the Rules") do not address the use of polygraph examinations in the course of proceedings before the Tribunal;
NOTING FURTHER that the Statute and the Rules governing the rights of suspects and accused persons who are questioned by the Prosecutor appear to leave the discretion as to whether questioning will be conducted in the hands of the Prosecutor;1
CONSIDERING also that the accused is indigent; and that, pursuant to Article 18 (a) of the Directive on Assignment of Counsel, the Tribunal is only required to pay the expenses of legal representation that are "necessarily and reasonably incurred;"
CONSIDERING that the consensus in the scientific community,2 and in the domestic jurisdictions surveyed,3 is that polygraph examinations are an unreliable indication of credibility; and that accordingly, it is not an expense that is necessarily and reasonably incurred;
NOTING also that the introduction of polygraph evidence is unlikely to expedite the proceedings as, were it to be admitted, the Trial Chamber would undoubtedly be confronted with collateral issues such as the reliability of the polygraph evidence, and the conditions under which the polygraph test was administered;
EMPHASIZING that, ultimately, it is for the Trial Chamber to determine the credibility of the witnesses and the accused; that in the present state of the law and technology, polygraph evidence would not be of material assistance to it in performing that function; and that the appropriate course for an accused who wishes to address the Trial Chamber about the case against him or her is either to appear as a witness in his or her own case,4 or to make a statement pursuant to Rule 84 bis;5
FOR THE FOREGOING REASONS
HEREBY DENIES the Request of the accused.
Done in both French and English, the English version being authoritative.
Done this 27th day of November 2000,
At The Hague,
Presiding Judge, Trial Chamber I
(Seal of the Tribunal)