Case No.: IT-02-54-T
IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge Richard May
Judge O-Gon Kwon
Mr. Hans Holthuis
29 April 2004
SEPARATE OPINION OF JUDGE O-GON KWON ON TRIAL CHAMBER CONFIDENTIAL DECISION ISSUED 28 JANUARY 2004
Office of the Prosecutor:
Mr. Geoffrey Nice
Ms. Hildegaard Uertz-Retzlaff
Mr. Steven Kay
Mr. Timothy McCormack
Mr. Dermot Groome
Government of Serbia and Montenegro The Accused:
Mr. Vladimir Djeric Slobodan Milosevic
1. This dissenting opinion follows the Trial Chamber majority decision of 28 January 2004, denying the Prosecution’s application to be permitted to cross-examine a Prosecution witness.1
2. My position is that cross-examination of a witness by the party calling the witness should be generally allowed. Besides the fact that there is no Rule of the Tribunal which expressly prohibits a party from cross-examining a witness it calls, I see no ensuing prejudice to the rights of the accused to a fair trial by allowing such cross-examination.
3. Before elaborating on my reasons, I feel that it is important to clarify my usage of the term "cross-examination" as I have found that the definition itself may imply that it is not possible for the party calling the witness to conduct such examination. For instance, Black’s Law Dictionary defines cross-examination as "the examination of a witness upon a trial or hearing, or upon taking a deposition, by the party opposed to the one who produced him, upon his evidence given in chief, to test its truth, to further develop it, or for other purposes. The examination of a witness by a party other than the direct examiner…" However, my usage of the term is to focus on the purpose of cross-examination, which is to test the credibility of statements made by the witness.
4. The general principle that a party should not impeach its own witness originated from British common law, which was then codified into the Criminal Procedure Act s3 in 1865.2 The various arguments supporting the general principle include: a party should not be granted any means to discredit its witness; a party guarantees the trustworthiness of the evidence it adduces; it would be unfair for the witness to be subjected to cross-examination twice.3 However, probably the most convincing reason of this general principle is that such cross-examination may lead the jury, the fact finders in a common law system, to confusion. This may occur when the jury negates the entire testimony of the witness without being able to distinguish between credible and incredible statements in their search for the facts because the witness has been discredited by the party calling the witness.
5. However, none of the above reasons is very convincing,4 and particularly so in a tribunal where the judges are the fact finders. It should also be noted that, even under the common law tradition, a party is allowed to cross-examine its own witness under certain circumstances.5 Moreover, it is of interest to note that the United States, another legal tradition following the common law system, has generally abrogated the principle. Rule 607 of Federal Rule of Evidence of the U.S. stipulates that "the credibility of a witness may be attacked by any party, including the party calling the witness."6
6. With respect to the Tribunal, justice is meted by professional judges, not by the jury. The professional judges have the competence to assess the truthfulness and to accord the proper weight to a witness’ evidence. In addition, the judges have the provisions of Rule 90 (F) to exercise control over the mode and order of interrogating witnesses and presenting evidence.7
7. Moreover, I do not see the purposes and practical benefits of strictly classifying witnesses into three categories - court witness, prosecution witness and defense witness - as in the common law system. Rather I believe that there is merit in viewing all witnesses as means of ascertaining the truth, allowing the tool of cross-examination as a method to do so. In this sense, I strongly endorse the civil law system, which views all witnesses as the court’s witnesses in the ascertainment of the truth.
Done in both English and French, the English text being authoritative.
Dated this twenty-ninth day of April 2004
At The Hague
[Seal of the Tribunal]
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
3. Colin Tapper, CROSS AND TAPPER ON EVIDENCE (London 1995),
5. For example, if a witness proves to be adverse or hostile to the party calling him, the party may cross-examine him regarding a previous inconsistent statement.
6. In addition, the majority of states in the U.S. has abandoned the general rule against impeachment of a party’s own witness as well. See, e.g., Charles W. Ehrhardt and Stephanie J. Young, Using Leading Questions during Direct Examination, Florida State University Law Review (Fall 1995), 401-402. However, leading a witness is generally a separate issue from cross-examining one’s own witness, and Rule 611(c) of Federal Rule of Evidence, for example, controls that issue.
7. Rule 90 (F) provides "The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to
i) make the interrogation and presentation effective for the ascertainment of the truth; and
ii) avoid needless consumption of time."