1 Thursday, 24th October 1996.
2 (10.00 a.m.)
3 (Closed session)
13 Pages 7564-7588 redacted in closed session.
1 (Open session)
2 THE PRESIDING JUDGE: Mr. Niemann?
3 MR. NIEMANN: Yes, thank you, your Honours. Your Honours were asking
4 about timing for the rebuttal evidence that the Prosecution
5 would like to call and closing addresses. Our position on this
6 is that, notwithstanding the fact that the Defence case may go
7 into next week, we would still like to commence our rebuttal
8 case on 5th November, that is, the Tuesday. We would like to
9 commence our closing address around the middle of the next week
10 which should be 14th November.
11 THE PRESIDING JUDGE: Do you know or can you give an estimate of how
12 long you will need for rebuttal?
13 MR. NIEMANN: Yes, the four days from 5th through to the Friday.
14 THE PRESIDING JUDGE: Including cross?
15 MR. NIEMANN: Yes.
16 THE PRESIDING JUDGE: Have you estimated for cross?
17 MR. NIEMANN: Yes, your Honour.
18 THE PRESIDING JUDGE: Do you know how long you might require for your
19 closing arguments?
20 MR. NIEMANN: One day, your Honour.
21 THE PRESIDING JUDGE: Thank you. Mr. Wladimiroff? Is there anything
22 else, Mr. Niemann?
23 MR. NIEMANN: No, your Honour.
24 THE PRESIDING JUDGE: Mr. Wladimiroff?
25 MR. WLADIMIROFF: Yes, your Honour. Rebuttal starting on 5th, that
26 is not a problem for us, your Honour. We expect that we will
27 need one, perhaps, two days of next week. Closing argument,
28 though, starting on 14th November may cause some trouble for the
1 Defence. You indicated 25th or 26th; we have a preference for
3 THE PRESIDING JUDGE: I think I had indicated 21st or I have spoken
4 about 21st which would be Thursday.
5 MR. WLADIMIROFF: Yes, or 22nd would be fine too.
6 THE PRESIDING JUDGE: The 19th and 20th, the other Chamber will have
7 the courtroom, that is, Tuesday and Wednesday. Could we begin
8 on that Thursday then, 21st?
9 MR. WLADIMIROFF: Yes, 21st, Thursday. Indeed, that was no problem
10 for us. The 25th and 26th would not be a problem either. We
11 have a preference for 25th. May I add something, your Honour?
12 The 14th is a problem for the Defence because not all members of
13 the team will be available on that specific day. It is that
14 specific day.
15 MR. NIEMANN: Perhaps I might indicate, your Honours, that from the
16 point of view of the Prosecution, whilst we would like to
17 commence on 14th, we certainly would not want to be in a
18 position where we do something on 14th and then there is a week
19 delay or a break between that and any other part of the case.
20 We would like the closing addresses to follow one after the
22 MR. WLADIMIROFF: That will be fine with us, your Honour.
23 THE PRESIDING JUDGE: What Miss Featherstone and Mr. Bos were saying
24 to me is that the other Chamber may need more than two days.
25 They may need three days. That would then get us into
26 Thursday. Of course, if you are estimating a day and you are
27 estimating, perhaps, one day also, that is awfully tight too.
28 We certainly do not want to delay the completion over a weekend,
1 unless you, gentlemen and ladies, want to return on the Saturday
2 and we want to return on the Saturday. I do not know. Let me
3 discuss it with the Judges. We can tell you later on. Why do
4 you not call your next witness and then we will tell you how we
5 might proceed?
6 MR. WLADIMIROFF: Thank you, your Honour. I call Dr. Wagenaar.
7 DR. WAGENAAR, called.
8 THE PRESIDING JUDGE: Sir, would you please take the oath that is
9 being handed to you in English, I think? We will find one.
10 THE WITNESS: I solemnly declare that I will speak the truth, the
11 whole truth and nothing but the truth.
12 (The witness was sworn)
13 THE PRESIDING JUDGE: Fine. Thank you. You may be seated.
14 Examined by MR. WLADIMIROFF
15 THE PRESIDING JUDGE: Mr. Wladimiroff, you may begin.
16 MR. WLADIMIROFF: Thank you, your Honour.
17 Q. Professor, is your full name William Albert Wagenaar?
18 A. That is correct.
19 Q. Do you live in the Netherlands?
20 A. Yes, that is correct.
21 Q. Do you hold the degree of PhD in Social Science from the
22 University of Leiden where you prepared your doctoral thesis on
23 Sequential Response Bias, a study on choice and chance in 1972?
24 A. Yes.
25 Q. Were you granted a Fullbright scholarship for the Pennsylvania
26 State University during 1972 to 1974?
27 A. 1973 to '74.
28 Q. Thank you. Have you been Head of the Psychology Department of
1 the Institute for Perception of the Dutch National Foundation
2 for Applied Sciences from 1974 to 1985, and in the same time
3 part-time Professor of Applied Experimental Psychology at the
4 University of Leiden from 1982 to 1985?
5 A. Yes, that is correct.
6 Q. Were you appointed full-time Professor of Experimental
7 Psychology in the section of Experimental and Theoretical
8 Psychology of the Faculty of Social and Behavioural Sciences of
9 the University of Leiden in 1985?
10 A. Yes.
11 Q. Is this still your present position?
12 A. Yes, that is correct.
13 Q. Have you been Dean of the Department of Psychology of that
14 University from 1985 to 1987?
15 A. Yes, it is called Head of the Department.
16 Q. Have you been Head of the Department of Social Sciences of that
17 University from 1987 to 1989?
18 A. Yes, and that is called Dean of the Department.
19 Q. That is called Dean.
20 A. I cannot help it!
21 Q. Are you Head of the Section of Experimental and Theoretical
22 Psychology of the Faculty of Social and Behavioural Sciences
23 since 1985 until this present day?
24 A. Yes.
25 Q. Are you Rector Magnificus or Vice Chancellor elect of the
26 University of Leiden?
27 A. Yes, that is correct.
28 Q. Has your work been concentrated on human perception and the
1 functioning of the memory during the past 20 years?
2 A. Yes, part of my work, not all of it, but much of it.
3 Q. Are you a member of several Dutch, European and American
4 academic and professional associations and societies and have
5 you held offices in these organisations?
6 A. Yes, that is correct.
7 Q. Have you been a member or chairman of scientific committees and
8 government advisory boards?
9 A. Yes.
10 Q. Have you been an expert witness in trials involving questions of
11 human perception and memory such as, for example, the Demjanjuk
13 A. Yes.
14 Q. Have you extensively published in your field of expertise in
15 scientific journals and books?
16 A. You call it "extensive", I can give you the number.
17 Q. More than 150 numbers, is that right?
18 A. Yes, that is correct.
19 Q. Dr. Wagenaar, being a reputed expert on the functioning of human
20 perception and the functioning of the memory, have you been
21 asked by the Office of the Prosecution of the International
22 Tribunal in March 1995 to advise the Prosecution about the
23 memory of witnesses and the problems of identification?
24 A. Yes, I do not remember the exact date, but I think that is
25 probably correct.
26 Q. Without going into the substance of your advice to the
27 Prosecution, did you suggest to the Prosecution that you would
28 prefer to be appointed by the Court to act as an independent
2 A. Yes.
3 Q. Were you informed by the Prosecution that such construction
4 would not fit into the adversarial system?
5 A. Yes.
6 Q. Did I contact you in October 1995 seeking your assistance for
7 the same matter, that is, your professional opinion on the
8 memory of witnesses and the problem of identification?
9 A. Yes.
10 Q. Did it become clear to you that I was not aware of your previous
11 involvement with the Prosecution, and did you explain to me that
12 you would prefer to be an independent expert witness making your
13 expertise available to both parties?
14 A. Yes, I did that.
15 Q. Did you inform the Prosecution of your contacts with the
17 MR. TIEGER: Your Honour, leading a witness through his background
18 and credentials is one thing; testifying instead of the witness
19 is another. I think my learned friend is leading at this stage.
20 THE PRESIDING JUDGE: It is leading.
21 MR. WLADIMIROFF: It is simply a matter of ----
22 THE PRESIDING JUDGE: It is not really preliminary because I think
23 that you, perhaps, want us to draw something from those
24 conversations, so I will sustain the objection.
25 MR. WLADIMIROFF: What I will do, your Honour, is simply clarify the
26 position of this expert witness to avoid any discussion on the
27 matter and also to avoid the substance of any advice given to
28 either party just to make it clear and that is all.
1 THE PRESIDING JUDGE: That really was my concern, just how far you
2 are getting into that, because it is a leading question, but
3 there is a greater concern that I had. OK. I will sustain the
5 MR. WLADIMIROFF: I just want to see where I was left. [To the
6 witness]: After having contact with me, Professor Wagenaar,
7 have you informed the Prosecution about your contact with the
9 A. Yes, I have.
10 Q. Did you at any stage provide the Prosecution with an expert
11 opinion on a photospread by a letter?
12 A. Yes, I wrote them a letter on 27th March 1996.
13 Q. Have you sent with the consent of the Prosecution a copy of that
14 letter to the Defence?
15 A. Yes, I did.
16 MR. WLADIMIROFF: Your Honour, I want to show this letter for
17 identification to the expert witness.
18 THE PRESIDING JUDGE: Yes, that will be marked as Defence what
20 MR. WLADIMIROFF: D90, as far as I can see it. (Handed).
21 (To the witness): Is this the letter you referred to?
22 A. Yes, it is.
23 MR. WLADIMIROFF: Your Honour, I tender this letter as D90.
24 THE PRESIDING JUDGE: Is there any objection?
25 MR. TIEGER: I believe we are talking about the same letter, your
27 THE PRESIDING JUDGE: Mr. Usher, would you show what has been marked
28 for identification purposes as Defence 90 to the Prosecution?
1 MR. TIEGER: No, there is no objection, your Honour.
2 THE PRESIDING JUDGE: Defence 90 will be admitted.
3 MR. WLADIMIROFF: Professor Wagenaar, did you also provide the
4 Defence with an expert opinion on related matters by a letter?
5 A. Yes, I sent you a letter dated 10 October 1996.
6 Q. Did you spontaneously provide the Prosecution with a copy of
7 that letter?
8 A. Yes, it is mentioned at the end of my letter, I think, that
9 I would send the Prosecution a copy of it or at the beginning of
10 the letter, rather.
11 MR. WLADIMIROFF: Your Honour, I want to show a letter for
12 identification to the expert witness.
13 THE PRESIDING JUDGE: That will be Defence 91. Why do you not show
14 it to the Prosecution?
15 MR. WLADIMIROFF (To the witness): Is this the letter you referred
17 A. Yes, that is the same letter.
18 Q. Thank you. Your Honour, I tender this letter as D91.
19 THE PRESIDING JUDGE: Any objection?
20 MR. TIEGER: No, your Honour.
21 THE PRESIDING JUDGE: Defence 91 will be admitted.
22 MR. WLADIMIROFF: Professor, do you refer in this letter D91 to the
23 Defence to a document indicating the pages of the transcript in
24 the Tadic case that have been given to you by the Defence?
25 A. Yes, I did.
26 MR. WLADIMIROFF: Your Honour, I would like to show this document to
27 the expert witness for identification, please. That will be
28 D92. [To the witness]: Is this the document you refer to?
1 A. Yes, it is the same document.
2 Q. Thank you. Your Honour, I tender this document as D92.
3 THE PRESIDING JUDGE: What is that exactly? Is that a reference to
4 transcripts that have been provided? Dr. Wagenaar, is that a
5 letter from you to him or is that acknowledgment that he has
6 received a letter?
7 MR. WLADIMIROFF: It is a document provided by the Defence to the
8 expert witness listing all pages of the transcript that have
9 been given to the expert witness and also containing a summary
10 of those statements.
11 THE PRESIDING JUDGE: Do you have a copy of that? Usher, would you
12 show it to the Prosecutor, please?
13 MR. TIEGER: One moment, your Honour.
14 THE PRESIDING JUDGE: Is there any objection to Defence 92?
15 MR. TIEGER: No, your Honour. I should note, however, that in
16 addition to listing pages and containing a summary of statements
17 it also contains commentary provided to the doctor.
18 THE PRESIDING JUDGE: Defence 92 will be admitted.
19 MR. WLADIMIROFF: Thank you, your Honour. Professor, did you get a
20 full transcript of all pages indicated in the document?
21 A. Yes, I did.
22 Q. Is your opinion as given in the letters, Exhibit D90, your
23 letter to the Prosecution and D91, your letter to the Defence,
24 as well as the evidence you are about to give today based upon
25 the materials given to you by the Prosecution and the Defence,
26 and your personal knowledge drawn from your own work and that of
27 other recognised scholars in your field of expertise?
28 A. Yes, it is.
1 Q. From the pages of the transcript as listed in document Exhibit
2 D92 that I have given to you, it appears that in court two
3 specific terms were used during the trial, "identification" and
4 "recognition". Can you tell the Court what these terms mean in
5 psychological and forensic literature?
6 A. "Recognition" is a very broad term that is used for any
7 situation in which stimulus is shown to a person, in which a
8 person has to express whether he or she has seen that stimulus
9 before. So that could be a face, a person, a book or words, a
10 picture, anything. In principle, all identification procedures
11 that are used in court proceedings or in police investigation
12 would fall under that broad definition.
13 I have noticed in the pages from the records that
14 I have seen that this Court has adopted a slightly different
15 meaning of the word in which it has distinguished between
16 "identification", which is a word that is normally not used in
17 psychological theory, and "recognition", where recognition has
18 been reserved for those witnesses who know the accused before
19 the war and who have later identified him; whereas
20 "identification" has been used by this Court to indicate
21 subjects, witnesses rather, who did not know the accused before
22 the war, and who have identified him by the means of a
24 In order not to confuse matters, I have suggested in
25 my letter that I follow this terminology, that I will use
26 "recognition" for the recognition of a person that was known
27 before the war to the witnesses and "identification" by those
28 recognitions by witnesses who did not know the accused before
1 the crime.
2 Q. Thank you. If the term "identification" was used in Court in
3 connection with witnesses who did not know Mr. Tadic before the
4 war and who identified him with the use of a photospread, would
5 such identification always prove that the accused committed the
6 crime with which he is charged?
7 A. No, definitely not. Maybe it is, if I may, it would be good to
8 explain the logic of an identification test ----
9 Q. If you would, please.
10 A. --- and what it purports to do. A proper identification test
11 usually has the objective to place the accused at the scene of
12 the crime. I mean the following. If the witness has never seen
13 the accused before the moment of the crime and possibly at the
14 scene of the crime, depending on whether the accused was there
15 or not, then a later identification that would follow all the
16 rules for identification would logically place the accused at
17 the scene of the crime, because how can a person recognise,
18 identify, someone if he or she has never seen that person? If
19 there is only one occasion in which he or she can have seen that
20 person, then, logically, it is confirmed that that person was
21 present at that particular occasion, in this case the scene of
22 the crime.
23 It does only that; it locates the accused at the scene
24 of the crime. It does not say what the accused did there,
25 whether he was guilty of any crime or not. It only positions
26 him at the scene of the crime.
27 So it can definitely never confirm what that person
28 did. That is a different question. It only contributes one
1 step, locates the person at the scene of the crime. It can only
2 do that if the identification procedures were correct. There
3 are many ways in which identification procedures can be
4 incorrect and usually when you make an error in the procedure,
5 the logic -- you lose the logic that the result places the
6 accused at the scene of the crime.
7 For instance, if there has been another encounter
8 between the witness and the accused, you cannot logically
9 conclude that since the accused was recognised, there is only
10 one explanation which is an encounter at the scene of the
11 crime. There is another explanation which is the second
12 encounter. So, as soon as you know that there was a second
13 encounter, you lose the logic of the identification test.
14 In my letter to you and also in my published work,
15 I have discussed many problems in identification procedures that
16 I would say almost without exception reduce or either remove the
17 logic of the test. So my answer is, no, an identification test
18 will never prove what the person did. It can only prove that
19 the accused was at the scene of the crime, but that will only
20 happen if there were no flaws in the procedure.
21 Q. Thank you. Does it mean, what you have just told us, that an
22 identification by an eyewitness does not always have probative
24 A. No, it very much depends upon the specific conditions in which
25 the test was made. To give you one example, if the witness knew
26 the accused even before the crime, the identification does not
27 logically lead to the conclusion that because of the
28 identification we can now know that the accused was at the scene
1 of the crime.
2 Q. Am I right ----
3 A. If the test was highly suggestive in one way or the other, again
4 there is another explanation for the correct identification of
5 the accused, namely, that it was highly suggestive -- it is too
6 easy, anybody, even those people who were not present at the
7 scene of the crime, would find it easy to find out to whom they
8 should point in the test.
9 Q. Am I right in thinking then that the probative value of an
10 identification might generally be crippled by two major issues:
11 First of all, is there any reason to believe or to take into
12 account that the witness knew the accused from other occasions
13 than the crime and, secondly, was the procedure of
14 identification correct? Are these the two major issues there?
15 A. Well, I would say the logic that the identification proves the
16 presence of the accused at the scene of a crime is crippled by
17 those things. You may have other objectives with an
18 identification test. For instance, simply to verify that we are
19 still talking about the same person, the same person that these
20 people knew so well from many years before the war, just to
21 exclude the mistakes or so, and that still could be very
22 useful. But that is a different thing than the logic that
23 possibly the test places the accused at the scene of the crime.
24 It is that logic that is crippled by the two things that you
26 Q. Thank you. If the term "recognition" was used for witnesses who
27 knew Mr. Tadic before the war and who recognised him in Court as
28 the person they had known for a long time, would such
1 recognition always prove that the accused committed the crime
2 with which he is charged?
3 A. No. I would say if they knew him very well before the war, a
4 recognition during the investigation only proves that they knew
5 him very well before the war. If there is any reason to doubt
6 that, we have now established that. But anybody who knew him
7 very well before the war would be able to recognise him after
8 the war. So, logically, that does not prove that their
9 testimony about what happened during the war is true or not
10 true. It simply has nothing to do with it logically.
11 Q. Does this mean that recognition of an accused does not always
12 have probative value then?
13 A. Well, it proves what it proves. It proves that they know this
14 person, and that is what they said. If that needs proof, it has
15 probative value. If you want to prove through the recognition
16 that their testimony about what happened during the war is true,
17 I would say it cannot contribute anything to that, apart from
18 the fact that, apparently, this witness has not lied about his
19 previous acquaintance with this person. If it is worthwhile to
20 establish that, it does it.
21 Q. Are there major problems here that might cripple the probative
22 value as such, that is, simply, "We know him for a long time
23 and, therefore, we are able to recognise him"?
24 A. I do not quite understand your question. I am sorry.
25 Q. Are there problems here you could label that might cripple a
26 claim of a witness ,"I know him from before and, therefore, I am
27 able to recognise him"? Are there procedures that might cripple
28 or is there anything that might cripple?
1 A. Well, in principle, these what you call "recognitions",
2 identifications by people who knew him from before the war, in
3 principle, the identifications were done here in the courtroom.
4 They are what we call "dock identifications". Of course, the
5 situation here is very simple. It is very easy to find out who
6 of the persons present in this courtroom is the suspect, is the
7 accused. So even if they lied about knowing him before the war,
8 they would find it easy to identify him now. So if you have
9 really a doubt whether it is true that they knew him before the
10 war, I would say a better test is needed than a dock
11 identification test.
12 On the other hand, assuming that these witnesses are
13 totally honest, and there would have been a mistake, so the
14 person they described is not the person present in the courtroom
15 today, there is every reason to assume that they would now
16 correct the mistake and say, "No, that is not the person I
17 mean". They have given all opportunity. Only when you start to
18 doubt their sincerity or their honesty, you need a more critical
19 test than a dock identification.
20 But I have in the discussions I have read not seen any
21 description about whether it is true that they lived in the same
22 village or in the same area. So I would not directly see a need
23 for a more strict test than just a kind of verification test in
24 the courtroom.
25 Q. I take it then that "identification" and "recognition" in the
26 way it has been used in this Court require two different forms
27 of testing?
28 A. Yes. For those few witnesses who did not know him before the
1 war, you need a much more strict and better controlled test,
2 because the outcome may have the logical implication that now
3 the accused is placed within the camp. I would say that
4 conclusion is so important there must be no doubt about that the
5 evidence is doing that. So that is why for those who did not
6 know him and who are going to pass an identification test, a
7 very well controlled procedure is necessary.
8 Q. Could you describe such a procedure for us, just in general
10 A. I would say I have described it in length in various
11 publications. The surprising thing is that although you might
12 think it is easy to do, in fact, it is not at all easy to do.
13 I have published in 1988 50 rules for such tests. That is not a
14 limited list. There are more rules. Those are the 50 most
15 important ones.
16 In principle, what you do is that you place the person
17 whom you suspect among a number of other people whom are known
18 to be innocent and are known to be unfamiliar to the witnesses,
19 who sort of fit the same general description as the suspected
20 person. Then you ask the witnesses whether they recognise the
21 one person they have described before or not. You tell them
22 that maybe that person is not in the lineup so they should not
23 guess. They should only point at someone if they recognise him
24 positively. You tell them they can only point at one person
25 because they cannot recognise two, at one person or at nobody.
26 You give them a limited time to do that because if you recognise
27 them, you recognise them in a short time, it does not help to
28 wait two and a half hours and then you may recognise them.
1 Q. What kind of testing is generally required for what has been
2 called in this Court "recognition"?
3 A. Well, if -- it depends on, as I said, it depends on what the
4 purpose, the objective of what the recognition is. If it is
5 just to verify that this is the same person that the witness
6 described, the person has known for so long, then in Court dock
7 identification probably would suffice.
8 If there is sincere doubt that this person, although
9 he claims to have known the accused for a long time, in fact
10 never had met him, then also for that purpose you need a far
11 more critical test like the one I described to you. But if it
12 is not at issue, if it is not in doubt whether he knew that
13 person, you do not need to take all those precautions. You only
14 need to verify that we are still talking about this same person
15 so there are no mistakes.
16 Q. Professor, before I ask you about the tests that were applied in
17 the Tadic case, let me first ask you, did you find in your
18 review of the transcript that 52 witnesses were confronted with
19 the accused in one way or another?
20 A. Yes, on page 3 of my letter of 10th October, if I may refer to
21 that letter because it is more practical, I think. There is a
22 table which lists the number of witnesses ----
23 Q. Before you do that, Professor, may I suggest that we provide the
24 Court with a copy of that letter that might be helpful for you
25 to follow the explanation? (Handed) Please continue.
26 A. So on page 3 there is a little table that represents the
27 witnesses about whom I have read parts of the records. I do not
28 want to imply that these are all the witnesses that have been
1 presented to the Court. Those are the witnesses that I know of
2 on the basis of this package, this extract, of the Court
3 proceedings. Of these 52, 48 declared that they knew Mr. Tadic
4 long before the war and four declared that they did not know
6 Q. Out of those 48, can you explain to the Court how many of those
7 48 did recognise Mr. Tadic or did recognise him and their
8 conditions that would be correct if the test was applied to the
10 A. It depends what the objective is. Out of these 48, 42
11 identified -- no, 47 identified the accused here in the
12 courtroom. If the objective of that is just to make sure there
13 is no misunderstanding, it confirmed they recognised him, it
14 confirmed, "This is the person I am talking about", that would
15 be a correct procedure for just verifying that there is no gross
17 Five additionally also looked at photographs before
18 they came to Court, but generally (and I have described that in
19 this paragraph relating to this), these photo identifications
20 were not proper photo line ups. Some of them consist of only
21 two photos. So again also these five, about these five, we know
22 that they verify that the person being accused now is the person
23 they were talking about, and about which they declared that they
24 knew him long before. Nothing else. Then there is one witness
25 who appeared in Court, but I could not find any identification
26 attempt. So we do not -- the verification was not done.
27 I would say, in principle, with this 47 there is
28 nothing wrong as long as the logical conclusion of those
1 identification that is drawn by either you, the Prosecution or
2 the Court is not that those identifications now place the
3 accused at the scene of the crime, in the camp, because they
4 cannot logically do that. It is only established here in Court
5 the witness still thinks that the person he is talking about is
6 the same as the accused.
7 Q. So you did find 48 witnesses who claimed that they did know
8 Dusko Tadic before the war, is that correct?
9 A. Yes, and maybe I should add that a proper lineup, the way
10 I described, is impossible with people who knew him anyway,
11 because even if they had never seen him during the war they
12 would find it easy to identify him. So the logic, the logic of
13 the proper identification test, would be lost anyway. So,
14 I think the procedures that have been used here are adequate for
15 the limited purpose, the limited objective, of simply excluding
16 gross mistakes.
17 Q. May I try to sum this up? Did you find 84 witnesses who claimed
18 that they knew Mr. Tadic before the war, is that correct?
19 A. Well, I would say, rather, 48.
20 Q. 48, excuse me.
21 A. Yes.
22 Q. Right. Did you find that 42 of these 48 witnesses claimed that
23 they recognised Mr. Tadic in the dock?
24 A. Well, no, 47. You have to add the five, those five.
25 Q. I will come to that letter.
26 A. OK. 42 identified him, as far as I know, only here and not
27 before with the help of photographs.
28 Q. Right.
1 A. Yes.
2 Q. Did you find that five of these 48 witnesses recognised
3 Mr. Tadic by use of a photospread and also recognised him in the
5 A. Yes. I should say, of course, that since they have seen
6 photographs of him before, there is a slight logical problem
7 here, because if, in fact, they had never seen him before the
8 war but only on this photograph, they would also find it
9 possible to identify him here in Court, and certainly for those
10 five it does not really prove that they knew him before the war
11 because they have seen his picture during the investigations.
12 But if you want to assume that those witnesses are
13 honest people, they would have had -- and there is a mistake,
14 just that the wrong person is here, then of course they would
15 have said, "No, this is not the person I have known for so
17 Q. Did you find that one witness who had failed to recognise
18 Mr. Tadic in the photo test was subsequently asked to identify
19 him in the dock?
20 A. Wait a minute. Can you repeat the question?
21 Q. Did you find that one witness who failed to recognise Mr. Tadic
22 in the photo test was subsequently asked to identify him in the
24 A. Wait a minute, you are not referring to the one in my table
25 where it says one person, I think, because that is a person for
26 whom there was simply no identification attempt whatsoever, as
27 far as I know.
28 Q. Perhaps you could read to the Court in your expert opinion the
1 sentence beginning with "The one exception"?
2 A. That is on page 3 I think.
3 Q. On page 3, a little over the middle of the page. At the end of
4 the sentence you will see "The one exception". It is at the top
5 of that letter.
6 A. "With the exception of one, the 40 tests revealed positive
8 Q. Later on down five lines down you will find at the end of
9 line ----
10 A. Yes. "The one exception mentioned above was a witness who
11 participated both in the photo test and the dock
12 identification." OK, yes, that is the witness who failed in the
13 photo test and later she claimed that in fact she had recognised
14 Mr. Tadic but had failed to express that. That is a problem
15 because if one wants to stick to the rules for identification
16 the first response, that is the final response. You do not
17 allow witnesses to correct their responses, and definitely not
18 after a while when they have seen and talked to other people.
19 Q. Should a subsequent dock identification then be held after such
20 a test or failed test?
21 A. In principle not I would say. This is a person who, according
22 to the rules, has demonstrated that she cannot easily identify
23 the witness. In a subsequent dock identification, as
24 I explained, it would be rather easy for her because she has
25 seen the picture. Of the 13 pictures she has seen, if she has
26 had the complete test, there is one person present, so it is
27 easy for her to realise that is the person she should point at.
28 So the answer is, no, once there is doubt whether a witness can
1 identify the accused, once the witness has failed to do that,
2 I would say you should reject the witness and note it as a
3 non-recognition, non-identification.
4 Q. Would you say then that that dock identification of that witness
5 fails diagnostic value?
6 A. The dock identification does not have the power to sort of
7 correct what was lost during the first identification.
8 THE PRESIDING JUDGE: May I just ask a question about that one
9 person? Is that person in your number for the photo test or is
10 that person in the number for the dock identification or both?
11 A. It is the person -- she is in the five.
12 Q. She is in that five?
13 A. She is one of those five because she received two tests.
14 Q. She is listed as a dock identification ----
15 A. And photo test, yes.
16 Q. --- but for someone who knew him. Is she also in the four? No,
17 she could not have been because she knew him?
18 A. No, she knew him.
19 Q. She is in the five.
20 A. She knew him but she could not recognise him in the 13-picture
21 photo test. So she is within those five.
22 Q. She is in the dock identification. Thank you.
23 MR. WLADIMIROFF: So where does that leave us? How many positive
24 recognitions were there altogether of those who claimed that
25 they knew him before the war?
26 A. So from those who knew him before the war, those 48, 46
27 recognised him in one way or the other. One as far as I know
28 was not tested and one did not pass the test.
1 Q. Thank you. Again, Professor, before focusing on the ins and
2 outs of these recognitions in details, does this mean that these
3 46 recognition logically corroborate the claim of these
4 witnesses that Mr. Tadic is the person they have seen to commit
5 the crime?
6 A. Well, logically it corroborates that that is the person they
7 know as Mr. Tadic. They are able to indicate who Mr. Tadic is.
8 I would say that is a necessary condition for believing that
9 they saw, that they know who saw commit some crimes. So, if
10 they would not have passed the test there would have been a
11 problem with legal evidence, because if they cannot recognise
12 him how do they know that that was the person they saw commit
13 crimes? It is a necessary condition. They should pass the
14 test, but once they have passed the test there is still a
15 question about: Is it true what they say about him? They know
16 who it is. Of course they know if they have lived in the same
17 village. So they are not lying about knowing who he is. That
18 is all that is proved.
19 Q. Are you saying it does not logically corroborate the claim of
20 these witnesses that Mr. Tadic is the person they have seen to
21 commit the crimes?
22 A. No, logically not, because others who have lived in the village
23 and who have never seen anybody do any crimes would found it
24 equally easy to identify him. So the easy identification by
25 people who are from the same village or same area, just means
26 they are from the same area, that is all. It does not mean that
27 they saw or did not see any crimes.
28 Q. If we proceed to the other group, those who claim that they did
1 not know him before, how many people did you find out of those
2 52 witnesses according to your review?
3 A. I found four in the pages that were given to me. I consider
4 these four, although the number might seem small, are extremely
5 important because if the procedures are correct then, logically,
6 that places the accused in the camp. I think that is such an
7 important element to the Court that, even although there are
8 four, I would say four is a small number compared to 52, but it
9 is not a small number. There are four witnesses who all
10 attested they have seen him in the camp, and if they can now
11 recognise him and the tests were executed in the correct manner,
12 there is no other explanation for the recognition but the fact
13 that they saw him in the camp. So those four, it is not a small
14 number. They are extremely important.
15 JUDGE STEPHEN: Mr. Wladimiroff, may I ask a question? You say these
16 four are very important because of placing him in the camp. If
17 you look back to the 42 some of them knew him from childhood, we
18 will assume. They say, "We saw him in the camp". Why is that
19 evidence less important than the evidence of the four, if the
20 test for the four is properly conducted? I do not follow that
21 at all.
22 A. No, I am not saying that evidence is less important. What I am
23 saying is if they tell you, "We saw him in the camp", and you
24 want to confirm that because you do not believe those
25 statements, then the identifications do not help you any more.
26 If you do not believe what they said about seeing him in the
27 camp, then asking them to identify him does not help you. It
28 does not add anything. If you want to believe what they said,
1 you do not even need the identifications.
2 Q. But we are not using identification to determine whether these
3 witnesses are truthful or not. That is quite a different
4 matter, a matter for the Court, is it not?
5 A. Sure, but that is exactly the reason why of those 42 or 48
6 depending on to whom you want to refer, their identifications do
7 not add anything to their truthfulness.
8 Q. No, but it may not be intended to. It has nothing to do with
10 A. Yes.
11 Q. I follow.
12 A. Whereas the four, that is a different matter. On the basis of
13 their identification you may decide whether they are truthful or
14 not, because if they are not truthful it will be impossible for
15 those four to identify him, you see. So there logically it has
16 a different meaning.
17 JUDGE STEPHEN: Thank you.
18 MR. WLADIMIROFF: So, do these identifications of those four
19 logically place Mr. Tadic at the scene of the alleged crimes?
20 A. They have the potential to do that, depending on whether the
21 procedures were applied correctly or not. But they have the
22 potential to do that, yes.
23 Q. So without correct procedures they do not have that potential?
24 A. If there are really gross violations of procedures, that
25 potential is lost.
26 Q. Am I right in thinking then that the value of these four
27 identifications totally depends on the procedure?
28 A. Yes.
1 Q. Professor, would it be relevant to know about other photo tests
2 with persons who were interviewed by the Prosecution or other
3 investigating bodies and who have not been called by the
4 Prosecution to give evidence in court? Would it be relevant to
5 know about the other photo tests?
6 A. Yes, definitely for various reasons. One is that on the basis
7 of these four witnesses I could not form a clear image of the
8 procedures, the exact procedures that have been used, and maybe
9 if there were more witnesses that, bit by bit, details of those
10 procedures would come out. That is one. But the more important
11 factor is that the one thing you definitely want to know is
12 whether there were witnesses who participated in the photo test
13 and who did not recognise him. Now the score, if I may say so,
14 stands four out of four. Four represented the photo test, they
15 all identified him. If one would believe that those witnesses
16 were lying about, say, their experiences and were simply
17 guessing in the test, then this result would be highly
18 unlikely. It would be 1/13th to the power of 4 which is an
19 incredibly small number. If in fact these four witnesses are
20 four out of, say, 50 for example, and the other 46 did not
21 recognise him but we are now told about them, then certainly the
22 likelihood that four out of 50 would guess correct is rather
23 high. So if we want to exclude the possibility that people were
24 simply guessing and guessed correctly, then we have to know how
25 many witnesses participated in such tests, in total and what the
26 results of all of them were.
27 Q. What if one of these four or all of them would have seen a
28 photo, a previous photo test with the photo of Dusko Tadic in a
1 different setting, in another case?
2 A. That would invalidate the test because then we cannot decide
3 what it means that they recognised him. Does it mean that they
4 saw him in the camp because that was the only encounter? Or
5 does it mean they remembered from the previous photo? So the
6 logic then, the logic of the test has gone.
7 Q. Let me focus on the major problems that might cripple the
8 outcome of your review. I take it that a photospread should not
9 contain such suggestive details or biasing elements that you
10 would say that such a test is not sufficient to identify a
11 suspect, is that correct?
12 A. Yes, all details that make it very easy to guess who the suspect
13 in that lineup is, in principle invalidates the test. The rule
14 is, which is a very practical rule, that if you ask people who
15 were never involved in this whole problem to indicate who they
16 think the accused is, they should not be able to do that. If
17 they understand from some suggestive aspect of the lineup who
18 the accused is, then certainly it does not mean anything any
19 more that the witnesses can do the same. It does not prove they
20 have seen him because others who have not seen him can do it
21 equally easy.
22 Q. Is there a test in your field of expertise that enables you to
23 test whether the photospread is correct or not?
24 A. Yes, that is sometimes referred to as the Doob and Kirshenbaum
25 test and I have, as well as we could, applied that test to the
26 set of 13 pictures.
27 Q. What does the test mean?
28 A. I reported this to Mr. Tieger in my letter of March 27th.
1 Q. May I then suggest we present a copy of that letter to the
2 Court. Can you tell us what this test means?
3 A. The test consists of presenting the 13 pictures to we call them
4 "subjects", or you might call them naive witnesses but I would
5 rather call them subjects because they have nothing to do with
6 the trial, and ask them: "One of these people is accused of
7 being a war criminal. Have you any idea who it is?" We asked
8 39 subjects and their choice frequency can be found in the
9 little table on page 3 of my letter. The picture of the accused
10 is No. 3. So what you can see is that five out of 39 selected
11 the accused. The guessing level is three out of 39, 1/13th. So
12 it is slightly above the guessing level, but not significantly
14 I reported in my letter that there is a problem with
15 this test which could not be mended by me easily, which is that
16 my subjects had the Dutch nationality, whereas the witnesses
17 definitely had not. The problem is, and this is an hypothetical
18 problem because at that time I could not find out how big the
19 problem was, the problem is that imagine that people from the
20 former Republic of Yugoslavia can easily distinguish between the
21 various ethnic groups, and imagine additionally that Mr. Tadic
22 is the only one who clearly looks like a Serb and the others do
23 not. Then to people from my subjects that would be not be
24 obvious. They would not select the picture of Mr. Tadic as the
25 only one representing a Serb.
26 Q. By your subjects you mean Dutch?
27 A. My Dutch subjects. Witnesses who look at those things and who
28 come from the former Republic of Yugoslavia might immediately
1 recognise there is only one Serb in the lineup and say, "Ah,
2 that must be him", because the person we are talking about is a
3 Serb. I could not easily mend that because I had no people from
4 the former Republic at my disposal as subjects. I reported this
6 Since then we have run experiments in Belgrade with
7 subjects -- I still call them subjects because it has nothing to
8 do with the trial as such -- with subjects who are more or less
9 representative of, say, the group of witnesses. What we have
10 found is that also these subjects found it impossible to
11 classify the pictures according to ethnic background, which
12 suggests to me that this problem, hypothetical problem, did in
13 fact not occur. Again I must say there is an exception there
14 too. I believe I must apologise to make things so complicated
15 as scientists always do, but that is my profession. I cannot
16 help it.
17 Q. Please do tell the Court.
18 A. Let me take a very extreme example. Imagine that we would have
19 presented 12 pictures of Japanese people to those subjects in
20 Belgrade and asked them, "Group them according to ethnic
21 background", and then mention the Yugoslav groups like Croats,
22 Macedonians and so on. They would find it extremely difficult
23 to group the Japanese faces in these categories because they
24 simply do not fit. Of course, what you have to know is that the
25 pictures that you present are of people from the former Republic
26 of Yugoslavia. So that the question to categorise them, to
27 classify them, is a meaningful question.
28 Unfortunately, I do not know who these 12 people,
1 these foils in the set of 13, who they are and where they came
2 from. So if they are not Yugoslavians at all, one reason why
3 they could not be classified according ethnic groups is that
4 they simply do not belong to these ethnic groups. That is a
5 question I have to leave open. I do not know who they are and
6 there is no easy way for me to find out.
7 Q. Does it mean that your experiments in Belgrade depend on the
8 assumption that those foils were people from the former
10 A. Yes.
11 Q. And, if not, that this test in Belgrade does not add anything to
12 your test with Dutch subjects?
13 A. You have invited a scientist. It is more complicated, but the
14 question is not are they from the former Yugoslavian Republic or
15 not but how many. If one is not I would say there is still no
16 problem. If only one is a former Yugoslavian then there is a
17 problem. So it is matter of degree. But I would say it would
18 be very nice to be assured that they all came from the former
19 Republic of Yugoslavia.
20 Q. Actually did you show all 13 pictures to the subjects in
21 Belgrade or a lesser amount of pictures?
22 A. No, we asked them to classify the 12, not the picture of
23 Mr. Tadic, because we assumed that by now they would recognise
24 this picture immediately and know that he is from the former
25 Serbia. So that would be a meaningless question. We also did
26 not want to suggest to them that what they were doing would
27 contribute to this trial, because that could give them all sorts
28 of second thoughts, second reasons, to answer to our questions
1 instead of simply doing the task, which is classifying according
2 to ethnic background. So we did not show that picture. It
3 would not teach us anything that would be useful, and it would
4 sort of threaten the neutrality of the test.
5 Q. By now what do you mean, when would it be no longer appropriate
6 to run the test when the trial started or at an earlier date?
7 A. I think it would be very nice before the photospread was shown
8 to anyone at all to test it thoroughly to see that it is not
9 biased, to see that naive subjects from the group who was going
10 to be interviewed later, people from Bosnia, that they would
11 find it impossible, not having met Mr. Tadic before, to identify
12 who the accused in that lineup is. That would be very nice. It
13 would be a very wise precaution. Now it is of course impossible
14 to do that with naive people from Bosnia because I assume that
15 there are very few people in Bosnia who do not know about this
16 trial and who have not seen in one way or another the face of
17 Mr. Tadic.
18 Q. Am I right in thinking then that usually the Doob and
19 Kirshenbaum test is performed with the same ethnic group as the
20 accused? Is that the condition, a logical condition?
21 A. That is a logical condition, the same people drawn from the same
22 populations as where the witnesses come from. That is the ideal
23 condition, yes.
24 Q. Do I understand you well that you are not able to tell the Court
25 whether the test was run with the same group as the accused when
26 you tested the photospread of the Prosecution? You simply do
27 not know?
28 A. Wait a minute, maybe there is a confusion now. I thought you
1 were asking about subjects in the Doob Kirshenbaum test as
2 compared to witnesses.
3 Q. I am asking you ----
4 A. I understand. Now you are asking about the foils coming from
5 the same ethnic background ----
6 Q. That is right.
7 A. --- as the accused, which is a totally different question.
8 Q. Let me rephrase the question then. Is it usually done to run a
9 Doob and Kirshenbaum test with foils of the same ethnic group as
10 the subjects you run the test with?
11 A. No, that is not necessary. It is perfectly possible that the
12 witnesses are, say, Japanese and the accused is a Serb. There
13 are two conditions that you would ideally meet, which is your
14 naive subjects in the Doob and Kirshenbaum test should come from
15 the same population as the witnesses. Second, the foils should
16 come from the same ethnic background as the accused.
17 Q. Right.
18 A. But these two groups can be entirely different. The witnesses
19 can be all Japanese and the accused and the foils can be all
20 Croats or Serb or whatever.
21 Q. Do you know who composed the photospread that was used in the
22 Tadic case?
23 A. I have only hearsay information about that. I am not sure that
24 you want to know that. The pictures were given to me by the
26 Q. Was there any information added to that?
27 A. One could not obtain information about who these foils were.
28 Q. Did you ask whether there was any information about that
2 A. Yes, I was told that those 12 were provided by the Dutch police,
3 but I have no way to verify that. I have talked to the person
4 in the Dutch police organisation who was involved in that and
5 who confirmed he had anything to do with it, but he could not
6 give me any details about who these 12 were.
7 Q. Was there any registration of who those people were, names,
8 ethnic background?
9 A. If there is it was not given to me. I have asked for it.
10 Q. It was not available?
11 A. I cannot say that. It was not made available to me when I asked
12 for it.
13 Q. Am I right then that you do not know anything about the ethnic
14 background of the foils?
15 A. That is correct.
16 Q. Would the presentation of a photospread containing photographs
17 of, let us say, Bosnian Muslims or Croats or even non-Yugoslavs
18 to non-Serb witnesses invalidate the choice of frequency?
19 A. I am sorry, can you ask that again?
20 Q. Would the presentation of a photospread containing photographs
21 of Bosnian Muslims or Croats or non-Yugoslavs to non-Serb
22 witnesses, say, Muslims or Croats, invalidate the choice of
24 A. No, not necessarily. I would say it all depends on the test.
25 That is exactly why you run such a test to make sure that the
26 photo set is chosen correctly and whether people from the
27 relevant population find it easy to identify who the accused
28 is. If they do not the test is correct and then it really does
1 not matter where they came from. But that test, the Doob and
2 Kirshenbaum test, run with people from Bosnia, Bosnian Muslims,
3 cannot be run any more because they know who Tadic is. The
4 replacement, the best, the next best, the test I did, had the
5 test of the 12 foils without the picture of Tadic, for that test
6 it is important that we know that they are all from Yugoslavia.
7 You see, it is always the problem if you did not do it exactly
8 right from the beginning you sort of have to live with the next
9 best, but the next best creates all sorts of new problems.
10 I cannot help that. I can only test, we can only tell you we
11 sort of applied the best test that is available at this late
12 stage, but it has problems. It cannot be helped. It can never
13 be a replacement for the test that I would have liked to have
14 done before the trial started.
15 Q. Is there a theoretical problem that witnesses or subjects who
16 are tested think they might not distinguish between the ethnic
17 background but in fact do? Is that an option?
18 A. Sure, if they tell you -- well, there is no problem because we
19 cannot distinguish between those ethnic backgrounds anyway.
20 That is what they say and many people can do things of which
21 they are not aware at all. So, the answer is in the test, not
22 in what they say about what the result of the test would
23 be. You apply the test and then you know whether they can do
25 Q. Did you find in your Belgrade research you did with this
26 photospread any answer to this problem?
27 A. In our Belgrade research we found that they cannot distinguish
28 between ethnic backgrounds, but there is this small proviso that
1 I mentioned that is meaningful if we know that those pictures
2 were representing people from the former Yugoslavia. Then it is
3 really helpful, I think, that result and it sort of reassures us
4 that the test, the photo test, was a fair test.
5 Q. But as a matter of fact we do not know ----
6 A. But there is a proviso.
7 Q. As a matter of fact we do not know who those foils are?
8 A. I do not know that. I do not know about you. I do not know
10 MR. WLADIMIROFF: Perhaps, your Honour, this is an appropriate
12 THE PRESIDING JUDGE: We will stand in recess until 2.30.
13 (1.00 p.m.)
14 (Luncheon Adjournment)
1 (2.30 p.m.)
2 THE PRESIDING JUDGE: Mr. Wladimiroff, you may continue.
3 MR. WLADIMIROFF: Thank you, your Honour.
4 Q. Professor Wagenaar, before the lunch break we had been
5 discussing the ins and outs of the Doob and Kirshenbaum test and
6 you did tell us about the uncertainties of the Prosecution
7 photospread, did you not, when you referred to you do not know
8 who the foils are, is that correct?
9 A. Yes.
10 Q. Do you know anything about the procedure that was followed when
11 that photospread was used?
12 A. A little, at least not all that I would like to know.
13 Q. We will go into that later. If you are not fully aware of the
14 procedure that was followed when the Prosecution photospread was
15 used and if you are not familiar with the identity and ethnic
16 background of the foils, would such a photospread provide for a
17 diagnostic, significant test?
18 A. Well, all I can say is that I cannot make a fair assessment of
19 how diagnostic it is. If everything went according to the
20 rules, it can be highly diagnostic and, in fact, say, an
21 identification, identification evidence can rank among the best
22 evidence that the Court can collect, if the procedures were
23 right. If the procedures went wrong, it can be highly
24 suggestive or even misleading and I cannot make a fair
25 assessment of which is the case.
26 Q. So it simply comes down that we need to know more about these
27 elements, procedure and who are they, to give any value to these
28 test, is that right?
1 A. I think that is a fair conclusion, yes.
2 Q. In your letter of 10th October 1996 to the Defence, that is
3 Exhibit D91, you described a number of weaknesses that threaten
4 the reliability of the photospread. Do you remember that?
5 A. Yes, I have it in front of me.
6 Q. Did you mention as a threatening factor earlier encounter?
7 A. Yes, I did.
8 Q. What does it mean?
9 A. It means that if the witness encountered the accused or a
10 picture of accused at any other time prior to the test, beside,
11 say, possibly at the scene of the crime, then we do not know any
12 longer what the identification means, whether it means that they
13 met at the scene of the crime or not because the reason why now
14 the witness recognises the accused could be the other encounter.
15 Q. Am I right in thinking that the probative value of the
16 recognition also depends on the reliability of a witness
17 claiming that he did not see the image of Mr. Tadic in
18 newspapers or on television?
19 A. Sure, if there is, in principle, a possibility that witnesses
20 have seen images, say, on television or in newspapers ----
21 THE PRESIDING JUDGE: Mr. Tieger?
22 MR. TIEGER: Your Honour, I was slow on that objection, but I am
23 concerned about the intrusion of this witness's opinions into
24 areas which are clearly the province of the Court; the
25 assessment of reliability, the judgment of evidence. It is one
26 thing to detail the factors based on his area of study which may
27 in some manner reflect on that, but to begin making assessments
28 of how the evidence interacts with that is, I think, beyond his
2 MR. WLADIMIROFF: As a matter of fact, I am not asking the witness,
3 your Honour, to give an assessment on the reliability. I am
4 simply asking him if the reliability of the witness is at stake,
5 would that invalidate the test. That is all I ask. So is the
6 reliability an issue which is relevant for the understanding and
7 the value of the test.
8 THE PRESIDING JUDGE: Reliability ----
9 MR. WLADIMIROFF: Of the witness.
10 THE PRESIDING JUDGE: -- in terms of an answer of a witness to a
11 question like having seen the image before on the TV.
12 MR. WLADIMIROFF: On the assumption that the witness is true when he
13 says that he has not seen Dusko Tadic before, you may evaluate
14 the test. I am simply asking, is it relevant then ----
15 THE PRESIDING JUDGE: I will overrule the objection. I will
16 overrule the objection. Go ahead.
17 MR. WLADIMIROFF: Yes. I will put the question again to you,
18 Professor: am I right in thinking that the probative value of
19 recognition depends on the reliability of the witness who claims
20 that he did not know Mr. Tadic before the crime?
21 A. Sure, if in any case, if it is not certain, if, in principle,
22 there has been an opportunity for seeing a picture of the
23 witness, and it is not -- it cannot be established that the
24 witness did not see such a picture, and the only thing you have
25 is the witness's own statement about this, well, then the degree
26 to which you trust that statement, of course, will affect your
27 belief in the test.
28 Q. That is for the Court to decide?
1 A. It is for the Court to decide whether they want to trust that.
2 THE PRESIDING JUDGE: That is where we are.
3 A. Yes.
4 MR. WLADIMIROFF: If the picture of Mr. Tadic was widely circulated,
5 would that invalidate a recognition, even when the witness
6 claims that he did not see the image of Mr. Tadic in newspapers
7 or television because he is not aware of that?
8 THE PRESIDING JUDGE: Excuse me.
9 MR. TIEGER: The same objection, your Honour.
10 THE PRESIDING JUDGE: That seems to me that he is getting into
11 telling the Judges how to make credibility assessments and --
12 well, that is what I feel. It may be that we decide not to
13 accept a witness's statement when he says: "I have not seen
14 Mr. Tadic on TV" when we know that his image has been broadcast
15 widely since the trial began because of circumstances that we
16 have learned from the witness, like lack of electricity in the
17 area, that he is working certain shifts. We have heard
18 witnesses regarding that. I really think that is a judgment for
19 the Judges.
20 MR. WLADIMIROFF: May I rephrase the question then into is it
21 possible then that the witness will claim he did not see
22 anything but he is not aware of what he has seen? Is that in
23 your field of expertise?
24 THE PRESIDING JUDGE: That sounds like a good question, because his
25 training is in human perception and functioning of the memory.
26 MR. WLADIMIROFF: Yes, exactly.
27 THE PRESIDING JUDGE: He can tell us whether it is in the recess
28 somewhere. OK.
1 MR. WLADIMIROFF (To the witness): May I put the question to you?
2 A. It is certainly possible that someone thinks he has not seen a
3 certain picture whereas, in fact, he or she has.
4 Q. Is there any research that will show how relevant this
5 assumption might be in general or in specific cases?
6 A. Well, given the general possibility that this may happen to
7 people, I think there is little else to say about how you apply
8 that in a specific case, but it may have happened, such things
9 may happen, and it is something I would say to evaluate, to be
10 weighed by the Court, but there is nothing more you can say
11 about it.
12 Q. Right.
13 A. It is not a thing you can ask -- for instance, you can ask the
14 witness: "May it happen that you do not remember but you have
15 still have seen it?" because what could the witness say about
17 Q. Should it assist the Court in making the assessment on the value
18 of such test if the Court was informed about the range and
19 extent of the circulation of the picture of Mr. Tadic?
20 THE PRESIDING JUDGE: Excuse me, Dr. Wagenaar.
21 MR. TIEGER: There is an objection. I do not think this witness is
22 an expert on this particular issue. He has already made his
23 point that prior exposure may bear, in his view, on
24 reliability. The factors which bear on what kind of exposure,
25 the extent of exposure, are outside his province.
26 THE PRESIDING JUDGE: Mr. Wladimiroff?
27 MR. WLADIMIROFF: I have no problem in withdrawing the question, your
28 Honour. [To the witness]: Should it assist the Court to be
1 informed about previous tests by other bodies than the
2 Prosecution such as, for example, Bosnian and German
4 A. I think if there were previous tests with the same witnesses, if
5 that is what you refer to, and there is a possibility that
6 pictures of Mr. Tadic were shown on that occasion or on those
7 occasions to the same witnesses, I think it would be highly
8 relevant to know about that.
9 MR. WLADIMIROFF: Your Honour, I want to show this document for
10 identification to the expert witness. I think that will be D93.
11 THE PRESIDING JUDGE: Yes.
12 MR. WLADIMIROFF: Show it to the Prosecution, but I think they have
13 it in front of them, yes. Please familiarise yourself with what
14 you have in front of you.
15 A. Yes, I have looked at it.
16 Q. Would you call this a photospread?
17 A. It is a collection of photographs. It could be used as a
19 Q. Let me first ask you, do you speak German?
20 A. Yes, I do.
21 Q. Does the top page of this document show that this is a
22 collection of photos?
23 A. Yes, transparencies, I would say it says.
24 Q. Does it also show on the top page that this map of photos is in
25 a criminal case against Nikola Nikolic, Milenko Tomic, Dragan
26 Vidic and a person called Zigic ----
27 A. Yes.
28 Q. --- who are accused of accessory to mass murder ----
1 A. Yes.
2 Q. ---- war crimes?
3 A. Yes.
4 Q. Does this collection of photos show a photo of Dusko Tadic?
5 A. Well, photo No. 197, I would say, reminds me very much of the
6 picture I have seen of him. I could be mistaken but .....
7 Q. Could you show that photograph on the overhead projector which
8 is on your right side?
9 THE PRESIDING JUDGE: Can we offer this -- would you offer it?
10 MR. WLADIMIROFF: Yes, I will tender this document as D93, your
12 THE PRESIDING JUDGE: Is there an objection?
13 MR. TIEGER: No, your Honour, there is not.
14 THE PRESIDING JUDGE: OK. Defence 93 will be admitted. It is
15 photo 197?
16 MR. WLADIMIROFF: This photo you see on your screen now is the photo
17 you referred to?
18 A. Yes, it has "197" on top.
19 Q. I may refer to your letter of 27th March 1996, that is Exhibit
20 D90, to the Prosecution. There is an attachment to that letter,
21 is that right?
22 A. Yes, there is.
23 Q. Could you show that attachment on the overhead projector,
24 please, perhaps together with the other photo? Is there on that
25 attachment a photograph of Dusko Tadic?
26 A. Yes, that is No. 3, this one, as I was told.
27 Q. Am I unfair if I ask you whether that is the same photograph,
28 the same image, according to your experience, seeing so many
2 A. Yes. I am not exactly certain it is the same photograph.
3 I would argue that to me it looks very much like the same
4 person. Whether it is exactly the same image, I am not certain
5 of that. I have a better picture in my possession of No. 3 on
6 the collection of photographs ----
7 Q. Before you do that, sir ----
8 A. That I could show ----
9 Q. --- let me first confer with the Prosecution. You got it from
10 the Prosecution.
11 A. OK.
12 Q. Does the Prosecution object if I ask the witness to use the
13 original that was given by you?
14 MR. TIEGER: Specifically, no objection to the use of those photos.
15 I think if it is an exhibit it should be made known to the
17 MR. WLADIMIROFF: They should be exhibited. Before doing that
18 I think it is fair enough to ask you because you were given
20 MR. TIEGER: I suppose I would also note that, perhaps, it is not
21 necessary to display the photographs of these other individuals
22 on television any longer than is necessary for purposes of the
24 THE WITNESS: It would make it easier if I just use this photograph.
25 MR. TIEGER: If I may -- excuse me, Professor -- Mr. Keegan suggests,
26 I think perhaps prudently, that a redaction might be
27 appropriate. We will try to find the time for the Court.
28 THE PRESIDING JUDGE: OK. Now we are back to whether there is a
1 better photograph of this image that is on the monitor. The
2 question is what you have before you, is that the same
3 photograph and, if so, put it on the monitor so that we can look
4 at it. Do you want to mark that as 94?
5 MR. WLADIMIROFF: Yes, please, your Honour. Could you take that
6 photograph of Dusko Tadic off ---
7 THE WITNESS: Take it off the paper.
8 MR. WLADIMIROFF: --- and put it on the Elmo, please?
9 A. It is a little bit easier to compare because it is better
10 quality and a bit larger. I would still find it (and it is not
11 in my field of expertise) to say that two photographs are
12 identical; it could well be the same photograph but since this
13 is a photocopy with a lot of dark in it, which also always
14 causes some changes, I would say it is not in my field of
15 expertise to say that they are exactly the same photograph.
16 I can just say that anybody could data the thing, that they look
17 a lot the same. They do not say that as an expert in
18 identification procedures.
19 Q. Thank you. Would the showing to victims and witnesses from the
20 former Yugoslavia of this German photospread in the criminal
21 case against four suspects I have just mentioned invalidate the
22 use of the Prosecution photospread in the Tadic case if used
23 with the same witnesses?
24 A. I think I should answer this question in a number of steps, if
25 I may?
26 Q. Please do.
27 A. If in this photospread that contains this photo I had been made
28 aware that this picture actually is the picture of a wanted
1 person or of the accused so that I would remember this picture
2 very well because I have spent more attention to it, then
3 I think among the certain picture photospread that was used
4 later, I think, it would be very easy to identify this
5 particular photograph as representing the same person. That is
6 the strongest case.
7 A step less stronger is if I would just have seen the
8 German photospread, not being aware which of the persons is the
9 wanted person, so I would have, sort of, to remember all of the
10 pictures, then there is still the possibility that seeing the
11 second spread, the spread, the 13 picture spread, I would
12 suddenly realise that one of these people I have seen before.
13 That is a step less.
14 The next step, still lesser step, is that after having
15 seen this picture and being confronted with a certain picture
16 photospread, I might not realise that I have seen one of them
17 before and where I did, but still it may happen that one of
18 these people looks more familiar than others, although I would
19 not be aware of what the source of the familiarity is.
20 Actually, although it seems to be the smaller step, the most
21 remote from what would be endangering the procedure, that is the
22 worst case, because now someone looks familiar and I do not know
23 why, I cannot exclude that feeling because I realise it was from
24 the previous test.
25 So, in that situation the danger that I will now think
26 I recognise that picture because I have seen this man, say,
27 being involved in a crime instead of in another test, say, is
28 the biggest. I am sorry for this long explanation, but the
1 distinction is very important especially because, say, what
2 apparently is the least case is, in fact, the worst.
3 THE PRESIDING JUDGE: Because it is in the recesses perhaps of your
5 A. Yes, right.
6 Q. It is familiar so you do not even realise that, in fact, you are
7 making this connection?
8 A. Right.
9 Q. I understand.
10 A. So a witness saying, "This man looks familiar" could be
11 perfectly honest and still make a mistake.
12 MR. WLADIMIROFF: Thank you. The second threat you labelled in your
13 letter was suggestion, was it not?
14 A. Yes.
15 Q. What does that mean?
16 A. "Suggestion" usually means in this context that there is
17 something in the situation that guides the witness towards one
18 of the pictures more than the others, and that something is not
19 his memory to, say, a person who committed a crime.
20 Q. Does the procedure of the photo test play an important role
22 A. Yes, many elements of the correct procedures are exactly aimed
23 at preventing various forms of suggestion.
24 Q. Could you tell the Court what these various forms might be?
25 A. For instance, a very simple one, if there is only one picture,
26 then it is -- the suggestion is very strong that that must be
27 the picture of a criminal. So a single person test is in itself
28 highly suggestive. The instructions might in a strong form say,
1 "I present you a series of photos. One of them is a criminal.
2 Who do you think it is?" That suggested the criminal is there
3 and that if you say, "Well, I do not recognise anyone", you
4 would be wrong. Whereas, in fact, of course, the real situation
5 is that if we apply the test we do not know whether one of them
6 is a criminal or not. That is exactly what we want to find
7 out. So the suggestion that there at least one of them is a
8 criminal is highly suggestive. The instructions should clearly
9 instruct, "Take care, maybe there is no one you recognise
10 because we have the wrong person. Do not make just an
11 identification at any cost. Do not guess. If you do not
12 recognise it, just say it". That is a very important element of
14 Q. Would it be advisable to avoid these kinds of suggestions to
15 apply the test on the basis of written instructions given to the
16 person who will execute the test?
17 A. Sure, well, if you are, as an investigator, highly experienced
18 in this, you will be able to memorise the correct instructions
19 and just say them without any written instruction in front of
20 you. Usually, just to make sure that you do not forget
21 anything, it is advisable to have the written instructions in
22 front of you as an investigator and read them out to the
23 witness. Another possibility is that you just present the
24 written instructions to the witness and ask the witness to read
25 the instruction him or herself. It is a little bit unnatural
26 situation. Usually, what you have is a written instruction in
27 front of you and you read it out to the witness.
28 Q. Would it be advisable to have an experienced investigator to do
1 this, even though working with written instructions, or is it
2 fair to say that if the instructions are correct and followed
3 correctly does it matter whether he is experienced or not?
4 A. No, it would be advisable to have an experienced investigator
5 because there are many pitfalls in this, apparently, so simple
6 procedure, and you might make a number of mistakes even when you
7 are totally unaware of what you are doing. So, the advantage of
8 an experienced person is that he or she is aware of all that and
9 would not make, say, just by accident such mistakes.
10 Q. Would it be necessary to give each photo shown to the witness
11 the same time of presentation to avoid suggestion?
12 A. Well, yes, and especially when or in the situation that the
13 investigator knows which of the pictures represents the accused,
14 because then, say, just even completely when the investigator is
15 completely unaware of it, it is possible to treat that picture
16 in a different way, present it longer or shorter or keep it
17 under breath, or do anything that indicates that this picture is
19 Q. Would that be suggestive?
20 A. That could be highly suggestive, yes. There is a quite a bit of
21 research of, say, how small the clues need to be for a witness
22 to pick them up and the result is very small.
23 Q. Would it be necessary to ask a witness to sign only at the back
24 of one photo of the spread using fresh photos that have not been
25 signed before?
26 A. Yes, you need fresh photos, new photos for every witness, if you
27 use the signing procedure, because if you turn the photo and
28 this is the tenth witness and the witness perceives that there
1 are nine signatures already on the back of the picture, then the
2 witness becomes extremely confident that he or she got it right
3 and will testify about recognition with greater confidence than
4 the confidence that was felt during the recognition itself. So
5 you gave that witness extra information that the witness cannot
6 avoid to utilize; whereas, in fact, that information should not
7 be available to the witness. The witness should not know
8 whether the others also recognised him.
9 Q. The third threat you have mentioned in your letter of 10th
10 October 1996 is capitalization of chance, is that right?
11 A. Yes.
12 Q. What does that mean?
13 A. The set up of a photospread is such that it is, in principle,
14 highly unlikely that a witness who is just guessing would guess
15 right. Now, in some situations, say, that likelihood is
16 increased and may be increased to an unwanted high level.
17 Q. Did you notice any deviation in the image of the persons whose
18 photographs have been used for the photospread, such as dark
19 complexion or unshaven image?
20 A. Yes, they are not exactly equal in a number of respects. I must
21 say that it is very difficult to avoid also, but they do not all
22 have the same complexion. One, as I described already in my
23 letter to Mr. Tieger, is photographed against a slightly darker
24 background which maybe the explanation why so many of my naive
25 subjects identified that picture as representing a criminal. It
26 sort of illustrates that if one sticks out for whatever reason,
27 no matter how irrelevant that reason is, the darker background,
28 subjects or witnesses may pick on that. It might be completely
1 intuitive. There might be a reasoning behind it, like one is
2 different, one is against a different background so the others
3 came from the same, say, police file and the other was taken
4 elsewhere or so ......
5 So, almost any clue that you give might be picked up.
6 If it happens to detract from the accused, you cannot say that
7 is unfair, but if it happens to point towards the accused, then
8 it would be unfair. Indeed, there are slight differences with
9 respect to how well they are shaven, how dark they are, they do
10 not all have the same colour of hair. But I would say that
11 there are enough, say, reasonable alternatives that look closely
12 enough to the accused for me to not argue that the whole set up
13 is clearly invalid.
14 Q. You mentioned police file. Would it be relevant if a
15 photospread contained photographs of persons whose photographs
16 have been taken because of previous police contacts?
17 A. Well, in principle, there is nothing against taking photographs
18 from a police file, but you should meet a number of conditions
19 that I have mentioned before. One of them is that it should be
20 absolutely certain that those persons have not been seen by the
21 witnesses before, that they must not be from the same village or
22 family members of the witnesses, and especially also they must
23 not have been seen in war conditions in the former Yugoslavia.
24 Now, these people, as far as I am aware, were
25 photographed because they came into contact with the Dutch
26 police. That is all that we know about them. We do not know
27 where they came from, what their names are, whether they are
28 family of the witnesses or whether after they were photographed
1 in the Netherlands they returned to the former Yugoslavia and
2 took part in war actions. There is nothing that we know about
3 them, and it must be absolutely sure that that did not happen.
4 Q. Did you find in your letter you wrote about it the photospread
5 test with witness Draguna Jaskic was repeated?
6 A. Yes, I read those pages in the Court records. I found it very
7 difficult to interpret what those actually said with respect to
8 the procedure. What is suggested there is that she looked at
9 the pictures, did not say she recognised anyone, and later on
10 I get the impression that it was at a second meeting with the
11 investigator, but I am not absolutely certain, she did mention
12 to the investigator that, in fact, she had recognised anyone.
13 I cannot infer from what is said, neither by her,
14 neither by the investigator, what the actual procedure was,
15 whether there were two meetings, whether there were two tests,
16 one test at each meeting, what the reason for the second meeting
17 was. I find that very unclear so I cannot really make a
18 judgment of whether, say, an unwanted procedure has been used.
19 But what I have written in my letter is her first reaction to
20 the spread is clearly established. She said she did not
21 recognise anyone and, according to proper rules, that would be
22 the end of her testimony with respect to identification. You do
23 not give people second chances, because you do not know what
24 those mean, especially not, say, if there is a long delay
25 between the two and the witness may have talked to I do not know
26 how many people.
27 Q. You have read the statement of the investigator who did these
28 tests. Do you remember how he did it?
1 A. Well, I do not have a copy of what he actually said in front of
2 me, but from what he said I did not get a clear picture of the
3 procedure that was used. Would it help if I mentioned a number
4 of things that I would like to have known?
5 Q. Yes, please do.
6 A. For instance, what I would like to have known is whether, say,
7 the interview started with the photospread and then a discussion
8 about experiences witnesses had eventually including, say, the
9 person of Mr. Tadic, or whether there was first a discussion
10 including Mr. Tadic and then the photospread. What you would
11 like to know is if the photos were presented sequentially and
12 I believe they were because they were in a booklet, not glued on
13 one page as I have them but in a booklet with different pages,
14 so you flick from one page to the other, what the exact
15 procedure is.
16 Let me give you an example: we have met a number of
17 times. I assume that you are more or less familiar with my
18 face. If there is a booklet with 13 pages in it and on one of
19 the pages you find me, say, page 5, coming to page 5 you would
20 say, "That's him". You did not -- you would probably not wait
21 till page 15 and say, "Well, maybe there is a better
22 Mr. Wagenaar at page 15". You would recognise me and say, "Hey,
23 that is him", and there would be no need to go on beyond that
25 If you would not completely recognise me and think,
26 "Well, he looks a bit like him, but maybe there is a one -- in
27 the following pages there is someone who looks a bit more like
28 him even", then you are making a different type of judgment.
1 You are not judging whether you recognise a person; you are
2 judging who looks most like a certain person without making the
3 assessment of whether it is him or not.
4 Q. Is that the reason why a protocol would be required of the test?
5 A. So what you would want is, in the least, a protocol: When did
6 the witness say, "I recognise that person", at the end or as
7 soon as he or she saw the page? And what happened afterwards?
8 Was it allowed, for instance, to go back? Was it allowed to go
9 all the way to page 15 and then say, "Well, I think No. 3 looked
10 most like him", or was the rule as soon as you have passed page
11 3 you cannot name No. 3 any more because you should have done it
12 when looking at it.
13 Q. You should have been told that before the test is run?
14 A. Well, that would be a reasonable rule. I would, at least, want
15 to know what was the rule and then we can form a judgment about
16 is that a reasonable rule or not. Another rule applies too
17 (which may be did not happen, but one cannot be completely sure)
18 is what if the person says, if the witness says, looking at page
19 2, "Ah, that person I recognise". Remember the question was
20 only, "Is there anyone you recognise?", not "Do you recognise
21 Mr. Tadic?" as far as I am aware of.
22 So what would happen if a witness said: "Well
23 I recognise No. 2", would the investigator go on presenting the
24 other pictures, because that means that, in fact, you get a
25 number of shots. The more shots you get, the more likely it is
26 that you recognise someone. Or would the investigator stop
27 immediately after, say, a first identification has been made and
28 say, "Stop, that is it. I will not show you the other
1 pictures"? Remember, the more recognitions you make, say, the
2 more shots you have had, and the larger likelihood that one of
3 the shots is a hit. Now, the investigator knowing, say, who the
4 accused is, might simply say, discount, say, the false
5 identifications and accept the correct ones. So you need a
6 clear rule for that. I assume that nothing might have gone
7 wrong. I can only state I cannot see in the various statements
8 that have been made what the exact rules in the procedure were.
9 Q. Would it be relevant for the witness doing the test to know that
10 the investigator is coming from the International Tribunal in
11 the case against Dusko Tadic?
12 A. Yes, well, at least if the witness knows that the investigator
13 came to investigate the case of Tadic, then of course the
14 suggestion that the photospread is shown in order to identify
15 Mr. Tadic might be present, this will be stronger after you have
16 discussed Mr. Tadic for a certain period of time. In fact, it
17 would not even be so bad.
18 The best case would be if, say, the question was
19 clearly, "We have talked about a Mr. Tadic, now I am going to
20 show you a picture. I will ask you, say, whether Mr. Tadic is
21 among these pictures". Then the situation is perfectly clear to
22 the subject. There is no uncertainty about what the objective
23 is. Now if you only ask, "Is there someone you recognise?" the
24 problem is that the witness may point at various people and you
25 cannot even say that the witness is wrong because it is quite
26 possible that the witness recognises No. 2 or No. 8 because they
27 are from the same village.
28 So, you would, logically, have to allow a number of
1 responses, positive responses, to the witness, because it can
2 happen that those are correct responses, but it is exactly what
3 you do not want because three or four response means three
5 Q. Thank you. Returning to the test with Draguna Jaskic and the
6 investigator who run that test twice, would you describe the
7 involvement of that investigator as being a professional
8 performance of the test, a proper performance of the test?
9 MR. TIEGER: Objection. Again, that may be more a matter of the way
10 the question is phrased or framed, but I think the question
11 should be -----
12 THE PRESIDING JUDGE: You said a "proper involvement". Why do you
13 not ask the witness whether it meets professionally accepted
14 standards in his field as opposed to our field.
15 MR. WLADIMIROFF: Yes, I will, your Honour. I will withdraw the
16 question. [To the witness]: How would you describe the quality
17 of the test run by that investigator?
18 A. It is very hard for me to make an assessment because I have no
19 clear impression of what happened. What disturbs me a little
20 bit is that there is no clear description of what happened.
21 I would say the least you can expect of a professional
22 investigator is a very clear description that leaves no question
23 marks with respect to important matters of procedure. I can
24 really cannot make a proper assessment of what happened or, say,
25 whether important rules were violated or not.
26 Q. Thank you. Professor, from your CV it appears that you wrote a
27 lot about the procedural aspects of these kinds of tests, did
28 you not?
1 A. Yes, I did. I do not know what you call "a lot", but
2 I published about it, yes.
3 MR. WLADIMIROFF: Your Honour, I want to show this document to the
4 witness for identification. That will be D6 -- I have lost
5 which number it will be, your Honour -- 94, I think.
6 THE PRESIDING JUDGE: It should be 95. The picture of Mr. Tadic will
7 be 94. It has been marked.
8 MR. TIEGER: Your Honour, I should take this opportunity to note the
9 redaction points, that would be 14.55.30 to 14.57.20, the video
11 THE PRESIDING JUDGE: I think it has been done.
12 MISS FEATHERSTONE: Yes.
13 MR. TIEGER: OK.
14 THE PRESIDING JUDGE: If we are talking about the correct times.
15 MR. WLADIMIROFF: Professor, is this a photocopy of chapter 3 of your
16 book identifying even a case study in legal psychology published
17 in 1988?
18 A. So it seems, yes.
19 MR. WLADIMIROFF: Your Honour, I tender this document as D95.
20 THE PRESIDING JUDGE: Is there any objection to Defence 95?
21 MR. TIEGER: No, your Honour.
22 THE PRESIDING JUDGE: Defence 95 will be admitted. Are you going to
23 offer 94?
24 MR. WLADIMIROFF: If I did not I offer it, your Honour.
25 THE PRESIDING JUDGE: Any objection to Defence 94, the photo of
26 Mr. Tadic that was taken from Dr. Wagenaar's records?
27 MR. TIEGER: No.
28 THE PRESIDING JUDGE: That will be admitted.
1 MR. WLADIMIROFF: Professor, if I may discuss with you some of the
2 rules of that chapter? If we look to the first rule, and
3 perhaps I should give the Court copies. What I intend to do,
4 Professor, is to go through the rules, those rules which might
5 be relevant for this case, and just to wrap up all the issues we
6 have discussed so far. Rule 1: Can an involvement in a crime
7 be proved by means of a lineup or a show up when the suspect is
8 known to the witness for other reasons than involvement in the
10 A. I think we have discussed this before. Such a test would not
11 logically place the witness at the scene of the crime.
12 Q. Thank you. Should identification of a suspect not known to the
13 witness for other reasons than encounter during the crime be
14 achieved by means of a lineup and not a show up?
15 A. Yes, by a "show up" in this rule I mean a one person test, and a
16 one person test is not a difficult test to pass and it does not
17 show that you really recognise this person; you only have to
18 say "yes".
19 Q. Did you find any one person test in this case?
20 A. Well, not with the four witnesses that I would think are really
21 relevant as identification subjects. They were all multi-person
23 Q. Did you find any two photo tests?
24 A. Not with those four. Two photo tests were used for some of the
25 other 48 ones, but as long as, say, the purpose of those tests
26 is only to verify, say, that there is no mistake about the
27 person and not the objective to logically place the accused at
28 the scene of the crime, I have no objection against those two
1 person tests.
2 Q. Is the selection of a suspect through mug file inspection
3 acceptable as proof of identify?
4 A. "Mug file inspections" usually mean a collection of pictures
5 that are shown to a victim of a crime in order to find a
6 suspect, not to recognise a suspect, but to first find during
7 the investigation, say, the identity of a possible suspect.
8 Those mug files are not selected on the basis of, say, the
9 description or a detailed description and, therefore, cannot
10 pass as a fair lineup or identity parade. Therefore, mug file
11 inspections can be used for investigations, not as proof of
12 identity. They are two different things.
13 Q. Have you found any mug file inspection in this case?
14 A. No, no. There is one problem, though, that, as I mentioned
15 before, in a real identity parade, either, say, live or
16 photographic, you would completely know who the foils are and
17 that they are innocent, and we do not that right now. So there
18 is a slight problem that, say, the nature of the spread that was
19 used cannot be defined exactly, but I would not qualify it as
20 just a simple mug file inspection because clearly it is not. It
21 is better than that.
22 Q. Thank you. I jump to rule 7 now. Should the witness be asked
23 to identify the same suspect more than once?
24 A. No, because if you show, say, the same suspect twice, that is
26 Q. If I may jump to Rule 10 then, when there are more witnesses
27 available, should a falsification of an initial identification
28 be attempted?
1 A. Yes, in principle, when you have many witnesses, it is a good
2 procedure to ask them all to identify the accused person. The
3 reason is that is related to what we discussed before. You
4 should, of course, never hide negative outcomes of
5 identification tests, but you should also make -- give yourself
6 the opportunity to get negative results.
7 For instance -- but I must apologise because
8 scientists always make these hypothetical cases and create
9 problems thereby -- imagine that there are 10 witnesses and they
10 just guess. One of them guesses correct. That might be the
11 first one. If you now stop, you do not ask the other ones, you
12 will never know that it was a guess. You have to ask them, all
13 10, and then you will find out that the others do not recognise
15 So in order -- we would say you must -- you make
16 yourself vulnerable after initial successes and be sure that it
17 was not just a guess. That is why you should ask all witnesses
18 to identify if they have seen the accused or if they have seen,
19 no, the perpetrator. Right? If they have not seen anything
20 that is relevant, they cannot make an identification. But if,
21 in principle, they would be good identification witnesses, you
22 should also use them.
23 Q. Thank you. If I may proceed to rule 11 then: Should all
24 identification attempts, whether successful or not, be reported?
25 A. Yes. I think we have discussed that and the reason why is quite
27 Q. Right. Would this include also witnesses who have not been
28 called to testify in Court but who were interviewed during
1 discovery, that is, pretrial stage but not called in Court?
2 A. Yes, in principle, I think every test that has been applied
3 during the investigation process ought to be reported and made
4 known to the Court, because if you do not do that, and of course
5 I do not want to suspect anybody of bad intentions, but it would
6 be possible, in principle, to hide the negative ones and propose
7 the positives ones.
8 Q. If I proceed to rule 12 then: Should reports about
9 identification attempts with negative results provide all
10 available information that could help to understand the value?
11 A. Yes, very clearly, and a negative result may be completely
12 uninteresting if we know that, in fact, the witness was an
13 onlooker from 300 metres distance. Of course, that would be
14 very difficult to identify. It does not mean the accused is not
15 the wanted person. If the witness, on the contrary, was at a
16 distance of one and a half metres and has watched on for several
17 hours and he would be unable to identify the accused, that is
18 highly informative because that suggests that possibly the
19 accused is the wrong person. So you would want -- even the
20 negative outcomes can highly informative, and can only be
21 interpreted if you know, say, the conditions in which they
23 Q. Did the procedure that was applied to the witness we just
24 discussed, that lady witness we just discussed, meet this rule?
25 A. It is very difficult for me to say that because, as you realise,
26 I only received a limited number of pages relating to her
27 testimony. So I am not completely sure about how much about
28 that case is known to the Court.
1 Q. The Court has seen the same pages and heard the same evidence.
2 A. Yes, but I have not seen her complete testimony, I think, so I
3 do not want to express opinions or judgments about things that
4 maybe are different when I would have looked at the complete
5 transcript of her testimony here in Court.
6 Q. I appreciate that.
7 A. At least I can say that from the pages I have read what has
8 happened is not clear to me, and I would have liked a clear
9 description of what she has seen initially, whether she would be
10 able to identify him easily and what has happened during, say,
11 the test and the second encounter that, apparently, has
13 Q. If I now may proceed to rule 13: Will the probative value of an
14 initial identification be increased through identification by
15 other eyewitnesses, the number of the identifications?
16 A. Yes. The general idea of that rule is that, say, there is no
17 linear relationship between the number of witnesses who identify
18 and the amount of, say, trust that the Court should have.
19 Q. What does that mean?
20 A. Let me give you an example: if an accused has a twin brother
21 who looks exactly like him, then it is quite possible that the
22 first witness will be mistaken there and also quite likely that
23 all the others will be mistaken in the same way. So you cannot
24 then say, "Ah, but because now we have 20 witnesses it cannot be
25 the twin brother".
26 So, the sheer number of witnesses is not, say, the
27 most relevant piece of information. For that reason, I would
28 say, if I may refer to the present case, four witnesses,
1 although compared to the 50, the 48 others may look a small
2 number, in view of this rule, it would not be so extremely
3 useful to find more than four who identify. If the procedure is
4 correct and you can trust those identifications, I would say
5 that is quite enough. Do not go for also another 48 or so.
6 Q. Thank you. If I proceed to rule 14: Should investigators do
7 everything within their power to prevent contacts among
9 A. Yes, yes, and on purpose this is formulated in this way to do
10 everything within your power because it is not -- usually not
11 within our power to prevent all contacts among witnesses. If
12 they are father and son or wife and husband, then that simply
13 cannot be avoided, especially not when the time between the
14 crime and the appearance in Court is very long. Then, of
15 course, it may happen that witnesses exchange information about
16 the identity of possible perpetrators. But I think
17 investigators should not aggravate that problem by adding, say,
18 their own contacts when it can be avoided. There are a number
19 of examples in cases where the investigation itself is the
20 reason why witnesses came into contact with one another and
21 that, I think, should be avoided.
22 Q. Would it be relevant then that more than one member of the same
23 family is asked to participate in the photospread test?
24 A. Well, indeed, if it were possible to find witnesses who have not
25 been in contact with one another, that would be much better than
26 to get all witnesses from the same family. So if you want to
27 choose four, it would be better to choose four totally
28 independent ones than family members. If it is established that
1 they are family members and have been in contact, say, during a
2 long period and have discussed the case and identity of
3 perpetrators and so on, then of course it is quite possible,
4 generally speaking, that information about, say, the appearance
5 of a perpetrator is transferred from one person to the other.
6 Things about, well, the name itself might be highly suggestive
7 because if one did not recognise someone but the other did and
8 the first witness says, "Well, did you not recognise so and so?"
9 that may stick, of course, and the image then may be formed and
10 then the later recognition might follow.
11 The beauty, of course, of, say, the multiple person
12 identity parade is that if the parade is organised well, it
13 would be very difficult to transfer information that would help
14 you to get at the correct choice. It will especially help you
15 if the parade is not well organised. So that, for instance, if
16 you say, "Well, he had dark hair", and there is only one with
17 dark hair in the spread, then such information might help. In a
18 good spread they would all have dark hair and it would not have
19 helped. So that is something that maybe is important to
21 Some violations are not so bad in an isolated
22 situation. They may become terribly bad in combination with one
23 another. So this one, contacts among witnesses, and a not so
24 well chosen set of pictures in combination may make it suddenly
25 extremely easy for witnesses who do not remember the appearance
26 of the perpetrator to get at the right picture.
27 Q. Thank you. If I may proceed to rule 15: Should investigators
28 ask witnesses before the identification attempt whether or not
1 they discussed the case with other people and should they not
2 record such questions and answers?
3 A. I think in connection with the previous rule it is clear why, at
4 least, you would want to know about it. Then you can later make
5 decisions, say, how much weight you want to attach to certain
6 witnesses on the basis of that information.
7 Q. Rule 16: Should witnesses be excluded from an identification
8 test if it is established that they could base their
9 identification partly or wholly on information transmitted by
10 other people?
11 A. Yes, I think if you have a situation where you know that it is
12 possible that the witness received information that might with
13 some degree of certainty enable this witness to identify this
14 one picture, I think in that case you should exclude the
15 identification of such a witness because it might be misleading.
16 Q. Rule 17: Should witnesses before participation in an
17 identification test be requested to provide a verbal description
18 of the criminal as they remember him and should that description
19 be included in the reports of the subsequent identity test?
20 A. Yes, the idea of an identity test is that the witness has
21 somewhere in memory a more or less circumscribed representation
22 of the perpetrator, some image that can be used for a later
23 recognition. One can ask the witness to describe that image.
24 It might be more or less vague, but the witness must be able to
25 describe what it is. Is that an image of a man or of a woman?
26 Is it a dark person or a fair person? Is it a tall or a small
27 person? All sorts of questions that the witness, in principle,
28 must be able to answer.
1 Let me give you an example: if the witness cannot say
2 whether it was a man or a woman, then I would say then a very
3 precise identity parade would not help very much, and it would
4 not be indicated to apply then a further test if the rough image
5 is not present. It is possible that the person has a -- the
6 witness has a rather clear image, but that image differs
7 completely from the appearance of the accused. For instance, if
8 the witness says, "Well, it was a man fitting that description"
9 but the accused is a woman, I would be very hesitant to go on
10 with further identity tests because there is a conflict there.
11 Probably the witness remembers someone, refers to someone else
12 and then it is suggestive to go on with a person who does not
13 even fit this rough description.
14 If I may give you another example, the situation
15 I have been in? The suspect is a very tall black person, but
16 the accused is a rather small fair haired person. So, in order
17 to make a fair test you have a number of fair people -- they all
18 fit the same description as the accused -- and now you have to
19 ask the witness: "Who of these small fair people is the tall
20 black person you remember?" That would be a, sort of, very
21 difficult situation to handle for the witness and should,
22 therefore, be avoided.
23 Q. Thank you. You have answered in the meantime rule 18, I think.
24 THE PRESIDING JUDGE: May I ask you a question? Is it not possible,
25 though, for the memory to be blocked by the occurrence, so that
26 being shown a picture as opposed to being asked to describe,
27 when it has been blocked because of the very violence, perhaps,
28 if it was a violent occurrence, that it would be better to be
1 shown a picture rather than to be asked, and to be asked to give
2 the description when it has been blocked and not be allowed to
3 go forward with a picture would defeat the purpose, would it
5 A. Sure, sure, your Honour. That would be perfectly possible. The
6 question is whether such a witness would be a good
7 identification witness, and the situation I have described to
8 you, sort of, illustrates the problem. If you cannot use the
9 initial description of the witness to, sort of, select what the
10 lineup should look like, you may confront the witness with a
11 lineup that simply poses logical problems to this subject.
12 Indeed, you are right; there might be a subject who suddenly
13 realises, "Ah, ha, I was totally wrong and now I see who did it
14 and I recognise this person". But there might be other subjects
15 who are totally confused and start to guess or show other types
16 of behaviour that is misleading. So, generally, you would want
17 to avoid that situation.
18 So, although, and I agree, in the later rules you will
19 also see that sometimes it is necessary to violate these rules,
20 sometimes the conditions simply do not allow you to stick to all
21 the rules and still you want to solve a case and provide the
22 evidence. Of course, when there is a good reason for it and you
23 can justify why you violated the rules, at least a Court can
24 consider that. So it is not by necessity and automatically that
25 the violation of the rule should lead to a rejection of the
26 evidence. But I think, as long as there is no reason not to
27 follow the rules, it is wise to stick to them.
28 MR. WLADIMIROFF: If I proceed to rule 19, Professor: Should the
1 witness be instructed to identify only one person, that is the
2 person he described, prior to the test?
3 A. Yes, in principle, the situation is if there are a number of
4 people in front of you, if you recognise, say, the person you
5 are asked to identify, there can be only one of them, and you
6 cannot fire twice because that simply doubles the likelihood
7 that you will have a hit. So you should indicate either none or
9 Q. That should be told to the ----
10 A. And that should be told to the witness because it happens
11 sometimes that witnesses are so quick that before you know it
12 they have named two persons, and then what should you do?
13 Q. I take it, according to rule 20, that those instructions should
14 be recorded?
15 A. Yes, in order to be certain that the proper instructions were
16 given, it would be very nice to simply have them in the record.
17 Q. Dealing with these reports, does rule 20 have anything to do
18 with the matter of certainty, for example, if different
19 investigators run tests?
20 A. Yes, well, there is always the problem if you are afterwards
21 asking an investigator whether there is one or many, how did you
22 do it, you rely on their memory. I would say it is bad enough
23 that you have to rely on the memory of witnesses, but that
24 cannot be avoided. You should not complicate that by also
25 having to rely on the memory of investigators which can be
27 Now, the problem is, of course, if you have many
28 investigators, if they have not agreed about a certain
1 procedure, then the likelihood increases that they will have you
2 different procedures, in fact, but the question is whether you
3 will ever find out if they have not made a record of that.
4 Q. It is a problem, is it not?
5 A. It should not be a problem.
6 Q. If I may proceed to rule 21? Should the instruction to the
7 witness stress that the wanted person is possibly not in the
8 parade or in the photospread and that, therefore, a positive
9 response should be made only when the witness is certain of
10 recognising that person?
11 A. Yes, it is highly important that you tell the witness not to
12 make an identification if the witness is not certain, because it
13 is quite possible that there is no one here she can recognise.
14 The research on, say, the presence or absence in instruction of
15 that piece, in fact, is reported in the chapter that precedes
16 this chapter, and that shows that it has, I would call it, a
17 very large effect on the false positives on the identification
18 of foils.
19 JUDGE STEPHEN: Could I just request the question? I see the word
20 "mug shot" is used here again. What is your definition of a
21 "mug shot" as distinct from a simple photograph?
22 A. Usually, mug shots or a mug shot collection is used as simply a
23 number of photos from the police files, often with numbers on
24 them but not necessarily, and there can be a large number.
25 I say the largest number that I have seen being used was over
26 500. These mug shots are usually selected on the basis of a
27 very, very superficial description of a perpetrator, and are
28 selected in order to find the identity of a suspect. So, you do
1 not have a suspect yet, there is no one you suspect but you try
2 to find the identity of a suspect; whereas a photospread is
3 constructed after you have a suspect because the suspect is one
4 of them and the others (and usually not 500 but five to 10, say,
5 would be quite enough) are selected especially in such a way
6 that they resemble this one suspect.
7 Q. So that a mug shot is not a characteristic of a particular
8 photograph, but rather of the time and ----
9 A. Right.
10 Q. --- make up of the collection?
11 A. It is possible that, say, one picture appears in a mug shot and
12 another time it appears in a proper photospread, but then it has
13 been selected for that particular purpose.
14 JUDGE STEPHEN: Thank you.
15 MR. WLADIMIROFF: Looking to rule 22, Professor, I think you have
16 answered or you have responded to that rule, that is, should
17 police officers in charge of identification procedures have
18 received the appropriate training and should they be able to
19 demonstrate their professional qualifications both in written
20 and oral testimony?
21 A. Yes, and the reason is that the procedures are, in fact, so much
22 more difficult than you would think it is that you need training
23 to do it, to do it right.
24 Q. If I may proceed to rule 28? Should all foils of an identity
25 test fit the prior description obtained from witnesses?
26 A. Yes, if it does not, if they do not, then those foils might be
27 easily discarded by the witness which makes the probability of
28 just guessing who the accused is higher.
1 Q. If I may proceed to Rule 29? Can prior descriptions of the
2 criminal that do not fit the suspect's appearance be used on the
3 selection of foils? I think you answered to that rule too, did
4 you not?
5 A. Yes, but I think that must be qualified because the question is,
6 of course, what discrepancies are acceptable and what are not.
7 What is really meant by rule 29 is that gross discrepancies,
8 say, calling a man a woman or calling a white person a Japanese
9 person or calling a very tall person a small person. That would
10 qualify for some sort of dismissal of the situation.
11 What does not qualify, for instance, is the absence or
12 presence of a moustache, a beard, or things like that because
13 they are considered to be minor things. Also, matters of
14 length, age, weight, should be accepted with very wide margins
15 because these things are not easily to perceive.
16 Q. As a matter of fact, you did address that matter in your letter
17 of 10th October, Exhibit 91, that is, your letter to the
18 Defence. You also gave an opinion on the problem of facial
19 hair. Could you tell the Court what is the relevance of that
20 problem or is this a relevancy at all?
21 A. Well, I took the freedom to comment on that because I saw it
22 discussed so many times in the records and I thought, since
23 apparently it is a problem to others, I should say something
24 about it. The situation appears to be, as I understood it, that
25 sometimes Mr. Tadic had facial hair growth and sometimes he had
26 not. He was completely clean shaven or had a full beard and
27 sometimes also he was badly shaven.
28 Now, I would say to those who have known him for a
1 long time that would be no obstacle at all to recognise him in
2 any condition because they have seen him in all conditions. You
3 might in a way say they have in their memory they have pictures
4 of him in all various conditions and, no matter what he looks
5 like now, they would always be able to recognise him.
6 For those who did not know him, the question is a
7 little bit more complicated, because if they have seen a person
8 committing a crime who was, say, clean shaven, just to give an
9 example, now they see an accused who has a full beard, you
10 would, in principle, be asking them to see through the beard
11 and, sort of, guess what this person would look like, say,
12 without the beard. Sometimes it was suggested that for that
13 reason accused people shave off their beards or let their beards
15 But I would say the beauty of a well organised
16 identity test is that it solves that problem. If, say, the
17 picture shown to them has the wrong facial hair growth and they
18 can still recognise him, they recognise him, and it cannot be
19 guessing because the set up is so that guessing would not help
20 them. If they cannot recognise them, they do not recognise
21 them, period, then you have to ask, why do they not recognise
22 them? One of the explanations could be it is the hair growth.
23 But if they recognise them, then obviously the hair growth did
24 not pose a problem.
25 So, logically, I would say for the large group of
26 witnesses who knew him hair growth can hardly be of any
27 relevance, and for those who did not know him, these four, well,
28 we had to test to see whether it posed a problem and, as much as
1 we can trust the test, the result is it did not pose a problem.
2 That is the beauty of such a test.
3 Q. If well performed?
4 A. If well performed, of course, yes.
5 Q. Talking about recognition and facial hair, what would be an
6 appropriate distance for a live recognition in daytime?
7 A. Yes, I have published on that, I am not sure -- no, that is not
8 in the list of literature I offered to you at the end of the
9 letter of 10th October. I have a rather extensive publication
10 on problems of distance and lighting conditions with respect to
11 the recognition of faces, where it says that in daylight at a
12 distance of more than 15 metres problems start. If there is a
13 possibility that, say, two people look, are a bit similar, then
14 from a distance of 15 metres the general, average observers
15 start to make mistakes. I am not saying that at 15 metres you
16 cannot recognise a person, but that is about where problems
17 start, 15 metres. Less than 15 metres, I would say there is no
18 problem. You would see whether that is the one individual that
19 you know or not. Beyond 15 metres, that is the shortest
20 distance at which problems start, and then, of course, the
21 problems increase the longer the distance.
22 Q. Within 15 metres would facial hair be a problem?
23 A. No, not -- it depends again. We have to distinguish between
24 these two groups. The group who knew him already before with
25 facial hair might not have had a problem because that is the
26 face they were used to. Those who did not know him and saw him
27 for the first time there and then with the beard, initially
28 there is no problem. They do not recognise anything at that
1 time because that is their first perception of that person.
2 Only later there is a problem, there might be a problem, because
3 if the test presents someone without the facial hair, then they
4 may not recognise him, but again the test solves that problem.
5 That is the beauty of it. If the perception was not good enough
6 initially, they will not recognise him, they will fail the test,
7 and then we know it. If they recognised him in the test,
8 apparently the perception was good enough. That is what the
9 test proves.
10 Q. So if the basis is all right, that is, within 15 metres ----
11 A. 15.
12 Q. --- if the basis is all right, then the story is valid as has
13 been discussed today running a proper test?
14 A. Oh, no, maybe I have to correct you there. Even if they saw the
15 perpetrator at a longer distance, it is quite possible that they
16 saw him correctly and accurately, we can know that from the
17 later test. That is what the test is for. If they did not
18 perceive him correctly, they will fail the later test.
19 The test is to show that their original perception was
20 accurate enough, and in this situation you are now in, provided
21 there are no doubts about the quality of the test, those four
22 tests show that there were not these perception problems. But
23 you have to be certain that there is no problem in the test.
24 But if there is no problem, the beauty of the design of the test
25 is that now you can be certain the perception was accurate.
26 MR. WLADIMIROFF: I think this is an appropriate moment, your Honour.
27 THE PRESIDING JUDGE: We will stand in recess for 20 minutes.
28 (4.00 p.m.)
1 (The Court adjourned for a short time)
2 (4.20 p.m.)
3 THE PRESIDING JUDGE: Mr. Wladimiroff, you may continue.
4 MR. WLADIMIROFF: Thank you, your Honour. Professor, we were left
5 before the break with the issue of prior descriptions. If we
6 proceed to rule 30, should an identity test be interpreted with
7 the requisite prudence when there is not at least one prior
8 description that fits the suspect?
9 A. Yes, and the reason is that, ideally, you would select foils in
10 an identity test on the basis of the description that has been
11 given by witnesses. If you cannot do that, then possibly the
12 test is less appropriate.
13 Q. Thank you. If we now proceed to rule 31, we spoke about the
14 foils that had been used by the Prosecution photospread. Rule
15 31 says that members of an homogenous group such as police
16 should normally not be used as participants in an identification
17 parade. Would that also apply to foils who are not from the
18 same profession but from an ethnic background?
19 A. Well, in principle, first, the danger is that if you select
20 foils from one homogenous group, then in one way or the other
21 the accused might stick out. If you want to avoid that, you do
22 not choose the foils from one homogenous group. But you can
23 also test whether something has gone wrong by applying the Doob
24 & Kirschenbaum test. That we have done to this particular
25 material and the results do not suggest that something has gone
26 wrong there, but we do not know exactly, as I mentioned before,
27 who the foils are, but I have no particular reason here to
28 suspect that on the basis of a violation of this rule something
1 has gone terribly wrong.
2 Q. If we now proceed to rule 32: "Should foils be selected such
3 that others who have been witnesses to the crime will find no
4 clues that help -----
5 THE PRESIDING JUDGE: "Have not been".
6 MR. WLADIMIROFF: "Who have not been" -- you are perfectly right,
7 your Honour, thank you -- have not been witnesses to the crime
8 will find no clues that help him to guess who is the suspect?
9 A. Yes, well, in fact, that rule is a formulation of the Doob &
10 Kirshenbaum test. Ideally, you would apply that before you show
11 the test to any witnesses.
12 Q. If I may jump to rule 34? Should the actual material used for a
13 photo identification test be kept for later inspection and
14 should automatically be given to the Defence, and should the
15 record reflect the order in which photos were shown or the
16 arrangement of the photos as they were shown?
17 A. Yes, because in order to interpret the test or to give it the
18 proper weight, you should exactly know what has been shown in
19 which manner. The rule mentions the Defence. It is implied, of
20 course, that is also presented to the Court because finally it
21 is the Court who has to give the proper weight to the test.
22 Q. Is it your finding that this rule was obeyed in this case, as
23 far as you could read from the transcript?
24 A. Well -----
25 MR. TIEGER: Objection, your Honour, that is way beyond the scope of
26 this witness's expertise. As a matter of fact ----
27 THE PRESIDING JUDGE: Why is it beyond his expertise in terms of the
28 arrangement of the foils and what was done in this case? We
1 have in evidence the photospreads that were shown to the
3 MR. TIEGER: Right.
4 THE PRESIDING JUDGE: Did you see them?
5 MR. TIEGER: As I understand the question, this witness is being
6 asked to determine from the transcript and the materials
7 provided to him a factual matter, not provide an expert opinion.
8 THE PRESIDING JUDGE: I thought the matter that he was asked -- maybe
9 I missed the question then -- was whether rule 34 -- I guess you
10 are right then. It relates back to the previous rule.
11 MR. TIEGER: The problem may lie in the underlying question, that is,
12 requesting this witness to offer an opinion about rules of
13 procedure is a different matter from asking him what factors may
14 or not affect the reliability of an identification. Those are
15 matters both for the Court to determine factually and to be
16 applied to the rules of the Court. He is not here as a
17 consultant on how the Tribunal should proceed.
18 THE PRESIDING JUDGE: It is listed as a rule and you are challenging
19 the appropriateness of it being included as a rule when it has
20 nothing to do with whether the identification procedures are
21 proper, but instead whether they were given to opposing counsel
22 and the Court.
23 MR. TIEGER: I think, in fact, the presence of this particular rule
24 which is irrelevant to the matters for which this witness was
25 called in the body of these rules do, in fact, indicate that
26 these rules or stated rules go beyond his stated area of
27 expertise and into the province of determining procedures,
28 making recommendations, having a wish list and so on. But
1 focusing on this particular so-called rule, it is clearly not a
2 matter for this witness and not within his stated expertise.
3 I can understand how a person involved in this work might come
4 to certain opinions. He can offer them in other forms if he
5 wishes, but it is not relevant here.
6 THE PRESIDING JUDGE: Mr. Wladimiroff?
7 MR. WLADIMIROFF: I have no problem in withdrawing the question, your
9 THE PRESIDING JUDGE: Thank you, Mr. Wladimiroff.
10 MR. WLADIMIROFF: Yes. If I may proceed to rule 36? Should names
11 and addresses of participants in the parade be recorded?
12 A. Yes, and the reason for that is given in this chapter.
13 Sometimes it is necessary to repeat a line up or get a clear
14 impression of a line up, and then you should be able to get in
15 touch with those people who appeared in the parade.
16 Q. That would enable the parties in the trial to assess whether the
17 criteria were met as described in these rules?
18 A. Yes, in the present situation where we have a photographic line
19 up, it is less relevant, I think, because all the material that
20 has been shown to witnesses is available. You do not need the
21 names and addresses of, say, the witnesses in order to recreate
22 the test situation.
23 Q. If I may proceed to Rule 39? Should transformations occurring
24 in the period between the crime and the identification test be
25 counteracted as much as possible?
26 A. Yes, but the rule clearly says "as much as possible" because it
27 is not always possible. So, if you talk about, say, a long
28 delay like 10, 20 or 30 years, clearly the accused looks older
1 and that cannot be corrected any more. The advantage of a
2 photographic lineup is exactly in this, that you may obtain a
3 picture of the accused, say, taken in the time that the crime
4 took place, so that there is a -- there might be the closest
5 possible resemblance between that picture and what the witnesses
6 saw in case they saw the accused which has to be established, of
8 Q. Did you find any indication when a photo of Mr. Tadic was taken
9 that was a part of the photospread?
10 A. I have no knowledge of that, no, but if it had been possible to
11 find a picture that was taken in that time, that would be a
12 clear advantage of using the photo test in this case.
13 Q. Rule 40: Should identification tests, whenever it is possible,
14 be administered by police officers who do not know which person
15 in the lineup is the suspect?
16 A. Yes, and the reason I think we have already also discussed. The
17 reason is that it is possible totally without any conscious of
18 it to give hints or clues at the witness that, sort of, give
19 away the identity of who is the accused in the lineup.
20 Q. Could you give us an example?
21 A. Like, say, with the showing of photographs, a slightly longer
22 presentation, or the keeping of the breath, a hesitation when
23 the subject responds to a foil. There are many ways in which
24 that can happen.
25 Q. Rule 41: Should the presentation of photographs be strictly
26 limited to a preset time period, and should the witness be
27 informed about this?
28 A. Yes, one reason is that if you allow a variation in presentation
1 time, that is a way in which witnesses can be influenced; and
2 the other is that if we talk about a proper recognition, then
3 that happens within a rather short time. You do not need hours
4 to recognise someone whom you remember very well. So if you
5 make the presentation time or the response time too long, you
6 sort of invite all sorts of guessing that you would not get if
7 you restricted it to a short period.
8 Q. Rule 42: Should all relevant details of the preparation and the
9 conduct of the identification test be recorded?
10 A. Yes, because to the Court it is extremely important to give the
11 proper weight to identification tests on the basis of, say, the
12 appropriateness of the procedures that have been followed. In
13 order to do that, you have to know what procedures have been
15 Q. Rule 43: Should a witness be given feedback with respect to
16 whether they identified a suspect or a foil?
17 A. No, witnesses should not be given feedback because usually the
18 identification takes place out of Court. The witness has to
19 testify later in Court about that and may misremember the
20 confidence at the time of the recognition, because if they have
21 given the feedback that this, indeed, was the accused, they may
22 increase their confidence and exhibit this confidence in court
23 which sort of suggests that the identification was made with
24 that same confidence which is not necessarily true.
25 Q. Rule 44: Is there any diagnostic reason to give Defence counsel
26 the right to attend identification tests?
27 A. Yes, well, there are many reasons to do that. One is that for
28 the whole investigation it is much more useful for anybody to
1 detect any wrong procedures before you hold the test than
2 afterwards. After you have held the test you cannot do it again
3 and you might have lost a witness. If you find out before you
4 hold the test that is something is wrong you can correct it, and
5 so all parties -- since all parties, in principle, profit from,
6 say, an accurate test because it leads you close to the truth,
7 it would be very relevant to ask the Defence to canvass a
8 critique prior to the test, not afterwards. I must say not all
9 Defence counsel agree with me because many seem to like just to
10 give the criticism afterwards instead of, sort of, making it
11 optimal before.
12 Q. I appreciate that. If we may proceed to Rule 45? Should
13 identifications be accepted as evidence when witnesses declare
14 to see only a resemblance?
15 A. I think the question of identification test is to establish
16 identity, and identity means the sameness of the person whom you
17 saw commit a crime and the person in front of you, not the
18 resemblance but the sameness. So just establishing resemblance
19 is not good enough. That does not count as an identification.
20 Q. Does it mean that the officer who is performing the test should
21 be instructed not to accept a resemblance as a positive
23 A. Well, I would say let the officer exactly report what has been
24 said. If a witness says, "I see a resemblance", that is what
25 should be reported. Then you can leave it to the Court to
26 decide whether that should be accepted as an identification or
27 not. In my opinion, it should be not, but if it is just
28 presented to the Court as an identification without, say, the
1 full detail of it, then you have taken away the Court's ability
2 to make that decision.
3 Q. Thank you. Rule 46: Should full recognitions pronounced only
4 after a considerable time be accepted as a positive
6 A. Yes, well, as I said, a recognition is something that comes
7 immediate to you and not after weeks or many hours. So when a
8 witness cannot, say, immediately state a full recognition, then
9 you should count it as a non-recognition.
10 Q. 47: Should other expressions or uncertainties on the part of
11 the witness be recorded?
12 A. Yes, and there are all sorts of expressions of uncertainty that
13 may happen in practice, like I think it is No. 3 but it might
14 also be No. 7, if you record it as a full recognition of No. 3,
15 well, that statement would not reflect the actual, say, quality
16 of the recognition. There are many expressions of uncertainty
17 that witnesses express and, yes, they should be recorded.
18 Q. Again to allow the Court to make a full assessment of what is
19 the quality of the test, is that right?
20 A. Yes.
21 Q. If I may proceed to Rule 48? Why is it that dock identifications
22 never can be accepted as proof of identity?
23 A. It is extremely easy for any person, whether he or she has any
24 knowledge of any remembrance of the perpetrator, to point at
25 someone who is in the dock in the courtroom. It is hard to
26 imagine that someone would fail to realise who the accused is in
27 the courtroom. So the probative value of that cannot be very
28 high because it is not a difficult test to pass.
1 The general rule is the more difficult the test, if
2 you pass it, it means more. This is an extremely easy test so
3 it can hardly mean anything at all. If there is a question
4 whether the witness has any remembrance of what the perpetrator
5 looks like, if that is really a question, then you should test
6 it in a proper test, not in a test that anyone can pass.
7 Q. If I may proceed to rule 49? Should a breach of rules, as we
8 have been discussing so far, when not justified in a written
9 report, lead to a rejection of an identification in terms of
10 quality of your field of expertise?
11 A. There I might be invading, say, what is called the domain of the
12 Court, I think, because it is not for me to reject any tests.
13 So I know that rule is maybe not appropriate for an expert to
14 express, but of course it contains a clear warning that there
15 are cases in which rules were being breached to such an extent
16 that really the logical impact of the recognition is totally
17 absent. In that case at least I think it should be made known
18 to the Court that there is a real problem. I do not want to
19 express here that I would prescribe, want to prescribe, to the
20 Court what to decide in such a case.
21 Q. That might apply to rule 52 ----
22 A. Yes.
23 Q. --- I believe?
24 A. Well, of course, the rule is not based upon nothing. Of course,
25 the rule is based upon what is written above. At that time it
26 was just a comment in the Devlin Report that was published in
27 the United Kingdom. In the meantime, that has been adopted in
28 the code there and is a rule. So I am not just making up my own
1 rules. I know that in some countries that is a rule, and I do
2 not think it is a bad rule, but it is not for me now to form,
3 create, any opinion on that for this Court. This Court has its
4 own rules.
5 Q. Thank you.
6 THE PRESIDING JUDGE: May I just ask one question? Is that what you
7 meant, Dr. Wagenaar, when you very early in your testimony said
8 that if it can be shown that there are gross violations of
9 procedures for the four people who we are talking about now,
10 then the test would not be valid? 50 does speak in terms of
11 whether it should be accepted, but certainly (and maybe that is
12 our province) you can testify as to whether an identification
13 procedure is proper, is that not so, or valid?
14 A. Sure.
15 Q. As I recall your testimony, you said if there are really gross
16 violations of procedures for the four, then it would not be
18 A. Yes.
19 Q. Is that not what 50 is talking about?
20 A. Yes.
21 Q. OK. Did you find any gross violations of the procedure used for
22 the four people here?
23 A. No, I lack a lot of information. There are a number of aspects
24 on which I have simply no opinion because I do not have the
25 information. I can only notify to you that, say, the
26 information could not be found in the record, but there is
27 hardly any positive information in the record that indicates
28 that rules have been breached. I think you can also find that
1 in my letter dated 10th October that my problem is mainly absent
2 -- lack of information than the positive indication that rules
3 have been breached.
4 Q. Everything that you have been talking about with respect to
5 these rules here, these 50 rules, they relate to the four people
6 who did not know Mr. Tadic but the photographic test was used
7 for identification purposes?
8 A. Yes.
9 Q. Not recognition, identification purposes?
10 A. Yes, right. So if those four witnesses would not have appeared
11 in the record, I think we could have just prevented this whole
12 discussion about identification problems because it particularly
13 focuses on those four.
14 THE PRESIDING JUDGE: OK. Very good. Excuse me, Mr. Wladimiroff.
15 MR. WLADIMIROFF: Thank you, your Honour. (To the witness): You did
16 not find any breach or violation of these rules because there
17 was no information there, right?
18 A. Well, there are some slight problems that I notified. They are
19 not immediately, say, identifiable as gross breaches of
20 procedure. But, for instance, the thing that I have mentioned,
21 the instruction to the witnesses is not perfectly clear to me
22 because it was not given in detail. What I read in the record
23 gives a very short instruction to the witnesses, saying
24 something to the extent of, "Is there anyone in this spread that
25 you recognise?" If that is all, if the other things that ought
26 to be present in the instructions, in fact, were absent, then
27 I would say that is problematic, but I have no full knowledge of
28 the instructions so I can only point the Court to say that lack
1 of information that there is.
2 Q. Did you find that the rules were obeyed or is there no
3 information about that too?
4 A. I would say there is not enough information for me to form an
5 opinion about whether, say, the proper rules were followed
6 wherever it was possible. But again I want to stress that
7 I realise very much that in some conditions you simply cannot
8 follow all rules; you can just do the best that you can and,
9 well, that should be good enough to present in Court and then it
10 is up to the Court to decide whether, say, the logic of the
11 whole test is still acceptable. But I cannot form an opinion on
12 that because in the selection from the record that I have seen
13 there is not much information about the procedures that were
15 Q. What I will try to do now is to list with you what will be
16 helpful for the Court to know in order to make a reasonable
17 assessment about the quality of the test. Would it be helpful
18 for the Court if the Court knows whether witnesses have been
19 asked to identify the suspect more than once, either by the
20 Prosecution or by any other authority such as the German
21 authorities or the Bosnian authorities?
22 A. Yes, definitely. We are talking about the four subjects? Yes,
23 I think that would be very helpful.
24 Q. Would it be helpful for the Court to have all identification
25 attempts using the photospread, whether successful or not?
26 A. Yes. You mean of these witnesses or other witnesses?
27 Q. All witnesses.
28 A. All attempts?
1 Q. All attempts known to either party in this trial?
2 A. Sure. I think that the weight of these identifications cannot
3 be determined without knowing how many other tests there were
4 and how many of them were successful.
5 Q. Would it be helpful for the Court to have information about the
6 instructions that were given to the investigators performing the
8 A. Yes, in as much as these instructions can give the Court insight
9 into the procedures that were used, because I think the exact
10 procedures should have been in instructions to the
11 investigators, because otherwise there is no guarantee that they
12 would all apply the same procedures. To that extent, I think it
13 would be very useful to know those instructions.
14 Q. Would it be helpful for the Court to know whether the witnesses
15 have been asked before the identification attempt whether or not
16 they discussed the case with other people?
17 A. Yes, in as far as these other people could have informed them
18 about the outer appearance of the accused or the perpetrator,
19 which is not necessarily the same, it would be important to know
20 what they have learned about that.
21 Q. Would it be helpful for the Court to know whether the witnesses
22 before participation in an identification test have been
23 requested to provide a verbal description of the person they
24 later identified?
25 A. Yes, I would even go further. I think it would be very
26 important to know what these descriptions were.
27 Q. Should these descriptions, if any available, be produced to
28 assist the Court in this matter?
1 A. Sure, because I think it would be extremely informative if, say,
2 those descriptions do not coincide with the outer appearance of
3 your client, well, or do coincide, that would also be very
4 useful. It would be very useful in any event.
5 Q. Would it be helpful for the Court to know whether witnesses were
6 instructed to identify only one person, that is, the person who
7 fits the specific verbal description which was produced by that
8 same witness prior to the test?
9 A. Yes, I think that because that is the proper question to ask,
10 "Identify this one person", and not just anybody, because in
11 the given condition they might correctly recognise more than one
12 person, because they might have been familiar with some of the
13 foils that would lead them to, say, multiple responses which
14 again increases the probability of guessing correctly. So that
15 is something that should have been, sort of, shielded off by the
17 Q. Would it be helpful for the Court to know whether the witnesses
18 have been instructed that the wanted person is possibly not in
19 the photospread and that, therefore, a positive response should
20 be made only when the witness is certain of recognising that
22 A. Yes, because that is an essential element in the instructions to
23 subject and I think the Court ought to be certain that it was
24 said in this manner to the witnesses.
25 Q. Would it be helpful for the Court to know which officers were in
26 charge of the identification procedures and whether they
27 received appropriate training?
28 A. Yes, I think the appropriate training is more important than the
1 identity of the officers, but it would help, of course, to know
2 who they were, what their experience was, how many there were,
3 how they, sort of -- how it was ensured that they applied the
4 same procedures consistently.
5 Q. Would it be helpful for the Court to know whether witnesses have
6 described more suspects to the investigators and, if so, whether
7 they were told which suspect they were asked to identify?
8 A. Yes, if the subject described a number of people who committed
9 crimes in the camp, the proper procedure is to say, "OK, we have
10 a line up for each of these persons you describe. First, we
11 take this person that you describe as being there and there or
12 doing this or that. Now here we have a lineup. See whether
13 this particular person that you describe is in this lineup or
14 not". Then the other elements of the instruction. So there is
15 no uncertainty whom of all the people that witnesses might have
16 seen in the camp is to be expected in the lineup.
17 Q. Would it be helpful for the Court to know whether the foils in
18 the identity test were chosen after the descriptions were
19 obtained from the witnesses?
20 A. Well, I would say that the proper time order is not so relevant
21 as long as the foils, sort of, fit these descriptions. I think
22 if you first get the description and then choose the foils, it
23 is more likely that you will get the correct foils, but it might
24 have happened that you first get the foils and then the
25 descriptions and that the foils happen to fit those
26 descriptions. It just is a matter of practicality, I would
27 say. I would do it in the one order, not in the other, but if
28 you did it in the other order, that does not mean it went wrong.
1 Q. Would it be helpful for the Court to know in which order the
2 photos were shown to the witnesses or the arrangement of the
3 photos as they were shown, not only to those witnesses who have
4 been here in Court, but also those who were interviewed but not
5 called as a witness in Court?
6 A. Yes, in principle, if you do a sequential presentation to more
7 than one witness, you must vary the order. Usually, the order
8 is determined by some sort of randomized mechanism, so that, in
9 principle, the picture of the accused can appear in any position
10 in the sequence. It would not be such a good idea to use only
11 one position, for instance, because then if there is any contact
12 among witnesses, they might communicate, say, which number they
13 had recognised. So, if it were only for that reason, it is a
14 good idea to always vary the order.
15 Q. Would it be helpful for the Court to know the ethnic background
16 or the background, such as, from which countries the foils came
18 A. I think it would be relevant only with respect to this little
19 proviso that I have mentioned. In general, I think that, say,
20 the two tests that we apply generally sort of can assure you
21 that the foils were well chosen, but there is this slight
22 problem that in order to really draw strong conclusions from our
23 research in Belgrade it would be better to know where these
24 people actually came from. But that is only a proviso that
25 I would attach, want to attach to it. I have myself no really
26 strong doubts that something went wrong with the choice of the
28 Q. It would eliminate a shadow of a doubt, would it not?
1 A. Sure, we cannot know that for sure. There would have been a way
2 to know that for sure by just organising it the proper way
3 before showing the spread to witnesses.
4 Q. Would it be helpful for the Court to know whether these
5 identification tests have been administered by officers who did
6 not know which person in the photospread is the suspect?
7 A. It would have been helpful if they had not known.
8 Q. It would of course not ----
9 A. I think we already know that in fact they did know. So, I do
10 not quite understand your question. I think it is obvious that
11 the investigators knew who the accused was in the photospread.
12 Q. Also here to exclude any shadow of doubt, should it be helpful
13 to the Court to know whether they knew or not?
14 A. Sure, I think they must know that.
15 Q. Would it be helpful for the Court whether the preparation and
16 the conduct of the identification has been recorded, for
17 example, by a video or by audio tape or by a stenographic
18 transcript, would that be helpful, perhaps supplemented with a
19 time log, if any were available, would that be helpful for the
20 Court to have?
21 A. If it were available I think it would be extremely instructive
22 to the Court to be able to see how the procedures actually went,
23 because some of the problems that I have mentioned are entirely
24 hypothetical, that it might have happened but we do not know
25 whether it happened. If all those problems can be excluded,
26 that would be extremely helpful to the Court.
27 Q. I take it then it would be helpful to the Court too if, from
28 those kinds of records, it would show that the recognition of
1 Mr. Tadic had been pronounced only after a considerable time, if
2 that happened?
3 A. Yes, of course. All these elements in the procedure I think, in
4 as far as they are not known now, could better be known to the
5 Court in one way or another.
6 MR. WLADIMIROFF: Thank you, Professor. That is all I ask.
7 THE PRESIDING JUDGE: Cross-examination, Mr. Tieger?
8 Cross-Examined by Mr. Tieger.
9 Q. Dr. Wagenaar, much earlier Professor Wladimiroff asked you some
10 questions about the history of your involvement in this matter,
11 both with the Prosecution and the Defence. You mentioned
12 something about the adversarial system and your understanding
13 initially of what your role might be in the case. At that time
14 you also understood that the Defence would, in all probability,
15 be obtaining the services of an expert colleague in your field,
16 is that right?
17 A. What I know is that the Prosecution was the first to contact me
18 about this case, and immediately I asked what my exact position
19 would be because this Court is not like a Dutch court, so my
20 position would be different from what I was used to.
21 I expressed my preference for being appointed by the Court just
22 in the way as I am used to in the Netherlands, but I understood
23 also at that time that that was not the nature of our contact.
24 It was a contact between the Prosecution and me, and we agreed
25 that unless there was a decision that I could act as a witness
26 for the Court or a decision that I could serve both parties
27 equally, I would only have contact with the Prosecution.
28 Q. It was your ----
1 A. What the Defence would do was not the content of my knowledge.
2 Q. Sure. Is it not true that we discussed, at least in passing,
3 the likelihood that the Defence would get an expert and that is
4 the way the matter would proceed?
5 A. Yes, it was in case I could not equally help the Defence, it
6 would be rather likely that then the Defence would seek the
7 assistance of another expert.
8 Q. In fact, you subsequently discovered the Defence had contacted a
9 colleague of yours in Maastricht?
10 A. Right.
11 Q. At some later time apparently that arrangement was not
12 satisfactory and then the Defence contacted you?
13 A. I have no knowledge whether it was satisfactory. I only
14 experienced that they contacted me.
15 Q. It was further your understanding that all reports that you
16 produced, all tests that you conducted, would be turned over to
17 the Defence? We had that clear understanding, correct?
18 A. We had that agreement. Let me be explicit about this. From my
19 side that was a condition for working for the Prosecution. I am
20 simply not used to working for one side in a trial and letting
21 that side decide whether they would present something in court
22 if they like it, and not present it in court if they do not like
23 it. That is not what I am used to and that is not what I would
24 like to happen. So I stated explicitly as a condition I am
25 prepared to work for the Prosecution and for the Prosecution
26 only, but under the condition that if I produce something it
27 should also be made known to the Defence.
28 Q. So in responding to Mr. Wladimiroff's questions about the nature
1 of your contact and relationship with the Prosecution, you were
2 not attempting to suggest in any way that there was something
3 underhanded going on between you and the Prosecution?
4 A. No, not at all. You only got there first I would say.
5 Q. If I understand your direct testimony correctly, you were in
6 contact with the Defence from about October of last year, is
7 that right?
8 A. I must say I should look at my calendar to find out the proper
9 date, but it is quite possible that that is the correct date.
10 Q. I was interested in that, because I noted that in various
11 portions of your testimony you indicated that there were parts
12 of the procedure with which the transcripts did not familiarise
13 you or provide you with sufficient information to determine
14 exactly what you thought you might need to know. Did you
15 indicate to the Defence that these are matters that should be
16 taken up with the witnesses who participated in these
17 procedures, so that that information could be elicited for your
18 benefit so you could express a view?
19 A. No, I did not because to my understanding, well, the date of my
20 report about those parts of the record is 10th October which is
21 very recently. I received those documents not much before that
22 date. By that date the interrogations of those witnesses had
23 come to an end. So it really would not have helped if, say,
24 I had received documents halfway through the interview of
25 witnesses. I could have suggested to one party or the other,
26 "Listen, there are a number of things that I would like to
27 know, maybe you can ask the next witnesses about these things",
28 but that was not the situation when I received the documents.
1 All the witnesses, as far as I know, had been heard and that
2 part of the trial had been concluded.
3 I must maybe add for your clarification, which is just
4 a matter of fact and I cannot help it, I would wish it were
5 otherwise but it is not, there is no way I could combine a
6 complete reading of the trial records with my job as a professor
7 of psychology in Leiden. I have to satisfy myself with just a
8 small part. It is not my habit to read only part of the
9 records. It is my habit it read all of it, but in this case it
10 is simply not humanly possible, definitely not within the time
11 that was given to me. So I have made that clear restriction.
12 This is what I have read. It is in my letter. I was assured
13 that those are the pages that refer to identification and that
14 there are no other pages. If I am wrong I am prepared to read
16 Q. Just so it is understood, when did you receive documents for
17 review for purposes of your testimony?
18 A. I think Mr. Wladimiroff could tell you the exact date. Wait a
19 minute. It is not mentioned in my letter. I might have with me
20 the letter in which it was offered, but it was not long before.
21 I do not think I have the letter with me. I think I must fail
22 the answer, but probably it is something like two weeks.
23 Q. Before you responded with the letter?
24 A. Right. I am not certain of the answer. I have to look it up in
25 our sort of letter book in which it is recorded when letters are
27 Q. In any event, it was a relatively short time?
28 A. Relatively short time, yes.
1 Q. How long before that was it that you discussed for the first
2 time in any way the issues of identification procedures with the
4 A. I think at the time that you mentioned our first contact you
5 located that, what did you say, in -- I am not quite sure,
6 I think you said March 1996?
7 Q. I am sorry, this is your first discussion with the Defence about
8 these issues?
9 A. Yes. The only discussion I had with the Defence, including the
10 first, was only on the identification. I am not an expert on
11 any other aspect of this trial. So all our discussions, and
12 there were not many, including the first, was on identification,
13 nothing else.
14 Q. At that time did you provide them with a copy of your book which
15 includes the 50 rules you mentioned?
16 A. No, I think they had it in their possession already.
17 Q. Doctor, I understand what you have just indicated about the
18 length of time you had to review these records and transcripts.
19 Let me ask you then about a matter that was discussed at some
20 length during your direct testimony, and that is the test or
21 identification test or photospread administered to the witness
22 Draguna Jaskic. Do you remember the discussion about that?
23 A. That is the witness who changed her testimony in the second
24 account, you mean?
25 Q. Well, you say change her testimony in the second account, was
26 she shown the photospread twice?
27 A. No. I think I described that I am not completely aware of what
28 exactly happened.
1 Q. Do you know whether or not she was shown the photospread once or
2 twice or more times?
3 A. Let me first make sure we are talking about the same witness,
4 that was my counter question. These names are terribly
6 Q. Please satisfy yourself about that.
7 A. Because I have the same documents that you have with the names
8 and the abstracts. In the document that was given to you today,
9 which is a short listing of the pages that were given to me,
10 I think the witness with whom there was a small problem is
11 listed between No. 58 and 60 with no number attached to her.
12 There her name is mentioned as Draguna Jaskic. It appears on
13 page 2952. That is the witness you are talking about?
14 Q. Yes, it is. That is right.
15 A. We are at least talking about the same one.
16 Q. If you can keep handy those pages.
17 A. Identification is always a problem.
18 Q. I understood you to say that you were unaware of whether or not
19 she had participated in more than one photospread?
20 A. Yes, I am not completely certain what the procedure was that was
22 Q. That question was rather clearly addressed in the portions of
23 the transcript which you received, was it not?
24 A. I have those pages starting at 2952.
25 Q. Perhaps you want to take a look at page 2969.
26 A. 2969, yes, I have it in front of me.
27 Q. How did you interpret the questions and answers when they came
28 to you the second time: "Did they have photographs with them
1 again?" Answer "No". So you did not look at another book of
2 photographs after that first time?" Answer "No"?
3 A. Well, I read that, but I did not understand how she came about
4 to give a second statement about whom she had recognised.
5 Apparently, there is a second visit, or maybe it was -- it says
6 at line 6, "When they visited you again and said 'why did you
7 not say'?", there is a riddle there because apparently there is
8 a second visit. Mr. Kay seems to imply there that the
9 investigator already knows that she did not say something,
10 although she knew, and my question is how did the investigator
11 know that?
12 Q. Let us see if we can address that question then. Let me ask you
13 first about forms of recognition, because I noted in particular
14 that you said that this witness did not express any recognition,
15 did not recognise and so on.
16 A. No, I did not say that I think. She did not express it and then
17 the rule is you should count her as someone who did not identify.
18 Q. Well, I think one of the quotes you had was "could not
19 recognise" but let us not quibble about that. One of the forms
20 of recognition, or one of the expressions of recognition, can be
21 of course the simple statement, "I recognise that person as the
22 one who did such and such", correct?
23 A. Right.
24 Q. It is also true to say that not all expressions of recognition
25 need to be verbal. For example, someone can point in response
26 to a question and that is also an indication of recognition.
27 I take it would also be true that there are some reactions which
28 are as demonstrative of recognition as pointing or speaking.
1 For example, if someone encountered someone from whom they had
2 great reason to fear and reacted by running from the room
3 screaming in tears, that certainly might also be an expression
4 of recognition, correct?
5 A. Well, now you come on very difficult ground, because if you
6 accept all sorts of emotional, expression of emotions as
7 recognition, then you are going to ask the investigator to
8 interpret the behaviour of the witness. There you are on very
9 slippery ground. Therefore, the procedure asks that the witness
10 just says, "I indicated a number, that is the one I recognise."
11 Points, indicates, says and no other less clear things because
12 you would become dependent on all sorts of subjective
13 interpretations of the investigator and you do not want that.
14 Q. Doctor, I appreciate you cannot ask a witness in lieu of verbal
15 expression to have some physical reaction to the photograph or
16 the individual to express their recognition. Of course that
17 would not be practical. Nevertheless, that might happen, right?
18 A. Anything might happen. So what you would expect in that case is
19 the investigator just describes what happens.
20 Q. Right, and in that case it might not be the investigator who is
21 interpreting what is happening. It is the investigator bringing
22 information to the court and allowing the Court to determine
23 what happened?
24 A. If everything is described you can leave it to the Court to
25 interpret it, yes, right.
26 Q. You would also agree, I take it, that that can be a very
27 persuasive expression of one's recognition, a very sincere
28 expression of one's recognition?
1 A. What can be a very sincere expression?
2 Q. An involuntary physical reaction.
3 A. Running from the room and screaming?
4 Q. Breaking out into a sweat, whatever kinds of physical
5 expressions might result.
6 A. I would say breaking out into a sweat is exactly the thing
7 I would have doubts about, because that is not easy to see, not
8 always to easy to see and it is not always easy to attribute it
9 just to recognition. It can be related to almost anything. So,
10 no, I think when I say that there ought to be strict and clear
11 procedures, some of the procedures relate to how the recognition
12 is expressed. Some of the expressions are perfectly acceptable
13 and clear and do not need to be quibbled with. Another thing,
14 because they are doubtful and subject to personal interpretation
15 which cannot be redone or undone by the Court because the Court
16 cannot verify whether the investigator saw a sweat, I would say
17 that is a less desirable procedure. I think to such a situation
18 you ought to apply one of the rules that was formulated, which
19 is if you can justify why by necessity you had to do it this
20 way, I could not follow, say, the optimum procedure, maybe the
21 Court should accept that. But if it cannot be justified, then
22 I would not encourage investigators to do it that way.
23 Q. Doctor, the question was not intended to be, and I apologise if
24 it seemed to be, a question which asked you to comment on the
25 best possible procedure under those circumstances. I simply
26 wanted to know whether you acknowledge that a recognition could
27 be expressed in a variety of ways including a physical
28 reaction? I think you agree with that, is that not true?
1 A. Oh, I think witnesses can do that. I do not want to have said
2 that that should be acceptable as a procedure.
3 Q. Not as a procedure. You should focus on the existence of a
4 recognition or not.
5 A. Rather you should instruct witnesses not to express it in other
6 ways than by saying it and pointing at the right picture.
7 Q. Yes, I think I understood that from your earlier testimony as
8 well. Let me ask you one more question. Is it also possible,
9 in your view, that an individual who sees a photograph or a
10 person who elicits great fear reacts to that fear by trying to
11 distance himself or herself from the situation and verbally
12 expressing or denying that recognition?
13 A. Yes, sure, I think that is perfectly possible. I do not think
14 such a person makes a great witness.
15 Q. You read the full transcript of Mrs. Jaskic, is that right?
16 A. No.
17 Q. I am sorry, you read the pages you were given that included page
19 A. Would it be helpful if I tell you which pages I have?
20 Q. I actually have a list of that I believe so I can accompany you
21 with that.
22 A. I had 53, 2953, 54, 55, then jumping to 62, then 64, 65, 66, 67,
23 68, 69 and that is the end. I do not know which proportion of
24 the whole testimony that is.
25 Q. On page 2977 ----
26 A. 2977, I did not have that one.
27 Q. You were not provided with that?
28 A. Oh, yes. Sure, OK, that is the next testimony. Right. That is
1 by Mr. Paepen I think.
2 Q. That is right. The reaction that Mrs. Jaskic had at the time
3 she viewed the photospread was described?
4 A. I think you have refer to me to the line.
5 Q. Doctor, I am referring to lines 27 through 32.
6 A. Yes.
7 Q. It seems you did not recall that?
8 A. Sure. No, I recall that. I do not know exactly what it means.
9 Q. Right, you do not know what it means?
10 A. No.
11 Q. This witness brought that to the Court?
12 A. Yes, sure but I do not know whether ----
13 Q. It is for the Court to determine exactly what that means, is
14 that not right?
15 A. No, if your suggestion is that one can conclude from that piece
16 that obviously she recognised, I cannot conclude that. I can
17 only see that she behaved in this way and then said "Go on". If
18 you just stick to the rules it would say, so, that is not a
19 recognition because then she should have said "That's him" and
20 maybe run screaming from the room, but "Go on" sort of means
21 that she would want to have a look at the other pictures.
22 Q. So it is not a recognition under the rules?
23 A. Under proper rules I would say do not count that as
24 recognition. It is risky. You do not know exactly what
25 happens, why she made that. If I may add, it is quite
26 probably -- no, not probably. I should correct it. It is
27 possible that the uncertainty of the situation has led to this.
28 If her task was to recognise the one person she had mentioned,
1 I do not know whether she had mentioned the name Tadic, I think
2 she did, if she had been asked, "Well, that one person, is he in
3 this file or not?" and she recognised him, she might have said
4 here, "That's him, stop". If she was under the allusion that
5 she might see more people whom she had met in the camp, it could
6 it could have been possible for her to say after recognising
7 one, "Go on" expecting some more, you see. The unclarity or
8 maybe the possible impropriety of the procedure may have led to
9 this difficulty. I would say good procedures avoid also
10 interpretation problems. So, I do not even know what the "Go
11 on" means. Does she mean, "I am not sure whether it is him. Go
12 on, maybe we get a better picture of him". Or does she mean,
13 "Go on, maybe there are other criminals that I might also
14 recognise." It is sort of very difficult to interpret what this
15 all means and proper procedures avoid such difficulties.
16 THE PRESIDING JUDGE: Actually, as I recall the testimony, she did
17 not testify that she had recognised him in a camp, but hat she
18 recognised him in Jaskici. It has been months since we
19 heard this testimony, but that is my memory. The reason
20 I suggest this to you is, would it have been helpful for you to have
21 read her testimony in full to have understood at least what she
22 testified to, what were the circumstances, how it affected her,
23 to better understand her reaction? I have had the advantages of
24 listening to that some time ago. I have not read it since but
25 I remember it. Would that have helped you and would possibly
26 you have formed a different opinion as to what she meant when
27 she reacted that way?
28 A. Your Honour, it is thinkable that that would have helped me to
1 help you understand what she meant, but I do not think it is in
2 my field of expertise to help you what she meant. My field of
3 expertise is procedure. If you would ask me to look at it again
4 and help you explain what she means, I would be very hesitant to
5 be honest.
6 Q. We have a very difficult job and I think it belongs to us,
8 A. I appreciate that. You need all the help you can. I appreciate
10 THE PRESIDING JUDGE: I am sorry, Mr. Tieger. I may have
11 misremembered but that is my memory and that is why I wanted to
12 ask it. It is now 5.30. So we will adjourn until tomorrow at
13 10 o'clock.
14 (5.30 p.m.)
15 (The court adjourned until the following day).