"Decision on Defence Motions for Rejoinder"

31 October 2000
Trial Chamber II (Judges Mumba [Presiding], Hunt and Pocar)

Procedural Background

• On 25 October 2000, the Defence for the accused Radomir Kovac requested leave from the Trial Chamber to call three witnesses in rejoinder pursuant to Rule 85(A)(iv)1. Two of these witnesses, D.K. and D.M., had already testified during his case. The third person, Mrs. Slavojka Kovac, is the wife of the accused. Radomir Kovac asserted that the rebuttal evidence of Prosecution witnesses FWS-87 and FWS-191 had raised new issues which justified calling the three witnesses in rejoinder. The assertions of the accused centred on the existence of a letter that two of the Prosecution witnesses, FWS-87 and A.S., were alleged to have written to him.

• On the same date, the Prosecutor filed a Response in which she opposed the Request and asserted that the rebuttal evidence did not give rise to new issues that would entitle the accused to call witnesses in rejoinder.

• Defence counsel replied on 26 October 2000 and appeared to contend that Slavojka Kovac was to be called not as a rejoinder witness but as a witness for his case-in-chief which had not yet been closed.

• The day after the Prosecutor filed a Response in which she opposed the Reply and submitted that, in light of the earlier representations made by the Defence to the Trial Chamber, the accused could not claim that he was entitled to a continuation of his case-in-chief.

The Decision

Trial Chamber II rejected the Defence Request.

The Reasoning

The Trial Chamber emphasised that the "argument by the accused that Rule 85(A)(iv) gives him an absolute entitlement to lead evidence in rejoinder is unsustainable. It is the obligation of the Prosecutor to lead all of her evidence in her case-in-chief. It is only if the accused raises a new issue in his evidence that she may lead evidence in rebuttal. She has no absolute entitlement to lead evidence in rebuttal merely because of Rule 85(A)(iii). Rule 85(A)(iii) does not deal with her entitlement; it merely deals with the order in which evidence is given where an entitlement to lead such evidence exists. It is the same with evidence in rejoinder and Rule 85(A)(iv)."

________________________________________
1. Rule 85(A) of the Rules provides in relevant part that "Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence :