The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-AR73.2

"Decision on Admissibility of Prosecurion's Investigator Evidence"

30 September 2002
Appeals Chamber (Judges Shahabuddeen [Presiding], Hunt, Güney, Pocar and Meron)

Procedural Background

· On 30 May 2002 the Trial Chamber rejected the admission into evidence of a summary of witness statements and other material related to events alleged to have taken place in Racak prepared by Mr. Barney Kelly, an investigator of the Office of the Prosecutor (hereinafter "OTP").

· On 27 June 2002 the Prosecution appealed, pursuant to a certificate granted by the Trial Chamber in accordance with Rule 73(B)¹ of the Rules of Procedure and Evidence,² against the decision of the Trial Chamber excluding evidence from Mr. Barney Kelly.³

The Decision

The Appeals Chamber dismissed the Appeal.

The Reasoning

The Prosecution’s grounds of appeal were as follows:

The admissibility of "summarising evidence" under Rule 89(C)⁵

In order to assess the admissibility of the evidence sought by Mr. Kelly, the Appeals Chamber distinguished two issues: one relating to the content of the evidence, and the other relating to the method by which he proposed to give it. The content of the evidence consisted of Mr. Kelly’s summary of the written statements made to various OTP investigators by prospective witnesses for the purpose of the proceedings. The OTP intended to provide the summary of those summaries and did not wish to tender the original statements pursuant to Rule 92 bis.⁶ For the Appeals Chamber such evidence "was not hearsay evidence of what those prospective witnesses had said to Mr. Kelly; rather, it was hearsay evidence of the contents of those written statements (which are themselves hearsay)". The content of the evidence consisted also of the conclusions by the investigator himself based on the written statements he had summarised and based on his "professional experience, training and knowledge". The Appeals Chamber rejected the assertion of the Prosecution that these were not conclusions but "merely concise summaries of the information that Mr. Kelly gathered about the events in Racak during his investigation".

The Appeals Chamber pointed out that the "substantial issue" in the appeal concerns "the admissibility of the summary prepared by the OTP investigator as hearsay evidence of the contents of the written statements given to the OTP investigators by prospective witnesses".¹⁰ The Appeals Chamber reviewed the case-law of the International Tribunal in two decisions handed down before the adoption of Rule 92 bis¹¹ and in another recent decision in the Galic case,¹² to conclude that "the prosecution was indeed seeking to avoid the stringency of the requirement under Rule 92 bis that the witnesses must be produced for cross-examination if the Trial Chamber so orders".¹³ Whether under Rule 92 bis or under Rule 89(C), the Appeals Chamber ruled that the evidence given by the investigator would not be admitted,¹⁴ and therefore dismissed the alleged error of the Trial Chamber in the ruling excluding the proposed evidence. While noting that no question arose in this appeal as to the admissibility, in principle, of summarising evidence - the summarising of material which is relevant to the issues of the case - the Appeals Chamber, nevertheless decided to address the matter. It declared that in every case "the basic issue is whether the material being summarised would itself be admissible" and that "[t]he admissibility of hearsay evidence pursuant to Rule 89(C) should not permit the introduction into evidence of material which would not be admissible by itself".¹⁵

Partial dissenting opinion of Judge Shahabuddeen

Judge Shahabuddeen disagreed in part with the Decision of the Appeals Chamber as regards the question of whether an oral witness of the Prosecution may summarise the written statements of uncalled witnesses, including the witness observations and conclusions about those statements. He acknowledged that the Appeals Chamber was correct in excluding the conclusions of Mr. Kelly (as the conclusions trespassed on the Trial Chamber’s function) but found difficult the exclusion of the summaries themselves, which he would have personally admitted under Rule 89(C)

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1. Rule 73 (Other Motions)
(B) Subject to paragraph (C), decisions rendered during the course of the trial on motions involving evidence and procedure (including, without limiting the generality of this Rule, orders and decisions under Rule 71, Depositions, and denials under Rule 98 bis, Motion for Judgement of Acquittal) are without interlocutory appeal. Such decisions may be assigned as grounds for appeal from the final judgement.
2. Decision on Prosecution's Application for Certificate under Rule 73(B) Concerning the Evidence of an Investigator, 20 June 2002, p. 4, whereby the Trial Chamber considered that the resolution prior to the final judgement of the issue raised by its decision would materially advance the proceedings.
3. Interlocutory Appeal of the Prosecution against Decision on Admission of Evidence of Summarizing Witness, 27 June 2002 (hereinafter "Interlocutory Appeal"). A document entitled "Corrigendum to Interlocutory Appeal of the Prosecution against Decision on Admission of Evidence of Summarizing Witness" was filed on 28 June 2002.
4. Interlocutory Appeal, para. 4.
5. Rule 89 (General Provisions)
(C) A Chamber may admit any relevant evidence which it deems to have probative value.
6. The Prosecution mentioned that the timetable imposed by the Trial Chamber would not have allowed it to produce the concerned witnesses for cross-examination.
7. Para. 15.
8. Passage of his "Assessment" quoted by the Amici Curiae.
9. Para. 17.
10. Para. 18.
11. Aleksovski, IT-95-14/1-AR73, Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 February 1999, Judicial Supplement No. 2. Kordic and Cerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of Deceased Witness, 21 July 2000, Judicial Supplement No. 18.
12. Galic, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002, Judicial Supplement No. 34.
13. Para. 19.
14. Ibid.
15. Para. 21.