“Decision on the expert witness statements submitted by the Defence”
27 January 2003
· On 20 November 2002, the Defence filed seven expert witness statements pursuant to Rule 94 bis of the Rules of Procedure and Evidence.1
· On 10 December 2002, the Trial Chamber provided oral comments and guidelines in respect of expert reports.2
· On 17 December 2002, the Prosecution filed its “Prosecution’s Submission Concerning the Expert Statements Filed by the Defence”.
· On 25 December 2002, the Defence filed its “Response on Prosecution’s Submission Concerning the Expert Statements Filed by the Defence”.
· On 10 January 2003, the Prosecution filed its “Reply to Defence Motion Regarding Expert Witnesses”.
· On 14 January 2003, the Defence filed additional submissions.
The Trial Chamber admitted all the expert witness statements submitted by the Defence, requested the Defence to provide more details on some sources relied upon in a statement and invited the parties to co-operate on issues of translation of annexes.
The arguments of the Parties
The Prosecution opposed admission of six expert witness statements on the ground that they do not meet the guidelines with respect to expert witnesses set by the Trial Chamber that there should be transparency of the established and the assumed facts on which the expert relies and that the methods used when applying his or her knowledge, experience or skills to form the opinion of the expert should also be transparent.3 Furthermore it requested access to the notes referred to in the remaining expert statement. The Defence opposed both Prosecution requests.
The probative value of expert witness statements within the meaning of Rule 89 (C)
The Trial Chamber stated that the Rule 94 bis procedure does not affect the general power of the Trial Chamber to exclude evidence under Rule 89.4 It ruled that “an expert witness statement must relate to an issue in dispute at trial in order to constitute relevant evidence that may have probative value within the meaning of Rule 89(C)” and that “a determination on admissibility of evidence pursuant to Rule 89 must also take into account the specific nature of the evidence concerned”. In this respect it held that “a minimum degree of transparency in the sources and methods used is […] required at the stage of admission in order for the Chamber to determine whether it deems the statements to have probative value within the meaning of Rule 89”. It further held that “in determining whether the minimum degree of transparency required at the stage of admission is met, the Trial Chamber takes into consideration the subject matter of the statement, the type of expertise concerned, as well as whether the statement refers to specific events explicitly charged in the Indictment, or to background information”.
The Trial Chamber then categorised the expert witness statements proposed by the Defence (three on the background of the conflict, three in ballistics and forensic medicine, and one military expert statement) to assess whether they met the degree of transparency required at the stage of admission.
The degree of specificity and the accessibility to the sources used in support of expert witness statements
In respect of one expert witness statement the Trial Chamber found that the sources were “not indicated with the degree of specificity that is required to permit the Prosecution to properly prepare its cross-examination and the Trial Chamber to assess the witness expert statement”. On a more general level it stated that “the sources in support of any expert witness statement must be clearly indicated and easily accessible to the other party upon request, preferably in one of the official languages of the Tribunal”. It declared that “the parties should co-operate if the tasks of translation are too cumbersome for the Defence” and that “the Trial Chamber will provide further instructions if the parties cannot solve the problems of access and translation on their own”.