"Decision on the Admission of Witness Statements into Evidence"

14 November 2001
Trial Chamber I, Section A (Judges Liu [Presiding], Harding Clark and Diarra)

Procedural Background

• During the deposition proceedings pursuant to Rule 71 of the Rules1, Defence Counsel for Mladen Naletilic and Vinko Martinovic tendered a number of witness interview statements for admission into evidence.

• On 16 August 2001, the Prosecution objected to their admission into evidence and argued that they do not represent evidence.

• On 17 August and 4 September 2001, the Defence of Mladen Naletilic and Vinko Martinovic responded that the admission into evidence of witness interview statements is appropriate since they serve to verify the credibility of witness testimony given in court.
  

The Decision

The Trial Chamber decided that witness interview statements not covered by Rules 71 or 92 bis2 shall not be admitted into evidence unless, in extraordinary cases, the Chamber rules otherwise.

The Reasoning

• The Trial Chamber reiterated that "witness evidence under the Rules is the live testimony of a witness in court or, alternatively, witness testimonies or statements under specific Rules such as Rules 71, 89(F)3 and 92 bis".

• It considered that it would not attach the same per se probative value to witness interview statements established without any judicial control as it does to live testimony in court under its supervision4.

• The witness' live testimony in reaction to being challenged by confrontation with the interview statements will represent the "evidence" and the statements only serve to aid in the challenge of specific parts of live testimony and do not by themselves represent such "evidence".

• Pursuant to Rule 89(C)5, witness statements are admitted into evidence only if the Chamber is satisfied that they may have additional probative value in relation to a witness' live testimony.

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1. 1 "(A) Where it is in the interests of justice to do so, a Trial Chamber may order, proprio motu or at the request of a party, that a deposition be taken for use at trial, whether or not the person whose deposition is sought is able physically to appear before the Tribunal to give evidence. The Trial Chamber shall appoint a Presiding Officer for that purpose.
(B) The motion for the taking of a deposition shall indicate the name and whereabouts of the person whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined, and of the circumstances justifying the taking of the deposition.
(C) If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the person whose deposition is being taken.
(D) Deposition evidence may be taken either at or away from the seat of the Tribunal, and it may also be given by means of a video-conference.
(E) The Presiding Officer shall ensure that the deposition is taken in accordance with the Rules and that a record is made of the deposition, including cross-examination and objections raised by either party for decision by the Trial Chamber. The Presiding Officer shall transmit the record to the Trial Chamber."
2. "(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

(i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:

(a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.

(ii) Factors against admitting evidence in the form of a written statement include whether:

(a) there is an overriding public interest in the evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.

(B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person's knowledge and belief and

(i) the declaration is witnessed by:

(a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

(ii) the person witnessing the declaration verifies in writing:

(a) that the person making the statement is the person identified in the said statement;
(b) that the person making the statement stated that the contents of the written statement are, to the best of that person's knowledge and belief, true and correct;
(c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and
(d) the date and place of the declaration.

The declaration shall be attached to the written statement presented to the Trial Chamber.

(C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber:

(i) is so satisfied on a balance of probabilities; and
(ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.

(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.
(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination."
3. "A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form."
4. See The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-AR73.5, Appeals Chamber, Decision on Appeal regarding Statement of a Deceased Witness, 21 July 2000 (summarised in Judicial Supplement No. 18).
5. "A Chamber may admit any relevant evidence which it deems to have probative value".