Admissibility

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

79. […] The Appeals Chamber recalls that trial chambers have the discretion to bar the testimony of an expert witness called to give evidence on legal matters.[1] […]

[1]           Nahimana et al. Appeal Judgement, paras 292-294. See also Šainović et al. Appeal Judgement, para. 1295; Renzaho Appeal Judgement, para. 289.

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Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

58. Considering that it is for the Trial Chamber to accept or reject, in whole or in part, the contribution of an expert witness, the Appeals Chamber concludes that a Trial Chamber’s decision with respect to evaluation of evidence received pursuant to Rule 94 bis of the Rules is a discretionary one.[1] When assessing an expert report, a Trial Chamber generally evaluates whether it contains sufficient information as to the sources used in support of its conclusions and whether those conclusions were drawn independently and impartially.[2] […]

[1] See Stakić Appeal Judgement, para. 164; Semanza Appeal Judgement, para. 304; see also The Prosecutor v. Sylvester Gacumbitsi, Case No. ICTR-2001-64-T, Decision on Expert Witnesses for the Defence - Rules 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003, para. 8.

[2] Nahimana et al. Appeal Judgement, paras 198-199; see also Prosecutor v. Dragomir Milošević, Case No IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007, paras 8-9; Prosecutor v. Milan Martić, Case No IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov pursuant to Rule 94 bis, 9 November 2006, paras 9-10; Prosecutor v. Radoslav Brđanin, Case No IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4.

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ICTR Rule Rule 94 bis ICTY Rule Rule 94 bis
Notion(s) Filing Case
Decision on Expert Witness - 30.01.2008 POPOVIĆ et al.
(IT-05-88-AR73.2)

20. In a recent Appeal Judgement issued in the Nahimana et al. case, the ICTR Appeals Chamber established that:

C’est à la Chambre de première instance de déterminer si, au vu des éléments présentés par les parties, la personne proposée peut être reconnue en qualité de témoin expert. L’expert est tenu de déposer « dans la plus stricte neutralité en respectant l’objectivité scientifique ». La partie qui souhaite contester la partialité d’un témoin expert peut le faire par la voie du contre-interrogatoire, en faisant comparaître ses propres témoins experts ou au moyen d’une contre-expertise. Comme pour tout moyen de preuve présenté, c’est à la Chambre de première instance qu’il revient d’apprécier la fiabilité et la valeur probante du rapport et de la déposition du témoin expert.[1]

In this Appeal Judgement, the ICTR Appeals Chamber also concurred with the principle set forth in the Brđanin Decision that “the mere fact that an expert witness is employed or paid by a party does not disqualify him or her from testifying as an expert witness”.[2]

21. As properly pointed out by the Trial Chamber, Rule 94bis of the Rules “does not provide specific guidelines on the admissibility of testimony given by expert witnesses, or criteria for the admission of their report”.[3] Trial Chambers have established the following requirements for the admissibility of expert statements or reports: (1) the proposed witness is classified as an expert; (2) the expert statements or reports meet the minimum standards of reliability; (3) the expert statements or reports are relevant and of probative value; (4) the content of the expert statements or reports fall within the accepted expertise of the expert witness.[4] As the Trial Chamber in this case,[5] Trial Chambers have also ruled that “concerns relating to the Witness’ independence and impartiality […] are matter of weight, not admissibility”.[6] Such a statement is consistent with the ICTR Appeals Chamber’s finding in the Nahimana et al. Appeal Judgement, quoted above, that a party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witness or by means of an expert opinion in reply.[7]

22. [L]ike any evidence, expert evidence is subject to the provisions contained in Rule 89(C) and (D) of the Rules. While this Rule grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[8] The Appeals Chamber notes that in a limited number of instances, Trial Chambers have ruled inadmissible the evidence of a proposed expert witness on the ground that this evidence was so lacking in terms of the indicia of reliability because of lack of impartiality and independence or appearance of bias that it was not probative.[9] Such a determination has to be made on a case-by-case basis.[10] Finally, the Appeals Chamber reemphasizes that the decision by a Trial Chamber to admit evidence does not in any way constitute a binding determination as to its authenticity or credibility. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to be attached to the evidence in question.[11]

31. […] The extent of Butler’s involvement with the Prosecution in the investigation and preparation of this case can be explored during cross-examination, thus giving the Appellants full opportunity to challenge the admissibility of Butler’s reports.[12] In this respect, it is worth emphasizing again that the Trial Chamber stated that accepting Butler as an expert and calling him to give evidence does not automatically entail that his reports would be admitted as evidence.[13] It is also noteworthy recalling that Judges of the Tribunal, as professional judges, are able to weigh evidence and consider it in its proper context, or when applicable, to disregard any particular piece of evidence they have heard or read.[14] Furthermore, they are required to write a reasoned decision, which is subject to appeal.[15] 

[1] Nahimana et al. Appeal Judgement, para. 199 (footnotes omitted). The official English translation is not available yet, but an unofficial translation is provided below for convenience:

It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness. The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”. The party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.

[2] Nahimana et al. Appeal Judgement, para. 282, quoting Brđanin Decision [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003], p. 4.

[3] Impugned Decision [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T,Decision on Defence Rule 94bis Notice Regarding Prosecution Expert Witness Richard Butler, 19 September 2007], para. 22.

[4] Dragomir Milošević Decision [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007], para. 6; Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Milisav Sekulić Pursuant to Rule 94bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Sekulić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), pp. 3-4.   

[5] Impugned Decision, paras 26-27.

[6] Brđanin Decision, p. 4; Dragomir Milošević Decision, para. 9; Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], paras 8, 12; Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, Decision on Admissibility of Expert Report of Kosta Čavoški, 1 March 2006, p. 2; Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94bis, 1 April 2004, p. 4.

[7] Nahimana et al. Appeal Judgement, para. 199.

[8] Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33, 266; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998, para. 20.  See, also Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 24, and Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 24.

[9] In the Akayesu case, the Trial Chamber dismissed a Defence motion for the appearance of a person accused in another case before the ICTR for crimes related to those in its case, on the ground, inter alia, that “an expert must not only be a recognized expert in his field, but must also be impartial in the case” (Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998 (“Akayesu Decision”), p. 2). In the Milutinović Decision [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Request for Certification of Interlocutory Appeal of Decision on Admission of Witness Philip Coo’s Expert Report, 30 August 2006], the Trial Chamber found that the proposed expert witness was “too close to the team, in other words to the Prosecution presenting the case, to be regarded as an expert” and that “it could not regard his opinion as bearing the appearance of impartiality on which findings crucial to the determination of guilt of criminal charges might confidently be made” (paras 1, 10). See, also the three following decisions as illustrations of instances in which such an issue was raised: (1) In the Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], the Trial Chamber stated that “the active involvement of a proposed expert witness in the investigation of the case on behalf of the Prosecution is a factor capable of affecting the reliability of that witness’ Report and potential evidence […] The involvement in a particular case may be such that the reliability of the opinions of the expert cannot be accepted.” (para. 12); (2) Decision on General Smith [Prosecutor v. Vujadin Popović, Case No. IT-05-88-T, Second Decision Regarding the Evidence of General Rupert Smith, 11 October 2007], p. 4, footnotes 14, 15; (3) Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 10. 

[10] In this respect, the Appeals Chamber rejects the Prosecution’s suggestion that because Butler already testified as an expert witness in other cases, including before the Appeals Chamber, this automatically means that the Joint Defence Appeal should be dismissed.

[11] Rutaganda Appeal Judgement, footnote 63.

[12] In a rather similar instance, the Trial Chamber, after having found that the circumstances of the case were not the same as those in the Milutinović Decision, stated that “[t]he degree of [the expert witness’] connection with the Prosecution can be explored by the Defence in cross-examination and will be taken into account by the Chamber in assessing the weight to be attached to the evidence of the expert witness. It will be open to both Defence teams to examine the extent to which the involvement of [the expert witness] in the interviewing of witnesses and his subsequent reliance on statements and material obtained with his active participation affected the content of his Report and testimony” (Boškoski Decision, para. 12).

[13] Impugned Decision, para. 31.

[14] Prlić Decision on Admission of Transcript [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 57. See, also the Trial Chamber’s statement in the Certification Decision, p. 2, that Bulter’s evidence “can be redacted or disregarded if the Trial Chamber’s finding is reversed”.

[15] Prlić Decision on Admission of Transcript, para. 57.

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ICTR Rule Rule 89(C);
Rule 94 bis
ICTY Rule Rule 89(C);
Rule 94 bis
Notion(s) Filing Case
Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

7. The Trial Chamber’s decision in this case to deny admission of a transcript of evidence under Rule 92bis(D) of the Rules to rebut a judicially noticed fact is a discretionary decision to which the Appeals Chamber accords deference.[1]

14. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that the Defence may rebut the presumption by introducing “reliable and credible” evidence to the contrary.[2] The requirement that the evidence be “reliable and credible” must be understood in its proper context, through the lens of the general standard for admission of evidence at trial set out in Rule 89(C) of the Rules: “[a] Chamber may admit any relevant evidence which it deems to have probative value”. Only evidence that is reliable and credible may be considered to have probative value.[3]

15. It follows that, as for any other evidence for which no additional requirements have been specified in the Rules, the threshold for admission of this type of rebuttal evidence is relatively low: what is required is not the definitive proof of reliability or credibility of the evidence, but the showing of prima facie reliability and credibility on the basis of sufficient indicia.[4] The final evaluation of the reliability and credibility, and hence the probative value of the evidence, will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it.[5]

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[6] [...]

20. Lastly, the Trial Chamber reasoned that “the very purpose of admitting adjudicated facts would be undermined by permitting a party to admit such evidence” because “[j]udicial economy would not be achieved if parties were entitled to challenge adjudicated facts with evidence that has already been rejected in relation to that finding.”[7] In this respect, the Appeals Chamber underscores that the principle of judicial economy must yield to the fundamental right of the accused to a fair trial. A Trial Chamber cannot deny the Defence its right to put the adjudicated fact into question by introducing evidence to the contrary simply because it would frustrate judicial economy. Further, the Appeals Chamber emphasizes that Rule 94(B) of the Rules fosters judicial economy by avoiding the need for evidence in chief to be presented in support of a fact already previously adjudicated. Hence, the purpose of judicial economy underlying Rule 94(B) of the Rules is not frustrated by the admission of rebuttal evidence.

21. Similarly, the fact that the judicial notice mechanism was also created to favour consistency and uniformity of the case-law cannot be a matter that weighs against the admissibility of rebuttal evidence. In this respect, the Appeals Chamber stresses that adjudicated facts that are judicially noticed by way of Rule 94(B) of the Rules remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial. The Rule 94(B) mechanism does not allow a Chamber to simply defer to the assessment of the evidence by another Chamber on the ground that this mechanism was fashioned to favour consistency and uniformity in the Tribunal’s case-law. 

22. The Appeals Chamber concludes that the Trial Chamber incorrectly applied the governing law in finding that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[8] This approach would have the effect of denying to the opposite party its fundamental right to contest the material admitted by rebutting the presumption created by the admission of the adjudicated fact. In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

[1] As regards the general discretion afforded to Trial Chambers in determining the admissibility of evidence, see, e.g.: Prosecutor v. Jadranko Prlić et al., Case No. IT-04-14-AR73.13, Decision on Jadranko Prlić’s Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prlić et al. Appeal Decision”), para. 5; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 (“Simba Appeal Judgement”), para. 19; Pauline Nyiramasuhuko v. The Prosecutor, Decision on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, Case No. ICTR-98-42-AR73.2, 4 October 2004 (“Nyiramasuhuko Appeal Decision”), para. 7.

[2] Karemera et al. Appeal Decision on Judicial Notice [Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], paras. 42, 49. See also Dragomir Milošević Appeal Decision [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007], para. 17.

See Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement (“Naletilić and Martinović Appeal Judgement”), para. 402, citing Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998 (“Delalić et al. Appeal Decision”), para. 20: “The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value.”  See also Prosecutor v. Zlatko Aleksovski, Case No. IT- 95-14/1-AR73, Decision on Prosecution’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15 (dealing with hearsay evidence); Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000 (“Kordić Appeal Decision”), paras. 22-24; The Prosecution v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001 (“Akayesu Appeal Judgement”), para. 286; Alfred Musema v. The Prosecution, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Appeal Judgement”), para. 46; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008 (“Popović et al. Appeal Decision”), para. 22; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Prlić et al. Appeal Decision, para. 15. In this respect, the Appeals Chamber repeatedly held that a piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative: Prlić et al. Appeal Decision, para. 15; Nyiramasuhuko Appeal Decision, para. 7; Georges Rutaganda v. The Prosecution, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras. 33, 266; Musema Appeal Judgement, para. 46; Akayesu Appeal Judgement, para. 286; Kordić Appeal Decision, para. 24

[4] Naletilić and Martinović Appeal Judgement, para. 402; Delalić et al. Appeal Decision, paras. 17, 20. See also Prlić et al. Appeal Decision, para. 15; Popović et al. Appeal Decision, para. 22; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, paras. 33, 266; Musema Appeal Judgement, para. 47; Akayesu Appeal Judgement, para. 286. The Appeals Chamber notes that the large majority of the appeal decisions on the issue of admissibility of evidence at trial only refer to the requirement of “reliability”, without explicitly mentioning the requirement of “credibility”. Given the large meaning of the term “reliability”, the Appeals Chamber considers that the requirement of prima facie reliability indisputably encompasses the requirement of prima facie credibility.

[5] See, e.g., Popović et al. Decision, para. 21; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, fns. 63, 425. 

[6] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Application for Certification to Appeal the Decision Denying His Motion to Admit Testimony of Elizaphan Ntakirutimana, 24 March 2009], para. 12.

[7] Impugned Decision, para. 12.

[8] Impugned Decision, para. 12. 

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ICTR Rule Rule 89(C);
Rule 94
ICTY Rule Rule 89(C);
Rule 94
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

40. [...] Rule 94bis contains nothing which is inconsistent with the application of Rule 92bis to an expert witness.  Indeed, Rule 92bis expressly contemplates that witnesses giving evidence relating to the relevant historical, political or military background of a case (which is usually the subject of expert evidence) will be subject to its provisions.  There is nothing in either Rule which would debar the written statement of an expert witness, or the transcript of the expert’s evidence in proceedings before the Tribunal, being accepted in lieu of his oral testimony where the interests of justice would allow that course in order to save time, with the rights of the other party to cross-examine the expert being determined in accordance with Rule 92bis.  Common sense would suggest that there is every reason to suggest that such a course ought to be followed in the appropriate case.

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ICTR Rule Rule 92 bis;
Rule 94 bis
ICTY Rule Rule 92 bis;
Rule 94 bis