Admissibility of evidence

Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

27. […] Relying on Wigmore’s Evidence in Trials at Common Law,[1] the Appellant concludes that because Milan Babić’s death, which resulted in the prevention or curtailment of the cross-examination of his evidence, was caused by “the voluntary act of the witness himself,” namely his suicide, the examination-in-chief must be struck out.[2]

29. […] In his appeal, armed with the Report’s finding that Milan Babić did in fact commit suicide, the Appellant attempts to rely on Wigmore for the general principle that evidence given by a witness in direct examination who commits suicide prior to, or during his cross-examination, should be excluded.

30. The Appeals Chamber concludes that the International Tribunal need not adopt this approach and finds that, despite Milan Babić’s death having been ruled a suicide, it remained within the Trial Chamber’s discretion to retain the evidence of Milan Babić on the basis that the interruption of his cross-examination, the majority of which had been completed, was unforeseeable and unavoidable.

[1] John Henry Wigmore, Evidence in Trials at Common Law (Boston: Little Brown, 1974) Vol. 5 §1390, p. 134, citing Kemble v. Lyons, 184 Iowa 804, 169 N.W. 117 (1918); Sperry v. Moore’s Estate, 42 Mich. 353, 361, 4 N.W. 13, 19 (1880); Forrest v. Kissam, 7 Hill 470 (N.Y. 1844) (“Wigmore”).

[2] Interlocutory Appeal, para. 30.

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

14. […] [W]hen tasked with the decision of whether to exclude evidence, the Trial Chamber is bound more particularly by Rule 89(D) to determine whether the probative value of the evidence is substantially outweighed by the need to ensure a fair trial.

In this case, the question was whether the incompleteness of the cross-examination and the disadvantage to the Appellant emanating from this, substantially outweighed the probative value of the evidence such that it should be removed from the trial record (para. 15).

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

The Trial Chamber had denied admission of a statement given by Halilović to the Prosecution at a time when he was questioned only as a witness, which was not taped or video-recorded according to Rule 43. On appeal, both parties agreed that the procedure under Rules 42 and 43 had not been followed since the Prosecution did not consider Halilović a suspect at that time, although it did inform him of his rights to counsel and to remain silent.

36. The Trial Chamber found that:

in order to protect the right of the Accused to a fair trial, in accordance with Article 21 of the Statute, it should be taken into account whether the safeguards of Rules 42, 43 and 63 of the Rules have been fully respected when deciding on the admission of any former statement of an accused irrespective of the status of the accused at the time of taking the statement.[1]

The Trial Chamber’s understanding of the protections afforded by the Statute and the Rules is consistent with the principles expressed in the case law of the International Tribunal and the ICTR[2] as well as the law of other jurisdictions.[3]

37. The Decision of 8 July 2005 dealt with the issue of whether the Statement had been taken in accordance with Rules 42, 43, 63, 89 and 95 of the Rules.[4] The Trial Chamber reasoned that the main question at issue was “what safeguards should have been applied by the Prosecution in order for a former statement of a now accused person to be admissible into evidence”.[5] The Trial Chamber concluded that:

[…] In the present case, Rule 43 [of the Rules] was not applied at the time of taking the Statement. Sefer Halilović has not chosen to waive his right to remain silent during trial. Thus, the Trial Chamber finds that the admission of the Statement would infringe upon the Accused’s right to a fair trial.[6]

38. Whether the statement would also be inadmissible due to a retroactive reading of Rule 43 of the Rules was not a decisive consideration in the Trial Chamber’s reasoning.[7] […]

[1] Decision of 8 July 2005 [Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Motion for Exclusion of Statement of Accused, 8 July 2005], para. 21.

[2] See, for example, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on Defendant’s Motion for Summonses and Protection of Witnesses called by the Defence, 17 February 1998; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, 2 September 1997.

[3] The European Court of Human Rights (“ECtHR”) has dealt with this issue mostly in the context of punishment (in a broad sense) of accused persons relying on their right to remain silent. However, the Appeals Chamber finds the ECtHR case law to be informative of the principles that “[t]he right not to incriminate oneself is primarily concerned … with respecting the will of an accused person to remain silent” (Heaney and McGuinness v. Ireland, Reports of Judgments and Decisions 2000-XII, para. 40) and that the status of a person (not yet formally charged) is modified when that individual’s situation has been “substantially affected” therefore anticipating the right to remain silent, the right against self-incrimination and the related warnings (Id., 41-42, 45). See also Serves v. France, Reports 1997-VI, para. 42; Saunders v. the United Kingdom, Reports 1996-VI, para. 74; Shannon v. United Kingdom, no. 6563/03, judgement of 4 October 2005 (consulted in the Internet).

[4] Decision of 8 July 2005, paras 21 and 24.

[5] Decision of 8 July 2005, para. 19.

[6] Decision of 8 July 2005, para. 26.

[7] See, in this respect, Čelebići Appeal Judgement, para. 533 and Kvočka Appeal Judgement, para. 128.

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ICTY Rule Rule 42;
Rule 43
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

38.    […] It is clear that the Trial Chamber instead excluded the Statement because, in accordance with Rule 89(D) of the Rules, it did not deem the statement reliable enough, so that it could have threatened the fairness of the proceedings.[1] The Appeals Chamber is only called to decide on whether this specific decision was unreasonable.

39.     The language used by the Trial Chamber throughout its decision shows that, with no way to test the accuracy of the Statement or its interpretation, its reliability was in doubt.[2] The circumstances of the case, which included the fact that the Statement was being tendered from the bar table, the summary format of the document and the fact that no record of any kind was offered to show its reliability, had an impact upon Halilović’s ability to challenge the content of the Statement and prepare an effective defence without forfeiting his right to remain silent. […]

40.     The Appeals Chamber is not satisfied that the Prosecution has shown that the Trial Chamber in this instance abused its discretion. The issue of whether the Statement contained relevant and probative evidence, in the sense of Rule 89(C) of the Rules, is therefore moot.

See below for separate  opinions on the matter.

[1] Decision of 8 July [2005], in particular paras 17 and 27, referring to Rule 89(D) of the Rules.

[2] [Decision of 8 July 2005], para. 25.

[3] Cf. Naletilić and Martinović Appeal Judgement, paras 530 and 544; Čelebići Appeal Judgement, para. 533 (concerning the Appeals Chamber’s power to intervene to exclude evidence when it finds that a Trial Chamber committed a discernible error in the exercise of its discretion to admit evidence and that this error resulted in unfair prejudice to the appellant, thereby rendering his trial unfair). See also Gacumbitsi Appeal Judgement, para. 19 (concerning a Trial Chamber’s abuse of discretion in relation to a scheduling decision).

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

39. […] In this respect, the Appeals Chamber emphasizes the large measure of discretion afforded under the Rules to Trial Chambers in establishing the authenticity of a document.[1] Considering that Trial Chambers’ decisions on issues of evaluation of evidence must generally be given a margin of deference,[2] it is only where an abuse of such discretion can be established that the Appeals Chamber should reverse such decisions.[3]

[1] See Prosecutor v. Sefer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 19.

[2]   Čelebići Appeal Judgement, para. 533, where the Appeals Chamber stated that “a Trial Chamber exercises consi­derable discretion in deciding on issues of admissibility of evidence” and that, as a result, “a Trial Chamber should be afforded […] deference in making decisions based on the circumstances of the case before it”.

[3] See, for example, 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; Prosecutor v. Dario Kordić and Mario Čerkez, 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.

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 03.07.2002 BAGILISHEMA Ignace
(ICTR-95-IA-A)

66. […] Where, as in the present case, the Prosecution is directed by the Trial Chamber to obtain further material, the Prosecution cannot rely upon Rule 98, as that rule contemplates that the party to which the direction is given will itself tender the further material in evidence as part of its case. The Trial Chamber does, however, have a clear power – as part of its duty to ensure that the trial is properly conducted – to direct the Prosecution to obtain material which may be relevant to the case of the accused. In such a case, the further material should be produced, not only to the Trial Chamber, but also to the accused. If any use is to be made of that material during the trial, it must either be elicited in evidence from a witness or tendered in evidence itself.[1]

[…]

70. […] The Appeals Chamber cannot accept the argument that the Trial Chamber in this case was under a duty to ensure that the Witnesses were called back, under the pretext that the Chamber itself had asked that the statements of the Witnesses be made available. It is the sole responsibility of the party that claims to have suffered prejudice, in this case, the Prosecution, to request the Trial Chamber to have the Witnesses called back and to justify such a request.

See also paras. 67-69.

[1] Prosecutor v Slobodan Milošević, IT-02-54-AR73.2, Decision on Admissibility of Prosecution Investigator’s Evidence, 30 September 2002, para. 24: “It would of course be quite wrong for the Trial Chamber, in determining the issues in the trial, to refer to material which may be available to it but which is not in evidence […].”

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ICTR Rule Rule 98 ICTY Rule Rule 98
Notion(s) Filing Case
Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

11.     The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2]

[…]

16.     The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […]

[1] Prosecutor v. Milosević, Nos. IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 5 (footnotes omitted).

[2] Ibid., para. 4.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1) ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

17.     […] [T]he Prosecutor alleges that the Trial Chamber erred by compartmentalizing its analysis of probative value. The Appeals Chamber affirms that the correct approach is to assess the aggregate probative value of the particular evidence against its aggregate prejudicial effect. […]. 

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1280.            The Appeals Chamber is concerned by the practice of trial chambers in the exercise of their discretion, as in this case,[1] to postpone consideration of Defence objections to the admission of testimonial evidence on the ground of lack of notice to the phase of their final deliberations on the case. In the view of the Appeals Chamber, leaving the issue of whether facts could be relied upon as a potential basis for liability unresolved until the end of the trial, as the Trial Chamber did, creates uncertainty which can be a source of potential prejudice to the Defence.[2] While the Appeals Chamber considers that it would have been preferable for the Trial Chamber to rule on the Defence objections in a timely fashion to ensure clarity on the facts underpinning the charges on the basis of which it considered it could hold the accused responsible, it notes that Ntahobali, again, fails to substantiate his allegation of prejudice.

[1] See Trial Judgement, para. 97.

[2] See, e.g., Ntakirutimana Appeal Judgement, para. 28, referring to Kupreškić et al. Appeal Judgement, paras. 110, 119.

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