Hearsay

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

1307. […] The Appeals Chamber recalls that a trial chamber has the discretion to rely on hearsay evidence.[1] It is settled that the weight and probative value to be afforded to hearsay evidence will ultimately depend upon “the infinitely variable circumstances which surround hearsay evidence”.[2] […]

[1]           See supra, note 3687.

[2]           Karera Appeal Judgement, para. 39. See Kalimanzira Appeal Judgement, para. 96.

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Notion(s) Filing Case
Decision on Admissibility of Prosecution Investigator Evidence - 30.09.2002 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.2)

In paragraph 18 the Appeals Chamber recalled its previous decisions regarding hearsay evidence, i.e. Prosecutor v. Zlatko Aleksovski, IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision”); Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000; and Prosecutor v. Stanislav Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002 (“Galić Decision”). The Appeals Chamber continued as follows:

18. […] [T]here is nothing in the Galić Decision which prevents a written statement given by prospective witnesses to OTP investigators or others for the purposes of legal proceedings being received in evidence notwithstanding its non-compliance with Rule 92bis – (i) where there has been no objection taken to it, or (ii) where it has otherwise become admissible – where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence.[1]

[…]

21. […] Whether it is appropriate in the particular case for [summarising evidence (the summarising of material which is relevant to the issues of the case)] to be admitted will depend upon the circumstances of that case.  If the material being summarised is uncontroversial, there will clearly be a considerable saving of time if that material is summarised either in a document or by one witness rather than given by many witnesses.  In every case, the basic issue is whether the material being summarised would itself be admissible.  A summary made by one person of material provided by another person is necessarily hearsay evidence in character.  The 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.  […]

22. Where the material summarised consists of statements made by others (other than written statements by prospective factual witnesses for the purposes of legal proceedings), so that the material summarised would be admissible pursuant to Rule 89(C), the summary still consists of hearsay evidence of those statements made by others, and the reliability of the statements made by those other persons (which are themselves hearsay) is relevant to the admissibility of the summary.  As stated in the Aleksovski Decision […],[2] the Trial Chamber must consider whether the summary is “first-hand” hearsay (that is, whether the persons who made the statements summarised personally saw or heard the events recorded in their statements), and whether the absence of the opportunity to cross-examine those persons affects the reliability of their statements. […] [T]he opportunity to cross-examine the person who summarised those statements does not overcome the absence of the opportunity to cross-examine the persons who made them.  In different cases, of course, the statements may contain their own indicia of reliability which does overcome the absence of that opportunity.

23. The Trial Chamber must also be satisfied as to the reliability of the method by which those statements have been summarised.  This is an issue which can be tested by the cross-examination of the person who made the summary.  The fact that the summary has been prepared for the purposes of the particular litigation may be relevant to whether it should be admitted, but [...] it would be quite wrong to suggest that such a summary is ipso facto unreliable. [...]

[RULE 92bis OF THE ICTY’S RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 13 SEPTEMBER 2006.]

[1]    In order to avoid overloading the exhibits, it has become common practice for the prosecution to concede orally that the witness statement includes the passage which the Defence asserts is inconsistent.  The transcript of that concession is a sufficient record of that statement, and the issue as to whether there is in fact an inconsistency is left to the Trial Chamber.

[2]    Aleksovski Decision, par 15.

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ICTR Rule Rule 89(C);
Rule 92bis
ICTY Rule Rule 89(C);
Rule 92bis
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

77. […] The Appeals Chamber recalls that the Trial Chamber has the discretion to cautiously consider and rely on hearsay evidence.[1] […]

[1] Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 831. See also Muvunyi I Appeal Judgement, para. 70; Ndindabahizi Appeal Judgement, para. 115; Gacumbitsi Appeal Judgement, para. 115; Rutaganda Appeal Judgement, para. 34.

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Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

34. With regard to hearsay evidence, it should be pointed out that this is not inadmissible. The Trial Chamber has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case, in accordance with the provisions of Rule 89 of the Rules.

35. The Appeals Chamber observes that in the instant case, as in Akayesu, some of Rutaganda’s grounds of appeal concern the admission of hearsay evidence in the form of live testimony by witnesses on events which they had not witnessed personally. The Appeals Chamber concurs with the analysis made by the Appeals Chamber in the Akayesu Appeal Judgement[2] wherein it was held that when a witness testifies, their evidence is admitted in that, in the absence of timely objection, it becomes part of the trial record, as reflected in the transcripts, and that the main safeguard applicable to the reliability of the evidence in this case is the preservation of the right to cross-examine the witness on the hearsay evidence which has been called into question.[3] The Appeals Chamber also holds that in these circumstances, although the decision will always depend on the facts of the case, it is unlikely, considering the stage of the proceedings and, in particular, in the absence of any objection, that a Trial Chamber would find that the live testimony of a witness it had just heard, was so lacking in terms of indicia of reliability as to be inadmissible.

See also para. 150. At para. 153, the Appeals Chamber recalled that “the inclusion of witness statements containing hearsay evidence in the trial record does not ipso facto entail one conclusion or another as to their reliability or probative value.” See also paras. 207, 265, 311.

[1] Akayesu Appeal Judgement, para. 288.

[2] Ibid, para. 287.

[3] This right is recorded under Article 20(4)(e) of the Statute which provides that a person against whom a charge has been brought shall be entitled to “examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her” and under Rule 85(B) of the Rules which provides, inter alia, that: “examination-in-chief, cross-examination and re-examination shall be allowed in each case.”

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ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

509. The Appeals Chamber recalls first that it is settled jurisprudence that hearsay evidence is admissible as long as it is of probative value,[1] and that it is for Appellant Nahimana to demonstrate that no reasonable trier of fact would have taken this evidence into account because it was second-degree hearsay evidence,[2] which he has failed to do. […]

[1] See references mentioned supra, footnote 521.

[2] Appellant Nahimana claimed that it was third-degree hearsay. The Appeals Chamber disagrees. If Manzi Sudi Fahdi had appeared to confirm the death of his children before the Tribunal, his testimony would not have constituted hearsay. Since the information was given by Manzi Sudi Fahdi to the Prosecution investigators, who then reported it to Expert Witness Chrétien, it is only second-degree hearsay.

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Notion(s) Filing Case
Decision on Admissibility of Evidence - 16.02.1999 ALEKSOVSKI Zlatko
(IT-95-14/1-AR73)

15. It is well settled in the practice of the Tribunal that hearsay evidence is admissible. Thus relevant out of court statements which a Trial Chamber considers probative are admissible under Rule 89(C). […] Trial Chambers have a broad discretion under Rule 89(C) to admit relevant hearsay evidence. Since such evidence is admitted to prove the truth of its contents,[1] a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose;[2] or, as Judge Stephen described it, the probative value of a hearsay statement will depend upon the context and character of the evidence in question.[3] The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is "first-hand" or more removed, are also relevant to the probative value of the evidence.[4] The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.[5]

[1] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996, at paras. 15-19; Prosecutor v. Blaškić, Case No. IT-95-14-T, 21 Jan. 1998, at para. 10.

[2] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996, at paras. 15-19.

[3] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996 at p. 3 of Judge Stephen’s concurring opinion.

[4] Prosecutor v. Blaškić, Case No. IT-95-14-T, 21 Jan. 1998, at para. 12.

[5] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996 at pp. 2-3 of Judge Stephen’s concurring opinion.

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ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

226. The Appeals Chamber also reiterates that hearsay evidence from an expert witness is admissible as long as it has probative value and remains within the proper purview of expert evidence.[1] Witness Des Forges provided testimony as an expert on, inter alia, the historical and political developments leading up to the genocide.[2] The Appeals Chamber considers that her testimony on the civil defence system fell within the ambit of her professional expertise on the historical and political framework of the crimes committed in 1994 in Rwanda. […] Further, as is usual for the establishment of historical facts, Witness Des Forges relied on a variety of sources for her conclusions.[3] This may include hearsay information.

[1] See Nahimana et al. Appeal Judgement, para. 509. The Appeals Chamber recalls that the role of expert witnesses is to assist the Trial Chamber in its assessment of the evidence before it, and not to testify on disputed facts as would ordinary witnesses. See idem.

[2] See Alison Des Forges, T. 17 September 2002, 24 September 2002, 25 September 2002, 18 November 2002, 19 November 2002. See also Exhibit P2A (Expert Report of Alison Des Forges), confidential.

[3] See Exhibit P2A (Expert Report of Alison Des Forges), confidential.

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Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

96. […] The Appeals Chamber further recalls that “[a]] Trial Chamber has the discretion to cautiously consider hearsay evidence and has the discretion to rely on it.”[1] However, “the weight and probative value to be afforded to that evidence will usually be less than that accorded to the evidence of a witness who has given it under oath and who has been cross-examined.”[2]

[…]

199. The Appeals Chamber recalls that caution is warranted before basing convictions on hearsay evidence.[3]

[1] Karera Appeal Judgement, para. 39 (internal citations omitted).

[2] Karera Appeal Judgement, para. 39.

[3] See supra Section III.E.2 (Alleged Errors in the Trial Chamber’s Consideration of Witnesses’ Credibility and Provision of Identification Evidence).

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

303. At the outset, the Appeals Chamber recalls that hearsay evidence is in principle admissible,[1] although in assessing its probative value, the surrounding circumstances must be considered.[2] […]

387. […] The Appeals Chamber recalls that where the source of identification evidence is hearsay, a trial chamber must duly consider the relevant criteria in assessing the weight or the probative value to be accorded to this evidence.[3] The Trial Chamber erred in failing to do so.

577. […] The Appeals Chamber recalls that a Trial Chamber has “wide discretion as to the assessment of the weight and probative value of the hearsay evidence alongside with other factors relevant to the evaluation of the totality of the evidence.”[4] However, caution is warranted in the consideration of hearsay evidence, particularly where such evidence constitutes the primary basis for the identification of an accused. Relevant criteria in assessing the weight or the probative value to be accorded to hearsay evidence are the source of the information,[5] the precise character of the information,[6] and corroborative evidence.[7]

[1] Blaškić Appeal Judgement, para. 656, fn. 1374.

[2] See Haradinaj et al. Appeal Judgement, paras 85-86.

[3] Karera Appeal Judgement, para. 39 and references cited therein.

[4] Milošević Appeal Judgement, fn. 731. See also Nahimana et al. Appeal Judgement, para. 831; Karera Appeal Judgement, para. 39; Naletilić and Martinović Appeal Judgement, para. 217.

[5] Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 831; Ndindabahizi Appeal Judgement, para. 115; Semanza Appeal Judgement, para. 159; Rutaganda Appeal Judgement, paras 154, 156, 159.

[6] Karera Appeal Judgement, para. 39; Ndindabahizi Appeal Judgement, para. 115.

[7] Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 473; Gacumbitsi Appeal Judgement, para. 115.

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

27. [...] Hearsay evidence may be oral, as where a witness relates what someone else had told him out of court, or written, as when (for example) an official report written by someone who is not called as a witness is tendered in evidence.  Rule 89(C) clearly encompasses both these forms of hearsay evidence. [...]

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ICTR Rule Rule 89 ICTY Rule Rule 89
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1616.            The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence[1] and that trial chambers have the discretion to consider cautiously and rely on hearsay evidence.[2] The Appeals Chamber further recalls that a witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence; however, contrary to what Ntahobali suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence.[3] In the present case, the Trial Chamber correctly recalled generally the law concerning reliance on hearsay evidence in an introductory section of the Trial Judgement and specifically when considering such evidence with respect to Ntahobali’s identification at the prefectoral office.[4] The Trial Chamber considered the hearsay nature of various witnesses’ identifications of Ntahobali at the prefectoral office and concluded that they were reliable for a variety of reasons.[5] Ntahobali’s general contentions concerning the Trial Chamber’s use of hearsay, which do not discuss this analysis,[6] fail to demonstrate that the Trial Chamber erred in this regard.

See also fn. 5590.

[1] Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para. 96. See also Musema Appeal Judgement, para. 90.

[2] See, e.g., Nizeyimana Appeal Judgement, para. 95; Munyakazi Appeal Judgement, para. 77; Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39.

[3] Lukić and Lukić Appeal Judgement, para. 118; Renzaho Appeal Judgement, para. 530. Cf. Kayishema and Ruzindana Appeal Judgement, paras. 327, 328.

[4] Trial Judgement, paras. 168, 169, 2638, 2679.

[5] Trial Judgement, paras. 2633, 2638, 2678-2680.

[6] See Ntahobali Appeal Brief, paras. 716-720.

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