Page 4617
1 Friday, 28th November 1997
2 (9.30 am)
3 JUDGE JORDA: Please be seated. Mr. Registrar, could you
4 have the accused brought in, please?
5 (Accused brought in)
6 JUDGE JORDA: Good morning, everyone is all set, everyone
7 can hear me? The accused can hear me as well? Can you
8 hear me, General Blaskic as well? Fine. So we are here
9 for the first part of this morning's work.
10 This is an open session, relative to two motions,
11 one of them filed on 17th November by the Defence. This
12 is for reconsideration of the decisions taken by the
13 Chamber on the matter of admissibility of authentic
14 exculpatory evidence. There have been several documents
15 relating to that -- that was rather on 5th November
16 there, the Prosecution's response, then 30th September.
17 So there was a matter of admissibility there of the
18 hearsay testimony, and that also gave rise to several
19 documents, the latest one being quite recent.
20 Mr. Registrar, my translation does not have a date on
21 it.
22 THE INTERPRETER: I apologise, the first date was September
23 rather than November.
24 JUDGE JORDA: At all events, this latest one seems very
25 recent indeed. There has been a third motion issued
Page 4618
1 very recently, this is from the Prosecutor, this motion
2 seeks clarification of an order in which we required
3 advanced disclosure of the names of witnesses, this was
4 in advance of witnesses appearing in the trial. I do
5 not know if it is a matter of language, of translation
6 or whether it is a substantive matter, but at all events
7 we will not be addressing that now, as we said the other
8 day, because we do not have any reply on the part of the
9 Defence. I am sure that will be forthcoming soon, and
10 in December I am sure we will have occasion to address
11 that.
12 If there are no preliminary comments, I would
13 suggest we move right on, that we ask Mr. Hayman to
14 indicate briefly what he has to say with regard to the
15 motion of 17th September, and then the other documents
16 that the Defence have submitted and, of course, after
17 that we will hear the Prosecution. So it is Mr. Hayman,
18 is it? Please proceed, sir.
19 MR. HAYMAN: Thank you, Mr. President, your Honours, learned
20 counsel. Did your Honour indicate that you wished to
21 begin with the hearsay motion or the motion re
22 authentication?
23 JUDGE JORDA: No, I just took things in chronological
24 order. I thought the first motion dated from
25 17th September, so that is one way of tackling the
Page 4619
1 issue, but if you prefer beginning with hearsay, we
2 could do that as well, but I thought it would be the
3 motion for reconsideration of the ruling for exculpatory
4 documentary evidence.
5 MR. HAYMAN: If I could begin with the hearsay matter, your
6 Honour, there is maybe a certain logical order to it.
7 JUDGE JORDA: If you are introducing a point of logic, let
8 me consult fellow judges. No problem with us beginning
9 with the hearsay matter, so let us follow logic. If
10 there is no objection on the part of the Prosecution?
11 Fine Mr. Hayman, you have chosen the arm, so please go
12 right ahead. We will begin with hearsay then.
13 MR. HAYMAN: Thank you, Mr. President. I would like to ask
14 three questions and then briefly try and answer them
15 with respect to this motion.
16 The first question, it seems to the Defence, is:
17 is there a limit on the use and method of presentation
18 of hearsay or derivative evidence before this Tribunal?
19 Second: what sources of authority might the
20 Tribunal look to to answer that question?
21 Third: what specific rule or rules does the
22 Defence urge this Trial Chamber to adopt with respect to
23 the use and method of presentation for hearsay or
24 derivative evidence?
25 With respect to the first question, "is there a
Page 4620
1 limit on the use and method of presentation of hearsay
2 evidence before this Tribunal", the Prosecutor's
3 position, I think, fairly can be summarised that they
4 maintain all questions relating to hearsay and
5 derivative evidence go to weight and neither
6 admissibility nor the form of presentation; that is
7 hearsay evidence should simply come in, the way all
8 other evidence comes in, and the Trial Chamber will sort
9 it out and give each item of evidence the appropriate
10 weight.
11 While we the Defence do not doubt the great skills
12 and talents of this Trial Chamber in sorting evidence
13 and assigning weight, we suggest there are limits to the
14 method of presentation of hearsay, because no one,
15 including your learned honours, can sort and evaluate
16 evidence without the proper identifying information
17 concerning that evidence and the circumstances which
18 gave rise to that evidence.
19 We also maintain there must be a limit on the
20 substantive use of hearsay because, among other things,
21 of the constraints contained in Article 21(4)(e), which
22 assures the accused the right to cross-examine all
23 witnesses against him. No Trial Chamber, with all due
24 respect to Trial Chamber II, which has issued a written
25 ruling some time ago in the matter of hearsay, still no
Page 4621
1 Trial Chamber has clearly articulated, we believe, what
2 the limits on the use and method of presentation of
3 hearsay are before this Tribunal.
4 What Trial Chamber II has said is that a Trial
5 Chamber should look at a hearsay statement, and the
6 content of the statement and the circumstances in which
7 it was made in order to determine sufficient reliability
8 to make the statement probative evidence which is
9 necessary for the Tribunal to admit it under Rule 89(C),
10 which states that a Trial Chamber may admit evidence
11 found to have probative value. The corollary, of
12 course, is evidence without probative value should be
13 excluded because we are all wasting our time admitting
14 and studying and evaluating evidence that is not
15 probative.
16 We are not suggesting either a common law nor a
17 civil law approach to hearsay. We believe that the
18 specific procedures and practices before the Tribunal
19 must be looked to in order to find what regulation of
20 the use of hearsay is appropriate before this court.
21 Question two: to what authorities or sources
22 should this Tribunal look for guidance? There are
23 certainly existing bodies of national and international
24 law. Common law hearsay rules are well known, but
25 I will not dwell on them. I simply note that at least
Page 4622
1 in my jurisdiction, the United States, all hearsay rules
2 apply equally with respect to jury proceedings and court
3 proceedings or proceedings tried before professional
4 judges. There is no distinction between the hearsay
5 rules in my system between those two types of
6 proceedings.
7 The civil law approach is more interesting for me
8 as a common law lawyer, certainly stimulating, and a
9 dangerous topic for me to speak of given the company in
10 this courtroom, but I will try. First, the law of the
11 former Yugoslavia is of some importance, I think, and
12 under the 1976 Yugoslav law on criminal procedure, in
13 section 2.32(2), a witness is required to state the
14 source of his or her evidence, they are required to
15 identify if the testimony they are giving, in whole or
16 in part, is based on derivative or hearsay testimony,
17 and if it is derivative or hearsay in nature, the
18 testimony to be sure is admissible, but it is generally
19 suspect within the Yugoslav -- former Yugoslav law on
20 criminal procedure.
21 More vigorous limits on the use of hearsay appear
22 in the European Human Rights Convention in section
23 6(3)(D), which assures the accused the right to examine
24 witnesses against him. In this regard I note that this
25 section of the Convention is indeed very similar to
Page 4623
1 Article 21(4)(e) of the Tribunal Statute. So there is
2 guidance, but it is not clear. There is room for
3 interpretation and the Defence believes that this Trial
4 Chamber and this Tribunal indeed should be a model for
5 future international criminal law jurisprudence in this
6 area. Where else can the Tribunal look? We submit that
7 we should all look to sound fact-finding procedures in
8 light of the unique procedures used by this Tribunal.
9 The Prosecution urges that the first rule, if you
10 will, if you can call it a rule, would be that a witness
11 need not state with clarity whether their evidence is
12 direct, that is percipient, or whether it is derivative,
13 that is based on either oral hearsay or documents. To
14 date, no rule has been enforced in this courtroom
15 requiring what we would call a foundation to be laid,
16 where evidence is derivative; that is the witnesses
17 state that the testimony they are giving is derivative
18 and how they came about that evidence. Indeed, we have
19 seen in the Prosecutor's presentation that directs and
20 derivative evidence have been totally intermixed with
21 virtually no effort to distinguish.
22 I can recall for the court the testimony of
23 Abdulah Ahmic, not controversial testimony, I think,
24 that is not my point, I am not challenging the
25 substantive testimony, but we will recall, if the court
Page 4624
1 will, the 24 or 29 homes in the area of Ahmici where
2 Mr. Ahmic identified the victims by name and said they
3 were all killed on the 16th or whatever of April 1993.
4 On his direct examination, there was no foundation laid
5 for that testimony. In the cross-examination of my
6 colleague and co-counsel, it was revealed that Mr. Ahmic
7 gained that information not from being on the scene, as
8 you will recall he was hiding in a canal or a stream at
9 the time, but from reading a newspaper after he arrived
10 in Zenica.
11 There are a number of comments one could make
12 about that, but the basic comment is this court can read
13 newspaper articles as well as anyone else, better,
14 I would submit, and it is a more efficient and
15 appropriate way for the court to obtain that type of
16 information. But in any event, we think that a
17 foundation should be laid and that the record should be
18 clear as to where evidence is coming from and that the
19 burden for that, and I will get to this in a moment,
20 lies on the party putting that evidence forward. It is
21 not sufficient to simply say, "it is a matter for
22 cross-examination".
23 Why, though, is, in terms of the integrity of the
24 fact-finding processes of this Tribunal, why should
25 hearsay or derivative evidence be treated any
Page 4625
1 differently in terms of process? Well, several things
2 come to mind. One is the statements of the declarant,
3 the person making the out of court statement, were not
4 made under oath. The oath is an important feature of
5 any court proceedings, and here out of court statements
6 are not under oath. They are frequently casual
7 statements, they may be statements made in a humorous
8 light, they may be statements made under duress;
9 whatever they are, they are not under oath.
10 Second, out of court statements by a declarant are
11 made outside of the presence of your Honours, and you
12 are denied the opportunity to observe the demeanour of
13 the declarant.
14 Third, the court is denied the opportunity to
15 examine the declarant and put any clarifying questions
16 that it may have to the declarant.
17 Lastly fourth, and here I allude to the European
18 Human Rights Convention, as well as Article 21 of this
19 Tribunal's own Statute, where out of court statements
20 are admitted, the accused through his counsel is denied
21 the opportunity to cross-examine the declarant --
22 keeping in mind, of course, that the witness, if the
23 witness is repeating out of court statements of another,
24 the witness is not a witness to the matters being
25 related, but simply a messenger, because the witness,
Page 4626
1 the person who saw or heard and related verbally the
2 contents of what he or she saw or heard is not here,
3 they are somewhere else. They are not here to be
4 examined, challenged, questioned, observed as to matters
5 such as possible bias, ability to perceive the event or
6 even possible fabrication.
7 One reaches an extreme with respect to these
8 problems where the out of court declarant is not even
9 identified in the narrative being given by the witness,
10 which we have named so-called "anonymous hearsay". In
11 that circumstance, where the declarant is not even
12 identified, the accused, through his counsel, we cannot
13 investigate this speaker, this declarant. We cannot
14 even attempt coherently to impeach the statements of the
15 out of court declarant through other evidence or
16 testimony because we do not know the identity of that
17 declarant.
18 Which brings me to my third and last question on
19 this matter: what rule or rules in concrete terms does
20 the Defence urge this Trial Chamber to consider and, if
21 it finds it appropriate, adopt? First, we feel strongly
22 there should be a rule of procedure governing the
23 presentation of hearsay or derivative evidence. The
24 court and the parties must be informed when hearsay
25 evidence is given. It should not be mixed,
Page 4627
1 inadvertently concealed or hidden in and among other
2 evidence. A foundation needs to be laid for it, and it
3 is not sufficient to leave the "clarification" of
4 whether evidence is direct or hearsay to
5 cross-examination. Number one, I think that procedure
6 is not fair to the party conducting the
7 cross-examination, whether it is the accused or the
8 Prosecutor, and also as we have seen the need on the
9 part of the cross-examining party to go through a
10 witness's narrative and determine what is direct and
11 what is based on hearsay, and chase down all the
12 threads, it takes an incredibly long period of time to
13 do so, it is redundant, it is wasteful and it need not
14 be engaged in if there is a basic rule that a foundation
15 should be laid for hearsay testimony.
16 In this regard, what do the court and the parties
17 need to know at the time hearsay evidence is admitted or
18 considered? One, is the evidence hearsay? Is it direct
19 or is it derivative?
20 Two, if it is hearsay, who is the ultimate
21 declarant? That is, who is the out of court speaker,
22 and if it is double or triple hearsay, who are the
23 intermediate declarants or messengers that were involved
24 in the chain of statements which the witness in court is
25 recounting.
Page 4628
1 Third, what is the content of the statement? That
2 is, a clear statement of, "I was told X", not something
3 more general, but a clear statement of the content of
4 the out of court statement, so that it is not confused
5 and mixed with the witness's own opinions and
6 observations.
7 Fourth, we submit the court and the parties need
8 to know, to the extent it is known by the witness, when
9 and under what circumstances was the statement given.
10 Ideally, this will include some time and place and even
11 who else was present, but that may not be known in all
12 circumstances, and we are not suggesting a dogmatic or
13 doctrinaire rule in this regard, it should be a flexible
14 and practical rule.
15 What we are urging in terms of rule of process is
16 a good trial practice in any system. It goes to
17 establishing a foundation for a witness's testimony and
18 it will contribute to the integrity of the fact-finding
19 process before this Tribunal. If the Trial Chamber were
20 inclined to adopt this kind of rule, how might it be
21 implemented? Of course, that is a matter up to
22 your Honours, but we modestly propose that one method
23 would be when a witness is giving their initial
24 narrative, they be told, "please tell us what you saw
25 with your own eyes, what you experienced, and if you are
Page 4629
1 relating something that you heard from another person,
2 tell us that that was the case, so we will know". Then
3 the burden should be placed on the parties, when they
4 follow up on any derivative or hearsay testimony, to lay
5 a more specific foundation, for example, "madam, did you
6 have a conversation? When was it? What were you
7 told?". Not lengthy questions, not time consuming, but
8 they will contribute to the clarity of the fact-finding
9 process in this case and indeed other cases if adopted
10 in other matters.
11 If adopted, this kind of a procedural rule would
12 enable the court to identify any hearsay that it
13 believes lacks sufficient indicia of reliability to be
14 admitted. Even if the court declines to have any
15 threshold requirement for admissibility, this type of a
16 procedure would enable the court to have the facts, the
17 tools that it needs to give a proper weight to hearsay
18 evidence in your deliberations, which is critical to our
19 client and our client's interests. Without that
20 identifying information, how can any tryer of fact give
21 proper weight to derivative evidence? It will serve to
22 focus, if adopted, the witness's testimony on direct
23 examination on the matters that they were percipient to
24 and we believe would result in more efficient direct
25 examinations, and it will clearly shorten
Page 4630
1 cross-examination because the unfair burden on the
2 cross-examining party of revisiting all the facts
3 narrated and trying to sort out what was direct and what
4 was derivative will be, if not totally lifted, certainly
5 ameliorated.
6 There is though a second rule we urge this
7 Tribunal to consider, and that is not a rule of
8 procedure, but a rule of substance. That would be a
9 substantive rule that recognises to give meaningful
10 effect to Article 21(4)(e) and Rule 89(C). There will
11 be occasions when this court should exclude material
12 hearsay statements whose admission would violate either
13 one or both of these rules and what I mean is under Rule
14 89(C), if a statement does not have sufficient
15 reliability to be probative it should be excluded and
16 under Article 21, if admission of hearsay testimony
17 would violate the accused's right to cross-examine the
18 witness, the source, if you will (although that is not a
19 word that has specific meaning, as we will see later
20 this morning), that the court should have the power, we
21 should recognise the power of the court to exclude
22 hearsay statements under either or both of those rules,
23 and I submit the court has already recognised the
24 validity of exclusion of hearsay statements under
25 Article 21 when it excluded the letter from President
Page 4631
1 Izetbegovic that was proffered by the Prosecution in the
2 very first days of this case. I submit that letter was
3 excluded not because it lacked reliability under Rule
4 89(C), we had no reason to doubt it was not a letter
5 from President Izetbegovic, but it was excluded under
6 Article 21, because to deny the accused any ability to
7 cross-examine the declarant, the author of that letter,
8 would have been wrong.
9 So we urge the court to recognise that both of
10 these grounds can be, in appropriate circumstances, when
11 found in the court's exercise of its discretion,
12 legitimate grounds for excluding certain hearsay
13 evidence. We are not seeking that the court scrutinise
14 or catalogue hypothetical situations at all, we simply
15 think that recognition of these two rules, one
16 procedural and one substantive, will facilitate
17 addressing this issue in the days and months ahead.
18 Mr. President, your Honours, those are my comments
19 with respect to the hearsay matter. Thank you.
20 JUDGE JORDA: Thank you, Mr. Hayman. Well, maybe you could
21 add some points of clarification after we have heard the
22 arguments from the Office of the Prosecution.
23 Mr. Harmon, I assume?
24 MR. HARMON: Yes, good morning, Mr. President, good morning,
25 counsel.
Page 4632
1 During the course of this trial, the Defence has
2 initially urged the Trial Chamber to prohibit the
3 admission of hearsay evidence and the Trial Chamber
4 rejected this position. In its present motion, the
5 Defence makes a standing objection to the admission of
6 hearsay evidence without two requirements, the first
7 being a foundation for such hearsay and the second being
8 a judicial finding, I repeat a judicial finding of the
9 trustworthiness of the out of court statement in
10 question.
11 The Defence further contends that there can be no
12 evaluation of trustworthiness of hearsay statements
13 unless a number of conditions are met. The first is
14 that the court declarant, the out of court declarant is
15 identified, and the time, the place, the circumstances
16 and the content of the statement are specified by the
17 witness.
18 The Defence cites in its papers as an example of
19 the type of hearsay evidence it seeks to exclude the
20 testimony of Dr Fuad Zeco, who testified that while he
21 was detained at the veterinary station and at the
22 Dubravica school that multiple unidentified detainees
23 identified the locations where they were forced by the
24 HVO to dig trenches. The Defence seeks to impose
25 conditions akin to those in a common law system on the
Page 4633
1 Trial Chamber's ability to receive hearsay evidence and
2 to evaluate hearsay evidence. Neither the Rules of the
3 Tribunal nor the decision in the Tadic case required the
4 conditions that the Defence now seeks to impose on the
5 Trial Chamber.
6 This Trial Chamber is an unique institution, it
7 has its own rules. The uniqueness of the institution
8 and the rules have been repeatedly acknowledged and are
9 in fact acknowledged in the rules themselves, where they
10 say the Chambers are not bound by national rules of
11 evidence and any efforts by the Defence to impose upon
12 the Chamber common law rules and procedures should be
13 rejected.
14 The rule of evidence that is applicable to the
15 reception of evidence by the Trial Chamber is Rule 89,
16 and the relevant subpart of that Rule is 89(C), which
17 states:
18 "A Chamber may admit any relevant evidence that it
19 deems to have probative value."
20 The two requirements in 89(C) that are set forth
21 are (i) that the evidence be relevant and (ii) that it
22 have probative value. The rule does not expressly
23 require any specific type of foundation to be laid, nor
24 does it require a judicial finding of trustworthiness
25 for any particular type of evidence that it hears and
Page 4634
1 receives.
2 The Tadic decision, Mr. President and your Honours,
3 was an unanimous decision and it recognised that
4 reliability was a component of whether a piece of
5 evidence had probative value. The decision also said
6 that the Trial Chamber should pay attention to indicia
7 of reliability, such as whether a statement is
8 voluntary, truthful and trustworthy. The Trial Chamber
9 in the Tadic decision suggested that the judges who are
10 hearing hearsay evidence should consider the
11 circumstances under which the evidence arose and the
12 content of the statement, and we fully agree with the
13 decision in this respect.
14 In this case, Mr. President and your Honours, all
15 of the judges in this chamber and in other chambers of
16 the Tribunal are judges who are able to determine as
17 a result of their experience and their training whether
18 evidence is reliability and are able to determine what
19 weight should be given to the particular piece of
20 evidence. In making its determination of whether
21 certain hearsay is reliable, the court may consider,
22 among other factors, but not be bound by any particular
23 factor, the demeanour and truthfulness of a witness, the
24 extent to which a witness has any biases, the extent to
25 which the testimony, the hearsay testimony that the
Page 4635
1 witness is relating has been corroborated in part or in
2 whole by other witnesses, the totality of the evidence
3 in the course of the trial.
4 For example, Mr. President and your Honours, a
5 piece of hearsay evidence standing alone may appear to
6 be of dubious reliability, but when assessed in context
7 of all of the other evidence heard in the course of the
8 trial, it may in the minds of the tryers of fact be
9 assessed to be reliable in the final analysis. The
10 contrary is also true. A piece of hearsay evidence that
11 appears initially to be reliable at the outset may after
12 listening to the totality of the evidence become quite
13 obviously unreliable, or appear to be unreliable. In
14 that regard, Mr. President, Rule 89(D) is critical to the
15 issue raised by the Defence in this case. 89(D) states:
16 "A Trial Chamber may exclude evidence if its
17 probative value is substantially outweighed by the need
18 to ensure a fair trial."
19 Paragraph 19 of the Tadic opinion on hearsay
20 states, and I quote:
21 "Moreover, Sub-rule 89(D) provides further
22 protection against the prejudice to the Defence for
23 evidence that has been admitted as relevant and having
24 probative value it may later be excluded. Pursuant to
25 this Sub-rule, the trial judges have the opportunity to
Page 4636
1 consider the evidence, place it in the context of the
2 trial and then exclude it if it is substantially
3 outweighed by the need to ensure a fair trial."
4 Turning to the example cited by the Defence, the
5 testimony of Dr Fuad Zeco about being informed by
6 unidentified civilians that they were being forced to
7 dig trenches at numerous locations, it was clearly
8 hearsay. It has been received by this Trial Chamber.
9 Should it be excluded? The Prosecutor would
10 respectfully submit that it should not, for the
11 following reasons. The Trial Chamber heard from
12 Dr Zeco, a gentleman who was the local veterinarian in
13 Vitez, it had an opportunity to observe him, to assess
14 his demeanour and any possible biases he could have when
15 he identified nine locations where civilians were taken
16 by the HVO to dig trenches.
17 The Trial Chamber also heard from Dr Zeco that
18 during his period of captivity in both the veterinary
19 station and in the Dubravica school, he had an unique
20 opportunity to hear from fellow captives who had been
21 taken to dig trenches. While in captivity,
22 Mr. President, he testified that it became clear to him
23 that many of the Muslim men who were being taken to dig
24 trenches were being repeatedly taken out to dig trenches
25 and they were bordering on, and in many cases were
Page 4637
1 exhausted and as a result of that, he and two other men
2 went to the commander of the Dubravica school, the HVO
3 commander, and suggested a procedure whereby the Muslims
4 themselves would select and identify the men who were
5 needed to be taken out to dig trenches. That would
6 essentially spread the pain more equally.
7 You have heard, Mr. President, from other
8 witnesses -- from another witness that the Croat
9 commander came into the Dubravica school and at one
10 point requested that the Muslims identify men who were
11 needed to dig trenches. That corroborated what Dr Zeco
12 had to say. The Chamber has also heard from various
13 civilians themselves who were taken to various different
14 locations to dig trenches, and the court has heard that
15 civilians were taken on a daily basis by the HVO from
16 the Dubravica school, from the cinema, from the vet
17 station to a variety of locations where trenches were
18 dug.
19 The court will also hear additional evidence from
20 other civilians who were forced to dig trenches and we
21 will present evidence in the course of this trial about
22 the routine HVO practice of using civilians to dig
23 trenches in various locations.
24 Under the Defence proposal, Mr. President and
25 your Honours, Dr Zeco's testimony about locations where
Page 4638
1 these civilians were forced to dig trenches should be
2 rejected, because he could not identify, four years
3 later, the specific individuals who told him about those
4 particular locations. The fact that Dr Zeco could not
5 specifically name the individuals who told him that they
6 were forced to dig trenches at these locations in the
7 context and the circumstances of his captivity, in light
8 of the other evidence adduced during the trial, suggests
9 that the hearsay statement is reliable and should be
10 considered by this Trial Chamber. What weight the Trial
11 Chamber attaches to it is wholly within the judgement of
12 the Trial Chamber and we respect your ability to make
13 those determinations.
14 Mr. President, I have nothing further to add on
15 this particular point. Our brief is clear and our
16 positions are articulated in it. Thank you very much.
17 JUDGE JORDA: Thank you.
18 Mr. Hayman, would you like to reply to that,
19 without restating your arguments, just touching on the
20 points raised by the Prosecution? If you care to do so,
21 please proceed, sir.
22 MR. HAYMAN: Thank you, Mr. President. Just for a moment.
23 With respect to the evidence of Dr Zeco on this point,
24 if one looks at what the good doctor related, and
25 compares it to the testimony of the direct witnesses,
Page 4639
1 witnesses who had direct knowledge of trench digging, we
2 in fact will find, and the court will, if it is material
3 in its deliberations, that Dr Zeco's information was in
4 large part not reliable. He identified locations that
5 have not been identified otherwise through direct
6 witnesses, and indeed some of the locations he
7 identified as being the sites of trench digging are on
8 the wrong side of the front-line at the time. So if
9 those anonymous hearsay declarations were truly material
10 to this court's deliberations, and I think they will not
11 be by the end of the case, if they were, we submit the
12 court's reliance on those anonymous hearsay, out of
13 court statements which we cannot possibly impeach or
14 investigate those declarants because we do not know who
15 they are, it would be error to rely on those for a
16 material purpose in your deliberations.
17 It is not a real issue, because I do not think
18 those statements will be material, but consider another
19 example. Just last week, Lieutenant Colonel Watters
20 testified of the opinions of an interpreter who was
21 present at a scene, the only evidence adduced, I submit
22 to date in this case, that has any proffered connection
23 to the accused's state of mind, and it is the out of
24 court opinion statements of someone as to whom it has
25 not even been shown is unavailable to testify, him or
Page 4640
1 herself, in a legal sense. I think that is a shame,
2 your Honour, that that evidence is in the record in this
3 case under those circumstances.
4 What I did not hear the Prosecutor address, and
5 I think it is telling, is why should there not be a
6 foundation for hearsay? Why should this court not know
7 when hearsay evidence is being put in? Hearsay should
8 not be slipped in and interwoven with other evidence, it
9 should be there on the table for the court to see what
10 it is and treat it in the way it deems appropriate.
11 That is my response, your Honour.
12 JUDGE JORDA: You have done, Mr. Hayman?
13 MR. HAYMAN: Yes, your Honour.
14 JUDGE JORDA: Fine, let me look towards fellow judges.
15 Judge Riad, you have any questions or points you would
16 like to make?
17 JUDGE RIAD: Good morning, Mr. Hayman.
18 MR. HAYMAN: Good morning, your Honour.
19 JUDGE RIAD: Just for my knowledge, you referred to Yugoslav
20 law and I just wanted to know, do you have any more
21 specific details about how they considered hearsay
22 evidence?
23 MR. HAYMAN: I do not, your Honour. I know that a witness is
24 required to state his or her source, and that it is
25 admitted and that it is generally viewed as suspect, but
Page 4641
1 perhaps Mr. Nobilo, these sections are in his mother
2 tongue, perhaps he can shed more light on that, your
3 Honour.
4 MR. NOBILO: Good morning, your Honours. According to the
5 legal system I come from, hearsay evidence is accepted
6 only exceptionally, if the court is unable to reach the
7 source from whom the witness obtained the information,
8 because if that person has relevant knowledge, then he
9 is the suitable person to be called as a witness, rather
10 than someone else who heard it from him. In the event
11 that that is not possible, then the witness must
12 indicate with precision who he heard it from, under
13 which circumstances and all the other circumstances that
14 may be of assistance in assessing the truthfulness of
15 that evidence. That is the substance of the rules
16 regarding hearsay evidence in the legal system I come
17 from.
18 JUDGE RIAD: Thank you, Mr. Nobilo.
19 JUDGE JORDA: Judge Shahabuddeen?
20 JUDGE SHAHABUDDEEN: Mr. Hayman, I was very interested in
21 your arguments. Do I understand you to be taking this
22 position: you are not attacking the principle that
23 hearsay evidence is admissible, you are directing your
24 fire to the limits of admissibility of that type of
25 evidence?
Page 4642
1 MR. HAYMAN: Yes, your Honour, exactly.
2 JUDGE SHAHABUDDEEN: Indeed, when I look at Rule 89(C) of
3 the Rules of court, read with 89(A), I think there is a
4 fair implication there favouring the view that hearsay
5 is admissible. Then let us look at the Statute, Article
6 21(4)(e) to which you have correctly referred. On the
7 footing that hearsay is in principle admissible, should
8 the Tribunal construe the right of examination there as
9 not necessarily equivalent to a right of confrontation
10 with the source from which the hearsay evidence
11 originally flows; would that be a correct view?
12 MR. HAYMAN: Well, I think to the extent Article 21 is based,
13 it appears, on the European Human Rights Convention
14 section, we know first of all that the European human
15 rights court has interpreted that provision of the
16 Convention to convey a right of confrontation and
17 cross-examination, either in court or at some other
18 time, and where it were the principal evidence upon
19 which a criminal court relies is statements upon which
20 the accused has not been able to exercise that right of
21 confrontation, the convictions have been overturned, and
22 we have cited those cases.
23 I agree that under 21(4)(e) the term "witness" is
24 used, which raises the question, who is the witness? If
25 a witness comes into court and relates a conversation in
Page 4643
1 which they obtained all their pertinent testimony from
2 someone else, are they the witness, or are they a
3 messenger? To give real meaning to 21(4)(e), should the
4 court view the witness, the person really offering the
5 proof, as the person who saw the event, made the
6 statement which is been merely conveyed to the court.
7 Our position is certainly that there has to be
8 something more than simply a right to examine the
9 witness who is present, because if all hearsay comes in
10 and there is no other limitation, then every fact, every
11 bit of testimony could be brought to this court by
12 messengers, the accused would have no opportunity to
13 actually confront and cross-examine the persons whose
14 observations, opinions and so forth lay the foundation
15 and form the structure for the Prosecutor's case, and
16 that is not a role model for future successful
17 international criminal jurisprudence, with all due
18 respect.
19 JUDGE SHAHABUDDEEN: I thank you. Let us look at this
20 aspect. On the footing that hearsay is in principle
21 admissible, is there an unlimited right of confrontation
22 under Statute 21(4)(e) with the original source of the
23 evidence?
24 MR. HAYMAN: It is not clear, your Honour, from the Statute
25 or the Rules. I think the court would be prudent to
Page 4644
1 adopt a balancing test, where a good number of
2 observations, hearsay observations that do not form, if
3 you will, the crux of the case, do not go to key
4 elements, such as the only evidence admitted to date
5 that might tend to bear on the accused's state of mind,
6 those general observations, the court might well find as
7 a result of a balance there is no violation of Article
8 21(4)(e); right, but as to others, I think there would
9 be, so I agree, it is not an all or nothing venture.
10 JUDGE SHAHABUDDEEN: So you would not take your thesis as
11 far as to rely on Statute 21(4)(e) as designed entirely
12 to ensure a right of confrontation?
13 MR. HAYMAN: I agree, I think you must read it in light of
14 Rule 89.
15 JUDGE SHAHABUDDEEN: Because if you did that, there would be
16 difficulty reconciling a competence to admit hearsay
17 evidence with an unlimited right of confrontation, would
18 there not?
19 MR. HAYMAN: There is, and that takes you to reliability and
20 protecting the core rights of the accused to confront
21 important evidence against him.
22 JUDGE SHAHABUDDEEN: On that basis, that hearsay evidence is
23 in principle admissible, would you have any observation
24 on the proposition that what Statute 21(4)(e) is
25 designed to give to a party, I think the Defence in this
Page 4645
1 case, is a right to examine the witness in the box, and
2 through him to attack the sources of any hearsay
3 evidence which he produces, with a view to questioning
4 the reliability of those sources, and to assisting the
5 Tribunal to place a proper evaluation on those sources.
6 MR. HAYMAN: I think that would be a dangerous
7 interpretation, and I think if that were the
8 interpretation, then this court should have admitted the
9 letter from President Izetbegovic, because Rule 21(4)(e)
10 would not have excluded it. I think 21(4)(e) has to
11 have something more than simply the right to examine the
12 messenger in the case of hearsay and derivative
13 evidence.
14 JUDGE SHAHABUDDEEN: Either there is an open-ended right of
15 confrontation or, if that right is a limited one, then
16 the right conferred by 21(4)(e) must be directed to
17 examining the witness in the box and attacking his
18 sources of information with a view to demonstrating to
19 the court that the hearsay evidence which he has given
20 is either not reliable or not probative. Is that a
21 possible reading, do you think?
22 MR. HAYMAN: Your interpretation, your Honour, is a clear
23 one. You take from the text a clear and strong
24 interpretation, but I would respectfully submit that if
25 the Prosecutor, if they brought in summary witnesses, if
Page 4646
1 they brought in their investigators to recount the
2 horrors and the tragedies we have heard of and did not
3 bring in original witnesses, particularly with no
4 showing of unavailability of those original source
5 witnesses, the court would put its foot down under Rule
6 21(4)(e) and say, "no, it is inappropriate, you are
7 treading on this man's basic rights under our Statute,
8 under the European Human Rights Convention and under
9 general principles in many national law systems".
10 JUDGE SHAHABUDDEEN: Last question. What I have a slight
11 difficulty with in your very interesting submissions is
12 this: if you concede that hearsay evidence is
13 admissible, is that wholly reconcilable with the view
14 that the witness referred to in 21(4)(e) of the Statute
15 includes the original source of the hearsay evidence and
16 is not limited to the person testifying before the
17 court?
18 MR. HAYMAN: I take your question as: if Rule 89 is a general
19 rule of admissibility and admission, then how can
20 21(4)(e) reach anyone other than the witness in the
21 box?
22 JUDGE SHAHABUDDEEN: Yes.
23 MR. HAYMAN: I think it has to, your Honour. If I am
24 stretching the words, it is a time-honoured tradition in
25 many, many courts and in jurisprudence in general that
Page 4647
1 this court and this Tribunal has an obligation to
2 protect the core rights of the accused, and if 21(4)(e)
3 is limited to messengers in the witness box I think this
4 court would not condone it and therefore I think there
5 should be a rule that should recognise that the court
6 has that power and that 21(4)(e) gives it that power,
7 and that is what we are urging you to do.
8 JUDGE SHAHABUDDEEN: Mr. Hayman, your arguments are very
9 lucid and I appreciate them. My mind is completely
10 open.
11 MR. HAYMAN: Thank you, your Honour.
12 JUDGE JORDA: Thank you, dear colleagues. Your questions
13 were quite relevant and I think you have cleared things
14 up to me to a large extent. But first a question to the
15 Prosecution. The testimony taken out of court, that
16 testimony, is it given under oath or not? I have
17 understood that it is not under oath, is it?
18 MR. HARMON: Mr. President, the statement that is made out of
19 court is not under oath. The statement of the
20 messenger, so to say, is under oath and is subject to
21 examination by the judges and by counsel as to the
22 circumstances under which the statement was made and the
23 reliability of the statement.
24 JUDGE JORDA: I am talking about the witness who comes here,
25 Dr Zeco for instance, when he made his statement, his
Page 4648
1 initial statement to your investigators, he made that
2 under oath, did he, is that right?
3 MR. HARMON: There is a declaration at the end of the witness
4 statements, yes, Mr. President. I am not sure it is
5 under oath, but there is a declaration attached to it
6 and he has come and every witness who comes before this
7 Chamber gives his or her testimony under oath.
8 JUDGE JORDA: Yes, fine. So we are talking about the prior
9 statement. We would not really call it an oath, so the
10 speaker, the witness, when he is in court, when he was
11 speaking with the Office of the Prosecution three or
12 four months earlier, was not under oath. I want to keep
13 going if I might, Mr. Hayman, but if you have a point of
14 clarification you would like to raise, go right ahead,
15 Mr. Hayman.
16 MR. HARMON: Mr. President, I do not mean to interrupt
17 counsel, but I can get the declaration. I am not
18 completely cognisant --
19 JUDGE JORDA: One second, you are interrupting Mr. Hayman who
20 is interrupting me. Let us be clear here. We are quite
21 open, but first let us hear the interruption of
22 Mr. Hayman, then we will hear the interruption by
23 Mr. Harmon and then I will come back to my question.
24 Just a matter of clarification, Mr. Hayman?
25 MR. HAYMAN: Yes, it might save time. When I referred to
Page 4649
1 statements not being under oath, I was referring to the
2 statements of the declarants. So for example, these
3 unidentified men in the Dubravica school who made
4 statements to Dr Zeco, their statements were not under
5 oath. As to prior statements of witnesses, I think
6 there is a declaration, but there is no penalty to it.
7 There is no exposure to any type of perjury or false
8 statement charge.
9 JUDGE JORDA: Fine. We can agree with that, Mr. Harmon?
10 MR. HARMON: Yes, Mr. President.
11 JUDGE JORDA: Fine, thank you. Now, Mr. Hayman, I have a
12 question for you. When you plan your cross-examination,
13 you have all the initial statements, that is on the
14 basis of the order by the court, and you do refer to
15 them, you cite them and you do confront the witness on
16 the basis of their contents, so you do elaborate a plan
17 when it comes to citing witnesses. There is nothing
18 hindering you -- this is my question: what would stop
19 you when it comes to a point you believe to be
20 important, when it comes to the rights you have under
21 Article 21(4)(e), why not have another witness come, or
22 even the same witness cited, with reference to Dr Zeco,
23 so that you could put questions to him on the
24 reliability of what he heard. There is nothing
25 hindering you from doing that, is there? Was that
Page 4650
1 question clear to you, Mr. Hayman, or would you like me
2 to spell it out a bit more?
3 You are entitled to cross-examination, both let us
4 take the example of Dr Zeco, Dr Zeco is there, so you
5 can confront him and have him say that that is only
6 hearsay evidence he is providing, and if you think that
7 the testimony is so important, or the witness is so
8 important in connection with the fact that it is hearsay
9 and that it is prejudicial to your client, what would
10 hinder you in three or four month's time, when you are
11 calling your own witnesses, to either have him come back
12 or call other witnesses that would show that his
13 testimony was not appropriate? So as I said, this is in
14 the context of Article 21(4)(e). You do have that
15 right, do you not?
16 MR. HAYMAN: We have the ability to try and recall witnesses
17 and bring in other witnesses. I think we have three
18 basic objections to the practice that is being followed
19 by the Prosecution now. One is there is no foundation
20 being laid, so hearsay is being concealed, if you will,
21 and I am not saying purposefully, but it is being
22 concealed in the overall narrative of the witness, no
23 attempt to sort it out and identify it is being made.
24 That puts an unfair burden on the cross-examining party,
25 because we all have limits to patience and this court is
Page 4651
1 going to have a limit to this patience when it comes to
2 recounting a narrative to try and sort out what is
3 direct and derivative, so we think that is unfair.
4 Second, where the declarants are anonymous, our
5 ability to go out and investigate and bring in other
6 witnesses who may be able to challenge those statements
7 is very difficult, because an anonymous declarant with
8 no time and place -- here we had a place, but we had a
9 period of days; very, very difficult to do, I would
10 submit, your Honour:
11 Lastly, if something is truly critical -- I hope
12 the court will not rely at all on the out of court
13 opinions of this interpreter that were related by
14 Lieutenant Colonel Watters, indeed for some of the
15 reasons we were able to elicit on cross-examination, but
16 with great difficulty, as the court will recall. There
17 is a point at which basic rights are violated. We are
18 simply asking the court, let us recognise that, so that
19 we have a framework for future discussions in addressing
20 these issues and these rights.
21 JUDGE JORDA: But what about Rule 89? Are you saying that
22 runs counter to the Statute? You are not going that
23 far, are you?
24 MR. HAYMAN: Counter to the Statute. I think that, your
25 Honour, one can look to Rule 89 to help understand and
Page 4652
1 interpret Article 21, and as Judge Shahabuddeen has
2 suggested and I agree with, Rule 89 strongly indicates
3 that the right in Article 21(4)(e) is not absolute, it
4 is not absolute. We agree with that, but I am not
5 suggesting that Rule 89 is invalid, I am suggesting that
6 this court should, indeed it must, give some teeth to
7 Article 21(4)(e), because if the rule is, any and all
8 hearsay comes in, there are no limits, then that is a
9 very dangerous precedent. We should not allow that.
10 JUDGE JORDA: This may well be my last question, Mr. Hayman.
11 Do you think the judges are able to make a distinction
12 between direct testimony and hearsay testimony?
13 MR. HAYMAN: If it is not properly identified in the
14 witness's testimony, no one can tell the difference,
15 your Honour. We will recall perhaps the testimony --
16 JUDGE JORDA: I am a bit surprised, quite frankly,
17 Mr. Hayman. All the legal systems throughout the world,
18 I do not want to make specific reference to my own, you
19 would be quite frightened away by my own. You should
20 not plead in France, if you were before a French court,
21 you would be quite unhappy there, but I think hearsay
22 testimony is something you can find practically
23 anywhere, it is a typical case. "Yes, I saw houses
24 burning, I saw the houses burning in Ahmici", let us
25 say, "I think they were set by the HVO", and then the
Page 4653
1 question is, "why do you believe that?", "well, I heard
2 someone say so"; it is hearsay. I think the judges can
3 make a distinction between what the witness is saying
4 and what the witness says he heard.
5 Of course, I am not going to touch now on matters
6 we will be raising in our deliberation, but we still
7 have the status conference coming up, but maybe it is
8 because we only rely on having witnesses present.
9 Perhaps we could work on a different basis, where the
10 Prosecution for now and the Defence later would be in
11 the position to corroborate, where we would not be
12 working just on the basis of testimony, but where we do
13 have witnesses as the basis, of course, we do have this
14 issue of direct and hearsay testimony.
15 I maybe overdo it when it comes to reading texts,
16 but I am very demanding and I think the texts say what
17 they say for the time being. That, of course, does not
18 hinder you, jurisprudence, playing its role in the
19 judges' working on that basis and taking our decisions,
20 but I am wondering, Mr. Hayman, whether you are not
21 asking for the judges to adopt something from your legal
22 system, which is not in the Statute and the Rules. The
23 Statute and the Rules do not say, "do not do common law,
24 do not do civil law", whatever. The judges are here to
25 work on the basis of a number of rules and establish
Page 4654
1 criminal responsibility.
2 I think Judge Riad wanted to put a question on
3 this point.
4 JUDGE RIAD: Thank you, Mr. Chairman. I just want to sum up
5 for myself. The real condition you are putting is some
6 kind of procedural one, when you said there should be a
7 method of implementation, when the witness should
8 indicate what is hearsay and what is direct. That is
9 really the very clear condition. The other conditions
10 you mentioned were some kind of directives to the
11 Tribunal when they consider their, let us say,
12 reliability of the hearsay. When you said there should
13 be a chain of declarants, a clear contest of the
14 statement, these are almost directives for the judges,
15 and not specific procedural conditions.
16 MR. HAYMAN: I think that is right, your Honour, although
17 where a witness knows the date and time and circumstance
18 of the statement, we think that should be elicited, it
19 should be a burden on the party putting the evidence
20 forward, because that is a more efficient way to get
21 that information on the table in front of your Honours
22 and the parties.
23 JUDGE RIAD: This would be a good thing to enlighten the
24 Tribunal.
25 MR. HAYMAN: Absolutely, and it will save time, because you
Page 4655
1 will not have the cross-examiners, which for the time
2 being are myself and Mr. Nobilo, revisiting all these
3 lengthy testimony to try and sort out, "what did you
4 know and what did you not know?", because I am sure we
5 have missed some. There are statements we have learned
6 in the final questions of cross-examination that they
7 were derivative and there are others I am sure we have
8 missed and this Tribunal will never know if certain
9 contents or certain items of evidence given were direct
10 or hearsay, and that is not good. We think it should be
11 put on the table so the court knows what evidence it has
12 and that will lead to a more reliable fact-finding
13 process.
14 JUDGE RIAD: You have expressed clearly that there should be
15 an indication of what is derivative and what is direct.
16 That should be done in court. The other has to be done
17 by the judges and you are advising them that they should
18 take care of that.
19 MR. HAYMAN: I would submit that once a procedural rule is
20 implemented, then the Tribunal will be in a position to
21 implement whatever substantive rule on hearsay it finds
22 appropriate, but without a procedural rule to identify
23 hearsay, then there can be no meaningful test for
24 reliability, there can be no meaningful test to afford
25 whatever Article 21 rights there are that are implicated
Page 4656
1 here.
2 JUDGE RIAD: Thank you very much.
3 MR. HAYMAN: Thank you.
4 JUDGE SHAHABUDDEEN: One last question, Mr. Hayman. Your
5 arguments are so engaging that I am tempted to put one
6 last question to you. If you accept that hearsay
7 evidence is in principle admissible, then would you
8 think it right to leave it to the judges to apply a
9 customary rule of evaluation which would take into
10 account, for example, whether the particular hearsay
11 evidence is firsthand hearsay, or second hand hearsay, or
12 third hand hearsay; you know judges would normally take
13 account of that aspect. Would you think the judges
14 might be left to take that into account?
15 MR. HAYMAN: If the hearsay has been identified as such, and
16 the circumstances are on the table, I think the court is
17 free to evaluate reliability as it sees fit and if there
18 is sufficient reliability, hearsay should be admitted.
19 JUDGE SHAHABUDDEEN: Let us go back to your remark about if
20 the circumstances are before the court; would it not be
21 open to counsel for a party to help to place those
22 circumstances before the court by examining the witness
23 who is actually in front of the court on points relevant
24 to the determination as to whether the particular
25 hearsay evidence is firsthand hearsay or second hand
Page 4657
1 hearsay or third hand hearsay et cetera, and would that
2 not help the court?
3 MR. HAYMAN: It would, and that is part of counsel's
4 obligation, although we think a foundation should be
5 laid first, so that it is identified. Then we can pull
6 it out and your Honours can conduct whatever evaluation
7 is appropriate.
8 JUDGE SHAHABUDDEEN: Thank you very much.
9 MR. HAYMAN: Thank you.
10 JUDGE JORDA: Mr. Hayman, if you might allow me a comment.
11 You said that the counsel for the accused is not in the
12 position, does not have the time, the means to make
13 these distinctions, and you say that the judges should
14 come up with a rule. Judges coming up with a rule --
15 judges apply rules, they do not go about creating them.
16 For instance, would you go so far as to think that the
17 judges should be playing a more active role at trial,
18 because you have to be consistent? You yourself who
19 have the initial statements, if you cite them in your
20 cross-examination, it is hard for you to distinguish the
21 direct from the derivative evidence, it is even more
22 difficult for the judges. What they can do in the event
23 of doubt, they can exclude following evidence,
24 cross-examination, to the effect that the houses had all
25 been burned and that that was not relevant evidence. Do
Page 4658
1 you think that we should be playing a more active role,
2 we should have a full case file and that we should have
3 a plan for questioning? I am already moving into the
4 ground of the status conference, as it were. I take it
5 you will say no. That is what I would assume.
6 MR. HAYMAN: No, your Honour, we want the court, we want
7 your Honours to be more involved in the active trial of
8 the case, because we think that will speed the process.
9 But as to hearsay, what I am saying, your Honour, is, it
10 is counsel's job to develop the circumstances of hearsay
11 evidence so that the court -- with the court so it can
12 be evaluated, but where it is not identified and no
13 attempt is made, and no attempt is being made in the
14 Prosecutor's presentations, to identify what is hearsay
15 and what is not, that quite frankly is just not a sound
16 procedure. Certainly the court can direct matters like
17 foundation and other procedural matters that are totally
18 within the court's discretion, we believe.
19 JUDGE JORDA: Fine. Well, we are running a little later
20 than planned. I think we can leave it at that, if there
21 are not any other points of clarification in relation to
22 hearsay. Then I am going to give you the floor,
23 Mr. Hayman. It is calling into question the decision of
24 the judges, as it were, because we have taken a
25 decision, and you want that decision to be reconsidered
Page 4659
1 by the very same judges, so I am a bit concerned. Maybe
2 you could tell us a little bit more about your motion
3 that dates back to September as well, so this Chamber is
4 to reconsider the decision that had to do with
5 exculpatory evidence which had been regarded as
6 authentic, so could you briefly sum up your main
7 argument, sir?
8 MR. HAYMAN: Yes, Mr. President, thank you. We thought long
9 and hard before we brought this motion, your Honours,
10 because it is delicate, indeed in some ways
11 uncomfortable to ask the Trial Chamber to reconsider a
12 decision that has been made, and I do not think we have
13 done it very often, but we have done it here, because we
14 think this is very important. By this motion, we ask
15 the Chamber to reconsider the ruling that even after a
16 document -- that ruling holds that even after a document
17 has been authenticated, Defence counsel must provide the
18 Prosecution -- the court has said the court, but also
19 importantly provide to the Prosecution -- information
20 concerning how we obtained the particular copy of the
21 document that was placed before the witness and
22 authenticated, thereby disclosing our sources and
23 methods of investigation.
24 We believe, your Honours, and if one looks to how
25 this issue arose, this was not raised by the Prosecutor
Page 4660
1 with respect to any true concern about the authenticity
2 of the document and documents that had been put in front
3 of the witness, Mr. Djidic, and that had been
4 identified. It was an attempt by the Prosecutor to gain
5 a tactical advantage by imposing a discovery obligation
6 on the Defence that does not exist in the Statute of the
7 Rules, and that is unprecedented in any other Trial
8 Chamber or any other proceeding before this Tribunal.
9 No other Tribunal -- no other Trial Chamber in any
10 other case, our search of the records indicates, has
11 imposed any type of requirement of this nature. Indeed,
12 the court has alluded to a new motion, which we will
13 respond to next week, in which the Prosecutor seeks to
14 make another discovery obligation and impose it on the
15 Defence. We think that is telling as well. In our
16 reply brief, your Honours, we discussed the differences
17 between authenticity, authorship, source --
18 JUDGE JORDA: Which motion are you referring to, Mr. Hayman?
19 Just to be perfectly clear. You said that in your
20 reply --
21 MR. HAYMAN: In the response to this motion regarding the
22 authentication of documents, your Honour. I hope that
23 has gotten before the court. I know it has been
24 translated and I have seen our reply brief in both
25 languages of the Tribunal. So we attempted to clarify
Page 4661
1 those terms, I will not repeat. Importantly, we do not
2 by our motion seek to restrain the Prosecutor or
3 restrain the court from questioning the authenticity of
4 documents put before it. Absolutely not. The
5 Prosecutor is free to express every concern about the
6 authenticity of documents; so is the court. But please,
7 if one looks at their response, there has been no
8 concern stated about the authenticity of the documents
9 in question. They have yet to articulate any concern
10 about authenticity; indeed if you ask, "how were these
11 documents authenticated?", they were authenticated by a
12 Prosecution witness. Are they attacking their own
13 witness? They are seeking to gain a tactical advantage
14 by creating a discovery obligation and imposing it on
15 the Defence which does not exist and should not, even
16 more importantly, should not exist.
17 The issue is, how is authenticity to be determined
18 in proceedings before the Tribunal. We submit
19 authenticity is to be determined through the testimony
20 of competent witnesses or by stipulation between the
21 parties. Indeed, if a party wishes to contest
22 authenticity after a witness has authenticated a
23 document, it can ask that the document be held in
24 abeyance and that the party either conduct voir dire of
25 the witness, or that the document be held in abeyance
Page 4662
1 until cross-examination on the document has been
2 concluded. That did not happen here. There were no
3 such requests. There was simply a request for Defence
4 counsel to assume the role of witnesses and disclose
5 what we believe is confidential and privileged
6 information regarding our sources and methods of
7 investigation.
8 But whatever Mr. Nobilo and I are, we are
9 advocates. We are not witnesses. It would be very
10 different if we had been summoned in a civil law system
11 to come and give evidence to the court. Given the
12 adversary nature, the fundamental adversary nature of
13 the proceedings in this Tribunal, we submit it is wrong
14 to impose on counsel, against counsel's will and without
15 the consent of counsel's client, that is counsel for the
16 accused, to compel us to reveal this information
17 concerning our confidential sources and methods. To do
18 that, we submit, confuses the proper role of counsel in
19 what is fundamentally an adversary system here in the
20 International Tribunal for the former Yugoslavia.
21 A subsidiary point is: how do we handle documents
22 that have not yet been authenticated? There have been
23 some conflicting opinions voiced in the course of the
24 proceedings on this point. Indeed, it has been
25 suggested by the Prosecution's office that if a document
Page 4663
1 has not yet been authenticated, it cannot be shown to a
2 witness. A witness cannot be questioned about the
3 document. We do not agree with that. First, we have to
4 be free to show a document to a witness in order to
5 authenticate it, or to try; and second, there will be
6 occasions when a document that a particular witness
7 cannot authenticate and a document that has not been
8 authenticated by any prior witness needs to be shown to
9 the witness in the box and questioned about the
10 document, because if we are not able to do that, and the
11 document is subsequently authenticated and admitted, we
12 may have to recall all the prior witnesses who had
13 relevant testimony to give about that document.
14 So what I am suggesting is: documents that cannot
15 be authenticated yet, they should be marked for
16 identification, and we should be free to show them, and
17 the Prosecution as well, when we come to the Defence
18 case, to show them to witnesses in the box, again with
19 due regard for the efficiency and speed of the
20 proceedings, and question those witnesses about them
21 prior to admission. Of course, if the document is never
22 authenticated and admitted, then it will never be
23 evidence, and we do not contest that.
24 Lastly, there is a subsidiary issue here with
25 respect to the Rule 68 information, and those are
Page 4664
1 documents such as Mil Info Summs that the Prosecution
2 has given us pursuant to its obligation under Rule 68 to
3 provide exculpatory information. There, we have run
4 into a problem that these documents are so heavily
5 redacted, many of them, that it is not clear exactly
6 what the document is. It may have a hand-written
7 notation at the top "Mil Info Summ" and a date, but it
8 is not clear, for example, as Lieutenant Colonel Watters
9 pointed out, is a particular item of information in a
10 Mil Info Summ, where is it from, what is it, what is the
11 information? Indeed, is it a Mil Info Summ?
12 We have offered some of those documents early on;
13 more recently this objection has not been made, perhaps
14 because we filed our motion, but early on, an objection
15 was made that the Prosecutor did not know how it came
16 upon these documents that it had given to us and
17 therefore the document could not be admitted, because
18 the Defence only knew we got it from the Prosecution and
19 the Prosecution could not say from the records available
20 here in court where it got it.
21 We do think this is an untenable position by the
22 Prosecutor and all we ask on that subsidiary issue,
23 which is fully raised in the briefs, is that the court
24 address it, give us a clear ruling, so that either the
25 Prosecutor is obliged to tell us the nature of these
Page 4665
1 documents, the date and so forth, or if not, the court
2 state that that request is denied. Thank you,
3 your Honours.
4 JUDGE JORDA: Mr. Kehoe, please? First, I would like to ask
5 Mr. Dubuisson before we hear Mr. Kehoe; I have got the
6 reply from the Prosecutor, is there another document,
7 just to be clear on this?
8 Mr. Hayman, just a clarification to be perfectly
9 clear. I had the feeling that there were some arguments
10 you just put forward that were not in your initial
11 motion. Have you broadened the scope of your
12 argumentation? Should that be the case, was that your
13 right of reply that you have used, as it were? Maybe
14 I could ask the Registrar whether we have had another
15 motion.
16 MR. HAYMAN: I think my comments, your Honour, were within
17 the scope of our initial motion. We did file a reply
18 brief on 21st November, and it has been translated into
19 both languages of the Tribunal, and I have a copy of the
20 French.
21 JUDGE JORDA: Yes, but there is no accusation here, just
22 I had not had it. With regard to the brief comments you
23 just made, I had the feeling you had included several
24 ingredients when it came to the conclusions in your
25 motion. They were focused mainly on the source in
Page 4666
1 connection with the decisions relating to the
2 obligations which we thought applied to both the
3 Prosecution and the Defence, so with regard to the
4 source and the authors of some documents. That is why
5 I put that question to you.
6 MR. HAYMAN: Your Honour, it may be there is a greater
7 semantic issue here than I have given treatment to, and
8 that is, we believe whether a document is authentic, who
9 is the author, and what is the source of a particular
10 document brought to court, those are very different
11 things. We do not seek to limit anyone's ability, the
12 Prosecutor or the court's, to scrutinise the
13 authenticity of any document presented in court. The
14 source of a document is also different from the author,
15 we believe, and the issue raised by the Prosecutor was
16 not the authorship of a document, the issue was source;
17 how did the Defence obtain, physically obtain the copy
18 of an otherwise authentic document which the
19 Prosecutor's own witnesses had authenticated, and that
20 simply involves, how did we get it? Did we buy it on
21 the black market? Did we get it from the Prosecution's
22 witness? Was it mailed to us anonymously? Whatever,
23 how did we get it, how did we physically come to have
24 it. With all due respect, the gist of our motion is --
25 I am sorry, your Honour.
Page 4667
1 JUDGE JORDA: That is not really the motion that was
2 initially filed in connection with our decision. You
3 are addressing now the issue of how you can obtain
4 certain documents. I do not think that in the decisions
5 we took we in any way set limits to the obtaining of
6 documents. In any event, there are two other decisions
7 in particular when it came to the production of
8 documentary evidence; but as I have not read your latest
9 motion, maybe that is the problem I am having.
10 MR. HAYMAN: Your Honour, I did re-read our motion last
11 night, and again, there may be an issue of semantics,
12 and I do not know how "source" is being translated, I do
13 not know how "authenticity" is being translated, but our
14 position, I think, we have sought to make it very clear
15 and very consistent from the outset and that is, our
16 methods of investigation are private and confidential.
17 If a document is authenticated and the Prosecutor should
18 have the opportunity to contest that, ask competent
19 witnesses, express its concerns to the court. Those are
20 two separate issues.
21 JUDGE JORDA: Okay, fine.
22 Mr. Kehoe, please.
23 MR. KEHOE: Yes, Mr. President and your Honours, good
24 morning. The motion on behalf of the Defence is
25 essentially a motion to revisit an issue that this court
Page 4668
1 has decided, i.e. requesting both the Prosecution and
2 the Defence to give sources for their information. What
3 the Defence motion is tantamount to requesting is a
4 restriction of the powers of this Trial Chamber, quite
5 clearly set forth in 89(e). This Trial Chamber, as any
6 Trial Chamber, has the right and the power to request
7 verification of the authenticity of a document,
8 verification. Why? Why, so this court can make a
9 proper decision concerning the accuracy of that
10 document, whether that document is complete, whether
11 that document should be given a great amount of weight
12 or whether that document should be given a lesser amount
13 of weight.
14 The powers set forth in Rule 89(e) are, of course,
15 supplemented by the powers given to the court for the
16 ordering of a trial as promulgated in Rule 98, which by
17 its very nature is extremely broad and permits this
18 court, the President and the Trial Chamber, to request
19 additional witnesses and call witnesses and ask for
20 additional evidence as the court sees fit.
21 Suffice it to say -- and I have no intention,
22 your Honours, of revisiting every argument that we made
23 in our papers -- suffice it to say that no power given
24 to this court should be restricted in any fashion.
25 Asking questions concerning the reliability of the
Page 4669
1 document, asking questions concerning the source of that
2 document, asking any question that this Trial Chamber
3 sees fit in order to make a decision. As 89(e) sets
4 forth and as interpreted by the Tadic court, the
5 reliability of the document goes to the probative nature
6 of the document and that particular issue all too often
7 is tied up in where this document came from. We saw a
8 telling example of that particular instance in this
9 court, approximately a week and a half ago.
10 Unfortunately, several weeks after we filed the motion
11 or response to counsel's motion.
12 Where did we see that? We saw that in the BBC
13 tape that was presented by the Defence, where the tape,
14 as it was presented, first in the cross-examination of
15 Captain Tudor Ellis and then in the cross-examination of
16 Lieutenant Colonel Bryan Watters, showed the editing of
17 a piece of tape that had been provided to counsel, a
18 tape that came from the British Broadcasting
19 Corporation, which would make it appear that British
20 battalion soldiers were arming Muslim soldiers.
21 On further reflection, when one looks at a little
22 bit more of that tape from the BBC, it quite clearly
23 appears, and is, an officer in an UN vehicle examining a
24 weapon. The court needs to have the power and the right
25 to examine where a document comes from at every source.
Page 4670
1 The Prosecutor goes so far as to say that even if the
2 Defence and the Prosecution exists on the omission of a
3 document or a tape or a piece of evidence, this court
4 still has the power, should it decide to do so, to ask
5 the parties for additional information concerning the
6 source of that information. That is clearly delineated
7 under 89(e) and more broadly set forth, as I noted
8 previously, under Rule 98. This limits no person or
9 party in this courtroom. Counsel has argued to you just
10 several minutes ago that he is unable to use the
11 particular documents that he wants in cross-examination
12 because it has not been sourced. I beg to differ with
13 counsel and I will rely on the record and your Honours'
14 memories, but the only restriction that has been put on
15 Defence counsel and the Defence in the use of any
16 documents has been their ultimate admissibility. The
17 documents themselves have been used extensively in
18 cross-examination of Prosecution witnesses to date.
19 The only ruling that has come from the court,
20 Mr. President, is a holding of these particular documents
21 and these particular pieces of evidence in abeyance,
22 until a source has been provided to the court.
23 But if I may reiterate just once again, there has
24 been no restriction by this Trial Chamber on the Defence
25 in using unsourced documents in the cross-examination of
Page 4671
1 witnesses. So the question is: given how this court has
2 enabled the Defence to use these documents extensively,
3 and has merely requested additional information that the
4 court desires concerning the source, it is quite clear,
5 as we sit some months into trial, there has been
6 absolutely no prejudice to the Defence whatsoever in
7 their ability to develop their information as they see
8 fit and to develop their defence.
9 The reality of the situation, your Honours, is it
10 just simply has not happened. This court has given
11 generous free rein to the Defence to use those
12 documents. There is an argument in Defence counsel's
13 motions concerning the chilling effect on using or being
14 forced to divulge the source of some of this
15 documentation. Again, I will not address this
16 extensively, but suffice it to say, your Honours and
17 Mr. President, that this court has been very open to the
18 use and the development of protective measures to ensure
19 that anybody providing information, that person's
20 physical being would be safeguarded.
21 There are more than ample Rules set forth and
22 Articles set forth in the Tribunal's Statute and Rules
23 to give any protection to the source of information that
24 that particular source needs, so any argument that
25 somehow, in some way, given this circumstance in this
Page 4672
1 courtroom that the inability to use those documents
2 chills the Defence, I submit to your Honours is without
3 foundation, given the practice and procedure to date in
4 this Trial Chamber. It just simply does not exist.
5 Lastly, concerning the documents that Defence
6 counsel says have been unsourced by the Prosecution.
7 There has been, let me say, on several points, due to a
8 request by the Defence, and I know your Honours know
9 this, there has not been reciprocal discovery because it
10 was the decision of the Defence to choose not to operate
11 that way. Nevertheless, literally thousands of
12 documents have been supplied to the Defence under Rule
13 66(A), as is the Prosecutor's obligation to provide
14 counsel with the confirming material that was given to
15 the confirming judge and also under Rule 68, which is
16 exculpatory information. Thousands of pages,
17 thousands. In previous arguments before this court, we
18 have told this court, and again I reiterate, that,
19 pursuant to the court's instructions, the Office of the
20 Prosecutor reviewed hundreds and thousands of pages of
21 documents to comply with our Rule 68 obligations.
22 The only request that we make concerning that
23 information is a simple one. If the Defence asks the
24 Office of the Prosecutor for the source of a particular
25 document that has been provided to the Defence, either
Page 4673
1 pursuant to Rule 66(A) or pursuant to Rule 68, they only
2 need ask where it came from, but to force the Prosecutor
3 to go through an hourless, extensive process, the
4 resources for which we do not have. To source every
5 document, most of which will not be used by the Defence
6 and have not been used to date, is a burden that we
7 simply cannot undertake, given the significant manpower
8 shortages that beleaguer the Office of the Prosecutor.
9 Your Honours, I offer, my colleagues and I offer
10 the solution, an extremely reasonable solution, that
11 counsel, notwithstanding our lack of reciprocal
12 discovery, simply ask us, "what is the source of this
13 document?", and we will tell them. As I said at the
14 outset, Mr. President, your Honours, I have no intention
15 to reiterate and go through chapter and verse all of our
16 arguments, I think our arguments are adequately set
17 forth and one thing about lawyers is from time to time
18 they stand up and speak too much, so at that point,
19 Mr. President, your Honours, I have concluded my
20 argument.
21 JUDGE JORDA: Well, that is a bit of self-censorship there,
22 Mr. Kehoe. I do not know whether Mr. Hayman has any
23 points related to this he wants to touch on very
24 briefly.
25 MR. HAYMAN: Perhaps I am not as wise as my learned friend
Page 4674
1 and colleague. If I could just have a couple of
2 minutes, your Honour?
3 Rule 89(F). It is a very interesting rule,
4 "verification of authenticity". What does that mean?
5 If authenticity is established, what does it mean to
6 verify authenticity? To have two different independent
7 sources establishing authenticity, is that the
8 requirement? We submit once authenticity is established
9 to the court's satisfaction then as long as it is
10 relevant, there it is, it should be admitted.
11 Verification of authenticity cannot mean that after a
12 party has authenticated a document and the court is
13 satisfied that it is authentic, that then there is some
14 other inquiry to be performed. There simply is not.
15 We do not question, as I said, the court's
16 authority and power to ensure that only authentic
17 documents are treated as such by this court. That is
18 only appropriate.
19 The issue of the BBC tape is a red herring. First
20 of all, the Defence was very clear when we presented
21 that tape that we did not know if the witness could
22 authenticate it; first Captain Ellis and then Lieutenant
23 Colonel Watters. They were not, and it was not
24 authenticated. It has not been admitted. Indeed, the
25 adversary system, where competent witnesses testify
Page 4675
1 about context, authenticity and so forth, it did the
2 function that it should do and we now know that this
3 piece of tape, in a medley of tapes, was taken from a
4 BBC tape, because Lieutenant Colonel Watters was able to
5 tell us that. We also now know from the testimony of
6 Tudor Ellis that ITN created a medley tape with many
7 many little bits of pieces, stuck together with rock
8 music, if you will, and other audio components, a tape
9 we are still trying to get so we can see how it was
10 edited and what else was on it. So the process worked
11 with respect to the tape, and the issue is a red
12 herring, we think.
13 I am pleased that Mr. Kehoe concedes that a
14 document, even if not authenticated, may be marked and a
15 witness can be questioned about it, so I think the court
16 can take it that the parties agree on that. But we do
17 not agree that that means there is no prejudice to the
18 Defence from having a per se rule of excluding authentic
19 Defence documents, unless Defence counsel takes the
20 stand and testifies as to our methods of obtaining those
21 documents. The fact is, we need to know what the rule
22 is going to be, so that we can carry out our
23 investigation appropriately, and we are being
24 constrained, there is a chilling effect on our ability
25 to do that and indeed, if this ruling is not altered, we
Page 4676
1 may well have to make file under seal for the appellate
2 court, should there ever be an appellate proceeding, an
3 offer of proof as to how our investigation has been
4 constrained, what sources have refused to provide
5 additional documents related to this court's ruling, so
6 that the record is clear in that regard.
7 Lastly, the Prosecutor asks that to deal with the
8 issue of documents the Prosecutor has given us that we
9 give them notice before our cross-examinations of what
10 documents we will use so that they can tell us the
11 source. That would not further the integrity of the
12 fact-finding process before this court, because we
13 should not be telling witnesses before their
14 cross-examination what they are going to be shown on
15 cross-examination so that they can artificially prepare
16 to deal with those issues. It is simply not wise, it is
17 an attempt to create a new and yet another discovery
18 obligation and impose it on us, the Defence, and I note
19 that if the court modifies its prior ruling so that the
20 emphasis is on authenticity, not how the Defence
21 obtained a document, then there is no need for this
22 second issue to be addressed at all, because it will not
23 be a barrier to the court's consideration of documents
24 that originated with the Prosecution, were given to us
25 and that we are tendering to witnesses and then seeking
Page 4677
1 admission. Thank you, your Honours.
2 JUDGE JORDA: Fine. Fellow judges, any questions,
3 comments?
4 JUDGE RIAD: Mr. Hayman, just a question to understand the
5 bottom line which you are suggesting. You require from
6 the Prosecutor to authenticate any document, is that
7 right, if necessary?
8 MR. HAYMAN: Your Honour, as to documents they gave us under
9 the discovery rules, if there is a requirement imposed
10 by the court, a per se rule, that unless the court knows
11 how a party obtained a document it shall not be
12 admitted, then we cannot admit those documents. Unless
13 the Prosecutor articulates how they obtained it, we are
14 totally dependent on them. If that is to be the rule,
15 then we are asking the court to order the Prosecutor to
16 tell us how they came by these different documents, what
17 are they, in fact.
18 JUDGE RIAD: But you refuse reciprocity. You refuse to be
19 treated the same way.
20 MR. HAYMAN: No, we do not think any counsel, Prosecution or
21 Defence, should have to become witnesses and, in effect,
22 give testimony about their methods and sources of
23 investigation. We think documents that come before the
24 Tribunal should be treated in a standard bilateral and
25 reciprocal way. The inquiry is: is it authentic? If
Page 4678
1 the court is satisfied it is authentic, then it should
2 be admitted, if it is otherwise relevant; if it is not
3 satisfied, it should be excluded, but it should be
4 excluded because the court questions the authenticity of
5 the document, therefore it is not probative if it is not
6 authentic, not based on some per se rule relating to the
7 parties' methods of investigation.
8 JUDGE RIAD: Thank you very much.
9 JUDGE SHAHABUDDEEN: Mr. Hayman, I was interested in your
10 last remark, which I understood this way, that your
11 request that the Prosecution in making available to you
12 any exculpatory statements should also provide
13 information as to authenticity, and I thought what you
14 were saying now was that that request is only maintained
15 if the court maintains its original ruling.
16 MR. HAYMAN: I think there is a link. There are some
17 independent reasons why they should have to do it, but
18 those reasons are compounded if the court has a per se
19 "source" rule.
20 JUDGE SHAHABUDDEEN: I ask that because I see in your reply
21 at page 6, at the bottom, that you are saying there:
22 "Although the Defence urges the Trial Chamber to
23 reconsider its ruling, whether it does so or not, the
24 Prosecution should be required to provide the Defence
25 with information, if known to the Prosecutor, regarding
Page 4679
1 the author, origin, date, et cetera."
2 There is no link there, is there?
3 MR. HAYMAN: Your Honour, as I said, there are independent
4 reasons they should do it, because some of the documents
5 we have gotten are so heavily redacted, it is hard to
6 tell what they are. So I think there are independent
7 reasons, but if there is no per se source rule, then
8 that rule is eliminated as a reason and quite frankly
9 that rule is the problem that has brought this issue to,
10 for us, a crisis proportion, to crisis level.
11 JUDGE SHAHABUDDEEN: Thank you. May I turn now to the
12 Prosecution. Mr. Prosecutor, a court is jealous of its
13 powers, so when you say that Mr. Hayman is effectively
14 asking the Tribunal to impose restrictions on its
15 powers, you are striking a chord to which a court might
16 be expected to be very responsive.
17 Would you subscribe to the view that Mr. Hayman
18 does not need to be apologetic about asking the court to
19 review its earlier decision?
20 MR. KEHOE: Judge Shahabuddeen, Mr. Hayman does not have to be
21 apologetic about asking the court to review a prior
22 decision. My point at the outset, Judge Shahabuddeen,
23 was casting this argument in its most direct light, and
24 that is a request to limit the court's powers.
25 JUDGE SHAHABUDDEEN: I put this to you, I take it you accept
Page 4680
1 the customary dichotomy which distinguishes between
2 admissibility and weight.
3 MR. KEHOE: I do, judge.
4 JUDGE SHAHABUDDEEN: Am I right in understanding Mr. Hayman
5 to be taking this position: if there is a witness in the
6 box who says, "I recognise this document, I know the
7 signature, I have even seen it before", that the
8 document there upon becomes admissible, and any other
9 inquiries concerning authenticity or source or whatever
10 will then go only to weight. That is how I understand
11 him.
12 MR. KEHOE: Judge, there could very well be situations where
13 that is the case and there could very well be situations
14 where neither party has any objection to admissibility
15 of a document on that level. Nevertheless, it is still
16 the power of a Trial Chamber to request where this
17 document came from.
18 Let us turn, if you will, to the particular tape,
19 and hypothetically speaking, let us say that
20 Captain Ellis, when he was testifying, said, "yes, I do
21 recall a tape like that", and given the playing of that
22 tape on the BBC, one might say, "I remember seeing
23 something like that on television". As we move down the
24 line, this tape is shown as coming from the BBC. Even
25 if that initial Defence tape came into evidence, this
Page 4681
1 court could still question its source.
2 The position of the Prosecutor, judge, is that no
3 power concerning any document, any piece of evidence, no
4 power to question that document -- no restrictions on
5 the power to question that document should be imposed on
6 this Trial Chamber, no power.
7 JUDGE SHAHABUDDEEN: I understand you.
8 MR. KEHOE: If at the final hour the court says,
9 "notwithstanding a lack of source, given the fact that
10 a particular witness has authenticated it, we are going
11 to admit it into evidence"; that, of course, is up to
12 the Trial Chamber, it is within the discretion of the
13 Trial Chamber.
14 JUDGE SHAHABUDDEEN: I see. So the Trial Chamber could do
15 that. Then let us look at Rule 89(e), to which both
16 sides referred. Would I be right in saying that a
17 possible interpretation of that rule is that it gives
18 the court a power to request verification of
19 authenticity, but that the exercise of that power in a
20 particular case is not meant to impose a condition
21 precedent on the admissibility of the evidence in
22 question; whether the evidence is admissible depends on
23 whether it is relevant and whether it is probative, and
24 it may be all of those things even in the absence of
25 verification of authenticity. How do you react to
Page 4682
1 that?
2 MR. KEHOE: Judge, that could very well be the case, and if
3 at that juncture, as we come to the end of the trial,
4 the court is satisfied concerning those conditions, i.e.
5 authenticity, and believes that the document has been
6 verified, then the Office of the Prosecutor would have
7 no objection to the court admitting that document into
8 evidence, again, within the discretion of the Trial
9 Chamber, to make that decision as the Trial Chamber sees
10 fit.
11 I do not intend to argue in any way, shape or form
12 on any restriction to that accord. To the contrary, the
13 court has asked, due to a multitude of factors, dealing
14 with xerox copies, dealing with edited tapes, that the
15 source of these documents be presented to the Trial
16 Chamber. If the Trial Chamber requests that, the Office
17 of the Prosecutor will comply and so should the
18 Defence. Again, however, at the end of the day, if the
19 court believes that a document has been authenticated,
20 the court believes it should be admitted, then so be it,
21 it should be admitted on that score.
22 JUDGE SHAHABUDDEEN: Good. So I understand you then to be
23 taking the position that Rule 89(e), which confers on
24 the court a power to request verification of
25 authenticity, goes not to admissibility but to weight.
Page 4683
1 The court could well be in a position where, its request
2 for verification not having been complied with, it
3 proceeds to attach little or no weight to the particular
4 document.
5 MR. KEHOE: If I can answer that by being just a degree more
6 expansive, judge, I think that it goes to both. The
7 court can, because of lack of verification, exclude the
8 document, as is permitted by Rule 89, or admit it and
9 then gauge its weight accordingly, so I think that the
10 Rule as it is written provides the Chamber with a full
11 spectrum of possibilities: admissibility; not
12 admissibility; if admissibility, the weight to be given
13 to it.
14 JUDGE SHAHABUDDEEN: You say Rule 89(e) can also go to
15 admissibility.
16 MR. KEHOE: Yes, judge, I do.
17 JUDGE SHAHABUDDEEN: That is a view that will need to be
18 considered. Thank you very much.
19 JUDGE JORDA: Just a question for Mr. Hayman. Authenticity
20 of a document, how would you define that? Is it linked
21 to the source?
22 MR. HAYMAN: Authenticity, your Honour, is the question of
23 whether the document is what it purports to be. If a
24 document is an agreement between two warring factions,
25 dated on a certain date and has signatures on it, is it
Page 4684
1 in fact the document that was created on or before that
2 date and signed and executed on that date and is it a
3 true copy, if not the original. That is how I would
4 define authenticity.
5 JUDGE JORDA: But when you talk about true copy, already
6 there we are in the area of source.
7 MR. HAYMAN: I think not, your Honour, with the great respect
8 I have for you and the court, because with respect to a
9 document, a witness can look at the document such as
10 Mr. Djidic did, and said, "yes, this is the document,
11 I have seen it before, I recognise the names,
12 I recognise the signature, this is the document that we
13 generated on or about this date", and that is what is
14 different about documents from physical evidence, as
15 I note in my reply brief. You have to have a chain of
16 custody for a blood sample or a fingerprint or a human
17 hair, because they can change, they can not only be
18 altered but they can deteriorate and change over time,
19 depending on conditions of storage. But a document, if
20 you are talking about the contents of a document and not
21 a fingerprint on it, no court requires a chain of
22 custody for documents, I submit. What is required is
23 that a witness authenticate it, it is what it purports
24 to be and if not the original, it is a true copy.
25 JUDGE JORDA: But could you conceive of situations where all
Page 4685
1 the parties authenticate a document and where the
2 document turns out at the end of the day not to have
3 been authentic and if one had knowledge of the source,
4 one would have known it. Let me give an example of a
5 notary act. This is in France, I assume the same goes
6 for the Netherlands and the United States. You have
7 something equivalent when there is a transfer of
8 property. It is the source that is being authenticated,
9 as it were, so if you turn it round, the day you have a
10 public notary's document, you know the source and you
11 know that it is authentic. I am not challenging the
12 distinctions that can be made under 89(e), the customary
13 distinction between the probative value and
14 identification and authentication remains valid, but
15 I think you would agree with me that it is a bit more
16 subtle than that. With the videotape, that in this
17 connection, I will not tell you what my views on this
18 matter are, but that does go to show that in certain
19 cases there can be some confusion; everyone can agree
20 that this is a given videotape, everyone can agree that
21 it is from a given television programme, but that
22 notwithstanding, when it comes to authenticity, no
23 problem there, probative value will agree here, everyone
24 will draw their own conclusions as far as probative
25 value goes, but I do think there is a highly complex
Page 4686
1 link between superficial identification and
2 authenticity, and authenticity is already a step in
3 respect of probative value.
4 In your system, perhaps, you are saying if
5 everybody agrees that a document is authentic, it is
6 going to have a particular value. I do not think that
7 is always the case. But these are just comments I am
8 making, that is not meant as a question, unless there is
9 something you would like to add, Mr. Hayman.
10 MR. HAYMAN: To compliment the court, I think those are good
11 comments. I think to have a certified copy of a
12 document that exists in a court house or a property
13 record office, or the county clerk's office, that is
14 always desirable, but in this case, we are going to find
15 that in the chaos of war there are no central
16 repositories, central archives with complete, certainly
17 not with complete sets of documents. In the chaos of
18 war, people took documents, people fled, and so the type
19 of certified copies, with a notary stamp or whatever on
20 them, are going to be very hard to come by in this case,
21 and it is very important that the documents presented
22 not be limited to a category which in many cases will be
23 unattainable by either party.
24 JUDGE JORDA: Thank you, Mr. Hayman. I just wanted to make
25 that comment to show that the matter was perhaps a bit
Page 4687
1 more complex and subtle. I think we have done for the
2 time being, we are going to resume in about 15 minutes
3 or so for about 45 minutes, an hour, take stock without
4 re-examination. It is the usual status conference then
5 in connection with the trial of General Blaskic. So the
6 court stands adjourned, we are going to be having a
7 closed session, a status conference, in about 15 minutes
8 time.
9 (11.40 am)
10 (Hearing adjourned until 10.00 am on
11 Monday, 8th December 1997)
12
13
14
15
16
17
18
19
20
21
22
23
24
25