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Page 25307

1 JUDGE AGIUS: All right. Thank you.

2 MR. OSTOJIC: May I do so, Your Honour?

3 JUDGE AGIUS: Yes.

4 WITNESS: WILLEM WAGENAAR [Resumed]

5 Examination by Mr. Ostojic: [Continued]

6 Q. Good morning, Professor.

7 A. Good morning.

8 Q. And I note that you're writing a couple of the numbers and names

9 down?

10 A. I enter them in my table for as far as I didn't have them, so I

11 will not unwantingly use the wrong names. I'm almost done. Right.

12 Thanks very much.

13 Q. Thank you, Professor, and just so the record's clear, we've also

14 asked you to provide any notes or other documentation that you have so

15 that the Prosecution may take a look at it, and this morning we met with

16 the Prosecutor prior to your testimony. Is that correct?

17 A. That's correct.

18 Q. And you gave the Prosecution, I think, a -- two pages of some

19 notes that you've maintained in handwriting, which was in English,

20 correct?

21 A. Yes, that's correct.

22 Q. And he's returned to you the original, and both the Prosecution

23 and I have a copy of that, and in due course we may file it with the

24 Court and distribute it to the parties. If it's necessary, we can do it

25 at the next break.

Page 25308

1 So if I may proceed. Professor, last Wednesday, I believe, we

2 were discussing the difference between identification and recognition.

3 Can you share with us, why does the difference exist in testing --

4 THE INTERPRETER: Could you please slow down for the

5 interpretation. Thank you.

6 MR. OSTOJIC: Thank you, I will.

7 Q. Can you share with us why, if at all, does a distinction or

8 difference exist in testing both identification and recognition of

9 persons?

10 A. Yes. Recognition -- the term "recognition" is used for people

11 who encounter someone, as I used to say, at the scene of the crime who

12 they already know beforehand. Whether or not that claim is true cannot

13 be tested by a psychological test; and later on, it would be useless to

14 confront such a witness with a lineup because that lineup would show one

15 person they have known for a long time and other persons they've never

16 seen at all. It would be very easy for them to identify this one person

17 they know, and it doesn't prove that they met this person at the scene of

18 the crime, so that would be a meaningless test.

19 Identification is used in this Tribunal for the situation where a

20 witness encountered someone, let's say again at the scene of the crime,

21 but that was the first time in their life. And if it was also the last

22 time in their life, it can be tested whether this person is the same as

23 one of the accused by having the accused in a lineup with other foils.

24 And now if the witness is able to identify this one person in the lineup,

25 that proves the likelihood that he have seen this person before, and, as

Page 25309

1 I said, if the only possible occasion where they met is at the scene of

2 the crime, then this localises, this places the accused at the scene of

3 the crime, so that would be a meaningful test.

4 The implication of that is that if the accused claims that he was

5 never at the scene of the crime, then the identification might be a

6 falsification of that claim; and therefore, it's a very, very important

7 test to do.

8 Q. Now -- and thank you. Professor, help me understand. What are

9 the standards or the tests that would be utilized in order to determine

10 or assess if a witness under the category of recognition is examining or

11 called upon to give a recollection of that which he purportedly saw. So

12 sticking with the category recognition, what are the tests that may be

13 utilized? And you've told us about identification. Which is the foils

14 and, as I call it, the photo board. But let's stick for the time being

15 with witnesses that fall under the category of recognition.

16 A. In the case of recognition, there are two important things to

17 consider. One is, if the witness claims this was a person already

18 familiar to him, then it must be investigated what the nature of this

19 familiarity is, when they met before and how the witness came to know the

20 name and the outer appearance of this person.

21 And second, when they encountered at the scene of the crime, it

22 must be established what actually the conditions for an accurate

23 perception were. The most important aspect of these conditions are

24 distance and lighting, at what distance did he see this person, and what

25 were the light conditions. And obviously, if the distance is too long or

Page 25310

1 the light is too poor, he would not be able to see very well the outer

2 appearance of the persons.

3 Q. Are there certain recognised standards in determining whether or

4 not distance may be considered too long or too far?

5 JUDGE AGIUS: Yes, Mr. Nicholls.

6 MR. NICHOLLS: Yeah, Your Honour, just an objection and more of a

7 question. There's not one word in the report I received about standard

8 tests for recognition witnesses. There is not one word in the report

9 about standards for light and distance, and I don't know why if this is

10 expert testimony which he's inquiring of it was not included in the

11 report, which was begun over a year ago. There are references in the

12 report to saying, well, lighting's important, whether the witness could

13 see is important, but there's not one word about standard tests. I'm not

14 aware of these tests, and I don't know why that hasn't been provided to

15 me.

16 JUDGE AGIUS: Mr. Ostojic, would you like to comment on that?

17 MR. OSTOJIC: I think my learned friend needs to read the report

18 a little more carefully. I think that those tests as he's cited in his

19 footnotes and articles which we provided are quite universally known, and

20 I think the Professor does in fact cite to them in our report, as we're

21 going to go through it, I hope, with certain witnesses.

22 JUDGE AGIUS: Perhaps it's the use of the word "test" that is the

23 confusing element here.

24 MR. OSTOJIC: I think I said standards or tests, but if I didn't,

25 it was just trying to use a different one. It's the standards that are

Page 25311

1 utilized in connection with recognition.

2 MR. NICHOLLS: There are citations -- I'm not going to try to

3 stop the testimony, Your Honour, but there are citations, two articles.

4 That is not the same as an expert report giving his opinion on these

5 conditions on the test, just having -- there are let's of citations that

6 are not included.

7 JUDGE AGIUS: That may be true, Mr. Nicholls. However, I

8 recollect quite vividly when the witness was testifying last week that he

9 explained the standards that have been arrived at over the years and that

10 they are pretty much standard throughout the world. I mean, whether they

11 are standards as such or a test as such, he was, of course, referring to

12 the manner in which recognition ought to be conducted. I don't know. I

13 mean, Professor, before we decide, do you think you can provide us with

14 an insight on the basis of the objection and what would be your reaction

15 to it?

16 THE WITNESS: Yes, Your Honour. On page 3 of my report, I

17 described that investigating the claims of a familiar person should be by

18 what I call a thorough analysis of the conditions in which the

19 observation took place. It's in the second linear on page 3, and I think

20 I was going to refer to what this thorough analysis entails and, of

21 course, logically the perception of a person at a certain -- in a certain

22 situation, whether he's familiar or not familiar firstly depends on the

23 perceptual conditions, and the decision for the witness that this is a

24 familiar person or an unfamiliar person logically comes after the

25 perception of that person. So for the two situations, familiar or

Page 25312

1 unfamiliar, the perception of a person at the screen of the crime is

2 exactly the same and doesn't have to be described twice in the report.

3 And that's why I only said a thorough analysis of the conditions and, of

4 course, these conditions are the same as in the case of an unfamiliar

5 person.

6 MR. NICHOLLS: Yes, Your Honour, and I don't want to belabour the

7 point, but the rules for lineups are very clearly stated in his report,

8 and the standards are set forth for this separate topic that is absent.

9 There's the reference to it, but there's no description of minimum

10 distances, lighting, things of that nature.

11 JUDGE AGIUS: All right, but what's it going to change? I think

12 there is a question, and the professor can either answer it or not answer

13 it. And he has answered it in any case, I mean, as far as I'm concerned.

14 I don't know that there's further information that he could give us. Is

15 that correct, Professor?

16 THE WITNESS: Well, I was in the process of answering it, and I

17 started with describing the factor distance, the significance of the

18 factor distance.

19 JUDGE AGIUS: Go ahead, please. Go ahead, and proceed with

20 answering the question, please.

21 THE WITNESS: As I said, the two most important factors for

22 judging the perceptual condition are distance and illumination [Realtime

23 transcript read in error, "elimination"], and I cited two of my own

24 publications, which both are studies on the ability of people to perceive

25 faces of other people at various distances and under various illumination

Page 25313

1 conditions. There are two publications: One is on familiar people; the

2 other is on unfamiliar people.

3 MR. OSTOJIC:

4 Q. Professor, excuse me. Let me just stop you because in the record

5 it says "elimination," but I think you're talking about illumination,

6 which is lighting. Am I correct on that?

7 A. Right. Yeah.

8 Q. Just on two instances, I notice that we had a hard time hearing

9 you.

10 A. Oh.

11 Q. So it's distance and illumination?

12 A. Illumination, with an I. Yeah.

13 Q. Thank you. If you could just proceed.

14 A. I will. And the bottom line of these two publications is that

15 the difficulties of perceiving other people are independent of

16 familiarity or unfamiliarity; the outcomes are the same. That also

17 answers, I think, the question of the Prosecution, why did I not discuss

18 them for both situations separately? Well, actually, they are the same.

19 That's not only a logical conclusion. It's also based on my empirical

20 research.

21 Q. And is there a specific guideline as to what that is in terms of

22 fixed measurements such as metres when we discuss distances?

23 A. Yeah. What my research shows is that at distances from 0 to

24 about 12 metres, there is no problem of perceiving other people. At 20

25 metres, in my studies it has dropped considerably and -- which means that

Page 25314

1 -- which does not mean that you cannot recognise people at 20 metres, but

2 the probability of an error increases rapidly at those distances.

3 Q. And what would you call the area from 12 to 20 metres?

4 A. From 12 to 20 is -- that is where doubt starts to rise. Beyond

5 20, it definitely is a very risky thing to accept a recognition; below

6 12, it's quite safe; and in between, risk starts to rise. There's no

7 sharp demarcation line, but between 12 and 20, that's where the problem

8 starts to rise. I can't help it that there are no very strict

9 conditions, but science is just like that.

10 Q. Now, Professor, what about other factors in determining or

11 testing this recognition category of witnesses that we'll get into

12 specifically. Are there other factors that one would inquire such as the

13 height or other descriptive characteristics in order to assess whether

14 persons who fall within the category of recognition should be deemed

15 reliable in the evidence that they're attempting to put forward?

16 A. Well, you mentioned height, but I think height comes in later.

17 The -- after illumination and distance, the thing you need to consider is

18 how much time did the witness have to observe that person? Was that in,

19 say, a flash, or was it, say, many minutes or maybe hours? From which

20 aspect did the witness see that person, only from behind or only from the

21 side? As you may remember, if you see a person only from the side

22 whereas most photo boards contain pictures from the front, that might be

23 extremely difficult for a witness to do. So it's important whether he

24 could see that person in the face, from the side, or only from behind.

25 Was the witness in a quiet condition to make observations or, as

Page 25315

1 in the Kupreskic case, was the witness trying to escape and running? And

2 then an important factor appears to be, was the witness already expecting

3 to see a certain person, because that might make it more easy at a

4 distance or in low illumination conditions to see what you expect instead

5 to see what is really present. So expectation is clearly important.

6 Now, you mentioned height, and maybe I can answer that question a

7 little bit broader. In people's descriptions, and usually they are

8 interrogated about that, there's usually mention of how tall was that

9 person, what was his build, how heavy was he, and how old was he? And

10 clearly if you perceive a person, you can't see exactly how tall he is in

11 centimetres or inches. You cannot see exactly how old he is or how much

12 kilograms or pounds he weighs. So when you ask witnesses to answer such

13 questions, you ask them to guess, to make estimates about something they

14 could not actually see. And I myself use as a rule that if they make

15 these guesses they can easily be 5 centimetres off, 5 kilograms off, and

16 5 years off. You should not be surprised if the error is double of that,

17 so occasionally it can also be 10 centimetres off, 10 kilograms off, 10

18 years off.

19 If the discrepancy between what the witness says and the person

20 he allegedly saw is more than 10 centimetres, more than 10 kilograms,

21 more than 10 years, then you should start to consider the alternative,

22 which is that he saw a different person because beyond 10, that shady

23 area starts where there is doubt about whether he saw the alleged person.

24 Q. And what's the area that we would call from the 5, whether it's 5

25 centimetres, 5 kilos, or 5 years to the 10 centimetres, 10 kilos, and 10

Page 25316

1 years? Is that also a grey area, or that's where you have some doubt, or

2 explain further, if you will.

3 A. Well, between 5 and 10, you find repeatedly -- I've seen many

4 cases, and -- it's not an absolute exception to be between 5 and 10 off

5 on those three dimensions. So there is no good reason to say -- to

6 conclude, that witness must be talking about a different person. Beyond

7 10, it becomes a hypothesis worth investigating, whether this was a

8 different person.

9 Q. And thank you for that. I know we covered, now, the height,

10 weight, and age, at least briefly. But let's go back to the one you've

11 considered to be a factor that's important after distance and

12 illumination, and that, sir, was when you said time, time to observe.

13 Now, what's the significance of that, if you could share with us your

14 understanding, and I think we can logically assert or we can come up with

15 our own standard or understanding of it, but from your experience what is

16 the standard for time to observe?

17 A. Well, actually, time is only an indication of something that is

18 psychologically important, which is attention. If you see a lot of

19 people passing by and one particular person is visible for a few seconds,

20 there's no absolute guarantee that you pay attention to that person at

21 all. And if you do not pay attention, you do not properly perceive, and

22 consequently, no information is stored in your memory.

23 If you meet a person, on the other hand, for several hours, you

24 talk to him, attention cannot be a problem. You must have paid attention

25 to this person, which means you had all opportunity to see him and commit

Page 25317

1 the information about his appearance into your memory. So time in itself

2 doesn't tell us very much, but time leads us to attention.

3 Now, the thing is that most witnesses are able to report how much

4 time it was, so that's good question to ask. But as a psychologist, it

5 is significant to me because time tells me something about attention.

6 Q. So help me understand this: Based upon a reasonable degree of

7 certainty, the lower time a witness who is considered in this category as

8 recognition spends with an individual that he's purporting to identify,

9 what's the significance of that versus the greater amount of time such a

10 person under this recognition category spends with an individual? Is

11 there a variance or a difference just as a matter of time? For example,

12 the more time you would spend someone, can we conclude that the more

13 likelihood that you will recall that person, or the less time or a

14 fleeting glance at someone may or may not be considered relevant? Help

15 us with that.

16 A. Yeah. If you talk about a fleeing glance, there are some

17 countries where some fleeing glance testimony even is forbidden because

18 it's notoriously dangerous to show that if you saw a person in a fleeing

19 glance that you really stored into your memory what this person looked

20 like. The situation where you have a conversation with the person,

21 that's not at all a fleeing glance, and then in a conversation you must

22 look at one another, so you cannot fail to note the appearance.

23 I'm not saying that you could not perceive people in a fleeing

24 glance. I'm also -- I'm only saying that it becomes increasingly risky

25 to assume an accurate perception of a person when the time of perception

Page 25318

1 gets very short. It becomes risky because the likelihood that you had an

2 accurate perception is decreasing.

3 Q. Now, let's -- if we can move on and look at some of the rule, and

4 we touched upon a couple of them last week, but I wanted to ask you, you

5 mention in Rule number 2, "unconscious transference." And if you could

6 just put that in better perspective for us. I think I understand it, but

7 I still may need your assistance in that regard.

8 A. Unconscious transference is -- occurs in a lineup where the

9 supposition is that the accused shown among foils in the lineup is either

10 never seen by the witness or seen at the scene of the crime.

11 Q. So this would be --

12 A. Wait --

13 Q. I'm sorry. Go ahead.

14 A. The risk is that the witness actually saw this accused in a

15 different place, not at the scene of the crime but somewhere else, maybe

16 on a billboard or when he was travelling in the train and sat opposite

17 him. If the witness does not realise that he saw this person at another

18 place but, in fact, when he looks at the photo board realises that only

19 one of these people looks familiar, he may point at that person and add

20 in words, this is the person I saw at the scene of the crime, and what

21 unconsciously the witness is doing - and that's why it's called

22 unconscious transference - is transfer the encounter he forgot about, the

23 billboard or in the train, to the scene of the crime. Now the witness

24 thinks he looks familiar because I saw him at the scene of the crime.

25 So one condition for photo board, photo lineup testing is that it

Page 25319

1 must be absolutely certain that there is no other possible place where

2 the witness could have seen the accused apart from that one encounter at

3 the scene of the crime described in the indictment.

4 Q. Okay. Thank you. But just so I have a better appreciation for

5 it, since we are -- and I want to make sure we all understand is we're

6 talking about identification in that category as opposed to recognition.

7 What occurs, if anything, if a Prosecutor or investigator with the

8 Prosecution would show a witness who falls within the category of

9 identification other photographs, although not a photo board, but

10 photographs or videos of a proposed person that they claim to have seen?

11 What effect if any does it have on that person's statement, and I think

12 you touch upon it on your rule, but you used the word "irrelevant." I'm

13 directing your attention to, actually, the first full paragraph of your

14 report, and it's the very last word in that paragraph. And I understood

15 it to be - and I'll let you answer it - to be unreliable, but can you

16 share with us your thoughts on that and your opinions?

17 A. Yeah. Well, now, you ask me a very complicated question.

18 Q. I know.

19 A. I'm not sure whether it is one question, but let me try to answer

20 it. What I said is that the witness may absolutely be honest when he

21 says, I believe that I met this person at the scene of the crime, and

22 that's why I'm able to identify him in the photo board. If actually the

23 witness saw this person somewhere else but forgot it, you may ask the

24 person, are you sure you did not see this person in another place? An

25 honest witness might answer, yes, I'm sure, I never saw him at any other

Page 25320

1 place; and still, he might be wrong about that.

2 So it does not really help to ask witnesses who take part in

3 photo board identification tests whether they are certain that they met

4 this person at the scene of the crime and no one else. Although this is

5 an absolute condition for running the test, you cannot verify whether

6 this is the case by just asking the witness. You should investigate the

7 situation in another way.

8 For instance, in the previous case in which I testified, the case

9 was that one of the accused had been running for a political office, so

10 his face might have become known to people just by looking at the

11 television or looking at billboards. Now, witnesses may have forgotten

12 that and now believe they know this face because they saw this person

13 commit criminal acts. But by just asking them, are you sure you never

14 saw this face in a different place, that is not the right way to solve

15 that problem. You must in the investigation yourself certify that this

16 person had never been made visible to the witnesses.

17 Q. Thank you.

18 A. Does that answer your question?

19 Q. I think it does, and I apologise that it was perhaps compound,

20 but I want to stick with unconscious transference. How can we make a

21 determination, or can we, of whether or not a witness who falls within

22 the category of identification actually underwent an unconscious

23 transference?

24 A. Well, logically the situation is that investigations can never

25 exclude the logical possibility that there was another encounter. I

Page 25321

1 would say only God knows that. But on the other hand, investigation may

2 bring to the surface those other situations, and then the answer is

3 given. To give you an example, if during the investigation and prior to

4 the photo board testing the investigators themselves showed pictures of

5 the accused to the witness, then we know that there has been this type of

6 prior encounter, and therefore, the photo board identification test

7 should be excluded.

8 So I'm not saying investigation can guarantee that an encounter

9 did not take place; but on the other hand, investigation sometimes reveal

10 that the encounter did take place. That's the relevant thing.

11 Q. And just -- let's try to make a practical application at least to

12 this rule. I know you're going to have to utilize Rule number 5, but I'd

13 like to discuss Mr. Egbers for a minute. I think if you recall his

14 testimony, and I know you have your notes there, but for the purpose of

15 moving it along he was a member of DutchBat, I think, as we all know.

16 And keeping in mind this unconscious transference, if you remember his

17 testimony, was he asked by the investigators to give a description, or

18 was he simply shown videos seven to eight times which fit a general

19 description of what he purported to see, and then tell me if that rule

20 that you have, among others, were violated within connection with the

21 testimony that the Prosecution was proffering with that witness?

22 JUDGE AGIUS: One moment, Professor. Yes, Mr. Nicholls.

23 MR. NICHOLLS: That was a little bit leading, and I'm going to

24 start objecting to leading.

25 JUDGE AGIUS: Yes, Mr. Ostojic.

Page 25322

1 MR. OSTOJIC: Really, they should look at the question. I don't

2 think it was. If you really look at it, it's a fair question. I'm not

3 directing him saying the Prosecution did make that mistake. It's in his

4 report, but I'll ask the question in a very simple and straightforward

5 manner so we don't have many more interruptions. So I will restate it.

6 JUDGE AGIUS: Okay. Thank you.

7 MR. OSTOJIC:

8 Q. Professor, did you review the testimony of a gentleman by the

9 name of Mr. Egbers?

10 A. Yes, I did.

11 Q. Can you share with us which if any category under your analysis

12 with his testimony with respect to identification or recognition fall

13 under?

14 A. Yeah. My notes say that the witness, Mr. Egbers, said that he

15 was once introduced to Mr. Beara. That was the first time he met him, so

16 that was at that time not a familiar person. It was an unknown person to

17 him. Mr. Egbers said Beara introduced himself, and Egbers also added

18 that he did not pay much attention; he saw him only a few minutes.

19 So that to my mind would be an ideal situation to apply a photo

20 identification test --

21 Q. Well --

22 A. -- because two things: One, he was unknown to him, so he could

23 pass positively the photo identification test only if the person he saw

24 was really Mr. Beara; then he might identify him in the test. The second

25 thing is, his statement leaves some room for doubt. He said it was very

Page 25323

1 short; I did not pay much attention. So there might be a question, whom

2 did he actually see? The person introduced himself as Beara, but later

3 he also said, I saw a giant colonel who might have been Beara. So that

4 uncertainty can be resolved by asking him to take part in a photo test,

5 and say -- from my point of view, I would say, and that solves it. If he

6 is able to identify him, that makes it very likely he actually saw

7 Mr. Beara. If he is not, we don't know whom he met. We know for sure he

8 doesn't have a very accurate memory.

9 Q. Did the investigators to the best of your knowledge having

10 reviewed the documents that were presented to you conduct a photo

11 identification board with witness Egbers?

12 A. No.

13 Q. Did they conduct any sort of identification process to show them

14 any photographs or videos?

15 A. Well, my notes say that he was shown a video, no photos, and that

16 video was a very short video of an actual event and, of course, the scene

17 taken was never organised to constitute a fair lineup. There were no

18 foils all fitting the same description. So that video, I don't know

19 exactly which purpose it served. It's not for me to decide why it was

20 done, but I can state that that video, showing the video cannot come in

21 the place of, say, a proper lineup identification test.

22 Q. Now, do you, Professor, recall how many times the Prosecution

23 showed this short video to Mr. Egbers?

24 A. No, I don't know how often -- that's your question, how often he

25 showed the video? This was a very short video, but I have no notes how

Page 25324

1 often it was.

2 Q. What if in his testimony Mr. Egbers says that he was shown the

3 video seven to eight times before he can make an assessment as to whether

4 or not that may be the person he purportedly saw, and I think we could

5 find that specifically as I've given it to my learned friend in the

6 transcript, page 2850.

7 A. Okay, yeah, yeah. I see that this -- it was seven or eight

8 times, yeah.

9 Q. And I think if you glance at your table that you have --

10 A. Yeah.

11 Q. -- you may be able to be assisted with having that information

12 and highlighting it for us, in fact.

13 A. Yeah. Well, showing it once or eight times in my perspective

14 does not change my opinion that such a video can never come in the place

15 of a photo lineup, but if your question is, what does it mean if Mr.

16 Egbers could even in the video not identify anyone until he saw it seven

17 or eight times, I must say it's very hard to say what that means because

18 then you need a very accurate description of that situation. I must

19 expand a little bit on that. The situation of a photo lineup test is

20 very much standardised. We know exactly how it must be done, what is

21 said, how often things are shown, and the record also usually reflect the

22 actual proceedings. So there's no doubt about what happened. If you

23 start to see -- to show videos or photos according to another protocol,

24 then we suddenly -- we don't know what actually happened.

25 So in this case I would want to know, why did they show it seven

Page 25325

1 or eight times? Did they say, we'll show you, it's very short, don't

2 respond, we'll show you it a couple of times so you can see better, and

3 is the reason that -- did he not respond was he was told not to respond;

4 or did he say after the first time, don't recognise anyone, and then they

5 said, we'll show you again, and up to eight times, he said I don't -- so

6 those proceedings must be very explicit before an expert can say anything

7 about it.

8 In this case, I've not followed up that aspect of the file and of

9 Egbers' testimony because to me the most important thing is, Mr. Egbers

10 did not participate in a proper photo lineup test whether to my mind he

11 would have been an ideal witness to do that.

12 Q. Now, and I know we're discussing the rules as well as trying to

13 make a practical application to some of the testimony as you've done, but

14 I'm just trying to focus this portion of your testimony in giving your

15 answer. How significant or important is it to properly construct and to

16 prepare questions that you would ask a witness that falls under the

17 identification category such as Mr. Egbers, and I would direct your

18 attention, Professor, to your own Rule number 5. And I believe that's

19 the one that's applicable, and you can tell me if I'm wrong.

20 A. Okay. This, I think, is very much related to what I said, which

21 is the photo -- the proper photo lineup test is very well defined. The

22 instructions given to the witness have been studied all over the world,

23 and we very much agree about what a witness should be told and what the

24 witness should not be told.

25 The witness should first have described a certain person, and

Page 25326

1 then the question in the photo lineup -- subsequent photo lineup test is,

2 this person you just described, is he present in this photo lineup test,

3 yes or no?

4 Q. Well, do we know, Professor, what those questions were that the

5 Prosecution was asking Mr. Egbers in particular?

6 A. No, no. I'm not aware of an accurate recording, and I'm not

7 surprised because showing a video is also not a proper and well organised

8 photo lineup test where the instructions to the witness are clear.

9 So for instance, to give you an example, one of the most

10 important aspects of instructions in a photo lineup test is that you tell

11 the witness, do not guess. If you do not recognise someone immediately,

12 do not try to guess. Only point at one of these people if you are

13 certain that you recognise them.

14 Now, if you show someone a video with the question, do you

15 recognise anyone here, at least the witness should have been told, do not

16 guess, and that should have been recorded, the instructions. We know

17 that the proportion of false identifications raises dramatically if this

18 very simple sentence "do not guess" is omitted from the instructions.

19 Q. And Professor, I'm really looking when we discuss this witness

20 Egbers, you mentioned in your report, and I know we're jumping ahead a

21 little bit, but I think it might be an easier way to proceed. And if you

22 could look on your -- I think it's page -- the section where you say

23 "other attempts at identification," which follows part 2 of your table,

24 and it's under section 3. And you, although, discuss two other witnesses

25 that the Prosecution has called, Babic and Erdemovic, as well as Mr.

Page 25327

1 Egbers, within that section you highlight, I think, for us that there

2 were several rules that were violated in your opinion in connection with

3 the procedure and process that the Prosecution and its investigators

4 utilized for purposes of identification, which include Egbers. We've

5 talked about Rule number 5. Sticking with Mr. Egbers, what other rules

6 do you see with respect to the testimony that was proffered were

7 violated?

8 A. Well, if you go -- and you're relating to showing a video to Mr.

9 Egbers, correct?

10 Q. Correct.

11 A. That particular situation.

12 Q. And if I may add, given that we just discussed -- to be fair to

13 the Prosecution, given also the questions that they may have formulated

14 because you looked at the transcript, and the Prosecution I think as

15 reflected in the transcript told the witness that they were investigating

16 a person by the name of Beara.

17 A. Yeah.

18 Q. So given that, although we know now from you the significance of

19 that as well as the video, can you share with us what other rules were

20 violated?

21 A. Yeah. Yeah. If the situation was that Mr. Egbers claimed to

22 have met the accused Mr. Beara only once, not before that encounter and

23 not after, that at least the conditions for a lineup test are fulfilled.

24 The only question then is, showing a video, does it qualify as a lineup

25 test?

Page 25328

1 There's a second condition, which is Mr. Egbers should have given

2 a description of the person he saw which is detailed enough to choose

3 foils that fit the same description. So Rule 3 may be relevant in as far

4 as it's not absolutely certain that Egbers gave an accurate description

5 of the person he saw.

6 Rule 4 was violated because other people shown in this video

7 clearly were no foils in the sense that they were chosen according to the

8 description given by Mr. Egbers.

9 Q. Well, would we call that a suggestive type of video? You

10 mentioned it, and help me understand what a suggestive photo board is.

11 A. Yeah. A suggestive photo board is a photo board where, actually,

12 only one person is shown who fits the description just given by the

13 witness, and the others do not fit that description, so automatically the

14 attention of the witness will be focused upon that one photo. And that's

15 a highly suggestive situation because then if the witness has only the

16 slightest tendency to guess, he will point at this only person who fits

17 the description.

18 So Rule 5 is relevant, as we said, because we don't know what the

19 instructions were; they must be recorded.

20 Q. Professor, just so we are all following --

21 A. So that's my reason to say such a showing of a television -- a

22 televised event, that is not at all the same as showing a

23 well-constructed photo lineup.

24 Q. Thank you for that. Now, let's turn to the witness Erdemovic who

25 we touched upon last week, showing you -- I think it was a stipulation

Page 25329

1 with the 1st of May, 2007, with another accused in this case where they

2 did show a photo board. I'm not going to ask you whether that photo

3 board was proper, but the witness in that case and the Prosecution have

4 agreed he was not able to be depicted. There was another stipulation,

5 though, that I believe that you read, and it's reflected in the materials

6 that you reviewed, and it involved Mr. Beara and that witness, Erdemovic.

7 Do you remember, sir, that material that you reviewed?

8 A. Yeah.

9 Q. Okay. With respect to the photograph that was shown to Mr.

10 Erdemovic, do you have any opinions as to whether or not that photograph

11 with -- to help you recall, with five individuals in it, it was not a

12 photo board necessarily, but that photograph shown to the witness, was

13 that highly suggestive?

14 A. Yeah. That was a photo, and I think that's the photo we were

15 shown in the previous session where you see one colonel sitting among a

16 number of much younger other military people. The rank of this colonel

17 can be seen. There's one person who is older. Not only that, there's

18 one person who is clearly the leader by the way he sits, and he takes

19 much of the space. It's clear that no simpleton military person would do

20 that and push away his own colonel. So it must be clear to everyone who

21 sees this photo for the first time, if the question is, who's in charge

22 here, who's the colonel, that was only one person who qualify because of

23 the way he sits, because of his insignia, and because he is much older

24 than the others. So if that is how the witness also described the person

25 he saw, a colonel who is in charge, who is older than normal soldiers,

Page 25330

1 who might be in his 50s or so, then that photo shows -- reveals exactly

2 the aspect of a suggestive lineup, which is, does only one person fit in

3 the description?

4 Q. Well, help me understand this: Why would the Prosecution or its

5 investigators in this particular circumstance with this witness Erdemovic

6 provide a photo board with one of the accused and not provide a photo

7 board with respect to Mr. Beara? Now, we all know from that stipulation

8 that Erdemovic did not identify Mr. Beara, even though the photograph was

9 highly suggestive or suggestive at the very least, but why would the

10 Prosecution do you think not prepare a proper photo board with respect to

11 this witness?

12 A. I have no way to --

13 JUDGE AGIUS: Yes, one moment before you answer. Yes, exactly.

14 MR. NICHOLLS: He answered it. Thank you, Your Honours.

15 JUDGE AGIUS: Thank you.

16 MR. OSTOJIC:

17 Q. Well, help me understand this, Professor. With respect to this

18 witness Mr. Erdemovic and the one photo board that -- although I know you

19 didn't analyse it to determine whether it was proper, you looked at the

20 photograph which bear Mrs. Beara. Do you know the significance of

21 showing a type of photographer that was shown to Mr. Erdemovic where it

22 depicts in a highly suggestive manner who the person was? What

23 significance may that have on someone's recollection or in this

24 unconscious transference that we were previously discussing?

25 JUDGE AGIUS: One moment before you answer that question,

Page 25331

1 Professor. Reference previous page, line 20. Before I intervened, there

2 should be in the transcript the witness's beginning of an answer. I

3 recollect him saying, "There is no way I could know that." That does not

4 show in the transcript, and it's important because otherwise Mr. Nicholls

5 intervention doesn't make sense.

6 Yes, Professor. You could answer the question now.

7 THE WITNESS: I'm not certain I understand your question

8 correctly, but there's one important thing to say about showing Mr. --

9 the witness Erdemovic this photograph. Mr. Erdemovic was also a witness

10 who met -- who says, who stated he met a person this far unknown to him.

11 So Mr. Erdemovic, his statement could be further tested by asking him to

12 participate in a photo lineup test. But after he saw this one picture in

13 which Mr. Beara is featured, and I think there is -- although I have no

14 way to assess it was Mr. Beara. I assume that's the supposition

15 underlying your question. If he was shown a picture of Mr. Beara, from

16 there on Mr. Erdemovic cannot take part into a proper photo lineup any

17 more, which means just by showing him a photograph for whatever purpose

18 that I cannot fathom, I think, you lost the opportunity of really testing

19 him, so there is a price of showing photographs to witnesses.

20 MR. OSTOJIC:

21 Q. So would there be any significance to a subsequent preparation of

22 a photo board showing a witness like Erdemovic given what we know, that

23 he was shown this other photograph that would be considered suggestive?

24 A. So the risk would be that if later on you ask Mr. Erdemovic to

25 take part into a proper photo lineup, that indeed one of the persons

Page 25332

1 shown to him would look familiar, and he would not realise that it was

2 because he saw him in a photograph, and if he really had forgotten that,

3 he might now claim, this is the person I met before, whereas in fact it

4 is the person he saw in the photograph. That would be an example of

5 unconscious transference, and that's exactly why you either should not

6 show photographs to witnesses who are still expected to take part in

7 photo lineups; or conversely, that's exactly why after you have shown

8 photos line -- photos, you should decide -- you should exclude this

9 witness further from photo lineups. Now, that's actually what happens.

10 I am not criticizing that. Mr. Erdemovic did not take part in photo

11 lineups, so nothing has caused wrong there, although I think from the

12 viewpoint of investigation it could have been very useful to ask him to

13 take part in a photo lineup.

14 Q. Now, let's direct our attention to this third individual that you

15 highlight in your report, which we've initially marked as 122, which is

16 Babic. With respect to that, did the photo -- did the Prosecution

17 violate any rules in connection with their attempts to have Mr. Babic

18 make an identification?

19 A. Yeah, from my notes at least, Mr. Babic claimed that he met with

20 a person this far unknown to him. He says he saw a lieutenant-colonel

21 but didn't know who exactly that colonel was, so he met a person with a

22 certain rank. So, also, Mr. Babic would be an ideal witness to take part

23 in the photo lineup because he never saw this person before, there's

24 doubt about whom he actually met, and that question can be solved by a

25 proper photo lineup. He gave a description: blond, thin hair, short --

Page 25333

1 short hair at the back, and a receding hairline, no mustache, no glasses.

2 That really leaves room for many different people, and since in the

3 pictures I have seen of Mr. Beara there were always glasses, the positive

4 mentioning of no glasses, not just leaving out glasses, but explicitly

5 mentioning I saw no glasses even increases the doubts about whom he

6 actually saw and makes it, therefore, the more relevant to test him in a

7 photo lineup. He saw a tall, strong, heavily built person in his 50s.

8 Then he was shown pictures, a number of pictures, and he didn't

9 recognise anyone in those pictures. Now, the significance to me is that

10 from there on, from the moment he was shown pictures supposedly also

11 featuring Mr. Beara, Babic could not be tested in a photo lineup anymore.

12 Q. So what is --

13 A. That he did not recognise anyone in the pictures is more

14 difficult for me to interpret because whether he should have recognised

15 Mr. Beara in these pictures if he really met him at all also depends, of

16 course, on the quality of the pictures.

17 Q. Okay. Thank you for that. Were there any other -- and I call

18 them lost opportunities, but you can tell us what it is. But were there

19 any other lost opportunities where the Prosecution had where they could

20 have simply with this photo identification board or -- and any other

21 manner that you've suggested preserve and capture such testimony with

22 respect to identification other than these three individuals where the

23 identification tests were improper? So with the exclusion of Babic,

24 Erdemovic, and Egbers, were there other instances?

25 A. Yeah. The logical situation is this: My table on page 9 lists

Page 25334

1 12 witnesses. Three witnesses are categorized as familiar; nine are

2 categorized as unknown. So in principle, those nine could have been

3 tested in a photo lineup. Now, I wrote at the top of page 10 that

4 probably numbers 152 - that's PW 162 - and number 131 - that's Mr. Peric

5 - should not have been tested because after their encounter they might

6 have had another opportunity to meet or see Mr. Beara, and that violates

7 one of the conditions. There must be either no encounter or, at the

8 most, one. And that leaves seven witnesses who could have been tested,

9 and the two you mentioned, Mr. Babic and Mr. Erdemovic, are only two out

10 of these seven. That leaves five who have not been tested.

11 Now, I'm not in the position to order identification testing.

12 The only thing I could have said is that the statements made by these

13 witnesses, the reliability of those statements could be much -- much

14 easier be judged if we also had the outcomes of proper identification

15 tests.

16 Q. Okay. Thank you for that. And just so we're clear, we actually

17 discussed three, sir, not just that Erdemovic and Babic, but --

18 A. Also Egbers.

19 Q. -- also Egbers, correct. I just want to make sure the record's

20 clear. And also, you mentioned one of the witnesses Peric, P-E-R-I-C, as

21 -- his given number as we've known it from time to time was 131. I just

22 wanted to make sure that's clear on the transcript.

23 Let's proceed and talk about -- at least for a few moments about

24 recognition again. With respect to recognition, you've categorised how

25 many witness that would fall into that category for purposes of your and

Page 25335

1 our assessment?

2 A. Yes. There are three who claimed that they met with the person

3 they saw before, so that was to them a familiar person, which logically

4 implies that their claims cannot be tested by a lineup, photo board

5 procedure.

6 Q. And just so that I'm following you, in that instance a photo

7 identification board is not indicated or is not something that we would

8 need, correct?

9 A. No. It might even be misleading because they might find it easy

10 to identify Mr. Beara in a photo board because they knew him anyway, and

11 it doesn't prove they met Mr. Beara at the place that they described.

12 And for any person not being totally aware of the difference between

13 familiar and unknown people, such people might believe that the photo

14 board proves the reliability of their statements, but it doesn't.

15 Therefore, presenting photo board identification for familiar witnesses I

16 would say is undesirable, is not helpful to the Court, and is misleading

17 those others who are not aware of the distinction between the two

18 categories.

19 Q. Now, you mentioned these three individuals that fall within this

20 recognition category, who are familiar -- who were purportedly familiar

21 with Mr. Beara, I say "purportedly," and we'll address one in particular.

22 Just so that you follow me correctly, just -- the three individuals is a

23 person by the name of Bircakovic, Celanovic, and the third one,

24 Professor, just so that we're focussed, does have a pseudonym, and he's

25 been identified as PW 161, so with respect --

Page 25336

1 A. That's correct.

2 Q. Thank you. With respect to this third individual, we will not be

3 referencing his name, but we'll follow and identify him simply for our

4 purposes as PW 161.

5 Were you able to review -- are those the three individuals that

6 fall within that category of familiar and recognition that we've been

7 discussing?

8 A. Yes, those are the three.

9 Q. So that we can see the parameters of your testimony a little more

10 clear, the balance of the witnesses, under which category would they fall

11 on or under?

12 A. I'm not getting your question. Can you repeat it, please?

13 Q. You have shared with us the category of identification and

14 witnesses who are unfamiliar and only had an encounter purportedly with

15 Mr. Beara. We discussed three. You identified 7 out of those 12. I

16 want to go through what other categories there are. We've now identified

17 a second category that we call recognition. Within that category you

18 have --

19 THE INTERPRETER: Could the Defence counsel please slow down for

20 the benefit of the interpreters.

21 MR. OSTOJIC: I do very much apologise again.

22 Q. Professor, I'm going to walk you through it hopefully slower so

23 that we can understand it. You have this category of witness of who have

24 purportedly recognised or are familiar with Mr. Beara. I think we have

25 three of them in that category, correct?

Page 25337

1 A. Yes.

2 Q. We've highlighted in part the testimony with respect to witnesses

3 who have not -- or were not familiar with Mr. Beara and who purportedly

4 have seen him and the flaws if you will of not preparing a proper photo

5 identification board. Is there any other category other than this one,

6 or is this the last one, the recognition with these three individuals

7 that we may discuss?

8 A. And you're still referring to the 12 witnesses in my table,

9 right?

10 Q. Yes, sir.

11 A. You can split them up in the following manner: Three claimed

12 familiarity, so they cannot be tested in the photo lineup.

13 Q. And those are the --

14 A. Nine claimed that they saw an unfamiliar person, which leaves in

15 principle nine to be tested in a photo lineup. But two of them should be

16 excluded because they might have a later encounter. That leaves seven,

17 and of those seven we have discussed three, and that leaves four others

18 who also could have been tested in the photo lineup.

19 Q. And just so we have a complete record, those four others, and I

20 apologise very much for leading on this issue, but I think we know that

21 it's PW 165, it was Mr. Boering; PW 104; and a witness by the name of

22 Milosevic, which is under number 126. Is that accurate?

23 A. That's correct.

24 Q. Did you glean from the record with respect to those four who were

25 not shown a photo board, did you glean from the record any understanding

Page 25338

1 or appreciation as to why the Prosecution or its investigators did not

2 with respect to these four witnesses show them a photo identification

3 board?

4 A. I am afraid we are coming very close to a question that we've had

5 a couple of minutes before, which is, would I know why the investigators

6 and the Prosecution do certain things; and I would say it's not my task

7 to know that. I did not find an explicit statement declaring why it

8 would have been undesirable for any of these witnesses to do that, nor

9 why it would be absolutely physically impossible to do that.

10 And there are such conditions, like if a witness says I met with

11 Mr. Beara but then gives a description of Mr. Beara which is so far off

12 that choosing foils in accordance with this description would immediately

13 make the lineup biased because then all foils would resemble another

14 person and not Mr. Beara, in that case there would be a good logical

15 reason for not testing this witness in the photo lineup, which doesn't

16 mean you have to discard that witness. It only means it cannot be tested

17 in a photo lineup. But I did not see, if that's the question, for the

18 seven witnesses who qualified but were not tested such a reason in the

19 records that I could also follow why, then, they were not further tested.

20 Q. And all I was asking, and forgive me if it sounded like a similar

21 question, I was just curious to know from your review of the documents

22 that you received whether you found any reason that the Prosecution may

23 have given us or anyone as to why they didn't, so I'm not asking you to

24 speculate. But let's go now, turn to this recognition category with the

25 three witness. The first witness we'd like to look at if we may is Mr.

Page 25339

1 Bircakovic, which is 142, and I think you in your report after part 2 --

2 it's under paragraph in bold number 4. Do you see that, and just so

3 everyone can follow along with us, and I believe it's on page 10.

4 A. Now, what's your question about Mr. Bircakovic?

5 Q. Yes. I just wanted to make sure we're on it.

6 A. Yeah.

7 Q. With respect to this witness, sir, are the conditions upon which

8 the witness claims to have seen Mr. Beara relevant in your opinion?

9 A. Well, Mr. Bircakovic did not positively say he saw Mr. Beara at a

10 certain place, a well known person to him. He said he may have seen him,

11 but he was not certain who he saw. Well, that's a logical problem. If

12 you first claim familiarity and you meet a familiar person at a certain

13 place, then in principle you're also quite certain whom you've met

14 because it's a familiar person. If you meet a person who you call

15 familiar but you are not actually certain who that is, then maybe you

16 should question the familiarity, and this makes it very difficult to

17 categorise this particular witness in one or the other categories, which

18 makes it for me also extremely difficult to say what the proper way of

19 testing this witness should be. Why he wasn't certain whom he had met

20 can depend -- can be the result of that he wasn't so familiar or that

21 Mr. Beara was very familiar but the actual viewing conditions were very

22 bad, so he couldn't see who that was. There are so many possibilities

23 that I would be forced to guess at what's happened here, and it's not my

24 task to guess. I can only say this makes it a very difficult to

25 understand witness from my respect. There's nothing I could do with it.

Page 25340

1 Q. If we look at your paragraph number 4 on your report.

2 A. Yes.

3 Q. And help me understand this sentence, although to keep it in

4 context I may have to read the preceding sentence. It says: "For the

5 three witnesses who were already familiar with Beara, no formal

6 identification test can be held." You proceed, Professor, stating --

7 this is where I have the question, so just bear with me: "The only thing

8 that can be judged is whether the conditions described by them would

9 allow a reliable recognition."

10 Further, with respect to this witness in particular, you state:

11 "For Witness number 142, this seems not to be the case, as he was not

12 even certain that he met with Mr. Beara."

13 A. Yeah.

14 Q. What were -- how do you reach this opinion, if you could tell me

15 what the basis is for this opinion.

16 A. I think this is the same as I just said. If he knows Mr. Beara,

17 then he meets him but isn't certain that is Mr. Beara, then one

18 explanation of that is that the perceptual conditions, the conditions for

19 viewing this person were so bad that you cannot trust his statement about

20 it. But another logical explanation is that although he says Mr. Beara

21 was familiar to me, in fact, he was not. So you also have to consider

22 the basis on which he claims this familiarity. If it had been his

23 neighbour for 25 years, you can trust he is familiar. But there is not

24 so much information in the file about on what grounds he declares that

25 Mr. Beara was a familiar person. Where did he meet him before that? So

Page 25341

1 there are two explanations of this events, either Mr. Beara was not

2 familiar, or if he maintains he was familiar, then the viewing conditions

3 must have been very bad, which raises doubt about his entire further

4 statement about what happened then.

5 Q. And just to try to move it along, although we are approaching the

6 break, I want to look at the next two witnesses with respect to this

7 category of recognition. In the last section of your report on paragraph

8 11, you talk about -- and we're going to come back to it, so I'm not

9 going to take it out of context, but I want to just get a flavour for why

10 and how you give this opinion. With respect to Witness Celanovic and

11 Witness PW 116, you give us the description, and then the last sentence

12 in your report in that section I find to be somewhat interesting. You

13 state: "They might be mistaken, and they might lie about it."

14 Given your experience and education in connection with psychology

15 and law in preparation of this case and others, can you just share with

16 us how this fits into the recognition category, either

17 "mistake" or as I like to call it, and I understand what you're saying, I

18 think when you say "lie," to determine any underlying motives such as

19 lying?

20 A. Sure.

21 Q. Thank you.

22 JUDGE AGIUS: If you could put your questions much shorter than

23 that because they tend to be confusing.

24 MR. OSTOJIC: Fair enough.

25 JUDGE AGIUS: I'm really appreciative of the Professor's efforts.

Page 25342

1 He really must be good at his job to even understand the question

2 sometime and answer it.

3 MR. OSTOJIC:

4 Q. Do you understand the question, Professor?

5 A. I think I understand it.

6 Q. I'm just focusing on that last sentence. Just tell us what the

7 basis of that is.

8 JUDGE AGIUS: One moment, Professor.

9 MR. NICHOLLS: Never mind. Just keep rolling.

10 JUDGE AGIUS: Okay. Yes, Professor.

11 THE WITNESS: Before a Court accept the statements by a witness,

12 it must be established whether these witnesses are not mistaken or are

13 not lying. Both things can happen. Now, if a person claims to have seen

14 the accused somewhere whereas in fact he never saw the accused, then he

15 will not be able to pass the lineup test. So the lineup test is a very

16 useful instrument to test whether the witnesses are mistaken or lying.

17 That's what it is for.

18 Now, with familiar persons you cannot apply the lineup test, and

19 so from their recognition, you cannot infer that also the problem of

20 possibly being mistaken or possibly lying is resolved, and that's why it

21 is here. They may later on in photo boards -- in photos and pictures

22 say, yes, that's the person I saw. But that's easy for them because it's

23 a familiar person. And the question whether they are mistaken about who

24 they saw when they encountered someone or even are lying about it is not

25 resolved by that recognition. And the significance of that is that there

Page 25343

1 must be other evidence to support the notion that they really met the

2 person they described.

3 Now, logically you can make a distinction between witnesses who

4 can't be mistaken because it was very clear what they saw and witnesses

5 who might be mistaken because it wasn't so clear what they saw. Now, Mr.

6 Babic is an example of he might easily be mistaken because he isn't sure

7 he saw Mr. Beara. So that's a clear example of where that question

8 remained open. About the other two, I can only say --

9 MR. OSTOJIC: If I could -- I don't mean to interrupt you, but

10 you said Mr. --

11 THE INTERPRETER: Microphone, please.

12 MR. OSTOJIC:

13 Q. Thank you, and I think we were really referencing in this

14 category of recognition three individuals, and the one I think you are

15 referencing is --

16 A. Is, yeah, Bircakovic. Yeah.

17 Q. That's right. Thank you. But we are close to the time for the

18 break, and if you can -- I think --

19 MR. OSTOJIC: If you don't mind, we can stop now I think?

20 JUDGE AGIUS: Yes, I think so. We'll have 25 minutes break now.

21 Thank you.

22 --- Recess taken at 10.31 a.m.

23 --- On resuming at 11.00 a.m.

24 JUDGE AGIUS: Yes, Mr. Ostojic.

25 MR. OSTOJIC: Thank you, Mr. President.

Page 25344

1 Q. Professor, good morning again, and welcome back.

2 I want to continue as we were discussing on with respect to the

3 category recognition and specifically relating to the two witnesses that

4 remain under this category, Mr. Celanovic and Mr. PW 161. With respect

5 to their testimony, did you have an opportunity to review their

6 statements and their evidence that they gave to this Court?

7 A. Yes.

8 Q. Prior to the break, we were talking about this last sentence in

9 your Section 4 where "They might be mistaken and they might lie about

10 it." With respect to that general phraseology that you use, you were

11 starting to tell us a little bit about what that means, and I don't know

12 that you finished, so if you don't mind just giving us your full and

13 complete answer in this regard.

14 A. Yeah. I think we stopped when I explained that in -- there are

15 two category of witnesses, they might either be mistaken or not, and a

16 recognition doesn't enable you to decide whether they might be mistaken

17 or not. The same is true, of course, about lying. Some witnesses may

18 lie about the encounter they had and some may not, and again, the fact

19 that they are able in one way or another to recognise the accused doesn't

20 mean that they are not lying about either their encounter or what happens

21 at the encounter. Recognition simply have nothing to do with that

22 particular questions, and since I testified only about recognitions,

23 there's not so much I can answer about questions about possibilities or

24 motives of people that people might have to lie to this Court.

25 Q. And I can appreciate that, Professor, but specifically with

Page 25345

1 respect to this witness PW 161, were you able or did you review any

2 materials that may assist us in determining what his underlying motives

3 may be?

4 MR. NICHOLLS: There I'm going to object. I've been holding back

5 but, Your Honours, I don't think you need any help with that from an

6 expert on memory and perception.

7 JUDGE AGIUS: Thank you, Mr. Nicholls. Yes, Mr. Ostojic.

8 MR. OSTOJIC: I think it gives a complete testimony of this

9 witness to share with the Court what exactly he looked at. I'm going to

10 as my friends knows introduce two --

11 JUDGE AGIUS: Yeah, but how can he -- sorry for interrupting you,

12 but how can you expect Professor Wagenaar, assuming that the Witness 161,

13 PW, decided to say something or something different, whether he would

14 have a motive for that; and in particular, how would Professor Wagenaar

15 know what the motive is? How can you expect that?

16 MR. OSTOJIC: I can. I think the motive was given by Prosecutor.

17 He shared it with us, and I think he can make an assessment based upon

18 that, Your Honour.

19 JUDGE AGIUS: Move on. Judge Kwon?

20 [Trial Chamber confers]

21 JUDGE AGIUS: Okay. So -- move to your next question.

22 MR. OSTOJIC: Just so I have it on the record, I wanted to

23 utilize 2D172 just so when we come back to this issue we can address it

24 accurately. Thank you.

25 Q. Sir, when we're looking at the two witnesses with recognition,

Page 25346

1 specifically PW 161, do you have any other opinions in connection with

2 the materials that you reviewed with respect to his testimony?

3 A. You are talking about PW --

4 Q. Yes. It's in the category of recognition as one of the three.

5 A. Yeah. Yeah. One of the things related to this witness that

6 might be relevant is the glasses. He said he met with Mr. Beara a number

7 of times in meetings, but he did not remember any glasses. Now of

8 course, it's not my task to know whether Mr. Beara always wore glasses in

9 meetings, but if Mr. Beara had been there - that's one - and two, had

10 worn glasses, it would be rather surprising for this witness not to

11 remember them. So this issue of the glasses at least raises some doubt

12 about what actually has happened there and whom he has met.

13 Q. And I'm going to show you, Professor, which we've put into

14 e-court photographs that I presented to you, and it's 2D602. If we can

15 please have that in e-court, and the record I think is clear on this, but

16 you have not personally met Mr. Beara; is that correct?

17 A. That's correct.

18 Q. And you only know him by virtue of the identifications that we've

19 made in certain photographs of him, correct?

20 A. Yes, that's correct.

21 Q. Now, let's just take a look at this 2D602, and while this is

22 uploading because they are photographs and they may take some time, but

23 can you just from the best of your recollection tell us the general

24 descriptions that were utilized by these various witnesses in purporting

25 to identify Mr. Beara? And you can look -- and if you need to, you can

Page 25348

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

15 THE WITNESS: As you asked, the description given by this

16 particular witness is he saw a person with grey hair, tall, well built.

17 That's all. I would say for making a photo lineup, that would be

18 insufficient because it's far too broad. He doesn't mention glasses, and

19 then always the problem is what you would like to know was, was he asked

20 did you see any glasses, and then did he respond, no, I don't remember

21 that, or could he just not spontaneously remember glasses, but would he

22 have known if he would have been asked? His statements leave much open

23 room for what it exactly means, which at least for an expert trying to

24 form a judgement about how much this witness remembers makes it very

25 difficult. So I can't say he did not remember the glasses. I only know

Page 25349

1 it's not mentioned in the transcript. That's all I can say about it.

2 MR. OSTOJIC:

3 Q. Okay. And now we were going to --

4 A. And some other witnesses mention glasses spontaneously, so you

5 might say they have a clearer image of glasses than this particular

6 witness, although maybe the witness is not -- just not very talkative and

7 doesn't say many things spontaneously.

8 Q. And we were looking, Professor, at 2D602, which were photographs

9 that I presented to you, and they depict Mr. Beara, and we'll go through

10 them just quickly in the interest of time. And this first photograph

11 that we see, it's Mr. Beara as we're looking at the screen to the left

12 with glasses, and they seem to be tinted. Do you see that?

13 A. Yes, I do.

14 Q. If we can please have the next photograph or group of photographs

15 within this exhibit.

16 A. Maybe while we are waiting I can say something about showing

17 photographs that might be helpful?

18 MR. OSTOJIC: If the Court -- we gave, I think, the originals to

19 the Court officer, and we don't have a copy of it.

20 Q. I think you may --

21 MR. OSTOJIC: Mr. President, the witness was inquiring as to

22 whether or not he can say something?

23 JUDGE AGIUS: Yes, of course. Yes, Professor, please go ahead.

24 THE WITNESS: The showing of photographs one after another all in

25 a particular context is in itself a suggestive procedure because it

Page 25350

1 suggests you can see the same person in all photographs. And then the

2 order of showing the photographs becomes extremely important because, for

3 instance, if in the first photograph you recognise someone and now you

4 realise he's wearing glasses, which is something you didn't know, that

5 makes it easier to recognise the same person in other photographs

6 especially if he's the only one wearing glasses. So what you want to

7 know is exactly in which order were these photographs shown, and what was

8 the response to each photograph separately?

9 MR. OSTOJIC:

10 Q. I'm not -- please go ahead.

11 A. And if that detailed information is not available, it's very hard

12 to judge what the meaning is if a later statement says he recognised some

13 or people in all -- even in all photographs. It depends, say, on the

14 order in which they were presented.

15 Q. And I'm just going to go through these photographs and as we see

16 them, there, again, on the left-hand side, the gentleman with the glasses

17 is Mr. Beara, and if we can go to the next photograph, please. And this

18 is obviously photographs from his youth, and then we'll show you a couple

19 that were after the period of 1995.

20 A. In the first photograph he was shown from the front. Now he's

21 shown from the side, and I think to many people it would not have been

22 clear this is the same person apart from the glasses, but that becomes,

23 then, a suggestive element.

24 Q. And there's another photograph. Professor, I'm not asking you to

25 make an identification with respect to Mr. Beara. I'm just -- for the

Page 25351

1 Court in order for us to show that -- and there's another photograph of

2 Mr. Beara at a different time in his life, as you can see, his hair and

3 his glasses there. I'm just trying to have a complete record that you

4 actually looked at these photographs in connection with the issue of

5 glasses for Mr. Beara, and that's -- I'm just confirming that you in fact

6 saw these photographs and no others, if you will. Is that accurate?

7 A. Yes, I did, but I don't think this is the last photograph of the

8 series.

9 Q. It's coming. More are coming. Yes, sir.

10 A. Yeah. Because you asked me, did I not see others, and I ...

11 Q. Correct. If we can go to the next photograph, please. Do you

12 remember being shown this photograph, sir?

13 A. Yes, absolutely.

14 Q. And can you tell us what if anything is significant about this

15 photograph, in your opinion?

16 A. Well, what I found significant here, that clearly the setting

17 here is in the field, and of course, I'm not to judge what the actual

18 situation is, but I see there are arms. There are field glasses, that

19 the suggestion is that he is actually engaged in something that is to be

20 done in the field. He is not on holiday here. In as far as that is

21 true, it is of course significant that he wears his glasses. For work in

22 the field, you must see well; and if Mr. -- but I don't know that, but if

23 Mr. Beara needs glasses to see well, it's of course significant that,

24 indeed, he has them.

25 Q. Let's go to the next photograph, if we may, please. This is a

Page 25352

1 photograph that's a family photograph, and I'm just going to tell you

2 that it was after 1995, and we can see looking at the photograph, the

3 second from the right is Mr. Beara. Do you see that?

4 A. Well, I can't confirm that it's him. I just --

5 Q. But the gentleman, do you -- I'm just telling you that it is. I

6 don't think there's any doubt about it. Prosecution is not standing up

7 in that regard. And I want to now look at two other exhibits with you.

8 Those are two images that the Prosecution shared with us that they had in

9 their possession with respect to Mr. Beara. One is obviously an

10 attachment as we discussed and the stipulation for Mr. Erdemovic, the

11 witness you previously testified about, and just to move this quicker,

12 I'm going to ask with the Court's permission that we place this

13 photograph on the ELMO if we can.

14 JUDGE AGIUS: Yes, by all means, Mr. Ostojic.

15 MR. OSTOJIC: And this is part of Exhibit 2D572. Thank you.

16 Q. And I think we all know, Professor, that Mr. Erdemovic in this

17 photograph did not identify Mr. Beara as the person he purported to see

18 in the site that he was at, and I know we have your testimony in

19 connection with whether this photograph is highly suggestive or not. But

20 when you look at this photo board, and I'm not going to ask you to repeat

21 your opinions in connection with that, tell us specifically why this

22 photo board if shown to a witness for purposes of identification such as

23 Mr. Erdemovic would be considered, in your opinion, suggestive?

24 A. Yeah, there are a few elements.

25 Q. Share them with us.

Page 25353

1 JUDGE AGIUS: Yes...

2 MR. NICHOLLS: I may be wrong. I think he already gave a large

3 explanation of that, from the position, the age, all of these things. I

4 may be mistaken, but I thought that's what -- the last time they went

5 through all of that.

6 JUDGE AGIUS: Well, do you wish to comment? I do think that it

7 is a repetitive question, but...

8 MR. OSTOJIC: I don't believe that it is because I think he gave

9 a general description when he discussed what are some of those factors,

10 and now we're asking for him specifically with the actual document in

11 front of him. But if the Court wants, we can move on.

12 [Trial Chamber confers]

13 JUDGE AGIUS: Yes, we were going to raise this even before in

14 relation to some other questions, but here we have definitely a case of

15 where the witness, Erdemovic, being shown this photo failed to recognise

16 Beara. So what's the point of the whole exercise, question?

17 MR. OSTOJIC: Well, I can share it if you want in front of the

18 witness or not.

19 JUDGE AGIUS: Even if it were a suggestive photo lineup, he

20 didn't recognise him. Yeah, let's move to your next question.

21 MR. OSTOJIC: Fair enough.

22 Q. Sir, you have in your section -- on your last section glasses and

23 the significance of the description of appearance, and you highlight

24 glasses. Let's go through some of this specifically with respect to

25 witnesses which we have as PW 165, which in your report you identify

Page 25354

1 under the number 135; witness who you identify as 113 whose name is

2 Celanovic; and Witness number 21 who we briefly discussed today which was

3 Egbers; and Witness 157 which we've identified as PW 104.

4 A. Yes.

5 Q. Share with us your opinion in connection with those four

6 witnesses, the relevance of their testimony in connection with

7 eyeglasses.

8 A. Yeah. These four witnesses actually made a statement about

9 glasses. They said that the person they saw did not wear glasses or did

10 not continually wear glasses, so that's different from the last witness

11 we discussed where it's uncertain whether it's just that he failed to

12 mention it. This is a much positive -- much more positive statement

13 about glasses. They didn't see it, or he was not wearing it continually.

14 And that would be a significant piece of information in the

15 context of more information about Mr. Beara's habits of wearing glasses,

16 of which, of course, I'm not an expert. I can only say that the

17 connection between these statements and the actual fact whether or not he

18 always wore glasses, that connection is, of course, extremely relevant.

19 If he wore always glasses, the question is, of course - and

20 that's more in my field - would it be possible for people to not remember

21 those glasses? And in principle, one can say everything can be

22 forgotten, but not all people will forget everything. The fact that four

23 witnesses say that there were not glasses or not always glasses is, in

24 the context of how difficult it would be to remember that, would be quite

25 surprising if in fact they always saw those glasses. So it's a

Page 25355

1 significant factor, and if it would be established that Mr. Beara wore

2 always glasses, it would be a surprising feat of memory that four

3 witnesses forgot that.

4 Q. Now, Professor, Mr. President asked the question with respect to

5 this photograph, and although we always like to do this compare and

6 contrast, what I'd like to do is to show you a photograph of the video

7 that Mr. Egbers was shown the seven or eight times, and I showed it my

8 learned friend, and we're going to mark that, although it's not in

9 e-court, because the video is -- it's 2D605, because I'd like your

10 opinion to know if this video, although it's this snapshot in particular,

11 that was the only time Mr. Beara purports to be there, whether this is

12 suggestive, if the Court permits.

13 So we have on the ELMO now a still picture from a video that was

14 shown to Mr. Egbers that I think you viewed at least in accordance with

15 your report.

16 JUDGE AGIUS: I don't know if it's just me or not, but I'm not

17 seeing anything.

18 MR. OSTOJIC: All of them blanked out.

19 JUDGE AGIUS: Okay. Yes.

20 MR. NICHOLLS: Just to be very clear for the record, this still

21 was never shown to Egbers. It's a still from the video, so it may not be

22 exactly the same thing. I want to make sure the witness knows that and

23 that that's clear on the record, and -- but I would think it'd be

24 possible to show that very short clip if necessary.

25 MR. OSTOJIC: If necessary, we have it, and why don't we show it

Page 25356

1 since they've raised an objection or an issue with that regard. May we

2 have --

3 JUDGE AGIUS: Let's do that, then. Thank you.

4 MR. OSTOJIC:

5 Q. Professor, we're going to show you the video that was shown to

6 Mr. Egbers in a moment, and I just want you to focus on a number of

7 factors in connection with that video, and I know that you've read Mr.

8 Egbers' testimony in that regard, and I just have a few follow-up

9 questions, so just please bear with us.

10 For the Court and others, the video has been marked I think

11 previously, and we'll get the Court that specific number. If we can just

12 roll back a little bit to --

13 [Videotape played]

14 MR. OSTOJIC: -- I think, to rewind it. Can we rewind it? Yes,

15 that's great. We can keep playing it, please.

16 [Videotape played]

17 MR. OSTOJIC: We can stop now, I think.

18 Q. Professor, the video goes on other issues that I think my learned

19 friend will agree that other than for this segment, I don't believe what

20 purports to be the gentleman Mr. Beara, nowhere else is it in the video,

21 and I'll stand to be corrected on this, but I think I'm accurate on it.

22 This was the video clip that was shown to Mr. Egbers, and I have a still

23 shot of that one particular one because various segments were from either

24 distances, and I didn't want to be suggestive nor should we as to what

25 the distance is when we first saw this gentleman from -- appear on the

Page 25357

1 picture. But would that be considered a suggestive way of helping

2 someone recognise or identify a purported individual by showing him this

3 video clip?

4 A. First thing is, of course, that this is definitely not the format

5 that you would choose if you would present a formal identification test.

6 Q. And why is that?

7 A. For a number of reasons. There are only a few people there shown

8 who feature prominently. They march in front of some bars, and there's a

9 large crowd behind the bars. It would be totally unreasonable that a

10 person you should identify would be one in the crowd behind those bars

11 because that's clearly not visible at all. So any witness would conclude

12 it's one of those people in the front I must recognise. That leaves, I

13 think, three people, which is too small for a photo lineup anyway. These

14 three people, they are wearing similar uniforms, but I can't say they fit

15 the same description of the physical appearance, so it's logically

16 impossible that two could be well-chosen foils for the third. That's the

17 second reason -- third reason. The fourth reason is that in as far as

18 the other persons are familiar to the witness, he could easily exclude

19 the others on those grounds, which leaves only one candidate to be

20 identified as the person who has been discussed. So those would be major

21 deviations from the setup of a proper photo lineup test.

22 Q. Now, despite those flaws or the opinions in connection with how

23 this was shown to Egbers, do you have an opinion as to how many times the

24 video should have been played in order to reasonably assess whether or

25 not he can properly identify the individual he claims to have seen?

Page 25358

1 A. I find it very hard to answer that question because then I must

2 guess at the objective of showing the video. To my mind, the objective

3 cannot logically be that it would be for identification purposes because

4 any investigator in the world knows that proper identification is done

5 differently. What other objective there was, I can hardly guess. If it

6 is believed when Egbers could not identify, say, one of those people,

7 that repetition would help, then I can only say that the experience in

8 person identification research is that if you are tested and you don't

9 recognise anyone, repetition does not help.

10 Q. And when we discuss repetition in this particular case with this

11 witness Egbers, was there repetition? I think you testified to it, but I

12 don't want to lead you on this.

13 A. Well, if you show it seven to eight times, I would call that

14 repetition. Recognition or identification do not become better, but

15 another effect of repetition is, of course, that you increase the

16 pressure. By repeating it seven to eight times you make it clear even

17 without saying, you make it clear to the witness that this is important

18 and that it really would be very helpful if he could identify anyone.

19 And we know that pressure does not improve person perception, but it

20 increases the tendency to guess.

21 Now, in an exposition as this where logically you can come to

22 some conclusion about whom actually is intended even without recognizing,

23 pressure increasing the tendency to guess might lead to an apparent

24 positive identification, whereas in fact, no one was actually recognised.

25 Q. Thank you. Describe for me, if you will, in a typical situation

Page 25359

1 where we have a proper photo identification board the person who is

2 actually being tested, if you will, for recognition identification

3 purposes. How long does that process take? Not the creation of the

4 board - we've discussed that - but actually the -- conducting that very

5 test by presenting it to an individual for purposes of identification?

6 A. Sure. In the instructions to a witness --

7 JUDGE AGIUS: One moment. Stop. Stop. One moment. Yes, Mr.

8 Nicholls.

9 MR. NICHOLLS: I'm just wondering about the relevance since we

10 don't have photo boards, tests of Mr. Beara conducted.

11 JUDGE AGIUS: Yes, Mr. Ostojic.

12 MR. OSTOJIC: I think it relates specifically to this video that

13 they've shown and to give a witness an opportunity seven to eight times,

14 I think it's critical without sharing, although I think we know what his

15 answer is, and my learned friend certainly has read and knows the

16 standard, but I think it's -- even with a photo board that is proper, I

17 think it's important for us to know whether or not you would have a

18 witness look at it on seven to eight different instances, which will

19 ultimately be the follow-up question after we lay the foundation in

20 connection with a proper photo board.

21 [Trial Chamber confers]

22 JUDGE AGIUS: All right. You are a hundred-percent right, Mr.

23 Nicholls, as it relates to Beara. However, the question might relate,

24 also, to other of the accused for whom this procedure, photo board was

25 used. So we are allowing the question only because of that and not

Page 25360

1 because it has any relevance in the case of accused Beara.

2 Did you get the gist of it, Professor? If you could answer,

3 please. Thank you.

4 THE WITNESS: Yes, I did, Your Honour. In the proper photo board

5 procedure, witnesses are instructed that they should not guess; they

6 should only point at someone if they recognise a person immediately,

7 which means that the actual recognition -- identification test last very

8 short. You do not allow witnesses to look and look and look again, and

9 it takes 10, 15 minutes. That's not immediate recognition. So usually

10 it's done within a minute or less.

11 MR. OSTOJIC:

12 Q. Why is that significant, not to have him see it for a longer

13 period of time?

14 A. Because if there's no immediate identification, then a prolonged

15 exposition increases the tendency to guess, and you don't want the

16 witnesses to guess in identity questions because in the proper lineup of,

17 say, eight photographs as it has been used in this Tribunal before still

18 leaves a guessing tendency of one in seven. Now, one of seven is still a

19 considerable risk, and the last thing you want to do is witnesses to

20 guess. Photo confrontations are so particularly good because -- not

21 because the guessing level is low, because it's not even so low, but

22 because it discourages witnesses to guess because by seeing all these

23 pictures, they realise, oh, my Lord, I'm not sure, and they only realise

24 it when they see the photo board, and then they refrain from guessing.

25 They refrain from pointing at anyone. That's exactly what you want. You

Page 25361

1 want them to take the safe choice.

2 Q. Just a couple more questions with respect to Mr. Egbers. Last

3 week we were given a document, which I think is identified as an

4 information sheet for the first time, that relates to a witness called

5 Theo Lutke, but in that information sheet, it also references Mr. Egbers.

6 And I know you didn't have much time to appreciate the document or the

7 relevance of it, necessarily, but I want to make sure that it's on the

8 record that we received it late and well after Mr. Egbers testimony. So

9 if we can please look at that, and that is 2D603. I'm sure the

10 Prosecution is going to explain to us why we didn't have this when Mr.

11 Egbers was testifying. There, it seems from their very own investigator

12 that Mr. Egbers was saying that Mr. Lutke was present there, but we need

13 not go into that. Do you see the first paragraph as well as the other

14 paragraphs, Professor, and this document?

15 A. Yeah, it's not so clear on my ...

16 Q. Yeah, nor on mine.

17 A. Yeah. Now it's getting better. Yeah. You want to draw my

18 attention to a particular section of this document?

19 Q. To the first paragraph, if you will.

20 A. Okay.

21 Q. You can just read it to yourself.

22 A. Sure, I've read it.

23 Q. Okay. With respect to that, does it give us any information as

24 to how long this purported meeting with Mr. Beara was with Captain

25 Egbers?

Page 25362

1 A. He had a brief conversation. No times are mentioned. It says

2 they were stranded in that place; that could be long, so it's very

3 unclear how much of, say, that stranded time they actually talked to --

4 according to this witness they talked to Colonel Beara.

5 Q. And -- fair enough. And I'm just going to move away from that.

6 Now, there are other issues that I have with this exit that don't

7 necessarily relate to you at this moment.

8 Changing focus for a second, if we can again look at the witness

9 that we previously identified in your report as 131, and he's Mr. Peric.

10 And I'd like to just focus on his testimony because I think we can

11 highlight some things, and this is a witness who you yourself I think

12 said should not have been tested because he may have seen Beara after the

13 alleged encounter.

14 JUDGE AGIUS: Yes, Mr. Nicholls.

15 MR. NICHOLLS: I'm sorry to interrupt. Just while we still have

16 2D603. To be clear, I don't think my friend was trying to state that the

17 first paragraph was something that the witness Lutke had said. This is

18 just a summary by the investigator. I'm not sure if that was clear to

19 the witness because it wasn't to me, the way the question was phrased,

20 until I looked at it carefully.

21 JUDGE AGIUS: Yes, Mr. Ostojic.

22 MR. OSTOJIC: Clearly, it's written what Mr. Lutke said, but in

23 the second and third paragraph of this exhibit I pointed to -- the

24 professor specifically to the first paragraph, which references Mr.

25 Egbers, but I think it's very fair to say that Mr. Lutke's recollection

Page 25363

1 of events is reflected adequately on the second and third paragraph, if

2 I'm not mistaken, of this exhibit. I think we can all read it for

3 ourselves, but if you'd like it I can read it out loud --

4 JUDGE AGIUS: I think we can move --

5 MR. OSTOJIC: -- for any of the accused if necessary.

6 JUDGE AGIUS: Let's move on. Let's move on. Yes, Professor.

7 It's on the record in any case, Mr. Nicholls, so you don't have to worry

8 about it.

9 MR. OSTOJIC:

10 Q. I was -- if I can go back to the issue that I was trying to draw

11 your attention to, and that's specifically Mr. Peric and 131. I just

12 want to focus on it. With respect to his opinion -- I know we spent some

13 time identifying certain factors such as time and distance and

14 illumination, as you put it, as well as height, weight, and age. With

15 respect to this witness, did you find anything significant or relevant

16 based upon the distance which he claims to have purportedly met

17 Mr. Beara?

18 A. Yeah. In his statement, he said he saw a group of people and one

19 of them was a high-ranking older person, and he saw this group at a

20 distance of 50 metres. I noticed that was an exclamation mark in my

21 notes because 50 metres is of course much longer than the criterion of 20

22 metres that I found in my research beyond which the perception of

23 people's faces becomes risky. 50 metres is such a long distance that

24 accepting his testimony that -- whom he saw would be extremely risky

25 without further testing. I would like to the Tribunal to stress again

Page 25364

1 that such questions can be -- in principle be solved with a proper lineup

2 testing. If he did see his face and remembered it, that would be

3 revealed by a proper lineup test. Unfortunately, this witness stated

4 that maybe he saw later pictures of Mr. Beara in the media. That

5 excludes him as a witness who can be tested in a lineup. It doesn't

6 exclude him as a witness, of course, but whom he saw cannot be tested in

7 a lineup because if he saw pictures of Mr. Beara later, through

8 unconscious transference he might be able to identify him in the photo

9 board.

10 Q. Thank you for that. I just have one other -- a couple other

11 items I'd like to cover with you, although we know how long it takes to

12 create such a photo identification board and we know that the Prosecution

13 has shown videos to the witnesses in the manner in which you've

14 described. I want to show you a video that purports to be from a -- as

15 we've identified, the Zivanovic party, and it is 2D596.

16 MR. OSTOJIC: And Mr. President, it's approximately 16 seconds of

17 video clip that I'd like to show the witness for the purposes of my next

18 several questions, if I may.

19 Q. Professor, as this is getting uploaded, I think you remember the

20 video I'm referring to, right?

21 A. Yes, I do.

22 Q. Fair enough. For the record, we'd like to go to 41 minutes and

23 20 seconds and play it through 41 minutes and 36 seconds.

24 [Videotape played]

25 MR. OSTOJIC: Can we stop, please. Thank you. I've asked to

Page 25365

1 stop.

2 Q. Professor, I'm going to focus on the gentleman which we cannot

3 see, but we certainly see a portion of his -- back of his head, his ear,

4 and that's the third gentleman when we look at the picture from his left,

5 and now we lost that, but that's okay. And so we'll come back and play

6 this. Do you see the gentleman now in this --

7 A. Right.

8 Q. And then just so we have the correct time. We're going a little

9 fast, but that's okay. Obviously, this gentleman here fits some of the

10 descriptions that you've heard from the witnesses, from the testimony and

11 statements that you've reviewed, correct?

12 A. I can see it's an elderly person --

13 JUDGE AGIUS: Yes. One moment, Professor. Yes, Mr. Nicholls.

14 MR. McCLOSKEY: Objection to the leading. I mean, it's pretty

15 obvious, but I think he can just say, now point out which of these you

16 think in your opinion fit the description, the way he reads the

17 description, the way he read the transcript, not telling him this person

18 fits the description and now I'll ask you a question about that.

19 JUDGE AGIUS: Yes, Mr. Ostojic. Can you rephrase the question,

20 please.

21 MR. OSTOJIC: I will. I will, Mr. President.

22 JUDGE AGIUS: And you could have put it the way you are

23 rephrasing it in the first place.

24 MR. OSTOJIC:

25 Q. In this still, if you will, of a video that we have, do any of

Page 25366

1 these three individuals fit the general description that was provided of

2 the 12 witnesses that you've reviewed in connection with this case?

3 A. The person on the right in this still fits the description of an

4 elderly person with glasses. I cannot tell whether he is strongly built

5 as some witnesses described Mr. Beara, nor can I see his insignia to see

6 whether he's a lieutenant-colonel or colonel. The two others -- the one

7 to the left might be described as having greyish hair; the person in the

8 middle, clearly not; and the other two don't have -- don't wear glasses.

9 Q. Thank you. If we can proceed with the film, then I'll ask you

10 when to stop.

11 [Video played]

12 MR. OSTOJIC: If we could fast forward to the section where the

13 gentleman that we just saw was standing.

14 Q. Well, in any event, Professor, let me just try to -- in the

15 interest of time, we've seen that the Prosecution has taken from videos

16 certain still shots like the exhibits that you've looked at specifically

17 as it relates to Mr. Babic and his testimony. Would this type of video

18 and capturing this person, for example, would it be -- and I know you

19 don't want to talk about all the foils, but would this be a way to

20 capture someone and place it on a foil for purposes of a photo board

21 identification?

22 A. Well, it's not the way it's usually done. Photo boards are

23 usually compiled from clear photographs of people all taken in the same

24 position, all wearing same uniform. I think if -- these images are not

25 very clear, and especially if you reduce them to still they get worse, so

Page 25372

1 MR. BOURGON: We'll do my best, Mr. President.

2 Cross-examination by Mr. Bourgon:

3 Q. Good morning, Professor.

4 A. Good morning.

5 Q. For the record, allow me to introduce myself. My name is

6 Stephane Bourgon, and I represent along with my colleagues today Drago

7 Nikolic in these proceedings. Before I begin, I'd like you to confirm

8 that we did have the opportunity of meeting last week. Is that correct,

9 sir?

10 A. Yes, we did.

11 Q. I thank you very much for taking the time to meet me last week,

12 and I will move --

13 THE INTERPRETER: The counsel and witnesses are kindly asked to

14 make pauses between questions and answers for interpretation. Thank you.

15 MR. BOURGON: I apologise. Will do. Thank you.

16 Q. I will move to my first question, Professor, and -- which has to

17 do with your report, which I read with much interest, and I refer here to

18 part 2, section 5, of your report, which deals with description of

19 appearance. And in that section, you refer to the literature on person

20 description after a considerable retention interval. You've already

21 answered a few questions to my colleague on this topic - I'm talking

22 about Mr. Zivanovic - but I understand that this is part of your science;

23 is that correct?

24 A. Yes, you are correct.

25 Q. I'd like to obtain your assistance regarding the factors that

Page 25373

1 will influence the memory of a witness or, let's say, what a witness will

2 remember after a significant time lapse concerning the physical

3 appearance and the characteristics of a person encountered only once. So

4 in other words, my question is the following: If a witness is involved

5 in a significant event, and not necessarily a crime but something

6 significant, during which he or she meets a single person for the first

7 time, and let's say that this person does not see -- the witness, sorry,

8 does not see that person again for a considerable lapse of time - let's

9 say seven years - what I would like to know is, from a scientific point

10 of view, what is the witness likely to remember about the physical

11 appearance and characteristics of the person?

12 A. Maybe, first, it would be good to make clear that I can answer

13 only your general questions about my science and that I have no knowledge

14 whatsoever of the case of your client, so my answers really must be taken

15 as general scientific answers.

16 When we look at descriptions that people give of other people

17 they have met in the past, then you see that when time lapses these

18 descriptions become poorer and poorer; details get lost. And usually

19 what people can explain spontaneously are very rough categories, for

20 instance, male or female; they will remember what they saw. Caucasian or

21 non-Caucasian or black or rough categories like Asian, they will

22 remember. Some very general information about height; it was a very big

23 person, a very small person. If there's nothing conspicuous there, they

24 will probably not even mention it. They will remember very young or very

25 old, so very rough, broad categories.

Page 25374

1 And then the one issue that they find the easiest to remember

2 about outer appearance is hair-do: bald, very long hair, very dark,

3 curly hair, as in my case, lots of white hair. So hair-do is an

4 important -- remains an important feature of the memories. Rather

5 surprisingly, usually beards and moustaches get often lost.

6 Q. Thank you, Professor. And what could we say about clothing?

7 A. Clothing is very difficult unless it was highly conspicuous.

8 Like, if you remember Santa Claus, you would remember, also, his

9 clothing; but in wartimes, for instance, people seem to remember

10 something like uniforms, but that could be any type of uniforms, and they

11 get easily confused about the uniforms. Some of my research is on

12 remembering uniforms in concentration camps, in German concentration

13 camps, and what we know from survivors of concentration camps, that

14 they're often totally wrong on the uniforms they attribute to certain

15 people. And I should warn you, they are not wrong about uniforms they

16 saw; they are wrong about which person wore which uniform. And that's,

17 of course, the essential information that the Court needs to know.

18 Q. Thank you, Professor. My next question is, I would like to take

19 a practical example, of course, without going into the facts of this

20 case, and I would simply ask that if a witness saw you today for the

21 first time as you testify in this significant trial and that person does

22 not see you again for a period of seven years, if this person was asked

23 to describe your physical appearance, what is he or she likely to

24 remember about your physical appearance and characteristics?

25 A. That witness will probably remember that I'm male, I'm Caucasian,

Page 25375

1 I'm an elderly person, I have white hair, and then it depends on whether

2 the witness saw me sitting here behind the stand because then nothing

3 about length or build could be said, or whether the witness saw me walk.

4 If the witness saw me walk, probably nothing very special would be

5 remembered. I'm not extremely fat; I'm definitely not extremely thin;

6 I'm not extremely tall, not extremely small. There's nothing really that

7 would strike the witness in such a way that could be remembered after

8 seven years.

9 Q. Now, it's twice now that you mentioned -- first, you said a lot

10 of white hair spontaneously before I asked that question, and now you

11 mention again the white hair. Just how important is the white hair

12 concerning you personally?

13 A. Well, I'm not sure I understand your question. It's something

14 people will remember --

15 Q. Let me --

16 A. -- and whether it's important to anyone, I'm not so certain,

17 apart for myself and my wife.

18 Q. Let me be more precise, Professor. That witness who saw you only

19 once today and describes you seven years from now, how important or how

20 is it likely that he or she will remember the white hair?

21 A. Yeah. That's -- of all my general features, it's the most likely

22 thing that would be remembered.

23 Q. Now, again, without going into the facts of this case, if white

24 hair and hair-do is a significant characteristics, if I add to this a

25 person who is young - let's say 30, 35 - with white hair and a specific

Page 25376

1 hair-do, how important would that be in describing this person seven

2 years down the road?

3 A. Well, that depends on -- in itself, it is remarkable that a young

4 person would have completely white hair; also, I myself did. But whether

5 that would strike a witness as special depends on whether the witness can

6 estimate the age of that person. If for other reasons it would be clear

7 to the witness that this is a very young person, the witness would think,

8 this is odd, and that would make it even more likely that the white hair

9 would be remembered. But in general, of course, the estimation of age is

10 in part dependent upon the colour of the hair. So it's also possible

11 that your hypothetical witness would be mistaken about the age as seeing

12 nothing special. So it's one of the two, and how this must be applied to

13 your case, of course, I do not know.

14 Q. Well, again, I don't want to get into the specifics of the case,

15 but if the person does recognise that person or does recognise person as

16 being a young person having white hair, would you agree that this would

17 be a significant detail?

18 A. If the witness would be able to realise this is a very young

19 person, it would strike him as -- it would draw his attention that young

20 person had white hair. That makes it even more likely to remember.

21 Q. Thank you. My understanding, also, is that you referred to other

22 factors which influence the quality or the precision of a person's

23 recollection, and I'd like to look at a couple of them. The first one

24 you discussed briefly with my colleague Mr. Zivanovic, and that is the

25 retention period. You've covered that already. My question here will be

Page 25377

1 quite specific. What if the retention period is cut in half by a second

2 encounter? Let's say the period of seven years I mentioned was cut in

3 half because the witness saw the person again after three or four years.

4 What would be the effect?

5 A. The effect of a second meeting, that would be a good example of

6 what I called refreshment. Now that memory is refreshed. I assume that

7 the person in the meantime has not significantly changed because then we

8 cannot talk about refreshing an old memory because then we must talk

9 about producing a new memory. After your meeting halfway, see, the

10 forgetting process starts again in principle, but now the forgetting

11 period is only if it was after -- of the seven halfway, it's only three

12 and a half years instead of seven. The forgetting curve really is

13 measured from the last encounter.

14 Q. The next criteria I would like to look at is the emotional

15 significance of the encounter. How would that play a part in whether a

16 witness was able to recognise seven years down the road a person he met

17 only once?

18 A. The relationship between emotions and the quality of memory is

19 very complex because there are two effects. One is that emotions make

20 memory worse, and the other is that emotions make memory better. And to

21 make a very complex matter -- to simplify it a little bit, one of the

22 determining factors is the fact that emotions at a certain moment narrow

23 the field of your attention. You pay more attention to some important

24 things but less attention to the other things, and so -- and the things

25 you paid more attention to will also be remembered better, but that is at

Page 25378

1 the cost of the things you now paid less attention to because they will

2 remember it worse. So the question about emotions cannot be answered if

3 it is not first addressed whether the thing that needed to be remembered

4 or the thing that is reported later can be assumed to be something to

5 which all your attention went during the emotion or that it would be

6 something that would in fact be cut out of your attention because it was

7 less important. And the answer to what actually will happen can only be

8 determined on the basis of an exact description of the case.

9 Q. Thank you, Professor. The next criteria I would like to quickly

10 look into, and you've touched already a bit on it, is an opportunity to

11 remind. So the witness had a reason to think about the event during the

12 period of seven years. Would that be important?

13 A. Yes, that would be an example of what I called refreshment,

14 things you are reminded to just -- spontaneously or through events in

15 your lifetime are better remembered than things you never thought about

16 and suddenly after many years are recovered in your memory again.

17 So refreshment of memory is very much related to the degree to

18 which you are reminded to these events. But I must warn you there. If

19 you are reminded just because that's how life goes, that's different from

20 being reminded to it through conflicting information because conflicting

21 information may worsen your memory. Just being reminded because like in

22 the war, having survived a war, everything around you reminds you to that

23 war all the time, it's not something that will move away and will move

24 out of your life. So that type of reminding would refresh your memory

25 all the time.

Page 25379

1 Q. I only have two more questions, Professor. The first one is, one

2 of the things you mentioned when we met is that an event -- the more

3 important the event, the more likely it will be burned in the memory, and

4 you refer to something that an event burned in the memory usually comes

5 with a picture. Can you explain that for the Court, please?

6 A. Yeah. Well, memory is about facts, but some aspects of memory

7 are pictorial. We can describe actually what things looked like, and we

8 can also -- we call that imagery. You can close your eyes and try to see

9 that picture in front of you and even describe it then. And some events

10 that do not constitute general knowledge but constitute events, things

11 that you have seen may be remembered not only in terms of words or a

12 story or facts but also in a pictorial manner.

13 Q. Thank you. In response to a colleague -- question by my

14 colleague representing the accused Beara, you referred to a rule of plus

15 or minus 5 that you personally use, and if I sum up your conclusion is

16 that anything over 10, plus or minus 10, in terms of kilos, age, or

17 height in centimetres, that this leads to the conclusion that the witness

18 either does not remember or never met the person. Is that a summary of

19 your answer to my colleague's question?

20 A. No, it's not. That's far too strong. What I said is below 10,

21 you should not be surprised if that happens. Above 10 -- and you are

22 quite right. This is only true in the metrical world. We are talking

23 about centimetres and kilograms, not about inches and pounds. Above 10,

24 my experience is it's very wise to raise the hypothesis whether this is

25 really the person that the witness thinks he or she met. I didn't say

Page 25380

1 it's proven that he met another person or it's impossible he met this

2 person. I think it becomes a reasonable thing to test because it's a

3 good reason to have doubt, but doubt is not the same as definite proof.

4 Q. Thank you. My last question, Professor, is the following:

5 Coming back to the example using yourself and the description -- your

6 physical description, if a witness who claims to have seen you seven

7 years ago was asked to describe you today and omitted entirely the white

8 hair, based on your scientific knowledge would you conclude that this

9 description is unreliable?

10 A. Well, there are various steps. Step one is that you ask a

11 witness to produce a spontaneous description. That's important in any

12 interrogation; and the spontaneously reproduced description, that's the

13 most important part of the evidence. Usually, witnesses produce a

14 description of hair-do spontaneously. If they don't, there are two

15 possible reasons: One is they don't remember that, so they didn't tell

16 you; and the other is they didn't think that was important and,

17 therefore, didn't say it. You can test that thing by asking for more

18 descriptives without saying hair-do. If they forgot hair do, if you just

19 ask anything else, what more, and they remember their hair, they're most

20 likely to say it. If they still don't mention hair, you can ask them a

21 directed question: What about their -- do you remember the hair? That's

22 already a little bit suggestive because now you draw the attention to a

23 certain thing and you put some pressure on them to tell something about

24 the hair. But as long as it is known to the Court that this question was

25 asked, the Court can take that also into account. Nothing about hair in

Page 25381

1 take one; nothing about hair in take two; only after directed question,

2 that's weaker. That represents a lower level of reliability. If the

3 person then says, yes, he had bright red hair, you know he's talking

4 about someone else. If he still at a direct question cannot reproduce

5 the white hair, that's very strong evidence because he's got all the

6 chances, even part of a suggestion that he should say something like

7 that. So it is a complicated matter, how to evaluate what people say

8 about hair-do. Important is for all that it's properly reported how the

9 interrogation exactly went and whether the interrogator followed this --

10 the professional standard of first spontaneous, then another attempt at A

11 spontaneous declaration, then a directed question with the question

12 recorded.

13 MR. BOURGON: Thank you very much, Professor. I have no other

14 question. Mr. President, I finished before the break.

15 JUDGE AGIUS: Thank you. Well done, Mr. Bourgon. We'll have a

16 25-minute break. And how long do you think your cross-examination will

17 last?

18 MR. NICHOLLS: I think it will be --

19 THE INTERPRETER: Microphone, please.

20 MR. NICHOLLS: I think it will be less than my estimate, which I

21 think was three hours, but not dramatically less. I mean, I think I may

22 cut it down to 2, 2 and a half, something like that. Your Honours.

23 JUDGE AGIUS: All right. Thank you so much. 25 minutes.

24 --- Recess taken at 12.30 p.m.

25 --- On resuming at 12.59 p.m.

Page 25382

1 [Trial Chamber confers]

2 JUDGE AGIUS: Before I ask you, Mr. Lazarevic, if you wish to

3 cross-examine this witness, the other Defence teams and Prosecution, we

4 need roughly five minutes towards the end to discuss something,

5 housekeeping matters, all right? Thank you. And if you think we need

6 more particularly, Mr. Ostojic, you and Mr. Bourgon in particular,

7 because you are the two who are most directly involved in what we are

8 going to say, tell us and we'll reserve more than five minutes.

9 Yes. Yes, Mr. Gosnell.

10 MR. GOSNELL: Surprisingly, Mr. President, it's me today, and we

11 have no questions. Thank you.

12 JUDGE AGIUS: Thank you. Madam Fauveau, s'il vous plait.

13 MS. FAUVEAU: [Interpretation] No questions, Your Honour.

14 JUDGE AGIUS: Merci, Madam. Mr. Josse, you definitely have

15 because we've seen the documents that you are going to use.

16 MR. JOSSE: Thank you, Your Honour.

17 Cross-examination by Mr. Josse:

18 Q. Professor Wagenaar, my name is Josse. I'm one of the Defence

19 counsel for General Milan Gvero. It's right that you and I have never

20 met, correct?

21 A. Yes, that's correct.

22 Q. It's also right that you have not discussed General Gvero's case

23 with the best of our knowledge with anyone?

24 A. No, I didn't.

25 Q. And so you have no idea what I'm going to ask you; is that

Page 25383

1 correct?

2 A. No.

3 Q. That's correct, isn't it?

4 A. That's correct, yes.

5 Q. Now, I'd like to clarify something. As you will gather in a few

6 moments' time, what I'm interested in is recognition, and you talked at

7 some length about recognition this morning, and in the course of your

8 testimony at about page 11 of today's transcript, you also started to

9 talk about height and weight issues, talking about 5 centimetres on, off,

10 so on and so forth. That refers to identification issues only, I assume;

11 is that right?

12 A. No, not necessarily. What I said is if people are asked to

13 describe a person they met, if they give particulars with respect to

14 height, age, weight, they might be so many measures off, and that refers

15 both to familiar people and unfamiliar people. It's on the basis of

16 having met and their perceptions during this encounter. It would only be

17 different if a familiar person is so familiar that you didn't estimate

18 those things because you know them. Of my own family, I know their age;

19 I don't have to estimate it, so that's different. But if there are

20 familiar people like people here in the courtroom who I have now seen and

21 in a later encounter would be counted as familiar because I've seen them

22 before, of no one here in the courtroom I know the height or the age or

23 their weight, so I still would have to estimate that. I'm referring to

24 these estimates, and these estimates can be about familiar people and

25 unfamiliar people.

Page 25384

1 Q. So like so much of your evidence, it's matter of extent and

2 degree, the extent and degree to which the witness knew the suspect prior

3 to the alleged encounter; is that right?

4 A. Yes, that's right. There is some extent of familiarity where one

5 would simply know about one another how tall they are or how much we

6 weigh.

7 Q. But in a situation where the witness and the suspect did not know

8 each other particularly well, what you're saying is it would be a prudent

9 question to ask of the witness, what was the height of the suspect, what

10 was his age, what was his weight, correct?

11 A. Yeah, and then it should also be prudent so ask, do you know this

12 or did you estimate them, because my rules apply to the situation where

13 it was estimated.

14 Q. And at what juncture do you say it would be prudent to ask those

15 type of questions, in court or prior to court in the course of the

16 investigation?

17 A. The rule is always that you ask questions as soon as is possible

18 because --

19 JUDGE AGIUS: Yes, one moment. Yes.

20 MR. NICHOLLS: I think here we're veering away from expertise in

21 memory, recognition, and into investigative techniques, and I'm not sure

22 that's -- not really part of his field of expertise.

23 JUDGE AGIUS: Yes, Mr. Josse, would you like to comment.

24 MR. JOSSE: With respect, I radically disagree bearing in mind

25 the range and extent to which this witness has testified hitherto, I

Page 25385

1 suggest my question was perfectly permissible.

2 JUDGE AGIUS: Yes. Please answer the question. We agree

3 entirely with Mr. Josse on this.

4 THE WITNESS: With respect to the aspect of forgetting, it's

5 always wise to ask questions as soon as is possible, and if a case is

6 investigated a long time before it comes to court, it would be very wise

7 to have asked relevant questions during the investigation and not to wait

8 until witnesses appear in court. This is especially true with their

9 memories to physical appearance of people, which is very much dependent

10 on pictorial representations more than a factual memory because those are

11 not facts they can remember. It's something they have to estimate, and

12 probably they will do the estimation when the question is asked and not

13 before; and therefore, it's urgent to ask this question as soon as is

14 possible.

15 Q. I'd like to move on to a slightly different topic, and in this

16 regard could we please have in e-court 2D590. And specifically, it's

17 page 11 at the bottom that I would like. Now, whilst this is being

18 brought up, this is an extract from an unpublished article that you have

19 written headed "Expert Witness In International War Crimes Tribunals."

20 And beyond this particular table, I'm not going to ask you anything to do

21 with this article, but you produced this table as some sort of guide and

22 help in relation to recognition situations. That's right, isn't it?

23 A. Yes, that's correct.

24 Q. And I hope you won't take this the wrong way, but much of what

25 you have put here is no more than common sense, isn't it, as to what a

Page 25386

1 tribunal of fact should take into account in assessing the reliability of

2 a purported recognition witness, correct?

3 A. You're partially correct because some of the items mentioned here

4 are only relevant because you can fall back on the research that we have

5 done on those things. So for instance, I mentioned distance and

6 illumination there. I wouldn't have if in the scientific knowledge body

7 there is not sufficient information about what -- how distance and

8 illumination [Realtime transcript read in error, "elimination"] should

9 actually be used. So it's only partly -- it's only --

10 Q. Sorry. Let me interrupt you at this point.

11 A. It's only partly common sense.

12 Q. Let me interrupt you at this point. It's the same issue again.

13 It's illumination, not elimination, correct?

14 A. Yeah, illumination.

15 Q. Yes. Same issue we had --

16 A. I see it correct in the page here.

17 Q. Yes, it's line 7, it's incorrect. Let me go on. This list is

18 not exhaustive, is it? For example, would you agree that the

19 concentration that the witness had both in the course of the prior

20 recognition and also at the scene of the alleged crime is a factor that a

21 Court might want to take into account?

22 A. Yes, absolutely.

23 Q. Whether the witness had been distracted in either of the two

24 encounters, correct?

25 A. Yes.

Page 25387

1 Q. And so there are issues here that are of assistance, but as I've

2 already said, there are certain categories that one could add to the

3 list?

4 A. Yes.

5 Q. Now, I'd like to move on from that, please, and ask if a

6 particular document could be placed on the ELMO. Could I hand this to

7 the usher. This is an extract from an English criminal law textbook, the

8 leading textbook on English criminal law, which is called Archbold. It's

9 from the 2007 edition published by Sweet and Maxwell, and it's page 1487,

10 and we can see at the top it's dealing with visual identification. And

11 in the middle of the page, perhaps it could be -- up a little bit,

12 please, because it's the middle paragraph 14/19 that I'm interested in.

13 That's perfect. Thank you. We can see that it deals with identification

14 of strangers and recognition. Now, what this book purports to do is set

15 out a rough guide as to what a judge should remind a jury of in the

16 course of his or her summing up as to the type of factors they may wish

17 to take into account in a recognition case, and I want to ask you going

18 through these one by one from your scientific perspective whether you

19 agree with these and whether you can comment upon them.

20 So it says, summarising the first three lines, that the fact of

21 the recognition rather than identification case doesn't absolve the Judge

22 from giving this type of direction, and it cites a variety of cases, and

23 then it says that in the 1991 case called Bentley, Lord Lane, then-chief

24 justice, "... observed that recognition evidence could not be regarded as

25 trouble-free. Many people had experienced seeing someone in the street

Page 25388

1 whom they knew only to discover they were wrong. The expression ' I

2 could have sworn it was you ' indicated the sort of warning a judge

3 should give because that was exactly what a witness did: He swore it was

4 the person he thought it was." Stopping there, can you comment on that,

5 please?

6 A. Do you have a question about it?

7 Q. Well, my question is, do you think that a tribunal of fact should

8 take that into account from your scientific perspective in assessing

9 whether a recognition is correct or not?

10 A. I'm not sure that's the kind of statement I would like to make.

11 I can only say that what is summarized here is an agreement with my own

12 positions, and what the Tribunal needs to take into account in a

13 particular case I think should be decided by the Tribunal.

14 Q. Okay. Let me go on and deal with it this way. Let's read on a

15 bit: "In the narrow field of recognition there were degrees of danger,

16 perhaps less so where the parties had known each other for many years or

17 where the person identified was at the scene." And I assume that the

18 author there means it's accepted that the person identified was at the

19 scene --

20 THE INTERPRETER: The counsel is kindly asked to read more

21 slowly.

22 MR. JOSSE:

23 Q. That falls full square in agreement with what you have testified

24 hitherto. Isn't that right, Professor?

25 A. Yes. Recognition and identification are never guaranteed to be

Page 25389

1 correct, and that's why in our scientific discipline the stress is very

2 much on how do we test? How can we help Courts to test claims about

3 identification and recognition? What are the best possible method we can

4 contribute that can be used by investigators and finally by the Court to

5 test whether this sort of error has occurred or not? And that's always

6 under the assumption that there's always a possibility that recognitions

7 and identifications are wrong.

8 Q. And you have already commented, haven't you, that it's very

9 difficult if not impossible for you to assess whether any particular

10 witness making a purported identification is lying or not?

11 A. I will never say that a witness is lying. It's not my discipline

12 to make out whether someone is lying. There even is -- doesn't exist a

13 good scientific method to determine whether someone is lying, so that

14 would simply not be within my discipline. I also will never say that a

15 recognition or an -- a specific recognition or identification was correct

16 or wrong. I can only make an evaluation of the criteria and the methods

17 that were used by legal parties to give an answer to that question.

18 Q. Because, of course, it's for the tribunal of fact to decide

19 whether the witness is accurate or not?

20 A. Absolutely.

21 Q. And we can see, just reading on one more sentence, that the

22 direction that I'm asking you -- the legal direction that I'm asking you

23 to comment upon really postulates that one is dealing with an honest

24 mistake because it says: "Even here, it's visible to alert the jury to

25 the possibility of honest mistake and to the dangers and the reasons why

Page 25390

1 such dangers exist in identification evidence." And really, the reason

2 I've asked you these questions is to draw a distinction between the

3 possibility of an honest mistake and the possibility of a deliberate

4 deception from the witness.

5 A. Yes. Obviously it's my opinion that since a recognition or an

6 identification is never a hundred-percent certain to be correct, courts

7 and juries, find the fact, should address that problem and be reminded to

8 that problem. Nothing against that.

9 Q. The problem of miscarriages of justice based on a wrongful honest

10 identification, in other words where the witness is telling the truth, so

11 he or she thinks, but it is in fact mistaken or may be mistaken, that's

12 what you're referring to?

13 A. Yeah, although I would like to add that there is a relationship

14 between mistakes by witnesses and the quality of the procedures used when

15 they were tested, and the attention of court and juries should not simply

16 be addressed to the possibilities that witnesses are wrong but should be

17 addressed at making an assessment of the witness statements through an

18 assessment of the testing procedures that were used.

19 Q. The document that I have just shown you is going to be in e-court

20 as 6D307, let me say for the record.

21 Now, turning back if we may for one brief moment to the document

22 that was in e-court before - that is 2D590, page 11 - I want to ask you a

23 little bit more about lapse of time. You've been asked a number of

24 questions about lapse of time by both my learned friend Mr. Zivanovic and

25 Mr. Bourgon, and I'm going to ask you a specific situation, and if you

Page 25391

1 are unable to help, do say so, please. But in a scenario where the

2 witness accepts that from the point of his recognition of the witness at

3 the crime scene to the point in which he first mentions it to either an

4 investigator or someone else a period of 12 years elapses, can you

5 comment on the specifics of that situation?

6 JUDGE AGIUS: Yes, Mr. Nicholls.

7 MR. NICHOLLS: I -- first of all, one, the witness doesn't have

8 the specifics. Two, it's a question, unless I'm reading it wrong, which

9 the witness cannot possibly -- this witness could not possibly answer

10 because in the fact pattern posed, the witness would need to know what

11 was in the mind of the person who did not mention this point for 12

12 years, and there could be any myriad of reasons why, so I think it -

13 sorry for this long objection - it calls just for gross speculation.

14 MR. JOSSE: Your Honour, if the Prosecution really don't want me

15 to put my case, then I'll withdraw the question. I've got no real

16 difficulty with that. Sorry. Too fast. My apologies.

17 JUDGE AGIUS: Archbold would tell you to take it more

18 philosophically.

19 MR. JOSSE: Nice deep breath. Yes. I apologise to the

20 interpreters, but I repeat what I say. If my learned friend really

21 doesn't want me to ask that question, then I won't.

22 JUDGE AGIUS: One moment. The presumption is that you as an

23 expert in the field know for yourself whether you can answer this

24 question or not. If you can answer it, please, go ahead. If you can't,

25 just tell us, and we'll proceed with Mr. Josse's next question.

Page 25392

1 THE WITNESS: Mr. President, I was just going to answer with the

2 argument provided by the Prosecutor that there are thousands of reasons

3 why people do not mention certain things. My specialty is in memory, and

4 the assumption that it has to do with memory is not obvious to me, so I

5 would find it very difficult to answer this question.

6 MR. JOSSE:

7 Q. Can you comment - and only do so if it is within your sphere of

8 expertise - as to how in your opinion it goes to reliability of the

9 testimony of the witness?

10 A. You mean when a witness mentions a certain fact after a long

11 interval of time?

12 Q. Yes.

13 A. It depends -- it depends totally on why the subject actually did

14 not mention it before. It can be something that he always burned to tell

15 but didn't dare or couldn't, never forgot it; on the contrary, remembered

16 it better and better until finally after 12 years he could not withhold

17 himself and finally came forward with it. That would be an example of a

18 case where that information could be highly reliable. If on the

19 contrary, as I meet in my practice quite often, subjects claim that they

20 have totally forgotten this information or repressed it and then suddenly

21 recalled it later in a dream or so therapy, I would call that testimony

22 into question. So it really depends on the specifics of the case, and I

23 would -- I can answer such a question related to your case after I've

24 studied the documents.

25 Q. Just -- I think finally this. You did say earlier at page 64,

Page 25393

1 line 16 -- you were commenting on your student who it about to defend her

2 dissertation at Leiden University. "The experience is that in time

3 accuracy tends to go down and confidence sometimes goes up, so the

4 discrepancy between what you actually remember and how confident you are

5 becomes bigger and bigger."

6 A. Yes, that's what I said.

7 Q. Do you stand by that?

8 A. Yes.

9 Q. And how does that fit in with what you have just said a moment

10 ago?

11 A. Well, we are talking about a general phenomenon that can be

12 applied on specific instances only if these specific instances are well

13 described. So although in -- generally it's true that the longer the

14 elapsed time, the higher this discrepancy, not telling something that is

15 relevant for 12 years is in itself a remarkable event, and the risk is

16 far too high that that particular example simply doesn't fit with the

17 general situation I described when I explained accuracy and confidence.

18 So I would not simply apply that rule as a strict rule to just any

19 situation, and I'm very much afraid of just explaining very broad and

20 general principles of my discipline and leave it to various parties to

21 apply that at will to their own case because there's risk that that

22 application would be misleading.

23 Q. So is what you're saying, Professor, that in order for your

24 testimony to have any validity you need to examine in detail each and

25 every purported identification recognition and that what you testify

Page 25394

1 about has very little general application?

2 A. No. On the contrary, I said it has a high general value but can

3 be misleading if it is applied to not only a specific but an exceptional

4 case. The case you are describing reminds me to the possibility that

5 this might be an exceptional case and that, therefore, general rules

6 should not be too quickly -- not too quickly be applied.

7 Q. I just want to be clear. You're saying a court, a tribunal of

8 fact, can apply your general principles so long as they, the tribunal of

9 fact, is aware of the surrounding circumstances of the purported

10 recognition?

11 A. I think in the end the tribunal must apply any knowledge that I

12 can transfer to this audience, and I think it's a safe assumption that

13 the tribunal knowing all the facts of the case will do this in a sensible

14 manner. But since I am not aware of all the facts of the case of your

15 client, I would be reluctant to improvise on possible applications.

16 Q. I quite understand. My apologies if I have put you on the spot,

17 and in the circumstances, I have no further questions.

18 JUDGE AGIUS: Thank you. Mr. Sarapa.

19 MR. SARAPA: No questions for this witness, thank you.

20 JUDGE AGIUS: Okay. Thank you, Mr. Sarapa. Mr. Nicholls, we

21 have 15 minutes.

22 MR. NICHOLLS: Shall I go for five or ten, Your Honours? I'm

23 just not sure. You said some time at the end.

24 JUDGE AGIUS: Yeah, you go for then. All right.

25 Cross-examination by Mr. Nicholls: