1 Thursday, 24th October 1996.

2 (10.00 a.m.)

3 (Closed session)

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13 Pages 7564-7588 redacted in closed session.

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1 (Open session)

2 THE PRESIDING JUDGE: Mr. Niemann?

3 MR. NIEMANN: Yes, thank you, your Honours. Your Honours were asking

4 about timing for the rebuttal evidence that the Prosecution

5 would like to call and closing addresses. Our position on this

6 is that, notwithstanding the fact that the Defence case may go

7 into next week, we would still like to commence our rebuttal

8 case on 5th November, that is, the Tuesday. We would like to

9 commence our closing address around the middle of the next week

10 which should be 14th November.

11 THE PRESIDING JUDGE: Do you know or can you give an estimate of how

12 long you will need for rebuttal?

13 MR. NIEMANN: Yes, the four days from 5th through to the Friday.

14 THE PRESIDING JUDGE: Including cross?

15 MR. NIEMANN: Yes.

16 THE PRESIDING JUDGE: Have you estimated for cross?

17 MR. NIEMANN: Yes, your Honour.

18 THE PRESIDING JUDGE: Do you know how long you might require for your

19 closing arguments?

20 MR. NIEMANN: One day, your Honour.

21 THE PRESIDING JUDGE: Thank you. Mr. Wladimiroff? Is there anything

22 else, Mr. Niemann?

23 MR. NIEMANN: No, your Honour.

24 THE PRESIDING JUDGE: Mr. Wladimiroff?

25 MR. WLADIMIROFF: Yes, your Honour. Rebuttal starting on 5th, that

26 is not a problem for us, your Honour. We expect that we will

27 need one, perhaps, two days of next week. Closing argument,

28 though, starting on 14th November may cause some trouble for the

1 Defence. You indicated 25th or 26th; we have a preference for

2 25th.

3 THE PRESIDING JUDGE: I think I had indicated 21st or I have spoken

4 about 21st which would be Thursday.

5 MR. WLADIMIROFF: Yes, or 22nd would be fine too.

6 THE PRESIDING JUDGE: The 19th and 20th, the other Chamber will have

7 the courtroom, that is, Tuesday and Wednesday. Could we begin

8 on that Thursday then, 21st?

9 MR. WLADIMIROFF: Yes, 21st, Thursday. Indeed, that was no problem

10 for us. The 25th and 26th would not be a problem either. We

11 have a preference for 25th. May I add something, your Honour?

12 The 14th is a problem for the Defence because not all members of

13 the team will be available on that specific day. It is that

14 specific day.

15 MR. NIEMANN: Perhaps I might indicate, your Honours, that from the

16 point of view of the Prosecution, whilst we would like to

17 commence on 14th, we certainly would not want to be in a

18 position where we do something on 14th and then there is a week

19 delay or a break between that and any other part of the case.

20 We would like the closing addresses to follow one after the

21 other.

22 MR. WLADIMIROFF: That will be fine with us, your Honour.

23 THE PRESIDING JUDGE: What Miss Featherstone and Mr. Bos were saying

24 to me is that the other Chamber may need more than two days.

25 They may need three days. That would then get us into

26 Thursday. Of course, if you are estimating a day and you are

27 estimating, perhaps, one day also, that is awfully tight too.

28 We certainly do not want to delay the completion over a weekend,

1 unless you, gentlemen and ladies, want to return on the Saturday

2 and we want to return on the Saturday. I do not know. Let me

3 discuss it with the Judges. We can tell you later on. Why do

4 you not call your next witness and then we will tell you how we

5 might proceed?

6 MR. WLADIMIROFF: Thank you, your Honour. I call Dr. Wagenaar.

7 DR. WAGENAAR, called.

8 THE PRESIDING JUDGE: Sir, would you please take the oath that is

9 being handed to you in English, I think? We will find one.

10 THE WITNESS: I solemnly declare that I will speak the truth, the

11 whole truth and nothing but the truth.

12 (The witness was sworn)

13 THE PRESIDING JUDGE: Fine. Thank you. You may be seated.

14 Examined by MR. WLADIMIROFF

15 THE PRESIDING JUDGE: Mr. Wladimiroff, you may begin.

16 MR. WLADIMIROFF: Thank you, your Honour.

17 Q. Professor, is your full name William Albert Wagenaar?

18 A. That is correct.

19 Q. Do you live in the Netherlands?

20 A. Yes, that is correct.

21 Q. Do you hold the degree of PhD in Social Science from the

22 University of Leiden where you prepared your doctoral thesis on

23 Sequential Response Bias, a study on choice and chance in 1972?

24 A. Yes.

25 Q. Were you granted a Fullbright scholarship for the Pennsylvania

26 State University during 1972 to 1974?

27 A. 1973 to '74.

28 Q. Thank you. Have you been Head of the Psychology Department of

1 the Institute for Perception of the Dutch National Foundation

2 for Applied Sciences from 1974 to 1985, and in the same time

3 part-time Professor of Applied Experimental Psychology at the

4 University of Leiden from 1982 to 1985?

5 A. Yes, that is correct.

6 Q. Were you appointed full-time Professor of Experimental

7 Psychology in the section of Experimental and Theoretical

8 Psychology of the Faculty of Social and Behavioural Sciences of

9 the University of Leiden in 1985?

10 A. Yes.

11 Q. Is this still your present position?

12 A. Yes, that is correct.

13 Q. Have you been Dean of the Department of Psychology of that

14 University from 1985 to 1987?

15 A. Yes, it is called Head of the Department.

16 Q. Have you been Head of the Department of Social Sciences of that

17 University from 1987 to 1989?

18 A. Yes, and that is called Dean of the Department.

19 Q. That is called Dean.

20 A. I cannot help it!

21 Q. Are you Head of the Section of Experimental and Theoretical

22 Psychology of the Faculty of Social and Behavioural Sciences

23 since 1985 until this present day?

24 A. Yes.

25 Q. Are you Rector Magnificus or Vice Chancellor elect of the

26 University of Leiden?

27 A. Yes, that is correct.

28 Q. Has your work been concentrated on human perception and the

1 functioning of the memory during the past 20 years?

2 A. Yes, part of my work, not all of it, but much of it.

3 Q. Are you a member of several Dutch, European and American

4 academic and professional associations and societies and have

5 you held offices in these organisations?

6 A. Yes, that is correct.

7 Q. Have you been a member or chairman of scientific committees and

8 government advisory boards?

9 A. Yes.

10 Q. Have you been an expert witness in trials involving questions of

11 human perception and memory such as, for example, the Demjanjuk

12 case?

13 A. Yes.

14 Q. Have you extensively published in your field of expertise in

15 scientific journals and books?

16 A. You call it "extensive", I can give you the number.

17 Q. More than 150 numbers, is that right?

18 A. Yes, that is correct.

19 Q. Dr. Wagenaar, being a reputed expert on the functioning of human

20 perception and the functioning of the memory, have you been

21 asked by the Office of the Prosecution of the International

22 Tribunal in March 1995 to advise the Prosecution about the

23 memory of witnesses and the problems of identification?

24 A. Yes, I do not remember the exact date, but I think that is

25 probably correct.

26 Q. Without going into the substance of your advice to the

27 Prosecution, did you suggest to the Prosecution that you would

28 prefer to be appointed by the Court to act as an independent

1 expert?

2 A. Yes.

3 Q. Were you informed by the Prosecution that such construction

4 would not fit into the adversarial system?

5 A. Yes.

6 Q. Did I contact you in October 1995 seeking your assistance for

7 the same matter, that is, your professional opinion on the

8 memory of witnesses and the problem of identification?

9 A. Yes.

10 Q. Did it become clear to you that I was not aware of your previous

11 involvement with the Prosecution, and did you explain to me that

12 you would prefer to be an independent expert witness making your

13 expertise available to both parties?

14 A. Yes, I did that.

15 Q. Did you inform the Prosecution of your contacts with the

16 Defence?

17 MR. TIEGER: Your Honour, leading a witness through his background

18 and credentials is one thing; testifying instead of the witness

19 is another. I think my learned friend is leading at this stage.

20 THE PRESIDING JUDGE: It is leading.

21 MR. WLADIMIROFF: It is simply a matter of ----

22 THE PRESIDING JUDGE: It is not really preliminary because I think

23 that you, perhaps, want us to draw something from those

24 conversations, so I will sustain the objection.

25 MR. WLADIMIROFF: What I will do, your Honour, is simply clarify the

26 position of this expert witness to avoid any discussion on the

27 matter and also to avoid the substance of any advice given to

28 either party just to make it clear and that is all.

1 THE PRESIDING JUDGE: That really was my concern, just how far you

2 are getting into that, because it is a leading question, but

3 there is a greater concern that I had. OK. I will sustain the

4 objection.

5 MR. WLADIMIROFF: I just want to see where I was left. [To the

6 witness]: After having contact with me, Professor Wagenaar,

7 have you informed the Prosecution about your contact with the

8 Defence?

9 A. Yes, I have.

10 Q. Did you at any stage provide the Prosecution with an expert

11 opinion on a photospread by a letter?

12 A. Yes, I wrote them a letter on 27th March 1996.

13 Q. Have you sent with the consent of the Prosecution a copy of that

14 letter to the Defence?

15 A. Yes, I did.

16 MR. WLADIMIROFF: Your Honour, I want to show this letter for

17 identification to the expert witness.

18 THE PRESIDING JUDGE: Yes, that will be marked as Defence what

19 number?

20 MR. WLADIMIROFF: D90, as far as I can see it. (Handed).

21 (To the witness): Is this the letter you referred to?

22 A. Yes, it is.

23 MR. WLADIMIROFF: Your Honour, I tender this letter as D90.

24 THE PRESIDING JUDGE: Is there any objection?

25 MR. TIEGER: I believe we are talking about the same letter, your

26 Honour.

27 THE PRESIDING JUDGE: Mr. Usher, would you show what has been marked

28 for identification purposes as Defence 90 to the Prosecution?

1 MR. TIEGER: No, there is no objection, your Honour.

2 THE PRESIDING JUDGE: Defence 90 will be admitted.

3 MR. WLADIMIROFF: Professor Wagenaar, did you also provide the

4 Defence with an expert opinion on related matters by a letter?

5 A. Yes, I sent you a letter dated 10 October 1996.

6 Q. Did you spontaneously provide the Prosecution with a copy of

7 that letter?

8 A. Yes, it is mentioned at the end of my letter, I think, that

9 I would send the Prosecution a copy of it or at the beginning of

10 the letter, rather.

11 MR. WLADIMIROFF: Your Honour, I want to show a letter for

12 identification to the expert witness.

13 THE PRESIDING JUDGE: That will be Defence 91. Why do you not show

14 it to the Prosecution?

15 MR. WLADIMIROFF (To the witness): Is this the letter you referred

16 to?

17 A. Yes, that is the same letter.

18 Q. Thank you. Your Honour, I tender this letter as D91.

19 THE PRESIDING JUDGE: Any objection?

20 MR. TIEGER: No, your Honour.

21 THE PRESIDING JUDGE: Defence 91 will be admitted.

22 MR. WLADIMIROFF: Professor, do you refer in this letter D91 to the

23 Defence to a document indicating the pages of the transcript in

24 the Tadic case that have been given to you by the Defence?

25 A. Yes, I did.

26 MR. WLADIMIROFF: Your Honour, I would like to show this document to

27 the expert witness for identification, please. That will be

28 D92. [To the witness]: Is this the document you refer to?

1 A. Yes, it is the same document.

2 Q. Thank you. Your Honour, I tender this document as D92.

3 THE PRESIDING JUDGE: What is that exactly? Is that a reference to

4 transcripts that have been provided? Dr. Wagenaar, is that a

5 letter from you to him or is that acknowledgment that he has

6 received a letter?

7 MR. WLADIMIROFF: It is a document provided by the Defence to the

8 expert witness listing all pages of the transcript that have

9 been given to the expert witness and also containing a summary

10 of those statements.

11 THE PRESIDING JUDGE: Do you have a copy of that? Usher, would you

12 show it to the Prosecutor, please?

13 MR. TIEGER: One moment, your Honour.

14 THE PRESIDING JUDGE: Is there any objection to Defence 92?

15 MR. TIEGER: No, your Honour. I should note, however, that in

16 addition to listing pages and containing a summary of statements

17 it also contains commentary provided to the doctor.

18 THE PRESIDING JUDGE: Defence 92 will be admitted.

19 MR. WLADIMIROFF: Thank you, your Honour. Professor, did you get a

20 full transcript of all pages indicated in the document?

21 A. Yes, I did.

22 Q. Is your opinion as given in the letters, Exhibit D90, your

23 letter to the Prosecution and D91, your letter to the Defence,

24 as well as the evidence you are about to give today based upon

25 the materials given to you by the Prosecution and the Defence,

26 and your personal knowledge drawn from your own work and that of

27 other recognised scholars in your field of expertise?

28 A. Yes, it is.

1 Q. From the pages of the transcript as listed in document Exhibit

2 D92 that I have given to you, it appears that in court two

3 specific terms were used during the trial, "identification" and

4 "recognition". Can you tell the Court what these terms mean in

5 psychological and forensic literature?

6 A. "Recognition" is a very broad term that is used for any

7 situation in which stimulus is shown to a person, in which a

8 person has to express whether he or she has seen that stimulus

9 before. So that could be a face, a person, a book or words, a

10 picture, anything. In principle, all identification procedures

11 that are used in court proceedings or in police investigation

12 would fall under that broad definition.

13 I have noticed in the pages from the records that

14 I have seen that this Court has adopted a slightly different

15 meaning of the word in which it has distinguished between

16 "identification", which is a word that is normally not used in

17 psychological theory, and "recognition", where recognition has

18 been reserved for those witnesses who know the accused before

19 the war and who have later identified him; whereas

20 "identification" has been used by this Court to indicate

21 subjects, witnesses rather, who did not know the accused before

22 the war, and who have identified him by the means of a

23 photospread.

24 In order not to confuse matters, I have suggested in

25 my letter that I follow this terminology, that I will use

26 "recognition" for the recognition of a person that was known

27 before the war to the witnesses and "identification" by those

28 recognitions by witnesses who did not know the accused before

1 the crime.

2 Q. Thank you. If the term "identification" was used in Court in

3 connection with witnesses who did not know Mr. Tadic before the

4 war and who identified him with the use of a photospread, would

5 such identification always prove that the accused committed the

6 crime with which he is charged?

7 A. No, definitely not. Maybe it is, if I may, it would be good to

8 explain the logic of an identification test ----

9 Q. If you would, please.

10 A. --- and what it purports to do. A proper identification test

11 usually has the objective to place the accused at the scene of

12 the crime. I mean the following. If the witness has never seen

13 the accused before the moment of the crime and possibly at the

14 scene of the crime, depending on whether the accused was there

15 or not, then a later identification that would follow all the

16 rules for identification would logically place the accused at

17 the scene of the crime, because how can a person recognise,

18 identify, someone if he or she has never seen that person? If

19 there is only one occasion in which he or she can have seen that

20 person, then, logically, it is confirmed that that person was

21 present at that particular occasion, in this case the scene of

22 the crime.

23 It does only that; it locates the accused at the scene

24 of the crime. It does not say what the accused did there,

25 whether he was guilty of any crime or not. It only positions

26 him at the scene of the crime.

27 So it can definitely never confirm what that person

28 did. That is a different question. It only contributes one

1 step, locates the person at the scene of the crime. It can only

2 do that if the identification procedures were correct. There

3 are many ways in which identification procedures can be

4 incorrect and usually when you make an error in the procedure,

5 the logic -- you lose the logic that the result places the

6 accused at the scene of the crime.

7 For instance, if there has been another encounter

8 between the witness and the accused, you cannot logically

9 conclude that since the accused was recognised, there is only

10 one explanation which is an encounter at the scene of the

11 crime. There is another explanation which is the second

12 encounter. So, as soon as you know that there was a second

13 encounter, you lose the logic of the identification test.

14 In my letter to you and also in my published work,

15 I have discussed many problems in identification procedures that

16 I would say almost without exception reduce or either remove the

17 logic of the test. So my answer is, no, an identification test

18 will never prove what the person did. It can only prove that

19 the accused was at the scene of the crime, but that will only

20 happen if there were no flaws in the procedure.

21 Q. Thank you. Does it mean, what you have just told us, that an

22 identification by an eyewitness does not always have probative

23 value?

24 A. No, it very much depends upon the specific conditions in which

25 the test was made. To give you one example, if the witness knew

26 the accused even before the crime, the identification does not

27 logically lead to the conclusion that because of the

28 identification we can now know that the accused was at the scene

1 of the crime.

2 Q. Am I right ----

3 A. If the test was highly suggestive in one way or the other, again

4 there is another explanation for the correct identification of

5 the accused, namely, that it was highly suggestive -- it is too

6 easy, anybody, even those people who were not present at the

7 scene of the crime, would find it easy to find out to whom they

8 should point in the test.

9 Q. Am I right in thinking then that the probative value of an

10 identification might generally be crippled by two major issues:

11 First of all, is there any reason to believe or to take into

12 account that the witness knew the accused from other occasions

13 than the crime and, secondly, was the procedure of

14 identification correct? Are these the two major issues there?

15 A. Well, I would say the logic that the identification proves the

16 presence of the accused at the scene of a crime is crippled by

17 those things. You may have other objectives with an

18 identification test. For instance, simply to verify that we are

19 still talking about the same person, the same person that these

20 people knew so well from many years before the war, just to

21 exclude the mistakes or so, and that still could be very

22 useful. But that is a different thing than the logic that

23 possibly the test places the accused at the scene of the crime.

24 It is that logic that is crippled by the two things that you

25 mentioned.

26 Q. Thank you. If the term "recognition" was used for witnesses who

27 knew Mr. Tadic before the war and who recognised him in Court as

28 the person they had known for a long time, would such

1 recognition always prove that the accused committed the crime

2 with which he is charged?

3 A. No. I would say if they knew him very well before the war, a

4 recognition during the investigation only proves that they knew

5 him very well before the war. If there is any reason to doubt

6 that, we have now established that. But anybody who knew him

7 very well before the war would be able to recognise him after

8 the war. So, logically, that does not prove that their

9 testimony about what happened during the war is true or not

10 true. It simply has nothing to do with it logically.

11 Q. Does this mean that recognition of an accused does not always

12 have probative value then?

13 A. Well, it proves what it proves. It proves that they know this

14 person, and that is what they said. If that needs proof, it has

15 probative value. If you want to prove through the recognition

16 that their testimony about what happened during the war is true,

17 I would say it cannot contribute anything to that, apart from

18 the fact that, apparently, this witness has not lied about his

19 previous acquaintance with this person. If it is worthwhile to

20 establish that, it does it.

21 Q. Are there major problems here that might cripple the probative

22 value as such, that is, simply, "We know him for a long time

23 and, therefore, we are able to recognise him"?

24 A. I do not quite understand your question. I am sorry.

25 Q. Are there problems here you could label that might cripple a

26 claim of a witness ,"I know him from before and, therefore, I am

27 able to recognise him"? Are there procedures that might cripple

28 or is there anything that might cripple?

1 A. Well, in principle, these what you call "recognitions",

2 identifications by people who knew him from before the war, in

3 principle, the identifications were done here in the courtroom.

4 They are what we call "dock identifications". Of course, the

5 situation here is very simple. It is very easy to find out who

6 of the persons present in this courtroom is the suspect, is the

7 accused. So even if they lied about knowing him before the war,

8 they would find it easy to identify him now. So if you have

9 really a doubt whether it is true that they knew him before the

10 war, I would say a better test is needed than a dock

11 identification test.

12 On the other hand, assuming that these witnesses are

13 totally honest, and there would have been a mistake, so the

14 person they described is not the person present in the courtroom

15 today, there is every reason to assume that they would now

16 correct the mistake and say, "No, that is not the person I

17 mean". They have given all opportunity. Only when you start to

18 doubt their sincerity or their honesty, you need a more critical

19 test than a dock identification.

20 But I have in the discussions I have read not seen any

21 description about whether it is true that they lived in the same

22 village or in the same area. So I would not directly see a need

23 for a more strict test than just a kind of verification test in

24 the courtroom.

25 Q. I take it then that "identification" and "recognition" in the

26 way it has been used in this Court require two different forms

27 of testing?

28 A. Yes. For those few witnesses who did not know him before the

1 war, you need a much more strict and better controlled test,

2 because the outcome may have the logical implication that now

3 the accused is placed within the camp. I would say that

4 conclusion is so important there must be no doubt about that the

5 evidence is doing that. So that is why for those who did not

6 know him and who are going to pass an identification test, a

7 very well controlled procedure is necessary.

8 Q. Could you describe such a procedure for us, just in general

9 terms?

10 A. I would say I have described it in length in various

11 publications. The surprising thing is that although you might

12 think it is easy to do, in fact, it is not at all easy to do.

13 I have published in 1988 50 rules for such tests. That is not a

14 limited list. There are more rules. Those are the 50 most

15 important ones.

16 In principle, what you do is that you place the person

17 whom you suspect among a number of other people whom are known

18 to be innocent and are known to be unfamiliar to the witnesses,

19 who sort of fit the same general description as the suspected

20 person. Then you ask the witnesses whether they recognise the

21 one person they have described before or not. You tell them

22 that maybe that person is not in the lineup so they should not

23 guess. They should only point at someone if they recognise him

24 positively. You tell them they can only point at one person

25 because they cannot recognise two, at one person or at nobody.

26 You give them a limited time to do that because if you recognise

27 them, you recognise them in a short time, it does not help to

28 wait two and a half hours and then you may recognise them.

1 Q. What kind of testing is generally required for what has been

2 called in this Court "recognition"?

3 A. Well, if -- it depends on, as I said, it depends on what the

4 purpose, the objective of what the recognition is. If it is

5 just to verify that this is the same person that the witness

6 described, the person has known for so long, then in Court dock

7 identification probably would suffice.

8 If there is sincere doubt that this person, although

9 he claims to have known the accused for a long time, in fact

10 never had met him, then also for that purpose you need a far

11 more critical test like the one I described to you. But if it

12 is not at issue, if it is not in doubt whether he knew that

13 person, you do not need to take all those precautions. You only

14 need to verify that we are still talking about this same person

15 so there are no mistakes.

16 Q. Professor, before I ask you about the tests that were applied in

17 the Tadic case, let me first ask you, did you find in your

18 review of the transcript that 52 witnesses were confronted with

19 the accused in one way or another?

20 A. Yes, on page 3 of my letter of 10th October, if I may refer to

21 that letter because it is more practical, I think. There is a

22 table which lists the number of witnesses ----

23 Q. Before you do that, Professor, may I suggest that we provide the

24 Court with a copy of that letter that might be helpful for you

25 to follow the explanation? (Handed) Please continue.

26 A. So on page 3 there is a little table that represents the

27 witnesses about whom I have read parts of the records. I do not

28 want to imply that these are all the witnesses that have been

1 presented to the Court. Those are the witnesses that I know of

2 on the basis of this package, this extract, of the Court

3 proceedings. Of these 52, 48 declared that they knew Mr. Tadic

4 long before the war and four declared that they did not know

5 him.

6 Q. Out of those 48, can you explain to the Court how many of those

7 48 did recognise Mr. Tadic or did recognise him and their

8 conditions that would be correct if the test was applied to the

9 witness?

10 A. It depends what the objective is. Out of these 48, 42

11 identified -- no, 47 identified the accused here in the

12 courtroom. If the objective of that is just to make sure there

13 is no misunderstanding, it confirmed they recognised him, it

14 confirmed, "This is the person I am talking about", that would

15 be a correct procedure for just verifying that there is no gross

16 mistake.

17 Five additionally also looked at photographs before

18 they came to Court, but generally (and I have described that in

19 this paragraph relating to this), these photo identifications

20 were not proper photo line ups. Some of them consist of only

21 two photos. So again also these five, about these five, we know

22 that they verify that the person being accused now is the person

23 they were talking about, and about which they declared that they

24 knew him long before. Nothing else. Then there is one witness

25 who appeared in Court, but I could not find any identification

26 attempt. So we do not -- the verification was not done.

27 I would say, in principle, with this 47 there is

28 nothing wrong as long as the logical conclusion of those

1 identification that is drawn by either you, the Prosecution or

2 the Court is not that those identifications now place the

3 accused at the scene of the crime, in the camp, because they

4 cannot logically do that. It is only established here in Court

5 the witness still thinks that the person he is talking about is

6 the same as the accused.

7 Q. So you did find 48 witnesses who claimed that they did know

8 Dusko Tadic before the war, is that correct?

9 A. Yes, and maybe I should add that a proper lineup, the way

10 I described, is impossible with people who knew him anyway,

11 because even if they had never seen him during the war they

12 would find it easy to identify him. So the logic, the logic of

13 the proper identification test, would be lost anyway. So,

14 I think the procedures that have been used here are adequate for

15 the limited purpose, the limited objective, of simply excluding

16 gross mistakes.

17 Q. May I try to sum this up? Did you find 84 witnesses who claimed

18 that they knew Mr. Tadic before the war, is that correct?

19 A. Well, I would say, rather, 48.

20 Q. 48, excuse me.

21 A. Yes.

22 Q. Right. Did you find that 42 of these 48 witnesses claimed that

23 they recognised Mr. Tadic in the dock?

24 A. Well, no, 47. You have to add the five, those five.

25 Q. I will come to that letter.

26 A. OK. 42 identified him, as far as I know, only here and not

27 before with the help of photographs.

28 Q. Right.

1 A. Yes.

2 Q. Did you find that five of these 48 witnesses recognised

3 Mr. Tadic by use of a photospread and also recognised him in the

4 dock?

5 A. Yes. I should say, of course, that since they have seen

6 photographs of him before, there is a slight logical problem

7 here, because if, in fact, they had never seen him before the

8 war but only on this photograph, they would also find it

9 possible to identify him here in Court, and certainly for those

10 five it does not really prove that they knew him before the war

11 because they have seen his picture during the investigations.

12 But if you want to assume that those witnesses are

13 honest people, they would have had -- and there is a mistake,

14 just that the wrong person is here, then of course they would

15 have said, "No, this is not the person I have known for so

16 long".

17 Q. Did you find that one witness who had failed to recognise

18 Mr. Tadic in the photo test was subsequently asked to identify

19 him in the dock?

20 A. Wait a minute. Can you repeat the question?

21 Q. Did you find that one witness who failed to recognise Mr. Tadic

22 in the photo test was subsequently asked to identify him in the

23 dock?

24 A. Wait a minute, you are not referring to the one in my table

25 where it says one person, I think, because that is a person for

26 whom there was simply no identification attempt whatsoever, as

27 far as I know.

28 Q. Perhaps you could read to the Court in your expert opinion the

1 sentence beginning with "The one exception"?

2 A. That is on page 3 I think.

3 Q. On page 3, a little over the middle of the page. At the end of

4 the sentence you will see "The one exception". It is at the top

5 of that letter.

6 A. "With the exception of one, the 40 tests revealed positive

7 results".

8 Q. Later on down five lines down you will find at the end of

9 line ----

10 A. Yes. "The one exception mentioned above was a witness who

11 participated both in the photo test and the dock

12 identification." OK, yes, that is the witness who failed in the

13 photo test and later she claimed that in fact she had recognised

14 Mr. Tadic but had failed to express that. That is a problem

15 because if one wants to stick to the rules for identification

16 the first response, that is the final response. You do not

17 allow witnesses to correct their responses, and definitely not

18 after a while when they have seen and talked to other people.

19 Q. Should a subsequent dock identification then be held after such

20 a test or failed test?

21 A. In principle not I would say. This is a person who, according

22 to the rules, has demonstrated that she cannot easily identify

23 the witness. In a subsequent dock identification, as

24 I explained, it would be rather easy for her because she has

25 seen the picture. Of the 13 pictures she has seen, if she has

26 had the complete test, there is one person present, so it is

27 easy for her to realise that is the person she should point at.

28 So the answer is, no, once there is doubt whether a witness can

1 identify the accused, once the witness has failed to do that,

2 I would say you should reject the witness and note it as a

3 non-recognition, non-identification.

4 Q. Would you say then that that dock identification of that witness

5 fails diagnostic value?

6 A. The dock identification does not have the power to sort of

7 correct what was lost during the first identification.

8 THE PRESIDING JUDGE: May I just ask a question about that one

9 person? Is that person in your number for the photo test or is

10 that person in the number for the dock identification or both?

11 A. It is the person -- she is in the five.

12 Q. She is in that five?

13 A. She is one of those five because she received two tests.

14 Q. She is listed as a dock identification ----

15 A. And photo test, yes.

16 Q. --- but for someone who knew him. Is she also in the four? No,

17 she could not have been because she knew him?

18 A. No, she knew him.

19 Q. She is in the five.

20 A. She knew him but she could not recognise him in the 13-picture

21 photo test. So she is within those five.

22 Q. She is in the dock identification. Thank you.

23 MR. WLADIMIROFF: So where does that leave us? How many positive

24 recognitions were there altogether of those who claimed that

25 they knew him before the war?

26 A. So from those who knew him before the war, those 48, 46

27 recognised him in one way or the other. One as far as I know

28 was not tested and one did not pass the test.

1 Q. Thank you. Again, Professor, before focusing on the ins and

2 outs of these recognitions in details, does this mean that these

3 46 recognition logically corroborate the claim of these

4 witnesses that Mr. Tadic is the person they have seen to commit

5 the crime?

6 A. Well, logically it corroborates that that is the person they

7 know as Mr. Tadic. They are able to indicate who Mr. Tadic is.

8 I would say that is a necessary condition for believing that

9 they saw, that they know who saw commit some crimes. So, if

10 they would not have passed the test there would have been a

11 problem with legal evidence, because if they cannot recognise

12 him how do they know that that was the person they saw commit

13 crimes? It is a necessary condition. They should pass the

14 test, but once they have passed the test there is still a

15 question about: Is it true what they say about him? They know

16 who it is. Of course they know if they have lived in the same

17 village. So they are not lying about knowing who he is. That

18 is all that is proved.

19 Q. Are you saying it does not logically corroborate the claim of

20 these witnesses that Mr. Tadic is the person they have seen to

21 commit the crimes?

22 A. No, logically not, because others who have lived in the village

23 and who have never seen anybody do any crimes would found it

24 equally easy to identify him. So the easy identification by

25 people who are from the same village or same area, just means

26 they are from the same area, that is all. It does not mean that

27 they saw or did not see any crimes.

28 Q. If we proceed to the other group, those who claim that they did

1 not know him before, how many people did you find out of those

2 52 witnesses according to your review?

3 A. I found four in the pages that were given to me. I consider

4 these four, although the number might seem small, are extremely

5 important because if the procedures are correct then, logically,

6 that places the accused in the camp. I think that is such an

7 important element to the Court that, even although there are

8 four, I would say four is a small number compared to 52, but it

9 is not a small number. There are four witnesses who all

10 attested they have seen him in the camp, and if they can now

11 recognise him and the tests were executed in the correct manner,

12 there is no other explanation for the recognition but the fact

13 that they saw him in the camp. So those four, it is not a small

14 number. They are extremely important.

15 JUDGE STEPHEN: Mr. Wladimiroff, may I ask a question? You say these

16 four are very important because of placing him in the camp. If

17 you look back to the 42 some of them knew him from childhood, we

18 will assume. They say, "We saw him in the camp". Why is that

19 evidence less important than the evidence of the four, if the

20 test for the four is properly conducted? I do not follow that

21 at all.

22 A. No, I am not saying that evidence is less important. What I am

23 saying is if they tell you, "We saw him in the camp", and you

24 want to confirm that because you do not believe those

25 statements, then the identifications do not help you any more.

26 If you do not believe what they said about seeing him in the

27 camp, then asking them to identify him does not help you. It

28 does not add anything. If you want to believe what they said,

1 you do not even need the identifications.

2 Q. But we are not using identification to determine whether these

3 witnesses are truthful or not. That is quite a different

4 matter, a matter for the Court, is it not?

5 A. Sure, but that is exactly the reason why of those 42 or 48

6 depending on to whom you want to refer, their identifications do

7 not add anything to their truthfulness.

8 Q. No, but it may not be intended to. It has nothing to do with

9 truthfulness?

10 A. Yes.

11 Q. I follow.

12 A. Whereas the four, that is a different matter. On the basis of

13 their identification you may decide whether they are truthful or

14 not, because if they are not truthful it will be impossible for

15 those four to identify him, you see. So there logically it has

16 a different meaning.

17 JUDGE STEPHEN: Thank you.

18 MR. WLADIMIROFF: So, do these identifications of those four

19 logically place Mr. Tadic at the scene of the alleged crimes?

20 A. They have the potential to do that, depending on whether the

21 procedures were applied correctly or not. But they have the

22 potential to do that, yes.

23 Q. So without correct procedures they do not have that potential?

24 A. If there are really gross violations of procedures, that

25 potential is lost.

26 Q. Am I right in thinking then that the value of these four

27 identifications totally depends on the procedure?

28 A. Yes.

1 Q. Professor, would it be relevant to know about other photo tests

2 with persons who were interviewed by the Prosecution or other

3 investigating bodies and who have not been called by the

4 Prosecution to give evidence in court? Would it be relevant to

5 know about the other photo tests?

6 A. Yes, definitely for various reasons. One is that on the basis

7 of these four witnesses I could not form a clear image of the

8 procedures, the exact procedures that have been used, and maybe

9 if there were more witnesses that, bit by bit, details of those

10 procedures would come out. That is one. But the more important

11 factor is that the one thing you definitely want to know is

12 whether there were witnesses who participated in the photo test

13 and who did not recognise him. Now the score, if I may say so,

14 stands four out of four. Four represented the photo test, they

15 all identified him. If one would believe that those witnesses

16 were lying about, say, their experiences and were simply

17 guessing in the test, then this result would be highly

18 unlikely. It would be 1/13th to the power of 4 which is an

19 incredibly small number. If in fact these four witnesses are

20 four out of, say, 50 for example, and the other 46 did not

21 recognise him but we are now told about them, then certainly the

22 likelihood that four out of 50 would guess correct is rather

23 high. So if we want to exclude the possibility that people were

24 simply guessing and guessed correctly, then we have to know how

25 many witnesses participated in such tests, in total and what the

26 results of all of them were.

27 Q. What if one of these four or all of them would have seen a

28 photo, a previous photo test with the photo of Dusko Tadic in a

1 different setting, in another case?

2 A. That would invalidate the test because then we cannot decide

3 what it means that they recognised him. Does it mean that they

4 saw him in the camp because that was the only encounter? Or

5 does it mean they remembered from the previous photo? So the

6 logic then, the logic of the test has gone.

7 Q. Let me focus on the major problems that might cripple the

8 outcome of your review. I take it that a photospread should not

9 contain such suggestive details or biasing elements that you

10 would say that such a test is not sufficient to identify a

11 suspect, is that correct?

12 A. Yes, all details that make it very easy to guess who the suspect

13 in that lineup is, in principle invalidates the test. The rule

14 is, which is a very practical rule, that if you ask people who

15 were never involved in this whole problem to indicate who they

16 think the accused is, they should not be able to do that. If

17 they understand from some suggestive aspect of the lineup who

18 the accused is, then certainly it does not mean anything any

19 more that the witnesses can do the same. It does not prove they

20 have seen him because others who have not seen him can do it

21 equally easy.

22 Q. Is there a test in your field of expertise that enables you to

23 test whether the photospread is correct or not?

24 A. Yes, that is sometimes referred to as the Doob and Kirshenbaum

25 test and I have, as well as we could, applied that test to the

26 set of 13 pictures.

27 Q. What does the test mean?

28 A. I reported this to Mr. Tieger in my letter of March 27th.

1 Q. May I then suggest we present a copy of that letter to the

2 Court. Can you tell us what this test means?

3 A. The test consists of presenting the 13 pictures to we call them

4 "subjects", or you might call them naive witnesses but I would

5 rather call them subjects because they have nothing to do with

6 the trial, and ask them: "One of these people is accused of

7 being a war criminal. Have you any idea who it is?" We asked

8 39 subjects and their choice frequency can be found in the

9 little table on page 3 of my letter. The picture of the accused

10 is No. 3. So what you can see is that five out of 39 selected

11 the accused. The guessing level is three out of 39, 1/13th. So

12 it is slightly above the guessing level, but not significantly

13 so.

14 I reported in my letter that there is a problem with

15 this test which could not be mended by me easily, which is that

16 my subjects had the Dutch nationality, whereas the witnesses

17 definitely had not. The problem is, and this is an hypothetical

18 problem because at that time I could not find out how big the

19 problem was, the problem is that imagine that people from the

20 former Republic of Yugoslavia can easily distinguish between the

21 various ethnic groups, and imagine additionally that Mr. Tadic

22 is the only one who clearly looks like a Serb and the others do

23 not. Then to people from my subjects that would be not be

24 obvious. They would not select the picture of Mr. Tadic as the

25 only one representing a Serb.

26 Q. By your subjects you mean Dutch?

27 A. My Dutch subjects. Witnesses who look at those things and who

28 come from the former Republic of Yugoslavia might immediately

1 recognise there is only one Serb in the lineup and say, "Ah,

2 that must be him", because the person we are talking about is a

3 Serb. I could not easily mend that because I had no people from

4 the former Republic at my disposal as subjects. I reported this

5 problem.

6 Since then we have run experiments in Belgrade with

7 subjects -- I still call them subjects because it has nothing to

8 do with the trial as such -- with subjects who are more or less

9 representative of, say, the group of witnesses. What we have

10 found is that also these subjects found it impossible to

11 classify the pictures according to ethnic background, which

12 suggests to me that this problem, hypothetical problem, did in

13 fact not occur. Again I must say there is an exception there

14 too. I believe I must apologise to make things so complicated

15 as scientists always do, but that is my profession. I cannot

16 help it.

17 Q. Please do tell the Court.

18 A. Let me take a very extreme example. Imagine that we would have

19 presented 12 pictures of Japanese people to those subjects in

20 Belgrade and asked them, "Group them according to ethnic

21 background", and then mention the Yugoslav groups like Croats,

22 Macedonians and so on. They would find it extremely difficult

23 to group the Japanese faces in these categories because they

24 simply do not fit. Of course, what you have to know is that the

25 pictures that you present are of people from the former Republic

26 of Yugoslavia. So that the question to categorise them, to

27 classify them, is a meaningful question.

28 Unfortunately, I do not know who these 12 people,

1 these foils in the set of 13, who they are and where they came

2 from. So if they are not Yugoslavians at all, one reason why

3 they could not be classified according ethnic groups is that

4 they simply do not belong to these ethnic groups. That is a

5 question I have to leave open. I do not know who they are and

6 there is no easy way for me to find out.

7 Q. Does it mean that your experiments in Belgrade depend on the

8 assumption that those foils were people from the former

9 Yugoslavia?

10 A. Yes.

11 Q. And, if not, that this test in Belgrade does not add anything to

12 your test with Dutch subjects?

13 A. You have invited a scientist. It is more complicated, but the

14 question is not are they from the former Yugoslavian Republic or

15 not but how many. If one is not I would say there is still no

16 problem. If only one is a former Yugoslavian then there is a

17 problem. So it is matter of degree. But I would say it would

18 be very nice to be assured that they all came from the former

19 Republic of Yugoslavia.

20 Q. Actually did you show all 13 pictures to the subjects in

21 Belgrade or a lesser amount of pictures?

22 A. No, we asked them to classify the 12, not the picture of

23 Mr. Tadic, because we assumed that by now they would recognise

24 this picture immediately and know that he is from the former

25 Serbia. So that would be a meaningless question. We also did

26 not want to suggest to them that what they were doing would

27 contribute to this trial, because that could give them all sorts

28 of second thoughts, second reasons, to answer to our questions

1 instead of simply doing the task, which is classifying according

2 to ethnic background. So we did not show that picture. It

3 would not teach us anything that would be useful, and it would

4 sort of threaten the neutrality of the test.

5 Q. By now what do you mean, when would it be no longer appropriate

6 to run the test when the trial started or at an earlier date?

7 A. I think it would be very nice before the photospread was shown

8 to anyone at all to test it thoroughly to see that it is not

9 biased, to see that naive subjects from the group who was going

10 to be interviewed later, people from Bosnia, that they would

11 find it impossible, not having met Mr. Tadic before, to identify

12 who the accused in that lineup is. That would be very nice. It

13 would be a very wise precaution. Now it is of course impossible

14 to do that with naive people from Bosnia because I assume that

15 there are very few people in Bosnia who do not know about this

16 trial and who have not seen in one way or another the face of

17 Mr. Tadic.

18 Q. Am I right in thinking then that usually the Doob and

19 Kirshenbaum test is performed with the same ethnic group as the

20 accused? Is that the condition, a logical condition?

21 A. That is a logical condition, the same people drawn from the same

22 populations as where the witnesses come from. That is the ideal

23 condition, yes.

24 Q. Do I understand you well that you are not able to tell the Court

25 whether the test was run with the same group as the accused when

26 you tested the photospread of the Prosecution? You simply do

27 not know?

28 A. Wait a minute, maybe there is a confusion now. I thought you

1 were asking about subjects in the Doob Kirshenbaum test as

2 compared to witnesses.

3 Q. I am asking you ----

4 A. I understand. Now you are asking about the foils coming from

5 the same ethnic background ----

6 Q. That is right.

7 A. --- as the accused, which is a totally different question.

8 Q. Let me rephrase the question then. Is it usually done to run a

9 Doob and Kirshenbaum test with foils of the same ethnic group as

10 the subjects you run the test with?

11 A. No, that is not necessary. It is perfectly possible that the

12 witnesses are, say, Japanese and the accused is a Serb. There

13 are two conditions that you would ideally meet, which is your

14 naive subjects in the Doob and Kirshenbaum test should come from

15 the same population as the witnesses. Second, the foils should

16 come from the same ethnic background as the accused.

17 Q. Right.

18 A. But these two groups can be entirely different. The witnesses

19 can be all Japanese and the accused and the foils can be all

20 Croats or Serb or whatever.

21 Q. Do you know who composed the photospread that was used in the

22 Tadic case?

23 A. I have only hearsay information about that. I am not sure that

24 you want to know that. The pictures were given to me by the

25 Prosecution.

26 Q. Was there any information added to that?

27 A. One could not obtain information about who these foils were.

28 Q. Did you ask whether there was any information about that

1 available?

2 A. Yes, I was told that those 12 were provided by the Dutch police,

3 but I have no way to verify that. I have talked to the person

4 in the Dutch police organisation who was involved in that and

5 who confirmed he had anything to do with it, but he could not

6 give me any details about who these 12 were.

7 Q. Was there any registration of who those people were, names,

8 ethnic background?

9 A. If there is it was not given to me. I have asked for it.

10 Q. It was not available?

11 A. I cannot say that. It was not made available to me when I asked

12 for it.

13 Q. Am I right then that you do not know anything about the ethnic

14 background of the foils?

15 A. That is correct.

16 Q. Would the presentation of a photospread containing photographs

17 of, let us say, Bosnian Muslims or Croats or even non-Yugoslavs

18 to non-Serb witnesses invalidate the choice of frequency?

19 A. I am sorry, can you ask that again?

20 Q. Would the presentation of a photospread containing photographs

21 of Bosnian Muslims or Croats or non-Yugoslavs to non-Serb

22 witnesses, say, Muslims or Croats, invalidate the choice of

23 frequency?

24 A. No, not necessarily. I would say it all depends on the test.

25 That is exactly why you run such a test to make sure that the

26 photo set is chosen correctly and whether people from the

27 relevant population find it easy to identify who the accused

28 is. If they do not the test is correct and then it really does

1 not matter where they came from. But that test, the Doob and

2 Kirshenbaum test, run with people from Bosnia, Bosnian Muslims,

3 cannot be run any more because they know who Tadic is. The

4 replacement, the best, the next best, the test I did, had the

5 test of the 12 foils without the picture of Tadic, for that test

6 it is important that we know that they are all from Yugoslavia.

7 You see, it is always the problem if you did not do it exactly

8 right from the beginning you sort of have to live with the next

9 best, but the next best creates all sorts of new problems.

10 I cannot help that. I can only test, we can only tell you we

11 sort of applied the best test that is available at this late

12 stage, but it has problems. It cannot be helped. It can never

13 be a replacement for the test that I would have liked to have

14 done before the trial started.

15 Q. Is there a theoretical problem that witnesses or subjects who

16 are tested think they might not distinguish between the ethnic

17 background but in fact do? Is that an option?

18 A. Sure, if they tell you -- well, there is no problem because we

19 cannot distinguish between those ethnic backgrounds anyway.

20 That is what they say and many people can do things of which

21 they are not aware at all. So, the answer is in the test, not

22 in what they say about what the result of the test would

23 be. You apply the test and then you know whether they can do

24 it.

25 Q. Did you find in your Belgrade research you did with this

26 photospread any answer to this problem?

27 A. In our Belgrade research we found that they cannot distinguish

28 between ethnic backgrounds, but there is this small proviso that

1 I mentioned that is meaningful if we know that those pictures

2 were representing people from the former Yugoslavia. Then it is

3 really helpful, I think, that result and it sort of reassures us

4 that the test, the photo test, was a fair test.

5 Q. But as a matter of fact we do not know ----

6 A. But there is a proviso.

7 Q. As a matter of fact we do not know who those foils are?

8 A. I do not know that. I do not know about you. I do not know

9 it.

10 MR. WLADIMIROFF: Perhaps, your Honour, this is an appropriate

11 moment.

12 THE PRESIDING JUDGE: We will stand in recess until 2.30.

13 (1.00 p.m.)

14 (Luncheon Adjournment)

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1 (2.30 p.m.)

2 THE PRESIDING JUDGE: Mr. Wladimiroff, you may continue.

3 MR. WLADIMIROFF: Thank you, your Honour.

4 Q. Professor Wagenaar, before the lunch break we had been

5 discussing the ins and outs of the Doob and Kirshenbaum test and

6 you did tell us about the uncertainties of the Prosecution

7 photospread, did you not, when you referred to you do not know

8 who the foils are, is that correct?

9 A. Yes.

10 Q. Do you know anything about the procedure that was followed when

11 that photospread was used?

12 A. A little, at least not all that I would like to know.

13 Q. We will go into that later. If you are not fully aware of the

14 procedure that was followed when the Prosecution photospread was

15 used and if you are not familiar with the identity and ethnic

16 background of the foils, would such a photospread provide for a

17 diagnostic, significant test?

18 A. Well, all I can say is that I cannot make a fair assessment of

19 how diagnostic it is. If everything went according to the

20 rules, it can be highly diagnostic and, in fact, say, an

21 identification, identification evidence can rank among the best

22 evidence that the Court can collect, if the procedures were

23 right. If the procedures went wrong, it can be highly

24 suggestive or even misleading and I cannot make a fair

25 assessment of which is the case.

26 Q. So it simply comes down that we need to know more about these

27 elements, procedure and who are they, to give any value to these

28 test, is that right?

1 A. I think that is a fair conclusion, yes.

2 Q. In your letter of 10th October 1996 to the Defence, that is

3 Exhibit D91, you described a number of weaknesses that threaten

4 the reliability of the photospread. Do you remember that?

5 A. Yes, I have it in front of me.

6 Q. Did you mention as a threatening factor earlier encounter?

7 A. Yes, I did.

8 Q. What does it mean?

9 A. It means that if the witness encountered the accused or a

10 picture of accused at any other time prior to the test, beside,

11 say, possibly at the scene of the crime, then we do not know any

12 longer what the identification means, whether it means that they

13 met at the scene of the crime or not because the reason why now

14 the witness recognises the accused could be the other encounter.

15 Q. Am I right in thinking that the probative value of the

16 recognition also depends on the reliability of a witness

17 claiming that he did not see the image of Mr. Tadic in

18 newspapers or on television?

19 A. Sure, if there is, in principle, a possibility that witnesses

20 have seen images, say, on television or in newspapers ----

21 THE PRESIDING JUDGE: Mr. Tieger?

22 MR. TIEGER: Your Honour, I was slow on that objection, but I am

23 concerned about the intrusion of this witness's opinions into

24 areas which are clearly the province of the Court; the

25 assessment of reliability, the judgment of evidence. It is one

26 thing to detail the factors based on his area of study which may

27 in some manner reflect on that, but to begin making assessments

28 of how the evidence interacts with that is, I think, beyond his

1 camp.

2 MR. WLADIMIROFF: As a matter of fact, I am not asking the witness,

3 your Honour, to give an assessment on the reliability. I am

4 simply asking him if the reliability of the witness is at stake,

5 would that invalidate the test. That is all I ask. So is the

6 reliability an issue which is relevant for the understanding and

7 the value of the test.

8 THE PRESIDING JUDGE: Reliability ----

9 MR. WLADIMIROFF: Of the witness.

10 THE PRESIDING JUDGE: -- in terms of an answer of a witness to a

11 question like having seen the image before on the TV.

12 MR. WLADIMIROFF: On the assumption that the witness is true when he

13 says that he has not seen Dusko Tadic before, you may evaluate

14 the test. I am simply asking, is it relevant then ----

15 THE PRESIDING JUDGE: I will overrule the objection. I will

16 overrule the objection. Go ahead.

17 MR. WLADIMIROFF: Yes. I will put the question again to you,

18 Professor: am I right in thinking that the probative value of

19 recognition depends on the reliability of the witness who claims

20 that he did not know Mr. Tadic before the crime?

21 A. Sure, if in any case, if it is not certain, if, in principle,

22 there has been an opportunity for seeing a picture of the

23 witness, and it is not -- it cannot be established that the

24 witness did not see such a picture, and the only thing you have

25 is the witness's own statement about this, well, then the degree

26 to which you trust that statement, of course, will affect your

27 belief in the test.

28 Q. That is for the Court to decide?

1 A. It is for the Court to decide whether they want to trust that.

2 THE PRESIDING JUDGE: That is where we are.

3 A. Yes.

4 MR. WLADIMIROFF: If the picture of Mr. Tadic was widely circulated,

5 would that invalidate a recognition, even when the witness

6 claims that he did not see the image of Mr. Tadic in newspapers

7 or television because he is not aware of that?

8 THE PRESIDING JUDGE: Excuse me.

9 MR. TIEGER: The same objection, your Honour.

10 THE PRESIDING JUDGE: That seems to me that he is getting into

11 telling the Judges how to make credibility assessments and --

12 well, that is what I feel. It may be that we decide not to

13 accept a witness's statement when he says: "I have not seen

14 Mr. Tadic on TV" when we know that his image has been broadcast

15 widely since the trial began because of circumstances that we

16 have learned from the witness, like lack of electricity in the

17 area, that he is working certain shifts. We have heard

18 witnesses regarding that. I really think that is a judgment for

19 the Judges.

20 MR. WLADIMIROFF: May I rephrase the question then into is it

21 possible then that the witness will claim he did not see

22 anything but he is not aware of what he has seen? Is that in

23 your field of expertise?

24 THE PRESIDING JUDGE: That sounds like a good question, because his

25 training is in human perception and functioning of the memory.

26 MR. WLADIMIROFF: Yes, exactly.

27 THE PRESIDING JUDGE: He can tell us whether it is in the recess

28 somewhere. OK.

1 MR. WLADIMIROFF (To the witness): May I put the question to you?

2 A. It is certainly possible that someone thinks he has not seen a

3 certain picture whereas, in fact, he or she has.

4 Q. Is there any research that will show how relevant this

5 assumption might be in general or in specific cases?

6 A. Well, given the general possibility that this may happen to

7 people, I think there is little else to say about how you apply

8 that in a specific case, but it may have happened, such things

9 may happen, and it is something I would say to evaluate, to be

10 weighed by the Court, but there is nothing more you can say

11 about it.

12 Q. Right.

13 A. It is not a thing you can ask -- for instance, you can ask the

14 witness: "May it happen that you do not remember but you have

15 still have seen it?" because what could the witness say about

16 that?

17 Q. Should it assist the Court in making the assessment on the value

18 of such test if the Court was informed about the range and

19 extent of the circulation of the picture of Mr. Tadic?

20 THE PRESIDING JUDGE: Excuse me, Dr. Wagenaar.

21 MR. TIEGER: There is an objection. I do not think this witness is

22 an expert on this particular issue. He has already made his

23 point that prior exposure may bear, in his view, on

24 reliability. The factors which bear on what kind of exposure,

25 the extent of exposure, are outside his province.

26 THE PRESIDING JUDGE: Mr. Wladimiroff?

27 MR. WLADIMIROFF: I have no problem in withdrawing the question, your

28 Honour. [To the witness]: Should it assist the Court to be

1 informed about previous tests by other bodies than the

2 Prosecution such as, for example, Bosnian and German

3 authorities?

4 A. I think if there were previous tests with the same witnesses, if

5 that is what you refer to, and there is a possibility that

6 pictures of Mr. Tadic were shown on that occasion or on those

7 occasions to the same witnesses, I think it would be highly

8 relevant to know about that.

9 MR. WLADIMIROFF: Your Honour, I want to show this document for

10 identification to the expert witness. I think that will be D93.

11 THE PRESIDING JUDGE: Yes.

12 MR. WLADIMIROFF: Show it to the Prosecution, but I think they have

13 it in front of them, yes. Please familiarise yourself with what

14 you have in front of you.

15 A. Yes, I have looked at it.

16 Q. Would you call this a photospread?

17 A. It is a collection of photographs. It could be used as a

18 photospread.

19 Q. Let me first ask you, do you speak German?

20 A. Yes, I do.

21 Q. Does the top page of this document show that this is a

22 collection of photos?

23 A. Yes, transparencies, I would say it says.

24 Q. Does it also show on the top page that this map of photos is in

25 a criminal case against Nikola Nikolic, Milenko Tomic, Dragan

26 Vidic and a person called Zigic ----

27 A. Yes.

28 Q. --- who are accused of accessory to mass murder ----

1 A. Yes.

2 Q. ---- war crimes?

3 A. Yes.

4 Q. Does this collection of photos show a photo of Dusko Tadic?

5 A. Well, photo No. 197, I would say, reminds me very much of the

6 picture I have seen of him. I could be mistaken but .....

7 Q. Could you show that photograph on the overhead projector which

8 is on your right side?

9 THE PRESIDING JUDGE: Can we offer this -- would you offer it?

10 MR. WLADIMIROFF: Yes, I will tender this document as D93, your

11 Honour.

12 THE PRESIDING JUDGE: Is there an objection?

13 MR. TIEGER: No, your Honour, there is not.

14 THE PRESIDING JUDGE: OK. Defence 93 will be admitted. It is

15 photo 197?

16 MR. WLADIMIROFF: This photo you see on your screen now is the photo

17 you referred to?

18 A. Yes, it has "197" on top.

19 Q. I may refer to your letter of 27th March 1996, that is Exhibit

20 D90, to the Prosecution. There is an attachment to that letter,

21 is that right?

22 A. Yes, there is.

23 Q. Could you show that attachment on the overhead projector,

24 please, perhaps together with the other photo? Is there on that

25 attachment a photograph of Dusko Tadic?

26 A. Yes, that is No. 3, this one, as I was told.

27 Q. Am I unfair if I ask you whether that is the same photograph,

28 the same image, according to your experience, seeing so many

1 photos?

2 A. Yes. I am not exactly certain it is the same photograph.

3 I would argue that to me it looks very much like the same

4 person. Whether it is exactly the same image, I am not certain

5 of that. I have a better picture in my possession of No. 3 on

6 the collection of photographs ----

7 Q. Before you do that, sir ----

8 A. That I could show ----

9 Q. --- let me first confer with the Prosecution. You got it from

10 the Prosecution.

11 A. OK.

12 Q. Does the Prosecution object if I ask the witness to use the

13 original that was given by you?

14 MR. TIEGER: Specifically, no objection to the use of those photos.

15 I think if it is an exhibit it should be made known to the

16 Court.

17 MR. WLADIMIROFF: They should be exhibited. Before doing that

18 I think it is fair enough to ask you because you were given

19 them.

20 MR. TIEGER: I suppose I would also note that, perhaps, it is not

21 necessary to display the photographs of these other individuals

22 on television any longer than is necessary for purposes of the

23 case.

24 THE WITNESS: It would make it easier if I just use this photograph.

25 MR. TIEGER: If I may -- excuse me, Professor -- Mr. Keegan suggests,

26 I think perhaps prudently, that a redaction might be

27 appropriate. We will try to find the time for the Court.

28 THE PRESIDING JUDGE: OK. Now we are back to whether there is a

1 better photograph of this image that is on the monitor. The

2 question is what you have before you, is that the same

3 photograph and, if so, put it on the monitor so that we can look

4 at it. Do you want to mark that as 94?

5 MR. WLADIMIROFF: Yes, please, your Honour. Could you take that

6 photograph of Dusko Tadic off ---

7 THE WITNESS: Take it off the paper.

8 MR. WLADIMIROFF: --- and put it on the Elmo, please?

9 A. It is a little bit easier to compare because it is better

10 quality and a bit larger. I would still find it (and it is not

11 in my field of expertise) to say that two photographs are

12 identical; it could well be the same photograph but since this

13 is a photocopy with a lot of dark in it, which also always

14 causes some changes, I would say it is not in my field of

15 expertise to say that they are exactly the same photograph.

16 I can just say that anybody could data the thing, that they look

17 a lot the same. They do not say that as an expert in

18 identification procedures.

19 Q. Thank you. Would the showing to victims and witnesses from the

20 former Yugoslavia of this German photospread in the criminal

21 case against four suspects I have just mentioned invalidate the

22 use of the Prosecution photospread in the Tadic case if used

23 with the same witnesses?

24 A. I think I should answer this question in a number of steps, if

25 I may?

26 Q. Please do.

27 A. If in this photospread that contains this photo I had been made

28 aware that this picture actually is the picture of a wanted

1 person or of the accused so that I would remember this picture

2 very well because I have spent more attention to it, then

3 I think among the certain picture photospread that was used

4 later, I think, it would be very easy to identify this

5 particular photograph as representing the same person. That is

6 the strongest case.

7 A step less stronger is if I would just have seen the

8 German photospread, not being aware which of the persons is the

9 wanted person, so I would have, sort of, to remember all of the

10 pictures, then there is still the possibility that seeing the

11 second spread, the spread, the 13 picture spread, I would

12 suddenly realise that one of these people I have seen before.

13 That is a step less.

14 The next step, still lesser step, is that after having

15 seen this picture and being confronted with a certain picture

16 photospread, I might not realise that I have seen one of them

17 before and where I did, but still it may happen that one of

18 these people looks more familiar than others, although I would

19 not be aware of what the source of the familiarity is.

20 Actually, although it seems to be the smaller step, the most

21 remote from what would be endangering the procedure, that is the

22 worst case, because now someone looks familiar and I do not know

23 why, I cannot exclude that feeling because I realise it was from

24 the previous test.

25 So, in that situation the danger that I will now think

26 I recognise that picture because I have seen this man, say,

27 being involved in a crime instead of in another test, say, is

28 the biggest. I am sorry for this long explanation, but the

1 distinction is very important especially because, say, what

2 apparently is the least case is, in fact, the worst.

3 THE PRESIDING JUDGE: Because it is in the recesses perhaps of your

4 brain?

5 A. Yes, right.

6 Q. It is familiar so you do not even realise that, in fact, you are

7 making this connection?

8 A. Right.

9 Q. I understand.

10 A. So a witness saying, "This man looks familiar" could be

11 perfectly honest and still make a mistake.

12 MR. WLADIMIROFF: Thank you. The second threat you labelled in your

13 letter was suggestion, was it not?

14 A. Yes.

15 Q. What does that mean?

16 A. "Suggestion" usually means in this context that there is

17 something in the situation that guides the witness towards one

18 of the pictures more than the others, and that something is not

19 his memory to, say, a person who committed a crime.

20 Q. Does the procedure of the photo test play an important role

21 here?

22 A. Yes, many elements of the correct procedures are exactly aimed

23 at preventing various forms of suggestion.

24 Q. Could you tell the Court what these various forms might be?

25 A. For instance, a very simple one, if there is only one picture,

26 then it is -- the suggestion is very strong that that must be

27 the picture of a criminal. So a single person test is in itself

28 highly suggestive. The instructions might in a strong form say,

1 "I present you a series of photos. One of them is a criminal.

2 Who do you think it is?" That suggested the criminal is there

3 and that if you say, "Well, I do not recognise anyone", you

4 would be wrong. Whereas, in fact, of course, the real situation

5 is that if we apply the test we do not know whether one of them

6 is a criminal or not. That is exactly what we want to find

7 out. So the suggestion that there at least one of them is a

8 criminal is highly suggestive. The instructions should clearly

9 instruct, "Take care, maybe there is no one you recognise

10 because we have the wrong person. Do not make just an

11 identification at any cost. Do not guess. If you do not

12 recognise it, just say it". That is a very important element of

13 instruction.

14 Q. Would it be advisable to avoid these kinds of suggestions to

15 apply the test on the basis of written instructions given to the

16 person who will execute the test?

17 A. Sure, well, if you are, as an investigator, highly experienced

18 in this, you will be able to memorise the correct instructions

19 and just say them without any written instruction in front of

20 you. Usually, just to make sure that you do not forget

21 anything, it is advisable to have the written instructions in

22 front of you as an investigator and read them out to the

23 witness. Another possibility is that you just present the

24 written instructions to the witness and ask the witness to read

25 the instruction him or herself. It is a little bit unnatural

26 situation. Usually, what you have is a written instruction in

27 front of you and you read it out to the witness.

28 Q. Would it be advisable to have an experienced investigator to do

1 this, even though working with written instructions, or is it

2 fair to say that if the instructions are correct and followed

3 correctly does it matter whether he is experienced or not?

4 A. No, it would be advisable to have an experienced investigator

5 because there are many pitfalls in this, apparently, so simple

6 procedure, and you might make a number of mistakes even when you

7 are totally unaware of what you are doing. So, the advantage of

8 an experienced person is that he or she is aware of all that and

9 would not make, say, just by accident such mistakes.

10 Q. Would it be necessary to give each photo shown to the witness

11 the same time of presentation to avoid suggestion?

12 A. Well, yes, and especially when or in the situation that the

13 investigator knows which of the pictures represents the accused,

14 because then, say, just even completely when the investigator is

15 completely unaware of it, it is possible to treat that picture

16 in a different way, present it longer or shorter or keep it

17 under breath, or do anything that indicates that this picture is

18 special.

19 Q. Would that be suggestive?

20 A. That could be highly suggestive, yes. There is a quite a bit of

21 research of, say, how small the clues need to be for a witness

22 to pick them up and the result is very small.

23 Q. Would it be necessary to ask a witness to sign only at the back

24 of one photo of the spread using fresh photos that have not been

25 signed before?

26 A. Yes, you need fresh photos, new photos for every witness, if you

27 use the signing procedure, because if you turn the photo and

28 this is the tenth witness and the witness perceives that there

1 are nine signatures already on the back of the picture, then the

2 witness becomes extremely confident that he or she got it right

3 and will testify about recognition with greater confidence than

4 the confidence that was felt during the recognition itself. So

5 you gave that witness extra information that the witness cannot

6 avoid to utilize; whereas, in fact, that information should not

7 be available to the witness. The witness should not know

8 whether the others also recognised him.

9 Q. The third threat you have mentioned in your letter of 10th

10 October 1996 is capitalization of chance, is that right?

11 A. Yes.

12 Q. What does that mean?

13 A. The set up of a photospread is such that it is, in principle,

14 highly unlikely that a witness who is just guessing would guess

15 right. Now, in some situations, say, that likelihood is

16 increased and may be increased to an unwanted high level.

17 Q. Did you notice any deviation in the image of the persons whose

18 photographs have been used for the photospread, such as dark

19 complexion or unshaven image?

20 A. Yes, they are not exactly equal in a number of respects. I must

21 say that it is very difficult to avoid also, but they do not all

22 have the same complexion. One, as I described already in my

23 letter to Mr. Tieger, is photographed against a slightly darker

24 background which maybe the explanation why so many of my naive

25 subjects identified that picture as representing a criminal. It

26 sort of illustrates that if one sticks out for whatever reason,

27 no matter how irrelevant that reason is, the darker background,

28 subjects or witnesses may pick on that. It might be completely

1 intuitive. There might be a reasoning behind it, like one is

2 different, one is against a different background so the others

3 came from the same, say, police file and the other was taken

4 elsewhere or so ......

5 So, almost any clue that you give might be picked up.

6 If it happens to detract from the accused, you cannot say that

7 is unfair, but if it happens to point towards the accused, then

8 it would be unfair. Indeed, there are slight differences with

9 respect to how well they are shaven, how dark they are, they do

10 not all have the same colour of hair. But I would say that

11 there are enough, say, reasonable alternatives that look closely

12 enough to the accused for me to not argue that the whole set up

13 is clearly invalid.

14 Q. You mentioned police file. Would it be relevant if a

15 photospread contained photographs of persons whose photographs

16 have been taken because of previous police contacts?

17 A. Well, in principle, there is nothing against taking photographs

18 from a police file, but you should meet a number of conditions

19 that I have mentioned before. One of them is that it should be

20 absolutely certain that those persons have not been seen by the

21 witnesses before, that they must not be from the same village or

22 family members of the witnesses, and especially also they must

23 not have been seen in war conditions in the former Yugoslavia.

24 Now, these people, as far as I am aware, were

25 photographed because they came into contact with the Dutch

26 police. That is all that we know about them. We do not know

27 where they came from, what their names are, whether they are

28 family of the witnesses or whether after they were photographed

1 in the Netherlands they returned to the former Yugoslavia and

2 took part in war actions. There is nothing that we know about

3 them, and it must be absolutely sure that that did not happen.

4 Q. Did you find in your letter you wrote about it the photospread

5 test with witness Draguna Jaskic was repeated?

6 A. Yes, I read those pages in the Court records. I found it very

7 difficult to interpret what those actually said with respect to

8 the procedure. What is suggested there is that she looked at

9 the pictures, did not say she recognised anyone, and later on

10 I get the impression that it was at a second meeting with the

11 investigator, but I am not absolutely certain, she did mention

12 to the investigator that, in fact, she had recognised anyone.

13 I cannot infer from what is said, neither by her,

14 neither by the investigator, what the actual procedure was,

15 whether there were two meetings, whether there were two tests,

16 one test at each meeting, what the reason for the second meeting

17 was. I find that very unclear so I cannot really make a

18 judgment of whether, say, an unwanted procedure has been used.

19 But what I have written in my letter is her first reaction to

20 the spread is clearly established. She said she did not

21 recognise anyone and, according to proper rules, that would be

22 the end of her testimony with respect to identification. You do

23 not give people second chances, because you do not know what

24 those mean, especially not, say, if there is a long delay

25 between the two and the witness may have talked to I do not know

26 how many people.

27 Q. You have read the statement of the investigator who did these

28 tests. Do you remember how he did it?

1 A. Well, I do not have a copy of what he actually said in front of

2 me, but from what he said I did not get a clear picture of the

3 procedure that was used. Would it help if I mentioned a number

4 of things that I would like to have known?

5 Q. Yes, please do.

6 A. For instance, what I would like to have known is whether, say,

7 the interview started with the photospread and then a discussion

8 about experiences witnesses had eventually including, say, the

9 person of Mr. Tadic, or whether there was first a discussion

10 including Mr. Tadic and then the photospread. What you would

11 like to know is if the photos were presented sequentially and

12 I believe they were because they were in a booklet, not glued on

13 one page as I have them but in a booklet with different pages,

14 so you flick from one page to the other, what the exact

15 procedure is.

16 Let me give you an example: we have met a number of

17 times. I assume that you are more or less familiar with my

18 face. If there is a booklet with 13 pages in it and on one of

19 the pages you find me, say, page 5, coming to page 5 you would

20 say, "That's him". You did not -- you would probably not wait

21 till page 15 and say, "Well, maybe there is a better

22 Mr. Wagenaar at page 15". You would recognise me and say, "Hey,

23 that is him", and there would be no need to go on beyond that

24 page.

25 If you would not completely recognise me and think,

26 "Well, he looks a bit like him, but maybe there is a one -- in

27 the following pages there is someone who looks a bit more like

28 him even", then you are making a different type of judgment.

1 You are not judging whether you recognise a person; you are

2 judging who looks most like a certain person without making the

3 assessment of whether it is him or not.

4 Q. Is that the reason why a protocol would be required of the test?

5 A. So what you would want is, in the least, a protocol: When did

6 the witness say, "I recognise that person", at the end or as

7 soon as he or she saw the page? And what happened afterwards?

8 Was it allowed, for instance, to go back? Was it allowed to go

9 all the way to page 15 and then say, "Well, I think No. 3 looked

10 most like him", or was the rule as soon as you have passed page

11 3 you cannot name No. 3 any more because you should have done it

12 when looking at it.

13 Q. You should have been told that before the test is run?

14 A. Well, that would be a reasonable rule. I would, at least, want

15 to know what was the rule and then we can form a judgment about

16 is that a reasonable rule or not. Another rule applies too

17 (which may be did not happen, but one cannot be completely sure)

18 is what if the person says, if the witness says, looking at page

19 2, "Ah, that person I recognise". Remember the question was

20 only, "Is there anyone you recognise?", not "Do you recognise

21 Mr. Tadic?" as far as I am aware of.

22 So what would happen if a witness said: "Well

23 I recognise No. 2", would the investigator go on presenting the

24 other pictures, because that means that, in fact, you get a

25 number of shots. The more shots you get, the more likely it is

26 that you recognise someone. Or would the investigator stop

27 immediately after, say, a first identification has been made and

28 say, "Stop, that is it. I will not show you the other

1 pictures"? Remember, the more recognitions you make, say, the

2 more shots you have had, and the larger likelihood that one of

3 the shots is a hit. Now, the investigator knowing, say, who the

4 accused is, might simply say, discount, say, the false

5 identifications and accept the correct ones. So you need a

6 clear rule for that. I assume that nothing might have gone

7 wrong. I can only state I cannot see in the various statements

8 that have been made what the exact rules in the procedure were.

9 Q. Would it be relevant for the witness doing the test to know that

10 the investigator is coming from the International Tribunal in

11 the case against Dusko Tadic?

12 A. Yes, well, at least if the witness knows that the investigator

13 came to investigate the case of Tadic, then of course the

14 suggestion that the photospread is shown in order to identify

15 Mr. Tadic might be present, this will be stronger after you have

16 discussed Mr. Tadic for a certain period of time. In fact, it

17 would not even be so bad.

18 The best case would be if, say, the question was

19 clearly, "We have talked about a Mr. Tadic, now I am going to

20 show you a picture. I will ask you, say, whether Mr. Tadic is

21 among these pictures". Then the situation is perfectly clear to

22 the subject. There is no uncertainty about what the objective

23 is. Now if you only ask, "Is there someone you recognise?" the

24 problem is that the witness may point at various people and you

25 cannot even say that the witness is wrong because it is quite

26 possible that the witness recognises No. 2 or No. 8 because they

27 are from the same village.

28 So, you would, logically, have to allow a number of

1 responses, positive responses, to the witness, because it can

2 happen that those are correct responses, but it is exactly what

3 you do not want because three or four response means three

4 shots.

5 Q. Thank you. Returning to the test with Draguna Jaskic and the

6 investigator who run that test twice, would you describe the

7 involvement of that investigator as being a professional

8 performance of the test, a proper performance of the test?

9 MR. TIEGER: Objection. Again, that may be more a matter of the way

10 the question is phrased or framed, but I think the question

11 should be -----

12 THE PRESIDING JUDGE: You said a "proper involvement". Why do you

13 not ask the witness whether it meets professionally accepted

14 standards in his field as opposed to our field.

15 MR. WLADIMIROFF: Yes, I will, your Honour. I will withdraw the

16 question. [To the witness]: How would you describe the quality

17 of the test run by that investigator?

18 A. It is very hard for me to make an assessment because I have no

19 clear impression of what happened. What disturbs me a little

20 bit is that there is no clear description of what happened.

21 I would say the least you can expect of a professional

22 investigator is a very clear description that leaves no question

23 marks with respect to important matters of procedure. I can

24 really cannot make a proper assessment of what happened or, say,

25 whether important rules were violated or not.

26 Q. Thank you. Professor, from your CV it appears that you wrote a

27 lot about the procedural aspects of these kinds of tests, did

28 you not?

1 A. Yes, I did. I do not know what you call "a lot", but

2 I published about it, yes.

3 MR. WLADIMIROFF: Your Honour, I want to show this document to the

4 witness for identification. That will be D6 -- I have lost

5 which number it will be, your Honour -- 94, I think.

6 THE PRESIDING JUDGE: It should be 95. The picture of Mr. Tadic will

7 be 94. It has been marked.

8 MR. TIEGER: Your Honour, I should take this opportunity to note the

9 redaction points, that would be 14.55.30 to 14.57.20, the video

10 portion.

11 THE PRESIDING JUDGE: I think it has been done.

12 MISS FEATHERSTONE: Yes.

13 MR. TIEGER: OK.

14 THE PRESIDING JUDGE: If we are talking about the correct times.

15 MR. WLADIMIROFF: Professor, is this a photocopy of chapter 3 of your

16 book identifying even a case study in legal psychology published

17 in 1988?

18 A. So it seems, yes.

19 MR. WLADIMIROFF: Your Honour, I tender this document as D95.

20 THE PRESIDING JUDGE: Is there any objection to Defence 95?

21 MR. TIEGER: No, your Honour.

22 THE PRESIDING JUDGE: Defence 95 will be admitted. Are you going to

23 offer 94?

24 MR. WLADIMIROFF: If I did not I offer it, your Honour.

25 THE PRESIDING JUDGE: Any objection to Defence 94, the photo of

26 Mr. Tadic that was taken from Dr. Wagenaar's records?

27 MR. TIEGER: No.

28 THE PRESIDING JUDGE: That will be admitted.

1 MR. WLADIMIROFF: Professor, if I may discuss with you some of the

2 rules of that chapter? If we look to the first rule, and

3 perhaps I should give the Court copies. What I intend to do,

4 Professor, is to go through the rules, those rules which might

5 be relevant for this case, and just to wrap up all the issues we

6 have discussed so far. Rule 1: Can an involvement in a crime

7 be proved by means of a lineup or a show up when the suspect is

8 known to the witness for other reasons than involvement in the

9 crime?

10 A. I think we have discussed this before. Such a test would not

11 logically place the witness at the scene of the crime.

12 Q. Thank you. Should identification of a suspect not known to the

13 witness for other reasons than encounter during the crime be

14 achieved by means of a lineup and not a show up?

15 A. Yes, by a "show up" in this rule I mean a one person test, and a

16 one person test is not a difficult test to pass and it does not

17 show that you really recognise this person; you only have to

18 say "yes".

19 Q. Did you find any one person test in this case?

20 A. Well, not with the four witnesses that I would think are really

21 relevant as identification subjects. They were all multi-person

22 tests.

23 Q. Did you find any two photo tests?

24 A. Not with those four. Two photo tests were used for some of the

25 other 48 ones, but as long as, say, the purpose of those tests

26 is only to verify, say, that there is no mistake about the

27 person and not the objective to logically place the accused at

28 the scene of the crime, I have no objection against those two

1 person tests.

2 Q. Is the selection of a suspect through mug file inspection

3 acceptable as proof of identify?

4 A. "Mug file inspections" usually mean a collection of pictures

5 that are shown to a victim of a crime in order to find a

6 suspect, not to recognise a suspect, but to first find during

7 the investigation, say, the identity of a possible suspect.

8 Those mug files are not selected on the basis of, say, the

9 description or a detailed description and, therefore, cannot

10 pass as a fair lineup or identity parade. Therefore, mug file

11 inspections can be used for investigations, not as proof of

12 identity. They are two different things.

13 Q. Have you found any mug file inspection in this case?

14 A. No, no. There is one problem, though, that, as I mentioned

15 before, in a real identity parade, either, say, live or

16 photographic, you would completely know who the foils are and

17 that they are innocent, and we do not that right now. So there

18 is a slight problem that, say, the nature of the spread that was

19 used cannot be defined exactly, but I would not qualify it as

20 just a simple mug file inspection because clearly it is not. It

21 is better than that.

22 Q. Thank you. I jump to rule 7 now. Should the witness be asked

23 to identify the same suspect more than once?

24 A. No, because if you show, say, the same suspect twice, that is

25 suggestive.

26 Q. If I may jump to Rule 10 then, when there are more witnesses

27 available, should a falsification of an initial identification

28 be attempted?

1 A. Yes, in principle, when you have many witnesses, it is a good

2 procedure to ask them all to identify the accused person. The

3 reason is that is related to what we discussed before. You

4 should, of course, never hide negative outcomes of

5 identification tests, but you should also make -- give yourself

6 the opportunity to get negative results.

7 For instance -- but I must apologise because

8 scientists always make these hypothetical cases and create

9 problems thereby -- imagine that there are 10 witnesses and they

10 just guess. One of them guesses correct. That might be the

11 first one. If you now stop, you do not ask the other ones, you

12 will never know that it was a guess. You have to ask them, all

13 10, and then you will find out that the others do not recognise

14 them.

15 So in order -- we would say you must -- you make

16 yourself vulnerable after initial successes and be sure that it

17 was not just a guess. That is why you should ask all witnesses

18 to identify if they have seen the accused or if they have seen,

19 no, the perpetrator. Right? If they have not seen anything

20 that is relevant, they cannot make an identification. But if,

21 in principle, they would be good identification witnesses, you

22 should also use them.

23 Q. Thank you. If I may proceed to rule 11 then: Should all

24 identification attempts, whether successful or not, be reported?

25 A. Yes. I think we have discussed that and the reason why is quite

26 clear.

27 Q. Right. Would this include also witnesses who have not been

28 called to testify in Court but who were interviewed during

1 discovery, that is, pretrial stage but not called in Court?

2 A. Yes, in principle, I think every test that has been applied

3 during the investigation process ought to be reported and made

4 known to the Court, because if you do not do that, and of course

5 I do not want to suspect anybody of bad intentions, but it would

6 be possible, in principle, to hide the negative ones and propose

7 the positives ones.

8 Q. If I proceed to rule 12 then: Should reports about

9 identification attempts with negative results provide all

10 available information that could help to understand the value?

11 A. Yes, very clearly, and a negative result may be completely

12 uninteresting if we know that, in fact, the witness was an

13 onlooker from 300 metres distance. Of course, that would be

14 very difficult to identify. It does not mean the accused is not

15 the wanted person. If the witness, on the contrary, was at a

16 distance of one and a half metres and has watched on for several

17 hours and he would be unable to identify the accused, that is

18 highly informative because that suggests that possibly the

19 accused is the wrong person. So you would want -- even the

20 negative outcomes can highly informative, and can only be

21 interpreted if you know, say, the conditions in which they

22 occurred.

23 Q. Did the procedure that was applied to the witness we just

24 discussed, that lady witness we just discussed, meet this rule?

25 A. It is very difficult for me to say that because, as you realise,

26 I only received a limited number of pages relating to her

27 testimony. So I am not completely sure about how much about

28 that case is known to the Court.

1 Q. The Court has seen the same pages and heard the same evidence.

2 A. Yes, but I have not seen her complete testimony, I think, so I

3 do not want to express opinions or judgments about things that

4 maybe are different when I would have looked at the complete

5 transcript of her testimony here in Court.

6 Q. I appreciate that.

7 A. At least I can say that from the pages I have read what has

8 happened is not clear to me, and I would have liked a clear

9 description of what she has seen initially, whether she would be

10 able to identify him easily and what has happened during, say,

11 the test and the second encounter that, apparently, has

12 occurred.

13 Q. If I now may proceed to rule 13: Will the probative value of an

14 initial identification be increased through identification by

15 other eyewitnesses, the number of the identifications?

16 A. Yes. The general idea of that rule is that, say, there is no

17 linear relationship between the number of witnesses who identify

18 and the amount of, say, trust that the Court should have.

19 Q. What does that mean?

20 A. Let me give you an example: if an accused has a twin brother

21 who looks exactly like him, then it is quite possible that the

22 first witness will be mistaken there and also quite likely that

23 all the others will be mistaken in the same way. So you cannot

24 then say, "Ah, but because now we have 20 witnesses it cannot be

25 the twin brother".

26 So, the sheer number of witnesses is not, say, the

27 most relevant piece of information. For that reason, I would

28 say, if I may refer to the present case, four witnesses,

1 although compared to the 50, the 48 others may look a small

2 number, in view of this rule, it would not be so extremely

3 useful to find more than four who identify. If the procedure is

4 correct and you can trust those identifications, I would say

5 that is quite enough. Do not go for also another 48 or so.

6 Q. Thank you. If I proceed to rule 14: Should investigators do

7 everything within their power to prevent contacts among

8 witnesses?

9 A. Yes, yes, and on purpose this is formulated in this way to do

10 everything within your power because it is not -- usually not

11 within our power to prevent all contacts among witnesses. If

12 they are father and son or wife and husband, then that simply

13 cannot be avoided, especially not when the time between the

14 crime and the appearance in Court is very long. Then, of

15 course, it may happen that witnesses exchange information about

16 the identity of possible perpetrators. But I think

17 investigators should not aggravate that problem by adding, say,

18 their own contacts when it can be avoided. There are a number

19 of examples in cases where the investigation itself is the

20 reason why witnesses came into contact with one another and

21 that, I think, should be avoided.

22 Q. Would it be relevant then that more than one member of the same

23 family is asked to participate in the photospread test?

24 A. Well, indeed, if it were possible to find witnesses who have not

25 been in contact with one another, that would be much better than

26 to get all witnesses from the same family. So if you want to

27 choose four, it would be better to choose four totally

28 independent ones than family members. If it is established that

1 they are family members and have been in contact, say, during a

2 long period and have discussed the case and identity of

3 perpetrators and so on, then of course it is quite possible,

4 generally speaking, that information about, say, the appearance

5 of a perpetrator is transferred from one person to the other.

6 Things about, well, the name itself might be highly suggestive

7 because if one did not recognise someone but the other did and

8 the first witness says, "Well, did you not recognise so and so?"

9 that may stick, of course, and the image then may be formed and

10 then the later recognition might follow.

11 The beauty, of course, of, say, the multiple person

12 identity parade is that if the parade is organised well, it

13 would be very difficult to transfer information that would help

14 you to get at the correct choice. It will especially help you

15 if the parade is not well organised. So that, for instance, if

16 you say, "Well, he had dark hair", and there is only one with

17 dark hair in the spread, then such information might help. In a

18 good spread they would all have dark hair and it would not have

19 helped. So that is something that maybe is important to

20 notice.

21 Some violations are not so bad in an isolated

22 situation. They may become terribly bad in combination with one

23 another. So this one, contacts among witnesses, and a not so

24 well chosen set of pictures in combination may make it suddenly

25 extremely easy for witnesses who do not remember the appearance

26 of the perpetrator to get at the right picture.

27 Q. Thank you. If I may proceed to rule 15: Should investigators

28 ask witnesses before the identification attempt whether or not

1 they discussed the case with other people and should they not

2 record such questions and answers?

3 A. I think in connection with the previous rule it is clear why, at

4 least, you would want to know about it. Then you can later make

5 decisions, say, how much weight you want to attach to certain

6 witnesses on the basis of that information.

7 Q. Rule 16: Should witnesses be excluded from an identification

8 test if it is established that they could base their

9 identification partly or wholly on information transmitted by

10 other people?

11 A. Yes, I think if you have a situation where you know that it is

12 possible that the witness received information that might with

13 some degree of certainty enable this witness to identify this

14 one picture, I think in that case you should exclude the

15 identification of such a witness because it might be misleading.

16 Q. Rule 17: Should witnesses before participation in an

17 identification test be requested to provide a verbal description

18 of the criminal as they remember him and should that description

19 be included in the reports of the subsequent identity test?

20 A. Yes, the idea of an identity test is that the witness has

21 somewhere in memory a more or less circumscribed representation

22 of the perpetrator, some image that can be used for a later

23 recognition. One can ask the witness to describe that image.

24 It might be more or less vague, but the witness must be able to

25 describe what it is. Is that an image of a man or of a woman?

26 Is it a dark person or a fair person? Is it a tall or a small

27 person? All sorts of questions that the witness, in principle,

28 must be able to answer.

1 Let me give you an example: if the witness cannot say

2 whether it was a man or a woman, then I would say then a very

3 precise identity parade would not help very much, and it would

4 not be indicated to apply then a further test if the rough image

5 is not present. It is possible that the person has a -- the

6 witness has a rather clear image, but that image differs

7 completely from the appearance of the accused. For instance, if

8 the witness says, "Well, it was a man fitting that description"

9 but the accused is a woman, I would be very hesitant to go on

10 with further identity tests because there is a conflict there.

11 Probably the witness remembers someone, refers to someone else

12 and then it is suggestive to go on with a person who does not

13 even fit this rough description.

14 If I may give you another example, the situation

15 I have been in? The suspect is a very tall black person, but

16 the accused is a rather small fair haired person. So, in order

17 to make a fair test you have a number of fair people -- they all

18 fit the same description as the accused -- and now you have to

19 ask the witness: "Who of these small fair people is the tall

20 black person you remember?" That would be a, sort of, very

21 difficult situation to handle for the witness and should,

22 therefore, be avoided.

23 Q. Thank you. You have answered in the meantime rule 18, I think.

24 THE PRESIDING JUDGE: May I ask you a question? Is it not possible,

25 though, for the memory to be blocked by the occurrence, so that

26 being shown a picture as opposed to being asked to describe,

27 when it has been blocked because of the very violence, perhaps,

28 if it was a violent occurrence, that it would be better to be

1 shown a picture rather than to be asked, and to be asked to give

2 the description when it has been blocked and not be allowed to

3 go forward with a picture would defeat the purpose, would it

4 not?

5 A. Sure, sure, your Honour. That would be perfectly possible. The

6 question is whether such a witness would be a good

7 identification witness, and the situation I have described to

8 you, sort of, illustrates the problem. If you cannot use the

9 initial description of the witness to, sort of, select what the

10 lineup should look like, you may confront the witness with a

11 lineup that simply poses logical problems to this subject.

12 Indeed, you are right; there might be a subject who suddenly

13 realises, "Ah, ha, I was totally wrong and now I see who did it

14 and I recognise this person". But there might be other subjects

15 who are totally confused and start to guess or show other types

16 of behaviour that is misleading. So, generally, you would want

17 to avoid that situation.

18 So, although, and I agree, in the later rules you will

19 also see that sometimes it is necessary to violate these rules,

20 sometimes the conditions simply do not allow you to stick to all

21 the rules and still you want to solve a case and provide the

22 evidence. Of course, when there is a good reason for it and you

23 can justify why you violated the rules, at least a Court can

24 consider that. So it is not by necessity and automatically that

25 the violation of the rule should lead to a rejection of the

26 evidence. But I think, as long as there is no reason not to

27 follow the rules, it is wise to stick to them.

28 MR. WLADIMIROFF: If I proceed to rule 19, Professor: Should the

1 witness be instructed to identify only one person, that is the

2 person he described, prior to the test?

3 A. Yes, in principle, the situation is if there are a number of

4 people in front of you, if you recognise, say, the person you

5 are asked to identify, there can be only one of them, and you

6 cannot fire twice because that simply doubles the likelihood

7 that you will have a hit. So you should indicate either none or

8 one.

9 Q. That should be told to the ----

10 A. And that should be told to the witness because it happens

11 sometimes that witnesses are so quick that before you know it

12 they have named two persons, and then what should you do?

13 Q. I take it, according to rule 20, that those instructions should

14 be recorded?

15 A. Yes, in order to be certain that the proper instructions were

16 given, it would be very nice to simply have them in the record.

17 Q. Dealing with these reports, does rule 20 have anything to do

18 with the matter of certainty, for example, if different

19 investigators run tests?

20 A. Yes, well, there is always the problem if you are afterwards

21 asking an investigator whether there is one or many, how did you

22 do it, you rely on their memory. I would say it is bad enough

23 that you have to rely on the memory of witnesses, but that

24 cannot be avoided. You should not complicate that by also

25 having to rely on the memory of investigators which can be

26 avoided.

27 Now, the problem is, of course, if you have many

28 investigators, if they have not agreed about a certain

1 procedure, then the likelihood increases that they will have you

2 different procedures, in fact, but the question is whether you

3 will ever find out if they have not made a record of that.

4 Q. It is a problem, is it not?

5 A. It should not be a problem.

6 Q. If I may proceed to rule 21? Should the instruction to the

7 witness stress that the wanted person is possibly not in the

8 parade or in the photospread and that, therefore, a positive

9 response should be made only when the witness is certain of

10 recognising that person?

11 A. Yes, it is highly important that you tell the witness not to

12 make an identification if the witness is not certain, because it

13 is quite possible that there is no one here she can recognise.

14 The research on, say, the presence or absence in instruction of

15 that piece, in fact, is reported in the chapter that precedes

16 this chapter, and that shows that it has, I would call it, a

17 very large effect on the false positives on the identification

18 of foils.

19 JUDGE STEPHEN: Could I just request the question? I see the word

20 "mug shot" is used here again. What is your definition of a

21 "mug shot" as distinct from a simple photograph?

22 A. Usually, mug shots or a mug shot collection is used as simply a

23 number of photos from the police files, often with numbers on

24 them but not necessarily, and there can be a large number.

25 I say the largest number that I have seen being used was over

26 500. These mug shots are usually selected on the basis of a

27 very, very superficial description of a perpetrator, and are

28 selected in order to find the identity of a suspect. So, you do

1 not have a suspect yet, there is no one you suspect but you try

2 to find the identity of a suspect; whereas a photospread is

3 constructed after you have a suspect because the suspect is one

4 of them and the others (and usually not 500 but five to 10, say,

5 would be quite enough) are selected especially in such a way

6 that they resemble this one suspect.

7 Q. So that a mug shot is not a characteristic of a particular

8 photograph, but rather of the time and ----

9 A. Right.

10 Q. --- make up of the collection?

11 A. It is possible that, say, one picture appears in a mug shot and

12 another time it appears in a proper photospread, but then it has

13 been selected for that particular purpose.

14 JUDGE STEPHEN: Thank you.

15 MR. WLADIMIROFF: Looking to rule 22, Professor, I think you have

16 answered or you have responded to that rule, that is, should

17 police officers in charge of identification procedures have

18 received the appropriate training and should they be able to

19 demonstrate their professional qualifications both in written

20 and oral testimony?

21 A. Yes, and the reason is that the procedures are, in fact, so much

22 more difficult than you would think it is that you need training

23 to do it, to do it right.

24 Q. If I may proceed to rule 28? Should all foils of an identity

25 test fit the prior description obtained from witnesses?

26 A. Yes, if it does not, if they do not, then those foils might be

27 easily discarded by the witness which makes the probability of

28 just guessing who the accused is higher.

1 Q. If I may proceed to Rule 29? Can prior descriptions of the

2 criminal that do not fit the suspect's appearance be used on the

3 selection of foils? I think you answered to that rule too, did

4 you not?

5 A. Yes, but I think that must be qualified because the question is,

6 of course, what discrepancies are acceptable and what are not.

7 What is really meant by rule 29 is that gross discrepancies,

8 say, calling a man a woman or calling a white person a Japanese

9 person or calling a very tall person a small person. That would

10 qualify for some sort of dismissal of the situation.

11 What does not qualify, for instance, is the absence or

12 presence of a moustache, a beard, or things like that because

13 they are considered to be minor things. Also, matters of

14 length, age, weight, should be accepted with very wide margins

15 because these things are not easily to perceive.

16 Q. As a matter of fact, you did address that matter in your letter

17 of 10th October, Exhibit 91, that is, your letter to the

18 Defence. You also gave an opinion on the problem of facial

19 hair. Could you tell the Court what is the relevance of that

20 problem or is this a relevancy at all?

21 A. Well, I took the freedom to comment on that because I saw it

22 discussed so many times in the records and I thought, since

23 apparently it is a problem to others, I should say something

24 about it. The situation appears to be, as I understood it, that

25 sometimes Mr. Tadic had facial hair growth and sometimes he had

26 not. He was completely clean shaven or had a full beard and

27 sometimes also he was badly shaven.

28 Now, I would say to those who have known him for a

1 long time that would be no obstacle at all to recognise him in

2 any condition because they have seen him in all conditions. You

3 might in a way say they have in their memory they have pictures

4 of him in all various conditions and, no matter what he looks

5 like now, they would always be able to recognise him.

6 For those who did not know him, the question is a

7 little bit more complicated, because if they have seen a person

8 committing a crime who was, say, clean shaven, just to give an

9 example, now they see an accused who has a full beard, you

10 would, in principle, be asking them to see through the beard

11 and, sort of, guess what this person would look like, say,

12 without the beard. Sometimes it was suggested that for that

13 reason accused people shave off their beards or let their beards

14 grow.

15 But I would say the beauty of a well organised

16 identity test is that it solves that problem. If, say, the

17 picture shown to them has the wrong facial hair growth and they

18 can still recognise him, they recognise him, and it cannot be

19 guessing because the set up is so that guessing would not help

20 them. If they cannot recognise them, they do not recognise

21 them, period, then you have to ask, why do they not recognise

22 them? One of the explanations could be it is the hair growth.

23 But if they recognise them, then obviously the hair growth did

24 not pose a problem.

25 So, logically, I would say for the large group of

26 witnesses who knew him hair growth can hardly be of any

27 relevance, and for those who did not know him, these four, well,

28 we had to test to see whether it posed a problem and, as much as

1 we can trust the test, the result is it did not pose a problem.

2 That is the beauty of such a test.

3 Q. If well performed?

4 A. If well performed, of course, yes.

5 Q. Talking about recognition and facial hair, what would be an

6 appropriate distance for a live recognition in daytime?

7 A. Yes, I have published on that, I am not sure -- no, that is not

8 in the list of literature I offered to you at the end of the

9 letter of 10th October. I have a rather extensive publication

10 on problems of distance and lighting conditions with respect to

11 the recognition of faces, where it says that in daylight at a

12 distance of more than 15 metres problems start. If there is a

13 possibility that, say, two people look, are a bit similar, then

14 from a distance of 15 metres the general, average observers

15 start to make mistakes. I am not saying that at 15 metres you

16 cannot recognise a person, but that is about where problems

17 start, 15 metres. Less than 15 metres, I would say there is no

18 problem. You would see whether that is the one individual that

19 you know or not. Beyond 15 metres, that is the shortest

20 distance at which problems start, and then, of course, the

21 problems increase the longer the distance.

22 Q. Within 15 metres would facial hair be a problem?

23 A. No, not -- it depends again. We have to distinguish between

24 these two groups. The group who knew him already before with

25 facial hair might not have had a problem because that is the

26 face they were used to. Those who did not know him and saw him

27 for the first time there and then with the beard, initially

28 there is no problem. They do not recognise anything at that

1 time because that is their first perception of that person.

2 Only later there is a problem, there might be a problem, because

3 if the test presents someone without the facial hair, then they

4 may not recognise him, but again the test solves that problem.

5 That is the beauty of it. If the perception was not good enough

6 initially, they will not recognise him, they will fail the test,

7 and then we know it. If they recognised him in the test,

8 apparently the perception was good enough. That is what the

9 test proves.

10 Q. So if the basis is all right, that is, within 15 metres ----

11 A. 15.

12 Q. --- if the basis is all right, then the story is valid as has

13 been discussed today running a proper test?

14 A. Oh, no, maybe I have to correct you there. Even if they saw the

15 perpetrator at a longer distance, it is quite possible that they

16 saw him correctly and accurately, we can know that from the

17 later test. That is what the test is for. If they did not

18 perceive him correctly, they will fail the later test.

19 The test is to show that their original perception was

20 accurate enough, and in this situation you are now in, provided

21 there are no doubts about the quality of the test, those four

22 tests show that there were not these perception problems. But

23 you have to be certain that there is no problem in the test.

24 But if there is no problem, the beauty of the design of the test

25 is that now you can be certain the perception was accurate.

26 MR. WLADIMIROFF: I think this is an appropriate moment, your Honour.

27 THE PRESIDING JUDGE: We will stand in recess for 20 minutes.

28 (4.00 p.m.)

1 (The Court adjourned for a short time)

2 (4.20 p.m.)

3 THE PRESIDING JUDGE: Mr. Wladimiroff, you may continue.

4 MR. WLADIMIROFF: Thank you, your Honour. Professor, we were left

5 before the break with the issue of prior descriptions. If we

6 proceed to rule 30, should an identity test be interpreted with

7 the requisite prudence when there is not at least one prior

8 description that fits the suspect?

9 A. Yes, and the reason is that, ideally, you would select foils in

10 an identity test on the basis of the description that has been

11 given by witnesses. If you cannot do that, then possibly the

12 test is less appropriate.

13 Q. Thank you. If we now proceed to rule 31, we spoke about the

14 foils that had been used by the Prosecution photospread. Rule

15 31 says that members of an homogenous group such as police

16 should normally not be used as participants in an identification

17 parade. Would that also apply to foils who are not from the

18 same profession but from an ethnic background?

19 A. Well, in principle, first, the danger is that if you select

20 foils from one homogenous group, then in one way or the other

21 the accused might stick out. If you want to avoid that, you do

22 not choose the foils from one homogenous group. But you can

23 also test whether something has gone wrong by applying the Doob

24 & Kirschenbaum test. That we have done to this particular

25 material and the results do not suggest that something has gone

26 wrong there, but we do not know exactly, as I mentioned before,

27 who the foils are, but I have no particular reason here to

28 suspect that on the basis of a violation of this rule something

1 has gone terribly wrong.

2 Q. If we now proceed to rule 32: "Should foils be selected such

3 that others who have been witnesses to the crime will find no

4 clues that help -----

5 THE PRESIDING JUDGE: "Have not been".

6 MR. WLADIMIROFF: "Who have not been" -- you are perfectly right,

7 your Honour, thank you -- have not been witnesses to the crime

8 will find no clues that help him to guess who is the suspect?

9 A. Yes, well, in fact, that rule is a formulation of the Doob &

10 Kirshenbaum test. Ideally, you would apply that before you show

11 the test to any witnesses.

12 Q. If I may jump to rule 34? Should the actual material used for a

13 photo identification test be kept for later inspection and

14 should automatically be given to the Defence, and should the

15 record reflect the order in which photos were shown or the

16 arrangement of the photos as they were shown?

17 A. Yes, because in order to interpret the test or to give it the

18 proper weight, you should exactly know what has been shown in

19 which manner. The rule mentions the Defence. It is implied, of

20 course, that is also presented to the Court because finally it

21 is the Court who has to give the proper weight to the test.

22 Q. Is it your finding that this rule was obeyed in this case, as

23 far as you could read from the transcript?

24 A. Well -----

25 MR. TIEGER: Objection, your Honour, that is way beyond the scope of

26 this witness's expertise. As a matter of fact ----

27 THE PRESIDING JUDGE: Why is it beyond his expertise in terms of the

28 arrangement of the foils and what was done in this case? We

1 have in evidence the photospreads that were shown to the

2 witnesses.

3 MR. TIEGER: Right.

4 THE PRESIDING JUDGE: Did you see them?

5 MR. TIEGER: As I understand the question, this witness is being

6 asked to determine from the transcript and the materials

7 provided to him a factual matter, not provide an expert opinion.

8 THE PRESIDING JUDGE: I thought the matter that he was asked -- maybe

9 I missed the question then -- was whether rule 34 -- I guess you

10 are right then. It relates back to the previous rule.

11 MR. TIEGER: The problem may lie in the underlying question, that is,

12 requesting this witness to offer an opinion about rules of

13 procedure is a different matter from asking him what factors may

14 or not affect the reliability of an identification. Those are

15 matters both for the Court to determine factually and to be

16 applied to the rules of the Court. He is not here as a

17 consultant on how the Tribunal should proceed.

18 THE PRESIDING JUDGE: It is listed as a rule and you are challenging

19 the appropriateness of it being included as a rule when it has

20 nothing to do with whether the identification procedures are

21 proper, but instead whether they were given to opposing counsel

22 and the Court.

23 MR. TIEGER: I think, in fact, the presence of this particular rule

24 which is irrelevant to the matters for which this witness was

25 called in the body of these rules do, in fact, indicate that

26 these rules or stated rules go beyond his stated area of

27 expertise and into the province of determining procedures,

28 making recommendations, having a wish list and so on. But

1 focusing on this particular so-called rule, it is clearly not a

2 matter for this witness and not within his stated expertise.

3 I can understand how a person involved in this work might come

4 to certain opinions. He can offer them in other forms if he

5 wishes, but it is not relevant here.

6 THE PRESIDING JUDGE: Mr. Wladimiroff?

7 MR. WLADIMIROFF: I have no problem in withdrawing the question, your

8 Honour.

9 THE PRESIDING JUDGE: Thank you, Mr. Wladimiroff.

10 MR. WLADIMIROFF: Yes. If I may proceed to rule 36? Should names

11 and addresses of participants in the parade be recorded?

12 A. Yes, and the reason for that is given in this chapter.

13 Sometimes it is necessary to repeat a line up or get a clear

14 impression of a line up, and then you should be able to get in

15 touch with those people who appeared in the parade.

16 Q. That would enable the parties in the trial to assess whether the

17 criteria were met as described in these rules?

18 A. Yes, in the present situation where we have a photographic line

19 up, it is less relevant, I think, because all the material that

20 has been shown to witnesses is available. You do not need the

21 names and addresses of, say, the witnesses in order to recreate

22 the test situation.

23 Q. If I may proceed to Rule 39? Should transformations occurring

24 in the period between the crime and the identification test be

25 counteracted as much as possible?

26 A. Yes, but the rule clearly says "as much as possible" because it

27 is not always possible. So, if you talk about, say, a long

28 delay like 10, 20 or 30 years, clearly the accused looks older

1 and that cannot be corrected any more. The advantage of a

2 photographic lineup is exactly in this, that you may obtain a

3 picture of the accused, say, taken in the time that the crime

4 took place, so that there is a -- there might be the closest

5 possible resemblance between that picture and what the witnesses

6 saw in case they saw the accused which has to be established, of

7 course.

8 Q. Did you find any indication when a photo of Mr. Tadic was taken

9 that was a part of the photospread?

10 A. I have no knowledge of that, no, but if it had been possible to

11 find a picture that was taken in that time, that would be a

12 clear advantage of using the photo test in this case.

13 Q. Rule 40: Should identification tests, whenever it is possible,

14 be administered by police officers who do not know which person

15 in the lineup is the suspect?

16 A. Yes, and the reason I think we have already also discussed. The

17 reason is that it is possible totally without any conscious of

18 it to give hints or clues at the witness that, sort of, give

19 away the identity of who is the accused in the lineup.

20 Q. Could you give us an example?

21 A. Like, say, with the showing of photographs, a slightly longer

22 presentation, or the keeping of the breath, a hesitation when

23 the subject responds to a foil. There are many ways in which

24 that can happen.

25 Q. Rule 41: Should the presentation of photographs be strictly

26 limited to a preset time period, and should the witness be

27 informed about this?

28 A. Yes, one reason is that if you allow a variation in presentation

1 time, that is a way in which witnesses can be influenced; and

2 the other is that if we talk about a proper recognition, then

3 that happens within a rather short time. You do not need hours

4 to recognise someone whom you remember very well. So if you

5 make the presentation time or the response time too long, you

6 sort of invite all sorts of guessing that you would not get if

7 you restricted it to a short period.

8 Q. Rule 42: Should all relevant details of the preparation and the

9 conduct of the identification test be recorded?

10 A. Yes, because to the Court it is extremely important to give the

11 proper weight to identification tests on the basis of, say, the

12 appropriateness of the procedures that have been followed. In

13 order to do that, you have to know what procedures have been

14 followed.

15 Q. Rule 43: Should a witness be given feedback with respect to

16 whether they identified a suspect or a foil?

17 A. No, witnesses should not be given feedback because usually the

18 identification takes place out of Court. The witness has to

19 testify later in Court about that and may misremember the

20 confidence at the time of the recognition, because if they have

21 given the feedback that this, indeed, was the accused, they may

22 increase their confidence and exhibit this confidence in court

23 which sort of suggests that the identification was made with

24 that same confidence which is not necessarily true.

25 Q. Rule 44: Is there any diagnostic reason to give Defence counsel

26 the right to attend identification tests?

27 A. Yes, well, there are many reasons to do that. One is that for

28 the whole investigation it is much more useful for anybody to

1 detect any wrong procedures before you hold the test than

2 afterwards. After you have held the test you cannot do it again

3 and you might have lost a witness. If you find out before you

4 hold the test that is something is wrong you can correct it, and

5 so all parties -- since all parties, in principle, profit from,

6 say, an accurate test because it leads you close to the truth,

7 it would be very relevant to ask the Defence to canvass a

8 critique prior to the test, not afterwards. I must say not all

9 Defence counsel agree with me because many seem to like just to

10 give the criticism afterwards instead of, sort of, making it

11 optimal before.

12 Q. I appreciate that. If we may proceed to Rule 45? Should

13 identifications be accepted as evidence when witnesses declare

14 to see only a resemblance?

15 A. I think the question of identification test is to establish

16 identity, and identity means the sameness of the person whom you

17 saw commit a crime and the person in front of you, not the

18 resemblance but the sameness. So just establishing resemblance

19 is not good enough. That does not count as an identification.

20 Q. Does it mean that the officer who is performing the test should

21 be instructed not to accept a resemblance as a positive

22 identification?

23 A. Well, I would say let the officer exactly report what has been

24 said. If a witness says, "I see a resemblance", that is what

25 should be reported. Then you can leave it to the Court to

26 decide whether that should be accepted as an identification or

27 not. In my opinion, it should be not, but if it is just

28 presented to the Court as an identification without, say, the

1 full detail of it, then you have taken away the Court's ability

2 to make that decision.

3 Q. Thank you. Rule 46: Should full recognitions pronounced only

4 after a considerable time be accepted as a positive

5 identification?

6 A. Yes, well, as I said, a recognition is something that comes

7 immediate to you and not after weeks or many hours. So when a

8 witness cannot, say, immediately state a full recognition, then

9 you should count it as a non-recognition.

10 Q. 47: Should other expressions or uncertainties on the part of

11 the witness be recorded?

12 A. Yes, and there are all sorts of expressions of uncertainty that

13 may happen in practice, like I think it is No. 3 but it might

14 also be No. 7, if you record it as a full recognition of No. 3,

15 well, that statement would not reflect the actual, say, quality

16 of the recognition. There are many expressions of uncertainty

17 that witnesses express and, yes, they should be recorded.

18 Q. Again to allow the Court to make a full assessment of what is

19 the quality of the test, is that right?

20 A. Yes.

21 Q. If I may proceed to Rule 48? Why is it that dock identifications

22 never can be accepted as proof of identity?

23 A. It is extremely easy for any person, whether he or she has any

24 knowledge of any remembrance of the perpetrator, to point at

25 someone who is in the dock in the courtroom. It is hard to

26 imagine that someone would fail to realise who the accused is in

27 the courtroom. So the probative value of that cannot be very

28 high because it is not a difficult test to pass.

1 The general rule is the more difficult the test, if

2 you pass it, it means more. This is an extremely easy test so

3 it can hardly mean anything at all. If there is a question

4 whether the witness has any remembrance of what the perpetrator

5 looks like, if that is really a question, then you should test

6 it in a proper test, not in a test that anyone can pass.

7 Q. If I may proceed to rule 49? Should a breach of rules, as we

8 have been discussing so far, when not justified in a written

9 report, lead to a rejection of an identification in terms of

10 quality of your field of expertise?

11 A. There I might be invading, say, what is called the domain of the

12 Court, I think, because it is not for me to reject any tests.

13 So I know that rule is maybe not appropriate for an expert to

14 express, but of course it contains a clear warning that there

15 are cases in which rules were being breached to such an extent

16 that really the logical impact of the recognition is totally

17 absent. In that case at least I think it should be made known

18 to the Court that there is a real problem. I do not want to

19 express here that I would prescribe, want to prescribe, to the

20 Court what to decide in such a case.

21 Q. That might apply to rule 52 ----

22 A. Yes.

23 Q. --- I believe?

24 A. Well, of course, the rule is not based upon nothing. Of course,

25 the rule is based upon what is written above. At that time it

26 was just a comment in the Devlin Report that was published in

27 the United Kingdom. In the meantime, that has been adopted in

28 the code there and is a rule. So I am not just making up my own

1 rules. I know that in some countries that is a rule, and I do

2 not think it is a bad rule, but it is not for me now to form,

3 create, any opinion on that for this Court. This Court has its

4 own rules.

5 Q. Thank you.

6 THE PRESIDING JUDGE: May I just ask one question? Is that what you

7 meant, Dr. Wagenaar, when you very early in your testimony said

8 that if it can be shown that there are gross violations of

9 procedures for the four people who we are talking about now,

10 then the test would not be valid? 50 does speak in terms of

11 whether it should be accepted, but certainly (and maybe that is

12 our province) you can testify as to whether an identification

13 procedure is proper, is that not so, or valid?

14 A. Sure.

15 Q. As I recall your testimony, you said if there are really gross

16 violations of procedures for the four, then it would not be

17 valid?

18 A. Yes.

19 Q. Is that not what 50 is talking about?

20 A. Yes.

21 Q. OK. Did you find any gross violations of the procedure used for

22 the four people here?

23 A. No, I lack a lot of information. There are a number of aspects

24 on which I have simply no opinion because I do not have the

25 information. I can only notify to you that, say, the

26 information could not be found in the record, but there is

27 hardly any positive information in the record that indicates

28 that rules have been breached. I think you can also find that

1 in my letter dated 10th October that my problem is mainly absent

2 -- lack of information than the positive indication that rules

3 have been breached.

4 Q. Everything that you have been talking about with respect to

5 these rules here, these 50 rules, they relate to the four people

6 who did not know Mr. Tadic but the photographic test was used

7 for identification purposes?

8 A. Yes.

9 Q. Not recognition, identification purposes?

10 A. Yes, right. So if those four witnesses would not have appeared

11 in the record, I think we could have just prevented this whole

12 discussion about identification problems because it particularly

13 focuses on those four.

14 THE PRESIDING JUDGE: OK. Very good. Excuse me, Mr. Wladimiroff.

15 MR. WLADIMIROFF: Thank you, your Honour. (To the witness): You did

16 not find any breach or violation of these rules because there

17 was no information there, right?

18 A. Well, there are some slight problems that I notified. They are

19 not immediately, say, identifiable as gross breaches of

20 procedure. But, for instance, the thing that I have mentioned,

21 the instruction to the witnesses is not perfectly clear to me

22 because it was not given in detail. What I read in the record

23 gives a very short instruction to the witnesses, saying

24 something to the extent of, "Is there anyone in this spread that

25 you recognise?" If that is all, if the other things that ought

26 to be present in the instructions, in fact, were absent, then

27 I would say that is problematic, but I have no full knowledge of

28 the instructions so I can only point the Court to say that lack

1 of information that there is.

2 Q. Did you find that the rules were obeyed or is there no

3 information about that too?

4 A. I would say there is not enough information for me to form an

5 opinion about whether, say, the proper rules were followed

6 wherever it was possible. But again I want to stress that

7 I realise very much that in some conditions you simply cannot

8 follow all rules; you can just do the best that you can and,

9 well, that should be good enough to present in Court and then it

10 is up to the Court to decide whether, say, the logic of the

11 whole test is still acceptable. But I cannot form an opinion on

12 that because in the selection from the record that I have seen

13 there is not much information about the procedures that were

14 followed.

15 Q. What I will try to do now is to list with you what will be

16 helpful for the Court to know in order to make a reasonable

17 assessment about the quality of the test. Would it be helpful

18 for the Court if the Court knows whether witnesses have been

19 asked to identify the suspect more than once, either by the

20 Prosecution or by any other authority such as the German

21 authorities or the Bosnian authorities?

22 A. Yes, definitely. We are talking about the four subjects? Yes,

23 I think that would be very helpful.

24 Q. Would it be helpful for the Court to have all identification

25 attempts using the photospread, whether successful or not?

26 A. Yes. You mean of these witnesses or other witnesses?

27 Q. All witnesses.

28 A. All attempts?

1 Q. All attempts known to either party in this trial?

2 A. Sure. I think that the weight of these identifications cannot

3 be determined without knowing how many other tests there were

4 and how many of them were successful.

5 Q. Would it be helpful for the Court to have information about the

6 instructions that were given to the investigators performing the

7 tests?

8 A. Yes, in as much as these instructions can give the Court insight

9 into the procedures that were used, because I think the exact

10 procedures should have been in instructions to the

11 investigators, because otherwise there is no guarantee that they

12 would all apply the same procedures. To that extent, I think it

13 would be very useful to know those instructions.

14 Q. Would it be helpful for the Court to know whether the witnesses

15 have been asked before the identification attempt whether or not

16 they discussed the case with other people?

17 A. Yes, in as far as these other people could have informed them

18 about the outer appearance of the accused or the perpetrator,

19 which is not necessarily the same, it would be important to know

20 what they have learned about that.

21 Q. Would it be helpful for the Court to know whether the witnesses

22 before participation in an identification test have been

23 requested to provide a verbal description of the person they

24 later identified?

25 A. Yes, I would even go further. I think it would be very

26 important to know what these descriptions were.

27 Q. Should these descriptions, if any available, be produced to

28 assist the Court in this matter?

1 A. Sure, because I think it would be extremely informative if, say,

2 those descriptions do not coincide with the outer appearance of

3 your client, well, or do coincide, that would also be very

4 useful. It would be very useful in any event.

5 Q. Would it be helpful for the Court to know whether witnesses were

6 instructed to identify only one person, that is, the person who

7 fits the specific verbal description which was produced by that

8 same witness prior to the test?

9 A. Yes, I think that because that is the proper question to ask,

10 "Identify this one person", and not just anybody, because in

11 the given condition they might correctly recognise more than one

12 person, because they might have been familiar with some of the

13 foils that would lead them to, say, multiple responses which

14 again increases the probability of guessing correctly. So that

15 is something that should have been, sort of, shielded off by the

16 instructions.

17 Q. Would it be helpful for the Court to know whether the witnesses

18 have been instructed that the wanted person is possibly not in

19 the photospread and that, therefore, a positive response should

20 be made only when the witness is certain of recognising that

21 person?

22 A. Yes, because that is an essential element in the instructions to

23 subject and I think the Court ought to be certain that it was

24 said in this manner to the witnesses.

25 Q. Would it be helpful for the Court to know which officers were in

26 charge of the identification procedures and whether they

27 received appropriate training?

28 A. Yes, I think the appropriate training is more important than the

1 identity of the officers, but it would help, of course, to know

2 who they were, what their experience was, how many there were,

3 how they, sort of -- how it was ensured that they applied the

4 same procedures consistently.

5 Q. Would it be helpful for the Court to know whether witnesses have

6 described more suspects to the investigators and, if so, whether

7 they were told which suspect they were asked to identify?

8 A. Yes, if the subject described a number of people who committed

9 crimes in the camp, the proper procedure is to say, "OK, we have

10 a line up for each of these persons you describe. First, we

11 take this person that you describe as being there and there or

12 doing this or that. Now here we have a lineup. See whether

13 this particular person that you describe is in this lineup or

14 not". Then the other elements of the instruction. So there is

15 no uncertainty whom of all the people that witnesses might have

16 seen in the camp is to be expected in the lineup.

17 Q. Would it be helpful for the Court to know whether the foils in

18 the identity test were chosen after the descriptions were

19 obtained from the witnesses?

20 A. Well, I would say that the proper time order is not so relevant

21 as long as the foils, sort of, fit these descriptions. I think

22 if you first get the description and then choose the foils, it

23 is more likely that you will get the correct foils, but it might

24 have happened that you first get the foils and then the

25 descriptions and that the foils happen to fit those

26 descriptions. It just is a matter of practicality, I would

27 say. I would do it in the one order, not in the other, but if

28 you did it in the other order, that does not mean it went wrong.

1 Q. Would it be helpful for the Court to know in which order the

2 photos were shown to the witnesses or the arrangement of the

3 photos as they were shown, not only to those witnesses who have

4 been here in Court, but also those who were interviewed but not

5 called as a witness in Court?

6 A. Yes, in principle, if you do a sequential presentation to more

7 than one witness, you must vary the order. Usually, the order

8 is determined by some sort of randomized mechanism, so that, in

9 principle, the picture of the accused can appear in any position

10 in the sequence. It would not be such a good idea to use only

11 one position, for instance, because then if there is any contact

12 among witnesses, they might communicate, say, which number they

13 had recognised. So, if it were only for that reason, it is a

14 good idea to always vary the order.

15 Q. Would it be helpful for the Court to know the ethnic background

16 or the background, such as, from which countries the foils came

17 from?

18 A. I think it would be relevant only with respect to this little

19 proviso that I have mentioned. In general, I think that, say,

20 the two tests that we apply generally sort of can assure you

21 that the foils were well chosen, but there is this slight

22 problem that in order to really draw strong conclusions from our

23 research in Belgrade it would be better to know where these

24 people actually came from. But that is only a proviso that

25 I would attach, want to attach to it. I have myself no really

26 strong doubts that something went wrong with the choice of the

27 foils.

28 Q. It would eliminate a shadow of a doubt, would it not?

1 A. Sure, we cannot know that for sure. There would have been a way

2 to know that for sure by just organising it the proper way

3 before showing the spread to witnesses.

4 Q. Would it be helpful for the Court to know whether these

5 identification tests have been administered by officers who did

6 not know which person in the photospread is the suspect?

7 A. It would have been helpful if they had not known.

8 Q. It would of course not ----

9 A. I think we already know that in fact they did know. So, I do

10 not quite understand your question. I think it is obvious that

11 the investigators knew who the accused was in the photospread.

12 Q. Also here to exclude any shadow of doubt, should it be helpful

13 to the Court to know whether they knew or not?

14 A. Sure, I think they must know that.

15 Q. Would it be helpful for the Court whether the preparation and

16 the conduct of the identification has been recorded, for

17 example, by a video or by audio tape or by a stenographic

18 transcript, would that be helpful, perhaps supplemented with a

19 time log, if any were available, would that be helpful for the

20 Court to have?

21 A. If it were available I think it would be extremely instructive

22 to the Court to be able to see how the procedures actually went,

23 because some of the problems that I have mentioned are entirely

24 hypothetical, that it might have happened but we do not know

25 whether it happened. If all those problems can be excluded,

26 that would be extremely helpful to the Court.

27 Q. I take it then it would be helpful to the Court too if, from

28 those kinds of records, it would show that the recognition of

1 Mr. Tadic had been pronounced only after a considerable time, if

2 that happened?

3 A. Yes, of course. All these elements in the procedure I think, in

4 as far as they are not known now, could better be known to the

5 Court in one way or another.

6 MR. WLADIMIROFF: Thank you, Professor. That is all I ask.

7 THE PRESIDING JUDGE: Cross-examination, Mr. Tieger?

8 Cross-Examined by Mr. Tieger.

9 Q. Dr. Wagenaar, much earlier Professor Wladimiroff asked you some

10 questions about the history of your involvement in this matter,

11 both with the Prosecution and the Defence. You mentioned

12 something about the adversarial system and your understanding

13 initially of what your role might be in the case. At that time

14 you also understood that the Defence would, in all probability,

15 be obtaining the services of an expert colleague in your field,

16 is that right?

17 A. What I know is that the Prosecution was the first to contact me

18 about this case, and immediately I asked what my exact position

19 would be because this Court is not like a Dutch court, so my

20 position would be different from what I was used to.

21 I expressed my preference for being appointed by the Court just

22 in the way as I am used to in the Netherlands, but I understood

23 also at that time that that was not the nature of our contact.

24 It was a contact between the Prosecution and me, and we agreed

25 that unless there was a decision that I could act as a witness

26 for the Court or a decision that I could serve both parties

27 equally, I would only have contact with the Prosecution.

28 Q. It was your ----

1 A. What the Defence would do was not the content of my knowledge.

2 Q. Sure. Is it not true that we discussed, at least in passing,

3 the likelihood that the Defence would get an expert and that is

4 the way the matter would proceed?

5 A. Yes, it was in case I could not equally help the Defence, it

6 would be rather likely that then the Defence would seek the

7 assistance of another expert.

8 Q. In fact, you subsequently discovered the Defence had contacted a

9 colleague of yours in Maastricht?

10 A. Right.

11 Q. At some later time apparently that arrangement was not

12 satisfactory and then the Defence contacted you?

13 A. I have no knowledge whether it was satisfactory. I only

14 experienced that they contacted me.

15 Q. It was further your understanding that all reports that you

16 produced, all tests that you conducted, would be turned over to

17 the Defence? We had that clear understanding, correct?

18 A. We had that agreement. Let me be explicit about this. From my

19 side that was a condition for working for the Prosecution. I am

20 simply not used to working for one side in a trial and letting

21 that side decide whether they would present something in court

22 if they like it, and not present it in court if they do not like

23 it. That is not what I am used to and that is not what I would

24 like to happen. So I stated explicitly as a condition I am

25 prepared to work for the Prosecution and for the Prosecution

26 only, but under the condition that if I produce something it

27 should also be made known to the Defence.

28 Q. So in responding to Mr. Wladimiroff's questions about the nature

1 of your contact and relationship with the Prosecution, you were

2 not attempting to suggest in any way that there was something

3 underhanded going on between you and the Prosecution?

4 A. No, not at all. You only got there first I would say.

5 Q. If I understand your direct testimony correctly, you were in

6 contact with the Defence from about October of last year, is

7 that right?

8 A. I must say I should look at my calendar to find out the proper

9 date, but it is quite possible that that is the correct date.

10 Q. I was interested in that, because I noted that in various

11 portions of your testimony you indicated that there were parts

12 of the procedure with which the transcripts did not familiarise

13 you or provide you with sufficient information to determine

14 exactly what you thought you might need to know. Did you

15 indicate to the Defence that these are matters that should be

16 taken up with the witnesses who participated in these

17 procedures, so that that information could be elicited for your

18 benefit so you could express a view?

19 A. No, I did not because to my understanding, well, the date of my

20 report about those parts of the record is 10th October which is

21 very recently. I received those documents not much before that

22 date. By that date the interrogations of those witnesses had

23 come to an end. So it really would not have helped if, say,

24 I had received documents halfway through the interview of

25 witnesses. I could have suggested to one party or the other,

26 "Listen, there are a number of things that I would like to

27 know, maybe you can ask the next witnesses about these things",

28 but that was not the situation when I received the documents.

1 All the witnesses, as far as I know, had been heard and that

2 part of the trial had been concluded.

3 I must maybe add for your clarification, which is just

4 a matter of fact and I cannot help it, I would wish it were

5 otherwise but it is not, there is no way I could combine a

6 complete reading of the trial records with my job as a professor

7 of psychology in Leiden. I have to satisfy myself with just a

8 small part. It is not my habit to read only part of the

9 records. It is my habit it read all of it, but in this case it

10 is simply not humanly possible, definitely not within the time

11 that was given to me. So I have made that clear restriction.

12 This is what I have read. It is in my letter. I was assured

13 that those are the pages that refer to identification and that

14 there are no other pages. If I am wrong I am prepared to read

15 more.

16 Q. Just so it is understood, when did you receive documents for

17 review for purposes of your testimony?

18 A. I think Mr. Wladimiroff could tell you the exact date. Wait a

19 minute. It is not mentioned in my letter. I might have with me

20 the letter in which it was offered, but it was not long before.

21 I do not think I have the letter with me. I think I must fail

22 the answer, but probably it is something like two weeks.

23 Q. Before you responded with the letter?

24 A. Right. I am not certain of the answer. I have to look it up in

25 our sort of letter book in which it is recorded when letters are

26 received.

27 Q. In any event, it was a relatively short time?

28 A. Relatively short time, yes.

1 Q. How long before that was it that you discussed for the first

2 time in any way the issues of identification procedures with the

3 Defence?

4 A. I think at the time that you mentioned our first contact you

5 located that, what did you say, in -- I am not quite sure,

6 I think you said March 1996?

7 Q. I am sorry, this is your first discussion with the Defence about

8 these issues?

9 A. Yes. The only discussion I had with the Defence, including the

10 first, was only on the identification. I am not an expert on

11 any other aspect of this trial. So all our discussions, and

12 there were not many, including the first, was on identification,

13 nothing else.

14 Q. At that time did you provide them with a copy of your book which

15 includes the 50 rules you mentioned?

16 A. No, I think they had it in their possession already.

17 Q. Doctor, I understand what you have just indicated about the

18 length of time you had to review these records and transcripts.

19 Let me ask you then about a matter that was discussed at some

20 length during your direct testimony, and that is the test or

21 identification test or photospread administered to the witness

22 Draguna Jaskic. Do you remember the discussion about that?

23 A. That is the witness who changed her testimony in the second

24 account, you mean?

25 Q. Well, you say change her testimony in the second account, was

26 she shown the photospread twice?

27 A. No. I think I described that I am not completely aware of what

28 exactly happened.

1 Q. Do you know whether or not she was shown the photospread once or

2 twice or more times?

3 A. Let me first make sure we are talking about the same witness,

4 that was my counter question. These names are terribly

5 confusing.

6 Q. Please satisfy yourself about that.

7 A. Because I have the same documents that you have with the names

8 and the abstracts. In the document that was given to you today,

9 which is a short listing of the pages that were given to me,

10 I think the witness with whom there was a small problem is

11 listed between No. 58 and 60 with no number attached to her.

12 There her name is mentioned as Draguna Jaskic. It appears on

13 page 2952. That is the witness you are talking about?

14 Q. Yes, it is. That is right.

15 A. We are at least talking about the same one.

16 Q. If you can keep handy those pages.

17 A. Identification is always a problem.

18 Q. I understood you to say that you were unaware of whether or not

19 she had participated in more than one photospread?

20 A. Yes, I am not completely certain what the procedure was that was

21 applied.

22 Q. That question was rather clearly addressed in the portions of

23 the transcript which you received, was it not?

24 A. I have those pages starting at 2952.

25 Q. Perhaps you want to take a look at page 2969.

26 A. 2969, yes, I have it in front of me.

27 Q. How did you interpret the questions and answers when they came

28 to you the second time: "Did they have photographs with them

1 again?" Answer "No". So you did not look at another book of

2 photographs after that first time?" Answer "No"?

3 A. Well, I read that, but I did not understand how she came about

4 to give a second statement about whom she had recognised.

5 Apparently, there is a second visit, or maybe it was -- it says

6 at line 6, "When they visited you again and said 'why did you

7 not say'?", there is a riddle there because apparently there is

8 a second visit. Mr. Kay seems to imply there that the

9 investigator already knows that she did not say something,

10 although she knew, and my question is how did the investigator

11 know that?

12 Q. Let us see if we can address that question then. Let me ask you

13 first about forms of recognition, because I noted in particular

14 that you said that this witness did not express any recognition,

15 did not recognise and so on.

16 A. No, I did not say that I think. She did not express it and then

17 the rule is you should count her as someone who did not identify.

18 Q. Well, I think one of the quotes you had was "could not

19 recognise" but let us not quibble about that. One of the forms

20 of recognition, or one of the expressions of recognition, can be

21 of course the simple statement, "I recognise that person as the

22 one who did such and such", correct?

23 A. Right.

24 Q. It is also true to say that not all expressions of recognition

25 need to be verbal. For example, someone can point in response

26 to a question and that is also an indication of recognition.

27 I take it would also be true that there are some reactions which

28 are as demonstrative of recognition as pointing or speaking.

1 For example, if someone encountered someone from whom they had

2 great reason to fear and reacted by running from the room

3 screaming in tears, that certainly might also be an expression

4 of recognition, correct?

5 A. Well, now you come on very difficult ground, because if you

6 accept all sorts of emotional, expression of emotions as

7 recognition, then you are going to ask the investigator to

8 interpret the behaviour of the witness. There you are on very

9 slippery ground. Therefore, the procedure asks that the witness

10 just says, "I indicated a number, that is the one I recognise."

11 Points, indicates, says and no other less clear things because

12 you would become dependent on all sorts of subjective

13 interpretations of the investigator and you do not want that.

14 Q. Doctor, I appreciate you cannot ask a witness in lieu of verbal

15 expression to have some physical reaction to the photograph or

16 the individual to express their recognition. Of course that

17 would not be practical. Nevertheless, that might happen, right?

18 A. Anything might happen. So what you would expect in that case is

19 the investigator just describes what happens.

20 Q. Right, and in that case it might not be the investigator who is

21 interpreting what is happening. It is the investigator bringing

22 information to the court and allowing the Court to determine

23 what happened?

24 A. If everything is described you can leave it to the Court to

25 interpret it, yes, right.

26 Q. You would also agree, I take it, that that can be a very

27 persuasive expression of one's recognition, a very sincere

28 expression of one's recognition?

1 A. What can be a very sincere expression?

2 Q. An involuntary physical reaction.

3 A. Running from the room and screaming?

4 Q. Breaking out into a sweat, whatever kinds of physical

5 expressions might result.

6 A. I would say breaking out into a sweat is exactly the thing

7 I would have doubts about, because that is not easy to see, not

8 always to easy to see and it is not always easy to attribute it

9 just to recognition. It can be related to almost anything. So,

10 no, I think when I say that there ought to be strict and clear

11 procedures, some of the procedures relate to how the recognition

12 is expressed. Some of the expressions are perfectly acceptable

13 and clear and do not need to be quibbled with. Another thing,

14 because they are doubtful and subject to personal interpretation

15 which cannot be redone or undone by the Court because the Court

16 cannot verify whether the investigator saw a sweat, I would say

17 that is a less desirable procedure. I think to such a situation

18 you ought to apply one of the rules that was formulated, which

19 is if you can justify why by necessity you had to do it this

20 way, I could not follow, say, the optimum procedure, maybe the

21 Court should accept that. But if it cannot be justified, then

22 I would not encourage investigators to do it that way.

23 Q. Doctor, the question was not intended to be, and I apologise if

24 it seemed to be, a question which asked you to comment on the

25 best possible procedure under those circumstances. I simply

26 wanted to know whether you acknowledge that a recognition could

27 be expressed in a variety of ways including a physical

28 reaction? I think you agree with that, is that not true?

1 A. Oh, I think witnesses can do that. I do not want to have said

2 that that should be acceptable as a procedure.

3 Q. Not as a procedure. You should focus on the existence of a

4 recognition or not.

5 A. Rather you should instruct witnesses not to express it in other

6 ways than by saying it and pointing at the right picture.

7 Q. Yes, I think I understood that from your earlier testimony as

8 well. Let me ask you one more question. Is it also possible,

9 in your view, that an individual who sees a photograph or a

10 person who elicits great fear reacts to that fear by trying to

11 distance himself or herself from the situation and verbally

12 expressing or denying that recognition?

13 A. Yes, sure, I think that is perfectly possible. I do not think

14 such a person makes a great witness.

15 Q. You read the full transcript of Mrs. Jaskic, is that right?

16 A. No.

17 Q. I am sorry, you read the pages you were given that included page

18 2977?

19 A. Would it be helpful if I tell you which pages I have?

20 Q. I actually have a list of that I believe so I can accompany you

21 with that.

22 A. I had 53, 2953, 54, 55, then jumping to 62, then 64, 65, 66, 67,

23 68, 69 and that is the end. I do not know which proportion of

24 the whole testimony that is.

25 Q. On page 2977 ----

26 A. 2977, I did not have that one.

27 Q. You were not provided with that?

28 A. Oh, yes. Sure, OK, that is the next testimony. Right. That is

1 by Mr. Paepen I think.

2 Q. That is right. The reaction that Mrs. Jaskic had at the time

3 she viewed the photospread was described?

4 A. I think you have refer to me to the line.

5 Q. Doctor, I am referring to lines 27 through 32.

6 A. Yes.

7 Q. It seems you did not recall that?

8 A. Sure. No, I recall that. I do not know exactly what it means.

9 Q. Right, you do not know what it means?

10 A. No.

11 Q. This witness brought that to the Court?

12 A. Yes, sure but I do not know whether ----

13 Q. It is for the Court to determine exactly what that means, is

14 that not right?

15 A. No, if your suggestion is that one can conclude from that piece

16 that obviously she recognised, I cannot conclude that. I can

17 only see that she behaved in this way and then said "Go on". If

18 you just stick to the rules it would say, so, that is not a

19 recognition because then she should have said "That's him" and

20 maybe run screaming from the room, but "Go on" sort of means

21 that she would want to have a look at the other pictures.

22 Q. So it is not a recognition under the rules?

23 A. Under proper rules I would say do not count that as

24 recognition. It is risky. You do not know exactly what

25 happens, why she made that. If I may add, it is quite

26 probably -- no, not probably. I should correct it. It is

27 possible that the uncertainty of the situation has led to this.

28 If her task was to recognise the one person she had mentioned,

1 I do not know whether she had mentioned the name Tadic, I think

2 she did, if she had been asked, "Well, that one person, is he in

3 this file or not?" and she recognised him, she might have said

4 here, "That's him, stop". If she was under the allusion that

5 she might see more people whom she had met in the camp, it could

6 it could have been possible for her to say after recognising

7 one, "Go on" expecting some more, you see. The unclarity or

8 maybe the possible impropriety of the procedure may have led to

9 this difficulty. I would say good procedures avoid also

10 interpretation problems. So, I do not even know what the "Go

11 on" means. Does she mean, "I am not sure whether it is him. Go

12 on, maybe we get a better picture of him". Or does she mean,

13 "Go on, maybe there are other criminals that I might also

14 recognise." It is sort of very difficult to interpret what this

15 all means and proper procedures avoid such difficulties.

16 THE PRESIDING JUDGE: Actually, as I recall the testimony, she did

17 not testify that she had recognised him in a camp, but hat she

18 recognised him in Jaskici. It has been months since we

19 heard this testimony, but that is my memory. The reason

20 I suggest this to you is, would it have been helpful for you to have

21 read her testimony in full to have understood at least what she

22 testified to, what were the circumstances, how it affected her,

23 to better understand her reaction? I have had the advantages of

24 listening to that some time ago. I have not read it since but

25 I remember it. Would that have helped you and would possibly

26 you have formed a different opinion as to what she meant when

27 she reacted that way?

28 A. Your Honour, it is thinkable that that would have helped me to

1 help you understand what she meant, but I do not think it is in

2 my field of expertise to help you what she meant. My field of

3 expertise is procedure. If you would ask me to look at it again

4 and help you explain what she means, I would be very hesitant to

5 be honest.

6 Q. We have a very difficult job and I think it belongs to us,

7 unfortunately.

8 A. I appreciate that. You need all the help you can. I appreciate

9 that.

10 THE PRESIDING JUDGE: I am sorry, Mr. Tieger. I may have

11 misremembered but that is my memory and that is why I wanted to

12 ask it. It is now 5.30. So we will adjourn until tomorrow at

13 10 o'clock.

14 (5.30 p.m.)

15 (The court adjourned until the following day).

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