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Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence

  • RUBEN KAREMAKER, B. DON TAYLOR and THOMAS WAYDE PITTMAN

Abstract

Witness proofing – or preparation – is an adjunct of the adversarial criminal trial process. It is also a common practice at the UN international criminal tribunals, where it has been repeatedly challenged, analysed, and endorsed. Recently, a trial chamber at the ICC prohibited the prosecutor from proofing witnesses, seemingly calling upon the institution, at an early stage, to break with the established practice of proofing at the UN international criminal tribunals. This article examines witness proofing in international criminal procedure with the aim of describing and weighing its relative merits, and arguing that proofing – as practised at the UN international criminal tribunals – appears to be a better modality for enhancing the efficiency, integrity, and legitimacy of the truth-seeking function of international criminal trials than does prohibiting the practice.

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References

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1 Prosecutor v. Lubanga, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Case No. ICC-01/04-01/06, T.Ch. I, 30 November 2007 (hereinafter Lubanga Trial Decision).

2 Prosecutor v. Lubanga, Decision on the Practices of Witness Familiarisation and Witness Proofing, Case No. ICC-01/04-01/06, Pre-Trial Chamber I, 8 November 2006 (hereinafter Lubanga Pre-trial Decision).

3 Lubanga Trial Decision and Lubanga Pre-trial Decision, supra notes 1 and 2.

4 See A. Orie, ‘Adversarial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings before the ICC’, in A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002). See also the full discourse of Senior Trial Attorney Ken Scott in Prosecutor v. Prlić et al., Case No. IT-04-74-T, 19 March 2007, T.15853-4, from which the following is quoted: ‘when the early Judges and the senior leaders of this institution many years ago designed the system that would be the ICTY, they put in place a system which, hybrid as it is, is decidedly more adversarial than not, decidedly more common law than not’.

5 See, e.g., Applegate, J., ‘Witness Preparation’, (1989) 68 Texas Law Review 277.

6 G. Boas, The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings (2007), at 9.

7 ‘The practice of proofing witnesses, by both the Prosecution and Defence, has been in place and accepted since the inception of this Tribunal’, Prosecutor v. Limaj, Bala and Musliu, Decision on Defence Motion on Prosecution Practice of ‘Proofing’ Witnesses, Case No. IT-03-66-T, 10 December 2004 (hereinafter Limaj Trial Decision), at 2.

9 Prosecutor v. Milutinović et al., Decision on Ojdanić Motion to Prohibit Witness Proofing, Case No. IT-05-87-T, Trial Chamber III, 12 December 2006 (hereinafter Milutinović Trial Decision).

10 Prosecutor v. Sesay, Kallon and Gbao, Decision on the Gbao and Sesay Joint Application for the Exclusion of the Testimony of Witness TF1-141, Case No. SCSL-04-15-T, 26 October 2005 (hereinafter RUF Trial Decision).

11 Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on Defence Motions to Prohibit Witness Proofing, Case No. ICTR-98-44-T, 15 December 2006 (hereinafter Karemera Trial Decision).

12 Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on Interlocutory Appeal Regarding Witness Proofing, Case No. ICTR-98-44-AR73.8, 11 May 2007 (hereinafter Karemera Appeal Decision).

13 Prosecutor v. Haradinaj, Balaj and Brahimaj, Decision on Defence Request for Audio-Recording of Prosecution Witness Proofing Sessions, Case No. IT-04-84-T, 23 May 2007 (hereinafter Haradinaj Trial Decision), at 8. The trial chamber pointed out the absence of a ‘set definition of proofing at the [ICTY].’ The fact that witness proofing usually takes place shortly before the witness is to testify in court has been the subject of criticism. See Milutinović Trial Decision, supra note 9, at 23.

14 Haradinaj Trial Decision, supra note 13, n. 20 (citing Prosecutor v. Milutinović et al., Prosecution Response to General Ojdanić's Motion to Prohibit Witness Proofing, Case No. IT-05-87-T, 29 November 2006 (hereinafter Milutinović Prosecution Response), n. 2.

15 Limaj Trial Decision, supra note 7, at 2.

16 Milutinović Trial Decision, supra note 9, at 16.

17 Karemera Trial Decision, supra note 11, at 15.

18 Limaj Trial Decision, supra note 7, at 1.

20 Ibid., at 2.

22 Ibid., at 3. It is noteworthy that the defence did not claim that any such coaching had actually occurred but that there was a danger that it might. Ibid., at 1; T. 1161 (30 November 2004). See section 5.2.3, infra, concerning the perceived risk of proofing. See also section 5.2.1, infra, for more on the distinction between proofing on the one hand and coaching or other unacceptable practices on the other.

23 Limaj Trial Decision, supra note 7, at 3. See also Karemera Trial Decision, supra note 11, at 17.

24 RUF Trial Decision, supra note 10, at 7.

25 Ibid., at 33.

26 Lubanga Pre-Trial Decision, supra note 2.

27 Ibid., at 1–2. At a status conference on 26 October 2006, the prosecution informed the pre-trial chamber that it would be conducting proofing sessions with a witness. This information prompted the single judge of the pre-trial chamber on 30 October 2006 formally to request the prosecution ‘to elaborate on the content of what the prosecution means by the expression “proofing of the witness” and the specific conditions under which the prosecution wishes to carry out the proofing of the witness; and not to undertake any proofing session until the matter is ruled on by the Chamber’. Notwithstanding this, the trial chamber appears to have taken the view that the issue was initially raised by the prosecution, see Lubanga Trial Decision, supra note 1, at 4.

28 Lubanga Pre-Trial Decision, supra note 2, at 11.

29 Ibid., at 15.

30 Ibid., at 17.

31 Ibid., at 31–3.

32 Ibid., at 34 and n. 35. Unfortunately, the pre-trial chamber in its comparison did not comment upon the seemingly critical fact that court proceedings in Spain, Belgium, or Germany are conducted in a fundamentally different manner from those at the ICC. For example, a German investigative judge would arguably not be aided by allowing the parties to proof their witnesses when he or she has examined the witnesses directly in the parties' presence prior to their testimony at trial. In other words, the usefulness or propriety of proofing is not a corollary to the nature of the crime involved, or the age of the case, so much as it is an adjunct of the adversarial criminal trial format established by the ICC's regulatory framework. To the extent that the prosecution's argument failed to focus on this important distinction, the pre-trial chamber's oversight might be understandable.

33 Art. 21 of the Rome Statute establishes the sources and hierarchy of law to be applied in the Court's decision-making. Following the formal sources of the Court's regulatory framework (Statute, Rules of Procedure and Evidence, and Elements of Crimes), and applicable treaties, principles, and rules of international law, the Court is to look to ‘general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards’ (Art. 21(1)(c)).

34 Lubanga Pre-Trial Decision, supra note 2, at 35. As it provided no analysis, the pre-trial chamber left open (i) whether proofing is prohibited in the Democratic Republic of the Congo; and (ii) whether such a finding would affect the outcome of its decision, and if so, to what extent it should be determinative.

35 Ibid., at 37.

36 Ibid., at 38–9. Note, however, that this argument with regard to English law was specifically rejected by the Milutinović trial chamber at the ICTY, finding that proofing as practised at the ICTY was not the equivalent of the prohibited practice of rehearsing, practising, or coaching a witness; see infra note 40, and accompanying text.

37 Ibid., at 42.

38 The Defence ‘Motion to Prohibit Witness Proofing’ was filed on 15 November 2006, Milutinović Trial Decision, supra note 9, at 2.

39 Milutinović Trial Decision, supra note 9, at 11–15.

40 Ibid., at 16; see Art. 705 of the Code of Conduct of the Bar Council of England and Wales: ‘A barrister must not: (a) rehearse, practise, or coach a witness in relation to his evidence; (b) encourage a witness to give evidence which is untruthful or which is not the whole truth; and (c) except with the consent of the representative for the opposing side or of the Court, communicate directly or indirectly about a case with any witness whether or not the witness is his lay client, once that witness has begun to give evidence until the evidence of that witness has been concluded.’

41 Milutinović Trial Decision, supra note 9, at 19, 22.

42 Karemera Trial Decision, supra note 11, at 1. Joseph Nzirorera's Motion to Prohibit Witness Proofing was filed on 13 November 2006.

43 Ibid., at 10.

44 Ibid., at 15–16 (citing ICTR Prosecutor's Regulation No. 2 (1999), Standard of Professional Conduct Prosecution Counsel (hereinafter Prosecution Standards)).

45 Ibid., at 18. The defence request to do so was granted by the chamber, Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on Reconsideration of Protective Measures for Prosecution Witnesses, ICTR-98-44-T, 30 October 2006.

46 Karemera Trial Decision, supra note 11, at 12.

47 Ibid., at 22.

49 Karemera Appeal Decision, supra note 12, at 6.

50 Ibid., at 13. While the Appeals Chamber used the words ‘interfering with witness' testimony’, the trial chamber used the wording ‘manipulation of a witness' evidence’, Karemera Trial Decision, supra note 11, at 15. The specific allegation made by the Defence was that the Prosecution was ‘tampering with witnesses’ and ‘moulding the evidence against the Accused’ (at 21).

51 Karemera Appeal Decision, supra note 12, at 9.

52 Ibid., at 11.

53 Prosecutor v. Lubanga, Prosecution's submissions regarding the subjects that require early determination: procedures to be adopted for instructing expert witnesses, witness familiarization and witness proofing, Case No. ICC-01/04-01/06, Trial Chamber I, 12 September 2007. Unusually, the citation to this submission was omitted in the trial chamber's ‘Procedural Background’ and referenced only once in the Decision as a secondary source in a footnote (Lubanga Trial Decision, supra note 1, n. 9).

54 Lubanga Trial Decision, supra note 1, at 53(f).

55 Ibid., at 28.

56 Ibid., at 29.

57 Ibid., at 34. Contrast this with the Limaj trial chamber's contrary conclusion at the ICTY: ‘Also particularly relevant are the cultural differences encountered by most witnesses in this case, when brought to the Hague and required to give a detailed account of stressful events, which occurred a long time ago, in a formal setting, and doing so in response to structured precise questions, translated into a different language. Such factors also demand time in preparing a witness to cope adequately with the stress of these proceedings. These matters, in the Chamber's view, are properly in the realm of proofing, and are not to be left to the different form of support provided by the Victims and Witnesses Section’ (Limaj Trial Decision, supra note 7, at 3 (emphasis added)). One could arguably attribute this to the differing functions of the two tribunals' victim and witness assistance roles.

58 Lubanga Trial Decision, supra note 1, at 36.

59 Ibid., at 43–4.

60 Ibid., at 45. This pronouncement may be viewed with some irony in view of the fact that the procedural regime to which the trial chamber refers as establishing ‘additional novel elements’ was established – and virtually set in stone – in 1998 (Rome Statute) and 2002 (Rules of Procedure and Evidence). Conversely, the procedural rules at the ICTY are continuously updated to adapt to changing circumstances and the lessons learned by experience, having been amended 28 times since 1998, and 15 times since 2002. Moreover, with specific regard to proofing, it is difficult to understand how the Rome Statute could have been ‘improving’ on jurisprudence not yet rendered, much less how the unexplained yet implied rejection of a practice found to be effective and appropriate at other international criminal tribunals with extraordinarily similar structures could be considered an improvement.

61 Lubanga Trial Decision, supra note 1, at 50.

62 Ibid., at 50, 55. The chamber placed on the party responsible for calling the witness the burden of making available to the Victims and Witnesses Unit any previous statements of a witness. No guidance was provided as to those situations where the making of a previous statement is a fact in dispute.

63 Ibid., at 52.

64 See for example, supra notes 32, 34, 36 and 40, and accompanying text.

65 Lubanga Trial Decision, supra note 1, at 47 (citing ICC Statute, Arts. 54(1)(a), 69(3)).

66 Ibid., at 51.

67 See section 2, supra.

68 Milutinović Trial Decision, supra note 9, at 16. Similarly, the practice does not include putting to the witness the exact questions to be asked during his or her testimony, Karemera Trial Decision, supra note 11, at 23.

69 Karemera Trial Decision, supra note 11, at 11–12, 15 and 21.

70 Karemera Appeal Decision, supra note 12, at 9.

71 Haradinaj Trial Decision, supra note 13, n. 20, citing Milutinović Prosecution Response, n. 2.

72 Karemera Trial Decision, supra note 11, at 21.

73 For example, in Karemera the Appeals Chamber noted Nzirorera's assertion that the prosecution's proofing practice had resulted in seven instances of new evidence (Karemera Appeal Decision, supra note 12, at 12, n. 32). Likewise, the Milutinović trial chamber acknowledged the defence argument that what it characterized as ‘late disclosure’ had occurred on numerous occasions (Milutinović Trial Decision, supra note 9, at 21). Due process concerns inherent in the timing of the discovery of new evidence are not considered in this article. While such concerns are extraordinarily important, they do not directly implicate the relative merits of proofing, as international judges unquestionably possess the tools to remedy any due process deprivations. See, e.g., Karemera Appeal Decision, supra note 12, at 12 (noting that the prosecution's act of disclosing new material to the defence as a result of a proofing session does not mean that the trial chamber will allow the evidence to be led or that it will ultimately credit the testimony in its final assessment of the case).

74 Lubanga Trial Decision, supra note 1, at 52.

75 In this context, it may be interesting to note the following finding of the ICTY Appeals Chamber in Prosecutor v. Krstić: ‘in a situation where the defence is unaware of the precise nature of the evidence which a prospective witness can give and where the defence has been unable to obtain his voluntary cooperation, it would not be reasonable to require the defence to use “all mechanisms of protection and compulsion available” to force the witness to give evidence “cold” in court without first knowing what he will say. That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty’ (Prosecutor v. Krstić, Decision on Application for Subpoenas, Case No. IT-98-33-A, AC, 1 July 2003, at 8). This finding of the Appeals Chamber in Krstić was later also embraced by the Appeals Chamber in Karemera. Karemera Appeal Decision, supra note 12, at 10.

76 J. Wigmore, Evidence (1974), § 1367.

77 See, e.g., Epstein, J., ‘The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination’, (2007) 36 Stetson Law Review 727 (questioning the efficacy of cross-examination in cases involving honest mistaken identifications).

78 Karemera Appeal Decision, supra note 12, at 13.

79 Lubanga Trial Decision, supra note 1, at 52.

80 Of course, the role of professional judges in international tribunals extends well beyond the framework of the ICTY, the ICTR and the SCSL. See D. Terris, C. Romano, and S. Sotomayor, The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (2007).

81 See, e.g., ICTY Rule 85(B), ICTR Rule 85(B), or SCSL Rule 85(B) (‘a Judge may at any stage put any question to the witness’). See also ICC Rule 140(2)(c) (‘the Trial Chamber has the right to question a witness before or after a witness is questioned by a participant’).

82 See e.g. ICC Statute Art. 64(6)(a) (‘the Trial Chamber may order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties’); ICTY Rule 98 (‘a Trial Chamber may order either party to produce additional evidence and may proprio motu summon witnesses and order their attendance’).

83 Indeed, such challenges are arguably over-utilized. One need only note the Karemera trial chamber's pronouncement that lodging serious allegations such as witness tampering during proofing ‘without any evidence to support or justify them is discourteous at the very least’, Karemera Trial Decision, supra note 11, at 22.

84 See Haradinaj Trial Decision, supra note 13, at 22–3.

85 Karemera Trial Decision, supra note 11, at 15–16 (citing Prosecution Standards, supra note 44).

86 Prosecution Standards, supra note 44, at 2(a) (emphasis added).

87 See Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, as amended on 13 May 2006, Arts. 5, 6, 8, and 10.

88 Code of Professional Conduct for Counsel Appearing before the International Tribunal, as amended on 29 June 2006, Art. 24.

89 Karemera Trial Decision, supra note 11, at 24 (citing Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on Joseph Nzizorera's Interlocutory Appeal, Case No. ICTR-98-44-AR73.6, 28 April 2006, at 17 and Prosecutor v. Kordić and Cerkez, Judgement, Case No. IT-95-14/2-A, at 183).

90 See, e.g., Prosecutor v. Tadić, Judgment on Allegations of Contempt against Prior Counsel Milan Vujin, Case No. IT-94-1-A-R77, 31 January 2000 (finding former defence counsel guilty of contempt for, inter alia, manipulating witness evidence).

91 See ICTY Rule 77(A), (G); ICTR Rule 77(A), (G); SCSL Rule 77(A), (G).

92 ICC Statute, Art. 70(1)(b) and (c). Indeed, considering Art. 70(4), the ICC judges would appear to have even greater enforcement powers in this regard than the ICTY, the ICTR, and the SCSL, which cannot require states to criminalize domestically contempt of the tribunals, nor empower their judges to direct domestic prosecutions.

93 Lubanga Trial Decision, supra note 1, at 45.

* Ruben Karemaker is a lawyer from the Netherlands and B. Don Taylor III and Thomas Wayde Pittman are lawyers from the United States. All authors are legal officers in the Chambers Legal Support Section of the International Criminal Tribunal for the former Yugoslavia. The views expressed herein are solely those of the authors and do not reflect the positions or views of the International Criminal Tribunal for the former Yugoslavia or the United Nations.

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