Expert evidence

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

79. […] The Appeals Chamber recalls that trial chambers have the discretion to bar the testimony of an expert witness called to give evidence on legal matters.[1] […]

[1]           Nahimana et al. Appeal Judgement, paras 292-294. See also Šainović et al. Appeal Judgement, para. 1295; Renzaho Appeal Judgement, para. 289.

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

375. […] The Appeals Chamber recalls that the purpose of expert testimony is to supply specialised knowledge that might assist the trier of fact in understanding the evidence before it, and that in the ordinary case an expert witness offers a view based on specialised knowledge regarding a technical, scientific or otherwise discrete set of ideas or concepts that is expected to fall outside the lay person’s ken.[1] […]

[1]           Nahimana et al. Appeal Judgement, para. 198, citing Semanza Appeal Judgement, para. 303.

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

The Trial Chamber denied admission into evidence of the conclusions drawn by a Prosecution investigator based on his summaries of written witness statements. See paras 16-17.

17. [...] [Those conclusions are] facts which the Trial Chamber is obliged to consider and in relation to which it must make its own findings before coming to the issue of the accused’s guilt in relation to them.  That task does not require expertise beyond that which is within the capacity of any tribunal of fact, that of analysing the factual material put forward by the witnesses.  Whatever expertise the OTP investigator may claim to have in relation to such a task, the Trial Chamber was entitled to decline his assistance in the very task which it had to perform for itself.

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Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

174. The Appeals Chamber […] notes that the evidence of an expert witness is meant to provide specialised knowledge that may assist the fact finder to understand the evidence presented.[1] It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness.[2] Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.

[1] Semanza Appeal Judgement, para. 303. See also The Prosecutor v. Casimir Bizimungu, Justin Mugenzi, Jérôme-Clément Bicamumpaka, Prosper Mugiraneza, Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2.

[2] The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-01-64-T, Decision on Expert Witnesses for the Defence, Articles 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003, para. 8.

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Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

58. Considering that it is for the Trial Chamber to accept or reject, in whole or in part, the contribution of an expert witness, the Appeals Chamber concludes that a Trial Chamber’s decision with respect to evaluation of evidence received pursuant to Rule 94 bis of the Rules is a discretionary one.[1] When assessing an expert report, a Trial Chamber generally evaluates whether it contains sufficient information as to the sources used in support of its conclusions and whether those conclusions were drawn independently and impartially.[2] […]

[1] See Stakić Appeal Judgement, para. 164; Semanza Appeal Judgement, para. 304; see also The Prosecutor v. Sylvester Gacumbitsi, Case No. ICTR-2001-64-T, Decision on Expert Witnesses for the Defence - Rules 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003, para. 8.

[2] Nahimana et al. Appeal Judgement, paras 198-199; see also Prosecutor v. Dragomir Milošević, Case No IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007, paras 8-9; Prosecutor v. Milan Martić, Case No IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov pursuant to Rule 94 bis, 9 November 2006, paras 9-10; Prosecutor v. Radoslav Brđanin, Case No IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4.

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ICTR Rule Rule 94 bis ICTY Rule Rule 94 bis
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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

199. It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness.[1] The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”.[2] The party alleging bias on the part of an expert witness may demonstrate such bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.[3]

[1] Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007 (“D. Milošević Decision of 15 Fevrier 2007”), para. 7; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defense’s Submission of the Expert Report of Milisav Selukić pursuant to Rule 94 bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Selukić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), p. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov pursuant to Rule 94 bis, 9 November 2006 (“Martić Decision of 9 November 2006”), para. 5; The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Decision on Expert Witnesses for the Defence, Rules 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003 (“Gacumbitsi Decision of 11 November 2003”), para. 8.

 [2] Gacumbitsi Decision of 11 November 2003, para. 8. See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2: “in order to be entitled to appear, an expert witness must not only be recognized expert in his field, but must also be impartial in the case.”

 

[3] Martić Decision of 9 November 2006, para. 11.

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

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

[1] See references mentioned supra, footnote 521.

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

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

198. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide specialized knowledge – be it a skill or knowledge acquired through training[1] – that may assist the fact finder to understand the evidence presented.[2] The Appeals Chamber recently held:

Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience. Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[3]

[1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Oral Ruling on Qualification of Expert Witness Mbonyinkebe, 2 May 2005; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Oral Decision on the Qualification of Mr. Edmond Babin as Defence Expert Witness, 13 April 2005, para. 5; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4; Prosecutor v. Stanislav Galić, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003, p. 3.

[2] Semanza Appeal Judgement, para. 303. See also The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2.

[3] Semanza Appeal Judgement, para. 303.

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

212. […] Thus, while the report and testimony of an expert witness may be based on facts narrated by ordinary witnesses or facts from other evidence, an expert witness cannot, in principle, testify himself or herself on the acts and conduct of accused persons[1] without having been called to testify also as a factual witness and without his or her statement having been disclosed in accordance with the applicable rules concerning factual witnesses.[2] However, an expert witness may testify on certain facts relating to his or her area of expertise. […]

509. […] The Appeals Chamber recalls that the role of expert witnesses is to assist the Trial Chamber in its assessment of the evidence before it, and not to testify on disputed facts as would ordinary witnesses. […]

[1] Also, it should be recalled that an expert witness cannot pronounce on the criminal responsibility of the accused: see D. Milošević Decision of 15 February 2007, para. 11; Martić Decision of 13 November 2006, p. 5; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on the admissibility of the expert testimony of Binaifer Nowrojee, 8 July 2005, para. 12.

[2] In this regard, see Rules, 66(A)(ii), 73 bis (B)(iv)(b) and 73 ter (B)(iii)(b).

[3] See supra IV. B. 2. (b).

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Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

18. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide specialised knowledge – be it a skill or knowledge acquired through training – that may assist the fact finder to understand the evidence presented.[1] Furthermore, Rule 74 bis of the Rules explicitly provides that a Trial Chamber may order a medical, psychiatric and psychological examination of an accused. While normally ordered in the context of sentencing,[2] the Appeals Chamber notes that on a number of occasions Trial Chambers have requested expert witnesses to provide psychological assessments of an accused and to report on his state of mind at the time of the commission of the crimes.[3] The Trial Chamber must determine itself whether an accused had the state of mind required by the applicable law (mens rea); however, a medical analysis of an accused’s mental state at the time of the crime is a distinct piece of evidence which may be relied upon in support of the Trial Chamber’s conclusion. In this respect, the Appeals Chamber notes the distinction drawn in the Delalić et al. Appeal Judgement between asking an expert to draw a conclusion of fact on behalf of the Trial Chamber versus providing medical information upon which the Trial Chamber may rely.[4]

[1] Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Case No. ICTR-99-52-A, Judgement, 28 November 2007, para. 198; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, para. 27.

[2] See Prosecutor v. Darko Mrða, Case No. IT-02-59-S, Decision on the Defence Motion for Medical Examination and Variation of Scheduling Order, 15 September 2003 (“Mrða Decision on Defence Motion for Medical Examination”), p. 2; Prosecution v. Stevan Todorović, Case No. IT-95-9/1, Order on Defence Motion for Medical Examination and Variation of Scheduling Order, 27 February 2001; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Order for Psychological and Medical-Psychiatric Exam of the Accused Radić, 19 April 2000 (“Radić Order for Psychological and Medical-Psychiatric Exam”), p. 2; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defense Motion to Obtain the Assignment of Experts for the Accused Miroslav Kvocka [sic], 12 May 2000 (“Kvočka Decision on Defence Motion for Assignment of Experts”), p. 2; Prosecutor v. Miroslav Kvočka et al, Case No. IT-98-30/1-T, Decision on Defence Request for Assignment of Experts for the Accused Dragoljub Prcać, 19 May 2000 (“Prcać Decision on Assignment of Experts”), p. 2; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Decision on Defence Request for Assignment of Medical and Psychiatric Experts for the Accused Zoran Zigić, 22 June 2000 (“Zigić Decision on Assignment of Medical and Psychiatric Experts”), p. 2.

[3] Mrða Decision on Defence Motion for Medical Examination, p. 6; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Order for the Medical Examination of the Accused Milorad Krnojelac, 29 January 2001 (“Krnojelac Order for Medical Examination”), p. 2; Kvočka Decision on Defence Motion for Assignment of Experts, p. 3; Prcać Decision on Assignment of Experts, p. 2; Zigić Decision on Assignment of Medical and Psychiatric Experts, p. 2; Radić Order for Psychological and Medical-Psychiatric Exam, p. 3.

[4] Prosecutor v. Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-A, Judgement, 20 February 2001 (“Delalić et al. Appeal Judgement”), fn. 994.

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ICTR Rule Rule 74 bis ICTY Rule Rule 74 bis
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Decision on Expert Witness - 30.01.2008 POPOVIĆ et al.
(IT-05-88-AR73.2)

20. In a recent Appeal Judgement issued in the Nahimana et al. case, the ICTR Appeals Chamber established that:

C’est à la Chambre de première instance de déterminer si, au vu des éléments présentés par les parties, la personne proposée peut être reconnue en qualité de témoin expert. L’expert est tenu de déposer « dans la plus stricte neutralité en respectant l’objectivité scientifique ». La partie qui souhaite contester la partialité d’un témoin expert peut le faire par la voie du contre-interrogatoire, en faisant comparaître ses propres témoins experts ou au moyen d’une contre-expertise. Comme pour tout moyen de preuve présenté, c’est à la Chambre de première instance qu’il revient d’apprécier la fiabilité et la valeur probante du rapport et de la déposition du témoin expert.[1]

In this Appeal Judgement, the ICTR Appeals Chamber also concurred with the principle set forth in the Brđanin Decision that “the mere fact that an expert witness is employed or paid by a party does not disqualify him or her from testifying as an expert witness”.[2]

21. As properly pointed out by the Trial Chamber, Rule 94bis of the Rules “does not provide specific guidelines on the admissibility of testimony given by expert witnesses, or criteria for the admission of their report”.[3] Trial Chambers have established the following requirements for the admissibility of expert statements or reports: (1) the proposed witness is classified as an expert; (2) the expert statements or reports meet the minimum standards of reliability; (3) the expert statements or reports are relevant and of probative value; (4) the content of the expert statements or reports fall within the accepted expertise of the expert witness.[4] As the Trial Chamber in this case,[5] Trial Chambers have also ruled that “concerns relating to the Witness’ independence and impartiality […] are matter of weight, not admissibility”.[6] Such a statement is consistent with the ICTR Appeals Chamber’s finding in the Nahimana et al. Appeal Judgement, quoted above, that a party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witness or by means of an expert opinion in reply.[7]

22. [L]ike any evidence, expert evidence is subject to the provisions contained in Rule 89(C) and (D) of the Rules. While this Rule grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[8] The Appeals Chamber notes that in a limited number of instances, Trial Chambers have ruled inadmissible the evidence of a proposed expert witness on the ground that this evidence was so lacking in terms of the indicia of reliability because of lack of impartiality and independence or appearance of bias that it was not probative.[9] Such a determination has to be made on a case-by-case basis.[10] Finally, the Appeals Chamber reemphasizes that the decision by a Trial Chamber to admit evidence does not in any way constitute a binding determination as to its authenticity or credibility. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to be attached to the evidence in question.[11]

31. […] The extent of Butler’s involvement with the Prosecution in the investigation and preparation of this case can be explored during cross-examination, thus giving the Appellants full opportunity to challenge the admissibility of Butler’s reports.[12] In this respect, it is worth emphasizing again that the Trial Chamber stated that accepting Butler as an expert and calling him to give evidence does not automatically entail that his reports would be admitted as evidence.[13] It is also noteworthy recalling that Judges of the Tribunal, as professional judges, are able to weigh evidence and consider it in its proper context, or when applicable, to disregard any particular piece of evidence they have heard or read.[14] Furthermore, they are required to write a reasoned decision, which is subject to appeal.[15] 

[1] Nahimana et al. Appeal Judgement, para. 199 (footnotes omitted). The official English translation is not available yet, but an unofficial translation is provided below for convenience:

It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness. The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”. The party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.

[2] Nahimana et al. Appeal Judgement, para. 282, quoting Brđanin Decision [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003], p. 4.

[3] Impugned Decision [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T,Decision on Defence Rule 94bis Notice Regarding Prosecution Expert Witness Richard Butler, 19 September 2007], para. 22.

[4] Dragomir Milošević Decision [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007], para. 6; Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Milisav Sekulić Pursuant to Rule 94bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Sekulić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), pp. 3-4.   

[5] Impugned Decision, paras 26-27.

[6] Brđanin Decision, p. 4; Dragomir Milošević Decision, para. 9; Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], paras 8, 12; Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, Decision on Admissibility of Expert Report of Kosta Čavoški, 1 March 2006, p. 2; Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94bis, 1 April 2004, p. 4.

[7] Nahimana et al. Appeal Judgement, para. 199.

[8] Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33, 266; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998, para. 20.  See, also Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 24, and Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 24.

[9] In the Akayesu case, the Trial Chamber dismissed a Defence motion for the appearance of a person accused in another case before the ICTR for crimes related to those in its case, on the ground, inter alia, that “an expert must not only be a recognized expert in his field, but must also be impartial in the case” (Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998 (“Akayesu Decision”), p. 2). In the Milutinović Decision [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Request for Certification of Interlocutory Appeal of Decision on Admission of Witness Philip Coo’s Expert Report, 30 August 2006], the Trial Chamber found that the proposed expert witness was “too close to the team, in other words to the Prosecution presenting the case, to be regarded as an expert” and that “it could not regard his opinion as bearing the appearance of impartiality on which findings crucial to the determination of guilt of criminal charges might confidently be made” (paras 1, 10). See, also the three following decisions as illustrations of instances in which such an issue was raised: (1) In the Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], the Trial Chamber stated that “the active involvement of a proposed expert witness in the investigation of the case on behalf of the Prosecution is a factor capable of affecting the reliability of that witness’ Report and potential evidence […] The involvement in a particular case may be such that the reliability of the opinions of the expert cannot be accepted.” (para. 12); (2) Decision on General Smith [Prosecutor v. Vujadin Popović, Case No. IT-05-88-T, Second Decision Regarding the Evidence of General Rupert Smith, 11 October 2007], p. 4, footnotes 14, 15; (3) Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 10. 

[10] In this respect, the Appeals Chamber rejects the Prosecution’s suggestion that because Butler already testified as an expert witness in other cases, including before the Appeals Chamber, this automatically means that the Joint Defence Appeal should be dismissed.

[11] Rutaganda Appeal Judgement, footnote 63.

[12] In a rather similar instance, the Trial Chamber, after having found that the circumstances of the case were not the same as those in the Milutinović Decision, stated that “[t]he degree of [the expert witness’] connection with the Prosecution can be explored by the Defence in cross-examination and will be taken into account by the Chamber in assessing the weight to be attached to the evidence of the expert witness. It will be open to both Defence teams to examine the extent to which the involvement of [the expert witness] in the interviewing of witnesses and his subsequent reliance on statements and material obtained with his active participation affected the content of his Report and testimony” (Boškoski Decision, para. 12).

[13] Impugned Decision, para. 31.

[14] Prlić Decision on Admission of Transcript [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 57. See, also the Trial Chamber’s statement in the Certification Decision, p. 2, that Bulter’s evidence “can be redacted or disregarded if the Trial Chamber’s finding is reversed”.

[15] Prlić Decision on Admission of Transcript, para. 57.

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ICTR Rule Rule 89(C);
Rule 94 bis
ICTY Rule Rule 89(C);
Rule 94 bis
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Decision on Expert Witness - 30.01.2008 POPOVIĆ et al.
(IT-05-88-AR73.2)

27. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide some specialized knowledge – be it a skill or knowledge acquired through training[1] – that may assist the fact finder to understand the evidence presented.[2] It is established that:

Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience. Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[3]

29. The Appeals Chamber is of the opinion that the fact that Butler may have acquired his knowledge on the organization and the general procedures of the VRS solely as a result of his six years of employment with the Prosecution – an allegation which is not substantiated by the Appellants – does not in itself affect his qualification as an expert. In this respect, the Appeals Chamber underlines the Trial Chamber’s ruling that before admitting Butler’s evidence, it will have to determine, inter alia, “whether there is transparency in the methods and sources used by the expert witness, including the established or assumed facts on which the expert witness relied”.[4] The Appeals Chamber further recalls that firsthand knowledge or experience is not required for qualifying as an expert;[5] thus the Appellants’ argument related to Butler’s lack of working experience with the VRS is without merit.

[1] Nahimana et al. Appeal Judgement, para. 198; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Oral Ruling on Qualification of Expert Witness Mbonyinkebe, 2 May 2005; Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Oral Decision on the Qualification of Mr. Edmond Babin as Defence Expert Witness, 13 April 2005, para. 5; Brđanin Decision, p. 4; Prosecutor v. Stanislav Galić, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003, p. 3.

[2] Semanza Appeal Judgement [Laurent Semanza v. Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005], para. 303. See also Nahimana et al. Appeal Judgement, para. 198; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; Akayesu Decision, p. 2.

[3] Semanza Appeal Judgement, para. 303; Nahimana et al. Appeal Judgement, para. 198.

[4] Impugned Decision, paras 30-31 (footnotes omitted).

[5] See, supra, para. 27.

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Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

303. The purpose of expert testimony is to supply specialized knowledge that might assist the trier of fact in understanding the evidence before it.  Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience.  Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the layperson’s ken.    

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Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

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

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

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

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

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Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

225. […] the Appeals Chamber recalls that expert witnesses are ordinarily afforded significant latitude to offer opinions within their expertise; their views need not be based upon first-hand knowledge or experience.[1] In general, an expert witness lacks personal familiarity with the particular case and offers a view based on his or her specialised knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[2]

[1] Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para. 303.

[2] Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para. 303.

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

40. [...] Rule 94bis contains nothing which is inconsistent with the application of Rule 92bis to an expert witness.  Indeed, Rule 92bis expressly contemplates that witnesses giving evidence relating to the relevant historical, political or military background of a case (which is usually the subject of expert evidence) will be subject to its provisions.  There is nothing in either Rule which would debar the written statement of an expert witness, or the transcript of the expert’s evidence in proceedings before the Tribunal, being accepted in lieu of his oral testimony where the interests of justice would allow that course in order to save time, with the rights of the other party to cross-examine the expert being determined in accordance with Rule 92bis.  Common sense would suggest that there is every reason to suggest that such a course ought to be followed in the appropriate case.

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ICTR Rule Rule 92 bis;
Rule 94 bis
ICTY Rule Rule 92 bis;
Rule 94 bis
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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

210.    The Appeals Chamber emphasizes that once having heard testimonial evidence as proffered by the parties, it is up to the Trial Chamber to decide, by a reasoned opinion, to accept or to reject, in whole or in part, the testimony of an expert witness, provided the reasons for its decision are reasonable.[1] In this regard, the Appeals Chamber notes that the assessment of the credibility of evidence given by an expert falls clearly to the trier of fact.

[1] Tadić Appeal Judgement, para. 64, and Aleksovski Appeal Judgement, para. 63.

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Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

66.     Also in this category are the 11 expert witnesses whom the Appellant would now like to call. […] Barring exceptional circumstances, which are not made out in this case, it is difficult to think of circumstances which would show that expert witnesses were not available to be called at trial despite the exercise of reasonable diligence. The evidence of these experts, and the related documents […], cannot be said to have been unavailable at trial for the purposes of Rule 115.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

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ICTR Rule Rule 115 ICTY Rule Rule 115