Putting the nature of the case to the witness

Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

22. The Appellant submits that the Trial Chamber erred in law in failing to conclude that those portions of his testimony that the Prosecution did not cross-examine were established.[1] Referring to Rule 90(G)(ii) of the Rules, the Rutaganda Appeal Judgement,[2] and Canadian jurisprudence, he submits that the “failure to cross-examine a witness on an aspect of his testimony implies a tacit acceptance of the truth of the witness’s evidence on the matter”.[3]

24. The Appeals Chamber finds that Rule 90(G)(ii) of the Rules does not support the Appellant’s contention [. The rule merely states that “[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.” The ICTY Appeals Chamber has previously stated, regarding the similarly worded Rule 90(H)(ii) of the ICTY Rules, that it:

seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[4]

The central purpose of this rule is to “promote the fairness of the proceedings by enabling the witness […] to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[5]

26. For the requirements of this rule to be fulfilled, there is no need for the cross-examining party to explain every detail of the contradictory evidence. Furthermore, the rule allows for some flexibility depending on the circumstances at trial.[6] This therefore implies that if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[7]

27. The Appeals Chamber notes that the term “witness” under Rule 90 of the Rules does not always equate to an accused who chooses to testify. There is a fundamental difference between the accused, who might testify as a witness if he so chooses, and a witness. The Tribunal “does not reflexively apply rules governing any other witness to an accused who decides to testify in his own case”.[8] When an accused testifies in his own defence, he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.[9] Furthermore, the accused’s version of the events is for the most part challenged by the Prosecution, while his testimony is aimed at responding to Prosecution’s evidence and allegations. In these circumstances, it would serve no useful purpose to put the nature of the Prosecution’s case to the accused in cross-examination. The Appeals Chamber therefore does not find that Rule 90(G)(ii) of the Rules was intended to apply to an accused testifying as a witness in his own case. The Appeals Chamber notes that, in any event, Rule 90(G)(ii) of the Rules is silent on any inferences that may be drawn by a Trial Chamber from a witness’s testimony that is not subject to cross-examination.

28. The Appeals Chamber further notes that the relevant holding of the Appeals Chamber in Rutaganda reads: 

La Chambre d’appel estime que, d’une manière générale, une partie qui ne contre-interroge pas un témoin sur une déclaration donnée admet tacitement la véracité de la déposition dudit témoin sur ce point. La Chambre de première instance n’aurait donc pas commis une erreur de droit en l’espèce, en induisant du fait que l’Appelant n’avait pas contre-interrogé le témoin Q sur la distribution d’armes, que celui-ci ne contestait pas la véracité de la déposition dudit témoin sur ce point. Ceci étant dit, il ne ressort pas clairement du Jugement que la Chambre de première instance est effectivement parvenue à une telle conclusion. Il semble plutôt qu’elle se soit limitée à noter que l’Appelant n’avait pas contre-interrogé le témoin Q sur la question visée, sans toutefois en tirer quelques conséquences que ce soit dans ses conclusions factuelles. De l’avis de la Chambre d’appel, cet argument est dépourvu de fondement.[10]

29. The Appeals Chamber recalls that in Kamuhanda, the Appeals Chamber stated that this holding in Rutaganda “does not stand for the proposition that a trier of fact must infer that statements not challenged during cross-examination are true,” and that it is within the discretion of a Trial Chamber to decline to make such an inference.[11] Thus, the Appeals Chamber emphasizes that a Trial Chamber has the discretion to infer (or not) as true statements unchallenged during cross-examination, and to take into account the absence of cross-examination of a particular witness when assessing his credibility.[12]

30. The Appeals Chamber notes that in this instance, the Appellant, who testified at the end of the case, had consistently denied the allegations against him throughout the proceedings and claimed that he did not know anything about the crimes alleged.[13] The Prosecution cross-examined the Appellant on a number of issues.[14] Under this sub-ground of appeal, the Appellant has failed to point to any finding allegedly affected by the lack of cross-examination by the Prosecution but merely makes a general reference to his oral arguments at trial.[15] In these circumstances, the Appellant has not demonstrated that the Trial Chamber committed an error of law in not considering as established those portions of his testimony on which the Prosecution did not cross-examine him.[16]

See also, below under “Development of the existing case-law”.

[1] Notice of Appeal [Defence Notice of Appeal, 14 January 2008], para. 25. The authoritative French version of this paragraph reads: “La Chambre de première instance a erré en droit en [ne] concluant pas que les portions du témoignage de l’appelant sur lesquelles il n’avait pas été contre-interrogé devraient être tenues pour avérées.” The English translation inaccurately reads: “The Trial Chamber erred in law in finding that those portions of the Appellant’s testimony on which he was not cross-examined were to be considered established”, while it should read: “The Trial Chamber erred in law in not finding that those portions of the Appellant’s testimony on which he was not cross-examined were to be considered established”. Appellant’s Brief, paras. 25, 26.

[2] Rutaganda Appeal Judgement, para. 310.

[3] Appellant’s Brief, para. 26 (citation omitted); Notice of Appeal, para. 26.

[4] Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-AR73.7, Decision on the Interlocutory Appeal against a Decision of the Trial Chamber, as of Right, 6 June 2002, p. 4.

[5] On this issue, the Appeals Chamber approves of the language used by the Trial Chamber in Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Order Setting Forth Guidelines for the Procedure Under Rule 90(H)(ii), 6 March 2007 (“Popović Order”), para. 1.

[6] On this issue, the Appeals Chamber approves of the language used by the Trial Chamber in Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-T, Decision on “Motion to Declare Rule 90(H) (ii) Void to the Extent It Is in Violation of Article 21 of the Statute of the International Tribunal” by the Accused Radoslav Brđanin and on “Rule 90(H) (ii) Submissions” by the Accused Momir Talić, 22 March 2002 (“Brđanin Decision”), paras. 13, 14; Prosecutor v. Naser Orić, Case No. IT-03-68-T, Decision on Partly Confidential Defence Motion Regarding the Consequences of a Party Failing to Put its Case to Witnesses Pursuant to Rule 90(H)(ii), 17 January 2006, pp. 1-2; Popović Order, para. 2.

[7] The Appeals Chamber notes that the case of Browne v. Dunn (on which the Brđanin Decision, confirmed by the Appeals Chamber, relies) states that the requirement to put the case to the witness does not apply when it is “otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it”. Browne v. Dunn (1893) 6 R. 67 (H.L.).

[8] Prlić et al, Decision of 5 September 2008, para. 11.

[9] The question of the lack of notice will be treated separately by the Appeals Chamber , see below Chapter VIII(D) and Chapter X.

[10] Rutaganda Appeal Judgement, para. 310 (footnote omitted). The Appeals Chamber notes that the English version does not accurately reflect the French authoritative version. The English version reads: “The Appeals Chamber considers that a party who fails to cross-examine a witness upon a particular statement tacitly accepts the truth of the witness’s evidence on the matter. Therefore the Trial Chamber did not commit an error of law in the case at bar, in inferring that the Appellant’s failure to cross-examine Witness Q on the weapons distribution meant that he did not challenge the truth of the witness’s evidence on the matter. That being said, it is unclear from the Trial Judgement whether the Trial Chamber drew inferences from this failure. Rather, it appears that it only noted that the Appellant failed to cross-examine Witness Q regarding the specific statement, without making any inferences in its factual conclusions. It is the opinion of the Appeals Chamber that this argument is without foundation.” In order to fully reflect the nuances introduced by the Appeals Chamber in its finding, the English translation of the first two sentences of this paragraph should read: “The Appeals Chamber considers that, [in general], a party who fails to cross-examine a witness upon a particular statement tacitly accepts the truth of the witness’s evidence on the matter. Therefore the Trial Chamber [would have] not commit[ted] an error of law in the case at bar, in inferring that the Appellant’s failure to cross-examine Witness Q on the weapons distribution meant that he did not challenge the truth of the witness’s evidence on the matter.”

[11] Kamuhanda Appeal Judgement, para. 204.

[12] Kajelijeli Appeal Judgement, para. 26; Nahimana et al. Appeal Judgement, paras. 820, 824 and fn. 1893.

[13]T. 21 August 2006; T. 22 August 2006; T. 23 August 2006.

[14]T. 22 August 2006 pp. 31-61; T. 23 August 2006 pp. 1-44.

[15] See Notice of Appeal, paras. 24-26; Appellant’s Brief [Appellant’s Brief, 7 April 2008], paras. 25, 26.

[16] Any specific arguments raised by the Appellant in relation to this allegation will be dealt with below in the respective Chapters.

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ICTR Rule Rule 90(G) ICTY Rule Rule 90(H)
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

Agreeing with a similar finding of the ICTR Appeals Chamber in Karera, the Appeals Chamber held that Rule 90(H)(ii) of the Rules does not apply to an accused testifying in his own case.

367. The Appeals Chamber recalls that this Rule seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[1]

Hence, the Appeals Chamber agrees that the central purpose of the Rule in question “is to promote the fairness of proceedings by enabling the witness on the stand to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[2]

368. The Appeals Chamber stresses that, in order to fulfil the requirements of Rule 90(H)(ii) of the Rules, it is sufficient that the cross-examining party put the nature of its case to the witness, meaning the general substance of its case conflicting with the evidence of the witness, chiefly to protect this witness against any confusion.[3] There is no need for the cross-examining party to explain every detail of the contradictory evidence, and the Rule allows for some flexibility depending on the circumstances of the trial.[4] In particular, if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[5]

The Appeals Chamber confirmed, however, that this provision does not apply when an accused testifies in his own defence as “he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.” (para. 369, citing Karera Appeal Judgement, para. 27).

[1] Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-AR73.7, Decision on the Interlocutory Appeal against a Decision of the Trial Chamber, as of right, 13 June 2002 (“Brđanin and Talić Appeal Decision”), p. 4.

[2] Karera Appeal Judgement, para. 25; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Order Setting Forth Guidelines for the Procedure under Rule 90(H)(ii), 6 March 2007 (“Popović et al. Order setting Guidelines”), para. 1 (emphasis added). See also Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-T, Decision on “Motion to Declare Rule 90(H)(ii) Void to the Extent it is in Violation of Article 21 of the Statute of the International Tribunal” by the Accused Radoslav Brđanin and on “Rule 90(H)(ii) Submissions” by the Accused Momir Talić, 22 March 2002 (“Brđanin and Talić Decision on Rule 90(H)(ii)”), paras 13, 17.

[3] Prosecutor v. Naser Orić, Case No. IT-03-68-T, Decision on Partly Confidential Defence Motion Regarding the Consequences of a Party Failing to Put its Case to Witnesses Pursuant to Rule (90)(H)(ii), 17 January 2006 (“Orić Decision on Rule 90(H)(ii)”), pp. 1-2. See also Popović et al. Order setting Guidelines, para. 2; Prosecution v. Stanislav Galić, Case No. IT-98-29-T, T. 6465 (2 April 2002); Brđanin and Talić Decision on Rule 90(H)(ii), paras 13, 17.

[4] Karera Appeal Judgement, para. 26; Brđanin and Talić Decision on Rule 90(H)(ii), para. 14. See also Orić Decision on Rule 90(H)(ii), pp.1-2, and Popović et al. Order setting Guidelines, para. 2.

[5] See, for instance, Browne v. Dunn, (1893) 6 R. 1894, 67 (recognised as the leading case on this question in the common law jurisdictions having adopted a rule similar to Rule 90(H)(ii) of the Rules), where Lord Herschell (L.C.) states at p. 71 that the requirement to put the case to the witness does not apply when it is

otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it.   

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ICTR Rule Rule 90(G) ICTY Rule Rule 90(H)