|Appeal Judgement - 26.05.2003||
34. With regard to hearsay evidence, it should be pointed out that this is not inadmissible. The Trial Chamber has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case, in accordance with the provisions of Rule 89 of the Rules.
35. The Appeals Chamber observes that in the instant case, as in Akayesu, some of Rutaganda’s grounds of appeal concern the admission of hearsay evidence in the form of live testimony by witnesses on events which they had not witnessed personally. The Appeals Chamber concurs with the analysis made by the Appeals Chamber in the Akayesu Appeal Judgement wherein it was held that when a witness testifies, their evidence is admitted in that, in the absence of timely objection, it becomes part of the trial record, as reflected in the transcripts, and that the main safeguard applicable to the reliability of the evidence in this case is the preservation of the right to cross-examine the witness on the hearsay evidence which has been called into question. The Appeals Chamber also holds that in these circumstances, although the decision will always depend on the facts of the case, it is unlikely, considering the stage of the proceedings and, in particular, in the absence of any objection, that a Trial Chamber would find that the live testimony of a witness it had just heard, was so lacking in terms of indicia of reliability as to be inadmissible.
See also para. 150. At para. 153, the Appeals Chamber recalled that “the inclusion of witness statements containing hearsay evidence in the trial record does not ipso facto entail one conclusion or another as to their reliability or probative value.” See also paras. 207, 265, 311.
 Akayesu Appeal Judgement, para. 288.
 Ibid, para. 287.
 This right is recorded under Article 20(4)(e) of the Statute which provides that a person against whom a charge has been brought shall be entitled to “examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her” and under Rule 85(B) of the Rules which provides, inter alia, that: “examination-in-chief, cross-examination and re-examination shall be allowed in each case.”
|ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)|
|Reconsideration Appeal Decision - 03.11.2009||
PRLIĆ et al.
27. Contrary to the arguments of the Appellant, the Trial Chamber did not require strict proof of reliability, but some indicia of prima facie reliability. The Trial Chamber considered that crucial to an informed assessment of the prima facie relevance of proposed documentary evidence is the provision of such basic information as the sources and dates of the documents in question, information which, in essence, allows the entities responsible for the contents of the documents and the periods in time to which those contents relate, to be identified. It found that the documents excluded on this basis did “not contain the indicia necessary for the Chamber to rule on the admission of a piece of evidence.” This finding was well within the exercise of the Trial Chamber’s discretion and the Appellant has failed to demonstrate any error in that regard.
33. Relevance and probative value are the two prerequisites of admissibility under Rule 89(C) of the Rules. In order to assess whether proposed evidence satisfies both prerequisites, consideration is given to an item of evidence’s prima facie reliability. Prima facie reliability does not however constitute a separate and additional prerequisite under Rule 89(C) of the Rules, but is an underlying factor relevant in determining whether the prerequisites of relevance and probative value have been met. Thus, prima facie reliability “is a factor in the assessment of its relevance and probative value”. Also, definitive proof of reliability is not required at the admissibility stage. Rather, it is an issue to be assessed at a later stage in the course of determining the weight to be attached to the evidence after its admission.
 Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Prlić Defence Motion for Admission of Documentary Evidence, 6 March 2009, para. 28. Thus, for example, proposed exhibit 1D02359 comprises a newspaper article, which lists only the names of its three authors. It does not provide the name of the publication with which the authors were affiliated, nor does it refer to the publication date, or a date or period in time to which the events and issues discussed in the article relate.
 Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33 and 266; Delalić Decision, para. 20; Prlić 12 January Decision, para. 15; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decisión on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, (“Popović Decisión”), para. 22.
 Prosecutor v. Mladen Naletilić, a.k.a. “Tuta”, Vinka Matinović, a.k.a. “[tela”, Case No. IT-98-34-A, Judgement, 3 May 2006, para. 402. (Emphasis inserted). See also Delalić Decision, para. 20.
 Popović Decision, para. 22.
|ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)|
|Decision on Statement of Deceased Witness - 21.07.2000||
KORDIĆ & ČERKEZ
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20. Rule 89(C) grants the Trial Chambers broad discretion. The bounds of this discretion, however, are suggested by Rule 89(B), which provides that “[i]n cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” A Trial Chamber’s exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible.
22. […] Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable. A starting point is the requirements of these other rules [Rules 71, 71bis, 94bis, 94ter] that expressly allow for departures from the principle of live evidence. Rule 89(C) may indeed permit some relaxation of these requirements, but it would be odd to find that a statement that met none of the requirements of those other rules was nonetheless admissible under Rule 89(C) without any other compensating evidence of reliability. […]
24. […] [T]he reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that is not “probative” and is therefore inadmissible.
|ICTR Rule Rule 89 ICTY Rule Rule 89|
|Appeal Judgement - 16.11.2001||
47. In the instant case, the Trial Chamber noted that “the burden of proof of the reliability … of the document lies on the party that seeks to rely on the document”, and that the requisite standard of proof was proof on the balance of probabilities. Without ruling on the issue as to whether such was the appropriate standard, the Appeals Chamber holds that the Trial Chamber did not err in stating that for a document to be admissible as evidence, the Party relying on it must establish that it has sufficient indicia of reliability.
48. The Trial Chamber also found that, “the standard of proof required for admissibility should be lower than the standard of proof required in the final determination of the matter at hand through the weighing up of the probative value of all the evidence before the Chamber.” It is the view of the Appeals Chamber that, in that sentence, the Trial Chamber was making a distinction between admissibility and the final assessment of evidence.
49. As to the second argument that the Trial Chamber erred in stating that the source of a document could be important in determining the reliability of a document, the Trial Chamber held that:
…the source of a document may, taken in context, impact upon the assessment of the reliability or credibility (or both) of the document. For example, evidence produced in support of a defence of alibi from a source other than the Accused may be of greater probative value than evidence provided or produced by the Accused. While noting this, the Chamber emphasizes that such an understanding of the relationship between the source of documentary evidence and its probative value must in no way be interpreted as a presumption of the guilt of the Accused. The Chamber has not, in any way, allowed its assessment of the probative value of documentary evidence to interfere with the right of the Accused to a fair trial.
50. The first and second arguments overlap. Again, Musema has not given any instances where he attempted to adduce evidence before the Trial Chamber, which evidence the Trial Chamber rejected on the grounds that Musema himself was the source thereof. Every Trial Chamber is required, in assessing evidence, to determine its overall reliability and credibility. In the instant case, the Trial Chamber stated that it had “assessed the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial.” It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document. Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.
 Trial Judgement, paras. 55 and 56.
 Ibid., para. 56.
 Ibid., para. 63.
 Ibid., para. 41.
|Decision Concerning Rule 92bis(C) - 07.06.2002||
29. Unlike the civil law, the common law permits hearsay evidence only in exceptional circumstances. When many common law jurisdictions took steps to limit the rule against hearsay by permitting the admission of written records kept by a business as evidence of the truth of what they stated notwithstanding that rule, they invariably excluded from what was to be admissible under that exception any documents made in relation to pending or anticipated legal proceedings involving a dispute as to any fact which the document may tend to establish. This exclusion reflected the fact that such documents are not made in the ordinary course by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. It also rested upon the recognised potential in relation to such documents for fabrication and misrepresentation by their makers and of such documents being carefully devised by lawyers or others to ensure that they contained only the most favourable version of the facts stated.
30. The decision to encourage the admission of written statements prepared for the purposes of such legal proceedings in lieu of oral evidence from the makers of the statements was nevertheless taken by the Tribunal as an appropriate mixture of the two legal systems, but with the realisation that any evidentiary provision specifically relating to that material required considerable emphasis upon the need to ensure its reliability. This is particularly so in relation to written statements given by prospective witnesses to OTP investigators, as questions concerning the reliability of such statements have unfortunately arisen, from knowledge gained in many trials before the Tribunal as to the manner in which those written statements are compiled. Rule 92bis has introduced that emphasis.
 See, generally, Myers v Director of Public Prosecutions  AC 1001.
 Kordić & Čerkez Decision, par 27; Prosecutor v Naletilić & Martinović, IT-98-34-T, Confidential Decision on the Motion to Admit Statement of Deceased Witnesses Kazin Mežit and Arif Pasalić, 22 Jan 2002, p 4.
 In the usual case, the witness gives his or her statement orally in B/C/S, which is translated into English and, after discussion, a written statement is prepared by the investigator in English. The statement as written down is read back to the witness in English and translated orally into B/C/S. The witness then signs the English written statement. Some time later, the English written statement is translated into a B/C/S written document, usually by a different translator, and it is this third stage translation which is provided to the accused pursuant to Rule 66. Neither the interview nor the reading back is tape-recorded to ensure the accuracy of the oral translation given at each stage.