Will-say statement

Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte

180. The Appeals Chamber recalls that Rule 90(A) of the Rules provides that witnesses shall be heard by the trial chamber. Prior out-of-court witness statements are normally relevant only as necessary for the trial chamber to assess credibility.[1] Witness statements used for this purpose normally bear the witness’s signature or some other indicator that their content reflects what the witness said.[2] A will-say statement, however, differs from a typical statement given by a witness. In the practice of the Tribunal, will-say statements are primarily communications from one party to another and the trial chamber concerning aspects of a witness’s anticipated testimony that were not mentioned in previously-disclosed witness statements.[3] Will-say statements are generally communicated by counsel upon learning of new details during the preparation of a witness for examination,[4] and are not necessarily acknowledged by the witness. Therefore, will-say statements have no probative value except to the extent that the witness confirms their content. In the instant case, Witness AKK explicitly repudiated the content of the unsigned will-say statement, the contents of which were allegedly unknown to her.[5] Given the lack of any explanation for why it was nonetheless acceptable to rely on the unsigned and repudiated will-say statement, the Appeals Chamber finds that the Trial Chamber erred in law in relying on the will-say statement to discredit aspects of Witness AKK’s testimony.

[1] Simba Appeal Judgement, para. 103, quoting Akayesu Appeal Judgement, paras. 134, 135.

[2] For example, some statements are transcriptions of interviews or are signed by a domestic judicial authority.

[3] See, e.g., The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Decision on the Admissibility of Evidence of Witness KDD, 1 November 2004 (“Simba Admissibility of Evidence Decision”), paras. 9-11.

[4] Simba Admissibility of Evidence Decision, para. 9.

[5] See [The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T] T. 26 November 2008 pp. 55-58.

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