1103. […] The Appeals Chamber considers that the component pieces of circumstantial evidence on the issue of identification are to be considered in relation to all other pieces of circumstantial evidence bearing on the issue, and not in isolation.[1] Whereas the assessment of an evidentiary factor in a vacuum might fail to establish an essential matter, the weight of all relevant evidence taken together can conclusively prove the same matter beyond reasonable doubt.[2] […]

See also para. 1150.

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] […]

382. The Appeals Chamber recalls that where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber needs to “carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence”.[1] The Appeals Chamber stresses that this is required only when a witness’s identification was made under difficult circumstances, such as in the dark or as a result of a fleeting glance.[2] […]

392. […] The Appeals Chamber recalls that identification hearsay evidence may, depending on the circumstances of the case, require other credible or reliable evidence in order to support a finding of fact beyond reasonable doubt.[3] […]

The Appeals Chamber found that a statement admitted pursuant to Rule 92 bis may only be used as the sole basis for a conviction when the accused was provided a chance to cross-examine the witness in question.

FN486. [… The] Trial Chamber admitted this witness statement under Rule 92 bis of the Rules, without providing Martić the opportunity to cross-examine the witness in question.[1] As noted above, much of the findings in relation to the crimes in Cerovljani […] depend exclusively on this statement, with no corroboration. Thus, this evidence is pivotal to Martić’s responsibility and, lacking sufficient corroboration, Martić should have been granted the opportunity to cross-examine the witness in question.[2] The Appeals Chamber finds that the failure to accord Martić a right to cross-examine this witness constitutes a miscarriage of justice and accordingly his convictions for the crimes in Cerovljani would have been reversible on this ground, too.

27. […] Relying on Wigmore’s Evidence in Trials at Common Law,[1] the Appellant concludes that because Milan Babić’s death, which resulted in the prevention or curtailment of the cross-examination of his evidence, was caused by “the voluntary act of the witness himself,” namely his suicide, the examination-in-chief must be struck out.[2]

29. […] In his appeal, armed with the Report’s finding that Milan Babić did in fact commit suicide, the Appellant attempts to rely on Wigmore for the general principle that evidence given by a witness in direct examination who commits suicide prior to, or during his cross-examination, should be excluded.

30. The Appeals Chamber concludes that the International Tribunal need not adopt this approach and finds that, despite Milan Babić’s death having been ruled a suicide, it remained within the Trial Chamber’s discretion to retain the evidence of Milan Babić on the basis that the interruption of his cross-examination, the majority of which had been completed, was unforeseeable and unavoidable.

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.

31. The Appeals Chamber will consider these challenges in turn. At the outset, it recalls that it is within the discretion of a trial chamber to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[1] The Appeals Chamber will defer to a trial chamber’s judgement on issues of credibility, including its resolution of disparities among different witnesses’ accounts, and will only find an error of fact if it determines that no reasonable trier of fact could have made the impugned finding.[2] Furthermore, corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[3]

48. The Appeals Chamber recalls that a trial chamber may rely on part of a witness’s testimony and reject other parts.[4] Furthermore, the Appeals Chamber notes that the Trial Chamber only relied on Witness SLA’s testimony where corroborated.[5] The Trial Chamber was therefore entitled to disregard Witness SLA’s claim of torture and still rely on his evidence with respect to the 25 April and 11 May Killings.

154. Regarding Setako’s contention that the Trial Chamber erred in its reasoning, the Appeals Chamber recalls that the task of weighing and assessing evidence lies primarily with the trier of fact.[6] Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a trial chamber.[7] It will only interfere where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.[8]

222. Setako’s submission that the Trial Chamber erred in dismissing his evidence for lack of corroboration due to contradictions in the testimonies of Witnesses SLA and SAT is unclear. If Setako claims that the Trial Chamber was compelled to accept his testimony because Witnesses SLA’s and SAT’s testimonies deviated from each other, the Appeals Chamber disagrees. The Appeals Chamber recalls that a trial chamber has the discretion to decide on the weight, if any, to accord to a piece of evidence, regardless of whether or not that evidence is corroborated.[9] This discretion is not affected by purported inconsistencies in other evidence.

132. The Appeals Chamber recalls that it has already dismissed the argument that as a matter of law documentary evidence should be preferred to oral testimony.[1] Here the Appellant further submits that because the Prosecution presented a document in evidence in another case before the Tribunal, it must be authentic, probative and subject to judicial notice.[2] The Appeals Chamber rejects this argument as a matter of principle: the probative value of a document may be assessed differently in different cases, depending on the circumstances. In the instant case, the Trial Chamber considered Exhibit D147,[3] a document allegedly showing the location of Rwandan Army officers as of 5 March 1994, and found that, in the context of the events which followed the death of the President of Rwanda, the locations of officers in mid-April 1994 could have been different from those mentioned in this document.[4] The Appellant has failed to demonstrate that no reasonable Trial Chamber could have reached the same conclusion. Accordingly, this sub-ground of appeal is dismissed.

The Appellant asserted that the rule for assessing evidence ranks documentary evidence above oral evidence.[1]

103. […] Contrary to the Appellant’s submissions, there is a general,[2] though not absolute,[3] preference for live testimony before this Tribunal. […] This is consistent with Rule 90(A) of the Rules which states in part that witnesses shall, in principle, be heard directly. As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies. It is within the discretion of the Trial Chamber to evaluate any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the “fundamental features” of the evidence. It may do this by relying on live testimony or documentary evidence.[4]

9.       […] [M]edia reports have to be handled very carefully as far as their evidential weight is concerned.  But they are not to be excluded altogether.[1] […]

27. Finally, under this ground of appeal, the Appellant raises the issue that the admission of the tendered material was denied by the majority of the Trial Chamber and not unanimously, thus denying the dissenting Judge the possibility to refer to those materials when providing the reasons for his judgement.[1] [see infra, under “Judges / Decisions by majority”] In this case, the Trial Chamber decided, albeit by majority, not to admit certain documents tendered into evidence. The effect of this decision is such that these documents do not form part of the record. Several venues are open for the Appellant to challenge this decision, including motions for reconsideration and/or review, interlocutory appeal or appeal on the merits. However, if such challenges fail, the parties and the Judges are bound to refer themselves to the record of the case. The suggestion that all tendered materials be admitted into evidence for the sake of forming an exhaustive record contradicts the logic of having admissibility criteria and would not be beneficial to the effective administration of justice.

57. The Appeals Chamber notes that the Trial Chamber did refer to the principle according to which untested evidence relating to the acts and conduct of the accused may be admitted into the trial record, but must be corroborated by other evidence in order to form, if it comes to that, a basis for a conviction of an accused.[1] This principle is undoubtedly premised on the recognition that professional judges are better able to weigh evidence and consider it in its proper context than members of a jury. Furthermore, as opposed to a jury’s verdict, professional judges have to write a reasoned decision, which is subject to appeal.

58. The principle of fairness that a conviction may not be based solely or in a decisive manner on the deposition of an individual whom the accused has had no opportunity to examine[2] is not equivalent to the restriction that material related to the acts and conduct of the accused is inadmissible except through “live” testimony.[3] The former principle is both wider and narrower in scope.

59. On the one hand, “acts and conduct” of the accused have been interpreted extensively in the jurisprudence of the Tribunal.[4] The scope of the principle expressed above, however, appears to cover more than just this material: it clearly applies to any “critical element” of the Prosecution case,[5] that is, to any fact which is indispensable for a conviction (including those used as an aggravating circumstance in sentencing).[6] These are, in fact, the findings that a trier of fact has to reach beyond reasonable doubt. It would run counter to the principles of fairness discussed above to allow a conviction based on evidence of this kind without sufficient corroboration. In other words, the scope of the rule that sufficient corroboration is necessary has to be expanded to cover evidence beyond that relating to the acts and conduct of the accused stricto sensu.

60. On the other hand, a transcript of the questioning of an accused might contain evidence of his acts and conduct that do not relate to the allegations in the case at hand and may not, as such, form any basis for his conviction.

43. […] While one of the purposes of Rule 92bis is to place some restrictions on the admissibility of hearsay evidence,[1] its general aim at the time of its introduction was to make trials more expeditious, while not preventing examination and cross-examination of the witness as such.[2] Rule 92bis even states that a Trial Chamber “may dispense” with the attendance of a witness in person – thus providing a clear indication that there is a choice to be made, in order to properly balance the interests to an expeditious trial with the rights of the accused.[3]

40. The Rules do not provide explicitly for the case of a transcript of the questioning of a suspect to be admitted into evidence in the trial of that person and other accused. A Chamber is therefore called in such a case to apply rules of evidence that “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”.[1] This is a delicate exercise for, while the system under which the Tribunal’s rules of evidence operates is predominantly adversarial, the jurisprudence – and the Rules themselves – have recognized from the beginning the necessity, and desirability, of certain features which do not accord with a strictly adversarial criminal procedure.

41. One of the central tenets of the procedure before the Tribunal is the right of all accused to a fair and public hearing.[2] While such a hearing generally entails the examination of evidence against the accused, this principle is not absolute.[3] In fact, there are various provisions that, by balancing the rights of the accused against other relevant interests, safeguard the overall fairness of the proceedings. The Appeals Chamber recalls that this is a complex feat, since under the cloak of “fairness”, a court may be led to construe troublesome curtailments of the rights of the accused in specific instances, which in turn might impact on fundamental rights of the accused. Trial Chambers are called to be vigilant and effective in protecting these rights.

43. The Appeals Chamber considers the analysis of Rule 92bis inapposite to the present situation. Rule 92bis provides an answer to a question different, both in aim and in scope, from the one posed by the present situation. […]

44. Moreover, as the Trial Chamber correctly noted, the transcript of a questioning taken pursuant to Rules 42 and 43 is not a “statement” according to Rule 92bis.[4] A recorded questioning includes, by definition, all questions, all answers, every pause and request for clarifications by all attendees. The parties and the Judges also have the possibility to listen to the audio recording itself, which might provide additional guidance in the understanding of the overall demeanor of the questioned person as well as of those questioning him. The danger that the Prosecution uses this type of questioning to “craft” evidence against the (other) accused persons at trial as argued by the Joint Defence is, in such instances, reduced to a minimum. In this sense, a recorded questioning may be considered more reliable than a statement prepared and then admitted under Rule 92bis.

45. […] Conversely, the questioning of a suspect pursuant to Rules 42 and 43 affords stringent safeguards in order to protect the questioned individual’s right not to incriminate himself.[5] Thus, the suspect is motivated to be more circumspect in his responses and, while he might wish to try and shift the blame to other individuals if he considers himself in a difficult position,[6] he will certainly bear in mind that the Prosecution has, at its disposal, a variety of sources to check the accuracy of his words. In other words, and bearing in mind the different purpose behind the questioning of a suspect as opposed to the gathering of a witness statement by the Prosecution, in cases similar to the one under review here there is undoubtedly less concern about a “collaborative effort” between the suspect and the Prosecution, than in cases where the Prosecution approaches a prospective witness. Of course, this does not say much about the veracity of the answers and explanations provided by the suspect who was being questioned – but this is not determinative of the issue, in this case.

47. A trier of fact is of course called upon to carefully consider the context in which the suspect was questioned. Nonetheless, a transcript of a suspect questioning is different from a statement introduced at trial pursuant to Rule 92bis. This shows that there are substantial differences between the transcript of a questioning conducted according to Rules 42 and 43 and a statement prepared with a view to introducing it into the trial proceedings pursuant to Rule 92bis.

At the outset, the Appeals Chamber specified that its use of the term “fresh evidence”[1] referred, for the purposes of the present decision, to material that was not included in the Prosecution Rule 65 ter list, not admitted during the Prosecution’s case-in-chief but tendered by the Prosecution when cross-examining Defence witnesses. It further clarified that, in this decision, the term was not limited to the material that was not available to the Prosecution during its case-in-chief (para. 15).

23. The Appeals Chamber recalls that, “[a]s a general rule, the Prosecution must present the evidence in support of its case during its case in chief”.[2] This stems from the rights of the accused under Article 21(4)(b) and (e) of the Statute pursuant to which “when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it”.[3] Consequently, when the Prosecution seeks to introduce fresh evidence, after the closure of its case-in-chief, it has to specifically justify its request.[4] The Trial Chamber may authorize the deviation from the said sequence if it is satisfied that it is in conformity with the other applicable provisions, notably Rule 89(D) of the Rules. The Impugned Decision is correctly premised on this principle noting that, pursuant to Rule 85(A) of the Rules, the sequence of the presentation of evidence may be changed if the Trial Chamber deems it to be in the interests of justice.[5] Therefore, the Appeals Chamber cannot agree with the Appellants that there is an absolute ban for the Prosecution to tender evidence once its case presentation has been closed (save for rebuttal and re-opening). In sum, the Trial Chamber has the discretion to admit fresh evidence under Rule 89(C) and (D) of the Rules, taking into account both the probative value of that evidence and the need to ensure a fair trial.[6] Where the admittance of this evidence constitutes a variation of the sequence of the presentation of evidence set out in Rule 85(A) of the Rules, the Trial Chamber may exercise its discretion to admit the evidence only where it is in the interests of justice.[7]

24. In order to clarify the circumstances under which it would allow admission of fresh evidence after the closure of the Prosecution case-in-chief, the Trial Chamber emphasized that it would do so only in exceptional circumstances where the interests of justice so require, such as “the importance of the ‘new document’”. It went on to specify that, with respect to material aimed at establishing the guilt of an accused, the Prosecution must also “explain to the Chamber when and by which means it obtained these documents, when it disclosed them to the Defence and why they are being offered only after the conclusion of its case”. Finally, the Trial Chamber stated that it would proceed with the assessment of such requests on a case-by-case basis, after having permitted the Defence to challenge the evidence, particularly bearing in mind the potential infringement on the rights of the accused caused by the sought admission. The Appeals Chamber is satisfied that this careful approach establishing a high threshold for the admission of fresh evidence duly mindful of Rule 89(C) and (D) of the Rules may be justified, depending on the specific circumstances of the case. The Appellants have thus not demonstrated any error in the Trial Chamber’s conclusions in this regard.

28. With reference to the Delić Decision, the Trial Chamber resolved that fresh evidence probative of the Appellants’ guilt may only be admitted during the presentation of their respective cases in exceptional circumstances.[11] While the Impugned Decision appears to be more lenient to the admission of the fresh evidence for the sole purpose of “impeaching a witness’s credibility or refreshing his/her memory”, it still specifies that the Trial Chamber will decide on the admission on the case-by-case basis in conformity with Rule 89 of the Rules.[12] In light of the above clarifications, the Appeals Chamber does not find that such approach is erroneous.

71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.”[3]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

77. […] The Appeals Chamber recalls that the Trial Chamber has the discretion to cautiously consider and rely on hearsay evidence.[1] […]

38.    […] It is clear that the Trial Chamber instead excluded the Statement because, in accordance with Rule 89(D) of the Rules, it did not deem the statement reliable enough, so that it could have threatened the fairness of the proceedings.[1] The Appeals Chamber is only called to decide on whether this specific decision was unreasonable.

39.     The language used by the Trial Chamber throughout its decision shows that, with no way to test the accuracy of the Statement or its interpretation, its reliability was in doubt.[2] The circumstances of the case, which included the fact that the Statement was being tendered from the bar table, the summary format of the document and the fact that no record of any kind was offered to show its reliability, had an impact upon Halilović’s ability to challenge the content of the Statement and prepare an effective defence without forfeiting his right to remain silent. […]

40.     The Appeals Chamber is not satisfied that the Prosecution has shown that the Trial Chamber in this instance abused its discretion. The issue of whether the Statement contained relevant and probative evidence, in the sense of Rule 89(C) of the Rules, is therefore moot.

See below for separate  opinions on the matter.

530. Turning first to Renzaho’s arguments concerning Witness AWO raised under his Eleventh Ground of Appeal, the Appeals Chamber notes that, in relation to her rapes in Rugenge sector, the Trial Chamber was satisfied with Witness AWO’s identification of Renzaho and found her physical description of him to be adequate and consistent.[1] As to factors impacting negatively on the reliability of her identification evidence, the Appeals Chamber recalls that not all factors need to be explicitly addressed, only any significant ones.[2] The fact that Witness AWO had seen Renzaho only once before April 1994 does not, per se, diminish the reliability of her sighting, and the fact that she did not personally know him prior to the events is not sufficient to undermine the reliability of her identification evidence as to the rapes, or moreover with respect to Sainte Famille.[3]

531. Regarding whether the Trial Chamber should have exercised “extreme caution” in assessing Witness AWO’s identification evidence in relation to the attack at Sainte Famille, the Appeals Chamber recalls that such a high level of caution is required only when a witness’s identification was made under difficult circumstances.[4] In this case, the Appeals Chamber finds that the identification evidence did not necessarily call for an “extreme” level of caution.[5] While the events suffered by Witness AWO were unquestionably traumatic, her identification of Renzaho at Sainte Famille did not occur in circumstances that made him difficult to identify, such as in the dark or as a result of a fleeting glance.[6]

  (i) Reasoned opinion

527. The Appeals Chamber notes that the Trial Chamber failed to provide any reasons for accepting the Prosecution witnesses’ identifications of Renzaho at Sainte Famille on 17 June 1994. The Appeals Chamber recalls the general principle that a Trial Chamber need not articulate every step of its reasoning.[7] However, as established in the Kupreškić et al. case, “where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a ‘reasoned opinion’.”[8]

529. The Appeals Chamber considers that the circumstances in which these witnesses identified Renzaho were traumatic. In addition, Witness AWO’s evidence was determinative to the Trial Chamber’s finding that Renzaho ordered the attack at Sainte Famille (rather than simply being present).[9] The Trial Chamber therefore should have provided some reasons for accepting their identifications of Renzaho in relation to the attack at Sainte Famille. The Appeals Chamber finds that the Trial Chamber erred in failing to do so. However, the Appeals Chamber finds that this error does not invalidate the Trial Judgement.

145. The Appeals Chamber recalls that a Trial Chamber may enter a conviction on the “basis of a single witness, although such evidence must be assessed with the appropriate caution, and care must be taken to guard against the exercise of an underlying motive on the part of the witness.”[1] The Appeals Chamber further recalls that “a Trial Chamber should at least briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused; in this way, a Trial Chamber shows its cautious assessment of this evidence.”[2] [see also para. 242 of the Appeals Judgement]

219. The Appeals Chamber recalls that a Trial Chamber is at liberty to rely on the evidence of a single witness when making its findings.[3] The testimony of a single witness may be accepted without the need for corroboration, even if it relates to a material fact.[4] […]

33. The Appeals Chamber emphasizes that the Rules of both this Tribunal and the ICTY generally reflect a preference for direct, live, in-court testimony. Nevertheless, the jurisprudence of both ad hoc Tribunals admits that Rule 89(C) of the Rules grants a Trial Chamber a broad discretion in assessing admissibility of evidence it deems relevant, including indirect evidence.[1] This discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous. It was thus ruled that “a piece of evidence may be so lacking in terms of the indicia of reliability that it is not 'probative’ and is therefore inadmissible.”[2] The Appeals Chamber is of the opinion that this principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. At the stage of admissibility, the beginning of proof that evidence is reliable, in other words, that sufficient indicia of reliability have been established, is quite admissible.[3]

See also para. 266.

353. […] It should also be stressed that with regard to the assessment of the credibility of a witness and the reliability of testimony, the Trial Chamber may accept a witness’s testimony despite the existence of contradictory statements.[1] It therefore falls to the Trial Chamber to assess the contradictions pointed out and determine whether the witness — in the light of his entire testimony — was reliable, and his testimony credible.

[…]

443. To be sure, the Trial Chamber should take account of any inconsistencies in a witness’s testimony. The Appeals Chamber, however, emphasises that it falls to the trier of fact to assess the inconsistencies highlighted in testimony and determine whether they impugn the entire testimony.  Moreover, the jurisprudence of both Tribunals recognises that a Trial Chamber has the discretion to accept a witness’ evidence, notwithstanding inconsistencies between said evidence and his previous statements, as it is up to the Trial Chamber to determine whether the alleged inconsistency is not sufficient to substantially cast doubt on the evidence of the witness concerned.[2] […]

[…]

501. […] the Appeals Chamber recalled that “where there are two conflicting testimonies, it falls to the Trial Chamber before which the witness testified to decide which of the testimonies has more weight[3] and/or whether the discrepancies are such as would cast reasonable doubt and/or establish that the alleged acts did not occur.”

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. […]

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. […]

314. […] However, as will now be explained, it was open to the Trial Chamber to rely, for certain purposes, on evidence in respect of events prior to 1994.

315. It is well established that the provisions of the Statute on the temporal jurisdiction of the Tribunal do not preclude the admission of evidence on events prior to 1994, if the Chamber deems such evidence relevant and of probative value[1] and there is no compelling reason to exclude it. For example, a Trial Chamber may validly admit evidence relating to pre-1994 acts and rely on it where such evidence is aimed at:

- Clarifying a given context;[2]

- Establishing by inference the elements (in particular, criminal intent) of criminal conduct occurring in 1994;[3]

- Demonstrating a deliberate pattern of conduct.[4]

316. The Appeals Chamber accordingly dismisses the Appellants’ contentions that the Trial Chamber exceeded its jurisdiction or that it breached the fairness of the trial simply because it relied on evidence concerning pre-1994 events.

561. The Appeals Chamber recalls that it has already considered the Trial Chamber’s interpretation of the Tribunal’s temporal jurisdiction and reaffirmed that Article 7 of the Statute does not prevent the admission of evidence of events prior to 1 January 1994, insofar as the Trial Chamber deemed such evidence relevant and of probative value, and there was no compelling reason to exclude it. This applies inter alia to evidence of criminal intent.[5] […]

647. […] The Appeals Chamber considers that paragraph 975 of the Judgement is ambiguous because it does not clearly explain whether the Appellant’s participation in CDR meetings prior to 1 January 1994 is cited as a material element of instigation for which the Appellant incurs individual responsibility pursuant to Article 6(1) of the Statute – which would be ultra vires – or whether this fact is simply mentioned as a contextual fact, or as evidence demonstrating the Appellant’s criminal intent in 1994 – which is permissible.[6] […]

The Trial Chamber convicted Jelisić of counts alleging violations of the laws or customs of war and crimes against humanity, to which he pleaded guilty. After the Prosecution presented its case on the remaining count of genocide, the Trial Chamber acquitted him pursuant to Rule 98bis(B) of the Rules. See paras. 1–5. Jelisić asserts that the sentence he received for the counts to which he pleaded guilty erroneously took into account the Prosecution’s evidence given at the trial for genocide. See para. 85. The Appeals Chamber held: 

87. The Appeals Chamber opines that in imposing sentence it was open to the Trial Chamber to take into account evidence presented during the genocide trial, insofar as that evidence was presented to demonstrate facts or conduct to which the cross-appellant had pleaded guilty.  The important point is that in considering evidence for the purpose of sentencing, the Trial Chamber should afford the cross-appellant an opportunity to test the evidence in cross-examination and/or by way of evidence adduced by the cross-appellant himself. 

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.

32. The Tribunal’s professional Judges, as noted by the Trial Chamber, are competent to assess the truthfulness and to accord the proper weight to a witness’ evidence.[1] The decision as to whether a particular piece of evidence will be admitted for the purposes of assessing a witness’ credibility and/or for the substance therein must be left to the Trial Chamber’s discretion.

See also Delić Decision on Admission of Exhibits, para. 22.

26. The Appeals Chamber recalls that in the Karemera et al. case, it endorsed the following reasoning of the ICTY Appeals Chamber in the Orić case:

The Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.[3]

The Appeals Chamber considered that all parties were not entitled to call precisely equal numbers of witnesses and the Trial Chamber has the discretion to limit the number of witnesses a party may call. This discretion may be exercised pursuant to Rules 73bis and 73ter of the Rules. Where the Trial Chamber exercises this discretion, it must be subject to the full respect of the rights of the party concerned. In cases where an exercise of this discretion leads to a situation where one party has more witnesses than the other, this does not necessarily mean that the principle of equality of arms is violated.

Fn. 784. The Appeals Chamber recalls that in other cases it has affirmed the use of background evidence as circumstantial corroboration of an otherwise credible witness’s testimony. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, paras. 255, 257.

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.    

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

76. The Appeals Chamber recalls its holding in the Nahimana et al. Appeal Judgement that:

two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way. Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others. It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[1] See also para. 201.

86. The Appeals Chamber recalls that a Trial Chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his or her previous statements, as it is up to the Trial Chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned.[1] […]

207. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or amongst witnesses’ testimonies.[2] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[3]

62. Neither the Statute nor the Rules oblige a Trial Chamber to require medical reports or other scientific evidence as proof of a material fact.  Similarly, the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration.  The only Rule directly relevant to the issue at hand is Rule 89.  In particular, sub-Rule 89(C) states that a Chamber “may admit any relevant evidence which it deems to have probative value”, and sub-Rule 89(D) states that a Chamber “may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial”. 

15. It is well settled in the practice of the Tribunal that hearsay evidence is admissible. Thus relevant out of court statements which a Trial Chamber considers probative are admissible under Rule 89(C). […] Trial Chambers have a broad discretion under Rule 89(C) to admit relevant hearsay evidence. Since such evidence is admitted to prove the truth of its contents,[1] a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose;[2] or, as Judge Stephen described it, the probative value of a hearsay statement will depend upon the context and character of the evidence in question.[3] The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is "first-hand" or more removed, are also relevant to the probative value of the evidence.[4] The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.[5]

66. […] Where, as in the present case, the Prosecution is directed by the Trial Chamber to obtain further material, the Prosecution cannot rely upon Rule 98, as that rule contemplates that the party to which the direction is given will itself tender the further material in evidence as part of its case. The Trial Chamber does, however, have a clear power – as part of its duty to ensure that the trial is properly conducted – to direct the Prosecution to obtain material which may be relevant to the case of the accused. In such a case, the further material should be produced, not only to the Trial Chamber, but also to the accused. If any use is to be made of that material during the trial, it must either be elicited in evidence from a witness or tendered in evidence itself.[1]

[…]

70. […] The Appeals Chamber cannot accept the argument that the Trial Chamber in this case was under a duty to ensure that the Witnesses were called back, under the pretext that the Chamber itself had asked that the statements of the Witnesses be made available. It is the sole responsibility of the party that claims to have suffered prejudice, in this case, the Prosecution, to request the Trial Chamber to have the Witnesses called back and to justify such a request.

See also paras. 67-69.

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]

32. The Appeals Chamber notes that the Appellant’s assertion that authenticity is an issue wholly divorced from the admissibility of evidence is based on a misapprehension of the Tribunal’s case law. In support of his submission that the Trial Chamber erroneously “refused reconsideration for documents initially rejected for lack of authenticity under the heading of reliability”,[1] the Appellant cites an Appeals Chamber decision in the Delalić case.[2] 

34. Authenticity may be similarly viewed in terms of the distinction between prima facie proof and definite proof. Prima facie proof of authenticity is appropriate at the admissibility stage, whereas definitive proof of authenticity is relevant to evidentiary weight later on in the proceedings. Authenticity relates to whether a document is what it professes to be in origin or authorship. It may therefore be relevant in assessing whether a document is prima facie reliable. Thus, whether a document bears basic features indicative of prima facie authenticity may, in the individual circumstances facing a Trial Chamber, be relevant to the underlying factor of prima facie reliability. Conversely, definitive proof of authenticity is an issue relevant to the evidentiary weight to be assigned to a document after admission. [3]

35. The Delalić Decision upon which the Appellant relies does not support his position. Rather, the Delalić Decision clarifies that it is erroneous to claim that strict proof of authenticity constitutes a separate and distinct requirement to the prerequisites of relevance and probative value of Rule 89(C) of the Rules.  The Delalić Decision states that:

The Applicant submits that where the tendering party has not proven the authenticity of a document then that document is necessarily irrelevant and of no probative value; hence it should be excluded. Sub-rule 89(E), whereby “[a] Chamber may request verification of the authenticity of evidence obtained out of court”, cited by the Applicant, does not operate as a pre-condition to bar the admissibility of evidence under Sub-rule 89(C). There is no legal basis for the Applicant’s argument that proof of authenticity is a separate threshold requirement for the admissibility of documentary evidence.[4]

With regard to the notion that definitive proof of authenticity is an element of admissibility:

The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value. To require absolute proof of a document’s authenticity before it could be admitted would be to require a far more stringent test than the standard envisioned by Sub-rule 89(C).[5]

36. The Appeals Chamber notes that the Trial Chamber correctly applied the foregoing standards.  The Appellant’s submission that the Trial Chamber refused reconsideration due to the fact that it erroneously subsumed authenticity under the heading of reliability is therefore unmeritorious.

97. The Appeals Chamber has not considered the video recording of the site visit, as it is not part of the record. The Appeals Chamber strongly emphasises that a detailed record of a Trial Chamber’s site visit should normally be maintained[1] and form part of the trial record. The purpose of a site visit is to assist a Trial Chamber in its determination of the issues, and therefore it is incumbent upon the Trial Chamber to ensure that the parties are able to review effectively any findings made by the Trial Chamber in reliance on observations made during the site visit.[2]

22.     A Trial Chamber of the International Tribunal is in nature both a trier of fact and an arbiter of questions of law.  Authorised by the Statute and the Rules to make factual findings on the basis of evidence presented by the parties, the Trial Chamber relies on the factual findings to determine the guilt or innocence of the accused.  In that sense, the factual findings, subject to appeal and review, are parts of the truth proved beyond reasonable doubt.[1]  It does not, however, follow that the Trial Chamber, by assessing evidence presented by the parties, will be discharging some of the prosecutorial responsibilities.

193. The Appeals Chamber recalls that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence.[1] Furthermore, the Tribunal’s jurisprudence confirms that evidence inadmissible under domestic law is not necessarily inadmissible in proceedings before the Tribunal.[2]

93. The second matter of principle of general application is the weight to be given to a statement made by a witness out of court which is inconsistent with his or her evidence in court. Where such out of court statement is merely hearsay, the common law denies it any value as evidence of the truth of what had been said out of court, and restricts its relevance to the issue of the witness’s credit.[1] On the other hand, the civil law admits the hearsay material without restriction, provided that it has probative value; the weight to be afforded to it as evidence of the truth of what was said is considered at the end of all the evidence. This Tribunal has, by its Rules, effectively rejected the common law approach. Rule 89(C) provides:

A Chamber may admit any relevant evidence which it deems to have probative value.

The application of that Rule was considered at the trial of Tadié, in a decision which was not challenged in the appeal.[2] The Appeals Chamber has since held that is now well settled in the practice of the Tribunal that hearsay material having probative value is admissible so as to prove the truth of what was said,[3] acknowledging nevertheless that the weight to be afforded to that material will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay material.[4]

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[1] In support of its finding, the Trial Chamber reasoned that the original Trial Chamber “was in a much better position to make determinations regarding reliability and credibility than [it], having heard the evidence viva voce”.[2] The Appeals Chamber considers that, in stating so, the Trial Chamber disregarded the fact that the assessment of admissibility criteria must be done on a case-by-case basis,[3] in light of the specific circumstances of each case. It overlooked the fact that the probative value of a piece of evidence may be assessed differently in different cases, depending on the rest of the evidence and other relevant circumstances.[4] While the prior assessment of the evidence by another Trial Chamber is a factor that may be taken into account in the assessment of its probative value, it does not relieve the Trial Chamber of its obligation to assess the admissibility of the evidence in the context of the case before it.

17. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that adjudicated facts:

are facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding. For this reason, they cannot simply be accepted, by mere virtue of their acceptance in the first proceeding, as conclusive in proceedings involving different parties who have not had the chance to contest them.[5]

This is also the case for credibility findings in another case: the finding on the credibility and reliability of Ntakirutimana’s testimony in his own trial cannot be accepted as conclusive in the present proceedings by the mere virtue of the fact that it was reached by the Ntakirutimana Trial Chamber.

18. In this case, the Trial Chamber denied the admissibility of Ntakirutimana’s testimony into evidence on the basis that the Ntakirutimana Trial Chamber had found it to be less reliable than another testimony.[6] That is, instead of examining for itself whether Ntakirutimana’s testimony was prima facie reliable and credible, the Trial Chamber erroneously relied on the final evaluation of its reliability and credibility by another Trial Chamber and accepted that negative assessment as determinative of the admissibility of the evidence.

19. The Trial Chamber further reasoned that to re-engage in an assessment of the reliability and credibility of Ntakirutimana’s testimony “would essentially be acting in review of another Chamber, and therefore outside of its jurisdiction”.[7] The Appeals Chamber disagrees. As noted above, the final assessment of the weight of a piece of evidence is based on the totality of the evidence in a given case. Naturally, the same piece of evidence can be assessed differently in different cases because of other evidence on the record therein. Therefore, a Trial Chamber’s assessment of a piece of evidence from another case does not involve a review of a decision of another Trial Chamber. Moreover, in this respect, the Appeals Chamber recalls that “the final adjudication of facts in judicial proceedings is treated as conclusively binding only, at most, on the parties to those proceedings”.[8]

22. [...] In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

538. […] The Appeals Chamber recalls that reference to principles applied in national jurisdictions can be of assistance to both Trial Chambers and the Appeals Chamber in interpreting provisions of the Statute and the Rules.[1]  However, Rule 89(A) of the Rules expressly provides that the Chambers “shall not be bound by national rules of evidence.”  What is of primary importance is that a Trial Chamber “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.”[2]  The Appeals Chamber notes that the Trial Chamber found that implicit in this principle was “the application of national rules of evidence by the Trial Chamber.”[3]  On the contrary, the Appeals Chamber confirms that rules of evidence as expressly provided in the Rules should be primarily applied, with the assistance of national principles only if necessary for guidance in the interpretation of these Rules.

48. Turning to the Appellant’s contention that the Trial Chamber erred in law by failing to keep records from the site visit, the Appeals Chamber first notes that at no time during the trial proceedings did the Appellant object to the absence of such materials.[1] Moreover, the Appeals Chamber notes that the Trial Chamber considered the parties’ submissions on the observations made during the site visit in reaching its findings,[2] and explained how its observations affected the assessment of the evidence.[3] Therefore, the Appeals Chamber does not agree that, in relying on its observations, the Trial Chamber denied the Appellant the right to present a full defence and to be provided with a reasoned opinion. The Appeals Chamber emphasizes that detailed records of Trial Chamber’s site visits should normally be kept. The purpose of a site visit is to assist a Trial Chamber in its determination of the issues and therefore it is incumbent upon the Trial Chamber to ensure that the parties are able to effectively review any findings made by the Trial Chamber in reliance on observations made during the site visit.[4] The Appeals Chamber however finds that in this case the Appellant has not demonstrated that he was prejudiced by his inability to challenge the Trial Chamber’s observations and that the parties had the opportunity to make arguments based on their observations of the site visit in their closing arguments and closing briefs to which the Trial Chamber referred in its Judgement.[5]

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.

The Prosecution sought to confront a Defence witness, during cross-examination, with two documents. Delić objected on the basis that these documents were not included in the list of exhibits the Prosecution intended to offer under Rule 65 ter(E)(iii) of the Rules of Procedure and Evidence. Following the cross-examination of the witness on the content of the two documents, the Trial Chamber proceeded to admit them into evidence. Delić appealed the admission because it was done during the Defence case. The Appeals Chamber found:

20. According to Rule 89(C) of the Rules, a “Chamber may admit any relevant evidence which it deems to have probative value”. More specifically, Rule 90(F)(i) of the Rules states that a “Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”.  Within the discretion afforded to it, a Trial Chamber may admit any evidence which it deems relevant and of probative value, provided that the right of the accused to a fair trial is ensured in the process.[1]

21. In the present case, the Prosecution contends that it could not have ascertained the importance of the Exhibits until Delić had disclosed its own list of witnesses pursuant to Rule 65 ter (G)(i). However, the Prosecution did not proceed to disclose the Exhibits immediately after this list was filed, but just prior to the beginning of the testimony of [the] witness […]

22. In these circumstances, the Appeals Chamber notes that the Impugned Decision does not clarify whether the Exhibits were admitted as evidence probative of guilt or only for impeachment purposes of the witness in question. This may cause confusion, prejudicing Delić in the organization of his case. According to the principles enshrined in the Statute – in particular in Article 21(4)(b) and (e) – on the rights of the accused, when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it; this is all the more true if evidence is tendered after the close of the Prosecution case. In situations where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence.

23. The Trial Chamber therefore erred in not specifying the purpose for which the Exhibits were admitted despite the request by Delić and, consequently, in not addressing how the prejudice caused by the admission of the Exhibits, if any, could be redressed. Only after having considered the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations, the Trial Chamber will be able to provide a reasoned opinion on the prejudice, if any, caused by the admission of the Exhibits and on the measures to address such prejudice – for example providing more time for cross-examination, adjourning the session, or granting the possibility of re-calling the witness if Delić shows it is necessary. Having failed to give sufficient weight to relevant considerations in reaching its decision, the Trial Chamber committed a discernible error.

In paragraphs 74–78 the Appeals Chamber considered the Appellant’s contention “that, by preventing him from introducing the testimony of [two witnesses] when the proceedings were re-opened, the Trial Chamber violated his right, under Article 21(4) of the Statute, to examine, and obtain the attendance of, relevant witnesses on his behalf”. The Appeals Chamber held:

75. Article 21(4)(e) of the Statute grants an accused the right “to obtain the attendance and examination of witnesses on his behalf”.  This right is, for obvious reasons, subject to certain conditions, including a requirement that the evidence should be called at the proper time.[1]  In this regard, the Appeals Chamber observes that the Appellant was obliged, under the applicable rules, to present all available evidence at trial.  However, it should be noted that the proceedings were re-opened due to the exceptional circumstance of the Prosecutor’s late disclosure of material which, in the view of the Trial Chamber, “clearly had the potential to affect the 'credibility of prosecution evidence’”.[2] […] 

At paragraph 78, the Appeals Chamber concluded that “the Trial Chamber did not err when it decided to deny the Appellant the right to call [the witnesses] on the ground that the proposed testimony fell outside the scope of the re-opened proceedings.”

113.   On whether Witness F could easily recognize Musema, the Appeals Chamber finds that Musema’s arguments are not sufficient to raise doubt as to the reliability of the contested identification testimony.  The Appeals Chamber notes that during a meeting convened by the bourgmestre of Gisovu commune, which was one of the three occasions where F had seen Musema prior to the events, F was able to observe Musema for a period of 30 minutes.[1]  Musema gives the impression that an identified suspect needs to be personally well known to the witness.[2]  This is not the case. Prior knowledge of an identified suspect is a factor that a Trial Chamber may take into account when assessing the reliability of a witness’ testimony,[3]  but that is not a sine qua non; identification may be based on other factors. In any event, the Appeals Chamber is of the opinion that it was within the discretion of the Trial Chamber to accept, in support of the evidence of identification before it, the fact that Witness F had met Musema on several occasions.

8. The Appeals Chamber accepts that, 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.[1]  Accordingly, it is generally inappropriate in this situation to consider orders to the prospective witness to attend to give evidence (Rule 54) or for taking his evidence by way of deposition for use later in the trial (Rule 71).[2]

9. The Reply, however, wrongly assumes that Rule 54 is limited to making orders that the prospective witness attend to give evidence before the relevant Chamber. It is clear, both from the terms of the Rule itself and from what the Appeals Chamber said in the Tadić Rule 115 Decision,[3] that the requirement that “all mechanisms of protection and compulsion available” be used by the defence was not intended to be limited to the situation where the defence is aware of what evidence the prospective witness can give but where the prospective witness is unwilling (for whatever reason) to cooperate. In the exercise of due diligence, the appropriate mechanisms must also be used in the situation where the defence is unaware of the precise nature of the evidence the prospective witness can give and where the defence is unable to obtain his cooperation by speaking to it.

See also paragraphs 14-16.

34. The Appeals Chamber notes […] that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction.  […]

[…]

39. In cases before this Tribunal, a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances.  While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”.  In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence.  As stated by the Canadian Court of Appeal in R. v Harper:

Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.[1]

[…]

See also paras. 33-38, 40.

21. The Appeals Chamber is satisfied that the principle of in dubio pro reo, as a corollary to the presumption of innocence, and the burden of proof beyond a reasonable doubt,[1] applies to findings required for conviction, such as those which make up the elements of the crime charged. This approach is consistent with the case-law of the International Tribunal and is a logical approach, given that, in the context of issues of fact, the principle is essentially just one aspect of the requirement that guilt must be found beyond a reasonable doubt.[2] In Naletilić and Martinović, the Appeals Chamber recognized the applicability of this principle to the mens rea requirement of knowledge of the existence of an armed conflict.[3] Similarly, the Naletilić and Martinović Trial Chamber applied the principle in the context of the crime of torture: It held that the evidence did not allow the Trial Chamber to distinguish between beatings that were inflicted with a specific purpose – which is required to establish the crime of torture ‑ and beatings that may have been inflicted for reasons of pure cruelty, but not with a specific purpose. Consequently, the Trial Chamber found in dubio pro reo that the specific purpose necessary for torture had not been established beyond reasonable doubt.[4] Further, the principle of in dubio pro reo is not applied to individual pieces of evidence and findings of fact on which the judgement does not rely. For example, in Kvočka et al., the Appeals Chamber dismissed Prcać’s argument that the Trial Chamber failed to apply the principle when it found that Prcać was an administrative assistant at the Omarska camp.[5] The Appeals Chamber held that the finding that Prcać was an administrative assistant was not a fact aimed at conviction or an element of the crime charged, and thus the in dubio pro reo inquiry did not apply.

See Judge Shahabuddeen’s and Judge Schomburg’s declarations.

27. The Appeals Chamber agrees with both parties that no probative weight should be attached to in-court identifications.[1] As considered by the Kunarac Trial Chamber, in-court identifications are inherently unreliable “[b]ecause all of the circumstances of a trial necessarily lead such a witness to identify the person on trial”.[2] This has been affirmed in both the Kunarac and Kamuhanda Appeal Judgements.[3]

28. […] Accordingly, the Trial Chamber attached some weight to the in-court identifications and to the extent that it did, it was in error.[4] […]

30. In considering this allegation, the Appeals Chamber recalls its finding in Kupreškić et al. that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction. Domestic criminal law systems from around the world recognise the need to exercise extreme caution before proceeding to convict an accused person based upon the identification evidence of a witness made under difficult circumstances. The principles developed in these jurisdictions acknowledge the frailties of human perceptions and the very serious risk that a miscarriage of justice might result from reliance upon even the most confident witnesses who purport to identify an accused without an adequate opportunity to verify their observations.

After having examined a number of domestic criminal law systems in relation to the question of identification evidence, the Appeals Chamber stated in Kupreškić et al.:

Courts in domestic jurisdictions have identified the following factors as relevant to an appellate court’s determination of whether a fact finder’s decision to rely upon identification evidence was unreasonable or renders a conviction unsafe: identifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.

In addition, the Appeals Chamber observes that identification evidence may be affected by the length of time between the crime and the confrontation.[7]

86. The Appeals Chamber recalls that a Trial Chamber need not refer to the testimony of every witness or every piece of evidence on the trial record, “as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence.”[1] Such disregard is shown “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.”[2]

88. […] In this context, the Appeals Chamber recalls that “it is settled jurisprudence of the International Tribunal that it is the trier of fact who is best placed to assess the evidence in its entirety as well as the demeanour of a witness.”[3] […]

153. […] Accordingly, the Trial Chamber correctly found that:

The ultimate weight to be attached to each relevant piece of evidence, including each visual identification where more than one witness has identified an Accused, is not to be determined in isolation. Even though each visual identification and each other relevant piece of evidence, viewed in isolation, may not be sufficient to satisfy the obligation of proof on the Prosecution, it is the cumulative effect on the evidence, i.e. the totality of the evidence bearing on the identification of an Accused, which must be weighed to determine whether the Prosecution has proved beyond reasonable doubt that each Accused is a perpetrator as alleged.[4]

96. The Appeals Chamber recalls that in assessing witness testimony, “it falls to the Trial Chamber to take the approach it considers most appropriate for the assessment of evidence.”[1] A trial chamber “is […]] not obliged in its judgement to recount and justify its findings in relation to every submission made at trial.”[2] In addition, “neither the Rules nor the jurisprudence of the Tribunal oblige[]] [a] Trial Chamber to require a particular type of identification evidence.”[3] However, identifications made in difficult circumstances, such as darkness, obstructed view, or traumatic events,[4] require careful and cautious analysis by a trial chamber.[5] In addition, in-court identification evidence should be assigned “little or no credence” given the signals that can identify an accused aside from prior acquaintance.[6]

262. Milan Lukić submitted the Logbook Entry to the Trial Chamber without a translation into one of the working languages of the Tribunal.[1] The Logbook Entry, which related to 14 June 1992, was also admitted without a translation as part of Prosecution Exhibit P68, which comprised the whole logbook.[2] The Appeals Chamber emphasises that it is incumbent on the party seeking to admit an exhibit to provide a translation where necessary.[3] Milan Lukić failed to provide such a translation. However, the Appeals Chamber notes that the Trial Chamber admitted the Logbook Entry into evidence, as Exhibit 1D39, without noting or commenting on the lack of translation.[4] From this point, the document was part of the trial record, and was therefore before the Trial Chamber. Moreover, the Trial Chamber had the duty to consider all the evidence before it.[5]

263. In the Trial Judgement, the Trial Chamber stated that it had admitted the Logbook Entry “inadvertently” and was unable to attach any weight to it without a translation into one of the working languages of the Tribunal.[6] However, in its summary of the evidence in the Trial Judgement, the Trial Chamber demonstrated that, even without a translation, it was aware that the Logbook Entry showed that Vasiljević was registered at the Višegrad Health Centre on 14 June 1992.[7] Moreover, the Trial Chamber found that it was able to attach probative weight to Prosecution Exhibit P68, which had also been admitted into evidence without an official translation, but the substance of which had been commented on by a Prosecution witness.[8]

264. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to consider the substance of the Logbook Entry. However, the Appeals Chamber finds that this error has no impact.

120. The Appeals Chamber recalls that in-court identification is generally permissible.[1] Contrary to the Appellants’ contention,[2] the fact that a witness fails to identify the accused during a pre-trial identification exercise does not bar a trial chamber from allowing in-court identification.[3] However, in-court identification should be given “‘little or no credence’ given the signals that can identify an accused aside from prior acquaintance”.[4] A trial chamber must therefore exercise caution in assessing such evidence.[5] The Appeals Chamber considers that, while little or no weight should be given to a witness’s in-court identification evidence,[6] a witness’s failure to identify an accused in court can be a reason for declining to rely on the identification evidence of that witness.[7] The distinction between an “identification” or “recognition” witness is thus irrelevant in the context of in-court identification. In the present case, the Trial Chamber allowed in-court identifications by several witnesses. The Appeals Chamber considers that, as a matter of law, Milan Lukić and Sredoje Lukić have not shown that the Trial Chamber erred by allowing in-court identification per se. The Appeals Chamber will evaluate the Appellants’ claims regarding each witness in the appropriate section.

136. The Appeals Chamber further recalls that “where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a ‘reasoned opinion’”.[8] In these instances, the Trial Chamber must “carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence”.[9]

137. Factors relevant to the Appeals Chamber’s determination of whether a trial chamber’s decision to rely upon identification evidence was unreasonable or rendered the conviction unsafe, include:

[I]dentifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.[10]

138. Furthermore, the Appeals Chamber considers that this list is not intended to be exhaustive.[11] A trial chamber is not bound to consider all of these factors, but only those appropriate in the circumstances of the case.[12]

303. At the outset, the Appeals Chamber recalls that hearsay evidence is in principle admissible,[1] although in assessing its probative value, the surrounding circumstances must be considered.[2] […]

387. […] The Appeals Chamber recalls that where the source of identification evidence is hearsay, a trial chamber must duly consider the relevant criteria in assessing the weight or the probative value to be accorded to this evidence.[3] The Trial Chamber erred in failing to do so.

577. […] The Appeals Chamber recalls that a Trial Chamber has “wide discretion as to the assessment of the weight and probative value of the hearsay evidence alongside with other factors relevant to the evaluation of the totality of the evidence.”[4] However, caution is warranted in the consideration of hearsay evidence, particularly where such evidence constitutes the primary basis for the identification of an accused. Relevant criteria in assessing the weight or the probative value to be accorded to hearsay evidence are the source of the information,[5] the precise character of the information,[6] and corroborative evidence.[7]

Fn. 34: [W]here the witness who made the statement is not called to give the accused an adequate and proper opportunity to challenge the statement and to question that witness, the evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement[.]

27. [...] Hearsay evidence may be oral, as where a witness relates what someone else had told him out of court, or written, as when (for example) an official report written by someone who is not called as a witness is tendered in evidence.  Rule 89(C) clearly encompasses both these forms of hearsay evidence. [...]

10. [...] Rule 92bis(A) excludes any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(a)      that the accused committed (that is, that he personally physically perpetrated) any of the crimes charged himself,^[…] or

(b)      that he planned, instigated or ordered the crimes charged, or

(c)      that he otherwise aided and abetted those who actually did commit the crimes in their planning, preparation or execution of those crimes, or

(d)      that he was a superior to those who actually did commit the crimes, or

(e)      that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or

(f)       that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts.

Where the prosecution case is that the accused participated in a joint criminal enterprise, and is therefore liable for the acts of others in that joint criminal enterprise,[1] Rule 92bis(A) excludes also any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(g)      that he had participated in that joint criminal enterprise, or

(h)      that he shared with the person who actually did commit the crimes charged the requisite intent for those crimes.[2]

Those are the “acts and conduct of the accused as charged in the indictment”, not the acts and conduct of others for which the accused is charged in the indictment with responsibility.[3]

11. The “conduct” of an accused person necessarily includes his relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that state of mind is not admissible under Rule 92bis.  In order to establish that state of mind, however, the prosecution may rely upon the acts and conduct of others which have been proved by Rule 92bis statements.  An easy example would be proof, in relation to Article 5 of the Tribunal’s Statute, of the knowledge by the accused that his acts fitted into a pattern of widespread or systematic attacks directed against a civilian population.[4]  Such knowledge may be inferred from evidence of such a pattern of attacks (proved by Rule 92bis statements) that he must have known that his own acts (proved by oral evidence) fitted into that pattern.  The “conduct” of an accused person may also in the appropriate case include his omission to act.

12. [...] Far from being an “exception” to Rule 89, […] Rule 92bis identifies a particular situation in which, once the provisions of Rule 92bis are satisfied, and where the material has probative value within the meaning of Rule 89(C), it is in principle in the interests of justice within the meaning of Rule 89(F) to admit the evidence in written form.[5] […]

13. The fact that the written statement goes to proof of the acts and conduct of a subordinate of the accused or of some other person for whose acts and conduct the accused is charged with responsibility does, however, remain relevant to the Trial Chamber’s decision under Rule 92bis. That is because such a decision also involves a further determination as to whether the maker of the statement should appear for cross-examination.[6] [...] Where the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.[7]  An easy example of where the exercise of that discretion would lead to the rejection of a written statement would be where the acts and conduct of a person other than the accused described in the written statement occurred in the presence of the accused.

See also paras 14-16.

[...]

19. […] [I]t would be preferable that a Trial Chamber should […] always give consideration to the exercise of the discretion given by Rule 92bis whenever the prosecution seeks to use that Rule in the special and sensitive situation posed by a charge of command responsibility under Article 7.3 where the evidence goes to proof of the acts and conduct of the accused’s immediately proximate subordinates.

[...]

28. Rules 92bis(A) and Rule 92bis(C) are directed to written statements prepared for the purposes of legal proceedings. […] Rule 92bis(D), permitting the transcript of a witness’s evidence in proceedings before the Tribunal to be admitted as evidence, is similarly directed to material produced for the purposes of legal proceedings.  Rule 92bis as a whole, therefore, is concerned with hearsay evidence such as would previously have been admissible under Rule 89(C).  But it is hearsay material of a very special type, with very serious issues raised as to its reliability.

[...]

31. A party cannot be permitted to tender a written statement given by a prospective witness to an investigator of the OTP under Rule 89(C) in order to avoid the stringency of Rule 92bis.  The purpose of Rule 92bis is to restrict the admissibility of this very special type of hearsay to that which falls within its terms. By analogy, Rule 92bis is the lex specialis which takes the admissibility of written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C), although the general propositions which are implicit in Rule 89(C) – that evidence is admissible only if it is relevant and that it is relevant only if it has probative value – remain applicable to Rule 92bis.  But Rule 92bis has no effect upon hearsay material which was not prepared for the purposes of legal proceedings. [...]

[...]

33. [...] What Rule 92bis(C)(i) requires is that the Trial Chamber be satisfied on a balance of probabilities that the written statement was “made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally”. That is made clear by the use of the words “if the Trial Chamber […] is so satisfied” immediately following those words.[8]  The requirements of Rule 92bis(C)(i) have nothing to do with the “probability” or any other characteristic of the statement itself. The assessment of the reliability of that statement is the subject of Rule 92bis(C)(ii).

[...]

46. It must be emphasised that Rule 92bis(C) makes specific provision for the admission of part only of a written statement of a witness,[9] and that it is for the Trial Chamber to decide, after hearing the parties, whether to admit the statement in whole or in part.[10] […] [I]t is not [the Prosecution’s] “prerogative” to determine how much of the statement is to be admitted.  Where that part of the written statement not tendered by the prosecution modifies or qualifies what is stated in the part tendered, or where it contains material relevant to the maker’s credit, the absence of any opportunity to cross-examine the witness (which must be the case where Rule 92bis(C) is concerned) would usually necessitate the admission of those parts of the statement as well.  There is no foundation for the appellant’s argument that, if the statement includes material which is irrelevant, the whole of the statement must be rejected.^[…]

[RULE 92bis OF THE ICTY’S RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 13 SEPTEMBER 2006.]

125. The Appeals Chamber recalls that two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way.

126. The Appeals Chamber finds that it was reasonable for the Trial Chamber to find thematic consistencies between the accounts of Witnesses BBP, BVS, and BBJ, “in particular, that Gatete came to the parish prior to 11 April, spoke to gendarmes, who witnesses recalled had guarded the parish, and also spoke to the two priests at the parish.”[3] The Appeals Chamber is of the view that it was not necessary that all witnesses described the same visit by Gatete and corroborated each other in this respect for the Trial Chamber to find that Gatete had come to the parish prior to 11 April 1994. That the witnesses may have described different visits does not undermine the conclusion that their accounts were compatible on the fact that Gatete was seen at the parish before 11 April 1994.

205. […T]he Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others. It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.

54. The Appeals Chamber recalls that the Trial Chamber has the discretion to decide whether a site visit is necessary or relevant in the assessment of evidence.[1] As such, the Appeals Chamber considers that the determination of the itinerary is also within the discretion of the Trial Chamber.

61. The right to cross-examination is not absolute.[1] The Appeals Chamber has held that "as a matter of principle nothing bars the admission of evidence that is not tested or might not be tested through cross-examination."[2] Nevertheless, the Appeals Chamber has recognized that "[u]nacceptable infringements of the rights of the defence [...] occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial."[3] Therefore, "[i]t would run counter to the principles of fairness [...] to allow a conviction based on evidence of this kind without sufficient corroboration."[4]

62. Whether untested evidence is sufficiently corroborated is necessarily a fact specific inquiry and varies from case to case. Accordingly, the Appeals Chamber declines to impose any specific legal requirement as to the source of the corroboration. Therefore, the Appeals Chamber can identify no error of law in the above quoted legal principles adopted by the Trial Chamber for assessing untested evidence. The main question, however, is whether the conviction rests decisively on untested evidence. Furthermore, it follows from jurisprudence that not all evidence characterized as hearsay can be considered untested or unreliable.[5] Indeed, as a matter of law, it is permissible to base a conviction on hearsay or circumstantial evidence, but caution is warranted in such circumstances.[6]

154.    […] [T]he Appeals Chamber concurs with the opinion of ICTY Appeals Chamber that the testimony of a witness on a material fact may be accepted as evidence without the need for corroboration.[1]

[…]

322.    The Appeals Chamber reiterates[2] that accepting as evidence the uncorroborated testimony of a witness does not in itself constitute an error.[3]

See also para. 187.

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.

13.     Rule 93 provides that “Evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute may be admissible in the interests of justice.” Rule 93 does not create an exception to Rule 89(C), but rather is illustrative of a specific type of evidence which may be admitted by a Trial Chamber. Rule 93 must be read in conjunction with Rule 89(C), which permits a Trial Chamber to admit any relevant evidence which it deems to have probative value. Even where pattern evidence is relevant and deemed probative, the Trial Chamber may still decide to exclude the evidence in the interests of justice when its admission could lead to unfairness in the trial proceedings, such as when the probative value of the proposed evidence is outweighed by its prejudicial effect, pursuant to the Chamber’s duty to ensure a fair and expeditious trial as required by Article 19(1) of the Statute of the International Tribunal.

See also para. 14.

17.     […] [T]he Prosecutor alleges that the Trial Chamber erred by compartmentalizing its analysis of probative value. The Appeals Chamber affirms that the correct approach is to assess the aggregate probative value of the particular evidence against its aggregate prejudicial effect. […]. 

249. As to Ntahobali’s contention that Exhibit P113 lacked sufficient probative value to be admitted under Rule 89(C) of the Rules, the Appeals Chambers considers that the mere fact that a statement is made by a co-accused does not ipso facto render the document’s contents so unreliable that it could not be admitted under Rule 89(C) of the Rules.[1]

See also para. 260.

1616.            The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence[1] and that trial chambers have the discretion to consider cautiously and rely on hearsay evidence.[2] The Appeals Chamber further recalls that a witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence; however, contrary to what Ntahobali suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence.[3] In the present case, the Trial Chamber correctly recalled generally the law concerning reliance on hearsay evidence in an introductory section of the Trial Judgement and specifically when considering such evidence with respect to Ntahobali’s identification at the prefectoral office.[4] The Trial Chamber considered the hearsay nature of various witnesses’ identifications of Ntahobali at the prefectoral office and concluded that they were reliable for a variety of reasons.[5] Ntahobali’s general contentions concerning the Trial Chamber’s use of hearsay, which do not discuss this analysis,[6] fail to demonstrate that the Trial Chamber erred in this regard.

See also fn. 5590.

576. The Appeals Chamber underlines that trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record and that neither the Statute nor the Rules prevent a trial chamber from relying on the testimony of the accused to convict that accused, unless the accused’s self-incriminating evidence was compelled in violation of Article 20(4)(g) of the Statute.[1] […]

177.     […] The Appeals Chamber observes that Karadžić challenges a decision related to the admission of evidence […] are matters falling within a trial chamber’s discretion.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

See also paras. 190, 198, 208, 304.

184. […] Although trial chambers are obliged to provide every practicable facility to assist parties in presenting their case, this obligation does not extend to allowing out-of-time motions in the absence of good cause or admitting evidence that does not meet the formal requirements for admission.

209. Rule 92 quater (A) of the ICTY Rules allows for the admission of a written statement or transcript from a person who subsequently died, provided that the trial chamber finds from the circumstances in which the statement was made and recorded that it is reliable. To be admissible under Rule 92 quater, the proffered evidence must be relevant and have probative value as provided in Rule 89(C) of the ICTY Rules.[1] In order to assess whether proposed evidence satisfies both prerequisites, consideration must be given to its prima facie reliability and credibility.[2] An item of evidence may be so lacking in terms of indicia of reliability that it is not “probative” and is therefore inadmissible.[3] The final evaluation of the reliability and credibility, and hence the probative value of the evidence, will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it.[4]

210. […] [T]he Appeals Chamber recalls that the factors a trial chamber can consider in assessing whether an item of evidence has sufficient indicia of reliability to be admissible pursuant to Rule 92 quater of the ICTY Rules may vary[5] and that these have included the absence of manifest or obvious inconsistencies in a statement.[6] […]

211. […] [T]he Appeals Chamber reiterates that the assessment of admissibility criteria must be done with respect to each tendered document.[7]

598. […] As to Karadžić’s submission that Witness Momir Nikolić’s evidence should be rejected as uncorroborated hearsay, the Appeals Chamber recalls that trial chambers have the discretion to rely on hearsay evidence. [1] […]

727. […] The Appeals Chamber recalls that the intent to destroy a group as such is circumscribed by the “area of the perpetrators’ activity and control” and the “extent of [the perpetrators’] reach”.[1] Absent direct evidence of genocidal intent, the “scale of the atrocities committed” is one of several factors relevant to determining genocidal intent[2] and the fact that more members of a targeted group could have been, for example, killed, but were not, may indicate a lack of the dolus specialis required to prove such intent.[3] 

728. […] The Trial Chamber recalled that conduct not constituting acts of genocide may be considered when assessing genocidal intent.[4] Furthermore, when assessing the mens rea for genocide, the Trial Chamber extensively detailed criminal conduct committed against Bosnian Muslims and Bosnian Croats that resulted in both immediate physical destruction as well as the remaining conduct which the Prosecution argues would have impacted the long-term survival of the targeted groups.[5] The Appeals Chamber finds that the Trial Chamber acted within the bounds of the law and its discretion when contrasting the number of Bosnian Muslims and Bosnian Croats displaced versus those who were victims of conduct falling within Article 4(2) of the ICTY Statute in assessing whether genocidal intent had been established.[6]

See also para. 729.

[…]

745. […] Evidence demonstrating ethnic bias, however reprehensible, does not necessarily prove genocidal intent.[7] Utterances that fall short of expressly calling for a group’s physical destruction might constitute evidence of genocidal intent but a perpetrator’s statements must be understood and assessed in their proper context.[8] […]