Exclusion of evidence

Notion(s)	Filing	Case
Exclusion of evidence \| Lack of notice \| Timing for objections	Decision on Interlocutory Appeal on Questions of Law - 18.09.2006	BAGOSORA et al. (Military I) (ICTR-98-41-AR73)
Paras 42-46: the Appeals Chamber found that when a party wishes to object to the introduction of evidence of certain material facts on the basis of lack of notice of these material facts, it should do so at the time the evidence is introduced. Nonetheless, 45. […] [W]hen an objection based on lack of notice is raised at trial (albeit later than at the time the evidence was adduced), the Trial Chamber should determine whether the objection was so untimely as to consider that the burden of proof has shifted from the Prosecution to the Defence in demonstrating whether the accused’s ability to defend himself has been materially impaired. In doing so, the Trial Chamber should take into account factors such as whether the Defence has provided a reasonable explanation for its failure to raise its objection at the time the evidence was introduced and whether the Defence has shown that the objection was raised as soon as possible thereafter. Download full document
Notion(s)	Filing	Case
Exclusion of evidence \| Lack of notice \| Applicable law	Decision on Interlocutory Appeal on Questions of Law - 18.09.2006	BAGOSORA et al. (Military I) (ICTR-98-41-AR73)
Para. 18: 18. When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice has been given, it should exclude the challenged evidence in relation to the unpleaded material facts,[2] require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations,[3] or take other measures to preserve the rights of the accused to a fair trial.[4] show footnotes [1] Prosecutor v. Anto Furund‘ija, Case No. IT-95-17/1-A, Judgement of 21 July 2000 (“Furund‘ija Appeal Judgement”), para. 61. [2] In this connection, the Appeals Chamber recalls that a Chamber can find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded: Arsène Shalom Ntahobali & Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-97-21-AR73, “Decision of the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the ‘Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ inadmissible’”, 2 July 2004, para. 15; Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-98-42-AR73, “Decision on Pauline Nyiramasuhuko’s Request for Reconsideration”, 27 September 2004, para. 12; Muvunyi Decision, para. 55 (“If evidence is relevant to a charge in the current indictment and is probative of that charge, then subject to any other ground for exclusion that may be advanced by the Defence, that evidence should be admissible.”). [3] Kupreškić et al. Appeal Judgement, para. 92; Kvočka et al. Appeal Judgement, para. 31; Naletilić & Martinović Appeal Judgement, para. 25. [4] For instance, in certain circumstances, the Trial Chamber could allow the Defence to recall witnesses for cross-examination after the Defence has completed further investigations: see The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, “Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment”, 19 December 2003 (“Karemera Decision”), para. 28. Download full document
Notion(s)	Filing	Case
Evidence \| Discretionary decisions \| Admissibility of evidence \| Exclusion of evidence \| Fair trial \| Prejudice \| Standard of appellate review	Decision on Exclusion of Evidence - 19.12.2003	BAGOSORA et al. (Military I) (ICTR-98-41-AR93 & ICTR-98-41-AR93.2)
11. The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2] […] 16. The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […] show footnotes [1] Prosecutor v. Milosević, Nos. IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 5 (footnotes omitted). [2] Ibid., para. 4. Download full document		ICTR Statute Article 19(1) ICTY Statute Article 20(1) ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s)	Filing	Case
Evidence \| Exclusion of evidence \| False testimony	Appeal Judgement - 14.12.2015	NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A)
331. Likewise, the Appeals Chamber finds no merit in Nyiramasuhuko’s and Ntahobali’s argument that the fact that the witnesses lied required that their testimonies be excluded. In support of this claim, Ntahobali refers to national jurisprudence.[1] However, the Appeals Chamber highlights that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence,[2] and recalls that decisions on the admission or exclusion of evidence fall within the trial chambers’ discretion.[3] […] show footnotes [1] See Ntahobali Appeal Brief, para. 822 and references cited therein. [2] See also Simba Appeal Judgement, para. 38; Akayesu Appeal Judgement, fn. 577. [3] See Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73.2, Decision on Gaspard Kanyarukiga’s Interlocutory Appeal of a Decision on the Exclusion of Evidence, 23 March 2010 (“Kanyarukiga Appeal Decision”), para. 7; Prosecutor v. Jadranko Prliæ et al., Case No. IT-04-74-AR73.13, Decision on Jadranko Prlić Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prliæ et al. Appeal Decision”), para. 15; The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73, Decision on “Appeal of Accused Arsène Shalom Ntahobali Against the Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 27 October 2006 (“27 October 2006 Decision”), para. 10. Download full document		ICTR Rule Rule 89 ICTY Rule Rule 89