In paragraph 18 the Appeals Chamber recalled its previous decisions regarding hearsay evidence, i.e. Prosecutor v. Zlatko Aleksovski, IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision”); Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000; and Prosecutor v. Stanislav Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002 (“Galić Decision”). The Appeals Chamber continued as follows:

18. […] [T]here is nothing in the Galić Decision which prevents a written statement given by prospective witnesses to OTP investigators or others for the purposes of legal proceedings being received in evidence notwithstanding its non-compliance with Rule 92bis – (i) where there has been no objection taken to it, or (ii) where it has otherwise become admissible – where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence.[1]

[…]

21. […] Whether it is appropriate in the particular case for [summarising evidence (the summarising of material which is relevant to the issues of the case)] to be admitted will depend upon the circumstances of that case.  If the material being summarised is uncontroversial, there will clearly be a considerable saving of time if that material is summarised either in a document or by one witness rather than given by many witnesses.  In every case, the basic issue is whether the material being summarised would itself be admissible.  A summary made by one person of material provided by another person is necessarily hearsay evidence in character.  The admissibility of hearsay evidence pursuant to Rule 89(C) should not permit the introduction into evidence of material which would not be admissible by itself.  […]

22. Where the material summarised consists of statements made by others (other than written statements by prospective factual witnesses for the purposes of legal proceedings), so that the material summarised would be admissible pursuant to Rule 89(C), the summary still consists of hearsay evidence of those statements made by others, and the reliability of the statements made by those other persons (which are themselves hearsay) is relevant to the admissibility of the summary.  As stated in the Aleksovski Decision […],[2] the Trial Chamber must consider whether the summary is “first-hand” hearsay (that is, whether the persons who made the statements summarised personally saw or heard the events recorded in their statements), and whether the absence of the opportunity to cross-examine those persons affects the reliability of their statements. […] [T]he opportunity to cross-examine the person who summarised those statements does not overcome the absence of the opportunity to cross-examine the persons who made them.  In different cases, of course, the statements may contain their own indicia of reliability which does overcome the absence of that opportunity.

23. The Trial Chamber must also be satisfied as to the reliability of the method by which those statements have been summarised.  This is an issue which can be tested by the cross-examination of the person who made the summary.  The fact that the summary has been prepared for the purposes of the particular litigation may be relevant to whether it should be admitted, but [...] it would be quite wrong to suggest that such a summary is ipso facto unreliable. [...]

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

34. With regard to hearsay evidence, it should be pointed out that this is not inadmissible. The Trial Chamber has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case, in accordance with the provisions of Rule 89 of the Rules.

35. The Appeals Chamber observes that in the instant case, as in Akayesu, some of Rutaganda’s grounds of appeal concern the admission of hearsay evidence in the form of live testimony by witnesses on events which they had not witnessed personally. The Appeals Chamber concurs with the analysis made by the Appeals Chamber in the Akayesu Appeal Judgement[2] wherein it was held that when a witness testifies, their evidence is admitted in that, in the absence of timely objection, it becomes part of the trial record, as reflected in the transcripts, and that the main safeguard applicable to the reliability of the evidence in this case is the preservation of the right to cross-examine the witness on the hearsay evidence which has been called into question.[3] The Appeals Chamber also holds that in these circumstances, although the decision will always depend on the facts of the case, it is unlikely, considering the stage of the proceedings and, in particular, in the absence of any objection, that a Trial Chamber would find that the live testimony of a witness it had just heard, was so lacking in terms of indicia of reliability as to be inadmissible.

See also para. 150. At para. 153, the Appeals Chamber recalled that “the inclusion of witness statements containing hearsay evidence in the trial record does not ipso facto entail one conclusion or another as to their reliability or probative value.” See also paras. 207, 265, 311.

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]

96. […] The Appeals Chamber further recalls that “[a]] Trial Chamber has the discretion to cautiously consider hearsay evidence and has the discretion to rely on it.”[1] However, “the weight and probative value to be afforded to that evidence will usually be less than that accorded to the evidence of a witness who has given it under oath and who has been cross-examined.”[2]

[…]

199. The Appeals Chamber recalls that caution is warranted before basing convictions on hearsay evidence.[3]

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. [...]

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] […]