Impeachment of a witness

Notion(s) Filing Case
Decision on Impeachment - 01.02.2008 POPOVIĆ et al.

24. While the Tribunal is in no way bound by the rules of the common law[1] and the Rules do not provide clear guidance on the question of impeaching a party’s own witness, Rules 85 and 90 are nonetheless largely reflective of the common law system. It is the parties who call and question “their” witnesses in turn and who are then cross-examined by the opposing side.[2] Accordingly, recognizing that the procedure for the hearing of witnesses at the Tribunal is rooted in the adversarial process, it is important to be cautious in removing safeguards that belong to that process for reasons of fairness to the parties and for the purpose of ascertaining the truth; in this case, leaving the determination of adversity, and the green light to cross-examine, to the calling party rather than to the Trial Chamber.[3] 

26. The Appeals Chamber considers that notwithstanding the exact form the impeachment procedure takes, the Trial Chamber must be the one to determine whether to allow the calling party to cross-examine its witness. It must also be the one to limit the scope of the questioning, if and to the extent it considers appropriate, within its discretion. Despite the Prosecution’s assertion that the Trial Chamber has not abandoned or undermined its authority to control the nature and extent of a witness’ examination under Rule 90(F), it is difficult to interpret the Impugned Decision otherwise. By stating that “a party need not seek permission to challenge the credibility of its own witness nor is the process of having a witness declared “hostile” necessary before taking such a step”, the Trial Chamber leaves no room for objections to impeachment.[4] Furthermore, objections to the scope of the challenge also appear to be precluded by the Trial Chamber’s assertion that it “would not place any limitations on the way in which such a challenge may be conducted.”[5] This is the prejudice occasioned by the discernible error.

28. The Trial Chamber’s practice to date, as well as that of other Trial Chambers,[6] demonstrates a general if not altogether consistent approach that puts the decision to allow a party to put a prior statement to its own witness and cross-examine that witness in the hands of the Trial Chamber. This may or may not be done on the basis of a prior determination of hostility. In this light the Appeals Chamber considers that the Trial Chamber’s decision to put the determination to impeach in the hands of the calling party constitutes a discernible error. It further considers that the Trial Chamber committed a discernible error in deciding to leave the scope of the challenge to the discretion of the impeaching party. It may be that the Trial Chamber will decide to allow a calling party to put a prior inconsistent statement to its witness in order to clarify a particular contradiction without declaring the witness hostile. The interests of justice dictate a certain measure of flexibility. However, this again will be a matter for the Trial Chamber to determine in the circumstances before it.

[1] Rule 89(A) of the Rules.

[2] See e.g. Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Decision on the Prosecution’s Motions to Admit Prior Statements as Substantive Evidence, 25 April 2005 (“Limaj Decision”), para. 8.

[3] The determination of adversity lies with the court at common law. Canada, Australia and the United Kingdom all have nearly identical statutory provisions to this effect. Canada: Canada Evidence Act, R.S.C. 1985, C-5, s. 9: "A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement”; Australia: Evidence Act 1929 (S.A.), s. 27, see also, R v. Hutchison (1990) 53 SASR 587 at 592: "The crucial consideration is that the party calling the witness is unable, by reason of the witness's unwillingness to tell the truth or the whole truth, to elicit the true facts by non-leading questions"; United Kingdom: Criminal Procedure Act 1865 c18, s 3, see also, R v. Jobe, [2004] EWCA Crim 3155. See also United States of America: Federal Rules of Evidence, 28 U.S.C. app., Rules 607: “The credibility of a witness may be attacked by any party, including the party calling the witness" and Rule 611(c): “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." See also, Ellis v. Chicago, 667 F2d 606 at 613 (7th Cir, 1981) (internal citations omitted): “In essence, Rule 611(c) codifies the traditional more of dealing with leading questions. It acknowledges that they are generally undesirable on direct examination, that they are usually permissible on cross-examination, and that there are exceptions to both of these propositions. Although not explicitly stated, the rule is consistent with what has long been the law – that in the use of leading question much must be left to the sound discretion of the trial judge who sees the witness and can, therefore, determine in the interests of truth and justice whether the circumstances justify leading questions to be propounded to a witness by the party producing them.”

[4] [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, T. 15457-15458, Decision on Certification and Clarification of the Trial Chamber’s Oral Decision on Impeachment of a Party’s Own Witness, 21 November 2007], para. 14.

[5] Id.

[6] See e.g. Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, T. 807, 24 January 2002; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, T. 2735-2742 and T. 4002-4010; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, T. 8558-8559, 23 November 2004. See also, [Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Admission into Evidence of Prior Statement of a Witness, 5 July 2005], p. 3 (“the party calling the witness may challenge the witness’ credibility on portions of his or her testimony, without necessarily [seeking leave from the Trial Chamber], by confronting the witness with specific passages of his or her prior statement, so that explanations can be given for the alleged discrepancies and these explanations can be tested by cross-examination”); Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, T. 16732-16733. 

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ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Decision on Admission of Exhibits - 15.04.2008 DELIĆ Rasim

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.

[1] Rule 89(D) of the Rules.

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ICTR Rule Rule 89(C);
Rule 90(F)
ICTY Rule Rule 89(C);
Rule 90(F)