283.    The Appeals Chamber agrees that the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application.  If it is shown that the evidence could not have been found with the exercise of reasonable diligence before the close of the case, the Trial Chamber should exercise its discretion as to whether to admit the evidence by reference to the probative value of the evidence and the fairness to the accused of admitting it late in the proceedings.  These latter factors can be regarded as falling under the general discretion, reflected in Rule 89 (D) of the Rules, to exclude evidence where its probative value is substantially outweighed by the need to ensure a fair trial.  […]

25. As to the standard applied by the Trial Chamber with respect to what constitutes fresh evidence, Čermak and Markač seem to argue that because the Prosecution had evidence in its possession showing that Bilobrk was a forensic technician involved in the work of the sanitation teams at Knin, his testimony could not constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief.[1] The Appeals Chamber does not agree with this interpretation. The evidence that the Prosecution seeks to introduce is Bilobrk’s specific testimony concerning Čermak’s or someone else’s alleged suggestion to plant weapons by the bodies of the victims in Grubori. In this respect, the fact that the Prosecution was unaware of this part of Bilobrk’s testimony until the results of the investigation conducted by the Croatian authorities became known, is uncontested by the parties.[2] Accordingly, the Trial Chamber correctly focused its assessment on whether the specific testimony of Bilobrk may constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief. […]