The Prosecution argued that the Trial Chamber erred in concluding that forcing the Defence to seek prior approval to expand its scope of cross-examination would cause harm to the Defence that would substantially outweigh the probative value of the witnesses’ evidence.[1] The Appeals Chamber noted:

22. The Appeals Chamber notes that in the Impugned Decision, the Trial Chamber held that “[t]here is no obligation on the Defence to indicate in advance the line of cross-examination to be pursued” and that “[t]o require them to seek permission for examination on a particular subject would oblige them to make disclosure not required by the Rules.”[2] It considered that this Rule 70 condition required it to exclude the proposed testimony under Rules 70(G) and 89(D) of the Rules. The Appeals Chamber finds that the Prosecution has failed to demonstrate a discernible error in this approach. While the Trial Chamber did not specifically state to whom the Defence would unfairly be obliged to make disclosure with respect to its line of cross-examination, it is clear that it would at least have to do so to the Rule 70 provider and, consequently, General Clark as the witness. The Rule 70 provider would have to inform General Clark that he is allowed to answer questions beyond the original scope of cross-examination stipulated and, as a result, any advantage gained by pursuing a new line of cross-examination would be mitigated or even lost given that General Clark would be prepared for it.

23. Furthermore, as found above, the Trial Chamber was not required to find actual harm to the fairness of the trial that has resulted from the application of this Rule 70 condition upon admission of General Clark’s testimony into evidence in order to find that the testimony should be excluded under Rules 70(G) and 89(D).[3] Nor was it required to consider other remedies than exclusion of that testimony from the record once the harm was done. It was appropriate under Rules 70(G) and 89(D) of the Rules for the Trial Chamber to find that the application of this Rule 70 condition as it stands would result in unfairness that substantially outweighs the probative value of that testimony such that the testimony should not be admitted in the first place.[4]