Restriction of scope of testimony under Rule 70

Notion(s) Filing Case
Decision on Adding Wesley Clark to Witness List - 20.04.2007 MILUTINOVIĆ et al.

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]

[1] Decision, para. 21.

[2] Impugned Decision, para. 27.

[3] See supra para. 17.

[4] See supra paras 17-18, 20.

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ICTR Rule Rule 70 ICTY Rule Rule 70
Notion(s) Filing Case
Decision on Flaten's Testimony - 17.07.2007 BIZIMUNGU et al. (Government II)

17. The Appeals Chamber recalls that Rule 70 has been incorporated in the Rules to encourage States to fulfill their cooperation obligations under Article 28 of the Statute of the Tribunal.[1] It creates an incentive for such cooperation by permitting information to be shared on a confidential basis and by guaranteeing the providers of such information that the confidentiality thereof, together with its sources, will be protected.[2] Rule 70 operates on the basis that governments showing a genuine interest in protecting the information in their possession may invoke Rule 70 to ensure the protection of such information by requiring limitations on the scope of a witness’s testimony or on the dissemination of that witness’s testimony.[3] If a Trial Chamber finds that the information has been provided in accordance with Rule 70(B), the information will benefit from the protections afforded under Rules 70(C) and (D).[4] However, the restrictions referred to under Rules 70(C) and (D) will only apply after the Trial Chamber has determined that the restrictions imposed by the government upon the witness’s testimony would not undermine the need to ensure a fair trial, and that the need to ensure a fair trial would not substantially outweigh the probative value of the testimony so as to lead to its exclusion.[5] Indeed, Rule 70(F) provides that Rule 70 restrictions shall not “affect a Trial Chamber’s power under Rule 89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[6]

[1] See Milutinović et al. Decision [Prosecutor v. Milan Milutinović et al., Case No IT-05-87-AR73.1, Decision on Interlocutory Appeal against Second Decision Precluding the Prosecution from Adding General Wesley Clark to its 65ter Witness List, 20 April 2007], para. 18. Article 28(1) reads: “States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”

[2] Prosecutor v. Slobodan Milošević, Case No IT-02-54-AR108bis&AR73.3, Decision on Interpretation and Application of Rule 70, confidential, 23 October 2002 (“Slobodan Milošević Decision of 23 October 2002”), para. 19.

[3] Prosecutor v. Dragomir Milošević, Case No IT-98-29/1-T, Decision on Prosecution’s Application for Rule 70 Conditions for Testimony of Witness W-156 and Prosecution Motion for Admission of Witness Statement Pursuant to Rule 92ter, 23 April 2007. p. 3. See also Prosecutor v. Milutinović et al., Case No IT-05-87-T, Second Decision on Prosecution Motion for Leave to Amend its Rule 65ter Witness List to Add Wesley Clark, 16 February 2007, para. 26.

[4] See Slobodan Milošević Decision of 23 October 2002, paras. 20 and 29.

[5] See Milutinović et al. Decision, para. 18.

[6] See Milutinović et al. Decision, para. 16, referring to Rule 70(G) of the Rules of the ICTY.

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