At the outset, the Appeals Chamber specified that its use of the term “fresh evidence”[1] referred, for the purposes of the present decision, to material that was not included in the Prosecution Rule 65 ter list, not admitted during the Prosecution’s case-in-chief but tendered by the Prosecution when cross-examining Defence witnesses. It further clarified that, in this decision, the term was not limited to the material that was not available to the Prosecution during its case-in-chief (para. 15).

23. The Appeals Chamber recalls that, “[a]s a general rule, the Prosecution must present the evidence in support of its case during its case in chief”.[2] This stems from the rights of the accused under Article 21(4)(b) and (e) of the Statute pursuant to which “when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it”.[3] Consequently, when the Prosecution seeks to introduce fresh evidence, after the closure of its case-in-chief, it has to specifically justify its request.[4] The Trial Chamber may authorize the deviation from the said sequence if it is satisfied that it is in conformity with the other applicable provisions, notably Rule 89(D) of the Rules. The Impugned Decision is correctly premised on this principle noting that, pursuant to Rule 85(A) of the Rules, the sequence of the presentation of evidence may be changed if the Trial Chamber deems it to be in the interests of justice.[5] Therefore, the Appeals Chamber cannot agree with the Appellants that there is an absolute ban for the Prosecution to tender evidence once its case presentation has been closed (save for rebuttal and re-opening). In sum, the Trial Chamber has the discretion to admit fresh evidence under Rule 89(C) and (D) of the Rules, taking into account both the probative value of that evidence and the need to ensure a fair trial.[6] Where the admittance of this evidence constitutes a variation of the sequence of the presentation of evidence set out in Rule 85(A) of the Rules, the Trial Chamber may exercise its discretion to admit the evidence only where it is in the interests of justice.[7]

24. In order to clarify the circumstances under which it would allow admission of fresh evidence after the closure of the Prosecution case-in-chief, the Trial Chamber emphasized that it would do so only in exceptional circumstances where the interests of justice so require, such as “the importance of the ‘new document’”. It went on to specify that, with respect to material aimed at establishing the guilt of an accused, the Prosecution must also “explain to the Chamber when and by which means it obtained these documents, when it disclosed them to the Defence and why they are being offered only after the conclusion of its case”. Finally, the Trial Chamber stated that it would proceed with the assessment of such requests on a case-by-case basis, after having permitted the Defence to challenge the evidence, particularly bearing in mind the potential infringement on the rights of the accused caused by the sought admission. The Appeals Chamber is satisfied that this careful approach establishing a high threshold for the admission of fresh evidence duly mindful of Rule 89(C) and (D) of the Rules may be justified, depending on the specific circumstances of the case. The Appellants have thus not demonstrated any error in the Trial Chamber’s conclusions in this regard.

28. With reference to the Delić Decision, the Trial Chamber resolved that fresh evidence probative of the Appellants’ guilt may only be admitted during the presentation of their respective cases in exceptional circumstances.[11] While the Impugned Decision appears to be more lenient to the admission of the fresh evidence for the sole purpose of “impeaching a witness’s credibility or refreshing his/her memory”, it still specifies that the Trial Chamber will decide on the admission on the case-by-case basis in conformity with Rule 89 of the Rules.[12] In light of the above clarifications, the Appeals Chamber does not find that such approach is erroneous.