Sequence of presentation

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Decision on Fresh Evidence - 26.02.2009 PRLIĆ et al.

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.

[1] Cf. Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR73.1, Decision on the Prosecution’s Appeal Against the Trial Chamber’s Order to Call Alibi Rebuttal Evidence During the Prosecution’s Case in Chief, 16 October 2008 (“Lukić Decision”), paras 16-17 referring to Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 271; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”), para. 216 and fn. 306.

[2] Lukić Decision, paras 11 and 12 (“evidence which strengthens the Prosecution’s case […] must be led in its case in chief”); Kordić and Čerkez Appeal Judgement, para. 216; See also, Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision III on the Admissibility of Certain Documents, 10 September 2004, para. 5; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Prosecution Motion for Reconsideration Regarding Evidence of Defence Witnesses Mitar Balević, Vladislav Jovanović, Vukašin Andrić, and Dobre Aleksovski and Decision Proprio Motu Reconsidering Admission of Exhibits 837 and 838 Regarding Evidence of Defence Witness Barry Lituchy, 18 May 2005 (“Milošević Decision”), paras 9-11.

[3] Delić Decision [Prosecutor v. Rasim Delić, Case No. IT-04-83-AR73.1, Decision on Rasim Delić’s Interlocutory Appeal Against Trial Chamber’s Oral Decision on Admission of Exhibits 1316 and 1317, 15 April 2008], para. 22.

[4] Čelebići Appeal Judgement, para. 271; Delić Decision, para. 22.

[5] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 27 November 2008], paras 12, 15, 16, 23.

[6] Cf. Kordić and Čerkez Appeal Judgement, para. 222 referring to fresh evidence that was not available to the Prosecution during its case-in-chief.

[7] Kordić and Čerkez Appeal Judgement, para. 216.

[8] Impugned Decision, para. 20.

[9] Ibid., para. 20.

[10] Ibid., paras 20-22, 24, 26.

[11] Impugned Decision, paras 11, 23.

[12] Ibid., para. 24.

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ICTR Rule Rule 85(A);
Rule 89(C)
ICTY Rule Rule 85(A);
Rule 89(C);
Rule 89(D);
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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto

In paragraphs 74–78 the Appeals Chamber considered the Appellant’s contention “that, by preventing him from introducing the testimony of [two witnesses] when the proceedings were re-opened, the Trial Chamber violated his right, under Article 21(4) of the Statute, to examine, and obtain the attendance of, relevant witnesses on his behalf”. The Appeals Chamber held:

75. Article 21(4)(e) of the Statute grants an accused the right “to obtain the attendance and examination of witnesses on his behalf”.  This right is, for obvious reasons, subject to certain conditions, including a requirement that the evidence should be called at the proper time.[1]  In this regard, the Appeals Chamber observes that the Appellant was obliged, under the applicable rules, to present all available evidence at trial.  However, it should be noted that the proceedings were re-opened due to the exceptional circumstance of the Prosecutor’s late disclosure of material which, in the view of the Trial Chamber, “clearly had the potential to affect the 'credibility of prosecution evidence’”.[2] […] 

At paragraph 78, the Appeals Chamber concluded that “the Trial Chamber did not err when it decided to deny the Appellant the right to call [the witnesses] on the ground that the proposed testimony fell outside the scope of the re-opened proceedings.”

[1] Rule 85 of the Rules provides that evidence at trial shall be presented in a certain sequence unless otherwise directed by the Trial Chamber in the interests of justice. 

[2] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Decision, 16 July 1998, para. 17 (original emphasis).

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ICTR Rule Rule 85(A) ICTY Rule Rule 85(A)