The Accused appealed against a Decision of the Trial Chamber admitting into evidence from the bar table the record of the Prosecution’s interview with him. When considering whether the Trial Chamber erred in exercising its discretion to admit the record of the interview pursuant to Rule 89(D) of the ICTY Rules of Procedure and Evidence, the Appeals Chamber made the following findings:

14.     With respect to the Appellant’s first argument, that the Rules do not permit a record of an interview with the accused to be tendered into evidence unless the accused has chosen to testify or has consented to the tender, the Appeals Chamber does not agree that the Rules impose such a categorical restriction.  The Rules instead grant Trial Chambers considerable discretion on evidentiary matters; in particular Rule 89(C) states that a “Chamber may admit any relevant evidence which it deems to have probative value”.  Here the Trial Chamber was satisfied that the record of interview was relevant and probative, and the Appellant does not dispute these points.  The Trial Chamber therefore had the discretion to admit the record, at least so long as doing so did not violate any of the specific restrictions outlined in the remainder of the Rules, nor the general principle of Rule 89(B) requiring application of “rules of evidence which will best favour a fair determination of the matter before it andare consonant with the spirit of the Statute and the general principles of law”.

15.     The Appeals Chamber does not find that fairness or the “spirit of the Statute and general principles of law” require that the admissibility of an accused’s prior statements turn on whether he has agreed to testify or consented to the admission.  The Appellant’s argument to the contrary rests implicitly on the right of an accused against self-incrimination.  An accused has the right to refuse to give statements incriminating himself prior to trial, and he had the right to refuse to testify at trial.  But where the accused has freely and voluntarily made statements prior to trial, he cannot later on choose to invoke his right against self-incrimination retroactively to shield those statements[1] from being introduced, provided he was informed about his right to remain silent before giving this statement; there is, however, a presumption that he knows about this right if he is assisted by counsel.  Nor does the Appellant point to any provision of the Rules or rules of customary international law that specifically imposes such a restriction on the admission of an accused’s prior statements.  The Appeals Chamber therefore concludes that no such rules exists.

16.     The Appellant’s second complaint, that the method of introducing the evidence (via tender from the bar table) breached the principle of orality, is misplaced.  There is to be sure, a general principle that witnesses before the Tribunal should give their evidence orally rather than have their statement entered into the record.  The principle has its origin in the Roman law requirement that parties before a tribunal make submissions orally rather than in writing, and exists in various forms in common and civil law traditions today.  The principle of orality and its complement, the principle of immediacy, act as analogues to common law hearsay rules and are meant to ensure the adversarial nature of criminal trials, and the right of the accused to confront witnesses against him.  

17.     However, the principle of orality, as reflected in the Rules, is not an absolute restriction, but instead simply constitutes a preference for the oral introduction of evidence.  Rule 89(F) states that a “Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.[2] The Tribunal’s jurisprudence recognises that the interests of justice may often allow for the admission of prior statements of the accused.  The principle of orality is weaker in application to the accused’s own statements than to the testimony of other witnesses.  As the Appeals Chamber explained in the Kvočka case, the rules of evidence applicable to witness testimony do not always apply to the statements of an accused: “[t]here is a fundamental difference between an accused, who might testify as a witness if he so chooses, and a witness”. [3]  The principle of orality is intended principally to ensure the accused’s right to confront the witnesses against him, and in this respect its logic is not applicable to the accused’s own statements.  Moreover, to the extent that the principle of orality ensures that in-court witness testimony (generally understood to be more reliable) is used instead of those witnesses’ out-of-court statements where possible, that logic is also less applicable to the accused’s statements, for the accused may, as the Appellant did, refuse to testify.