Unconscious transference phenomenon

Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.

165. As to the possibility of unconscious transference, Professor Wagenaar’s expert report, which was admitted into evidence and relied upon by the Trial Chamber,[1] explained the rules for identification tests applicable to unfamiliar personsas follows:

Rule 1. […] [T]here should not be even a single occasion at which the witness might have seen the perpetrator before he encountered him at the scene of the crime.

Rule 2. […] [A]fter the crime the witness should not have seen any pictures of the suspect. […]. This phenomenon is called unconscious transference […]

166. In its challenged finding, the Trial Chamber reasonably considered Rule 2 on the possibility that unconscious transference will occur when the witness is exposed to an image of the perpetrator after the commission of the crime. […]

196. The Appeals Chamber is satisfied that the Trial Chamber was correct in finding that, after the events in the prison camp, all of these witnesses saw Fatmir Limaj in the media. Furthermore, none of the identification evidence of these witnesses was rejected on the basis of possible unconscious transference alone. Therefore, the Appeals Chamber is satisfied that the Trial Chamber reasonably took this possibility into account when refusing to accept the identification evidence of these witnesses.[5]

[1] Trial Judgement, para. 550 to be read in light of ibid., para. 19 in fine. See also ibid., para. 537 and fn. 1769.

[2] Ex. DM7 “1). Curriculum Vitae of Professor Wagenaar and 2). Expert Report of Professor Wagenaar ‘Report to the ICTY, IT-03-66 Against Fatmir Limaj, Haradin Bala and Isak Musliu’, dated 22 May 2005”, paras 6 and 8.

[3] Ibid., Rule 1, para. 10.

[4] Ibid., Rule 2, para. 11.

[5] See Trial Judgement, paras 534 (Ivan and Vojko Bakrač), 540 (Witnesses L06 and L10) and 544 (Witness L04).

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