IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Decision of:
12 February 2004
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________
DECISION ON PROSECUTION MOTION FOR THE ADMISSION OF WITNESS STATEMENT OF INVESTIGATOR BERNARD O’DONNELL IN LIEU OF VIVA VOCE TESTIMONY PURSUANT TO RULES 54 AND 92 bis
__________________________________________________
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
The Accused
Mr. Slobodan Milosevic
Amici Curiae
Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Prof. Timothy L.H. McCormack
THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the International Tribunal"),
BEING SEISED of a "Prosecution Motion for the Admission of Witness
Statement of Investigator Bernard O’Donnell in Lieu of Viva Voce Testimony Pursuant
to Rules 54 and
92 bis", filed by the Prosecution on 3 February 2004 ("Motion"),
requesting that the Trial Chamber admit into evidence the written statement
and related exhibits of Bernard O’Donnell ("witness") without cross-examination
pursuant to Rule 92bis(A) or, if the Trial Chamber does not grant the
Motion or decides that cross examination is necessary, the Prosecution will
seek to tender the statement pursuant to Rule 89(F), and arguing with respect
to the documents that
NOTING the "Amici Curiae Reply to Prosecution Motion for the Admission of Witness Statement of Investigator Bernard O’Donnell in Lieu of Viva Voce Testimony Pursuant to Rules 54 and 92 bis", filed on 9 February 2004 ("Reply"), submitting that it is unfair to the Accused for the Prosecution to tender as evidence documents through a witness who is not able to speak to the issue of how the documents came into the possession of the Prosecution, but nevertheless makes comments on their relevance; if the statement and related materials are admitted, then the witness should be required to attend for cross-examination; and, in relation to the documents themselves the following objections are made:
NOTING that the Amici Curiae have helpfully set out a schedule of the 75 documents in Annex A to their Reply, and that the Trial Chamber will refer to the Tab number of the documents as set out therein,
CONSIDERING that the proposed witness is not in a position to give relevant evidence concerning the content or authenticity of the documents submitted and that it is not appropriate that the documents be introduced through that witness at all,
CONSIDERING that whilst there is precedent within the International Tribunal, and this Trial Chamber, for documents to be admitted into evidence without the requirement that they be tendered formally through a witness,1 it is essential to allow the opposing party an opportunity to challenge the content of the document, either through cross-examination of a witness, oral argument or in a written brief,2
CONSIDERING that certain of the documents (enumerated as follows) are not appropriate for consideration by the Trial Chamber, either because the document should be tendered through an appropriate witness; it is a media report and therefore inappropriate as evidence; it is a photograph or handwritten note which would require specific authentication to be considered admissible; or, in one instance, it is a document specifically excluded by the Trial Chamber in a prior Order: documents 1, 14, 24, 26, 28, 29, 32, 44, 45, 71 and 72,
PURSUANT TO Rules 54 and 89 (F) and 92 bis of the Rules of Procedure and Evidence of the International Tribunal
HEREBY ORDERS AS FOLLOWS:
Done in English and French, the English text being authoritative.
___________
O-Gon Kwon
Judge
Dated this twelfth day of February 2004
At The Hague
The Netherlands
[Seal of the Tribunal]
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