Admissibility of testimony of a deceased witness

Pursuant to Rule 92 quater of the ICTY Rules, the evidence of a person in the form of a written statement or transcript who has subsequently died, even if the evidence which goes to proof of acts and conduct of accused. However, according to the Rule, this may be a factor against the admission of such evidence, or that part of it.

The Trial Chamber in the Šešelj case dismissed the entire testimony of a deceased witness when some of it directly alleged the responsibility of the accused.

Šešelj, Redacted Version of the “Decision on the Prosecution’s Consolidated Motion pursuant to Rules 89(F), 92 bis, 92 ter and 92 quater of the Rules of Procedure and Evidence” Filed Confidentially on 7 January 2008, Case No. IT-03-67-T, T. Ch., 21 February 2008.

Recently the Trial Chamber in the Karadžić case denied admission of the portion of the transcript of the witness’s testimony related to an intercept which was, in the Chamber’s view, “highly incriminatory and thus highly prejudicial to the accused.” The Chamber noted that the witness had not been cross-examined on his evidence surrounding the intercept or the contents of the intercept itself.

According to the Chamber, admitting this transcript, without any chance for cross-examination, would impact the accused’s fair trial rights. As such, the probative value of admitting this portion of the witness’s evidence is substantially outweighed by the need to ensure a fair trial.

The Chamber noted that it differed from the Šešelj approach as Rule 92 quater, according to the Chamber, specifically accounts for situations where cross-examination of evidence going to acts and conduct is impossible and then provides a number of other factors that need to be balanced before such evidence can be admitted.

Karadžić, Decision on Prosecution’s Motion for Admission of the Evidence of KDZ172 (Milan Babić) pursuant to Rule 92 quater, Case No. IT-95-5/18-T, T. Ch., 13 April 2010.

In his Partially Dissenting Opinion, judge Kwon opined that the incriminating or prejudicial nature of evidence in relation to the accused is not one of the criteria to be assessed in determining its admission pursuant to Rule 92 quater, and no other Chamber had found it to be so.

With regard to the place of cross-examination in prior proceedings as a factor in making an assessment of admissibility under Rule 92 quater, the judge noted that the presence, absence, or poor quality of cross-examination in the prior proceedings should be analysed in the overall assessment of that evidence as a whole. It cannot be considered as a discrete test applicable to individual passages, questions or parts of the testimony or statement.