Recently, in the Župljanin and Stanišić case, the Trial Chamber stressed that it did not consider Rule 90(H)(ii) as requiring it to compel the Defence to present the nature of its case in contradiction of the evidence of Prosecution witnesses.
However, the Chamber held that there would be consequences to a decision by the Defence to not put the nature of its case when contradictory to the evidence of the witness on the stand.
In particular, the Chamber affirmed that where evidence is later presented to contradict a Prosecution witness, the nature of which was not put to that witness, it will evaluate the circumstances and decide on a case-by-case basis what weight should be attached to such evidence and will take into account the fact that the Prosecution witness was not given the opportunity to comment on the contradictory evidence.
Indeed, the Trial Chamber could ascribe no probative value to contradictory Defence evidence the nature of which was not put to the Prosecution witness while on the stand. Moreover, if the circumstances are sufficiently egregious, the Trial Chamber may preclude the Defence from adducing such contradictory evidence and avoid recalling witnesses.
Župljanin and Stanišić, Decision on Prosecution's Motion Seeking Clarification in Relation to the Application of Rule 90(H)(ii), Case No. IT-08-91-T, T. Ch., 12 May 2010