SCSL: Prosecution not allowed to cross-examine its witness

The Prosecution in the Taylor case had applied for subpoena for a witness, who declined to communicate with it or to voluntarily testify in the trial. The Chamber granted the motion and noted that the witness’s anticipated testimony related to issues that are relevant to the trial.

Last week, when the subpoenaed witness appeared in the court, the Presiding judge did not allow the Prosecution to cross-examine the witness, noting that it is improper to “impeach one’s own witness”.
In regard to the Prosecution’s remark that the witness was not a Prosecution witness but rather “more of a court witness because of her material relationship with the event”, the Presiding judge stated that the witness was subpoenaed at Prosecution request and the Court regards her as a Prosecution witness.

Taylor, transcript, Case No. SCSL-03-1-T, 5 August 2010, pp. 45513-45514

Indeed, in adversarial system, a witness may be considered as hostile if he is not prepared to speak the truth.

It was observed in the Limaj et al. case (ICTY) that in adversarial system the general position is that a party calling a witness may not discredit that witness. However, in the case of an adverse or hostile witness, the prohibition against discrediting is relaxed.
In that case, the Trial Chamber was persuaded that some Prosecution witnesses were not prepared to speak the truth at the instance of the party who had called the witness. The witnesses were treated as “hostile” and leave was given to the Prosecution to cross-examine them.

Similarly, in some other ICTY cases, such as Brđanin and Popović et al. cases, the Trial Chambers held that, given the Chamber’s permission, a party may to treat its witness as a hostile or an adverse one and in this context, contradict that witness by other evidence.

In the Lubanga case (ICC), the Trial Chamber also allowed the Prosecution to cross-examine its witness since he shown “hostility” towards the Prosecution.

Defence failure to put to the witness the nature of its case in cross-examination

Pursuant to Rule 90(H)(ii) of the ICTY Rules and relevant provisions of other Tribunals, in the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of his case which is in contradiction of the evidence given by the witness.

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