Due Process Erosion: The Diminution of Live Testimony at the ICTY
California Western International Law Journal, Vol. 34, p. 47, 2003
37 Pages Posted: 19 Nov 2010
Date Written: 2003
Shortly after its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted an adversarial construct and advocated a preference for the presentation of direct evidence, or live witness testimony, in its criminal trials. In the wake of that decision and under considerable pressure to expedite its proceedings, the ICTY judges responded with efforts to streamline the trial process, amending the Tribunal’s Rules of Procedure and Evidence so as to incrementally increase the admissibility of written evidence. This article tracks the relevant rule changes and questions the merit of the decision to move away from live testimony. By highlighting the manner in which the shift lies at odds with the Tribunal’s adversarial system, this article establishes that the demise of live testimony at the ICTY interferes with the fair trial rights of the accused, in particular, the right to confront one’s accusers. It also refutes the assertion that the continental practice of admitting written evidence has analogical value with respect to the ICTY, raises the concern that the practice is actually an impediment to establishing the truth, and presciently raises concerns about the future diminution of live testimony at the Tribunal.
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