The Admissibility and Weight of Written Witness Testimony in International Criminal Law: A Socio-Legal Analysis
(2013) 26(4) Leiden Journal of International Law (Forthcoming)
23 Pages Posted: 30 Jun 2013
Date Written: June 28, 2013
This article introduces some quantitative and qualitative analysis to the use of written witness statements in lieu of oral testimony at trial to assess the impact of the more liberal rules on admissibility of evidence before the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone in practice. It traces pieces of evidence admitted under the newer, more liberal rules on written witness testimony from admissibility to judgment, to establish what impact, if any, the liberal admissibility rules have had in practice and whether the critique that such rules might jeopardise fair trial standards has been realised. The analysis illustrates that the newer rules on admissibility are used with relative infrequency in some tribunals, but that the admission of such statements could raise the question of equality of arms in others, given that the more liberal rules on written statements tend to be used more frequently by the prosecution than by the defence. It will be shown that some Chambers have continued to emphasise the importance of oral testimony and have taken a very cautious approach when weighing written testimony, whilst others have suggested that written testimony that was not subject to full cross-examination should not, in principle, be given less weight than oral testimony. The ‘totality of the evidence’ approach in weighing the evidence shall be analysed from a practical standpoint, and it shall be shown that recent Appeals Chamber jurisprudence suggests that Trial Chambers may need to take a more particularised approach to pieces of evidence in the future.
Keywords: International criminal procedure, evidence, fair trial, orality, witness testimony
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