Wednesday, November 26, 2008

Witness Proofing & International Criminal Law

In a series of procedural rulings, the International Criminal Court is asserting its inquisitorial character. One decision in particular has caught my attention: that concerned with the practice of a party meeting with a witness in advance of trial to prepare him or her to give testimony, often called witness proofing.

Preparing witnesses in advance of trial has been expressly condoned by the ad hoc tribunals, notwithstanding that they draw personnel from a variety of procedural backgrounds and systems. For example, in Karemera, one of the defendants, Édouard Karemera (left) (photo credit), had sought an order from a Trial Chamber of the International Criminal Tribunal for Rwanda preventing the Prosecution from preparing its witnesses prior to their giving testimony. Rejecting the motion, the Trial Chamber, at paragraph 15, sanctioned the practice under the following conditions:

Provided that it does not amount to the manipulation of a witness’s evidence, this practice may encompass preparing and familiarizing a witness with the proceedings before the Tribunal, comparing prior statements made by a witness, detecting differences and inconsistencies in recollection of the witness, allowing a witness to refresh his or her memory in respect of the evidence he or she will give, and inquiring and disclosing to the Defence additional information and/or evidence of incriminatory or exculpatory nature in sufficient time prior to the witness’s testimony.

The Appeals Chamber affirmed, noting that in the absence of an express rule on point, Rule 89(B) of the Tribunal’s Rules of Procedure and Evidence generally confers discretion on the Trial Chamber to apply

rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

Indeed, a survey of national law revealed wide variations in witness preparation practices, suggesting no general principle of law and no consensus that the practice is inherently unethical or prejudicial to the accused. The Chamber noted that the defendant is free to explore issues of witness coaching or manipulation on cross-examination.

A Trial Chamber of the ICC has taken an opposite approach, and this raises concerns with respect to witness preparation in general and with the prosecution of gender crimes in particular. In the case of Thomas Lubanga Dyilo (left) (photo credit), the ICC Pre-Trial Chamber specifically prohibited the Prosecution from proofing its witnesses on the ground that the Prosecution had failed to show that the practice is widely accepted in international criminal law, which would enable it to be considered part of the applicable law of the Court pursuant to Article 21(1). The Pre-Trial Chamber reasoned that witnesses “belong” to neither the Prosecution nor the Defence, but are rather witnesses of the Court. A Trial Chamber affirmed the decision on a motion for reconsideration, noting that the ICC’s procedures differ markedly in a number of ways from the procedural regimes of the ad hoc tribunals. It determined that while it may be appropriate for a witness to review his or her prior statements, there should be no discussion of the topics to be dealt with in court that might result in a “rehearsal” of trial testimony. As it now stands before the ICC, the general familiarization with the courtroom and its proceedings are to be conducted by the Registry rather than by either party.

The ICTR position seems the better one in the context of international criminal law, where trials may happen years from the events in question and involve traumatized witnesses with little experience with legal institutions or processes. Allowing the parties to meet with witnesses in advance of their testimony can enable witnesses to
► refresh their recollections of events;
► review any prior statements;
► fully identify relevant facts (including exculpatory evidence);
► work on presenting their evidence in a more complete, orderly, and structured manner; and
► prepare for cross-examination.

Having witnesses take the stand “cold” threatens to
► render them unprepared to testify effectively before the Court,
► set them up for re-traumatization during any cross-examination, and
► risk their being discredited where their testimony is stilted, confused or diverges from statements that may have been taken years prior.

Victims of sexual violence, in particular, may find it difficult to testify about what happened to them without the benefit of some prior preparation.

If the Lubanga decision is adopted by the entire ICC, it will be crucial for the ICC judges to manage the trial process so that it does not devolve into an adversarial proceeding for which witnesses will be ill-prepared. Allowing witnesses to be aggressively cross-examined by either side without warning or preparation could be severely re-traumatizing and would undermine any rehabilitative potential of participating in a justice process.
International criminal law procedural rules are, no doubt, sui generis. The risk is, however, that international criminal tribunals simply pluck particular procedural rules out of their larger context without recognizing that these rules exist in an inter-locking and inter-dependent system. The result can be a Frankenstein's monster of procedural rules that does nothing to promote efficiency or fairness.


Kevin Jon Heller said...

I have no problem with the basic idea of witness proofing, though Beth's sunny description of it seems somewhat at odds with the rampant perjury committed by both prosecution and defense witnesses at the ICTR. I am very troubled, though, by her suggestion that "it will be crucial for the ICC judges to manage the trial process so that it does not devolve into an adversarial proceeding for which witnesses will be ill-prepared." I am far from an unabashed fan of the adversarial system, but the desire to protect witnesses does not justify undermining the defendant's right to "aggressively cross-examine" them. The trial phase does not exist in isolation; because the investigative phase is primarily adversarial, the trial phase must be, as well. (Exhibit A: the Prosecutor's systematic misuse of confidentiality agreements, which almost led the Trial Chamber to let Lubanga walk.)

Helping witnesses cope with the rigors of trial is important and necessary. But that should not be the responsibility of the parties, who -- let's be honest -- are fare more interested in developing effective testimony than protecting witnesses from psychological harm. Instead of limiting the adversarial nature of an ICC trial, therefore, it would be far better to appoint an independent third party to prepare witnesses for the rigors of cross-examination.

Beth Van Schaack said...

Hi Kevin,

Part of the articulated justification for disallowing proofing was that the judges envision the ICC penal process as being more inquisitorial than adversarial. My concern is that the ICC will have no proofing a la the inquisatorial model and then rigorous x-ex a la the adversarial model. Under these conditions, witnesses will be caught in the cross fire.

B. Don Taylor III said...

Hi Beth,

I believe your concerns are justified. Preparation of the witness is only one facet of witness proofing, and arguably one of the less important in the context of the truth seeking function of an adversarial criminal trial. Rather than regurgitate arguments here, I would refer you to three articles discussing the subject recently published in the Leiden Journal of International Law (Yes, this is a shameless plug as I am a co-author of two of them). Given your interest in the subject, I would be greatly interested in your thoughts.

Kevin, I would invite yours as well.

'Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence', LJIL 21(3); 'Witness Proofing: A Reply to Karemaker, Taylor and Pittman', LJIL 21(4): 'Witness Proofing in International Criminal Tribunals: Response to Ambos', LJIL 21(4).