Court Rejects Investigator's Summary of 1300 Witness Statements: Summary unhelpful where investigator did not interview witnesses

On the seventh day of Slobodan Milosevic's trial for war crimes and crimes against humanity, the Trial Chamber, with one judge absent, dealt a blow to the prosecution's case by denying its request to introduce an investigator's summary of 1300 witness interviews. The summary was offered in support of the prosecution's theory that deportation of 90% of the Albanian population from Kosovo followed a clear pattern, therefore supporting the contention that the deportation was part of a plan devised by Mr. Milosevic and his co-accused. The investigator, Kevin Curtis, reviewed all 1300 statements from which, based on his expertise, he drew certain conclusions. He did not, however, personally interview those who gave the statements, nor was he present.

As lead prosecutor Geoffrey Nice argued, it would be impossible for even a significant minority of the 1300 witnesses to present live testimony in a reasonable time. Therefore, the prosecution had selected 20 statements each from 24 sites in Kosovo (480 witnesses). They culled the testimony further to ten sites and five witnesses each and proposed to present only one to two live witnesses per site, with testimony of the remainder presented in written form. Written statements in lieu of oral testimony are allowed by ICTY Rule 92 bis, with the court's permission. This Trial Chamber has yet to decide the extent of admissibility of what are called 92 bis statements. (See Report to be posted for discussion of Rule 92 bis.)

Mr. Nice stressed that the investigator's summary would be helpful to the judges and to the accused, remarking that he considered Mr. Milosevic's participation in the process enormously helpful. He argued that Mr. Milosevic's opening remarks indicated that he might challenge the crime-based evidence directly, e.g. attempting to show that Kosovo Albanians left the province voluntarily to avoid NATO bombs and/or that killing, looting and property destruction were caused by rogue elements against superior orders.

The amici curiae, through Mr. Steven Kay, argued against admission of the investigator's summary evidence for the reason that it was a repetition of the prosecution's opening statement, not evidence of something he actually witnessed or even heard directly from the witnesses. Acknowledging that ICTY rules permit admission of hearsay, he maintained that it must be admitted with caution. 'This is hearsay in the extreme,' Mr. Kay said, referring to the fact that Mr. Curtis merely reviewed written witness statements and didn't speak directly with any of the witnesses (which would itself have been hearsay, since Mr. Curtis was not himself a witness to the events). 'The responsibility for drawing conclusions [from witness testimony, whether written or oral] is with the judges,' he concluded.

The court agreed with him. Judge May ruled that summary evidence from a witness who was not present at the events described was hearsay. While agreeing that Tribunal rules do not prohibit hearsay evidence, he noted that the court has discretion to admit or exclude it based on whether the court decides it has 'probative' value, i.e. whether it tends to support the prosecution's charges. The court concluded that the summary and Mr. Curtis' testimony would have been repetitious of the prosecutor's opening statement and would be of no assistance to the judges.

Following the court's ruling, Mr. Milosevic addressed the Trial Chamber to refute the prosecutor's statement that he was participating in the trial. 'I do not recognize the court, but I will use every opportunity to address the public...' He went on to express his opposition to Mr. Curtis' testimony. The court interrupted, 'We are with you, Mr. Milosevic,' indicating it had already ruled in his favor. The prosecution then called the first survivor witness (See Report # 8).