Court Rules on Written Statements in lieu of Oral Testimony: Cumulative evidence can be given in writing but witness must undergo cross examination

The Trial Chamber ruled today that it would allow the prosecution to introduce written statements of some witnesses in lieu of vive voce (live oral) testimony. Tribunal rules (Rule 92 bis) allow this when the purpose of the statement is something other than proving the acts and conduct of the accused as outlined in the indictment.* In this case, the proposed witness statements are offered to support the charges that Serb forces participated in massacres and engaged in deporting a large segment of the civilian population, neither of which alone establishes that Milosevic is the responsible party.

In its ruling, the Trial Chamber made the admission of written statements subject to two conditions: 1) The prosecution is limited to four witness statements per municipality, including the witnesses who have already appeared; 2) Those witnesses whose written statements are admitted must still appear in person for cross examination, due to the important issue for which it is offered. The prosecutor will be allowed to ask a few introductory questions, but he will not conduct a full examination.

The prosecution requested the admission of a selection of written statements to help provide a larger view of the events in Kosovo from January 1 to June 20, 1999. Since thirteen hundred witness statements were taken, it would be impossible to present all that evidence in either written or oral form. Initially, the prosecution selected twenty witnesses for each of twenty-four sites, for a total of 480 witnesses. That was further narrowed to ten sites with five witnesses each. Rather than present oral testimony from 50 witnesses, which would take a considerable length of time, the prosecution proposed to have one or two witnesses for each site provide oral testimony, with the rest admitted in written form. By its ruling, the Court reduced the overall number to a total of forty witnesses.

While the purpose of Rule 92bis is to expedite proceedings by permitting cumulative evidence (i.e., when witnesses are testifying to similar facts) to be presented in writing rather than given orally, the impact of the Court's compromise decision here will limit its expediting effect. Given that the Court also granted Milosevic the right to cross examine all forty witnesses, whether their statements are given orally or in writing, it will add to the length of the trial, already anticipated to last two years. Nevertheless, it will not be lengthened as much as if all the testimony were required to be presented orally.

The ruling was but the latest in the Court's challenging obligation to assure a fair and expeditious trial. The Court will have the benefit of a greater number of representative testimonies to help it view events throughout Kosovo during the period of the indictment and Milosevic will have his right of cross examination.
*Rule 92 bis sets out a nonexclusive list of factors favoring admission of written statements in lieu of oral testimony, when the evidence in question:
'(a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
(b) relates to relevant ;historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates:
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.
Factors against admission include whether
(a) There is an overriding public interest in the evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.'