The Trouble With Insiders: Albanian informant has checkered past

The Trouble with Insiders

In addition to survivors, experts and international politicians, so-called 'insiders' are a potentially valuable source of evidence to prove an indictment. However, they are also the least likely to cooperate and the most troublesome in their testimony. Lead prosecutor Geoffrey Nice addressed this problem to the court in arguing for an extended timeline.

'This is the largest case of its kind since the Second World War. Cases like this would be easy to prove if one member of the inner circle were able to come and give accurate evidence of what happened. [The case] could almost be proved with one witness. It is not like that. The closer [the witness is] to the accused, the more difficult [he is] to approach and to use.'

Part of the difficulty in using insider testimony results from the adversary system of trying cases, in which witnesses are subject to cross-examination from the opposing side. Cross-examination of an insider witness can uncover past crimes, collusion, or impure motives that can call all the preceding testimony into question, and cause great embarrassment or even danger for the witness. Unsurprisingly, the prosecution hasn't had much luck in convincing members of Milosevic's inner circle to come before the Court. Those insiders who have come have not been part of Milosevic's inner circle, but they nonetheless have been subjected to his extremely confrontational cross-examinations, during which he dissects questionable periods in the witness's past in order to discredit the testimony.

Witness K-5, who testified on May 24th and 27th, was an ethnic Albanian who acted as an informant for the Serb police and military in Kosovo. The Tribunal granted him protected witness status, meaning that he was screened from the public while testifying, and any details that could identify him or his place of residence were stricken from the court record. In addition to detailed questioning about K-5's past illegal activities, Milosevic pressed him about which benefits had been conferred by his protected witness status. Although Judge May intervened to say 'that isn't a matter for the witness,' Milosevic's implication was that K-5 had been offered or promised something beyond confidentiality in exchange for his testimony.

In many jurisdictions, it is not uncommon for insider witnesses to be offered plea bargains, physical protection, or even monetary compensation in exchange for their cooperation with a court. The Tribunal itself may shortly face its first decision on whether to grant amnesty from future prosecution to a potential insider witness. However, such trade-offs only increase the likelihood that a witness's testimony will be perceived as bought, and therefore untrustworthy. A more ideal system, suggests Mr. Nice, might be one in which the court could simply require any witness to appear before it. Because the appearance would be mandatory, the issue of bought testimony would disappear, and it might be more difficult to use a checkered past to impeach parts of the testimony that seemed otherwise trustworthy.

Under any system, the court must perform a balancing act of extracting the most convincing elements of testimony from a witness whose past indicates the potential for dishonesty. Milosevic's style of aggressive cross-examination into the motives and pasts of insider witnesses might be more damaging to the prosecution if the case were being tried before a jury. Lay members of a jury might be more likely than judges to discredit all testimony from a witness perceived as compromised or criminal. Still, the court could take a more active role in controlling Milosevic's questioning, especially when testimony is heard from insiders. To date, the court has been reluctant to greatly curtail Milosevic's defense tactics in an effort to accommodate the fact that he is representing himself. However, a tighter grip over his cross-examinations would serve the triple purpose of keeping prejudicial but irrelevant information about the witnesses from the record, protecting the witnesses from unnecessary embarrassment, and saving time needed for a complete and fair trial.

The three-judge panel has relatively wide discretion in controlling the course of examination of a witness pursuant to Rule 90 of the Tribunal Rules of Evidence. This rule gives the Court the affirmative power to control the mode of questioning in order to most effectively ascertain truth and avoid needless consumption of time. While cross-examination can be used to impeach the credibility of a witness, the rules do give the court discretion in limiting the nature of such examination. In the United States, the ability to cross examine witnesses is constitutionally guaranteed by the Sixth Amendment, but the United States Supreme Court has held that this does not mean a defendant may cross-examine a witness in any way or to any extent he or she desires. For example, questioning a witness about past criminal convictions is often allowed, but can be limited to the facts of conviction, not the underlying details. Also, evidence of past misconduct can be limited if it does not tend to show bias or untruthfulness in the testimony, and judges have discretion to exclude only remotely relevant evidence.