Milosevic Attempts to Discredit Survivor of Visegrad Massacre

In an inexplicably brutal cross examination, Milosevic attempted to impugn the credibility of witness B-1054, a woman who survived and witnessed the burning alive of about 75 people in a house in Visegrad. His reason for repeatedly attacking her credibility by pointing out discrepancies in details among previous statements and testimony was not initially apparent. But when Amicus, Branislav Tapuskovic, followed suit, Judge May stopped him to ask, 'How are we assisted by the fact there are discrepancies? Her overall account has not been challenged by the Accused. There were people in the house. It was set fire to. They were burned. Precise detail doesn't matter much.' Milosevic strenuously objected, stating he was indeed disputing that the event occurred. 'No one in Serbia has ever heard of it,' he said, insisting that the Prosecution would have to prove it.

The Prosecutor did just that in another case before the Tribunal, this one against Mitar Vasiljevic. Though that Trial Chamber found there was insufficient evidence to place Vasiljevic at the scene of the massacre, they also found the massacre did indeed happen -- in much the way witness B-1054 testified. The transcript of her testimony in the Vasiljevic trial was admitted into evidence in the Milosevic trial, as permitted by Rule 92 bis D. She appeared at the Milosevic trial for cross examination because she placed the JNA Uzice Corps in the Visegrad area around the time of the events. The Trial Chamber has ruled that, where any transcript or written statement mentions the JNA, the source must be available for cross examination. Prosecutor Dermot Groome read a brief summary of B-1054's testimony and asked a few questions to introduce it.

On June 10, 1992, the Muslim village of Koritnik, near Visegrad, was fired upon and the villagers were told to leave because it was being ethnically cleansed. The next day its residents gathered a few possessions and set off for Visegrad, where they took refuge in an abandoned house on Pionirska Street as directed by a police officer. Wet from the rain, they changed clothes and shared tea and coffee, when some of their Serb neighbors, Milan Lukic, Sredoje Lukic, Milan Susnjar and (according to the witness) Mitar Vasiljevic arrived and ordered them to put all their cash and jewelry on a cloth on the table. They also moved the women into another room where they forced them to strip naked and dance. Then two women were taken out and returned sometime later, one with bite marks over her body. The Vasiljevic Court found they had been raped.

The villagers (women, children, elderly men) were moved to another house. The door was locked. The rug had been soaked with fuel. An incendiary device was thrown in and the room burst into flame. The witness was near a window and managed to push her 13 year old son through it and follow herself. She was wounded in her left arm and left leg. Hiding in a nearby sewer ditch, she heard screams and cries for help for several hours. 'It is unbearable when I think about it,' she told the Court. 'I feel distressed, terrible, painful.' After three days and nights in the sewer ditch, she made her way to safety. Six members of her immediate family died in the fire. She didn't see her son again or know that he had survived for five years.

To show discrepancies in her story, Milosevic used three prior statements she gave (in 1995, 1998 and 2000), as well as the transcript of her testimony in the Vasiljevic trial. In one statement she failed to mention she had taken her jewelry when she left home, while in another she said she turned over money and jewelry on demand in Visegrad. A hospital discharge paper indicated she stayed ten days, while her statement said she was there for 22 days. The witness testified she was shot in the arm and leg, but the discharge paper indicated she was shot in the shoulder and had multiple fractures in the arm (in court, she offered to show Milosevic her wounds). She couldn't identify the source of the bullet or shrapnel that hit her. Milosevic insisted it was unclear from her prior statements what started the fire -- the fuel-soaked carpet, the incendiary device or someone shooting into the room. She clarified that the incendiary device was thrown into the room with a lit fuse which caught the carpet on fire; then Lukic shot into the doorway to prevent anyone from leaving. None of these discrepancies, where they even existed, concerned the essence of her story.

As the Court explained in the Vasiljevic judgment, minor discrepancies do not discredit a witness's testimony 'where that witness had nevertheless recounted the essence of the incident charged in acceptable detail.' A court considers that the passage of time can affect memory -- whether to obscure once-remembered details or to bring forgotten details to light. Witnesses' statements also reflect what questions were asked and not asked, as well as their phrasing.

The trauma of the events also plays a role. When Mr. Tapuskovic demanded to know why her 1998 statement did not include an incident described in her 1995 statement, where she witnessed a bearded 'Chetnik' slaughtering women and children, while others threw them into the water, she answered, 'All this happened. I do not have any more forbearance to go on recounting it. The river was red with blood.' Mr. Tapuskovic commented, 'It is simply impossible for you to fail to mention this.' To which she responded, 'I omitted a lot of things. I simply cannot stand speaking about them anymore. I am overwhelmed with sadness and anguish.' While permissible during argument to the Court, comments on a witness's testimony by counsel are inappropriate during examination.

In the final analysis, it is the consistency with which a witness renders core events that is important. Neither the Accused nor the Amicus discredited the essential elements of B-1054's account. Indeed, it seems wholly incredible that someone would fabricate such a story -- and recount it time and again under extremely stressful conditions.

At the end of her testimony, Judge Robinson lectured both the Accused and Mr. Tapuskovic. When examining a witness about alleged discrepancies in her statements such as to suggest that she is fabricating an event, it should be put to the witness directly, thus allowing her the chance to respond. He might have added that harsh and repeated questioning on peripheral matters might also be considered badgering a witness -- which a court should not permit.
While aggressive cross examination is permitted in common law jurisdictions, it is not unrestricted. For example, American Bar Association Standards, which act as a model for state standards throughout the U.S., provide: 'The interrogation of witnesses should be conducted fairly, objectively and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily.' Others would go further, prohibiting intimidation and humiliation entirely.

Supporters of aggressive cross examination maintain it will expose the lying witness. While it may do that on occasion, it can as easily backfire if it causes a jury or judge to become sympathetic to the witness -- and hostile to counsel. There are those who argue that this type of cross examination is not necessary to expose lying -- and is a factor in public disapproval of the legal profession. Nor does it serve the cause of justice, as the fear of such treatment may prevent victim-witnesses from coming forward and testifying in a court where they may be ill-treated.

In the case of witness B-1054, the aggressive and misdirected cross examination failed to discredit her or damage her testimony. It did not assist the Court, nor did it assist Mr. Milosevic's case. What it did do was subject a brave woman to further distress, a woman who obviously believes in the rule of law and the possibility of justice. One hopes her experience will not deter other victims from coming forward to testify.