Prosecutor Gives Preview of Final Months of Its Case

The Milosevic Trial Chamber held its final hearing before the summer recess in the absence of the Accused, whose ill health stopped the trial on Monday. Today's hearing was short and confined to administrative matters.

Lead Prosecutor Geoffrey Nice provided the Court with a general sketch of the remainder of the prosecution's case, which he estimated will conclude by the end of November or beginning of December this year. The evidence the prosecution would like to present would take more than 20 days longer than the Court has allowed. With 62 days remaining in the prosecution's case, Mr. Nice indicated they would cut the planned evidence by one-third to fit within the allotted time. They are not asking the Court for more time (the Court earlier indicated it would not grant more extensions).

One new tool the Prosecution proposes to use is a recent amendment to Rule 73 bis. The rule gives the Trial Chamber power to designate crime sites or incidents that it considers representative of crimes charged in the indictment. It is then up to the prosecution to tailor its case accordingly or not as it sees fit. Of course, the Trial Court's selection will bear considerable weight in that decision. The rule change is a recognition that in certain cases involving the highest levels of command responsibility or participation in a joint criminal enterprise it is not necessary or even possible to prove all the crimes that occurred, when they have significant features in common.

At today's hearing, Mr. Nice presented the Court with two maps -- one of Bosnia, the other of Croatia -- showing the crime sites and how much evidence has been introduced about each so far, i.e. whether full, partial or none at all. The Prosecution is seeking the Court's assistance in choosing which of the crime sites alleged in the indictment the Court considers representative, so that they can focus their remaining witnesses and documentation on those sites. Crime sites with unique features, like Srebrenica and Sarajevo, will not be considered under Rule 73 bis, though the Prosecutor will likely seek to submit substantial transcript evidence from other trials in order to be expeditious.

Mr. Nice also advised the Court that he would be seeking their permission to broaden the scope of direct examination for two categories of witnesses. The first category includes witnesses who are particularly close to the events and the Accused. The second comprises international witnesses who, according to Mr. Nice, 'have opinions about events arising from close dealings with all parties, including the Accused.' In both cases, the witnesses' evidence is mixed. Part of it may support the prosecution's case, while another part may be more favorable to the Accused.

By 'broadening the scope of direct examination,' the Prosecutor means he wants to have the flexibility to cross examine these types of witnesses, though they are testifying as prosecution witnesses. The essential difference between direct and cross examination is that one may asking 'leading' questions on cross, but not on direct. A leading question implies the answer, e.g. 'You were scared, weren't you?' is leading, while 'How did you feel?' is not.

The traditional rule in common law jurisdictions does not allow a party to cross examine his or her own witness, unless the Court declares the witness has become 'hostile', i.e. has changed his/her testimony on the stand to favor the opposite party.* Some jurisdictions also allow counsel to call an 'adverse' witness, that is a witness who is close to the other party and can be expected to provide mixed evidence. If the court allows it, counsel may ask leading questions of an adverse witness.

While the ICTY is not governed by the traditional rule, on a number of occasions, the judges have warned Mr. Nice against cross examining insider witnesses he has called. ICTY rules do not prohibit what Mr. Nice is requesting, but the issue has not been addressed. As Judge May pointed out when the Prosecutor raised the issue, 'We are not bound by those rules. If there is a problem, we will deal with it.' Mr. Kay suggested it would be appropriate to brief and argue the matter, since arguments opposing the practice can be made on the Accused's behalf. The Court assented.

Intriguingly, Mr. Nice mentioned that the Prosecution received a letter last night from a witness who would potentially fall into one of the two categories. The unnamed witness wrote to say that he or she was willing to testify but did not want to testify as anyone's witness. Nor was the person willing to talk with the Prosecution before testifying, as is standard practice. Mr. Nice proposed that the Court call the witness or allow the Prosecution to do so under the conditions imposed, while retaining the right to cross examine.

The final issue the Prosecution raised concerned documents yet to be produced by the Government of Serbia and Montenegro. On the Prosecution's application, the Trial Chamber has ordered the Government to produce specified documents by August 12, 2003. Since the Prosecution is nearing the end of its case and has a strictly limited time in which it can produce evidence, anything of critical importance discovered in these documents will have to be submitted at the expense of other testimony. Also, as Mr. Nice advised the Court, 'It may lead us to reconsider parts of our case. I do not expect it wholly to be adverse to the Accused.' As the end draws near, the Prosecution has less flexibility. Yet it may want to introduce some of these documents which it must do through a witness. Mr. Nice suggested to the Court that he might apply to take a week of the time remaining and ask to be allowed to use it later in the proceeding, e.g. after the winter recess.

The Prosecution's overview and the issues he raised were informational only. Transcripts or a videotape of the session will be provided to the Accused. Any action -- by Court or Prosecutor -- will occur after trial resumes on August 25, 2003.
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*For a further discussion of the issue see 'Dealing With the Hostile Insider Witness,' CIJ Report of July 15, 2003.