Today, Jose Rodriguez asked a great question amid the discussion about the prosecution’s ability to present new documents in an effort to impeach Mr. Taylor:
“Can the prosecution bring a brand new witness to testify on their behalf, since they have being granted to present their so-called “fresh and new evidence? Remember now, they have already rested their case.”
Jose, this is an excellent question. The Prosecutors can indeed apply to bring new witnesses to the stand under certain conditions — and if the judges approve it — as part of their evidence in “rebuttal.” This procedure, however, is not related to their ability to bring new documents to cross-examine Mr. Taylor at this stage of the trial.
In the court’s decision last week to allow the prosecution to use new documents to try to impeach the credibility of Mr. Taylor (as well as ones which are intended to try to demonstrate Mr. Taylor’s guilt), the judges did not address the issue of new witnesses (nor, for that matter, did the Prosecution ask to introduce any new witnesses at this stage of the case).
However, there is an option for the prosecutors to bring extra witnesses to the stand once the defense has finished presenting its case. Under Rule 85(A), which sets out the order for the presentation of evidence, sub-rule (iii) allows for “Prosecution evidence in rebuttal, with leave of the Trial Chamber.”
In a previous case at the Special Court for Sierra Leone, judges had to deal with a request by the prosecution to bring additional witnesses to testify in rebuttal after the defense team had presented its evidence on behalf of the three accused men in the Armed Forces Revolutionary Council (AFRC) case (the AFRC being a group of Sierra Leone’s armed forces that overthrew their government in 1997 and later ruled the country in collaboration with the RUF).
In this decision of November 14, 2006, the judges first defined what “rebuttal evidence” was, and under what conditions it could be used. Rebuttal evidence, the judges said, is “evidence to refute a particular piece of evidence which has been adduced by the defence.” This type of evidence “must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated” and not “merely because its case has been met by certain evidence contradicting it.” The judges said that “only highly probative evidence on a significant issue in response to Defence evidence may be led as rebuttal evidence and not evidence which merely reinforces or fills gaps in the Prosecution case-in-chief.”
Before rebuttal evidence could be introduced, the Prosecution had to establish two elements:
(i) “that the evidence sought to be rebutted arose directly ex improviso [suddenly] during the presentation of the Defence case in-chief and could not, despite the exercise of reasonable diligence, have been foreseen; and
(ii) that the proposed rebuttal evidence has significant probative value to the determination of an issue central to the determination of the guilt or innocence of the Accused.”
The judges further explained that:
[e]vidence which goes to a matter that forms a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment should be brought as part of the Prosecution case-in-chief and not in rebuttal. The Prosecution is under a duty to adduce all the evidence critical to proving the guilt of an accused in its case-in-chief, and only if a new issue is raised in the course of the Defence case may the Prosecution lead evidence in rebuttal.
In this case, the judges refused to allow the Prosecution to bring new witnesses to testify in rebuttal evidence basically because the judges considered that the witnesses would be used to shore up arguments it should have covered in its case-in-chief (or to address issues which were not unforeseen, but instead could have been anticipated during its case-in-chief), or failed to reach the standard of “significant probative value to the determination of the guilt or innocence of the Accused.”
The trial chamber also refused to allow the prosecution’s application for leave to appeal its decision not to allow additional witnesses to be called for rebuttal evidence. The prosecutor had argued that this was an “exceptional circumstance” because the trial chamber’s decision was a matter of importance generally to international criminal law as the decision may be applied as precedent in other tribunals; and that the trial chamber’s decision would cause the prosecution to suffer “irreparable prejudice” if it is “unable to call relevant witnesses believed necessary for its case.”
The trial judges decided that its decision did not create any precedent of general importance to the Special Court or to international law generally; and that the prosecution did not establish that the decision not to allow new witnesses to be called in rebuttal would cause “such prejudice to the Prosecution case as could not be cured by the final disposal of the trial including post-judgement appeal.”
In describing this concept and the criteria for its use, the Special Court judges drew on decisions made in two other tribunals – the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), which have also dealt with similar requests.
It is worth noting that the Special Court judges also have the ability to call witnesses by which they may attempt to explore further evidence for the case. For example, in the Stakić in the ICTY, the Trial Chamber called several witnesses in an attempt to explore indications of genocidal intent at a leadership level. At the Special Court for Sierra Leone, Rule 85(A)(iv) provides for “evidence ordered by the Trial Chamber” to be presented after the (i) Evidence for the prosecution; (ii) Evidence for the defence; and (iii) Prosecution evidence in rebuttal, with leave of the Trial Chamber.
At the moment, the Prosecution has not yet made any request that we know of to introduce new witnesses in rebuttal to Mr. Taylor’s testimony. But it is an option for them to consider as the defense case goes forward – but they would need to convince the trial chamber judges first that it is necessary.
It is worth nothing that the AFRC decision was decided by the same judges that currently sit on the Taylor case, so they may be likely to apply the same criteria they set out in the AFRC case if and when they are asked to decide on any application for rebuttal witnesses.