The direct testimony of former Liberian president, Charles Taylor, covered a lot of ground. Over the course of 13 weeks, Mr. Taylor talked us through his childhood in Liberia, his student days in the United States, his dramatic escape from a US jail in the 1980s, his time in Libya where he was influenced, he says, by Pan-African philosophy of Muammar Ghaddafi, the conflicts in both Sierra Leone and Liberia and his eventual decision to go into exile in Nigeria in 2003, among other things.
His testimony went well beyond simply responding to the charges against him. In effect, Mr. Taylor created a counter-narrative about his life, actions and motivations which sought to present an entirely different picture to that painted by prosecutors. Mr. Taylor wanted to demonstrate that he was a peacemaker – not a warmonger – and that he wanted the best for Liberia and for his neighboring Sierra Leone. And that meant that the fighting had to stop in Sierra Leone. As a former rebel leader, he was well placed to create the conditions for peace, he said. All his efforts, he explained, were directed towards peace and were undertaken with the blessing and knowledge of his colleagues: other West African leaders.
But some say there was a slight problem with this effort to create an alternative view of Mr. Taylor. This broad counter-narrative that he presented to the court included significant digressions that were not clearly connected to the case or the charges against him. Kimberly Punt and Jennifer Easterman from U.C. Berkeley War Crimes Center, for instance, argue that while some testimony about issues that do not directly relate to the charges is normal in international courts, it has became excessive in the Taylor trial, and was not adequately reined in by the Trial Chamber. As a result, the trial lost unnecessary time and expended unnecessary resources.
Throughout Taylor’s testimony, the Court allowed Taylor to discuss issues that did not directly relate to the questions asked by the Defense. The Court has wide discretion to allow evidence into the record, as the Rules allow it to admit “any relevant evidence.” This means that in the Taylor trial the Court has heard a large body of evidence that is not directly related to the indictment but that the Judges have determined is relevant to the case. Although this is normal for international criminal tribunals, it has become problematic in the Taylor trial due to Trial Chamber II’s passive judicial management style. The Court has generally not limited the scope of evidence or witness testimony, although Rule 91 gives them the power to exercise control over witness testimony to avoid wasting time. During Taylor’s testimony, there have been several occasions in which the Court could have exerted more control over Taylor’s answers to avoid wasting time. Given the length of Taylor’s testimony, the financial constraints of the Court, and the need to conduct an efficient trial, this is an important consideration.
(Interested readers can find the full report – a good read – here: http://www.charlestaylortrial.org/2010/01/04/charles-taylor-on-the-stand-an-overview-of-his-examination-in-chief-by-u-c-berkeley-monitors/)
Meanwhile, readers on the site highlighted a challenge that such digressions — and forays into areas not strictly related to the charges against him — have created for the Prosecution going forward.
A reader called “Digressions” posted the following:
The problem with the judges not cutting Mr Taylor off when he lapsed into endless digressions is that much of his digressions were blatantly incorrect: his descriptions of Liberia’s forests–”Liberia has the world’s biggest elephants”… wrong; that the Liberian shipping registry was started to protect ships during WWII… wrong…
it goes on and on.
The problem for the prosecution is: what do they correct?
Was it the defense’s strategy to baffle the judges with information (much of it irrelevant, as the Berkeley report points out)?
If so, then if the prosecution tries to correct everything, do they just feed into the defense’s strategy by overwhelming the judges?
Indeed, the reader called “Digressions” highlights one of the strategic decisions the prosecutors will have to make in the coming weeks: will they challenge Mr. Taylor on all his testimony, even those parts they consider to be irrelevant or tangential to the charges — or will they just focus on the parts of his testimony which form the core of their case against him as a way of focusing the judges on key issues they need to prove their case?
The Prosecution itself recognized the challenge that faced it in a brief they submitted to the judges on the introduction of new documents on November 17, 2009.
In that brief, the prosecution notes:
Many other aspects of the Accused’s testimony touch on issues that are either only tangentially relevant or completely irrelevant to the charges, such as his role in the Doe coup in 1980 and his escape from a Massachussetts jail in 1985. While this testimony may bear little relation to the charges that are the subject of this trial, evidence that the Accused has intentionally lied to the court on these peripheral issues is still highly relevant to determining the credibility of his testimony as a whole.
The ability to challenge the veracity of any witness’s evidence lies at the heart of cross-examination; which is ultimately an exercise aimed at discerning whether a witness is telling the truth. The Trial Chamber must be in a position not only to make determinations about the credibility of the Prosecution witnesses but also about the truthfulness of the Accused in this case and the witnesses called by the Defense. To be effective, the cross-examining party must be given latitude to challenge the accused on all aspects of his account using available evidence.
As our reader, “Digressions,” points out, the danger of challenging everything on all aspects of Mr. Taylor’s testimony is that it risks overwhelming the judges with information, which then makes it hard to sort out what is relevant to the issues they really need to decide about Mr. Taylor’s guilt or innocence of the charges against him.
However, as the Prosecution pointed out in its own submission, challenges to testimony that are “digressions” — or not directly related to the charges — could still be useful in trying to demonstrate to the judges whether Mr. Taylor was truthful on the whole – and therefore going to his credibility generally as a witness.
This will be an important strategic decision for the prosecution that will be interesting to watch as the cross-examination goes forward. If they opt for the strategy for challenging Mr. Taylor on his entire testimony, we may be in for an extensive – and extended – cross-examination, particularly given the debate over the use of “fresh evidence” by the Prosecution during cross-examination.
But even then, what the Prosecution chooses to challenge amid Mr. Taylor’s entire testimony may likely be a matter of degree. If they are able to convincingly expose some major flaws in Mr. Taylor’s testimony by demonstrating his statements were factually incorrect, then the calculation may become one of how many such statements need to be exposed in order to do serious damage to Mr. Taylor’s credibility and hence argue successfully that Mr. Taylor ought not be believed on much else. And it may also depend on how much the judges are willing to allow the prosecution to dwell on inconsistencies in testimony that are not directly relevant to proving the team’s case, and what new documents they are allowed to use to try to impeach Mr. Taylor.
Meanwhile, it is clear that the defense will be on the look out for ways to limit the harm to their client, Mr. Taylor. In challenging the introduction of “fresh evidence” during the cross-examination of Mr. Taylor, the defense team has already shown it will be looking to both protect Mr. Taylor’s fair trial rights under cross-examination, and to ensure to the greatest extent possible that Mr. Taylor has adequate legal advice on documents that will be used by the prosecution during the cross-examination phase. We can continue to expect a robust defense, particularly in relation to procedural issues, over the coming months as the Prosecution challenges Mr. Taylor on his testimony.
Readers – did you spot any major errors or inconsistencies in Mr. Taylor’s testimony that you think the Prosecution will pounce on? What about areas where his testimony was solid?