(EDITOR’S NOTE: Dear readers – many of you have asked for a legal commentary on hearsay in the Taylor trial. We’ve been lucky enough that Valerie Oosterveld, a law professor at the Univeristy of Western Ontario, Canada, and her research assistant and law student, Heather Townsend Goodman, have written this commentary for us. Enjoy – and we look forward to your comments.)
What Are the Rules about Admitting Hearsay in the Special Court for Sierra Leone?
The Special Court for Sierra Leone (SCSL) is guided by its own unique rules of procedure and evidence. Of particular importance to the admission of hearsay evidence are Rules 89 and 95 of the SCSL’s Rules of Procedure and Evidence:
Rule 89: General Provisions
(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence.
Rule 95: Exclusion of Evidence
No evidence shall be admitted if its admission would bring the administration of justice into serious disrepute.
Under these rules, the SCSL Trial Chambers have a broad discretion to admit relevant evidence, including hearsay evidence. However, the evidence cannot violate the right of the accused to a fair trial nor can it undermine the interests of justice. Importantly, even when hearsay evidence is admitted, this does not mean that the Trial Chambers accept it as reliable and probative. Instead, it simply means that the Trial Chambers find it relevant. Its reliability and probative value are assessed and weighed separately, usually at the end of the trial.
Are these Rules Different from Rules used by other International Criminal Tribunals?
These SCSL rules are different from those of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR). Rule 89(C) of both the ICTY and ICTR Rules of Procedure and Evidence states that the Tribunal may admit “any relevant evidence which it deems to have probative value”, while the SCSL rule does not require the Chamber to deem the evidence to be of probative value. The SCSL has stated that, under its Rule 89(C), evidence must only need to be considered relevant to be admissible, whereas the ICTY and the ICTR require that evidence be both relevant and probative. The SCSL’s Rule 89(C) is broader than that of the ICTY and ICTR. (Prosecutor vs. Brima, Kamara and Kanu, Decision on Joint Defence Motion to Exclude All Evidence From Witness TF1-277 Pursuant to Rule 89(C) and/or Rule 95, 24 May 2005, at para. 13).
What is the Difference between Relevance, Probative Value, and Weight?
A piece of information is relevant when it either increases or decreases the probability that a fact in issue exists. The information makes it more or less likely that something has taken place. In the SCSL, it appears that there are not levels or degrees of relevance – one piece of information is not considered more relevant than another. For example, in a murder trial, the fact that the accused’s DNA was found on the victim’s body, and the fact that the accused was spotted in the victim’s neighbourhood on the day of the murder, are equally relevant. Both make it more likely that the accused was in the victim’s presence when the victim was murdered. The former evidence, however, would be far more probative than the latter. Probative value is the degree to which a piece of evidence proves something in issue, for example that the accused committed the crime in question, or did not commit the crime in question.
Weight goes towards the reliability, credibility and probative value of the evidence. When weighing evidence, the Trial Chambers will look at the overall context and nature of the evidence, including whether it is direct or hearsay evidence. One piece of information may be seen as more reliable and probative than another, and thus be given greater weight when the Trial Chambers ultimately decide an issue. While the Trial Chambers may decide to admit hearsay evidence, they may also decide to not give it much weight because the witness did not obtain the information directly.
Examples of Hearsay in the Charles Taylor Trial:
Two examples of hearsay evidence from the Charles Taylor trial help to illustrate how relevance, weight and the rules of evidence are used to determine whether hearsay evidence should be admitted.
January 14, 2010:
One of the most widely reported examples of hearsay evidence in the Taylor trial can be seen in the transcript from January 14, 2010 (see pages 33336 – 33349). During its cross-examination of Charles Taylor, the Prosecution produced affidavit evidence in which Mia Farrow stated that Naomi Campbell had told her that, the previous night, some unknown men gave Campbell a diamond and said it was from Taylor. The Defence argued that this is “thirdhand hearsay” and that this evidence is not relevant. According to the Defence, this evidence does not make it more or less likely that Taylor, on his trip to South Africa, took with him diamonds that he was given by the Junta to sell for armaments, which the Defence claimed was the fact in issue. The Prosecution, however, argued that it was using this information to prove a different fact in issue. Instead, the Prosecution was looking to show that Taylor had diamonds while he was President of Liberia, despite his denials to the contrary. Further, the Prosecution argued that the concerns of the Defence counsel go to the weight of the evidence, not its admissibility.
The Farrow/Campbell hearsay evidence was not admitted. The Presiding Judge held that the evidence was highly prejudicial, and that its admittance would not be in the interests of justice and would violate the fair trial rights of the accused. The Defence would not be able to cross-examine the persons who made the various statements, making it difficult to test reliability.
January 10, 2008:
In contrast, hearsay evidence was admitted on January 10, 2008 (see pages 931-934 of the transcript). During the examination-in-chief, Witness TF1-406 was asked by the Prosecution what he heard on radio about the treatment of civilians in Sierra Leone. Witness TF1-406 stated, “What I heard and what I saw over the satellite was the amputation of people’s hands and they used to call that ‘short sleeve’ and ‘long sleeve’.” This evidence is hearsay because the witness did not directly witness these amputations, but, rather, learned about them from another source. The Defence objected to this hearsay evidence, and argued that this information should be provided through the records of primary sources, such as the BBC, instead of a secondary source like Witness TF1-406. The Defence argued that this would facilitate a more accurate and detailed cross-examination of the evidence and, in turn, a better test of the evidence’s reliability. The Prosecution argued that the evidence was relevant to notice: that, if this witness, living in Liberia at the same time Charles Taylor was living in Liberia, heard about this type of information, then that information was available in Liberia. The Defence answered that it was better to adduce this information through the broadcasters as the witness is unlikely to recall specific questions about the material he saw or viewed. The Prosecution responded that, if the witness is unable to recall details, then that would affect the weight the judges would give to the evidence and not affect the admissibility of the evidence.
The Presiding Judge, using the discretion to admit relevant hearsay evidence provided by Rule 89(C), decided to allow the evidence. The Presiding Judge held that the evidence is relevant because it shows what information was available in Liberia while Taylor lived there. In turn, the Prosecution may use this to try to prove the fact in issue of whether Taylor had knowledge and awareness of the crimes in Sierra Leone. The Presiding Judge ruled that the Defence’s concerns go to the weight, and not admissibility, of the evidence.