Bosco Ntaganda’s lawyers have faulted the Office of the Prosecutor (OTP) for going beyond the acceptable levels of witness preparation during preparatory sessions with a witness who started testifying today.
“The manner in which the session was conducted is of concern,” said defense lawyer Stéphane Bourgon at the start of today’s hearing in Ntaganda’s trial at the International Criminal Court (ICC).
Bourgon said the witness preparation notes he received from the prosecution indicated that the OTP had acted inappropriately, as it seemed to be interested in “making sure” what Witness P963 would say in his testimony.
Witness P963 is a former member of the Union of Congolese Patriots (UPC), the militia in which Ntaganda served as deputy chief of staff. He is the fifteenth individual to testify against Ntaganda, who is on trial for crimes committed during the 2002–2003 ethnic conflict in Congo. In addition to assurances against self-incrimination, judges granted the witness protective measures including image and voice distortion and use of a pseudonym during testimony. Most of his first day’s evidence was heard in closed session.
The defense took issue with the prosecution for showing Witness P963 a video taken at a UPC training camp, making him listen to audio recordings of the group’s communications, and asking if he recognized the material or could “provide a link” between the material and his evidence.
According to Bourgon, the material was not mentioned in previous dealings between Witness P963 and the prosecution. During the preparatory session, the witness said he could not recognize the communications. “The material can easily influence the witness,” said Bourgon.
Furthermore, the defense faulted the prosecution for asking the witness to read and confirm the accuracy of his statement on “more than 34 occasions” after he had just made corrections to the statement.
“The witness read this material, made corrections and clarifications he thought necessary, then you ask him again to confirm the accuracy of this and that part?” posed Bourgon.
Witness preparation takes place prior to individuals taking the witness stand. The process involves taking witnesses through material related to previous dealings with court officials. Witnesses also have the opportunity to make corrections and clarifications to prior recorded statements.
Bourgon said according to Witness P963’s preparation report, the OTP showed the witness material related to his previous dealing with the prosecution and its investigators. The defense lawyer said this was acceptable as it would help the witness to recollect and to make his testimony more focused and therefore shorter. However, the prosecution’s proofing during the session was “an indirect way to continue the investigations of the witness,” added Bourgon.
Trial lawyer Julieta Solano conceded that the video in question was taken at the UPC training camp in Mandro, and it was indeed the first time the witness was seeing it. Nonetheless, she said showing it to the witness was not inappropriate or inconsistent with the court’s rules.
Solano cited paragraph 23 of the court’s witness preparation protocol, which states that during preparation sessions, the questioning lawyer may “show the witness potential exhibits and ask him or her to comment on them for the purpose of determining the utility of using the exhibits in court.”
“We asked whether he recognized people and the place in the video, and he said he did not … but he recognized the weapons,” she said. The video was played to the witness in silent mode, and the prosecution intends to question him about it, she said.
Presiding Judge Robert Fremr observed that on a number of occasions the prosecution drew the attention of Witness P963 to a number of sentences, articles and phrases. However, Judge Fremr also noted that the areas where the OTP drew the attention of the witness were mainly technical matters that had errors.
Judges ruled that a document may be presented to a witness to ascertain whether they can comment on it during testimony, provided the scope of testimony is only tailored for that purpose. “The chamber finds that in this case that seems to have been the case,” stated Judge Fremr. Going forward, the judge directed the prosecution to put questions “neutrally” in order not to “seem to emphasize certain specific issues.”
Witness P963 continues giving testimony tomorrow morning.