In a dramatic first week of Lubanga’s trial, the Prosecution’s first witness said he lied about being abducted by Lubanga’s forces and taken to a training camp for child soldiers.  He also told the court that he was coached by an aid group about what he should say on the witness stand.  He’s about to testify again today — this time with more protective measures, including being shielded from Lubanga’s direct view in the courtroom.

After his initial testimony crumbled on January 28, 2009, international media outlets pointed fingers at the Prosecution team.  Headlines included “Chaos Reigns at the International Criminal Court” and references to a “shambolic” first testimony.  But some wondered whether this bad press was fair. What if the witness said he lied because he wasn’t fully prepared for what he would face in the courtroom, including the fact that he would have to tell his story while sitting only a few feet away from — and in full view of — Lubanga himself?

A reader commented on this site:  How can the courtroom prosecutors assess their own witnesses when Judge Jorda prohibited proofing of witnesses at ICC, a process which takes place at all other international tribunals?

“Witness proofing” is a practice which is common in some national criminal justice systems, particularly in the United States, where it is not only allowed but encouraged in preparation for trial.  Proofing allows for lawyers for any party to go through two different kinds of preparation for trial with their witnesses before they take the stand.  One is a familiarization process whereby, in the case of witnesses called by the Prosecutor, the Prosecutor can show the witness the courtroom and describe the other participants and their roles (for example, the defense lawyers, the judges, the victim representatives); introduce the witness to the lawyer who will take him through his testimony; talk about security and safety issues; remind the witness of his oath to tell the truth; explain the process (for example, that the prosecutor will examine the witness to bring out his testimony; the defense lawyers will then cross-examine the witness and then the prosecutor has an opportunity to re-examine him again).

The second kind of “proofing” process focuses on adequate preparation to ensure that the witness’s testimony at trial is accurate.  It allows the witness to read any prior statements they had given to the investigators to refresh their memories. It would also allow the Prosecutor to go through the questions that he or she would ask the witness during the testimony; and to ask the witness about any other information that could potentially help show the guilt or innocence of the person on trial. In those jurisdictions which permit or encourage such proofing, counsel is expected to operate in good faith, on the assumption that the testimony of a well-prepared witness assists in the truth-seeking process. To be sure, any efforts to “coach” a witness by telling him what to say are improper, and are forbidden in all jurisdictions.  The evidence should be what the witness recalls, not what he is told to recall.

In the Lubanga case, the prosecutors had sought to proof witnesses in the lead-up to the trial.  The defense objected.  In November 2006, the ICC’s Pre-Trial judges decided that witness proofing was not allowed..  The judges did allow the Victims and Witnesses Unit (VWU, run by the Registry) to familiarize witnesses with the courtroom and process, including meeting with the lawyers who would be examining him. However, the judges forbade the Prosecution from allowing the witness to read his statement, go through questions the Prosecutor intended to ask, or ask the witness about information which could help prove the guilt or innocence of Lubanga.  The Trial Chamber confirmed this decision in November 2007, but modified it to allow for witnesses to read over their prior statements to refresh their memories before testifying.

Even with this modification, some say these decisions make it difficult for the Prosecutor to work out in advance whether their witness is going to be credible to the judges: that is, whether he is likely to tell the truth, whether he will be believable, and whether his story is consistent and clear.  They would say the mishaps of the first day were foreseeable given the lack of opportunity to prepare the witness for his testimony in advance. This is of particular concern in the case of a witness who has never been in court, let alone in The Hague; where the witness is testifying about highly traumatic events which took place several years ago; where the witness was a child at the time of the events in question; where prior statements have been taken more than a year ago in one language and then translated into another; and where the testimony in the courtroom is itself conducted through interpretation from one language to another.

But for others, who come from different legal traditions, this practice of witness proofing raises serious ethical concerns. In fact, in some countries (even from the common law tradition, where the practice tends to be more prevalent), “proofing” can be considered unethical or illegal, because it may provide the opportunity for lawyers to coach or train witnesses on what to say, which may hinder the court’s ability to get to the truth about a defendant’s guilt or innocence. There is also a big difference in countries from the civil legal system where witnesses are not called by the parties but by the Judges, and so there is no concept of preparing ‘your’ witness.

That said, other international criminal tribunals allow witness proofing.  In fact, after the decision by the Pre-Trial judges in November 2006, both international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) specifically rejected the ICC decision on witness proofing.  The ICTY judges decided that discussions between a party – such as the prosecutor — and a potential witness about evidence can “enhance the fairness and expeditiousness of the trial.” The ICTR judges said that witness proofing “not only poses no undue prejudice, but is also a useful and permissible practice.” Meanwhile, the Special Court for Sierra Leone continued its practice of witness proofing as well. In September 2005, the Trial Chamber noted that in principle, proofing witnesses before their testimony is a “legitimate practice” which “serves the interests of justice” especially for witnesses “who are testifying about traumatic events  in an environment that can be entirely foreign and intimidating.” The ECCC appears to follow the civil law practice and forbids any proofing of witnesses, although the issue has not yet been argued before the Court. Other domestic war crimes tribunals such as the Court of Bosnia Herzegovina do not permit it.

The practice, then, between the ICC and its sister tribunals seem to be diverging. But for the Lubanga trial, this divergence does not really matter.  At least for now, witness proofing is prohibited at the ICC.  This means the Prosecution team may have no way of working out in advance whether their witnesses may change their stories on the stand. Instead, the prosecutors will simply have to be prepared for surprises in the courtroom, hope that their investigators did a good job in taking the original witness statements, and trust that the ICC’s Victims and Witnesses Unit familiarized the witness enough with the process to be prepared when the spotlight shines on them in the stand.

Today, the additional protective measures may help the witness to feel confident to tell the truth on the witness stand and to stick with his version of events as he remembers them.  But the Prosecutors still may have to expect the unexpected as they start their examination again this morning.