Charles Taylor will take the stand again tomorrow, as prosecutors continue to challenge his version of events – and of his role — during Sierra Leone’s brutal conflict.  The excitement continues as both sides continue to battle it out to see who walks away from the highlight of this trial — Mr. Taylor’s testimony — with the greatest credibility in the eyes of the judges.

As we gear up to follow the action this week, let’s take a minute to think about the big issue that emerged before the trial recessed last year: the judges’ decision to allow the prosecution to introduce “fresh evidence” either to try to discredit Mr. Taylor’s testimony or to try to show his guilt during cross-examination.

One of our readers, Noko5, asked a great question:

“Hey Tracey,
Is this new evidence introduction open ended? Would there be limitations in respect to quantity and time? Or is there any limitation?”

In short: The prosecutor’s ability to introduce fresh evidence is not open ended – the judges made this clear in their decision in November last year.  While the judges placed no restriction on the number of documents that the prosecution should disclose, they did ask the prosecution to make sure all the documents they planned to use were given to the defense by December 11, 2009 (which the prosecution says it did).

One exception exists: prosecutors indicated the court last month that if Mr. Taylor brings up new issues during cross-examination (or other new information otherwise emerges), the prosecution may seek to use additional documents, and then potentially seek submit them as evidence once the testimony is finished.

Now, let’s go into the nuts and bolts of this “fresh evidence” issue so we have a framework for understanding the use of new documents as Mr. Taylor’s testimony moves ahead.

Understanding this issue is particularly important at this point, as the judges have been asked to help work out how these new documents can be used (and which ones can be used) so that cross-examination can move ahead smoothly.  This week, then, we are likely to be finding out much more about the judges’ thinking on these documents as they return from studying them over the break.

We’ll start with an overview of the problem of “fresh evidence” and arguments about its use, as they emerged last year; we’ll look at the judges’ initial decision on November 30; and we’ll look at how and why this decision was modified when it became clear that all documents – including documents intended to discredit Mr. Taylor’s evidence, and not just ones which could be used to try to prove Mr. Taylor’s guilt – needed to be disclosed because of the difficulty, at times, in making the distinction between the two.

But be warned: below is probably everything you have ever wanted to know (and more) about this “fresh evidence” issue, so get yourself a strong cup of coffee, a comfy chair, and buckle in with us for a while.

Introducing “Fresh Evidence”: Normal Practice or Undermining Mr. Taylor’s Rights?

Way back on November 11, 2009, the trial hit an unexpected delay as prosecutors started their second day cross-examining Mr. Taylor.  The prosecutors wanted to ask Mr. Taylor about the Lome Peace Accord – a peace agreement signed between the Sierra Leonean government and the country’s main rebel group, the Revolutionary United Front (RUF) in the Togolese capital, Lome, in 1999. As lead prosecutor, Brenda Hollis, went to show Mr. Taylor a copy of the peace accord, his defense team objected.  Lead counsel, Courtenay Griffiths, called this a trial by “ambush” and questioned the prosecution’s ability to put forward “fresh evidence” after the prosecution had closed its case. The judges asked the prosecution team to submit a motion to “justify the presentation of this fresh evidence at this late stage.” The bench adjourned the trial early to allow more time for the prosecution to re-organize its case without the new documents, in order to allow the trial to move forward while the issue of using “fresh evidence” was being decided by the judges.  (You can read more about the discussion on the day here: http://www.charlestaylortrial.org/2009/11/11/judges-caution-prosecution-on-the-introduction-of-new-evidence-in-the-cross-examination-of-charles-taylor/).

In the submissions that followed by both the defense and prosecution, the key argument was this: whether guidelines for the introduction of “fresh evidence” were a necessary and normal development, simply following the well-worn path of other international criminal tribunals (and the Special Court for Sierra Leone itself), or whether this process was fundamentally unfair and would undermine Mr. Taylor’s rights as an Accused.

What did the Prosecution say?

The Prosecution argued that it was standard practice in other international criminal tribunals – and consistent with previous practice of the current Trial Chamber in another SCSL case – that “fresh evidence” (new documents – like the Lome Peace Accord) could be put to Mr. Taylor during cross-examination to try to refute his previous testimony – but that such documents need not necessarily be admitted into evidence (that is, as formal exhibits on record with the court).  The main point, the team said, was to get Mr. Taylor’s answer on the record in response to the new documents.  A decision could be made at a later stage – that is, after the testimony is finished – about whether to seek to admit the new documents used by the prosecution during cross-examination as evidence.

And not only that, if the Prosecution did seek to have them admitted into evidence at a later stage, it was settled practice in other international courts for such new documents that were introduced during the cross-examination stage to in fact be admitted into evidence, the team said. (They pointed to cases in the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) – both set up by the UN to try people respectively for crimes committed in Rwanda during its genocide in 1994 and in the Balkans war of the early 1990s).

Meanwhile, this “fresh evidence” could also be put to other uses.  Specifically, new documents aiming to demonstrate the alleged guilt of the accused could also be used during cross-examination. These documents could be admitted into evidence as well in “exceptional circumstances” and in the “interests of justice,” the team argued, pointing to a recent ICTY decision in the Prlíc case. (In that case, the Appeals Chamber made a distinction between the two categories of documents [that is, those used to refute an accused’s testimony, and those which go towards showing guilt] because there is a greater risk of prejudice created by admitted documents which are probative of guilt, so more restrictions and care needed to be taken in deciding whether to admit them. For this reason, such documents could only be admitted in “exceptional circumstances.”)

All of this, they argued, was consistent with the rights of the Accused.  And in terms of disclosure (or handing the documents to the defense in advance), the prosecution said it had no obligations to the defense when it came to cross-examination. Again relying on decisions from other international criminal tribunals, the team argued that “the Prosecution is not under any obligation to disclose any or all documents relevant to cross-examination.” It is okay, they said, to “maintain the element of surprise” without it amounting to “trial by ambush.”

The Prosecution concluded by asking the judges to issue guidelines on the introduction of “fresh evidence” that was consistent with their previous decisions and with those of other tribunals.  Here is what the prosecution asked the judges to order:

• That fresh evidence can be put to the Accused or Defense witness for the purpose of eliciting a response from that witness; the witness’ response because the evidence in the case and whether the new document is also admitted into evidence falls to be decided at the end of the Accused or Defense witness’ testimony;
• That fresh evidence which impeaches the testimony of the Accused or a Defense witness can be admitted by the Trial chamber, and its admission should be determined on a case-by-case basis and
• That fresh evidence going to the guilt of the Accused can be admitted in exceptional circumstances and in the interests of justice and its admission will be determined on a case-by-case basis.

And how about the Defense?

Lead defense counsel, Courtenay Griffiths, disagreed, and made three key arguments:

• Lack of Necessity: the principles relating to the “use and tendering of new documents are clear” and so the guidelines requested by the prosecution were “unnecessary.” Instead, the Prosecution was “seek[ing] a general licence from the court to ambush the Accused.”
• Failure to Address the Judges’ Question: The judges asked the prosecution to submit a motion justifying “the presentation of this fresh evidence at this late stage.” The prosecution failed to justify the admission of new documents, Mr. Griffiths argued, and so they were simply seeking to “postpone the inevitable and necessary argument over the admissibility of individual documents for future oral hearings.”
• Undermining Mr. Taylor’s Fundamental Rights: Finally, the guidelines that the prosecution was seeking undermined Mr. Taylor’s guaranteed rights as an Accused to be informed promptly and in detail the nature of the case against him, Mr. Griffiths argued. Such cguidelines would also undermine “the fairness of the trial as a whole.”

The Prosecution, he said, was under an obligation to present all evidence supporting its case before the start of the defense case to allow Mr. Taylor to know the nature of the case against him. The type of material the Prosecution was seeking to introduce now – such as the Lome Peace Agreement – was not new material, but available to the prosecution throughout its case.  This material, he argued, “has been deliberately kept up the prosecution’s sleeve in order to deny the Accused an opportunity to give the material considered thought and seek legal advice thereon, if necessary.” The Trial Chamber should exercise its discretion in admitting such evidence, he said, only in “exceptional circumstances” and where the “interests of justice” demanded it.

In making his argument, Mr. Griffiths sought to distinguish his client from just any ordinary witness – he was an Accused person with rights that don’t apply to other witnesses.

“….an Accused does not stand in all respects in the same position as any other witness, this is because the Accused is guaranteed rights not enjoyed by other witnesses. Indeed, the Accused enjoys greater protection than defense witnesses in general as he benefits from the rights enshrined in Article 17 even when appearing as a witness, such as the right not to incriminate himself.”

……. The Accused is guaranteed under Article 17 a right to legal advice in relation to the case against him: to have such advice, his counsel must have access to the documents which allegedly prove his guilt. To permit such documents to be introduced in court as a “surprise” plainly infringes this right.

While not disagreeing that case law permitted the use of new documents to impeach witnesses and also to try to demonstrate the alleged guilt of the Accused in “exceptional circumstances,” Mr. Griffiths took issue with the distinction made between the “use” and “admission” stages (arguing, in essence, that that an essential element of the use of new documents was their ability to meet the [higher] standards for their admission into evidence).  He also objected to the Prosecution argument that it has no disclosure obligations to the defense.

Finally, he rejected the Prosecution argument that it had no notice of the areas that Mr. Taylor would traverse during his testimony.

Mr. Griffiths asked for the Prosecution’s motion to be dismissed in whole. Or, if the judges decide that exceptional circumstances justified the introduction of new material probative of the Accused’s guilt, all such documents needed to be disclosed to Mr. Taylor’s defense team.  Here is what the Defense asked the judges to order:

• The Trial Chamber to order the Prosecution to disclose all new documents intended for use during cross-examination;
• Access to the Accused in order to advise on the material in accordance with his Article 17 rights;
• An adjournment of 30 days to read the material and advise the Accused on the new documents;
• An opportunity to re-open direct examination to give the Accused a chance to answer the evidence against him
• And also, if the prosecutor’s motion was granted, the Defense sought leave to appeal the decision and to request a stay of proceedings.

And a Reply by the Prosecution……..

The prosecution argued that the Defense conflated the “use” and “admission” of documents and that the two were actually distinct and different procedural stages. The team also argued that the Defense conflated the distinction between the use of documents to try to impeach, and those intended to try to demonstrate guilt.

The Prosecution said it was mainly seeking to use new documents to impeach Mr. Taylor, and will tender documents for admission largely for this purpose.  In those limited circumstances that it would try to admit new documents to try to prove the alleged guilt of Mr. Taylor, the Defense would then have the opportunity to object. This process, the prosecution said, was consistent with the Prlic case, and also respected Mr. Taylor’s rights as an Accused person.

So what would the judges decide? On November 30, 2009, we got our answer……..(or at least part of it…….)

Deciding the Issue: Not All Documents Are Created Equal – Some Need to Be Disclosed

The Prosecution has a duty, the Trial Chamber said, to put forward during its case-in-chief “all of the evidence on which it intends to rely to prove its case before the start of the defense case, in order to enable the Accused to know the nature of the case against him and consequently to adequately prepare his defense.” They pointed to general principles of international criminal law and domestic law, as well as the rules of the Special Court itself to back up its assertion.

And while acknowledging the standard practice of cross-examining witnesses to test the accuracy and truthfulness of their testimony, the Judges agreed with the Defense that Mr. Taylor was in a special position given his status as an Accused who has rights that ordinary witnesses don’t have (like knowing the nature of the case against him, and not being compelled to testify against himself or confess guilt).

The judges maintained the distinction between documents intended to impeach Mr. Taylor, and those intended to try to show his alleged guilt – and said this distinction would make them particularly cautious when deciding which types of “fresh evidence” could be used by the Prosecution during cross-examination. It was often “difficult if not impossible” to draw the line between the two.

In those cases where the Prosecution intended to use the “fresh evidence” solely for the purpose of impeaching Mr. Taylor, the judges sided with the Prosecution’s arguments: no need for such documents to be disclosed to the defense in advance.

However, documents which were probative of the Accused’s guilt would need to be disclosed. The use of these documents in court would not be allowed unless:

• It is in the interest of justice
• It does not violate Mr. Taylor’s fair trial rights.

Further, these second types of documents “will not be admitted into evidence unless the Prosecution can establish “exceptional circumstances.” In determining whether the circumstances were in fact exceptional, the Trial Chamber would consider:

• When and by which means the Prosecution obtained these documents;
• When it disclosed them to the defense; and
• Why they are being offered only after the conclusion of the Prosecution case.

The Trial Chamber rejected as “premature” the Defense requests to adjourn for 30 days to advise Mr. Taylor on the new documents they received, and for the opportunity to re-open direct examination to give Mr. Taylor a chance to answer the evidence against him.

The Trial Chamber ordered:

1. The Prosecution may use documents containing fresh evidence in order to impeach the credibility of the Accused.  The admission of such documents into evidence will be determined on a case-by-case basis;
2. In respect of documents containing fresh evidence that is probative of the guilt of the Accused: (a) The Prosecution must disclose all such documents to the Defence forthwith; and (b) Following such disclosure the Trial Chamber, on a case-by-case basis, will entertain submissions from the Parties in relation to the use and/or admission of such documents in accordance with the criteria above;
3. Defense Counsel may have access to the Accused to take instructions on any document falling within category (II) above.

The Trial Chamber dismissed all other requests by the Defense and Prosecution.

*******

So What Does This Decision Mean?

In short, both the Prosecution and the Defense got parts of what they were looking for.

The Prosecution has an opportunity to use documents to try to impeach Mr. Taylor on his testimony in the courtroom without having to give them to the Defense in advance. However, if they want to admit the documents into evidence, they will likely have to battle it out on each document — with more arguments by both the Prosecution and the Defense trying to justify why or why not it should be officially included as an exhibit before the judges make up their minds.

The Defense got the disclosure they were looking for on those documents which may be used by the Prosecution to try to demonstrate Mr. Taylor’s alleged guilt. This means that the Prosecution had to hand all the documents which fell into this category as soon as possible. The Defense and the Prosecution would then have to battle it out with more arguments to the judges before the Prosecution could be allowed to even use these documents in the courtroom – in addition to any they want to seek to admit as evidence.

The Defense also could have access to Mr. Taylor to be instructed on any document which fell into the category “probative of guilt” (remember: Mr. Taylor is not allowed to talk to his defense team about the testimony he will give while on the stand).

But you know what?  This was not the end of the story…….

Actually, All Documents Are More Equal Than We Thought…….

Trying to put this decision into practice in the last week the court was in session proved….challenging.

On December 2, the judges ordered that the Prosecution had to disclose to the defense team each morning any materials intended to be used to try to impeach Mr. Taylor during the day.

But by the next day, it seemed clear that this wasn’t working either.

On December 3, lead defense counsel, Courtenay Griffiths, objected to a bundle of bank documents used by the prosecution in their cross-examination of Mr. Taylor.  Handed to the defense team the day before, Mr. Taylor and his team hadn’t had a chance to review them overnight.  After asking for an hour to review them that morning, the Defense came back and requested more time – according to Mr. Griffiths, “it became immediately obvious that the material contained in the bundle also contained evidence probative of the defendant’s guilt.”

The Judges welcomed the Prosecution offer to disclose to the defense all the documents they intended to use during cross-examination – regardless of whether they were going to be used to try to impeach Mr. Taylor or whether they were to be used to try to demonstrate Mr. Taylor’s alleged guilt – to avoid confusion as the cross-examination continues.

The judges ordered the prosecution to disclose all their documents within five days (December 8, 2009) and to give 24 hours notice to the Defense on which documents they intended to use in cross-examination.

By the time the case resumed on Monday morning, Mr. Griffiths was distressed about the situation the defense team was in.  The prosecution had disclosed 165 documents – of which, five lever-arch folders had been given to them on the previous Friday afternoon. Mr. Griffiths also argued that documents which the Prosecution said they intended to use only for impeachment purposes “could also be probative of the guilt of the accused.”

Mr. Griffiths asked the judges to consider two things:

1. For an early adjournment until the new year to allow the Defense time to consider the new material that had been disclosed.
2. For the judges to look at the “fresh evidence” over the adjournment so that the judges could work out:
3. Which category the documents fall into based on their content (impeachment or probative of guilt)
4. If documents fall into the category of “probative of guilt” – then the judges should indicate what use can be made of it
5. Determine whether the documents can be used bearing in mind:
   1. i.      The interests of justice; and
   2. ii.      Mr. Taylor’s fair trial rights.

This would avoid stops and starts in Mr. Taylor’s cross-examination if there were clarity on which documents could be used, and how when the trial returned from its adjournment.

The judges agreed with the defense.

They ordered an early adjournment starting that day (December 7).

In terms of the documents, the judges also ordered:

1. that the Prosecution provide the Trial Chamber with all material which has been or will be served on the Defence;
2. To save time and to help make the volume of documents manageable, the Prosecution needed to indicate both to the judges and to the Defence on each document, firstly, which passage or passages will be used to impeach the credibility of the accused and, secondly, which passage or passages will be used to prove the guilt of the accused;
3. that the timeline for disclosure be extended to December 11

And with that, the courtroom drama finished that day and while things have been quiet for us, we can be sure things have been busy for Mr. Taylor’s defense team and the judges themselves.

As we come back tomorrow, then, we may start to hear a lot more about these documents, which ones can be used, and for what purposes.  It’s going to be quite a week……..