(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.
Excellent breakdown of the rules, since tylor supporters’ biggest arguements stem from ‘Hearsay’ and thus want such as videos, recordings of taylor giving command for attack on Freetown, or photos of him cannibalizing victims, or receiving diamonds from sam boakerie to be only relevant proofs to taylor’s involvement into the internal affairs of Sierra Leone, that resulted in murders of innocent civilians with arms provided to RUF by taylor!
Fallah,
The case has just been made much easier for this innocent man, Taylor.
Don’t be surprised to see more witnesses testifying for the defense by saying they heard the prosecution witnesses saying they plan to lie against Taylor. Don’t be even more surprised to see/hear witnesses saying they heard their news for hearsay or they say, or best friend Mai Farrow say, super model say, the prosecution paid people to lie. There is no way for you guys. Taylor is just too smarter. And that is why he dominated Liberian politics like the way he did.
Fallah, I hope when that time comes, you will remain consistent to these views that you hold now.
Hi Tracey/Valeria
My comment is not about hearsay evidence, rather the rule of law. After the prosecution rested her case later on petitioned the court to introduced fresh evidence. The petition was granted by the court. Defense counsel Griffiths, called this maneuvering “Trial by Ambushed”.
Under the circumstances, are the rules and procedures of the SCSL mostly favoring the prosecution that makes it difficult if not impossible for the accused to be found not guilty?
Is there a provision in the SCSL “unique rules of procedure and evidence” that allows both party to submitted fresh evidence after said party has rested?
As a law professor, Valeria is familiar with discussion issues, facts, and legal proceeding with her students. Hypothetically, what guidelines the judges will use to decide or render a verdict if the prosecution and defense witnesses both have credibility issues?
Thanks and best regards.
Hi Big B,
You ask good questions. The rules and procedures of the SCSL were actually originally drawn from the Rules of Procedure and Evidence used by the International Criminal Tribunal for Rwanda (ICTR) and have been modified by the SCSL judges over time. If I can just draw on an example from the ICTR to answer your question, quite a number of accused in that tribunal have been acquitted, and so I would suggest that there is nothing inherent in these rules that favors the prosecution or makes it impossible for an accused to be found not guilty.
In terms of the introduction of fresh evidence after a party has rested their case, the SCSL’s rules of evidence and procedure do not explicitly preclude the submission of fresh evidence — and in practice, the use of new documents/fresh evidence has actually been allowed in other tribunals during cross-examination and after a party has finished its case, such as the International Criminal Tribunal for the former Yugoslavia (ICTY). If I can eke out some time in the coming weeks, I will try to write up something about this for us here.
In terms of the judges, they will weigh carefully all the pices of evidence they have heard from the prosecution and defense, determine whether they are reliable and what weight to attach to them as they come to a decision on Mr. Taylor’s guilt or innocence. They will have to determine whether, on the balance of weighing all this evidence, whether the prosecution has met the burden of proving Mr. Taylor’s guilt beyond a reasonable doubt.
Does this help?
Best,
Tracey
Tracey,
You answered to my satisfaction. Yes.
I am grateful.
Fallah,
Let me ask you, why are you so desperate about Mr. Taylor guilt and what do you stand to gain if any? I would appreciate your respectful respond please.
Regards
Harris K Johnson
Harris,
Let me ask you why are you so desperate about Mr. Taylor innocence and what do you stand to gain if any?
Ms. Teage,
Please I’m not desperate about Mr. Taylor innocence, but rather I’m desperate for his total freedon. My greatest gain will be that a leader is once again allowed to lead his people and a loving father reunited with his many children. My dear Teage, the fact remains that he did not do those things that you and your so-called white master have accused him of. By the way are you second Fallah?
Harris K Johnson
Hi Harris — alas I cannot publish a comment of yours of today at 3:16pm unless you are able to reframe the last two sentences to focus on the issues arising out of the trial and away from other readers. Would you mind resubmitting and I’ll be happy to post it.
Best,
Tracey
Fallah come down. you can not just flow all over the place. what are you really talking about?
you need to read or watch the trial with much understanding. It is not just one way thinking like you are doing always.
Leoroy Dennis,
I am happy to hear from you again. Glad you are back pekin. However, we have been holding the ground safe and secure while you were away. Leoroy, Liberia’s beloved president, Taylor, is winning this thing openly. Leoroy, we are approaching the end to this fake trial. Now is the time you comment even more.
Menjor,
This does not change anything that we did not already know. So do not gloat unnecessarily. Perhaps this comes as news to you but not to some of us who had already read the rules and fully understood the meanings and implication for the trial.
i would however like to say thanks to Tracey for this explanation and clarity, which will adduce and elucidat the issue further for those who were unclear about the use of hearsay.
Thanks Helen — yes, I agree it is a good piece by Valerie and Heather here and I in turn would like to thank them for their contribution.
Best,
Tracey
Leroy and Helen; I definitely agree with you in disagreeing with whatever I say here because that’s your right.However, it seems necessary sometimes for me to reiterate what is being said and breakdown for those who may not comprehend and thus, twist to their convenience as is the case with most of taylorites who seem to have taken oath to “see nothing” hear nothing” and ” say nothing” against gankay taylor’s behavior! I am not, and I am free to express my utmost opinion of the crimes committed against my fellow kins of West Africa by this Man!I am speaking on behalf of those that never had the chance to do so!
Fallah,
We are also speaking on behalf of those who never had the chance to speak.
Actually Helen,
You hit the nail just right. Tracey did a good job by posting this explaination as you righly said. Quite frankly, a guy like me who is eats lunch with medical equipments and have supper with locomotives and electromotives engines just don’t have time to dig deeper when it comes to these kinds of documentations. Thanks Tracey..
Noko5 — you are most welcome, and yes, Valerie and Heather did a great job in explaining the issue.
Best,
Tracey
hogwash!
Via-Gbana, is hogwash, a new ghetto term or this is psychological frustration from being unable to express your thoughts otherwise? Please let me know how this relates to immense evidence against taylor for crimes committed against the peopler of Sierra Leone by his total involvement and mendling into the internal affairs of that Nation! That is the dicussion here! Even if this is “hogwash” to your limited understanding!
Dear J Fallah Menjor — may I ask you for your help: can you please help us here to keep everyone’s temperatures cool as we discuss the trial? You raise important points, but we need to keep focussed on the trial and not each other.
Best,
Tracey
Fallah,
You keep on talking about immense or mountain of eveidence, but you can’t show one. What immense evidence are you talking about against this innocen man? I remember however, in one of my posts, I produced all the evidences that were either marked for identification for both the defense and prosecution or accepted as evidence. Man oh man, not even close. The judges took almost all of the defense evidence and took a little tiny bit of the prosecution. Do you remember that? I guess not. Anyways, the defense had more evidence accepted than the prosecution.
Hi Jose — I am sorry to burst your analysis on this one. But if I am remembering correctly, that list of documents you mention contained many more defense documents because it is now the defense team’s turn to present evidence and to mark documents for identification as they present their case. The prosecution did the same thing when it was presenting its case. I think we need to look at it more as a procedural issue as a function of the case rather than any win or blow for one side or the other.
Best,
Tracey
Tracey Gurd,
You are most welcomed when you said, “sorry to burst your analysis on this one”. These are the kinds of analytical discussions that I expect the side that always claimed to be more educated, intelligent, and good people to advance and that’s just exactly what you have done. However, let me thank you personally for your salient points that you have raised as the result of you sibliminally raising my intellectual spontaneity. Nontheless, you have just stimulated and motivated me even more to go into my analytical mood. Tracey, Yes, it is true that the defense is presenting their case at this junction. However, it is “NOT” mandatory or banding on the judges to accept or mark evidence for identification from the defense. The judges however, reserve the rights to reject evidence put forward when deem fit. More importantly, the prosecution has no statute of limitation preventing them from objecting to documents put forward by the defense. In fact, there were objections made by the prosecutor and it was overruled by the judges’ decision.
So Tracey Gurd, I am right for saying what I said to Fallah and also right on the judges’ decision in accepting more evidence from the defense than that of their counterpart. Bear in mind now Tracey, there were also evidences marked for identification for the prosecution. But those of the defense swamped the prosecution.
Hi Tracy thanks for your hard works and continous efforts in informing us that are unable to take time and do what u doin. i appreciate it a lot.
Thank you Lee. That is a really nice note of yours and I appreciate your thoughtfulness in taking the time to send it.
Best,
Tracey
Ha ha ha …..so we now see from what I said WAY BACK when Mr. Griffith objected to the very FIRST HEARSAY and was overruled….it was never a part of any trial before this trial. I believe the RULES were amended to FIT the mode.
Again, I will say for such a case, FACTUAL FACTS should be the ONLY evidences allow…PERIOD!!!!