I Introduction
The rule against hearsay is a fundamental rule of evidence applicable in most common law jurisdictions.[1] The adhoc international criminal tribunals and the International Criminal Court are more flexible in the admissibility of evidence. It is well established that hearsay evidence is admissible in the Special Court for Sierra Leone (Special Court), the International Criminal Court, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).[2] When determining whether evidence will be admitted these courts and tribunals are concerned with the relevance of a statement, rather than its reliability which is assessed at the end of the trial.
The decision to allow hearsay into evidence has perplexed many international commentators, who argue that this compromises the right of the accused to a fair trial. This paper examines the rule against hearsay, the position taken by the Special Court, and arguments for and against the admissibility of hearsay evidence. It asks the question: Should the court continue to admit hearsay, or limit admissible evidence to direct evidence?
II The rule against hearsay
The rule against hearsay operates as follows:
An assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of any fact asserted.[3]
Hearsay encompasses statements made by a witness that are based on what someone else has told them. Such statements are inadmissible if the object of the evidence is to prove the truth of what was said. It is not hearsay and is admissible when the object of the evidence is to establish not the truth of the statement, but the fact that the statement was made.[4]
The effect of the rule is that witnesses are only permitted to testify in relation to what they have personally seen and heard. They are not permitted to testify as to the assertions of others.
III. Admissibility of Hearsay in the Special Court
A. Statute
While the Rules of Procedure and Evidence for the Special Court for Sierra Leone (Special Court Rules) do not directly address the issue of hearsay, the Trial Chamber has discretion under Rule 89(C) to admit any relevant evidence, including hearsay.[5] Similar provisions exist in the Rules of Procedure and Evidence for the ICTY and ICTR, however they specify that the evidence must also be probative.[6] It was pointed out by the Prosecution in the Fonfana Bail Appeal Decision that while the Rules for the ICTY explicitly refer to the probative value of the evidence, and the Special Court Rules do not, the requirement that the evidence is relevant is essentially the same as the requirement that it be probative.[7]
B. Case Law
The Special Court has consistently decided in favour of admitting hearsay into evidence, finding that relevance is the only condition for the admission of evidence, and that its reliability is considered at a later stage.[8] Hearsay is admitted on the basis that the Trial Chamber consists of professional Judges who are capable of evaluating the weight to be given to it. Determinations on the admissibility of hearsay are considered to be a waste of the court’s time.[9]
On 24 May 2005 the Trial Chamber in the AFRC case[10] handed down a decision on a joint defence motion to exclude the evidence of a witness on the grounds that it was hearsay. The disputed evidence of the witness was that he was present when a man named Mr. Saj Alieu reported to his uncle that a person referred to as “55” (an alternative name given to the accused) shot a woman.
Defence counsel argued that hearsay evidence should only be admissible where there are difficulties in obtaining first-hand accounts. The Trial Chamber disagreed, stating that it is not necessary for the Prosecution to establish that the other people involved in the conversation are not available to give evidence. The Trial Chamber decided that this issue goes to the weight, rather than admissibility, of the evidence.[11]
In reaching a decision the Trial Chamber considered the decision of the Appeal Chamber in the Fonfana Bail Appeal Decision.[12] In that decision the Appeal Chamber found that the Trial Chamber erred in law in refusing to admit hearsay evidence. The Appeal Chamber interpreted Rule 89(C) as follows:
Rule 89(C) ensures that the administration of justice will not be brought into disrepute by artificial or technical rules, often devised for jury trial, which prevent judges from having access to information which is relevant. Judges sitting alone can be trusted to give second hand evidence appropriate weight, in the context of the evidence as a whole and according to well-understood forensic standards.[13]
With this in mind, the Trial Chamber found that the reliability of evidence does not affect its admissibility. The Trial Chamber confirmed that its decision to admit hearsay evidence ‘does not imply that it accepts it as reliable and probative.’ The Trial Chamber will admit evidence on the basis of its relevance, and at the end of the trial it has the responsibility of ‘evaluating the evidence as a whole, in light of the context and nature of the evidence itself, including the credibility and reliability of the relevant witness.’[14]
The Trial Chamber ruled that the evidence was relevant and therefore admissible under Rule 89(C). This decision was consistent with the Fonfana Bail Appeal Decision where the Appeal Chamber remarked that ‘[e]vidence is admissible once it is shown to be relevant: the question of its reliability is determined thereafter, and is not a condition for its admission.’[15] These decisions reflect the view taken by the Special Court that the trials are conducted by professional Judges who are capable of determining the weight to be given to hearsay evidence.
IV. Arguments for and against the admission of
hearsay evidence
The following section considers the arguments for and against the admission of hearsay evidence.
A. The reliability of hearsay
The rule against hearsay reflects the fact that hearsay evidence is not as reliable as direct evidence. This section examines factors undermining the reliability of hearsay evidence.
1. No opportunity to cross-examine the primary witness
Juries, and in international tribunals, Judges, have the onerous task of evaluating the evidence of each witness. The reliability of their testimony is affected by their honesty, perception, memory and narration.[16] These factors can be tested in cross?examination; however, in the case of hearsay evidence as the primary witness is not coming before the court this is not possible.[17] If a witness providing secondary evidence has misheard or misremembered a statement, or taken it out of context, this is not evident to the court unless the primary source of the statement is cross-examined. Cross?examination gives the court the opportunity to test the reliability of evidence and assess the credibility of a witness by observing their demeanour. The Special Court has ruled that whether or not evidence can be tested by cross-examination goes to the weight of the evidence, not its admissibility.[18]
Hearsay evidence coming before the Special Court is of an even more extraordinary nature as in many cases it is not just second-hand but third and fourth-hand accounts. In countries with a largely rural population, such as Sierra Leone, the majority of information travels by word of mouth. When a witness testifies it is impossible to test how many individuals a statement they are making has passed through before it reached them. This further compromises the reliability of such a statement.
2. Hearsay evidence is not provided under oath
The reliability of hearsay evidence is further undermined because it is not provided under oath. When evidence is provided under oath a witness is required to testify in the solemn context of proceedings in court, being instructed as to their obligation to tell the truth and the consequences for not doing so. It is common for people to mislead others, particularly when they are not aware of the implications of their statements. It is a lot less likely that someone will make misleading statements before a courtroom, while under oath.
3. Requirement of reliability
The ICTY has imposed an additional requirement that evidence be reliable. The Special Court has a lower threshold, requiring only that the evidence be relevant. The probative value of evidence is the ‘tendency of evidence to establish the proposition that it is offered to prove.’[19] It has been argued that evidence ‘may be so lacking in terms of the indicia of reliability that it is not “probative” and is therefore inadmissible.’[20] It could be argued that the approach taken by the ICTY to impose a test of reliability overcomes this issue. However, the Judges of the Special Court retain a discretion by virtue of Rule 89(C) over which relevant evidence they deem appropriate to admit, and can exclude evidence of this nature on that basis.
B. Rights of the Accused
An argument against the admission of hearsay evidence is that it compromises the right of the accused to a fair trial. Article 17(4)(e) of the Special Court Statute entitles the Accused ‘[t]o examine, or have examined, the witnesses against him…’ It could be argued that this right is compromised when hearsay evidence is admitted, as they are not given the opportunity to examine the primary source of the evidence.
The Trial Chamber in the ICTY has held that the admission of hearsay does not compromise the rights of the accused as the Defence has the opportunity to cross-examine the witness and undermine the weight of the evidence. The Tribunal made it clear that the provision in the ICTY Statute akin to Article 17(4)(e) of the Special Court Statute[21]applies ‘to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness’.[22] Cross examination of a witness providing secondary evidence cannot be used to test the truth of such a statement, but it can be used to test whether or not such a conversation took place. This is the rationale for the traditional rule against hearsay, which only allows hearsay to be admitted to demonstrate that a statement was made.
The Special Court explained how cross-examination could be used to undermine the weight of hearsay evidence, stating that:
…It was open to the defence to ask Mr White to be called and to cross-examine him or to controvert his evidence by calling their own witnesses or by arguing that it was speculative or rumour-based, in order to undermine its weight.”[23]
Cross-examination can be used to determine the identity and characteristics of the primary witness and other facts and circumstances that might assist the court in evaluating the evidence. For example, in regards to the allegation that Taylor exercised command and control over members of the Sierra Leonean rebel group the Revolutionary United Front (RUF), the Judges of the Special Court are likely to give more weight to hearsay statements made by someone who held a senior position in the RUF than statements made by an individual who had no association with the RUF.
C. Inability to evaluate hearsay evidence
A key argument against the admission of hearsay evidence in common law trials is a lack of trust in juries’ capacity to evaluate it. The Special Court is confident that its Judges can be trusted with the task of evaluating and assigning appropriate weight to hearsay evidence. Similarly, the ICTY determined that its Judges are ‘professionals capable of evaluating the probative value of testimony…’, including hearsay evidence.[24] The Special Court Rules were specifically drafted differently to that of most domestic statutes to reflect the unique fact that the court is sitting with Judges alone and not a jury.[25] In limited circumstances, hearsay is admissible before juries in common law courts. In such instances, the Judge will warn the jury of the need to exercise caution when considering the evidence and the weight to be given to it. If juries are trusted to evaluate hearsay evidence, it is reasonable to consider that a panel of professional Judges are capable of doing the same.
Contrary to this it has been argued that given the substantial amount of prejudicial hearsay evidence coming before the Court in the Prosecutor v. Charles Taylor trial, it is difficult for the Judges to remain impartial and this is affecting Charles Taylor’s right to a fair trial. It has been suggested that as a number of witnesses are repeating the same hearsay evidence to the Court this will subconsciously act on the Judges’ perception of the facts. Charles Taylor himself has expressed concern that evidence before the Court is ‘repeated and repeated and repeated until…it begins to sounds like it’s true’.[26]
D. The value of hearsay
A significant difference between domestic and international criminal courts is the nature of the alleged crimes. In international criminal courts people are generally tried for crimes that have been committed on a mass scale, in a widespread and systematic matter, over a period of time.[27] The nature of these crimes makes it difficult for the Prosecution to present a case without the use of hearsay evidence. Stephen Rapp, former Chief Prosecutor in the Prosecutor v. Charles Taylor trial, supports the admissibility of hearsay evidence in the Special Court. He commented that while direct evidence usually receives more weight, hearsay evidence does add ‘value’ to the trial. He remarked that ‘particularly when combined with other evidence [hearsay] can provide a very accurate picture of events.’ [28]
Stephen Rapp identified some examples of hearsay evidence, and explained how the admission of such evidence can be used to demonstrate a ‘pattern’ of evidence, contributing to the guilt of the accused:
… it may involve testimony from individuals who have spoken to someone who directly overheard a significant and memorable communication. Other times, it may include information imparted to a witness on a contemporaneous basis – for instance when a witness was standing next to someone who was on the line with the leader and got the relayed message, “attack that village.” There can be situations where a witness has heard reports from persons who say that they were buying arms at the direction of a leader, while others have testified that shortly thereafter groups supported by the leader were found to have arms of the kind that were being purchased. This can show a pattern that the judges can consider together with the totality of evidence.[29]
Complex political, legal, cultural and social factors affect the Prosecution processes of investigating and gathering evidence and presenting a case. Stephen Rapp referred to the difficulties in obtaining evidence for use in international criminal courts, stating that it is important to be able to use hearsay evidence ‘when you are dealing with powerful leaders who pull the strings behind the scenes’. Another example he provided is that hearsay can include the ‘results of a thorough investigation by a reliable independent human rights observer who has received the information on the strict condition that identities will remain confidential’. Rapp emphasised that by restricting admissible evidence to direct evidence, the court will not be making a decision on all available evidence. [30]
E. Trial efficiency
An argument favouring the admissibility of hearsay is in the interests of trial expediency. The Special Court Rules provide that the Trial Chamber ‘shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to…avoid the wasting of time’.[31] The Appeals Chamber in the Fonfana Appeal Bail Decision suggested that the reason for the relaxed rules regarding evidence is to ‘avoid sterile legal debate over admissibility so the court can concentrate on the pragmatic issue of whether there is a real risk that the defendant will not attend the trial or will harm others.’[32] Similarly, in the ICTY the Tribunal has noted that it does not need to be ‘hindered by technicalities’.[33]
A counter-argument is that the Court wastes a great deal of time considering evidence that is given very little weight. A commonly cited problem with hearsay is that it raises peripheral issues that are not before the Court. The rule against hearsay limits the raising of such issues, reducing the time wasted by the Court.
V. Conclusion
Considering the unique mandate, structure and nature of the cases coming before the Special Court, it is submitted that the Judges of the Special Court are capable of evaluating hearsay evidence and using their discretion to exclude evidence that is too prejudicial or unreliable. It is submitted that the Special Court Rules do not need to be amended to limit evidence to direct evidence, as this would have the effect that the Court would not be considering all relevant evidence when making its decisions.
[1] The rule against hearsay applies in criminal, but not civil trials in the United Kingdom. In most jurisdictions there are a number of exceptions to the rule against hearsay. Hearsay is generally admissible in civil law systems.
[2] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, 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, para. 12.
[3] Heydon, J.D. & Cross, R, 2004, Cross on Evidence, 7th edition, LexisNexis Butterworths Sydney, ch 16.
[4] Ibid.
[5] Rule 89(C), Rules of Procedure and Evidence of The Special Court for Sierra Leone.
[6] Rule 89(C), Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia; Rule 89(C), Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda.
[7] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 12.
[8] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, 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, para. 15;Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 24.
[9] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 26; Prosecutor v Enver Hadziha Sanovic Amir Kubura, Case No. IT-01-47-T, Decision on the Admissibility of Documents of the Defence of Enver Hadzihasanovic, 22 June 2005, para. 14.
[10] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, 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.
[11] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, 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, para. 19.
[12] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005.
[13] Ibid, para. 26.
[14] Prosecutor v. Brima, Kamara and Kanu (AFRC Case), Case No. SCSL-04-16-PT, 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, para. 15.
[15] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 24.
[16] Heydon, J.D. & Cross, R, 2004, Cross on Evidence, 7th edition, LexisNexis Butterworths Sydney [Chapter 16, 31020].
[17] Ibid.
[18] Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-T, Decision on Defence application to exclude the evidence of proposed Prosecution expert witness Corinne Dufka or, in the alternative, to limit its scope and on urgent Prosecution request for decision, 19 June 2008, para. 25.
[19] Charles T. McCormick, McCormick on Evidence, 4th edition, 1992, p. 339 and 340.
[20] Prosecutor v. Kordic and Cerkez, Decision on Appeal Regarding Statement of a Deceased Witness, IT-95-14/2-AR73.5, 21 July 2000, para 24.
[21] Article 21(4)(e) Statute of the International Criminal Tribunal for the Former Yugoslavia.
[22] The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, Decision on Defence Objection to the Admission of Hearsay, 21 January 1998.
[23] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 29.
[24] Prosecutor v. Enver Hadziha Sanovic Amir Kubura, Case No. IT-01-47-T, Decision on the Admissibility of Documents of the Defence of Enver Hadzihasanovic, 22 June 2005, para. 14. This point is firmly entrenched in ICTY case law, see 15 – See for example, Brdanin Order, paras. 5-26 ; Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-T, Decision on the Motion of the Prosecutor for Admissibility of Evidence, 19 January 1998 (“Delalic Decision”), para. 20.
[25] Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-T, Decision on Prosecution notice of appeal and submissions concerning the decision regarding the tender of documents, 6 February 2009, para. 36.
[26] Transcript of Proceedings, Prosecutor v. Charles Ghankay Taylor (Special Court for Sierra Leone, Lussick, Doherty, Sebutinde JJ., 7 December 2009).
[27] The indictment against Charles Taylor covers crimes committed over a period of seven years, from 1996 to 2002.
[28] Tracey Gurd, ‘Stephen Rapp, Special Court Chief Prosecutor, Answers Your Questions – Part 1’, (2009), The Trial of Charles Taylor at 2 September 2009.
[29] Ibid.
[30] Ibid.
[31] Rule 90(F) of the Rules of the Special Court for Sierra Leone.
[32] Prosecutor v. Sam Hinga Norman et al, Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 26.
[33] Prosecutor v Enver Hadziha Sanovic Amir Kubura, Case No. IT-01-47-T, Decision on the Admissibility of Documents of the Defence of Enver Hadzihasanovic, 22 June 2005, para. 14.