Nipate
Forum => Kenya Discussion => Topic started by: RV Pundit on May 26, 2015, 02:20:26 PM
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How do your test evidence that were never tested in court. Evidence disowned. As far as I know they can determine the witnesses were lying on stand (when they recanted) but how can they determined they were telling the truth to OTP?
http://www.the-star.co.ke/news/evidence-against-ruto-not-strong-bensouda#sthash.AV2l0nDx.dpbs
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Wasn't there some amendment that went along with attendance excusals for Uhuru and Ruto? What I wasn't aware of is it retroactively affecting cases already in progress. However if Kenya was blinded by the need to have the excusal apply to Uhuru, then Bensouda squeezed this one in the same chink.
How do your test evidence that were never tested in court. Evidence disowned. As far as I know they can determine the witnesses were lying on stand (when they recanted) but how can they determined they were telling the truth to OTP?
http://www.the-star.co.ke/news/evidence-against-ruto-not-strong-bensouda#sthash.AV2l0nDx.dpbs
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You mean state parties amendment. I'm can't seem to recall any that would affect the issue at hand. Bensauda want un-sworn and untested statement the witnesses gave previously before they recanted [under intimidation or bribery -unproven allegation] and went ahead to testify and recant those earlier statement..used. This is just problematic at several levels.
I guess the questions remain did Bensauda during cross-examination of her hostile witnesses manage to convince the judges those witnesses were lying now not then.
Wasn't there some amendment that went along with attendance excusals for Uhuru and Ruto? What I wasn't aware of is it retroactively affecting cases already in progress. However if Kenya was blinded by the need to have the excusal apply to Uhuru, then Bensouda squeezed this one in the same chink.
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http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-44-ENG.pdf
2. If the witness who gave the previously recorded testimony is not present before the Trial Chamber, the Chamber may allow the introduction of that previously recorded testimony in any one of the following instances:
(a) Both the Prosecutor and the defence had the opportunity to examine the witness during the recording.
(b) The prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused. In such a case:
(i) In determining whether introduction of prior recorded testimony falling under sub-rule (b) may be allowed, the Chamber shall consider, inter alia, whether the prior recorded testimony in question:
- relates to issues that are not materially in dispute;
- is of a cumulative or corroborative nature, in that other witnesses will give or have given oral testimony of similar facts;
- relates to background information;
- is such that the interests of justice are best served by its introduction; and
- has sufficient indicia of reliability.
(ii) Prior recorded testimony falling under sub-rule (b) may only be introduced if it is accompanied by a declaration by the testifying person that the contents of the prior recorded testimony are true and correct to the best of that person’s knowledge and belief. Accompanying declarations may not contain any new information and must be made reasonably close in time to when the prior recorded testimony is being submitted.
(iii) Accompanying declarations must be witnessed by a person authorised to witness such a declaration by the relevant Chamber or in accordance with the law and procedure of a State. The person witnessing the declaration must verify in writing the date and place of the declaration, and that the person making the declaration:
- is the person identified in the prior recorded testimony;
- assures that he or she is making the declaration voluntarily and without undue influence;
- states that the contents of the prior recorded testimony are, to the best of that person's knowledge and belief, true and correct; and - was informed that if the contents of the prior recorded testimony are not true then he or she may be subject to proceedings for having given false testimony.
(c) The prior recorded testimony comes from a person who has subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally. In such a case:
(i) Prior recorded testimony falling under sub-rule (c) may only be introduced if the Chamber is satisfied that the person is
2. Further decides that the following shall replace rule 68 of the Rules of Procedure and Evidence,3
and noting that the rule as amended is without prejudice to article 68(3) of the Rome Statute:
“Rule 68 Prior recorded testimony
1. When the Pre-Trial Chamber has not taken measures under article 56, the Trial Chamber may, in accordance with article 69, paragraphs 2 and 4, and after hearing the parties, allow the introduction of previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony, provided that this would not be prejudicial to or inconsistent with the rights of the accused and that the requirements of one or more of the following sub-rules are met.
2. If the witness who gave the previously recorded testimony is not present before the Trial Chamber, the Chamber may allow the introduction of that previously recorded testimony in any one of the following instances:
(a) Both the Prosecutor and the defence had the opportunity to examine the witness during the recording.
(b) The prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused. In such a case:
(i) In determining whether introduction of prior recorded testimony falling under sub-rule (b) may be allowed, the Chamber shall consider, inter alia, whether the prior recorded testimony in question:
- relates to issues that are not materially in dispute;
- is of a cumulative or corroborative nature, in that other witnesses will give or have given oral testimony of similar facts;
- relates to background information;
- is such that the interests of justice are best served by its introduction; and
- has sufficient indicia of reliability.
(ii) Prior recorded testimony falling under sub-rule (b) may only be introduced if it is accompanied by a declaration by the testifying person that the contents of the prior recorded testimony are true and correct to the best of that person’s knowledge and belief. Accompanying declarations may not contain any new information and must be made reasonably close in time to when the prior recorded testimony is being submitted.
(iii) Accompanying declarations must be witnessed by a person authorised to witness such a declaration by the relevant Chamber or in accordance with the law and procedure of a State. The person witnessing the declaration must verify in writing the date and place of the declaration, and that the person making the declaration:
- is the person identified in the prior recorded testimony;
- assures that he or she is making the declaration voluntarily and without undue influence;
- states that the contents of the prior recorded testimony are, to the best of that person's knowledge and belief, true and correct; and
- was informed that if the contents of the prior recorded testimony are not true then he or she may be subject to proceedings for having given false testimony.
(c) The prior recorded testimony comes from a person who has subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally. In such a case:
(i) Prior recorded testimony falling under sub-rule (c) may only be introduced if the Chamber is satisfied that the person is unavailable as set out above, that the necessity of measures under article 56 could not be anticipated, and that the prior recorded testimony has sufficient indicia of reliability.
(ii) The fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it
(d) The prior recorded testimony comes from a person who has been subjected to interference. In such a case:
(i) Prior recorded testimony falling under sub-rule (d) may only be introduced if the Chamber is satisfied that:
- the person has failed to attend as a witness or, having attended, has failed to give evidence with respect to a material aspect included in his or her prior recorded testimony;
- the failure of the person to attend or to give evidence has been materially influenced by improper interference, including threats, intimidation, or coercion;
- reasonable efforts have been made to secure the attendance of the person as a witness or, if in attendance, to secure from the witness all material facts known to the witness;
- the interests of justice are best served by the prior recorded testimony being introduced; and
- the prior recorded testimony has sufficient indicia of reliability.
(ii) For the purposes of sub-rule (d)(i), an improper interference may relate, inter alia, to the physical, psychological, economic or other interests of the person.
(iii) When prior recorded testimony submitted under sub-rule (d)(i) relates to completed proceedings for offences defined in article 70, the Chamber may consider adjudicated facts from these proceedings in its assessment.
(iv) The fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it.
3. If the witness who gave the previously recorded testimony is present before the Trial Chamber, the Chamber may allow the introduction of that previously recorded testimony if he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings.”
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Wasn't there some amendment that went along with attendance excusals for Uhuru and Ruto? What I wasn't aware of is it retroactively affecting cases already in progress. However if Kenya was blinded by the need to have the excusal apply to Uhuru, then Bensouda squeezed this one in the same chink.
Yes, after Kenya's mischief, the Assembly of States parties decided that something had to be done to stop cases of people finishing or bribing witness. So at the 2013 session they amended Rule 68 (Rules of Procedure and Evidence) to cover such cases. (The rule before the amendment did allow the admission of prior recorded testimony; they just modified it.)
On the other hand, Article 51 of the Rome Statute has always stated that amendments to the Rules cannot be applied retroactively to the detriment of the accused. Nevertheless, the OTP is arguing that there is nothing here that is retroactive or detrimental to the accused; the argument seems to be a bit of a stretch, and it will probably be tough to make it fly.
Other things:
* The job in a typical court is basically to determine whether or not the accused did it. The ICC is different, in that judges also have a mandate to "uncover the truth".
In a typical court, if the accused jumps up and says "Yes, I did it! And I would do it again! So there!", that would be the end of the trial phase. At the ICC, the judges can still order that the trial go ahead if that would help uncover the truth. So it is possible to imagine the judges letting in the evidence, to uncover the truth, even if it is not directly used against Ruto. At the end of the day, they could, for example, write a decision that says "there is strong evidence to say he did it, but not enough to convict him".
* The fact that prior testimony is admitted without the witnesses being tested on particular points on the stand does not necessarily mean that its worth cannot be determined. Consider, for example, a case where four witnesses all say that "X did Y on date Z". Three of those are tested in court, and their statements are verified, but the fourth now says he made it all up and recants. One does not then conclude that the fourth statement is all junk.
* A third point to keep in mind is that several of these recanting witnesses were questioned (via video-link), and the judges have no doubt formed an opinion on their recanting and sudden losses of memory. What that opinion might be is unknown.
It's hard to guess which way the judges will rule. But it seems fairly clear that even if the prior testimonies are admitted---and the Defence has a strong case against their admission---it will be difficult very to use much of it to damage Ruto. The OTP surely knows that, so perhaps they have other reasons for this tactic.
If I were a betting man, I'd go with a 51% chance of the evidence going on.
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I see. That clarifies. However even if OTP manages to go thro this hurdle and get the judges to scrutinize previous statements the probative value of such is worse than those that a witness who died after having recorded a statement with OTP but never testifies. At least the Judges can see 50-50 chance of some truths there. If they are corroborated by two or more sources; they become useful.
But now....Bensauda want the judges to admit the lowest evidence [not tested in court] that has been denied[How low can we go?]. Sounds like a waste of time. Except for Crime Against Justice case like Baraza.
My thinking was Bensauda having scored a major one in getting the hostile witness to testify; she would have used the cross-examination to bring back recorded statements; and that should have been it. Of course she didn't go far with cross-examination and now she wants to judges to do the impossible...turn the benefit of doubt upside down :)
If the threshold at this stage remain..BEYOND reasonable doubt...poor Bensauda can as well terminate her case.
Yes, after Kenya's mischief, the Assembly of States parties decided that something had to be done to stop cases of people finishing or bribing witness. So at the 2013 session they amended Rule 68 (Rules of Procedure and Evidence) to cover such cases. (The rule before the amendment did allow the admission of prior recorded testimony; they just modified it.)
On the other hand, Article 51 of the Rome Statute has always stated that amendments to the Rules cannot be applied retroactively to the detriment of the accused. Nevertheless, the OTP is arguing that there is nothing here that is retroactive or detrimental to the accused; the argument seems to be a bit of a stretch, and it will probably be tough to make it fly.
Other things:
* The job in a typical court is basically to determine whether or not the accused did it. The ICC is different, in that judges also have a mandate to "uncover the truth".
In a typical court, if the accused jumps up and says "Yes, I did it! And I would do it again! So there!", that would be the end of the trial phase. At the ICC, the judges can still order that the trial go ahead if that would help uncover the truth. So it is possible to imagine the judges letting in the evidence, to uncover the truth, even if it is not directly used against Ruto. At the end of the day, they could, for example, write a decision that says "there is strong evidence to say he did it, but not enough to convict him".
* The fact that prior testimony is admitted without the witnesses being tested on particular points on the stand does not necessarily mean that its worth cannot be determined. Consider, for example, a case where four witnesses all say that "X did Y on date Z". Three of those are tested in court, and their statements are verified, but the fourth now says he made it all up and recants. One does not then conclude that the fourth statement is all junk.
* A third point to keep in mind is that several of these recanting witnesses were questioned (via video-link), and the judges have no doubt formed an opinion on their recanting and sudden losses of memory. What that opinion might be is unknown.
It's hard to guess which way the judges will rule. But it seems fairly clear that even if the prior testimonies are admitted---and the Defence has a strong case against their admission---it will be difficult very to use much of it to damage Ruto. The OTP surely knows that, so perhaps they have other reasons for this tactic.
If I were a betting man, I'd go with a 51% chance of the evidence going on.
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My thinking was Bensauda having scored a major one in getting the hostile witness to testify; she would have used the cross-examination to bring back recorded statements; and that should have been it.
No, she could not have done it at the time. It can only be done after the witness has had his/her performance. If you look at what Omollo posted, the relevant part is
"the person has failed to attend as a witness or, having attended, has failed to give evidence with respect to a material aspect included in his or her prior recorded testimony";
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Also a quick polygraph test will soon separate the liars from the honest ones...