5 previous statements of recanting witness to be admitted into evidence

[RV Pundit]

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Baring an successfully appeal; look like this will go to the wire (full trial).
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[Kim Jong-Un's Pajama Pants]

The hustler and the midget cannot seem to catch a break.  It looks like the court does not consider incriminating evidence as necessarily detrimental to the accused.

[RV Pundit]

Yea that is strange part that Defence ought to appeal. I know for now; it just admitting these statement as part of evidence; whether and how they will assign probative value to these discredited statements is another headache..considering the beyond reasonable doubt standards.

It looks like the court does not consider incriminating evidence as necessarily detrimental to the accused.

[MOON Ki]

It looks like the court does not consider incriminating evidence as necessarily detrimental to the accused.

In the ordinary sense of the word, that would be the impression.   But the decision goes into what it means in the legal sense.

Yea that is strange part that Defence ought to appeal.

Even if they won on appeal, it would not do them any good.    The reason for that is because (a) all the three judges make it clear that they have seen evidence to the effect that the witnesses were tinkered with and (b) Oga Osuji's opinion explains why the stuff would go in any way.

This was a majority opinion, Osuji dissenting.   But Osuji makes it clear that the reason he disagrees with his colleagues is on whether the material is indeed "prior testimony".   He then goes on to state that he would admit the material under an article that allows the judges to admit into evidence anything they think would help them determine the truth:

31. In the special and exceptional circumstances of this case, I shall admit the out-of-court statements, by way of exercise of the authority indicated in article 69(3). But, I must stress that the exercise of the authority under article 69(3) is particular on the facts of this case: it is not a necessary precedent for future cases.

He then explains that:

32. It must thus be stressed that the exceptional circumstances that warrant the exercise of the authority under article 69(3) involve the union of actions and efforts that have the obvious aim or effect of preventing this trial or of frustrating its progress.

and:

35. Two matters of significance are apparent from the Ruto Defence submissions. One is its apparent congruence with the Prosecution's complaint that there is a concern that third parties holding themselves out as connected to Mr Ruto have been engaged in actions intended to prevent the appearance of Prosecution witnesses. According to his submissions, Mr Khan was so troubled with that concern that he took it upon himself to send a 'cease and desist' communication to a named individual, a lawyer who might have been holding himself out as a member of the Ruto Defence team. About six months later, Mr Khan also wrote a complaint to Kenya's Inspector General of Police, since Mr Khan's 'cease and desist' communication had not produced the intended effect.

Etc.

44. In my view, the interests of justice directly perturbed by the exceptional circumstances of this case, involving conducts capable of creating a dissuasive atmosphere for Prosecution witnesses, fully warrant the Chamber's exercise of the article 69(3) authority, for purposes of having regard to the witness statements that the Prosecution urges the Chamber to consider for the truth of their contents.

So even if the Appeals Chamber were to rule that the material could not be admitted as "prior recorded testimony", the judges would simply admit it as material they need to determine the truth.

[Georgesoros]

This will go on for a while. Another 10yrs.

[vooke]

Two indictees,
One hires an eloquent shark, the other a brutally efficient hit squad.

Am not serious, am vooke

[Kim Jong-Un's Pajama Pants]

The witness interference angle seems to have gained currency in this case. 

While I understand that circumstances in each case are unique, how was the BOSS able to wiggle out?  What was the key difference in his case?

[MOON Ki]

The witness interference angle seems to have gained currency in this case. 

While I understand that circumstances in each case are unique, how was the BOSS able to wiggle out?  What was the key difference in his case?

The problem in the BOSS's case was that the core of the case was actually built around just 3 or 4 witnesses.   Once they were severely "damaged", for whatever reason, doubts arose to whether the OTP had any real prospects for a conviction.   At that point, there were only two possible paths: (a) the OTP could review its case and withdraw it, or (b) the chamber would review it and throw it out.   The former happened.  Getting the statements of the "funny" witnesses into evidence would not have helped because of the high threshold required for a conviction.   Indeed, in the present case, it is important to keep in mind---and the judges emphasized this---that getting something admitted is a different issue from putting much weight on it.   

Ruto probably doesn't have that much to worry about.    There have been numerous discussions on this sort of evidence in such a trial, and some of the court's decisions have also commented on related matters, and the consensus seems to be that it cannot be used as the basis of a proper conviction.   Ruto's problem would be if some of the witnesses that have appeared have given strong testimony that would then be buttressed with this material.  Even with some "hot" stuff done in private sessions, I don't get any impression of the former.