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7 - Casual Indifference: The Trial Chambers' Treatment of Testimonial Deficiencies

Published online by Cambridge University Press:  05 October 2010

Nancy A. Combs
Affiliation:
College of William and Mary, Virginia
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Summary

Although the problems identified in Chapters 2 through 5 are worryingly widespread and not easily remedied through other forms of evidence gathering, they need not impair the integrity of the Trial Chambers' legal judgments, so long as the Trial Chambers recognize the significance of the fact-finding impediments and treat them with the requisite seriousness. However, much of the time, Trial Chambers do neither. Some Trial Chambers fail even to mention serious testimonial deficiencies, as I observe in Chapter 6, and although other Trial Chambers do acknowledge the problems, at least in a general way, they often unquestioningly attribute those problems to innocent causes that do not impact the witness's credibility. Those attributions may be accurate in many cases, but it is by no means clear that they are in keeping with the prosecution's burden of proof. Furthermore, even if the causal attributions are accurate, the Trial Chambers frequently fail to appreciate the potential impact of testimonial deficiencies, whatever their causes. In Section 7.A, I analyze the Trial Chambers' treatment of fact-finding deficiencies, focusing first on their general observations and then on the way in which those observations are implemented in the Trial Chambers' decision making. In Section 7.B, I seek to illustrate these general findings by a comprehensive, in-depth analysis of the evidentiary underpinnings of the SCSL's CDF case.

Type
Chapter
Information
Fact-Finding without Facts
The Uncertain Evidentiary Foundations of International Criminal Convictions
, pp. 189 - 223
Publisher: Cambridge University Press
Print publication year: 2010

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References

,Judicial System Monitoring Program, The Paulino de Jesus Decision (Apr. 2005), available athttp://www.jsmp.minihub.org/Reports/jsmpreports/Paulino%20De%20Jesus/paulino%20de%20jesus%20report%20(e).pdf
Shapiro, Barbara J., “Fact” and the Proof of Fact, inHow Law Knows 25, 35 (Sarat, Austin. eds., 2007)
Zahar, Alexander, The Rwamakuba Case and the Problem of False Testimony at the International Criminal Tribunal for Rwanda in Annotated Leading Cases of International Criminal Tribunals, vol. 25: International Criminal Tribunal for Rwanda, 2006–2007 (André Klip & Göran Sluiter eds., forthcoming 2010)
,Human Rights Watch, Justice in Motion: The Trial Phase of the Special Court for Sierra Leone, Vol. 17, No. 14(A) (Nov. 2005), at 3–4, available athttp://hrw.org/reports/2005/sierraleone1105/

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