2010-03-30, The Hague, The Netherlands. The Guidance deals with the admission of those parts of Rule 92 ter statements that witnesses fail to attest to in the course of their in-court testimony, and that, as a result, constitute previous inconsistent statements.
Previous inconsistent statement may be admitted into evidence for the following two purposes (TC must specify the purpose when admitting):
1. For the purpose of assessing a witness’ credibility; or
2. For the truth of its contents when it fulfills the criteria under the Rules of being relevant and sufficiently reliable to be accepted as probative (re reliability: the TC should look @ the content of the statement, the circumstances under which it arose, and the opportunity to cross-examine the person who made the statement).
As a practical matter, the unattested parts of the written statements are not redacted, but the TC does not consider those parts as evidence for the truth of their content.
Generally, statements submitted under Rules 92 bis, 92 ter, and 92 quater (leges specialis for the admission into evidence of witness statements) cannot be admitted under the lex generalis Rule 89 (C). However, this does not apply to statements sought to be admitted as previous inconsistent statements. They can be admitted under Rule 89 (C) as they raise concerns regarding the reliability of some parts of the written statement.
In determining reliability of the statement/witness the TC should look @ the circumstances under which the statement was taken, the content of the unattested part of the statement and the witness’ in-court testimony regarding the inconsistency.
Prior to seeking the admission of a previous inconsistent statement, the party must question the witness re inconsistencies. In addition, in case of a calling party seeking such admission, it must obtain the Chamber’s approval to treat the witness as hostile. All parties and judges should have an opportunity to cross-examine the witness.
The Chamber decided not to admit any unattested parts of the Witness Pasic’s statements because they contained opinions, unsubstantiated speculations, and factual assertions of a general nature for which the witness did not provide clear sources of knowledge. The witness accepted that some parts of his statements did not correspondent to what he told the investigators and the witness was prone to forgetfulness because of his old age.