137
witness statements from disclosure. 370 The privilege adopted by the International Tribunal
in Rule 97 of the Rules does not cover third party statements given to Defence counsel, at
least not once the Defence decides to present evidence by calling a particular witness. 371
Once the Defence calls a witness, that evidence should be subjected to the same scrutiny as
that of the Prosecution. 372
309.
The Prosecution also submits that no implied privilege exempting Defence witness
statements from disclosure can be inferred from the Rules (as Judge Stephen found, with
Judge Vohrah concurring). In its view, there is no ambiguity in the Rules in this regard, and
Judge Stephen’s reference to the legal professional privilege found in national jurisdictions
is incorrect. 373 The Prosecution submits that, even if an ambiguity exists, it is incorrect to
resolve it by referring to the most common practice in adversarial jurisdictions, despite the
obvious influence of adversarial systems on the Rules. 374 Sub-rule 89(B) of the Rules
expressly requires the application of “rules of evidence which will best favour a fair
determination of the matter before it and are consonant with the spirit of the Statute and the
general principles of law”. In line with this provision, the Trial Chamber should have
favoured an interpretation allowing it to order disclosure of Defence witness statements
“where it considers that this would enable it to reach a verdict based on all pertinent
evidence”. 375 The Prosecution relies in particular upon the restrictions set out by the U.S.
Supreme Court in United States v. Nobles. 376
310.
The Prosecution also submits that the disclosure of prior statements of Defence
witnesses is not otherwise inconsistent with the principles of a fair trial. 377 In particular, the
principle of equality of arms does not require that the Defence be allowed to call witnesses
under conditions more favourable than those afforded to the Prosecution. 378 If the Defence
369
T. 186 (20 April 1999).
Cross-Appellant’s Brief, paras. 6.7-6.14.
371
T. 187 (20 April 1999).
372
T. 187 (20 April 1999).
373
Cross-Appellant’s Brief, paras. 6.15-6.18.
374
Ibid., para. 6.20.
375
Ibid., para. 6.21.
376
422 U.S. 225 (1975).
377
Cross-Appellant’s Brief, paras. 6.25-6.31.
378
Ibid., para. 6.31.
370
Case No.: -94-1-A
15 July 1999
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