The Interface of Civil Law and Common Law Legal Systems
Edited by Linda Carter and Fausto Pocar
Chapter 3: Witness proofing
The practice of witness proofing has been one of the more polarizing procedural issues litigated before international criminal tribunals. Generally speaking, this practice encompasses preparation of witnesses for giving testimony by the parties to a case. Much of the debate over proofing has centered on who should be allowed access to witnesses pre-testimony and what should be the nature of their interaction with the witnesses before giving evidence at trial. However, witness proofing has not always been so controversial in international criminal law. With the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and International Criminal Tribunal for Rwanda (ICTR) in 1994, parties practiced proofing as a matter of course without challenge for the first decade. It was not until 2004, in the ICTY’s Limaj et al. case, that the practice was first contested by the defense on grounds that it breached fair trial rights. The Trial Chamber flatly rejected the motion, noting in particular the longstanding and widespread practice of witness proofing at the Tribunal and in adversarial jurisdictions generally.
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