Use of Hearsay Evidence in Military Commissions

by Roger Alford

The New York Times is reporting that under the proposed changes to the military commissions, hearsay evidence may be admitted in criminal prosecution of detainees. It seems the article paints a picture of this being a problem under Hamdan. Here is an excerpt from the article:

Legislation drafted by the Bush administration setting out new rules on bringing terror detainees to trial would allow hearsay evidence to be introduced unless it was deemed “unreliable” and would permit defendants to be excluded from their own trials if necessary to protect national security…. The draft measure describes court-martial procedure as “not practicable in trying enemy combatants” because doing so would “require the government to share classified information” and would exclude “hearsay evidence determined to be probative and reliable…. Nor does the bill adhere to the military’s rules for the admissibility of evidence and witnesses at trial statements because “the United States cannot safely require members of the armed forces to gather evidence on the battlefield as though they were police officers,” the proposal says. The draft bill specifies that no matter how it is gathered, evidence “shall be admissible if the military judge” determines it has “probative value.” Hearsay statements, meaning something a witness has heard but does not know to be true, would be allowed “at the discretion of the judge unless the circumstances render it unreliable or lacking in probative value.”

I’m not convinced that allowing hearsay evidence as part of the proposed changes to the military commission’s evidentiary rules would be a particular problem, either under Supreme Court precedent or based on the evidentiary practices of international criminal tribunals.

The Supreme Court in Hamdi v. Rumsfeld has previously indicated that hearsay evidence may be permissible in cases involving enemy combatants:

“[T]he exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.”

As for international criminal tribunals, it appears that hearsay evidence is commonly admitted. Here is how Professor David Weissbrodt put it in a recent article (published at 15 Minn. J. Int’l L. 43 (2006)) on the subject of hearsay evidence before international criminal tribunals:

International courts usually admit hearsay evidence. The hearsay rule is characteristic of common law systems. In civil law systems, where there is no jury and the judge conducts the fact-finding process, out-of-court statements are usually admitted when relevant. International criminal courts have borrowed their rules of evidence from both common law and civil law systems, but usually favor admissibility of all evidence. The ICTY, for example, has admitted hearsay evidence on the theory that the ICTY’s professional judges will, unlike a lay jury, be able to assess and discount the irrelevant evidence. In trials before the ICTY, testimony containing hearsay is admissible, provided that the evidence is probative and relevant. Similarly, the ICTR has admitted testimony of a witness describing an out-of-court statement of an alleged perpetrator. The Rules of Procedure for the ICC are not very clear on the admissibility of hearsay, and consequently, judges are given wide discretion in admitting any relevant evidence. The ICC’s Rules are largely modeled after the Rules of Evidence of the ICTY and the ICTR, and the ICC’s Rules do not include a rule forbidding admissibility of hearsay evidence. Similarly, the European Court of Human Rights admits any kind of evidence without restriction.

I would welcome the thoughts of others who have more knowledge in this area. But it would seem that one of the concerns expressed in Hamdan was for comparable evidentiary rules. If so, it does not appear that hearsay evidence is excluded under other comparable systems, or must be under the proposed changes drafted by the Bush Administration.

2 Responses

  1. I work for a defence team at the ICTR, and am admitted in California and India. Hearsay evidence is not only included, but forms the majority of the evidence before the tribunal. There is little documentary evidence, and non-hearsay evidence is particularly hard to find. As you mentioned in the article, courts admit the hearsay evidence citing their inherent ability to avoid prejudice because of their status as professional judges, rather than lay juries.

    Another issue that any military tribunal will have to deal with is the unusual reliance on expert evidence at the ICTR. For complex crimes, in countries and situations with which judges are similar, experts who have already arrived at factual, and often legal conclusions, are often used as the basis for conviction. Such evidence would likely be inadmissible in U.S. courts.


    Avi Singh.

  2. The International Military Tribunals at Nuremberg after World War II allowed the use of hearsay evidence through affidivits, but it also required that any such affiant to be available for cross examination.

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