Not All Hearsay Rules Are Created Equal

by Kevin Jon Heller

My apologies for implying that Ben is a neoconservative, but I think that the title of my last post — “Damning International Tribunals With Faint Praise” — is accurate. Stray or not, Ben’s comment praises the international tribunals for (ostensibly) not offering defendants the same kinds of protections that defendants enjoy in U.S. civilian courts.  The belief that the Rome Statute underprotects defendants is at the heart of the neoconservative critique of the ICC; Ben’s comment thus partakes of that critique, which applies just as strongly to the ICTY and ICTR’s similar procedural regimes.  The only difference is that neoconservatives oppose the (allegedly underprotective) ICC because they fear that it may one day prosecute an American, while Ben supports the (allegedly underprotective) international tribunals because he hopes that they may one day prosecute alleged terrorists.

In his most recent post, Ben says that he was “thinking of the hearsay rule” at the ICTY and ICTR, “which – if memory serves – is more lenient than the rules that govern the much-derided military commissions.”  Actually, I don’t see how the military commissions could be any more lenient, given that, according to the Congressional Research Service, their rules “do not set forth any prohibitions with respect to hearsay evidence” and thus admit any hearsay statement that the opposing party cannot “clearly demonstrate[] is unreliable or lacking in probative value.”  (The hearsay rule in normal courts-martial, by illustrative contrast, is “relatively restrictive,” only permitting the admission of statements that fall within a specific, if quite extensive, list of exceptions to the normal ban on hearsay.)

The most that can be said, then, is that the international tribunals take an equally lenient approach to hearsay.  That position has some superficial plausibility; after all, the ICTY held in Tadic that the admissibility of a hearsay statement depends on whether it “is relevant and has probative value, focusing on its reliability.”  That superficial similarity, however, masks a profound difference: although all international judges must be trained lawyers, only the presiding judge at a military commission must be.  From the CRS report:

The MCA provides for a qualified military judge to preside over panels of at least five military officers, except in the cases in which the death penalty is sought, in which case the minimum number of panel members is twelve.

The importance of this difference cannot be overstated. The hearsay rule at the international tribunals reflects the influence of the civil-law tradition, in which lay jurors are not asked to assess the reliability and probative value of hearsay.  Indeed, the ICTY specifically held in Blaskic that the Tribunal’s liberal hearsay rule was justified because, to quote the authors of the leading treatise on international criminal evidence, “the proceedings were conducted by professional judges, who, due to their training and experience, could give appropriate weight to testimony declared admissible in light of its reliability.”  That rationale obviously does not justify the blanket admission of hearsay in trials held by the military commissions, where 4 out of 5 (in non-capital cases) or 11 out of 12 (in capital cases) of the “judges” who will have to determine the probative value of an admitted hearsay statement will be laypersons, not trained lawyers. (The admissibility decision itself is at least made by the one trained lawyer on the panel.) To say that the international tribunals take an equally lenient approach to hearsay as the military commissions, therefore, obscures far more than it reveals.

http://opiniojuris.org/2008/07/29/not-all-hearsay-rules-are-created-equal/

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