17 May Hearsay by Any Other Name Would Not Smell as Sweet
I realize that it’s foolish to expect accuracy from the Wall Street Journal‘s editorial page, but it has outdone itself with the following statement, part of an editorial lavishing praise on Obama for resurrecting the military commissions:
Another red herring is supposedly tightening the admissibility of hearsay evidence. Tribunal judges already have discretion to limit such evidence, and the current rules are nearly indistinguishable from those of the International Criminal Court.
There is one difference: all of the fact-finders at the ICC are professional judges, while all but one of the fact-finders in a military commission are laypersons. And, of course, the ICC only admits hearsay because it assumes that professional judges, unlike laypersons, can objectively assess its reliability and probative value. But hey, why split hairs?
I don’t know what’s worse: the sheer ridiculousness of the Wall Street Journal defending its editorial position by invoking the ICC or the sheer mendacity of the position itself.
I didn’t know the ICC admitted hearsay. Isn’t that strange, even for “proessional” judges? Shouldn’t hearsay be admitted as an exception only?
I am not sure your comment that the fact-finders of the ICC are “professional judges” while military commissioners are “laypersons” is accurate. ICC judges are usually former human rights activists, who have no inherent ability to parse hearsay evidence any more than a layperson.
Military commissions employ military officers as fact finders. Given their day to day existance involves decisions regarding the use of force and reasonableness, seems like they can “objectively assess” at least as well as an ICC judge.
HL,
All of the judges of the ICC have to be lawyers; only one of the members of a military commission does. In addition, 9 of the 15 ICC judges (60%) have to have significant experience in criminal law, whether as a judge, prosecutor, or defense attorney; the others have to have equivalent experience in international law. To say that ICC judges are “usually former human rights activists” is thus inaccurate.
I also fail to see how officers’ experience making decisions involving “force and reasonableness” has anything to do with their ability to understand the unique dangers of hearsay and the difficulties involved in assessing its reliability and probative value.
Guy,
It is strange for common-law lawyers. The practice simply reflects the civil-law tradition, which (normally) does not make use of lay fact-finders. No international criminal tribunal has ever prohibited hearsay, admitting it only when it falls within an exception.
International criminal tribunals often have to resort to hearsay because the accused have killed the accusers.
Liz,
A fair point. And one could add that, at the international level, evidentiary difficulties are magnified: authenticating captured documents (ie, German records after WW II), obtaining witnesses, etc.
I agree with your general observation that there is a big difference between laypersons assessing evidence and lawyers and absolutely agree with the core of the post…
I still want to problematize the issue that arose in the comments regarding the education and professional experience of the ICC (or other international tribunal for that matter) judges.
Firstly, not all ICC judges are lawyers…Judge Fumiko Saiga of Japan is not a lawyer (which caused a considerable stir when appointed)…
And I think there is a debate to be had on how experienced and in what the judges should be…Namely, having experience in international law is a very loose criteria…and, certainly, having experience as a judge, prosecutor, attorney is something completely different than being a professor, ambassador…I wonder if the criteria should be that a person had to have had experience in criminal and/or international proceedings…but certainly a judge must be a lawyer, wouldn’t you say?!
HB,
Your point is very well taken — although we should note that Saiga recently passed away. I don’t think the drafters of the Rome Statute anticipated that the ASP would consider someone to be an expert in international law who didn’t have legal training; the relevant article should absolutely be amended to make clear that all judges should have to be lawyers.
It seems, upon reading the commission rules, that the military judge and commission members fulfill the respective roles of judge and jury in a civil trial. The only member of the commission ruling on the admissibility of hearsay, by objectively weighing its reliability and probative value is the military judge – the one with the legal experience.
So, it’s like in a civil or criminal trial, where the judge determines whether the alleged hearsay fits within an exception and the jury determines whether the evidence proves the facts alleged.