Selecting Witnesses for Testimonial Evidence: A Slippery Slope?

• In Event: Prosecuting atrocities – challenges of collecting, presenting and evaluating evidence in a cross-cultural setting

Abstract

Those who suffer psychologically from the consequences of international crimes may become witnesses in criminal proceedings. This paper examines how trauma is taken into account by investigators and parties to the proceedings in the decision-making process of selecting witnesses to testify, and argues that while the selection process may be driven by evidentiary needs, the well-being of witnesses should be taken more into account to ensure the fairness of proceedings. The selection of witnesses has not been addressed in much detail in relation to international criminal proceedings, and the process has therefore been characterized by a lack of transparency. An analysis of transcripts of proceedings and scholarly literature, however, offered insights into what is taken into account by investigators and parties to the proceedings. First, the initial selection of witnesses by means of a screening interview is examined, and it is also addressed how vulnerable witnesses are identified in this process and how the taking of multiple statements, which is common for the prosecution of international crimes, has the potential to affect testimonies and witnesses. Although witnesses may have been selected, the analysis of court records and transcripts of proceedings revealed that sometimes witnesses may become unable or unwilling to continue testifying, which is hereafter addressed by examining the challenges this brings to ensuring a fair trial. Lastly, this paper explores the identified crucial trade-off between evidentiary needs and the well-being of the witness in the process of selecting witnesses to testify about international crimes, and which factors should play a role in selecting traumatized witnesses for testimony.

Author

• Suzanne Schot, Vrije Universiteit Amsterdam