TRIAL CHAMBER I

Public

DECISION ON ADMISSIBILITY OF CERTAIN PARTS OF
EXPERT REPORT OF JOHAN HEDERSTEDT

Office of the Prosecutor: Defence Counsel for Issa Hassan Sesay:
Mr. Peter Harrison Mr. Wayne Jordash
Mr. Joseph Kamara Ms. Sareta Ashraph
Mr. Vincent Wagona
Mr. Reginald Fynn
Mr. Charles Hardaway Defence Counsel for Morris Kallon:
Mr. Charles Taku
Mr. Kennedy Ogeto
Ms. Tanoo Mylvaganam

Court Appointed Counsel for Augustine Gbao:
Mr. John Cammegh
Mr. Scott Martin

TRIAL CHAMBER I (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Pierre Boutet, Presiding Judge, Hon. Justice Bankole Thompson, and Hon. Justice Benjamin Mutanga Itoe;

SEIZED of the Gbao and Sesay Defence Filing of Expert Report (“Expert Report”) in Compliance with Trial Chamber’s 22nd May 2008 Order, filed on 26 May 2008;

MINDFUL of the Office of the Prosecutor’s (“Prosecution”) Notice Pursuant to Rule 94bis(B), filed on 9 June 2008;

SEIZED of the Prosecution’s oral objection and submissions regarding the admissibility of certain portions of the Expert Report[1];

SEIZED of the Defence for the First and Third Accused’ s (“Defence”) oral submissions on the same admissibility matter[2];

RECALLING that the Expert Report was admitted as Exhibit 389[3];

RECALLING the Trial Chamber’s Oral Ruling of 24 June 2008[4], upholding the Prosecution’s objection;

PURSUANT to Article 17 of the Statute of the Special Court (“Statute”) and Rules 26bis, 89(C) and 94bis of the Rules of Procedure and Evidence (“Rules”);

ISSUES THE FOLLOWING WRITTEN REASONED DECISION:

I. BACKGROUND

1. In the course of the trial proceedings of this case on the 24 June 2008, the Prosecution objected to the admissibility of certain portions of the Expert Report of Johan Hederstedt on two grounds. The first was that the said portions of the Report offend against the Ultimate Issue Rule of criminal adjudication;[5] and the second was that they also amount to an advocacy of the Case for the First and Third Accused.[6]

2. In his oral response on the same day, Counsel for the First Accused, Mr. Jordash, indicated that their side had been caught unaware by the objection as well as the specific grounds advanced by the Prosecution[7]. He, however, argued that the objection should be dismissed and the report admitted in its entirety.
3. In his oral response, Counsel for the Third Accused, Mr. Cammegh, endorsed in their entirety the submissions of Mr. Jordash.[8]
4. Having heard both sides exhaustively on the merits of the Prosecution’s objection including the respective legal submissions of the Parties, the Trial Chamber, by a unanimous Oral Ruling, upheld the Prosecution’s objection to the admissibility of the Report in respect of the impugned portions highlighted by the Prosecution, and indicated that a Written Reasoned Decision[9] in support of its Oral Ruling would be published in due course.[10] This is the Chamber’s Written Reasoned Decision.

2. SUBMISSIONS
   

1. THE PROSECUTION OBJECTION

5. At this point, it is necessary to set out fully, for the purpose of the Decision, the respective legal submissions of the Parties. The Chamber recalls that the main thrust of the Prosecution’s objection to the admissibility of General Hederstedt’s report is that certain portions of the said Report do offend against the Ultimate Issue Rule of criminal adjudication. In support of its contentions, the Prosecution cited excerpts from the Ruling of Judge May in the case of Prosecutor v Kordić and Čerkez.[11]
6. Reinforcing its contentions, the Prosecution also relied upon an excerpt from the AFRC Decision of Trial Chamber II of this Tribunal.[12] By way of a secondary submission, the Prosecution argued that some of the identified portions of the Report and others not among those specifically identified, either separately or cumulatively, amount to an advocacy of the case for the Third and First Accused. In this regard, Counsel for the Prosecution, Mr. Harrison, submitted that such a role does not belong to an expert witness but to Counsel for an accused person, and that in effect, the Prosecution’s position on this point is that, “there is to some extent an element of advocacy taking place in the report”.[13]

2. THE DEFENCE RESPONSE

7. Responding to the Prosecution’s arguments, Counsel for the First Accused, Mr. Jordash, with whom Counsel for the Third Accused, Mr. Cammegh, associated, submitted that in so far as the Ultimate Issue Rule is concerned, as a matter of law, “there is no absolute prohibition on evidence which goes to the ultimate issue”.[14] Citing the case of Prosecutor v. Kordić and Čerkez as authority for this proposition, Mr. Jordash specifically referred to the observation of Judge May that:

“in certain circumstances experts may now be permitted in certain jurisdictions, to give evidence about the ultimate issue... ” [15]

8. Continuing, Mr. Jordash argued that international criminal tribunals “have a huge discretion” in the matter of the application of the Ultimate Issue Rule in the context of expert testimony.[16] He strenuously submitted that there was need for an examination of the concept of the ultimate issue[17], as “it has become a very elastic term”,[18] noting that in the case of Kovačević, it was held that “the expert reports can only be used to prove general events, not for determination of the guilt of a specific alleged perpetrator”[19], whereas in Bagosora, “the expert report of Madam des Forges was accepted despite the fact that she discussed the culpability of the four accused persons in great detail”.[20]
9. Furthermore, according to Counsel for the First Accused, the expert Report in Kordić and Čerkez did in fact make “a conclusion which seriously goes to the ultimate issue, as opposed to what we’re dealing with in this report (i.e., the expert report of Johan Hederstedt)”.[21]
10. A kindred argument put forward by Mr. Jordash is that Rule 89 (C) as interpreted by the Trial Chamber, requires that “all evidence which is relevant is admissible: and that questions of probative value do not come into it”,[22]and further that “the Trial Chamber has always said that the issue of weight shall be the consideration”.[23]
11. Moreover, Counsel for the First Accused contended that the Prosecution’s argument that the expert Report in question amounted to an advocacy of the Defence case is novel; and that in his many years of practice in international courts and in domestic jurisdictions he has never heard a criticism of an expert report on the grounds of advocacy, and that the objection is not a valid one, except if it is being contended that the expert is saying things favourable to the accused.[24]
12. Concluding, Mr. Jordash argued that what the Report in question does is to state an expert opinion on a fact, from a military perspective.[25]
13. Having outlined the legal submissions of the Parties, The Chamber will now proceed to expound on the applicable law.

III. APPLICABLE LAW

14. As regards the applicable law, this Chamber is empowered to admit expert testimony for the purpose of the fair and impartial administration of justice, during the trial of cases involving crimes against humanity and war crimes pursuant to the specific provisions of Rule 89 (C) and Rule 94 bis of the Rules.
15. According to Rule 89 (C):

A Chamber may admit any relevant evidence.
16. Rule 94bis provides as follows:

(A) Notwithstanding the provisions of Rule 66(A), Rule 73bis(B)(iv)(b) and Rule 73ter(B)(iii)(b) of the present Rules, the full statement of any expert witness called by a party shall be disclosed to the opposing party as early as possible and shall be filed with the Trial Chamber not less than twenty one days prior to the date on which the expert is expected to testify.

(B) Within fourteen days of filing of the statement of the expert witness, the opposing party shall file a notice to the Trial Chamber indicating whether:

i. It accepts the expert witness statement; or

ii. It wishes to cross examine the expert witness.

(C) If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.
17. From the Chamber’s perspective, consistent with existing jurisprudence, an expert witness is one who is qualified “by knowledge, skill, experience, training or education on any matter that is relevant to the proceedings, or in other words a recognised expert in his or her field, who is able to make an impartial assessment of the situation”.[26] This Chamber takes the view that the question of whether a person is an expert or not is one of mixed law and fact.
18. The Chamber notes that there now exists in international criminal adjudication in respect of cases involving crimes against humanity and war crimes, a body of established general principles of law governing the reception of expert testimony. It is trite knowledge that these principles originate from national law systems, a key feature of which is the fundamental distinction between admissibility of expert testimony and the weight or probative value of such testimony.
19. In fact, as far as the admissibility issue is concerned, the principles applicable within the international law domain may be summed up as follows:

(i) that the subject matter of the proposed expert testimony is a proper topic for expert evidence and not a matter within the knowledge and experience of the court;
(ii) that where the subject matter is a proper one for expert evidence, it must be relevant in the sense of assisting the court to determine an issue in dispute;
(iii) that the expert must possess the necessary qualifications and credentials in the professed field of expertise;
(iv) that the reasoning or methodology underlying the testimony must be valid and properly applicable to the facts in issue; and
(v) that the expert must be independent.[27]

20. Given the gist of the Prosecution’s objection, the Chamber deems it unnecessary for the purposes of this Decision to articulate the law applicable to the issue of weight or probative value of expert testimony.
21. Expounding the law further, We do recall and affirm that the Ultimate Issue Rule, the major thrust of the Prosecution’s objection to the expert Report of General Hederstedt, is an evidentiary doctrine that prohibits expert witnesses and lay witnesses from testifying about their opinions or conclusions concerning dispositive facts at issue in a criminal case.
22. As a judicial forum, We observe in the context of the existing state of the law, that there are certain theoretical nuances and variations in application of the Ultimate Issue Rule in criminal trials in both national legal systems and the international judiciary. Recognizing this chequered dimension of the rule, this Chamber opines that the rationale behind the Ultimate Issue Rule is that it acts as a measured prohibition against an expert proffering opinion on the ultimate issue for determination by the adjudicating Tribunal. This observation notwithstanding, it is our view that historically the justification for the said rule lies in jury trials, and that since trials in the international judiciary are conducted by professional judges, one trend as to the threshold for admissibility of expert evidence on the ultimate issue is that of whether the expert opinion on the ultimate issue will assist the tribunal. However, We do not understand this approach to have derogated from the primacy of the adjudicating body in its fact-finding role. In effect, the Chamber affirms that it is for the tribunal to decide which facts to accept for the determination of the case, and not an expert. The Chamber, therefore, entertains no doubt that despite trends to whittle away the application of the Ultimate Issue Rule, its proscriptive import and exclusionary effect remain generally intact in national as well as international jurisprudence. Logic, in our view, demands an exclusionary judicial response to any expert testimony that usurps a tribunal’s prerogative to determine the ultimate issue in a criminal case.
23. Consistent, therefore, with the existing body of international law and municipal law on the subject of the Ultimate Issue Rule, this Chamber takes the view that it is within the discretion of an adjudicating body to determine whether an expert is offering an opinion or conclusion about the ultimate issue of the case or controversy. Where the tribunal is of the opinion that the expert testimony amounts to nothing other than legal inferences or conclusions rather than factual ones, it may exclude such testimony. It is equally settled law, and We so affirm, that the function of an expert witness is to furnish the court with the necessary scientific or related criteria for testing the accuracy of his conclusions so as to enable the court to form its own independent judgement by applying the criteria to the facts established by the evidence.
24. Based on the preceding analyses of the law, the Chamber, is of the opinion and We so hold, that expert opinion that trenches upon the role of the trier of fact, irrespective of whether the trial is a bench or jury trial, must, as a general rule, be excluded. By parity of reasoning, it is equally our opinion that when the objectionable parts of the expert opinion cannot be separated from the rest, the entire opinion may be rejected unless the interests of justice dictate otherwise.
25. Reinforcing the foregoing related aspects of the law, the Chamber now cites with approval the following dictum on the nature and scope of the Ultimate Issue Rule’s exclusion from the domain of expert testimony, from the United States case of Grismore v. Consolidated Products:

No witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible, or that a person was negligent or not negligent, or that he had capacity to execute a will, or deed, or like instrument. But the reason is that such matters are not subjects of opinion testimony. They are mixed questions of law and fact. When a standard, or a measure, or a capacity has been fixed by law, no witness whether expert or non-expert, nor however qualified, is permitted to express an opinion as to whether or not the person or the conduct, in question, measures up to that standard. On that question the court must instruct the jury as to the law, and the jury must draw its own conclusion from the evidence.[28]

IV. DELIBERATION

26. Thus guided as to the law in the above paragraphs, the Chamber now proceeds to review the impugned portions of the Report so as to explore the extent of their repugnance, separately and cumulatively, to the Ultimate Issue Rule.
27. We recall here, first of all, that in support of the Prosecution’s objections to the identified portions of the Report, Mr Harrison, Lead Counsel for the Prosecution cited certain case-law authorities from our sister international criminal tribunals and Trial Chamber II of this Court. The first was a citation from the Decision of a Trial Chamber of the ICTY in the case of Prosecutor v. Kordić and Čerkez. In that case, the Chamber dealt with the issue of the admissibility of an expert report, where it was alleged that the said report purported to provide evidence on the ultimate issue before the Court. Counsel relied heavily on two main passages from the Ruling of Judge May, in that case.
28. The first excerpt is as follows:

Earlier in this trial, the Chamber had to deal with the report of an expert, Dr. Cigar, who was to be called by the Prosecution. To this, the Defence objected essentially on the grounds that what Dr. Cigar was doing, although it was an extensive report, was giving evidence on the ultimate issue in the case, which it was a matter for the Trial Chamber to determine.

29. The second excerpt reads thus:

We now have before us the Report of Dr. Schraeder and the Prosecution,

this time, make the same objection. We have considered the arguments, written and oral, put forward by the parties, and we have come to the conclusion that this report should not be admitted for the same reasons as we excluded the report of Dr. Cigar. Essentially, this report purports to deal with the ultimate issues in the case. In this case, the ultimate issue is whether crimes were committed throughout Central Bosnia, who was responsible for the attacks on the various villages, for instance, was the village of Ahmici a justified target, or was it pure and simple a massacre. Thus, those are the issues which are very much matters which the Trial Chamber has to decide.[29]

30. For the sake of clarity and precision, We reiterate that the crucial question for the Chamber to determine in this Written Reasoned Decision, having ruled the objectionable portions of General Hederstedt’s Report to be inadmissible, is the extent to which they offend against the Ultimate Issue Rule.
31. Pursuing the analysis a step further in addressing the above question, the Chamber must determine specifically the extent to which the impugned portions of the Report do, separately and cumulatively, lead to inferences about the criminal involvement or lack thereof of the First and Third Accused in respect of the various crimes charged, whether by reason of individual criminal responsibility, joint criminal enterprise or command responsibility thereby usurping the role of the Chamber in ultimately making those inferential determinations.
32. In this regard, We observe that it is trite law that it is the statutory mandate of the Chamber to determine the culpability or otherwise of the First Accused and Third Accused under either any or all of the three modes of liability charged, for the alleged crimes in the alleged areas or locations and at the alleged material times. It is the Chamber’s considered view that any inferences from an expert Report that lead, directly or indirectly, to a determination of the liability issue one way or the other do offend against the Ultimate Issue Rule as an evidentiary doctrine recognised by most systems of law.
33. The Chamber recalls that the impugned passages constituting the grounds for the Prosecution’s objection to the admissibility of the Report are as follows:

1. Pages 45, 46, 47, 50, 52 and 53 in their entirety; [30]

(ii) The top two paragraphs of page 48;[31]

(iii) Page 49, excepting the top three lines;[32]

(iv) Page 51, except paragraphs 1-3;[33]

(v) Paragraph 4.8 of page 24, continuing on page 25;[34]

(vi) Page 25, Part IV: the heading in bold letters and paragraphs numbered 2 and 3, continuing on page 26;[35]

(vii) Page 26, under the heading ‘1. RUF decision-making system’: paragraph (ii).[36]
34. It is the Prosecution’s submission that those passages, separately and cumulatively, infringe the Ultimate Issue Rule thereby usurping the function of the Trial Chamber as the trier of facts in this case. Mr. Harrison argued strenuously that applying the reasoning of Judge May in the excerpts cited from the case of Prosecutor v. Kordić and Čerkez, what General Hederstedt’s expert Report purports to do is to provide evidence on the ultimate issue before the Court. The Defence, in its part, submit that the prohibition imposed by the Ultimate Issue Rule on expert testimony is not absolute, and that the doctrine itself is elastic in scope, as recognised by Judge May himself in the said Ruling when the learned Judge observed that “in certain circumstances experts may now be permitted in certain jurisdictions, to give evidence about the ultimate issue”.
35. Considering the merits of the Parties’ submissions and guided by the principles of law enunciated in the preceding paragraphs, The Chamber, after a careful review of the impugned portions of the expert Report as indicated in paragraph 33, finds generally that the said passages, separately and cumulatively, lead directly or indirectly to inferences about the criminal involvement or lack thereof of the First and Third Accused in respect of the various crimes charged in the Indictment. It is also our significant finding that, inferentially, the said passages touch on and concern the issue or lack thereof of the culpability of the Accused, especially from the perspectives of command, superior responsibility or joint criminal enterprise, as key ingredients of their alleged criminal liability.
36. More specifically, We do find, for example, that the assertions at pages 45, 46, 47 and the two top paragraphs at page 48, are nothing short of mixed factual and legal inferences on the key question of command or superior responsibility or the lack thereof in respect of the First Accused’s role and activities within the RUF as a guerrilla military force, with Sam Bockarie as the immediate boss of the First Accused.
37. It is our further finding that page 46 contains opinions of the Expert going to the ultimate issue, for example, that as Lt. Colonel, First Accused “had big difficulties to command, instruct or give orders to colonels”, and that “Sankoh and Bockarie did Sesay a bad turn and bad start as the BGC.”[37]
38. In addition, We note that another inference going to the ultimate issue is the opinion at page 48, to wit, “I cannot see any examples, where Sesay had a superior role towards Superman during this period. An example of where it should be a task for a BGC to act is the attack on Tongo in August 1997. But Bockarie and the AFRC (Brigade Commander) coordinated the attack without the interference of Sesay. Maybe this depended on the fact that Bockarie did not recognise Sesay as a good enough military leader or Sesay did not have enough rank or he had de facto no direct military command since he had to make request from the Chief of the Army Staff”. A related issue, in our considered opinion, going to the ultimate issue is the expert’s assertion on page 53 of the Report that “Sesay did not get totally freedom to act militarily and to cooperate with UNAMSIL”.

V. CONCLUSION

39. Based on the several considerations and analyses herein and the application of the principles of law that we have enunciated to the factual aspects of the key issue for determination by the Chamber in reinforcing its Oral Ruling dated 24 June, 2008, upholding the Prosecution’s objection to the admissibility of certain portions of Johan Hederstedt’s Report, the Chamber hereby concludes that in so far as the impugned passages are concerned, they clearly purport to act as a substitute for the conclusions of the Chamber on issues of ultimate significance in this trial. They are indeed replete with findings and inferences as to whether the acts or conduct of the First Accused, in a command or superior capacity, fell short of or measured up to the expected standards. Put differently, we strongly opine that the said passages of the Report amount to a massive invasion of the fact-finding domain and exclusive prerogative of the Trial Chamber.
40. Having so concluded, the Chamber does not need to address the secondary argument advanced by the Prosecution about ‘advocacy’. This argument, we understand, dealt with the portions of the Report that we have already disposed of when concluding, as we did, that these passages of the Report offended against the Ultimate Issue Rule.

6. DISPOSITION
   

FOR THE FOREGOING REASONS, THE CHAMBER, accordingly, reiterates here in writing its Oral Ruling upholding the Prosecution’s objection, on the grounds of repugnance to the Ultimate Issue Rule of the following portions of Johan Hederstedt, the Expert Report, marked as Exhibit 389 in these proceedings, and NOW identifies and rules that the following portions of the Report, offend against the said Rule:

(i) Paragraph 4.8 of page 24, continuing on page 25;

(ii) On Page 25, Part IV: the heading in bold letters and paragraphs numbered 2 and 3, continuing on page 26;

(iii) On Page 26, under the heading ‘1. RUF decision-making system’: paragraph (ii);

(iv) Pages 45, 46, 47, 50, 52 and 53, in their entirety;

(v) The top two paragraphs of page 48;

(vi) Page 49, excepting the top three lines;

(vii) Page 51, except paragraphs 1-3;

The Chamber, still reserves the option to adjudicate further, after the filing and submissions on the final briefs, on the contents of the Expert Report with a view to making additional determinations on other portions of the said Report, if any, that may offend against the Ultimate Issue Rule.

[1] Transcript of 24 June 2008, p. 55, lines 20-23; p. 16, lines 27-29; p. 17, lines 1-3; p. 51, lines 18-24; p. 33, lines 14-15; p. 34, lines 16-21; p. 37, lines 9-12, 14-22; p. 49, lines 17-18; p. 47, lines 20-21; p. 48, lines 28-29; p. 49, lines 1-3.
[2] Ibid, p. 67, lines 7; p. 56, lines 16-18, 13-16, 27-28, 21; p. 57, lines 21-24; p. 66, lines 17-26, 24-27; p. 58, lines 16-18, 22-24; p. 59, lines 3-4; p. 62, lines 13-18; p. 63, lines 8-9, 26-27; p. 65, lines 15-16, 23-29.
[3] Ibid, p. 71, lines 17-19.
[4] Ibid, p. 70, lines 22-29; p. 71, lines 1-11.
[5] Ibid, p. 16, lines 27-29; p. 17, lines 1-3.
[6] Ibid, p. 51, lines 18-24.
[7] Ibid, p. 55, lines 25-29.
[8] Ibid, p. 67, lines 8-9.
[9] Ibid, p. 70, lines 28-29.
[10] Ibid, p. 71, lines 7-9.
[11] Ibid, p. 33, lines 14-15.
[12] Ibid, p. 37, lines 9-12.
[13] Ibid, p. 49, lines 17-18.
[14] Ibid, p. 56, lines 16-18.
[15] Ibid, p. 56, lines 9-11; Prosecutor v. Kordić and Čerkez , IT-95-14/2, TC, Oral Ruling, Transcript of 28 January 2000, p. 13306, lines 13-16.
[16] Transcript of 24 June 2008, p. 56, lines 13-16.
[17] Ibid, p. 56, lines 27-28.
[18] Ibid, p. 56, line 21.
[19] Ibid, p. 57, lines 21-24.
[20] Ibid, p. 66, lines 17-26.
[21] Ibid, p. 58, lines 16-18.
[22] Ibid, p. 58, lines 22-24.
[23] Ibid, p. 59, lines 3-4.
[24] Ibid, p. 62, lines 13-18.
[25] Ibid, p. 63, lines 8-9, 26-27.
[26] Rodney Dixon and Karim Khan, Ed. Archbold: International Criminal Courts Practice, Procedure and Evidence, London, Sweet and Maxwell, 2003, at page 492.
[27] Richard May and Marieke Wierda, International Criminal Evidence: Transnational 2002, (“May and Wierda”), pp. 199-202.

[28] Grismore v. Consolidated Products, 232 Iowa 328, 5 N.W.2d 646 (Iowa Sup. Ct. 1942) at p. 361.
[29] Transcript of 24 June 2008, p. 47, lines 25-29; p. 48, lines 1, 6-19; Kordić and Čerkez, TC, Oral Ruling, Transcript of 9 June 2000, p. 20824, lines 24-25; p. 20825, lines 1-6, 8-25.
[30] Transcript of 24 June 2008, p. 43, lines 11-29; p. 44, lines 1-20; p. 45, lines 22-26; p. 46, lines 9-11.
[31] Ibid, p. 44, lines 21-29; p. 45, lines 1-4.
[32] Ibid, p. 45, lines 4-21.
[33] Ibid, p. 45, lines 26-29; p. 46, lines 1-9.
[34] Ibid, p. 46, lines 25-29; p. 47, line 1.
[35] Ibid, p. 47, lines 1-9.
[36] Ibid, p. 47, lines 10-13.
[37] See also page 47, where the Report states that the First Accused had “no or minor power”, and that his role as BGC “did not work at this period” (reference to September 1997).