The Evaluation of Different Forms of Evidence
Yvonne McDermott · 2024
Abstract This chapter examines some general features of the framework for evidence evaluation in international criminal trials, including the principles of flexibility and free evaluation of the evidence; the need to exercise caution in certain circumstances; the duty to provide a reasoned opinion, and the principle of in dubio pro reo. It then discusses how judges evaluate the credibility and reliability of witness testimony, including special categories of witnesses such as expert witnesses and insider witnesses. Important factors in determining how much weight to afford to witness accounts include consistency, plausibility, demeanour and apparent sincerity, indications of collusion or witness interference, relationship to the accused, bias and motivation, contradictions with earlier statements or other evidence on the record, and the impact of trauma and the passage of time. Lastly, this chapter provides an account of how particular types of evidence, such as prior recorded testimony, NGO and media reports, demonstrative evidence, intercepts, audio-visual evidence, and technical evidence such as forensic or ballistic evidence, are weighed. In keeping with a common theme of this work, this chapter demonstrates that there is a great deal of flexibility built into the legal frameworks of the international criminal tribunals, with wide judicial discretion over how much weight to afford to distinct pieces of evidence, which tends to be determined on a case-by-case basis. This discretion has led to some divergent approaches, with uncertainty at times about what information the tendering party needs to provide when submitting a piece of evidence to demonstrate its probative value.