Issue #30: When Witnesses Get Cold Feet

Manage Your Witnesses
by Professor David M. Crane

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 176 (2006).

Today, 13 February 2006, we saw two key witnesses get cold feet. This is not unusual in criminal trials throughout the world. However, at the international level, what appears to be routine or normal is being viewed through a prism that is anything but normal. Already the Iraqi Special Tribunal suffers from credibility problems, a reluctant judiciary, hysterical defendants, and now witnesses that “can’t remember”. This is not good.

In my mind, having prepared and worked with several hundred witnesses in proving our joint criminal trials against the leadership of various combatant groups in the civil war that devastated Sierra Leone, witness management is absolutely essential. There should be no surprises, as we have just seen, if one works with their witnesses. Like Iraq, witnesses in Sierra Leone live and work in and around the crime scenes and the relatives and colleagues of the indictees. Witness management becomes critical in ensuring their safety, security, as well as their comfort level in coming forward to tell the truth.

In West Africa, we developed an extensive witness management program that ensured that the local victims and other witnesses living in a society transitioning from war to peace, with the rule of law fragile and uncertain, could testify at the international level and provide sustainable and creditable testimony. We had few surprises, despite the initial reluctance and fear at times of some witnesses giving evidence against very powerful and dangerous men who have great influence outside their detention cells.

Our program, designed by the Chief of Investigations, Dr. Alan White and his team, in conjunction with our Chief of Prosecutions, Luc Cote, and the Victims and Witness Support Unit of the Special Court for Sierra Leone, was designed to take an identified witness from initial assessment, interviews, background checks, trial preparation, into the trial chamber ready and willing to tell the truth. For child victims and gender crime witnesses this could take as much as 1-2 years. For witnesses who could testify directly implicating the accused from a political or policy point of view, our witness management program ensured anonymity, family security, and in some instances protection for an extensive period of time after their testimony was taken.

Regardless of importance, every witness was monitored regularly, briefed periodically on their status, with trial counsel checking their testimony, and our witness management team, their security. Each witness was classified based on importance to the case and the threat to their safety. This was reviewed by our witness management team constantly. I met every week with the witness management team going over each and every witness, particularly our witnesses who were political. The bottom-line here is that our witnesses in West Africa gained a comfort level as to the process, their status, the part they would play in the case, and when they would testify. We gave them no surprises and in large measure they gave us no surprises.

Posted @ 10:38 AM | Experts Debate the Issues: The Dujail Trial