HIGHLIGHTS OF LEGAL PROCEDURAL ISSUES RELATED TO DOCUMENTARY EVIDENCE AND HEARINGS IN CASE 002/01
Documentary hearing is necessitated at the ECCC because of the stipulations in IR 87 on Rules of Evidence, which states that “3. The Chamber bases its decision on evidence from the case file provided it has been put before it by a party or if the Chamber itself has put it before the parties. Evidence from the case file is considered put before the Chamber or the parties if its content has been summarized, read out, or appropriately identified in court.” Therefore documentary hearings were held for Parties to put before the Chamber documentary evidence they considered pertinent for the Chamber in deciding the guilt or innocence of the Accused for crimes covered in Case 002/01 scope. During the documentary hearings, a wide range of documentary evidence was put before the Chamber, ranging from CPK documents, journalistic articles from pre, during and post DK era, OCIJ interviews, documentary films, academic books on KR regime, photos, and intelligence reports from various countries.
The documentary hearings in Case 002/01 were mired with several legal questions. Firstly, what is the applicable standard for document admissibility? Secondly, what is the purpose of the documentary hearing itself: is it to argue documents’ admissibility, or just for the opposing parties to advise the Chamber on the appropriate probative value of each document, or were the hearings for the benefit of the public, to be aware of the documentary evidence in the case for and against the Co Accused (See Issue 13 and 40)? As the trial progressed and parties presented documents on specific topics of relevance to Case 002/01’s severance, the Chamber initially allowed adversarial discussion on the documents’ relevance and admissibility. The Trial Chamber later released rulings on the presumption of admissibility of certain documents, such as those in the footnote of the Closing Order and form part of the Case File (see the rulings, at the ECCC’s website, document number E190 and E185 and KRT Monitoring Report issue 50). Therefore, except for new evidence, the Trial Chamber focused the purpose of the documentary hearings on the probative value of documents, and not on admissibility.
Admissibility of Documents
Though all evidence is generally admissible under ECCC’s Rule of Evidence, the Chamber may reject a request for evidence where it finds the evidence is: irrelevant or repetitious; impossible to obtain within a reasonable time; unsuitable to prove the facts it purports to prove; not allowed under law; or intended to prolong the proceedings or is otherwise frivolous. This rule catalyzed a number of objections related to admissibility earlier in the proceedings. The Defense counsel for Nuon Chea and Khieu Samphan repeatedly deferred to the “best evidence rule,” which they believed stipulated that, whenever possible, the original piece of evidence, be it a document, photograph, or recording, ought to be used as evidence. The Prosecution favored the standard of prima facie, which demands an at face show of authenticity and reliability for documents presented, allowing judges to assume documents are reliable and relevant unless proven otherwise.
The Defense also argued that the Documentation Center of Cambodia (DC-Cam), the Non-Governmental Organization that served as the source of many documents the Closing Order relies on, only collected documents that were prejudicial to the accused (AIJI’s Issue 10). DC-Cam’s Deputy Director Vanthan Dara Peou then was summoned by the Chamber to clarify this issue, and he assured the Chamber that the Center collected all evidence from the DK period without bias. Director of DC-CAM also provided testimony on documents it provided to the Court (see AIJI’s Issue 11 for Youk Chhang’s testimony)
Objections to documents were also raised by the Defense Teams related to the authenticity of copied documents, such as that of the “Revolutionary Flag” magazines produced by the Khmer Rouge (Issue 13), the lack of adherence of documents to the scope of Case 002/01, the conditions under which documents were obtained (Issue 14), and a multitude of other concerns related to quality, authenticity, relevance, among other matters. With relation to documentary evidence presented by Civil Party Lawyers, most objections were raised on the fact that thei Civil Party statements, unlike Witnesses’ OCIJ statements, were not made under oath (Issue 50 ). Objections were also raised about the use of S-21 confessions as evidence as they were generated under torture. The Chamber has held however that confessions could be admissible in so far the evidence taken from them were that of the torturers and not the content of the confession itself (see for example Issue 30)
Though the Trial Chamber issued an oral and written ruling that documents cited in the Closing Order would be considered prima facie authentic, relevant, and reliable (see Issue 10), the parties brought up issues of authenticity and reliability of documents several more times during the course of the proceedings.
Veracity of OCIJ Documents
On a number of occasions, the Defense objected to the inclusion of documents produced by the OCIJ on grounds that the documents were only limited to inculpatory evidence or were otherwise inauthentic. Of primary dispute were the OCIJ interviews conducted with witnesses, which were provided as evidence in summary and not transcript form. (for example on discussion on this issue, see issue 14, 27, and 50)
Multiple allegations were also made by the Defense that OCIJ interviews were conducted in unacceptable ways. For example, Nuon Chea defense lawyer Jasper Pauw alleged that during an interview involving Witness Sa Siek, the OCIJ interviewers fed the Witness answers (Issue 33). Another instance involved the Defense questioning the nature of unrecorded interviews, or interviews during which other people were present, including one instance in which Witness Chea Say confirmed his wife was in the room helping him remember fact (Issue 37).
Report by Aviva Nababan and Francisca Gilmore
 IR Rule 87.1