13fpZ7l

34. In order to elicit focused and structured testimony and to ensure that all probative
evidence is presented, it is also important that counsel, particularly counsel of the
calling party, are well prepared and fully acquainted with each witness's evidence.
A pre-testimony meeting is a last opportunity for the calling party to determine the
most effective way to question its witnesses and which topics will elicit the most
relevant and probative evidence during in-court examination.
35. It is for these reasons that witness preparation is either allowed or encouraged at
the ad hoc tribunals and in various national jurisdictions where the principle of the
primacy of orality is followed and where trials heavily rely on the examination of
live witnesses through questioning by the parties.^"^ The chamber is of the view that,
properly conducted, witness preparation is also likely to enhance the efficiency,
fairness and expeditiousness of the present trial.
36. Moreover, the crimes under the jurisdiction of this Court are complex, both as
regards the factual circumstances and legal issues involved. Consequently,
witnesses may have to give complicated and delicate evidence in the courtroom. At
the same time, many of the witnesses before this Court have no experience in a
courtroom, come from places far from the seat of the Court and come from a variety
of different cultural and linguistic backgrounds. They are often unfamiliar with the
Court's system of questioning and cross-examination. In addition, witnesses
testifying before this Court are often asked to recount events that occurred many
years ago. As a result, there is an increased likelihood that witnesses will give
testimony that is incomplete, confused or ill-structured.
ICC-01/09-01/11-524 03-01-2013 14/44 NM T
'"^ See Australia, New South Wales Barrister's Rules, June 2008, Rules 43 and 44; Canada (Ontario), Crown Policy
Manual - Witness, 21 March 2005; Canada, Law Society of Upper Canada, Rules of Professional Conduct, 1 November
2000, Rule 4.03; England and Wales, Code of conduct of the Bar of England and Wales, para. 705 and the Written
Standards for the Conduct of Professional Work, Section 6, 31 October 2004, The Crown Prosecution Service - Pre-
Trial Witness interviews. Code of Practice, Febmary 2008; United States, Restatement of the Law (3d) of The Law
Goveming Lawyers, § 116 (adopted in 2000); New Zealand: Lawyers and Conveyancers Act (Lawyers: Conduct and
Client Care) Rules 2008: Rules of conduct and client care for lawyers, point 13.10.2008; Japan, Rules of Criminal
Procedure (Rules of the Supreme Court No. 32 of 1948 Article 191-3) and Fukuoka High Court Judgement, 22 March
1965 (Kouken-Sokuho No.944-9) Judge Eboe-Osuji does not concur as to all the footnote references.
No. ICC-01/09-01/11 14/21 2 January 2013