Defense lawyers for Jean-Pierre Bemba have opposed the proposed admission of transcripts of prosecution witness interviews, which have not been submitted as evidence by the parties.
They said en masse admission of those transcripts on the eve of the close of the trial at the International Criminal Court (ICC) would be "irreconcilable" with Mr. Bemba's fair and expeditious trial.
Furthermore, defense lawyers Aimé Kilolo-Musamba and Peter Haynes said admitting the nearly 3,000 pages of transcripts would mean the judges would deliberate on evidence not tested during the proceedings.
"The parties have not been given the opportunity to make submissions on reliability, probative value or prejudice of this wealth of potential new evidence, as required by Rule 64(1)," said the October 11, 2013 filing. Rule 64(1) provides that an issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a chamber.
The defense lawyers argued that because the transcripts contained allegations that did not form part of the case against Mr. Bemba during the course of the trial, fairness dictated that he be permitted to recall the relevant prosecution witnesses to explore the veracity and reliability of these allegations.
Meanwhile, Prosecutor Fatou Bensouda stated in her October 11, 2013 submission that the admission of all prior witness statements may be inconsistent with the fair and expeditious conduct of proceedings. She said the potential prejudice of admitting all prior statements rather than statements of selected witnesses upon good cause may outweigh their probative value.
The prosecutor added that admitting "largely duplicative materials" amounting to thousands of pages with the likelihood of little added value would considerably lengthen the judicial assessment of the evidence and potentially delay the judgment.
Defense lawyers said the judges announced that they were considering requesting the submission as evidence of the 100 transcripts of interviews with 30 prosecution witnesses, only 25 days to the deadline for the defense to close its case. The transcripts total 2,919 pages.
Judge Kuniko Ozaki issued a dissenting opinion from that of Presiding Judge Sylvia Steiner and Judge Joyce Aluoch, in which she opposed the proposed admission of the statements.
According to Judges Steiner and Aluoch, rather than merely assessing testimony of a witness against those excerpts of prior interviews or statements that the parties decide to refer to in court in the limited time available to conduct questioning, the chamber should be able to compare a witness's testimony against the entirety of the prior recorded statements or interviews.
However, defense lawyers argued that judges provided no indication as to what would happen at the end of comparing oral testimony given under oath and the recorded transcripts, or what would happen if there was an inconsistency between the in-court oral testimony of a witness and a transcript of their interview.
Mr. Bemba's trial opened in November 2010. The Congolese opposition leader is on trial over the rapes, murders, and pillaging allegedly committed in the Central African Republic by his Movement for the Liberation of Congo fighters during 2002 and 2003.
The defense also submitted that this was not the first time the majority of judges had sought to introduce transcripts of prosecution witness interviews that had not been submitted as evidence by the parties. The first attempt to do so "was prevented by the Appeals Chamber as being inconsistent with the [Rome] Statute and general principles on admission of evidence, after being opposed by both the Prosecution and the Defense."
According to the defense lawyers, neither they nor the prosecution had submitted the transcripts as evidence. Moreover, they said, the prosecution was opposed to admission of these materials by the chamber at the start of the case and had passed up opportunities to seek to admit witness interviews throughout the case.
Ms. Bensouda noted that admitting prior statements would not contravene the principle of primacy of oral evidence, provided an assessment was conducted on a case-by-case basis following the three-stage test of relevance, probative value and prejudicial effect, and with due regard for the fair and expeditious conduct of proceedings.
Judges are yet to make a ruling on the defense and prosecution filings.
Meanwhile, the first of four outstanding defense witnesses is scheduled to start testifying on Thursday this week.