S.L. (Suzanne) Schot, LLM
This dissertation examines how potential distortions in testimonial evidence are taken into consideration within the legal process, and to what extent this requires and adjustment of both investigative and prosecutorial procedures. International criminal courts and tribunals prosecute those responsible for atrocities such as genocide, war crimes, and crimes against humanity. The majority of evidence in such cases is testimonial. Questioned before the court, both witnesses and the accused can testify to answer the who, what- where-, and when-questions in order to determine who can be held responsible for the crimes. Nevertheless, judgments of international crimes frequently mention, for example, the lack of detail, coherence and/or consistency throughout testimonies. The extent to which this affects the credibility and reliability of the witness or the accused, and ultimately the admissibility of the evidence is important to take into consideration for fact-finding – during both the investigation and prosecution of international crimes. As such, this dissertation focusses on how the legal process deals with potential distortions in testimonial evidence, especially considering the traumatic nature of international crimes. Investigations and prosecutions of these crimes involve potentially vulnerable and traumatized witnesses as well as witnesses whose evidence is of a particular sensitive nature, as they may, for example, testify in relation to allegations of sexual violence or torture. The methodology consists of an empirical study of transcripts of proceedings, case law, rules of procedure and evidence, and investigation manuals of the International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia (ICTY), and the Dutch prosecution of international crimes, as well as potential interviews with legal practitioners. In addition, the research builds upon a thorough review of legal and criminological scholarship on potential distortions in testimonial evidence in (international) criminal cases. The thesis reports the results of the extensive analysis of data concerning the collection and assessment of testimonial evidence and the consideration of potential distortions throughout this process. It is critically analyzed to what extent judicial proceedings and those involved in the process of investigating and prosecuting these crimes take into consideration the implications of potential distortions of both witnesses and the accused and their effect on testimonial evidence. The dissertation contributes to an enhanced understanding thereof, which may better equip fact-finders to identify potential misrepresentations of truth throughout the investigation and prosecution and acquire corroborating evidence necessary for the adjudication of international crimes.
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