Rule 68 Prior recorded testimony

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(a)

Both the Prosecutor and the defence had the opportunity to examine the witness during the recording.

(b)

The prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused. In such a case:

(i)

In determining whether introduction of prior recorded testimony falling under sub-rule (b) may be allowed, the Chamber shall consider, inter alia, whether the prior recorded testimony in question:

relates to issues that are not materially in dispute;

is of a cumulative or corroborative nature, in that other witnesses will give or have given oral testimony of similar facts;

relates to background information;

is such that the interests of justice are best served by its introduction; and

has sufficient indicia of reliability.

(ii)

Prior recorded testimony falling under sub-rule (b) may only be introduced if it is accompanied by a declaration by the testifying person that the contents of the prior recorded testimony are true and correct to the best of that person's knowledge and belief. Accompanying declarations may not contain any new information and must be made reasonably close in time to when the prior recorded testimony is being submitted.

(iii)

Accompanying declarations must be witnessed by a person authorized to witness such a declaration by the relevant Chamber or in accordance with the law and procedure of a State. The person witnessing the declaration must verify in writing the date and place of the declaration, and that the person making the declaration:

is the person identified in the prior recorded testimony;

assures that he or she is making the declaration voluntarily and without undue influence;

states that the contents of the prior recorded testimony are, to the best of that person's knowledge and belief, true and correct; and

was informed that if the contents of the prior recorded testimony are not true then he or she may be subject to proceedings for having given false testimony.

(c)

The prior recorded testimony comes from a person who has subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally. In such a case:

(i)

Prior recorded testimony falling under sub-rule (c) may only be introduced if the Chamber is satisfied that the person is unavailable as set out above, that the necessity of measures under article 56 could not be anticipated, and that the prior recorded testimony has sufficient indicia of reliability.

(ii)

The fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it.

(d)

The prior recorded testimony comes from a person who has been subjected to interference. In such a case:

(i)

Prior recorded testimony falling under sub-rule (d) may only be introduced if the Chamber is satisfied that:

the person has failed to attend as a witness or, having attended, has failed to give evidence with respect to a material aspect included in his or her prior recorded testimony;

the failure of the person to attend or to give evidence has been materially influenced by improper interference, including threats, intimidation, or coercion;

reasonable efforts have been made to secure the attendance of the person as a witness or, if in attendance, to secure from the witness all material facts known to the witness;

the interests of justice are best served by the prior recorded testimony being introduced; and

the prior recorded testimony has sufficient indicia of reliability.

(ii)

For the purposes of sub-rule (d)(i), an improper interference may relate, inter alia, to the physical, psychological, economic or other interests of the person.

(iii)

When prior recorded testimony submitted under sub-rule (d)(i) relates to completed proceedings for offences defined in article 70, the Chamber may consider adjudicated facts from these proceedings in its assessment.

(iv)

The fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it.

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