The Prosecution Gets Schooled
The Noun Chea defense raised an objection to the inclusiveness of the prosecution’s questions put to a witness. It is the absence of questions that would help the Trial Chamber discern eyewitness testimony from hearsay that the Noun Chea defense objected to. Of course, this “objection”should have been overruled before counsel got to the second sentence of it as it is not based on one of the objection predicates of the Criminal Procedure Code (CPC) and no amount of judicial artifice (at least not that I can think of) can expand them so that they cover the defense’s statement in question. The bench, however, allowed this soliloquy (considering it does not pass the objection test, soliloquy is the best of dignified terms I can think of to describe it).
If we forget about the CPC (won’t be difficult since the Court seems to have turned ignoring the CPC into an art form) and imagine for a second that no legal restraints exist on what counsel can say in court, the defense’s point is well taken. The prosecution did structure its questioning inexpertly and in a manner as if they had never heard of the probative value standard. Of course, it can also be argued that all evidence is admissible under the CPC and considering the fact that in the Cambodian system the fact-finder is a professional judge, not a mailman from across the way (the jury system), the evidence presented can be left to the judges to sift through and cull out the kernel and toss away the husk. This could be a working approach were it not for the fact that a big chunk of these proceedings is dedicated to civil party participation. Given the fact that the Internal Rules (IRs) foreclosed the routinely main reason for civil party participation (which is money), civil parties have to be in it for all the intangible reasons. One of such reasons is to find out the truth about what happened during Democratic Kampuchea. If we agree that no civil party can possibly commit himself or herself to observing these proceedings in their entirety, we would then have to imagine that many civil parties and other observers tune in and out every once in a while. If any given civil party had tuned in for the prosecution’s examination of the witness at any given point on December 6 or December 7, they never would have gotten out of that examination that the witness was relaying what he had heard, rather than what he had seen. Now, in Cambodian culture the value of firsthand account is very often indistinguishable from hearsay (and I say this with all due authority), it is the Court’s job to emphasize that difference. This difference would not have been evident from the prosecution’s examination (and knowing the difference I could not help but keep asking myself the same question the defense was asking itself – how does the witness know this?).
The upshot here is simple: the Noun Chea defense made a valid comment which it had no procedural right or privilege to make. The prosecution lashed back being offended by what is “effectively lecturing.” I agree with the prosecution that the statement was not a legitimate exercise under the Cambodian procedure but I also agree with the defense that the prosecution was sorely in need of a lecture (and I am glad the prosecution took the defense’s advice (there is simply no denying that), even though they lashed out at initially)).