Rodrigo Duterte defense challenges expert report bid

PRAGUE, Czech Republic – Among the expert reports that International Criminal Court (ICC) prosecutors are seeking to admit as evidence, former President Rodrigo Duterte’s defense is challenging one that cites external materials not considered an “integral part” of a witness’s evidence.

In a publicly redacted request released on November 6, Duterte’s counsel, Peter Haynes, opposed introducing and using two external studies as associated materials for P-1400’s Expert Report, calling it an “improper attempt” by the Office of Prosecution (OTP).

It may be recalled that on October 23, prosecutors informed Trial Chamber III that P-1400 – an expert in a currently undisclosed field – provided the Expert Report covering redacted topics relevant to Duterte’s ICC case.

Aside from this document, the prosecution requested to admit 15 associated items in its fourth application under Rule 68(3).

In his response, Haynes said that the defense does not object in principle to introducing P-1400’s Expert Report via Rule 68(3), rather than full viva voce testimony.

However, he argued that the expert report “contains [REDACTED] footnotes citing other sources, [REDACTED] of which the Prosecution now seeks to introduce.”

Haynes noted that P-1400 “has not meaningfully used or explained” the two studies in question and that they “are not integral” but “merely reproduce information already provided in” the witness’s report.

“Their introduction would be redundant, and would burden the Chamber with evidence of negligible relevance, contrary to its express directions.”

In the filing, Haynes stated that a redacted individual or entity contributed to the first study, whose “treatment of the considerably wider findings of this item is extremely limited.”

He also mentioned another study – whose topic and preparer remain concealed – that contains “contextual information that does not form part of the P-1400’s own inquiry.”

“In reality, the Prosecution is attempting indirectly to introduce material prepared by other professionals who are not on its witness list via the instant Expert Report which – by its own admission – only “[REDACTED],” Haynes argued.

During the final status conference on November 2, Haynes described P-1400’s expert report as “difficult” and told Presiding Judge Joanna Korner that the defense would need “a couple of hours” to cross-examine.

In the filing, Haynes noted that there would be “merit” in hearing a redacted testimony “concurrently with that of the Defence expert”.

Additionally, he asked Trial Chamber III to either dismiss the OTP’s application for P-1400 or consider this request from the defense in a pending decision on the prosecution’s prior request to add the documents to its List of Evidence after the deadline.

Some witnesses may testify remotely

In a separate filing also dated November 6, prosecutors submitted an updated list of witnesses ahead of Duterte’s trial.

Trial Chamber III had ordered prosecutors to identify witnesses expected to testify through audio-video link, or AVL, and provide their expected order of appearance and any foreseeable problems with remote testimony.

At the November 2 status conference, senior trial lawyer Julian Nicholls told Korner that about 29 witnesses would participate via an audio-video link, and that the number could be broken down into categories.

In the latest filing, the prosecution said it has now marked in its confidential list the witnesses who may testify via AVL and updated their anticipated calling order.

The public filing does not disclose the number or identities of the witnesses because the updated list is in a confidential annex.

Prosecutors said they would inform the Chamber if circumstances later allow these witnesses to appear in person.

At present, the prosecutors said they do not foresee any issues with testimony through an audio-video link.

During the status conference, Director of the ICC Division of Judicial Services Marc Dubuisson told Korner that "everything is on track" regarding the preparations for AVL witnesses.

Dubuisson suggested that the schedule for AVL witnesses be started earlier, citing the seven-hour time difference.

"If we do it [this suggestion], we have to finish at 8:00 p.m. in the Philippines -- if the hearing ends at 1:00 p.m. in The Hague, that won't fit the schedule," Dubuisson told Korner.

For the defense, Haynes told the chamber of the logistical challenges of starting hearings at 8 a.m. in The Hague, including the need to transport Duterte to and from Scheveningen Prison.

Trial Chamber III has yet to release an order regarding the schedule for AVL witnesses.

Duterte is facing three counts of crimes against humanity involving murder and attempted murder allegedly committed during his terms as Davao City mayor and Philippine president.

His trial is scheduled to open on November 30 before Trial Chamber III, composed of Korner and Judges Keebong Paek and Nicolas Guillou. —VBL, GMA News