The use of joint trials by international tribunals has been protested by defendants and subjected of  close examination by legal practitioners, court monitors and judges alike. However, despite numerous decisions from international tribunals on both the fairness of joinder and the acceptable grounds for the severance of trials, difficult questions still arise as to how to best assure the rights of all of the accused once a joint trial has begun. One such question recently became a subject of heated debate during the RUF trial in Trial Chamber I of the Special Court for Sierra Leone, as the Gbao defense fought for the chance to present its evidence fully despite the risk of incriminating co-defendant Morris Kallon in the process. Overall, the Trial Chamber showed its respect for the importance of ensuring all rights of each of the accused, treading carefully through multiple days of questioning and objections to try to find the appropriate balance.

The controversy arose in the context of counts 15-18 of the indictment, which deal with the defendants’ alleged involvement in the taking of UNAMSIL personnel as hostages in May 2000. Witnesses for the prosecution had previously asserted that both Kallon and Gbao had ordered the attacks on UN personnel, had been at the DDR camp from which UNAMSIL personnel were abducted on the day in question and had returned to Makeni with captured UN personnel. Morris Kallon chose to defend himself from these charges with an alibi defense, putting forth witnesses to testify that he was not present during the hostage-taking situation. As Second Accused, Kallon had the opportunity to present his defense before Gbao, the Third Accused; it was only this month that the Gbao defense called witnesses to testify to his version of what happened during the UNAMSIL incident. Cammegh, Gbao’s counsel, explained the defense, in short, as being that Gbao was indeed present at the camp but became upset at the threat of violence, tried his best to prevent the crime from occurring, and left before any hostages were taken.

Tensions first arose on June 16, when Presiding Judge, Justice Itoe, warned Cammegh that he must not use DAG-047 or DAG-111, two of Gbao’s defense witnesses, to incriminate any other defendant. Cammegh replied that his overall motive was simply to exonerate Gbao, but that it would be unethical for him to coach the witness, and therefore he could not absolutely guarantee what the witness was going to say. Greatly concerned with the protecting the rights of Morris Kallon, the judges emphasized that they would be overly vigilant to ensure that the accused were granted all the rights they would have if they had been tried separately. At the same time, Justice Boutet did at least acknowledge Cammegh’s concerns, saying that if a witness’s testimony was essential to Gbao’s defense, the court would have to struggle with the best way to receive that evidence, as one accused cannot be favored over another. Still, Cammegh vehemently insisted that limiting the witnesses’ testimony in any way would deny Gbao the chance to exonerate himself. For its part, the Kallon defense team stated that it objected to the lack of notice it had as to any possible incriminating evidence against its client, particularly because the witness summaries it had previously received from Cammegh made no mention of its client’s name. At this point, Justice Itoe said he felt the matter had been appropriately discussed, and questioning of witness DAG-047 concluded without problem.

Still, controversy arose again the next day when witness DAG-111 described the actions of an unnamed commander at the DDR camp in Makumb. Originally, Justice Itoe agreed with the Kallon defense team that Cammegh could not proceed to ask about that unnamed commander, as it may implicitly lead to the incrimination of one of Gbao’s co-accused (assumedly from circumstantial evidence given by previous witnesses). However, Cammegh insisted on being allowed to proceed with the line of questioning, analogizing to a hypothetical situation of the bench refusing to admit a videotape that exonerated one defendant at the expense of another in order to highlight how prejudicial he felt Itoe’s decision would be to his client. Cammegh also angrily asserted that it seemed the Trial Chamber had already chosen one defendant over the other by putting Kallon’s rights before those of Gbao. As discussion amongst the parties continued, Cammegh emphasized that the bench had repeatedly proclaimed themselves as professionals who would be able to divorce their minds from certain pieces of evidence when the time came in order to reach a fair and impartial judgment for all three defendants, citing an ICTY precedent containing a similar argument.  He also pointed out that the witness had not even incriminated Kallon but had only referred to an unnamed person, meaning that the existence of the Second Accused didn’t even have to be considered when the judges evaluated the evidence from witness DAG-111. After a lengthy recess, the Chamber, apparently swayed by Cammegh’s arguments, returned to announce that the line of questioning would now be permitted. Even further, upon cross-examination, the Prosecution was allowed not only to elicit that Morris Kallon was indeed the previously unnamed commander but also to ask questions as to his actions at the Makumb camp, despite objections from the Kallon defense.

Article 17 of the Statute of the Special Court for Sierra Leone, aptly titled “Rights of the Accused,” lays out the basic rights guaranteed to all defendants. These include the right of all accused to be equal before the court, [1] the right to a fair and public hearing, [2] the right to be presumed until proved guilty, [3] [4] . As for the joinder of trials, Rule 48 and 82 of the Rules of Procedure and Evidence for the SCSL govern joint trials. Most relevantly, Article 82(A) states that in joint trials, each accused shall be accorded the same rights as if he were being tried separately, a principle likewise followed by each of the ad hoc tribunals that paved the way for the Special Court [5] . Further, in circumstances not otherwise provided for, Rule 89(B) provides that the Chamber shall apply rules of evidence that best favor a fair determination of the matter and are consistent with both the statute and with general principles of law [6] . Therefore, the Chamber is given a fair degree of discretion in deciding how to deal with novel questions or difficult considerations related to evidence, as was the case here. and the right to examine the witnesses against him or her

In the ICTY case of Brdjanin and Talic, appropriately cited by the Gbao defense, defendant Momir Talic submitted a motion for a separate trial based on a conflict of interest among co-defendants that he claimed led to serious prejudice. Talic asserted that this conflict arose because each of the accused had a fundamentally different approach in their defenses; specifically, co-defendant Radoslav Brdjanin placed full responsibility for certain events on Talic. Thus, Talic felt he would be deprived of a “right” to be tried without incriminating evidence being put against him by his co-accused. In dismissing the application, the Trial Chamber II of the ICTY stated, “A joint trial does not require a joint defense, and necessarily envisages the case where each accused may seek to blame the other. [7] ” Essentially, the Trial Chamber rejected the claim that serious prejudice would result from one co-defendant giving incriminating evidence against another. The court went on to say that in the event one co-defendant tried to blame the other, it would be in the interest of justice for the other to be able to give evidence refuting that attempt [8] . Finally, the court pointed out the professionalism of the judges who preside over international criminal tribunals, stating their capability to determine guilt or innocence individually and to ensure that the rights of each accused are respected [9] . Talic’s attempts to appeal the decision were denied. Thus, even where problems such as the one that arose in the RUF trial are foreseen at early stages, international tribunals have continued forward with joint trials, relying on the full disclosure of evidence and judicial expertise to balance the interests of each accused in a fair manner.

A similar situation arose before the ICTR in 2006 when Pauline Nyiramasuhuko filed a motion for separate proceedings, a new trial and stay of proceedings based on her belief that a conflict of interests arose from having her trial conducted with two other accused. More specifically, Nyiramasuhuko claimed that her co-defendants’ strategies were not only contradictory to her own but also incriminated her, in that they claimed she was responsible for specific charges in the indictment [10] . In turn, Nyiramasuhuko’s strategy was to show that neither she nor the government of which she was a member ever planned or executed killings [11] .   Again, the Trial Chamber in this case ruled that serious prejudice does not automatically result from one of the accused attempting to shift blame to co-defendant; therefore there was not the “extraordinary and exceptional circumstances necessary [12] ” to warrant severance of the proceedings. The Chamber also referenced the availability of other much less extreme remedies if such became necessary later on to ensure Nyiramasuhuko’s rights, including cross-examination, additional cross-examination, the recall of witnesses, and the presentation of rebuttal evidence [13] . As in Talic, this ICTR case dealt with a motion for severance at an early stage in the proceedings, and the judges still chose to proceed with a joint trial and to allow the full presentation of evidence even after considering how to best afford the defendant her rights.

Finally, in a decision made in regards to a motion filed in the CDF case, Trial Chamber I of the SCSL stated that none of the tribunals had rules to address the type of examination that should be permitted in joint trials by counsel for the defendants who have not called a given witness as a common witness [14] . In that instance, dealing with the different but related issue of the cross-examination of a witness called by one accused that leads to the incrimination of a co-defendant, the Chamber held that eliciting evidence that may potentially incriminate a co-defendant from a witness not his own was not an acceptable purpose of cross-examination [15] . Thus, the Prosecution was not allowed to try to strengthen its case against one accused by asking a witness not his own questions that were outside of the scope of the direct examination. While this issue differs from the one in the RUF trial, it shows the lack of guidance and the difficulties faced by the Chamber in dealing with this controversy.  

Although the law adopted by international tribunals is a unique combination of principles from both common law and civil law traditions, the practices of two influential jurisdictions, the United States and the United Kingdom, are both telling on this subject. The United States Supreme Court has repeatedly dealt with questions related to the rights of co-defendants in joint trials, most extensively in the area of the admissibility of confessions proffered by or against one defendant that effectively incriminate a co-defendant. The long-standing rule, announced in Bruton v. U.S., is that in some instances, the admission of a confession incriminating a co-defendant may have too prejudicial of an effect on a jury to be admitted, even with limiting instructions given by the judge [16] . However, this ruling was narrowed in Richardson v. Marsh, when the Supreme Court held that even if circumstantial evidence linked a co-defendant to a crime detailed in a confession, if all references to the existence of that co-defendant were eliminated from the confession, there would be no irreparable prejudice [17] . The Supreme Court then refined its ruling once again in Gray v. Maryland, stating that a redacted confession, in which the co-defendant’s name was replaced with the word “deleted” or a similar symbol, was too prejudicial to be admitted [18] . In the Court’s view, the signs of deletion attracted too much attention and would lead to speculation [19] .  

While obviously dealing with the distinct issue of a live witness’s testimony rather than a voluntary confession, the evidence that Gbao wished to (and eventually did) elicit from witness DAG-111 is analogous in many ways and would seem to fall somewhere in between the holdings of Richardson and Gray. Like the case in Richardson , the testimony from DAG-111 does not incriminate Kallon on its face; it is only with circumstantial evidence adduced from other witnesses in the trial that Kallon could be blamed, and therefore the testimony would be admitted. However, at the same time, the testimony is similar to the situation in Gray in that the existence of the co-defendant is not entirely removed from the testimony. Great attention is likely to be drawn to the fact that the commander is unnamed, especially because witnesses throughout the entire trial have been asked to give very specific details, including names. Thus, American precedent sheds some light on the issue but still does not give a clear answer on to how Trial Chamber I should have proceeded. While the U.S. Supreme Court was particularly worried about the prejudicial effect that confessions may have on a jury, as the judges of Trial Chamber I have stated repeatedly, they constitute both judge and jury in the RUF trial. Even though they are professionals who are experienced with criminal law and have sworn to consider the guilt of each accused individually, when the time comes, it may be difficult for them in actuality to not speculate as to the identity of that unnamed commander and import guilt on Morris Kallon.

As for persuasive precedent from the United Kingdom, the House of Lords has similarly dealt with numerous cases regarding the admissibility of confessions by one defendant that potentially or definitely incriminate a co-accused in a joint trial. In discussing the case Regina (Respondent) and Myers (Appellants), the House of Lords stated, “It is commonplace that in criminal trials one defendant’s interest may be that the prosecution’s case against a co-defendant should be strengthened and should succeed. A defendant is therefore entitled to lead admissible evidence that is relevant to the proof of the case against the co-defendant if in so doing the defendant is advancing his own case. [20] ”  The House of Lords also agreed with precedent and the lower courts that it was for the jury to determine the issues based on all the relevant and available evidence adduced between the three parties: the Crown and the two defendants [21] .   As, again, the members of Trial Chamber I are both judges and jury in this case, they have agreed to take on the difficult task of sorting out the multitude of evidence before them and determining which evidence is to be believed and which should be set aside. English precedent would more strongly indicate that the bench acted correctly in deciding to put the evidence on the record and determine what should be given weight later on during the judgment stage.

The Rules of Procedure and Evidence for the Special Court allow persons accused jointly under Rule 48 to be tried separately if the Trial Chamber deems it necessary to avoid a conflict of interests that might cause serious prejudice to one of the accused [22] . This was the option discussed in the ICTY and ICTR precedents above, which both referred to it as a remedy that would only be appropriate in extraordinary circumstances. In the RUF trial, such a remedy would likely be deemed too extreme in any case due to the late stage of the proceedings, which have only now drawn to a close after four years of testimony. At the same time, the possibility of having an appeals chamber find prejudicial error and order a new trial would be highly undesirable and potentially embarrassing.  Therefore, Trial Chamber I had limited options in deciding how to best proceed. If it had chosen not to allow Cammegh to ask about the actions of the unnamed commander, the witness would not have been able to testify as to how Gbao allegedly tried to stop the crime from occurring, an important fact that, if believed, adds strongly to his defense. In contrast, in allowing the evidence to be put on the record, the Chamber admitted testimony that circumstantially implicated Morris Kallon (indeed, every person present in the courtroom was likely aware of whom the unnamed commander was presumed to be). Still, even with that evidence on the record, the Chamber has not yet chosen one version of events over the other. Further, the Kallon’s defense team was given the opportunity to cross-examine the witness and possibly undermine either the facts as he stated them or his credibility as a truthful source. If the ultimate aim of the judges was to balance the rights of each accused, as opposed to protecting one defendant at the expense of another, it would seem this latter course of action better fulfills that goal.

The logic behind joint trials is largely related to the desire for consistency, efficiency and the conservation of resources [23] . Joint trials reduce the funds spent on witnesses, court management, document reproduction and the innumerable other trial-related expenses, along with freeing up precious judicial resources by simultaneously clearing multiple cases from the docket [24] . Multi-defendant trials also potentially ease the burden on witnesses, who otherwise may be called to testify at multiple trials. Further, international tribunals in particular want to avoid the possible embarrassment of Trial Chambers issuing sharply contrasting verdicts or sentences in cases based on similar facts or events through the use of joint trials. However, many prosecutors who seek the joinder of trials are likely also aware of the benefits that may come from each defendant having his own counsel, along with his own defense strategy. This too often leads to infighting and disorganization, especially when each defendant seeks to exculpate himself at the expense of his co-defendants [25] . While international tribunals need be given credit for moving forward in the face of numerous obstacles, including financial, resource, and administrative restraints, at some point the international community may decide that preserving the rights of the accused is simply more essential than all the benefits that joint trials may bring.

No matter how one feels about the correctness of the SCSL Trial Chamber’s decision in the instant case, the deliberation and determination of the matter holds important lessons for the judiciary and other legal institutions of Sierra Leone. Many of the same matters that continually plague the Special Court (and other international tribunals) are also problems endemic to Sierra Leone, including lengthy pre-trial detentions without provisional release, overloaded court dockets leading to a backlog of cases, and resource limitations leading to infringements on the rights of the accused. The Special Court is surely unique in the gravity of the crimes that it deals with. However, Sierra Leoneans both inside and outside the legal system should adopt a page from Trial Chamber I and begin discussing these issues seriously. While many times there will be no clear-cut answers, conversations alone will remind the judiciary of the importance of ensuring the rights of the accused, even in the face of overwhelming challenges. It is time for Sierra Leone to move forward with much needed legal reform and a better awareness of what it truly means to afford a defendant a fair trial.