THE International Criminal Court (ICC) faces a legal battle ahead of former president Rodrigo Duterte’s trial over how to balance the prosecution’s need to present evidence efficiently with the right of the accused to challenge testimony.
At issue is whether prosecutors can rely on previously recorded witness statements without requiring the witnesses to appear in court and face questioning by Duterte’s defense team.
Duterte’s lead defense counsel, British King’s Counsel Peter Haynes, has opposed the prosecution’s attempt to introduce recorded statements from two witnesses, arguing that their allegations must be subjected to cross-examination.
In an Oct. 26 filing before ICC Trial Chamber III, Haynes asked the judges to require witnesses identified as P-1393 and P-1416 to testify orally or, alternatively, be made available for questioning.
The defense argued that their accounts concern disputed allegations central to the prosecution’s case and that admitting the recordings without further examination would prevent it from adequately testing the witnesses’ credibility, personal knowledge and the reliability of their statements.
The prosecution, meanwhile, has sought to use the recorded testimonies, arguing that they are relevant, reliable and corroborate other evidence it intends to present during the trial.
Lawyers representing victims supported the prosecution’s application, maintaining that the requirements for admitting the statements under Rule 68 of the ICC’s Rules of Procedure and Evidence have been met.
Rule 68 allows the court, under specified circumstances, to admit previously recorded testimony in place of live testimony. Its use remains subject to safeguards intended to protect the rights of the accused and ensure the fairness of proceedings.
One of the disputed witnesses, P-1393, reportedly gave an account of a killing in Bulacan involving alleged payments to police officers and supposed quotas for carrying out killings.
Haynes questioned the reliability of the testimony, pointing out that the witness did not personally witness the killing or the events leading to it but relied on information allegedly obtained from neighbors who were unwilling to testify.
The defense also cited inconsistencies in the witness’ account, arguing that questioning in court was necessary to establish the basis of the allegations. Franco Jose Baroña
The other witness, P-1416, provided an account concerning a specific incident covered by the charges against Duterte. The defense questioned discrepancies between the witness’ account and that of another witness concerning the same incident.
Haynes said these matters should be examined through cross-examination rather than resolved solely on the basis of recorded statements.
The defense did not oppose the prosecution’s request to admit the recorded testimony of a third witness, P-1370.
The evidentiary dispute has taken on added significance following a separate Nov. 5 application by Acting Prosecutor Mame Mandiaye Niang seeking the admission of preserved statements from P-0002, an alleged former member of the Davao Death Squad (DDS) and former Davao City police officer who is no longer available to testify.
Prosecutors asked the chamber to admit 45 transcribed statements and 61 supporting materials from P-0002, including affidavits, handwritten notes, photographs, police service records and organizational charts of the alleged death squad.
They said the materials could help establish the origins, structure and operations of the alleged DDS, as well as Duterte’s individual criminal responsibility and intent.
The statements also concern an alleged 2013 incident in San Rafael, Davao City, in which prosecutors claim Duterte instructed police officers to kill three suspected drug pushers.
P-0002 was interviewed by prosecutors from May 10 to 16, 2022, in a procedure authorized by the court. A lawyer appointed to protect the interests of any future accused was present during the interview, along with the witness’ own counsel.
Prosecutors said they were informed in June 2024 that the witness was no longer available.
The prosecution has asked the chamber to admit the materials under Article 69(4) of the Rome Statute, which provides for the assessment of evidence based on its probative value and any potential prejudice to a fair trial.
The P-0002 application presents another question for the judges: whether statements preserved through an earlier judicially authorized procedure can be admitted despite the witness’ subsequent unavailability, and whether the safeguards provided during the interview sufficiently protect the defense’s rights.
The chamber has yet to rule on the competing evidentiary applications.
Duterte’s trial is scheduled to open on Nov. 30.
