All rise! The Prosecutor vs Defendant, please be seated! International criminal proceedings involve drama. The characters are set up as adversaries. The trial is the climax <br>of the proceeding, it's like the main act in a play. The prosecution tells the story of the protagonist, the defense challenges the narrative. Judges are directors and actors: they watch over fair play, and control that the trial does not derail. The audience wants to know who has done it, and who wins. There's a hope that villains are punished and that victims are vindicated, and that the judgement restores some sense of order into chaos. But reality is often more complex: proceedings take years, judgements are lengthy. There's often no full catharsis at the end, but multiple truths. In this video, we'll find out why: we will study the purposes of the trial, its different steps, the role of actors, and the basis of the judgment. What happens at trial? At trial, the prosecutor presents the case against the accused, and factual and legal issues relevant to the determination of guilt and sentence. Its main purpose is to ensure that the defendant receives a fair and expeditious legal process; at the end, they have two choices, conviction or acquittal, but there's more to it than meets the eye. Trials typically serve additional didactic functions: they educate, they explain, and they illuminate. They seek to explain what happened, why it happened, and who is responsible. This is complex, since the defendant is often only one piece in a large puzzle of crime. Judges must assess competing narratives and the credibility of the evidence. Trials also have a certain symbolic function that goes beyond shame, sanction, and stigma: they offer a space to rehumanize perpetrators, and might bestow a certain sense of equality between the victim and the perpetrator. Trials involve a high degree of communication and performance. In principle, the trial is public: exceptions are only allowed for specific purposes, such as public order, safety and security of witnesses and victims, or the protection of confidential information. The principle of orality is the rule: it implies that live testimony, even by video or audio link, should be used wherever possible since it can be better tested than out of court testimony. The judgement must be based on evidence discussed at trial, or submissions that are a part of the trial record. Proceedings are generally set up as a contest between the parties: like a sporting game, the prosecution and the defense present separate cases. There should be procedural equality between the parties: both parties must have a fair and equal opportunity to present their case. The presumption of innocence imposes the burden on the prosecution to prove guilt. The prosecutor must tell the story, put together a coherent narrative, and prove every necessary element of the charges beyond reasonable doubt. It is not sufficient to show that the defendant is probably guilty, or likely guilty. The defense typically raises doubts, identifies weaknesses in the prosecution case, or offers counter-narratives. One of the weaknesses of this binary structure of trials is that they may prolong hearings, or induce hostility between the parties. This is why international criminal proceedings involve inquisitorial features. They seek to establish the truth, and test the cases of the parties through contradiction, including confrontation and dialogue, rather than hostile contest. Trial management and preparation are under strict judicial control. Judges have autonomous powers: for instance, at the ICC, judges may require that evidence becomes part of the record, and they might even summon their own witnesses, and admission of guilt obtained from the accused does not automatically bind the trial chamber. Judges must assess whether a guilty plea is voluntary, informed, and supported by the facts of the case; they may insist on an ordinary trial procedure where more complete and public presentation of the facts is in the interest of the victims. How does a trial unfold? A trial involves the opening stage, the presentation of the evidence, the closing stage, and judgment and sentence. The opening statements combined case theory with advocacy: for instance, in Lubanga, the ICC prosecution mentioned sexual crimes against girls in order to illustrate the importance of the case, even though these crimes were not formally charged. Most time at trial is spent with the presentation and testing of evidence. This can take several years. In each case, an examination-in-chief, cross-examination, and re-examination of witnesses are allowed to both parties. What does this mean? The examination-in-chief is the initial questioning by the party calling the witness. It is subject to instructions by the Chamber. Parties are generally not allowed to ask leading questions: this means questions which would suggest an answer, or assume facts not yet established. Cross-examination involves questioning of a witness of the other party, or a witness declared hostile. It is designed to cast doubts on matters raised during the examination-in-chief, the reliability of the witness, or to solicit information favorable to the cross-examining party. Re-examination allows the calling party to have the last word with the witness in relation to matters or new facts arising out of the cross-examination. After the presentation of the prosecution case, there is room for the defense to request a mid-trial acquittal: this is called a no case to answer motion. Its purpose is to prevent that accused persons have to defend themselves against charges for which there's insufficient prosecution evidence. The ICC Trial Chamber used this<br>option in a controversial way in the case against Ruto and Sang: the case collapsed following external interference with prosecution witnesses. Instead of acquitting the accused, the majority declared a mistrial and left the prosecution the opportunity to reprosecute the accused based on new evidence. This goes against the prohibition of double jeopardy, which prohibits that the defendant is prosecuted twice for the same conduct. At the end of the trial, the prosecution may present closing arguments followed by the defense and the legal representative of victims. The closing argument does not serve to present further evidence: it is meant to sum up elements of proof, and to suggest a verdict. How is the evidence assessed? Many adversarial legal systems tend to have strict rules on the admission of evidence in order to protect the jury, or laypersons, from unreliable or improper evidence. In international criminal proceedings, this is not necessary since professional judges try both the facts and the law: judges can admit any relevant evidence that has probative value. There's no general rule excluding hearsay or indirect evidence, such as UN reports or reports by NGOs. But the ad hoc tribunals and the ICC have treated it with caution in terms of it's probative value. They have accepted written witness statements, or recorded audio or video testimony, instead of in court testimony. But such statements are typically only used to prove matters other than the acts and the conduct of the accused. Most witnesses are still heard live in court. In court testimony has specific advantages: it allows the Chamber to hear the evidence directly from the witness, to observe their behavior and expressions, or to seek clarification. But is also has down sides: witness testimony takes long, and witnesses are often unfamiliar with the adversarial method of examination and cross-examination. It is difficult to restrict the testimony to what is relevant to the charges: there may be language problems, and inconsistencies in statements. Often, years pass between the facts and the testimony: the prosecution tries to reduce<br>such risks through practices of witness proofing before testimony. But in the Lubanga case, the ICC Trial <br>Chamber argued that it is impermissible to discuss or rehearse the witness statement prior to testimony since it could lead to a distortion of the truth and diminish the spontaneous nature of testimony. Following the presentation of the evidence, the judges must assess the facts and the legal issues: they are constrained by the facts and circumstances that are part of the trial, but they have autonomy in the legal assessment. This is expressly specified in the ICC context: according to Regulation 55 of the Regulations of the Court, judges are allowed to enter a conviction for a different label of crime or mode of liability, if the underlying elements are covered by the charges. This provision has been used in any of the existing ICC trial judgements, but fairness requires that judges can only do so if they have given prior notice to the parties during the proceedings. So what can we take from this? In this video, we've seen that trials involve aspects of advocacy and drama: these elements are part of the expressive function of trials, but they are also likely to cause disappointment. Trials are easily perceived as show trials: there's a strong risk that every judgment is seen as an unsatisfactory answer to atrocity crimes, and that an acquittal is seen as a failure. But this vision is misguided: the very structure of the trial requires different narratives, complexities, and nuances. One of the strengths of the trial lies in the fact that it offers a forum where contradiction and contestations are tested. This is required by procedural fairness. Second, there's a healthy tension between adversarial features and inquisitorial elements: trials live through the experience of testimony, namely, contact and exposure to witnesses or victims, but they require management by judges. We will study their role in the next video.
