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F. Audio Recordings

Definition

Audio recordings are recordings 'made on any disc, tape or other device on which sounds are recorded so as to be capable of being reproduced'.1 For the purposes of these Guidelines, audio recordings are not intercepted.

F1. Instead of excerpts, audio recordings should be submitted in their entirety.

Keywords

procedure; excerpts

Submission of full recordings, transcripts, and translations assist judges in contextualising the segments of the recording identified by the party seeking admission as being most relevant.2 The ICC Trial Chamber in Bemba refused to admit the audio recording of a monologue attributed to the Secretary-General of the Movement for the Liberation of the Congo because '[t]he recording is clearly an excerpt and not a full interview or even a full answer to a question on a relevant matter in this case'.3

Excerpts. If a party seeks to tender excerpts, additional excerpts may be tendered to assist judges in contextualising the segments sought to be admitted. The ICC Trial Chamber in Bemba held that an excerpt of a Radio France Internationale (RFI) broadcast could be admitted only if the Trial Chamber were 'provided with sufficient information in order to verify [that] this brief excerpt actually emanates from RFI or one of its reports or correspondents'.4

F2. Audio recordings of media broadcasts are relevant if they refer to events that took place during the time period relevant to the charges and are contemporaneous with the events.

Keywords

relevance; media broadcasts; contemporaneity

Audio recordings of media broadcasts should be contemporaneous to the events they purport to demonstrate. The ICC Trial Chamber in Bemba found that audio recording CAR-OTP-0031-0099 (a Radio France Internationale programme concerning the situation in the Central African Republic (CAR) dated 5 December 2002) was relevant to the case as it referred to 'events that allegedly took place in the CAR during the time period relevant to the charges' and it was contemporaneous with the events.5

F3. Portions of audio recordings containing opinion evidence are not admissible.

Keywords

relevance; opinion evidence; admissibility

Segments of an audio recording containing opinion evidence are not admissible, although the remainder of the information in the recording may nevertheless be deemed relevant. The SCSL in Taylor partially admitted Clip 14 (an audio recording of a BBC interview with a reporter about 3000 Sierra Leonean refugees fleeing from the northern regions of Sierra Leone) and excluded the segments consisting of the reporter's own opinion rather than the objective facts.6

Accounts of Persons Interviewed. Audio recordings containing the accounts of persons interviewed may be considered for limited purposes (such as corroborating other evidence), to be determined on a case-by-case basis. The ICC Trial Chamber in Bemba held that recording CAR-OTP-0031-0099 (a Radio France Internationale programme concerning the situation in the Central African Republic dated 5 December 2002) could 'serve to corroborate other pieces of evidence and might be examined when assessing the prosecution's allegation that the conduct described in the charges was widely broadcast which, according to the prosecution, may have implications with regard to the accused's alleged knowledge of the crimes charged.'7 In light of the envisioned limited usage of the information contained in the recording, the ICC Trial Chamber was of the view that there was no reason to believe that the admission of this recording would have a prejudicial effect on a fair trial, and admitted it into evidence.8 Similarly, the ICC Trial Chamber found that recording CAR-OTP-0031-0104 (an audio recording of four tracks of a news programme and one interview) could also be admitted for the limited purpose of corroborating 'other pieces of evidence'.9

F4. Audio recordings can be admitted into evidence if prima facie authenticity is demonstrated by providing information about the date, the author, the source, and/or the chain of custody.

Keywords

relevance; probative value; prejudice; reliability; chain of custody

Prima facie authenticity must be demonstrated before audio recordings can be admitted into evidence. The ICC Trial Chamber in Bemba noted that 'unless the [Radio France Internationale (RFI) audio recording] bears sufficient indicia that it is what it purports to be (in this case, an RFI transmission), the prosecution must also provide information on its source, originality and integrity'.10 Since this information was absent, the probative value of the recording 'was outweighed by its potentially prejudicial effect on a fair trial' and its admission was rejected.11

Open Source Audio Recordings of Media Broadcasts. The ICC Trial Chamber in Bemba held that where the audio recording of an interview lacks a date and contains no questions, the tendering party must provide sufficient information to identify the recorded voice and 'to confirm the date, circumstances and context in which the recording was created'.12 In the absence of such information, the ICC Trial Chamber found that it could not afford probative value to audio recording CAR-DEF-0001-0830, which the Prosecution alleged was a monologue of the Secretary-General of the Movement for the Liberation of the Congo.13

Moreover, in the context of the ICTY proceedings against Mladić, and pursuant to Rule 89(D) of the ICTY Rules of Procedure and Evidence,14 '[the] Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial'. Nevertheless, open source audio recordings may be admitted if counsel show with sufficient clarity and specificity the relevance and probative value of these documents, and how they fit into the case.15 In Mladić, the ICTY Prosecution requested the admission of open source local and international radio news reports from the bar table.16 The Defence objected to their admission on the grounds that they originated from an open source and as such the author was unknown, rendering the Defence unable to challenge the content of the material, and that it was unclear whether the source heard the information from others.17 The ICTY Trial Chamber found that the general Defence submissions in relation to the origin of these documents were insufficient to successfully challenge their probative value, or preclude admission pursuant to Rule 89(D) of the Rules. Having considered the documents in this category, the Chamber was satisfied that the Prosecution had shown with sufficient clarity and specificity the relevance and probative value of each of these documents, and how they fit into its case.18

F5. Insufficient authentication goes to the weight of audio recordings rather than their admissibility.

Keywords

relevance; probative value; hearsay; admissibility

Pursuant to Rule 92 bis of the SCSL Rules of Procedure and Evidence, a Chamber may, in lieu of oral testimony, admit information including written statements and transcripts that do not go to proof of the acts and conduct of the accused. Such information should be 'relevant to the purpose for which it is submitted and its reliability should be susceptible of confirmation'.19 Audio recordings that are insufficiently significant, cumulative and/or hailing from anonymous or hearsay sources may nevertheless be admitted. Consequently, the Defence in Taylor argued before the SCSL that audio recordings of BBC radio broadcasts were inadmissible.20 However, the SCSL Trial Chamber admitted the audio evidence under Rule 92 bis and held that the Defence objection went to weight and not admissibility.21

  1. 'audio recording' (Law Insider) \<https://www.lawinsider.com/dictionary/audio-recording> accessed 21 January 2022. ↩

  2. Prosecutor v Ntaganda (Decision on second Defence request for admission of evidence from the bar table) ICC-01/04-02/06-136 (21 February 2018) (TC VI) [10]. ↩

  3. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [83]. ↩

  4. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [122]. ↩

  5. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [123]. ↩

  6. Prosecutor v Taylor (Decision on Prosecution Motion for Admission of BBC Radio Broadcasts) SCSL-03-01-T-745 (25 February 2009) (TC II) [27]. The following portions constituted opinion evidence: '(i) when speaking of refugees being taken to clinics, the report (Cillah) says "I mean, where they're giving treatment and sustain treatment just to get them relaxed and refreshed;" (ii) when reporting of the abduction of a number of young men and women, Cillah ventures this opinion: "I mean these obviously are going to be retrained to fight on the side of the rebels;" (iii) speaking of people killed in the attacks, Cillah says "it would appear that particularly in Port Loko, these rebels, they targeted senior functionaries of government or otherwise senior supporters of the ruling SLPP party;" (iv) answering a question about people fleeing into Guinea from Sierra Leone, Cillah says "it would appear that these refugees are now stopping at the last Sierra Leonean town of Kambia and adopting a wait-and-see attitude as to whether they should come into Guinean territory or go back to their homes".' ↩

  7. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [101]. ↩

  8. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [123]-[124]. ↩

  9. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [125]-[126]. ↩

  10. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [122]. ↩

  11. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [122]. ↩

  12. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [84]. ↩

  13. Prosecutor v Bemba (Public Redacted Version of "Decision on the Prosecution's Application for Admission of Materials into Evidence Pursuant to Article 64(9) of the Rome Statute" of 6 September 2012) ICC-01/05-01/08-2299-Red (8 October 2012) (TC III) [82], [84]. ↩

  14. cf Article 69(4) of the Rome Statute. ↩

  15. Prosecutor v Mladić (Decision on Prosecution Motion for Admission of Documents from the Bar Table (Municipalities Component)) IT-09-92 (11 February 2014) (TC) [9]. ↩

  16. Prosecutor v Mladić (Decision on Prosecution Motion for Admission of Documents from the Bar Table (Municipalities Component)) IT-09-92 (11 February 2014) (TC) [1]. ↩

  17. Prosecutor v Mladić (Decision on Prosecution Motion for Admission of Documents from the Bar Table (Municipalities Component)) IT-09-92 (11 February 2014) (TC) [7]. ↩

  18. Prosecutor v Mladić (Decision on Prosecution Motion for Admission of Documents from the Bar Table (Municipalities Component)) IT-09-92 (11 February 2014) (TC) [8]. ↩

  19. Rule 92 bis of the SCSL Rules of Procedure and Evidence. ↩

  20. Prosecutor v Taylor (Decision on Prosecution Motion for Admission of BBC Radio Broadcasts) SCSL-03-01-T-745 (25 February 2009) (TC II) [7]. ↩

  21. Prosecutor v Taylor (Decision on Prosecution Motion for Admission of BBC Radio Broadcasts) SCSL-03-01-T-745 (25 February 2009) (TC II) [27]-[28]. ↩