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VI) DEFENSES

a) Alibi and special defenses

i) excerpts from Rule 67, ICTR Rules of Procedure and Evidence: reciprocal disclosure of evidence

“(A) As early as reasonably possible and in any event prior to the commencement of the trial:

ii) the defence shall notify the Prosecutor of its intent to enter:

(a) The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

(b) Any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.

(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on any of the above defences.”

ii) burden of proof for alibi defense

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 234: “[T]he burden of proof rests upon the Prosecution to prove its case beyond a reasonable doubt in all aspects notwithstanding that the Defence raised alibi.  After all, the accused is presumed innocent until the Prosecution has proved his guilt under Article 20(3) of the Statute.  The accused is only required to raise the defence of alibi and fulfil the specific requirements of Rule 67(A)(ii) of the Rules.”

iii) notice for alibi defense

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 235-239: Rule 67 required the Defense “to notify the Prosecution about their intent to rely upon the defence of alibi.”  In the case at hand, the defense did not inform the prosecutor prior to the commencement of trial and the prosecutor filed a motion requesting compliance with Rule 67(A)(ii).  The Chamber held that “where good cause is not shown, for the application of Rule 67(B), the Trial Chamber is entitled to take into account this failure when weighing the credibility of the defence of alibi and/or any special defences presented.”  In the case at hand, the Chamber held that “despite the non-compliance with its order” it would “consider the defence of alibi.” 

iv) rebuttal for alibi defense

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 239-240: Rule 85 permits the Prosecution to bring evidence to rebut the alibi.  The Chamber noted that they “will accord no extra weight to the accused's defence of alibi merely because the Prosecution did not call witnesses in rebuttal.”