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The Transformation of Human Rights Fact-Finding$
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Philip Alston and Sarah Knuckey

Print publication date: 2016

Print ISBN-13: 9780190239480

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780190239480.001.0001

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Implications of Trauma on Testimonial Evidence in International Criminal Trials

Implications of Trauma on Testimonial Evidence in International Criminal Trials

Chapter:
(p.213) 11. Implications of Trauma on Testimonial Evidence in International Criminal Trials
Source:
The Transformation of Human Rights Fact-Finding
Author(s):

Laura Marschner

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190239480.003.0011

This chapter analyzes how international criminal courts and tribunals have addressed the difficulties posed by testimony by survivors affected by psychological trauma. Based on a review of relevant psychological research, selected case law and the tribunals’ legal frameworks, it addresses the challenges of examining traumatized witnesses at trial, focusing in particular on the compatibility of protective and support measures with the right to confrontation, a core tenet of the criminal trial. Balancing the rights of witnesses and the fair trial rights of the accused, however, does not violate the right to examine witnesses provided that strict proportionality standards are applied. Consideration is given to the way international criminal courts have considered the potential effects of trauma on memory and witness narrative. Psychological research on the impact of trauma on memory and on the ability to conform to assumptions about credibility and reliability are outlined and contrasted with the pertinent jurisprudence.

Keywords:   trauma, testimonial evidence, witness support measures, rights of accused, memory

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