Former president Rodrigo Duterte’s defense team has asked the International Criminal Court to reduce the prosecution’s 62,130 disclosed evidence items “up to an absolute maximum of 10,000,” saying a large portion is irrelevant, duplicated, illegible or otherwise unusable.
In a Sept. 25 filing made public on Saturday, lead defense counsel Peter Haynes asked Trial Chamber III to order the prosecution to complete the reduction by Oct. 7, less than two months before Duterte’s trial is scheduled to begin on Nov. 30.
The proposed ceiling would remove 52,130 items, or 83.9% of the current disclosure. The 62,130 items are also nearly 12 times the 5,275 items initially disclosed when the charges against Duterte were confirmed in April.
“A reduction from 62,130 to 10,000 is significant,” the defense said, proposing that prosecutors first exclude material from a large dataset, as well as “any unverified, duplicative, illegible, repetitive, or irrelevant material, which should never have been included in the first place.”
It said the proposed 10,000-item record should include incriminating and exculpatory evidence, as well as material disclosed under Rule 77 that the defense may inspect.
‘Unworkable’ record
The defense said the problem went beyond the sheer number of files.
“The current case record is unworkable, and is of a quality that falls far below the standard expected in any criminal trial,” it said.
It argued that the problems would slow the presentation of evidence in court and hamper the parties’ preparation outside the courtroom.
“In ordinary circumstances, the trial date would be vacated as the appropriate remedy,” the defense said. “In this case, time is of the essence.”
The defense also acknowledged that its proposed remedy could disadvantage Duterte because it would receive a reduced prosecution disclosure only weeks before the deadline for filing its trial brief.
But it said a manageable case record was more important, given what it described as the “impenetrability” of the current disclosure and the difficulty of preparing for trial.
The defense accused the prosecution of failing to properly “triage” the material before disclosure, leaving its lawyers to determine which evidence was relevant and usable.
“The defense has no ability to read this volume of evidence prior to trial,” the lawyers said.
They added that even a cursory review showed that much of the material had “extremely limited or no relevance” to the charges.
The defense also cited inaccurate metadata, illegible files and missing translations or transcripts. Haynes had earlier described the disclosure as being in a “terrible mess.”
The prosecution has disputed the defense’s characterization as exaggerated, while acknowledging that some duplication and other problems may exist.
Fair-trial concerns
The defense is not asking the chamber to erase the entire disclosure. It wants the prosecution to present a substantially smaller set at trial while allowing the defense to retain access to the full collection.
The lawyers said they would still have to “read, watch, listen to, review and tag” the more than 62,000 original items.
Lawyer Romel Bagares, professor of international law and a former counsel of the Philippine Coalition for the ICC, said the defense was essentially arguing that the prosecution had overwhelmed it with evidence delivered in a disorganized manner, raising a fair-trial concern.
But Bagares said the size of the disclosure alone does not establish improper dumping.
A large evidence record is expected in a case such as Duterte’s because prosecutors must establish not only the alleged killings but also the broader attack required to prove crimes against humanity and Duterte’s alleged connection to that attack, he said.
The prosecution also has a legal duty under ICC procedures to disclose material in its possession that could help the defense or undermine its own case, Bagares noted.
Thus, the fact that the prosecution disclosed more material than it intends to present at trial does not by itself show that it improperly dumped evidence on the defense.
“What is not explained by the scale of the charges,” Bagares said, is the defense allegation that thousands of items were late or wrongly labeled, illegible, duplicated, untranslated or separated from their original documents.
If established, he said, those problems could affect the defense’s ability to prepare for trial.
“Ang reklamo ay basta na lang daw sila tinambakan ng mga dokumento na walang maayos na pagkakakilanlan tapos labas pa sa tamang panahon na binigay ng korte,” Bagares said.
Earlier, the Trial Chamber III, headed by Judge Joanna Korner, has cautioned the parties against a “wholesale dumping” of case records.
Other evidence fights
The evidence-count dispute comes as the parties continue to clash over what may be presented at trial.
The defense has asked the chamber to reject the prosecution’s proposal to introduce eight additional incidents involving alleged killings, arguing that these go beyond the facts and circumstances covered by the charges confirmed by the Pre-Trial Chamber.
The prosecution, led by acting prosecutor Mame Mandiaye Niang, has disagreed, saying the additional incidents remain within the scope of the charges, which cover alleged killings in the Philippines by members of a “national network.”
The defense has also challenged the admission of a prior statement by witness P-1100, whom prosecutors say has information about the alleged “neutralization policy” and the Davao Death Squad.
Duterte is charged with three counts of crimes against humanity involving killings allegedly committed between 2011 and 2019. The charges were confirmed by Pre-Trial Chamber I in April.
With the Nov. 30 trial date approaching, the chamber still has to settle disputes over the evidence, witnesses and additional incidents that may be presented.