Both sides in the International Criminal Court (ICC) case against former President Rodrigo Duterte have sought adjustments to the rules on how evidence will be presented before the 30 November trial begins. The Trial Chamber III is expected to rule on these requests as it sets the final procedural framework.

The defense wants to move away from a purely paper-based evidence system toward a hybrid approach, one that blends document submissions with more active evidentiary proceedings, modeled on the procedure followed in another ICC case.

They argued that a stricter submission-only regime would shortchange the defense in its ability to test whether the prosecution has actually met its burden of proof.

The rules the chamber will adopt will control how much the defense can contest the prosecution’s evidence before it is formally admitted, a potentially significant lever in a case where witness testimony and documentary evidence of command responsibility will be fiercely disputed.

It maintained that an overly admissibility-focused system would prevent the case record from being “overburdened with material of questionable relevance or limited probative value.”

The defense also asked the chamber to require the prosecution to provide detailed breakdowns of all witnesses who will rely on prior transcribed interviews, citing concerns over the volume and complexity of such material.

It noted that the chamber itself had previously raised concerns over lengthy suspect interviews forming part of the prosecution’s witness evidence.

“These breakdowns would help in clarifying the anticipated content and scope of witnesses’ testimonies, facilitating the early identification of issues in dispute,” the defense said.

Weighing evidence

On witness examination, the defense proposed that a party’s decision not to confront a witness on every aspect of its case should not automatically lead the chamber to disregard impeachment evidence or give it reduced weight.

Instead, it said the chamber should retain the discretion to determine whether witnesses had sufficient opportunity to address disputed matters and how much weight to give to such evidence.

The defense further proposed discouraging what it called the “wholesale introduction” of documentary material through witnesses whose testimonies relate only to limited portions of it, citing call data records, reports, long videos, and electronic messages.

It said a clearer guidance on this issue would help avoid repeated litigation over evidentiary disputes during trial.

The defense likewise asked the chamber to direct the ICC Registry to provide monthly disclosure updates in the form of metadata packages covering all the evidence proferred in court, saying this would ensure consistency across databases and allow parties to track the evidentiary record from the earliest stages of the proceedings.

Deadlines set

In a filing before the chamber, Deputy Prosecutor Mame Mandiaye Niang proposed that applications under Rule 68(2) of the ICC Rules of Procedure and Evidence, covering prior recorded testimony of witnesses, be submitted on a “rolling basis” but not later than 30 September.

For Rule 68 (3) applications involving other forms of witness testimony, the prosecution proposed separate deadlines: 30 October for witnesses expected to testify in 2026, and a final 30 October cut-off for the remaining applications.

The prosecution said the staggered timelines are necessary due to what it described as the “heavy workload” of having to complete remaining pre-trial obligations, including the disclosure of evidence, submission of the trial brief, and final lists of witnesses and exhibits, all of which are due by 31 August.

It also noted that the 31 August deadline is already one month earlier than the previously proposed deadline for completing pre-trial steps.

“The Prosecution submits that a deadline closer to the commencement of trial would be beneficial as the applications will contain more current information regarding the witnesses’ security situation,” it said in its filing.

The prosecution further proposed that applications for in-court protective measures be filed by 30 October, or at least one month before the start of trial, citing the need for updated assessments of witness security conditions.

It disclosed that the defense did not agree to earlier proposed deadlines for Rule 68 applications and took no position on the proposed schedule for protective measures. At the same time, the legal representatives of the victims expressed support for the prosecution’s timetable.

The ICC Pre-Trial Chamber I confirmed the charges against Duterte on 23 April, after which the ICC constituted Trial Chamber III on 28 April to hear the merits of the case.