Archive/File: imt/tgmwc/tgmwc-01/tgmwc-01-09.08
Last-Modified: 1999/09/04


And now I wish to submit an additional motion:-

Should the Tribunal consider defendant Hess fit to plead -
which, in my opinion, would be contrary to the opinion
expressed in the medical reports - I request that a further
medical test be made in order to investigate the question
once more, for, as I have seen from the reports, each of the
doctors examined and talked to the defendant for only a few
hours during one day (during two days in one case). In a
case as outstanding as this one, it seems to me, that, in
order to obtain a complete picture of the defendant's case,
it would be advisable to place him in a suitable hospital,
for an examination over an extended period of time, in order
to obtain a reliable picture based on several weeks of
observation. The experts themselves are, obviously, not
quite sure whether defendant Hess is mentally ill, apart or
beyond the admitted unfitness to plead, This clearly emerges
from the fact that all the medical statements emphasise that
should the accused, when called upon by the Court, not be
considered fit to plead, he should again be subjected to a
psychiatric examination. I think this course should be
followed in accordance with the suggestion made by the
psychiatrists who have already examined him. I should
therefore request - in case the Tribunal considers the
defendant fit to plead - that the suggestion of the
psychiatrists who have already examined him be followed, and
that another medical opinion be obtained.

THE PRESIDENT: I want to ask you one question: Is it not
consistent with all the medical opinions that the defendant
is capable of understanding the course of the proceedings,
and that the only defect from which he is suffering is
forgetfulness about what happened before he flew to England?
DR. VON ROHRSCHEIDT: Mr. President, it is true that the
experts find defendant Hess capable of following the
proceedings. But when answering the questions put to them
they emphasise on the other hand, that the defendant is
incapable of defending himself. The Tribunal asked the
experts to give their opinion on the following questions,
and I beg to read them again: "Is the defendant mentally
healthy or not?" The question was answered in the
affirmative by all experts, i.e., that he is not mentally
ill, which does not, however, exclude the fact that the
defendant might, at this moment, be incapable of pleading.
This is borne out again by the answer of the experts to the
next question: "Is the defendant mentally capable of
following the proceedings so as to adequately defend
himself, to understand a witness he wishes to repudiate, and
to comprehend evidence submitted?" This is the wording of
the translation in my possession. It seems to me that this
question is answered by the experts, to the effect that the
defendant is incapable of suitably defending himself, of
rejecting a witness he wishes to repudiate and of
comprehending evidence submitted. That I consider is
contained in all the experts' reports with the exception of
the report given by the Russians.
Looking at the report given by the Franco-American
delegation, if I may submit that to the Court, dated 20th
November, it is stated under G, "as a result of our
examination and investigations, we find that Hess is
suffering from hysteria which partly manifests itself in a
loss of memory." Now I come to the passage to which I should
like to draw the Court's attention, "The loss of memory is
of a kind that will not impair his understanding of the
proceedings, but will do so with regard to his reactions to
questions about his past, which would reduce the weight of
his defence."

This report thus establishes that Hess's defence will be
impaired. And I believe that the experts' admission "that
his memory is affected" means that his fitness to plead is
greatly reduced. The report of the Soviet-French delegation,
signed by the Russian professors and Professor Delay, goes
even further in stating that, although the defendant is able
to comprehend all that happens around him, amnesia affects
his capacity to defend himself and to understand details of
the proceedings, and that this amnesia must be considered an
impediment. If one

                                                  [Page 299]

is to interpret this report in the spirit of the doctors who
wrote it, it clearly means that the defendant is not insane,
that he can follow the proceedings - to all appearances -
but that he cannot defend himself, as he is suffering from a
credible form of amnesia based on hysteria.

THE TRIBUNAL (Mr Biddle): Do you accept the opinion of the
experts?

DR. VON ROHRSCHEIDT: Yes.

THE TRIBUNAL (GENERAL NIKITCHENKO): I should like to draw
the attention of the defence counsel to the fact that he has
referred inaccurately to the decision reached by the Soviet
and French experts. He has rendered this decision in a free
translation which does not correspond to the original
content.

DR. VON ROHRSCHEIDT: May I ask whether the report of 16th
November is meant? May I once more read what my translation
says? I can only refer to the translation of the English
text that was given to me. This translation was made in the
Translation Division of the Secretariat and handed over to
me in this shape.

May I repeat that the translation in my possession refers to
the report of 16th November, 1945, which was signed by
members of the Soviet delegation and by Professor Delay of
Paris?

Under Point 3 of this report the following is stated:

"The defendant is not insane in the strict sense of the word
at present. His amnesia does not prevent him from following
everything that is going on around him. But it affects his
capacity to defend himself and to understand all details of
the defence which might be presented as actual facts." That
is the text which I have here before me in the authentic
German version.

THE PRESIDENT: That is all we wish to ask you. Does the
Chief Prosecutor for the United States wish to address the
Tribunal?

MR. JUSTICE JACKSON: I think General Rudenko would like to
open discussion, if that is agreeable.

THE PRESIDENT: Yes. Are you going on?

GENERAL RUDENKO: In connection with the statement made by
the defence counsel acting for Hess, concerning the results
of the evidence regarding Hess' certified psychological
condition, I consider it essential to make the following
declaration: his psychological condition was certified by
experts appointed by the Tribunal. These experts appointed
by the Tribunal came to the unanimous conclusion that he is
sane and responsible for his actions. The chief prosecutors
after discussing the results of the decision and acting in
accordance with the order of the Tribunal, replied as
follows to the inquiry of the Tribunal: First of all, we
have no questions to ask, no doubts to cast on the
Commission. We consider that the defendant, Rudolf Hess, is
perfectly able to stand his trial. This is the unanimous
statement made by the chief prosecutors.

THE PRESIDENT (interposing): Will you speak more slowly,
please?

GENERAL RUDENKO: I consider that the findings of the experts
are quite sufficient to declare Hess sane and able to stand
his trial. We therefore request the Tribunal to make the
requisite decision this very day.

The defence counsellor, in his statement, when submitting to
the Tribunal his reasons either for the postponement of the
proceedings or for the settlement of the defendant's case,
refers to the decision of the experts. I must, however,
declare that this decision (and I do not know on what
principle it was reached) has been quoted absolutely
inaccurately. In the summary submitted by the defence
counsel it is pointed out that the mental condition of the
defendant Hess did not permit him to defend himself, to
reply to the witnesses or to understand all the details of
the evidence. This is contrary to the decision submitted by
the experts, in their statement. The final conclusion of the
experts definitely states that a similar loss of memory
would not entirely prevent him from understanding the trial,
but would preclude the possibility of defending himself and
of remembering particulars of the past. I consider that
these particulars, which Hess is

                                                  [Page 300]

unable to remember, would not interest the Tribunal unduly.
The most important point is that which was emphasised by the
experts in their decision, a point which they never doubted
themselves and which, incidentally, was never doubted by
Hess' defence counsel, namely, the fact that Hess was sane,
in which case he, Hess, comes under the jurisdiction of the
International Tribunal. On the strength of the above-
mentioned data, I consider that the petition of the defence
should be declined as being devoid of foundation.

SIR DAVID MAXWELL FYFE: May it please the Tribunal:

It has been suggested that I might say just a word, and as
shortly as the Tribunal desires, as to the legal conceptions
which govern the position in which the Tribunal and this
defendant are placed at the present time.

The question before the Tribunal is whether this defendant
is able to plead to the Indictment, and should be tried at
the present time.

If I might very briefly refer the Tribunal to the short
passages in the report, which I submit are relevant, it
might be useful at the present time. According to the
attachments to the order, which I have, the first report is
that signed by the British doctors on the 19th November,
1945. And in that report, I beg the Tribunal to refer to
paragraph 3, in which the signatories say: "At the moment he
is not insane in the strict sense. His loss of memory will
not entirely interfere with his comprehension of the
proceedings, but it will interfere with his ability to make
his defence and to understand details of the past, which
arise in evidence."

The next report is that signed by the American and French
doctors, and in paragraph I, the Tribunal will see: "We
find, as a result of our examinations and investigations,
that Rudolf Hess is suffering from hysteria, characterised
in part by loss of memory. The nature of this loss of memory
is such that it will not interfere with his comprehension of
the proceedings, but it will interfere with his response to
questions relating to his past, and will interfere with his
undertaking his defence."

If the Tribunal will proceed to the third report, signed by
the Soviet doctors, at the foot of page 1, of the copy that
I have, there is a paragraph beginning "Psychologically - ",
which I submit is of importance - "Psychologically, Hess is
in a state of clear consciousness. He knows that he is
imprisoned at Nuremberg, under Indictment as a War Criminal;
has read and, according to his own words, is acquainted with
the charges against him. He answers questions rapidly and to
the point. His speech is coherent. His thoughts are formed
with precision and correctness and they are accompanied by
sufficient emotionally expressive movements. Also, there is
no kind of evidence of paralogism. It should also be noted
here, that the present psychological examination, which was
conducted by Lieut. Gilbert, Doctor of Medicine, bears out
the testimony, that the intelligence of Hess is normal and
in some instances, above average. His movements are natural
and not forced."

Now, if I may come to the next report, I am sorry - the
report which is signed by the three Soviet doctors, and
Professor Delay of Paris, dated the 16th, which is the last
in my bundle; that says in paragraph 3:

"At present he is not insane in the strict sense of the
word. His amnesia does not prevent him completely from
understanding what is going on around him, but it will
interfere with his ability to conduct his defence and to
understand details of the past, which would appear as
factual data."

I refer, without quoting, because I do not consider that
they are of such importance at this point, to the
explanation of the kind and reason of the amnesia which
appeared in the Soviet report, dated the 17th November,
under the numbers one, two and three, at the end of the
report. But I remind the Tribunal that all these reports
unite in saying that there is no form of insanity.

In these circumstances, the question in English Law, and I
respectfully submit that to the consideration of the
Tribunal as being representative of natural justice

                                                  [Page 301]

in this regard, is, in deciding whether the defendant is fit
to plead, the issue is whether the defendant be insane or
not, and the time which is relevant for the deciding of that
issue is at the date of the arraignment and not at any prior
time.

Different views have been expressed as to the party on whom
the onus of proof lies in that issue, but the later, and
logically the better view, is that the onus is on the
defence, because it is always presumed that a person is sane
until the contrary is proved.

Now, if I might refer the Court to one case which I suspect,
if I may so use my mind, has not been absent from the
Court's mind, because of the wording of the notice which we
are discussing to-day, it is the case of Pritchard in 7
Carrington and Pike, which is referred to in Archibold,
Criminal Pleading on the 1943 edition, at page 147:

In Pritchard's case, where a prisoner arraigned on an
indictment for felony appeared to be deaf, dumb, and also
not of sane mind, Baron Alderson put three distinct issues
to the jury, directing the jury to be sworn separately on
each: (1) whether the prisoner was mute of malice, or by the
visitation of God, (2) whether he was able to plead, (3)
whether he was sane or not. And on the last issue they were
directed to inquire whether the prisoner was of sufficient
intellect to comprehend the course of the proceedings of the
trial so as to make a proper defence, to challenge a juror,
that is, a member of the jury, to whom he might wish to
object, and to understand the details of the evidence; and
he directed the jury that if there was no certain mode of
communicating to the prisoner the details of the evidence,
so that he could clearly understand them, and be able
properly to make his defence to the charge against him, the
jury ought to find that he was not of sane mind.

I submit to the Tribunal that the words there quoted, "to
comprehend the course of the proceedings of the trial so as
to make a proper defence", emphasise that the material time,
the only time which should be considered, is whether at the
moment of plea and of trial the defendant understands what
is charged against him, and the evidence by which it is
supported,

THE PRESIDENT: And does not relate to his memory at that
time.

SIR DAVID MAXWELL FYFE: That is, I respectfully agree with
your Lordship, it does not relate to his memory. It has
never, in English jurisprudence, to my knowledge, been held
to be a bar either to trial or punishment, that a person who
comprehends the charge and the evidence, has not got a
memory as to what happened at the time. That, of course, is
entirely a different question which does not arise either on
these reports or on this application, as to what was the
defendant's state of mind when the act was committed. No one
here suggests that the defendant's state of mind when the
action charged was committed was abnormal, and it does not
come into this case. ,

THE PRESIDENT: He will, it seems to me, be able to put
forward his amnesia as part of his defence.

SIR DAVID MAXWELL FYFE: Certainly, my Lord.

THE PRESIDENT: And to say, "I should have been able to make
a better defence if I had been able to remember what took
place at the time."

SIR DAVID MAXWELL FYFE: Yes, Sir. If I might compare a very
simple case within my experience, and I am sure within the
experience of members of the Court where this has arisen
scores of times in English courts, after a motor accident
when a man is charged with manslaughter or doing grievous
bodily harm, he is often in the position of saying, "because
of the accident, my memory is not good, or fails as to the
exact charge". That should not, and no one has ever
suggested that it could be a matter of relief from criminal
responsibility. I hope that the Tribunal will not think that
I have occupied too much of their time, but I thought it was
useful just to present the matter on the basis of the
English law as I understand it.


                                                  [Page 302]

THE TRIBUNAL (Mr. Biddle): As I understand you, one of the
tests under the Pritchard case is whether or not the
defendant can make a proper defence?

SIR DAVID MAXWELL FYFE: With the greatest respect, will the
learned judge read the preceding words which limit it? They
say, "Whether a prisoner was of sufficient intellect to
comprehend the course of the proceedings of the trial so as
to make a proper defence."

THE TRIBUNAL (Mr. Biddle): And would you interpret that to
mean that this defendant could make a proper defence under
the procedure of the trial, if you also find as a fact,
which you, I think, do not dispute, and which you quoted in
fact, that although not insane - now I quote: "He did not
understand, or rather his amnesia does not prevent him
completely from understanding, what is going on around him
but it will interfere with his ability to conduct his
defence, and understand details of the past." You don't
think that is inconsistent with that finding?

SIR DAVID MAXWELL FYFE: No, I am submitting it is not. It is
part of his defence, and it may well be "I don't remember
anything about that at all." And he could actually add to
that: "From my general behaviour or from other acts which I
undoubtedly have done, it is extremely unlikely that I
should do it." That is the defence which is left to him. And
he must take that defence, and that is my submission.

THE TRIBUNAL (Mr. Biddle): So even if we assume for the
purpose of argument that his amnesia is complete, and that
he remembers nothing that occurred before the indictment,
though now understanding the proceedings, you think he
should be tried?

SIR DAVID MAXWELL FYFE: I submit he should be tried. That is
my submission as to the legal position. I especially did not
discuss of course - the Tribunal will appreciate that - I
did not discuss the quantum of amnesia here, because I am
not putting that to the Tribunal, I wanted to put before the
Tribunal the legal basis on which this application is
opposed. Therefore I accept readily the extreme case which
the learned American judge put to me.

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