Archive/File: imt/tgmwc/tgmwc-01/tgmwc-01-09.09
Last-Modified: 1999/09/04

THE TRIBUNAL (M. de Vabres): I ask in what period the real
amnesia of Hess applies. He pretends to have forgotten facts
which occurred more than fifteen days ago. It may be
simulation or, as they say in the report, it may be real
simulation. I would like to know if according to the reports
Hess has really lost his memory of facts, which are referred
to in the Indictment, facts which pertain to the part
covered by the Indictment.

SIR DAVID MAXWELL FYFE: The facts which are included in the
Indictment, the explanations that the doctors give as to his
amnesia, are most clearly set out in these paragraphs of the
Soviet report, that is the third report dated the 17th of
November, 1945, page two, and the numbered paragraphs one to
three. They say first:

    "In the psychological personality of Hess there are no
    changes typical of the progressive schizophrenic
    disease. That is, there are no changes typical of a
    progressive double personality developing, from which
    he suffered periodically while in England. I am sorry,
    therefore, the delusions from which he suffered
    periodically while in England cannot be considered as
    manifestations of a schizophrenic paranoia, and must be
    recognised as the expression of a psychogenic paranoia
    reaction, that is, the psychologically comprehensible
    reaction."

Now I ask the learned French judge to note the next
sentence. "Of an unstable personality to the situation, the
failure of his mission, arrest and incarceration. Such is
the interpretation of the delirious statements of Hess in
England, as bespoken by the disappearance, appearance, and
repeated disappearance, depending on external circumstances
which affected the mental state of Hess."

Paragraph two: "The loss of memory by Hess is not the result
of some kind of mental disease, but represents hysterical
amnesia, the basis of which is a subconscious inclination
towards self-defence." Now I ask the learned French

                                                  [Page 303]

judge to note again the next words: As well as a deliberate
and conscious tendency towards it." Such behaviour often
terminates when the hysterical person is faced with an
unavoidable necessity of conducting himself correctly.
Therefore the amnesia of Hess may end upon his being brought
to trial."

Three: "Rudolf Hess, prior to his flight to England, did not
suffer from any kind of insanity, nor is he now suffering
from it. At the present time he exhibits hysterical
behaviour with signs of - and again I ask the learned French
judge to note this point - with signs of a conscious
intentional simulated character, which does not exonerate
him from responsibility under the Indictment.

The last sentence is a matter for the Tribunal. But in these
circumstances it would be impossible to say that the amnesia
may continue to- be complete or is entirely unconscious.
That is deliberately avoided by the learned doctors.
Therefore the prosecution do not say that that is the case,
but they do say that even if it were complete, the legal
basis which I have suggested to the Court is a correct one
for action in this matter.

THE PRESIDENT: Thank you, Sir David. Would Doctor
Rohrscheidt like to add anything by way of reply? One
moment: Mr Justice Jackson, I gathered from what Sir David
said that he was speaking on behalf of you and of the French
prosecution. Is that correct?

MR. JUSTICE JACKSON: I intend to adopt all that he said. I
would only add a few more words, if I may.

THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has
something to say first of all.

MR. JUSTICE JACKSON: I adopt all that has been said, and
will not repeat. We have three applications before the
Tribunal. One is for another examination. I will spend very
little time on that. I think that we have made, up to this
point in the examination, medical history in having seven
psychiatrists from five nations who are completely in
agreement. An achievement of that kind is not likely to be
risked.

The only reason suggested here is that a relatively short
time has been devoted to the examination, but I suggest to
your Honour that that is not the situation, because there
have been available the examinations and observations and
medical history during the incarceration of Hess in England,
extending from 1941, and the reports of the psychiatrists of
the American Forces since he was brought to Nuremberg, and
they all agree. So that there is a more complete medical
history in this case than in most cases.

The next application was as to trial in absentia. I shall
spend no time on that, for there seems to be no occasion for
trying Hess in absentia if he should not be tried in his
presence. If he is unable to be tried, why, he simply should
not be tried at all. That is all I can see to it.

I would like to call your attention to the one thing in all
this, the one statement on which any case can be made here
for postponement. That is the statement with which we all
agree: That Hess' condition will interfere with his response
to questions relating to his past, and will interfere with
his undertaking his defence. Now, I think it will interfere
with his defence if he persists in it, and I am sure that
Counsel has a very difficult task. But Hess has refused the
treatment, and I have filed with the Court the report of
Major Kelly, the American psychiatrist, in whose care he was
placed immediately after he was brought here.

He has refused every simple treatment that has been
suggested. He has refused to submit to the ordinary things
that we submit to every day, blood tests, examinations, and
says he will submit to nothing until after the trial. The
treatment which was suggested to bring him out of this
hysterical condition every psychiatrist agrees that this is
simply a hysterical condition if it is genuine at all-was
the use of intravenous drugs of the barbital series, either
sodium amytal or sodium phenotal, the ordinary sedative that
you perhaps take on a sleepless night. We did not dare
administer that, to be perfectly candid, against


                                                  [Page 304]

his objection, because we felt that however harmless - and
in over a thousand cases observed by Major Kelly there had
been no ill-effects, although some cases are reported where
there has - we felt that should be he struck by lightening a
month afterward it would still be charged that something we
had done had caused his death; and we did not desire to
impose any such treatment upon him.

But I respectfully suggest that a man cannot stand at the
bar of the Court and assert this his amnesia is a defence to
his being tried, and at the same time refuse the simple
medical expedients which all agree might be useful.

He is in the volunteer class with his amnesia. When he was
in England, he is reported to have made the statement that
his earlier amnesia was simulated. He came out of this state
during a period in England, and went back into it. It is now
highly selective. That is to say, you cannot be sure what
Hess will remember and what he will not remember. His
amnesia is not of the type which is a complete, blotting out
of the personality, of the type that would be fatal to his
defence.

So we feel that so long as Hess refused the ordinary, simple
expedients, even if his amnesia is genuine, he is not in a
position to continue to assert that he must not be brought
to trial. We think he should be tried, not in absentia, but
that this trial should proceed.

THE TRIBUNAL: (Mr. Biddle): Is not Hess asserting that he
wants to be tried?

MR. JUSTICA JACKSON: Well, I don't know about that. He had
been interrogated and interrogated by us, interrogated by
his co-defendants, and I would not attempt to say what he
would now say he wants. I have not observed that it is
causing him any great distress. Frankly, I doubt very much
if he would like to be absent, but I would not attempt to
speak for him.

THE PRESIDENT: Does M. Dubost wish to add anything?

(M. Dubost indicated that he did not.)

DR. VON ROHRSCHEIDT: May I just say a few words to the
Tribunal to make my point of view clear once more?

As Hess' defence counsel this is my point of view. First of
all, it is a fact that Hess, according to the reports of the
doctors which, all agree, is not mentally ill. It is
therefore, not a question of his mental faculties being
impaired.

Secondly, the defendant Hess is suffering from amnesia,
which, as all medical experts admit, exists. They all agree,
however, that this amnesia is caused by a pathological
condition of his mind. The result is that the defendant is
not insane, but has a mental defect. In a legal sense, I
think, from this it can be deducted that the defendant
cannot disdain responsibility for his actions, because at
the time when the acts he is charged with were committed, he
was certainly not mentally insane, consequently he can be
held responsible. But there is a difference, according to
German law at any rate, when the question is whether the
defendant is at this moment in a position to follow the
trial, that is, whether he is capable of participating in
the proceedings. This question should, in my opinion, as I
have already said, on the basis of the medical reports, be
answered in the negative. He is not capable of pleading his
case.

I admit that doubts are possible, and that the Court may not
be completely satisfied that the answers of the experts, in
the definition given, are sufficient to establish that the
defendant's ability to plead is actually impaired, in the
light of the language, perhaps deliberately used by the
Court, which speaks of ability to plead "adequately." I
believe that, perhaps, this is the point to be stressed.

It is my considered opinion that the amnesia, confirmed by
all experts, would impair the ability to present an adequate
defence.

The possibility exists that at times he might be able to
plead or raise objections, and then at such times he may
appear to follow the proceedings. But even then his defence
could not be termed "adequate" and would not be comparable
to that of a person in full possession of his mental
faculties.

                                                  [Page 305]

May I perhaps add one word. I have already explained that
the defendant has expressed the wish to me that he would
like to attend the sessions, as he does not feel himself
unfit to plead, but that, in the opinion of the defence, is
completely irrelevant. It is up to the Court to settle this
question. The personal preference of the defendant is of no
account. With respect to the conclusion which the American
prosecutor might draw about the defendant's refusal to be
treated by narcotic means, that is not a question of
truculence. Hr refused it because he was afraid that the
intravenous injections at this particular moment might, in
his weakened state, make him incapable of following the
proceedings, which is exactly what he did not want to
happen, and, as I have already mentioned, he himself thinks
he is healthy and therefore says, "I do not need any
intravenous treatment, I shall recover in the course of
time." The defendant also tells me that he has an abhorrence
of such treatments, and that in the unhappy times of the
National Socialist regime, he was always for the homeopathy.
He even founded the Rudolf Hess Hospital in Dresden, which
is conducted on a natural, rather than medical,
therapeutical plane.

MR. JUSTICE JACKSON: May I make one observation, Your
Honour?

THE PRESIDENT: Yes.

MR. JUSTICE JACKSON: The argument illustrates the
selectivity of the memory of which I spoke to you. Hess
apparently can inform his counsel about his attitude toward
this particular matter during the National Socialist regime.
His counsel is able to tell us how he felt about medical
things during the National Socialist regime, but when we ask
him about anything in which he participated that might have
a criminal aspect, the memory becomes bad. I hoe that the
Court has not overlooked the statement of the matters that
he does well recollect.

DR. VON ROHRSCHEIDT: May I make a correction?

THE PRESIDENT: It is unusual to hear counsel in a second
reply, but as Mr. Justice Jackson has spoken again we will
hear what you have to say.

DR. VON ROHRSCHEIDT: I would merely like to observe that I
was misunderstood. It was not the defendant who told me that
he was an adherent of natural medicine, thus proving that
his memory works, but it was I who, from my own experience,
ascertained this, and I know that he was an adherent. I gave
that as my opinion and my experience in order to show that
he has an instinctive aversion to medical treatments, but
this remark was not based on memory of the defendant Hess
but on a fact based on knowledge of my own.

THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if
you consider it proper, that the defendant Hess should state
what his views on this question are.

DR. VON ROHRSCHEIDT: As his defence counsel, I have
certainly nothing to say against it, and I think it would be
the defendant's own wish, and the Tribunal would then be in
a position to judge the mental state of the defendant, thus
giving the Court an opportunity to observe Hess' mental
state.

TRHE DEFENDANT HESS: Mr. President, I would like to say
this: At the beginning of the trial of this afternoon's
session, I gave my defence counsel a note that I am of the
opinion that these proceedings could be shortened if I could
be allowed to speak for myself. I wish to say the following:

In order to forestall the possibility of my being pronounced
incapable of pleading in spite of my willingness to take
part in further proceedings, and in order to receive
sentence alongside my comrades, I would like to make the
following declaration before the Tribunal, although,
originally, I intended to make this declaration during a
later part of the proceedings:

Henceforth my memory will again respond to the outside
world. The reasons why I simulated loss of memory were
tactical. The fact is that it is only my ability to
concentrate that is somewhat reduced. However, my capacity
to follow the trial, to defend myself, to put questions to
witnesses or even to answer the questions, is not being
affected hereby.

                                                  [Page 306]

I emphasise that I bear the full responsibility for
everything that I have done or signed as signatory or co-
signatory. My attitude, in principle, that the Tribunal is
not competent, is not affected by the statement I have just
made. So far in conversations with my official defence
counsel I have also simulated loss of memory. He has,
therefore, represented me in good faith.

THE PRESIDENT: The trial is adjourned.

(The Tribunal adjourned until 10.00 hours on 1st December,
1945)

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