Archive/File: imt/tgmwc/tgmwc-13/tgmwc-13-127.04
Last-Modified: 2000/02/28

SIR DAVID MAXWELL FYFE: Certainly. Your Lordship is quite
right. I should put that as an exception; that if he is
cross-examined as to a specific conviction, then the
conviction may be proved. I am very grateful to your
Lordship. But, my Lord, what is not permissible in English
jurisprudence is that when a witness has been cross-examined
as to credibility on particular facts other than a
conviction by the State, evidence may be adduced as to these
particular facts. I should submit that the principle which I
am sure obtains in all systems of jurisprudence, interest
reipublicae ut sit finis litium, must apply and support that
condition. Now, I put it in English. I am sorry. "It is in
the interest of the community that there should be an end of
the legal proceedings."

My Lord, if one didn't apply the limit which English
jurisprudence has applied, one would then call evidence to
attack the credibility of witnesses for the prosecution. The
prosecution would then render a rebuttal and call evidence
to attack the credibility of each of these witnesses who had
attacked the credibility of the prosecution's witnesses and
there would never be an end to legal proceedings

                                                  [Page 329]

at all. My Lord, on that point, which is a general point -
and I don't mean to be academic - it is a point of practical
importance for preserving some decent limit to legal
proceedings - I should submit that this application should
be refused. My Lord, I think that covers all the points
except the question of the defendant Goering's application
with which my friend Colonel Pokrovsky will deal.

COLONEL POKROVSKY: The defendant Goering is applying, my
Lord, for the calling of supplementary witnesses in
connection with the Katyn Forest shootings to clarify the
matter from the point of view of the Wehrmacht. That is to
say he intends to prove that German Armed Forces were not in
any way concerned with this Hitler provocation. The
prosecution of the Soviet Union categorically protests.

THE PRESIDENT: Colonel Pokrovsky, we have this matter fully
in our mind as we have already had to consider it,
therefore, it isn't necessary for you to deal with it in
detail, for I understand that these are new witnesses who
haven't before been applied for. Do you get the translation?

COLONEL POKROVSKY: Yes, I get the translation.

THE PRESIDENT: Do you hear now?

COLONEL POKROVSKY: I heard it before. I had in mind the fact
that the new witnesses have been called and I would like to
inform the Tribunal of our exact point of view with regard
to the calling of the new witnesses, without going into
detail about the Katyn Forest incident. The Soviet
prosecution, from the very beginning, considered the Katyn
Forest incident as common knowledge. The Tribunal can see,
by the limited space allotted to this crime in the
Indictment and, by the fact that we found it possible to
limit ourselves to reading into the record only a few short
excerpts from the report of the Commission, that we consider
this episode to be only an episode. If the question
mentioned by Sir David should be raised, that is, the fact
that the Tribunal may have doubts about the credibility of
certain witnesses or certain documents accepted as evidence
- then, once again, we would be forced to present new
evidence in order to discredit the new material again
presented by the defence.

Thus, if the Tribunal considers it necessary to admit two
new witnesses relative to the Katyn Forest shootings, the
Soviet prosecution will find itself obliged to call about
ten more new witnesses who are experts and specialists, and
to present to the Tribunal new evidence put at our disposal
and which we have recently received new documents.

Furthermore, we shall have to return to the question of
reading into the record all of the documents of the Special
Commission, excerpts from which were read before the
Tribunal. We think that it will delay greatly the
proceedings, and it will not be a matter of hours but of
days.

So far as we are concerned, there is no necessity for doing
this, and I think that this request should be refused, since
there is absolutely no basis or reason for it.

That, my Lord, is what I wanted to say in regard to the
defendant Goering's application.

I would also like to add a few words to what Sir David said
in regard to Dr. Seidl's application. I will not go into all
our motives. We certainly support Sir David fully, and we
consider that Dr. Seidl's applications should be refused.
But I want to report to you that this morning I signed a
document which is being sent to you, your Honour, and which
contains a full and detailed statement of our motives and
considerations in regard to this question; and this document
is presented to the Tribunal. Therefore, without taking up
your time, I have found another way of informing the
Tribunal about our position.

THE PRESIDENT: Now, it is not necessary, I think, to ask
Counsel for the defendant Schirach to address the Tribunal,
because there is no objection to those

                                                  [Page 330]

two applications with reference to the witness Marsilek and
the interrogatory of Kauffmann.

With reference to the Hess matter, the Tribunal will
consider that. They are going to consider it as they said
they would in their previous order.

With reference to the defendant Funk, there is no objection
to the affidavit of Kallus, and so, unless the Counsel for
Funk wants to address us upon it, we need not bother about
that.

With reference to Streicher, there is an objection to
Gassner as a witness, so perhaps the defendant's Counsel,
the Counsel for Streicher, had better say anything that he
wishes to say.

(No response.)

Well, the Tribunal will consider that, then.

As to Sauckel there has been no objection. As to Seyss-
Inquart, an interrogatory - there is no objection there.

As to the defendant Frick, Sir David suggested an
interrogatory. It wasn't quite clear whether the application
meant that. Is Counsel for the defendant Frick here or not?

(No response.)

Well, we will consider that.

And with reference to Goering, the Tribunal will consider
the applications for the defendant Goering.

And with reference to Hess and Frank, as to Gisevius's
evidence, Dr. Seidl, do you wish to say anything about that?

DR. SEIDL: Mr. President, the application regarding the
obtaining of official information from the Minister of War
was made for the sole purpose of obtaining evidence as to
the credibility of the witness Gisevius. Afterwards I made
another application to examine Secretary of War Patterson by
means of an interrogatory dealing with the same subject. On
the following day I made an application to examine the Chief
of the OSS, General Donovan, also by means of an
interrogatory. I think that this new application is in the
hands of the Tribunal.

I have made this further application only because the first
named witness, Patterson, was Minister of War for only a
comparatively short period, and because it seemed helpful to
have the chief of that organization himself as an additional
witness. As a reason for these applications, I refer to my
written statement of this year, which I have also submitted
as an Appendix of the form. I further refer to Appendix 2, a
report by the Associated Press on this incident. I should
like to reply very briefly to Sir David Maxwell Fyfe's
statement here.

The Tribunal does not appear to be bound by any particular
rules in dealing with the question of additional witnesses
in connection with the credibility of other witnesses.
Neither the Charter of the International Military Tribunal
nor the regulations governing its procedure contain any
definite rules. In my opinion, it is rather left exclusively
to the free judgement of the Tribunal whether such
additional evidence referring to the credibility of a
witness should be admitted or not, and in what
circumstances. In German criminal procedure such evidence is
admissible without question.

However, since the Tribunal in setting up this procedure is
not bound by any rules of procedure, I see no reason why the
decision should be based on any of the customary Anglo-
American legal procedure, since the Charter is not based on
either the Anglo-American legal procedure, or the
continental European legal procedure. This Tribunal and its
rules of procedure are entirely independent and give
complete freedom to the judgement of the Tribunal. That is
all I wanted to say in that connection.

THE PRESIDENT: One moment, Dr. Seidl. Do the questions which
you wish to put with reference to the witness Gisevius
relate solely to credibility?

DR. SEIDL: In my written application I have already said
that as far as I am concerned, it is not a question of
whether in certain circumstances the witness

                                                  [Page 331]

Gisevius was guilty of an action which from the German legal
standpoint might constitute the crime of treason. I only put
that question in connection with the examination of the
credibility of the witness before the Tribunal.

THE PRESIDENT: That is what I thought.

Now, one other question I wanted to ask you. Are these pacts
or agreements, which you say existed between the Soviet
Republics and Germany - are they published in print? Have
all the documents which you wish to use been typewritten or
mimeographed and circulated to the Tribunal?

DR. SEIDL: Mr. President, on 13th November, of this year, I
gave six copies of these five documents to the General
Secretary, and I also gave a corresponding number of
documents to the prosecution. All these documents are
typewritten, or, rather, they are mimeographed.

THE PRESIDENT: Yes.

DR. SEIDL: Perhaps I might add one point. On an earlier
occasion the Tribunal admitted as evidence an affidavit made
by Ambassador Gauss. This first affidavit is a statement of
the contents of these secret agreements. It is my opinion

THE PRESIDENT: I know that, yes.

DR. SEIDL: - if we have the agreements, we should refer to
the agreements themselves and not merely to a summary. If
the Tribunal so desires, and considers it necessary, then I
should be prepared, now or at some later date, to discuss
the relevancy of these agreements.

I have noted down only eight points from which these
agreements appear relevant as evidence, and perhaps I may
point out that these additional agreements -

THE PRESIDENT: The Tribunal has already ordered that these
documents should be submitted, and they will then consider
them and that's what they propose to do; so it is not
necessary to go into them in detail. We will consider the
matter.

DR. SAUTER (Counsel for defendant Funk): Mr. President,
during the examination of defendant Funk, a film was shown
here on the screen and an affidavit by a witness - Puhl -
was read. Emil Puhl, the vice-president of the Reichsbank.
At that time, following an application of mine, the Tribunal
decided that this witness, Emil Puhl, should be called here
for examination. Now I should like to ask you to amend your
decision in one respect. I think it would be useful to show
to the witness Puhl the film which you saw on this screen a
few days ago, so that he may state whether in fact the steel
safes of the Reichsbank looked as they were shown in this
film.

I should like to ask, therefore, Mr. President, that you
order this short film which we were shown twice recently to
be shown also to the witness Puhl before his examination. It
is, of course, not necessary that this should be done during
a session of the Tribunal; it can be done in the presence of
the prosecutor and myself, outside this courtroom. I have
various questions to put to the witness Puhl, and for that
it is necessary that he should first see this film. I wanted
to make this application today so that there may be no delay
when the witness Puhl is examined.

THE PRESIDENT: Does the witness Puhl know the vaults in
Frankfurt which were photographed?

DR. SAUTER: Yes.

THE PRESIDENT: He was a Director in Berlin, was he not?

                                                  [Page 332]

DR. SAUTER: Yes; but I assume, Mr. President, that the
witness Puhl, who was the managing vice-president, would
also know the steel safes in Frankfurt. Apart from that, I
believe that these vaults in the various branches of the
Reichsbank were all built on the same pattern, and were also
treated in the same way in practice. He will be able, also,
to state whether the method of safe-keeping shown in the
film was the type actually used by the Reichsbank in looking
after deposits.

THE PRESIDENT: Has the prosecution anything to say about
this?

MR. ALBRECHT: If your Honour please, I think, as it is a
document belonging to the case, we would be very glad to
show them to the witness before he is cross-examined by Dr.
Sauter.

THE PRESIDENT: Yes, and perhaps the most convenient way
would be, as Dr. Sauter suggests, that he should be shown
the film in some room in this court, not actually in this
room, but in another room.

MR. ALBRECHT: Yes; we can do so in the presence of the
prosecution.

THE PRESIDENT: Then you can arrange that between yourself
and Dr. Sauter?MR. ALBRECHT: Very well, sir.DR. SAUTER:
Thank you very much indeed.
THE PRESIDENT: Dr. Sauter, has any time been arranged for
the calling of Puhl?

DR. SAUTER: No; nothing has been arranged yet. As far as I
have heard, the witness is already here. I do not know when
he is to be heard. I shall leave that entirely to the
prosecution.
THE PRESIDENT: What would be the most convenient time?

SIR DAVID MAXWELL FYFE: My Lord, Mr. Dalton suggested to me,
at the close of the case of the defendant Donitz.

THE PRESIDENT: Would that be convenient? Wouldn't it be
better to put it after the defendant Raeder, I don't know,
they are rather connected cases?

SIR DAVID MAXWELL FYFE: If the Tribunal would prefer that,
we could make it after Raeder.
THE PRESIDENT: I do not know whether Dr. Kranzbuhler and Dr.
Siemers would prefer that.
DR. KRANZBUHLER: Yes.
THE PRESIDENT: Perhaps you could arrange that with them.

SIR DAVID MAXWELL FYFE: Certainly, my Lord.
THE PRESIDENT: That is to say, we would take Puhl's evidence
as soon as convenient, either after the evidence on behalf
of the defendant Donitz or after the evidence on behalf of
the defendant Raeder, whichever you prefer.

SIR DAVID MAXWELL FYFE: If your Lordship prefer, we will do
that.

DR. LATERNSER: Mr. President, I should like to inform the
Tribunal that my colleague Dr. Stahmer's applications for
the defendant Goering, which were made with a view to
clarifying the Katyn case, are also of interest to me with
reference to my clients. I gathered from the application
made by the Russian Prosecutor, that this, too, was
submitted to implicate the General Staff and the OKW,
although no evidence has been submitted to suggest that
these events took place either by order or with the approval
of the General Staff and the OKW.

THE PRESIDENT: Does this not, perhaps, interest all the
defendants?

                                                  [Page 333]

DR. LATERNSER: Yes. But I only wish to inform the Tribunal
that I am interested in my colleague Dr. Stahmer's
applications, and that I also request you to allow them. We
have agreed to share the task, and that is my colleague Dr.
Stahmer's reason for making the application. I wanted first
to inform the Tribunal of that arrangement.

I should also like to remind the Tribunal that some time ago
when my colleague Dr. Nelte, acting on behalf of the
defendant Keitel, forfeited the examination of the witness
Halder, I pointed out to the Tribunal that this action
encroached upon my privileges, and that the witness Halder
must be allowed by the Russian
prosecution for cross-examination. At that time, I was told
that the witness Halder would probably appear for
examination, and I have checked it in the record. When I
referred to the point during that session, the Tribunal said
that it would announce its decision in a few days. Although
some considerable time has elapsed since then, no
announcement has been made. I merely draw the attention of
the Tribunal to this point.

THE PRESIDENT: Your witnesses have not been dealt with yet,
have they? You have not applied for your witnesses yet? They
have not been proffered? The matter has not been dealt
with?DR. LATERNSER: Mr. President, this is a repetition of
the misunderstanding which arose when I pointed out to you
at that time that the forfeiture of the witness Halder
constituted an infringement of my rights. The situation at
the time was that the Russian prosecution submitted an
affidavit made by General Halder, and when the defence
objected, which at that time was done in my name, too, the
Tribunal decided that the witness Halder would have to
appear for examination here.

I have the right to cross-examine him, and therefore this is
the time to call that to the attention of the Tribunal.

THE PRESIDENT: Yes, but the convenient time is the question.
You will have the opportunity to cross-examine him. But the
question is when. You want to cross-examine him yourself on
behalf of the High Command?

DR. LATERNSER: Yes.

THE PRESIDENT: We will consider that, Dr. Laternser.
The Tribunal will now adjourn.

(An adjournment was taken until 1000 hours, Monday, 13th May, 1946.)

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