Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-073-02
Last-Modified: 1999/06/08

Attorney General: And not signed.  I therefore ask: What is
the law regarding this document - "reduced to writing and
not signed"?  Are we to say that it is a necessary
condition, that every statement such as this, if given
orally, is made admissible by the person who heard it, and
he can submit it?  But if it has already been reduced to
writing, it cannot be submitted, unless it has been signed
in the presence of a person who saw the evidence being
taken, recorded and signed.

I think it would be totally illogical to arrive at such a
conclusion.  Why?  Where it is made orally and a witness
heard it - that would be admissible; and where it is in
writing, and where, for instance, a person saw the accused
himself writing, but did not see him signing - that would be
inadmissible.  That would be the result.  If that is
exhaustive, then that document, written by the accused but
not signed by him, will be inadmissible.  In this way, we
arrive at totally unreasonable conclusions.  Therefore, a
statement in the accused's handwriting, even though it is
not signed by him, is admissible, and so is a statement
taken down from what he said.  And if an allusion to that is
required - not a straightforward authority - then allow me
to quote a short passage from Phipson, 9th edition, on page
270: "The form of a confession is in general immaterial.
Thus, it may be made either orally or in writing; and a
letter written by the prisoner to the prosecutor, even when
in custody, although no caution was given him, is
receivable."

Judge Halevi:  Further on, on page 271, there is a precedent
of Erdheim which is even contrary to the manner laid down in
the law.

Attorney General: Actually, it was possible to offer proof
by oral evidence.

Judge Halevi:  Despite the fact that there is some statute
stating that it must be proved in writing?

Attorney General: Yes.  That can be so in a case of
bankruptcy.  Hence, what is the conclusion to be reached?  A
statement which was made in a definitely formal manner,
written and signed or otherwise marked, must be proved by
formal procedure.  This is what is laid down in Section
37(2) - the manner of submission then has to be a formal
one.

A statement made in other circumstances may be proven by
other evidence appropriate to the circumstances, and the
common law will still apply to such a case, which permits
such statements to be admitted.  Our Evidence Ordinance,
too, does not purport to be completely exhaustive.  It says,
at the beginning: "An ordinance to declare the law of
evidence on certain points and to amend the law on other
points."

The Criminal Procedure (Trial upon Information) Ordinance
seeks to lay down the procedure in criminal trials, and it
certainly does not come in through the back door in order to
bar us from applying the English Common Law.

Judge Halevi:  I would draw your attention to Section 15(9)
of the "Trial upon Information Ordinance."

Attorney General: I was going to mention Section 15 in
another context, Your Honour, since Section 15 is referred
to in Section 37(3), and from this, also, it is clear that
the reference is only to accused persons.

Judge Halevi:  It is referred to in Section 15, although not
explicitly, but by inference, also in Section 37(1); "during
the preliminary inquiry."

Attorney General: [Quoting the section] Because it deals
with the preliminary inquiry.

Judge Halevi:  But Section 15(9) especially contains a
general saving clause in respect of an "admission,
confession or other statement of the accused made at any
time."

Attorney General: "Which is by law admissible as evidence
against the accused."

Judge Halevi:  I also think that Section 37, in all its
subsections, is linked to Section 15.

Attorney General: To the position of a person as an accused.
Accordingly, it is not Section 37(2) which determines our
case, and we come back to the question of proof of the
identification of a document and, on that basis, our
application is to be decided. I would say immediately, at
the outset, that I hesitate to apply to the Court in this
matter with the request to use its authority under Section
15 of the Nazis and Nazi Collaborators (Punishment) Law.
Let me say quite openly why I hesitate.

This matter does not resemble other statements by an accused
which I am able to prove by hearsay evidence, as I have
sought to prove them, and in certain instances the Court
also permitted me to do so.  For example, statements by
Hoettl, Wisliceny, or Hoess, because it was plainly evident
to the legislator that it would be exceedingly difficult to
prove war crimes and crimes against humanity, if we had to
abide by and strictly follow the rules of evidence.
Documents were lost, witnesses were unavailable, some had
been executed, others had died, and if we had to be bound by
the rules of evidence as regards the admissibility of
evidence, possibly many charges could never be established.
Hence, the legislator gave the Court a free hand in respect
of admissibility.

Naturally, when the time arrives, ultimately, to weigh up
such evidence, the Court will determine for itself its own
criteria.  But when we are dealing with statements made by
the Accused himself, I am not sure whether this was the
legislator's intention in Section 15.  In other words - I am
obliged to prove that what I have is the Accused's
statement.  That is how I view it.  If I am able to prove
that, I have no need for Section 15, and the document will
be admissible; and if I am not able to prove it, Section 15
will not help me, since the document will not be admissible.
The Court cannot say: Although this is some document with
some relevance to the matter before us, it has not been
proved to us that it comes from the Accused or originates
with him, but still, we will make use of Section 15, in
order to admit it.  I do not believe that this was the
intention of Section 15.  Of course, if the Court should
hold that my approach and my view of the matter are
incorrect, then the Court is always empowered to give me
relief under this section.  But I must state frankly why I
have not based my application on this section.

And now, what methods of proof do we have regarding this
document?

Presiding Judge: Actually, you have already outlined this
for us in ample detail; unless you wish to add something to
that.

Attorney General: Just a few minutes.

Presiding Judge: There is a question here which greatly
troubles me.  Let us take Section 37(2): it is not so
simple, after all; but there is no doubt that the best
evidence for the authentication of this document would be
the evidence of Sassen himself.  Now you are saying, Defence
Counsel can demand the interrogation of Sassen abroad.  To
my mind the question arises: Why must the onus be placed on
Defence Counsel?  Why were you not bound to produce the best
possible evidence?  You may argue that you do not want to
have any dealings with him - at any rate not within the
State of Israel - you will arrest him if he comes here.  But
the way is open to you, according to Section 16 of the
Evidence Ordinance - namely that you should request his
examination abroad.  I think that under its terms, this
section is applicable.  It has already been mentioned
previously in this trial; why did you not, in any case, act
accordingly - why did you not attempt to adopt this course
at a much earlier stage?

Attorney General: With great respect, I am not at all sure
that Sassen's is the best evidence.  I believe that if I am,
in fact, able to prove that this document was in the
Accused's hands, and that he adopted it as his own, and this
is a document in writing - if these had only been Sassen's
notes, without any contact, connection or treatment on the
part of the Accused, I would certainly have been obliged to
act in accordance with Section 16, if I could have done so.
To my regret, I cannot, since we have no treaty with
Argentina.  I shall immediately come to this point and
explain the situation to the Court.  But I say that in fact
I am submitting the best evidence, since I shall prove that
this document has become the Accused's, owing to his having
dealt with it, and then it is the best evidence.

But since the Court has asked me about Section 16, I want to
explain what we have ascertained, meanwhile, in regard to
Argentina.  We have no treaty.  It is true that Argentina
approached us on three occasions with a request to lend
assistance to it by means of taking evidence on commission
in criminal cases; on one occasion, we arranged for the
interrogation under the Law for Legal Aid to Foreign
Countries, when my predecessor in office directed the
interrogation to be carried out; on one occasion, we
refrained from doing so, because that was a request for
serving a summons on a man accused in Argentina, and we
thought that we were not obliged to do that.

Presiding Judge: Serving a summons on an accused who at that
time was here - in the State of Israel?

Attorney General: Yes, and criminal proceedings were
instituted against him in Argentina.  On the third occasion,
there was a request to serve documents on a person whom we
looked for but were unable to find.  At all events, the
State was prepared to extend the assistance.  These are the
cases that have been brought to my knowledge.  I therefore
presume that by virtue of the principle of reciprocity which
is normal in such matters, Argentina would also be prepared
to take evidence on commission, but no agreement in the
sense of Section 16 nor a law on the subject exists.

But that is really only a formal reply.  The substantive
reply is different.  I maintain that it is also possible to
prove the source of the document by identifying the contents
of the statements contained in it, and I refer to Wigmore,
3rd edition, volume 7, pages 606, 607, 608.  I say in
advance that in our case this is circumstantial evidence,
for the main evidence is that of Superintendent Hagag.  I
rely on that; but as corroborative evidence, I want to show
to the Court what the principle is in regard to the
authentication of documents.

On page 606, it says as follows:

     "Accordingly, it seems generally conceded that the mere
     contents of a written communication, purporting to be a
     particular person's, are of themselves not sufficient
     evidence of genuineness. Only in special circumstances,
     where the contents reveal a knowledge of other traits
     peculiarly referable to a single person, could the
     contents alone suffice.  However, where the necessity
     above-mentioned does, in fact, exist, namely the
     impossibility of obtaining handwritten testimony, it
     would seem to follow that resort must be had to the
     evidence from contents - at any rate in some
     circumstances, or upon the facts of a particular case.
     Such an impossibility may exist for three sorts of
     writing: (a) an illiterate's writing by amanuensis; (b)
     a typewritten letter; (c) printed matter."

And now, on page 607, Wigmore goes on to deal with
"Typewriting machine matter."  He says that such a case
"presents a similar impossibility whenever a signature, as
sometimes happens, is also typewritten or stamped, and it
would seem that a similar necessity justifies a resort to
evidence from contents."

Presiding Judge: The case of an amanuensis using a
typewriting machine - that is to say, a person who cannot
read or write and, therefore, someone else uses a typewriter
in his stead.

Attorney General: Yes, but that is one of three instances.
I would ask you to take note, on page 606, of what I have
already read: (a) an illiterate's writing by amanuensis; (b)
a typewritten letter; (c) printed matter.

And Wigmore continues as follows:

     "If there were a serious possibility of abuse, this
     step would not be advisable.  But in fact there is also
     a danger of abuse in the opposite direction; for the
     difficulty of authenticating such a document is
     sometimes taken advantage of by those who wish to be
     able to disavow their authorship.  It is, no doubt, a
     question of experience, i.e. which danger is actually
     the greater.  On the whole, it would seem safe to
     authorize the trial court, in discretion, to allow to
     go to the jury a typewritten communication bearing
     sufficient indication of authenticity in its contents
     and letterhead.  Today, however, in view of the
     scientific development of the study of documents by
     microscopy and other arts, the authorship of
     typewritten documents can often be traced with
     certainty to the specific machine used; so that this
     mode of authentication does not then, in principle,
     differ from that of using the handwriting."

But, Your Honour, we have both: Hagag identifies the
typewriter as the only typewriter, the sole typewriter in
the whole world, by the errors, flaws and defects in its
various letters, on which this document could have been
typed.

Presiding Judge: Mr. Hausner, I do not follow this, in the
light of the facts.  In his opinion, he states that this was
printed on three typewriters.  But who possessed these three
typewriters?

Attorney General: If I may briefly recapitulate: There were
three typewriters.  For practical purposes, we can deal with
two only, for on the third typewriter only one page was
typed, and it does not matter to me if that one has to be
disregarded.  It is connected to the others only through its
contents.

These two typewriters, through their peculiarities, the
various defects in their letters, which Superintendent Hagag
lists at length, furnish this typed material with the
characteristics of fingerprints, as it were; that is to say,
there is no other typewriter in the world which possesses
the same special characteristics in these letters as this
one does.

Presiding Judge: That, too, we do not know.

Attorney General: I shall bring Superintendent Hagag to
swear to this; we shall prove it.

Presiding Judge: At all events, not according to what has
been said so far.  It is possible that these typewriters
came from a casting factory where thousands of typewriters
were manufactured, with each one of them possessing the same
defects in each of their letters.

Attorney General: Superintendent Hagag will swear to that,
and I am prepared to prove it.  On the assumption that I
shall succeed in proving it, I shall ask your approval for
admitting the document.

Presiding Judge: But what will that prove?  It will prove
that certain portions of the written statement were all
typed on the same machine.  How does that help us?

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