The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
14th February to 26th February, 1946

Sixty-First Day: Monday, 18th February, 1946
(Part 1 of 7)

[Page 77]

THE PRESIDENT: I have an announcement to make, and I make it in this order, in the form of paragraphs.

Paragraph 1: The Tribunal cannot accept paragraph 1 of the prosecution's motion as to the evidence of the defendants, dated 11 February, 1946, but directs that, in complying with Article 24 (d) of the Charter, counsel for the defendants shall confine their evidence to what is required for meeting the charges in the Indictment.

The Tribunal will announce later their decision with regard to paragraphs 2 to 5 of the prosecution's motion.

Paragraph 2: With regard to the naming of witnesses, etc., by the defence under Article 24 (d) of the Charter, which is referred to in paragraph 1 of Dr. Stahmer's memorandum to the Tribunal, dated 4 February, 1946, the Tribunal makes the following order:

In order to avoid delay in securing the attendance of witnesses and procuring of documents, without prejudice to the defendants' right to make further application at the conclusion of the case for the prosecution, counsel for the defendants Goering, Hess, Ribbentrop and Keitel shall, before 5 p.m. on Thursday, 21 February, file with the General Secretary written statements giving the names of the witnesses and particulars of the documents they respectively desire to call or put in evidence, with a summary of the facts to be proved thereby and an exposition of the relevance thereof.

The Tribunal hereby appoints Saturday, 23 February, at 1000 hours - that is to say, 10 o'clock - for the hearing of argument upon such statements in open session.

Paragraph 3: The Tribunal will, in due course, issue directions as to the filing of similar statements on behalf of the other defendants.

Paragraph 4: The Tribunal will announce later their decision on the other matters raised in Dr. Stahmer's memorandum.

The Tribunal will now hear the defendants' counsel's application for a recess.

PROFESSOR KRAUS (representing defendants' counsel):

The defendants' counsel are grateful for the opportunity granted by the Tribunal to state in detail the reason for their application of 4 February for an adjournment of the trial after the conclusion of the prosecution's case.

This application embodies a number of suggestions with which the defence has striven to achieve a simple, clear, and as rapid a presentation as possible of its case.

Only a few points of this application call for further amplification.

All the defendants are accused of participation in a conspiracy. That apparently means that every act mentioned in the course, of this trial, no matter by whom it was committed and against whom, is charged against every one of these defendants, and that he can be convicted of every one of these acts. Even though the individual defence counsel finds certain material with which he must concern himself particularly, there is, nevertheless, none which he can entirely ignore.

Since most of the defence counsel are working with only one assistant, and sometimes alone, it can be seen how enormous is the extent of the work involved in the examination and discussion of the material that is daily presented by the prosecution. The necessary discussions with the defendants use up the evening hours and the days on which there are no sessions. These discussions are, moreover, because of the security measures that have been taken, very exhausting.

It is, therefore, simply beyond the strength of the individual defence counsel,

[Page 78]

who has to attend the trial and continuously work over the material presented at the trial, to make those intellectual and technical preparations that can justifiably be expected in a trial of such significance as this.

The material presented is not yet complete. The Soviet prosecution is presenting new evidence daily. In the opinion of the defence counsel, it would lead to an incorrect evaluation of the extent and importance of accusations which the Russian Delegation is presenting, if the defence counsel were expected to conclude their defence preparations before they had even heard the conclusion of the case for the prosecution.

The Tribunal has already been informed in writing of the difficulties involved in obtaining evidence. A few examples might be cited in this respect, examples to which every member of the defence could contribute.

One defence counsel, in November last, applied for a certain witness to be called who was of decisive importance in the presentation of his case. The application was approved by the Tribunal. Although this witness was a very highly placed German official, it was only in January of this year that the camp in which he was interned could be located. The witness has not, as yet, appeared in Nuremberg. Therefore, this defence counsel has, so far, no idea about which questions this witness can testify, and what he would testify.

In numerous cases the place of residence of witnesses, whose appearance at the trial had been ordered by the Tribunal in November or December of last year, could not be established. Defence counsel are quite unable to help in locating witnesses, who, being interned in Allied prisoner-of-war camps, have had no opportunity of providing information as to their whereabouts. It has been suggested to some of the defence counsel that they should interrogate witnesses outside Germany by submitting questionnaires which would enable them to be interrogated on the spot. In no single case have answers to these questionnaires reached the respective counsel for the defence.

In the case of witnesses living inside Germany, the defence counsel have repeatedly been asked either to conduct the interrogation themselves or to submit a written affidavit. Since they are confined to Nuremberg during the sessions, they could only carry out this task during a recess of some length.

Finally, one member of the defence had, at the beginning of November, applied for permission to submit a number of documents indispensable to his case. These documents are in the possession of one of the signatories of the Charter. They have been examined by the prosecution and have been submitted in evidence by the prosecution as they serve to incriminate the defendant in question. The defence counsel is still not in possession of the exonerating parts thereof.

We should like to emphasise again the purely technical difficulties that arise from the mimeographing and multiple translations -

THE PRESIDENT: Just one moment, Professor Kraus. You referred to a document which you said was indispensable, which was in the possession of a Signatory Power, examined by the prosecution and put in evidence in this case, and you say that the defendants are still not in possession of it.

What is the reference to that document ?

PROFESSOR KRAUS : No, Mr. President, it is a collection of documents in which the incriminating parts were presented by the prosecution, but we, the defence counsel, are not yet in possession of the exonerating parts.

Dr. Kranzbuehler, who, too, is affected by this case, can give you more detailed information.

THE PRESIDENT: Well, there is an application, I know, by Dr. Kranzbuehler, but if it is really a part of a document, the Tribunal has ruled on several occasions that if the prosecution puts in a certain part of a document, the whole of that document must be available to the defendants' counsel so that they can criticise and comment upon any other part of it which may throw light upon the part of the document which is put in evidence.

[Page 79]

PROFESSOR KRAUS: We are dealing here not with one single document, but with a whole collection of documents and Dr. Kranzbuehler only wishes to extract from this collection the documents which would assist him to exonerate his client, after the incriminating documents have been presented by the prosecution.

THE PRESIDENT: You may continue.

PROFESSOR KRAUS: The defence is grateful to the prosecution for the readiness they have expressed in assisting them in technical questions. The great difficulties which the prosecution themselves have experienced in this connection, and which have repeatedly led to discussions by the Tribunal, show, nevertheless, that an efficient solution of this problem calls for a suitable length of time. The defence consider it important to assure the Tribunal of their readiness and their determination not to prolong the trial unnecessarily. They are, however, of opinion that an inadequate initial preparation will lead to a corresponding delay in the duration of the defence, and that the subsequent results might in no way suffice to enable the Tribunal to pass a fair verdict.

The defence Counsel think they are in agreement with the Tribunal in saying that this trial, so important in the history of humanity, should be conducted throughout with the peace and reflection which have hitherto characterised its course. On the other hand, undue importance should not be attached to the understandable impatience of those who insist on a rapid termination of the trial. In this sense the defence requests the prosecution to support their application. The recess applied for, i.e., three weeks, cannot be considered unreasonable in view of the total length of time which the prosecution have envisaged for the completion of their case. The granting of this recess would, on the other hand, balance the fact that the defence, in the conduct of their case, find themselves both spiritually and materially in a very difficult position. Mention should be made that a number of us have subscribed to to-day's application, contrary to the opinion of the defendants we represent, who desire a rapid termination of these proceedings. We feel that we are accountable only to our own consciences and our professional duties as counsel for the defence.

I therefore request the Tribunal to take note that, after serious and thorough consideration, my colleagues and I, without exception, are convinced that the recess applied for, i.e., three weeks, is the minimum time which they consider essential for an orderly preparation of the defence.

THE PRESIDENT: Dr. Kraus, the Tribunal would like to know, if you can answer the question, whether defendants' counsel have by this time ascertained all, or nearly all, the witnesses whom they desire to call in evidence; whether they have made up their minds, up to this stage, as to what witnesses they desire to call.

PROFESSOR KRAUS: I cannot answer this question, since that would call for a general inquiry. I should have to ask my colleagues. The cases to my knowledge vary from one lawyer to another. Some of the lawyers of the defence are more or less ready in this respect, others are not.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, I think it would be convenient if I followed the admirably lucid exposition of Professor Kraus by asking the Tribunal to direct its attention to two aspects of the matter: first, what Professor Kraus called the intellectual preparation, and secondly, the mechanical necessities of presentation of the defence.

On the first point I draw the attention of the Tribunal to the way that it is put in the written application signed by Dr. Stahmer, which was followed in the main by Professor Kraus to-day. It is stated that a respite is required for the construction of the defence after conclusion of the Indictment, that is, of the prosecution; secondly, that the defence counsel have, until now, not had the time to prepare their defence in such a manner that smooth functioning is guaranteed; and thirdly, a line or two lower down, that in justice it cannot be expected of the defence counsel - they will be able to answer on the spot.

[Page 80]

I respectfully request the Tribunal's attention to some matters of dates.

The Indictment in this case was filed on 18 October, which is exactly four months ago today. The defendants were immediately acquainted with the contents of the Indictment, and it is a document of sufficient public importance to give ground for the belief that defence counsel must have, at any rate, had its general contents very quickly in mind.

On that day General Nikitchenko, presiding over this Tribunal, stated at Berlin, "It must be understood that the Tribunal, which is directed by the Charter to secure an expeditious hearing of the issues raised by the charges, will not permit any delay either in the preparation of the defence or of the Trial."

I remind the Tribunal that the Indictment contains more full particulars than probably any indictment in the history of jurisprudence.

The third point is that preliminary lists of documents were placed in the Defendants' Information Centre on 1st November. The lodgement of preliminary documents, not complete but amounting to many hundred, was made on 15 November. Except for one, Dr. Bergold, on behalf of the defendant Bormann, all the counsel representing individual defendants were appointed by 10 November.

Next, there have been four detailed speeches by the prosecution explaining the scope and emphasis of the prosecution's case. Every experienced advocate knows that the opening speech giving the emphasis is one of the most important matters to the defence.

As Professor Kraus said, from the beginning of November there have been applications for witnesses. I shall deal later with certain of the individual points, but I want to say this generally, that any one who has read these applications must be aware that the defence, from an early date, have appreciated not only the case they have to meet, but the line which they wish to pursue.

My next point is that, having heard practically the whole case on Counts I and II, the Common Plan and Aggressive War, the defendants received a 12-day recess at Christmas, and it was indicated by the President that this was, in part at any rate, for their assistance.

It is a point of fair comment that most of us have been engaged in quite considerable trials where men's lives have been at stake when the question of any adjournment at all would not come into the picture. But this applies here too.

My next point is that on Counts I and II, the Common Plan and Aggressive War, the cases against the individual defendants were co-ordinated and the relevant documents collected in the individual presentations. In every case defendants' Counsel had these documents and trial briefs at the latest by the middle of January. All the presentations were concluded by 17 January except for four. The matter has been brought up to date by the expositions of M. Dubost, M. Quatre, and by my Soviet colleagues as they went along. In addition, the transcripts, of which each defendant receives a copy in German, show the weight and emphasis which the prosecution attach to the different individual cases.

We all know, from our own experience, that you cannot prepare any defence in any trial without the burning of midnight oil, but I do impress upon the Tribunal that the assistance which has been given and the time which has been allowed is remarkable in this case.

I want to deal much more shortly with the mechanical side of it, because Professor Kraus has been fair enough and good enough to say that the prosecution have given assistance. And I want to say this, that we are quite prepared, when there is any question of photostating a German document, or of mimeographing or reproducing a document in any other way, or providing additional clerical assistance, to go beyond what we have done and to meet any request made to us to the utmost of our ability.

[Page 81]

Now I want to deal with the essential point which Professor Kraus has made, that the prosecution have had a long time to prepare and develop their case, and that the defence have corresponding rights.

In my respectful submission, there is this essential difference between the case for the prosecution and the case for the defence. The prosecution must cover the whole field; the defence selects the issues on which it will make its fight.

I respectfully disagree with the contention of Professor Kraus that that is altered by the fact that we are here dealing with a conspiracy charge. Whether the charge is conspiracy or not, there are certain facts which are not in dispute. There are certain facts which will be, as is indicated by Dr. Stahmer's memorandum, the subject of legal argument or discussion as to the true inference to be drawn from them, and the fact that a case is based on conspiracy does not alter the fact that certain matters are either going to be contradicted by evidence or left uncontradicted.

I, myself, have seen nothing to suggest that, for example, the re-establishment of military forces in Germany, the occupation of the Rhineland, the Anschluss of Austria, the existence and conditions of concentration camps, many of the actions of certain S.S. divisions and bodies under Himmler, are going to be disputed at all, because the defendants' counsel have had the opportunity of cross-examining witnesses on many of these matters, and there has been no challenge by cross-examination.

I do not question for the moment nor seek to deal with the decision of the Tribunal this morning, which, of course, I accept with the utmost loyalty, but I hope the Tribunal will not think it wrong for me to mention in explanation that the prosecution were anxious for the defence to eliminate the matters in issue and would have been prepared, so far as it lies with them, to agree to a certain time being given for that purpose. But yet, the defendants have said - and again I make no complaint - that they are not prepared to do it. Therefore, that reason for adjournment disappears.

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