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-Sixth Day: Saturday, 23rd February, 1946
(Part 1 of 8)

[Page 245]

THE PRESIDENT: Before we deal with the applications. I am going to read the Tribunal's Order upon Dr. Stahmer's memorandum of 4 February, 1946, and the prosecution's motion of 11 February, 1946. This is the order:

The Tribunal makes no order with regard to paragraphs 2 to 5 of the prosecution's motion as to the evidence of the defendants, dated 11 February, 1946.

With regard to paragraphs 2 and 7 of Dr. Stahmer's memorandum on defence procedure, dated 4 February, 1946, the Tribunal makes the following order:

1. The defendants' cases will be heard in the order in which the defendants' names appear in the Indictment.

2. (a) During the presentation of a defendant's case, defendant's counsel will read documents, will question witnesses, and will make such brief comments on the evidence as are necessary to ensure a proper understanding of it.

(b) The defendant's counsel may be assisted in the courtroom by his associate counsel or by another defendant's counsel. Such other counsel may help the defendant's counsel in handling documents, etc., but shall not address the Tribunal or examine witnesses.

3. Documentary Evidence. (a) Defendant's counsel will hand to the General Secretary the original of any document which he offers in evidence if the original is in his possession. If the original is in the possession of the prosecution, counsel will request the prosecution to make the original of the document available for introduction into evidence. If the prosecution declines to make the original available, the matter shall be referred to the Tribunal.

(b) Should the original of any such document be in the possession of the Tribunal, defendant's counsel will hand to the General Secretary a copy of the whole or relevant part of such document, together with a statement of the document number and the date upon which it was received in evidence.

(c) Should counsel wish to offer in evidence a document, the original of which is not in his possession or otherwise available to the Tribunal, he will hand to the General Secretary a copy of the whole or relevant part of such document, together with an explanation as to where and in whose possession the original is located and the reason why it cannot be produced. Such copy shall be certified as being correct by an appropriate certificate.

4. Each defendant's counsel will compile copies of the documents or parts of documents which he intends to offer in evidence into a document book, and six copies of such document book will be submitted to the General Secretary, two weeks if possible, before the date on which the presentation of the defendant's case is likely to begin. The General Secretary will arrange for the translation of the document book into the English, French, and Russian languages, and the defendant's counsel will be entitled to receive one copy of each of these translations.

5. (a) Defendant's counsel will request the General Secretary to have the witnesses named by him and approved by the Tribunal available in Nuremberg, such request being made, if possible, at least three weeks before the date on which the presentation of a defendant's case is likely to begin. The General Secretary will, as far as possible, have the witnesses brought to Nuremberg one week before this date.

(b) Defendant's counsel will notify the General Secretary not later than noon on the day before he wishes to call each witness.

6. (a) A defendant who does not wish to testify cannot be compelled to do so, but may be interrogated by the Tribunal at any time under Article 17 (b) and 24 (f) of the Charter.

[Page 246]

(b) A defendant can only testify once.

(c) A defendant who wishes to testify on his own behalf shall do so during the presentation of his own defence. The right of defence counsel and of the prosecution under Article 24 (g) of the Charter to interrogate and cross- examine a defendant who gives testimony shall be exercised at that time.

(d) A defendant who does not wish to testify on his own behalf, but who is willing to testify on behalf of a co- defendant, may do so during the presentation of the case of the co-defendant. Counsel for other co-defendants and for the prosecution shall examine and cross-examine him when he has-concluded his testimony on behalf of the co-defendant.

(e) Sub-paragraphs (a), (b), (c) and (d) do not limit the power of the Tribunal to allow a defendant to be recalled for further testimony in exceptional cases, if in the opinion of the Tribunal the interest of justice so requires.

7. In addition to the addresses of each defendant's counsel under Article 24 (h), one Counsel representing all the defendants will be permitted to address the Tribunal on legal issues arising out of the Indictment and the Charter which are common to all defendants, but in making such address he will be held to strict compliance with Article 3 of the Charter. This address will take place at the conclusion of the presentation of all the evidence on behalf of the defendants, but must not last more than half a day. If possible, a copy of the written text of the address shall be delivered to the General Secretary in time to enable him to have translations made into the English, French, and Russian languages.

8. In exercising his right to make a statement to the Tribunal under Article 24 (j), a defendant may not repeat matters which already have been the subject of evidence or have already been dealt with by his counsel when addressing the Court under Article 24 (h), but will be limited to dealing with such additional matters as he may consider necessary before the judgement of the Tribunal is delivered and sentence pronounced.

9. The procedure prescribed by this order may be altered by the Tribunal at any time if it appears to the Tribunal necessary in the interest of justice.

Now the Tribunal will deal with the application for witnesses and documents on behalf of the defendant Goering, and the procedure which the Tribunal proposes to adopt is to ask counsel for the defendant whose case is being dealt with to deal, in the first instance, with his first witness, and then to ask counsel for the prosecution to reply upon that witness and then, when that has been done, to ask defendant's counsel to deal with his second application for a witness, and then for the prosecution counsel to deal with that witness; that is to say, to hear the defendant's counsel and the prosecution counsel upon each witness in turn.

That procedure will probably not be necessary when the Tribunal comes to deal with documents. Probably it will be more convenient for defendant's counsel to deal with the documents together and prosecuting counsel to deal in answer with the documents together. But, so far as the witnesses are concerned, each will be taken in turn.

I call upon Dr. Stahmer.

DR. HORN (Counsel for defendant von Ribbentrop): Before we go into these, details I ask to be informed why the Tribunal has the intention of treating the defence in a fundamentally different manner from the prosecution. In Article 24 of the Charter it is stated that the Tribunal will ask the prosecution and the defence whether they will submit evidence to the Tribunal and if so, what evidence. This decision has so far not been applied by the Tribunal in relation to the prosecution, I am glad that to-day the defence has been granted the possibility of naming to the Tribunal those documents and witnesses which up to now have been difficult to obtain. I am prepared to-day to state to the Tribunal the essential points which establish the necessity of calling the witnesses and the relevancy of the documents. I ask the Tribunal, therefore, on the basis of past practice, not to allow the prosecution to take part in judging whether a document should be considered relevant or

[Page 247]

not. As defence counsel I am convinced that I would have to submit to a sort of pre-censorship by the prosecution which would impair the unity of my entire evidence. I may point out that the protests of the defence have constantly been postponed with the remark that the defence would be heard about these points at a later date. If selection of evidence, on the basis of objections by the prosecution, operates here, to-day, the danger arises that protests which have been postponed will not be able to be treated later. For the reasons stated therefore I request the Tribunal to proceed according to past practice, and decide against the right of the prosecution to protest against the submission of evidence.

THE PRESIDENT: Will counsel for Ribbentrop come back to the rostrum? The Tribunal is not altogether clear what motion you are making.

DR. HORN: I propose that the prosecution should not, at this stage of the trial, be entitled to make a decision about the calling of witnesses and the relevancy of documents.

Mr. President, I would like to plead further on that point. I meant by "make a decision" that the prosecution should not yet at this time, have anything to say about the question of the admissibility or non-admissibility of evidence.

THE PRESIDENT: The Tribunal considers that your motion cannot be granted, for this reason. It is true that the defence is being asked to apply for witnesses and documents now, in accordance with Article 24 (d). One principal reason for that is that the Tribunal has got to bring all your witnesses here. The Tribunal has been, for many weeks, attempting to find your witnesses and to produce them here, and to produce the documents which you want. The relevancy of those witnesses and of those documents has got to be decided by the Tribunal; but it is obvious that counsel for the prosecution must be allowed to argue upon the question of relevancy, just as counsel for the defendants have been allowed to argue upon the relevancy of every witness and every document which has been introduced by the prosecution.

Exactly the same procedure is being adopted now for the defendants as has been adopted for the prosecution, with the sole exception that the defendants are being asked to make applications for the witnesses and documents and to deal with the matter at one time, rather than to deal with it as each witness or document is produced. The reason for that is that the Tribunal, as I have stated, has got to find and bring the witnesses here for the defendants, and also to produce the documents.

Your motion was that the prosecution should not have the right to decide on the calling of witnesses. The prosecution, of course, will not decide upon that point; the Tribunal will decide upon it. The prosecution must, however, have the right to argue upon it, to argue that the evidence of a certain witness is irrelevant or cumulative, and to argue that any document is not relevant.

I am reminded that all of these documents have got to be translated for the purposes of the Tribunal.

DR. HORN: Mr. President, many of the defendants' counsel, myself included, have, so far, not been able to question decisive witnesses for the purpose of obtaining information. Therefore in decisive points we often do not even know exactly what a witness can prove.

If, now, we have to deal with the prosecution before we know definitely how far it is desirable to fight or riot to fight for a witness, we are in an essentially worse situation than the prosecution, which, whenever the defendants' counsel made protests, knew exactly in what direction their witness or their evidence was important. In this regard the defence is, for the most part, in a considerably worse situation, and I am of the opinion that this situation will become even more unsatisfactory if here, as well as the Tribunal, the prosecution also can make protests against the evidence at this stage of the trial.

[Page 248]

THE PRESIDENT: It is true that it is impossible to decide finally upon the admissibility of any piece of evidence until the actual question is asked; and for that reason the Tribunal has already in deciding provisionally upon the application for witnesses, acted in the most liberal way. If it appears that there is any possible relevancy in the evidence to be given by a witness, they have allowed that witness to be called. Therefore, if there is any witness whose evidence appears to be, by any possibility, relevant, the Tribunal will allow that witness to be called, subject, of course, to the directions of the Charter to hold the trial expeditiously.

Subject to those limitations, the Tribunal will allow any witness to be called whose evidence appears to be possibly relevant. That is all the Tribunal can do because, as I have already stated, it is the Tribunal who has to undertake the difficult task of securing these witnesses for the defendants, who cannot secure them themselves.

DR. HORN: Thank you.

THE PRESIDENT: Now, Dr. Stahmer.

DR. STAHMER: Mr. President, I do not wish to go over this again, but I believe that the objection of Dr. Horn has not been understood quite rightly. Dr. Horn wanted only to complain about the fact that the defence in no case has been asked previously whether an item of evidence that the prosecution has presented was relevant or not, but we have always been surprised when a witness was brought in and we had no possibility to make any material objections relative to him.

In so far as objections against documents were concerned, that is, as to their relevancy, the defence has always been told that for such an objection the time had not yet come for the defence -

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