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 7 of 8)

[Page 265]

SIR DAVID MAXWELL FYFE: My Lord, my objection is not to the further cross-examination; that is a matter, of course, which is entirely for the Court once a witness is in its hands. But my recollection is that Dr. Merkel and Dr Kauffmann also wanted to cross-examine the witness further, and therefore I submit that, both generally and on this particular occasion, it would be very undesirable for any counsel who is going to cross-examine to have a private conversation with the witness before he cross-examines. That is the matter to which I object.

THE PRESIDENT : Yes, but if the defendants' counsel finally decide that they are not going to cross-examine the witness, I suppose then they would be able to examine him in chief if they wanted to do so - to call him.

SIR DAVID MAXWELL FYFE: Well, I have never heard, my Lord, of that procedure being adopted. If a witness is called by one side, then the other side must, in my respectful submission, do what they can by way of cross-examination. The witness is before the Court and, as the prosecution have called the witness, then I submit that the defence should deal with the witness by way of cross-examination. They have the additional rights which cross-examination gives,

[Page 266]

and that is a compensation for the other rights which they would have if he were their own witness.

DR. SEIDL: Perhaps we might agree that I renounce the right to cross-examination, and that if the witness could actually say something pertinent, I could let him give me an affidavit. I do not believe that the prosecution would object to that.

THE PRESIDENT: Sir David, as there are no technical rules of evidence applicable to this trial, would you say it was objectionable if the defence were permitted to see Schellenberg in the presence of a representative of the prosecution, if that is satisfactory to them?

SIR DAVID MAXWELL FYFE: I am sure the prosecution all desire that only the interests of justice should be furthered, and if the Tribunal consider that that would be a suitable method of dealing with it, the prosecution would raise no objection.

THE PRESIDENT: Unless you wish to say something further about Schellenberg, the Tribunal will consider your application.

DR. SEIDL: Very well.

THE PRESIDENT : Have you any other witnesses to whom you wish to refer?

DR. SEIDL: For the time being, no. However, according to the ruling of 18 February, every defence counsel has the right, until the conclusion of the trial, to ask permission to call further witnesses.

THE PRESIDENT: I think now is the time for you to apply; in accordance with the order of the Tribunal to which you are referring, this is the time at which you are to apply for any witnesses you want. The Tribunal always has the discretion, which it would exercise, if you prefer to make any further applications. If later you want to ask for further witnesses, the Tribunal will always consider your application.

DR. SEIDL: Yes, Mr. President.

As to the question of whether the "Foreign Organisation," the "National League for Germanism in Foreign Countries" and the "League of Germans in the East " had anything to do with Fifth Column activities, a further witness who might be called is the brother of the defendant Rudolf Hess, Alfred Hess, who was formerly a deputy Gauleiter of the "Foreign Organisation of the N.S.D.A.P.", and is at present in Mergentheim in an internment camp.

THE PRESIDENT: Well, we have not your application in front of us with reference to that. If you want to make any further application you may do so.

DR. SEIDL: I have made the application.

THE PRESIDENT: You say you want to make it now?

DR. SEIDL: If it is possible I should like to make the application now. I am, of course, prepared to submit that application in writing later.

THE PRESIDENT: The Tribunal will hear you now, then, upon this application, and you can put the application in writing afterwards as a matter of record.

DR. SEIDL: Very well.

THE PRESIDENT: What was the name ?

DR. SEIDL: Hess, Alfred. His last official position was Deputy Gauleiter of the "Foreign Organisation of the N.S.D.A.P.". At present he is in the internment camp in Mergentheim.

THE PRESIDENT: For what purpose do you wish to call him? You said because he was going to speak as to Fifth Column activities; was that it?

DR. SEIDL: Regarding the Fifth Column and the question of whether the "Foreign Organisation of the N.S.D.A.P.", and the "National League for Germanism in Foreign Countries" and the "League of Germans in the East" have anything to do with a Fifth Column or not.


SIR DAVID MAXWELL FYFE: My Lord, I have already conceded that this

[Page 267]

is a relevant issue, and therefore the only question is cumulation. The defendant Hess will himself be able to speak on this point, and the witness further if the Tribunal allows it.

The Tribunal might well consider, in my submission, that an affidavit or interrogatories from a third witness on the point would be sufficient at the moment, unless any further issue is disclosed, in which case Dr. Seidl could summon the witness.

THE PRESIDENT: Well, now, you can pass on to your documents.

DR. SEIDL: Very well. It is my intention first to read further passages from individual documents in Rudolf Hess's document book which was submitted by the prosecution in order to establish the connection. A further justification of the relevancy of these documents would be superfluous, since it is entirely a question of documents submitted by the prosecution which have already been accepted in evidence by the Tribunal.

SIR DAVID MAXWELL FYFE: My Lord, the application is in this form:

"I intend to read pages from the following books: 'Rudolf Hess's Speeches'; 'Directives by the Deputy of the Fuehrer'. The relevancy of these documents can be inferred simply from the fact that both have already been introduced in evidence by the prosecution."
In so far as the documents are documents already before the Tribunal, of course, Dr. Seidl may, within the usual limits, comment on them as much as he likes. If he intends to put in other speeches and directives, documents of the same class, then the prosecution asks that he indicates which speeches and which directives he is going to put in.

DR. SEIDL: What Sir David Maxwell Fyfe just read was the second point of my application. It is true that I also intend to read certain passages from the books containing Rudolf Hess's speeches, and also from the book "Orders of the Deputy of the Fuehrer". But since the prosecution has already submitted passages from both these books, which were likewise already accepted as evidence, I believe I may say that there are at least passages in these books that are most certainly relevant. Whether those passages that I intend to read are relevant or not can only be decided when I submit these documents, and this is exactly what I meant at the beginning of my submission, that it is only possible to decide on the relevancy of a document when one has that document before oneself and knows its precise contents.

SIR DAVID MAXWELL FYFE: I hope Dr. Seidl will realise that this is largely a matter of mechanics. If he is going to introduce new speeches and new directives, they have got to be translated into English, Russian and French; and therefore it will be necessary, for the general progress of the trial, that he should indicate which passages he is going to put in so that they can be translated as well as considered.

I am sure that Dr. Seidl will only desire to use relevant passages. Naturally, every politician makes many speeches on many subjects, and some of Hess's speeches may well not be relevant.

I suggest that it is not unreasonable: we are only trying to help along the general progress of the trial by the request that I have made.

DR. SEIDL: Of course, Mr. President, I shall read only those passages from the speeches, and few of them at that, which are relevant. I have no intention of having whole sections of the book translated if it is not necessary.

I solemnly declare to the Tribunal that neither as counsel for the defendant Hess nor as counsel for the defendant Frank shall I submit one single document that could not be considered as relevant.

THE PRESIDENT: Yes, but what Sir David was saying was that for the mechanics of the Trial, owing to the unfortunate fact that we do not all understand German, it is necessary that these documents which are in German should be

[Page 268]

translated. Therefore, it is necessary for you to specify which speech and which part of the speech you propose to rely upon, and then it will be translated.

DR. SEIDL: Mr. President, I shall, in good time, submit to the Court and to the prosecution every passage from a speech that I intend to read, in a document book. It is not the task of the prosecution, nor of the General Secretary, to do work which, of course, I shall attend to.

SIR DAVID MAXWELL FYFE: My Lord, that is quite all right. That is exactly the point that I was seeking to make.

THE PRESIDENT: Very well. Now you are coming to paragraph 3.

DR. SEIDL: Yes. Thirdly, I shall read passages from the report of the conference between the defendant Rudolf Hess and Lord Byron, who at that time, as I recall, was Lord Privy Seal, and which took place on 9th June, 1941. In this way the motives and aims which caused the defendant Hess's flight to England are to be clarified. The relevancy can be seen from the fact that the prosecution has submitted a report of Mr. Kirkpatrick concerning this conference.

SIR DAVID MAXWELL FYFE: If Dr. Seidl thinks that that conversation adds anything to the conversations with the Duke of Hamilton and Mr. Kirkpatrick, I shall not object to him reading the report.

THE PRESIDENT: Where is the document?

DR. SEIDL: It is in my possession.

THE PRESIDENT: What is the nature of the document? I mean, what authenticity has it? Who made it? Who wrote it?

DR. SEIDL: The document was found among the papers of the defendant Hess which were given to him when he was brought back to Germany from England. It is a copy of the original, that is to say a carbon copy, and a series of official stamps prove beyond doubt that it is the carbon copy of an original.

THE PRESIDENT: The Tribunal would like to see the document.

DR. SEIDL: Very well.

THE PRESIDENT: If you would let us have the document, we will consider it.

DR. SEIDL: Very well.

THE PRESIDENT: Have you finished your presentation?


THE PRESIDENT : Then there is a letter, is there not? There are two other documents referred to, but you are not asking us for those? A document or a letter to Hitler or the Reich Cabinet, dated 10 May, 1941

DR. SEIDL: This application appears to have been made by my predecessor, Dr. Rohrscheidt. I should like to have an opportunity of examining the relevancy of this point.

THE PRESIDENT: Very well. Do you wish to say anything, Sir David, about them?

SIR DAVID MAXWELL FYFE: We have not got that document. The prosecution have not got the letter that the defendant Hess sent to Hitler, and we just simply cannot help on that point.

THE PRESIDENT: Very well. If that document can be located, it shall be submitted to you.

DR. SEIDL: Very well.


DR. HORN (Counsel for the defendant Ribbentrop): I intend to call as the first witness for the defendant Ribbentrop the former Ambassador Friederich Gaus, at present in a camp at Minden near Hannover. Ambassador Gaus was for more than three decades the Head of the Legal Department of the German Foreign Office. I believe that this witness is necessary in view of that capacity alone.

SIR DAVID MAXWELL FYPE: If Dr. Horn would carry out the same procedure as Dr. Stahmer and pause for a moment when he has introduced the

[Page 269]

witness, I shall then be able to indicate in the same way whether there is any objection.

DR. HORN: Certainly.

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