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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd May to 13th May, 1946

One Hundred and Twenty-Seventh Day: Saturday, 11th May, 1946
(Part 4 of 4)

[Page 328]

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.


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?


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.


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?


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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