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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
7th June to 19th June 1946

One Hundred and Fifty-Fourth Day: Thursday, 13th June, 1946
(Part 1 of 10)

[Page 194]

THE PRESIDENT: The Tribunal has considered the question of the time to be taken by counsel in their concluding speeches. The provisions of Article 18 of the Charter directing the Tribunal to confine the trial strictly to an expeditious hearing must be observed, and counsel clearly could not be permitted to speak at any length they choose. Necessity dictates that there must be some limitation, or this already lengthy trial might be prolonged beyond all reason.

The tribunal understands that the prosecution will voluntarily limit their concluding speeches to three days in all, and some voluntary limitation should be made by counsel for the defence. The evidence for the defendants has been fully heard in great detail, and what is now needed is not a detailed analysis of the evidence, but a concise review of the main matters.

The Tribunal wishes to make clear that no admission will be inferred from failure to mention any particular matter in argument. On this view, in the opinion of the Tribunal, the speeches of the counsel for the defence - including the speech to be made on behalf of all the defendants on the submission of law - should be concluded in fourteen days in all. This will allow the defence double the time taken by the prosecution, both in opening and in summing up. By mutual arrangement between counsel, these fourteen days could be apportioned as they think fit, and the Tribunal would prefer that they make the apportionment rather than make the apportionment itself.

The Tribunal expects, therefore, that counsel for the defence will prepare their speeches in accordance with what I have said, and will advise the Tribunal as soon as possible of the apportionment of time that they have made. If they find themselves unable to agree on this apportionment, the Tribunal will give further consideration to the matter.

The Tribunal desires also to point out to counsel - both for the prosecution and for the defence - that it will materially help the Tribunal if counsel would submit translations of their speeches at the time they make them.

That is all.

DR. NELTE (counsel for defendant Keitel): Mr. President, the decision which you have just announced to us has surprised the defence, since they have not been previously heard with reference to this question. This appears to us to be all the more regrettable since the decision is against the most elementary rights of the defence, because it prevents us from stating in court what, in this most important trial, has to be said with regard to the defendants and the problems with which they are confronted.

At this moment we are not yet in any position to survey the entire material. If I were to state, without wishing to forestall the other defendants' counsel, the case of the defendant Keitel as an example, you will understand that the material alone which has appeared after the cross-examination puts me in an extremely difficult position. I am sure that a large number of the other defendants' counsel as well will share my opinion that these matters cannot be dealt with collectively. While every attempt should be made to deal comprehensively with these matters, nevertheless, in my opinion, the cases of the individual defendants should be dealt with separately.

[Page 195]

Fourteen days appears to me a very short time. In practice, it is almost impossible to make a fair apportionment, that is, to deal properly with the individual questions.

Might I suggest, therefore, that the decision which you have just announced - I am not sure whether it was only a suggestion - should be reconsidered after consultation with the defence. Without wanting to anticipate on the reasoned statement which all the counsel for the defence intend to make, I wish, nevertheless, formally to raise objection now to the decision limiting the defence beyond the limits of what is possible.

THE PRESIDENT: Do counsel either for the prosecution or the defence wish to make any other observations to the Tribunal upon this subject?

MR. DODD: Mr. President, I would like to state that I take exception to Dr. Nelte's argument that it is a violation of an elementary right of these defendants, because in our country, I think I am quite right in saying that, it is quite common practice for our courts to restrict counsel in the matter of final argument, even when -

THE PRESIDENT: I am sorry, Mr. Dodd, but I am afraid there are three voices, English, French and Russian coming through on the Russian circuit.

(The proceedings were suspended temporarily.)

THE PRESIDENT: Mr. Dodd, the interpreter thinks it is all right now.

MR. DODD: What I wish to say very briefly is that with respect to Dr. Nelte's argument that a restriction in time with respect to the final argument, is a violation of a fundamental right of these defendants, I wanted to call to the Tribunal's attention that in our country it is, I would say, rather common practice for our courts to restrict counsel in time in final argument, even in jury cases where there is much more need for argument, as the Tribunal has pointed out.

THE PRESIDENT: Does any other counsel wish to make any other observations?

DR. VON LUDINGHAUSEN Counsel for the defendant von Neurath): Mr. President, to begin with, I should like to make some remarks regarding the limit imposed upon our time. If we are limited to 14 days, then that means approximately four hours per defendant for our final speeches. But in reality these four hours are not four hours, since, because of the technical arrangements in this court room, we are forced to speak much more slowly than we would speak in a direct final speech, in a free statement. That is to say, from the four hours left to us on an average, we must deduct the time which we lose through having to speak more slowly.

In my opinion, four hours would in reality amount to only three hours. Mr. President, I believe that if you consider these facts you will agree with us in these three hours we cannot possibly do justice to all the material available for every defendant and thus fulfil that purpose which the final address is intended to fulfil.

The main purpose of this Tribunal, which is unique in history, is to establish the truth; but we cannot establish the truth by merely making an arbitrary selection of individual actions. Our main task must be to show what led to these individual actions. Accordingly, it is for me in my capacity as defence counsel for the defendant, von Neurath, who was the responsible leader of the foreign policy of the Reich until 1938, to show that all the actions of which my client is accused, were logically and unavoidably the outcome of the circumstances as they developed This sequence of historical events explains everything that happened up to the day when my client handed in his resignation. But I can make that clear only if I am able to present the different stages of development, at least in broad outline. Moreover, gentlemen, if you take into consideration that I still have to deal with the activities of my client as a Reich Protector, which for legal reasons, is not altogether as simple as it might appear, you will no doubt admit that I cannot possibly do that in a period which is tantamount to only three hours.

[Page 196]

I want to reply to the statement of the American prosecutor, that we are not before an American court here. I have just been trying to make enquiries about this, and there is no information to the effect that in international tribunals, such as, for instance, the Hague Courts, or the courts in Egypt, a limitation has ever been imposed upon the duration of the final speeches of the defence. That is why I beg you to take into consideration that we are not before an American court here, but that this is an international tribunal, and that this international tribunal goes far beyond anything that has existed before. It also goes far beyond the task of any military tribunal in Germany which has up to now dealt with small sections of this tremendous complexity and never have the military tribunals imposed a time limit upon the defence when making their final speeches.

Gentlemen, if you take all this into consideration, then I hope you will allow me to ask you once more to reconsider your decision and not have us give the impression that we are not able to do our duty in presenting our cases for our clients.

GENERAL RUDENKO: Gentlemen of the Tribunal, I will only add very little to what my colleague Mr. Dodd has already said. The penal code of our country admits the right of the Tribunal to impose limitations upon both the prosecution and the defence in their final plea.

I believe that the argument of the defence, to the effect that this decision of the Tribunal is putting limits on their rights and is unjust, is unfounded. In practice, the defence is already submitting evidence now in the case of their clients, and has every opportunity to give a complete presentation. I believe, gentlemen of the Tribunal, that justice does not consist in the endless conduct of the present trial.

I therefore uphold the argument of Mr. Dodd, and consider the decision of the Tribunal quite just.

DR. KUBUSCHOK (Counsel for defendant von Papen): Mr. President, will you please permit me to make a brief statement? At no stage of the proceedings can the duration of a trial be foreseen.

At the beginning one cannot foresee the time required and, therefore, one cannot limit the time which the taking of evidence will require. Neither can the following stages of the proceedings, the length of the statements presented by the defence be forecast, and cannot therefore be limited. The value of the defence - and, after all, that is the only reason why a defence is included in these proceedings at all - is that a man who is given that professional task and who possesses the necessary qualifications, must be able to put before the Tribunal all the material which, after long hours of work and intimate conversations with his client, he has found worthy of presentation.

That must be done through such an intermediary; and to what extent he should state his case is something that he, as an expert, must be able to decide. Nobody participating in the proceedings, whether of the Tribunal or of the defendants' counsel, can even approximately foresee what might be necessary in this connection.

That is why I believe that no dates should be fixed either for the case for the prosecution, or the hearing of evidence, or the case for the defence. During the other stages of this trial, we have had to contend with the same difficulties. In limiting the proceedings as to time, we can only be guided by what is relevant and expedient. Thus in this court we have witnessed again and again how the President has steered the proceedings with skill and consideration, always keeping them within the necessary limits. I cannot understand why the same procedure should not be applied to the final speeches, and I believe that the self-discipline which naturally every experienced counsel applies to himself, will keep the speeches within suitable limits. But I honestly believe that no one, with the exception of the immediate participant, and he probably only after all the evidence has been heard, can anticipate how much time will be required, and this, in my opinion, precludes the imposing of a time limit at this stage. If the statement made by the Tribunal should be considered as a suggestion to limit our speeches - and in

[Page 197]

this connection we are particularly grateful for the indication given as to the way the evidence should be handled - then by following the Tribunal's suggestion we shall most certainly be able to impose upon ourselves a limitation which will do justice to all parties.

THE PRESIDENT: I do not propose to go fully or at all into the argument which led the Tribunal to make the announcement which I made this morning, but I think it would be desirable for counsel for the defence, before they make any formal objection to that announcement, to study it. But I do desire to say on behalf of the Tribunal that that announcement was not made without consultation both with counsel for the prosecution and counsel for the defence, and that was done in closed session, and we heard both counsel for the prosecution and counsel whom we understood to be representative counsel for the defence, and they made the suggestion which they thought right to us at that time, and we fully considered it. We intimated to them that they should draw the attention of their colleagues to what passed at that hearing in closed session. Therefore, it is entirely inaccurate to say, as Dr. Nelte did, that the announcement was made without hearing counsel for the defence.

I only desire to add to that, that in the circumstances, the Tribunal will give further consideration to the matter, but the suggestion made in the announcement was that the fourteen days, which the Tribunal thought sufficient for the speeches for the defendants, should be apportioned voluntarily among counsel. Those fourteen days are full days and will not be taken up at all by any argument on the organizations, and until the defendants' counsel have attempted to make that apportionment, it must be obviously impossible for them to know whether they will be able to make their speeches, which are not speeches that are necessarily detailed examinations of the evidence, but are arguments drawing the attention of the Tribunal to the main points which they desire to draw the attention of the Tribunal to. The counsel for the defence ought, therefore, to go into the matter together, as the Tribunal understood they were doing, and see whether they can satisfactorily present their speeches within that time. All the arguments which have been presented to us this morning, were fully presented to us by counsel for the defence who appeared before us at the closed session, one of whom has addressed us this morning.

Now the Tribunal will go on with the hearing of the case.

DR. STEINBAUER (counsel for the defendant Seyss-Inquart):

Direct examination of the witness, Dr. Rainer.


Q. Witness, in answer to the last question put by the American prosecutor yesterday, you stated that you wrote your letter with a certain purpose, and I now ask you what that purpose was?

A. Some time after the Anschluss, there were hostile activities, intrigues against Dr. Seyss-Inquart and some other people. They came from dissatisfied radical elements in Austria and the Reich. They took advantage of Dr. Seyss-Inquart's hesitant attitude on the 11th of March, his clinging to the revolutionary line and to the principles of the two agreements between the two States, to accuse him of being a separatist, or even worse -

Q. Perhaps, witness, you can be a little more brief.

A. These people seemed to be dangerous, because Burckel, and, I believe, Heydrich too, were behind them. I considered these attacks to be unfair and therefore I brought out certain facts and arguments and worded my report in such a way that the addressees would understand it and be calmed down.

Q. So that, if I have understood you correctly, in this letter you sought to stress the merits of the Party on the one hand, and to claim indulgence for Seyss-Inquart on the other hand?

A. Yes. That is how I would express it.

[Page 198]

Q. Now, my second question. In this letter you mentioned that Seyss-Inquart had taken a letter of ultimatum to Schuschnigg. Have you any recollection to the effect that he himself dictated and had this letter written in his office?

A. Dr. Steinbauer, you mean the letter of ultimatum written in the afternoon of the 11th of March?

Q. Yes, that is the one.

A. I believe that that letter was written in his office and I also believe I participated in writing it.

Q. Then you go on to say, in the letter put to you by the prosecutor, that through the collaboration of Dr. Jury and Dr. Leopold, Seyss-Inquart had become a State counsellor. I ask you whether Dr. Jury and Dr. Leopold had any influence at all on Schuschnigg?

A. No, that cannot have been the intention.

Q. The prosecutor, in support of his statement yesterday, submitted a second document. It was a speech which you had made as Gau Speaker in Carinthia. Do you remember that?

A. Yes.

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