Sometimes it suffices for the document to be found in the possession of the accused, for its contents to serve as evidence against him. For example, Wigmore says in volume 4, on page 90, section 1073:

"The party's possession of a document made by a third person may well be evidence of the party's knowledge of its contents; but is it sufficient to justify an inference of assent to the statements contained therein? It is easy to imagine instances in which such an inference would be fallacious. Yet, since the party may always exculpate himself and disown the inference by proving the true reason for this retention of the document, the question remains whether the mere fact of possession ought not to suffice at the outset to make the document receivable, subject to explanations that may later be made. This question was in orthodox practice answered in the affirmative."

"Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions, i.e., exceptions to the hearsay rule, to prove the truth of their contents, if he has in any way recognized, adopted, or acted upon them."

Now, the Accused's counsel did not dispute in his argument that the Accused, indeed, made these statements or that he made statements to Sassen, nor that conversations took place. The Accused also said that - and I mentioned this already on Friday - he said so in Bureau 06. The names of Eichmann and Sassen also appear - this, too, I mentioned, and his counsel did not question that - he merely put forward two arguments: one that the Accused was under the influence of alcohol, they brought him to a public bar, they plied him with wine and, as a result therefore, he spoke. It is somewhat difficult to imagine how one can operate a tape recorder in a public bar, amidst the tumult and smoke. But let us suppose that it was feasible, over a period of four months, to take the Accused from time to time - I don't know how many times per day or per week - to a bar to fill him with wine there, and to extract statements from him.

First of all, this does not invalidate the statements. On that there is a precedent in the judgment in Criminal Appeal 186/55 - Victor Mizan versus the Attorney General, Piskei Din 11 page 769, on page 772: "An admission of a drunk man was received, despite the fact that he was drunk, but also despite the fact that the policeman himself supplied the drink to him, in order that he should become intoxicated and make an admission to him." This was the case even for the purposes of an admission under Section 9 of the Evidence Ordinance. If that is so, then this does not invalidate the admission.

But then he says: "This is not exactly what I said; Sassen added words of his own." Your Honours, it is an everyday occurrence that an accused alleges: "My words were not properly recorded, I did not say that exactly, that is not what I intended to say." In such a case, there is an opportunity for them to enter the witness box, take an oath, and explain to the court what they did say.

There is no conflict as to whether such a document existed; there is no dispute that such conversations took place, there is no difference of opinion on the point that the Accused adopted the document as his own by means of his corrections. But it is being said: Sassen altered it. Very well, let the Court evaluate the document, weigh up the Accused's explanation and those of his witnesses, and be convinced in any way it pleases.

Presiding Judge: With regard to the evidence of Sassen, I understood from you that if one of the parties applied to take his evidence in Argentina, there is no guarantee that the Argentinian legal authorities would comply.

Attorney General: There is no certainty of that, even though we would have expected it, but there is no guarantee. I am not at all sure that Sassen is in Argentina at present. At any rate, I can inform the Court of one further fact: I requested material from the authorities dealing with the matter and received the first report last night, from which it transpires that, nothwithstanding the fact that Mr. Sassen, and also Mr. Fritsch, would, indeed, not be welcome visitors to this country, owing to their past, I nevertheless do not find in the material received by me sufficient grounds for charging them under the Nazis and Nazi Collaborators (Punishment) Law. And according to this first report - I must make that reservation - according to this first report, I do not see grounds for putting them on trial, should they come to Israel. I shall examine the material once again. At any rate, whichever way the matter turns out, that is not the decisive factor; the decisive factor is whether the document is admissible or not.

Whatever explanations the Accused is able to give, later on, to the document - that is a different question; whether by his own evidence or by other testimonies. The document's admissibility cannot be determined by whether he can or cannot supply explanations.

From the point of view of identifying the contents, I want to point to dozens of identical passages; if the Court will allow me, I shall give you the list of the comparisons between what Eichmann says to Sassen and what he says to Bureau 06 on the same subject. The words on those topics are almost identical. We have made this comparison, and it is presently in the course of being duplicated in this building; it will be ready within a few minutes. It covers eight pages. Sentence after sentence, on the same subject, actually using the same words. This identifies the person. Even the use of the same vulgar expressions.

The Court will recollect the Accused's remark here in response to the writer of the book "Atom" who did not display sufficient loyalty to Hitler in the closing days, and that vituperative term which he called him, "Arsch mit Ohren" (arse with ears). Exactly the same word appears in Sassen's material, once again concerning a Nazi who did not seem to be so loyal, this time against Gerstein. I do not believe that this expression is in such wide use, that so many people use it. The matter of the "Schlitten fahren" (hauling over the coals) appears again in Sassen's document. And, on this occasion, he says, "Reichsfuehrer-SS wollte mit mir Schlitten fahren" (wanted to haul me over the coals); apparently, the interpretation which Defence Counsel gave us is, indeed, the correct interpretation in this matter.

Presiding Judge: Undoubtedly, it is the correct one.

Attorney General: We really have, if one may put it thus, the footprints of the Accused's expressions, of his style and his language, throughout the length and breadth of the document. At the moment, I have it with me in one copy, but within a few minutes the Court will have several copies of it, and the Court will be able to make comparisons.

Presiding Judge: I believe that we are still at the argument stage. Whatever you read is recorded accordingly.

Attorney General: I am not reading it out. This is one of my arguments, that the words are identical in only thirty- four selected passages. I do not want to read them; it would be more convenient for the Court to receive it as a written document. This is part of my contention - this identical language of the documents.

Presiding Judge: Very well - so you maintain that in thirty- four selected passages there is a total identity?

Attorney General: There is an identity - really like footprints. And, finally, I come to the publication in Life.

Presiding Judge: When was this publication?

Attorney General: That is to be found in T/47.

Presiding Judge: We shall find it, Mr. Hausner. I have asked for that issue.

Attorney General: It was, at any rate, when the Accused was already in Israel. He made no spontaneous assertion that this article was based on material that had never come from him.

Presiding Judge: [After receiving the copy.] It is dated 28 November 1960 and 5 December 1960.

Judge Halevi: Is there a German translation?

Attorney General: We translated it for him into German, and it was submitted to the Accused. He was asked to make his comments, and the Court will find his remarks and their meaning in Exhibits T/48, T/49 and T/50. He does not dissociate himself from the document. He only makes some observation, here and there, throughout the manuscript. The Court will find various markings which are meant to refer to various observations, as appears in those exhibits. Basically, he identifies the document as one arising from his conversations with Sassen. And again, this is an "identity of contents."

For, if the Court will make the comparison on several of Sassen's tapes, it will find that, although Life somewhat embellished, somewhat mitigated, and somewhat adorned the picture in favour of the Accused, still, it is the same. Here, too, the Court will find that the way in which he treated Life was like that in which he treated the Sassen Document; here, too, there are comments - numbers, signs, exactly as was the case with the Sassen Document. And he confirmed it.

Accordingly, I maintain that we have satisfied the test for submitting the Accused's statement, as was laid down by the Supreme Court in the case of Ali Muflah by the late Justice Cheshin, in Criminal Appeal 20-21/49, High Court Judgments, Volume 7, page 25, at page 50.

Presiding Judge: There it was a confession.

Attorney General: That is so, but since Section 9 deals with a confession of any kind, we have discharged our onus of proof. The confession has been proved. For Defence Counsel has stated his argument on the document, and we have given our full reply.

I merely want to add a final observation. Defence Counsel says: You have some passages missing, this is not all, it is only part of the document. This is a matter which must be examined in connection with the weight of the evidence, and not as regards its admissibility. The Court will find this in Roscoe's Criminal Evidence, on page 52.

Presiding Judge: Which edition?

Attorney General: In the 16th edition, of 1952. "The Court of Criminal Appeal thought that a jury should be warned to be cautious of the report of what 'only purported to be a portion' of a conversation which the witness was not intended to hear."

In other words, if we submit only a part, the Court will itself take care, lest there are other portions which are in favour and to the benefit of the Accused, but this does not affect admissibility in any way whatsoever. Hence I maintain: We have proved the identity and the connection...

Judge Halevi: Before you conclude your argument, I should like to ask a further question. The question has been asked, but I should like possibly to elucidate it in regard to the nature of the handwritten corrections. There are about seventy continuous pages of corrections or of further comments. I wanted to put the question, without knowing what is written there, in an abstract or legal manner, thus, in general terms...

Attorney General: What is the nature of the corrections?

Judge Halevi: No, how does the question of the nature of the corrections fit in with the problem of the document's admissibility?

Attorney General: It fits in very well.

Judge Halevi: Before you give me your explanation, I would further observe: In documents T/48-T/51, the comments of the Accused on this Life article, there is also a confession of the Accused which was made by a recording and a transcript. There is no statement to the effect that a particular document represents the correct transcript, but only in a general way, not only that a conversation took place, but that the conversation was recorded and was converted into a typed record, a transcript; and he argues that in every transcript of a recording, errors occur and, moreover, if the transcript is subsequently translated from German into English, and back again here, by the Prosecution into German, this will certainly multiply the errors.

But, basically, there is here a confession that the conversation was recorded and that a transcript of the recording was made. Now, the transcript is a technical process whereby, if this process is not falsified, it records only the real conversation. Tape recording is such a process where, if there is no deliberate falsification, the recorded matter is what was said by both parties to the conversation, or by one of them.

Attorney General: Except for an error on the part of the typist, and there are such errors which have been corrected.

Judge Halevi: And this brings me to the possible nature of the alterations. If a man speaks and knows that his words are being recorded, and the recording is committed to print in the form of a transcript, and afterwards the transcript is submitted to him, there is room for two kinds of comments - a correction in the following way: "This has been incorrectly recorded - this or that word has been distorted." That is a formal matter. It would then be necessary to compare his spoken words with the recording. But there is also room for additions, or let us say...

Presiding Judge: Substantive ones.

Judge Halevi: What we called at our previous Session substantive corrections - they, in fact, are not in the nature of corrections which are important for us. We can dispense with them. These corrections are only meant to say: "On the first occasion I did not give expression to my views in a complete manner - I want, at this additional opportunity, to express what I am aiming at in a further way. This does not mean to say that I want to deny that I, in fact, said so on the previous occasion, but that I want now, before my words are published or put to further use, I want to explain my words in another fashion or in an additional or amended manner, but that does not mean that the earlier words were not spoken by me."

Therefore, one must know exactly what these corrections were, of either category; here we have to draw the distinction.

Attorney General: If the Court will permit me, I shall give the information, as far as I am able. The material consists of two parts. The transcripts of sixty-seven tapes which have been arranged in order by us, in sixteen files, and material in the Accused's handwriting which has been arranged in File 17. We do not have tapes 6-10, and we lack page 3 of tape 41. Tape 52 has been erroneously numbered 51. Most of the tapes contain handwritten corrections and, from the beginning, also typewritten corrections, or they contain numbered annotations referring to alterations on separate sheets.

In fifteen of the sixty-two tapes, there are no corrections. The corrections appear in two forms, and there is no criterion pointing to a difference between the two forms. There are alterations in the transcript, unnumbered; there are alterations with a number in the transcript, and there are alterations on separate sheets. In tapes 11 and 12, there is a list of corrections of errors in the first pages. The number of corrections in the transcripts amounts to several hundred.

Presiding Judge: Several hundred corrected errors?

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