dtufail/nuremberg-trials-corpus huggingface dataset:
DR. DIX: I should like to make one request that at least the technical possibilities -- that at least the counsel of these defendants who are being cross-examined also be given the document that is submitted to the defendant, so that they are in a position, just as the Tribunal is, to follow the examination. If Justice Jackson says that it is his opinion that it would be right for the defense counsel -- in this case my colleague Stahmer -- to receive this document only after the examination -- in this case of Goering -- has ended, I beg earnestly, in the interest of the dignity and prestige of the Defense, to take objection to this suggestion of Justice Jackson's. I do not believe that he means by that to insinuate that the Defense Counsel would be able -- having these documents in its hands at the same time as the Tribunal and at the same time as the witness -- somehow through signs or otherwise to influence the defendant and thereby disturb the cross-examination by Mr. Justice Jackson, or by the prosecutor. Mr. Justice Jackson certainly did not mean that, but one might draw that conclusion. I therefore make this request: If in the cross-examination, for the purpose of the cross-examination, in view of the altogether justified element of surprise, a document is presented to a witness that at the same time is presented to the Tribunal, that at least a copy of this document be given at the same time to the defense counsel, the defense counsel concerned, either the one who has called the witness or the one whose defendant is in the witness box, so that he can have some idea of what the witness is being confronted with, for Goering could read this document, but Dr. Stahmer could not. In other words, he was not in a position to follow the next part of Mr. Justice Jackson's cross-examination. That is certainly not intended, and would certainly not be fair, and I should therefore like to ask Mr.
DR. DIX: Justice Jackson to reply to my suggestion, and my application, in order to arrive at an understanding and thereby to relieve the Tribunal of the decision on a question that to me seems self-evident.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal is inclined to think -- the Tribunal certainly thinks -- that you are perfectly right, that there is no necessity, at all, as I have already stated, to disclose the document to the defendants before you use it in cross-examination. But, at the time you use it in cross-examination, is there any objection to handing a copy of it to the counsel for the defendant who is being cross-examined?
MR. JUSTICE JACKSON: In some instances it is physically impossible because of our situation in reference to these documents. A good many of these documents have come to us very lately. Our photostatic facilities are limited.
THE PRESIDENT: I am not suggesting that you should hand it to all of them, but only to Dr. Stahmer.
MR. JUSTICE JACKSON: If we have copies, I have no objection to doing that, but if we do not have them in German -- our difficulty has always been to get German copies of these documents.
DR. DIX: May I say something else. If it is not possible in German, then it should at least be possible in English, for one English copy will certainly be available. Furthermore, if it is a question of German witnesses, such as Goering, the document will be shown him in German anyhow; it will certainly be shown the witness in German. I believe that will surely be possible. [Dr. Siemers approached the lectern.]
THE PRESIDENT: We do not really need to hear more than one counsel on this sort of point. I have already ruled upon your objection, which was that the document should be produced beforehand, but the Tribunal has already ruled that objection should be denied.
DR. SIEMERS: Mr. President, I am sorry. My motion was that the Defense Counsel should receive these documents at the same time the Tribunal does. I am not of the opinion expressed by Dr. Dix, that only one defense counsel should receive it. If it is a report regarding the Reich Defense Council, then it is a document important to several defendants. One copy is therefore not sufficient, but each defense counsel must have one. I believe that Mr. Justice Jackson...
THE PRESIDENT: But not at this moment. There are, as we all know, the very greatest difficulties in producing all these documents, and extraordinary efforts have been made by the Prosecution and the Translating Division to supply the defendants with documents, and with documents in German, and it is not necessary that every member of the Defense Counsel have these documents at the time the witness is being cross-examined. I am sure the Prosecution will do everything it can to let you have the documents in due courseany document that is being used. In the opinion of the Tribunal it is perfectly sufficient if one copy of the document is supplied to the counsel for the witness who is being cross-examined. As I say, the Prosecution will doubtless let you have copies of these documents in due course. You are appearing for the Defendant Raeder , and the Defendant Raeder, I am afraid, at the present rate will not be in the witness box for some time.
DR. SIEMERS: The result of that is that the defense counsel who is not momentarily concerned, cannot understand the cross-examination. As to the technical question, I ask the Court to consider that I cannot follow Justice Jackson on this technical point. The document is mimeographed by means of a stencil. In mimeographing it makes no difference at all whether 20, 40, 80, or 150 copies are produced. It makes no difference from the point of view of time, except perhaps 4 or 5 minutes. I consider for this reason that one can hardly refer to technical difficulties in this matter.
THE PRESIDENT: Counsel for the Prosecution will consider what you say, but no rule has been made by the Tribunal that every document should be supplied to every counsel during crossexamination. Goering: I should like to say again in regard to the document that this is not ...
MR. JUSTICE JACKSON: May I respectfully ask that the witness be instructed to answer the question and reserve his explanations until his counsel takes him on. Otherwise, this cross-examination cannot successfully be conducted, in the sense of being reasonable in time.
THE PRESIDENT: I have already explained, on several occasions, that it is the duty of defendants when they are in the witnessbox, and the duty of witnesses, to answer questions directly, if they are capable of being answered directly, in the affirmative or in the negative; and if they have any explanation to make afterwards, they can make it after answering the question directly.
MR. JUSTICE JACKSON: I call your attention to Item 3, under II, "Finances," reading as follows: You find that in the minutes, do you not? Goering: Yes, that is there;
MR. JUSTICE JACKSON: And you find the minutes signed by Woermann, do you not? Goering: No, that is not true. I beg your pardon? Here on the photostat Woermann has signed it, that is not Bormann. I know Bormann's signature well, it is quite different.
MR. JUSTICE JACKSON: I said Woermann. Goering: Woermann, yes.
MR. JUSTICE JACKSON: All right, my poor pronunciation. Well, was it not a fact that you set up a working committee under the Reich Defense Council which did meet from time to time and did carry on certain work? Goering: I have already explained recently: That was the committee of departmental chiefs.
MR. JUSTICE JACKSON: And I call your attention to Document Number EC-405, minutes of a meeting of the Working Committee of the Reich Defense Council, Meeting Number 10. Goering: I understood the President to say before that when I have answered the question, I can add an explanation that seems necessary to me. Now that I have clearly answered your question with regard to the first document, I want to stress once again that this was not a meeting of the close Reich Defense Council but a general calling together of all ministers, state secretaries and numerous other persons. And that I began my statements as follows: Concerning the Reich Defense Council, about which we have been talking, consisting of Schacht -- or rather -- of the triumvirate -- it is attested here in writing once more, as I have correctly said, that this Council never met. I ask to have the question about the second document repeated, as I have forgotten it.
MR. JUSTICE JACKSON: You testified that the movement into the Rhineland had not been planned in advance. Goering: Only a short time in advance, I emphasized.
MR. JUSTICE JACKSON: How long? Goering: As far as I recall, at the most 2 to 3 weeks.
MR. JUSTICE JACKSON: Now, I call your attention to the minutes of the 10th meeting of the Working Committee of the Reich Defense Council, Document Number EC-405 toward the end of that document, the discussion on 6th month, 26th day of 1935, which reads as follows ... Goering: May I ask what page? This document is very long and is new to me. What page, please, otherwise I shall have to read the whole document.
MR. JUSTICE JACKSON: Turn to the last paragraph and we will work backwards. Do you find that part? Goering: This document that has been handed to me contains alternating statements of various individuals, that is, a dialogue. May I ask once more... The last paragraph contains nothing of what you have stated, apparently there must be a difference between the German and English texts. The last paragraph here is altogether irrelevant. Where, please, am I to read in the document?
MR. JUSTICE JACKSON: Do you find the third paragraph from the end? If my document is correct we have got the same document. Goering: You must tell me who was speaking, for different persons speak here. [The place in the document was indicated to the defendant.] Now it has been shown to me. Under the name Jodl ; I have to read through it first.
MR. JUSTICE JACKSON: Do you find this: Do you find this? Goering: Yes.
MR. JUSTICE JACKSON: And do you find the next paragraph, Do you find this? Goering: Yes.
MR. JUSTICE JACKSON: And you also find, Goering: Oh, no, here you have made a great mistake. The original phrase -- and this alone is the point in question-is: "c) Preparation for the clearing of the Rhine." It is a purely technical preparation that has nothing at all to do with the liberation of the Rhineland. Here it says, first, mobilization measures for transportation and communications, then "c) Preparation for the clearing of the Rhine," that is, in case of mobilization preparations the Rhine is not to be overburdened with freighters, tugboats, et cetera, but the river has to be clear for military measures. Then it continues: "d) Preparation for local defense," et cetera. Thus you see, it figures among small quite general, ordinary and usual preparations for mobilization. The phrase used by the Prosecution ...
MR. JUSTICE JACKSON: Mobilization, exactly. Goering: That, if you remember, I stressed clearly in my statement, that in the demilitarized zone general preparations for mobilization were made. I mentioned the purchase of horses, et cetera. I wanted only to point out the mistake regarding "clearing of the Rhine," which has nothing to do with the Rhineland, but only with the river.
MR. JUSTICE JACKSON: Well, those preparations were preparations for armed occupation of the Rhineland, were they not? Goering: No, that is altogether wrong. If Germany had become involved in a war, no matter from which side, let us assume from the East, then mobilization measures would have had to be carried out for security reasons throughout the Reich, in this event even in the demilitarized Rhineland; but not for the purpose of occupation, of liberating the Rhineland.
MR. JUSTICE JACKSON: You mean the preparations were not military preparations? Goering: Those were general preparations for mobilization, such as every country makes, and not for the purpose of the occupation of the Rhineland.
MR. JUSTICE JACKSON: But were of a character which had to be kept entirely secret from foreign powers? Goering: I do not think I can recall reading beforehand the publication of the mobilization preparations of the United States.
MR. JUSTICE JACKSON: Well, I respectfully submit to the Tribunal that this witness is not being responsive, and has not been in his examination, and that it is ... [The defendant interposed a few words which were not recorded.] It is perfectly futile to spend our time if we cannot have responsive answers to our questions. [The defendant interposed a few words which were not recorded.] We can strike these things out. I do not want to spend time doing that, but this witness, it seems to me, is adopting, and has adopted, in the witness box and in the dock, an arrogant and contemptuous attitude toward the Tribunal which is giving him the trial which he never gave a living soul, nor dead ones either. I respectfully submit that the witness be instructed to make notes, if he wishes, of his explanations, but that he be required to answer my questions and reserve his explanations for his counsel to bring out.
THE PRESIDENT: I have already laid down the general rule, which is binding upon this defendant as upon other witnesses. Perhaps we had better adjourn now at this state. [The Tribunal adjourned until 20 March 1946 at 1000 hours.]
MR. JUSTICE JACKSON: If the Tribunal please, the last question which I asked last night referring to mobilization preparations in the Rhineland, as shown in the official transcript, was this: "But of a character which had to be kept entirely secret from foreign powers?" The answer was: "I do not believe I can recall the publication of the preparations of the United States for mobilization." Now, representing the United States of America, I am confronted with these choices -- to ignore that remark and allow it to stand for people who do not understand our system; or to develop, at considerable expense of time, its falsity; or to answer it in rebuttal. The difficulty arises from this, Your Honor, that if the witness is permitted to volunteer statements in cross-examination there is no opportunity to make objection until they are placed on the record. Of course, if such an answer had been indicated by a question of counsel, as I respectfully submit would be the orderly procedure, there would have been objection; the Tribunal would have been in a position to discharge its duty under the Charter and I would have been in a position to have shortened the case by not having that remark placed. The Charter in Article 18 provides that the Tribunal shall rule out irrelevant issues and statements of any kind whatsoever. We are squarely confronted with that question; we cannot discharge those duties if the defendant is to volunteer these statements without questions which bring them up. I respectfully submit that, if the ruling of the Tribunal that the defendant may volunteer questions of this kind is to prevail, the control of these proceedings is put in the hands of this defendant, and the United States has been substantially denied its right of cross-examination under the Charter, because cross-examination cannot be effective under this kind of procedure. Since we cannot anticipate, we cannot meet ...
THE PRESIDENT: I quite agree with you that any reference to the United States' secrecy with reference to mobilization is entirely irrelevant, and that the answer ought not to have been made, but the only rule which the Tribunal can lay down as a general rule is the rule -- already laid down -- that the witness must answer if possible "yes" or "no," and that he may make such explanations as may be necessary after answering questions directly in that way, and that such explanations must be brief and not be speeches. As far as this particular answer goes, I think it is entirely irrelevant.
MR. JUSTICE JACKSON: I must, of course, bow to the ruling of the Tribunal, but it is to the second part, I quite recall the admonition of the Court that there shall be answers "yes" or "no." This witness, of course, pays not the slightest attention to that, and I must say I cannot blame him; he is pursuing his interests. But we have no way of anticipating, and here we are confronted with this statement in the record, because when these statements are volunteered they are in the record before the Tribunal can rule upon them and I have no opportunity to make objections, and the Tribunal have no opportunity to rule. And it puts, as I said before, the control of these proceedings in the hands of the defendant, if he first makes the charges and then puts it up to us to ignore them or answer them by long cross-examination in rebuttal; and I think the specific charge made against the United States of America from the witness stand presents that. Your Honor now advises the United States that it is an improper answer, but it is in the record and we must deal with it. I respectfully submit that unless we have ...
THE PRESIDENT: What exactly is the motion you are making? Are you asking the Tribunal to strike the answer out of the record?
MR. JUSTICE JACKSON: Well, no; in a Trial of this kind, where propaganda is one of the purposes of the defendant, striking out does no good after the answer is made, and Goering knows that as well as I. The charge has been made against the United States and it is in the record. I am now moving that this witness be instructed that he must answer my questions "yes" or "no" if they permit an answer, and that the explanation be brought out by his counsel in a fashion that will permit us to make objections, if they are irrelevant, and to obtain rulings of the Tribunal, so that the Tribunal can discharge its functions of ruling out irrelevant issues and statements of any kind whatsoever. We must not let the Trial degenerate into a bickering contest between counsel and the witness. That is not what the United States would expect me to participate in. I respectfully suggest that if he can draw any kind of challenge ...
THE PRESIDENT: Are you submitting to the Tribunal that the witness has to answer every question "yes" or "no" and wait until he is re-examined for the purpose of making any explanations at all?
MR. JUSTICE JACKSON: I think that is the rule of cross-exammation under ordinary circumstances. The witness, if the question permits it, must answer, and if there are relevant explanations they should be reserved until later. Now let me come back to the specific problem I have right here this morning. Here is an answer given which the Tribunal now rules is irrelevant. But we have no opportunity to object to it. The Tribunal had no opportunity to rule upon it. The witness asks, "Did you ever hear of the United States publishing its plan of mobilization?" Of course, we would have objected. The difficulty, is that the Tribunal loses control of these proceedings if the defendant, in a case of this kind where we all know propaganda is one of the purposes of the defendant, is permitted to put his propaganda in, and then we have to meet it afterwards. I really feel that the United States is deprived of the opportunity of the technique of cross-examination if this is the procedure.
THE PRESIDENT: Surely it is making too much of a sentence the witness has said, whether the United States makes its orders for mobilization public or not. Surely that is not a matter of very great importance. Every country keeps certain things secret. Certainly it would be much wiser to ignore a statement of that sort. But as to the general rule, the Tribunal will now consider the matter. I have already laid down what I believe to be the rule, and I think with the assent of the Tribunal, but I will ascertain...
MR. JUSTICE JACKSON: Let me say that I agree with Your Honor that as far as the United States is concerned we are not worried by anything the witness can say about it -- and we expected plenty. The point is, do we answer these things or leave them, apart from the control of the Trial? And it does seem to me that this is the beginning of this Trial's getting out of hand, if I may say so, if we do not have control of this situation. I trust the Tribunal will pardon my earnestness in presenting this. I think it is a very vital thing.
THE PRESIDENT: I have never heard it suggested that the Counsel for the Prosecution have to answer every irrelevant observation made in cross-examination.
MR. JUSTICE JACKSON: That would be true in a private litigation, but I trust the Court is not unaware that outside of this courtroom is a great social question of the revival of Nazism and that one of the purposes of the Defendant Goering -- I think he would be the first to admit -- is to revive and perpetuate it by propaganda from this Trial now in process.
THE PRESIDENT: Yes, Doctor Stahmer?
DR. STAHMER: I just wanted to explain the following: An accusation has been made as if we intended to make propaganda here for Nazism, or in some other direction. I do not think this accusation is justified. Neither do I believe that the defendant intended to make an accusation against the United States. I think we have to consider the question that was put to him. That is, it was pointed out to him by the Prosecution that this document which was submitted to him was marked "secret." Then he stated that he had never heard that a document of that kind would have been made public in the United States. If instead of the U.S.A. he had said any other nation, then the remark would have been considered harmless. In my opinion the answer was quite justified. The witness should be given the possibility not only to answer "yes" or "no," but to give reasons for his answer, as ruled by the Court.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal considers that the rule which it has laid down is the only possible rule and that the witness must be confined strictly to answering the question directly where the question admits of a direct answer, and that he must not make his explanation before he gives a direct answer; but, after having given a direct answer to any question which admits of a direct answer, he may make a short explanation; and that he is not to be confined simply to making direct answers "yes" or "no" and leaving the explanation until his counsel puts it to him in his re-examination. As to this particular observation of the defendant, the defendant ought not to have referred to the United States, but it is a matter which I think you might well ignore.
MR. JUSTICE JACKSON: I shall bow to the ruling, of course. I wish to make a statement to the Tribunal about one of the documents. At the conclusion of the session yesterday we were considering Document Number EC-405. The Defendant Goering challenged the use of a word which he said should have been translated "clearance" rather than "liberation." We have since had the translation checked and find that the defendant is correct. This document was introduced under Exhibit Number GB-160 on the 9th of January, at Page 2396 of the Tribunal's records (Volume V, Page 28), and since it has already been received in evidence and it is before the Tribunal, we think it incumbent upon the Prosecution to make that correction now for the record. [Turning to the witness.] You stated yesterday that the minutes of the Reich Defense Council with which you were presented were not minutes of a meeting of the Reich Defense Council as such? Goering : Yes, I said that.
MR. JUSTICE JACKSON: And your testimony, notwithstanding that document, still stands, I take it, that the Reich Defense Council never met? Goering: I said that also, yes.
MR. JUSTICE JACKSON: I now ask to have you shown a document which has just come into our possession, the minutes of the second session of the Reich Defense Council. I should have said, just come to us for translation. We have not had it translated; we just discovered it among our great collection of documents.
THE PRESIDENT: Could Doctor Stahmer have a copy in English or not?