dtufail/nuremberg-trials-corpus huggingface dataset:
and be examined as well, and all the documents are announced and made known and considered from the point of their reliability. Then the Tribunal in open court hears what the witnesses and accused can say in favor of and against the accused. Only after everything has been heard, examined, and made known after that only the Tribunal can arrive at its judgment. Let us admit the possibility of a case when the accused first admits his crime, and then in open court denies and says he never committed the crime and was not even on the spot when it was committed. At first the Tribunal will again interrogate the accused by reminding him of his own admission of the crime, then call witnesses who will prove he was at the particular spot and had committed the crime, and also present all available documents. It is quite possible that after that the accused will be compelled to admit his crime. I wanted to emphasize that there should be an open court, open to the public as well, and during the hearing everything that would be said by the accused or witnesses would be heard by those present, by the public and the newspaper correspondents, so that they could follow in all details all the proceedings. MR. JUSTICE JACKSON. The trial that is contemplated here would be the same kind of proceeding then that the Kharkov trials were. GENERAL NIKITCHENKO. Not exactly the same because in the charter we are preparing there are certain points which make the procedures somewhat different from those adopted in Kharkov. According to Soviet law, the prosecutor is the first to interrogate, while here it appears the counsel calling the witness is the first. Secondly, the opening statement of the prosecutor is not known in the Soviet lam at all. So there are certain differences. MR. JUSTICE JACKSON. But essentially it is the same procedure the same method of proceeding except for those small variations. PROFESSOR TRAINI.N. The differences are not so small as they seem to be. For instance, according to the Soviet procedure, the prosecution and counsel are exactly on equal footing in the case while, according to the charter, the prosecution has definitely the predominant part to play during the case; and although that is contrary to the Soviet legislation on this
as they seem to be. For instance, according to the Soviet procedure, the prosecution and counsel are exactly on equal footing in the case while, according to the charter, the prosecution has definitely the predominant part to play during the case; and although that is contrary to the Soviet legislation on this subject, we decided to accept it simply because that is the usual procedure in England and the United States and therefore it is more widely known. SIR DAVM MAXWELL FYFE. I wonder whether General Nikitchenko would look at paragraph 24, as I think it Would be the easiest way. Is that accepted? GENERAL NIKITCHENKO. It should be added here that the prosecution can interrogate both the defendant and the witnesses as in the proposal. Otherwise, it is quite acceptable. MR. JUSTICE JACKSON. 1 think it is very important that we do not come out of here with a document which some construe one way and some another. If we adopt a system that we both understand, 1 do not think it is so important what it is. I by no means insist that ours is better than anyone's else, but it is important we understand so that there is no future disagreement causing us to spend a lot of trial time in controversy. I would like to refer to the draft of indictment which was presented by the British conferees [XXXI], which is the thing in our procedure which would initiate the case. That would be filed with the court and is all that the court would know about the case until the day of the trial. Now this, of course, is a rough proposal. It might have a great deal more than this in it. I speak with very poor knowledge of British criminal law *and somewhat imperfect knowledge of our own, but, generally speaking, we are not supposed to plead our evidence. The purpose of the indictment in our system is to inform the defendant, not what evidence is against him, but what ultimate charge he must meet. I would be quite happy to see a good deal more evidence put in an indictment than is suggested here, but if we are to bind ourselves to the proposition that all evidence must be put into the indictment, it is an entirely new concept for us to operate on, and I must say I do not understand how it would work
a good deal more evidence put in an indictment than is suggested here, but if we are to bind ourselves to the proposition that all evidence must be put into the indictment, it is an entirely new concept for us to operate on, and I must say I do not understand how it would work in a case like this where we will not have our evidence fully in hand at the time of indictment. PROFESSOR GROS. Add to that the adoption of article 15, paragraph (d), where it is said, "The lodgement of the indictment and the accompanying documents with the Tribunal." That was a sort of compromise between the American conception as it has been explained by Mr. Justice Jackson and the French and Soviet conception, which is different. We would be shocked by the idea that the prosecutor would come out of the blue with evidences which are completely unknown until the moment of the trial. I do not see such a difference in principle in what has been said. SIR DAVID MAXWELL F=. Along the same lines, in our system I do not know whether this is the same in the United States we have a preliminary hearing before a magistrate, and at that hearing the prosecution call all their witnesses and put in all their documents. It is obvious that the court, the judge who is going to try the case, knows what the case will be, knows the evidence, and sees the documents, and so do the defendants. But, if the defendant pleads "not guilty", the whole of that evidence has to be heard again by the court, and you can supplement it by calling further witnesses. PROFESSOR TRAININ. I am very grateful for this reminder, but what we mean is this: there cannot be any intermediary hearing of the case. That is to say, first of all, the whole case is investigated and then must be tried by the Tribunal as such, and, if any intermediary stage were had, that would complicate the whole thing and bring about undesirable results. SIR DAVID MAXWELL FYFE. I was only explaining our brief, which does lead us to say that the Tribunal and the accused should see a number of documents beforehand as explained in 15 (d). I do not know whether Mr. Justice Jackson would explain any difference, but I should have thought the adaptation for this purpose would be that we should lodge with the
explaining our brief, which does lead us to say that the Tribunal and the accused should see a number of documents beforehand as explained in 15 (d). I do not know whether Mr. Justice Jackson would explain any difference, but I should have thought the adaptation for this purpose would be that we should lodge with the indictment as many documents as possible for example, treaties and official examinations by various countries that these should be passed on to the defense, but then we should call all the evidence at the trial, call all the witnesses we wanted or any people who had to explain the documents. I should like Mr. Justice Jackson's idea, as I do not know whether you have the same system. MR. JUSTICE JACKSON. Well first, of course, before I discuss the American usage, let me say I am not insisting upon any American system. One purpose of having a military tribunal was to be able to adopt the best from all systems. Secondly, I supposed this provision represented a compromise between the common-law system and the Continental system so that the indictment would embody a large part of the case but not necessarily all of the case. Our practice is difficult to explain because we have 48 States and some of them proceed under the common-law system and some by code systems, but, in general, after a prisoner has been arrested, he is to go before a magistrate, at which Point the prosecution must make a prima facie case for holding him for the grand jury. Then in most States we have a grand jury, which is drawn by lot and is a secret body, and that inquires into the case. No man can be put to trial for a major crime unless he is indicted by a grand jury of his neighbors-at least 16 present to make a quorum in most States-and 12 must concur in the indictment. Then this indictment is presented by the grand jury in much the form of the British indictment. It may be in somewhat more detail. The first the court really knows about the evidence in the case is when the whole case must be presented to the court as if you never heard it before. I think the observation that Professor Gros has made to us at times that ours is perhaps a more combative and sporting system is probably true. I
The first the court really knows about the evidence in the case is when the whole case must be presented to the court as if you never heard it before. I think the observation that Professor Gros has made to us at times that ours is perhaps a more combative and sporting system is probably true. I am not arguing for its merits. I think there is great merit in your system, and in ours, and ours is abused sometimes by prosecution and sometimes by defendants. But we must find some middle ground here. I had hoped that we had done it by the language used by the drafting committee. It seems to be quite appropriate in this kind of case that we use much of the Continental procedure. Certainly it is appropriate to use with the Germans, for that is their system as I understand it, and we are quite willing to go a long way toward the adoption of it. But we could not agree that the taking of evidence virtually ended with the indictment, so far as our presentation of proof is concerned. SIR DAVID MAXWELL FYFE. It seems to me there are two points, and I think we are agreed, but we ought to make them quite clear. On the one hand, Mr. Justice Jackson accepts that in this case the indictment will be accompanied by all possible documents such as treaties, public reports of atrocities, and the like-that these will be passed to the Tribunal. That is what the Americans are conceding toward the compromise of the system. On the other hand, the French Delegation agree that at the trial all evidence will be called, but, as suggested in paragraph 24, the prosecution can put in additional documents if any have come to hand or seem desirable at that time. It seems to me that with these two compromises we have married the two systems. Isn't that the reality, Mr. Justice Jackson? MR. JUSTICE JACKSON. Yes, I think it is. I would like to ask whether in the Continental system during preparation of documents accompanying the indictment the defendant has any representation, that is to say, in examinations of witnesses. Is the defendant represented in preparing that case or is it just the prosecution ? SIR DAVID MAXWELL FYFE. I should have thought the defendant was not represented at the preliminary.
accompanying the indictment the defendant has any representation, that is to say, in examinations of witnesses. Is the defendant represented in preparing that case or is it just the prosecution ? SIR DAVID MAXWELL FYFE. I should have thought the defendant was not represented at the preliminary. That is for the prosecution, but the prosecutor should supply the defendant with a copy of the examination. It seems to me, gentlemen, that on that basis we are in fact in agreement and that this is a matter of words. Perhaps the drafting committee could make our words clearer. I wonder whether on that we could return to a very minor point on 17 (g), which is simply the appointment of court officials. "Marshals" is a particularly British thing. When our country was more disturbed, the judge on circuit used to have a bodyguard and the marshal was captain of his bodyguard, but in ordinary times he is more or less a secretary. I take it we may use some other term. PROFESSOR TRAININ. In substance there is no difference at all, but perhaps it would be better to combine (,q) in (a). MR. TROYANOVSKY. (e) with (g), not (a). MR. JUSTICE JACKSON. May I ask, is it the sense of the other delegates that we should abandon (e) ? SIR DAVID MAXWELL FYFE. No, (e) and (g) combined. GENERAL NIKITCHENKO. The Soviet Delegation does not think this would quite fit in. MR. JUSTICE JACKSON. Are we going to appoint and use masters in this, or can't we use them? It makes a great deal of difference in the scope of our case. If we cannot use masters in the assembling of this proof, I think it makes a good deal of difference with the line of preparation we have thought of using and whether we come out of here with a workable plan or not. SIR DAVID MAXWELL FYFE. I thought we had agreed that we could use masters. The point Professor Trainin makes is that the technical nature should be stretched. It should not appear to be delegation of the powers of the court. I just wanted to find words to indicate that. Is there anything on number 18? There is a question in (b), "take strict measures to prevent any action which will cause unreasonable delay. . . .", et cetera. What I gather was in the minds of the drafting committee was that you do
of the court. I just wanted to find words to indicate that. Is there anything on number 18? There is a question in (b), "take strict measures to prevent any action which will cause unreasonable delay. . . .", et cetera. What I gather was in the minds of the drafting committee was that you do not want these trials to become a platform for Nazi speeches. That is what we want to rule out. On the other hand, we don't want to use words which would seem to prevent the Nazis making their defense. I should have thought that, if we put in "to rule out irrelevant issues and matter of any kind whatsoever", that would meet the point. Cut out the words in brackets. MR. TROYANOVSKY. The last part would be deleted. SIR DAVID MAXWELL FYFE. I agree. GENERAL NIKITCHENKO. When the charter was considered in the committee and in discussions that took place here before the committee took over the matter, the Soviet Delegation were always stressing the necessity of preventing the accused having the possibility of using the trial for propaganda because it is quite possible that the accused would like to become the accusers in the course of the trial. Therefore, the Soviet Delegation thought it right to alter this particular sentence dealing with measures to prevent such action and attached considerable importance to the point. To make it impossible for the accused to use the trial for a platform for propaganda and accusation but in order to arrive at a unanimous decision as soon as possible, the Soviet Delegation are prepared to accept the suggestion and omit the last sentence, seeing that the other delegations think that sentence might diminish the authority of the Tribunal. SIR DAVID MAXWELL FYFE. W e are grateful for the omission. MR. JUSTICE JACKSON. I Want to say I am entirely in sympathy with the purpose of the Soviet Delegation in suggesting this sentence, although I could not be happy at the use of the sentence as it is. I think we should give a little thought to whether this purpose can be accomplished by some other means. There is a very real danger of this trial being used, or of an attempt being made to use it, for propaganda purposes, and I should like to make a suggestion as to what seems to me a weakness in the original American proposal that
whether this purpose can be accomplished by some other means. There is a very real danger of this trial being used, or of an attempt being made to use it, for propaganda purposes, and I should like to make a suggestion as to what seems to me a weakness in the original American proposal that would help overcome this difficulty. It seems to me that the chief way in which the Germans can use this forum as a means for disseminating propaganda is by accusing other countries of various acts which they will say led them to make war defensively. That would be ruled out of this case if we could find and adopt proper language which would define what we mean when we charge a war of aggression. Language has been used in a number of treaties which defines aggression and limits it in such a way that it would prevent their making these counteraccusations which would take lots of time and cause lots of trouble. It seems to me that, if we make a study of treaties which have defined "war of aggression", we can confine our charge against them to a physical act of attack and that is the crime, the attack. We might consider one or two definitions used heretofore. SIR DAVID MAXWELL FYFE. In preparation for paragraph 6. MR. JUSTICE JACKSON. Yes, I think it should go in paragraph 6, but it limits the possibility of propaganda. For example, here is a definition used in the treaty signed at London on July 3,1933, by Afghanistan, Estonia, Latvia, Persia, Poland, Rumania, Turkey and the U.S.S.R., which was apparently worked out with great care: "ARTICLE II. Accordingly, the a I aggressor in an international conflict shall, subject to the agreements in force between the Parties to the dispute, be considered to be that State which is the first to commit any of the following actions: "1. Declaration of war upon another State; "2. Invasion by its armed forces, with or without a declaration of war, of the territory of another State; "3. Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State; "4. Naval blockade of the coasts or ports of another State; "5. Provision of support to armed bands formed in its territory which have invaded the
of the territory of another State; "3. Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State; "4. Naval blockade of the coasts or ports of another State; "5. Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take, in its own territory, all the measures in its power to deprive those bands of all assistance or protection. "ARTICLE III No political, military, economic or other consideration may serve as an excuse or justification for the aggression referred to in Article II. (For examples, see Annex.) " These definitions would foreclose what they are apt to attempt because they are going to say for propaganda purposes, "It is true we made an attack, but there are political and economic situations which were our justifications." And that may have to be litigated. There are other treaties which we could consult for perhaps other definitions. We will try to get them all together and think it would be helpful. SIR DAVID MAXWELL FYFE. I am very grateful to Mr. Justice Jackson and am sure it will be helpful to have them to consider. Has anyone anything on 18 (c) ? Then 19 or 20. GENERAL NIKITCHENKO. Perhaps the Russian translation of 20 is not correct, but as it reads it appears as if the Tribunal should require the defendants to convince the Tribunal of relevance of evidence. That is a rather tricky thing and the defendants may not succeed in doing so, and therefore it seems that the wording should be altered somehow to make it clear as to what is meant. MR. TROUANOVSKY. Perhaps to say "to prove to the Tribunal". GENERAL NIKITCHENKO. It is suggested that it should be the Tribunal which requires the defendants to state convincing arguments in favor of relevance of any evidence. We agree with the idea of this paragraph; that is to say, the defendant should not be allowed simply to ask for presentation of such and such documents or witnesses. He must present sufficient arguments to support his request. It is suggested that the Tribunal shall be required to be informed
We agree with the idea of this paragraph; that is to say, the defendant should not be allowed simply to ask for presentation of such and such documents or witnesses. He must present sufficient arguments to support his request. It is suggested that the Tribunal shall be required to be informed of the nature of the evidence before it is offered so that they may rule upon its relevance. Perhaps a new draft should be presented at the next meeting. SIR DAVID MAXWELL FYFE. There is no difference between us in essence, merely a question of finding the words. Shall we pass to 21? 22? Number 22, 1 think, is important because that would allow the smaller Allies to present us with official reports which might be useful. MR. JUSTICE JACKSON. But how do we stand about the indictment as to probative value? As I understand it, this recognizes the probative value of the indictment, which under our system, of course, has no probative value. In other words, it is an adoption of the Continental system as to the probative value of the report of the prosecutors, and I really think that, if we are going to adopt it, we ought to adopt the Continental system candidly so I can say to my people, "We are trying Continentals and trying them by the Continental system." PROFESSOR TRAININ. The indictment has no actual probative value. It is only one of the elements to prove a case. PROFESSOR GROS. There are two things not clear in 22. One is evidence used by whom? By the prosecution commission or the Tribunal? It should be said. PROFESSOR TRAININ. Perhaps not only prosecutors but counsel for the defense. PROFESSOR GROS. We must ask the commissions to send their reports. PROFESSOR TRAININ. It is to point out to whom the national committees shall send their documents. The whole purpose of this paragraph is simply to show that the documents received from the national commission will have exactly as much value as evidence as the documents prepared by the prosecution. That is the whole point, simply to say the Tribunal itself will consider their value on receipt of them just as they will value any evidence introduced or entered in the prosecution. SIR DAVID MAXWELL FYFE. Could we have that suggestion again? MR. TROYANOVSKY ". ... . . shall be