dtufail/nuremberg-trials-corpus huggingface dataset:
Article 24-we have not set out 24. We, and I presume you too, would conduct a trial in this order. First of all, the prosecution give their evidence, then the defense give their evidence, and finally the prosecution may be allowed to call what we call "rebutting evidence" to rebut the evidence of the defense. I rather suggest that, as we set out so many details in this article, we ought to put in another letter after (f) with a provision to this effect: "The prosecution shall call their evidence first, the defendants shall then call their evidence, and thereafter the prosecution shall call such rebutting evidence as may be decided to be admissible." That is to say, it would come after (f) , and (g) I (h), (i), and (j) would remain as they are. Would those words meet your point, Mr. Justice Jackson? MR. JUSTICE JACKSON. Yes, I think so. LORD CHANCELLOR. Is "rebuttal" quite clear to you? It is not quite clear to me. In our system it occurs when a point is raised by the defense-and suddenly he raises a point for the first time "but I was not there17--and you have clear evidence he was at Berlin on the critical date. Then you are permitted to call that evidence to meet that point. GENERAL NIKITCHENKO. It would seem to me that in a detailed article of this sort it might not be necessary to specify in just what way evidence may be offered, in particular this rebutting evidence. It would seem to us that it would be sufficient to say that the prosecution and defense may in the course of the trial submit whatever evidence they have. We would suggest putting the following words after (f) in a new paragraph: "Both the prosecution and the defense may offer evidence and any rebutting evidence at any time during the trial." LORD CHANCELLOR. You see what I feel is this: I do feel that in this article 24 you have to set out properly the precise order in which things take place. For instance, (a), you read the indictment, you ask each defendant whether he pleads guilty or not guilty, then the prosecution makes the opening statement, then come on to (g), the defense addresses the court, the prosecution addresses the court. Throughout the whole thing you are setting out the precise order in which things should take place. Now,
(a), you read the indictment, you ask each defendant whether he pleads guilty or not guilty, then the prosecution makes the opening statement, then come on to (g), the defense addresses the court, the prosecution addresses the court. Throughout the whole thing you are setting out the precise order in which things should take place. Now, when you come to this, you do not set out the order in which evidence is to be given; you just say, "The evidence should be given." Why not an article to set out how things take place in their sequence? Why not say, "the prosecution evidence, the defense evidence, then the rebutting evidence", and so on? I don't understand why, in an article which sets out step by step the order in which things take place, you should not set out the order in which the evidence is to be given. That is my difficulty. MR. JUSTICE JACKSON. You see, the order set forth is not just the order we would follow in an American trial. The indictment would be read and the defendant would be asked to plead at a hearing preceding the trial probably, but that order might take place at the trial. The prosecution would then make an opening statement, would then be required to produce all its evidence and exhaust its case on the main issue and to "rest", as we call it, and then the defense would have to offer all of its evidence, exhaust its case, and rest. Then the prosecution would be entitled to bring forward its rebuttal evidence and exhaust its case on rebuttal, and then the defense might have another go at it. But the order here would leave me entirely confused, and I know that, if it were published, it would leave the American bar confused as to whether any evidence was to be presented and, if so, when and in what order. I agree with the Lord Chancellor. Having gone into so much detail, if we leave such important features of the trial out, we would create confusion among the American bar, I'm sure. GENERAL NIKITCHENKO. But suppose that at the trial the defense might have certain rebutting evidence which the prosecution would not have. Would not we in setting out this order deprive the defense of a certain right of rebutting the evidence? MR. JUSTICE JACKSON. No, we should not. The prosecution must
American bar, I'm sure. GENERAL NIKITCHENKO. But suppose that at the trial the defense might have certain rebutting evidence which the prosecution would not have. Would not we in setting out this order deprive the defense of a certain right of rebutting the evidence? MR. JUSTICE JACKSON. No, we should not. The prosecution must put all of its evidence in and announce that it has finished its case, then the defense can meet any of that evidence in its evidence. Then when the defense has finished everything it wants to put in, the prosecution comes back and puts in its rebuttal. Now, if rebuttal brought forth an entirely new point, there would be a right on the part of the defense to meet that new point but not to go into something in answer to the main case. But it could meet anything new that had not been in. LORD CHANCELLOR. It has been done, but so rarely that I in my experience have never known of defense rebutting evidence in a case. But I know it can be done. GENERAL NIKITCHENKO. Article 24 (e) states, "The Tribunal shall ask the prosecution and defense what evidence, if any, they wish to submit to the Tribunal and rule upon the admissibility of such evidence." I think that is a sufficient provision. If we add another provision saying, "both the prosecution and the defense may at any time in the course of the trial offer evidence", would that not be sufficient to define the course of the trial? MR. JUSTICE JACKSON. The difficulty in this is a provision to regulate the order, otherwise it serves no purpose, and if you say "at any time" you do not regulate the order. Also, in the midst of our case a defendant may get up and say, "This is not true", and offer to prove it. The court would refer to this article and would be put in an embarrassing position. But if we have the order specified, the court would say, "Now, Mr. Defendant, you will have an opportunity at the proper time and now you sit down." Otherwise I fear that we open this to disorder, and we must not forget that, of all the things these people are artists in, one of the chief things is in creating disorder. We have tried Nazi sympathizers in our courts, the American prototypes, and their policy has been to disorganize and
you sit down." Otherwise I fear that we open this to disorder, and we must not forget that, of all the things these people are artists in, one of the chief things is in creating disorder. We have tried Nazi sympathizers in our courts, the American prototypes, and their policy has been to disorganize and upset a trial. I think it would worsen the provision to say "at any time", for that confounds the whole thing. It is very important to give the court a guide here so that it can say, "You will have your rights at the time specified and if you don't keep still now you will be removed from the court." This trial must be conducted in a very stern way or they may make us look ridiculous. That will be their technique. PROFESSOR TRAININ. In this article we set out in detail the course of the trial because this article provides for new procedure. It seems to us the procedure set out here follows more the Anglo-American practice although there are some features from the Continental procedure. For instance, in the Continental procedure the prosecution would not make an opening statement nor the defense address the court after the prosecution, et cetera. Therefore, since we are making new procedure here and to meet the views expressed, perhaps we could say the defense and the prosecution may offer new evidence and rebut the evidence offered by the other side. JUDGE FALCO. I think also we are perhaps not very different, but it is a matter of drafting because in your drafting it seems strange to us that, if the prosecution offers evidence, the defense cannot offer anything. The end is the order of the trial. We think it should say that the defense and prosecution can answer each other. MR. JUSTICE JACKSON. I may say I agree entirely with Judge Falco. It is the intent here that the defendant have the right to offer evidence to meet the evidence brought against him, but I think we should also say when he should produce it and not leave it, "The prosecution and the defense shall produce", because that leaves controversy as to what order. The only way is to set forth when they shall do this so that there can be no controversy about it at the trial. Now we are relatively free from outside criticism. We can talk about it and
it and not leave it, "The prosecution and the defense shall produce", because that leaves controversy as to what order. The only way is to set forth when they shall do this so that there can be no controversy about it at the trial. Now we are relatively free from outside criticism. We can talk about it and discuss it. If we get into trial with the world looking on, with reporters present, and have some argument, we will have headlines about a disagreement all over the world. We must settle these things as far as we can anticipate them so that, when we get to trying this case, ~we will not have even minor disputes in the eyes of the world. LORD CHANCELLOR. I agree with that. I think we had much better get things settled here in the privacy of this room than have these controversies arising when the court is sitting. PROFESSOR TRAININ. But if we say the defense or the prosecution or the other way around may offer new evidence and then rebut the evidence offered by the other side, would not that in itself set out the order? LORD CHANCELLOR. I don't know that it would. You see, here is an article in which we are setting out with great particularity the precise order in which things are to be done, and one question which we must face is this. I do not understand the Continental system, but is it not that the prosecution evidence is called before the defense evidence? In the English trials you always have the prosecution evidence called first and then the defense evidence. But is it not the fact that in the Continental system the evidence for the prosecution is called for and then thereafter evidence for the defense is called, and if that is the system you follow, why not an article setting out the order in which things are to be done? Should we not set out the order in which the evidence is to be called? PROFESSOR TRAININ. We have no objection to saying that the prosecution shall offer its evidence and then the defense. JUDGE FALCO. Should we not say something like this: "After evidence is offered by the prosecutor, the defendant will have time to offer evidence and offer rebuttal evidence"? We always abide by this-the accused must have the last word and be allowed to answer the prosecution. MR. JUSTICE JACKSON. May
the defense. JUDGE FALCO. Should we not say something like this: "After evidence is offered by the prosecutor, the defendant will have time to offer evidence and offer rebuttal evidence"? We always abide by this-the accused must have the last word and be allowed to answer the prosecution. MR. JUSTICE JACKSON. May I make a suggestion? In (d) we have the provision that after the prosecution makes the opening statement the Tribunal shall ask the prosecution what evidence they wish to offer and shall rule on it. Suppose we leave the defendant out at this point-until the prosecution finishes-and the court says, "What evidence do you want to submit?" and they rule on it. Then if we put in as (e) that "the Tribunal shall ask the defendant . . . and rule upon admissibility of the defendant's evidence", and then put a provision that thereafter the appropriate rebuttal evidence by either party may be heard and go on as we are here-we are all right. We have settled the point and it does provide in (i) that the defendant make a statement to the Tribunal which follows the address of the prosecution. That would not be our order, as the prosecution always closes the argument. GENERAL NIKITCHENKO. That is, we would have two paragraphs, (d) and (e) ; in the first it would be the prosecution and in the second the defense. LORD CHANCELLOR. Yes. Article (d) would read, "The Tribunal shall ask the prosecution what evidence, if any, they wish to submit to the Tribunal and the Tribunal shall rule upon the admissibility of any such evidence." SIR THOMAS BARNES. Before we get to (e), don't we want to say that "That evidence shall then be called"? LORD CHANCELLOR. Yes, that is right. [Here the Lord Chancellor repeated the text of 24 (d) and (e).] Then they would have another clause, (f)-"thereafter appropriate rebuttal evidence by either party may be called." I don't know whether we ought to define "appropriate", Mr. Justice Jackson-such rebuttal evidence as is held by the Tribunal to be admissible. PROFESSOR TRAININ. We prefer to agree to the formula proposed by Mr. Justice Jackson, but this additional sentence that such evidence will then be called would seem unwelcome to us because this would change
Mr. Justice Jackson-such rebuttal evidence as is held by the Tribunal to be admissible. PROFESSOR TRAININ. We prefer to agree to the formula proposed by Mr. Justice Jackson, but this additional sentence that such evidence will then be called would seem unwelcome to us because this would change the course of the trial. It is quite true that first of all witnesses of the prosecution should be heard, then witnesses for the defense, but as for other evidence, it might come in any order. This would seem to us too mechanical a division between evidence of the prosecution and the defense. For instance, supposing a witness of the prosecution is giving testimony and at that time the defense might wish to offer to submit some document which would have bearing on this testimony. We think the defense should have the right to do that. LORD CHANCELLOR. I tell you what would happen in the English courts, and 7 1 take it, in American courts also. The witness would give his evidence, he would be examined by the counsel for the prosecution, then the counsel for defense would get up to cross-examine, and in the course of his examination would produce the document and from the mouth of that witness the document -would be proved; but it would be proved by reason of the cross-examination. PROFESSOR TRAININ. It seems to us that our views are not very different in this respect really. We might take the formula proposed by Mr. Justice Jackson without that additional phrase, and then say in another clause, "The witnesses for the prosecution shall be examined before witnesses of the defense", or something like that. LORD CHANCELLOR. All agreed to that? SIR THOMAS BARNES. We could add it at the end of the new (d)"The witnesses for the prosecution shall then be called." Then have (e) exactly the same, except substituting "the defense" for "the prosecution". PROFESSOR TRAININ. It would seem better for us if we left article (d) as it stands and then add something like, "The witnesses for the prosecution shall be called and after that the witnesses for the defense." That is, both sides would ask the prosecution about the evidence, and after that witnesses would be called. LORD CHANCELLOR. I think that is not bad. But I would suggest
(d) as it stands and then add something like, "The witnesses for the prosecution shall be called and after that the witnesses for the defense." That is, both sides would ask the prosecution about the evidence, and after that witnesses would be called. LORD CHANCELLOR. I think that is not bad. But I would suggest this: You still have trouble about rebutting evidence, but I am not sure it is not safe under (e), Mr. Justice Jackson. It would be different from our system, but, if the question of rebutting evidence arose, the Tribunal would take the matter in hand. We might get that in under (e). The only difficulty I have is about this rebutting evidence. I don't want you to think rebutting evidence is a common thing in our countries. It might be in only one case in a hundred, but it does sometimes arise, and, if we simply say, "Witnesses for the prosecution shall be called and after that witnesses for the defense", we do not provide for the rare case of the prosecution coming along and having given evidence in rebuttal. PROFESSOR TRAININ. Perhaps we might say, "The witnesses for the prosecution shall be heard" and, in case you need to, "The Tribunal may after that call upon any witnesses." LORD CHANCELLOR. What do you say to this? Adopt Professor Trainin's words in effect and say, "The witnesses for the prosecution shall be called and after that the witnesses for the defense." Then add, "Thereafter such rebuttal evidence as may be held by the Tribunal to be admissible shall then be called by either the prosecution or the defense." That would come in, I think, after (d). We should leave (d) exactly as it is and make a new paragraph between the present (d) and the present (e). MR. JUSTICE JACKSON. Let me suggest this defect which I think remains under this arrangement. Let us visualize a trial. We have reached the point of (e) ; the prosecution has made its opening statement. Then the Tribunal says to the prosecution, "What evidence do you -wish to submit?" and rules on its admissibility. That will be a very long proceeding if the prosecution is required to make a complete statement of what it wants to prove, and you have to rule in advance on its admissibility. In our procedure the ruling would be made when it
do you -wish to submit?" and rules on its admissibility. That will be a very long proceeding if the prosecution is required to make a complete statement of what it wants to prove, and you have to rule in advance on its admissibility. In our procedure the ruling would be made when it is offered. But suppose it is carried through as here set out and the prosecution states its case and has a ruling on admissibility. At that point the court is also required to ask the defendant what he wishes to submit and to rule upon its admissibility. The defendant is therefore asked to say what he wishes to prove before he has heard the prosecution's evidence. The formula I suggest is that, when the prosecution makes its statement of what it intends to prove, it must proceed with its case, and the defendant be asked after the prosecution's case is in what it wishes to prove, and then a ruling; otherwise I think we get into some confusion. GENERAL NIKITCHENKO. We are quite agreed to the formula proposed by the Lord Chancellor. LORD CHANCELLOR. Could we meet Mr. Justice Jackson's difficulty, which I think I follow, in this way? As (d) is drafted, the wording is, "The Tribunal shall ask the prosecution and the defense", and it is at that point after the opening statement. He says that at that stage in the proceeding the defense may not know what evidence they want to give. Would it not, therefore, be better instead of having "the Tribunal shall ask" to substitute the word "may" and put it this way: "The Tribunal may at any time they think convenient" ask the prosecution and defense? They need not do it unless they want to. PROFESSOR TRAININ. Article 24, the procedure as set forth, is the result of a prolonged discussion and numerous compromises. If the new proposal is adopted, that -would really change the whole thing, and it seems to us that this division would be too mechanical. The fact that the witnesses for the prosecution shall be called first and witnesses for the defense next really provides that the prosecution would present all of its case or almost all at the same time. But at the present time we would not find it possible to accept the new solution as proposed by substituting the word "may" for the word
prosecution shall be called first and witnesses for the defense next really provides that the prosecution would present all of its case or almost all at the same time. But at the present time we would not find it possible to accept the new solution as proposed by substituting the word "may" for the word "shall". Of course, we are quite prepared to accept the proposal of the Lord Chancellor as it was stated the first time, and we think that goes quite a long way to meet the objection but think the second proposal would change the whole procedure too much. LORD CHANCELLOR. What would you do? In article 24 as drafted you have, after the opening statement by the prosecution, the provision that the Tribunal is obliged to ask both the prosecution and the defense. Suppose the defense said this: "I really don't know at the present time what evidence I shall submit; before I make up my mind about that I want to hear what evidence is against me. But you cannot ask what evidence I would submit until hearing what the prosecution has against me." What should the Tribunal do then? PROFESSOR TRAININ. Perhaps then we could add another point, seeing the prosecution and the defense may at any time ask the Tribunal to offer additional evidence. LORD CHANCELLOR. I would be content myself to leave it with the thought I suggested, that is to say, getting in somewhere "The witnesses for the prosecution shall be examined and after that the witnesses for the defense; thereafter such rebutting evidence as may be held admissible shall be called by either the prosecution or the defense." MR. JUSTICE JACKSON. Well, I don't want to stand out against the judgment of all the other delegates about a matter in which our interests are identical. Our interest here, if we are going to have a trial, is to have one which will be creditable in the eyes of the world, and I must say this trial has danger of not becoming such if we enter into it without complete understanding. We, in the United States, try issues in courts that are somewhat appalling to other peoples in the length of our trials and the scope of our questions, and I have had some experience trying them. But this trial has a scope that is utterly beyond anything that ever has been attempted that