dtufail/nuremberg-trials-corpus huggingface dataset:
DR. KAUFFMAN: May I bring up two points with regard to yesterday's and in future presentation of evidence on the section dealing with Crimes against Humanity. Firstly, I request that the affidavit of the witness Pfaffenberger, which was submitted yesterday, be stricken from the record. The witness himself will later have to be cross-examined, since his affidavit is fragmentary in most important points. In many cases it does not appear whether his statements are based on personal observations or on hearsay, and therefore it is too easy to draw false conclusions. The witness did not mention that the Camp Commander Koch and his inhuman wife were condemned to death by an SS court, among other things, on account of these occurrences. It is, of course, possible to ascertain the complete facts by questioning the witness at a later stage of the Trial. But until then the Tribunal and all members of the Prosecution and the Defense must be continually influenced by such dreadful testimony. The contents of this testimony are so horrifying and so degrading to the human mind that one would like to avert one's eyes and ears. In the meantime such statements make their way into the press of the whole world, and civilization is justly indignant. The consequences of such prejudiced statements are incalculable. The Prosecutor clearly recognized the significance of this testimony and exposed the sorry documents in yesterday's proceedings. If weeks or months pass before such testimony is rectified, its initial effect can never be wholly eliminated; but truth suffers and justice is endangered thereby. Surely, Article 19 of the Charter does not envisage bringing about such a state of affairs. Secondly, I should, therefore, like to suggest that at the present stage of the Trial the testimony of witnesses who live in Germany and whose appearance here in court is possible should not be read in the proceedings.
DR. KAUFFMAN: For at this stage of the Trial the charges being made are even more terrible than those referring to wars of aggression, since the tortured lives and deaths of human beings are involved. At the beginning of the Trial the Tribunal refused to admit testimony of the witness Schuschnigg, and it is my opinion that what was valid then should be all the more valid at this stage of the Trial. I should like to emphasize my suggestion particularly with regard to the Defendant Dr. Kaltenbrunner himself, since it was not until the spring of 1943 that he became Chief of the Reich Security Main Office and since, in the opinion of the Defense, many, if not all, of his signatures were forged and the entire executive function attached to the concentration camps and the things connected with them lay exclusively in Himmler's hands. That I hope to prove at a later date. I mentioned it now in order to justify my suggestion.
THE PRESIDENT: The Tribunal would like to hear counsel for the Chief Prosecutor of the United States.
MR. JUSTICE JACKSON: May it please the Tribunal, Mr. Dodd, who had charge of the matter which is under discussion, left for the United States yesterday; and I shall have to substitute for him as best I can. This Tribunal sits under a Charter which recognized the impossibility of covering a decade of time, a continent of space, a million acts, by ordinary rules of proof, and at the same time finishing this case within the lives of living men. We do not want to have a trial here that, like the trial of Warren Hastings, lasted 7 years. Therefore the Charter sets up only two standards by which any evidence, I submit, may be rejected. The first is that evidence must be relevant to the issue. The second is it must have some probative value. That was made mandatory upon this Tribunal in Article 19 because of the difficulty of ever trying this case if we used the technical rules of Common Law proof. One of the reasons this was a military tribunal, instead of an ordinary court of law, was in order to avoid the precedent-creating erect of what is done here on our own law and the precedent control which would exist if this were an ordinary judicial body. Article 19 provides that the Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value. That was made mandatory, that it shall admit any evidence which it deepens to have probative value. The purpose of that provision, Your Honors, I may say, was this: That the whole controversy in this case-and we have no doubt that there is room for controversy- should be centered upon the value of evidence and not on its admissibility. We have no jury. There is no occasion for applying jury rules Therefore, when a piece of evidence is offered, there are two questions which arise: Does it have probative value? If it has no probative value, then it should not encumber the records, of course. 14 Dec. 45 . The second is, does it have relevancy? If it has not, of course it should not come in.
MR. JUSTICE JACKSON: The evidence in question has relevance; no one questions that. No one can say that an affidavit, duly sworn, does not have some probative value. What probative value it has, the weight of it, should be determined on the submission of the case. That is to say, if a witness has made a statement in an affidavit, and it is denied by Mr. Kaltenbrunner, and you believe that the denial has weight and credibility, of course, the affidavit should not be considered in the final consideration of the case. But we are dealing here with events that took place over great periods of time and great distances. We are dealing with witnesses widely scattered and a situation where communications are almost at a standstill. If this affidavit stands at the end of this case undenied, unchallenged, it is not, then, beyond belief that you would give it value and weight. An affidavit might bear internal evidence that it lacked credibility, such as evidence where the witness was talking of something of which he had no personal knowledge. I do not say that every affidavit that comes along has probative value just because it is sworn to. But it seems to me that if we are to make progress with this case, this simple system envisioned by this Charter , which was the subject of long consideration, must be followed; that if, when a piece of evidence is presented, even though it does not comply with technical rules governing judicial procedures, it is something which has probative value in the ordinary daily concerns of life, it should be admitted. If it stands undenied at the close of the case, as many of these things will, then, of course, there is no issue about it; and it saves the calling of witnesses, which will take an indefinite period of time as we have already seen. I may say that the testimony of the witness Lahousen, which took nearly 2 days, could have been put in, in this Court, in 15 minutes in affidavit form, and all that was essential to it could have been placed before us; and if it were to be denied you could then have determined its weight.
MR. JUSTICE JACKSON: We want to adhere to this Charter . I submit it is no reason for deviating from the Charter that an affidavit recites horrors. I should have thought that the world could not be more shocked by recitals of horrors in affidavits than it has been in the documents that have proceeded from sources of the enemy itself. There is no reason in that for departing from the plain principles of the Charter . I think the question of orderly procedure and the question of time are both involved in this. I think that the Tribunal should receive affidavits, and we have prepared them-we hope carefully, we hope fairly-to present a great many things that would take days and days of proof. I may say that this ruing is more important in subsequent stages of this case than it is on this particular affidavit. There is another reason, perhaps. We have some situations in which a member of an accused organization, who is directly hostile to our position because the accusation would reach him within the accused class, has made an affidavit or affidavits which constitute admissions against interest; but on some other issue he makes statements which we believe are untrue and incredible; and we do not wish to vouch for his general credibility by calling him as a witness, but we wish to avail ourselves of his admission. Those things we think since we have to make our proof largely from enemy sources. All this proof and every witness 8 months ago were in the hands of the enemy. We have to make our proof from them. God alone knows how much proof there is in this world that we have not been able to reach. We submit that the orderly procedure here is to abide by this Charter and admit these affidavits. If they stand unquestioned at the end of the case, there is no issue about them. If they are questioned, then the weight is a matter which you would determine on final submission.
THE PRESIDENT: Mr. Justice Jackson, I have three questions I should like to ask you. The first is: Where is Pfaffenberger?
MR. JUSTICE JACKSON: That I cannot answer at the moment, but I will get an answer as quickly as I can. It is unknown to us at the moment. If we are able to ascertain, I will inform you at the conclusion of the noon recess.
THE PRESIDENT: The second point to which I wish to draw your attention is Article 16(e) of the Charter , which contemplates cross-examination of witnesses by the defendants. The only reason why it is thought that witnesses who are available should not give evidence by affidavit is because it denies to the Defense the opportunity of cross-examining them.
MR. JUSTICE JACKSON: I think that this provision means just exactly what it says. If we call a witness, they have the right of cross-examination. If he is not called, they have the right to call him, if he is available, as their witness; but not, of course, the right of cross-examination. The provision itself, if Your Honor notices, reads that they have the right to cross-examine any witness caned by the Prosecution; but that does not abrogate or affect Article 19 , that we may obtain and produce any probative evidence in such manner as will expedite the Trial.
THE PRESIDENT: Then the next point to which I wish to draw your attention is Article 17(a) . As I understood it, you were arguing that it was mandatory upon the Tribunal to consider any evidence which was relevant. Therefore, I draw your attention to Article 17(a) which gives the Tribunal power to summon witnesses to the Trial.
MR. JUSTICE JACKSON: That is right. I think there is no conflict in that whatever. The power of the Tribunal to summon witnesses and to put questions to them was introduced into this Charter through the continental systems of jurisprudence. Usually there are not Tribunal witnesses in our procedure in the States. Witnesses are called only by one of the parties; but it was suggested by the continental scholars that in this kind of case, since we were utilizing a mixture of the two procedures, the Tribunal itself should have the right to do several things. One is to summon witnesses, to require their attendance, and to put questions to them. I submit that this witness, whose affidavit has been received, can be called, if we can find him, by the Tribunal and questioned. The next provision-and it bears on the spirit of this-of Article 17 is that the Tribunal has the right to interrogate any defendant. Of course, under our system of jurisprudence the Tribunal would have no such right, because the defendant has the unqualified right to refrain from being a witness; but in deference again to the continental system, the Tribunal was given the right to interrogate any defendant, and his immunities, which he would have under the Constitution of the United States , if he were being tried under our system, were taken away. I submit that the perfect consistency in those provisions empowers the Tribunal on its own motion ( Article 17 ) to summon witnesses, to supplement anything that is offered, to put any questions to witnesses and to any defendant. If any witness is called, the right of cross-examination cannot be denied; but that does not abrogate article 19 , which was intended to enable us to put our case before the Tribunal so that the issue would then be drawn by the defendants and the weight of what we offer determined on final submission
THE PRESIDENT: Lastly, there is Article 17(e) , which I suppose, in your submission, would entitle the Tribunal, if they thought right, after receiving the affidavit, to take the evidence of Pfaffenberger on commission.
MR. JUSTICE JACKSON: Yes, I think it would, Your Honor. I may say, in reference to that section-what, perhaps, may be surprising to those accustomed to our system of jurisprudence-that it was one of the most controversial issues we had in the framing of this Charter . We had in mind the authorization of what we call. "masters" to go into various localities, perhaps, and take testimony, not knowing what might be necessary. Our practice, however, of sending "masters in equity" to take testimony and make recommendations was not acceptable to the continental system, and we finally compromised or this provision which authorizes the taking of testimony by commissions.
THE PRESIDENT: Thank you.
GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): Your Honors, I have come forward after my colleague, Mr. Jackson, to make my own statement, inasmuch as I think that the petition of the Defense is fundamentally wrong and should not be complied with. We are submitting our objections for the Tribunal's consideration. I fully share the viewpoint held by the Chief Prosecutor of the U.S.A., Mr. Jackson, and in addition should like to point out the following: The Defense Counsel, in his petition, raises the question of whether the Prosecution should refer to, or make public, documents containing affidavits of persons residing in Germany. A statement of this sort is completely out of order since, as is known, the defendants committed the greater part of their atrocities in all countries of Europe and it will be readily understood that the witnesses of these atrocities live in different parts of these countries; it is essential that the Prosecution have recourse to the testimony of such persons, whether it be written or oral. Your Honors, we have entered a phase of the Trial in which we have to set forth the atrocities connected with so-called War Crimes and Crimes against Humanity, atrocities which were committed by the defendants over extensive areas. We shall submit as evidence documents originating from the defendants themselves or from persons who suffered at the hands of the war criminals; it would be impossible to summon all these witnesses to the Trial so that they could give their evidence orally. It is absolutely necessary to have affidavits and written testimonies from these witnesses. As His Honor the President has already remarked, Article 17 provides for the right of summoning witnesses to the Trial. That is correct; but it is impossible to summon all the witnesses who could depose affidavits on the crimes committed by the defendants. I therefore refer to Article 19 of the Charter which reads: "The Tribunal shall not be bound by technical rules of evidence.
GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): It shall adopt and apply to the greatest possible extent expeditious"-and I emphasize, Your Honor, expeditious -"and non-technical procedure and shall admit any evidence which it deems to have probative value." I would ask the Tribunal to proceed according to this article which definitely admits written affidavits of witnesses as evidence. That is what I wished to say by way of a supplement to the statement of Mr. Jackson.
MR. ROBERTS: May it please the Tribunal, as far as the British Delegation is concerned, they desire to support what the American Chief Prosecutor has said, and we do not feel we can usefully add anything.
THE. M. EDGAR FAURE (Deputy Chief Prosecutor for the French Republic): PRESIDENT: [To M. Faure of the French Delegation.] Do you wish to add anything? Mr. President, I wish simply to inform the Court that the French Prosecution is entirely in accord with the remarks of the American and Soviet Prosecutors. I think, as the representative of the American Prosecution said, it is impossible to settle the question of evidence in this Trial solely by hearing oral testimony in the courtroom, for under those circumstances it might be opportune to call to the witness stand all the inhabitants of the territories involved, which is obviously impossible. The Defense wit have every opportunity of discussing the documents which have been presented by the Prosecution, including the written testimony.
THE PRESIDENT: I do not think that Counsel for Kaltenbrunner was suggesting that every witness must be called but that witnesses who were in Germany and available should be called and that their evidence should not be given by affidavit.
M. FAURE: The Defense has the right of calling them as witnesses if it so desires.
DR. KAUFFMANN: May I add a few more words to this important question? The replies which have just been given illustrate that one of the main principles of the proceedings is that the Trial should proceed speedily. That is also expressed in Article 19 of the Charter , and no one can hope more than we that this principle be followed; but it is nevertheless my opinion that another principle, the highest known to mankind, the principle of truth, should not thereby suffer. If there is a fear that truth will suffer through an over-hasty trial, then formal methods of procedure must take a secondary place. There are human principles which remain unspoken, which need not be spoken. This spirit of truth is certainly contained in and governs Article 19 ; and the objections I raised to the testimony of this witness seem to me justified to such a degree that the important principle of speeding up the Trial should give way to the principle of truth. Humanity itself is in question here. We want to establish the truth for our own generation and for that of our children. But if such testimony remains untold for months, then a part of mankind might well despair of all humanity and the German people, in particular, would suffer.
DR. FRIEDRICH BERGOLD (Counsel for the Defendant Bormann): May it please the Tribunal, I should like to bring up one other point, which appears to me important, because it was apparently the real source of this discussion. According to our legal system it is the duty of the Prosecution to produce not only the incriminating evidence but also evidence for the defense of the accused. I can well understand that my colleague, Dr. Kauffmann, protests the Prosecution's failure to mention a very important point, namely, that the German authorities indicted this inhuman SS leader and his wife and condemned them to death. It is highly probable that the Prosecution knew of this and that these horrible exhibits of perverted human nature, which were presented to us, were found in the files of the German Court. I believe the whole discussion would not have arisen if the Prosecution had mentioned, as part of the ghastly evidence, the fact that the German authorities themselves passed judgment on this inhuman man and condemned him to death. We find ourselves in difficulties because, in contrast to our own procedure, the Prosecution for the most part simply presents incriminating evidence but omits to present the exculpating evidence which may form part of any document or part of the testimony of a witness. If the German procedure had been followed in the present case and if the Prosecution had stated that this man was condemned to death, then in the first place, the evidence against the Defendant Kaltenbrunner would not have appeared so weighty and secondly, public opinion would, on the whole, have been left with a different impression. My colleague Kauffmann could then have limited himself to proving at a later stage of the Trial that Kaltenbrunner had, in fact, nothing at all to do with this affair; and the inhuman character of the proceedings and the dreadful impression which it made on us would have been avoided.
THE PRESIDENT: Will you explain the part of the German law to which you were referring, where you say it is the duty of the Prosecution not only to produce evidence for the Prosecution but also to produce evidence for the Defense.
DR. BERGOLD: That is a general principle of German Jurisprudence, established in Paragraph 160 of the Reich Code of Penal Procedure. It is one of the basic principles of law in Germany to . . . The: PRESIDENT: Give me that reference again.
DR. BERGOLD: Paragraph 160. German law incorporates this principle in order to enable an accused person to . . .
THE PRESIDENT: 160 of what?
DR. BERGOLD: Of the Reich Code of Penal Procedure. The same is true of Austria. In the Austrian Code of Penal Procedure there is a similar paragraph with which, however, I am not quite familiar. This principle is established to permit the whole truth of a case to be brought to light, since a defendant in custody is frequently not in a position to produce all the evidence in his favor. Therefore, under German law it is the Prosecution's duty to present the exculpating as well as the incriminating evidence in a particular case.
DR. KUBUSCHOK: The question arising out of Pfaffenberger's evidence does not specifically concern the Defendant Von Papen, because that part of the Indictment does not apply to his case. I am therefore speaking only of the principle behind it. I believe that in practice the effect of the different opinions expressed by the Prosecution and the Defense cannot be of very great importance. Justice Jackson agrees with us that every witness whose affidavit is presented can, if available, be called to the stand by the Defense. Thus, in all cases in whim the Defense holds that an affidavit is evidence of secondary value and as such insufficient and that direct examination of the witness is necessary-in all such cases there would be duplication of evidence, namely, the reading of the affidavit and then the examination and cross-examination of the witness. This would undoubtedly delay the proceedings of the Trial; and to prevent that the Tribunal would, in all such cases, rule against the reading of the affidavit. Consequently, it is futile for the Prosecution to present affidavits of witnesses who can be expected to appear in person later in the proceedings. I do not think that the Prosecution should be worried about this. It is a matter of course that we-and we assume the same is true of the Prosecution-that we, the members of the Defense, want the Trial to be as speedy as possible but also want it to proceed cautiously to establish the full truth. But, it is obvious, if evidence is introduced which is a potential cause of completely unjust findings, that such evidence will have to be clarified in a more complicated and time-consuming way when the witness is called in person.