The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/11

                                                   [Page 77]


THE PRESIDENT: I have an announcement to make, and I make it
in this order, in the form of paragraphs.

Paragraph 1: The Tribunal cannot accept paragraph 1 of the
prosecution's motion as to the evidence of the defendants,
dated 11 February, 1946, but directs that, in complying with
Article 24 (d) of the Charter, counsel for the defendants
shall confine their evidence to what is required for meeting
the charges in the Indictment.

The Tribunal will announce later their decision with regard
to paragraphs 2 to 5 of the prosecution's motion.

Paragraph 2: With regard to the naming of witnesses, etc.,
by the defence under Article 24 (d) of the Charter, which is
referred to in paragraph 1 of Dr. Stahmer's memorandum to
the Tribunal, dated 4 February, 1946, the Tribunal makes the
following order:

In order to avoid delay in securing the attendance of
witnesses and procuring of documents, without prejudice to
the defendants' right to make further application at the
conclusion of the case for the prosecution, counsel for the
defendants Goering, Hess, Ribbentrop and Keitel shall,
before 5 p.m. on Thursday, 21 February, file with the
General Secretary written statements giving the names of the
witnesses and particulars of the documents they respectively
desire to call or put in evidence, with a summary of the
facts to be proved thereby and an exposition of the
relevance thereof.

The Tribunal hereby appoints Saturday, 23 February, at 1000
hours - that is to say, 10 o'clock - for the hearing of
argument upon such statements in open session.

Paragraph 3: The Tribunal will, in due course, issue
directions as to the filing of similar statements on behalf
of the other defendants.

Paragraph 4: The Tribunal will announce later their decision
on the other matters raised in Dr. Stahmer's memorandum.

The Tribunal will now hear the defendants' counsel's
application for a recess.

PROFESSOR KRAUS (representing defendants' counsel):

The defendants' counsel are grateful for the opportunity
granted by the Tribunal to state in detail the reason for
their application of 4 February for an adjournment of the
trial after the conclusion of the prosecution's case.

This application embodies a number of suggestions with which
the defence has striven to achieve a simple, clear, and as
rapid a presentation as possible of its case.

Only a few points of this application call for further

All the defendants are accused of participation in a
conspiracy. That apparently means that every act mentioned
in the course, of this trial, no matter by whom it was
committed and against whom, is charged against every one of
these defendants, and that he can be convicted of every one
of these acts. Even though the individual defence counsel
finds certain material with which he must concern himself
particularly, there is, nevertheless, none which he can
entirely ignore.

Since most of the defence counsel are working with only one
assistant, and sometimes alone, it can be seen how enormous
is the extent of the work involved in the examination and
discussion of the material that is daily presented by the
prosecution. The necessary discussions with the defendants
use up the evening hours and the days on which there are no
sessions. These discussions are, moreover, because of the
security measures that have been taken, very exhausting.

It is, therefore, simply beyond the strength of the
individual defence counsel,

                                                   [Page 78]

who has to attend the trial and continuously work over the
material presented at the trial, to make those intellectual
and technical preparations that can justifiably be expected
in a trial of such significance as this.

The material presented is not yet complete. The Soviet
prosecution is presenting new evidence daily. In the opinion
of the defence counsel, it would lead to an incorrect
evaluation of the extent and importance of accusations which
the Russian Delegation is presenting, if the defence counsel
were expected to conclude their defence preparations before
they had even heard the conclusion of the case for the

The Tribunal has already been informed in writing of the
difficulties involved in obtaining evidence. A few examples
might be cited in this respect, examples to which every
member of the defence could contribute.

One defence counsel, in November last, applied for a certain
witness to be called who was of decisive importance in the
presentation of his case. The application was approved by
the Tribunal. Although this witness was a very highly placed
German official, it was only in January of this year that
the camp in which he was interned could be located. The
witness has not, as yet, appeared in Nuremberg. Therefore,
this defence counsel has, so far, no idea about which
questions this witness can testify, and what he would

In numerous cases the place of residence of witnesses, whose
appearance at the trial had been ordered by the Tribunal in
November or December of last year, could not be established.
Defence counsel are quite unable to help in locating
witnesses, who, being interned in Allied prisoner-of-war
camps, have had no opportunity of providing information as
to their whereabouts. It has been suggested to some of the
defence counsel that they should interrogate witnesses
outside Germany by submitting questionnaires which would
enable them to be interrogated on the spot. In no single
case have answers to these questionnaires reached the
respective counsel for the defence.

In the case of witnesses living inside Germany, the defence
counsel have repeatedly been asked either to conduct the
interrogation themselves or to submit a written affidavit.
Since they are confined to Nuremberg during the sessions,
they could only carry out this task during a recess of some

Finally, one member of the defence had, at the beginning of
November, applied for permission to submit a number of
documents indispensable to his case. These documents are in
the possession of one of the signatories of the Charter.
They have been examined by the prosecution and have been
submitted in evidence by the prosecution as they serve to
incriminate the defendant in question. The defence counsel
is still not in possession of the exonerating parts thereof.

We should like to emphasise again the purely technical
difficulties that arise from the mimeographing and multiple

THE PRESIDENT: Just one moment, Professor Kraus. You
referred to a document which you said was indispensable,
which was in the possession of a Signatory Power, examined
by the prosecution and put in evidence in this case, and you
say that the defendants are still not in possession of it.

What is the reference to that document ?

PROFESSOR KRAUS : No, Mr. President, it is a collection of
documents in which the incriminating parts were presented by
the prosecution, but we, the defence counsel, are not yet in
possession of the exonerating parts.

Dr. Kranzbuehler, who, too, is affected by this case, can
give you more detailed information.

THE PRESIDENT: Well, there is an application, I know, by Dr.
Kranzbuehler, but if it is really a part of a document, the
Tribunal has ruled on several occasions that if the
prosecution puts in a certain part of a document, the whole
of that document must be available to the defendants'
counsel so that they can criticise and comment upon any
other part of it which may throw light upon the part of the
document which is put in evidence.

                                                   [Page 79]

PROFESSOR KRAUS: We are dealing here not with one single
document, but with a whole collection of documents and Dr.
Kranzbuehler only wishes to extract from this collection the
documents which would assist him to exonerate his client,
after the incriminating documents have been presented by the

THE PRESIDENT: You may continue.

PROFESSOR KRAUS: The defence is grateful to the prosecution
for the readiness they have expressed in assisting them in
technical questions. The great difficulties which the
prosecution themselves have experienced in this connection,
and which have repeatedly led to discussions by the
Tribunal, show, nevertheless, that an efficient solution of
this problem calls for a suitable length of time. The
defence consider it important to assure the Tribunal of
their readiness and their determination not to prolong the
trial unnecessarily. They are, however, of opinion that an
inadequate initial preparation will lead to a corresponding
delay in the duration of the defence, and that the
subsequent results might in no way suffice to enable the
Tribunal to pass a fair verdict.

The defence Counsel think they are in agreement with the
Tribunal in saying that this trial, so important in the
history of humanity, should be conducted throughout with the
peace and reflection which have hitherto characterised its
course. On the other hand, undue importance should not be
attached to the understandable impatience of those who
insist on a rapid termination of the trial. In this sense
the defence requests the prosecution to support their
application. The recess applied for, i.e., three weeks,
cannot be considered unreasonable in view of the total
length of time which the prosecution have envisaged for the
completion of their case. The granting of this recess would,
on the other hand, balance the fact that the defence, in the
conduct of their case, find themselves both spiritually and
materially in a very difficult position. Mention should be
made that a number of us have subscribed to to-day's
application, contrary to the opinion of the defendants we
represent, who desire a rapid termination of these
proceedings. We feel that we are accountable only to our own
consciences and our professional duties as counsel for the

I therefore request the Tribunal to take note that, after
serious and thorough consideration, my colleagues and I,
without exception, are convinced that the recess applied
for, i.e., three weeks, is the minimum time which they
consider essential for an orderly preparation of the

THE PRESIDENT: Dr. Kraus, the Tribunal would like to know,
if you can answer the question, whether defendants' counsel
have by this time ascertained all, or nearly all, the
witnesses whom they desire to call in evidence; whether they
have made up their minds, up to this stage, as to what
witnesses they desire to call.

PROFESSOR KRAUS: I cannot answer this question, since that
would call for a general inquiry. I should have to ask my
colleagues. The cases to my knowledge vary from one lawyer
to another. Some of the lawyers of the defence are more or
less ready in this respect, others are not.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, I think
it would be convenient if I followed the admirably lucid
exposition of Professor Kraus by asking the Tribunal to
direct its attention to two aspects of the matter: first,
what Professor Kraus called the intellectual preparation,
and secondly, the mechanical necessities of presentation of
the defence.

On the first point I draw the attention of the Tribunal to
the way that it is put in the written application signed by
Dr. Stahmer, which was followed in the main by Professor
Kraus to-day. It is stated that a respite is required for
the construction of the defence after conclusion of the
Indictment, that is, of the prosecution; secondly, that the
defence counsel have, until now, not had the time to prepare
their defence in such a manner that smooth functioning is
guaranteed; and thirdly, a line or two lower down, that in
justice it cannot be expected of the defence counsel - they
will be able to answer on the spot.

                                                   [Page 80]

I respectfully request the Tribunal's attention to some
matters of dates.

The Indictment in this case was filed on 18 October, which
is exactly four months ago today. The defendants were
immediately acquainted with the contents of the Indictment,
and it is a document of sufficient public importance to give
ground for the belief that defence counsel must have, at any
rate, had its general contents very quickly in mind.

On that day General Nikitchenko, presiding over this
Tribunal, stated at Berlin, "It must be understood that the
Tribunal, which is directed by the Charter to secure an
expeditious hearing of the issues raised by the charges,
will not permit any delay either in the preparation of the
defence or of the Trial."

I remind the Tribunal that the Indictment contains more full
particulars than probably any indictment in the history of

The third point is that preliminary lists of documents were
placed in the Defendants' Information Centre on 1st
November. The lodgement of preliminary documents, not
complete but amounting to many hundred, was made on 15
November. Except for one, Dr. Bergold, on behalf of the
defendant Bormann, all the counsel representing individual
defendants were appointed by 10 November.

Next, there have been four detailed speeches by the
prosecution explaining the scope and emphasis of the
prosecution's case. Every experienced advocate knows that
the opening speech giving the emphasis is one of the most
important matters to the defence.

As Professor Kraus said, from the beginning of November
there have been applications for witnesses. I shall deal
later with certain of the individual points, but I want to
say this generally, that any one who has read these
applications must be aware that the defence, from an early
date, have appreciated not only the case they have to meet,
but the line which they wish to pursue.

My next point is that, having heard practically the whole
case on Counts I and II, the Common Plan and Aggressive War,
the defendants received a 12-day recess at Christmas, and it
was indicated by the President that this was, in part at any
rate, for their assistance.

It is a point of fair comment that most of us have been
engaged in quite considerable trials where men's lives have
been at stake when the question of any adjournment at all
would not come into the picture. But this applies here too.

My next point is that on Counts I and II, the Common Plan
and Aggressive War, the cases against the individual
defendants were co-ordinated and the relevant documents
collected in the individual presentations. In every case
defendants' Counsel had these documents and trial briefs at
the latest by the middle of January. All the presentations
were concluded by 17 January except for four. The matter has
been brought up to date by the expositions of M. Dubost, M.
Quatre, and by my Soviet colleagues as they went along. In
addition, the transcripts, of which each defendant receives
a copy in German, show the weight and emphasis which the
prosecution attach to the different individual cases.

We all know, from our own experience, that you cannot
prepare any defence in any trial without the burning of
midnight oil, but I do impress upon the Tribunal that the
assistance which has been given and the time which has been
allowed is remarkable in this case.

I want to deal much more shortly with the mechanical side of
it, because Professor Kraus has been fair enough and good
enough to say that the prosecution have given assistance.
And I want to say this, that we are quite prepared, when
there is any question of photostating a German document, or
of mimeographing or reproducing a document in any other way,
or providing additional clerical assistance, to go beyond
what we have done and to meet any request made to us to the
utmost of our ability.

                                                   [Page 81]

Now I want to deal with the essential point which Professor
Kraus has made, that the prosecution have had a long time to
prepare and develop their case, and that the defence have
corresponding rights.

In my respectful submission, there is this essential
difference between the case for the prosecution and the case
for the defence. The prosecution must cover the whole field;
the defence selects the issues on which it will make its

I respectfully disagree with the contention of Professor
Kraus that that is altered by the fact that we are here
dealing with a conspiracy charge. Whether the charge is
conspiracy or not, there are certain facts which are not in
dispute. There are certain facts which will be, as is
indicated by Dr. Stahmer's memorandum, the subject of legal
argument or discussion as to the true inference to be drawn
from them, and the fact that a case is based on conspiracy
does not alter the fact that certain matters are either
going to be contradicted by evidence or left uncontradicted.

I, myself, have seen nothing to suggest that, for example,
the re-establishment of military forces in Germany, the
occupation of the Rhineland, the Anschluss of Austria, the
existence and conditions of concentration camps, many of the
actions of certain S.S. divisions and bodies under Himmler,
are going to be disputed at all, because the defendants'
counsel have had the opportunity of cross-examining
witnesses on many of these matters, and there has been no
challenge by cross-examination.

I do not question for the moment nor seek to deal with the
decision of the Tribunal this morning, which, of course, I
accept with the utmost loyalty, but I hope the Tribunal will
not think it wrong for me to mention in explanation that the
prosecution were anxious for the defence to eliminate the
matters in issue and would have been prepared, so far as it
lies with them, to agree to a certain time being given for
that purpose. But yet, the defendants have said - and again
I make no complaint - that they are not prepared to do it.
Therefore, that reason for adjournment disappears.

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