The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/20

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THE PRESIDENT: Before we deal with the applications. I am
going to read the Tribunal's Order upon Dr. Stahmer's
memorandum of 4 February, 1946, and the prosecution's motion
of 11 February, 1946. This is the order:

The Tribunal makes no order with regard to paragraphs 2 to 5
of the prosecution's motion as to the evidence of the
defendants, dated 11 February, 1946.

With regard to paragraphs 2 and 7 of Dr. Stahmer's
memorandum on defence procedure, dated 4 February, 1946, the
Tribunal makes the following order:

1. The defendants' cases will be heard in the order in which
the defendants' names appear in the Indictment.

2. (a) During the presentation of a defendant's case,
defendant's counsel will read documents, will question
witnesses, and will make such brief comments on the evidence
as are necessary to ensure a proper understanding of it.

(b) The defendant's counsel may be assisted in the courtroom
by his associate counsel or by another defendant's counsel.
Such other counsel may help the defendant's counsel in
handling documents, etc., but shall not address the Tribunal
or examine witnesses.

3. Documentary Evidence. (a) Defendant's counsel will hand
to the General Secretary the original of any document which
he offers in evidence if the original is in his possession.
If the original is in the possession of the prosecution,
counsel will request the prosecution to make the original of
the document available for introduction into evidence. If
the prosecution declines to make the original available, the
matter shall be referred to the Tribunal.

(b) Should the original of any such document be in the
possession of the Tribunal, defendant's counsel will hand to
the General Secretary a copy of the whole or relevant part
of such document, together with a statement of the document
number and the date upon which it was received in evidence.

(c) Should counsel wish to offer in evidence a document, the
original of which is not in his possession or otherwise
available to the Tribunal, he will hand to the General
Secretary a copy of the whole or relevant part of such
document, together with an explanation as to where and in
whose possession the original is located and the reason why
it cannot be produced. Such copy shall be certified as being
correct by an appropriate certificate.

4. Each defendant's counsel will compile copies of the
documents or parts of documents which he intends to offer in
evidence into a document book, and six copies of such
document book will be submitted to the General Secretary,
two weeks if possible, before the date on which the
presentation of the defendant's case is likely to begin. The
General Secretary will arrange for the translation of the
document book into the English, French, and Russian
languages, and the defendant's counsel will be entitled to
receive one copy of each of these translations.

5. (a) Defendant's counsel will request the General
Secretary to have the witnesses named by him and approved by
the Tribunal available in Nuremberg, such request being
made, if possible, at least three weeks before the date on
which the presentation of a defendant's case is likely to
begin. The General Secretary will, as far as possible, have
the witnesses brought to Nuremberg one week before this

(b) Defendant's counsel will notify the General Secretary
not later than noon on the day before he wishes to call each

6. (a) A defendant who does not wish to testify cannot be
compelled to do so, but may be interrogated by the Tribunal
at any time under Article 17 (b) and 24 (f) of the Charter.

                                                  [Page 246]

(b) A defendant can only testify once.

(c) A defendant who wishes to testify on his own behalf
shall do so during the presentation of his own defence. The
right of defence counsel and of the prosecution under
Article 24 (g) of the Charter to interrogate and  cross-
examine a defendant who gives testimony shall be exercised
at that time.

(d) A defendant who does not wish to testify on his own
behalf, but who is willing to testify on behalf of a co-
defendant, may do so during the presentation of the case of
the co-defendant. Counsel for other co-defendants and for
the prosecution shall examine and cross-examine him when he
has-concluded his testimony on behalf of the co-defendant.

(e) Sub-paragraphs (a), (b), (c) and (d) do not limit the
power of the Tribunal to allow a defendant to be recalled
for further testimony in exceptional cases, if in the
opinion of the Tribunal the interest of justice so requires.

7. In addition to the addresses of each defendant's counsel
under Article 24 (h), one Counsel representing all the
defendants will be permitted to address the Tribunal on
legal issues arising out of the Indictment and the Charter
which are common to all defendants, but in making such
address he will be held to strict compliance with Article 3
of the Charter. This address will take place at the
conclusion of the presentation of all the evidence on behalf
of the defendants, but must not last more than half a day.
If possible, a copy of the written text of the address shall
be delivered to the General Secretary in time to enable him
to have translations made into the English, French, and
Russian languages.

8. In exercising his right to make a statement to the
Tribunal under Article 24 (j), a defendant may not repeat
matters which already have been the subject of evidence or
have already been dealt with by his counsel when addressing
the Court under Article 24 (h), but will be limited to
dealing with such additional matters as he may consider
necessary before the judgement of the Tribunal is delivered
and sentence pronounced.

9. The procedure prescribed by this order may be altered by
the Tribunal at any time if it appears to the Tribunal
necessary in the interest of justice.

Now the Tribunal will deal with the application for
witnesses and documents on behalf of the defendant Goering,
and the procedure which the Tribunal proposes to adopt is to
ask counsel for the defendant whose case is being dealt with
to deal, in the first instance, with his first witness, and
then to ask counsel for the prosecution to reply upon that
witness and then, when that has been done, to ask
defendant's counsel to deal with his second application for
a witness, and then for the prosecution counsel to deal with
that witness; that is to say, to hear the defendant's
counsel and the prosecution counsel upon each witness in

That procedure will probably not be necessary when the
Tribunal comes to deal with documents. Probably it will be
more convenient for defendant's counsel to deal with the
documents together and prosecuting counsel to deal in answer
with the documents together. But, so far as the witnesses
are concerned, each will be taken in turn.

I call upon Dr. Stahmer.

DR. HORN (Counsel for defendant von Ribbentrop): Before we
go into these, details I ask to be informed why the Tribunal
has the intention of treating the defence in a fundamentally
different manner from the prosecution. In Article 24 of the
Charter it is stated that the Tribunal will ask the
prosecution and the defence whether they will submit
evidence to the Tribunal and if so, what evidence. This
decision has so far not been applied by the Tribunal in
relation to the prosecution, I am glad that to-day the
defence has been granted the possibility of naming to the
Tribunal those documents and witnesses which up to now have
been difficult to obtain. I am prepared to-day to state to
the Tribunal the essential points which establish the
necessity of calling the witnesses and the relevancy of the
documents. I ask the Tribunal, therefore, on the basis of
past practice, not to allow the prosecution to take part in
judging whether a document should be considered relevant or

                                                  [Page 247]

not. As defence counsel I am convinced that I would have to
submit to a sort of pre-censorship by the prosecution which
would impair the unity of my entire evidence. I may point
out that the protests of the defence have constantly been
postponed with the remark that the defence would be heard
about these points at a later date. If selection of
evidence, on the basis of objections by the prosecution,
operates here, to-day, the danger arises that protests which
have been postponed will not be able to be treated later.
For the reasons stated therefore I request the Tribunal to
proceed according to past practice, and decide against the
right of the prosecution to protest against the submission
of evidence.

THE PRESIDENT: Will counsel for Ribbentrop come back to the
rostrum? The Tribunal is not altogether clear what motion
you are making.

DR. HORN: I propose that the prosecution should not, at this
stage of the trial, be entitled to make a decision about the
calling of witnesses and the relevancy of documents.

Mr. President, I would like to plead further on that point.
I meant by "make a decision" that the prosecution should not
yet at this time, have anything to say about the question of
the admissibility or non-admissibility of evidence.

THE PRESIDENT: The Tribunal considers that your motion
cannot be granted, for this reason. It is true that the
defence is being asked to apply for witnesses and documents
now, in accordance with Article 24 (d). One principal reason
for that is that the Tribunal has got to bring all your
witnesses here. The Tribunal has been, for many weeks,
attempting to find your witnesses and to produce them here,
and to produce the documents which you want. The relevancy
of those witnesses and of those documents has got to be
decided by the Tribunal; but it is obvious that counsel for
the prosecution must be allowed to argue upon the question
of relevancy, just as counsel for the defendants have been
allowed to argue upon the relevancy of every witness and
every document which has been introduced by the prosecution.

Exactly the same procedure is being adopted now for the
defendants as has been adopted for the prosecution, with the
sole exception that the defendants are being asked to make
applications for the witnesses and documents and to deal
with the matter at one time, rather than to deal with it as
each witness or document is produced. The reason for that is
that the Tribunal, as I have stated, has got to find and
bring the witnesses here for the defendants, and also to
produce the documents.

Your motion was that the prosecution should not have the
right to decide on the calling of witnesses. The
prosecution, of course, will not decide upon that point; the
Tribunal will decide upon it. The prosecution must, however,
have the right to argue upon it, to argue that the evidence
of a certain witness is irrelevant or cumulative, and to
argue that any document is not relevant.

I am reminded that all of these documents have got to be
translated for the purposes of the Tribunal.

DR. HORN: Mr. President, many of the defendants' counsel,
myself included, have, so far, not been able to question
decisive witnesses for the purpose of obtaining information.
Therefore in decisive points we often do not even know
exactly what a witness can prove.

If, now, we have to deal with the prosecution before we know
definitely how far it is desirable to fight or riot to fight
for a witness, we are in an essentially worse situation than
the prosecution, which, whenever the defendants' counsel
made protests, knew exactly in what direction their witness
or their evidence was important. In this regard the defence
is, for the most part, in a considerably worse situation,
and I am of the opinion that this situation will become even
more unsatisfactory if here, as well as the Tribunal, the
prosecution also can make protests against the evidence at
this stage of the trial.

                                                  [Page 248]

THE PRESIDENT: It is true that it is impossible to decide
finally upon the admissibility of any piece of evidence
until the actual question is asked; and for that reason the
Tribunal has already in deciding provisionally upon the
application for witnesses, acted in the most liberal way. If
it appears that there is any possible relevancy in the
evidence to be given by a witness, they have allowed that
witness to be called. Therefore, if there is any witness
whose evidence appears to be, by any possibility, relevant,
the Tribunal will allow that witness to be called, subject,
of course, to the directions of the Charter to hold the
trial expeditiously.

Subject to those limitations, the Tribunal will allow any
witness to be called whose evidence appears to be possibly
relevant. That is all the Tribunal can do because, as I have
already stated, it is the Tribunal who has to undertake the
difficult task of securing these witnesses for the
defendants, who cannot secure them themselves.

DR. HORN: Thank you.

THE PRESIDENT: Now, Dr. Stahmer.

DR. STAHMER: Mr. President, I do not wish to go over this
again, but I believe that the objection of Dr. Horn has not
been understood quite rightly. Dr. Horn wanted only to
complain about the fact that the defence in no case has been
asked previously whether an item of evidence that the
prosecution has presented was relevant or not, but we have
always been surprised when a witness was brought in and we
had no possibility to make any material objections relative
to him.

In so far as objections against documents were concerned,
that is, as to their relevancy, the defence has always been
told that for such an objection the time had not yet come
for the defence -

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