The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: imt/tgmwc//tgmwc-07/tgmwc-07-66.02

Archive/File: imt/tgmwc/tgmwc-07/tgmwc-07-66.02
Last-Modified: 1999/11/20

THE PRESIDENT: I beg your pardon, Dr. Stahmer, but you have
misunderstood. The defence has never been told that
objections to the admissibility of documents could be left
over until later. Every objection to the admissibility of a
document has been dealt with at the time. Observations upon
the weight of the document are to be dealt with now, during
the course of the defence. I do not mean to-day, but during
the course of the defence.

There is a fundamental distinction between the admissibility
of a document and the weight of a document, and all
questions of admissibility have been dealt with at the time.
DR. STAHMER: Mr. President, I fully understood that
distinction. I did want to say that objections against
admissibility were turned down, but rather objections
against relevancy.

THE PRESIDENT: Objections to the relevancy of documents -
that is to say, their admissibility - that is the governing
consideration under this Charter as to the admissibility of
documents. If they are relevant, they are admissible. That
is what the Charter says. And any objection which has been
made to documents or to evidence by defendants' counsel has
been heard by the Tribunal and has been decided at the time.

Dr. Stahmer, the Tribunal wishes me to point out to the
defendants' counsel that they have had long notice of this
form of procedure, long notice that under Article 24 (d)
they were going to be called upon to specify or name their
witnesses and the documents which they wish to produce, and
to state what the relevancy of the witnesses and the
documents would be.

To the Tribunal it seems obvious that that procedure is
really necessary when one remembers that it is for the
Tribunal, with very great difficulty and at considerable
expense, to find these witnesses and to bring them to
Nuremberg; and to find the documents, if possible, and to
bring them to Nuremberg.

Now, as to your, or to Dr. Horn's objections to the
procedure which has been adopted with reference to the
prosecution, it is open to defendants' counsel at any time,
if they wish to do so, to apply to strike from the record
any document which they think ought not to have been
admitted. One of his objections, or possibly your objection,
appeared to be that defendants' counsel have not had
sufficient time to consider whether a particular document or
a particular witness was relevant,

                                                  [Page 249]

and therefore admissible. You have had ample time now to
consider the point and if you now wish to apply to strike
out any document or to strike out any evidence, you will
make that application in writing and the Tribunal will
consider it.

As I have said, the object of the procedure is to -help the
defendants and their counsel. And it is a necessary
procedure because the defendants are unable, naturally, and
defendants' counsel are unable, naturally, to procure the
attendance of witnesses here in Nuremberg, and in some cases
to procure the production of documents.

In order that we should be able to do so, on their behalf,
it is necessary that we should know whom they want to have
produced here; what documents they want to have produced
here; and, in order that time and money should not be unduly
wasted, it is necessary to know whether the witnesses and
the documents have any shadow of relevancy to the issues

DR. STAHMER: Then I will begin with the naming of those
witnesses whose examination before the Tribunal I consider

I name first General of the Air Force, Karl Bodenschatz.

THE PRESIDENT: Dr. Stahmer, the Tribunal does not desire you
to read your application. If you will just say in your own
words, as shortly as you can, why you want the particular
witness, they will then consider it. And if counsel for the
prosecution wish to object, they will do so. Then the
Tribunal will finally decide the matter.

DR. STAHMER: The witness I have named, General of the Air
Force, Bodenschatz, who is here in the Nuremberg prison, was
with the defendant Goering since 1933, first as adjutant and
later as Minister, as Chief of the Ministerial Office. He
is, therefore, well informed about ail the principal events
of that time. I have named him as a witness for a number of
facts which are individually contained in my written
statement, but especially because he took part in a
conference which was held at the beginning of August, 1939,
in Soenke Nissen Koog, at which Goering met English
negotiators in order to discuss, with them, the possibility
of a peaceful solution of the difficulties then existing
between Germany and Poland. At that time he declared to the
English negotiators that a war must not come to pass under
any circumstances, and that they must endeavour to settle
these differences peacefully.

Furthermore, he has referred to statements which Goering
made during the past years, particularly 1936 to 1939, from
which it can be seen that it was Goering's intention to
avoid a war if possible. He declared that the policy of the
Reich should be conducted in such a way that a war could not
break out under any circumstances.

Furthermore, this witness knows what was Goering's attitude
when he first heard from Hitler that he intended to attack

Finally, he is also informed about the social attitude of
Goering, whom he had ample opportunity to get to know very
well, particularly after 1939.

These are, generally, the facts about which Bodenschatz
could testify here as a witness.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, may I
say one general word about the procedure of the prosecution?

My colleagues in all the delegations have asked me to deal
primarily with these particular applications. There will be
some of them, if the Tribunal pleases, on which certain of
my colleagues would like to add a word, as they have special
interest in them, but in general, and on the whole, I shall
deal with the applications for the prosecution.

May I say that the prosecution has proceeded on this
principle: that if there is any point of relevancy in a
witness for whom application is made, they will not, of
course, object. But they want to make it quite clear, so
that the Tribunal will understand, that they are not, by
making no objections, accepting the position that every
point set out in the document or mentioned by counsel is
admitted to be

                                                  [Page 250]

relevant. By making no objection they are simply admitting
that there is some relevant point in the matter put forward.

On that basis - and the Tribunal will understand why I have
to be careful in the matter - the prosecution makes no
objection in the case of General Von Bodenschatz.

THE PRESIDENT: Yes, Dr. Stahmer.

DR. STAHMER: I further name as a witness the former
Gauleiter, Dr. Ueberreither, who is at present here in the
prison at Nuremberg. Ueberreither is to offer the following
evidence. He can give information about a speech -

THE PRESIDENT: May I say this to Sir David that perhaps, in
view of what you have said, you might be able to indicate at
the opening of Dr. Stahmer's motion in respect to each
witness whether the prosecution has any objection to the
witness. Perhaps that would make it easier for him to deal
shortly with it.

SIR DAVID MAXWELL FYFE: May I say that we have no objection
to Dr. Ueberreither, on the same basis as I mentioned.

THE PRESIDENT: I only meant that if counsel for the
prosecution indicate to us that they have no objection to a
particular witness, then Dr. Stahmer can deal more shortly
with the witness.

DR. STAHMER: Surely.

THE PRESIDENT: Just inform us what the relevance of the
evidence is, but do it shortly because the prosecution has
got no objection.


THE PRESIDENT: In the case of this particular witness, would
it not be equally convenient to the defence, for the purpose
of shortening things, to have this evidence taken either in
an affidavit or by interrogatories?

DR STAHMER: Regarding the witness Ueberreither, I have no
objections if I can get a statement from the witness

THE PRESIDENT: Before you pass on, you might just tell us
what the substance of the evidence is.

DR. STAHMER: Ueberreither was present when Goering, in the
summer of 1938, delivered a speech before the new Gauleiter
of Austria, in which he dealt with the policy of the Reich
and in which he spoke about the goal and purpose of the Four
Year Plan. The witness, furthermore, was present when
Goering, some time after 10 November, 1938, that is, after
the demonstration against the Jews, called all the Gauleiter
to Berlin and there criticised those actions very severely.
Those are the two subjects of evidence.

THE PRESIDENT: Very well. Then we can pass on to the third

DR STAHMER: The witness is Lord Halifax. Referring to this
witness -

SIR DAVID MAXWELL FYFE: If I may interrupt - the
interrogatories have been served on and answered by Lord
Halifax The prosecution has no objection to the
interrogatories Of course, it objects to his being called as
a witness, but we understand that the Tribunal and Dr
Stahmer agree to Lord Halifax being dealt with by means of
interrogatories, and to that it has no objection.

DR. STAHMER: I am satisfied with the reply to my
interrogatories which I have already received and I do not
insist on summoning the witness.


DR. STAHMER: The next witness is the witness Forbes. I may
say that in this case, too, the submission of an
interrogatory was approved and the interrogatory, as far as
I have been able to determine, has been sent out already. I
have not yet received an answer.

SIR DAVID MAXWELL FYFE: Well, we have no objection to Sir
George Ogilvie Forbes being dealt with by interrogatories. I
will do my best to see that the answer is forthcoming as
soon as possible. My recollection - I was not able to check
it - is that Sir George is at a foreign capital, but I will
do my best to see that the answers are brought and certainly
will do everything to help on the point.

                                                  [Page 251]

DR. STAHMER : Whether I can ultimately forego him, I will
naturally be able to judge only when I have the
interrogatory before me. It may be that in regard to some
questions he has given insufficient answers.

THE PRESIDENT: Do you mean Dahlerus or Sir George Ogilvie-

DR. STAHMER: Forbes.

THE PRESIDENT: Yes. Well, the interrogatories will be
submitted to you as soon as they are answered.

DR. STAHMER: Yes, Sir.

THE PRESIDENT: And I think the same is true of Dahlerus.
Interrogatories have been granted for him.

DR. STAHMER: With regard to the testimony of Dahlerus I have
to say the following: The testimony of this witness seems to
me so important that an interrogatory could not exhaust all
his knowledge and therefore I ask to have the witness called
so that he can be examined here in Court.

If this should not be possible, I ask for the opportunity to
question him personally at Stockholm.

Dr. Siemers knows Dahlerus personally, and he will make a
statement concerning this witness.

DR. SIEMERS (Counsel for the defendant Raeder): I have known
Dahlerus personally for many years. Dahlerus has written to
me about the fact that Dr. Stahmer intends to call him as a
witness. Dahlerus, in principle, is prepared to come to
Nuremberg without further ado if the Court approves. As soon
as the Tribunal agrees, Dahlerus, as far as I can deduce
from his letter, will certainly be ready to come personally.

I wish to add something as a matter of principle. In the
case of important witnesses who, as for instance Dahlerus,
could answer questions which are of far-reaching historic
importance, most probably more than one defendant's counsel
will want to ask questions, as the subject interests several
of them. Therefore, an interrogatory which comes only from
Dr. Stahmer, would, in my opinion, not be sufficient in such
a case. Accordingly I ask the admission of the witness also
from this point of view.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, the
position as to the witness Dahlerus is that Dr. Stahmer has
put in interrogatories consisting of fifty-two questions. I
make no complaint of that at all. I only bring it to the
notice of the Tribunal to show that Dr Stahmer has certainly
covered the ground.

In addition, if the Tribunal would turn for a moment to Dr
Stahmer's application for documents, they will see that Item
26 is Dahlerus's book - if the Tribunal will pardon my
Swedish, "Sista Forsoket," ("The Last Attempt") That is a
quite lengthy book, dealing in detail with this point, and
it is desired, and the Tribunal has allowed, that Dr.
Stahmer will use it.

In addition, the position of Dahlerus has been the subject
of interrogatories to Lord Halifax, who was then the British
Foreign Minister, and to Sir George Ogilvie-Forbes, who was
then Counsellor in Berlin, and on the main point of the
matter, that Mr. Dahlerus had certain negotiations and paid
certain visits, there is no dispute.

In my respectful submission, the defendant is well covered
by the interrogatories, the connected interrogatories to
Lord Halifax and Sir George Ogilvie-Forbes, and the book,
and the evidence of the defendant Goering himself, and it is
unnecessary to investigate this matter further, as to
whether Mr. Dahlerus wishes to come and can come and should
come from Sweden.

THE PRESIDENT: Sir David, may I ask you, has the prosecution
administered cross interrogatories to Dahlerus?


THE PRESIDENT: There was another question. Did the defendant
Raeder's counsel apply to have Dahlerus as a witness?

                                                  [Page 252]

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