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Last-Modified: 1999/06/08

Session No. 73
8 Sivan 5721 (12 June 1961)

Presiding Judge: I declare the seventy-third Session of the
trial open.

Attorney General: With the Court's permission, before we
proceed with the argument in which we were engaged, I should
like to ask the Court to accept as exhibits, the films which
were screened here last week.  They are with Superintendent
Koppel, of the administration of this court building.
Superintendent Koppel received them from the projectionist,
and he is ready at all times to deliver them to the Court.

Presiding Judge: The screening was during Session No. 70.
How many such reels are there, Mr. Hausner?

Attorney General: I think there were two, but I am not sure.
There are two long I am now told by
Superintendent Koppel, there are two.

Presiding Judge: Actually, this was an oversight.  It should
have been attended to immediately.  Dr. Servatius, is there
anything you have to say?

Dr. Servatius:  Your Honour, the Presiding Judge, I have no
formal objection.  I would only wish to ascertain whether a
list concerning the contents was submitted.  In my opinion,
that is important.

Presiding Judge: We received a minute of identification,
signed by Mr. Bar-Or, I think.  We marked it with the letter
`A'.  Have you received a copy of it?

Dr. Servatius:  Yes, it has been filed.

Presiding Judge: In that case, the two film reels will be
marked T/1382 and T/1383.

I would ask you to hand them to Mr. Bodenheimer, and I shall
mark them later.

Attorney General: I shall ask Superintendent Koppel to do

Presiding Judge: During the recess.

Attorney General: And now I shall take advantage of the
permission which the Court has given me to deal with the
question of the document which I have referred to as the
"Sassen Document."  There is, surely, no need to speak at
length about the principle that an accused's statement
constitutes an exception to the hearsay rule.  If necessary,
the Court will find this authority in Phipson, 9th edition,
on page 228.  There may be differences of opinion as to the
justification for this: Wigmore, in volume 4, section 1046,
on page 2 ff., assumes that such evidence does not amount to
hearsay, since the accused has no need to cross-examine
himself, and he is, accordingly, to be relied upon for what
he says, and it is also possible to submit his statement
through another witness.  However that may be, the accused's
statements are admissible evidence according to the Common

Now there arises the question of Section 37(2) of the
Criminal Procedure (Trial upon Information) Ordinance.*
{*For the wording of this subsection, see above, Session 72,
note on page xx} My reply to this section is threefold.
Firstly: the section was not meant to lay down rules in the
law of evidence but to determine ways of submitting the
statement, where it is a verbal statement, and ways of
submitting a document, where the statement has been recorded
and attested.  This section applies to a statement of an

[After a brief exchange on the correct Hebrew terminology.]
When I say "Imra" (in Hebrew), I mean "statement" within the
meaning of that Ordinance.  So, how are we to interpret the
term "statement"?  There are good grounds for concluding
that the reference in Section 37(2) is to formal statements,
and only to such statements.  For, otherwise, there is no
sense to the second portion of the section which deals with
statements committed to writing, signed in the presence of
somebody who was present at the time - that is to say, at
the time the statement was recorded - and who saw the
accused signing.

If we were to say that only such statements made by accused
persons, such formal ones, only they are admissible under
the rules of evidence, we would have to invalidate, as
evidence, letters, diaries, any ordinary entry on paper
found in persons' homes, after they had already been
indicted, or on their persons, when they are in prison, or
which they have tried to smuggle out of prison, and any such
document will not be admissible as evidence if it did not
bear his formal signature, and in the absence of a person
who would be able to testify that he saw the man writing,
who was present at the time he was actually doing so and saw
him sign.

But, of course, we know that these are daily occurrences,
that writings are accepted, and are admissible as competent
evidence.  Formal statements of accused persons or of
witnesses are taken under the Criminal Procedure (Evidence)
Ordinance.  I refer to Sections 2 and 3 which empower any
police officer of a certain rank, or any other authorized
person, to receive a statement, and thereafter it says: "Any
such statement, when reduced into writing, shall be read
over to the person examined."  That means that with such
statements taken in this manner, it is necessary to ensure
that all the formal requirements are fulfilled.  And here we
also have the explanation of the words: "Signed or otherwise
attested," which we find in Section 37(2), for otherwise
what would be the meaning of "otherwise attested"?

Presiding Judge: By thumbprint, perhaps?

Attorney General: For example, by thumbprint, or a cross, or
any kind of sign, and once again, as is rendered possible
under Section 3(1) of the Criminal Procedure (Evidence)
Ordinance; thus far, in respect of "statement".  But the
statement has to be that of an accused person.  And how is
he an accused?  The entire Section 37 deals with persons who
have already been charged, such as in Subsection (1), which
refers to a person appearing before an examining magistrate
in a preliminary investigation, and obviously there is no
preliminary enquiry other than in the case of an accused
person.  The third subsection, too, which refers to
statements made by one accused regarding another accused
person, can also apply only to an individual who has already
been charged.

And we know what is meant by an accused person.  That is
defined by the same ordinance, in Sections 5 and 6 - how a
person becomes an accused; when someone believes, on good
grounds, that a person has committed an offence, he makes a
complaint.  That is in Section 5.  And Section 6 says: "The
magistrate, upon receiving such complaint or charge, shall
issue at his discretion either a summons or a warrant to
compel the attendance before him of the accused person."  At
that stage, the individual becomes an accused person - after
a complaint has been entered against him - as provided in
Section 5 of the Criminal Procedure (Trial upon Information)
Ordinance.  Clearly, this section is not in force today, but
when we come to interpret the meaning of Section 37 and of
the term "accused" appearing in it, we must look for the
intention of the legislator, as it was at the time the law
was enacted.

In the case before us, the statement that we desire to
submit is not a statement in the aforementioned sense.  It
is not a formal statement.  Secondly, it was not made when
the Accused appearing before you had already been indicted,
as defined in the law.

My alternative argument is that Section 37(2) is not
exhaustive.  I undertook to cite the Mandatory judgment
which I mentioned in the course of my remarks, and I have
now found it.  I was referring to Criminal Appeal No. 29 of
1946, which is to be found in the Annotated Law Reports
1946,  volume 1, at the end of page 231.  The question there
was the admissibility of a statement made by the accused
before he committed the offence.

The lower Court admitted that statement, and this fact
constituted one of the grounds of appeal.  And this is what
the Appeals Court had to say on page 232, at the foot of the

     "The first ground was that the evidence of Ahmed Mahmud
     Hassan, as to a meeting he had with one of the accused
     twenty-five days before the trial, was inadmissible in
     that it was a statement of the accused and, as such,
     did not come within the ambit of Section 9 of the
     Evidence Ordinance or Section 37 of the Trial Upon
     Information Ordinance.  It is, however, quite clear
     that it is not evidence within the meaning of either of
     these sections.  It was evidence as to a line of
     conduct of the accused which was relevant to the issue
     and was clearly admissible."

That is to say, if one wants to produce evidence as to a
"line of conduct," this can be done, notwithstanding Section
37(2).  Nobody has argued that it is only in respect of a
"line of conduct" that Section 37(2) is not exhaustive.  My
contention is that it is not exhaustive, and the proof of
that is that a way was found, in that Criminal Appeal, for
submitting a statement for the purpose of proving a
consistent line of conduct on the part of the accused.

Presiding Judge: We have, in the meanwhile found another
judgment - possibly you have also come across it: I think it
is Criminal Appeal No. 26 of 1944, Abdul Hadi versus the
Attorney General.  I believe that there the opposite
interpretation emerges, namely that the two sections are
exhaustive.  Have you seen it?

Attorney General: I have seen the judgment.  I have quoted
this other judgment, because it is a later decision.

Presiding Judge: It does not say very much, so it seems to

Attorney General: At any rate, the statement was admitted;
if we thought that Section 37(2) constitutes the sole
possible manner of submitting statements by an accused, this
decision could not have been reached.

Presiding Judge: Since they say this: it was not a statement
at all, but proof of a "line of conduct."  But one should
look at the facts in detail there.

Attorney General: Nevertheless, there was such a statement.

Presiding Judge: I am not sure - that, too, is not
altogether clear.  It says, "The statement as to a meeting
he had with one of the accused."  That is clear, it deals
exactly with the point you are now making.

Attorney General: I have further proof.

Presiding Judge: All this is more or less clear - precisely
on the point you are making.

Attorney General: The reference is to Section 9 of the
Evidence Ordinance.* {*Section 9 of the Evidence Ordinance:
"Evidence of confession by the accused that he has committed
an offence is admissible only when the prosecution has given
evidence of the circumstances in which it was made and the
court is satisfied that it was free and voluntary"}
Presiding Judge: And also to Section 37?

Attorney General: Yes - also to Section 37.

Presiding Judge: It says:

     "Now it is perfectly true that if it is thought by the
     prosecution to lead evidence of a statement by an
     accused person relating to the facts of the crime or
     offence with which he is charged, then such evidence
     cannot be led, unless in accordance with the statutory
     provisions to which we have referred."

Nevertheless, here, too, they subsequently allowed it, since
they say:

     "The object of leading that evidence was, of course, to
     prove the existence of enmity, thus to provide evidence
     of the existence of a motive."

I am not so sure that I fully understand this distinction.

Attorney General: Was that on application for a pardon that
was submitted to the High Commissioner?

Presiding Judge: That is correct, and that was four years
before the murder was committed.

Attorney General: That is correct.  It seems to me that my
argument regarding Section 37(2) will also lead us to the
conclusion that it is not exhaustive.  For instance, what
about a statement which was written down, but not signed?
Let us say that the person making the statement uttered it,
it was legally recorded, but he refused to sign it.  We know
that, under the Criminal Procedure (Evidence) Ordinance,
Section 3(2), the remedy provided for such a case is that a
police officer signs it, and such documents are admitted
every day in the courts.  If we say that only what is
"reduced into writing and signed or otherwise attested" is
admissible, then we set at nought - at least in a certain
sense, for these purposes - Section 3(2) of the Criminal
Procedure (Evidence) Ordinance.

Presiding Judge: But that ordinance applies to the evidence
of persons who have generally been questioned as witnesses.

Attorney General: So be it.  Let us assume that a person has
been interrogated.

Presiding Judge: Accused persons - only until the moment
they are formally charged.

Attorney General: What happens, Your Honour, if an accused
person, who has already been formally charged, and who then
comes forward subsequently of his own free will and says:
"Now I want to make a statement," and he makes his statement
and afterwards refuses to sign it?

Presiding Judge: Section 9 of the Evidence Ordinance applies
generally to such a case.

Attorney General: Yes, but if Section 37(2) should apply,
and we say that this can be submitted only if it is signed,
then it will be impossible to submit the statement.  We
shall arrive at unreasonable conclusions, if we lay down
that Section 37(2) constitutes the one and only manner of
submitting such statements.

Judge Raveh:   I am not at all sure that by Section 37(2) it
is possible to admit the document only if it is signed.

Attorney General: That is what it says.

Judge Raveh:   Where it is signed.  But it does not say that
it must be signed.

Attorney General: And hence, what is the position of a
document "which is reduced to writing and not signed," such
as in our case?

Presiding Judge: No.  In our case, I believe, first of all
the first part of Section 37(2) will apply.

Attorney General: I am not sure, Your Honour.

Presiding Judge: For we have heard from both sides that
there was at least one person who heard the Accused uttering
his words, that is Sassen himself, possibly another person
as well.

Attorney General: But afterwards it was recorded: "It was
reduced to writing."

Presiding Judge: And apparently not signed.

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