Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-073-02 Last-Modified: 1999/06/08 Attorney General: And not signed. I therefore ask: What is the law regarding this document - "reduced to writing and not signed"? Are we to say that it is a necessary condition, that every statement such as this, if given orally, is made admissible by the person who heard it, and he can submit it? But if it has already been reduced to writing, it cannot be submitted, unless it has been signed in the presence of a person who saw the evidence being taken, recorded and signed. I think it would be totally illogical to arrive at such a conclusion. Why? Where it is made orally and a witness heard it - that would be admissible; and where it is in writing, and where, for instance, a person saw the accused himself writing, but did not see him signing - that would be inadmissible. That would be the result. If that is exhaustive, then that document, written by the accused but not signed by him, will be inadmissible. In this way, we arrive at totally unreasonable conclusions. Therefore, a statement in the accused's handwriting, even though it is not signed by him, is admissible, and so is a statement taken down from what he said. And if an allusion to that is required - not a straightforward authority - then allow me to quote a short passage from Phipson, 9th edition, on page 270: "The form of a confession is in general immaterial. Thus, it may be made either orally or in writing; and a letter written by the prisoner to the prosecutor, even when in custody, although no caution was given him, is receivable." Judge Halevi: Further on, on page 271, there is a precedent of Erdheim which is even contrary to the manner laid down in the law. Attorney General: Actually, it was possible to offer proof by oral evidence. Judge Halevi: Despite the fact that there is some statute stating that it must be proved in writing? Attorney General: Yes. That can be so in a case of bankruptcy. Hence, what is the conclusion to be reached? A statement which was made in a definitely formal manner, written and signed or otherwise marked, must be proved by formal procedure. This is what is laid down in Section 37(2) - the manner of submission then has to be a formal one. A statement made in other circumstances may be proven by other evidence appropriate to the circumstances, and the common law will still apply to such a case, which permits such statements to be admitted. Our Evidence Ordinance, too, does not purport to be completely exhaustive. It says, at the beginning: "An ordinance to declare the law of evidence on certain points and to amend the law on other points." The Criminal Procedure (Trial upon Information) Ordinance seeks to lay down the procedure in criminal trials, and it certainly does not come in through the back door in order to bar us from applying the English Common Law. Judge Halevi: I would draw your attention to Section 15(9) of the "Trial upon Information Ordinance." Attorney General: I was going to mention Section 15 in another context, Your Honour, since Section 15 is referred to in Section 37(3), and from this, also, it is clear that the reference is only to accused persons. Judge Halevi: It is referred to in Section 15, although not explicitly, but by inference, also in Section 37(1); "during the preliminary inquiry." Attorney General: [Quoting the section] Because it deals with the preliminary inquiry. Judge Halevi: But Section 15(9) especially contains a general saving clause in respect of an "admission, confession or other statement of the accused made at any time." Attorney General: "Which is by law admissible as evidence against the accused." Judge Halevi: I also think that Section 37, in all its subsections, is linked to Section 15. Attorney General: To the position of a person as an accused. Accordingly, it is not Section 37(2) which determines our case, and we come back to the question of proof of the identification of a document and, on that basis, our application is to be decided. I would say immediately, at the outset, that I hesitate to apply to the Court in this matter with the request to use its authority under Section 15 of the Nazis and Nazi Collaborators (Punishment) Law. Let me say quite openly why I hesitate. This matter does not resemble other statements by an accused which I am able to prove by hearsay evidence, as I have sought to prove them, and in certain instances the Court also permitted me to do so. For example, statements by Hoettl, Wisliceny, or Hoess, because it was plainly evident to the legislator that it would be exceedingly difficult to prove war crimes and crimes against humanity, if we had to abide by and strictly follow the rules of evidence. Documents were lost, witnesses were unavailable, some had been executed, others had died, and if we had to be bound by the rules of evidence as regards the admissibility of evidence, possibly many charges could never be established. Hence, the legislator gave the Court a free hand in respect of admissibility. Naturally, when the time arrives, ultimately, to weigh up such evidence, the Court will determine for itself its own criteria. But when we are dealing with statements made by the Accused himself, I am not sure whether this was the legislator's intention in Section 15. In other words - I am obliged to prove that what I have is the Accused's statement. That is how I view it. If I am able to prove that, I have no need for Section 15, and the document will be admissible; and if I am not able to prove it, Section 15 will not help me, since the document will not be admissible. The Court cannot say: Although this is some document with some relevance to the matter before us, it has not been proved to us that it comes from the Accused or originates with him, but still, we will make use of Section 15, in order to admit it. I do not believe that this was the intention of Section 15. Of course, if the Court should hold that my approach and my view of the matter are incorrect, then the Court is always empowered to give me relief under this section. But I must state frankly why I have not based my application on this section. And now, what methods of proof do we have regarding this document? Presiding Judge: Actually, you have already outlined this for us in ample detail; unless you wish to add something to that. Attorney General: Just a few minutes. Presiding Judge: There is a question here which greatly troubles me. Let us take Section 37(2): it is not so simple, after all; but there is no doubt that the best evidence for the authentication of this document would be the evidence of Sassen himself. Now you are saying, Defence Counsel can demand the interrogation of Sassen abroad. To my mind the question arises: Why must the onus be placed on Defence Counsel? Why were you not bound to produce the best possible evidence? You may argue that you do not want to have any dealings with him - at any rate not within the State of Israel - you will arrest him if he comes here. But the way is open to you, according to Section 16 of the Evidence Ordinance - namely that you should request his examination abroad. I think that under its terms, this section is applicable. It has already been mentioned previously in this trial; why did you not, in any case, act accordingly - why did you not attempt to adopt this course at a much earlier stage? Attorney General: With great respect, I am not at all sure that Sassen's is the best evidence. I believe that if I am, in fact, able to prove that this document was in the Accused's hands, and that he adopted it as his own, and this is a document in writing - if these had only been Sassen's notes, without any contact, connection or treatment on the part of the Accused, I would certainly have been obliged to act in accordance with Section 16, if I could have done so. To my regret, I cannot, since we have no treaty with Argentina. I shall immediately come to this point and explain the situation to the Court. But I say that in fact I am submitting the best evidence, since I shall prove that this document has become the Accused's, owing to his having dealt with it, and then it is the best evidence. But since the Court has asked me about Section 16, I want to explain what we have ascertained, meanwhile, in regard to Argentina. We have no treaty. It is true that Argentina approached us on three occasions with a request to lend assistance to it by means of taking evidence on commission in criminal cases; on one occasion, we arranged for the interrogation under the Law for Legal Aid to Foreign Countries, when my predecessor in office directed the interrogation to be carried out; on one occasion, we refrained from doing so, because that was a request for serving a summons on a man accused in Argentina, and we thought that we were not obliged to do that. Presiding Judge: Serving a summons on an accused who at that time was here - in the State of Israel? Attorney General: Yes, and criminal proceedings were instituted against him in Argentina. On the third occasion, there was a request to serve documents on a person whom we looked for but were unable to find. At all events, the State was prepared to extend the assistance. These are the cases that have been brought to my knowledge. I therefore presume that by virtue of the principle of reciprocity which is normal in such matters, Argentina would also be prepared to take evidence on commission, but no agreement in the sense of Section 16 nor a law on the subject exists. But that is really only a formal reply. The substantive reply is different. I maintain that it is also possible to prove the source of the document by identifying the contents of the statements contained in it, and I refer to Wigmore, 3rd edition, volume 7, pages 606, 607, 608. I say in advance that in our case this is circumstantial evidence, for the main evidence is that of Superintendent Hagag. I rely on that; but as corroborative evidence, I want to show to the Court what the principle is in regard to the authentication of documents. On page 606, it says as follows: "Accordingly, it seems generally conceded that the mere contents of a written communication, purporting to be a particular person's, are of themselves not sufficient evidence of genuineness. Only in special circumstances, where the contents reveal a knowledge of other traits peculiarly referable to a single person, could the contents alone suffice. However, where the necessity above-mentioned does, in fact, exist, namely the impossibility of obtaining handwritten testimony, it would seem to follow that resort must be had to the evidence from contents - at any rate in some circumstances, or upon the facts of a particular case. Such an impossibility may exist for three sorts of writing: (a) an illiterate's writing by amanuensis; (b) a typewritten letter; (c) printed matter." And now, on page 607, Wigmore goes on to deal with "Typewriting machine matter." He says that such a case "presents a similar impossibility whenever a signature, as sometimes happens, is also typewritten or stamped, and it would seem that a similar necessity justifies a resort to evidence from contents." Presiding Judge: The case of an amanuensis using a typewriting machine - that is to say, a person who cannot read or write and, therefore, someone else uses a typewriter in his stead. Attorney General: Yes, but that is one of three instances. I would ask you to take note, on page 606, of what I have already read: (a) an illiterate's writing by amanuensis; (b) a typewritten letter; (c) printed matter. And Wigmore continues as follows: "If there were a serious possibility of abuse, this step would not be advisable. But in fact there is also a danger of abuse in the opposite direction; for the difficulty of authenticating such a document is sometimes taken advantage of by those who wish to be able to disavow their authorship. It is, no doubt, a question of experience, i.e. which danger is actually the greater. On the whole, it would seem safe to authorize the trial court, in discretion, to allow to go to the jury a typewritten communication bearing sufficient indication of authenticity in its contents and letterhead. Today, however, in view of the scientific development of the study of documents by microscopy and other arts, the authorship of typewritten documents can often be traced with certainty to the specific machine used; so that this mode of authentication does not then, in principle, differ from that of using the handwriting." But, Your Honour, we have both: Hagag identifies the typewriter as the only typewriter, the sole typewriter in the whole world, by the errors, flaws and defects in its various letters, on which this document could have been typed. Presiding Judge: Mr. Hausner, I do not follow this, in the light of the facts. In his opinion, he states that this was printed on three typewriters. But who possessed these three typewriters? Attorney General: If I may briefly recapitulate: There were three typewriters. For practical purposes, we can deal with two only, for on the third typewriter only one page was typed, and it does not matter to me if that one has to be disregarded. It is connected to the others only through its contents. These two typewriters, through their peculiarities, the various defects in their letters, which Superintendent Hagag lists at length, furnish this typed material with the characteristics of fingerprints, as it were; that is to say, there is no other typewriter in the world which possesses the same special characteristics in these letters as this one does. Presiding Judge: That, too, we do not know. Attorney General: I shall bring Superintendent Hagag to swear to this; we shall prove it. Presiding Judge: At all events, not according to what has been said so far. It is possible that these typewriters came from a casting factory where thousands of typewriters were manufactured, with each one of them possessing the same defects in each of their letters. Attorney General: Superintendent Hagag will swear to that, and I am prepared to prove it. On the assumption that I shall succeed in proving it, I shall ask your approval for admitting the document. Presiding Judge: But what will that prove? It will prove that certain portions of the written statement were all typed on the same machine. How does that help us?
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