The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/06/14

Attorney General: The Court will find the precedents dealing
with the rules of evidence on the last page of this

The basic principle of the rules of evidence allows the
submission of documents which were drawn up by authorized
officials in the course of performing their official duty,
as proof of the acts or events described therein, and that
is one of the accepted exceptions to the doctrine of hearsay
evidence - the Hearsay Rule.

Presiding Judge: From which page are you quoting?

Attorney General: I am quoting from pages 42 onwards of the
legal material.

Such evidence is admissible on the grounds of the universal
assumption that a public official will carry out his duties
in a proper manner, and, to use the language of the Israel
Supreme Court:

     "If it is part of his official duty" (and I add: of the
     officer) "to record a fact which is known to have
     occurred, or certain statements which were made in his
     presence, he must do so honestly and accurately. This
     official obligation, therefore, constitutes an
     important and adequate guarantee of the dependability
     of the matters officially recorded in the said
     document, and that is what justifies the admission of
     hearsay evidence of this sort."

While the Israeli judgment dealt with a statutory
obligation, since it was the official duty of that officer
to prepare documents, and this is what interests the Court
in such a case, the rule can be found in its full extent in
Wigmore On Evidence, Volume 5, para. 1630 ff, and we would
ask to rely on para. 1632 ff. on pp. 513-516, and especially
on sub-paragraph (1). From what is stated there, it clearly
emerges that this rule applies in every case where a public
official is required, whether by specific provision of the
law or by the nature of his office, to prepare documents
relating to activities and events occurring in the course of
his service.

A further result is that, with regard to documents prepared
by officials in the course of their duties, there is a
presumption not only in respect of the accuracy of what is
stated in the document, but also of the authenticity of the
document itself, where the documents are kept in official

Thus we may conclude that as regards the document containing
details of the meeting with Heydrich - as in the case of
many other documents which have been submitted here - there
is a presumption under the rules of evidence that the
statements in the document serve as evidence of the veracity
of their content, and the onus of proof devolves upon the
Accused to convince the Court that the documents are false,
whereas he is speaking the truth.

The Accused cannot discharge this burden, and not only for
the reasons we have already mentioned. In the chart which he
drew up for his defence, he indicated October 1939 as the
date of his transfer to Berlin. He mentioned approximately
the same date in the timetable which he prepared for the
Defence. The Defence is about to submit it and we have
received a copy of it. Logic also dictates that the person
who was selected to carry out the task of fighting the Jews,
should already participate at this first decisive meeting.
Furthermore, all of Eichmann's activities in uprooting the
population, within the framework of Section IVD4, a fact
which he acknowledges, namely the displacement of Jews and
Poles from the areas annexed to the Reich, and their
transfer to that conquered part of Poland known as the
"Generalgouvernement," a task for the purpose of which he
received a special appointment - all this was done for the
promotion of part of the very plan that was finalized at
that meeting. And as has been mentioned, he admitted under
cross-examination that he had been in charge of all this
uprooting of populations, and he further admitted that the
experience which he had acquired in his work in Vienna
qualified him for this mission, and he carried it out in co-
operation with the institution that had been set up to
plunder the property of the deportees - the institution
which in typical Nazi perversion was described by the name
of "Trusteeship Office  East."

We have also learned of the horrors of these mass
deportations into the Generalgouvernement from the diary of
Hans Frank, the Governor-General of Poland. I have already
referred to the relevant extract from the diary in my
opening address.

Here, I shall pause to dwell upon the account of the
atrocities of the expulsion from Schneidemuehl, as they
appear in the report of a Polish-Jewish Aid Committee, which
acted in this matter in co-operation with the Red Cross and
the Society of Quakers:

     "The deportees were not even allowed to take a suitcase
     with them. Women had their handbags taken from them.
     Many of the men were deprived of their coats. They were
     conveyed to three villages: Piaski, Glusk, Bielica, a
     distance of about 25 to 30 kilometres from Lublin.
     There they awaited the Stettin deportees - those who
     were still alive - and from here the march began. Men,
     women and children marched on foot in a temperature of
     22 degrees below zero and on roads covered in snow. Out
     of 1,200  deportees from Stettin, 72 people were left
     behind on the way, most of them frozen, amongst them a
     mother who held her little boy aged three in her arms.
     She tried to protect him from the frost with her
     clothes, and in the end both of them collapsed and were
     left behind in the snow. A little girl, half-frozen,
     about five years of age, was taken out of the snow,
     barely alive. No one knew her. She bore on her neck a
     small cardboard sign with her name: Renatta Alexander
     from Hammerstein in Pomerania. It appeared that the
     child had been sent on a visit to relatives in Stettin
     and she was exiled with them while her parents remained
     in Germany. They had to amputate this child's frozen
     hands and feet. Sleds gathered the bodies along the
     roadway...About 280 of the Stettin deportees died

Your Honours, we are still at the beginning of 1940. The
Fuehrer had not yet given the order for physical
extermination. Eichmann appears here at the beginning of his
career. I questioned him about this operation of his. He
admitted that, in terms of the plan that had been drawn up,
it was up to him to arrange the transportation time-table.
In the document it says that in accordance with the office
designation, this was going to be implemented by IVD4, and
this was also certainly true in respect of the Jews in
Stettin. But it also states that Department II ought to deal
with the matter. It could not possibly be stated that he was
the only one to carry this out - so he said.

When we think of Renatta Alexander, the five-year old girl
in the hospital at Lublin with her hands and feet amputated,
about the mother and three year old child collapsing in the
snow and freezing to death, of the hundreds of victims of
the death march from amongst the Jews of Stettin, the
discussion with Eichmann about the marking of the documents,
the division of authority and the indication of Departments
seem to belong to a different world.

The tissue of Eichmann's lies was exposed here as well. In
the police interrogation, before he knew how many documents
on that subject we possessed, he said at first that the
designation IVD4, as a sign of the Section, must have been a
printing error - the matter was totally strange to him (ist
mir voellig fremd), whereas, in actual truth he had, already
at that stage, been taken into the confidence of the
Minister of State and the heads of the SS, and of all the
occupation authorities in connection with this very
operation, and the setting up of his Section was announced
to all of them; he dealt with this matter for several
months. It simply cannot be that he failed to remember it.
And indeed, later on, when the documents were shown to him,
then he remembered.

Perhaps at this point it is appropriate to make an
observation about Adolf Eichmann's "faulty" memory, in which
he tried from time to time to seek refuge when in trouble.
He answered me scores of times in cross-examination,
regarding important matters which should have been engraved
in his memory, that he did not remember. That was how he
also replied to the Court about the supply of gas by his
Section to the concentration camps; when was it resolved
that the Final Solution would be the killing of Jews; about
the supply of skeletons and skulls to the Institute of
Ancestral Heritage; the liquidation of the ghettos; whether
he had seen the loading of Jews on to the trains; about the
corrections in the Brown File; the instructions to the
Einsatzgruppen;  his operations in the area of the
Generalgouvernement, and tens of other decisive matters.

In all these matters he places at our disposal his skill at
reconstructing and interpreting documents with the aid of
the books of Reitlinger and Poliakov. But he is not prepared
to place his memory at the Court's disposal, since it is
faulty - that is what he says. I imagine that only seldom
does one come across a man who is so gifted with such an
unusual capacity to remember as this Accused. He is quite
capable, should he so desire, of recalling details and
minute items about events that occurred many years ago. He
can reconstruct, without the aid of documents and notes, but
only by virtue of what he knows, minor matters and major
ones that took place a long time ago. In order to assess his
amazing power of recollection, it is sufficient to peruse
the first seventy pages of his Statement to the police, in
the memoirs that he wrote (T/44), in order to realize that
the man had the capacity to describe, some twenty odd years
later, details of conversations he held, thoughts which
passed through his mind, to furnish a detailed picture of
the conditions of his service during all the periods, up to
the chapter of the extermination, what the rooms looked like
at the time, who were the people whom he met with then,
their likenesses and their natures. He is capable of
remembering, twenty-three years later, what his army pay was
at the time he served at Dachau, the names and functions of
all the persons whom he met at that time, the food he ate
then, the auxiliary services he rendered for his commander,
von Pichl, and even the paper on which he wrote his letters
to von Pichl and his reports were perforated, and that the
numbers of the pages were printed on them.

In those memoirs he recorded after he was already in Israel
and handed over to the police, he put on paper minute
details about his personal impressions and experiences -
where he spent his free time, the name of his teacher in
elementary school, everything connected with his being
accepted into the employ of the "Vacuum Oil" company, who
recommended him, who were the officials in that company,
what his salary was, where he travelled in the company's
service. He quotes the name of the book from which he began
at that time to study Hebrew, and he writes Ivrit
Levad.*{*Hebrew On One's Own} He remembers that the price of
lentil soup with sausage was 35 pfennig, twenty four years
ago, and with it one received a free roll, and that he paid
45 pfennig for a beer. He remembers who he met on the ship
during a voyage to the Near East in 1937, in which hotel he
stayed in Cairo, and other minor details indicative of a
very unusual power of recall. He forgot only one detail:
That he had already revealed, both in writing and orally,
certainly without realizing or knowing that this would be to
his detriment, this wonderful memory, and that when he now
attempts to seek refuge in a hazy memory in respect of
important and decisive matters - nobody would be able to
believe him anymore.

And now a few words about the other legal problem, which
links Eichmann to the totality of criminal acts.

The legal principle I wish to stress at this point and

which has far-reaching implications concerning his role in
the web of crimes set out in the indictment, is the well-
known principle of criminal conspiracy. The authorities
which we shall produce are drawn both from local judgments
and from Anglo-Saxon judgments dealing with serious crimes,
also those performed in a normal criminal context - one act
of murder, one case of robbery and so on. But there can be
no doubt that the legal principles that were enunciated in
these decisions are also valid in the case of crimes
embracing an entire continent, and the crime does not lose
its essence simply because it is much more comprehensive and
more horrible. The law imposes criminal responsibility upon
the murderer of one individual in accordance with the same
principle which applies to the murderer of millions.

In conformity with the Common Law, our Supreme Court defined
criminal conspiracy in Goldstein's case, on the first page
of the booklet, as follows:

     "Two or more persons entering into an agreement for a
     certain object, that object must be considered in the
     eyes of the law to be 'an unlawful object'."

     "The consequence of such a conspiracy," as was laid
     down in the judgment of the Supreme Court in the case
     of Keyser, "is that where a person enters into a
     conspiracy with others to perform an illegal act, he
     implicitly gives his consent to the employment by his
     associates of the necessary means to attain that
     object. Moreover, each one of the conspirators will be
     liable for the actions of each of the partners to the
     conspiracy, to the extent that these were performed for
     the purposes of the conspiracy and in order to advance

On page 4 of the booklet before you, extracts are quoted
from this judgment, and I shall read only a few lines. In
the sixth paragraph it says:

     "The responsibility of the conspirator for the acts of
     other conspirators is a substantive principle. There is
     no doubt that the learned Judge in the lower court
     thought that it was permissible to make use of the
     evidence of the commission of an act by one conspirator
     as admissible evidence against any of the other
     conspirators. From a substantive point of view it is
     permissible to find the remaining conspirators guilty
     of the same act, even though they did not participate
     in the performance thereof. In other words, one
     conspirator is in the nature of an agent for the other
     conspirators, and his acts must be judged as those of
     an accomplice to the crime within the meaning of
     Section 243 of the Criminal Code Ordinance."
This was a judgment of the late Justice Goitein, whose
tragic loss is still fresh in the minds of all of us. In his
judgment, Justice Goitein quotes a passage from Williams,
which appears above this extract. Further on, on page 5 in
the annexure, there is the American judgment of U.S. versus
Boyd (1890) 54 F864, citing Lamb versus The People:

     "The principle which underlies and controls cases of
     this character is the elementary and very familiar
     doctrine, applicable alike to crimes and mere civil
     injuries, that every person must be presumed to intend
     and is accordingly held responsible for the probable
     consequences of his own acts or conduct. When,
     therefore, one enters into an agreement with others to
     do an unlawful act, he impliedly assents to the use of
     such means by his co-conspirators as are necessary,
     ordinary, or usual in the accomplishment of an act of
     that character."

And this is the conclusion that was reached in the criminal
appeal of Sweetland, and the late Justice Goitein also
relied upon it, at the top of page 5 in your booklet, where
it says:

     "Every act done by a conspirator in furtherance of the
     conspiracy is done on behalf of all the conspirators."

Hence, as was laid down in the judgment of Goldstein and
Keyser, every party to a conspiracy becomes an agent for the
other conspirators, and his acts are in law like the acts of
an accomplice to a crime.

The basic doctrine in the law of criminal conspiracy
developed, in the course of time, into a principle of the
law of evidence, and evidence of the acts of one conspirator
can be used against the other conspirators for two purposes:
Firstly, in order to establish the very existence of the
conspiracy and its object; and, secondly, to prove as a
consequence the criminal responsibility of each of the
conspirators, provided the requirements which the doctrine
lays down for the existence of criminal conspiracy are met.
This doctrine, as far as the rules of evidence are
concerned, that is to say - the use which may be made of the
acts of one conspirator against others - also emerges from
further judgments - amongst them, the Amouri judgment (page
2 of the booklet) which speaks of the covenant entered into
between the conspirators. And, to quote the judgment:

     "When that unlawful 'covenant' has been entered into
     and agreed upon by all the conspirators, they become
     criminal Siamese twins who are no longer separable."

In other words: The criminal conspiracy, in itself,
constitutes a complete crime, and even if nothing is done to
promote it or to fulfil the criminal purpose. But if
something has been done in furtherance of the conspiracy and
the fulfilment of the criminal purpose for which the said
conspiracy was entered into - each one of the group of
accomplices shall bear criminal responsibility for this act.

Nor is there any need for the conspirators to know each
other, as was laid down by the Supreme Court in the Shukron
case (page 1 of the booklet):

     "There is nothing herein to prevent a man from being
     found guilty if conspiracy of evidence to that end
     exists, for a man can be found guilty of entering into
     a conspiracy with other persons even if he did not
     know, or was not acquainted with, all the others,
     especially when a division of tasks has been made for
     the commission of the crime, for the sake of which the
     conspiracy was entered into."

And there is the following quotation in Williams' book:

     "The conspirators need not have met or communicated with
     each other, for all save one may have been enrolled by a
     single originator, or they may have been enrolled in a

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