The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
November 20 to December 1, 1945

Ninth Day: Friday, 30th November, 1945
(Part 8 of 9)


[Page 298]

And now I wish to submit an additional motion:-

Should the Tribunal consider defendant Hess fit to plead - which, in my opinion, would be contrary to the opinion expressed in the medical reports - I request that a further medical test be made in order to investigate the question once more, for, as I have seen from the reports, each of the doctors examined and talked to the defendant for only a few hours during one day (during two days in one case). In a case as outstanding as this one, it seems to me, that, in order to obtain a complete picture of the defendant's case, it would be advisable to place him in a suitable hospital, for an examination over an extended period of time, in order to obtain a reliable picture based on several weeks of observation. The experts themselves are, obviously, not quite sure whether defendant Hess is mentally ill, apart or beyond the admitted unfitness to plead, This clearly emerges from the fact that all the medical statements emphasise that should the accused, when called upon by the Court, not be considered fit to plead, he should again be subjected to a psychiatric examination. I think this course should be followed in accordance with the suggestion made by the psychiatrists who have already examined him. I should therefore request - in case the Tribunal considers the defendant fit to plead - that the suggestion of the psychiatrists who have already examined him be followed, and that another medical opinion be obtained.

THE PRESIDENT: I want to ask you one question: Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only defect from which he is suffering is forgetfulness about what happened before he flew to England?

DR. VON ROHRSCHEIDT: Mr. President, it is true that the experts find defendant Hess capable of following the proceedings. But when answering the questions put to them they emphasise on the other hand, that the defendant is incapable of defending himself. The Tribunal asked the experts to give their opinion on the following questions, and I beg to read them again: "Is the defendant mentally healthy or not?" The question was answered in the affirmative by all experts, i.e., that he is not mentally ill, which does not, however, exclude the fact that the defendant might, at this moment, be incapable of pleading. This is borne out again by the answer of the experts to the next question: "Is the defendant mentally capable of following the proceedings so as to adequately defend himself, to understand a witness he wishes to repudiate, and to comprehend evidence submitted?" This is the wording of the translation in my possession. It seems to me that this question is answered by the experts, to the effect that the defendant is incapable of suitably defending himself, of rejecting a witness he wishes to repudiate and of comprehending evidence submitted. That I consider is contained in all the experts' reports with the exception of the report given by the Russians. Looking at the report given by the Franco-American delegation, if I may submit that to the Court, dated 20th November, it is stated under G, "as a result of our examination and investigations, we find that Hess is suffering from hysteria which partly manifests itself in a loss of memory." Now I come to the passage to which I should like to draw the Court's attention, "The loss of memory is of a kind that will not impair his understanding of the proceedings, but will do so with regard to his reactions to questions about his past, which would reduce the weight of his defence."

This report thus establishes that Hess's defence will be impaired. And I believe that the experts' admission "that his memory is affected" means that his fitness to plead is greatly reduced. The report of the Soviet-French delegation, signed by the Russian professors and Professor Delay, goes even further in stating that, although the defendant is able to comprehend all that happens around him, amnesia affects his capacity to defend himself and to understand details of the proceedings, and that this amnesia must be considered an impediment. If one

[Page 299]

is to interpret this report in the spirit of the doctors who wrote it, it clearly means that the defendant is not insane, that he can follow the proceedings - to all appearances - but that he cannot defend himself, as he is suffering from a credible form of amnesia based on hysteria.

THE TRIBUNAL (Mr Biddle): Do you accept the opinion of the experts?


THE TRIBUNAL (GENERAL NIKITCHENKO): I should like to draw the attention of the defence counsel to the fact that he has referred inaccurately to the decision reached by the Soviet and French experts. He has rendered this decision in a free translation which does not correspond to the original content.

DR. VON ROHRSCHEIDT: May I ask whether the report of 16th November is meant? May I once more read what my translation says? I can only refer to the translation of the English text that was given to me. This translation was made in the Translation Division of the Secretariat and handed over to me in this shape.

May I repeat that the translation in my possession refers to the report of 16th November, 1945, which was signed by members of the Soviet delegation and by Professor Delay of Paris?

Under Point 3 of this report the following is stated:

"The defendant is not insane in the strict sense of the word at present. His amnesia does not prevent him from following everything that is going on around him. But it affects his capacity to defend himself and to understand all details of the defence which might be presented as actual facts."
That is the text which I have here before me in the authentic German version.

THE PRESIDENT: That is all we wish to ask you. Does the Chief Prosecutor for the United States wish to address the Tribunal?

MR. JUSTICE JACKSON: I think General Rudenko would like to open discussion, if that is agreeable.

THE PRESIDENT: Yes. Are you going on?

GENERAL RUDENKO: In connection with the statement made by the defence counsel acting for Hess, concerning the results of the evidence regarding Hess' certified psychological condition, I consider it essential to make the following declaration: his psychological condition was certified by experts appointed by the Tribunal. These experts appointed by the Tribunal came to the unanimous conclusion that he is sane and responsible for his actions. The chief prosecutors after discussing the results of the decision and acting in accordance with the order of the Tribunal, replied as follows to the inquiry of the Tribunal: First of all, we have no questions to ask, no doubts to cast on the Commission. We consider that the defendant, Rudolf Hess, is perfectly able to stand his trial. This is the unanimous statement made by the chief prosecutors.

THE PRESIDENT (interposing): Will you speak more slowly, please?

GENERAL RUDENKO: I consider that the findings of the experts are quite sufficient to declare Hess sane and able to stand his trial. We therefore request the Tribunal to make the requisite decision this very day.

The defence counsellor, in his statement, when submitting to the Tribunal his reasons either for the postponement of the proceedings or for the settlement of the defendant's case, refers to the decision of the experts. I must, however, declare that this decision (and I do not know on what principle it was reached) has been quoted absolutely inaccurately. In the summary submitted by the defence counsel it is pointed out that the mental condition of the defendant Hess did not permit him to defend himself, to reply to the witnesses or to understand all the details of the evidence. This is contrary to the decision submitted by the experts, in their statement. The final conclusion of the experts definitely states that a similar loss of memory would not entirely prevent him from understanding the trial, but would preclude the possibility of defending himself and of remembering particulars of the past. I consider that these particulars, which Hess is

[Page 300]

unable to remember, would not interest the Tribunal unduly. The most important point is that which was emphasised by the experts in their decision, a point which they never doubted themselves and which, incidentally, was never doubted by Hess' defence counsel, namely, the fact that Hess was sane, in which case he, Hess, comes under the jurisdiction of the International Tribunal. On the strength of the above- mentioned data, I consider that the petition of the defence should be declined as being devoid of foundation.

SIR DAVID MAXWELL FYFE: May it please the Tribunal:

It has been suggested that I might say just a word, and as shortly as the Tribunal desires, as to the legal conceptions which govern the position in which the Tribunal and this defendant are placed at the present time.

The question before the Tribunal is whether this defendant is able to plead to the Indictment, and should be tried at the present time.

If I might very briefly refer the Tribunal to the short passages in the report, which I submit are relevant, it might be useful at the present time. According to the attachments to the order, which I have, the first report is that signed by the British doctors on the 19th November, 1945. And in that report, I beg the Tribunal to refer to paragraph 3, in which the signatories say: "At the moment he is not insane in the strict sense. His loss of memory will not entirely interfere with his comprehension of the proceedings, but it will interfere with his ability to make his defence and to understand details of the past, which arise in evidence."

The next report is that signed by the American and French doctors, and in paragraph I, the Tribunal will see: "We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria, characterised in part by loss of memory. The nature of this loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past, and will interfere with his undertaking his defence."

If the Tribunal will proceed to the third report, signed by the Soviet doctors, at the foot of page 1, of the copy that I have, there is a paragraph beginning "Psychologically - ", which I submit is of importance - "Psychologically, Hess is in a state of clear consciousness. He knows that he is imprisoned at Nuremberg, under Indictment as a War Criminal; has read and, according to his own words, is acquainted with the charges against him. He answers questions rapidly and to the point. His speech is coherent. His thoughts are formed with precision and correctness and they are accompanied by sufficient emotionally expressive movements. Also, there is no kind of evidence of paralogism. It should also be noted here, that the present psychological examination, which was conducted by Lieut. Gilbert, Doctor of Medicine, bears out the testimony, that the intelligence of Hess is normal and in some instances, above average. His movements are natural and not forced."

Now, if I may come to the next report, I am sorry - the report which is signed by the three Soviet doctors, and Professor Delay of Paris, dated the 16th, which is the last in my bundle; that says in paragraph 3:

"At present he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defence and to understand details of the past, which would appear as factual data."

I refer, without quoting, because I do not consider that they are of such importance at this point, to the explanation of the kind and reason of the amnesia which appeared in the Soviet report, dated the 17th November, under the numbers one, two and three, at the end of the report. But I remind the Tribunal that all these reports unite in saying that there is no form of insanity.

In these circumstances, the question in English Law, and I respectfully submit that to the consideration of the Tribunal as being representative of natural justice

[Page 301]

in this regard, is, in deciding whether the defendant is fit to plead, the issue is whether the defendant be insane or not, and the time which is relevant for the deciding of that issue is at the date of the arraignment and not at any prior time.

Different views have been expressed as to the party on whom the onus of proof lies in that issue, but the later, and logically the better view, is that the onus is on the defence, because it is always presumed that a person is sane until the contrary is proved.

Now, if I might refer the Court to one case which I suspect, if I may so use my mind, has not been absent from the Court's mind, because of the wording of the notice which we are discussing to-day, it is the case of Pritchard in 7 Carrington and Pike, which is referred to in Archibold, Criminal Pleading on the 1943 edition, at page 147:

In Pritchard's case, where a prisoner arraigned on an indictment for felony appeared to be deaf, dumb, and also not of sane mind, Baron Alderson put three distinct issues to the jury, directing the jury to be sworn separately on each: (1) whether the prisoner was mute of malice, or by the visitation of God, (2) whether he was able to plead, (3) whether he was sane or not. And on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defence, to challenge a juror, that is, a member of the jury, to whom he might wish to object, and to understand the details of the evidence; and he directed the jury that if there was no certain mode of communicating to the prisoner the details of the evidence, so that he could clearly understand them, and be able properly to make his defence to the charge against him, the jury ought to find that he was not of sane mind.

I submit to the Tribunal that the words there quoted, "to comprehend the course of the proceedings of the trial so as to make a proper defence", emphasise that the material time, the only time which should be considered, is whether at the moment of plea and of trial the defendant understands what is charged against him, and the evidence by which it is supported.

THE PRESIDENT: And does not relate to his memory at that time.

SIR DAVID MAXWELL FYFE: That is, I respectfully agree with your Lordship, it does not relate to his memory. It has never, in English jurisprudence, to my knowledge, been held to be a bar either to trial or punishment, that a person who comprehends the charge and the evidence, has not got a memory as to what happened at the time. That, of course, is entirely a different question which does not arise either on these reports or on this application, as to what was the defendant's state of mind when the act was committed. No one here suggests that the defendant's state of mind when the action charged was committed was abnormal, and it does not come into this case. ,

THE PRESIDENT: He will, it seems to me, be able to put forward his amnesia as part of his defence.

SIR DAVID MAXWELL FYFE: Certainly, my Lord.

THE PRESIDENT: And to say, "I should have been able to make a better defence if I had been able to remember what took place at the time."

SIR DAVID MAXWELL FYFE: Yes, Sir. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, "because of the accident, my memory is not good, or fails as to the exact charge". That should not, and no one has ever suggested that it could be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.

[Page 302]

THE TRIBUNAL (Mr. Biddle): As I understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defence?

SIR DAVID MAXWELL FYFE: With the greatest respect, will the learned judge read the preceding words which limit it? They say, "Whether a prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defence."

THE TRIBUNAL (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defence under the procedure of the trial, if you also find as a fact, which you, I think, do not dispute, and which you quoted in fact, that although not insane - now I quote: "He did not understand, or rather his amnesia does not prevent him completely from understanding, what is going on around him but it will interfere with his ability to conduct his defence, and understand details of the past." You don't think that is inconsistent with that finding?

SIR DAVID MAXWELL FYFE: No, I am submitting it is not. It is part of his defence, and it may well be "I don't remember anything about that at all." And he could actually add to that: "From my general behaviour or from other acts which I undoubtedly have done, it is extremely unlikely that I should do it." That is the defence which is left to him. And he must take that defence, and that is my submission.

THE TRIBUNAL (Mr. Biddle): So even if we assume for the purpose of argument that his amnesia is complete, and that he remembers nothing that occurred before the indictment, though now understanding the proceedings, you think he should be tried?

SIR DAVID MAXWELL FYFE: I submit he should be tried. That is my submission as to the legal position. I especially did not discuss of course - the Tribunal will appreciate that - I did not discuss the quantum of amnesia here, because I am not putting that to the Tribunal, I wanted to put before the Tribunal the legal basis on which this application is opposed. Therefore I accept readily the extreme case which the learned American judge put to me.

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