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 9 of 9)

[page 302]

THE TRIBUNAL (M. de Vabres): I ask in what period the real amnesia of Hess applies. He pretends to have forgotten facts which occurred more than fifteen days ago. It may be simulation or, as they say in the report, it may be real simulation. I would like to know if according to the reports Hess has really lost his memory of facts, which are referred to in the Indictment, facts which pertain to the part covered by the Indictment.

SIR DAVID MAXWELL FYFE: The facts which are included in the Indictment, the explanations that the doctors give as to his amnesia, are most clearly set out in these paragraphs of the Soviet report, that is the third report dated the 17th of November, 1945, page two, and the numbered paragraphs one to three. They say first:

"In the psychological personality of Hess there are no changes typical of the progressive schizophrenic disease. That is, there are no changes typical of a progressive double personality developing, from which he suffered periodically while in England. I am sorry, therefore, the delusions from which he suffered periodically while in England cannot be considered as manifestations of a schizophrenic paranoia, and must be recognised as the expression of a psychogenic paranoia reaction, that is, the psychologically comprehensible reaction."
Now I ask the learned French judge to note the next sentence. "Of an unstable personality to the situation, the failure of his mission, arrest and incarceration. Such is the interpretation of the delirious statements of Hess in England, as bespoken by the disappearance, appearance, and repeated disappearance, depending on external circumstances which affected the mental state of Hess."

Paragraph two: "The loss of memory by Hess is not the result of some kind of mental disease, but represents hysterical amnesia, the basis of which is a subconscious inclination towards self-defence." Now I ask the learned French

[Page 303]

judge to note again the next words: As well as a deliberate and conscious tendency towards it." Such behaviour often terminates when the hysterical person is faced with an unavoidable necessity of conducting himself correctly. Therefore the amnesia of Hess may end upon his being brought to trial."

Three: "Rudolf Hess, prior to his flight to England, did not suffer from any kind of insanity, nor is he now suffering from it. At the present time he exhibits hysterical behaviour with signs of - and again I ask the learned French judge to note this point - with signs of a conscious intentional simulated character, which does not exonerate him from responsibility under the Indictment.

The last sentence is a matter for the Tribunal. But in these circumstances it would be impossible to say that the amnesia may continue to- be complete or is entirely unconscious. That is deliberately avoided by the learned doctors. Therefore the prosecution do not say that that is the case, but they do say that even if it were complete, the legal basis which I have suggested to the Court is a correct one for action in this matter.

THE PRESIDENT: Thank you, Sir David. Would Doctor Rohrscheidt like to add anything by way of reply? One moment: Mr Justice Jackson, I gathered from what Sir David said that he was speaking on behalf of you and of the French prosecution. Is that correct?

MR. JUSTICE JACKSON: I intend to adopt all that he said. I would only add a few more words, if I may.

THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has something to say first of all.

MR. JUSTICE JACKSON: I adopt all that has been said, and will not repeat. We have three applications before the Tribunal. One is for another examination. I will spend very little time on that. I think that we have made, up to this point in the examination, medical history in having seven psychiatrists from five nations who are completely in agreement. An achievement of that kind is not likely to be risked.

The only reason suggested here is that a relatively short time has been devoted to the examination, but I suggest to your Honour that that is not the situation, because there have been available the examinations and observations and medical history during the incarceration of Hess in England, extending from 1941, and the reports of the psychiatrists of the American Forces since he was brought to Nuremberg, and they all agree. So that there is a more complete medical history in this case than in most cases.

The next application was as to trial in absentia. I shall spend no time on that, for there seems to be no occasion for trying Hess in absentia if he should not be tried in his presence. If he is unable to be tried, why, he simply should not be tried at all. That is all I can see to it.

I would like to call your attention to the one thing in all this, the one statement on which any case can be made here for postponement. That is the statement with which we all agree: That Hess' condition will interfere with his response to questions relating to his past, and will interfere with his undertaking his defence. Now, I think it will interfere with his defence if he persists in it, and I am sure that Counsel has a very difficult task. But Hess has refused the treatment, and I have filed with the Court the report of Major Kelly, the American psychiatrist, in whose care he was placed immediately after he was brought here.

He has refused every simple treatment that has been suggested. He has refused to submit to the ordinary things that we submit to every day, blood tests, examinations, and says he will submit to nothing until after the trial. The treatment which was suggested to bring him out of this hysterical condition every psychiatrist agrees that this is simply a hysterical condition if it is genuine at all-was the use of intravenous drugs of the barbital series, either sodium amytal or sodium phenotal, the ordinary sedative that you perhaps take on a sleepless night. We did not dare administer that, to be perfectly candid, against

[Page 304]

his objection, because we felt that however harmless - and in over a thousand cases observed by Major Kelly there had been no ill-effects, although some cases are reported where there has - we felt that should be he struck by lightening a month afterward it would still be charged that something we had done had caused his death; and we did not desire to impose any such treatment upon him.

But I respectfully suggest that a man cannot stand at the bar of the Court and assert this his amnesia is a defence to his being tried, and at the same time refuse the simple medical expedients which all agree might be useful.

He is in the volunteer class with his amnesia. When he was in England, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, and went back into it. It is now highly selective. That is to say, you cannot be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete, blotting out of the personality, of the type that would be fatal to his defence.

So we feel that so long as Hess refused the ordinary, simple expedients, even if his amnesia is genuine, he is not in a position to continue to assert that he must not be brought to trial. We think he should be tried, not in absentia, but that this trial should proceed.

THE TRIBUNAL: (Mr. Biddle): Is not Hess asserting that he wants to be tried?

MR. JUSTICE JACKSON: Well, I don't know about that. He had been interrogated and interrogated by us, interrogated by his co-defendants, and I would not attempt to say what he would now say he wants. I have not observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I would not attempt to speak for him.

THE PRESIDENT: Does M. Dubost wish to add anything?

(M. Dubost indicated that he did not.)

DR. VON ROHRSCHEIDT: May I just say a few words to the Tribunal to make my point of view clear once more?

As Hess' defence counsel this is my point of view. First of all, it is a fact that Hess, according to the reports of the doctors which, all agree, is not mentally ill. It is therefore, not a question of his mental faculties being impaired.

Secondly, the defendant Hess is suffering from amnesia, which, as all medical experts admit, exists. They all agree, however, that this amnesia is caused by a pathological condition of his mind. The result is that the defendant is not insane, but has a mental defect. In a legal sense, I think, from this it can be deducted that the defendant cannot disdain responsibility for his actions, because at the time when the acts he is charged with were committed, he was certainly not mentally insane, consequently he can be held responsible. But there is a difference, according to German law at any rate, when the question is whether the defendant is at this moment in a position to follow the trial, that is, whether he is capable of participating in the proceedings. This question should, in my opinion, as I have already said, on the basis of the medical reports, be answered in the negative. He is not capable of pleading his case.

I admit that doubts are possible, and that the Court may not be completely satisfied that the answers of the experts, in the definition given, are sufficient to establish that the defendant's ability to plead is actually impaired, in the light of the language, perhaps deliberately used by the Court, which speaks of ability to plead "adequately." I believe that, perhaps, this is the point to be stressed.

It is my considered opinion that the amnesia, confirmed by all experts, would impair the ability to present an adequate defence.

The possibility exists that at times he might be able to plead or raise objections, and then at such times he may appear to follow the proceedings. But even then his defence could not be termed "adequate" and would not be comparable to that of a person in full possession of his mental faculties.

[Page 305]

May I perhaps add one word. I have already explained that the defendant has expressed the wish to me that he would like to attend the sessions, as he does not feel himself unfit to plead, but that, in the opinion of the defence, is completely irrelevant. It is up to the Court to settle this question. The personal preference of the defendant is of no account. With respect to the conclusion which the American prosecutor might draw about the defendant's refusal to be treated by narcotic means, that is not a question of truculence. He refused it because he was afraid that the intravenous injections at this particular moment might, in his weakened state, make him incapable of following the proceedings, which is exactly what he did not want to happen, and, as I have already mentioned, he himself thinks he is healthy and therefore says, "I do not need any intravenous treatment, I shall recover in the course of time." The defendant also tells me that he has an abhorrence of such treatments, and that in the unhappy times of the National Socialist regime, he was always for the homeopathy. He even founded the Rudolf Hess Hospital in Dresden, which is conducted on a natural, rather than medical, therapeutical plane.

MR. JUSTICE JACKSON: May I make one observation, Your Honour?


MR. JUSTICE JACKSON: The argument illustrates the selectivity of the memory of which I spoke to you. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad. I hope that the Court has not overlooked the statement of the matters that he does well recollect.

DR. VON ROHRSCHEIDT: May I make a correction?

THE PRESIDENT: It is unusual to hear counsel in a second reply, but as Mr. Justice Jackson has spoken again we will hear what you have to say.

DR. VON ROHRSCHEIDT: I would merely like to observe that I was misunderstood. It was not the defendant who told me that he was an adherent of natural medicine, thus proving that his memory works, but it was I who, from my own experience, ascertained this, and I know that he was an adherent. I gave that as my opinion and my experience in order to show that he has an instinctive aversion to medical treatments, but this remark was not based on memory of the defendant Hess but on a fact based on knowledge of my own.

THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if you consider it proper, that the defendant Hess should state what his views on this question are.

DR. VON ROHRSCHEIDT: As his defence counsel, I have certainly nothing to say against it, and I think it would be the defendant's own wish, and the Tribunal would then be in a position to judge the mental state of the defendant, thus giving the Court an opportunity to observe Hess' mental state.

THE DEFENDANT HESS: Mr. President, I would like to say this: At the beginning of the trial of this afternoon's session, I gave my defence counsel a note that I am of the opinion that these proceedings could be shortened if I could be allowed to speak for myself. I wish to say the following:

In order to forestall the possibility of my being pronounced incapable of pleading in spite of my willingness to take part in further proceedings, and in order to receive sentence alongside my comrades, I would like to make the following declaration before the Tribunal, although, originally, I intended to make this declaration during a later part of the proceedings:

Henceforth my memory will again respond to the outside world. The reasons why I simulated loss of memory were tactical. The fact is that it is only my ability to concentrate that is somewhat reduced. However, my capacity to follow the trial, to defend myself, to put questions to witnesses or even to answer the questions, is not being affected hereby.

[Page 306]

I emphasise that I bear the full responsibility for everything that I have done or signed as signatory or co- signatory. My attitude, in principle, that the Tribunal is not competent, is not affected by the statement I have just made. So far in conversations with my official defence counsel I have also simulated loss of memory. He has, therefore, represented me in good faith.

THE PRESIDENT: The trial is adjourned.

(The Tribunal adjourned until 10.00 hours on 1st December, 1945)

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