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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-Third Day: Monday, 4th March, 1946
(Part 2 of 7)

[Page 132]

DR. NELTE: Only the report, without the appendix.

THE PRESIDENT: Well, the Tribunal certainly intended that the whole of the document should be furnished to defendant's counsel, and that must be done so that you may have all the documents before you.

DR. NELTE: But that has obviously not been done. The Appendix expressly mentions statements made by Major-General Westhoff and by Oberregierungsrat Wielen. I am not acquainted with either of these statements. They were not attached to the report.

THE PRESIDENT: You must have them. The prosecution must see that the whole of this document is furnished to the defence counsel.

SIR DAVID MAXWELL FYFE: Certainly, my Lord. I do not think the whole of it has been copied, but if Dr. Nelte will let us know if he wants the whole of it, or a part, we will co- operate the best way we can. The last thing we desire is that he should not have it. We want him to have everything he wants.

THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the prosecution have now concluded their case.

SIR DAVID MAXWELL FYFE: Yes, my Lord. That is the conclusion of the case for the prosecution.

THE PRESIDENT: Very well. . Then we will now proceed with the applications for witnesses and documents by the second four of the defendants, Kaltenbrunner, Rosenberg, Frank and Frick.

DR. KAUFFMANN (counsel for the defendant Kaltenbrunner): The defendant Kaltenbrunner wishes to call a number of witnesses whom I will name now. First, Professor Dr. Burckhardt.

SIR DAVID MAXWELL FYFE: My Lord, if the Tribunal approves, we will adopt the same procedure as was done with the first four defendants.

With regard to the three Swiss witnesses, Burckhardt, Brachmann and Meyer, the interrogatories were granted on 15th of December and submitted on 28th of January. The prosecution considered that the interrogatories were rather on the vague side and suggested that they might be made more precise. The prosecution has no objection to interrogatories in principle, and I am sure that there would not be much difference between Dr. Kauffmann and the prosecution as to the form. That applies to the first three witnesses.

THE PRESIDENT: We are informed that none of these three witnesses has been located yet.

[Page 133]

SIR DAVID MAXWELL FYFE: Well, I respectfully agree, my Lord. That is the position of the prosecution, that we have no objection in principle to these interrogatories, and if we can help the Court in any way to locate the witnesses, we should be glad to do so.

THE PRESIDENT: When were the interrogatories furnished to the prosecution?

SIR DAVID MAXWELL FYFE: The 28th of January, my Lord.

THE PRESIDENT: And were the prosecution's objections communicated to the defence counsel shortly afterwards, or when?

SIR DAVID MAXWELL FYFE: I am sorry, I am afraid I have not got that date, my Lord.

THE PRESIDENT: Would not the most sensible course be for the prosecution to try to agree upon a suitable form of interrogatory whilst the General Secretary is continuing his inquiries to find the witnesses?

SIR DAVID MAXWELL FYFE: Yes. If Dr. Kauffmann will communicate with me, I have no doubt that we could agree on a form that would be mutually acceptable.


DR. KAUFFMANN: Mr. President, I think there is no need for me to repeat the individual questions which I have listed in the interrogatory. There are nineteen of them. I do not think that I need repeat them now.

THE PRESIDENT: No, certainly not.

DR. KAUFFMANN: The fourth witness is the former German Minister in Belgrade, Neubacher. At present he is in the internment camp, Oberursel near Frankfurt, in American custody.

SIR DAVID MAXWELL FYFE: No objection to this witness.

DR. KAUFFMANN: Does the Tribunal want me to specify the evidence?

THE PRESIDENT: Yes, if you would.

DR. KAUFFMANN: Neubacher will, in the opinion of the defendant Kaltenbrunner, be able to testify that the order given by Hitler in October, 1944, to stop the persecution of the Jews was really given at Kaltenbrunner's suggestion. Furthermore, in the opinion of the defendant, he will be able to testify that when Himmler was appointed Chief of the Reichssicherheitshauptamt he put the defendant in charge of Amt III and VI. This seems to me to be important since so far the Indictment has always been based on the defendant's definite connection with Amt IV, which is, indeed, borne out to a certain extent by the evidence. Neubacher is expected to be able to testify to this.

THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is desired to interrogate Neubacher on, could they not be dealt with by interrogatories?

DR. KAUFFMANN: According to the information given to me by Kaltenbrunner, Kaltenbrunner attaches importance to the personal appearance of this witness for reasons which are easy to understand. I believe that Kaltenbrunner considers this witness one of the most important witnesses, and he would like to see this witness called.

THE PRESIDENT: Well, the Tribunal will consider that.

DR. KAUFFMANN: The fifth witness is Wanneck, at present in American custody in Heidelberg.

SIR DAVID MAXWELL FYFE: The prosecution suggests that the witness Wanneck is cumulative. According to Dr. Kauffmann's application, he is going to deal with the point that the defendant Kaltenbrunner was actually occupied mainly with the task of the intelligence service and that he objected to persecution of the Jews. That is already covered by Neubacher, and it is also covered by

[Page 134]

the cross-examination of the prosecution's witness Schellenberg, who was the Chief of Amt VI, which Dr. Kauffmann has set out in his note on the witness Neubacher, No. 4, as being one of the Intelligence Aemter.

DR. KAUFFMANN: I leave it to the Tribunal to decide whether this witness could be dealt with by means of an interrogatory. But I do consider the evidence materially relevant in the case of Wanneck as well. In a certain sense it is cumulative, but some points in it go further. But I agree to an interrogatory.

The sixth witness is Scheidler.

THE PRESIDENT: Sir David, do you think it would be unreasonable to administer an interrogatory?

SIR DAVID MAXWELL FYFE: No, my Lord. Generally, I make no objection to interrogatories at all.

With regard to Scheidler, he was, as I understand the application, the defendant Kaltenbrunner's adjutant, and as such the prosecution would not make any objection. But I think it would be convenient if I were to draw the attention of the Tribunal to the fact that the next six witnesses, Nos. 6 to 11 inclusive, all deal with concentration camps, and Nos. 6, 8, 9 and 11 deal with Mauthausen. I want to give Dr. Kauffmann warning that I shall ask for some selectivity among these six witnesses.

The prosecution feel that the application for an adjutant is a reasonable one, but it will be reflected in objections to later witnesses.

DR. KAUFFMANN: The defendant naturally considers it important that the adjutant, who served him for many years and who accompanied him on every single trip, as Kaltenbrunner told me himself, be called. He knows also, for instance, that the wireless message to Regelein, which is part of the accusation, did not come from Kaltenbrunner and that his radiogram was never sent. He also knows that Kaltenbrunner had made all preparations for the Theresienstadt camp to be made accessible to the Red Cross. These are things which have not been mentioned by previous witnesses, but which shed some light on the person of the defendant.

THE PRESIDENT: You are speaking now of Scheidler?


THE PRESIDENT: Sir David, the Tribunal would like you to deal with the whole of that group together, and then Dr. Kauffmann can answer what you say.

SIR DAVID MAXWELL FYFE: With pleasure, my Lord.

The next witness is Ohlendorf, who was called as a witness for the prosecution. The situation as I have found it is that Dr. Kauffmann did cross-examine the witness Ohlendorf on the defendant Kaltenbrunner's responsibility on concentration camps on 3rd of January of this year, Page 261 (Part 3) of the record.

The witness Wisliceny, No. 12, who has not been cross- examined on behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to deal with that point. But, of course, if Dr. Kauffmann has any special point for the recalling of Ohlendorf, he will tell the Tribunal.

That is the position.

THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of cross-examining General Ohlendorf and actually availed yourself of the opportunity was not that the appropriate time for you to put any questions which you had on behalf of the defendant Kaltenbrunner?

DR. KAUFFMANN: I should like to remind you that Kaltenbrunner was ill for more than 12 weeks and that I could get almost no information from him. At the session of 2nd January the right of cross-examining the witnesses at a later date was expressly granted me by the Tribunal. I had, as the Court will remember, made a motion to adjourn and then I was permitted to cross-examine the witnesses at a given time which would suit myself.


That appears in the transcript of 2nd January, 1946.

As these witnesses have all been called in Kaltenbrunner's absence, I should like to cross-examine now in his presence. I am, however, prepared to forgo the cross-examination if I can talk to the witnesses beforehand. Perhaps it will not be necessary to call one or the other witness.

THE PRESIDENT: What do you mean by one or the other witness? Which is the other? Wisliceny?

DR. KAUFFMANN: No. 7, Ohlendorf, and then No.11, Hoellriegel, and No. 12, Wisliceny, also No. 14, Schellenberg. All these witnesses have been heard here and Kaltenbrunner was ill at the time.

THE PRESIDENT: What do you say about it, Sir David?

SIR DAVID MAXWELL FYFE: I should suggest that Dr. Kauffmann cross, examine No. 11, Hoellriegel, and No. 12, Wisliceny, whom he has not cross-examined so far. And then, if there is any special point which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann can make a special application to the Tribunal.

THE PRESIDENT: Yes. The Tribunal would like to know then what position you take about the defendants' counsel seeing these witnesses and discussing with them their evidence before they call them. I mean, there is a distinction between cross-examination when defendants' counsel cannot see them and calling them as their own witnesses when they can see them.

SIR DAVID MAXWELL FYFE: The prosecution feel that they ought simply to cross-examine witnesses that have been called by the prosecution, unless there are very special circumstances. I think that Dr. Seidl showed special circumstances with regard to the case that he mentioned, of one witness in special relation to the defendant Hess. But as a general rule, the prosecution submit that witnesses whom they have called should be cross-examined without prior consultation.

THE PRESIDENT: Well, Sir David, the Tribunal would like to know your view - of course, we are not deciding the point now, but we should like to know your view - as to whether it would be a proper course to allow the defendants' counsel to see the particular witness in the presence of a representative of the prosecution, because it may be that that would lead to a shortening of the proceeding, because the defendants' counsel might after that not wish to cross- examine the witness any further.

SIR DAVID MAXWELL FYFE: I am afraid that would require discussions with my colleagues on each particular witness. I am afraid I have not covered that point; witnesses 11 and 12 were called by my American colleagues, and although I take the general position which I put before the Tribunal, I have not discussed that point, but I shall be pleased to discuss it with them and perhaps to inform the Tribunal later on in the day.

Of course, you will appreciate the fact that there may be a special point relating to a special witness that may come up in this connection.

DR. KAUFFMANN: Perhaps I can explain this. The witness Ohlendorf was reserved for me for cross-examination. In accordance with an agreement made with the American prosecution, I dispensed with a cross-examination of Ohlendorf and on this condition was allowed to speak to him. I think it would be quite fair if I could do the same with other witnesses. I forgo the cross-examination and can speak to the witnesses beforehand. Perhaps one or the other will turn out to be unnecessary.

THE PRESIDENT: I am not quite sure that you understand the view being put to you, Dr. Kauffmann. The view is that when a witness is called on behalf of the prosecution the defendants' counsel certainly have the right to cross- examine the witness, not to see the witness beforehand, but only to cross-examine

[Page 136]

him. If on the other hand they are entitled to call that witness as their own, then they are entitled to see him beforehand, which is...

DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed to speak to the witness beforehand, then the Court will understand, that I should like to avoid as far as possible the presence of a representative of the prosecution, since the reasons which might cause me to forgo the calling of a witness would then be known to the prosecution. I think everyone will understand that, and I also think it is fair.

THE PRESIDENT: I wanted to clarify what the difference in view between you and the prosecution is. The prosecution said that when the witness was called for the prosecution the right of the defendants is only to cross-examine. Can you help us further with respect to this group, Sir David?

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