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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
12th March to 22nd March, 1946

Eighty-Eighth Day: Friday, 22nd March, 1946
(Part 3 of 7)

[Page 341]

THE PRESIDENT: What do you say about the reading of the Indictment? Are you making a complaint because the Indictment had been read?

DR. STAHMER: No, no, no.

THE PRESIDENT: The matter stands upon a different footing. The Charter, which is the document which governs the actions of the Tribunal, provided that the Indictment must be read. It does not follow that what is now being suggested is not provided for in the Charter. The only reason why we ruled that every document which the prosecution wished to rely upon must be read in open court was because the prosecution at that time had not found it possible to translate into four different languages every document which it wished to put in evidence. For the convenience and in fairness to the defendants and their counsel, therefore, we ordered, as you remember, at an earlier stage that every sentence in a document upon which the prosecution relied and which we could consider as evidence should be read into the microphone so that it could come to you in German and would appear in the record, in the transcript. That principle no longer applies to the documents which are now put in because they have been translated into four different languages by the prosecution's translation division. Therefore, in the interest of time, which must be almost equally important to the defence as well as to everyone else concerned, it seems to the Tribunal that the suggestion which Mr. Justice Jackson has made is a very sound one and you will, of course, be able to comment in any way you think right during the course of your final speeches upon the documents, on which you rely, subject to any question of relevancy which may be of real importance. There may be certain documents which may be objected to by the prosecution, but as Mr. Justice Jackson said, he will not now raise any question of relevancy, and he is agreeable that all these documents referred to in your document book should be considered by the Tribunal. Remember, also, when we approved your documents we expressly reserved any question of relevancy of particular passages in these documents which you might want to use.

Perhaps it will be appropriate for us to adjourn now and you can discuss the question with your colleagues.

(A short recess was taken.)

DR. DIX (counsel for the defendant Schacht): Gentlemen of the Tribunal, I was, of course, not in a position to have a vote taken among my colleagues of the defence on the proposal of Mr. Justice Jackson, for the reason alone that not all defence counsel are present here. But I have been able to convince myself that the majority of the defence counsel will agree with the reasons which I am going to give, and I have no doubt that all defence counsel support the application which I am about to make, to the effect that the suggestion of Mr. Justice

[Page 342]

Jackson should be rejected. But to be fair I feel obliged to emphasise that naturally every one of us is entitled to present his point of view on this question for himself and within the scope of his own subject-matter.Now to the matter itself: The suggestion of Mr. Justice Jackson - especially if it is followed in principle with regard to all the documents which are to be submitted by the defence - would aim at the introduction of a tremendous volume of documents as subject-matter in the trial without their being made known, by oral presentation in open session, to the public and thus to the whole world, which is deeply interested in this trial.

I abstain from quoting, with judicial dialectics, provisions, for instance, from the Charter set up for this trial, which could be used to conduct a polemic against Mr. Justice Jackson's proposal. I will start with the principle, about the unconditional and absolute importance of which there will certainly be no difference of opinion between the Tribunal and us or between the prosecution and us; namely, the principle that this whole trial must be subject to the absolute postulate of justice and fairness. These are exactly the motives which prompted the authors of the Charter to give Part IV of the Charter a very pronounced heading. It says: "Fair Trial for Defendants."

But I cannot consider it just and I cannot consider it fair if the prosecution had the right, for months, not only once but sometimes repeatedly, to bring their evidence to the knowledge of the public and of the world by reading it into the microphone; and in this regard it should be noted that when these documents were presented often only parts of documents were read which, in the opinion of the prosecution, were incriminating to the defendants, while those parts were omitted which, in our opinion, were exonerating for them; it must, therefore, be considered an injustice that a defendant should not also have the opportunity to bring to the knowledge of the world, through his defence, those matters which, in his opinion and the opinion of his counsel, speak in his favour, when the prosecution had previously had the right and the opportunity to apply that procedure to the incriminating documents.

May I draw your attention to this fact - and I have pointed it out repeatedly - that certain incriminating points have not only been brought to the knowledge of the world by reading the documentary evidence, but were repeated in the form of representation to the defendants when they were examined as witnesses, and thereby they have been drummed into the ears of the listening world again and again. I ask you urgently, and implore your Honours in the interest of just proceedings, which I am sure are desired by you as well as by the authors of the Charter, to give the same opportunity to the defendants.

In support of his suggestion Mr. Justice Jackson has, furthermore, even formally emphasised the point of view that the trial would be shortened. The defence does in no way deny the necessity of limiting this trial to the time needed. But perhaps I may in this connection draw your attention to a statement made by the President of the Court at the Belsen trial, in reply to Press criticism about the allegedly too lengthy duration of the trial. The gist of that statement was: that no duration, however long, was to be regretted, as long as it helped to reveal the truth in the end. I ask you to apply this principle here as well, before the necessity of saving time.

And finally, may I - without assuming any right to criticise the measures decided upon and carried out by the prosecution in accordance with its duties - may I point out that as regards the duration of the trial thus far - should anyone consider it too long - I do not think it has been so. In any case, if it is so, it is not the fault of the defence. So far - I think I can say this with a clear conscience - we have not done or said anything which could be justly used as a reproach to us for delaying the trial unnecessarily.

If, furthermore, as your Lordship has pointed out, the reason no longer exists which caused the Tribunal to order that those parts of documents which

[Page 343]

were to become the subject-matter of the trial should be presented orally, then I should like to point out that the vast majority of the documents which were produced at the time and accordingly also presented verbally in part were already at that time available in fourfold translation.

Furthermore, I should like to point out that this documentary evidence, if it is to be comprehensible to the Tribunal and if it is to serve the purpose of establishing the truth, without doubt in many cases calls for explanatory comments by the defence counsel. The possibility of such comment would be removed if we are instructed to submit these documents to the Tribunal in toto.

As far as I have been able to ascertain, without wanting to prejudice anybody, my colleagues have no intention of quoting the entire contents of the document books.

As far as I understand it, they intend in most cases rather to present excerpts which they are going to designate, and the relevancy of which may then be discussed if the occasion arises. Even such selection of these parts of the documents which are considered to be really relevant would not be possible to point out, in documents already read by the prosecution, those parts which have not been read but which are exonerating for the defendant.

If it has been said - and your Lordship has pointed it out - that the defence counsel have an opportunity to quote these parts of the documents during their address, then I believe I agree with the Judges that the address should, if possible, be a coherent and terse summary, evaluating the entire substance of the trial. If we are now instructed to refer to parts of documents during the address and quote explicitly once more those to which we attach importance as evidence, but which we would not mention at all or only incidentally or summarily in connection with a comprehensive evaluation, then the danger arises that the coherence or, let us say, the bold outline of our address would suffer by a recital of the subject-matter in detail. A further danger arises that the time which, Mr. Justice Jackson wishes to save through his suggestion will be lost again, because the final address will take so much longer, which need not be if it is strictly a summary, an overall evaluation, in accordance with its purpose.

I consider it even possible that later on, if a difference of opinion as to the relevancy of an individual document should arise, there might be considerable: delay and disturbance in the proceedings, whereas, if one can submit the document in its essential parts at this time, together with statements to explain and connect them, one would have an immediate opportunity to state just why one considers the part presented as relevant, so that the Tribunal would have an opportunity to make a decision as to relevancy now.

In my opinion there is a multitude of points which are against Mr. Justice Jackson's suggestion.

I summarise: As far as I am concerned, the most important point of view is that of fairness and justice. The defence counsel, as I have ascertained beyond any doubt by conversations during the recess, must and would consider it a severe and intolerable limitation of the defence, if, contrary to the procedures exercised so far by the prosecution, it were deprived of the possibility of presenting, in its turn, at least the relevant parts of its own documentary evidence to the Tribunal verbally, with comments. I am of the opinion that it is a simple postulate of fairness in the forensic engagement between prosecution and defence that now the defence, too, should be given the same opportunity - and this is not meant to be criticism either, but merely a statement of fact - of which the prosecution has availed itself to a considerable and sometimes a cumulative extent.

May I request, therefore - and I think my request is supported by the entire defence - that the suggestion of Mr. Justice Jackson be rejected.

THE PRESIDENT: One moment. You began your address by saying that you would not refer to the Charter. On what Article of the Charter do you rely

[Page 344]

for, your argument that all documents which are presented must now be read?

DR. DIX: I said that I would not refer to individual provisions of the Charter as a basis for my application. As a basis for my application I have merely mentioned the heading of Part IV of the Charter which says, "Fair Trial for Defendants," and I have explained, and need not repeat, that I would not consider it a fair trial if Mr. Justice Jackson's suggestion was followed. However, I have deliberately, although my attention was drawn to specific provisions of the Charter which, directly or indirectly, might be used as legal construction to support my application, I have refrained deliberately from doing so, since these individual rules in my opinion are not convincing.

The principle of justice and fairness however, is sufficiently strong in my opinion, and so are the other arguments of practicability and feasibility which I took the liberty to present to the Tribunal. I think there must be a misunderstanding.

THE PRESIDENT: But you will not have omitted to notice that Article 24 deals expressly with the course of the trial. Do you rely upon any part of Article 24?

DR. DIX: No, no. I have deliberately not referred to any part of Article 24, since that article gives considerable powers of discretion to the Tribunal regarding the general rules of procedure which, in my opinion, have nothing to do with the question under discussion at present. This is merely a question of justice and fairness, and, if I may add this, it is a fundamental rule of oral trial. We now have an oral trial, we now have a trial in open session. It is in existence here. I am not sure whether or not the open session is prescribed by the Charter, but it exists. Since it is in existence, we must proceed in accordance with these principles and therefore, in my opinion, the defendant has also the right to present to the world what is in his favour, after the prosecution has presented to the world what is not in his favour.

THE PRESIDENT: I want to ask you another question. Are you suggesting that the defence should be able to quote, to read documents, more than once?

DR. DIX: I am not suggesting that in any way. As far as I am concerned, my documents, of course, will only be read in part and certainly not twice. I have merely said that the prosecution has done so, has read documents twice; sometimes even three times - as I hear somebody exclaiming - but it is not my task to criticise that conduct of the prosecution, that is the prosecution's business. I am not here to make criticism; that is for the Tribunal and the prosecution. I have merely stated the fact.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would like to put a further question to Dr. Dix before they hear you, and also -

MR. JUSTICE JACKSON: I would like to make a simple statement of fact -


MR. JUSTICE JACKSON: - which I think will clarify this situation in justice to the United States of America.As to the fairness, I call the Tribunal's attention to the fact that we have printed, mimeographed, 250 copies of Dr. Stahmer's entire document book, and it is in the press room waiting for delivery to the Press when it is received by this Tribunal, so that we have done everything that we could to make public his documents.

In the second place, we have gone so far as to print even things that the Tribunal ruled out, rather than to have controversy about them.

In the third place, it is not the function of the Tribunal, under the Charter, to spread propaganda. A large part of this is matter that is twenty years old and is in every good library and will not be used by newspapers and constitutes a waste of our money. We have tried to do everything in order to make this trial completely fair to these people, and now that I have discovered that we are printing documents that the Tribunal has already ruled out, I must say that I

[Page 345]

shall stop it. I think we have been imposed upon, and this document book will show it. There is document after document that the Tribunal has already ruled irrelevant, and we have gone to the expense of printing them in order to be more than fair.

DR. DIX: May I answer to that very briefly? As far as the point of view of propaganda is concerned, I regret that my suggestion has not been followed, according to which the public and the world would only hear those parts of our document books which have been recognised as relevant by the Tribunal, and then presented by us. If the contents of the document book does produce certain propaganda effects, though this is unknown to me and would be entirely against our intentions, then it is merely due to the fact that the contents of these document books has been submitted to the Press not through legal and normal channels, or let us say not by due procedure, i.e. from the sessions records, but without our knowledge, and therefore things were communicated to the Press and to the world which, in the opinion of the Tribunal, under the circumstances, may be irrelevant or perhaps biased. Please do not misunderstand me. I am not saying that they are; I am merely talking in the abstract. But if you want to avoid just what Mr. Justice Jackson wishes to avoid - namely, that political propaganda should be made by means of this trial - then you must follow my suggestion; I want only that which has here been considered relevant by the Tribunal and admitted for presentation to be presented and brought to the knowledge of the world.

It is very difficult to understand every word correctly through the earphones, but if Mr. Justice Jackson meant that we are trying to obtain a propaganda effect here, that is not the case. If he further mentions, as a point of fairness, that the prosecution had done everything to inform the world public by placing at its disposal all the document books, then I have no criticism to offer in that respect. Far be it from me to call that unfair. But here we are in Court, having proper proceedings. We are not making Press propaganda; rather the Press is to gather information and report to the world about this trial from this Courtroom. The defence is only grateful if its efforts to carry through proper proceedings with full information to the Press are supported by the Tribunal.

But this is not the crucial point. I have not accused anybody of being unfair. I have merely emphasised that it is a requirement of fairness to let the defence do the same things which have continually and repeatedly been done by the prosecution.

THE PRESIDENT: Now, Dr. Dix, will you tell me this: what suggestion you have for shortening the trial? You must recollect in the criticism that you have been making of the prosecution's case with reference to their documents, that their case has been based almost entirely upon documents. They have called - I do not know how many witnesses, but very few. You and the other defendants' counsel are proposing to call a very great number of witnesses, and what I would ask you is: How do you propose that the trial should be shortened so that it may not last until the end of July or August?

DR. DIX: If I make a suggestion, then I can of course do so only for myself and for the case I have to defend. May I suggest, your Lordship, that we begin by producing the documentary evidence, and I would ask you to realise that, if I am not mistaken, none of the defence counsel intends to read his entire document book here before the Tribunal. All those whom I have asked, at any rate the majority, certainly did not intend to do that.

Those with whom I have spoken want to quote excerpts only, and in the choice of these excerpts and in the discussion as to whether their presentation would be relevant, a measure could be applied which would, of course, take into consideration the necessity of the matter as well as the question of time. I do not think that the presentation of the documents will take a very long time. My colleague, Dr. Stahmer, for instance, has told me that although he

[Page 346]

has a big and important case to defend, he believes that he will probably complete his case in about two hours or maybe in even less than two hours. I am not a prophet, but I think the Tribunal is considering the matter as more hazardous than it is in fact. Please give us a chance. You may certainly rest assured that all of us are anxious not to delay the proceedings. Also we are quite willing to take advice, if the Tribunal says "We do not consider this or that important," or, "This or that we consider already demonstrated," or "presume this or that," etc. That way we will make fast progress. May I, therefore, suggest, not to lay down now any obligatory abstract rule for the procedure to be followed, but to go to work with us now in a practical manner and to accept our assurances that we want to assist in shortening the trial, and, to begin with, start from the standpoint that we may present what we consider relevant. If it should turn out that too much time is being taken up - which, as I have said, I do not believe will be the case - then we could still discuss that matter once more. After all, the Tribunal is at liberty to make its decisions; all I ask is that it should not be done now because I am afraid that the Tribunal, on the strength of the experience with the documentary evidence of the prosecution, is overestimating the time required for the presentation of the defence's documentary evidence, in which connection I again repeat that this is neither reproach nor criticism. I know that the prosecution has based its case mostly on documents, and therefore naturally had to take more time.

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