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 4 of 7)

[Page 346]

THE PRESIDENT: Thank you, Dr. Dix. The Tribunal would like to hear - of course, they cannot hear all the defendants' counsel on this matter - but they would like to hear one other representative of counsel.

DR. KUBUSCHOK (counsel for the defendant von Paper): May I draw the attention to the Tribunal to the legal aspect of the matter.

The Tribunal quite rightly raised the question: What does the Charter say regarding evidence? The difficulty is caused by the fact that specific rules on this matter are not contained in the Charter. Regarding the procedure, we have Article 24. This Article 24 refers to the session. The session, which, according to the legal language used in all kinds of criminal procedure, can mean nothing but the oral hearing and the verbal debate. What is lacking in Article 24 is a paragraph which concerns specifically the taking of documentary evidence. But may I draw your attention to sub- paragraph (e)? There the rebuttal of evidence given by witnesses is discussed, the rebuttal which, of ,course, is not only concerned with the presentation of witnesses but also with the submission of documents.

It is specifically provided there that the evidence should be taken. At any rate, based on the German text and German usage of language, it would not be permissible at all if this evidence taken in the presentation were not produced now during Court sessions but if that evidence, on the basis of the presented extensive written material, were dealt with in the separate rooms of the Judges.

It is a particularly important principle of a Tribunal which consists of several Judges that the impression which is to be conveyed to the Tribunal should be coherent and direct. That can only be achieved if the material is presented and discussed in oral proceedings.

May I ask you to consider also that we have already acquired some experience in that respect during this trial. I am sure that everyone who has presented a document has been very grateful to the President of the Tribunal when he interfered during the quotation of the document, by limiting here or extending there, and, by doing so, let the prosecutor or the defence counsel who was quoting the document know the opinion of the Tribunal as to what is relevant. Our experience has been that this guidance by the Tribunal has had favourable results later on.

As for the legal aspect, may I draw your attention to Article 21, which contains a special provision, a special provision regarding those facts which are of

[Page 347]

common knowledge and do not require any discussion. This special provision of Article 21 clearly reveals the difference between these facts and those which may be and need to be discussed. Everything that may be and needs to be discussed must be presented in Court in some way so that the Tribunal has the possibility of intervening here also and of making explanatory and guiding comments. That is what I have to say as to the legal aspect of the matter.

Apart from that, I believe that I understood Mr. Justice Jackson's suggestion somewhat differently. First of all, I think his suggestion has been somewhat enlarged during the debate. I think his suggestion was that we, as defence counsel, should impose certain restrictions upon ourselves not to present the submitted documentary material indiscriminately, but to confine ourselves to choosing those parts which are really worth mentioning and call for presentation at the present stage of the trial.

To undergo such a restriction is certainly in line with the practical duty of the defence counsel. Nothing is more fatal to the defence or the prosecution than to go into detail, i.e., to elaborate on irrelevant facts. Particularly under firm and strict guidance of the procedure, every defence counsel will soon notice whether he is on the wrong track, whether he is presenting superfluous material and, by presenting superfluous material, is achieving an effect which he in no case wishes to obtain.

I therefore believe, as my colleague, Dr. Dix, just said, that the self-control of the defence counsel and a well- concerned interest in his case and in his client will automatically impose on him the necessary limitation in his presentation.

(Dr. Seidl approaches the lectern.)

THE PRESIDENT: I said on behalf of the Tribunal that we wished to hear two counsel.

DR. SEIDL (counsel for the defendant Frank): I only wanted to add very briefly some remarks to what my two colleagues have already said ... very briefly.

THE PRESIDENT: Yes, but then it may be possible that everyone of the twenty or more counsel who are present wish to add something.

DR. SEIDL: I do not know, but I do not think so.

THE PRESIDENT: I said two counsel, and I meant two counsel.

DR. SEIDL: Very well.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would like to know whether you have anything to add in reply to what has been said.

MR. JUSTICE JACKSON: I think, nothing. I thought I was saving time. I begin to doubt it.

THE PRESIDENT: Mr. Justice Jackson, I think the Tribunal would like to know exactly how far your suggestion went. Were you really making any further suggestion than this: that the defendants' counsel should not think it necessary to read every document in their document book in the course of the presentation of their defence, or were you intending to move the Tribunal to order, that they should not be allowed to read any document in their document book at this stage?

MR. JUSTICE JACKSON: I thought their document book should be directed to be filed as an exhibit at this stage of the case, without reading. I would not be particular about it if they have passages which they think are of particular importance which they want to call to your attention, but this document book consists of speeches made fifteen years ago and published in the Press in every complete library in the country, together with a good deal that has been excluded. It would seem to me that they should go in, so that they are available to them, and that if there are matters in them which particular countries wish to object to, they might raise the question by motion to strike out or raise it now if they desire. As far as the United States is concerned, we have no objection to any of it. I think some of it is highly objectionable on the ground of

[Page 348]

relevancy, but it would take longer to argue it and it goes to certain broad questions of reprisals and things of that character that will have to be settled in other ways than questions of admission of evidence.

THE PRESIDENT: Would you, on behalf of the Chief Prosecutors, have any objection or think it inadvisable to adopt a suggestion which Dr. Dix made that we should see how far the defendants' counsel were prepared to limit the amount of the documents which they read at this stage, and see how long it takes and see whether it is necessary to make any further ruling in order to accelerate the trial?

MR. JUSTICE JACKSON: Well, I am quite willing to experiment, but I do suggest that we are now handed a document book containing a number of documents that the Tribunal has passed, and, as I recall, your Honour called Dr. Stahmer's attention to this at the opening of his case. I have not, perhaps, as much faith as I should have.

THE PRESIDENT: I think it is very likely that documents have got into Dr. Stahmer's book by mistake, owing to the fact that, he being for the first defendant, there were some difficulties in preparation. For instance, and I have already drawn attention to it, I think there is in Dr. Stahmer's book - I am not quite sure - a speech of M. Paul Boncour which has been expressly denied by the Tribunal, and those are the sort of documents to which you are referring, no doubt. I had to draw attention also, in the case of one other counsel, I think, or one other witness, to a document being put to him which the Tribunal had expressly denied. Of course, that is very wrong - that any document should be put into a document book which the Tribunal has expressly denied, but, as I say, I think that is very likely due to some mistake.

MR. JUSTICE JACKSON: I am quite ready - and I am sure my colleagues are - to experiment with this and see how it goes.

It is - and I should say this for all of us - it is a difficult thing, where we are accustomed to different systems and do not always understand what the other man is driving at, it is a difficult thing to reconcile these different procedures, and. I am quite willing to be patient and forbearing about it and see how it works.


You must quite understand, Dr. Stahmer, that I am not making any ruling on behalf of the Tribunal at this moment as to whether Dr. Dix's suggestion will be adopted or not, because the Tribunal will proceed now to consider the matter, and then the ruling will be made.

DR. STAHMER: Mr. President, may I just make a personal explanation? The inclusion in my document book of the documents which had been denied is due to the following facts: On request of the translating division the document book had already been handed to that division before the Tribunal had made its negative decision, and that accounts for the inclusion. I was put under considerable pressure at the time to hand the book over so that it might be submitted to the Tribunal in translated form. That is how it happened.

THE PRESIDENT: I thought it was probably that, Dr. Stahmer.The Tribunal will adjourn now until 2.30.

(A recess was taken until 14.30 hours.)

THE PRESIDENT: In considering the matters which have been raised this morning, the Tribunal has had in mind the necessity for a fair trial and at the same time for an expeditious trial, and the Tribunal has decided that for the present it will proceed under the rules heretofore announced; that is to say: First, documents translated into the four languages may be introduced without being read, but in introducing them, counsel may summarise them or otherwise call their relevance to the attention of the Tribunal and may read such brief passages as are strictly relevant and are deemed important.

[Page 349]

Second, when a document is offered, the Tribunal will hear any objections that may be offered to it, and in this connection I would refer to the rule which the Tribunal made on 8th March, 1946, which reads as follows:
"To avoid unnecessary translations, defence counsel shall indicate to the prosecution the exact passages in all documents which it proposes to use, in order that the prosecution may have an opportunity to object to irrelevant passages. In the event of disagreement between the prosecution and the defence as to the relevancy of any particular passage, the Tribunal will decide what passages are sufficiently relevant to be translated. Only the cited passages need to be translated, unless the prosecution requires the translation of the entire document."
The Tribunal has allowed the defendant Goering, who has given evidence first of the defendants and who has proclaimed himself to be responsible as the second leader of Nazi Germany, to give this evidence without any interruption whatever, and he has covered the whole history of the Nazi regime from its inception to the defeat of Germany.

The Tribunal does not propose to allow any of the other defendants to go over the same ground in their evidence except in so far as it is necessary for their own defence.

Defence counsel are advised that the Tribunal will not ordinarily regard as competent evidence, extracts from books or articles expressing the opinions of particular authors on matters of ethics, history, or particular events.

Now, as to to-morrow's business, the Tribunal will sit in open session for the purpose of hearing applications for witnesses and documents, supplementary applications; and after sitting in that open session, the Tribunal will adjourn into a closed session.

Now, Dr. Stahmer, are you going to refer us to book Number 1? Which is your book? Or are you referring us to your trial brief?

DR. STAHMER: Mr. President, I shall refer to the Trial Brief, Page 5. As far as I am informed, the translations show the same numbers as the original German text: Page 5, paragraph 2. Since this book is translated into the three languages, and the document book, as I am informed, is also translated, I can limit myself to referring to them briefly to present only what I consider essential.

At the beginning of my presentation from this book I pointed out that Germany had renounced the Treaty of Versailles and the Locarno Pact, and that this renunciation as such was justified. After this renunciation had taken place, Germany could proceed to rearm and also to reintroduce general conscription.

Moreover, rearmament and the reintroduction of military conscription were ordered by Hitler only after he had previously and repeatedly submitted, without success, offers of disarmament to the Powers concerned. Therefore the conclusion cannot be drawn from that fact alone that at that time the intention existed to prepare or to plan German wars of aggression. In this connection I draw your attention to the fact that in foreign countries also, rearmament took place to a considerable degree from 1936 on, and as evidence for this fact I have submitted the speeches and essays contained in Churchill's book, "Step by Step." The individual excerpts have been designated by me. I am referring to the following in particular. On Page 5 of this book it says ...

THE PRESIDENT: Dr. Stahmer, you must offer these things in evidence as a matter of formality.

DR. STAHMER: Yes, of course. I have the book here with me. I shall submit it immediately; I also have the individual excerpts here which are included in the document book. It is Document Book 2, Page 44, the first excerpt in Volume 2, Page 44.

THE PRESIDENT: Are you going to number your exhibit in some way?


[Page 350]

THE PRESIDENT: You have numbered it 40 I see, is that right?

DR. STAHMER: Yes. That is the number in this book. I have numbered these books right through.

THE PRESIDENT: Yes, but whatever number you propose to use you must say what the number is when you offer it in evidence so that it will go into the transcript.

DR. STAHMER: Yes, Mr. President.

The quotation is from Document Book 2 and it is No. 40 on Page 9:

"On 18th June the Anglo-German Naval Treaty was signed, which released Germany from the Versailles naval restrictions. That meant, in effect, condonation of the breach of military clauses."
On Page 35:
"The Air Force is in the process of being almost trebled. This is a colossal expansion which is making the most prodigious demands on our production potentialities. But quite apart from these immediate needs there is the far greater task of so organising England's home industries that they will be ready to direct the whole of their enormous and elastic capacity into the channels of war production as soon as a serious necessity for that should arise."
From the article "In the Waters of the Mediterranean," dated 13th November, 1936, I quote, on Page 86, where it says literally:
"But it is no longer thus. England has begun to rearm on a large scale. Her wealth and her credit, the solidarity of her organisation, her vast. connections, all contribute to this revival. The British fleet is still by far the mightiest in Europe. Enormous yearly expenditure on it is under consideration for the future."
Furthermore, I wish to produce evidence of the fact that the defendant Goering, in particular, at various times, beginning after the seizure of power, consistently emphasised his serious desire to maintain peace and to avoid a war. He has also repeatedly stated clearly that the measures taken by Germany were not to serve purposes of aggression. As evidence of this I refer to several speeches made by him, and to begin with I cite a speech of 4th December, 1934, which he made at the Krupp works in Essen, and which is contained in the book "Hermann Goering's Speeches and Essays," Pages 174 to 176, and is reprinted in Document Book 1, Page 18.

From this excerpt I wish to quote only the following:

THE PRESIDENT (interposing): I do not think the shorthand writer has yet heard what the exhibit number is.

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