The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 8
(Part 4 of 6)


The law on this point seems to me to be clear: The Attorney General has the choice as to how to authenticate documents, and authentication by means of identification of handwriting is no less legitimate than any other means of authentication, and the Attorney General cannot be forced to call a witness whom he does not consider to be a desirable or convenient or trustworthy witness. See Archbold (34th edition), section 1125:
"Admissions or confessions to persons other than magistrates, if in writing, are proved as any other written instrument: R. versus Swatkins, 4 C. & P. 548."
See Phipson, p. 538:
"The handwriting and signature of unattested documents...may be proved by calling (1) the writer; or (2) a witness who saw the document signed; or (3) a witness who has acquired a knowledge of the writing... or (4) by comparison...or (5) by experts...or (6) by the admissions of the party against whom the document is tendered, whether such admissions are expressly made for the purposes of the trial or are merely of an evidentiary nature... The above methods, being equally admissible and equally primary, may be resorted to indifferently - subject, of course, to observation, should weaker proof be tendered where stronger might have been adduced."
See Lucas versus Williams (1892) 2 Q.B. 113, and Wright versus Cobb, 1 T.L.R. 555.

In the latter case, Wright versus Cobb, the prosecution wished to prove signatures on a bill by identification of the signatories' handwriting, but the judge ruled that the prosecution had to call as witnesses either the signatories themselves or a witness who saw them sign, since he considered this to be "the best evidence," as opposed to identification of their handwriting, which he considered to be "secondary evidence." Setting aside this ruling, Lord Coleridge said:

"Secondary evidence. Evidence of handwriting...is not secondary evidence. It is good prima facie evidence... The judge gave a ruling that the party himself whose signature was in question, or someone who saw him write it, must be called. It can only be accounted for by the extraordinary influence of the learned counsel. It really is not arguable that a judge can compel parties to call such witnesses as he pleases, and in the order which he pleases."
Criminal Appeal 11/58 (12 Piskei Din 1905, 1921) and Criminal Appeal 28/59 (13 Piskei Din 1205, 1209) are in my view no authority for the argument that, in order to prove what the Accused said in his recorded conversations with Sassen, it is necessary to call either Sassen or another witness who was present at the conversations. Neither of these two judgments discussed a case where the recording was confirmed, expressly or implicitly, by the Accused himself.

Section 37(2) of the Criminal Procedure (Trial upon Information) Ordinance does not, in my opinion, apply to the present case. This section lays down a particular form of proof with regard to "a statement by an accused person." The three subsections of Section 37: (1) Statements made by an accused during the preliminary enquiry and recorded by the magistrate; (2) not made during the preliminary enquiry; (3) before the magistrate or at the trial - show that the Section deals with statements made by the accused at various stages during his examination. The substance of Section 37(2) follows the same lines, particularly in its second sentence:

"If the statement has been reduced to writing and signed or otherwise attested by the accused, the admission shall be proved by evidence of the person who was present at the time and heard the statement made and saw the accused sign the admission or otherwise attest the statement."
This complex procedure is not the usual one, except where, as the learned Attorney General has indicated, the police is taking evidence in accordance with Sections 2 and 3 of the Criminal Procedure (Evidence) Ordinance. The many forms in which persons make their statements, whether orally or in writing, in the ordinary ways of life or the ordinary course of business, should not be forced into the Procrustean bed of Section 37(2); it cannot be assumed that this was the legislator's intention. Section 37(2) lays down certain forms of proof for statements made by an accused in certain circumstances, but it cannot be interpreted as a general rule governing and limiting the forms of proof with reference to utterances and statements made orally or in writing in the normal way of life, before becoming an accused.

If it is to be inferred from the Mandatory judgment in Criminal Appeal 26/44 (Palestine Law Reports 87) that Section 37 is of general incidence, what was actually decided in this particular case - as well as in Criminal Appeal 29/46 (1946 ALR 231) was that a statement by the appellant made before he became an accused is not subject to the provisions of the aforementioned sections. The statements of the present Accused in his recorded conversations with Sassen were made some years before he became "an accused," and were therefore not made by "an accused" within Section 37(2).

The statements by the Accused to Sassen are admissible in evidence even if they contain a confession or an admission of incriminating facts within the meaning of Section 9 of the Evidence Ordinance, since Sassen was not a person in authority over the Accused, and his statements were made freely and voluntarily. As for the argument of the learned Counsel for the Defence about the "tavern atmosphere" and so on, this does not void the Accused's statements (see Criminal Appeal 186/55, 11 Piskei Din 769, 772), but goes only, insofar as it will be proved, to the adduce the weight of the statement.

Therefore, my final conclusion is that the Attorney General was fully entitled to submit as evidence against the Accused the transcript of 47 tapes of his recorded conversations with Sassen, together with the Accused's additional comments (T/1393), and that the Court was bound to accept the evidence submitted in accordance with the law.

Presiding Judge: We shall now recess. After the recess the Attorney General still has to reply on the Statement by Steger, and then we shall begin with the cross-examination of the Accused.

[Recess]

Presiding Judge: Mr. Hausner, please proceed.

Attorney General: With the Court's permission, with reference to the statement by Steger, as far as we could see during the recess, this contains several declarations that are hearsay, so that such parts of the statement are in any case not admissible. We shall also peruse the affidavit in greater depth, but I do not wish to oppose it at this stage and thus delay the proceedings. I therefore agree to its submission for this reason, and not because I agree to its contents.

Judge Halevi: We have already heard many hearsay statements in this trial.

Attorney General: Yes, but then there has to be special permission given under Section 15, in order to mitigate the rules of evidence; otherwise, in my humble opinion, Section 10 of the Evidence Ordinance will apply, which states that judgments must not be based on inadmissible evidence. To the extent that the rules of evidence are not relaxed, Section 10 will still apply. I would just like to ask for a copy. If the Court will make the document available to us afterwards, we can have it copied.

Presiding Judge: Yes, and we would also like three extra copies.

Judge Halevi: Mr. Hausner, I am not quite clear about this. There are many documents which have been submitted here and are of the same type as the Steger affidavit, although I am not familiar with this particular document, and there has never been an explicit decision to distinguish between the parts that are hearsay and those which are direct testimony. Until now, I had understood that every document submitted - either there was no objection or there was general reliance on Section 15, where the witness had died. If a document was submitted, it was submitted in its entirety, whether it was hearsay or ordinary testimony. Will you argue later in your summing-up that for each document a distinction must be made, as regards admissibility, between hearsay evidence and direct evidence, or is that to be left to the discretion of the Court?

Attorney General: I do intend to argue that generally the rules of evidence should be followed, and the rule of hearsay is still applicable, unless the Court has deviated from it under the powers given to it by Section 15. However, I should like to reconsider the problem and scrutinize all the documents to which the remarks of Your Honour might apply, in order to avoid wholesale disqualification of many items of evidence, possibly including some in which we, too, are interested.

Judge Halevi: Only for the sake of clarification: If the decisions of the Court are silent on this particular issue, is a special decision needed, or can they be interpreted as implying some sort of a ruling?

Attorney General: I see exactly what the problem is.

Presiding Judge:

Decision No. 93

We authorize submission of the deposition of Alois Steger as evidence in this trial. The Attorney General raises no objection to such submission. The deposition is marked N/99.

Dr. Servatius: This is a sworn affidavit by Alois Steger, resident at 3, rue de la Banque, Paris. The deposition was made on 28 March 1961, before the notary Steinbach in Cologne. Steger made two separate statements, one of which deals with mediation regarding letters to Theresienstadt. This is a document quoted at the end of the Kasztner Report, where there is a copy of a letter from Theresienstadt to a Jewish commission abroad. However, this is not the document which interests us here.

The next document is the main one. In the third paragraph it says:

"When the German troops occupied Hungary on 19 March 1944, I was in Budapest, where I had an apartment at Mariengasse 5. Since my car had been confiscated immediately, I tried to get it released. For this purpose I was directed to Obersturmbannfuehrer Becher who was competent for economic matters. His name was then known to everyone and appeared on the posters about confiscation of factories. He was the person who decided all these things. When, after many endeavours, I was finally admitted to see Becher, he demanded proof that I was Aryan, and then Becher asked what I, a Slovak, was doing in Budapest. When I told him that I had business activities there, he said: "All right, then get me coffee or caffeine, I need them for my pilots.' When I said that there wasn't anything like that here, and it could only be obtained in Switzerland, he said: 'I will release your car, but I demand a service from you in return for that.' He was not prepared to listen to my objection that there really was not anything I could do to help in this matter."
The statement goes on to discuss the events which led to the emigration of 318 persons from the Manfred Weiss Works, how he was involved in that, and then, at the bottom of page 3, it says that the transports were not getting through to Bergen-Belsen and
"...as far as I know, Saly Mayer in Switzerland was delaying the payments. I was told this by Jewish circles of my acquaintance. It was then that Dr. Kasztner came to me in desperation and said that Becher does not want to help any more, he considers himself as having been let down vis-a-vis Himmler. The transport already referred to, for which I supplied the goods, was then only just carried out with difficulty."
I do not need to read any more of the text, but I am referring to it.

Judge Halevi: Dr. Servatius, is there perhaps a typing error at the bottom of page 2? There it says 2,000 dollars, while on page 3 at the top it says 1,000 dollars; but that should be less than 1,000 dollars, should it not - should it not be 200 dollars?

Dr. Servatius: Well, it is not particularly clear what the situation was. I did ask the witness Steger about it once. The idea was as follows - it was worded here to the contrary: "Becher demanded 2,000, Eichmann said 100 or 200, I am not quite sure now which, and then Himmler said that was ridiculous, it should be at least 1,000"; it is not expressed clearly here, apparently what he said was not understood clearly. It is made clear by what is stated later on, that Eichmann arranges it for a smaller amount.

Presiding Judge: You must now answer the questions of the Attorney General.

Accused: Yes, Your Honour.

Q. During your interrogation by the police you said, at the end of your first Statement: "I know that I shall be found guilty of being an accomplice to murder. It is clear to me that I may expect the death penalty. I do not ask for mercy, for I do not deserve it." You said that you were willing to hang yourself in order to atone for the horrible crimes that occurred. So it says on page 361 of your Statement. Are you prepared to repeat this here, in the Court?

A. I stand by these words in my Statement, and this morning, in reply to the concluding question of Counsel for the Defence, I repeated them and did not go back on them under examination as a witness.

Q. You do admit, therefore, that you were an accomplice to the murder of millions of Jews?

A. No, that I cannot admit. From the human - let me say from the point of view of human guilt, a question which I have to judge in a much graver manner, because in this respect I must sit in judgment with myself - in this respect I must admit that I have played my part, though under orders. From the legal point of view, as a recipient of orders, I had no choice but to carry out the orders I received. How far the fact that I had to carry out part of the deportations and that the Jews who were thus deported found their death, how far I am legally guilty is a question which, in my opinion, should be left until the question of responsibility has been examined.

Presiding Judge: You may sit down during the translation.

Attorney General: The Accused was asked a question and he must answer it. I shall not interrupt him. But he must not give replies in the form of lectures, but answer my questions briefly with yes or no. If necessary, he may offer his explanations later.

My question is not juridical. Do you consider yourself guilty of being an accomplice to the murder of millions of Jews - yes or no?

Accused: Guilty from the human point of view, because I am guilty of having carried out the deportations.

Q. Very well. Towards the end of the War you told several persons, as you said yourself this morning, that you would gladly jump into your grave in the knowledge that five million people had died together with you. You said that your expression was "five million enemies of the Reich." But during your interrogation by the police you said, in the same context, on page 308, that you had told your people: "Millions of Germans died in the War, millions of enemies also perished, and according to my estimation five million Jews also perished in this War." Both statements are thus correct. And you said that you would gladly jump into your grave in the knowledge that the War had taken the lives of five million Jewish enemies of the Reich.

A. No, I did not say that - five million Jewish enemies of the Reich. As enemies of the Reich we regarded at the time those enemies who stood at the gates of the last bulwark of the Reich's capital, and it was under the impact of this fact that I made my statement. This statement had nothing to do with Jews.

Presiding Judge: Please, let him have his Statement. Read your words as they were recorded at the time.

Accused: Yes, that is - let me say - a summary, and it is correct; a summing up of all the victims of this War, an estimation, and in the knowledge that at that very moment the last bulwark was threatened I made this statement, but I absolutely deny that even in my mind I referred to Jews, because at that time...

Q. I don't want to hear any "because," I want an answer. Did you say that five million Jews died during the War and that you would gladly jump into your grave because of that?

A. No, not because of that would I have jumped gladly into my grave; that is a wrong interpretation of my words.

Q. Did you not regard the Jews as enemies and adversaries of the Reich?

A. During the War, after the declaration of War and following the statement of Dr. Chaim Weizmann, the leader of the Zionists, I regarded the Jews as enemies of Germany, but...

Q. Without "but," I want an answer! That will do for me.

Presiding Judge: If he wishes to complete his answer I think you should allow him to do so.

Attorney General: If the Court so wishes.

Dr. Servatius: Your Honour, would it be possible for the Accused to complete this answer. He must answer the questions clearly and briefly, but he should be given the opportunity to add some explanation.

Presiding Judge: I have already remarked on that, Dr. Servatius.

Please complete your reply.

Accused: But I did not regard them as enemies of the Reich in the sense I used this expression then, in the last phase of the War. For during this final phase, the advancing Red Army and the North American bomber planes were in my opinion the enemies of the Reich. Not the Jews.


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