Judge Raveh: Do the original records of the proceedings not exist?
Attorney General: I would not say that, Your Honour. They do
exist, but it would be most difficult to arrive exactly at
what we want. I am also not at all sure that we have, for
example, all the reports of the Einsatzgruppen. I am
convinced that there are many reports which we simply have
not managed to obtain. There are vast piles of papers,
unedited, and not arranged in order, a large part of which
Bureau 06 made a tremendous effort somehow to sort out, but
part of them we have not yet managed to get to.
Judge Raveh: I think that I saw in this volume of the Green
Series, constant reference to the original record of the
proceedings – page “one thousand such and such.”
Attorney General: The original record of the proceedings is
not in our possession.
Judge Raveh: The question is whether it is possible to
Attorney General: It is not only a question of transcript of
the proceedings, Your Honour, but for example also the
exhibits. Here I have, for example, a document which is one
of four collections of documents, which one of the accused,
named Schulz, submitted as his collection of documents:
“Dokumentierbuch von Erwin Schulz.” I have Book I and Book
IV, we have not found Books II and III and they are
important for us.
Presiding Judge: Where are these records kept today?
Attorney General: Part of them are at Yad Vashem. That
section which was in the possession of the American
prosecution at the Trial is now in part at Yad Vashem. The
transcript itself is to be found in the archives of the
American army in Alexandria. It is exceedingly difficult,
for there are no reference lists, there is no index, and the
search is virtually a case of “trial and error.” This is the
only way. Attempts are being made; occasionally something
that is needed is found and occasionally it is not found at
all. And here the Judge is able to inform us – and it may
fairly be assumed that he will tell us the truth and only
what he remembers. I shall prove that this is admissible,
according to the authorities.
My colleague, Dr. Robinson, shows me that the number of
pages in all these cases is 330,000, and the Court will
appreciate the difficulty of finding one’s way…
Presiding Judge: Of all the subsequent trials?
Attorney General: …of all the subsequent trials. But they
have not been properly catalogued. The third problem is not
“superior orders” from a legal point of view. It is clear to
me that this is a question in which this Court – and not
only this Court in the present instance – ought to give its
ruling, and we do not depend in this matter on the testimony
of witnesses. But to the extent that Judge Musmanno can
testify as to cases, known to him, of men who tried to evade
and succeeded in evading instructions to murder, of men who
sought to be released, and who were released without harm,
from the operations of extermination, robbery and murder – I
think that this is most relevant.
Presiding Judge: Again, is this as a result of this
investigation or from his trial?
Attorney General: As a result of both, Your Honour. For, as
the Court may remember, one of the Accused’s contentions
during the police investigation was: So what could I do? The
orders of my superiors compelled me; if I had not complied,
they would have shot me on the spot. We want to demonstrate
examples of people to whom nothing happened, possibly the
contrary, and I hope that we shall succeed in proving this
from the evidence of Judge Musmanno.
As far as the children are concerned, the witnesses whom I
brought, the documents which I submitted, prove in fact that
hundreds of thousands of Jewish children were slaughtered.
But why were the Nazis so intent upon murdering children?
What was the diabolical reason underlying this? Those men
who talk here about the murder of their own children cannot
tell you this. I hope that Judge Musmanno, as a result of
his investigations, arrived at a conclusion also on this
Presiding Judge: What is he going to testify on this
Attorney General: He is about to testify on this subject
what he knows and what the Nazis themselves told him, why
they actually persecuted Jewish children and why the
children, in fact, were the first to be destroyed; what was
the internal Nazi reason for the extermination of the
And now for the legal aspect: Under section 3 of our
Evidence Ordinance, every one is competent to give evidence,
I am afraid that Defence Counsel here confuses two different
issues. The problem which confronted the District Court in
that case to which he referred was whether it was possible
to compel a judge to give evidence. In other words, to what
extent, from the point of view of the public interest, could
a judge be a compellable witness? And if the Court would
kindly look at the reference which they quote from Phipson
(I think they are relying on the eighth edition – I have the
ninth edition) on page 198, this question is discussed, to
what extent Judges of the High Court may be compelled to
appear in another court in order to testify what they heard
themselves when dealing with the prior case. But this is not
the question that arises. Judge Musmanno is here, he is
ready to testify, there is no need to compel him to give
evidence. Consequently the authority which Defence Counsel
quoted here does not apply to this case.
Judge Halevi: In Phipson on page 469 it says specifically:
“Competency is to be distinguished from compellability” –
that the judge is competent if not compellable.
Attorney General: Exactly.
First and foremost our section 3 will apply which provides
that every one is competent to testify.
And now very briefly, a number of references.
In “Wigmore on Evidence” – the sixth volume of the third
edition on page 587 at the bottom – the fourth note: “Thus a
judge may always testify, in a cause where he is not
sitting, as to proceedings before him in another cause.”
That is to say, from the point of view of his competence to
testify, he is competent. The Court will find the same point
in “Corpus Juris Secundum,” volume 97, on pp. 513-514. I
shall not read it. It states the same rule as Phipson.
Testimonies by experts on facts which came to their
knowledge by virtue of their duty are admissible.
Presiding Judge: By experts?
Attorney General: By experts, investigators, persons
fulfilling an official duty. The rule is in “Corpus Juris
Secundum,” vol. 31.
Presiding Judge: Did you not find anything in English books
– you are going directly to the United States?
Attorney General: There it is much more specific. We only
have a passing reference, but it is much more detailed in
America and, since we are accustomed, in matters of the
rules of evidence, to be assisted also by American sources,
I thought that I would be permitted to do so. This is in
Vol. 31, on page 940:
“A witness cannot testify to facts as to which this
knowledge is derived from unsworn statements of others; but
knowledge acquired in the line of official duty or
employment is not objectionable as based on hearsay.”
And this is followed by all the details of the rule.
Presiding Judge: What are the examples, for instance?
Attorney General: For instance, Your Honour, an official of
a company who gives evidence about matters which came to his
knowledge in the course of his employment in the company,
even if these were not handled by him, but came to his
knowledge from others – these are not ” hearsay” for legal
purposes, and on this we have many precedents; I shall quote
them only in brief.
If the Court will permit me here to quote references,
without reading them, but all of them, I believe, point in
the same direction- Grayson v Lynch (1896), 16 Supreme Court
Reporter 1064, at page 1069; Transcontinental Petroleum
Company v Interocean Oil Company (1920), 262 Federal
Reporter 278, at page 282; here the rule is laid down that
in order to disqualify evidence as hearsay evidence, it is
important also to know how it was obtained, what is the
measure of reliability which may be ascribed to the manner
in which it was procured. And here, there would be no doubt,
for example that if Koller, Schellenberg or Goering were
alive, I would be entitled to bring to the notice of the
Court what they had to say about the Accused. Here is a
judge who can be presumed to remember what he said and to
remember only what he said – there is, therefore, a measure
of guarantee of reliability from the point of view of the
Presiding Judge: I think that, in general, judges have a
better memory than others.
Attorney General: Your Honour is entitled to say so.
A similar ruling, that the guarantee arising from the source
is important, will be found by the Court in the judgment of
United States versus Aluminium Co. of America (1940), 35
Federal Supplement 820, at page 823. If I may, I shall read
only a brief extract:
“As I conceive, the law on the point may be briefly
stated thus: Opinion testimony by an acceptable expert
resting wholly or partly on information, oral or
documentary, recited by him as gathered from others,
which is trustworthy and which is practically
unobtainable by other means, is competent even though
the firsthand sources from which the information came
be not produced in court. With respect to the matter,
in what impresses me as unambiguous authoritative
judicial language, it has been said that ‘the
requisites of an exception of the hearsay rule’ are
‘necessary and circumstantial guaranty of
trustworthiness…. In other words, when hearsay
evidence is offered it is admissible if resort to it be
essential in order to discover the truth and if the
surroundings persuade the court that the information
adduced by the expert as a basis of his opinion is
Presiding Judge: What briefly were the facts there?
Attorney General: I shall explain to the Court in a moment.
Presiding Judge: Only the main point of the investigation,
by whom and in relation to what?
Attorney General: We will submit the volume to the Court in
a moment. It states that where it is impossible to obtain
the original evidence, the court may act in a liberal
manner, and in actual fact the matter is left to its
discretion according to Common Law practice which still
follows the principle of hearsay evidence. The Court will
find this in volume 31 of Corpus Juris paragraph 204, page
942. There it is stated that despite the fact that in most
cases hearsay evidence is not admissible, if there is no
possibility of obtaining the facts by any other means – it
is admissible. It also appears in the same volume on pages
944-945. On page 945 it states:
“A strong reason for the exclusion of hearsay is found
in the distrust of the ability of a jury to give the
proper weight to an unsworn statement, as only a well-
trained mind can give such a statement any weight
without grave danger of giving it undue weight. This
reason is not present where the evidence is addressed
solely to the judge to enable him to decide matters of
fact, or to determine as to the exercise of discretion,
and consequently the rule is considerably relaxed under
In view of the fact that we are dealing with a court without
a jury, there exists a wide discretion. It would appear,
therefore, that also according to the authority, without
reference to section 15, I would be entitled to ask the
Court to hear Judge Musmanno and even more so in view of our
section 15. We find something on this exception, too, in
Corpus Juris Secundum in the same volume, paragraph 193 on
page 927 and following pages:
“Furthermore exceptions to the hearsay-rule have always
existed, sometimes as a result of statutory regulations
and the modern tendency is to increase the number. Such
exceptions are based on necessity, practical common
sense and other suppositions that the circumstances
aroused in such situations afford a sufficient
probability of the truth of the proposed evidence to
enable a jury to weigh as a circumstance tending to
establish the facts sought to be proved.”
I would accordingly request the Court to admit this evidence
of Judge Musmanno on the three counts I have asked for. And
if it should be necessary, and if the Court is not convinced
by my argument that the evidence is admissible according to
the Common Law, I would ask the Court to decide to admit his
evidence under section 15 of the statute which allows the
Court to do so.
Meanwhile my colleague, Mr. Bar Or, draws my attention to
the extracts which the Court wished to hear:
“It is agreed by both sides, as I am convinced, that
the witnesses are thoroughly qualified experts on
subjects relating to bauxite.”
Presiding Judge: That is a technical question.
Attorney General: [05continuing]
“There is, and there should be, no criticism of their
capacity. Their testimony covers upwards of 1,900 pages
of the minutes. The dispute is confined, however to
quite limited parts of it.”
“The questions raised by the Government motions are
whether the assailed portions of what was said by or of
documents prepared by, or prepared by others and used
by, the experts named while on the stand are competent.
The issues are whether such portions are admissible
either because of being or relying on hearsay or
because their admission would violate the best evidence
Presiding Judge: In other words, for the purpose of
preparing their expert opinion they made use of hearsay
Attorney General: Yes.
Dr. Servatius: May I make a short observation?
Presiding Judge: You are not entitled to comment, but we
shall allow you to do so briefly, if you have any brief
Dr. Servatius: As far as I can see, there were two
assignments: One of them – members of the navy were sent to
examine the cases of Doenitz and Raeder. These matters are
known to me from Nuremberg, namely that emissaries came to
examine technical naval matters. This was a limited and
specific investigation and there are no reports about it.
Presiding Judge: This is not a question of the admissibility
of the evidence; we shall clarify why he was sent there, and
what he investigated.
Dr. Servatius: I am raising this question in relation to
relevancy. The second investigation was altogether a private
one, conducted after judgment. We have heard that this
witness conducted such an investigation on his own account,
we have heard that he published the facts in a book. As we
know, the fullest records exist of what transpired in court,
a complete transcript, and in respect of the other
proceedings, as far as I am aware, there are copies in the
archives of the German Federal Republic in Koblenz.
If the intention is to adduce matters which are recorded
there, what was said there, I would ask you to give me time
in order that I may myself take note of matters and examine
their significance. It seems to me that there is no
relevance at all in regard to the question as to whether
that or the other person succeeded in evading the fulfilment
of his duty of carrying out orders which were imposed on
him, if he himself found a way of doing so. For the question
is why he was able to do so, how he found a way for himself
to do it. I believe that we shall be able to listen here to
evidence about Loesener who was a Chief of Department at a
Ministry who tried to evade the performance of his duty, and
we shall learn what happened to him.
Judge Halevi: What witness will this be?
Dr. Servatius I believe he is a Protestant clergyman from
Berlin, who is due to appear before Your Honours in the
course of this morning or the afternoon.
With regard to the additional question which arises, as to
whether a witness may appear as an expert witness and give
evidence as such about matters which became known to him
only through hearsay, it has to be pointed out that the
precedents illustrate the rule that an expert witness may
testify about matters which he heard from another expert,
and not about matters which he has heard from a third party,
from a layman. This witness heard about these matters not
from judges or other investigators, but from persons, from
accused persons, who were themselves parties who had an
interest in presenting matters in one way or another.
A question also arises concerning the credibility of this
witness. Far be it from me to cast doubt upon the
credibility of judges who come to give evidence. But here we
have a publicist travelling from place to place and
gathering material with a view to publication.
I accordingly ask the Court not to admit this evidence.
Presiding Judge: We shall adjourn now, in order to consult,
and this will be our regular morning recess.