Attorney General: Exactly. In other portions of the
document which have been typed on that machine, in eighty-
three places, there are alterations in the Accused’s
handwriting. This becomes a document of the Accused – one
which he has adopted.
Sometimes it suffices for the document to be found in the
possession of the accused, for its contents to serve as
evidence against him. For example, Wigmore says in volume
4, on page 90, section 1073:
“The party’s possession of a document made by a third
person may well be evidence of the party’s knowledge of
its contents; but is it sufficient to justify an
inference of assent to the statements contained
therein? It is easy to imagine instances in which such
an inference would be fallacious. Yet, since the party
may always exculpate himself and disown the inference
by proving the true reason for this retention of the
document, the question remains whether the mere fact of
possession ought not to suffice at the outset to make
the document receivable, subject to explanations that
may later be made. This question was in orthodox
practice answered in the affirmative.”
Attorney General: The Court will find the same point in
Phipson, 9th edition, on p. 159:
“Documents which are, or have been, in the possession
of a party will, as we have seen, generally be
admissible against him as original (circumstantial)
evidence to show his knowledge of their contents, his
connection with, or complicity in, the transactions to
which they relate, or his state of mind with reference
thereto. They will further be receivable against him
as admissions, i.e., exceptions to the hearsay rule, to
prove the truth of their contents, if he has in any way
recognized, adopted, or acted upon them.”
Now, what more do I need for the purpose of adoption, if a
person, in his own handwriting, inserts amendments
throughout the length of the document, and not only in one
place, but various corrections of different kinds?
Now, the Accused’s counsel did not dispute in his argument
that the Accused, indeed, made these statements or that he
made statements to Sassen, nor that conversations took
place. The Accused also said that – and I mentioned this
already on Friday – he said so in Bureau 06. The names of
Eichmann and Sassen also appear – this, too, I mentioned,
and his counsel did not question that – he merely put
forward two arguments: one that the Accused was under the
influence of alcohol, they brought him to a public bar, they
plied him with wine and, as a result therefore, he spoke.
It is somewhat difficult to imagine how one can operate a
tape recorder in a public bar, amidst the tumult and smoke.
But let us suppose that it was feasible, over a period of
four months, to take the Accused from time to time – I don’t
know how many times per day or per week – to a bar to fill
him with wine there, and to extract statements from him.
First of all, this does not invalidate the statements. On
that there is a precedent in the judgment in Criminal Appeal
186/55 – Victor Mizan versus the Attorney General, Piskei
Din 11 page 769, on page 772: “An admission of a drunk man
was received, despite the fact that he was drunk, but also
despite the fact that the policeman himself supplied the
drink to him, in order that he should become intoxicated and
make an admission to him.” This was the case even for the
purposes of an admission under Section 9 of the Evidence
Ordinance. If that is so, then this does not invalidate the
But then he says: “This is not exactly what I said; Sassen
added words of his own.” Your Honours, it is an everyday
occurrence that an accused alleges: “My words were not
properly recorded, I did not say that exactly, that is not
what I intended to say.” In such a case, there is an
opportunity for them to enter the witness box, take an oath,
and explain to the court what they did say.
There is no conflict as to whether such a document existed;
there is no dispute that such conversations took place,
there is no difference of opinion on the point that the
Accused adopted the document as his own by means of his
corrections. But it is being said: Sassen altered it. Very
well, let the Court evaluate the document, weigh up the
Accused’s explanation and those of his witnesses, and be
convinced in any way it pleases.
Presiding Judge: With regard to the evidence of Sassen, I
understood from you that if one of the parties applied to
take his evidence in Argentina, there is no guarantee that
the Argentinian legal authorities would comply.
Attorney General: There is no certainty of that, even though
we would have expected it, but there is no guarantee. I am
not at all sure that Sassen is in Argentina at present. At
any rate, I can inform the Court of one further fact: I
requested material from the authorities dealing with the
matter and received the first report last night, from which
it transpires that, nothwithstanding the fact that Mr.
Sassen, and also Mr. Fritsch, would, indeed, not be welcome
visitors to this country, owing to their past, I
nevertheless do not find in the material received by me
sufficient grounds for charging them under the Nazis and
Nazi Collaborators (Punishment) Law. And according to this
first report – I must make that reservation – according to
this first report, I do not see grounds for putting them on
trial, should they come to Israel. I shall examine the
material once again. At any rate, whichever way the
matter turns out, that is not the decisive factor; the
decisive factor is whether the document is admissible or
Whatever explanations the Accused is able to give, later on,
to the document – that is a different question; whether by
his own evidence or by other testimonies. The document’s
admissibility cannot be determined by whether he can or
cannot supply explanations.
From the point of view of identifying the contents, I want
to point to dozens of identical passages; if the Court will
allow me, I shall give you the list of the comparisons
between what Eichmann says to Sassen and what he says to
Bureau 06 on the same subject. The words on those topics
are almost identical. We have made this comparison, and it
is presently in the course of being duplicated in this
building; it will be ready within a few minutes. It covers
eight pages. Sentence after sentence, on the same subject,
actually using the same words. This identifies the person.
Even the use of the same vulgar expressions.
The Court will recollect the Accused’s remark here in
response to the writer of the book “Atom” who did not
display sufficient loyalty to Hitler in the closing days,
and that vituperative term which he called him, “Arsch mit
Ohren” (arse with ears). Exactly the same word appears in
Sassen’s material, once again concerning a Nazi who did not
seem to be so loyal, this time against Gerstein. I do not
believe that this expression is in such wide use, that so
many people use it. The matter of the “Schlitten fahren”
(hauling over the coals) appears again in Sassen’s document.
And, on this occasion, he says, “Reichsfuehrer-SS wollte mit
mir Schlitten fahren” (wanted to haul me over the coals);
apparently, the interpretation which Defence Counsel gave us
is, indeed, the correct interpretation in this matter.
Presiding Judge: Undoubtedly, it is the correct one.
Attorney General: We really have, if one may put it thus,
the footprints of the Accused’s expressions, of his style
and his language, throughout the length and breadth of the
document. At the moment, I have it with me in one copy, but
within a few minutes the Court will have several copies of
it, and the Court will be able to make comparisons.
Presiding Judge: I believe that we are still at the argument
stage. Whatever you read is recorded accordingly.
Attorney General: I am not reading it out. This is one of
my arguments, that the words are identical in only thirty-
four selected passages. I do not want to read them; it
would be more convenient for the Court to receive it as a
written document. This is part of my contention – this
identical language of the documents.
Presiding Judge: Very well – so you maintain that in thirty-
four selected passages there is a total identity?
Attorney General: There is an identity – really like
footprints. And, finally, I come to the publication in
Presiding Judge: When was this publication?
Attorney General: That is to be found in T/47.
Presiding Judge: We shall find it, Mr. Hausner. I have
asked for that issue.
Attorney General: It was, at any rate, when the Accused was
already in Israel. He made no spontaneous assertion that
this article was based on material that had never come from
Presiding Judge: [After receiving the copy.] It is dated 28
November 1960 and 5 December 1960.
Judge Halevi: Is there a German translation?
Attorney General: We translated it for him into German, and
it was submitted to the Accused. He was asked to make his
comments, and the Court will find his remarks and their
meaning in Exhibits T/48, T/49 and T/50. He does not
dissociate himself from the document. He only makes some
observation, here and there, throughout the manuscript. The
Court will find various markings which are meant to refer to
various observations, as appears in those exhibits.
Basically, he identifies the document as one arising from
his conversations with Sassen. And again, this is an
“identity of contents.” For, if the Court will make the
comparison on several of Sassen’s tapes, it will find that,
although Life somewhat embellished, somewhat mitigated, and
somewhat adorned the picture in favour of the Accused,
still, it is the same. Here, too, the Court will find that
the way in which he treated Life was like that in which he
treated the Sassen Document; here, too, there are comments –
numbers, signs, exactly as was the case with the Sassen
Document. And he confirmed it.
Accordingly, I maintain that we have satisfied the test for
submitting the Accused’s statement, as was laid down by the
Supreme Court in the case of Ali Muflah by the late Justice
Cheshin, in Criminal Appeal 20-21/49, High Court Judgments,
Volume 7, page 25, at page 50.
Presiding Judge: There it was a confession.
Attorney General: That is so, but since Section 9 deals with
a confession of any kind, we have discharged our onus of
proof. The confession has been proved. For Defence Counsel
has stated his argument on the document, and we have given
our full reply.
I merely want to add a final observation. Defence Counsel
says: You have some passages missing, this is not all, it is
only part of the document. This is a matter which must be
examined in connection with the weight of the evidence, and
not as regards its admissibility. The Court will find this
in Roscoe’s Criminal Evidence, on page 52.
Presiding Judge: Which edition?
Attorney General: In the 16th edition, of 1952. “The Court
of Criminal Appeal thought that a jury should be warned to
be cautious of the report of what `only purported to be a
portion’ of a conversation which the witness was not
intended to hear.”
In other words, if we submit only a part, the Court will
itself take care, lest there are other portions which are in
favour and to the benefit of the Accused, but this does not
affect admissibility in any way whatsoever. Hence I
maintain: We have proved the identity and the connection…
Judge Halevi: Before you conclude your argument, I should
like to ask a further question. The question has been
asked, but I should like possibly to elucidate it in regard
to the nature of the handwritten corrections. There are
about seventy continuous pages of corrections or of further
comments. I wanted to put the question, without knowing
what is written there, in an abstract or legal manner, thus,
in general terms…
Attorney General: What is the nature of the corrections?
Judge Halevi: No, how does the question of the nature of
the corrections fit in with the problem of the document’s
Attorney General: It fits in very well.
Judge Halevi: Before you give me your explanation, I would
further observe: In documents T/48-T/51, the comments of the
Accused on this Life article, there is also a confession of
the Accused which was made by a recording and a transcript.
There is no statement to the effect that a particular
document represents the correct transcript, but only in a
general way, not only that a conversation took place, but
that the conversation was recorded and was converted into a
typed record, a transcript; and he argues that in every
transcript of a recording, errors occur and, moreover, if
the transcript is subsequently translated from German into
English, and back again here, by the Prosecution into
German, this will certainly multiply the errors. But,
basically, there is here a confession that the conversation
was recorded and that a transcript of the recording was
made. Now, the transcript is a technical process whereby,
if this process is not falsified, it records only the real
conversation. Tape recording is such a process where, if
there is no deliberate falsification, the recorded matter is
what was said by both parties to the conversation, or by one
Attorney General: Except for an error on the part of the
typist, and there are such errors which have been corrected.
Judge Halevi: And this brings me to the possible nature of
the alterations. If a man speaks and knows that his words
are being recorded, and the recording is committed to print
in the form of a transcript, and afterwards the transcript
is submitted to him, there is room for two kinds of comments
– a correction in the following way: “This has been
incorrectly recorded – this or that word has been
distorted.” That is a formal matter. It would then be
necessary to compare his spoken words with the recording.
But there is also room for additions, or let us say…
Presiding Judge: Substantive ones.
Judge Halevi: What we called at our previous Session
substantive corrections – they, in fact, are not in the
nature of corrections which are important for us. We can
dispense with them. These corrections are only meant to
say: “On the first occasion I did not give expression to my
views in a complete manner – I want, at this additional
opportunity, to express what I am aiming at in a further
way. This does not mean to say that I want to deny that I,
in fact, said so on the previous occasion, but that I want
now, before my words are published or put to further use, I
want to explain my words in another fashion or in an
additional or amended manner, but that does not mean that
the earlier words were not spoken by me.”
Therefore, one must know exactly what these corrections
were, of either category; here we have to draw the
Attorney General: If the Court will permit me, I shall give
the information, as far as I am able. The material consists
of two parts. The transcripts of sixty-seven tapes which
have been arranged in order by us, in sixteen files, and
material in the Accused’s handwriting which has been
arranged in File 17. We do not have tapes 6-10, and we lack
page 3 of tape 41. Tape 52 has been erroneously numbered
51. Most of the tapes contain handwritten corrections and,
from the beginning, also typewritten corrections, or they
contain numbered annotations referring to alterations on
separate sheets. In fifteen of the sixty-two tapes, there
are no corrections. The corrections appear in two forms,
and there is no criterion pointing to a difference between
the two forms. There are alterations in the transcript,
unnumbered; there are alterations with a number in the
transcript, and there are alterations on separate sheets.
In tapes 11 and 12, there is a list of corrections of errors
in the first pages. The number of corrections in the
transcripts amounts to several hundred.
Presiding Judge: Several hundred corrected errors?