Eighty-Eighth Day:
Friday, 22nd March, 1946 [Page 346]
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]
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]
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.
THE PRESIDENT: Thank you.
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]
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?
DR. STAHMER: Yes.
[Page 350]
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:
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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(Part 4 of 7)
"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.
"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.