Attorney General: Identical, in regard to this principle - identical. I want to show that this was no deviation from the principle of deviation. There was consistency. The "British Royal Warrant, Regulation 81" which the Court will find in the same volume on page 897 also contains the same principle. In other words, two countries of the Common Law, both England and the United States, departed in this instance from the Rules of Evidence. In volume 15 in various places, where the question of the Rules of Evidence is discussed, the Court will find the decisions that were handed down. For example, on page 88, the "Pohl Case" is discussed, and this is what the Court says, towards the bottom of the page:

"The trial was conducted generally along the lines usually followed by the trial courts of the various States of the United States, except as to the rules of evidence. In compliance with the provisions of Article VII of Ordinance No. 7, great latitude in presenting evidence was allowed prosecution and defence counsel, even to the extent at times of receiving in evidence certain matters of but scant probative value."

Attorney General: The difficulty, Your Honour, is that I want to argue at length in respect of the first document and to receive a general directive. It is clear to me that every subsequent document will be considered on its merits, according to its circumstances, according to its contents. For the Court, to my regret, under sub-section (b) of section 15 must decide in respect of each document separately. Therefore I shall be obliged to convince the Court in regard to each document, separately, that it has probative value. But at this moment I am asking for a general directive in the spirit of what was stated in the judgment of the Supreme Court.

Judge Halevi: You are now asking for the common denominator for all the documents.

Attorney General: Exactly so, Your Honour, this is the exact term.

Presiding Judge: Nevertheless, so that we may not become involved in generalizations, perhaps you could tell us, in your opinion, what aspects qualify this document, that is placed before us now, to be submitted as evidence under section 15?

Attorney General: Clearly I have to do so since I must find some basis in regard to the contents of this document. Wisliceny was a man who, as we know, was one of the Accused's closest assistants. When he wrote these words, he was facing a death sentence, which was also put into effect eventually, and those very normal motives, on account of which it is usually dangerous to rely on hearsay evidence as we do not know the self-interest of the man giving it, do not apply fully in the case of a man standing in the shadow of execution.

Presiding Judge: Was this after he was found guilty?

Attorney General: In any event it was at a time when he was held under arrest for a very grave crime, and certainly he could only have had very few illusions, in October 1946, as to his personal fate in the Bratislava prison. And he gives a detailed account of all his collaboration, throughout his deposition, with the Accused. He begins with the period in which he, Wisliceny, was the Accused's superior, and afterwards when he became his subordinate. It is possible that the Court will say at times: This part is not credible to us, this part does not accord with other testimonies. Possibly when it comes to deciding the issue, the Court will wish to have corroboration from a source other than Wisliceny's statement; but such corroboration will be forthcoming.

It is my intention to submit a statement by Hoess, his evidence in a Polish court. He was in a similar situation. We have a statement of a third person, named Hoettl. The three of them made their statements without any contact between them. We will ask the Court to believe remarks emanating from different sources, each fitting in with the other in spite of the fact that there was no contact between the men, and consequently any fear that the whole thing was the result of a conspiracy, or that the men were talked into giving false evidence, is exceedingly slight. But testimonies of this kind, such as that of Wisliceny and Hoess, and a few other collaborators, have a probative value of the highest order. The Court will appreciate the fact that we do not have any way of establishing in fact the general events except by means of the general, cumulative purport of the various documents.

Certainly, any document by itself would be inadequate to give grounds for an indictment, but the combined significance of all these documents - thus we are going to contend - enables us to establish with sufficiently moral certainty the matters which are in dispute in this trial.

Furthermore the Accused asked of his interrogators to be given material such as this, so that he could react thereto.

Presiding Judge: He asked for this at his own initiative, or after he was told that such things existed?

Attorney General: Not on his initiative. At the beginning he asked: "Give me material, I want to see it - many years have elapsed." Then it was given to him.

Presiding Judge: He asked for material in a general way, not especially the testimonies of Wisliceny and Hoess, shall we say?

Attorney General: I am not sure for the moment. I think he also asked for the material relating to his Department, and the statements of members of his Department. Thus, for example, when the Accused - we heard this in the recording - gives an explanation:"I did not say that I would jump into my grave because five million Jews were exterminated, but because five million enemies of the German Reich were destroyed." The Court will recollect that passage. Here Wisliceny says something different. This must be established.

Judge Halevi: How will the Prosecution prove the circumstances under which the report of these various testimonies was given - for example, that he was in prison, that he was liable to...

Attorney General: It says here "Cell 133"; on another document, more important to us, it says "Cell 106." It is known that Wisliceny was under arrest, and it is known that he was in the hands of the Allies, this is not a matter of dispute; it is known that he was sentenced by a Slovakian Court and executed following this sentence. The connection between the one declaration and the other will, ultimately, constitute convincing evidence, in our view, unless the Accused will be able to refute it. But at this moment I am speaking not of the weight of these matters, but of their admissibility. And may I be permitted to draw the Court's attention to what is said on page 822 of the 15th volume, towards the end of the remarks of the Presiding Judge: Shake:

"The Tribunal is not impressed with the thought that this deprives the defendants of any substantial right. As to the effect of conclusions, opinions and hearsay, that is quite a different matter.

"As we have observed before, the basis of some of those rules of which you are all more or less familiar is that evidence of that character may be harmful when it goes before a jury of laymen. We can assure you again that this Tribunal considers itself competent to distinguish between evidence that has no probative value.

"The objection to the introduction of the exhibits is now overruled."

Therefore I request the Court to determine the admissibility of Wisliceny's report of 27 October 1946, known as "Zelle 133 Bericht" and also to determine, as a directive to the parties in the trial, the Court's attitude on those documents concerning which it would be ready to exercise its discretion under section 15. And my request is that the Court, following the precedent laid down at Nuremberg, should determine that at this stage and until its consideration of the evidence, any matter which, prima facie, appears to be of probative value, is suitable for submission. What its value will be - this is a matter for the final argument.

Presiding Judge: Dr. Servatius, what do you have to say about this request of the Attorney General?

Dr. Servatius: I ask the Court to reject the application. A document coming from a deceased person can be admitted, if it contains facts or a description of occurrences shortly after the event, as in that case which was presented here by the Attorney General. But here these are not facts that are contained in the document, but the allegations of Wisliceny. Not apologetics, but a transfer of guilt to someone else, to the Accused here.

Presiding Judge: Dr. Servatius, is there no account of facts there?

Dr. Servatius: There are, indeed, facts as well, but they are of a cumulative character and they are included in other testimonies. The purpose of the written document appears clearly from an examination of what is said from page 17 onwards. There is, there, a personal description of details of the Accused, and suggestions how to locate him, and the expression of the readiness to participate in the search. This is, therefore, a quest for a way how to get out of cell 133 and find a chance to live. For this reason I ask you to reject the application.

Attorney General: If the Court wishes to be satisfied whether there are facts or not, naturally before taking a decision, the Court may examine the documents before it decides whether to admit them as evidence: my contention in reply to the remarks of Defence Counsel is that in Wisliceny's two documents there is an account of facts that we do not have from any other source. But they are supported by portions of the evidence from other testimonies.

Presiding Judge: Why do you say "two documents?"

Attorney General: Because there are both "Cell 133" and "Cell 106." These are the two documents that Wisliceny wrote in the Bratislava prison.

Judge Halevi: On the same date?

Attorney General: No, on different dates. "Cell 133," the one I have already referred to, on 27 October 1946...

Judge Raveh: Dr. Servatius, do you agree to the Attorney General's statement that this document was shown to the Accused and he reacted to it, part of which he confirmed and part he denied?

Dr. Servatius: We may suppose that he confirmed those sections which contained facts, and that he rejected those sections containing allegations.

Judge Raveh: But the fact that the Accused was shown the document and that he reacted to it - is that correct? You do not deny this?

Dr. Servatius: He marked with his signature all those documents submitted to him, and this fact can easily be ascertained, and immediately. I presume that this was shown to him.

May I add an observation in regard to the declaration of Rudolf Hoess? The Attorney General said that these two declarations, or these two witnesses, support each other and that in this way their declarations could have considerable value as evidence, and that there was no contact between the two. I must point out that, previous to this, the two spent a long time together in the Nuremberg prison, and it was argued against them that they drew up a common line of defence. There was a similar argument on many occasions by the defence in German courts in trials of this kind.

Presiding Judge: Did they have a chance to talk things over between themselves?

Dr. Servatius: Such a possibility, in my experience, existed in large measure.

Presiding Judge: I believe we still do not have the date of the second report.

Attorney General: The date was 18 November 1946.

Judge Halevi: Why? Did they interrogate him twice?

Attorney General: At that time, when the war criminals were in goal, many countries and various organizations took an interest in them, and the countries detaining the criminals freely allowed the possibility of an interrogation. The men themselves were also requested from time to time to write themselves, in exactly the same way as the Accused was invited here to write various matters by himself - so these men were invited to write. Sometimes they did so completely on their own free initiative, as did Rudolf Hoess who wrote his autobiography, and subsequently, in an appendix, a number of chapters are devoted to various persons with whom he worked and in whose company he was.

Judge Halevi: At whose initiative, or upon whose request did Wisliceny write these two reports?

Attorney General: We shall bring a witness who perhaps will be able to shed light on this question as well, when the time comes. Incidentally, we have the original, actually, in Wisliceny's handwriting. That is to say, not only a photo- copy but the actual handwriting.

Presiding Judge: We shall go into this question and hand down our decision tomorrow morning.

Attorney General: If that is the case, it will not be possible, at this stage, to continue with the submission of documents.

Presiding Judge: That is right. If we decide to admit this document, this should not inconvenience you, for you will be able to continue with the submission of documents at a later stage. Do you still have many documents?

Attorney General: I still have a number of declarations and documents that we wish to submit before we begin hearing the first witness. But it is very likely that the one will be connected with the other, and, therefore, it is most probable that the Court's decision will apply to the other documents as well. Hence it would be better for me to refrain at this stage from submitting additional documents, until I know the Court's decision.

Presiding Judge: Correct - I also think so.

Attorney General: At this point we ask the Court to allow us to proceed with the calling of witnesses. Assistant State Attorney Jacob Bar-Or May it please the Court, I shall now call Mr. Grynszpan. Might I ask the Court to instruct any witnesses that have been summoned to appear and who might be present in this courtroom, to leave and wait in the lobby, outside the courtroom.

Presiding Judge: Any witnesses in Court who have not yet given evidence are requested to leave and to await their turn outside the courtroom.

State Attorney Bar-Or: The witness is on the witness stand, Your Honour.

Presiding Judge: Does he speak Hebrew?

Witness Grynszpan: [in Hebrew] Not well.

Presiding Judge: What language does he speak well?

Witness Grynszpan: [in German] German.

[The witness is sworn.]

Presiding Judge: If the witness is more at ease in Yiddish, we shall find an interpreter to interpret in Yiddish.

Witness Grynszpan: No difference, Yiddish or German.

Presiding Judge: Very well. What is his full name?

Witness Grynszpan: Zyndel Grynszpan.

Presiding Judge: And in Hebrew?

Witness Grynszpan: Shmuel.

Presiding Judge: Zyndel Shmuel Grynszpan.

State Attorney Bar-Or: Sir, when and where were you born?

Witness Grynszpan: In 1886, in Radomsko, Poland.

Q. When did you come to Germany?

A. In April 1911.

Q. When you got to Germany, where you a bachelor, or married?

A. Already married.

Q. When did you get married?

A. In April 1910.

Q. Where did you go to in Germany, in 1911?

A. Hanover.

Q. And you stayed there till...?

A. I stayed in Hanover till 1928, till we were expelled from Germany in a barbaric manner. On 27 October 1928. All Polish Jews. To Sbenszyn!

Q. Mr. Grynszpan, did you mean 1928 or perhaps another year?

A. Twenty eight years! Since 1911. 28 years. Till 1938.

Q. Until 27 October 1938.

A. Correct.

Q. How many children were born to you in Hanover?

A. Eight.

Q. How many sons?

A. Four.

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