The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 39
(Part 2 of 5)

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 obtain it.

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 matter.

Presiding Judge: What is he going to testify on this subject?

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 children.

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 source.

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 reliable."
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 such circumstances."
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: [continuing]

"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 rule."

Presiding Judge: In other words, for the purpose of preparing their expert opinion they made use of hearsay evidence.

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 comments.

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.

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