THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: I am not finished, My Lord. I have a few matters
for Monday morning.
THE PRESIDENT: Well, the defendant can return to the dock, and we will
proceed with the other applications.
[_The defendant left the stand._]
Sir David, shall we deal with these applications in the same way as we
have done before?
SIR DAVID MAXWELL-FYFE: Yes, My Lord. The first one that I have is an
application on behalf of the Defendant Kaltenbrunner for a witness
called Hoess, who was former Commander of the Auschwitz Concentration
Camp. My Lord, there is no objection on the part of the Prosecution to
that.
THE PRESIDENT: So that is the application which has to be made by a
great number of the defendants’ counsel.
SIR DAVID MAXWELL-FYFE: Oh, yes, Your Lordship is quite right.
My Lord, as Commandant of the Auschwitz Concentration Camp, the
Prosecution feel that he could contribute to the information of the
Tribunal, if no objection is forthcoming.
THE PRESIDENT: Dr. Stahmer, I see that you are among the counsel who
applied for him. Is there anything you wish to add about that?
DR. STAHMER: I have nothing to add to my written application.
THE PRESIDENT: Thank you. Then the Tribunal will consider this, you see,
after you have dealt with them.
SIR DAVID MAXWELL-FYFE: My Lord, the next one is Dr. Naville. Dr.
Naville was allowed as witness to the Defendant Göring, provided he can
be located. He has been located in Switzerland and I understand he has
informed the Tribunal that he sees no use in his coming here as a
witness for Göring, and he is now asked for by Dr. Nelte, Counsel for
Keitel, to prove that prisoners of war had been treated according to the
rules of the Geneva Convention, Dr. Naville having been a representative
of the Red Cross. Dr. Nelte, I am told, will be satisfied with an
interrogatory, and the Prosecution have no objection to an
interrogatory.
THE PRESIDENT: Dr. Nelte?
DR. NELTE: That is correct; I agree, providing that I am allowed to put
my questions to Dr. Naville in writing.
But may I add something here, not to this application to present
evidence, but with reference to another application, which I already
submitted to the Prosecution through the Translation Division yesterday
or the day before. My application, to admit Hitler’s stenographers as
witnesses was rejected by the Tribunal as irrelevant. I have now
received a letter and an affidavit from one of these stenographers, and
in that affidavit I find a passage which refers to Keitel’s attitude
towards Hitler at interviews and conferences with him.
Public opinion has criticized the defendants as being in the habit of
quoting dead men whenever they want to say anything in their favor; and
similar statements have been made in this Court. The Defendant Keitel
requests that the part of the affidavit which I have already submitted
and which I intend to submit, be admitted as an affidavit so that the
witness can still be rejected and yet it will be possible for me to
submit that passage of the affidavit with the agreement of the
Prosecution.
SIR DAVID MAXWELL-FYFE: If Dr. Nelte, My Lord, will submit the passage,
we will consider it, but I have not had the chance of doing it up until
now.
THE PRESIDENT: Well, if you will carry out that course and if you want,
there is no objection to it.
SIR DAVID MAXWELL-FYFE: Very well, you will let me have it, a copy of
it?
DR. NELTE: Certainly.
SIR DAVID MAXWELL-FYFE: My Lord, the next application is on behalf of
the Defendant Von Schirach, a request to submit an affidavit of Dr. Hans
Carossa. The gist of the affidavit is that the defendant tried to keep
himself independent of Party directives in matters of literature and art
and that, while Gauleiter in Vienna, he repeatedly intervened on behalf
of Jews and concentration camp inmates. My Lord, the Prosecution have no
objection to an affidavit being filed.
The next is an application on behalf of the Defendant Funk for
interrogatories to be submitted to Mr. Messersmith, dealing with Funk’s
relation to the Party and his work in the Reich Ministry of Propaganda.
My Lord, the Prosecution have no objection, but remind the Tribunal that
the Defendant Funk has already, on the 15th of March, asked permission
to submit another affidavit to Mr. Messersmith, dealing with Mr.
Messersmith’s affidavit. The Prosecution did not raise any objections,
but the Tribunal has not, as far as we know, granted that yet. So I
wanted the Tribunal to know there was a previous request...
THE PRESIDENT: Do you mean an affidavit or interrogatory on the 15th of
March?
SIR DAVID MAXWELL-FYFE: Interrogatories.
THE PRESIDENT: Interrogatories? Surely we must have dealt with it.
SIR DAVID MAXWELL-FYFE: Well, that is the information that my office
had. They have not seen the...
THE PRESIDENT: I see.
SIR DAVID MAXWELL-FYFE: In case the Tribunal had not dealt with it, we
want to point out that there is one outstanding. We have no objection to
either.
Then the Defendant Rosenberg requests Hitler’s decree to Rosenberg of
June 1943. There is no objection on the part of the Prosecution. I am
told that we can not trace any previous application but the position at
the moment is that we haven’t any objection to it.
Then, My Lord, the next is Von Neurath, an application for a
questionnaire for Professor Kossuth, long a resident of Prague. Really
they ask for interrogatories. My Lord, there is no objection to
interrogatories.
Then, My Lord, there is an application in reverse, if I may put it so,
from Dr. Dix on behalf of the Defendant Schacht, the downgrading of Herr
Huelse, who was drafted as a witness, to an affidavit. My Lord, we have
no objection to that.
DR. DIX: This is the witness Huelse. He was granted to me as a witness.
In order to shorten and simplify the proceedings, I have decided to
forfeit the right to hear the witness because there was an affidavit. I
have received the affidavit. While my application to dispense with the
witness was pending, however, the witness arrived in Nuremberg. He is
here now, and I think therefore, that it will be best for him to stay
and for me to be allowed to examine him by confronting him with his own
affidavit, asking him to confirm it, and then put some additional
questions to him. I think that would be much more practical than having
the witness here to no purpose, sending him back again and retaining
only the affidavit. My purpose, in any case, was partly to avoid the
complications connected with getting him here.
SIR DAVID MAXWELL-FYFE: Do you withdraw the application to have the
affidavit...
THE PRESIDENT: Is the witness Huelse a prisoner or not, or an internee?
DR. DIX: He is a free witness. He is not in detention and he is free to
move about Nuremberg.
THE PRESIDENT: Can he remain here until the Defendant Schacht’s case
comes on?
DR. DIX: I hope so. He has told me that he can stay and that he is
willing to do so.
SIR DAVID MAXWELL-FYFE: My Lord, we have no objection. The Tribunal has
already granted him as a witness. If Dr. Dix wants him as a witness, of
course we have no objection to it.
The next one is an application on behalf of the Defendant Streicher, for
an affidavit from a Dr. Herold. To put it quite shortly, the Prosecution
suggest that it should be interrogatories rather than an affidavit and
on that basis we would make no objection.
My Lord, there is only one thing I have to say. I had a most useful
discussion with Dr. Dix last night, following out the Tribunal’s
suggestion of going through the documents. Dr. Dix was most helpful in
explaining the purpose of his documents and what they were. I do suggest
that if any of the Defense Counsel when they are explaining the
documents would also care to explain the purport of their witnesses—I
do not want to embarrass them in any way—but if they would voluntarily
explain the purport of witnesses, either to Mr. Dodd or myself, we might
be able to save them a great deal of time, by indicating whether the
evidence of that witness would be agreed to or might be the subject of
objection.
I only throw it out now, as we are going to meet over the documents, and
if they would extend it to witnesses, I am sure we could achieve a most
profitable co-operation.
THE PRESIDENT: You are suggesting, Sir David, are you, that they should
explain to you the nature of the evidence which the witness was going to
give?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: And if the Prosecution were not going to dispute it, that
it might be incorporated in an affidavit?
SIR DAVID MAXWELL-FYFE: Yes, that we could probably dispense with the
witness, and probably incorporate that in an affidavit. Of course, I
have been told the general purport of the witness, because I attended on
the application, but if they could elaborate on it a little more as it
often happens when they see the witness and let me know what the scope
of the witness’ testimony would be, I could probably concede, either in
whole or in part, and save them a lot of work and the Tribunal a lot of
time.
THE PRESIDENT: Well, I think the Tribunal would like to know whether the
defendants’ counsel think that is a possible course, whether it might
lead to some shortening of the defense. Could Dr. Dix possibly tell us
whether he thinks it would be possible?
DR. DIX: Of course, I cannot make any statement on the views of my
colleagues, since I cannot read their minds. All I can say at the moment
is that I will recommend to my colleagues, as unusually helpful and
practical, the kind of conversation which I had the honor of having with
Sir David yesterday. Personally, I think that my colleagues too will
agree to this procedure unless there is any particular objection to it,
which is, of course, always possible. I cannot say any more at the
moment.
THE PRESIDENT: You understand what Sir David was suggesting, that such a
conversation should apply not only to documents but also to witnesses
and if you could indicate rather more fully than you do in your
applications what the subject of their evidence was going to be,
possibly the Prosecution might be able to say in those circumstances
that upon those matters they should not propose to dispute the evidence
and therefore it might be incorporated in an affidavit?
SIR DAVID MAXWELL-FYFE: My Lord, if Your Lordship allows me to
interject, if they care to bring a statement on a particular witness’
testimony, the Prosecution would, I am sure, in many particulars be
prepared to say, “Well, you produce that statement on that point and we
will admit it, without any formality.”
THE PRESIDENT: Perhaps, Dr. Dix, you and the other counsel for the
defendants could consider that matter.
DR. DIX: I have understood it to be exactly as Your Lordship has just
stated it. I discussed both the witnesses and the documents with Sir
David and that was very helpful; and in that sense I will...
THE PRESIDENT: If that is all we need do at the moment, then...
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases, yes.
THE PRESIDENT: Then the Tribunal will adjourn.
[_The Tribunal adjourned until 8 April 1946 at 1000 hours._]