DR. MARTIN HORN (Counsel for Defendant Von Ribbentrop): Before we go
into these details I ask to be informed why the Court has the intention
of treating the Defense in a fundamentally different manner from the
Prosecution. In Article 24 of the Charter it is stated that the Tribunal
will ask the Prosecution and the Defense whether they will submit
evidence to the Tribunal and if so, what evidence. This decision has so
far not been applied by the Tribunal in relation to the Prosecution. I
am glad that today the Defense has been granted the possibility to name
to the Tribunal those documents and witnesses, which up to now have been
difficult to obtain. I am prepared today to tell the Tribunal the
essential points which establish the necessity of calling the witnesses
and the relevancy of the documents. I ask the Court, therefore on the
basis of past practice, not to allow the Prosecution to take part in
judging whether a document should be considered relevant or not. As
Defense Counsel I am convinced that I would have to submit to a sort of
precensorship by the Prosecution which would impair the unity of my
entire evidence. I may point out that the protests of the Defense have
constantly been postponed with the remark that the Defense would be
heard about these points at a later date. If selection of evidence, on
the basis of objections by the Prosecution, takes place here today the
danger arises that protests which have been postponed will not be able
to be treated later. For the reasons stated, therefore, I request the
Court to proceed according to past practice, and decide as to the right
of the Prosecution to protest against the procurement of evidence.
THE PRESIDENT: Will Counsel for Ribbentrop come back to the rostrum? The
Tribunal is not altogether clear what motion you are making.
DR. HORN: I propose that the Prosecution should not, at this stage of
the Trial, be entitled to make a decision about the calling of witnesses
and the relevancy of documents.
Mr. President, I should like to plead further on that point. I meant by
making a decision that the Prosecution should not yet, at this time,
have anything to say about the question of the admissibility or
nonadmissibility of evidence.
THE PRESIDENT: The Tribunal considers that your motion cannot be
granted, for this reason: It is true that the Defense is being asked to
apply for witnesses and documents now, in accordance with Article 24(d).
One principal reason for that is that the Tribunal has got to bring all
your witnesses here. The Tribunal has been, for many weeks, attempting
to find your witnesses and to produce them here, and to produce the
documents which you want. The relevancy of those witnesses and of those
documents has got to be decided by the Tribunal; but it is obvious that
Counsel for the Prosecution must be allowed to argue upon the question
of relevancy, just as counsel for the defendants have been allowed to
argue upon the relevancy of every witness and every document which has
been introduced by the Prosecution.
Exactly the same procedure is being adopted now for the defendants as
has been adopted for the Prosecution, with the sole exception that the
defendants are being asked to make applications for the witnesses and
documents and to deal with the matter at one time, rather than to deal
with it as each witness or document is produced. The reason for that is
that the Tribunal, as I have stated, have got to find and bring the
witnesses here for the defendants, and also to produce the documents.
Your motion was that the Prosecution should not receive any possibility
to decide on the calling of witnesses. The Prosecution, of course, will
not decide upon it; the Tribunal will decide upon it. The Prosecution
must have the right to argue upon it, to argue that the evidence of a
certain witness is irrelevant or cumulative, and to argue that any
document is not relevant.
And I am reminded that all of these documents have got to be translated
for the purposes of the Tribunal.
DR. HORN: Mr. President, many of the defendants’ counsel, myself
included, have, so far, not been able to question decisive witnesses for
the purpose of obtaining information. Therefore, in decisive points we
often do not even know exactly what a witness can prove.
If, now, we already have to deal with the Prosecution before we know
definitely how far it is desirable to fight or not to fight for a
witness, we are in an essentially worse situation than the Prosecution,
which, whenever the defendants’ counsel made protests, knew exactly for
what their witness or their evidence was important. In this regard the
Defense is, for the most part, in a considerably worse situation, and I
am of the opinion that this situation will become even worse if here,
besides the Tribunal, the Prosecution can also make protests against the
evidence at this stage of the Trial.
THE PRESIDENT: It is true that it is impossible to decide finally upon
the admissibility of any piece of evidence until the actual question is
asked; and for that reason the Tribunal has already, in deciding
provisionally upon the application for witnesses, acted in the most
liberal way. If it appears that there is any possible relevancy in the
evidence to be given by a witness, they have allowed that witness to be
alerted. Therefore, if there is any witness whose evidence appears to
be, by any possibility, relevant, the Tribunal will allow that witness,
subject, of course, to the directions of the Charter to hold the Trial
expeditiously.
Subject to those limitations, the Tribunal will allow any witness to be
called whose evidence appears to be possibly relevant. That is all the
Tribunal can do because, as I have already stated, it is the Tribunal
who has to undertake the difficult task of securing these witnesses for
the defendants, who cannot secure them themselves.
DR. HORN: Thank you.
THE PRESIDENT: Now, Dr. Stahmer.
DR. OTTO STAHMER (Counsel for Defendant Göring): Mr. President, I do not
wish to repeat, but I believe that the objection of Dr. Horn has not
been understood quite rightly. Dr. Horn wanted only to complain about
the fact that the Defense in no case has been asked previously whether
an item of evidence that the Prosecution has presented was relevant or
not, but we have always been surprised when a witness was brought in and
we had no possible opportunity to make any material objections relative
to him.
Insofar as objections against documents were concerned, that is, as to
their relevance, the Defense has always been told that for such an
objection the time had not yet come for the Defense. . .
THE PRESIDENT: I beg your pardon, Dr. Stahmer, but you have
misunderstood. The Defense have never been told that objections to the
admissibility of documents could be left over until later. Every
objection to the admissibility of a document has been dealt with at the
time. Observations upon the weight of the document are to be dealt with
now, during the course of the Defense. I don’t mean today, but during
the course of the Defense.
There is a fundamental distinction between the admissibility of a
document and the weight of a document, and all questions of
admissibility have been dealt with at the time.
DR. STAHMER: Mr. President, I fully understood that distinction. Nor did
I want to say that objections against admissibility were turned down,
but rather objections against relevancy.
THE PRESIDENT: Objections to the relevancy of documents—that is to say,
their admissibility—that is the governing consideration under this
Charter as to the admissibility of documents. If they are relevant, they
are admissible. That is what the Charter says. And any objection which
has been made to documents or to evidence by defendants’ counsel has
been heard by the Tribunal and has been decided at the time.
Dr. Stahmer, the Tribunal wishes me to point out to the defendants’
counsel that they have had long notice of this form of procedure, long
notice that under Article 24(d) they were going to be called upon to
specify or name their witnesses and the documents which they wish to
produce, and to state what the relevancy of the witnesses and the
documents would be.
It seems to the Tribunal obvious that that procedure is really necessary
when one remembers that it is for the Tribunal, with very great
difficulty and at considerable expense, to find these witnesses and to
bring them to Nuremberg, and to find the documents, if possible, and to
bring them to Nuremberg.
Now, as to your or to Dr. Horn’s objections to the procedure which has
been adopted with reference to the Prosecution, it is open to
defendants’ counsel at any time, if they wish to do so, to apply to
strike from the record any document which they think ought not to have
been admitted. One of his objections, or possibly your objection,
appeared to be that defendants’ counsel have not had sufficient time to
consider whether a particular document or a particular witness was
relevant, and therefore admissible. You have had ample time now to
consider the point and if now you wish to apply to strike out any
document or to strike out any evidence, you will make that application
in writing and the Tribunal will consider it.
As I have said, the object of the procedure is to help the defendants
and their counsel. And it is a necessary procedure because the
defendants are unable, naturally, and defendants’ counsel are unable,
naturally, to procure the attendance of witnesses here in Nuremberg, and
in some cases to procure the production of documents.
In order that we should do so, on their behalf, it is necessary that we
should know whom they want to have produced here, what documents they
want to have produced here; and, in order that time should not be wasted
and money should not be unduly wasted, it is necessary to know whether
the witnesses and the documents have any shadow of relevancy to the
issues raised.
DR. STAHMER: Then I shall begin with the naming of those witnesses whose
interrogation before the Tribunal I consider necessary.