I call upon Dr. Stahmer.

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.

Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08 · 第 81 / 127 题