SIR DAVID MAXWELL-FYFE: Dr. Von Rohrscheidt seems to have an unsigned
report of the 14th.
THE PRESIDENT: Dr. Von Rohrscheidt, have you got the four reports which
are really before us? I will read them out to you.
The first one I have got in my hand is the 19th of November 1945, by
Lord Moran, Dr. Rees, and Dr. Riddoch. Have you got that? That is the
English report.
DR. VON ROHRSCHEIDT: I only have this report in the German translation
and not in the original.
THE PRESIDENT: But if you have got it in the German translation, that is
quite good enough.
Then the next one is dated the 20th of November 1945, by Dr. Jean Delay,
Dr. Nolan Lewis, Dr. Cameron, and Colonel Paul Schroeder. Have you got
that?
DR. VON ROHRSCHEIDT: Yes, I have that.
THE PRESIDENT: That is two.
Then, the next one is dated the 16th of November, and is signed by three
Soviet doctors and one French doctor, Dr. Jean Delay, dated the 16th of
November. Have you got that?
DR. VON ROHRSCHEIDT: Yes.
THE PRESIDENT: Then there is another report of the 17th, signed by the
three Soviet doctors alone, without the French doctor.
DR. VON ROHRSCHEIDT: Yes, I have that one.
THE PRESIDENT: Now, will you refer us to the passages in those reports
upon which you rely?
There is another report by two English doctors which is practically the
same. That is the one I have already referred to, that does not contain
the name of Lord Moran on it, dated the 19th of November.
DR. VON ROHRSCHEIDT: Yes, I think I can shorten the proceedings by
saying that in my opinion all the reports surely agree—even if not in
the same words—that the ability of the accused Hess to defend himself,
to face a witness, and to understand details of the evidence is
impaired. And under this assumption that all the medical opinions agree
on this point I, as the defendant’s counsel, must come to the conclusion
that the defendant is unable to plead. The reduced capacity of the
defendant to defend himself, which is caused by his mental defect,
recognized by all experts as amnesia and described as a mental condition
of a mixed character, but more than mere mental abnormality, must be
accepted as meaning that he is unfit to plead.
I am of the opinion that the conclusion reached by the medical experts
implies that, in the way the question was formulated, the Defendant Hess
cannot adequately defend himself on account of this mental defect,
namely, amnesia. The medical reports also state that the defendant is
not insane. That is not the important point at the moment because in my
view it can already be convincingly stated, on the basis of the reports
as such that on account of his reduced mental ability the defendant is
not in a condition to understand the entire proceedings.
I myself believe—and I think that my opinion on this agrees with the
medical opinion—that the defendant is completely incapable of making
himself understood in a manner expected from a mentally normal
defendant.
In view of my own experience with him I consider that the defendant is
incapable of grasping the charges which the Prosecution will bring
against him to the extent required for his defense, since his memory is
completely impaired. On account of his loss of memory he neither
remembers events of the past nor the persons with whom he associated in
the past. I am, therefore, of the opinion that defendant’s own claim
that he is fit to plead is irrelevant. And since, as the medical report
says, his condition cannot be rectified within appreciable time, I think
that the proceedings against him should be suspended.
Whether the narco-synthesis treatment suggested by the medical experts
will bring about the desired effect is uncertain. It is also uncertain
within what period of time this treatment would result in the complete
recovery of the defendant’s health. The medical reports accuse the
defendant of deliberately refusing to undergo such medical treatment.
The defendant himself, however, tells me that, on the contrary, he would
readily undergo treatment but that he refuses the suggested cure because
firstly, he believes that he is completely sound and fit to plead, that
therefore this cure is unnecessary; secondly, because he disapproves on
principle of such violent intervention, and finally because he thinks
that such an intervention at this time might render him unfit to plead
and to take part in the proceedings—and that is the very thing he
wishes to avoid.
If, however, the defendant is incapable of pleading, or of defending
himself, as is stated in the medical report, and if this condition is
likely to last for a long time, then in my opinion, a basis exists for
the temporary suspension of the proceedings against him.
Coming now to my second application:
If the Tribunal accepts my arguments and declares the Defendant Hess
unfit to plead, then, according to Article 12 of the Charter, it would
be possible to proceed against the defendant _in absentia_. Article 12
provides that the Tribunal has the right to proceed against a defendant
in his absence if he cannot be found, or if for other reasons the
Tribunal deems it necessary in the interests of justice. The question
then is whether it is in the interest of justice to proceed against the
defendant _in absentia_. In my opinion it is incompatible with real
justice to proceed against the defendant if he is prevented by his
impaired condition—namely, amnesia which is recognized by all the
medical experts—from personally safeguarding his rights by attending
the proceedings.
In a trial in which charges being brought against the defendant are so
grave that they might entail the death penalty, it seems to me
incompatible with real justice that the defendant should on account of
his impaired condition, be deprived of the rights granted him under
Article 16 of the Charter. This Article of the Charter makes provisions
for the defendant’s own defense, for the opportunity of giving evidence
personally, and for the possibility of cross-examining every witness
called by the Prosecution. All this is of such great importance for the
Defense, that exclusion from any of these rights would, in my opinion,
constitute a grave injustice to the defendant. A trial _in absentia_
could therefore not be regarded as a fair trial.
If as I have stated the defendant’s capacity to defend himself is
reduced for the reasons agreed on and to the extent established in the
reports of the experts, then he is also not in a position to give his
counsel the information necessary for a defense conducted in the
defendant’s absence.
Since the Charter has clearly laid down these rights of the defendant’s,
it seems unjust to me as defense counsel, that the defendant should be
deprived of them because his illness prevents him from personally
safeguarding them by attending the proceedings.
The provisions in Article 12 of the Charter for trying a defendant in
his absence must surely be looked upon as applying in an exceptional
case of a defendant who endeavors to evade the proceedings although able
to plead. But the Defendant Hess has told me, and he will probably
emphasize it to the Tribunal, that he wishes to attend the proceedings;
that he will therefore consider it particularly unjust if the
proceedings are conducted in his absence, despite his good will, despite
the fact that he wishes to attend them.
I therefore request the Tribunal, if it declares the defendant unfit to
plead, that it will not proceed against him in his absence.
And now my third application:
If the Tribunal considers the Defendant Hess fit to plead, thereby
overruling my opinion and what I think is also the conclusion of the
medical reports, I request that additional medical experts be consulted
to re-examine this question since as far as I saw from the reports, each
of the doctors examined and talked to the defendant for only a few hours
on one day, one of them on two days. In a case of such outstanding
importance as this one I think it would be necessary to place the
defendant into a suitable hospital to obtain a reliable picture based on
several weeks of examination and observation. The experts themselves
are, obviously, not quite sure whether Defendant Hess beyond his
inability to plead, is insane or at least not of sound mind. That is
clear from the fact that all the medical statements end by emphasizing
that if the Tribunal does not consider the defendant unfit to plead, he
should again be subjected to a psychiatric examination.
I think therefore that this suggestion of the psychiatrists who have
already examined him should be followed, and I request, that if the
Tribunal considers the defendant fit to plead another exhaustive medical
examination be authorized.
THE PRESIDENT: I want to ask you one question: Is it not consistent with
all the medical opinions that the defendant is capable of understanding
the course of the proceedings, and that the only defect from which he is
suffering is forgetfulness about what happened before he flew to
England?
DR. VON ROHRSCHEIDT: Mr. President, it is true that the experts consider
the Defendant Hess capable of following the proceedings. But, on the
other hand, in answer to the questions put to them, they emphasize that
the defendant is not capable of defending himself. The Tribunal asked
the experts to give their opinion on the question—may I read it again,
under the second point: “Is the defendant sane or not?” The question was
answered in the affirmative by all experts, but that does not exclude
the fact that the defendant might, at this moment, be incapable of
pleading. The Tribunal’s question was this: “. . . the Tribunal wishes
to be advised whether the defendant is of sufficient intellect to
comprehend the course of the proceedings of the Trial so as to make a
proper defense, to challenge a witness, to whom he might wish to object,
and to understand the details of the evidence.” This is the wording of
the translation in my possession. In my view this question is answered
by the experts to the effect that the defendant is incapable of
adequately defending himself, of rejecting the testimony of a witness
and of comprehending evidence submitted. That, as I see it, is the
conclusion of all the experts’ reports with the exception of the one
signed by the Russians.
May I refer to the report signed by the American Delegation, dated 20
November 1945, it is stated there under Number 1:
“We find as a result of our examinations and investigations,
that Rudolf Hess is suffering from hysteria characterized in
part by loss of memory.”
Now comes the passage to which I should like to draw the Tribunal’s
attention:
“The loss of memory is such that it will not interfere with his
comprehension of the proceedings, but it will interfere with his
response to questions relating to his past and will interfere
with his undertaking his defense.”
This report thus establishes that Hess’ defense will be impaired. And I
believe that if the experts go so far as to admit that his memory is
affected, then one may assume that to a great degree he is not fit to
plead. The report of the Soviet-French representatives, signed by the
Russian professors and by Professor Jean Delay goes even further in
stating that, although the defendant is able to comprehend all that
happens around him, the amnesia affects his capacity to defend himself
and to understand details of the past and that it must be considered an
impediment. As I see it, the report clearly means that, although the
defendant is not insane, and although he can follow the proceedings as
such, he cannot defend himself as he is suffering from a form of amnesia
which is based on hysteria and which can be believed.
THE TRIBUNAL (Mr. Biddle): Do you accept the opinion of the experts?
DR. VON ROHRSCHEIDT: Yes.
THE TRIBUNAL (Gen. Nikitchenko): I should like to draw the attention of
Defense Counsel to the fact that he has referred inaccurately to the
decision reached by the Soviet and French experts. He has rendered this
decision in a free translation which does not correspond to the original
contents.
DR. VON ROHRSCHEIDT: May I ask whether the report of November 16 is
meant? May I once more read what my translation says? I can only refer
to the translation of the English text that was given to me; this
translation was made in the Translation Division of the Secretariat and
handed to me.
May I repeat that the translation in my possession refers to the report
of November 16, 1945 signed by members of the Soviet Delegation and by
Professor Delay of Paris.
Under point 3 of this report the following is stated:
“At present he is not insane in the strict sense of the word.
His amnesia does not prevent him completely from understanding
what is going on around him but it will interfere with his
ability to conduct his defense and to understand details of the
past which would appear as factual data.”
That is the text which I have here before me in the authentic German
version.
THE PRESIDENT: That is all we wish to ask you. Does the Chief Prosecutor
for the United States wish to address the Tribunal?
MR. JUSTICE JACKSON: I think General Rudenko would like to open
discussion, if that is agreeable.
THE PRESIDENT: Yes. Are you going on?
GEN. RUDENKO: In connection with the statement made by counsel for the
defendant, on the results of the evidence of Hess’ certified
psychological condition, I consider it essential to make the following
declaration:
The defendant’s psychological condition was confirmed by experts
appointed by the Tribunal. These experts came to the unanimous
conclusion that he is sane and responsible for his actions. The Chief
Prosecutors, after discussing the results of the decision and acting in
accordance with the order of the Tribunal, make the following reply to
the inquiry of the Tribunal:
First of all, we do not question or doubt the findings of the
commission. We consider that the Defendant, Rudolf Hess, is perfectly
able to stand his trial. This is the unanimous opinion of the Chief
Prosecutors. I consider that the findings of the examinations by the
experts are quite sufficient to declare Hess sane and able to stand his
trial. We therefore request the Tribunal to make the requisite decision
this very day.
In stating his reasons for the postponement of the proceedings or for
the settlement of the defendant’s case, defense counsel referred to the
decision of the experts. I must state, however, that this decision—and
I do not know on what principle it was reached—was quoted quite
inaccurately. In the summary submitted by defense counsel, it is pointed
out that the mental condition of the Defendant Hess does not permit him
to defend himself, to reply to the witnesses or to understand all the
details of the evidence. This is contrary to the decision submitted by
the experts in their statement. The final conclusion of the experts
definitely states that his loss of memory would not entirely prevent him
from understanding the trial; it would, however, make it impossible for
him to defend himself and to remember particulars of the past. I
consider that these particulars, which Hess is unable to remember, would
not unduly interest the Tribunal. The most important point is that
emphasized by the experts in their decision, a point which they
themselves never doubted and which, incidentally, was never doubted by
Hess’ defense counsel, namely—that Hess is sane; and in that case Hess
comes under the jurisdiction of the International Tribunal. On the basis
of these facts I consider that the application of the Defense should be
denied as being unsubstantiated.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, it has been
suggested that I might say just a word, and as shortly as the Tribunal
desires, as to the legal conceptions which govern the position with
which the Tribunal and this defendant are placed at the present time.
The question before the Tribunal is whether this defendant is able to
plead to the Indictment and should be tried at the present time.
If I might very briefly refer the Tribunal to the short passages in the
report, which I submit are relevant, it might be useful at the present
time. According to the attachments to the order, which I have, the first
report is that signed by the British doctors on the 19th November 1945.
And in that report I beg the Tribunal to refer to Paragraph 3, in which
the signatories say that at the moment he is not insane in the strict
sense. His loss of memory will not entirely interfere with his
comprehension of the proceedings, but it will interfere with his ability
to make his defense and to understand details of the past, which arise
in evidence.
The next report is that signed by the American and French doctors, and
in Paragraph 1, the Tribunal will see:
“We find, as a result of our examinations and investigations,
that Rudolf Hess is suffering from hysteria characterized in
part by loss of memory. The nature of this loss of memory is
such that it will not interfere with his comprehension of the
proceedings, but it will interfere with his response to
questions relating to his past and will interfere with his
undertaking his defense.”
If the Tribunal will proceed to the third report, signed by the Soviet
doctors, at the foot of Page 1 of the copy that I have there is a
paragraph beginning “Psychologically . . .” which I submit is of
importance:
“Psychologically, Hess is in a state of clear consciousness;
knows that he is in prison at Nuremberg, under indictment as a
war criminal; has read, and, according to his own words, is
acquainted with the charges against him. He answers questions
rapidly and to the point. His speech is coherent, his thoughts
formed with precision and correctness and they are accompanied
by sufficient emotionally expressive movements. Also, there is
no kind of evidence of paralogism.
“It should also be noted here, that the present psychological
examination, which was conducted by Lieutenant Gilbert, Ph. D.,
bears out the testimony, that the intelligence of Hess is normal
and in some instances, above the average. His movements are
natural and not forced.”
Now, if I may come to the next report, I am sorry—the report which is
signed by the three Soviet doctors and Professor Delay of Paris, dated
the 16th, which is the last in my bundle, that says in Paragraph 3:
“At present, he is not insane in the strict sense of the word.
His amnesia does not prevent him completely from understanding
what is going on around him, but it will interfere with his
ability to conduct his defense and to understand details of the
past, which would appear as factual data.”
I refer, without quoting, because I do not consider that they are of
such importance on this point, to the explanation of the kind and reason
of the amnesia which appeared in the Soviet report, dated 17 November,
under the numbers 1, 2, and 3 at the end of the report. But I remind the
Tribunal that all these reports unite in saying that there is no form of
insanity.
In these circumstances, the question in English law—and I respectfully
submit that to the consideration of the Tribunal as being representative
of natural justice in this regard—is, in deciding whether the defendant
is fit to plead, whether the defendant be insane or not, and the time
which is relevant for the deciding of that issue is at the date of the
arraignment and not at any prior time.
Different views have been expressed as to the party on whom the onus of
proof lies in that issue, but the later, and logically the better view,
is that the onus is on the Defense, because it is always presumed that a
person is sane until the contrary is proved.
Now, if I might refer the Court to one case which I suspect, if I may so
use my mind, has not been absent from the Court’s mind, because of the
wording of the notice which we are discussing today, it is the case of
Pritchard in 7 Carrington and Pike, which is referred to in Archibolds’
_Criminal Pleading_ in the 1943 edition, at Page 147.
In Pritchard’s case, where a prisoner arraigned on an indictment for
felony appeared to be deaf, dumb, and also of non-sane mind, Baron
Alderson put three distinct issues to the jury, directing the jury to be
sworn separately on each: Whether the prisoner was mute of malice, or by
the visitation of God; (2) whether he was able to plead; (3) whether he
was sane or not. And on the last issue they were directed to inquire
whether the prisoner was of sufficient intellect to comprehend the
course of the proceedings of the trial so as to make a proper defense,
to challenge a juror, that is, a member of the jury, to whom he might
wish to object and to understand the details of the evidence; and he
directed the jury that if there was no certain mode of communicating to
the prisoner the details of the evidence so that he could clearly
understand them, and be able properly to make his defense to the charge
against him, the jury ought to find that he was not of sane mind.
I submit to the Tribunal that the words there quoted, “to comprehend the
course of the proceedings of the trial so as to make a proper defense,”
emphasize that the material time, the only time which should be
considered, is whether at the moment of plea and of trial the defendant
understands what is charged against him and the evidence by which it is
supported.
THE PRESIDENT: And does not relate to his memory at that time.
SIR DAVID MAXWELL-FYFE: That is, I respectfully agree with Your
Lordship, it does not relate to his memory. It has never, in English
jurisprudence, to my knowledge, been held to be a bar either to trial or
punishment, that a person who comprehends the charge and the evidence
has not got a memory as to what happened at the time. That, of course,
is entirely a different question which does not arise either on these
reports or on this application as to what was the defendant’s state of
mind when the acts were committed. No one here suggests that the
defendant’s state of mind when the action charged was committed was
abnormal, and it does not come into this case.
THE PRESIDENT: He will, it seems to me, be able to put forward his
amnesia as part of his defense.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord.
THE PRESIDENT: And to say, “I should have been able to make a better
defense if I had been able to remember what took place at the time.”
SIR DAVID MAXWELL-FYFE: Yes, My Lord. If I might compare a very simple
case within my experience, and I am sure within the experience of
members of the Court where this has arisen scores of times in English
courts, after a motor accident when a man is charged with manslaughter
or doing grievous bodily harm, he is often in the position of saying,
“Because of the accident my memory is not good or fails as to the acts
charged.” That should not, and no one has ever suggested that it could,
be a matter of relief from criminal responsibility. I hope that the
Tribunal will not think that I have occupied too much of their time, but
I thought it was useful just to present the matter on the basis of the
English law as I understand it.
THE TRIBUNAL (Mr. Biddle): Sir David, so I can understand you, one of
the tests under the Pritchard case is whether or not the defendant can
make a proper defense, is it not?
SIR DAVID MAXWELL-FYFE: With the greatest respect, you have got to read
that with the preceding words, which limit it. They say, “Whether a
prisoner was of sufficient intellect to comprehend the course of the
proceedings of the trial so as to make a proper defense.”
THE TRIBUNAL: (Mr. Biddle): And would you interpret that to mean that
this defendant could make a proper defense under the procedure of the
trial if you also find as a fact, which you, I think, do not dispute,
and which you quoted in fact, that although not insane—now I quote that
he did not understand, or rather:
“His amnesia does not prevent him completely from understanding
what is going on around him, but it will interfere with his
ability to conduct his defense, and understand details of the
past. . . .”
You don’t think that is inconsistent with that finding?
SIR DAVID MAXWELL-FYFE: No, I am submitting it is not. It is part of his
defense, and it may well be, “I don’t remember anything about that at
all.” And he could actually add to that, “From my general behavior or
from other acts which I undoubtedly have done, it is extremely unlikely
that I should do it.” That is the defense which is left to him. And he
must take that defense. That is my submission.
THE TRIBUNAL (Mr. Biddle): So even if we assume, for the purpose of
argument, that his amnesia is complete, and that he remembers nothing
that occurred before the indictment though now understanding the
proceedings, you think he should be tried?
SIR DAVID MAXWELL-FYFE: I submit he should be tried. That is my
submission as to the legal position. I especially didn’t discuss, of
course, as the Tribunal will appreciate—I didn’t discuss the quantum of
amnesia here because I am putting that to the Tribunal. I wanted to put
before the Tribunal the legal basis on which this application is
opposed. Therefore I accept readily the extreme case which the learned
American judge has put to me.
THE PRESIDENT: M. Donnedieu de Vabres would like to ask a question.
THE TRIBUNAL (M. De Vabres): I would like to know in what period the
real amnesia of Hess applies. He pretends to have forgotten facts which
occurred more than 15 days ago. It may be simulation or, as they say in
the report, it may be real simulation. I would like to know if according
to the reports Hess has really lost his memory of facts which are
referred to in the Indictment, facts which pertain to the past covered
by the Indictment.
SIR DAVID MAXWELL-FYFE: The facts which are included in the Indictment,
the explanation that the doctors give as to his amnesia, is most clearly
set out in these paragraphs of the Soviet report. That is the third
report dated the 17th of November 1945, Page 2, and the numbered
paragraphs 1 to 3. They say first:
“In the psychological personality of Hess there are no changes
typical of the progressive schizophrenic disease”—that is,
there are no changes typical of a progressive double personality
developing.—“and therefore, the delusions, from which he
suffered periodically while in England, cannot be considered as
manifestations of a schizophrenic paranoia, and must be
recognized as the expression of a psychogenic paranoic reaction,
that is, the psychologically comprehensible reaction”—now I ask
the learned French judge to note the next sentence—“of an
unstable personality to the situation (the failure of his
mission, arrest, and incarceration). Such is the interpretation
of the delirious statements of Hess in England as is bespoken by
their disappearance, appearance, and repeated disappearance
depending on external circumstances which affected the mental
state of Hess.”
Paragraph 2:
“The loss of memory by Hess is not the result of some kind of
mental disease but represents hysterical amnesia, the basis of
which is a subconscious inclination towards self-defense”—now I
ask the learned French judge to note again the next words—“as
well as a deliberate and conscious tendency towards it. Such
behavior often terminates when the hysterical person is faced
with an unavoidable necessity of conducting himself correctly.
Therefore the amnesia of Hess may end upon his being brought to
trial.”
Paragraph 3:
“Rudolf Hess, prior to his flight to England, did not suffer
from any kind of insanity, nor is he now suffering from it. At
the present time he exhibits hysterical behavior with signs
of”—and again I ask the learned French judge to note this
point—“with signs of a conscious-intentional (simulated)
character, which does not exonerate him from his responsibility
under the Indictment.”
The last sentence is a matter for the Tribunal. But in these
circumstances it would be impossible to say that the amnesia may
continue to be complete or is entirely unconscious. That is deliberately
avoided by the learned doctors. Therefore the Prosecution do not say
that that is the case, but they do say that even if it were complete,
the legal basis which I have suggested to the Court is a correct one for
action in this matter.
THE PRESIDENT: Thank you, Sir David. Would Dr. Rohrscheidt like to add
anything by way of reply? One moment. Mr. Justice Jackson, I gathered
from what Sir David said that he was speaking on behalf of you and of
the French Prosecution, is that correct?
MR. JUSTICE JACKSON: I intend to adopt all that he said. I would only
add a few more words, if I may.
THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has something to
say first of all.
MR. JUSTICE JACKSON: I adopt all that has been said, and will not
repeat. We have three applications before the Tribunal. One is for
another examination. I will spend very little time on that. I think that
we have made, up to this point with this examination, medical history in
having seven psychiatrists from five nations who are completely in
agreement. An achievement of that kind is not likely to be risked.
The only reason suggested here is that a relatively short time has been
devoted to the examination, but I suggest to Your Honors that that is
not the situation, because there have been available the examinations
and observations and medical history during the incarceration of Hess in
England, extending from 1941, and the reports of the psychiatrists of
the American forces since he was brought to Nuremberg, and they all
agree. So that there is a more complete medical history in this case
than in most cases.
The next application was as to trial in absentia. I shall spend no time
on that, for there seems to be no occasion for trying Hess _in absentia_
if he shouldn’t be tried in his presence. If he is unable to be tried,
why, he simply shouldn’t be tried at all. That is all I can see to it.
I would like to call your attention to the one thing in all this, the
one statement on which any case can be made here for postponement. That
is the statement with which we all agree: That Hess’ condition will
interfere with his response to questions relating to his past and will
interfere with his undertaking his defense. Now, I think it will
interfere with his defense if he persists in it, and I am sure that
counsel has a very difficult task. But Hess has refused the treatment,
and I have filed with the court the report of Major Kelly, the American
psychiatrist, in whose care he was placed immediately after he was
brought here.
He has refused every simple treatment that has been suggested. He has
refused to submit to the ordinary things that we submit to every
day—blood tests, examinations—and says he will submit to nothing until
after the trial. The medication which was suggested to bring him out of
this hysterical situation—every psychiatrist agrees that this is simply
an hysterical situation if it is genuine at all—was the use of
intravenous drugs of the barbital series, either sodium amytal or sodium
phenotal, the ordinary sort of sedative that you perhaps take on a
sleepless night. We did not dare administer that, to be perfectly
candid, against his objection, because we felt if that, however
harmless—and in over a thousand cases observed by Major Kelly there
have been no ill effects although some cases are reported where there
have—we felt that if should he be struck by lightning a month afterward
it would still be charged that something that we had done had caused his
death; and we did not desire to impose any such treatment upon him.
But I respectfully suggest that a man cannot stand at the bar of the
Court and assert that his amnesia is a defense to his being tried, and
at the same time refuse the simple medical expedients which all agree
might be useful.
He is in the volunteer class with his amnesia. When he was in England,
as the reports show, he is reported to have made the statement that his
earlier amnesia was simulated. He came out of this state during a period
in England, and went back into it. It is now highly selective. That is
to say, you can’t be sure what Hess will remember and what he will not
remember. His amnesia is not of the type which is a complete blotting
out of the personality, of the type that would be fatal to his defense.
So we feel that so long as Hess refuses the ordinary, simple expedients,
even if his amnesia is genuine, that he is not in a position to continue
to assert that he must not be brought to trial. We think he should be
tried, not in absentia, but that this trial should proceed.
THE TRIBUNAL (Mr. Biddle): Isn’t Hess asserting that he wants to be
tried?
MR. JUSTICE JACKSON: Well, I don’t know about that. He has been
interrogated and interrogated by us, interrogated by his co-defendants,
and I wouldn’t attempt to say what he would now say he wants. I haven’t
observed that it is causing him any great distress. Frankly, I doubt
very much if he would like to be absent, but I wouldn’t attempt to speak
for him.
THE PRESIDENT: Does M. Dubost wish to add anything?
[_M. Dubost indicated that he did not._]
DR. VON ROHRSCHEIDT: May I just say a few words to the Tribunal to
explain my point of view once more?
Firstly, it is a fact that the Defendant Hess, according to the
unanimous reports of the doctors, is not insane, that his mental
faculties are not impaired.
Secondly, as all reports agree, the Defendant Hess is suffering from
amnesia. The reports vary on whether this amnesia is founded on a
pathological, a psychogenic, or hysterical basis, but they agree that it
exists as an unsound mental condition. The defendant is therefore, not
insane, but has a mental defect. Legally, therefore, he cannot claim
that he is not to be held responsible for his actions; for at the time
when the actions with which he is charged were committed, he was
certainly not insane, and consequently can be held responsible. It is a
different question, however, at least according to German law, whether
the defendant is at this moment in a position to follow the proceedings
of a trial, that is, whether he is fit to plead. And on the basis of the
medical reports which I quoted, I think this question should be answered
negatively. He is not fit to plead.
I admit that doubts are possible, that the Tribunal may have doubts
whether the answers of the experts are sufficient to establish that the
defendant’s ability to plead is actually impaired, that he cannot, as
the Tribunal perhaps deliberately phrased it, defend himself adequately.
I think that perhaps the emphasis should be on this last point. It is my
opinion that the amnesia—this loss of memory confirmed by all
experts—is such that the defendant is unable to make an adequate
defense. It may be, of course, that he can defend himself on one point
or another, that he can raise objections on some points, and that he may
be able to follow the proceedings as such. But his defense could not be
termed adequate in the sense in which the defense of a person in full
possession of his mental faculties would be adequate.
May I add one word. I already mentioned that the defendant told me that
he would like to attend the proceedings, as he does not consider himself
unfit to plead, but that, in the opinion of the Defense, is quite
irrelevant. It is a question which the Tribunal must examine, and in
which the personal opinion of the defendant is of no account.
With regard to the conclusion which the American prosecutor draws from
the defendant’s refusal to undergo the narco-synthesis treatment
suggested by the doctors—that _is_ not a question of truculence. He
refused it only because, as he assured me, he was afraid that the
intravenous injections at this particular moment might incapacitate him
in his weakened condition and make it impossible for him to follow the
proceedings; he wants, however, to attend the trial. He refused also
because, as I have already mentioned, he himself thinks that he is sound
and therefore says, “I do not need any intravenous injections, I shall
recover in the course of time.” The defendant also told me that he has
an abhorrence of such treatments. I know that to be true, because in the
unhappy times of the National Socialist regime, he was always in favor
of natural remedies. He even founded the Rudolf Hess Hospital in
Dresden, which uses natural and not medical remedies.
MR. JUSTICE JACKSON: May I make one observation, Your Honors?
THE PRESIDENT: Yes.
MR. JUSTICE JACKSON: The argument illustrates the selectivity of the
memory of which I spoke to you. Hess apparently can inform his counsel
about his attitude toward this particular matter during the National
Socialist regime. His counsel is able to tell us how he felt about
medical things during the National Socialist regime, but when we ask him
about anything in which he participated that might have a criminal
aspect, the memory becomes bad. I hope that the Court has not overlooked
the statement of the matters that he does well recollect.
DR. VON ROHRSCHEIDT: May I make a correction?
THE PRESIDENT: It is unusual to hear counsel in a second reply, but as
Mr. Justice Jackson has spoken again we will hear what you have to say.
DR. VON ROHRSCHEIDT: I merely want to say that I was misunderstood. It
was not the defendant who told me that he always favored natural
remedies; I said that from my own knowledge. I said it from my own
experience to show that he has an instinctive aversion for medical
interference. My remark was not based on the memory of the defendant,
but on knowledge of my own.
THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if you consider
it proper, that the Defendant Hess should state what his views on this
question are.
DR. VON ROHRSCHEIDT: As his defense counsel, I have certainly no
objection, and in my opinion it is the defendant’s own wish to be heard.
The Tribunal would then be able to gain a personal impression of his
condition.
THE PRESIDENT: He can state whether he considers himself fit to plead
from where he is.
HESS: Mr. President, I would like to say this. At the beginning of the
proceedings this afternoon I gave my defense counsel a note saying that
I thought the proceedings could be shortened if I would be allowed to
speak. I wish to say the following:
In order to forestall the possibility of my being pronounced incapable
of pleading, in spite of my willingness to take part in the proceedings
and to hear the verdict alongside my comrades, I would like to make the
following declaration before the Tribunal, although, originally, I
intended to make it during a later stage of the trial:
Henceforth my memory will again respond to the outside world. The
reasons for simulating loss of memory were of a tactical nature. Only my
ability to concentrate is, in fact, somewhat reduced. But my capacity to
follow the trial, to defend myself, to put questions to witnesses, or to
answer questions myself is not affected thereby.
I emphasize that I bear full responsibility for everything that I did,
signed or co-signed. My fundamental attitude that the Tribunal is not
competent, is not affected by the statement I have just made. I also
simulated loss of memory in consultations with my officially appointed
defense counsel. He has, therefore, represented it in good faith.
THE PRESIDENT: The trial is adjourned.
[_The Tribunal adjourned until 1 December 1945 at 1000 hours._]