Now, I think we are untitled to take judicial notice of the judgment of the INT. Therefore, just as a practical matter, why wouldn't it serve the same purpose to have this document out of the record to eliminate the practical difficulties referred to?
MR. SRIECHER:Well, Judge Hebert, you are asking me a question which I feel somewhat inadequate to answ or on short notice. I think when any motion reaches so basically the part of many of the issues in this case it is one of those places which cause the Tribunal to require that motion be put in writing. In other words, I think this motion goes a lot further than what appears on the face of it. I had no notice of this in advance. I don't ever have the document in the room at the or sent time. It, could well be that by hindside as the Prosecution views the matter now the findings of the INT concerning the whole Czecheslavaldian complex would be adequate but we did feel that the basic document Fall Gruen itself would be helpful to your Honors in measuring to conduct of those defendants and reigning the events of these times and it was for that reason at the time after deliberation that we submitted it to you.
Now, if this basic Matter is to be passed upon in tins way without a written motion and without prior notice to us -
THE PRESIDENT:We have never required the filing of a written objection to the offer of a document in evidence and, as counsel for the defence has quoted the record, a reservation was made which the Tribunal was willing to pemit because of the lengtt of the document at the time.
Now, if that is correct, then counsel for defense is within his rights at any time to renew that objection and now would seem to be a very appropriate time to pass on it because there is a witness on the stand which defense counsel has indicated he desires to interregate if this document remains in the evidence. It is a sizable document and is important from the standpoint of the Tribunal because if this is to be the proper subject of an evidentiary showing on behalf of the defence it may take a considerable time to hear the defense with respect to this document.
Now, it seems to me that as to the events that may be deemed more or less historical now, as to the aggressive objective with reference to Czechoslavakia, as to the existence of a plan of certain military and political leaders to accomplish that, as to the timing of it and the circumstances under which it occurred, this Tribunal does not need to waste any time on that; and, as Judge Hebert has suggested, after all, the IMT judgment, if it is as full as has been indicated, would soon to answer the question, which brings us back to the big question with which this Tribunal is concerned and that is whether or not any of these defendants had Knowledge or participated directly or indirectly in the conception of that plan or in the execution of that with appreciation of the significance of their actions. That is the ultimate that this Tribunal is called upon to try.
Now, if we can reduce that inquiry down to a basis of what has been determined by judicial determination on the part of the INI rather than to go into all the details of this very lengthy document, the Tribunal should do it and is much concerned in saving our time to avoid that problem.
DR. SIEMERS:Your Honors, nay I reply to Mr. Sprecher'a statement as briefly as possible? The comparison between this document and excerpts from the IMT judgment seems not practical to me. The IMT judgment furnishes bases and principles to be applied in this trial. In that case the Knowledge of the defendants is not concerned but in this document the knowledge is concerned.
Mr. Sprecher says that it has already been planned at an early stage not to observe the Munich agreement and he further states that the defendants knew this and that they participated in this non-observance. I admire this combination and deduction but it is only a deduction and a combination, Somewhere we must be given a fact from which this is to be proved.
Apart from the dates that I have already mentioned, I have found in the record where the proof was to be furnished, merely an indication on two separate occasions about Losantin. Losantin was really a probative agent for enemy attack. That is not a proof for aggressive war. But, Your Honors, how is it actual in practice. If a general states that an aggressive war is to be waged after he had discussions with Hitler and if he is then given the mission to give certain Wehrmacht orders to industry and if he then puts down in the document that for that purpose Losantin production must be increased, then, I ask Mr. Sprecher, does this General then inform industry when he gives the order, "We need that for our war"? That is not proof at all. The next point, Exhibit 563, which is a letter of Ter Meer to Brinkmann dated 11 October 1938. That is 11 days after the Munich agreement. Ter Meer points out quite correctly to the fact that the site on which the Buna Plant is to be constructed was a troop concentration area a fortnight ago, is that the proper place for a factory. Your Honors, if Ter Meer had known the further plans, then he wouldn't have had to ask. He asks and he pointed out facts which in the past everyone knew all over the world. He doesn't say in this document that that might lead one to conclude that he knew things that were not accessible to anyone from the newspapers. I do not believe that Mr. Sprecher is correct that he can bring a hundred documents to prove knowledge, but the most difficulty seems to be the following two points. Mr. Sprecher just now argues once more that Hitler intended to overrun Czechoslovakia. Simultaneously, there were certain economic steps taken by Farben, and that is to a proof. Your Honors, if such proof leads to conviction, then I believe it is useless to be a defense counsel. Because I cannot follow such trains of thought. One must show above and beyond that during those simultaneous economic steps which were only information given to the Ministry of Economics, something definite was known. It is not enough that the Ministry of Economics inquires with Farben. The most serious point, why I bring it up today,-I do this in order not to encumber this procedure unnecessarily. If the prosecution actually is to have proved that the defendants know of this document then I must bring counter evidence that the defendants did not know of its existence.
Your Honors, that means that I have to ask those high ranking officers who are still alive and who knew Fall Gruen to be witness and that I need all those gentlemen in the economics who might have known something, as witnesses and that I must bring them here as witnesses to ask them, "Did you inform my client about this point, about this document?" It was a military secret quite apart from the fact that the officer was not permitted to disclose the information. I have only that possibility. I fear that would prolong the trial very much.
PRESIDENT:Gentlemen, we are certainly vailing to hear you at reasonable lengths, but let's please try to keep within the framework of the recognized procedure. It is the objection of Dr. Siemers. He is entitled to the opening and the closing. The prosecution comes in between. We will now hear the prosecution and permit Dr. Siemers to conclude the argument, and then meet the situation as best we can. Go ahead, Mr. Sprecher.
MR. SPRECHER:Mr. President, in the meantime we have been able to have brought into the court room the transcript to which Dr. Siemers referred. Now, I won't go into what I think was the misstatements as to what we said at the time. I think that would be wasting time. But at that time, Your Honors said that on the state of the record at that time you couldn't be certain whether or not this was competent proof or not, "In other words, to pass on that we would have to take time out from the trial of this case, familiarize ourselves of the contents of this document, and then we would also be in a situation where the evidence as indicated by the prosecution might connect up one or more of the defendants." Now, we think we have brought in a lot of documents. I mentioned off-hand perhaps a hundred. I won't mention that with respect to Dr. Siemers' interpretation of the document already mentioned I have complete disagreement. Your Honors have to decide that point. I can only mention another document, for instance, Frank Fahle's statement about what Farben was going to do in the Sadetenland, and this was just during the time in question with respect to the Jews and what Farben was going to do to train people for later use in Czechoslovakia.
Apart from the Sudetenland. And I think I could with a little time mention a lot of other documents which I suppose Your Honors would be interested in measuring. As you stated, you would measure them at the time you ruled on the admissibility of this document, because Mr. Amchan had just stated before you made that rule that the prosecution had to some extent and in the future was going to offer documents which would show a close relationship with respect to many things shown in "Fall Grueh", and the conduct of these defendants.
PRESIDENT:It is now 10 minutes after 4. The Tribunal will be in recess for 10 minutes and will be back on the bench before the regular time of recess.
DR. SIEMERS:Mr. President, may I add one remark--may I only add one remark?
PRESIDENT:Yes.
DR. SIEMERS:The difficulty of presenting such documents lies not only in the perhaps superfluous examination of witnesses, but also in the encumberment of bringing counter evidence. To give you an example, I would have -
PRESIDENT:Well, please, we have your views on that subject, and I may say this is a subject which is not novel to the Tribunal. We have had some concern with it before.
(A recess was taken).
(AFTER RECESS)
THE MARSHAL:The Tribunal is again in session.
THE PRESIDENT:The Tribunal feels that it is fully advised as to the theories upon which counsel for the Defense and counsel for the Prosecution stand, with respect to this document.
We feel also that we are advised sufficiently with references to the state of this record, to pass upon this motion without further delay.
The motion of the Defense is sustained, and document 388 PS whichwas marked as the Prosecution's Exhibit 1041, is now stricken from the evidence in this case.
DIRECT EXAMINATION (Resumed) Dr. GUSTAV SCHLOTTERER BY DR. SIEMERS:
Q.Dr. Schlotterer, from Book 51, I would like to put a document before you which is on page 116 of the English Document Book, and on page 118 of the German.
This is Exhibit No. 1044, Document NI 3721. From this Document you can see, Dr. Schlotterer, that in connection with the Czechoslovakian affair, two gentlemen from Farben were suggested as Trustees with the approval of the Reich Ministry of Economics.
And now please turn to the next Document which is Exhibit 1045 a letter from Dr. von Schnitzler directed to a few gentlemen from Farben where it is said that the Reich Ministry of Economics and State Secretary Keppler have been consulted; that a trusteeship administration should be utilized for certain plants in Czechoslovakia. First of all, a preliminary question. Do you know anything about the details?
A.No, I did not work on this matter. It was an affair of the Chemicals Department of our Ministry.
Q.May I point out, Dr. Schlotterer that in this Exhibit No. 1045, the following sentence can be read:
"This program was accepted byboth the Ministry of Economics and the Foreign Organization of the Party, for which Mr. Schlotterer himself (from the Reichs Ministry of Economics) could take a stand , and they were all in agreement with it."
Please explain to me how this sentence is to be understood, if you were not an expert in the Reich Ministry of Economics.
A.I was not an expert in this Ministry, but cur Department was, of course, interested in these events, and therefore, participated in this case. I remember that the gentlemen from Farben approached me at the time and informed me by referring to a conversation with State Secretary Keppler , and that they said to me that they had suggested if the Sudetenland German region was annexed to Germany, that Commissioners be instituted in two plants of the Aussige Verein, in Czechoslovakia. The gentlemen asked me for my approval of this suggestion, and I promised my approval.
The gentlemen then said that perhaps a contradiction against this Farben plan might be expected from the foreign organization. That question was asked because previously in a few cases Farben had had serious difficulties and differences of opinion with the A.O., foreign organization that was arbitrated by me, -- at least I tried to arbitrate in these cases.
I answered these gentlemen at the time that I did not believe that the foreign organization would intervene actively in this case also, and I said that if that was done, I offered my services to set these things aright. That is the incident described by this sentence.
Q.I do not want to pursue this matter any further because the question of the foreign organization has been clarified already. As an official you had nothing to do with the foreign organization?
A.No.
Q.May I request you, in connection with this subject, to tell me, do you know from your end of the affairs, from the Reich Ministry of Economics, of any example about differences that arose, that you have just mentioned?
A.Yes, there were the Farben agencies in the Southeastern part of Europe which were directed by a Mr. Roth, who was a Jew. The foreign organization asked for the dismissal of Mr. Roth. Farben refused and they were supported by us in their refusal. As time went on the pressure of the political agencies became so strong that Farben had to give in. They then gave Mr. Roth a very honorable compensation and they made possible for him a living in Switzerland. That is one of the differences that I can remember.
THE PRESIDENT :Counsel, it is the hour of adjournment, and we will suspend at this time.
The Tribunal will be in recess until 9:30 tomorrow morning.
(Tribunal in recess until 0930 hours Tuesday Morning, January 27 1948)
official Transcript of Military Tribunal VI in the matter of the United States of America against Cark Krauch, et al, sitting at Nurnberg, Germany, 27 January 1948, 0930, Justice Curtis Go Shake, presiding.
THE MARSHAL:The Honorable, the Judges of Military Tribunal VI. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESEDENT :You may report as to the defendants Mr. Marshal.
THE MARSHAL:May it please Your Honor, the defendants Haefliger and Schneider are absent from the Court Room.
THE PRESIDENT:The defendants Haeflinger and Schneider have been excused from attendance today on their own applications. Are there any preliminary announcements from the defense?
DR.ASCHENAUER: ( Counsel for Gattineua): May I take up a very brief moment of your time, Your Honors, with reference to my motion of 7 January 1948 and by pointing out the irrelevancy and inconclusiveness of the material presented by the prosecution against Dr. Gattineau, I may ask the Tribunal already now for a decision on my motion of 7 January 1948 which I made in writing. This motion says that the Tribunal should declare the evidence presented as insufficient to substantiate the charges brought against the defendant Gattineau and thus acquit the defendant Gattineau now already from guilt and to release him from imprisonment before the trial is conducted any further. For the reasons I may call your attention to the very detailed explanations in my motion of January 1948. May I also state that the prosecution replied on 14 January 1948 but that that reply does not bring anything new. As a result, I again replied in my brief of 23 January 1948.
THE PRESIDENT:The Tribunal wishes to assure counsel that we have not overlooked or forgotten his pending motion. We realize also that counsel is entitled to some consideration in having his motion passed upon. However, is that same connection we would remind counsel that there is also pending a moti n on behalf of each and all the defendants, particularly with reference to Counts I and V and a part of Count II of the indictment.
The Tribunal has already made its position clear with respect to that motion and that is that It would be placing the Tribunal in an unfortunate situation to ask it be pass upon any motion involving the sufficiency of evidence of the prosecution until the evidence of the prosecution is closed. What we have reference to is the fact that according to our records there are yet some seventeen witnesses for the prosecution who have not been cross-examined by counsel for the defense. We said early in this trial that the order in which the parties, plaintiff and defendants, presented their evidence was largely a matter in the discretion of counsel. The prosecution saw fit, to illustrate, to follow on the formula of the indictment. to offer its evidence by counts; the defense is offering its by individual defendants, both of which procedures are entirely proper and within the control of counsel -- at least to the extent that the Tribunal would be most reluctant to offer a suggestion in that regard. We also said that when counsel for the prosecution offered an affidavit it might supplement the affidavit by offering oral testimony. And until the evidence, as it relates to these affidavits, is finally closed, and the prosecutions case is finally concluded, the Tribunal does not wish to find itself in the unfortunate position of having passed upon the sufficiency of evidence and then having some additional evidence come in that might directly or indirectly bear upon the things which we have considered. That is the reason why we have, from time to time, postponed ruling on your motion and on the other motions to which I just referred. We are most anxious to conclude this cross-examination of these witnesses and just in a moment, after we have heard you, we shall have something further to say along that line. We do hope to have this record in shape at a very early date where the Tribunal will feel that with proper regard to its obligations, it may rule upon your motion and the other motion and yet a third motion of the same character that is pending. In the meantime, it is asking too much of the tribunal to pass upon the sufficiency of the evidence of the prosecution until the book is closed on the prosecution's evidence.
Are there any other announcements or observations to be offered on behalf of defense at this time?
DR. BERNDT:Mr. President, we heard yesterday that after the defendant Geheimrat Schmitz, the defendant Dr. Von Schnitzler will not take the witness stand. During the session of 22 December 1947, the morning session, the Tribunal announced that if any affidavits by the defendants had been presented who are not going to take the witness stand, and who, for that reason, will not be cross-examined by their co-defendants, in such a case the Tribunal shall set down on the record after a proper motion has been made that this particular affidavit can not be regarded as evidence against other defendants who are incriminated by it. In a large number of affidavits the defendant Von Schnitzler made statements and particularly has done so in six decisive ones, which incriminate other defendants. On my own behalf and on behalf of other defense counsel I hereby make the motion that the Tribunal should rule, since the defendant Von Schnitzler is not going to take the stand, that these affidavits shall not be used as evidence against any of the other co-defendants. I make this motion already now because I believe that if we have such a ruling from the Tribunal it would expedite the proceedings, and, to wit, because we would then not be obligated to deal with this affidavit to the extent in which we would otherwise have to do so.
THE PRESIDENT:Counsel is correct, I think, in his understanding of the ruling that the Tribunal heretofore made to the effect that an affidavit or affidavits of a defendant who does not elect to take the witness stand may be considered in the nature of admissions against that defendant, but since he is not subject to examination by codefendants, such affidavits would not be evidence against co-defendants. We have indicated that. Now as I said to counsel just a moment ago, the presentation of the defense case is in the hands of the defendants. We are not going to anticipate what defendants may or may not take the stand.
We would not even conceive that a defendant who had indicated that he would not take the stand might subsequently change his mind and desire to take the stand and if he did so he would clearly he within his rights. This leads me to this observation, Dr. Berndt; that your motion would appear to be premature. At the conclusion of the defense case, if some defendant who has offered affidavits that may incriminate others, has not taken the stand, the Tribunal would then be in a position to consider your moti n and make a formal order if you so desire. I can assure you that the policy of the Tribunal will be consistent throughout. We must at this time deny your motion because we have no assurance as to what defendants may or may not take the stand or even that one who indicates by counsel that it is not his intention may subsequently change hip mind and desire be testify. Is my position clear? That you may renew your motion when the record is closed and we know what defendants have testified and who will not testify. We will entertain your motion at that time. In the meantime I can assure you that the Tribunal's policy in that regard will be consistent with the announcement that we heretofore made.
DR. BERNDT:Thank you. I shall then renew my motion at the proper time, but I had believed that I should have done it today because I had the opinion that by a decision given today the trial would be shortened.
DR. RUDOLFDIX (Counsel for Schmitz): Mr. President, I have a request to make of the Tribunal which I could not submit to the judge appointed by your Honors yesterday as competent because I only learned of that fact now. The Tribunal will remember that I could not begin with presenting my documents last week because they had not yet been translated. They were supposed to be ready yesterday. I have found out just now that my document book 2 has not even been finished now. This document book 2 is in close connection with document book 1. It treats the same subject. Therefore I ask your Honors to be kind enough and to have someone call up to have this document book finished during the course of the morning so that I can begin to present my evidence either now or in the afternoon all in one.
JUDGE MER BELL:Dr. Dix, I have already contacted the proper parties and they have assured me that Book Number 2 for defendant Schmitz will be delivered today.
DR. DIX:May I add that that was told to me also, but they said that it would be this evening, but I shall have to begin either this morning or this afternoon. Apparently it has been translated but it's a question of mimeographing and binding the book together.
JUDGE MERRELL:I will be glad to check at recess to see whether it will be available or what time today it will be available.
DR. DIX:Thank you.
THE PRESIDENT:Perhaps the Tribunal ought to offer one further observation concerning the matter of the cross-examination of defendants. I said that wc had no control over whether or not a defendant did or did not testify and that one who had announced an intention not to testify might subsequently change his mind and testify. I should have gone further, perhaps, and have said that in that event, and a defendant does subsequently does change his mind and takes the witness stand even though it would be out of order, we would, of course, indulge the right of every defendant to crossexamine him as to anything that would be incriminating or thought to be incriminating against another defendant.
In the meantime, until a defendant who has announced that he will not testify or whom you have good reason to believe is not going to t estify because of information that you have, you may not be disturbed or concerned about waiving any right of cross-examination. If that situation is changed, your right to cross-examine will be protected. Has the prosecution anything to say?
MR. SPRECHER:Mr. President, our remarks may be premature because we understood you to say that you had some announcement concerning the outstanding affiants. So I leave it respectfully up to you, Mr. President as to who should speak first.
THE PRESIDENT:I think we should rather hear you speak on that subject than to talk about it ourselves, so we Will listen to you.
MR. SPRECHER:I know it is a burden to all of us to reflect upon the fact that the Tribunal has some grave problems before it in connection with these affiants. We have a statement which we think will somewhat reduce the magnitude of the problem before your Honors and which we think will be something of a credit to our attempt constantly to expedite the trial. In the last several days and over the week end, since your Honors said that you were about to come to a final decision about this matter, we have reviewed the status of the prosecution's evidence and also certain means which we have at our disposal which we think could and do remove the necessity of keeping in the record six of the affidavits by six of the affiants still outstanding. Now, we have no intention to discuss the question of the legal rights involved or the reasonableness and the property of the various steps which have been recommended and contested. Nor do we want to describe the energy or even the ingenuity which we have exercised to bring here more than half a hundred affiants from all over Europe when we have felt that in many cases cross interrogatories would have more than sufficed.
But the position with respect to those matters has been crystallized and since we do feel by this review of the evidence that we have recently made we are in a position to withdraw six further affidavits, we shall proceed to do so at this time with your consent.
THE PRESIDENT :We will be very glad to entertain that motion.
MR. SPRECHER:Mr. President, I would like to state that this is the last withdrawal of any kind, shape, or nature unless some circumstances arise over which we have no control or if we obtain information which we do not have at the present time which would make it only reasonable for us to reverse our position. Now, we move to withdraw Exhibit 1349, Document NI 11410, the affidavit of Willian Allen, who is from England. We move to withdraw Exhibit 1763, NI 11710, the affidavit of Dr. Nyiszli Nikolae, of Roumanie. We move to withdraw Exhibit 1162, NI 6739, the affidavit of Francisek Kacprzak, of Poland. We move to withdraw Exhibit 1121, NI 11624, the affidavit of Franz Klecksa of Poland. We move to withdraw Exhibit 1122, NI 11622, the affidavit of Josef Herynk of Czechoslovakia. We move to withdraw Exhibit 1454 NI 9818, the affidavit of Josef Jakubik, who when last heard of, was in a D.P. camp in the British Zone of Germany.
THE PRESIDENT:Does that constitute the six?
MR. SPRECHER:Yes sir.
THE PRESIDENT:Thank you, Mr. Prosecutor, and that motion will be sustained and the affidavits described in the motion of the prosecution just made are now stricken from the evidence in this case and are not the subject of any further concern.
MR. SPRECHER:In that connection, Mr. President, that leaves eight outstanding cases, if we leave apart the three cases where your Honors directed that the commission proceed to Vienna and Landsberg Prison.
THE PRESIDENT:I am sorry -- I think I only make seven. There is on in America, one in Belgium -- are you following me in your order there?
MR. SPRECHER:Mr. President, I think I know the misunderstanding and may I come to it in a minute. We omitted one name from your address list who is on the commissioner's list and that is Dr. Bendell of Paris.
THE PRESIDENT:Very well.
MR. SPRECHER:May I continue. I wanted to talk about some possibilities for joint action with respect to some of these eight cases or at least make our position clear and then have your Honors indicate further desires. Now, by affidavit I stated for the prosecution that we had no assurance after using the regular and official channels, to bring in the affiants who were still outstanding some ten days ago. Now, it's always possible that by some type of further emergency measure which goes far beyond the official channels, in particular cases a particular affiant might be able to be brought here. For example, in some cases we have taken our personal transportation in order to go to places in foreign countries and bring here particular affiants where particular defense counsel had indicated particularly good ground for wanting to cross-examine a particular witness openly before the entire Tribunal, in the early stages of this case. There are possibly some such emergency measures which the Secretary General or which the ingenuity of defense counsel in some case might change that situation.. We are prepared to review these cases with defense counsel, with the Secretary General, once again with the commissioner, or with the members of the Tribunal themselves. We can do it now or we can do it later. We have made our position in that regard clear before the commissioner. Dr. Mueller was informed that we would be glad to take any particular case and inform him of the details of our attempts. That remains outstanding as an offer. We want most of all here that you should be satisfied that we have not only attempted to do what seemed to be just and fair but that we have attempted, with great energy, to satisfy particularly defense counsel, even though we have most decidedly thought the shoe was on the other foot.
THE PRESIDENT:Well, it is not unusual in the trial of law suits for parties to feel that the shoe is on the other foot -- we realize that. But be that as it may, I am going to take the liberty of withholding the remarks that I intended to make on this subject with this substitution. In the light of what the prosecution has just done of withdrawing six of these affidavits, it would appear to be proper to ask counsel for the defense to again make a survey of the situation and advise us as speedily as possible if they can offer any further suggestion that will shorten this list.
I may say to counsel, and particularly to the Prosecution, that for whatever it may be worth this Tribunal is willing to exert its pressure and influence upon administrative agencies and upon military authorities to help us to bring these witnesses here. We are going to do everything that we can to bring then in the hope that we can further reduce this list of outstanding witnesses to be cross-examined.
Now, I would just like to say in that regard that we would feel somewhat embarrassed if we went to that extent of asking the Secretary General and military authorities to cooperato with us, as a Tribunal, to bring witnesses here and then when we read the transcript of the evidence it would all look as though it had not been worthwhile. I don't anticipate that that may happen, but it could happen.
So will you please again, review your lists and, if you can, reduce the outstanding witnesses, one or more? It would be very helpful in that regard. If you can't, we shall put all the pressure that we possess to produco the witnesses here for examination before the Commissioner or at some other convenient place so that you shall have the benefit of your cross-examination. We will review this situation in chambers and take it up at some other time before too long because we are most anxious to conclude this chapter in the history of this trial.
Have you something to say, counsel?
DR. SILCHER:Mr. President, I don't want to make a statement in regard to the last treated chapter, but I shauld like to be permitted to revert once more to the question of the affidavits of co-defendants.
Mr. President, you said that if a defendant, contrary to his statement, should change his mind and take the witness stand at a later time, re remaining defendants and their counsel should have the full right to cross-examine. There are cases when affidavits of co-defendents are the sole evidence presented by the Prosecution in regard to definite points of certain defendants. If the defendant concerned does not take the stand and if the affidavit is then not taken into account, then no proof has been offered at all by the Prosecution.
It would then be superfluous to bring any counter-evidence.
I believe it would be in keeping with your Honors intentions in those cases not to burden the record with any counter-evidence as to points for which there has been no proof brought by the Prosecution. It might happen, however, that if the defendants concerned should later take the stand and thus his affidavit is in evidence against the client, the Defense might consider it necessary to bring the counter-evidence in some other way than by way of cross-examination of that defendant, either by way of documents or by way of other witnesses, especially perhaps by calling the client agains onee more to the witness stand.
I should be grateful to your Honors if you would let us know whether this full possibility of counter-evidence in such a case is still possible to us.
JUDGE MORRIS:Counsel, the President of the Tribunal has suggested that I take aturn at the microphone for a moment in reply to the situation, or in clarification of it.
Where a defendant does not take the witness stand I think we are all clear that this Tribunal has laid down the definite rule: That the affidavits of that defendant are not to be considered in evidence against other defendants upon a proper, formal motion made before the end of the trial. And I think it is clear that, for example, where Dr. von Schnitzler has not seen fit to take the witness stand, other defendants may safely proceed upon the theory, the announced statement, of his counsel that he will not take the witness stand. But, nevertheless, something in the course of the trial may develop where the defendant von Schnitzler and his counsel thought it necessary that he ultimately go on the stand. We don't want to lay down the rule that once he has stated he wouldn't go on the stand that he can't later on defend himself if he deems that it is necessary.
On the other hand, if he does change his mind and he does, out of order and with the consent of the Tribunal, take the stand in his defense, and thus giving all of the affidavits that he has made the status of evidence against all of the defendants or any of them, the situation of the defendants other than von Schnitzler will not be prejudiced by the chance in the anticipated plan.