The Nuremberg Trials (Vol.6). International Military Tribunal

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СКАЧАТЬ before Dr. Kubuschok takes his objection it might help if I said, quite openly, that Schröder is now in custody, and according to my information he is at Frankfurt; so that physically he undoubtedly could be called. Perhaps I might also say at this moment that there would be no objection from the Prosecution’s point of view to interrogatories being administered to Von Schröder on the subject matter of this affidavit.

      DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): I object to the reading of the affidavit of Schröder. I know that in individual cases the Tribunal has permitted the reading of affidavits. This occurred under Article 19 of the Charter, which is based on the proposition that the Trial should be conducted as speedily as possible and that for this reason the Tribunal should order the rules of ordinary court procedure in that respect. Of decisive importance, therefore, is the speediness of the Trial. But in our case the reading of the affidavit cannot be approved for that reason.

      Our case is quite analogous to the case that was decided on the 14th of December with regard to Kurt Von Schuschnigg’s affidavit. Schröder is in the vicinity. Schröder was apparently brought to the neighborhood of Nuremberg for the purposes of this Trial. The affidavit was taken down on 5 December. He could be brought here at any time. The reading of the affidavit would have the consequence that I would have to refer not only to him but also to several other witnesses, because Schröder describes a series of facts in his affidavit which in their entirety are not needed for the finding of a decision. However, once introduced into the Trial, they must also be discussed by the Defense in the pursuance of its duty.

      The affidavit discusses internal political matters, using improper terms. For this reason misunderstandings would be brought into the Trial which could be obviated by the hearing of a witness I believe, therefore, that the oral testimony of a witness should be the only way in which Schröder’s testimony should be submitted to the Tribunal, since otherwise a large number of witnesses will have to be called along with the reading of Schröder’s affidavit and his personal interrogation.

      THE PRESIDENT: Have you finished?

      DR. KUBUSCHOK: Yes.

      THE PRESIDENT: Do you wish to make any observation?

      MAJOR BARRINGTON: Yes, I do, My Lord. The Tribunal has been asked to exclude this affidavit, using as a precedent the decision on Von Schuschnigg’s affidavit. I think I am correct in saying that Von Schuschnigg’s affidavit was excluded as an exception to the general rule on affidavits which the Tribunal laid down earlier the same day when Mr. Messersmith’s affidavit was accepted. Perhaps Your Lordship will allow me to read from the transcript the Tribunal’s decision on the affidavit of Messersmith.

      THE PRESIDENT: Mr. Messersmith was in Mexico, was he not?

      MAJOR BARRINGTON: That is so, My Lord; yes.

      THE PRESIDENT: So that the difference between him and Schuschnigg in that regard was very considerable.

      MAJOR BARRINGTON: In that regard, but what I was going to say was this, My Lord: In ruling on Messersmith’s affidavit Your Lordship said:

      “In view of those provisions”—that is Article 19 of the Charter—“the Tribunal holds that affidavits can be presented and that in the present case it is a proper course. The question of the probative value of the affidavit as compared with the witness who has been cross-examined would, of course, be considered by the Tribunal, and if at a later stage the Tribunal thinks the presence of a witness is of extreme importance, the matter can be reconsidered.”

      And Your Lordship added:

      “If the Defense wish to put interrogatories to the witness, they will be at liberty to do so.”

      Now in the afternoon of that day, when Schuschnigg’s affidavit came up . . .

      THE PRESIDENT: Which day was this?

      MAJOR BARRINGTON: This was the 28th of November, My Lord. It is on Page 473 (Volume II, Page 352) of the transcript, the Messersmith affidavit; and Page 523 (Volume II, Page 384) is the Schuschnigg affidavit.

      Now, when the objection was taken to the Schuschnigg affidavit, the objection was put in these words:

      “Today when the resolution was announced in respect of the use to be made of the written affidavit of Mr. Messersmith, the Court was of the opinion that in a case of very great importance possibly it would take a different view of the matter.”—And then defense counsel went on to say—“As it is a case of such an important witness, the principle of direct evidence must be adhered to.”

      THE PRESIDENT: Have you a reference to a subsequent occasion on which we heard Mr. Justice Jackson upon this subject, when Mr. Justice Jackson submitted to us that on the strict interpretation of Article 19 we were bound to admit any evidence which we deemed to have probative value?

      MAJOR BARRINGTON: My Lord, I haven’t got that reference.

      THE PRESIDENT: Why don’t you call this witness?

      MAJOR BARRINGTON: I say, quite frankly—and I was coming on to that—this witness is in a position of being an alleged co-conspirator, and I do not make any secret of the fact that for obvious reasons the Prosecution would not desire to call him as a witness, and I put this affidavit forward as an admission by a co-conspirator. I admit that it is not an admission made in pursuance of the conspiracy, but I submit that by technical rules of evidence, this affidavit may be accepted in evidence as an admission by a co-conspirator; and as I said before, there will be no objection to administering interrogatories on the subject matter of this affidavit, and indeed, the witness would be available to be called as a defense witness if required.

      That is all I have to say on that, My Lord.

      THE PRESIDENT: There would be no objection to bringing the witness here for the purpose of cross-examination upon the affidavit?

      MAJOR BARRINGTON: I don’t think there could be any objection if it were confined to the subject matter of the affidavit. I would not like . . .

      THE PRESIDENT: How could you object, for instance, to the defendant himself applying to call the witness?

      MAJOR BARRINGTON: As I said, I don’t think there could be any objection to that, My Lord.

      THE PRESIDENT: The result would be the same, wouldn’t it? If the witness were called for the purpose of cross-examination, then he could be asked other questions which were not arising out of the matter in the affidavit. If the defendant can call him as his own witness, there can be no objection to the cross-examination going outside the matter of the affidavit.

      MAJOR BARRINGTON: Of course he couldn’t be cross-examined by the Prosecution in that event, My Lord.

      THE PRESIDENT: You mean you would ask his questions in re-examination, but they would not take the form of cross-examination?

      MAJOR BARRINGTON: That is what I mean, My Lord.

      THE PRESIDENT: You mean that you would prefer that he should be called for the defendants rather than be cross-examined outside the subject matter of the affidavit?

      MAJOR BARRINGTON: Yes.

      THE PRESIDENT: Is there anything you wish to add or not?

      MAJOR BARRINGTON: There is nothing I wish to add.

      THE PRESIDENT: СКАЧАТЬ