THE PRESIDENT: The witness has testified as an expert witness called by the defense. He is now undergoing cross examination. The rules of cross examination are liberal and Prosecution is entitled to test his knowledge of these matters and had not exceeded the proper bounds so far. Counsel may proceed.
DR. MARX: Mr. president, may I say one more word. There is the additional point that the minutes precisely state under II that the Commission, and this is at the bottom of page 3 of the German test, the Commission for the planning for the conditions of the experiments to be carried out is composed as follows:
Professor Eppinger from Vienna, then a representative of the Hygiene Department, a representative of the Air Force, a representative of the German Air Ministry, and a representative of the OKM, the high command of the Navy. So, the commission who was to draft the plans for these experiments was only being made up--it hadn't met, but was only to be constituted during a further meeting and then draft plans for the experiments. Thus, in this most relevant point this record is false and therefore the assumption is justified that the record was not prepared on the 23 May but even later after the 26th of May. Christensen, you see, upon my questioning, answered me that it was even possible that it was after the 25th May that this record was prepared and it probably has been ante-dated. For that reason alone, when you read that particular passage, it is quite unnecessary to state that there were no details, that the commission was only being formed and then during a later meeting was to make the plans to be carried out. Consequently, I beg you to take this into consideration and to have further examination of this witness refused.
DR. STEINBAUER FOR BEIGLBOECK: I also object to the type of cross examination carried out by Prosecution, but my reasons are different- they are of a formal nature. It is not proper that an expert witness should be shown a document that a sentence should be torn from its context- without telling him what we are concerned with and without giving the witness ample opportunity to peruse the entire document-to peruse the entire document in his own time and then he would know what is going on.
In order to prove this I would like to point out how Prosecution quoted from Tschofenig's interrogation saying that Tschofenig had experienced all that but in the middle of the second page- the witness is saying "due to my position as responsible prisoner for the X-ray station of the camp hospital insight in the experiments." Which could have been only a superficial one. Thus, the assertion that this witness was informed in detail is contradictory to facts before this Tribunal.
THE PRESIDENT: When the witness is being cross examined in connection with any certain document the witness may see, examine, and read that document in full if he desires. Otherwise the cross examination may proceed. Objection is over-ruled.
BY MR. McHANEY: Witness, I am not asking you to argue whether theis experiment of 12 days as outlined here was carried out, but I understand you are an unbiased expert on sea-water problems, testifying in an un-biased manner, I am asking you to assume that this experiment was carried out and, as it states, it was to last 12 days, and the sole source of water was to be sea water and Berkatit, and I put the question to you as an expert-what in your judgment would have happened to the experimental subjects? Can you answer that?
A. Yes. Without a doubt the experimental person would have managed to get a hold of water some way or other, because even the most enthusiastic volunteer wouldn't continue that long.
Q. Doctor, let's assume that he had no recourse, no access to other water, he was put in a cell, where there was no other water. He had to drink sea water. He had to drink Berkatit. That is all he got and that went on for 12 days. Now, as an export, what probably would have happened to the experimental subject?
A. After 12 days he would have shrunk considerably and all sorts of symptoms would have become apparent. I can imagine there would have been hallucinations and physical weakness, hardening of the muscles, and so on. But, if a person were able to concentrate he had a chance to survive those 12 days.
Q. Is it probable that the experimental subjects would have died?
A. I wouldn't describe it as being a probability but as being a possibility.
Q. Would you describe it as being probable that the experimental subjects would have survived?
A. That I consider very possible.
Q. Well, is there any probability in here anywhere or just possibilities?
A. In biology you cannot figure out forecast. Much depends on the type of person you are concerned with, how is condition is how he can generally react. One can say generally that danger to life commences after 12 days, one can assume that after 12 days he is still alive
Q. And it is probable that if he survives, as you state is very possible, is it probable that he would have suffered any permanent damage?
A. No, that is improbable that he would suffer permanent injury.
Q. Professor, can one kill a person by making him drink sea water as his sole source of water supply?
A. Yes, of course you can kill anyone if you only give him sea water to drink permanently. No human being can stand up under that, he dries out.
Q. And, as an expert, what is your best estimate as to how long that would take?
A. As I have just said danger to life commences after 12 days. That is a general estimate.
Q. That is the best testimony you can give in response to that question?
He is given only sea water, that is his sole source of water. You can't say anything more definite than around the 12th day it becomes quite dangerous to his life?
A. Yes, I can say that on the 12th day there is danger to his life.
Q. Were you in court yesterday?
A. Yes.
Q. Prosecution would call to the Tribunal's attention rule No.9 B of the rules issued by this Tribunal, which requires that witnesses be excluded from court prior to their testimony. We call that to the Tribunal's attention for what ever weight they might wish to give it. We make no motions because that rule was violated in this instance.
DR. TIPP: Mr. President, this justified objection by Prosecution can be clarified easily. Mr. McHaney doesn't know this fact that we asked the Tribunal in writing to allow Professor Vollhardt as an expert witness to permit him as an exception to be in court during the examination of Becker-Freyseng, Schaefer, and Beiglboeck. This request by defense was granted in writing by this High Tribunal. Possibly that decision of the Tribunal has not come to Mr. McHaney's knowledge.
Mr. McHaney: I have no further questions.
BY JUDGE SEGRING:
Q. Doctor, can you state for the information of the Tribunal whether so far as you know there is any food value in the preparation Berkatit?
A. An actual nourishing value is not contained in Berkatit as far as I know about its composition. I believe that initially it was made of tomatoes and then later on other types of sugar were used, but I don't think this was of any actual nourishing value.
Q. If it should appear that there is some food value or nour ishment value in the preparation then would it not be true that over an extended period of time the experimental subject who was taking Berkatit would be placed in the same position as would an experimental subject who was given food but deprived of all forms of water?
A. If Berkatit even did have one to 2 calories then it wouldn't play any part at all since that would be without any inference upon the dangerous quality of sea water which is its dehydrating quality. I would never never dare to continue a sea water experiment with Berkatit longer than a sea water experiment without Berkatit. That is, to say, not beyond six days.
BY THE PRESIDENT:
Q. Professor, these subjects upon whom you conducted an experiment in your institute were very excellent subjects for such an experiment were they not?
A. They were characterized by the fact that they were medical men who understood the meaning and that I could rely on them. Physically, they certainly were no better-conditioned, according to the photographs at least, then those rather well nourished experimental subjects.
Q. I was not thinking so much of their physical condition, but they were men who were interested in this work, were they not?
A. Yes.
Q. The results of the experiment - each upon himself and upon each of his associates - would be interesting to each one, would it not? Is that not true?
A. I would assume so, yes.
Q. Each one was entirely controlling his own participation in the experiment, was he not?
A. Yes.
Q. If, at any time, any one of the subjects felt that the conditions which he was undergoing in the experiment were becoming too heavy for him, he would have been released from further participation upon his request, would he not?
A. No doubt he would have reported and he would have said "I want to step out. This is too bad for me."
Q. That's what I meant. He would have asked to be released and he would have been immediately released? Well, is it or is it not a fact that a human being will voluntarily undergo hunger, thirst, pain, discomfort, and stand it better when he knows that he is doing it under his own volition with a scientific objective, than a person of equal physical condition will stand such an experiment when, insofar as he is concerned, he has no personal interest whatsoever?
A. No doubt that is correct and I am perfectly convinced that Professor Eppinger tried everything he could in order to obtain such volunteers. He was most discomforted through the fact that these experiments were carried out in Dachau. He would much rather have seem them carried out in Vienna on his own scholars or students but, at that time, there weren't any students any more. They had all been called up, and medical officers were very scarce so that there was no question of obtaining volunteers. Hence, in this very tense and difficult time, no subjects could be found to carry out such a series of experiments as was planned here in a hospital or clinic or any kind. It would have been better, more practical and more sensible, by all means, if the experiments had been carried out at that time upon medical students, but, unfortunately, that was impossible.
Q. You perfaced your statement, Doctor, by saying that Dr. Eppinger had this sentiment. How do you know that?
A. Because, during the conference, it was mostly Prof. Eppinger who was in favor of these experiments being made and, since Professor Eppinger had earmarked his favorite pupil Beiglboeck, for the carrying out of these experiments, it is a matter of course that Eppinger would have liked nothing better than that these experiments had been carried out under his own control in Vienna.
Q. You are assuming that Eppinger would have felt as you would have felt under similar circumstances, is that correct?
A. I know that all those who were interested in these experiments were making efforts to find places where these experiments could be carried out in a military hospital on soldiers or convalescent patients or other persons, but, unfortunately, everything turned out to be impossible.
You can only imagine the situation if you know how every hospital bed and every doctor was being utilized in this time. That was the final period of the war.
Q. You prefaced this last statement by saying "I know". Now, how do you know? By any other method than assuming that these gentlemen would have felt as you felt?
A. No, I recollect that I have read that in one of the reports, that one had tried to carry out the experiments elsewhere and that one had come across locked doors everywhere. For instance, one had Brunswick in mind, I know that accidentally, the Air hospital at Brunswick, and that was impossible. Thus, all inquiries had negative answers.
Q. I gathered from your answer to one of my questions a short time ago....I would like to return to that subject .......that a person of intelligence will endure more discomfort, pain and suffering, pursuing a voluntary experiment which he knows he can terminate at any moment than a person, probably of less intelligence, would display upon undergoing an experiment which he could not stop at his own volition. Is that correct?
A. Well, there isn't any question that, for those persons in Dachau, the only bait was the good food before and afterwards and the cigarettes that they had been promised. That wasn't possible in the case of my doctors. They did it because they were interested and, of course, that would have been by far the most preferred solution if it had been possible.
Q. And, insofar as the subjects at Dachau, if any of them, at any time during the course of the experiments, believed that the pain or discomfort or whatever it might be called, which they were suffering would not be compensated by cigarettes or other promises which had been made to them, that they would be very anxious then to be released from prosecution of that experiment.
Is that true?
A. Certainly. That's why quite a number of experimental subjects secretly drank water, because the strict pursucance didn't please them too much.
Q. Well, unlike the experimental subjects in your institute, those subjects would not be particularly interested in the result, would they? They had no scientific interest in the result, did they?
A. No, no. None at all. None whatever.
THE PRESIDENT: Are there any further questions to the witness.
BY DR. TIPP (Defense counsel for the defendant Becker-Freyseng:)
Q. Professor, the statements made by the prosecutor during the cross-examination unfortunately necessitate certain clarifications.
First of all, might I ask you one thing? In your direct examination you have, of course, emphasized the purpose of these experiments. Now, would you finally say just once again what was to be achieved by means of these experiments carried out at Dachau?
A. The situation was the following: After Schaefer had developed the idea of his excellent drug, the question of sea water was solved. Unfortunately, Mr. Berka arrived with his taste corrector and, because of very superficial experiments carried out by Colonel Sirany, the Technical Department spoke in favor of this drug which, from the medical point of view was not suitable because the dehydrating effect of sea water was not being eliminated by it.
Thus, a conflict arose between medicine and technique, and the technicians had the greater force, they had to grant the funds and they said "The raw materials for Wofeatit were too difficult to obtain. It is easier for us to manufacture the Berka affair." Consequently, this meeting came about during which the two leading experts spoke in favor of carrying out these experiments although every one of them knew that Wofatit, of course, could not be beaten. But it might have been that Berkatit too had a certain advantage over ordinary sea water and, as I have said, Eppinger was thinking of the possibilities that the concentrating powers of the kidneys might somehow be increased. However, the experiments didn't give a definite supportive evidence of that, but they did have an important result - not only the obvious result, namely, that the Schaefer water was superior to anything else but, also, the observation that the kidney can, nevertheless, concentrate salt so astonishingly well up to the concentration of sea water that, in future, one could give the advice that in cases of sea distress, instead of being completely thirsty, one could rather, drink 500 cc of sea water and, in that manner, increase the salt contents of the blood but would not have to be afraid of dehydration quite so quickly.
Q. Well then, Professor, if I understood you correctly, it was the aim of the experiment to establish whether Berkatit, after all - probably in practical cases of sea distress - ought not to be introduced? Is that correct so far?
A. Yes, that is quite correct, since the aviator wouldn't be quite so burdened by it as by Wofatit.
Q. Then may I put another question to you?
According to what you have said, these experiments actually materialized since the technicians had the stronger influence, as you put it, and since they were being supported by Professor Eppinger and Professor Heubner?
A. In not quite that sense. That possibly they might have gone over to the technicians' side, but they did consider it appropriate not to deprive Berkatit of all its useful purposes.
Q. Well, then, if it hadn't been decided, during that meeting, to carry out experiments - of course, this is a purely hypothetical question, Professor - what could you say on the basis of the details? What would have happened? Would Wofatit or Berkatit have been introduced in practice?
A. I'm afraid the technicians would have been victorious. They would have been victorious over decency.
Q. So you mean that, without these experiments, berkatit would, nevertheless, have been introduced in practice?
A. Yes, I believe so.
Q. And you went on to say, Professor, that the admonition of water with Berkatit, which is equal to sea water, would have done serious injury in practice and, provided it went on over six days, would lead to death?
A. It would have serious consequences after going on for over six days and would most certainly lead to death after..........
Q. And you are making those conclusions on the basis of final cases of shipwreck?
A. Yes.
Q. Then, may I put the final question. In this connection, the Chief of the Medical Department, General martius, and his assistant, Becker-Freyseng, would have been actually irresponsible if this development had been used without the action being taken? In fact the only possibility for preventing the introduction of Berkatit was to achieve that experiments were carried out?
A. It appears that it seemed to be the opinion among responsible persons that, considering the increase in air crashed, one ought to deal rapidly with the question of shipwrecked personnel and achieve the solution.
THE PRESIDENT: Counsel, I must again ask you to proceed a little more slowly. It is rather difficult for the reporters to follow. Ask your questions a little more slowly and the witness will not answer the question until the interpreter is finished with the translation of the question.
Q. Professor, you just said that it was the aim of the expert to clarify whether Berkatit might not possibly after all be introducable, consequently what was further aim, supposedly it was to find out how long Berkatit can be tolerated during the experiment?
A. How long sea water with or without Berkatit can be tolerated.
Q. In this connection, Professor, I might ask you, have you got the sea water document book before you? I will have it sent over to you. May I ask you, Professor, to turn to Document 177, Exhibit 133, which is the minutes of the conference, the one Mr. McHaney had put to you, it is page 12 of the document book; do you have it?
A. Yes.
Q. There is one question I want to put to you with reference to that present test. At the bottom of page 1 of that document you will find the description at the end of the lecture made by Dr. Becker-Freyseng, and it here says that the Chief of the Medical services is convinced that if the Berkatit method is used, damage to health is to be expected not later than six days after taking Berkatit, and will lead to death not later than 12 days after; Professor, according to the underlying idea of the experiments which you have displayed I should like to ask you: to what did your statement refer? to the experiments or to the case of an actual ship-wrecked person.
A. I would assume that this applied to the practical case of an actually ship-wrecked person, since at that stage there had been no talk of experiments. They were only really noticeable in this expostulous report.
Q. We will come to that, Professor, but in the same document the Prosecution pointed out the supposed planning of experiments such as contained herein and on page 2 of the document under Figure 2 he talked about the so-called duration of experiments of 12 days with Berkatit; first of all I would like to ask you, Professor, to look at page 3 of the same document and particularly the end of that page, and it says there, "The Commission for the determination of conditions for the experiments to be carried out is composed as follows: Professor Eppinger of Vienna, representative of the Chief of the Medical Service of the Air Force, representative of the German Air Ministry (RML), representative of the High Command of the Navy (OKM)."
If you look at that page, Professor, and then consider the series of experiments which supposedly had been discussed during the conference of the 20th, can you then imagine that during that meeting of the 20th experiments had been decided upon as according to this record, whereas as we have just read the commission only met later, namely on the 25th?
A. The whole picture is that as painted by the layman. No medical man would have written that page, -you can see from the report that it was glued together, and I can assure you that according to my knowledge that humane person as Professor Schaefer, would never have given his consent to a duration of 12 days with sea water.
Q. May I just ask you a final question, Professor --
THE PRESIDENT: You are still continuing too fast, Counsel.
DR. TIPP: Yes, Mr. President.
Q. Then may I put the final question to you, Professor, do you consider it probable considering the aim of the experiments to have mentioned that a duration of 12 days would make sense at all?
A. It would be quite senseless, absolutely senseless.
DR. TIPP: In chat case I haven't any further questions on this particular point. I beg your pardon, yes, I do. I have one more final question.
Q. As you stated, you yourself have seen the original records of these experiments, would these records show anything to the effect that during the actual experiments any type of torture was committed or that any incidents occurred which could be described as crimes against humanity?
A. I haven't found anything like that at all, and what is more I consider it absolutely out of the question. The duration of the experiment is too short. During the six days it is humanly no possible that any tortures could be connected with it that you could describe as inhumane.
Q. And that the experiments didn't last beyond six days that is something which became abundantly clear from the records?
A. Yes.
DR. TIPP: Thank you very much. No further questions.
DR. STEINBAUER: Steinbauer for the defendant Biegelbock.
BY DR. STEINBAUER:
Q. Professor, since the prosecution has not stepped down I must ask you some more questions; you have been shown photographs, some of which of course, after considerable conferences with medical offices, will be chosen by me and shown to the Tribunal; is it your impression that these people, - as a witness maintained with reference to the transport from Weimar to Munich, - would not have survived such a transport?
A. No, this is not my impression and all you would have to do is look at the trains and circumstances under which people travel from Munich to Frankfort today.
Q. We could have put these photographs together so they would have been favorable to the Prosecution as well as to ourselves; the Prosecution told you to look at Figure 5. Now let me put a question, you look at that photo and tell me: is there not a possibility that there would be distortion and that the face would show pain when people are given an injection?
A. Yes, that is plain and most people contort their faces during the actual injection and show that contortion more quickly even before the injection takes place.
Q. Then look at the picture and I ask you this question is it not a technical fact that in hypertonic solutions just as well as in thirst it is the lack of water, and that this question of water shortage is the decisive question medically speaking in connection with that question?
A. I thought I had unmistakably said that sea water endangered the life because it drains water from the system of the body. It is a condition of dehydration which arises because of salt and this salt produces dehydration without salt.
Q. That fights the expression in the face.
A. Not quite. I told you my son had quite an emaciated face after the sea water experiment, so that everybody got a big shock. But after 24 hours that disappeared.
Q. The Prosecution first of all made the gypsies die of whom I told you in Frankfurt, and now they would like to revive them and therefore they want their names; could you have given your expert opinion, Professor, if you had no name, would it have altered it in any way?
A. I wouldn't have looked for the names. They are quite immaterial to me.
Q. So to you as a medical man the only decisive factor is what these charts will show to you?
A. But of course.
Q. Consequently, you also heard from me that we were concerned with volunteers?
A. Yes.
Q. Might Dr. Marx have given you any more details than we?
A. No, no.
DR. STEINBAUER: Thank you. I have no further questions.
THE PRESIDENT: DOes the Prosecution desire to crossexamine this witness upon the questions brought out?
MR. McHANEY: The Tribunal, please, we have no further questions. However, either after the witness is excused or right now I would like to bring up the questions of the names of these experimental subjects, the Prosecution has been put in somewhat of an embarrassing position because the witness has testified all day long about documents which are not a part of the record. On the motion of the Prosecution yesterday the Tribunal, as I understood it, required the production of the documents about which this witness would pass his opinion on, whereupon some purported original drafts were produced, on approximately half of which pencilled names had been erased, by whom or when the Prosecution does not know.
Today some original documents were produced half of which were removed from one cover and inserted in a second book here. I am advised and believe that the first book at one time contained the names of the experimental subjects. I think that it is only proper that the defense counsel be required to produce the original documents and original forms without any deletions or changes whatsoever; that moreover the defense counsel be required to produce immediately the names of the experimental subjects which they have and they be furnished to the Prosecution. We can go to considerable trouble, I suppose, and by use of an infra-red machine have the names raised which have been erased from the original documents. However, we don't care to go to that trouble if we can avoid it. I also don't wish to pursue this matter too far, but we understand that the defense has these names and I think they are required to produce them. I might also add that the photographs of the experimental subjects which were also submitted to this expert and formed a part of his opinion were submitted to you as photostat copies, and show nothing but the cover of the picture. The Prosecution would also be interested in knowing what appears on the back of the original pictures.
DR. STEINBAUER: Your Honors, it is very regrettable that the expert had to be heard before my case came up, since he wanted to depart. All the agitation of the Prosecution then would have been superfluous.
You can rest assured that I would not have felt so safe if I had not shown the list to Professor Alexander. It was not too clever of him not to copy the list as he had it. It is my privilege as defense counsel to decide whether I shall submit it or not, but I am not going to have the Prosecution force me to do so. But, in order to express my respect for this Tribunal, I shall do so at the point when it is most beneficial to the defense of my client. When everything has been cleared up, then the list that the expert did not have and which did not have any basis for his expert opinion will be submitted. I am afraid that these gentlemen will have to be patient until to-morrow, then they will see and hear everything that they want to see and hear today.
MR. McHANEY: The prosecution has no control whatsoever on the way in which the defense puts in his case, but I think we are entitled to have the records on which the expert based his opinion. We have not received the original of the documents which contained the list of the experimental subjects. While certainly it is Dr. Steinbauer's privilege to put in his case any way he sees fit, when original documents are submitted, they should be submitted in their original form without changes or deletions on same. We request original or photostatic copies. We make available our records to him when they go in and we have gone to considerable trouble on several occasions to have original documents, Karl Brandt's for example.
Now, it is his right to put in his evidence as he wills but there also exists the right of this Tribunal to require the presentation of evidence which is known to be in the possession of any one. Just as defense counsel frequently asked the Tribunal and the Prosecution to submit particular documents which they knew we had.
I don't want to be disagreable about any of this. We tried now for two days to get the names and have not been successful. It is no pleasure for me to be put in this position.
THE PRESIDENT: The witness who testified today was called out of order for his apparent necessity of being in Nurnberg. During his examination he was shown documents to which reference was made, he was also permitted to testify concerning the documents even though they were not presented in evidence. When they are offered in evidence on behalf of the defendant if they appear in mutilated form or are not complete, they should then be objected to and if they are not submitted in evidence, then this testimony given this afternoon would not be considered by the Tribunal.
If the Prosecution wants to be furnished with any of the documents, I suggest that the prosecution make written application to the Tribunal, stating just what is desired, hand it to the Tribunal and the Tribunal will rule on it.
The Tribunal will be in recess until 9:30 tomorrow morning.
(The Tribunal adjourned at 1535 Hours until 09:30 Hours 4 June 1947.)