Q. And, question two and three he put to you after you had given him the answer, and after you were already crying?
A. The questions came up. I started to cry when he yelled at me and told me I should shup up. --when I asked what political questions had to do with the marital loan.
Q. Then, you came to the Heriditary Health Court after that? How old were you at the time?
A. I was 18 years old.
Q. Your father was your legal representative?
A. Yes.
Q. Was he also summoned to the trial as such?
A. No, I was summoned alone, but my father went along because my mother asked him to go along.
Q. Now, tell me some details about the questions which were put to you at the Heriditary Health Court?
A. I came to the Heriditary Health Court with my father. There the same questions were put to me as by Dr. Knappe in Wittenberg, at the Health Office. I asked him whether I had to answer them and I was told, yes. I did not answer the questions either. Then, my father was asked what was his attitude in the matter. My father was also somewhat scared and excited and said at the end, "Do what you want to." That is all.
Q. Before, you said that on the way to the Heriditary Health Court your father made reproaches to you because you had not answered the questions that Dr. Knappe asked you.
A. My father did not like me already when I was a child because I was on the whole physically a weak person. He was a little bit angry about the whole affair, and, therefore, he made reproaches to me.
Q. When your father made these reproaches to you, did you decide at that time to answer when you were asked or did you decide already at that time not to answer?
A. No, I did not want to give the answers. I did not give the answers at the Health Office, and I did not want to do it at the Heriditary Health Court either.
Q. For what reason did you put the question to the judges -whether you have to answer or not?
A. I know that if a person request a marital loan, no political questions are put to the person, and in my case, especially in this connection, they put these questions; therefore, I asked whether I must answer these questions before the court.
Q. What was the Court's answer to your question?
A. They did not give me any further answer. They only said, "Yes, you have to answer."
Q. And, you put this question to the court already when they asked you the first question?
A. Yes, when they put the political questions to me, I merely asked.
Q. We have to divide the political questions into three questions. Into the question -- what is your attitude toward Hitler; when was Hitler born; and, whore was he born. In reply to what question of the court did you put your question?
MR. KING: I remind the witness that if she does not remember or does not know the answer to these questions, that she has the privilege as a witness to so state.
A. I do not remember the question any more
Q. Then, I shall help you. You said that the same three political questions were put to you by the court as Dr. Knappe put to you. We have already discussed these questions. Now, I only want to know from you, whether at the first question already you put your question?
A. No.
Q. And, what did you answer to the first question?
A. Nothing at all.
Q. You did not answer the first question at all; and the second one, not at all, either; and, only when the third question came up, you put your question?
A. Yes.
Q. Can you give an explanation for the fact that this objection to the political question, that you did not bring it up already when the first question was asked of you?
A. I wanted to hear whether the judges would put the same question to me; therefore, I did not ask right away when the first question was put to me.
Q. Did the judges then address further questions to you?
A. No. only those questions -- oh, yes one question: Whether I knew what position Goering held, what position Hermann Goering was holding.
Q. But, you did not remember any more without referring to your piece of paper?
A. Well, it might have been a slip of the tongue. Couldn't it?
Q. So, this question about Goering was put to you as a fourth question, after you had refused to answer after the other questions?
THE PRESIDENT: One moment, please, Dr. Kubuschok. I have lived a long time, and I think I know something about cross-examination, but this is not cross-examination. Just asking the witness to go over and over again, the same thing, the witness has answered the same thing a half dozen times -- it seems to me it is about time to go to something else.
DR. KUBUSCHOK: Mr. President, the fourth question was discussed by the witness for the first time just now; about the Goering question we had not heard anything so far.
THE PRESIDENT: How can it be material whether she knew anything about Goering, or whether she didn't know. She is only a citizen, and I don't see that would have anything to do with it, has it? Has that anything to do with her sterilization? -- I ask you the question, do you think that has anything to do with this issue?
DR. KUBOSCHOK: Mr. President, in my opinion, it is contrary to all experience that at the Health Office, and at a trial at the Hereditary Health Court, merely so few questions were asked in order to determine the intelligence quotient of the person concerned -- his mental attitude. I shall make efforts to obtain the files of the Court, and I think that in that case, in all cases, we shall find out that the test covered very large areas of the ability the perception and the association of thoughts in very many fields. Since I consider it absolutely unbelievable that merely three questions were put to the witness. I wanted, already during the cross-examination, to gain a clear picture about the actual process of the trial.
MR. KING: I wonder if Dr. Kuboschok is aware of a part of the testimony of this witness. Nothing was stated at any time, so far as I know, that the questions put to her by the Health Court were to test the intelligence quotient. Perhaps if Dr. Kubuschok had said political intelligence, quotient, we could agree with him. But these were not intelligence quotient tests. They were put to test the witness's knowledge of political affairs, particularly of the Party, and I think it is an undue reflection on the witness to refer to them as an I.Q. test, when in fact they were not that at all.
THE PRESIDENT: Dr. Kubuschok said himself that this seems impossible that they would be the only questions that would be asked. Well, that may be -- it would seem to everybody that has nothing to do with the question of a marital loan. But we have been hearing testimony here about very brief trials -- this morning about a man being tried in forty to forty-five minutes, and executed within twentyfive minutes thereafter. Here, we have a case that had been running on for months, and it would seem, by comparing this case with that case that it seems impossible that could have happened, but the witness testified to it. And if you want to contradict this testimony, when you come to your case you may present your testimony and we will rule on the contradiction at that time. But there is nothing gained by asking this witness any more questions along this line. That is our ruling. You're consuming time, and accomplishing nothing.
DR. KUBOSCHOK: I understand, and for the purpose of an expeditious trial I shall interrupt the cross-examination -- break off the cross-examination -- and I hope that the court authorities in Neuruppin will make the files available to me, and that I shall have the opportunity to prove the course of the trial through documents, through the records.
THE PRESIDENT: Any further cross-examination of this witness? Apparently not. Have you any re-direct?
MR. KING: The prosecution has no re-direct, your Honor.
THE PRESIDENT: The witness may be excused.
(The witness was excused.)
MR. KING: The next exhibit will be the Document NG-787, and will become, when offered in evidence, Exhibit 507. I suggest that this document be placed as the last document in Supplement Book 3-B. The document consists, almost entirely, of statistical summaries of cases heard before Reich courts for at least part of the war years, together with the sentences given as a result of these trials. We suggest that it may be of interest to the Court to correlate the statistical tables in this document with the information in the Warlimont document which was submitted this morning as Exhibit 499 -- that is, Document NG-1395.
That document showed the degree of losses, the comparative degree of losses, as the war continued past the zenith, and to the end. Without further comment we wish to offer this Document NG-787 as Exhibit 507.
DR. SCHILF (for the defendant Klemm): The document which was just handed in concerns the year 1942. The affidavit by Warlimont starts only with January 1943. Therefore, it is not clear how these two documents can be brought into relationship with each other. This refers only to the explanation made by the prosecutor.
MR. LAFOLLETTE: The explanation made by the prosecutor, of course, is not always binding on the Tribunal, and it might even be possible that the prosecutor might make a mistake. So we will let the Tribunal judge the validity of these remarks.
I would like to address the Tribunal a minute, if I may. The Tribunal has seen me in this capacity for many times, too many -We will rest the prosecution's case with the introduction of seven more documents. One of them, NG-988, which deals with the organization of the Reich Ministry of Justice. That document was just distributed today and we can not put it in under the twenty-four-hour rule. There are three documents which involve decisions of the Special Seante of the Peoples Court, in which the defendant Petersen sat as a lay judge: NG-1472, and NG-1473 -- the last two are still in what is know as the Typing Poel, but we hope to get them to distribute tomorrow. NG-1474is the affidavit of the witness Horst Guenter Franke. I am not going to run through the whole list of the comedy of errors or tragedies that have prevented as from producing Horst Guenter Franke --. Anyway, the last time we went for him they said he wasn't there, and then they called up and apologized -- and he is still up in the British Zone. If he does not get here by Wednesday we will put in his affidavit, and we can order him to be brought in and he can be cross-examined at a later time.
We started out ten days ago to get this witness.
NG-837 involves the defendant Lautz. NG-808 is an affidavit which involves the defendant Cuhorst. They will not be ready tomorrow. I have about reached the end of my capacity to be embarrassed, but I am doing everything I can to get these documents distributed so that we can have them by Wednesday.
As I said to the Tribunal, if Hans Guenter Franke doesn't appear in person on Wednesday, we will put in his affidavit and he can be crossexamined at some other time.
There is one other matter; I just gave the citation to Mr. Wooleyhan, who is going to check it. There is an enactment of the Reichstag of 1934, the Law Against Malicious Statements for the Unity of Party and State and Against Malicious Statements against the Party and Party Uniforms. I was of the opinion that we had introduced that into evidence. I still may be correct, but if I am mistaken I wish defense counsel would listen closely because I am going to make a request of them. This law, of course, is well known to every German lawyer, and if I can't get it processed so as to distribute it under the 24-hour rule before Wednesday, but have it available, I trust that defense counsel will permit me to finish up with that without requiring me to do that. I appreciate it very much.
That is the situation of the Prosecution's case, Your Honor. I will not offer one single document, other than these, that will delay. I regret that we can't do this tomorrow, but some of these documents are still being typed. Again, in fairness to every one in the organization here, some of this documentation came in very late; it was turned over by the Russian Government to the Document Center in Berlin not more than three weeks ago, and the processing of that and getting it down here is what has delayed some of these instruments, particularly the three instruments involving the defendant Petersen were just that group. I thought last week that the translation and the processing through the document room would clear certainly by today so we could close tomorrow.
I do ask that we recess until 9:30 Wednesday morning, and I have stated exactly what our proof will be.
THE PRESIDENT: What is the situation concerning the crossexamination of the affiants who have submitted affidavits?
MR. LA FOLLETTE: That, your Honor, I think both the prosecution and defense counsel are awaiting the decision of the Tribunal as to how it cares to decide on that matter.
The Tribunal's ruling, roughly as I recall it, was that these affiants would be examined in open court, unless the Court determined that it would be equally expeditious or satisfactory to examine them before a commissioner. If they were to be examined before the prosecution was considered to be technically closed, based on my experience in getting witnesses in here at any specific date, that would extend the beginning of the time for the defense to a point which I would not even want to contemplate. I have already stated my position on it. I certainly do not wish to work any disadvantage to the defense, and whatever ruling the Tribunal makes, of course, is satisfactory to me. I can be here, but I think under the circumstances that is a matter that almost, from a practical standpoint, must be done before a commissioner of some kind.
The Court will recall that I read here, several days back, the provisions of Ordinance 7 which seemed to indicate that even under all circumstances it was the obligation of the Secretary General's office, as written out, to produce these witnesses. That has never -- at least, as far as the prosecution witnesses are concerned, that has not been done.
The ruling of the Tribunal in the case of the affidavit of the witness Behms, in which discussion Dr. Grube and Dr. Schilf participated, which was on or about the 7th or 8th of March, was that there would be an opportunity for cross-examination where witnesses could possibly be made available. However, as I read the ruling, that ruling which was made at that time, the Court did not make it a condition to attaching any probative value to affidavits that there must be a crossexamination. Certainly, if there is no cross-examination either before an open court or before a commissioner, I would expect the Court to take all those facts into consideration in attaching probative value to any affidavit. It seems to me that in the end that is a ruling which the Tribunal must make, and one which perhaps it would care to make on Wednesday.
It has just been called to my attention that Exhibit 507 was offered, but no formal ruling that it was admitted was made, according to the notations at the prosecution's desk.
We note that was submitted, and it is to go into Supplement III-B, Your Honor. That is NG-787.
THE PRESIDENT: If no ruling has been made on that, the ruling will be made now that it will be received in evidence.
MR. LA FOLLETTE: Thank you, Your Honor.
THE PRESIDENT: Now, referring to the remarks that have just been made by the prosecution, I don't recall that any ruling was made that none of these affidavits would be regarded as evidence without the opportunity of cross-examination.
MR. LA FOLLETTE: Exactly; I thought I said that I understood the Court did not make any such ruling.
THE PRESIDENT: Oh, I see; I thought you said the reverse.
MR. LA FOLLETTE: No. The Court ruled that every opportunity should be afforded to permit cross-examination.
THE PRESIDENT: I don't remember putting it in that language, but the availability of the witness was the thing.
MR. LA FOLLETTE: Yes, the availability of the witness.
THE PRESIDENT: Is it possible that you are waiting for the opinion of the Tribunal now as to each individual case before you start anything?
MR. LA FOLLETTE: It was rather my thought that the Tribunal would state, not as to each individual affiant or as to each individual request, but the Tribunal would state whether or not it would appoint a commissioner who should be empowered to use whatever facilities are available to obtain these affiants for cross-examination, or whether the Tribunal anticipated that it would make the ruling that it would continue to hear cross-examination before the prosecution rests. I did not anticipate that would be the ruling of the Tribunal.
I am sure that defense counsel will consider that they have stated their requests to the Tribunal. There is no record in the transcript or otherwise of the exact names of those affiants desired.
I simply stated to the Court that some forty-one had been submitted to me as to which I did not think there was any duplication. I did not state the names.
I don't know how the Tribunal wants to act. I simply feel that the Tribunal will make a statement as to what requirements it will make for a request to cross-examine and that then defense counsel will certainly comply with it. I don't want to see them precluded from making their requests. As to how the matter is to be handled, of course, I think we are all waiting for a ruling from the Tribunal on that matter.
THE PRESIDENT: Well, is it possible that no witness will be produced for cross-examination until the Tribunal rules upon that proviso in the order?
MR. LA FOLLETTE: Yes, Your Honor. We don't know; we have as yet not known. We didn't contemplate that the Court intended to have this cross-examination in open court, because of the extensive period of time. However, we were waiting for the Tribunal to make some ruling as to how it intended to proceed; also, as to whether we were to produce these witnesses or the Secretary General's office. The defense was to make a request for these affiants.
THE PRESIDENT: But the order that was read here was very clear, that a request was to be made for the production of witnesses by name. If the order doesn't read that way, then I certainly don't know it. Following that order, there have been a very large number of those formal requests for production of witnesses and I have issued one of them, stating that where they are not able to produce them we would determine, at the time when that question arose, as to whether we would hear them by commissioner or what might be done. But it certainly seems to the Tribunal -- it certainly seems to me -- that we should begin on those witnesses who are available and who can be produced on very short notice. Why should we delay? I don't see how the Tribunal can pass on that proviso as to each witness unless we know whether the witness is available or not. It certainly is the meaning of that order, or the first half of it, at least, that the witnesses should be produced if available; and if not available, then we will determine whether the proviso requires, or permits, rather, taking the testimony by means of a commissioner.
Have I made myself clear?
MR. LA FOLLETTE: Your Honor, I am afraid I don't quite understand what your Honor is saying. I assumed the Court would make an order and would say, "We will appoint a commissioner who will begin hearing witnesses on such and such a date", and thereafter there would be turned over to this commissioner the names of the witnesses who were to be produced; and as rapidly as we could, by asking OCC to use their facilities, or as rapidly as the commissioner could use the facilities of the Secretary General's office, he would begin to say that he wanted such and such a witness produced before him. I mean, that was my understanding.
THE PRESIDENT: That certainly is not my understanding, and I don't think it is the understanding of the Tribunal. If we were preparing to have all this testimony taken by a commissioner, it was only in those cases where there would be some reason why a commissioner would be appointed to take certain testimony. It certainly was not intended to apply to all these witnesses. Frankly, I may say that if that procedure were to be followed here and the testimony were to be taken before a commissioner with no control over the extent of crossexamination, no limitation upon cross-examination, our experience here is that cross-examination would run on for a good many months. There will be some control over that cross-examination, I want to warn everybody now.
MR. LA FOLLETTE: Your Honor, as I read this order, it says that in cases where the prosecution has offered the affidavit of a witness and the defense has requested an opportunity to cross-examine that witness, defense counsel shall apply to the Tribunal in the regular manner for his production for cross-examination. "In the regular manner", I assume, means upon the forms which we have been using;
that is the regular manner for his production for cross-examination. Then: Such cross-examination can be conducted in open court, unless the Tribunal determines that such examination can be fairly and accurately conducted before a commissioner, in which event the Tribunal may make such an order.
Now, as I read it, defense counsel shall apply, in the regular manner, for the production of a witness for cross-examination.
THE PRESIDENT: That application has been made and approved.
MR. LA FOLLETTE: That application has been made. Now, the defense counsel -
THE PRESIDENT: And then it goes on to say that testimony will be taken in open court, unless. But that proviso --- it begins with the word "unless" -- must be determined as to each witness as the occasion arises. Surely that must be clear.
MR. LA FOLLETTE: I think that is quite clear, but it isn't clear to me, Your Honor, as to whether this Tribunal anticipated that the prosecution should produce Witness A or Witness B or Witness C, or whether the Tribunal would make an order upon some one to produce these witnesses. Since the Court's ruling was not that an affidavit would not be considered under any circumstances unless a witness was produced, it has never occurred to me that it was the sole obligation of the prosecution staff to get these witnesses in.
Court No. III, Case No. 3.
Their names can be sent to the Secretary General's office by the Tribunal and they could be sent from there, if they have no force, over to Lt. Martin's office. However, if a commissioner were appointed, the commissioner himself could make such orders for the production of these bodies as he could possibly make. I can't get these witnesses. I mean, I didn't know I was to get these witnesses in. If I am, I shall try, but I can't guarantee any day they will be here. That is physically impossible. I don't know why, but it is.
THE PRESIDENT: The Tribunal has nothing to do with the production of witnesses. All the Tribunal does is to approve the application for the production of a witness. That other is the red tape that we have nothing to do with, surely. All those applications have been made.
MR. LA FOLLETTE: Maybe the Secretary General's office has something to do with it, Your Honor. Some one ought to produce these witnesses in here for the defendants. I don't think it is the obligation of the prosecution. I don't know how we can do it.
THE PRESIDENT: I don't say it is, but it certainly isn't the province of the Tribunal to go out and bring in a witness.
MR. LA FOLLETTE: It occurred to me it was in the province of the Tribunal to make such directions and orders to the Secretary General under Ordinance 7 that they would begin to got them in. That is what I thought the procedure would be.
THE PRESIDENT: We have never been doing that. When applications have been made for a witness we have only -
MR. LA FOLLETTE: No, only for the reason, Your Honor, where we have sought to expand the testimony of a witness or could get him, we have made an affidavit and we produced the witness and the affidavit at the same time.
DR. SCHUBERT (For the Defendant Oeschey): May it please the Court, may I make a remark and a suggestion in order to advance the matter regarding the affiants who are going to be witnesses? This matter concerns, to a special extent, the defendant whom I am represent Court No. III, Case No. 3.ing as well as all of the other defendants who were presiding judges of Special Courts.
As far as the defendant Oeschey is concerned, we are concerned with cases which were pending before the Special Court Nuremberg, and the affiant witnesses who were concerned with this are either living in Nuremberg itself or in the vicinity, the great proximity, and in my opinion in most of the cases all that is needed is a telephone call in order to produce these witnesses. For example, in the case of Oeschey there are four lawyers who are resident here who have given affidavits. These lawyers have their offices here and could be produced, in my opinion, without any difficulty whatsoever. The same is the case with a number of other witnesses. Therefore I believe that these witnesses could appear before the Tribunal in a very short time, and of course I am ready to undertake the cross examination immediately.
THE PRESIDENT: That seems a very pertinent suggestion to me. The Tribunal is here to hear testimony when it is offered, and we certainly are not going to be put in the position of bringing in witnesses on behalf of either the Prosecution or the defense. When witnesses are produced we will hear them, and we will rule upon questions concerning their testimony as those questions are made. That is all we have to say.
MR. LA FOLLETTE: Well, if Your Honor please, I haven't anything to say on that subject further at this time. Perhaps I should be obligated to prepare something in writing for the Tribunal Wednesday.
In view of the kind consent given by defense counsel, at this time I would like to offer as Prosecution Exhibit 1393 PS the 1934 Reichs Gesetzblatt Part I, Page 1269, the law on treacherous acts against state and party and for the protection of party uniforms of 20 December 1934. This was a PS document which was used in the IMT. The Prosecution offers that as Prosecution's Exhibit No. 508.
THE PRESIDENT: Give me that exhibit number again.
MR. LA FOLLETTE: Yes, Your Honor.
Court No. III, Case No. 3.
THE PRESIDENT: I mean not the exhibit number.
MR. LA FOLLETTE: Yes, the document number. 1393 PS.
THE PRESIDENT: Where do you suggest that should be attached?
MR. LA FOLLETTE: That should be in Book 2, Your Honor. It is a law. That is all we have to offer today.
THE PRESIDENT: It would seem to us that very little additional cooperation is necessary to have some witnesses here tomorrow morning. If that is too rapid, then surely by Wednesday morning you should have some witnesses here, because it has been suggested that they live here in Nuremberg, they have telephones, and we see no valid reason for putting this off from day to day.
MR. LA FOLLETTE: Yes, Your Honor. We will do the best we can on Wednesday on that matter. If we can get them in for cross examination, the Tribunal desires to cross examine in open court?
THE PRESIDENT: Well, there are certain witnesses that we have clearly stated will be examined in open court. It is only because they come within the terms of the proviso that we will consider as the cases arise as to whether they should be heard by a commissioner. But it will be our wish and our endeavor to hear all of them in open court if they can be produced in open court.
MR. LA FOLLETTE: Yes, Your Honor.
THE PRESIDENT: But we are not requiring them if they are not available. That is one of the provisos again of the act itself.
MR. LA FOLLETTE: Yes, Your Honor.
THE PRESIDENT: Is that all that is suggested today?
MR. LA FOLLETTE: That is all that is available.
THE PRESIDENT: In just a moment I will have a document here that I will offer. The suggestion has been made, and therefore I make the announcement, that if we had the list of the affiants that defense counsel desire to cross examine so that we could take that list and see who those affiants are and consider the importance of the affidavit and the importance of hearing them in open court rather than by commis Court No. III, Case No. 3.sioner, we will undertake to scan that list and see if we can be of some service in that matter.
In that way we will probably expedite the matter to some extent.
MR. LA FOLLETTE: Yes, Your Honor. We have had a list of those which were in the first instance sent to us by the defense counsel. I will try to get that to the Court. The only thing is I don't want to assume the responsibility of precluding any defense counsel by possibly not making an accurate list, because these same names were sent from Defense Center to the Secretary General's Office to the Court and go back to the Secretary General's office. I will be glad to submit that list. The only thing is, as I say, Your Honor, I just don't want to assume the complete responsibility for maybe making a mistake where I thought I was simply getting a list for the purpose of seeing how many there were and how many were to be cross examined by the same counsel, but I will submit the list that I have certainly tomorrow morning.
THE PRESIDENT: I assume, without knowing, that defense counsel will not want to bring in the witnesses on each and every affidavit. Surely there may be some of those that they will not want to have brought in. That is the reason why I suggested a few days ago that defense counsel submit a list of the names of affiants whom they desire to cross examine.
At this point I want to make some observations, and I hope you will listen carefully. I will preface what I am about to read with the statement that it may be that attorneys in Germany are not so much accustomed to cross examination as they are back in the States, and from what we have learned here, cross examination of witnesses is not much indulged, if at all. At any rate, I desire to read something at this time.
"Inasmuch as we are now about to enter upon the cross examination of a large number of affiants whose affidavits have heretofore been introduced into evidence by the prosecution, a few observations concerning cross examination of witnesses will be in order.
"We feel that they are more particularly in order because it is apparent from our experiences up to this time that cross examination of witnesses is something which is indulged very little if at all in court trial in Germany.
"It is further our observation that defense counsel do not fully appreciate the real function of cross examination. It is not the purpose to give an opportunity to counsel to have an argument with opposing witnesses, neither is cross examination primarily a defensive weapon. Cross examination should not go beyond the field of the direct examination and cross examination of affiants must be confined strictly to the allegations of the affidavits. If the cross examiner enters a wider field he makes the witness his own witness and to that extent vouches for the answer of the witness. While he may not strictly be bound by the answer in the sense that he can not thereafter contradict it, it is at least an acceptance of the prima facie truth of such statements.
"It should further be added that questions should not be asked merely to give the witness an opportunity to repeat and possibly re-repeat the testimony which he has given in the direct examination because if the cross examiner has no other purpose than that he has only benefitted the opposing side.
"Cross examination should not in any event be unreasonably long. The Tribunal has the right to limit cross examination within reasonable bounds and will do so if the questions are not pertinent or if they are repetitious.
"Counsel should be admonished that only those members of defense counsel may cross examine a witness if the affidavit of that witness contains allegations affecting the client of such counsel. Not more than one attorney may cross examine any witness unless the testimony of that witness affects definitely more than one defendant.
"Cross examination counsel should not make affirmative statements of fact or law expecting thereby to produce the effect of introducing such statements of fact into evidence or such statements of law as arguments in the case.
"The cross examination for the purpose of challenging the character or the veracity of the witness should ordinarily be limited to very few questions. Unless the cross examiner expects to be able to cause the witness to change or modify some statement given in direct oral examination or affidavit, the cross examination may result in detriment rather than benefit.
"Defense counsel are admonished that if the cross examination becomes lengthy it will result in having the cross examination to be made before a Commissioner.
"Affidavits properly sworn to are admissible in evidence and yet consideration of a fair trial accords to the defendants the right to cross examine the witnesses who have made such affidavits. This right, however, is a matter largely in the discretion of the court to be exercised in a judicial and not in an arbitrary manner.
"We trust that the cross examination of these affiants will be made in accordance with these observations."
I have extra copies. I will give one to the Prosecution; one to the Defense Counsel; and another copy to the Reporters.
We will, therefore, at this time recess the Court until Wednesday morning at nine-thirty.
(The Tribunal adjourned until 21 May 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 21 May 1947, 0930-1630, Justice Carrington T. Marshall presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III Military Tribunal III is now in session.
God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if the defendants are all present.
THE MARSHAL: May it please, Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been temporarily excused at his own request. Let proper notation be made.
MR. KING: May I inquire if the Secretary General has copies for distribution of the Document NG-837.
The Document NG-837, which will become Exhibit 509 when received in evidence, should be placed as the last document in the Document Book 3-B Supplement. This document consists of an indictment only, of a number - nine, to be exact of Czechoslovak citizens who were arrested and indicted for high treason - the high treason consisting of distributing pamphlets which spoke against the occupation of Czechoslovakia by the German forces. Each of the nine individuals, as appears from the indictment, were residents of Czechoslovakia, were domiciled there, each have no previous criminal record. All of these facts are clear from the indictment.
THE PRESIDENT: Where were the courts located?
MR. KING: The court before which they were tried was presumably in Berlin since these individuals were held in German prisons and the indictment is dated, Berlin 2 October 1942, and is signed by the defendant Lautz.