Ferber joined the special court at Nurnberg because, on account of the many years of friendship between us, he was particularly anxious to work with me.
Groben I did not know personally. He was investigating judge and a district court counsellor. A few weeks before October, 1941, he called on me several times and asked me whether he could be employed with me, His work as an investigating judge, he didn't like any longer. He only had one doubt. He thought that his superior might be against it, and asked me to talk to him, and that is what I did. Groben, after he had been to see me several times and had requested me to help him, was transferred to the special court at Number,; and what is of importance here is the fact that those visits were paid by him on me at a time after Groben had dealt with the Katzenberger case and after the appeal against the issuance of the arrest warrant had been rejected by me.
Q Groben, after the rejection of the Katzenberger plea and after the arrest of Seiler, called on you?
A Yes, I know that for certain.
Q Did you not have political doubts about the employment of Groben with you?
A No, not in the least, for my criticism against Groben's method of conducting the affair, I didn't at all consider a political matter. Nobody thought of that at the time, what I criticized were purely points of professional clumsiness.
Q Were your assistants informed about what went on at the special courts before they joined you?
A Naturally , they knew what the special court at Nurnberg was, and what the work was like. They also knew what cases were tried there and how they were tried.
Q According to the English transcript, page 1744, Ferber mentioned that his contact with you had been limited to purely conventional contact. How, what was the case there?
A That description which quite a number of witnesses have wanted to make here isn't correct. We were all comrades, and all of us were on friendly terms with each other. Perhaps, the tone was a little rough now and then, but everybody knew what was what, and nothing serious ever happened which one could have used to defame anybody. The only thing that happened was that letter which Meyer had written behind our backs to the SD agency. On duty my demands on the people were very high, but I myself worked to the utmost of my capacity, and people were not offended with me because my standards for people were so high. Naturally, it is possible -- what I want to say, it would be surprising indeed if a nasty word of some kind or other hadn't been spoken some time or other; but those matters were not carried. beyond our office. In their contacts with me, nobody had to be conventional. And so everything with us was done in a very natural way. People came to see me when they wished, and they came at all times of the day. Everybody told me what he had come to tell me without being in any way afraid or shy. That was what really happened in those days. Being in each other's company so often wnen we went outside Nurnberg, brought us closer to one another; and in particular among those of us who came from Bavaria, a sort of soldier's tone was used which our colleagues from northern Germ any soon began to like,too anyway, they became used to it. People were frank with me, too. It happened that somebody who hadn't finished his work came to see me and told me -- and that is of importance, -- that he couldn't get finished, and would I be good enough to dictate the judgment to him.
And if one parson had done it, somebody else would do it too. And quite often, I dictated judgments to relieve my assistants, and this friendly relations among us did not end with my transfer to Berlin....
Q I believe that is enough. Did any of your assistants ever try to leave the special court for reasons of health or other reasons?
A That attempt was not made in one single case.
Q Were there not people among them who could, have done so quite easily?
A Naturally. Not one of my people, or anyway, only a very few of them were so healthy that because of the terrific strain they could not have asked for a transfer for reasons of health. Gross for example, suffered from a heart disease, and therefore was not called up for military service.
THE PRESIDENT: I think that is sufficient.
Q If you assigned somebody to some proceedings, could he simply stay away?
A He couldn't really do that, but if he was particularly anxious, it wasn't in possible for him. He could change with another man, or if he might have had serious conflicts with his own conscience in some particular cage, all he had to do was to say he was sick.
Q I think that is enough. There are only a few points where the witnesses say that there had been any arguments about them. Ye only want to deal with two points. In Exhibit 224, Groben says that he repeatedly had told you that the law concerning public enemies could not be applied against Poles, and you are alleged to have stopped him very brusquely. Ferber says that Groben was right. How, what is the truth really about that application of the law against public enemies, if the offenders were Poles?
A I have thought about that for a long time, as to what could have been the reasons for that, as to whether we had any real serious arguments and disputes, and I can't remember a single dispute.
This question of the applicability of the law against public enemies in the case of Polish offenders. I have a very vague recollection of that, but it is interesting to see that this particular question has been broached. One must bear in mind that Groben joined the special court on the first of October 1941 therefore, he can have raised that question for the first time in '41 or '42, and now one must remember that the law against public enemies had been applied by all German courts since the end of 1939, not only by the special courts but also by the penal chambers and by the Reich Supreme Court and had all the time been applied on foreigners, including Poles. furthermore, one must bear in mind that for example Ferber as a public prosecutor since 1939 and afterwards as a judge, always, like all the other judges in the German Reich, had applied the law against public enemies and Poles. And now Groben raises the question, and that in 1941 and '42, and it is a serious question with him, as to whether law against public enemies can be applied to Poles. It is quite possible that I no longer considered that to be a question or a problem at all. In effect, he didn't state any reasons here as to why the law against public enemies could not be applied to Poles. That question that naturally Poles are subject to German law, has never been disputed , it hasn't been disputed at all in this trial here, therefore, it is possible that I may have said something to him when he raised that question repeatedly, but that too was just a friendly matter of discussion.
Q Ostemeier, Exhibit 222, said that he had a legal argument with you because of the legal opinion on the subject of passing on leaflets which had been dropped from a place to incite the population to raise against the re ire. What was the issue of that argument?
A That too was quite a simple, insignificant argument, and the matter was later settled. The question was not whether people had to be punished who picked up such leaflets, and who instead of handing them over to the police, passed them on to others.
For, by doing that, they worked into the hands of the enemy, and I believe that in some way that is punishable everywhere. The question was, however, what steps one should take and on what legal basis; and it was my view that such actions were to be considered as so-called negligent high treason (Fahrlaessiger Hochverrat) under Article 65 of the penal code, According to that a person is punishable if he spreads leaflets the contents of which is tantamount to high treason, but who when spreading such leaflets was not fully aware of the significance of his action. That was the provision which was of importance in the consideration of the spreading of leaflets. Ostermeier couldn't get along with the idea of "spreading leafflets "; he thought if one person hands on a leaflet to the next person it did not really mean that he had been spreading leaflets. He was inclined to deal with the matter from the point of view of the Malicious Acts Law. I was against that for the reason that we could only apply the Malicious Acts Law when we assumed that by spreading the leaflets the person intended to convey that the contents of the leaflets corresponded to his own ideas. That, as a rule, however, was not the case, but people passed on the leaflets just to make themselves important. And that is why to deal with such an offense from the point of view of it not having been a deliberate action was closer to reality than the assumption of some political angle which would -also have been more injurious to the persons concerned, the offenders. Ostermeier also could not get on with the idea that if one interpreted it as negligent high treason the minimum sentence was one month imprisonment; under the Malicious Acts Law the minimum sentence was only one day imprisonment. Anyhow, the end of the argument was that we tried the case and that we passed a judgment on the basis which I considered, correct. And we did not sentence people to imprisonment, but we applied the so-called Fines Law, and we imposed fines. And on that basis we dealt with all future cases of that type, unless they had any peculiarities. That was the whole argument that we had about that
Q: During the time when you were president of the special court, who worked at the general public prosecutor's office?
A: When on the first of April 1937, I came to Nurnberg Doebig was the general public prosecutor, his deputy was Doehring, the senior public prosecutor. In the autumn of 1937, Doebig became president of the district court of appeals, and Dentz became general public prosecutor. After Doebig's promotion to president cf the Senate, his closest collaborator were senior public prosecutor Engert and senior district court counsellor Grueb. Engert was the deputy of the general public prosecutor.
Q: Did you have any direct, official contact with the general public prosecution?
A: Very little. I should like to say almost none. Only Engert as a farmer collaborator of mine and deputy, for reasons of friendship, used to come and call on me, and naturally we discussed official matters which interested us both He intervened officially in the Grasser case, With Grueb I had hardly any contact at all.
Q: Who were the senior public prosecutors while you were residing judge of the special court?
A. Until the autumn of 1937 it was Hoesch; then it was Denzler until the spring cf '39; and then for a long time Wilhelm Hoffmann acted as deputy -- the witness who was examined here. The successor of Wilhelm Hoffmann -- that is to say, he wasn't the successor of Wilhelm Hoffmann, but rather in 1941 the position of the senior public prosecutor was filled again by Schroeder. He had previously been senior public prosecutor at Wuerzburg.
Q: For how long did Schroeder work as senior public prosecutor when you were presiding judge at the special court?
A: He was ill for quite a while. I believe that he was ill for four or five months. If one deducts that period and also the time he spent on leave. I think that he was there for approximately one year.
Q: In your relations with the prosecution while Schroeder was in office, did any changes occur?
A: In no way. Business was dealt with in the same way after Schroeder assumed his position as we had dealt with it before.
Q: You were a friend of Schroeder's, weren't you?
A: Yes, we had been friends for 20 years.
Q: Didn't it happen then that you asked for his advice on some legal problem?
A: Naturally I did, not only because we knew each other, but because it is the custom that one discusses questions where one in interested in a possible different opinion of the other person; and people who are friends and who therefore meet, more ofter naturally talk about such matters.
Q: Did Schroeder need your advise at all?
A: Schroeder as the official opinions that were given about him well show, was known as a very able thorough and conscientious public prosecutor and judge at the time before the seizure of power. But that did not exclude the fact that concerning a question in welch one was interested one liked to hear another opinion. Not the question as to whether one discussed this or the other problem, but whether one preserved one's independence is of importance far and to us it was a matter of course that we preserved our independence.
Q: Were things different with Schroeder's predecessors?
A: Only with Denzler I did not talk about cases which were pending with me for very natural reasons, because Denzler was Gaurechtsamtswalter, and that was what I arranged with him because I wanted to keep up appearances anyhow. We were always having conversations with the public prosecutors we were always entertaining relations with them, and that was no different than anywhere else in the Reich. Nobody considered that to be a crime. One must bear in mind, that the prosecution in Germany because of its historical position with the courts, is different from the position of the prosecution elsewhere.
THE PRESIDENT: That matter has been discussed many times and sufficiently discussed, but it might be mentioned in passing that all of the witnesses who have discussed the function of the public prosecutor elsewhere seemed to be entirely in the position of misunderstanding the duties of the public prosecutor under the Anglo-American system. I mention that for your advisement, but we have certainly understood what the function theoretically of the public prosecutor in Germany was. You have not understood the function of that same officer in the United States.
DR. KOESSL: Yes, Your Honor.
BY DR. KOESSL:
Q: Did your deputies act differently?
A: It was the same everywhere.
Q: It was alleged that on trips the public officer asked you for your opinion, can you tell us about that?
A: That happened too. As has been stated repeatedly, we frequently were away for up to a week. The prosecutors likewise were overburdened, and took files away with them on the trips on which they worked during their leisure time. And it happened frequently that one of them came to see me and asked me what I thought about this or the other legal question, or what I thought about certain questions of evidence.
I talked about it with him, and I cold him what my opinion was, and he told me his opinion. It didn't internet me how he dealt with the matter when it came to the point. Not only one person did that, but I think I can say that all of them did without exception, but in no case- was there on the one side or the other the intention to influence the other person in their opinions. Those were just friendly Informal talks, and there was nothing one could see in them.
Q: I believe that is enough. Did you ever see it happen that judges or public prosecutors were promoted because they had played a part in certain proceedings?
A: As for as I can tell, that only happened in Germany to the judges who in 24 played a part in the hitler trial.
Q: What generally speaking were your relations with the experts at the prosecution office?
A.- We were definitely on good terms; on account of the selection which was made for service with the prosecution in Bavaria, some of those people were very gifted, as for example, Paulus, Ferazin, Markl, and Hoffman; cooperation was excellent. Naturally there were people who were not so good at their jobs; there were people who only came as reliefs and only wore temporarily transferred to the Prosecution, but the only difficulties that occurred we had. with Dorfmueller, but those difficulties had no political flavor whatsoever. They were exclusively of an official nature. The reason for them was that Dorfmueller, by character, by his nature, couldn't get greatly interested in the service with the prosecution and was always inclined into his work to take the line of least resistance. As for individual incidents I can't recall any.
THE PRESIDENT: I think you have sufficiently covered that. You asked what his relations were and he said they were pleas and and cooperative. Pass on to something else.
Q.- In the English transcript, page 3205, Dorfmueller says that many a night he had lain awake, sleepless, because he was so enraged and so indignant about the treatment you had meted out to him. What was that about ?
A.- On account of this charge I should have given a full reply to the previous question you asked me.
Q.- Perhaps you could tell us something about your political doubts as concerns Dorfmueller. Did you have any?
A.- There were no political misgivings at all. The criticism was leveled only against his failing in the performance of his official duty. He called police officials instead of witnesses of the offense, which was easier, but not admissible by law, and he submitted files to mo without the indictment and frequently the reasons he gave for his indictment were wrong. For some time I put up with all that. Naturally, in view of the independence of the prosecution, these matters didn't concern me. I should have approached a superior, the general public prosecutor, but that was a way which on principle I did not take; I chose the friendly approach, and told him what I thought of him when I got the chance.
As far as I was concerned that settled the matter, and I assumed that it settled the latter for him too. That he should get so involved in the matter the way he describes it, that was not what I intended to happen, and I didn't notice any of that in his personal contact with me; and I have to emphasize that my personal relations with him outside the office, when we met or when we were together on official trips, were no different from what they were with my other comrades.
Q.- Dorfmueller, on page 3203 of the English transcript, says we had to put up with the laws such as they were promulgated and we had to put up with the laws such as they were promulgated and we had to ap ply them whether we liked it or not. has that the general policy?
THE PRESIDENT: You have answered that question many, many times; you have covered that point.
A.- Yes.
THE PRESIDENT: All right. It is unnecessary for you to answer a question when the Court instructs you that you needn't answer it; it is unnecessary for you thereafter to answer it.
A.- But I understood that I had already answered it.
THE PRESIDENT: Thereafter you answered it again. Go ahead, Q.- Dorfmueller says in the English transcript, page 3205 that he had sleepless nights because he was so furious and so indignant.
That is a question which you didn't answer before.
THE PRESIDENT: I think we don't care to hear about it.
Q.- Concerning the position of the Prosecution, concerning their sphere of duties vis a vis the court, in order to become acquainted with all that, will you tell us something about the general opinion on that by reading to us from Loewe, page 1188, and will you read Footnote 5, please, under the heading "prosecution".A.- Footnote 5, on page 1188, says as far as it concerns us here:
The Prosecution is an independent agency with the court. Consequently in the execution of its duties, it is independent of the court. It comes under the court police jurisdiction, but not under the disciplinary jurisdiction of the court. It is undisputed that in all phases of the proceedings the prosecution has an official position. What is disputed is whether at certain phases of the proceedings the prosecution also has the position of being a party. From the substantive point of view, the prosecution can never be a party, but from the formal point of view the prosecution at the trial occupies the position of a party.
Q.- All right. Would you now please read Footnote L, referring to Article 142 of the Judicature Act, and would you read out please what it says there about the organization of the Prosecution. That question becomes important in the Grasser case.
A.- In Footnote I, referring to Article 142, it says: The organization of the prosecution is similar to that of the ordinary courts, and as in the case of those courts, so in the ca.se of the officials of the prosecution, both factual and local competency applies. Accordingly, the prosecution is split up into a number of independent agencies, approximately in accordance with the number of courts. The independence of the latter, however, is limited insofar as the prosecution to a certain extent forms a uniform organisms, the head of which is the supreme agency of the administration of justice. The view of French law of the unity and indivisibility of the prosecution even though there wore restrictions had been adopted by the majority of the German leader, and their laws, also and again in a restricted way, it was introduced into the Judicature Act. Under "F" it says that in the relations of the prosecution offices in various districts with one another, the point of view of the unity of the prosecution generally does not apply.
Q.- That is the point of view which plays such a great part in the Grasser case. Will you tell us briefly how -
THE PRESIDENT: I think we had better postpone that until tomorrow morning.
Dr. Koessl can you give the Tribunal an estimate as to how much longer you propose, if permitted, to take in the examination of this witness?
DR. KOESSL: May it please the court, I had thought that the clarification of the position of the presiding judge, his work, the conduct of the trial, and everything connected with his task, that all that should be dealt with rather more thoroughly because the defense did now call an expert on German procedure. Therefore, I am compelled to deal with many points rather more extensively, and again and again refer to the law and the commentary.
THE PRESIDENT: Now, could you give me an answer to my question?
DR. KOESSL: I think that it will take approximately two days -may be three days. At any rate these questions are connected with the cases which we will have to discuss afterwards and the explanations which have been given here, will serve in all points the preparation of the cases to be discussed later, and many things, therefore, will be dealt with more quickly afterwards when we come to the individual cases, because the fundamental position has already been discussed in detail beforehand.
THE PRESIDENT: We suggest to you to consolidate your questions so as to relate to the more important matters. We are required to conduct a fair, expeditious trial.
DR. KOESSL: Very well, your Honor.
THE PRESIDENT: We will recess until 9:30 tomorrow morning.
(The Tribunal adjourned until 0930 hours, 19 August, 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 19 August 1947, 0930-1630, Justice James T. Brand, 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.
THU 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 is excused; proper notation will be made.
Will Counsel and the witness kindly avail themselves of their earphones so that they may hear the ruling of the Tribunal. The Tribunal has given consideration to the matter of obtaining a expeditious trial, and the Tribunal is unanimously of the opinion that the time of the Tribunal and of the counsel and of all parties concerned has been spent in large measure in the lengthy dealing with matters of relatively unimportant relevancy. Article 6, of Ordinance 7, which controls procedural powers of this Tribunal, provides: The Tribunals may require that they be informed of the nature of any evidence before it is offered so that they may rule upon the relevance thereof.
There has been considerable suggestion and some exhortation to counsel and to the witness to proceed with greater rapidity and greater brevity. Suggestions and exhortations haven't been sufficient to accomplish the results which the Tribunal demands.
We desire insofar as it may be possible to leave the control of the examination of this witness in the hands of his counsel, but we are stating to counsel and to the witness now that unless better progress is made by concentrating your efforts upon the essential matters, and by more brief replies to the questions which are asked, the Tribunal fill consider it at noon today whether or not it should require you in ever instance, or in appropriate instances, to state in advance what you propose to prove before you are permitted to prove it. We will also consider whether to impose a time limit upon your examination.
Now this matter, gentlemen, is one for your consideration. If you waste your time upon long-winded answers and irrelevant questions --and I refer particularly to the almost day long discussions of the loving, not to say friendly relationships between all of the parties who are involved in the Nurnberg entourage -- unless you render those discussions more brief, you will find yourselves without the time which you think you require for more important matters later.
This is the opinion of the Tribunal, unanimously stated, and we are going to effect you to get down to business and discuss your cases; then you fill not read any more quotations from the German Procedural Code; if you shall be of the opinion that it is necessary to present them, present them in writing.
We hope we have made our requirements clear to you. These general matters, I am particularly referring to the relationships between those different parties -- has been over-extended in the testimony and unnecessarily so; and it does not aided the case of the defendant in the slightest degree.
You may proceed under these instructions. The results are e i m your hands
DR. KOESSL: May it please the Tribunal, I will endeavor to heed the exhortations of the Court.
My questions and explanations so far were just as painful to we as they were for the Tribunal, but on account of the charges in the indictment, I thought I was forced to deal with these matters. I hope I will not be misunderstood, but I did not follow my own initiative but only under the force of the charges that were brou; ht up against my client,
THE PRESIDENT: Let me say one thing more to you, Counsel for the prosecution and counsel for every defendant may rest assured that whatever decision this Tribunal makes, it will not be based on trivialities in the evidence. We are concerned with the substantial charges, and the substantial evidence. There may be many trivialities which can be said to be relevant, but which could not possibly be decisive. We are concerned with the important charges and the substantial evidence, and counsel for both sides may rely on that statement.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued BY DR. KOESEL: (Attorney for the Defendant Rothaug) I ask now to be permitted to conclude the examination today.
Yesterday I tried to make certain changes in my questions, of certain omissions, but in consideration of the fact that no expert witness for German Penal Procedure has appeared, it is necessary in my opinion that procedure be explained in order to refute the charges which are made against my client. I hope that at latest tomorrow I shall be able to begin the discussion of the individual cases.
THE PRESIDENT: I think you had better begin it before tomorrow, Dr. Koessl. If you have procedural rules, bet them out in written form, arm hand them to the Court.
Q.- Witness, concerning the experts which appeared before your court the charges are in the direction that you had also forced these experts into the political line. What was your relations to the experts?
A.- My relations to the experts and to doctors outside of the office and within my job always were correct and friendly. There were three gentlemen -- Kunz, who appeared here; Baur, who was also a witness here; and a certain Schuhmacker.
Q.- Did you ever have any difficulties with these gentlemen? Any differences of opinion?
A.- Almost there were no difficulties.
Q.- Kunz complains that in his activity as an expert he was limited by you. What can you tell us about that?
A.- That was one individual instance, and it wasn't I who restricted him in any way, but I only told the public prosecutor who dealt with the case that Kunz in his expert opinion went far beyond the duties regarding a purely medial question, and delved into a sphere which was reserved for the judge only, namely, the question of proof. Apparently for that reason, the public prosecutor who approved my opinion had a conference with Kunz. That was an entirely insignificant matter.
Q.- Did you have any conferences with the experts?
A.- It occurred only very infrequently that the necessity had arisen to have a brief conference with the experts. I believe that such conferences with Kunz and Baur and with Kunz and Schuhmacker never took place -- very infrequently with Baur.
Q.- It is asserted that the plan existed to eliminate, to exclude Kunz from working as an expert. What do you know about that?
A.- That is based upon the following. Baur repeatedly complained to me that Kunz in his opinion particularly kept him away from more important cases, because he disliked him, and he asked me that I should request him personally for cases of that kind. But I explained to him that for official reasons, reasons of my official position, I did not want to do that because we couldn't do anything like that, and that was that. I informed my people of that request made by Baur, and also of my decision.
I assume that that rumor is based upon just that; but the intention to exclude Kunz never existed.
Q.- But that was the matter in which you made your request for an expert?
A. I have to emphasize it was necessary only in about one per cent of all cases that I had to request an expert. In 99 per cent of all cases the expert was brought into the case by the public prosecutor who nominated him in the indictment as an expert for the case after he had requested a written opinion from him.
Q. New, the legal position of the expert, according to the prevailing opinion is supposed to be determined. May it please the Tribunal, I ask for permission to complete the explanations given up to new, to continue with these explanations , the Questions to explain the position of the judge in order to be able then to go on and. discuss individual cases.
THE PRESIDENT: What kind -- what do you mean by the position of the judge. We understand that the experts' opinions were only advisory to the Tribunal. What is it you wish to show?
DR KOESSL: Various charges have been raised, according to which Rothaug kept the expert's opinion too limited, too restricted; didn't leave them any latitude, and in a certain way didn't consider them important enough; and similar charges -- all these points I want to elucidate on the basis of the code of Procedure, and then I want to discuss the position of the defense counsel, and deal with individual charges which were raised in that connection.
THE PRESIDENT: Much of that material has already been adequately covered. The Tribunal is certainly well aware of the fact that the testimony and reports of the experts are advisory only, and are not binding upon the Tribunal - I mean upon the special court, or upon any other courts so far as we know. Much of what you suggest is cumulative evidence. You will have to make it brief, and insofar as you rely upon the code of procedure, you may set that forth in an exhibit, in writing. Any specific charge of alleged improper conduct, of course, may be specifically answered.
DR. KOESSEL: Yes, Your Honor.
Q. Witness, would you please give us a brief explanation concerning the position of the experts.
A. The expert is an assistant to the judge; his task is to draw conclusions from facts; he is under the direction of the court; and the judge, according to the law, at any time may restrict him to certain points.
THE PRESIDENT: That is in substance what the Tribunal just started we fully understood in advance.
Q. Among the doctors at the district court, could you select the one you liked?
A. Of course.
Q. Did you do that?
A. One stuck to the rule which had become routine.
Q. What was the rule?
A. The rule that one wrote to the Doctor at the District Court of Appeal.
Q. You have been charged with having restricted the experts too much in their work. Will you please look at Article 78, and on the basis of the commentary, will you please state -- I shall skip that question. What significance did the written opinions have in the files?
A. The written opinions which were in the file were requested by the prosecution, not by the court. Their only purpose was for the presecution to solve the problem whether the prosecutor wanted to file an indictment or not. From that time on, that is from the moment when the indictment was filed, these expert opinions had only informative value. The expert had to deliver his opinion at the trial personally and orally, based upon the facts which were produced by the trial itself.
Q. Could he read his formal opinion - No his written opinion?
A. The answer to that can be found from what I have just said; of course not.
Q. has the court bound by the expert opinion - the opinion of the expert?