A Yes, the same thing applied to Leubel.
Q The same situation applied to all three enterprises?
A Yes. In practice, however, these firms did practically not have to deal with any legal questions. Galke already left after approximately three months.
THE PRESIDENT: We will recess now until tomorrow morning at ninethirty.
(The Tribunal adjourned until 0930 hours 15 August 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Oswald Pohl, et al, defendants, sitting at Nurnberg, Germany, on 15 August 1947, 0930-1630, Justice Robert M. Toms, presiding.
THE MARSHAL: Take your seats, please.
The Honorable, the Judges of Military Tribunal II. Military Tribunal II is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: The Tribunal has asked defense counsel to be present this morning in order to arrange the procedure on the final arguments. It has been suggested that in view of the number of defendants, that the defense counsel present their arguments first, one by one, and that the prosecution then follow with its closing argument. Is there any objection to that? It hasn't been decided. That is the proposal.
DR. SEIDL (for defendant Oswald Pohl): May it please the Tribunal, with regard to the sequence which is to be followed by the prosecution and the defense, we have up to now not as yet reached a uniform agreement as regards the procedure to be followed so far. In the trial before the IMT, first the defense had the word. On the other hand, in the trial before Military Tribunal I, the medical trial, things were handled in such a way that first the prosecution had their word, and then the defense. I personally would like to express the desire that in this trial the latter procedure should be followed. This should be done for the reason that I am convinced that this procedure will be more appropriate, as far as the course of the trial is concerned, since the prosecution was also first to present its evidence; and I take it upon myself to say that in most trial proceeding regulations this latter procedure is customary. This is also done in accordance with the German criminal law.
THE PRESIDENT: Does any other defense counsel wish to express his opinion?
DR. RAUSCHENBACH (for defendants August Frank and Hans Loerner): Your Honor, I agree with the opinion which has just been expressed by my colleague, Dr. Seidl. I am also of the opinion that it would be appropriate that first the prosecution would sum up its arguments, just in the same way as submitted evidence first, and that the defense should then have the word afterwards. This would be more appropriate, particularly for the reason that the defense counsel will thus be given a fair chance to go into detail in their arguments with regard to what the prosecution has considered to be the result of its presentation of evidence so far, so that the defense in its own arguments will be able to express its opinion regarding these points. I realize that the defense speeches are to be submitted before that. However, the possibility still exists that the individual defense counsel may want to make statements about various points concluded in the final argument of the prosecution. And in this way if he wants to express himself on these points he can submit an addition to his final argument.
DR. SEIDL (for the defendant Oswald Pohl): Your Honor, I would like to add the following to the statement by my colleague, Dr. Rauschenbach. At the beginning of the trial, the defense has raised objections because of the fact that the indictment was not sufficiently substantially detailed. We stated in particular that the indictment did not permit us to realize just what accusations were raised against the individual defendants. In the meantime, the Tribunal has made a ruling about the conspiracy question, as far as this can be considered an independent point in the indictment - i.e. Count I of the indictment. The Tribunal has ruled that we do not have any independent conspiracy count. During the trial it did not become clear just what accusations actually are raised, and what counts are to be maintained against these defendants. I am, therefore, of the opinion that at least in the final arguments the prosecution should finally state just what accusations it is raising at all, what accusations have in its opinion been proved, and that this will only be appropriate if it is done before the defense has commented on the results of the presentation of evidence.
In my opinion, it shall thus be prevented that the defense is first called upon to explain in detail just what, in its opinion, has been alleged, and what has been proven.
DR. GAWLIK (for defendant Volk and Bobermin): Your Honor, in connection with the words of my colleague, Seidl, I want to say that we are not even able to make any detailed defense speeches ahead of the prosecution, because I can not defend myself without the prosecution's argument, and I must say that we do not as yet know today to what extent, and which actual accusations have been raised against the individual defendants. That is as far as Dr. Volk and Bobermin are concerned, whom I defend. In the course of the presentation of evidence we have seen repeatedly that the Tribunal has stated that a certain point need not be discussed, but in spite of this the prosecution then has submitted documents and it has maintained certain accusations. I would like to emphasize the following opinion in this respect. Before Military Tribunal V, in the generals' trial, for example, the prosecution in the case of each individual document has stated against which individual defendant this document is directed, in order to prove what count in the indictment it reviewed. From this it became evident what line of defense we should use in that respect. However, in this case the prosecution has failed to do that. For this reason I would consider it fair if now the prosecution should, first state in its final arguments just what accusations it has raised against the individual defendants, and what count they consider to have proven. Then we, as the defense, can reply to these charges.
DR. RAUSCHENBACH (for defendant August Frank and Hans Loerner): Your Honor, in immediate connection with what my colleague, Dr. Gawlik, has just stated I would like to point out a request which I have already made on the 1st of August, in writing.
I turned it in for translation; and in this letter I requested that the prosecution should be asked that with regard to every document book which they have presented here, an index of kind should be made -- it should have a table of contents an has been done in Case VII, in the case against the Southeastern generals, for the prosecution. I believe that this was done there in view of the ruling of all the Courts, according to which the conspiracy count was dropped. I am of the opinion that also in this trial now that the conspiracy charge has been dropped, the prosecution can not say any more that all documents are directed against all of the defendants. Now, as defense counsel for the defendants Frank and Loerner, I would have to know with what documents, and with what allegations against the individual defendants I have to figure which have been brought forth, because now we have the fact of the participation, or the deed itself, which have to be proven. The reference to participation in a general plan which was to be proven through a large number of documents is at this time not sufficient any more.
Court No. II, Case No. 4.
THE PRESIDENT: Mr. McHaney - Mr. Robbins?
MR. McHANEY: Firstly, as to the remarks made by the last two attorneys which I think are quite off the point of discussion this morning. The Prosecution has no intention whatever, unless we are directly ordered by the Tribunal, to go through all the documents and earmark each one of those, and to say this has such an applicability to the defendants -
THE PRESIDENT: I tell you frankly, Mr. McHaney, if you don't do it, the Tribunal will have to, and is doing it.
MR. McHANEY: If your Honor please, that is quite true. We will select that evidence which we think bears directly against each defendant, but it is an impossible task to take the position that certain evidence is not to be considered with respect to certain of the defendants, which is the thing which is being sought for by the defense counsel. For example, there is a great mass of proof in the record which deals with conditions in concentration camps in general - a systematic commission of atrocities -
THE PRESIDENT: Well, that is corpus delicti proof.
MR. McHANEY: Very true. Now, we can't segregate that evidence and say it does not apply to this man and it does apply to that man. The theory of the prosecution and quite aside from the conspiracy count is that each one of these defendants can be held guilty of having participated in plans and enterprises in connection with the commission of crimes within the concentration camps themselves. Each of the various defendants participated in different ways, and it is the burden of the Prosecution to show the manner of participation by each of the defendants which we shall do.
THE PRESIDENT: Well, that is exactly what the defense counsel mean. They want you to demonstrate in what manner each defendant participated in the common plan.
MR. McHANEY: Well, if the Tribunal please -
THE PRESIDENT: -- And to connect each defendant with the plan.
Court No. II, Case No. 4.
MR. McHANEY: That is the normal burden of the prosecution in any case. But I have never heard it suggested that the prosecution must, at its peril, go through the evidence and say - with respect to each defendant - "This evidence applies to you." Then he comes in and says, "The other evidence does not apply to me. You have limited yourself. You have restricted yourself. This is the case right here, and that is all there is to it. I don't think that the prosecution can properly be required to do such a thing. We have to make out a case. We have to convince the Tribunal that we got a case.
THE PRESIDENT: And you have to connect the defendants with the case.
MR. MCHANEY: That is very true.
THE PRESIDENT: And you have to convince me that you have a case.
MR. McHANEY: And we have to show the Tribunal that we have a proper case.
THE PRESIDENT: Well, I think we are talking it out here. That is all the defense expects. What proof do you have that the defendant A is connected with the common plan, and so on - and so with defendant B.
MR. McHANEY: Your Honor, as I appreciate the suggestion of defense counsel, it means that the prosecution now sit down with all the documents in the record and go through it, and say document so and so, Prosecution Exhibit so and so applies to defendants A, B and C; Exhibit 2 applies to defendant so on and so forth, and that is a tremendous job, a very large undertaking, and one which we patently are unable to do. We have to show and prove how these defendants were connected with these things, but that even in the briefs won't necessarily require a taking up of each document.
THE PRESIDENT: Well, it involves your indicating to the Court what proof you rely on.
MR. McHANEY: Well, certainly we do that, but that it in no way limits us. The Tribunal, for example, may take a very different view on certain documents in the record than the prosecution does. I don't Court No. II, Case No. 4.take it that because we don't stress the importance of one document, the court might not find some other more important.
I think that we are talking about ruling a somewhat, if not non-existent, but very serious problem. That is the defendant Klein; and Klein knows precisely the reason he is being charged with these crimes. It is in connection with the operation at Wewelsburg. And the defendant's counsel is certainly in an adequate position to search these documents as well as we are, and pick out those documents and those witnesses which are connected with Wewelsburg. They know very well, that is, he is not directly connected with any crime in Dachau. The same is true with respect to the defendant Mummenthey. He is laboring under no difficulty about why he is in this trial, and his connection with the crimes. And he knows that they are in connection with the DEST industries in Bohemia and Allach, which were under his direction and supervision, and I think that the direct examination of each of these defendants has demonstrated that these attorneys know very well what their defendants are charged with, and their connection with these crimes, because they are -
THE PRESIDENT: Well, they may form their own conclusion; but don't you think they are entitled to be told what the prosecution thinks about the implication of the defendants? They might not reach the same conclusions that you do. You are the party that is making the accusation.
MR. McHANEY: Well, of course, precisely - that will be done in the closing arguments, and in the briefs, but I have never heard it suggested in any criminal proceeding that before the final statements are made and before briefs are submitted that the prosecution stand up in a case of this scope and magnitude, with around 650 exhibits, and go through them and say at their peril, with respect to defendant A, the following documents apply, and you can forget about all the rest of them.
THE PRESIDENT: Don't you think the defendant though is entitled to know what you claim to have proved; whether you do it by saying it is in Document 1, 2 or 3 is not the point. Now you just said that all Court No. II, Case No. 4.you accuse Klein of is participation in the Wewelsburg project.
That is what the defense wants to know. What do you -
MR. McHANEY: Your Honor, please, I don't say that is all he is charged with. That is the manner of his participation. We say the position of the prosecution, probably speaking, is that this man was a member of this group or organization, the WVHA, one of the important purposes or tasks of which was to operate the concentration camps. We want to show in our view that that was a criminal system and that crimes were committed on a vast and systematic plan. This man, we say, can be found guilty, and should be found guilty, of those crimes by virtue of his participation primarily in the Wewelsburg operation. He was the Chief of Office VIII, as I recall. That was his position in this scheme of things, this operation.
THE PRESIDENT: Well, now -
MR. McHANEY: The things he did was in connection with Wewelsburg, and we say that is the string which ties that man in with his bundle of crimes.
Court No. II, Case No. 4.
THE PRESIDENT: All right, you're how announcing the theory of your Prosecution, which the defense wouldn't have known until after they had concluded their arguments if the Court hadn't pressed you for it.
MR. McHANEY: I'm very happy if I've shed any light here this morning; but I had thought that was something which was obvious from the time the Prosecution had made its opening statement.
THE PRESIDENT: You know, relying on the obvious is very dangerous in the trial of a lawsuit. You know about the counsel who relied upon the presumption that the Court knew the law.
MR. McHANEY: I know, your Honor, and I appreciate that both the Prosecution and the defense in any proceeding, criminal or civil, run certain risks. It's a part of the very nature of things. The thing I am objecting to is that the defense is now asking the prosecution to eliminate any such risks.
THE PRESIDENT: No, no, I don't think so at all. Even if you were bound by what you said, the Tribunal wouldn't be. I don't think this is an attempt to limit you or to circumscribe you. I think it's merely a demand for a revelation by you of what you claim to have demonstrated beyond a reasonable doubt.
MR. McHANEY: Well, so that we can all be standing on the same footing here and know precisely what the argument concerns, I should like to hear in a mechanical way what it is proposed by the Defense that the Prosecution produce.
THE PRESIDENT: I can tell you in very few words. Follow the ancient Aglo-Saxon custom of the Prosecution opening the argument and closing it. That's all we are talking about. In both civil and criminal law that is the usual procedure. Even in debating the proponent, the affirmative, opens; the negative replies; and the affirmative closes.
MR. McHANEY: If the Tribunal please, I was laboring under the misapprehension that the last two attorneys who spoke were asking for something more than that.
Court No. II, Case No. 4.
THE PRESIDENT: No, no.
MR. McHANEY: They were asking, as I understood it, for a tabulation of documents. Now, if we are simply talking about who is to go first in the closing statements, why I have only a few words to say about that.
THE PRESIDENT: That is all we were discussing when we started.
MR. McHANEY: Yes, but I thought we had a new note interjected here, and it was that to which I was directing my remarks.
THE PRESIDENT: If so, it is a sour note.
DR. RAUSCHENBACH (For the Defendants Frank and Hans Loerner): Your Honor, I admit that in my last argument I have introduced something new. I suggest that the discussion about this request because of the marking of the document books could, after all, be delayed until the question about the sequence of the arguments has been settled. I brought this forth only because it is in close connection with it, and this question was also begun in part by my colleague Dr. Gawlik, because it does show just how, in my opinion, the Prosecution should have done that from the very beginning and as the Prosecution in Case Number VII has actually done it. During the entire presentation of evidence by the Prosecution, with every piece of evidence, it can clearly be discerned against which one of the individual defendants that particular document is directed or against which defendant the witness is called. I believe that the argument of the Prosecution that this is a terrific amount of work which would now have to be made up does not represent a sound point of view at all if the fair conclusion of this trial is concerned. This, in any case, has already been demonstrated in an exemplary manner in Case Number VII.
THE PRESIDENT: Mr. McHaney, asking for a categorical answer, please, do you object to the Prosecution opening the argument in the usual way, to be followed by the defense, and the closing by the Prosecution?
MR. McHANEY: No, your Honor, we don't. The reason we sought Court No. II, Case No. 4.to have the defense counsel go first is not because we were looking for any advantage or any great opportunity to answer their precise arguments but more because of the time element.
THE PRESIDENT: Yes.
MR. McHANEY: We have a very small staff working on this case. Mr. Robbins has been forced to carry the great burden of the case. We are now working as hard as we can on briefs. It means that we are going to have very little time to devote to preparing our closing argument; and we thought that if no substantial harm would result it would be a little easier on us and not harm the defense in any way to permit us to go last, which would give us approximately five more days in which to work on our closing arguments. However, if the Court, as it apparently does, feels quite strongly about this matter, we will, of course, go first, if that is the Tribunal's wish.
THE PRESIDENT: No one is more anxious to save time than the Tribunal; but time mustn't be saved at the expense of someone's rights. Excuse me a minute while I confer with my colleagues. The Court will retire for a discussion of about five minutes.
(The Tribunal retired from the courtroom.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: At the conclusion of the proof, the testimony, the Prosecution will make its opening argument. The Defense will follow with the Defense arguments, and that will conclude all argument. There will be no rebuttal or closing argument by the Prosecution, one argument by the Prosecution, one by the Defense.
We urge upon Defense counsel that they start now preparing their arguments to avoid delay in translation. Now, if you say that you can't do that until all the proof is in, that is a mistake. You are all now fairly advised of the claim against the individual defendants, and you can prepare your defense, your argument in defense, starting now. If you wait until the Prosecution's argument is completed before you start your defense argument, that is the preparation of it, we will have an endless delay because all the arguments will go into translation at the same minute, and we will be held up for no one knows how long. I am sure that you know enough now about the claims, the accusations against your particular defendants, to start preparing your arguments. If you meet something unexpected, I mean if something that you could not anticipate comes up in the Prosecution argument, you can answer it extemporaneously, that is orally, without having it written down. The Tribunal does not anticipate that anything sensational or new will confront you, but if it does you can answer it without having it prepared ahead of time. That is what you are accustomed to doing in ordinary law suits. You don't write out your argument ahead of time. You make your argument when the point comes up.
Now, the next point. There will be no lengthy interval between the close of the Prosecution's argument and the argument of the first Defense Counsel, at the most one days, perhaps less. We'll see, depending on when the Prosecution's argument closes. We will give the first Defense attorney sometime before he has to argue, but it won't be very long, and then while the rest of you are arguing the others can be finishing up their defense arguments when their turn comes.
Is this plan perfectly clear now to defense counsel, or are there any questions that anyone would like to ask?
DR. SEIDL: Dr. Seidl for the Defendant, Oswald Pohl.
Your Honor, one question does not seem to have been completely clarified. That is just how long will the interval be between the conclusion of the presentation of evidence and the beginning of the final arguments by the Prosecution and the Defense?
THE PRESIDENT: Not more than ten days, probably less. For instance, if we should finish the testimony on Friday, we would start the arguments a week from the following Monday, which would be about ten days. We can't tell you exactly, but that is about the length of time.
Are there any other questions?
DR. RAUSCHENBACH: Dr. Rauschenbach for the Defendants August Frank and Hans Loerner.
Your Honor, now that the question of the arguments has been ruled upon, I would like if I could formally introduce the request which I have made before with regard to the document books. This is a motion of the 1st of August, 1947, which I would like to read now.
I request that the Prosecution should be asked that with regard to everyone of its document books which it have presented, it should compile a table of contents and that this table of contents should be out at my disposal. This table of contents should indicate the following: The document number, the exhibit number, the designation of the count of the indictment, and a statement whether this is used in order to prove the guilt of the Defendants Frank and Loerner.
The reasons for this are the following: Since, from the resolution that was adopted by the Tribunal in bank the count of conspiracy is not brought against the Defendants any more, the Prosecution, in order to prove the guilt of every Defendant must give the precise circumstances under which it sees a participation of the Defendant in question in certain crimes.
The Prosecution in Case No. VII against List and others has already given due consideration to that fact, and there the Defense welcomed the fact that in Case VII in every document book which was submitted, an index of the kind which I have just requested was also being furnished. In order to facilitate the further preparation of the Defense, and in particular the final arguments of the Defense, since the conspiracy count has been dropped, it would, in my opinion, be necessary under all circumstances that the Prosecution now precisely name all the documents which show a participation or a complicity of the Defendants August Frank, or Hans Loerner in the crimes which have been mentioned in the various counts of the indictment.
Your Honor, I would like to show you a document book from Case VII, a document book which has been provided with such an index. I request the Tribunal to take a look at this document book so that the Tribunal will see just what procedure has been followed in Case VII and just how simple and how efficient this procedure really is.
The objection of the Prosecution that the compiling of such an index would amount to a lot of work right now can, in my opinion, not be used, at the expense of the Defendants, because if the Prosecution doesn't do it then the Defense and the Tribunal will have to do it in the case of each individual Defendant. Here they will have to examine all the documents, which amount to more than six hundred, in order to see whether they incriminate the particular Defendant. I believe that the Prosecution, who has presented all this evidence, should do that.
THE PRESIDENT: This is an excellent plan which is being used in Case No. VII, but it is being used at the start of the case and not just as the case is about to close, and we have observed that each Defendant, as he goes on the stand, has a ready reference to the documents, which he knows in many cases by heart, which have any reference to him. They are marked; he has read them; he has his explanation ready; and he can put his finger on the document which affects him.
In the closing argument the Prosecution will tell the Defense which document he relies upon and for which Defendant, and in addition the Prosecution will file briefs which may not be all ready by the time the arguments are concluded, but all in all the Defense is now well advised of the different documents or pieces of testimony which the Prosecution relies on as to the particular Defendant. The delay which would be involved in the preparation of an index of 650 or more documents we cannot agree to. The Tribunal itself is preparing just such a document as you spoke of, Dr. Rauschenbach, so that we will have the benefit of it, and I think you are perfectly well advised, and I am sure your client and each Defendant is of the documents which in any way tend to accuse him. He has them all gathered together. He puts his finger on them very easily and readily, more readily than the Tribunal or the Prosecution can. Accordingly, your motion will be denied.
DR. SEIDL: Dr. Seidl for the defendant, Oswald Pohl.
Your Honor, I am not quite certain whether I have correctly understood the ruling of the Tribunal in one point. In the translation one part was translated as follows that the Prosecution would submit briefs, and as far as I have understood it so far, the Tribunal only wants final arguments, which are to be held here in the courtroom, from the Prosecution and the Defense. However, apparently it is not the intention of the Tribunal to accept so-called closing briefs, neither from the Prosecution nor from the Defense. These closing briefs were desired in Case I the medical trial, by the Tribunal, and I would like a ruling from the Tribunal whether it wants to adhere to its original ruling, that in this trial no closing briefs are to be submitted.
THE PRESIDENT: This Tribunal does not need both a closing argument and a brief from either Prosecution or Defense. You say what you want in your closing argument. We will have a transcript of it, and we don't want a repetition of it in the way of a brief after that.
DR. von STAKELBERG: Dr. von Stakelberg for the defendant Fanslau.
Your Honor, a few minutes ago the Tribunal has requested us to already begin with the preparation of our Defense speeches. At this time the Tribunal has also expressed its opinion in that respect, that sensational new evidence against the individual defendants could not be expected to be submitted any more. I fear that the Prosecution wants to attempt in any case, with respect to the Defendants Fanslau and Tschentscher to submit new evidence. Here I have an announcement dated the 8th of August, 1947, in which the Prosecution has informed me and my colleague, Pribilla, that the Prosecution intends, in line with the rebuttal, to call certain witnesses for certain new crimes of the Defendant Fanslau and Tschentscher, which the Prosecution alleges, they will be brought forth. In line with this announcement yesterday I submitted a written motion, and I don't think the Tribunal has as yet received the translation of it.
Court No. II, Case No. 4.
However, I have given a copy of this to the interpreter, and I request that I be allowed to read it here, briefly. The request is not very long. It only amounts to one and a half pages. By virtue of a brief of the 8th of August of this year, the Prosecution has announced that it will submit certain evidence material for the rebuttal with regard to the defendants Fanslau and Tschentscher. For the case of the defendant Fanslau I object to the evidence which has been announced. The reasons for this are as follows: One, in their previous presentation of evidence, the Prosecution has only submitted evidence to the effect that War Crimes and Crimes against Humanity have been committed. I have already stated in my opening statement that the previously-submitted evidence of the Prosecution does not contain any evidence for the participation of the defendant Fanslau in these crimes.
In my opening statement, I, therefore, made the request that the trial against Fanslau should be discontinued with regard to counts one to three of the indictment. In the meantime, Count 1 of the indictment has been dropped. With regard to counts two and three of the indictment, the Tribunal has ruled that a prima facie case against the defendant Fanslau had been established.
Two, in excess of the prima facie evidence, the Prosecution now intends to submit quite precise evidence for participation of the defendant Fanslau in certain crimes. This presentation of evidence, consequently, characterises itself as a so-called testimony-in-chief, and not as testimony in rebuttal.
Three, the crimes which have been alleged now are completely new. The Prosecution supports itself on the affidavit of Otto Ohlendorf about the Einsatzgruppen. The new evidence, however, refers to alleged crimes of the supply troops of the Division Wicking.
Further, the allegation is completely new that the defendant Fanslau had inspected the killing of Jews, and that he had participated in them at Zolozow, Berosowska or Bogdanowka and Tarnopol, and that in Bogdanowka had issued an order to shoot every Jew on sight.
Court No. II, Case No. 4.
For this reason also the new offer of evidence of the Prosecution represents itself to be testimony-in-Chief. Further, as testimonyin-chief, however, the offer of evidence of the Prosecution comes too late.
I want to support myself on Wigmore, "A treatise on the AngloAmerican system of evidence in trials at Common Law", which quotes, in paragraph 1873, the ruling of the Judge J. Waite in the case of Hathaway v. Hemingway (20 Conn. 191, 195), as follows:
"When by the pleadings, the burden of proof of any matter in issue is thrown upon the plaintiff, he must in the first instance introduce all the evidence upon which he relies to establish his case. He cannot, as said by Lord Ellenborough, go into half his case and reserve the remainder. The same rule applies to the Defense. After the plaintiff has closed his testimony, the defendant must then bring forward all the evidence upon which he relies to meet the claim on the part of the plaintiff. He cannot introduce a part and reserve the residue for some future occasion. After he has rested, neither party can, as a matter of right, introduce any further testimony which may properly be considered testimony-in-chief... But this rule is not in all cases an inflexible one. There is, and of necessity must be a discretionary power, vested in the Court before which a trial is had, to relax the operation of the rule, when great injustice will be done by a strict adherence to it. If a party, by a mere mistake of inadvertence, omit to introduce a piece of testimony constituting an essential link in his chain of evidence, and does not discover the mistake until after he has closed his testimony, the Court, in its discretion, will rather than that his cause should be sacrificed, permit him to supply the omission; taking care, however, to see that the adverse party is not prejudiced by the relaxation of the rule."
"This discretionary power, however, is to be exercised with great caution. While the rule may be departed from for the sake of preventing great and manifest injustice, it ought not to be so frequently Court No. II, Case No. 4.disregarded as to render it a rule in name and not in reality."
The Prosecution has not set forth any reasons for an exceptional treatment of this evidence which has been submitted too late.
Five, I therefore request (a) that the evidence of the Prosecution which has been offered should be excluded as inadmissable because it comes too late; (b) in case that the Tribunal does not agree with the request under (a) the Defense should be granted the right to use all necessary evidence in order to give counter-evidence against the new allegations of the Prosecution.
THE PRESIDENT: The Tribunal cannot rule in advance on this evidence. We are not sure what it will be, what the nature of it will be; and if the objection is made at the time it is offered we will rule on it at that time. The rule of law which you cite is a perfectly sound one with which the Court is familiar, that the Prosecution's proof should be submitted before it rests its case. But it has the right, of course, to offer rebuttal evidence.
Now, whether this is rebuttal evidence or whether it is evidence which should have been presented in-chief, or whether it is evidence which is newly discovered, which the Prosecution did not have when it presented its case-in-chief--we can only determine at the time it is offered. We will rule upon it at that time.
DR. PRIBILLA (Counsel for defendant Tschentscher): Your Honor, I only want to say that I am in the same position, and I will also submit counter-evidence for Tschentscher.
DR. GAWLIK (Counsel for defendants Volk and Bobermin): Your Honor, I want to mention another point. The Prosecution has twelve boxes full of file material which belonged to Office Group W. Already some time ago I made a request that this material should be placed at my disposal so I could look at it, so that I would be able to give defense material to the Tribunal. At the beginning of the trial this motion was denied for the reason, I assume, that, first of all, the Prosecution should be given the opportunity to look through the material.