DR. Von ROHRSCHEIDT: Yes.
I should like to observe that I haven't got the exact quotations according to the pages of the English text, as I only have the German translation, so I can only do it as I have just said.
THE PRESIDENT (interposing): You can read the words in German, and they will be translated into English.
Which report are you referring to?
DR. von ROHRSCHEIDT: For the quotation that I gave I was referring to the expert opinion which was given on the 14th November 1945, which was drawn up by the English, Soviet and American delegations, and which included the report of the 17th of November 1945. What I quoted was the following -- may I repeat it? The passage runs: "The capability of the Defendant Hess is reduced in respect of being able to defend himself, to face a witness, and to understand the details of the evidence given."
THE PRESIDENT: Can you say which of the doctors you are quoting?
DR. von ROHRSCHEIDT: It is the report which, in my copy, is dated the 14th of November 1945, and, as I said, was presumably signed by American and English doctors. yesterday evening after I had given it back. That is, I was not able to obtain the original again.
THE PRESIDENT: Have the English Prosecutors got a copy, and can you tell us which it is?
SIR DAVID MAXWELL FYFE: I think I am in the same difficulties as your Lordship. I have copies of four medical reports. At the end of the document headed "Order", it says, "Copies of four medical reports are attached." the 19th of November.
dated the 20th of November. 17th of November. doctor dated the 16th of November.
These are the only ones which I have with the Court's order.
THE PRESIDENT: Yes.
I don't know what this report is that you are referring.to.
SIR DAVID MAXWELL FYFE: Dr. von Rohrscheidt seems to have an *---* report of the 14th.
THE PRESIDENT: Dr. von Rohrscheidt, have you got the four reports which are really before us? I will read them out to you: by Lord Moran, Dr. Reece, and Dr. Ruddock. Have you got that? That is the English report.
DR. von ROHRSCHEIDT: I only have this report in the German translation and not in the original.
THE PRESIDENT: But if you have got it in the German translation, that is quite good enough.
Then the next one is dated the 20th of November, 1945, by Dr. Delay, Dr. Nolan Lewis, Dr. Cameron and Colonel Paul Schroeder.
Have you got that?
DR. von ROHRSCHEIDT: Yes, I have that one.
THE PRESIDENT: That is two. three Soviet doctors and one French doctor, Dr. Delay, dated the 16th of November. Have you got that? doctors alone, without the French doctor. rely? the same. That is the one I have already referred to, that does not contain the name of Lord Moran on it, dated the 19th of November.
DR. von ROHRSCHEIDT: May the Tribunal please, I think I can shorten this speech to the Tribunal. My view is that all the experts' opinions agree that the capability of the Defendant Hess to defend himself, to face a witness, and to understand the details of the evidence given -- perhaps I should keep exactly to these words in my exposition:
If we assume that all the medical opinions are agreed that the defendant Hess is reduced in his capacity for defense, I should, in my capacity as his defense counsel, be convinced that the ability to plead of the defendant Hess should be negatived. The reduction of the capability of the defendant in his defense, which is recognized as a mental defect, as amnesia, recognized by all the experts, shows a mental condition of a mixed kind but anyhow a mental defect, so he should not be considered as fit to plead. experts shows, as was stated in the question to the experts, that on account of this mental defect, the amnesia, proper defense for the defendant Hess is not possible. The opinions also assume that the defendant is not actually insane. That is not the important point at the moment because according to the medical opinion it is affirmatively stated, in my opinion, that the defendant is not in a condition to follow everything in consequence of the reduction of his mental capacity. the medical opinion -- think that the defendant is quite incapable of making himself understood to the extent that one would expect from a mentally normal person, to the extent that one would expect and demand from a mentally normal person. experience with him -- is not capable of understanding what the Tribunal says to him in such a manner as is necessary for his defense, because his memory is very unreliable. Through his loss of memory he knows neither events which have happened in the past nor the persons who were associated with him in the past. I therefore am of the opinion that the opposite opinion of the defendant himself, namely, that he is fit to plead, is irrelevant. As the reduction of the defendant's capacity, according to medical opinion, will not soon be improved, I am therefore of the opinion that the proceedings against Defendant Hess should be quashed.
narcotic analysis, would bring improvement is not certain, nor in what way nor at what time the health of the defendant can be restored. The medical opinions reproach the defendant with refusing to have such medical treatment. The defendant tells me, on the contrary, that he would be ready to undergo such treatment, but he refused the treatment in this case because, first of all, he thinks he is already fit to plead and therefore considers such a cure unnecessary, and also because he is an opponent of such forceful methods, and finally because he is of the opinion that such forced operation just at this time might make him unfit to plead, that is to say, would rather exclude him from the proceedings, which is just what he wishes to avoid. defending himself, as medical opinion says, and if this state is likely to last for a long time, this would be a condition for temporary suspension of the proceedings against him.
My second application: In case this Tribunal should allow my application and declare the defendant Hess unfit to plead, then, according to Article 12 of the Charter, it is possible to proceed against the defendant in absentia. Section 12 provides that the Tribunal has the right to proceed against a defendant in his absence if he cannot be found, or if this is in the interests of justice or other reasons. Is it then in the interests of justice to proceed against the defendant in absentia ? In my opinion, it is not in accordance with objective justice if actual proofs are available, as they are here, that the defendant's capacity is reduced because of illness and he is hindered in defending himself personally. even the death penalty is to be expected. It is therefore incompatible with objective justice if medical experts say he is not capable of defending himself.
And according to Paragraph 12 of the Charter, this right in Paragraph 16 of the Charter provides for a defense and also the possibility of bringing personal evidence for his defense, and cross examining any witness, and this is most important for the defense and any exclusion of such a possibility is, in my opinion, not right. Proceedings in absentia would preclude all this, and therefore could not be considered just.
the reasons already stated, to such a degree then the defendant is not in a position to give his Counsel the necessary information and then to put his Counsel in a position to defend him in his absence. defendants to form their own defense, it seems to me as Defense Counsel unjust to deprive the defendant of these rights because he is hindered by reasons of illness from being there. The possibility of carrying out proceedings in absentia against a defendant must surely be looked upon as an exception which should only be applied against a defendant if he wishes to avoid the proceedings. But defendant Hess has told me and emphasized to me, and he will probably do it to the Tribunal, that he wishes to attend the proceedings, and he will certainly feel it is particularly unjust if he were ready to plead and should be excluded and the proceedings were carried out in absentia. defendant not competent to plead, that it not proceed in his absence.
Now, one more application: if the Tribunal, against my own opinion and against the opinion which, in my view, is expressed in the medical statements, should consider he is fit to plead, I should ask for one more medical opinion and that this question may be investigated once more, because I have seen from the medical statements already available that the experts have only spoken with Hess for a short time, in one case only for two days, and in any case for a very short period. In a case of such world-wide importance it seems to me necessary that a complete picture should be given.
For this longer examination would be necessary, perhaps in a suitable hospital, and he observed for weeks at a time. The experts themselves are obviously not quite sure whether the Defendant Hess is mentally ill, even beyond what is admitted; that is, not capable of pleading that he is mentally deficient. This opinion I have gained because all the medical statements emphasize that the accused is not considered fit to plead, that he should be again subjected to a psychiatric examination. I think this suggestion should be followed in accordance with the suggestion made by the psychiatrists we have already examined him. I should therefore plead, if the Tribunal should consider the defendant fit to plead, that the suggestion of psychiatrists should be followed and that another opinion should be taken.
THE PRESIDENT: I want to ask you one question: Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only illness from which he is suffering is his forgetfulness about what happened before he flew to England?
DR. von ROHRSCHEIDT: Mr. President, it is true that the experts say that the Defendant Hess is capable of following the proceedings. That is true. But they emphasize, on the other hand, that the defendant is not capable of defending himself. In the manner in which the questions were put to the experts, the Tribunal asked the experts to state their views on the following: Is the Defendant mentally sound or not? This question is answered by all experts in the affirmative, that he is mentally sound. But that does not exclude the fact that the Defendant might at the moment be incapable of pleading and in this respect the experts again, referring to the questions put to them -- the Tribunal would like to know whether the Defendant is capable of following the course of the proceedings, can he carry out adequate defense as a witness and understand the evidence? question, give the answer that the defendant is not capable of carrying out an adequate defense, to put objections to the witness, or to follow the details of the evidence given.
That is, I consider, contained in all the experts' opinions. delegations, if I may submit that to the Court, the date 20th of November, "as a result of our said investigations, we find that Hess is suffering from hysteria and loss of memory." Now comes this passage, "The loss of memory is of such a kind that it will not disturb his understanding of the proceedings, but in respect to questions about his past, he will not respond and that would reduce the weight of his defense. Therefore the capability of the accused for defense is reduced." And in the medical opinion of the French delegation, signed by Professor Delay, that too says that the defendant can understand everything that goes on around him, but that his amnesia has such an effect on his capability of carrying out his defense, and to understand all the' details which refer to his past, that these facts must be looked upon as disturbing. I considered that if one interprets these statements as the experts intended, the experts mean that the Defendant is not insane, he can follow the proceedings but he cannot defend himself because he is suffering from a credible amnesia.
THE TRIBUNAL (Judge Biddle): Do you accept the opinion of the experts?
DR. von ROHRSCHEIDT: Yes.
THE TRIBUNAL (General Nikitchenko): I should like to know the translation. I should like to draw the attention of the defense that he is incorrectly referring to the experts' opinion of the Soviet experts and French expert. Very good translating; not quite correctly. It was a free translation.
DR. von ROHRSCHEIDT: May I read to the Tribunal what my translation says? The translation was made here in the Bureau and was given to me in this translation. May I repeat that the translation in my possession refers to the 16th of November 1945, and was signed by the members of the Soviet delegation, and Professor Delay in Paris.
Sub-number three:
"At the present moment the Defendant is not insane in the strict sense of the word. His amnesia does not prevent him from following everything that is going on around him. But it affects his capability of carrying out the defense and of remembering all details of the past, and might be disturbing."
THE PRESIDENT: That is all we wish to ask you. Does the Chief Prosecutor for the United States wish to address the Tribunal?
MR. JUSTICE JACKSON: I think General Rudenko would like to open discussion, if that is agreeable.
THE PRESIDENT: Yes. Are you going on?
GENERAL RUDENKO: In connection with the statement made by the defense, and as a result of the Doctors' opinion, I am inclined to say the following: The condition of Hess was examined by experts. These experts appointed by the Tribunal have agreed that Hess is sane and can answer for his actions. The Chief Prosecutors have discussed the results of this according to the orders of the Tribunal and have answered the question of the Tribunal as follows:
One, we have no questions and doubts about the Commission's report. We are of opinion that Hess can be tried.
That is the opinion of the Prosecutors. We are finding that the terms stated by the experts, that Hess can be considered sane -
THE PRESIDENT: (Interposing) Will you speak more slowly, please?
GENERAL RUDENKO: We considered that the experts' opinions are quite sufficient for carrying on the decision of the Tribunal to find Hess sane and subject to this Court, and we are asking the Tribunal to sign accordingly the following statement; and the Defense is asking to postpone the proceedings in view of his illness and state. I must say that Defense is citing -- I don't know why, not quite correctly. It is stated here by the Defense that Hess is not able and he is in such condition that he cannot defend himself and understand witnesses, and so on.
It is quite differently stated by the experts. The experts state that Hess is suffering from amnesia and it will not completely affect him in understanding the proceedings. It certainly won't interfere with his understanding of the witnesses. I think that the details of the past period, which Hess probably will not remember, will not interest the Tribunal. The main points which the experts have given in their reports, and which we do not doubt, and which don't raise any doubts by the defense, is that Hess is sane, and if he is sane Hess must be tried, and according to this I consider that the request of the Defense should be refused.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal: shortly as the Tribunal desire, as to the legal conceptions which govern the position with which the Tribunal and this Defendant are placed at the present time. able to plead to the Indictment and should be tried at the present time.
in the report, which I submit are relevant, it might be useful at the present time. According to the attachments to the Order, which I have, the first report is that signed by the British Doctors on the 19 November, 1945. And in that report, I beg the Tribunal to refer to Paragraph 3, in which, the signatories say: "At the moment he is not insane in the strict sense. His loss of memory will not entirely interfere with his comprehension of the proceedings, but it will interfere with his ability to make his defense and to understand details of the past, which arise in evidence." Doctors, and in Paragraph One, the Tribunal will see: "We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria, characterized in part by loss of memory. The nature of this loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past, and will interfere with his undertaking his defense." the Soviet Doctors, at the foot of Page 1, of the copy that I have, there is a Paragraph beginning "Psychologically--", which I submit is of importance -- "Psychologically, Hess is in a state of clear consciousness. He knows that he is imprisoned at Nuernberg, under indictment as a war criminal; has read and, according to his own words, is acquainted with the charges against him. He answers questions rapidly and to the point. His speech is coherent. His thoughts formed with precision and correctness and they are accompanied by sufficient emotionally expressive movements. Also, there is no kind of evidence of paranoia. It should also be noted here, that the present psychological examinations, which were conducted by Lt. Gilbert, Doctor of Medicine, and of the testimony, is that the intelligence of Hess is normal and in some instances, above average. His movements are natural and not forced."
which is signed by the three Soviet Doctors, and Professor Delay of Paris, dated the 16, which is the last in my bundle, and that says in Paragraph 3:
"At present he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defense and to understand details of the past, which would appear as factual data." are of sufficient importance on this point, to the explanation of the kind and reason of the amnesia which appeared in the Soviet report, dated the 17 November, under the numbers One, Two and Three, at the end of the report. But I remind the Tribunal that all these reports unite in saying that there is no form of insanity, respectfully submit that to the consideration of the Tribunal as being representative of natural justice in this regard, is, in deciding whether the Defendant is fit to plead, whether the Defendant be insane or not, and the time which is relevant for the deciding of that issue is at the date of the arraignment and not at any prior time. the onus of proof lies in that issue, but the latter, and logically the better view, is that the onus is on the Defendant, because it is always presumed that a person is sane until the contrary is proved.
may so use my mind, has not been absent from the Court's mind, because of the wording of the notice which we are discussing today, it is the case of Pritchard in 7 Harrington and Pike, which is referred to in Archibold, Criminal Pleading on the 1943 edition, at page 147:
In Pritchard's case, where a prisoner arraigned on an indictment for felony appeared to be deaf, dumb, and also of non-sane mind, Baron Alderson put three distinct issues to the jury, directing the jury to be sworn separately on each: Whether the prisoner was mute, of malice, or by the visitation of God, (2) Whether he was able to plead; (3) whether he was sane or not. And on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense, to challenge a juror, that is, a member of the jury, to whom he might wish to object and to understand the details of the evidence; and he directed the jury that if there was no certain mode of communicating to the prisoner the details of the evidence so that he could clearly understand them, ane be able tpoperly to make his defense to the charge against him the jury ought to find that he was not of sane mind. the course of the proceedings of the trial so as to make a proper defense", emphasize that the material time, the only time which should be considered, is whether at the moment of plea and of trial the defendant understands his charge against him and the evidence by which it is supported.
THE PRESIDENT: And does not relate to his memory at that time.
SIR DAVID MAXWELL-FYFE: That is, I respectfully agree with your Lordship, it does not relate to his memory. It has never, in English jurisprudence, to my knowledge, been held to be a bar either to trial or punishment, that a person who comprehends the charge and the evidence has not got a memory as to what happened at the time. That, of course, is entirely a different course which does not arise either on these reports or of this application.
As to what was the defendant's state of mind, no one here suggests that the defendant's state of mind and the action charged were committed was abnormal, and it does not come into this case.
THE PRESIDENT: He will, it seems to me, be able to nut forward his amnesia as part of his defense.
SIR DAVID MAXWELL-FYFE: Certainly my Lord.
THE PRESIDENT: And to say, "I should have been able to make a better defense if I had been able to remember what took place at the time".
SIR DAVID MAXWELL-FYFE: Yes, sir. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times, in English courts, after a motor accident when a man is charged with manslaughter or doing previous bodily harm, he is often in the position of saying, "because of the accident my memory is not good, or fails as to the exact charge". No one has ever suggested that it could be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.
THE TRIBUNAL (Mr. Biddle): So I can understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defense?
SIR DAVID MAXWELL-FYFE: With the greatest respect, will the doctor read the preceding words. They say, "When the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense."
THE TRIBUNAL (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defense under the procedure of the trial if you also find it a fact, which you I think, do not dispute, and which you quoted in fact, that although not insane -- now I quote: "He did not understand, or rather his amnesia does not prevent him completely from understanding, what is going on around him but it will interfere with his ability to conduct his defense, and understand details of the past." You don't think that is inconsistent with that finding?
SIR DAVID MAXWELL-FYFE: I am submitting it is not. It is part of his defense, and it may well be "I don't remember anything about that at all".
And he could actually say from my general behaviour or from other acts which I undoubtedly have done, it is extremely unlikely that I should do it. That is the defense which is left to him. And he must take that defense, and it is my submission.
THE TRIBUNAL (Mr. Biddle): So even if we assume for the purpose of argument that his amnesia is complete, and that he remembers nothing that occurred before the indictment though not understanding the proceedings, you think he should be tried?
SIR DAVID MAXWELL-FYFE: I submit he should be tried. That is my submission as a legal position. I especially didn't discuss--of course the Tribunal will appreciate that--I didn't discuss the quantum of amnesia here because I am not putting that to the Tribunal, I wanted to put before the Tribunal the legal basis on which this application is posed. Therefore I accept readily the extreme case which the learned American judge put to me.
THE TRIBUNAL (Mr. DeVabres): I ask in what period the real amnesia of Hess applies. He pretends to have forgotten facts which occurred more than fifteen days ago. It may be simulation or, as they say in the report, it may be real simulation. I would like to know if according to the reports Hess has really lost his memory of facts, which are referred to in the Indictment.
SIR DAVID MAXWELL-FYFE: The facts which are included in the Indictment, the explanations that the doctors give as to his amnesia, are most clearly set out in these paragraphs of the Soviet report, that is the third report dated the 17th of November 1945, page two, and the numbered paragraphs one to three. They say first:
"In the psychological personality of Hess there are no changes typical of the progressive schizophrenic disease. That is, there are no changes typical of a progressive double personality developing from which he suffered periodically while in England. I am sorry, therefore, the delusions from which he suffered periodically while in England can not be considered as manifestations of a schizophrenic paranoia, and must be recognized as the expression of a psychogenic paranoia reaction, that is, the psychologically comprehensible reaction."
Now I ask the learned French judge to note the next sentence. "Of an unstable personality to the situation, the failure of his mission, arrests and incarceration. Such is the interpretation of the delirious statements of Hess in England as bespoken by the disappearance, appearance, and repeated disappearance, depending on external circumstances which affected the mental state of Hess."
Paragraph two: "The loss of memory by Hess is not the result of some kind of mental disease, but represents hysterical amnesia, the basis of which is a subconscious inclination towards self defense." Now I ask the learned French judge to note again the next words: "As well as a deliberate and conscious tendency towards it. Such behavior often terminates when the hysterical person is faced with an unavoidable necessity of conducting himself correctly. Therefore the amnesia, of Hess may end upon his being brought to trial.
Three: Rudolf Hess, prior to his flight to England, did not suffer from any kind of insanity, nor is he now suffering from it. At the present time he exhibits hysterical behavior with signs of--and again I ask the learned French judge to note this point--with signs of a conscious intentional simulated character which does not exonerate him from responsibility under the Indictment."
The last sentence is a matter for the Tribunal. But in these circumstances it would be impossible to say that the amnesia may continue to be complete or is entirely unconscious. That is deliberately avoided by the learned doctors. Therefore the prosecution do not say that that is the case, but they do say that even if it were complete, the legal basis which I have suggested to the Court is a correct one for action in the matter.
THE PRESIDENT: Thank you, Sir David. Would Doctor Rohrscheidt like to add anything by way of reply? One moment: Mr. Justice Jackson, I gathered from what Sir David said that he was speaking on behalf of you and of the French prosecution, is that correct?
JUSTICE JACKSON: I intend to adopt all that he said. I would only add a few more words, if I may.
THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has something to say first of all.
JUSTICE JACKSON: I adopt all that has been said, and will not repeat. We have three applications before the Tribunal. One is for another examination. I will spend very little time on that. I think that we have made, up to this point with these examinations, medical history in having seven psychiatrists from five nations who are completely in agreement.
An achievement of that kind is not likely to be risked. devoted to the examination, but I suggest to your Honors that that is not the situation, because there have been available the examinations and observations and medical history during the incarceration of Hess in England, extending from 1941, and the reports of the psychiatrists of the American Forces since he was brought to Nurnberg, and they all agree. So that there is a more complete medical history in this case than in most cases.
The next application was as to trial in absentia. I shall spend no time on that, for there seems to be no occasion for trying Hess in absentia if he shouldn't be tried in his presence. If he is unable to be tried why he simply shouldn't he tried at all. That is all I can see to it.
in all this, the one thing, on which any case can be made here for postponement. That is the statement with which we all agree: That Hess' condition will interfere with his response to questions relating to his past and will interfere with his undertaking his defense. Now, I think it will interfere with his defense if he persists in it, and I am sure that counsel has a very difficult task. But Hess has refused the treatment, and I have filed with the court the report of Major Kelly, the American psychiatrist, in whose care he was placed immediately after he was brought here. suggested. He has refused to submit to the ordinary things that we submit to every day, blood tests, examinations, and says he will submit to nothing until after the trial. The medication which was suggested to bring him out of this hysterical situation--every psychiatrist agrees that this is simply a hysterical situation if it is genuine at all -was the use of intravenous drugs of the barbital series, either sodium amytal or sodium phenotal, the ordinary sedative that you perhaps take on a sleepless night. We did not dare administer that, to be perfectly candid, against his objection, because we felt that however harmless--and in over a thousand cases observed by Major Kelly there has been no ill effect although some cases are reported where there has--we felt that if should be struck by lightning a month afterward it would still be charged that something that we had done had caused his death; and we did not desir to impose any such treatment upon him. afar from the Court and assert that his amnesia is a defens to his being tried, and at the same time refuse the simple medical expedients which all agree might be useful.