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.
He is in the volunteer class with his amnesia. In England, as the reports show, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, then went back to it. It is now highly selective. That is to say, you can't be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete blotting out of the personality, of the type that would be fatal to his defense. simple expedients, even if his amnesia is genuine, that he is not in a position to continue to assert that he must not be brought to trial. We think he should be tried, not in absentia but in these proceedings.
THE TRIBUNAL (Mr. Biddle): Isn't Hess asserting that he wants to be tried?
JUSTICE JACKSON: Well, I don't know about that. He has been interrogated and interrogated by us, as have the co-defendants, and I wouldn't attempt to say what he would now say he wants. I haven't observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I wouldn't attempt to speak for him.
THE PRESIDENT: Does Mr. Dobost wish to add anything?
DR. ROHRSCHEIDT: May just say a few words to the Tribunal to make my point of view clear once more? point of view. First, factually, the defendant Hess, according to the reports of the doctors which all agree, has a mental defect.
which again all medical experts admit exists. This is merely remarked in the report, whether this amnesia is paranoiac or psychogenetic. They are all agreed that this amnesia is on a pathological basis. The result is that the defendant is not insane but has a mental defect. From that emerges, I think, in a legal sense that the defendant cannot state that he cannot be made responsible for his actions, but presumably, when the deeds were committed he was certainly not mentally insane.
But there is a difference, according to German law at any rate, whether the defendant is at the moment in a position to follow the trial, that is, whether he is fit to plead. This question should, in my opinion, as I have already said, on the basis of the medical reports, be negativated. He is not capable of being tried.
The Tribunal may be doubtful of the answers of the experts. It is difficult to understand whether the defendant is actually restricted in his capability of defending himself or whether he can have an adequate defense. I think that possibly this point should be stressed: The loss of memory is affirmed by all the experts, and it would seem to me that he is not capable of making adequate defense.
One other point: He may be able to defend himself, and seem externally, he can follow the course of the proceedings, but he cannot defend himself adequately, that is, in the same way as a person who is in full possession of his normal senses.
May I perhaps add one word. I have already explained that the defendant has expressed the wish to me that he would like to attend the trial, as he does not feel himself unfit to plead, but that, in the opinion of the defense, is completely irrelevant. that the defendant has refused to be treated by narcotic means, that is not a question of truculence, but he refused it because he was afraid that the intravenous injections at this particular moment might, in his weakened state, make him incapable of following the proceedings, which is exactly what he did not want. therefore he did not need any intravenous treatment. The defendant Hess also told me that he has an internal abhorrence of such means, and Hess, in the unhappy times of the National Socialist regime, was always for the natural methods of healing. He even founded the Rudolf Hess Hospital in Dresden, which is conducted on natural, not medical, means.
JUSTICE JACKSON: May I make one observation, Your Honors?
THE PRESIDENT: Yes.
JUSTICE JACKSON: The argument illustrates the selectivity of the memory of which I spoke to you. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad.
I hope that the Court has not overlooked the statement of the matters that he does well recollect.
DR. ROHRSCHEIDT: May I make a correction?
THE PRESIDENT: It is unusual to hear counsel in a second reply, but as Mr. Justice Jackson has spoken again we will hear what you have to say.
DR. ROHRSCHEIDT: I would merely like to observe that I was misunderstood. It was not the defendant who told me that he was an adherent of natural medicine, and in such a way proved that he had retained his memory, but it was I who, from my own memory, ascertained this, and I knew that he was. I gave that as my opinion and my experience in order to show that he has an intellectual aversion to medical operations, but this remark was not based on memory of the defendant Hess but on my own memory.
THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if you consider it proper, that the Defendant Hess should state what his views on this question are.
DR. ROHRSCHEIDT: As his defense counsel, I have certainly nothing to say against it, and I think it would be the defendant's own wash, and the Tribunal would then be in a position to judge what mental state the defendant is in. He can speak as to whether he considers himself fit to plead from where he is.
THE DEFENDANT HESS: Mr. President, I would like to say this: At the beginning of the trial of this afternoon's proceedings I gave my defense counsel a note that I am of the opinion that these proceedings could be shortened if one would allow me to speak myself. What I say is as follows: incapable of pleading, although I am willing to take part in the rest of the proceedings with the rest of them, I would like to give the Tribunal the following declaration, although I originally intended not to make this declaration until a later point in the proceedings:
My memory is again in order. The reasons why I simulated loss of memory were tactical. In fact, it is only that my capacity for concentration is slightly reduced. But in consequence of that, my capacity to follow the trial, my capacity to defend myself, to put questions to witnesses or even to answer questions--these, my capacities, are not influenced by that. everything that I have done or signed as signatory or co-signatory. My attitude, in principle, is that the Tribunal is not competent-is not affected by the statement I have just made. Hitherto in conversations with my official defense counsel I have maintained my loss of memory. He was, therefore, in good faith when he asserted I lost my memory.
THE PRESIDENT: The trial is adjourned.
(Whereupon at 1830 hours the hearing of the Tribunal adjourned to reconvene at 1400 hours on 1 December 1945.
Military Tribunal, in the matter of: The
THE PRESIDENT: I will begin the session by reading the judgement of the Tribunal upon the application made by Counsel for the Defendant Hess. for the Defendant Hess, and it has had the advantage of hearing full argument upon it both from the Defense and from the Prosecution. The Tribunal has also considered the very full medical reports, which have been made on the condition of the Defendant Hess, and has come to the conclusion that no grounds whatever exist for a further examination to be ordered. and in view of all the evidence, the Tribunal is of the opinion that the defendant Hess is capable of standing his trial at the present time, and the motion of Counsel for the Defense is, therefore, denied, and the trial will proceed.
(ERWIN LAHOUSEN, resumed the stand and testified further as follows:)
MR. G. D. ROBERTS: May it please the Tribunal, Sir David Maxwell Fyfe said yesterday he had no questions to ask this witness. He has now requested me very shortly to cross examine this witness on one incident mentioned in the Indictment, namely, the murder of fifty R.A.F. officers who escaped from Stalag Luft 3 in March of 1944.
THE PRESIDENT: You said to cross examine.
MR. G. D. ROBERTS: I should have said examine. I realize that falls in the part of the Indictment, which is being dealt with by the Prosecutors for the USSR. My Lord, I have mentioned that matter to General Rudenko, who with his usual courtesy and kindness, has said that he has no objection to my asking some questions on that matter.
THE PRESIDENT: Very well.
BY MR. G. D. ROBERTS:
Q Might I ask you this: Did you hear of the matter from any of your brother officers?
A No. I heard nothing about it whatsoever.
Q You can't assist the Court at all with the matter?
A No; in no way. BY DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): and collaborator with Admiral Canaris. Since I cannot address my question directly to Admiral Canaris, I ask you to make reply to me, namely, as regards the following: Did Admiral Canaris know about von Papen's attitude toward Hitler's war policies, and how did Admiral Canaris express himself to you on that point? addressed to me. I never asserted that I was an intimate friend of Canaris'. Pieckenbrock was a friend of Canaris'. To be sure I was one of his confidants. From this relationship, however, I recall as regards von Papen's and Canaris' attitude toward the question, that the Counsel has just brought up, that these attitudes were negative. or directed also toward all the violent methods used in the execution of this policy? in connection with a conversation that Admiral Canaris had with von Papen, at which I was present, and I car answer in the affirmative. from the political side, opposition to Hitler's policies was not possible, and that such opposition would have to be sought in the ranks of the military? it was formulated later, I personally do not know anything. That is to say I, personally, was not a witness of any such conversation between Canaris and von Papen in which this question was touched on; and I cannot remember today whether Canaris ever told me anything regarding such conversations with von Papen.
It is quite possible, but I cannot recall it and consequently my oath as witness does not allow me to make any statment on it.
Q Do you believe, to sum up, that Canaris' attitude toward von Papen was such that Papen stayed in his political capacity in order to be able to exercise a mitigating influence? that I have on this matter.
BY DR. OTTO NELTE (Counsel for Defendant Keitel):
Q Lawyer Nelte, Counsel for Defendant Keitel. My client asked me to present you with the following questions: From what time on did you know Canaris and Pieckenbrock? of my previous activity in the Austrian intelligence service.
Q Did there exist at that time, between Admiral Canaris' Abwehr Section and you, any relationships of a military nature? service, but there were such with the Austrian federal army. The German armed farces had at that time a purely military communication for the exchange of information with Austria for the purpose of collaboration in the intelligence department. This happened with my knowledge. So far as I have been able to ascertain, this was purely military work, that concentrated on the exchange of military information regarding Austria and its neighboring countries. matter, and to what extent you knew how the Austrian Army felt about the question of Anchluss?
Anschluss, or the illegal Nazi Party, which at that time was a very acute problem, were completely excluded from the intelligence department. These matters were handled by Graf Marogna, who was the official go-between with Canaris and Colonel General Beck. touch, contact, did not take that direction, that the Austrian members of the General Staff informed you of anything regarding their attitude towards the Anschluss? day, namely on the first day when I was on Austrian soil. It took place in the office of the War Ministry in Austria. He was then Chief of the General Staff, or a member of the General Staff in the German Army.
THE PRESIDENT: Can you not hear what was said?
DR. OTTO NELTE: No.
THE PRESIDENT: Would you please repeat the question.
BY DR. OTTO NELTE: the German General Staff, or intelligence section, existed with those in Austria. the word is being used here. The contact, such as it actually was, and of which there are witnesses in this room here -- von Papen must be informed of this personally -- it had not to do with questions, which I spoke personally about with Canaris, but in which I acted on the commission of my chief. In none of these cases was the question of Anschluss or internal political Austrian problems discussed. So far as I am concerned, of course, it was not discussed, and so far as Canaris is concerned. He, of course, also avoided it.
Q What was your activity in the Abwehr Office 2? as I described it yesterday, I am willing to repeat it if you wish, this activity did not have its own designation actually; its function embraced various functions and actions, which I can define very precisely: