1947-01-02, #4: Doctors' Trial (late afternoon)

DR. SERVATIUS: Mr. President, the document NO-372, the affidavit of Rudolf Brandt which is to be presented, has been sworn, like a series of other documents and affidavits, before a United States civilian. It cannot be seen if that person is entitled to give an oath. In the same document book, under NO-590, an affidavit has been sworn to before a Canadian civilian, and the affidavit NO-881 has been sworn to before a neutral civilian.

Now, it should be shown that all these persons are entitled to give an oath because otherwise the oath is not properly administered. Therefore, because of the lack of proper information I object to the presentation of this document.

MR. HARDY: May it please the Tribunal, in answer to this objection, I wish to state that the problem exists here in that the employment of translators is one which requires employment of French civilians, Swedish or Swiss civilians in order to have your documents properly translated.

In the first case I am not familiar with the name Standing, but I assume he is one of the Swiss civilians working here in the translation section, and he is duly authorized by the Chief of the section, Mr. Millard, to certify a translation.

How, it will be absolutely impossible for anyone, other than the original translator to certify a German document or a French document, whichever the case may be, to be the official translation, other than the translator himself. That case exists throughout. However, to relieve Dr. Servatius, in connection with the second document he mentions, NO-990, the Prosecution will not read that here at this time inasmuch as the witness, Ferdinand Hell, himself will take the witness stand tomorrow. We have been able to brind him here to Nurnberg and due to that fact we will not read that affidavit into evidence.

However, the others are substantially correct to satisfy the Director of the Language Division and are official employees of that division. Mr. Favarger, in the last document, is an employee of the Prosecution, a French civilian, and he has conversant knowledge of the French and English languages.

THE PRESIDENT: If I understand the objection of counsel, it is not to the certification of the translation but to the person who purported to administer the oath to the witness. The first document, Number NO-372, signed Rudolf Brandt, was apparently sworn to by Walter H. Rapp, and no authority for Mr. Rapp's administering an oath appears on the document. If I understand counsel's objection, it is to that point.

MR. HARDY: Well, again on that point, sir, we have Walter H. Rapp, Chief of the Evidence Division of Office Chief of Counsel, duly appointed to act in that capacity by the Chief of Counsel. We also have, in that last affidavit, Favarger, who is an employee of the Office of Chief of Counsel, a nuetral civilian, who is authorized as an investigator as well as a translator and research analyst to take trips on behalf of the Office of Chief of Counsel, and on such trip he obtained this affidavit.

THE PRESIDENT: In that connection, in the first place, Mr. Rapp's title does not appear after his name when he administered the oath, and in the second place the Tribunal is not advised, so far as I know, of the authority of one holding Mr. Rapp's position to administer an oath. Certainly when anyone signs an affidavit as having been the person administering the oath, the title of his office which empowers him to administer that oath should appear upon the face of the affidavit.

MR. HARDY: That is quite correct, your Honor, If you want, I will have these affidavits rectified to meet with your request. However, I don't believe we have followed that throughout in the other affidavits that we have presented. I am not sure, I think we have followed this system continually here.

THE PRESIDENT: This is the first time the matter has been called to the attention of the Tribunal by any objection on the part of counsel for the defense.

MR. HARDY: Well, as I say, I can have the documents altered by Mr. Rapp and Mr. Favarger if the Tribunal so requests.

THE PRESIDENT: Have you any other affidavits that are properly verified by the person administering the oath, which you can proceed to read while these are being corrected?

MR. HARDY: No, I am sorry, your Honor, I don't. This will interrupt the continuity of this presentation, without reading at this time the affidavit of Rudolf Brandt, and in the event that the Tribunal so sees, we would request on adjournment until tomorrow morning.

THE PRESIDENT: You are prepared to show proper authority on the part of one holding Mr. Rapp's position and of the other persons who have administered these oaths to lawfully under the rules of law governing the operations of this Tribunal, administer an oath to a person?

MR. HARDY: I will have to investigate the situation, your Honor. At this time I am not prepared to answer.

DR. SAUTER: Mr. President, it is my opinion that if any official of the Prosecution is entitled to receive an affidavit of a witness and to certify it, then the same privilege should also be extended to defense counsel and for the further reason, because generally after all, it is believed that the defense is not to occupy adverse position than the Prosecution.

I make this suggestion for the reason that today, upon my return from my Christmas vacation I have found a ruling of the Tribunal which orders us defense counsel, that we are to have affidavits by witnesses certified either by the Landrat, that is the political official in Germany, or by a local mayor if it is a case of dealing with a smaller city, or by the chief mayor if it should be a larger city or by the president of a civil court, or by the competent representative of the American Military Government.

I will have to correct myself. It is even stated in the ruling, "and by the competent representative of the American Military Government". Gentlemen, I state quite openly that I am not able to carry out this ruling; and I furthermore state that I shall not even try to do this because with this I would make demands upon the witnesses with which I cannot burden the witnesses. Your Honors, may I just give you some brief reasons for this? It is not pleasant here for a German. If in such a trial he is called as a witness, the witness has to be afraid that as a witness he will be named through the press and every German today is afraid that his name will be at all mentioned in connection with such a trial. And this fear is not quite without reason because in the First trial, the big Nurnberg trial, we have seen cases where witnesses were arrested after they had been called here as witnesses; and these cases have also been mentioned in the press. If any of the present defense counsel today communicate with a German and request him to submit an affidavit to us, in nine out of ten eases we can count with certainty that he will try to avoid this, and he will answer, or he can tell us either "I do not km w anything about the matter," or "I do not want to have anything to do with the matter because I value my liberty more than the ten or twenty defendants." And perhaps if he is a polite man, then he will add, "Will you please turn to the colleague Meier or Huber, perhaps he may be in a better situation to know something about the subject than I am."

Now, by virtue of the ruling of the Court, we ask the witnesses that first of all they are to go to some high official of the German authorities. Already that in itself in many cases, perhaps, requires a trip that may take hours and waiting for hours until the man can be heard. When he has finally finished with that, then he has to do a second thing because now he has to look for hours until he can fined the competent official of military Government; and then perhaps as is common practice, he can be sent from one office to the other and finally in the evening he may finally knew that he has not found the competent official of Military Government.

Gentlemen, I am convinced that if I ask any German to burden himself with anything like that, if I request him to fulfill these conditions, then I will not be able to obtain one single affidavit.

Gentlemen, let me put myself into his position. If any defense counsel in any other trial would write to me and would ask me for an affidavit, do you really believe that I would perhaps run around here in Nurnberg for hours and would try to find somebody who would be in the position to sign my affidavit? I would not do it. And amongst a hundred people to whom we may write perhaps 99 will refuse to do that also. Your Honors, I would now request you to consider these misgivings which I have stated from the experiences of our practice and the experiences of the first trial, and I ask you to consider those points once more; and particularly with the view to the fact if perhaps it would not still be possible to find a more simplified form of obtaining affidavits.

I personally feel that the procedure in the first Nurnberg trial has really proved itself worthwhile, namely, that the affidavits arc certified by the defense counsel who has to present it. After all, the main purpose for submitting affidavits is that the person who gives it, that is the witness, knows that he would be jailed or imprisoned if he gave any false testimony. It is my opinion, Your Honors, that if the defense counsel who, by virtue of his office has to work here, has to certify the signature with his own name, this perhaps should also suffice in the present trial just as it sufficed in the first trial. Defense counsel naturally are prepared to do everything which the Tribunal may decide on in order to bring this trial to a smooth and fair conclusion, but what is demanded from us now, I for myself cannot comply with it, and I doubt if the other defense counsel will not finally occupy the same point of view as I.

THE PRESIDENT: The Tribunal will recess until 9:30 o'clock tomorrow morning at which time counsel for the Prosecution may present the authority of the officers who have taken the affidavit to administer the oath, and the matter suggested by counsel for the defense. The Tribunal has no desire to place undue burden on counsel for the defense in preparing their defense and that matter will be taken under serious consideration by the Tribunal.