1947-01-03, #1: Doctors' Trial (early morning)

Official transcript of the American Military Tribunal in the matter of the United States of America, against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 3 January 1947, 0930, Justice Beals presiding.

THE MARSHAL: The Honorable Judges of Military Tribunal 1.

Military Tribunal 1 is now in Session.

God save the United States of America and this Honorable Tribunal.

There will be order in the courtroom.

THE PRESIDENT: Are the defendants all present in court?

THE MARSHAL: All the defendants are present in the courtroom.

THE PRESIDENT: The Secretary-General will note the presence of all the defendants in the courtroom for the record.

The Prosecution will proceed.

MR. HARDY: May it please the Tribunal, objection has been raised by the defense counsel as to the admissibility of Document NO-372 which is an affidavit signed by the defendant Rudolf Brandt before Walter H. Rapp. An attempt has also been made to object to the admissibility of two other affidavits sworn to by Ferdinand Holl and Rene-Colombin Magner. These are documents NO-390 and NO-881 respectively. The objection to the admissibility --

THE PRESIDENT: On which page of the document book are those found?

MR. HARDY: Pages 58 and 62, Your Honor.

The objection to the admissibility of these two documents is, of course, premature as they have not been offered in evidence. As I understand it, the objection to the Rudolf Brandt affidavit raises the question of the authority of Walter H. Rapp to administer an oath. It is therefore pertinent to inquire whether a statement under oath is a prerequisite to admissibility in this instance. If so, it will then be necessary to consider whether Mr. Rapp possessed authority to administer on oath. We submit first that the admissibility of the Rudolf Brandt affidavit does not depend upon an oath. Article 7 of Ordinance No. 7, states, and I quote, "The Tribunals shall not be bound by technical rules of evidence. They shall adopt and imply to the greatest possible extent expedition on non-technical procedure and shall admit any evidence which they deem to have probative value."

We see, therefore, the test of admissibility of evidence is whether or not it has probative value. Now, the objection has been made to an affidavit signed by a defendant. We submit that a statement signed by a person following his arrest has substantial probative value, whether sworn or unsworn. This is very clearly an admission against interest which is entitled not only to be admitted but is worthy of considerable weight. We have had very little time to search the voluminous records of case number 1 for the IMT on this point, but we have found a number of statements signed by one or who ether of the defendants which were admitted in evidence although apparently without objection. At this time I have copies of these exhibits, one with USA Exhibit No. 9 which is an affidavit of Julius Streicher, sworn to by Julius Streicher and approved by attorney for the defendant, Dr. Harx. Another, Document 2836-PS, USA Exhibit No. 4, an affidavit by Herman Goering, attested in the same manner, and so on. I have here several such affidavits that I will pass up to the Tribunal for their perusal.

(The papers were handed to the Tribunal.)

MR. PRESIDENT: Without any about, Mr. Hardy, a statement signed by a defendant is admissible as against him and as an admission against interest. A statement concerning such an affidavit involves the admissibility of such a statement as against other defendants. These statements which you have exhibited to the Tribunal, several of them at least, were signed and evidently approved by the counsel for the party who made the statement. It does not appear from the statements themselves whether they were offered simply as admissions against evidence by the party who made them, in which event, of course, they are perfectly competent.

MR. HARDY: We submit that most of these statements were signed by defense counsel as well as defendant in this case but clearly does not bear upon the admissibility. However, in this case of the affidavit of Rudolf Brandt it is likewise, as Your Honor says, an affidavit testifying as a witness as well as an admission against interest showing his complete knowledge and his tie-up with the entire program and admission of these experiments.

We submit, therefore, the affidavit of Rudolf Brandt is admissible whether or not it be regarded as a statement under oath. The prosecution, however, does not wish to rest its argument on this narrow ground. It is our position that this affidavit was sworn to and should be considered by this Tribunal as a sworn statement. The affidavit shows on its fact that it was signed and sworn to before Walter H. Rapp. Rapp is described in the jurat as a U.S. civilian, identified by the number B-416387, and signed by the Adjutant General's Office of the War Department of the United States. This is certainly the most precise identification we could give. Through that number he can be identified among thousands of persons under the jurisdiction of the War Department. Now we can see that the jurat does not describe his position with the Office of Chief of Counsel for War Crimes and may perhaps be criticized in that respect. This has been remedied as I have had Walter H. Rapp with the description of his position and initialed it on the criminal affidavit.

In any case, the lack of such description does not make the documents inadmissible. He is, in fact, the Director of the Evidence Division of the Office of the Chief of Counsel for War Crimes, duly appointed by the Chief of Counsel for War Crimes, Brigadier General Telford Taylor; and, as such, he is charged with the duty to aid in the production of evidence, and invested with all the necessary powers to fulfill this duty, including the authority to administer oath. By the same token, other employees of O.C.C. who are charged with the duty in aiding with the production of evidence are invested with the same powers. And, this situation is not new or strange to the defense counsel; that is the defense counsel representing the defendants in case Number 1, a number of affidavits were admitted in evidence before the IMT where the oath had been administered by a civilian employee of the Office of the Chief of Counsel. For example, I have here in my hand an affidavit which was Exhibit No.922 before the IMT, and which was signed and sworn to by one Kurt Smith before Doctor Robert M. Kempner, OCC also, Exhibit No.645, before the IMT is the same. It is noted that it was witnessed by two civilians. For the foregoing reasons, your Honor, the prosecution states, at this time, Document No.372 is admissible.

DR. SERVATIUS (For the defendant Karl Brandt): Mr. President, the trial and procedure which has been chosen by the Prosecution, in order to give reasons for the indictment, is supported to such an extent on affidavits of this kind. The defendants are present here and could be heard in the case. I have objected to the presentation of such documents because they violate the so-called Golden Rule; that this is not always the best evidence to be resented. Now, finally it is discovered that the Tribunal before has turned down my objection. Now, it is discovered that many of these affidavits have been administered by official persons who are not entitled to carry out and administer this oath. It is not appropriate, in my opinion, to have an oath administered in such a valuable document, which is presented by the prosecution, in such a form. According to the German law, it is not permissible to present such evidence to the Tribunal if the oath has not been administered by the Judge.

Here are the persons who have administered the oath -- they are just plain civilians whose qualifications are perfectly unknown. The representative of the Prosecution has previously presented an affidavit here which was sworn to by Doctor Kempner. As far as I know, Doctor Kempner is the Attorney Kempner, who worked in the previous trials for Justice Jackson; and in those cases, they have been highly qualified persons. I am afraid that these affidavits of the defendants have not been given with the necessary judicial security which might be expected. All the affidavits which I have read over have been sworn to, and the person before whom they were sworn to, therefore, plays a major part. I, therefore, consider it necessary not only to identify the persons who have administered the oath, but also that their qualifications be stated so that we can determine to what extent the attachments might be justified. Every jurist knows that statements which are given at the police station before a police official can frequently be attacked in court, and the criminal psychology occupies itself with these questions in detail. This is a chapter which I do not need to explain to the Tribunal any more in detail. I only want to point out my doubt that such a procedure be obliged. After all, it is an official procedure. The witnesses are here and they can be placed before the Tribunal. People who are not jurist I do not consider comparable with the procedure of such importance as we are having here.

THE PRESIDENT: It will not be my opinion, personally, that the Prosecution could call a defendant to the stand and put him on as a witness without his consent, unless he would ask to testify. That covers part of the objection raised by Doctor Servatius.

Is there any further argument on the part of the defense counsel?

(Apparently none.)

Of course, if the prosecution offers his statement, by a defendant, such as this, it would clearly be admissible against him. As I think I stated previously this morning, the question would be how far that would be evidence against other defendants.

I inquire of the Prosecution if this Exhibit, which is under discussion, is offered only as an admission in interest against the defendant Rudolf Brandt or whether it will be the Prosecution's desire to consider it as evidence against every defendant?

MR. McHANEY: If the Tribunal pleases, we certainly offer this document and ask that it be considered against any and all of the defendants as to whom it may contain evidence. It seems to me that the fact in question is whether or not this document has probative value. If that question is determined in the affirmative, then I think it is admissible under Ordinance No. 7. Now, inasmuch as it does contain admissions against the man who signed the affidavit, I should think that quite aside from its admissibility it would give the document tremendous weight in the mind of the Tribunal. This man, in making this affidavit was, himself, admitting participation in the particular experiment which is concerned. At the same time, he proceeds to tell the full story as he knew it; and, of course, such evidence reaches other defendants in the dock. Simply because that is so, I certainly see no reason to limit the applicability of this document, and certainly the Prosecution does not offer it simply as an admission against the one defendant.

THE PRESIDENT: The Tribunal will take a short recess and discuss the matter.

(A recess was taken.)