Q. In other words, you find situations where it is possible, although the experimental subject does not volunteer, that none the less the experiment is permissible, both by way of law and morals? Is that right?
A. Both can be possible, yes.
Q. You are a doctor. I should think that you are probably rather familiar with malpractice cases and statutes in Germany. Suppose, Herr Brandt, you tried out a new drug on one of your patients in pre-war Germany without telling the subject about it or asking his consent in any way, and as a result the person were injured by this drug. Would you or would you not be subject to a charge of malpractice?
A. I certainly would be subject to such a charge.
Q. Well, then I don't quite understand the situations in which you say it is permissible to do something to a person without his consent.
A. For that reason I made the differentiation before, and I said that we are at the same time concerned with the question of dangerousness; and what you just said possesses dangerousness in addition to being of an involuntary nature. This makes it doubly hard; and of course if it is not essential then that would be the crux of the problem.
Q. Herr Brandt, would the experiments charged in the indictment be criminal if the experimental subjects did not consent to undergoing these experiments? Will you answer the question?
DR. SERVATIUS: Mr. President, we are here concerned with the legal question which cannot be put to the witness.
THE PRESIDENT: I would ask counsel if by his question he intends to ask the witness whether the experiments -- I don't know to which experiments counsel refers -- would be objectionable or illegal if carried on by a physician upon persons in civil life disconnected with the military service.
MR. McHANEY: That is correct, your Honor. I am simply trying to search the moral values which the witness places upon an experimental situation of this type.
JUDGE SEBRING: Now then, Mr. McHaney, in posing your question, are you attempting to elicit from this witness his views as to whether each of these experiments is illegal or criminal per se or are you concerned primarily with whether, assuming the prosecution theory of the case to be true, these experiments were illegal or criminal because of the manner in which they were executed?
MR. McHANEY: Well, I think it is the latter, your Honor.
JUDGE SEBRING: I think perhaps that is not too clear.
MR. McHANEY: I am trying to determine the importance which the witness attaches to consent by the experimental subject in the context of the experiments here charged.
JUDGE SEBRING: It would seem to me that there might be a certain type of so-called medical experiment which in and of itself might not be anticipated to produce painful or dire consequences. On the other hand I apprehend that any type of experiment, if continued to excess, might be a criminal experiment; and I would suggest, if I may, that if that differentiation is made to the witness, perhaps we can get at what we are trying to here more quickly.
MR. McHANEY: If the Tribunal please, I think I will proceed to putting questions to him with respect to each experiment in the indictment rather than in the general manner I have stated it.
Q. Herr Brandt, you have heard the testimony and evidence in this case with respect to the freezing experiments carried on at the Dachau concentration camp. I will ask you to assume that the proof as adduced by the prosecution, for purposes of this question only, is correct and true; and you will recall that there was substantial testimony and proof that the experimental subjects in that experiment did not consent to undergoing the experiments. Will you tell the Tribunal your view on the criminal character of that experiment on that assumption?
JUDGE SEBRING: Mr. McHaney, are you concerned now with the experiment or the manner of its execution?
MR. McHANEY: The experiment as it was carried out.
JUDGE SEBRING: As it was supposed to have been executed in accordance with the prosecution proof?
MR. McHANEY: That is right.
Q. Assuming the experiments were carried out in the manner that the prosecution's proof has tended to show, in your opinion was that a criminal experiment?
A. In this form I cannot answer that question. The complexity of criminality is being presented to me and I am asked to judicially evaluate this concept. Basically I can only speak about freezing experiments and the necessity for freezing experiments and I can only say something about that is all the prerequisites which led to the experiment are clear. Therefore, I can only say something about the ethical point of view and this ethical point of view is influenced by the manner of the tasks which have led to such an experiment. The most decisive thing in the assignment of an experiment is the following question: Is the experiment important or is it not important? If you refer that question to the freezing experiments, then the importance of such experiments can play a part under the circumstances of the war. The then circumstances of war can add the interest of the state to the interest of medicine and then lead to the conclusion that such freezing experiments have to be carried out. Then, from a certain point on, we are concerned with the manner of execution. The execution of such experiments must again be subdivided into voluntary nature or involuntary nature. If, in addition - I spoke about the dangerousness and harmfulness of the experiment then the experiment, if it is harmful, can't possibly be carried out by physicians when considering all human considerations. If any danger comes up, then the physician has to assume the responsibility for the danger in connection with that experiment. Any state order can be a safeguard, and a state order can be interpreted in various ways during a war. But I cannot define my position with reference to the freezing experiments and I cannot establish whether such an experiment, from a juristical point of view, was criminal or not criminal.
Q. Do you think the freezing experiments were dangerous?
A. Since fatalities occurred, they were no doubt dangerous experiments.
JUDGE SEBRING: Mr. McHaney, I would like to address a question to the witness.
Witness, for the sake of clarification, let us assume that it would have been highly important to the Wehrmacht to ascertain, as a matter of fact, how long a human being could withstand exposure to cold before succumbing to the affects of it.
Do you understand that? Let's assume secondly that human subjects were selected for such freezing experiments without their consent. Let's assume thirdly that such involuntary human subjects were subjected to the experiments and died as a direct or indirect result thereof. Now, would you be good enough to inform the Tribunal what your view of such an experiment is - either from the legal or from the ethical point of view?
THE WITNESS: I must repeat once more, in order to make sure that I understood you correctly. When assigning the experiment the following things are assumed: highest military necessity, involuntary nature of the experiment, and the dangerousness of the experiment with the eventual fatality. In this case I am of the opinion that, when considering the circumstances of the situation of the war, this state institution which has laid down the importance in the interest of the state at the same time takes the responsibility away from the physician if such an experiment ends fatally and such a responsibility has to be taken by the state.
JUDGE SEBRING: Now, does it take away that responsibility from the physician, in your view, or does it share that responsibility jointly with the physician, in your view?
THE WITNESS: According to my opinion, this responsibility is taken away from the physician because, from that moment on, the physician is merely an instrument maybe in the same sense as it would be in the case of an officer who receives an order at the front and leads a group of three or four soldiers into a position where they have to meet death. That relation, if I apply it to German conditions during the war, is in principle the same. I don't believe that the physician as such, from his ethical and moral feelings, would carry out such an experiment without this assurance of the authoritarian state which gives him a formal and legal assurance on one side and, on the other side, gives him the order for the execution.
Naturally, in this case, it is a theoretical question since I cannot survey the position in the case of the freezing experiment. I don't know how this assurance was given and how the order was given. Basically, I want to differentiate between the order for an experiment which arises from medical needs as such and where, under the circumstances, the state only has a secondary interest on the basis of medical initiatives, and I would differentiate between the reverse state of affairs where the state uses medical activities.
JUDGE SEBRING: The Tribunal has one further question of interest.
In your view, would an order which authorized or directed a subordinate medical officer or subordinate medical group to carry on a certain medical experiment - let us assume for the moment this freezing experiment - we have then a general order, let us assume, directing a certain institute to carry on freezing experiments without delineating or specifying in detail the exact course of those experiments. Would you conceive that such an order would authorize the medical officer to whom the order was addressed to select subjects involuntarily and subject them to experiments, the execution of which that officer absolutely knew or should have known would likely result in death to the subject?
THE WITNESS: May I have your last sentence repeated, please? This question is extremely difficult to answer. The order has to be taken into consideration which is given in such a case. May I, perhaps, answer with an example of such an order. If Himmler gives an order to a Dr. "X" and tells him to carry out a certain experiment, then it would have been possible that such a Dr. "X" did not wish to adhere to this order. In such a case, however, this Dr. "X" will not have overlooked the importance of the experiment itself, the same way as the Lieutenant who received a certain military order -- and we are here concerned with a military order -- does not overlook that he would have to hold out with a group of eight men at a bridgehead and which would end in his death. In spite of that, this officer with his eight men to whom he passed this order on would meet his death at that position. So this physician "X" who received this order from Himmler would under the circumstances have to carry out an experiment without overlooking the importance of the experiment which prompted a central agency.
If a physician had not carried out that experiment, he would have come into a position where he would be taken into account if he had not carried out that experiment. In this case, and there we have to consider the authoritarian nature of our State, the personal feeling and the feeling of a special professional, ethical obligation has to step behind the totalitarian nature of the war.
I must say once more these are theoretical assumptions which I am expressing here. At the same time I want to express how difficult such decisions are if I would point to an example which recently was quoted here, and I mean the eight hundred inmates in a prison in America who were infected with malaria. I don't want to point to this example in order to justify the experiments which are under indictment here, but I want to express that the question of the importance of an experiment is basically and remains basically of a decisive importance. Even in that case a certain amount of fatalities had to be taken into account from the start when infecting eight hundred people with malaria.
The voluntary nature which an inmate adopts and with which an inmate puts himself at this disposal is a relatively voluntary nature.
I don't think it is the same if one would receive such voluntary natures from people who are present here. One has to consider the manner of the voluntary nature. In my opinion, this round figure of eight hundred speaks against the entire voluntary nature. I would assume that if it was seven hundred thirty-five or seven hundred forty, it would be different, but the round figure of eight hundred seems to lead to the result that there was a certain order for the experiment before the beginning of the experiment, and these experiments, too, were directed from the point of view of a superior State interest, and this superior State interest, at the same time, takes over the responsibility for the result of the experiment with reference to the experimental subject, for responsibility in a medical sense cannot be assumed at all since even a negative series of experiments speaks against the urgency and necessity of these experiments; and particularly when answering the question about voluntary or involuntary, dangerous or nondangerous natures, it is very difficult and almost not possible to say basically with reference to experiments that experiments on human beings, taking all these things into consideration is a crime or is not a crime. The question can only be judged when over and above the expected result experiments are still continued. If a result was already established and then further experiments on human beings are carried out, they are not important, and with reference to the experiment which is not important which is only a dilettantical experiment, in that case I would from the start assume the word "criminal", but when dealing with important experiments, it must be necessary to take into consideration the entire circumstances which played a part at that time; that is to say, the important experiments from the moment a result is achieved becomes not important. From that moment on, according to my opinion, the experiment is criminal. Therefore, it will be necessary that when speaking about human experiments at all, one should put these results at the disposal of the State so -- not only to one State but internationally -- so that experiments which are carried out in Russia and proved, results would not be continued in other countries.
With reference to freezing experiments, I can only say in this connection that in a certain form without saying "criminal" or "not criminal" they showed their value. The indication for that is that the results in the American Air Force were considered as something particular and helped the American Air Force to gain years, and I think that these experiments would also be of use within mining works where a number of fatalities occur because of freezing. If you consider the freezing experiments in that light the victims in effect are tragic, and it is to be regretted, but with reference to subsequent periods this victim is a real sacrifice for words or maybe thousands of people would keep their lives and prolong their lives because of it.
JUDGE SEBRING: Witness, this question of the necessity for an experiment, is it your view that it is for the State to determine the extreme necessity for such an experiment and thereafter those who serve the State are to be bound by that procedure? I think you can answer that "yes" or "no".
THE WITNESS: This trial snows that it will be the task of the State under all circumstances to basically clarify this question in the future.
JUDGE SEBRING: Witness, as I understood your statements a moment ago, Dr. Brandt, they were that the physician having once become the soldier thereafter must subordinate such medical-ethical views as he may have that may arise in conflict with a military order from higher authority, is that true?
THE WITNESS: I didn't want to express it in that form. I did not mean to say that the physician the moment he becomes medical officer should change his basic attitude as a physician. Such an order in the very same way can go to a physician who is not a soldier. I meant it referring to the entire situation as it prevailed with us in Germany during the time of an authoritarian leadership. This authoritarian leadership interfered with the personality and the personal feelings of the human being. At the moment as a personality is dissolved in the concept of a collective body, every demand which is put to that personality has to be dissolved in the concept of a collective system.
Therefore, the demands of society are put above -every individual human being as an entire complex, and this individual complex, the human being, is completely used in the interest of that society.
The difficult thing and something which is hard to understand basically is that during our entire period, and Dr. Leibrand referred to that, that at that moment everything was done in the interest of humanity and so that the individual person had no meaning whatsoever, and the farther the war progressed, the stronger did this principle thought appear that was designated at the end as total war fare, and in accordance with that the leadership of the State quite generally ordered and demanded that orders be carried out. It is a very tragic for a number of persons not only within the framework of these experiments but also in other situations that they had to work under such orders. Without considering the entire situation as it prevailed in Germany, one cannot understand the question of these particular experiments at all.
JUDGE SEBRING: Dr. Brandt, is it not true that in any military organization, even one of an authoritarian State, there comes a print beyond which the officer receiving an order subjects himself to individual responsibility, at least in the eyes of civilized society, for carrying out any military orders, particularly if the order is unlawful or transcends the limit of extreme military necessity?
A. There was a general law stating that an officer does not have to carry out an order which he realized is a crime, but the question with reference to these various experiments is whether the on concerned can realize what he is doing is a crime. If he can realize it the, according to my opinion, he cannot follow the order.
MR. MCHANEY: You have stated that where we are concerned with an experiment which is extremely important for the State, then the Doctor who is directed to carry out such an experiment is extricate and is not responsible for any death which may occur. Is the person who issued the order responsible in your opinion?
A. Are you referring to the freezing experiments and would you tell me who gave the order?
Q. No, we are going back to the hypothetical question put to you by the Tribunal which stated that an officer ordering a subordinate to carry out an experiment, which we will assume was of State importance, that subordinate carrying out that experiment upon involuntary subjects, some of whom died, as I recall you stated upon these assumptions the doctor who carried out the experiment which was of State importance was relieved of the responsibility because of the totalitarian State. Is that correct?
A. I said generally that in such a case the State as such must take away that responsibility beforehand, that is, from the physician.
Q. Now, I would like for you to tell me whether anyone in the State, anyone such as the man who issued the order, must assume the responsibility for that experiment?
A. There is the question whether he can assume it. When considering these series of experiments it must be dependant on who was justified to decide about the life the experimental subject If I consider the case of concentration camps, the, according to my opinion, the person who is alone responsible was Himmler himself for it was only with his consent, or only in the basis of his order such experiments were carried through. These people attached to the concentration camps had been handed over to him and, therefore, he bore the responsibility for these people for their living or not living. If Himmler has given such an order or if he ordered the execution of such an experiment, the, according to my opinion, the responsibility was with him, a responsibility which he had to assume in his position as the supreme deciding man in these affairs.
Q. Suppose you have a case where the experiment is ordered by the Chief of the Medical Services of the Luftwaffe. The experiment is carried out by the Luftwaffe doctors, and all that Himmler does is to make the experimental subjects available to the Luftwaffe. Does Himmler bear the sole responsibility there or does the Chief of the Medical Services of the Luftwaffe also share the responsibility?
A. According to my opinion the responsibility in that respect rested with Himmler alone and not with the Chief of the Medical Services of the Air Force because without Himmler's consent and furnishing of experimental subjects that made it possible to carry out such experiments, The Chief of the Medical Services of the Luftwaffe couldn't have carried them out. There is perhaps a very clear proof for the fact that the responsibility rested with Himmler for these experiments were carried out, so to speak, in his house within the framework of the concentration camp. I don't believe in this case the responsibility can be attached to the Chief of the Medical Services of the Luftwaffe.
The Chief of the Medical Services of the Luftwaffe could put forth the problem and the urgency but in that manner he would have remained at a vacuum if the person of Himmler, together with his personnel and human beings at his disposal, would not have helped him putting at his disposal his space in his camps.
THE MARSHAL: The Tribunal is again in session.
DR. SAUTER (Counsel for the Defendant Dr. Ruff): Mr. President, before the Brandt case is continued I should like to present to you the following matter and ask you for your decision and for your assistance. On the 13th of December I applied for a witness, Dr. Erich Hippke, that is, the former Chief of the Medical Inspectorate of the Luftwaffe. This witness was approved by the Court. His whereabouts were unknown. I endeavored to find out the address of the witness. At the beginning of the trial he was at liberty and shortly after the beginning of this trial he had been put in a British prison in Hamburg. In response to my application he was brought to Nurnberg and I was informed that the witness had arrived here. This witness had also been approved for the defense counsel of General Field Marshal Milch and had been brought to Nurnberg for him, too. In the last few days I have repeatedly talked to the witness, Dr. Hippke, in order to determine whether I am to submit as affidavit from him or call him to the witness stand for examination. Yesterday afternoon, between 3:00 and 4:00 o'clock, I was talking to the witness, Dr. Erich Hippke, in the interrogation room. The Prosecution had a Lieutenant Garrett telephone down to the interrogation room and say that I was to stop questioning the witness, Hippke, immediately, and that during the next 8 days the witness could not be questioned by any defense counsel. On the basis of this situation I ask the President to decide whether this action is correct and whether I have to accept it. According to the rules of the first Nurnberg trial and also according to the rules of the present trial, if I understand them correctly, a witness who has been requested by a defense counsel and has been approved and has been brought to Nurnberg at the application of this defense counsel -- such a witness is primarily available to this defense counsel. I do not believe that under the rules of American trial procedure the prosecution has the right to destroy this right of the defense counsel because they perhaps also want to examine the witness. If such a right is given to the prosecution in the future, then, in effect, the defense counsel would no longer have any claim to examine the witnesses he has requested and to prepare for his case. I therefore ask for a ruling of the Court on this question, which has a certain basic importance for the defense. As defense counsel, I do not want to claim anything for myself which is not my due under American Trial Procedure in a fair trial, but, on the other hand, I cannot give up any of the rights which are granted me by law or by the court.
This is especially true if I would thereby come into danger of being unable to complete my document books as a result of this delay and turn them in for translation. Mr. President, that is what I had to present to you.
THE PRESIDENT: I have not the facts of this situation entirely in mind. I remember signing an order some days since, sequestering this witness for a period of 8 days only, after which he would be open to examination by any of the defense counsel. The Tribunal will examine the record at the earliest possible moment and announce its ruling on the matter. I notice, however, that counsel for Defendant Ruff, on the 30th of January, advised the Secretary General that the witness, Hippke, was no longer required as a witness for the Defendant Ruff. The Tribunal will take this under advisement and advise counsel at the earliest possible moment of its ruling.
DR. SAUTER: Mr. President, may I add something? When talking to the witness Hippke, I had at first had the impression that it would be sufficient to submit an affidavit from this witness and I had worked out the affidavit together with the witness, Hippke. At the last moment, however, the witness, Dr. Hippke, told me that for some reasons he did not want to sign this affidavit. Therefore I shall presumably have to call the witness, Hippke, to the stand after all. I may add that the same thing is true in the case of attorney Bergold, who is defending Field Marshal Milch in the trial downstairs. The witness, Hippke, was also approved for him and he too is not allowed to talk to this witness any more and we do not understand whether that is right or not. That is why we are asking for a ruling of the Tribunal.
THE PRESIDENT: It was not my intention to indicate that counsel would be bound by this notice of January 30. He may still call the witness if he desires to do so. The Tribunal will announce its ruling on the matter shortly. Has counsel for the Prosecution anything to say in this matter?
MR. McHANEY: I think I may be able to clear up the situation to the mutual satisfaction of everyone. It is not correct that Hippke was found through any efforts of defense counsel. We have been looking for Hippke since May of 1946, and we discovered, through our own efforts, his address in Hamburg.
Upon the request of the Prosecution he was there arrested and kept in Hamburg for a short time and then brought to Nurnberg at our request. In the meantime, certain of the defense counsel applied for him as a witness and, of course, we made no objection. On the other hand, the Prosecution takes the position in this case, and will take a similar position in the case of Eugene Haagen, for example, that the Prosecution has every right to interrogate such persons before they are turned over to defense counsel. In this particular case, due to some misunderstanding on the part of the Prosecution and the Secretary General, it happened that certain of the defense counsel in this case and in the Milch case interrogated Hippke at some length before he had ever been seen by the Prosecution and, as a matter of fact, exhibited to him a substantial number of documents which form the basis of the record here; and, as Hippke himself has put it, he is now so confused that he doesn't know what he can testify to from memory and from what he has seen in these documents. Consequently the Prosecution asked the Tribunal here to rule that the Prosecution have one week in which we had the exclusive right to interrogate Hippke. At the conclusion of that time he shall, of course, be available to defense counsel for Ruff and any other of the defense counsel and I think there will be no delay in proceeding with this case.
Dr. Bergold in the Milch case has requested that Hippke appear as a witness tomorrow in that Court and he has also requested the right to interrogate Hippke this afternoon. I have conferred with the prosecutor in the Milch case, and I have agreed, on the part of the prosecution in this case, that is permissible, but the remainder of this week we would like to have Hippke available to the prosecution for interrogation and on next Monday he will be available to defense counsel at any time they want him.
DR. SAUTER: Just a minute please, Mr. President, I do not believe that I can be satisfied with this explanation. It is my opinion that this case would be suitable for reaching a basic decision of a basic question. The following is the issue. As I understand American trial procedure, the defense is to be put on an equal basis with the prosecution insofar as it is at all possible. Now the situation is as follows: I apply for a witness; Dr. Bergold also applies for him. The witness is unknown; we send one of our associates to Hamburg and this man finds out the address of the witness, then the witness ** brought to Nurnberg. We would assume, as a matter of course, that he comes as our witness and that consequently he is at our disposal so that we can prepare our case. We believe that in such a case the prosecution should not have the right to examine this witness without our presence and without our knowledge.
If we work from the principle that in general, as far as possible, the defense is to have the same rights as the prosecution, then in my opinion this action is not quite right. If the case were opposite; if the prosecution brought a witness here, then the defense does not have the right to say, "I will now examine the witness one week for the defense and when I am finished, then the prosecution can have him."
Of course, the American prosecution knows American trial procedure better and we defense counsel are dependent on experience in the first trial and the rulings of this tribunal, but I would be grateful to the President if this question could be cleared up. In my opinion it is necessary so that the trial can proceed quickly and without difficulty and in a fair manner. Thank you.
MR. MC HANEY: I can only repeat, there is absolutely no disagreement between the prosecution and the defense about their right to their own witnesses and the prosecution certainly does not take the position that it can interrogate any of the defense witnesses in the absence of defense counsel, but it so happens there will be certain cases, such as in the case of Hippke and such as the case of Hogen, where the prosecution has for many months been looking for these persons and suddenly they are found and then both the prosecution and defense are interested in interrogating this person as a possible witness.
Those are just situations that will have to be worked out as they come up. The prosecution can do nothing more than take the position that when we find then and bring then to Nuernberg, on our own effort, then we have the rights to interrogate them first excluding the rights of the defense to interrogate them.
Now, Heppke was not found through the efforts of the defense, his address was found by us at the Aero Medical Center in Heidelberg and we then got in touch with British authorities at Hamburg and agents of the British authorities arrested him then and he was then brought to Nuernberg. But, by some strange coincidence defense counsel also found his address and located him before that time. Why, it is no more than a coincidence and I don't think there is any fundamental disagreement as to the rights of the defense counsel with respect to these witnesses, but we will have to have these cases come up from time to time and they will just have to be decided upon when they arise.
THE PRESIDENT: Now, Mr. McHaney, can you give some indication to the Tribunal now as to the names of these witnesses that you say you have been looking for and are anxious to get as witnesses, who perhaps may also be used by the defense. You mentioned the name Heppke and now Hogen.
MR. MC HANEY: Hogen and Heppke are two that come to mind. There are of course many other numbers of possibilities that we listed when we first started investigating the matters at issue. We drew up a list in excess of 250 to 300 doctors who we fell either were implicated in some manner or who at least had some knowledge of the matters at issue. We circulated that list with the American and British authorities to try to locate them. Some were found and a great number of them were not. We could made that list available to the Tribunal. On the other hand, even though a man is on our wanted list, if the defense counsel locates him first and bring him to Nuernberg as a volunteer witness, then I am willing to conceive they have exclusive rights to that man even though we have been looking for him. Of course, we don't claim any exclusive rights to the man even though we have been looking for him and of course we don't claim any right to arrest him at an appropriate opportunity if he is wanted as a war criminal.
But we do insofar as being a witness and insofar as interrogations are concerned, if we shall locate the nan first and bring him here even though the prosecution says he is a defense witness. On the other hand, if we are looking for him and bring him here, just because defense counsel has out in an application for the witness, we cannot take the view that we have lost our rights to him as a prosecution witness or shall we **** our rights to interrogations.
DR. SAUTER: Mr. President, may I make the following remark, the last thing that the Prosecution just said is precisely what oppresses us. As things are done now I must feel that every time I bring a witness here or give the witness' address, that the Prosecution then says, "Stop! We have been looking for him for a long time. We will examine him first for a week", and after he has been examined by the Prosecution for a week then of course the defense can have him. That is what we are protesting against, at least that is what I am protesting against. My point of view is if this procedure is applied on a large scale, it might be better to change the practices of legal procedure entirely and to say, no matter whether the witness is brought here by the defense or the prosecution, in any case the prosecution is to have the right first to examine the witness, and when it has no more questions to put to the witness, then the defense may question him. I may point out something else, Gentlemen, this witness, Hippke, has been here in the prison for sometime. The case of the prosecution has long been finished. The prosecution did not produce this witness, and as far as I know it did not submit an affidavit from this witness, therefore, in my opinion, the prosecution has given evidence that it is not interested in this witness for this trial. Now, as the defense has begun the cases for the defendants, in my opinion the prosecution should no longer have the right, as far as this trial is concerned, to examine this witness without the approval of the defense counsel, but at least it should not have the right to keep the witness for itself for a certain period. These are my objections. These are my objections on the basis of my knowledge of American trial procedure, and concerning which I ask for a ruling of the Court.
THE PRESIDENT: Dr. Sauter, in your opinion how vitally necessary is it that the defense counsel shall have precedence over the prosecution or vica-versa so far as priority in examination of any particular witness or interrogation of any particular witness is concerned?
DR. SAUTER: As far as I can judge from the customs of the first trial, American law is that the side which has named a witness has priority and that the other side can examine this witness only with the approval and in the presence of the opponent.