My cross-examination is directed to this question as to what extent Martin Bormann, who signed this letter, could have been in a position to use altogether difficult legal expressions. Before I can put this question, however, I have to ask the witness to what extent the Party Chancery in Munich had connection with Bormann altogether. Therefore, it is my opinion that the questions in my crossexamination are in an indirect, if not direct connection with this letter.
MR. LAFOLLETTE: Now we come to the point exactly. Dr. Schilf is attempting, by cross-examination, to elicit from this witness information having to do with a conclusion which is probably implicit from the facts which are in this case and some of which I elicited from the witness, from the facts. I did not ask the witness did he think that Martin Bormann could have written this letter. That is what this goes to. I admit I asked the witness what he knew about Martin Bormann's education, and he answered that. And that is where my direct examination stopped.
Now, had I, in my opinion, made the mistake of asking the ultimate question, I would have opened the flood-gates for this cross-examination. I did not do it.
Of course, the defendants are entitled to rebut the ultimate inference, but it is my point that they must do that by evidence which they produce themselves, and they cannot do it by cross-examination of this witness beyond the field of the direct questions asked him on direct examination.
We have reached exactly the issue upon which I ask the Court to make a decision.
THE PRESIDENT: We have before us a close question. Of course, it is not the field of cross-examination to develop any defense theories except as the field has been entered on the direct examination. We feel that this is an attempt to enter upon the defense, and we don't feel that the field has been sufficiently entered to permit defense counsel to do so. We therefore seem to feel that the objection should be sustained.
Of course, let us be clearly understood. This field is open to the defense and they may make this witness, if they like, their witness in defensive matters when it comes to the defense. But at this time we do not feel that this field has been opened.
DR. SCHILF:
Q Witness, I wanted to ask you whether Bormann--even though he was an agriculturist by profession--in his activity in the Fuehrer headquarters, had a Referent an assistant, who was a lawyer.
A Yes.
Q Was this trained jurist constantly in the Fuehrer headquarters; that is, in personal contact with Bormann?
A Yes.
MR. LAFOLLETTE: I ask that the answers be stricken because they enter a field which is clearly that of the defense; they do not cover the direct examination. It is difficult to get to your feet here and make objections; I know the usual rule that you must object. However, I ask that the answers be stricken. They definitely go to matters which were not covered by the direct examination.
THE PRESIDENT: We feel that defense counsel is pursuing that beyond the restrictions that have been laid down by the Tribunal. We will no withdraw the answer, but you will please direct your inquiry to other matters.
DR. SCHILF: May it please the Court, I would like to say something principally on my part. In the direct examination, the witness was asked about the letter.
THE PRESIDENT: We wish counsel to feel that when we have ruled, that becomes a finality.
DR. SCHILF: But this applies to my future questions; in regard to the questions which I am going to ask now, I would like to know the opinion of the Tribunal.
THE PRESIDENT: You may proceed to ask your questions and we will rule upon them in turn. Don't make your argument in advance.
BY DR. SCHILF:
Q Witness, within Division III, which was in Munich, can you tell us any details about the office procedure? According to the letter which was submitted to you, and the letter which has the signature of Martin Bormann himself, the important thing is that the file number III-C has been mentioned. You probably have the photostat before you; it is of the 9th of September, 1942. I would like to ask you to look at the other signs and also the handwritten note. It is the letter of the 9th of September, 1942. I would like to ask you to tell me, after that, whether this letter, which has the division and sign "IIIC", must actually have been written by this party without any question, or whether this letter might also have been worked over by another division, perhaps III-A.
MR. LAFOLLETTE: Don't answer that, please.
Again I have the same objection, Your Honor. This is a matter for the defense which they can certainly produce. They may call this witness, they may call any witnesses that they please. All I asked was that this witness identify this letter as coming from by its identification III-C, or as being one within the matters handled by the Ministry of Justice representative at the Party Chancery.
As to who might have written it, whether some one else might have gone over it, is certainly a matter for the defense. This question does not go as to whether or not the witness was mistaken as to his identification of this III-C; it does not go as to whether he was mistaken as to what division those letters represented.
Again, I will say to the Tribunal that I deliberately asked only those facts from which I choose to ultimately argue an inferrable fact. But the answer and the explanation of that I think is clearly a matter for the defense in chief and not to be elicited from my witness, whom I purposely restrained.
For the reason I again say that this question is beyond the range of the direct examination and is not proper cross-examination.
THE PRESIDENT: The ruling which has been made puts defense counsel at no disadvantage. The matters that are now sought to be elicited by this question and other questions related to it are matters easily proven, we think, by other witnesses. But if not, this witness will be available to the defense, and you may call him as your witness. However, we think the cross-examination has proceeded far enough along those lines.
BY DR. SCHILF:
Q Witness, if you look at the contents of the letter of the 9th of September, 1942, would you say that the questions asked in it-- that is, we are concerned with Jews--whether they were not also worked on by another division than III-C, or originally would have had to have been submitted by another division?
MR. LAFOLLETTE: Same objection, Your Honor.
THE PRESIDENT: The objection will be sustained.
BY DR. SCHILF:
Q Witness, you spoke about the fields in which the different divisions worked. The division in which you were working, III-a, did it also treat questions of Jews or nationality, Volkstum? Did you understand my question?
A Yes.
MR. LAFOLLETTE: If Your Honor please, I move to have that answer stricken. It opens up a field I didn't to into, and it is purely defensive matter.
THE PRESIDENT: He didn't answer it.
MR. LAFOLLETTE: I though he answered "Ja".
THE PRESIDENT: I did not hear it, but if he did -
MR. LAFOLLETTE: If he did, I move it be stricken.
THE PRESIDENT: The answer will be held in suspense until we can act on it, at least.
THE WITNESS: I answered "yes" to the question whether I understood the question, not an answer to the question itself.
MR. LAFOLLETTE: He said that he simply understood the question. He did not say he was giving an answer to the question, so the objection still stands, and for the same grounds I have previously stated.
THE PRESIDENT: The objection will be sustained and the answer will be stricken.
BY DR. SCHILF:
Q Witness, now quite a different question. You were asked whether you and the defendant Klemm were members of the Political Leadership Corps on the basis of your work in the Party Chancellery, and as far as I can remember, your answer was not quite clear. You referred to diffic ulties to define the concept of the Leadership Corps.
Is it correct that only on the basis of an activity in the Party Chancellery alone, by dint of that alone a rank or an office in the organization of the NSDAP was connected with that?
A I already answered the question by saying that we were rank leaders, Rangsfuehrer, and according to that conception we did not have a political office. Our task was a purely state matter. We were civil servants and we remained civil servants.
Q You did not become political leaders by getting an honorary rank?
A The definition of the Political Leadership is not quite clear. According to the experiences which I made during my interrogations by the British offices, these Rangfuehrer were not regarded as political leaders in the closer sense. The prerequisite for being a political leader was the holding of a political office.
Q Both of you did not have a political office in Division III of the Party Chancellery?
A We had tasks which were purely questions, Mr President.
THE PRESIDENT: Does any other defense counsel desire to cross examine this witness. Is there any further redirect examination?
MR. LAFOLLETTE: There is no further redirect examination.
THE PRESIDENT: The witness may be excused.
MR. LAFOLLETTE: Mr. Wooleyhan will proceed.
MR. WOOLEYHAN: May it please the Court, on April 23 the Prosecution invited the judicial notice of the Tribunal to certain articles in the Hague Convention Regulations of 1907.
As was stated in the record, all of the articles which we read had been previously brought to the attention of both the Tribunal and the defense by enumeration of the article numbers in the indictment and again repeated in the opening statement. During the reading of those articles into the record on the 23rd of April it was inadvertantly omitted to read all of Section 23 of the Hague Convention Regulations. Only part of it was read. It has since been thought that in all fairness to defense counsel we should read all of that section, since all of it is referred to by citation number, but only a portion of it was read. At this time, if the Tribunal please, we should like to read the remaining portion of the section 23, which was inadvertantly omitted on the 23rd.
THE PRESIDENT: We see no objection to doing that.
MR. WOOLEYHAN: On 23 April we read subsections A and B of Article 23. We now propose to read subsection H of Article 23. They will not need a copy.
Subsection H provides:
"In addition to the prohibitions provided by special conventions, it is especially forbidden to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. A belligerant is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerant's service before the commencement of the war."
At this time, may it please Your Honors, likewise for purposes of judicial notice, and to make the record a complete document to which to refer, the Prosecution wishes to invite the judicial notice of the Tribunal to certain evidence presented to and accepted by the International Military Tribunal and a few brief excerpts from the findings and verdict of the International Military Tribunal relevant to the aforementioned evidence.
The evidence and findings to which we refer have as a common denominator of subject matter the concentration camps.
THE PRESIDENT: Mr. Wooleyhan, you say "the evidence and findings". We understand that only the findings of the International Military Tribunal become binding upon us in the absence of any evidence to the contrary.
MR. WOOLEYHAN: That is quite true, Your Honor. However, the evidence presented before the International Military Tribunal does come within the ambit of judicial notice for your consideration. Whether or not it may be binding is only relevant to the findings. However, we had hit upon this method as a short method of introducing evidence which otherwise would have to be done separately by document.
May I recapitulate: We offer for your judicial notice, and notice only, certain evidence offered and accepted by the International Military Tribunal. In addition to that we offer certain brief excerpts from the findings of the International Military Tribunal which we propose are binding upon this Tribunal insofar as evidence is concerned. In other words, our position is not that the evidence is binding.
JUDGE BRAND: Are you suggesting that in order to show that the findings were to be treated as findings, it is necessary to show that they were based on evidence and were therefore not irrelevant to the case, and that therefore the evidence is admissible in order to show that the findings were made upon evidence?
MR. WOOLEYHAN: Your Honor, that is the ultimate conclusion which we assumed the Court would draw. May I explain briefly that whatever evidence I may read from the record of the International Military Tribunal is, as you will see, quoted from certain documents which were offered and admitted before that court.
JUDGE BRAND: I am wondering why those documents are not available at this time. It could be introduced instead of reading from the evidence of those documents as they appear in the record of the IMT.
MR. WOOLEYHAN: Your Honor, the documents to which I will refer, if I am permitted, are available; however, we had thought that since the record of IMT is a genuine source of judicial notice, that it would be much shorter and more efficient to refer to them in this manner rather than introduce them as separate exhibits, inasmuch as it's purely a collateral matter anyway.
THE PRESIDENT: This is a novel question, to say the least, and it is now the usual recess time. We shall give thought to that. I think we understand your theory. No have your request in mind sufficiently to be able to consider it without further discussion at this time. We will recess now for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. WOOLEYHAN: Your Honor, before the Tribunal voices its decision on the proposed plan of procedure here, does Your Honor still think it is necessary to quote from Article 10, Ordinance No. 7?
THE PRESIDENT: I think we are quite familiar with it, but now it might be to an advantage if you would outline just what you expect to introduce here by way of judicial knowledge.
MR. WOOLEYHAN: During the Prosecution's case in chief thus far certain concentration camps have been brought out in the evidence. They have been brought out in various contexts, including certain defendants in the trial, but the physical nature of those concentration camps, what went on there, and the fates of the people who were sent there have not been brought out in the documents or testimony, except insofar as isolated instances were concerned. Now, particularly with reference to Mauthausen, Flossenberg and Auschwitz, the Prosecution does feel it necessary to call the court's attention to the nature of and activities in those three concentration camps at least.
THE PRESIDENT: May I inquire whether those things sufficiently appear in the judgment itself, or do you want to go to the record?
MR. WOOLEYHAN: They do not appear sufficiently in the judgment itself. We are primarily concerned with the record.
JUDGE BRAND: What portion of Article 10 do you suggest authorizes judicial notice of mere evidence offered in another Tribunal?
MR. WOOLEYHAN: There is, if the Court please, with regard to the record alone, the last clause of Article 9, which is the applicable one, and it reads: "And the records and findings of military or other Tribunals of any united nations."
MR. LaFOLLETTE: We are pointing out, again I am onoy repeating what Mr. Wooleyhan says, there are two things. We ask the Court to take judicial notice of the record of other Tribunals, and we contem plate referring to the page of the transcript, or of the document where these records were made in the IMT record.
Now this judicial notice of the findings in Article 10 are of the findings on the evidence, but the record we may offer refers to judicial notes, and that is what we are seeking to do, and we are relying on the previsions of section 9 -- Article 9 -- of Ordinance 7.
JUDGE BRAND: In your construction, that is based solely on the meaning of the word "records."
MR. LaFOLLETTE: I think "records and findings", yes, sir.
JUDGE BRAND: We are not raising any issue as to "findings".
MR. LaFOLLETTE: Yes, but on the word "records" it has judicial notice as distinguished from "findings", which is binding under Article 10. As to the judicial notice, the record of any Military Tribunal, we believe, is provided for in Ordinance 7.
JUDGE BRAND: As you define the record of, say, a trial, either the Prosecution or the defense could introduce by the method you now suggest for judicial notice any evidence either for the Prosecution, or the defense, which can be found in the testimony of any other case which has been tried by an International Tribunal.
MR. LaFOLLETTE: Exactly, provided adequate identification is made so that this Tribunal may ascertain what that record is and where it is, yes.
JUDGE BRAID: I have grave doubts whether the word "record" was in fact meant to include any and all testimony introduced by any and all parties in any or all of these trials.
MR. WOOLEYHAN: Perhaps, Your Honor, we can make the point narrower in that we will be perfectly willing to accept construction of the word "record", as to the meaning for our purposes, the judicial notice of only those portions of the transcript in IMT which are quoted from documents which are in evidence before the IMT, and use this procedure that we suggest here as merely an expeditious and quick way of referring again to the documentary evidence which was offered to and accepted by the International Military Tribunal.
THE PRESIDENT: The Prosecution counsel are, of course, entirely familiar with the well established rule in the States, that testimony in a case does not become part of the record until incorporated into the record by a duly certified bill of exceptions. Now the word "record" as employed in the argument here, seems to have a much broader meaning than provided in that case.
MR. LaFOLLETTE: Yes, that is true. I think, however, it must be construed in the context in which the word is used with regard to these previous trials, and concurrent trials. Then you got the word "record" as a very definite meaning, and which means it was introduced into evidence.
THE PRESIDENT: If what you are arguing at this time is sound, it would be equally true that any other Tribunal now sitting would have its record entitled to be accepted in the same portion and effect.
MR. LaFOLLETTE: That is correct. That is correct.
THE PRESIDENT: There is danger. That is one danger.
MR. LaFOLLETTE: Yes, but I don't think we really need to worry about the word "record" in that regard, because I think a finding includes a judgment on the language used. I am aware of what is included. A finding is a finding of ultimate facts on the law and upon the evidence in the case, as I see the term. The record is the evidence. So that whatever may be done with the findings, the construction which I am asking for in this case is not effective by our interpretation of the word "record".
THE PRESIDENT: I suggest to you that the word "record" means something in addition to findings, and that the logical thing for it to mean is in the nature of orders made in reference to the law, or procedural matters of that kind, which would go into the record of the Tribunal. It seems to me that it would be terribly unfair to throw open the gates here, and, instead of putting in evidence, to ask the Court to treat as evidence through the medium of judicial notice anything that either party can find was offered as testimony, written or verbal, in any one of these other cases.
MR. LaFOLLTTE: Your Honor means "offer and accepted."
THE PRESIDENT: Yes, as heard by any other Tribunal.
MR. LaFOLLETTE: My answer to that is that there was contemplated, I think, certain modification standards in reference to evidence to which I am accustomed, as are other members of the Tribunal, that this word "record" must also be read in connection with the definite admonition to all of us that the trial is to be conducted expeditiously. I think that has a good deal to do with throwing light upon the meaning of the word "record".
THE PRESIDENT: There is just one word that means more to me than "expeditiously", and that is fair.
MR. LaFOLLETTE: I cannot see anything unfair about a rule which offers this same availability to the defense as it does to the Prosecution. I quite agree with Your Honor that "fair" is more necessary than expedition in this trial. We are not asking for one rule for the Prosecution, and another rule for the defense.
THE PRESIDENT: Before the recess there had been no suggestion as to the latter part of Article 9, and we were only thinking of Article 10. As to Article 10 alone, we were and are still satisfied to rule on only the judgment of the International Tribunal, and not with any other Tribunal, which take matters of judicial notice, nevertheless rebuttal, of course, according to the language of Article 10. You injected new thought to our meaning when you referred to Article 9, and the word "records".
Perhaps my statement was a little broad when I said we would not accept the findings of other Tribunals, military or otherwise. I think under the language of Article 9 we would be bound to take the findings of other Tribunals, other than IMT. The troublesome part is the word "records."
"29April 47-M-AK-8-1-Haynes(Hahn)
JUDGE BRAND: May we ask that you make one matter clear. Your request is not limited, as I personally understand it, to the reading of portions of the findings or the statements of the Tribunal? Your offer goes beyond that and refers to an offer or a request that we take judicial notice of certain exhibits as such which were offered and received in evidence?
MR. WOOLEYHAN: That is it precisely.
JUDGE BRAND: By the I.M.T.
MR. WOOLEYHAN: Precisely.
MR. LAFOLLETTE: Exactly.
JUDGE BLAIR: Those exhibits were established by the international judgment specifically?
MR. WOOLEYHAN: They were, and they are designated by number and exhibit number.
JUDGE BRAND: Established-
MR. WOOLEYHAN: Introduced.
JUDGE BRAND: And received.
MR. WOOLEYHAN: And received. Is that what you mean by "established" Your Honor?
DR. KUBUSCHOK: May I make a brief remark. Concerning Articles 9 and 10, I would ask you to compare it. If one shares the view of the Prosecution, the last sentence of Article 10 would be incomprehensible or at least superfluous. If one shares the view of the Prosecution it would be possible, concerning the whole material of the trial of the other trials, to make it irrefutable. In that case, the last sentence of Article 10 would be incomprehensible, because it means that statements, the establishments, the findings of the Courts can be refuted by new evidence. Therefore, I believe that the word "record" in Article 10 can in no way be interpreted in such an extensive way as the Prosecution is doing.
MR. LAFOLLETTE: If Your Honor please, I don't believe that that argument is legally sound. We are not claiming that this evidence is binding, and consequently, of course, the last sentence of Article 10 remains in full effect. All we are saying is that the record is evidence, not that it constitutes a finding of ultimate fact or guilt. Of course we are not contending that, so that what we are contending is not inconsistent with the last sentence of Article 10.
JUDGE BRAND: But your contention, carried to its ligical conclusion, might result in this situation: You might find an exhibit offered in evidence and received in evidence by the I.M.T. an upon your theory it would be admissible as judicial notice of the facts therein stated, although the findings of the I.M.T. might have been have been that they found the document which had been received in evidence to be incorrect or untrue.
MR. LAFOLLETTE: That is quite true.
JUDGE BRAND: And then you would have us taking judicial knowledge of something that the I.M.T. Had found incorrect in fact.
MR. LAFOLLETTE: No. I ask you to take--Well, that is no different-- To me it is no different, Your Honor than if during the evidence that is introduced in his trial, after it is introduced some of it this Court will reject as untrue; some of it will accept, and when it reaches its conclusion of ultimate fact and law, if we follow back logically, we would say that this Court could not have reached the conclusion that it reached unless it rejected something that was in the record. I do not see that what we are requesting this Court to do in any way involves an inconsistency such as Your Honors have just mentioned.
We are not asking you to be bound by what-
THE PRESIDENT: May I ask you a question? How are you proposing to bring those matters of evidence before this Court at this time?
MR. WOOLYHAN: We were proposing to read quotations from certain documents received in evidence before the I.M.T., as stated in the official transcript of the I.M.T.
THE PRESIDENT: You are going to read from those documents, do I understand you to say?
MR. WOOLEYHAN: The documents were read by the Prosecution into the record of the I.M.T.
THE PRESIDENT: And you are proposing to read from those same documents before this Tribunal at this time?
MR. WOOLEYHAN: We are, Your Honor, And then-
THE PRESIDENT: Maybe I did not make myself clear I mean introduce the documents in this Court and then read from them.
MR. WOOLEYHAN: That would not be judicial notice, Your Honor.
JUDGE BRAND: It would be evidence, and judicial notice isn't evidence in the true sense of the word.
MR. WOOLEYHAN: That is precisely right.
MR. LAFOLLETTE: Except to the extent that this language makes it. If it doesn't, then, of course, we are wrong. That is all there is to it.
THE PRESIDENT: Have you some other matters that can occupy the time for the remainder of the forenoon?
MR. WOOLEYHAN: No, Your Honor, we have not, for the remainder of the morning session.
MR. LAFOLLETTE: If Your Honor please, we are in this position. We'll have two witnesses in this Court tomorrow, one a Czech. Part of Book 9 might be available this afternoon, but has not been distributed for 24 hours. We have the PS documents of the I.M.T. which we felt we could get in the manner which we have proceed. If the Court feels otherwise, of course, we accept the ruling. The only alternative then that we could offer to occupy the Tribunal's time is these PS documents. They were introduced and accepted in the record of the I.M.T. If the Court and Defense Counsel would feel that they could waive the 24 hour rule and also waive distribution, certain portions of those documents relating to Mauthausen, Flossenberg and Auschwitz could be read from this podium. I don't ask anyone to do it. I am just saying that is the only way we can do it. We are sorry.
JUDGE BRAND: What about Book 8-B.
MR. LAFOLLETTE: I'll tell you very frankly about 8-*B. We spent a lot of time on it. It is unverified letters, and I don't think that this Court will accept it under its rules, and I won't quarrel with that ruling. We were mistaken, and we very honestly make confession that we were mistaken, but we had thought, of course, that when we were ordering our books distributed that it would be available at that time. It is our fault, but there is-
THE PRESIDENT: May I make this inquiry. You have said that these documents that were introduced before the I.M.T. are available and the only difficulty at this particular moment is that they wore not submitted to Defense Counsel 24 hours ago.
MR. LAFOLLETTE: More than that, Your Honor. I say they are available in our possession as documents which were introduced, but they have not been translated into German, They were O.S.S. reports-- I beg your pardon.I am informed that they were German captured documents, but I am not adequately informed as to whether or not there are mimeographed copies in German which would permit us to make the distribution which the rules of the Court require. We have to go to the Document Room, and we have to ascertain that. If the supply of German documents has run out, then there will have to be new stencils run, re-mimeographed and put together. I mean, that is not my fault nor the Tribunal's; it is just one of the situations with which we arc confronted. We could read the documents. There would be a complete German transcript available from the translation, but I don't, of course, put the burden on Defense Counsel in order that we may proceed to say that they waive. I simply point out to the Tribunal that that is the situation.
JUDGE BLAIR: Regardless of the fact that you read part of the international judgment into this record here as judicial notice, you would have to go further and show with regard to each of the defendants here how he was connected with that part of it before a conviction could be had, wouldn't you?
MR. LAFOLLETTE: We are far away from that, Your Honor, That is argument. This is a piece of our evidence. That is quite right, and also we are prepared-There is a good deal of difference between the different isolated elements of evidence and final evidence. We argue that from everything we have in the record.
We are prepared to read some from the findings or the judgment of the I.M.T., which is clearly judicial notice We had also, as we made quite clear,felt that we were entitled to bring in the record in the same way. If the Court rules that we can not bring in the record, then we don't bring in the record, but I am sure that the Tribunal will not rule that we can not read the findings We can read some findings. That is the situation.