THE TRIALS It is generally acknowledged, among symphony conductors and trial lawyers alike, that the vital work is done before the show begins. Gesticulate and exhort as the conductor may during a concert, the quality of the performance will be largely determined by the caliber of the players he has selected, and the sensitivity and unity of purpose that he has imparted to them in rehearsal. Orate and emote as the trial lawyer may in open court, the impact of his case is more likely to be governed by the volume, quality, and organization of the evidence at his command when the trial begins. These truisms proved as valid in the Palace of Justice at Nuernberg as on Foley Square in Manhattan. Procedure Indeed, they were especially true at Nuernberg where the prosecution's case usually rested primarily on documents assembled prior to the trials and only secondarily on the testimony of witnesses. Few of the defendants committed atrocities with their own hands, and in fact they were rarely visible at or within many miles of the scenes of their worst crimes. They made plans and transmitted orders, and the most compelling witnesses against them were the documents which they drafted, signed, initialed, or distributed. The bulk of these documents were available in each case by the time the indictment was filed, and relatively few came to hand thereafter. This is not to belittle the importance of the court proceedings, or the opportunities for effective advocacy which they presented to prosecution and defense counsel alike. But these considerations do help to explain why so few court sessions were used by the prosecution in comparison to those devoted to the defense, which usually had to resort to other and more timeconsuming methods in its endeavors to meet the prosecution's documentary case. The general course of events at the trials was prescribed by Article XI of Military Government Ordinance No. 7, which in turn was adapted from (though not identical with) Article 24 of the London Charter. The practice was to serve the indictments on the defendants in the presence of the Marshal of the Tribunals and officials of the Defense Information Center, who simultaneously ascertained the wishes of the defendants with respect to counsel, and offered general advice and assistance. Ordinance No. 7 provided (Art. IV) that "a reasonable time" should elapse between service of the indictment and commencement of the trial, and the tribunals by rule (Rule 4) prescribed that this period should be not less than 30 days. As matters worked out, the period was usually considerably longer than 30 days, and gave the defendants ample time and opportunity to select counsel and embark upon the preparation of their defense. During this period, too, the defendants were formally arraigned before the Tribunal, which recorded their pleas of "not guilty" (in fact they were invariably "not guilty”), and ascertained that each defendant had had opportunity to read the indictment and had procured counsel. Often other procedural matters were taken up before the Tribunal at the conclusion of the arraignment, and customarily the prosecution at that time agreed to make available to defense counsel most of the documents which the prosecution planned to offer in evidence in support of its affirmative case. A large proportion of these documents were usually turned over to the defense soon after the arraignment, and the balance as soon as it was administratively feasible. Often the prosecution also made available large amounts of other documents which it did not plan to use in the direct case. As a rule, the prosecution withheld from the defense only such documents as it planned to reserve for use in connection with cross-examination of the defendants. The trials began with an opening statement on behalf of the prosecution which undertook to outline comprehensively the nature of the evidence in support of the charges in the indictment, with numerous illustrative quotations from the documents to be offered. Thereafter, the prosecution proceeded to offer the evidence in support of the charges. The documents to be offered were assembled in "document books," in each (or each series) of which the documents relating to a particular subject or defendant were collected. In offering each document, prosecution counsel would briefly describe it and state the purpose for which it was offered. In this respect the practice of the tribunals varied; some wished an extremely short statement and others a slightly more comprehensive description of the contents. Most of the documents in the books had been in the hands of defense counsel for some time, and copies of each document book had been given them a day or more prior to its offer in court. If defense counsel wished to challenge the authenticity or relevancy of a document or correct the translation, they would make their objections or comments at the time the document in question was offered. However, if they wished to controvert the import of the documents by other evidence, they were required to wait until the presentation of the defense case. During the prosecution's direct case, its witnesses were also heard. As a rule, they were not numerous. In some cases, testimony was offered by the prosecution in the form of affidavits, and these were usually accepted by the tribunals subject to the right of the defense to cross-examine the affiants if they so desired. Some of the tribunals preferred to hear cross-examination of the prosecution's affiants at the close of the prosecution's case, while others preferred it to be done during the defense case. At the conclusion of the prosecution's case in chief, the defense usually requested a long recess for further preparation of their own case in chief, and the tribunals customarily ordered a somewhat shorter recess than that asked for, varying, according to the circumstances, from 2 to 6 weeks. In some trials the evidence for the defense was offered defendant by defendant, and in others defense counsel divided up the presentation according to subject matter. Ordinarily, the defendants called many more witnesses than did the prosecution, and their documentary evidence contained a very large number of affidavits. These affidavits, like those of the prosecution, were received by the tribunals subject to the prosecution's right to cross-examine the affiants, but in practice the prosecution usually waived crossexamination of all but a few of the affiants. Documents and affidavits offered by defense counsel were translated for them by the Language Division of OCCWC, and were assembled into document books by the Defense Information Center. As a rule the defendants themselves took the witness stand to testify in their own defense (following Anglo-Saxon practice, they were allowed to testify under oath but could not be required to take the stand against their will). In the "Krupp case" (United States v. Alfried Krupp, Case No. 10), however, none of the defendants took the stand to meet the prosecution's charges, and in a few other trials one or two of the defendants likewise abstained. At the conclusion of the defense case, the prosecution had an opportunity to present rebuttal testimony and documents, which required only a few days at most. Thereafter (usually following a recess of a week or more) the closing arguments for both prosecution and defense were presented. Under Ordinance No. 7 as amended,214 the tribunal determined the order in which these closing arguments should be made. There followed the statements of the defendants themselves and, within a specified period thereafter, final briefs for both sides were filed. After such a period as the tribunal required for preparation thereof, judgment was delivered and the sentences pronounced. For the most part, the witnesses called by the prosecution were former inmates of concentration camps, victims of the slave-labor program, and others who could testify on the basis of first-hand knowledge to the atrocities and abuses charged against the defendants. Upon rare occasions, Germans who had themselves been convicted of or were suspected of having committed war crimes appeared as prose 214 By Military Government Ordinance No. 11 (17 February 1947), Art. III. cution witnesses; 215 defense counsel, however, made use of such witnesses with great frequency. Likewise, a few highly qualified specialists of varying nationalities appeared as expert witnesses for the prosecution. Thus, the distinguished German medical professor Leibbrandt (of the University of Erlangen) was called in the "Medical case" to testify to the effect of the Nazi dictatorship on the German medical profession and medical standards. In the same case, the wellknown American physician Dr. Alexander C. Ivy, vice president of the University of Illinois, gave technical medical testimony, and also explained American medical practice with respect to experimentation on human beings. In the "Farben case" an American chemical expert (Dr. Nathaniel Elias) appeared, and in both the "Farben" and "Krupp" cases Brig. Gen. (ret.) J. H. Morgan, who had been a leading member of the British component of the Allied Control Commission in Berlin following the First World War, testified concerning various historical matters within his special sphere of knowledge. In connection with the testimony of the last three witnesses named, the defense requested that certain of the defendants themselves should be allowed to cross-examine the witnesses. Despite the novelty of this procedure, it appeared fair and suitable to the special circumstances of the situation, and the tribunals granted permission for this to be done. In the "Medical case," for example, Dr. Gerhard Rose (perhaps the most distinguished scientist among the defendants) and two other defendants cross-examined Dr. Ivy at length. In order to shorten the proceedings, the prosecution used affidavits instead of oral testimony whenever possible. Such matters as the curriculum vitae of the defendants, organization charts of ministries and other government agencies, and explanations of the functioning of quasi-governmental industrial bodies were usually presented in affidavit form subject, of course, to the right of the defense to call the affiants for cross-examination. A comparatively small number of affidavits on more controversial matters were also introduced. The defense, however, utilized affidavits in great quantity on a very wide variety of subjects, but in order that the court proceedings should not be unduly prolonged the prosecution waived cross-examination except in the most important instances. In three of the Nuernberg trials the witnesses and affiants were so numerous that the tribunals themselves were unable to hear all of the witnesses, and had to appoint commissioners for this purpose. These were the "Farben," "Krupp," and "Ministries" cases (Cases No. 6, 216 Thus, SS Major General Ohlendorf, convicted and sentenced to death in the "Einsatz case" (Case No. 9), appeared as a rebuttal witness for the prosecution in the "High Command case" (Case No. 12), to testify to his relations with the headquarters of the German Eleventh Army, to which Ohlendorf's group was attached. Charges occasionally made in the German press that the prosecution had given witnesses such as Ohlendorf assurances of favored treatment are, of course, entirely without foundation. It was the prosecution's firm policy that neither threats nor promises would be made for such purposes. 10, and 11, respectively). Upon the conclusion early in 1948 of the "RUSHA case" (Case No. 8), before Tribunal No. I, Judge Crawford (who had been a member of that tribunal) was appointed as the Chief of the Commissioners for the Tribunals. Judge Crawford, assisted by several associate commissioners, took testimony from then until the conclusion of the court proceedings in the "Ministries case" in the fall of 1948. The commissioners had no power to rule on questions of evidence, but certified the transcript of proceedings before them to the tribunals. In three cases, the defense made special requests for access to files of captured documents, and in all three cases the requests were granted in substantial part. In the two military cases (the "Hostage” and "High Command" cases, Cases No. 7 and 12), however, the files of captured documents were in Washington, and not available in Germany. The problem was solved in each case by sending from Washington to Nuernberg numerous files of documents (which filled many packing cases) requested by defense counsel, for inspection by them. If, as the result of such inspection, they wished to offer any particular documents in evidence, photostatic copies were furnished them for this purpose. In the "Ministries case" the problem was simpler, as the files of the German Foreign Office were available at Berlin, and upon request defense counsel were given access to and allowed to select such documents as they desired. On evidentiary questions and other similar matters, the general nature of the Nuernberg procedure was a blend of continental and common law practice. Thus, as is usual in continental law, hearsay was much more freely admitted than in common law trials, and the defendants were permitted to make statements not under oath and not subject to cross-examination. But numerous fundamental doctrines and practices of Anglo-Saxon criminal law-such as the presumption of innocence, the rule that a defendant must be found innocent unless proved guilty beyond a reasonable doubt, and the practice that it is primarily the advocate's responsibility and not that of the tribunal to elicit testimony from witnesses-were applied at Nuernberg, and in general it may be said that the practice was more similar to that of the common law than continental law. Procedural and evidentiary rules were debated and determined as they arose, and rapidly a genuine "international procedure" was developed, which will well repay examination and exposition in published form. Outcome The success of a judicial process is not to be measured in terms of convictions and sentences alone, and this was particularly true at Nuernberg. The purpose of a criminal trial is to do justice, and no conscientious prosecutor desires to be a participant in the conviction 1 |