LAHOUSEN: Yes.
HERR BÖHM: Will you please submit it?
LAHOUSEN: I am looking it up. This is about the Arbeitsdienst man, this document.
HERR BÖHM: It is not about the SA man?
LAHOUSEN: No.
HERR BÖHM: Then you cannot submit anything in answer to my question?
LAHOUSEN: I do not have it here. I would have to look it up.
HERR BÖHM: Do you think you might find some records?
LAHOUSEN: I would have to have an opportunity of going through the whole of the material which is in the hands of the American authorities to find this one.
HERR BÖHM: I will ask the Court that you be given this opportunity.
I would also like to inquire whether you were ever able to observe that members of the SA whom you ascertained were employed on supervisory duties, ever took any measures which were in line with the orders against Soviet soldiers.
LAHOUSEN: No, not personally.
HERR BÖHM: Thank you.
DR. STAHMER: I would like to ask the Court for a fundamental ruling on whether the defendant also has the right personally to ask the witness questions. According to the German text of the Charter, Paragraph 16, I believe this is permissible.
THE PRESIDENT: The Tribunal will consider the point you have raised and will let you know later.
MR. JUSTICE JACKSON: The United States Prosecution would desire to be heard, I am sure, if there were any probability of that view being taken by the Tribunal.
THE PRESIDENT: Perhaps we had better hear you now, Mr. Justice Jackson.
MR. JUSTICE JACKSON: Well, I think it is very clear that these provisions are mutually exclusive. Each defendant has the right to conduct his own defense or to have the assistance of counsel. Certainly this would become a performance rather than a trial if we go into that sort of thing. In framing this Charter, we anticipated the possibility that some of these defendants, being lawyers themselves, might conduct their own defenses. If they do so, of course they have all the privileges of counsel. If they avail themselves of the privileges of counsel, they are not, we submit, entitled to be heard in person.
DR. STAHMER: I would like to point out once more that Paragraph 16 (e), according to my opinion, speaks very clearly for my point of view. It says that the defendant has the right, either personally or through his counsel, to present evidence, and according to the German text it is clear that the defendant has the right to cross-examine any witness called by the Prosecution. According to the German text there reference can be made only to the defendant—with respect to terms as well as to the contents. In my opinion it is made clear that the defendant has the right to cross-examine any witness called by the Prosecution.
THE PRESIDENT: Does any other German counsel, defendant’s counsel, wish to cross-examine the witness?
DR. ROBERT SERVATIUS (Counsel for Defendant Sauckel): I would only like to point out that in the written forms given to us by the Court, the defendant, as well as his counsel can make a motion. A place is left for two signatures on the questionnaire. I conclude, therefore, that the defendant himself has the right to speak on the floor.
THE PRESIDENT: What I asked was whether any other defendant’s counsel wished to cross-examine the witness.
[Herr Böhm approached the lectern.]
THE PRESIDENT: What is it? Would you put the earphones on, please, unless you understand English. What is it you want to ask now? You have already cross-examined the witness.
HERR BÖHM: Yes, I have cross-examined him, but he has given me to understand that he made a report about an incident which occurred during one of his visits of inspection, and that he has some written notes. As I am not yet able to release the witness, I should like to move that the Prosecution allow to be placed at the disposal of the witness any available notes or reports on the observations made by him at the time, so that he may find the evidence he wants.
THE PRESIDENT: I think you must conclude your cross-examination now.
HERR BÖHM: Certainly.
THE PRESIDENT: The Court thinks it would be better if you want to make any further application with reference to this witness, that you should make it in writing later.
HERR BÖHM: Yes.
THE PRESIDENT: Then, as no other defendant’s counsel wishes to cross-examine the witness, the Tribunal will now retire for the purpose of considering the question raised by Dr. Stahmer as to whether a defendant has the right to cross-examine as well as his own counsel.
[A recess was taken.]
THE PRESIDENT: The Tribunal has carefully considered the question raised by Dr. Stahmer, and it holds that defendants who are represented by counsel have not the right to cross-examine witnesses. They have the right to be called as witnesses themselves and to make a statement at the end of the Trial.
Do the Prosecutors wish to ask any questions of this witness in re-examination?
COLONEL JOHN HARLAN AMEN (Associate Trial Counsel for the United States): Just one question, your Lordship.
THE PRESIDENT: Let the witness come back here.
THE MARSHAL (Colonel Charles W. Mays): He was taken away.
THE PRESIDENT: Taken away?
THE MARSHAL: That’s right. He was taken away by some captain who brought him here for the Trial. They have sent after him now.
THE PRESIDENT: Do you know how far he has been taken away?
THE MARSHAL: No, Sir, I do not. I will find out immediately.
THE PRESIDENT: Colonel Amen, are the questions that you wish to ask of sufficient importance for the Tribunal to wait for this witness or for him to be recalled on Monday?
COL. AMEN: I don’t believe so, Your Lordship.
THE PRESIDENT: Very well then. The Tribunal will adjourn, and it will be understood that in the future no witness will be removed whilst he is under examination, from the precincts of this Court except on the orders of the Tribunal.
COL. AMEN: I do not know how that happened Your Lordship, I understood he was still here.
[The Tribunal adjourned until 3 December 1945 at 1000 hours.]
ELEVENTH DAY
Monday, 3 December 1945
Morning Session
THE PRESIDENT: I call on the prosecutor for the United States.
SIDNEY S. ALDERMAN (Associate Trial Counsel for the United States): May it please the Tribunal, it occurs to me that perhaps the Tribunal might be interested in a very brief outline of what might be expected to occur within the next week or two weeks in this Trial.
I shall immediately proceed with the aggressive war case, to present the story of the rape of Czechoslovakia. I shall not perhaps be able to conclude that today.
Sir Hartley Shawcross, the British chief prosecutor, has asked that he be allowed to proceed tomorrow morning with his opening statement on Count Two and I shall be glad to yield for that purpose, with the understanding that we shall resume on Czechoslovakia after that.
Thereafter,