Afternoon Session

GEN. RUDENKO: Have you finished your report concerning the conversation with Müller?

LAHOUSEN: No, I didn’t quite finish, I had many discussions with Müller on the subject—it was the central point of all these conversations. All the subjects about which I have given evidence were discussed first with Müller, who was the competent man, at least in his sector. As for Reinecke, he then merely decided according to his ideas, which were contrary to those held by me and my office. I would be grateful if you would tell me what particular points you would like to have me explain and I would gladly repeat anything.

GEN. RUDENKO: Your usual topic of discussion was murders, shootings, and so forth, especially shootings. I am interested in all that. What did Müller say about it? How were shootings to take place, especially in relation to your protests?

LAHOUSEN: He told me in a rather cynical way, that if the troops were so terribly disturbed by these shootings, as you claim, and their morale is suffering therefrom the shootings would simply take place at some distance, et cetera. That was the main meaning of what he said.

LAHOUSEN: Yes, that was the very poor result of the protest, and then still a certain concession. . . .

GEN. RUDENKO: And one last question. The conditions of the concentration camps where Soviet prisoners were taken and where mass destruction of prisoners was committed was all this dependent on directives of the German High Command?

LAHOUSEN: In some sort of cooperation with the competent authorities, the Reich Main Security Office. In addition to all I have stated, I must point out that at the time, I myself did not read the orders and that I learned of the collaboration, or the coordination in this question mainly from the conversation with Reinecke, who came to me as a representative of the OKW and with the aforementioned Müller.

GEN. RUDENKO: Excuse me, did you get that information in private or official sessions or conversations?

LAHOUSEN: It was a strictly official meeting called by General Reinecke as chairman. I was not there as “Lahousen,” but as a representative of the Amt Ausland Abwehr.

GEN. RUDENKO: Did the orders which were passed on in these sessions come to you directly from the German High Command?

LAHOUSEN: They came from the German High Command and from one of the highest offices of the RSHA according to what Reinecke said. I have never seen or read them with my own eyes, therefore this is all I can state.

GEN. RUDENKO: But you have heard during these meetings where they were discussed and when they were discussed.

LAHOUSEN: Yes, during the discussion, the course of which I have already described, or at least its essential aspects, of course.

GEN. RUDENKO: And during these sessions which you mentioned were the questions raised about murders and burning of cities?

LAHOUSEN: There was no talk at these discussions about setting on fire, but mention was made of the orders which had been issued with respect to the prisoners.

MR. DUBOST: One single question. Who gave the orders for the liquidation of the Commandos?

LAHOUSEN: What was it exactly that you meant? Presumably the killing of members of the Commando troops?

LAHOUSEN: I did not read the order myself, but according to what was said in our circles about this subject, the idea came from Hitler himself; but who was responsible for transforming this idea into an order, I do not know.

MR. DUBOST: The Defendants Keitel, Jodl—what orders did they handle; what orders did they give?

LAHOUSEN: Not merely was it my opinion, but it was common knowledge, that the reasons for these orders were to cause an intimidating effect and thus to prevent and paralyze the activity of the Commandos.

LAHOUSEN: The order to liquidate, that is, to be explicit, to murder Weygand and Giraud, was given to me by Canaris, who received it from Keitel. This order and this intention regarding the matter Weygand, were furthermore transmitted to me through direct speech with Keitel. Keitel asked me after Canaris had read to him a report in my presence, on December 23, 1940, according to my notes, about the progress in the case Weygand.

As regards the second case, that is the case Giraud, I had it from Canaris himself that the order was sent to him by Keitel—as did also the other chiefs who were present. I further heard of it a second time during a report from Canaris to Keitel, in my presence, in July 1942, when this order was communicated to me in a manner similar to that of the case Weygand, and, finally, I received it in a direct manner from Keitel through telephone conversation which I described here, and transmitted as urgent intelligence.

DR. NELTE: The witness, Lahousen, has given very important evidence, particularly charging in a grave manner the Defendant Keitel, represented by me. . . .

DR. NELTE: My client, the Defendant Keitel, would like to put numerous questions to the witness after he has had a discussion with me. I therefore ask the Tribunal to allow either that there may be a considerable adjournment now or that at the next session these questions may be discussed in cross-examination.

THE PRESIDENT: Very well. You shall have an opportunity to cross-examine at 10 o’clock tomorrow. Does any member of the Tribunal wish to ask any questions of the witness now?

THE TRIBUNAL (Mr. Biddle): I should like to ask the witness whether the orders to kill the Russians and in connection therewith the treatment of the prisoners were in writing.

LAHOUSEN: Yes, they were official orders, of course, though the facts were brought out in a roundabout way. It was these orders which Reinecke and the others discussed and this is how I learned about the essential points of these orders. I did not read them myself at that time. But I knew that they were not oral agreements because they were commented upon; consequently I knew that something existed in writing. Only I could not and cannot say whether there were one or more orders, and who signed them. This I did not claim to know. I submitted my knowledge which is based solely on discussions and reports from which I quite clearly could deduct the existence of orders.

THE TRIBUNAL (Mr. Biddle): Do you know to whom or to what organizations such orders were usually addressed?

LAHOUSEN: Orders of this kind, involving the question of principle, went to the OKW, because things relating to prisoners of war were and had to be the concern of the OKW, and in particular of Reinecke, which also explains the discussions with Reinecke.

THE TRIBUNAL (Mr. Biddle): So usually the members or some of the members of the General Staff would have known of such orders, would they not?

LAHOUSEN: Certainly, many members of the Wehrmacht knew of the essential contents of this order, for the reaction of the Wehrmacht against this order was tremendous. Apart from official discussions which I have reported here, these orders were discussed a great deal in casino clubs and elsewhere, because all these matters became manifest in the most undesirable form and had a most undesirable effect on the troops. As a matter of fact, officers, and high-ranking officers at the front, either did not transmit these orders or sought to evade them in some way and this was discussed a great deal. I have named some of these officers; some are listed in the notes, diary, et cetera. It was not an everyday occurrence, and it was then the topic of the day.

THE TRIBUNAL (Mr. Biddle): And were the orders known to the leaders of the SA and SD?

LAHOUSEN: They must have been known to them, for the ordinary soldiers who watched all these proceedings knew and spoke about them. To a certain extent they were even known to the civilian populace; civilians learned far more details about these matters from wounded soldiers returning from the front than I could tell here.

THE TRIBUNAL (Major General I. T. Nikitchenko): You have told us that you received instructions about the murder of prisoners of war and brutal treatment. You received these orders from Reinecke?

LAHOUSEN: Well, I must correct something that I said. It is not I and not the Amt Ausland Abwehr who got the order, because we had nothing to do with it, but I knew about it, as I was present at this conference as a representative of the Amt Ausland Abwehr. But we ourselves had nothing to do with the treatment of prisoners of war, and certainly not in this negative sense.

THE TRIBUNAL (Gen. Nikitchenko): Apart from these meetings, the meetings of the High Command, were such instructions ever given? Were there any meetings of the High Command headquarters about killings and ill-treatment of prisoners of war?

LAHOUSEN: There certainly must have been a number of discussions on this subject, but I was present at only one of them, which I have already described, so I cannot say anything more about it.

LAHOUSEN: Certainly in the OKW where Amt Ausland Abwehr had sent a delegate in my person, if for no other reason than to enter protest. As a matter of fact our Amt had nothing to do with prisoners of war in this sense. But contrarywise we were, because of technical and easily understandable reasons, interested in proper treatment of the prisoners.

THE TRIBUNAL (Gen. Nikitchenko): The meetings were not about good treatment of prisoners, but rather about ill-treatment and killing them? Was Ribbentrop also present at these meetings?

LAHOUSEN: No! On no account. This discussion—I mean the one conference about which I have given testimony—took place after the accomplished fact. Everything had already happened; executions had taken place, and now effects began to make themselves felt. Protests of all kinds, from the front and from other places, such as, for example, our own office, Amt Ausland Abwehr, followed. This conference was intended to show the necessity for the orders which had already been given, and to justify measures already taken. These discussions took place after the beginning of the operations, after the orders which had been given had already been carried out, and all that I have touched upon or stated had already happened and produced its evil effects. The accomplished fact had been thoroughly discussed with the idea of making one more attempt, a last attempt on our part, to put to an end, and break off, the matter.

THE TRIBUNAL (Gen. Nikitchenko): Did all these conversations bring about results?

LAHOUSEN: That is what I talked about, and that was the subject of the discussions with Reinecke in which I took part. I did not take part in the other discussions and therefore can say nothing about them.

THE TRIBUNAL (Gen. Nikitchenko): At which other meetings had orders been given about killings of Ukrainians and burning of towns and villages in Galicia?

LAHOUSEN: I would like to achieve clarity relative to what the General has in mind. Am I being asked about the conference in the Führer’s train in 1939 prior to the fall of Warsaw? According to the entries in Canaris’ diary, it took place on 12 September 1939. This order or directive which Ribbentrop issued and which Keitel transmitted to Canaris, Ribbentrop also giving it to Canaris during a brief discussion, was in reference to the organizations of National Ukrainians with which Amt Abwehr cooperated along military lines, and which were to bring about an uprising in Poland, an uprising which aimed to exterminate the Poles and the Jews; that is to say, above all, such elements as were always being discussed in these conferences. When Poles are mentioned, the intelligentsia especially are meant, and all those persons who embodied the national will of resistance. This was the order given to Canaris in the connection I have already described and as it has already been noted in the memorandum. The idea was not to kill Ukrainians but, on the contrary, to carry out this task of a purely political and terroristic nature together with the Ukrainians. The cooperation between Amt Ausland Abwehr and these people who numbered only about 500 or 1000, and what actually occurred can be clearly seen from the diary. This was simply a preparation for military sabotage.

THE TRIBUNAL (Gen. Nikitchenko): These instructions were received from Ribbentrop and Keitel?

LAHOUSEN: They came from Ribbentrop. Such orders which concerned political aims couldn’t possibly come from Amt Ausland Abwehr because any. . . .

THE TRIBUNAL (Gen. Nikitchenko): I am not asking you whether they could or could not. I am asking you where they came from.

LAHOUSEN: They came from Ribbentrop, as is seen from the memorandum. This is the memorandum that I made for Canaris.

THE PRESIDENT: It is now past 4, and we have to hear the requests of the Defendant Hess, and the Court has to be cleared for them. So I think you had better postpone them until tomorrow.

[A recess was taken and all defendants except Hess were removed from the courtroom.]

DR. GÜNTHER VON ROHRSCHEIDT (Counsel for Defendant Hess): May it please the Tribunal, I am speaking as counsel for the Defendant Rudolf Hess.

In the proceedings which have already been opened against Hess, the Court is to decide solely the question whether the defendant is fit or unfit to be heard, and further, whether he might even be considered entirely irresponsible.

The Court itself has posed this question affecting the proceedings against Hess by asking the experts to state their opinion, firstly, on whether the defendant is in a position to plead on the charge; secondly, on his state of mind, whether he is mentally sound or not.

With regard to question 1 (Is the defendant in a position to plead?) the Tribunal asked the experts specifically whether the defendant is sufficiently in possession of his mental faculties to understand the proceedings and to conduct his defense adequately—that is, to repudiate a witness to whom he has objections and to understand details of the evidence.

The experts to whom this task was entrusted have, in separate groups, examined Hess for a few days and have stated their expert opinion on these questions in writing. As the defendant’s counsel I consider it my duty, after studying the reports of these experts, which unfortunately, I could not do as carefully as I desired since time was short, and in view of my knowledge of the defendant and my experience in almost daily contact with him, to state my opinion that the defendant Hess is not in a position to plead in the case against him.

I am therefore obliged to file the following applications on behalf of the Defendant Hess:

Firstly, I request a ruling to suspend the proceedings against Hess temporarily. Secondly, if his inability to plead is recognized by the Tribunal, I request that the proceedings against the defendant be not conducted in his absence. Thirdly, if the Tribunal rules that Hess is fit to plead, I request that in addition other competent psychiatrists be consulted for an authoritative opinion.

Before I come to the reasons for my applications, I should like to say, at the request of the defendant, that he himself considers he is fit to plead and would himself like to inform the Court to that effect.

In regard to my first application: If the defendant is not fit to plead, I request that the proceedings against Hess be temporarily suspended.

In this connection may I refer to the opinions already submitted to the Tribunal.

After examining the questions placed before them by the Tribunal, the experts have come to the conclusion which is embodied in what I may call the main report signed by a mixed delegation consisting as far as I could determine of English, Soviet, and American experts, and dated 14 November 1945.

This report states, I quote: “The ability of the Defendant Hess is impaired”—that is—“the ability to defend himself, to face a witness, and to understand details of the evidence.” I have cited this part of the report because it is closest to the questions put to the experts by the Tribunal.

Another opinion says that “. . . even if Hess’ amnesia does not prevent the defendant from understanding what happens around him and to follow the proceedings in Court. . . .”

THE PRESIDENT [Interposing]: Would you speak a little more slowly? The interpreters are not able to interpret so fast.

Would you also refer us expressly to those parts of the medical reports to which you wish to draw our attention?

DR. VON ROHRSCHEIDT: Yes. I am sorry I cannot refer to the pages of the original or English text, as I only have the German translation; so I can only say that the first quotation. . . .

THE PRESIDENT [Interposing]: You can read the words in German, and they will be translated into English.

DR. VON ROHRSCHEIDT: I was referring to the report of 14 November as far as I can see from my German translation. This report seems to have been drawn up by a delegation of English, Soviet, and American experts, and accompanied the report of 17 November 1945. What I quoted was the following—may I repeat:

“The ability of the Defendant Hess to defend himself, to face a witness, and to understand details of the evidence is impaired.”

DR. VON ROHRSCHEIDT: It is the report which, in my copy, is dated 14 November 1945, and, as I said, was presumably signed by Soviet, American, and English doctors.

Unfortunately, when returning the material yesterday evening after translation into German I could not get the original text, and my attempt to obtain it now failed through lack of time.

THE PRESIDENT: Have the English prosecutors got a copy, and can you tell us which it is?

SIR DAVID MAXWELL-FYFE: I’m sorry, My Lord, I think I am in the same difficulties as your Lordship. On the order that I have, I have copies of four medical reports. Your Lordship will see at the end of the document headed “Order,” it says, “Copies of four medical reports are attached.”

The first one of these is signed by three English doctors on the 19th of November. The second is signed by three American doctors and a French doctor, dated the 20th of November 1945. And then there is a report signed by three Soviet doctors, dated the 17th of November. And one is signed by three Soviet doctors and the French doctor dated the 16th of November. These are the only ones which I have with the Court’s order.

SIR DAVID MAXWELL-FYFE: Dr. Von Rohrscheidt seems to have an unsigned report of the 14th.

THE PRESIDENT: Dr. Von Rohrscheidt, have you got the four reports which are really before us? I will read them out to you.

The first one I have got in my hand is the 19th of November 1945, by Lord Moran, Dr. Rees, and Dr. Riddoch. Have you got that? That is the English report.

DR. VON ROHRSCHEIDT: I only have this report in the German translation and not in the original.

THE PRESIDENT: But if you have got it in the German translation, that is quite good enough.

Then the next one is dated the 20th of November 1945, by Dr. Jean Delay, Dr. Nolan Lewis, Dr. Cameron, and Colonel Paul Schroeder. Have you got that?

Then, the next one is dated the 16th of November, and is signed by three Soviet doctors and one French doctor, Dr. Jean Delay, dated the 16th of November. Have you got that?

THE PRESIDENT: Then there is another report of the 17th, signed by the three Soviet doctors alone, without the French doctor.

THE PRESIDENT: Now, will you refer us to the passages in those reports upon which you rely?

There is another report by two English doctors which is practically the same. That is the one I have already referred to, that does not contain the name of Lord Moran on it, dated the 19th of November.

DR. VON ROHRSCHEIDT: Yes, I think I can shorten the proceedings by saying that in my opinion all the reports surely agree—even if not in the same words—that the ability of the accused Hess to defend himself, to face a witness, and to understand details of the evidence is impaired. And under this assumption that all the medical opinions agree on this point I, as the defendant’s counsel, must come to the conclusion that the defendant is unable to plead. The reduced capacity of the defendant to defend himself, which is caused by his mental defect, recognized by all experts as amnesia and described as a mental condition of a mixed character, but more than mere mental abnormality, must be accepted as meaning that he is unfit to plead.

I am of the opinion that the conclusion reached by the medical experts implies that, in the way the question was formulated, the Defendant Hess cannot adequately defend himself on account of this mental defect, namely, amnesia. The medical reports also state that the defendant is not insane. That is not the important point at the moment because in my view it can already be convincingly stated, on the basis of the reports as such that on account of his reduced mental ability the defendant is not in a condition to understand the entire proceedings.

I myself believe—and I think that my opinion on this agrees with the medical opinion—that the defendant is completely incapable of making himself understood in a manner expected from a mentally normal defendant.

In view of my own experience with him I consider that the defendant is incapable of grasping the charges which the Prosecution will bring against him to the extent required for his defense, since his memory is completely impaired. On account of his loss of memory he neither remembers events of the past nor the persons with whom he associated in the past. I am, therefore, of the opinion that defendant’s own claim that he is fit to plead is irrelevant. And since, as the medical report says, his condition cannot be rectified within appreciable time, I think that the proceedings against him should be suspended.

Whether the narco-synthesis treatment suggested by the medical experts will bring about the desired effect is uncertain. It is also uncertain within what period of time this treatment would result in the complete recovery of the defendant’s health. The medical reports accuse the defendant of deliberately refusing to undergo such medical treatment. The defendant himself, however, tells me that, on the contrary, he would readily undergo treatment but that he refuses the suggested cure because firstly, he believes that he is completely sound and fit to plead, that therefore this cure is unnecessary; secondly, because he disapproves on principle of such violent intervention, and finally because he thinks that such an intervention at this time might render him unfit to plead and to take part in the proceedings—and that is the very thing he wishes to avoid.

If, however, the defendant is incapable of pleading, or of defending himself, as is stated in the medical report, and if this condition is likely to last for a long time, then in my opinion, a basis exists for the temporary suspension of the proceedings against him.

If the Tribunal accepts my arguments and declares the Defendant Hess unfit to plead, then, according to Article 12 of the Charter, it would be possible to proceed against the defendant in absentia. Article 12 provides that the Tribunal has the right to proceed against a defendant in his absence if he cannot be found, or if for other reasons the Tribunal deems it necessary in the interests of justice. The question then is whether it is in the interest of justice to proceed against the defendant in absentia. In my opinion it is incompatible with real justice to proceed against the defendant if he is prevented by his impaired condition—namely, amnesia which is recognized by all the medical experts—from personally safeguarding his rights by attending the proceedings.

In a trial in which charges being brought against the defendant are so grave that they might entail the death penalty, it seems to me incompatible with real justice that the defendant should on account of his impaired condition, be deprived of the rights granted him under Article 16 of the Charter. This Article of the Charter makes provisions for the defendant’s own defense, for the opportunity of giving evidence personally, and for the possibility of cross-examining every witness called by the Prosecution. All this is of such great importance for the Defense, that exclusion from any of these rights would, in my opinion, constitute a grave injustice to the defendant. A trial in absentia could therefore not be regarded as a fair trial.

If as I have stated the defendant’s capacity to defend himself is reduced for the reasons agreed on and to the extent established in the reports of the experts, then he is also not in a position to give his counsel the information necessary for a defense conducted in the defendant’s absence.

Since the Charter has clearly laid down these rights of the defendant’s, it seems unjust to me as defense counsel, that the defendant should be deprived of them because his illness prevents him from personally safeguarding them by attending the proceedings.

The provisions in Article 12 of the Charter for trying a defendant in his absence must surely be looked upon as applying in an exceptional case of a defendant who endeavors to evade the proceedings although able to plead. But the Defendant Hess has told me, and he will probably emphasize it to the Tribunal, that he wishes to attend the proceedings; that he will therefore consider it particularly unjust if the proceedings are conducted in his absence, despite his good will, despite the fact that he wishes to attend them.

I therefore request the Tribunal, if it declares the defendant unfit to plead, that it will not proceed against him in his absence.

If the Tribunal considers the Defendant Hess fit to plead, thereby overruling my opinion and what I think is also the conclusion of the medical reports, I request that additional medical experts be consulted to re-examine this question since as far as I saw from the reports, each of the doctors examined and talked to the defendant for only a few hours on one day, one of them on two days. In a case of such outstanding importance as this one I think it would be necessary to place the defendant into a suitable hospital to obtain a reliable picture based on several weeks of examination and observation. The experts themselves are, obviously, not quite sure whether Defendant Hess beyond his inability to plead, is insane or at least not of sound mind. That is clear from the fact that all the medical statements end by emphasizing that if the Tribunal does not consider the defendant unfit to plead, he should again be subjected to a psychiatric examination.

I think therefore that this suggestion of the psychiatrists who have already examined him should be followed, and I request, that if the Tribunal considers the defendant fit to plead another exhaustive medical examination be authorized.

THE PRESIDENT: I want to ask you one question: Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only defect from which he is suffering is forgetfulness about what happened before he flew to England?

DR. VON ROHRSCHEIDT: Mr. President, it is true that the experts consider the Defendant Hess capable of following the proceedings. But, on the other hand, in answer to the questions put to them, they emphasize that the defendant is not capable of defending himself. The Tribunal asked the experts to give their opinion on the question—may I read it again, under the second point: “Is the defendant sane or not?” The question was answered in the affirmative by all experts, but that does not exclude the fact that the defendant might, at this moment, be incapable of pleading. The Tribunal’s question was this: “. . . the Tribunal wishes to be advised whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the Trial so as to make a proper defense, to challenge a witness, to whom he might wish to object, and to understand the details of the evidence.” This is the wording of the translation in my possession. In my view this question is answered by the experts to the effect that the defendant is incapable of adequately defending himself, of rejecting the testimony of a witness and of comprehending evidence submitted. That, as I see it, is the conclusion of all the experts’ reports with the exception of the one signed by the Russians.

May I refer to the report signed by the American Delegation, dated 20 November 1945, it is stated there under Number 1:

“We find as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized in part by loss of memory.”

Now comes the passage to which I should like to draw the Tribunal’s attention:

“The loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defense.”

This report thus establishes that Hess’ defense will be impaired. And I believe that if the experts go so far as to admit that his memory is affected, then one may assume that to a great degree he is not fit to plead. The report of the Soviet-French representatives, signed by the Russian professors and by Professor Jean Delay goes even further in stating that, although the defendant is able to comprehend all that happens around him, the amnesia affects his capacity to defend himself and to understand details of the past and that it must be considered an impediment. As I see it, the report clearly means that, although the defendant is not insane, and although he can follow the proceedings as such, he cannot defend himself as he is suffering from a form of amnesia which is based on hysteria and which can be believed.

THE TRIBUNAL (Gen. Nikitchenko): I should like to draw the attention of Defense Counsel to the fact that he has referred inaccurately to the decision reached by the Soviet and French experts. He has rendered this decision in a free translation which does not correspond to the original contents.

DR. VON ROHRSCHEIDT: May I ask whether the report of November 16 is meant? May I once more read what my translation says? I can only refer to the translation of the English text that was given to me; this translation was made in the Translation Division of the Secretariat and handed to me.

May I repeat that the translation in my possession refers to the report of November 16, 1945 signed by members of the Soviet Delegation and by Professor Delay of Paris.

“At present he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him but it will interfere with his ability to conduct his defense and to understand details of the past which would appear as factual data.”

THE PRESIDENT: That is all we wish to ask you. Does the Chief Prosecutor for the United States wish to address the Tribunal?

MR. JUSTICE JACKSON: I think General Rudenko would like to open discussion, if that is agreeable.

GEN. RUDENKO: In connection with the statement made by counsel for the defendant, on the results of the evidence of Hess’ certified psychological condition, I consider it essential to make the following declaration:

The defendant’s psychological condition was confirmed by experts appointed by the Tribunal. These experts came to the unanimous conclusion that he is sane and responsible for his actions. The Chief Prosecutors, after discussing the results of the decision and acting in accordance with the order of the Tribunal, make the following reply to the inquiry of the Tribunal:

First of all, we do not question or doubt the findings of the commission. We consider that the Defendant, Rudolf Hess, is perfectly able to stand his trial. This is the unanimous opinion of the Chief Prosecutors. I consider that the findings of the examinations by the experts are quite sufficient to declare Hess sane and able to stand his trial. We therefore request the Tribunal to make the requisite decision this very day.

In stating his reasons for the postponement of the proceedings or for the settlement of the defendant’s case, defense counsel referred to the decision of the experts. I must state, however, that this decision—and I do not know on what principle it was reached—was quoted quite inaccurately. In the summary submitted by defense counsel, it is pointed out that the mental condition of the Defendant Hess does not permit him to defend himself, to reply to the witnesses or to understand all the details of the evidence. This is contrary to the decision submitted by the experts in their statement. The final conclusion of the experts definitely states that his loss of memory would not entirely prevent him from understanding the trial; it would, however, make it impossible for him to defend himself and to remember particulars of the past. I consider that these particulars, which Hess is unable to remember, would not unduly interest the Tribunal. The most important point is that emphasized by the experts in their decision, a point which they themselves never doubted and which, incidentally, was never doubted by Hess’ defense counsel, namely—that Hess is sane; and in that case Hess comes under the jurisdiction of the International Tribunal. On the basis of these facts I consider that the application of the Defense should be denied as being unsubstantiated.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, it has been suggested that I might say just a word, and as shortly as the Tribunal desires, as to the legal conceptions which govern the position with which the Tribunal and this defendant are placed at the present time.

The question before the Tribunal is whether this defendant is able to plead to the Indictment and should be tried at the present time.

If I might very briefly refer the Tribunal to the short passages in the report, which I submit are relevant, it might be useful at the present time. According to the attachments to the order, which I have, the first report is that signed by the British doctors on the 19th November 1945. And in that report I beg the Tribunal to refer to Paragraph 3, in which the signatories say that at the moment he is not insane in the strict sense. His loss of memory will not entirely interfere with his comprehension of the proceedings, but it will interfere with his ability to make his defense and to understand details of the past, which arise in evidence.

The next report is that signed by the American and French doctors, and in Paragraph 1, the Tribunal will see:

“We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized in part by loss of memory. The nature of this loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defense.”

If the Tribunal will proceed to the third report, signed by the Soviet doctors, at the foot of Page 1 of the copy that I have there is a paragraph beginning “Psychologically . . .” which I submit is of importance:

“Psychologically, Hess is in a state of clear consciousness; knows that he is in prison at Nuremberg, under indictment as a war criminal; has read, and, according to his own words, is acquainted with the charges against him. He answers questions rapidly and to the point. His speech is coherent, his thoughts formed with precision and correctness and they are accompanied by sufficient emotionally expressive movements. Also, there is no kind of evidence of paralogism.

“It should also be noted here, that the present psychological examination, which was conducted by Lieutenant Gilbert, Ph. D., bears out the testimony, that the intelligence of Hess is normal and in some instances, above the average. His movements are natural and not forced.”

Now, if I may come to the next report, I am sorry—the report which is signed by the three Soviet doctors and Professor Delay of Paris, dated the 16th, which is the last in my bundle, that says in Paragraph 3:

“At present, he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defense and to understand details of the past, which would appear as factual data.”

I refer, without quoting, because I do not consider that they are of such importance on this point, to the explanation of the kind and reason of the amnesia which appeared in the Soviet report, dated 17 November, under the numbers 1, 2, and 3 at the end of the report. But I remind the Tribunal that all these reports unite in saying that there is no form of insanity.

In these circumstances, the question in English law—and I respectfully submit that to the consideration of the Tribunal as being representative of natural justice in this regard—is, in deciding whether the defendant is fit to plead, whether the defendant be insane or not, and the time which is relevant for the deciding of that issue is at the date of the arraignment and not at any prior time.

Different views have been expressed as to the party on whom the onus of proof lies in that issue, but the later, and logically the better view, is that the onus is on the Defense, because it is always presumed that a person is sane until the contrary is proved.

Now, if I might refer the Court to one case which I suspect, if I may so use my mind, has not been absent from the Court’s mind, because of the wording of the notice which we are discussing today, it is the case of Pritchard in 7 Carrington and Pike, which is referred to in Archibolds’ Criminal Pleading in the 1943 edition, at Page 147.

In Pritchard’s case, where a prisoner arraigned on an indictment for felony appeared to be deaf, dumb, and also of non-sane mind, Baron Alderson put three distinct issues to the jury, directing the jury to be sworn separately on each: Whether the prisoner was mute of malice, or by the visitation of God; (2) whether he was able to plead; (3) whether he was sane or not. And on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense, to challenge a juror, that is, a member of the jury, to whom he might wish to object and to understand the details of the evidence; and he directed the jury that if there was no certain mode of communicating to the prisoner the details of the evidence so that he could clearly understand them, and be able properly to make his defense to the charge against him, the jury ought to find that he was not of sane mind.

I submit to the Tribunal that the words there quoted, “to comprehend the course of the proceedings of the trial so as to make a proper defense,” emphasize that the material time, the only time which should be considered, is whether at the moment of plea and of trial the defendant understands what is charged against him and the evidence by which it is supported.

SIR DAVID MAXWELL-FYFE: That is, I respectfully agree with Your Lordship, it does not relate to his memory. It has never, in English jurisprudence, to my knowledge, been held to be a bar either to trial or punishment, that a person who comprehends the charge and the evidence has not got a memory as to what happened at the time. That, of course, is entirely a different question which does not arise either on these reports or on this application as to what was the defendant’s state of mind when the acts were committed. No one here suggests that the defendant’s state of mind when the action charged was committed was abnormal, and it does not come into this case.

THE PRESIDENT: He will, it seems to me, be able to put forward his amnesia as part of his defense.

THE PRESIDENT: And to say, “I should have been able to make a better defense if I had been able to remember what took place at the time.”

SIR DAVID MAXWELL-FYFE: Yes, My Lord. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, “Because of the accident my memory is not good or fails as to the acts charged.” That should not, and no one has ever suggested that it could, be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.

THE TRIBUNAL (Mr. Biddle): Sir David, so I can understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defense, is it not?

SIR DAVID MAXWELL-FYFE: With the greatest respect, you have got to read that with the preceding words, which limit it. They say, “Whether a prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense.”

THE TRIBUNAL: (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defense under the procedure of the trial if you also find as a fact, which you, I think, do not dispute, and which you quoted in fact, that although not insane—now I quote that he did not understand, or rather: