You don’t think that is inconsistent with that finding?

SIR DAVID MAXWELL-FYFE: No, I am submitting it is not. It is part of his defense, and it may well be, “I don’t remember anything about that at all.” And he could actually add to that, “From my general behavior or from other acts which I undoubtedly have done, it is extremely unlikely that I should do it.” That is the defense which is left to him. And he must take that defense. That is my submission.

THE TRIBUNAL (Mr. Biddle): So even if we assume, for the purpose of argument, that his amnesia is complete, and that he remembers nothing that occurred before the indictment though now understanding the proceedings, you think he should be tried?

SIR DAVID MAXWELL-FYFE: I submit he should be tried. That is my submission as to the legal position. I especially didn’t discuss, of course, as the Tribunal will appreciate—I didn’t discuss the quantum of amnesia here because I am putting that to the Tribunal. I wanted to put before the Tribunal the legal basis on which this application is opposed. Therefore I accept readily the extreme case which the learned American judge has put to me.

THE PRESIDENT: M. Donnedieu de Vabres would like to ask a question.

THE TRIBUNAL (M. De Vabres): I would like to know in what period the real amnesia of Hess applies. He pretends to have forgotten facts which occurred more than 15 days ago. It may be simulation or, as they say in the report, it may be real simulation. I would like to know if according to the reports Hess has really lost his memory of facts which are referred to in the Indictment, facts which pertain to the past covered by the Indictment.

SIR DAVID MAXWELL-FYFE: The facts which are included in the Indictment, the explanation that the doctors give as to his amnesia, is most clearly set out in these paragraphs of the Soviet report. That is the third report dated the 17th of November 1945, Page 2, and the numbered paragraphs 1 to 3. They say first:

Paragraph 2:

Paragraph 3:

The last sentence is a matter for the Tribunal. But in these circumstances it would be impossible to say that the amnesia may continue to be complete or is entirely unconscious. That is deliberately avoided by the learned doctors. Therefore the Prosecution do not say that that is the case, but they do say that even if it were complete, the legal basis which I have suggested to the Court is a correct one for action in this matter.

THE PRESIDENT: Thank you, Sir David. Would Dr. Rohrscheidt like to add anything by way of reply? One moment. Mr. Justice Jackson, I gathered from what Sir David said that he was speaking on behalf of you and of the French Prosecution, is that correct?

MR. JUSTICE JACKSON: I intend to adopt all that he said. I would only add a few more words, if I may.

THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has something to say first of all.

MR. JUSTICE JACKSON: I adopt all that has been said, and will not repeat. We have three applications before the Tribunal. One is for another examination. I will spend very little time on that. I think that we have made, up to this point with this examination, medical history in having seven psychiatrists from five nations who are completely in agreement. An achievement of that kind is not likely to be risked.

The only reason suggested here is that a relatively short time has been devoted to the examination, but I suggest to Your Honors that that is not the situation, because there have been available the examinations and observations and medical history during the incarceration of Hess in England, extending from 1941, and the reports of the psychiatrists of the American forces since he was brought to Nuremberg, and they all agree. So that there is a more complete medical history in this case than in most cases.

The next application was as to trial in absentia. I shall spend no time on that, for there seems to be no occasion for trying Hess in absentia if he shouldn’t be tried in his presence. If he is unable to be tried, why, he simply shouldn’t be tried at all. That is all I can see to it.

I would like to call your attention to the one thing in all this, the one statement on which any case can be made here for postponement. That is the statement with which we all agree: That Hess’ condition will interfere with his response to questions relating to his past and will interfere with his undertaking his defense. Now, I think it will interfere with his defense if he persists in it, and I am sure that counsel has a very difficult task. But Hess has refused the treatment, and I have filed with the court the report of Major Kelly, the American psychiatrist, in whose care he was placed immediately after he was brought here.

He has refused every simple treatment that has been suggested. He has refused to submit to the ordinary things that we submit to every day—blood tests, examinations—and says he will submit to nothing until after the trial. The medication which was suggested to bring him out of this hysterical situation—every psychiatrist agrees that this is simply an hysterical situation if it is genuine at all—was the use of intravenous drugs of the barbital series, either sodium amytal or sodium phenotal, the ordinary sort of sedative that you perhaps take on a sleepless night. We did not dare administer that, to be perfectly candid, against his objection, because we felt if that, however harmless—and in over a thousand cases observed by Major Kelly there have been no ill effects although some cases are reported where there have—we felt that if should he be struck by lightning a month afterward it would still be charged that something that we had done had caused his death; and we did not desire to impose any such treatment upon him.

But I respectfully suggest that a man cannot stand at the bar of the Court and assert that his amnesia is a defense to his being tried, and at the same time refuse the simple medical expedients which all agree might be useful.

He is in the volunteer class with his amnesia. When he was in England, as the reports show, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, and went back into it. It is now highly selective. That is to say, you can’t be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete blotting out of the personality, of the type that would be fatal to his defense.

So we feel that so long as Hess refuses the ordinary, simple expedients, even if his amnesia is genuine, that he is not in a position to continue to assert that he must not be brought to trial. We think he should be tried, not in absentia, but that this trial should proceed.

THE TRIBUNAL (Mr. Biddle): Isn’t Hess asserting that he wants to be tried?

MR. JUSTICE JACKSON: Well, I don’t know about that. He has been interrogated and interrogated by us, interrogated by his co-defendants, and I wouldn’t attempt to say what he would now say he wants. I haven’t observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I wouldn’t attempt to speak for him.

THE PRESIDENT: Does M. Dubost wish to add anything?

[M. Dubost indicated that he did not.]

DR. VON ROHRSCHEIDT: May I just say a few words to the Tribunal to explain my point of view once more?

Firstly, it is a fact that the Defendant Hess, according to the unanimous reports of the doctors, is not insane, that his mental faculties are not impaired.

Secondly, as all reports agree, the Defendant Hess is suffering from amnesia. The reports vary on whether this amnesia is founded on a pathological, a psychogenic, or hysterical basis, but they agree that it exists as an unsound mental condition. The defendant is therefore, not insane, but has a mental defect. Legally, therefore, he cannot claim that he is not to be held responsible for his actions; for at the time when the actions with which he is charged were committed, he was certainly not insane, and consequently can be held responsible. It is a different question, however, at least according to German law, whether the defendant is at this moment in a position to follow the proceedings of a trial, that is, whether he is fit to plead. And on the basis of the medical reports which I quoted, I think this question should be answered negatively. He is not fit to plead.

I admit that doubts are possible, that the Tribunal may have doubts whether the answers of the experts are sufficient to establish that the defendant’s ability to plead is actually impaired, that he cannot, as the Tribunal perhaps deliberately phrased it, defend himself adequately. I think that perhaps the emphasis should be on this last point. It is my opinion that the amnesia—this loss of memory confirmed by all experts—is such that the defendant is unable to make an adequate defense. It may be, of course, that he can defend himself on one point or another, that he can raise objections on some points, and that he may be able to follow the proceedings as such. But his defense could not be termed adequate in the sense in which the defense of a person in full possession of his mental faculties would be adequate.

May I add one word. I already mentioned that the defendant told me that he would like to attend the proceedings, as he does not consider himself unfit to plead, but that, in the opinion of the Defense, is quite irrelevant. It is a question which the Tribunal must examine, and in which the personal opinion of the defendant is of no account.

With regard to the conclusion which the American prosecutor draws from the defendant’s refusal to undergo the narco-synthesis treatment suggested by the doctors—that is not a question of truculence. He refused it only because, as he assured me, he was afraid that the intravenous injections at this particular moment might incapacitate him in his weakened condition and make it impossible for him to follow the proceedings; he wants, however, to attend the trial. He refused also because, as I have already mentioned, he himself thinks that he is sound and therefore says, “I do not need any intravenous injections, I shall recover in the course of time.” The defendant also told me that he has an abhorrence of such treatments. I know that to be true, because in the unhappy times of the National Socialist regime, he was always in favor of natural remedies. He even founded the Rudolf Hess Hospital in Dresden, which uses natural and not medical remedies.

MR. JUSTICE JACKSON: May I make one observation, Your Honors?

THE PRESIDENT: Yes.

MR. JUSTICE JACKSON: The argument illustrates the selectivity of the memory of which I spoke to you. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad. I hope that the Court has not overlooked the statement of the matters that he does well recollect.

DR. VON ROHRSCHEIDT: May I make a correction?

THE PRESIDENT: It is unusual to hear counsel in a second reply, but as Mr. Justice Jackson has spoken again we will hear what you have to say.

DR. VON ROHRSCHEIDT: I merely want to say that I was misunderstood. It was not the defendant who told me that he always favored natural remedies; I said that from my own knowledge. I said it from my own experience to show that he has an instinctive aversion for medical interference. My remark was not based on the memory of the defendant, but on knowledge of my own.

THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if you consider it proper, that the Defendant Hess should state what his views on this question are.

DR. VON ROHRSCHEIDT: As his defense counsel, I have certainly no objection, and in my opinion it is the defendant’s own wish to be heard. The Tribunal would then be able to gain a personal impression of his condition.

THE PRESIDENT: He can state whether he considers himself fit to plead from where he is.

HESS: Mr. President, I would like to say this. At the beginning of the proceedings this afternoon I gave my defense counsel a note saying that I thought the proceedings could be shortened if I would be allowed to speak. I wish to say the following:

In order to forestall the possibility of my being pronounced incapable of pleading, in spite of my willingness to take part in the proceedings and to hear the verdict alongside my comrades, I would like to make the following declaration before the Tribunal, although, originally, I intended to make it during a later stage of the trial:

Henceforth my memory will again respond to the outside world. The reasons for simulating loss of memory were of a tactical nature. Only my ability to concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to defend myself, to put questions to witnesses, or to answer questions myself is not affected thereby.

I emphasize that I bear full responsibility for everything that I did, signed or co-signed. My fundamental attitude that the Tribunal is not competent, is not affected by the statement I have just made. I also simulated loss of memory in consultations with my officially appointed defense counsel. He has, therefore, represented it in good faith.

THE PRESIDENT: The trial is adjourned.

[The Tribunal adjourned until 1 December 1945 at 1000 hours.]

TRANSCRIBER NOTES

Punctuation and spelling has been maintained except where obvious printer errors have occurred such as missing periods or commas for periods. English and American spellings occur throughout the document depending on the author. Multiple occurrences of the following spellings which differ and are found throughout this volume are as follows:

Although some sentences may appear to have incorrect spellings or verb tenses, the original text has been maintained as it represents what the tribunal read into the record and reflects the actual translations between the German, English, Russian and French documents presented in the trial(s).

An attempt has been made to produce this ebook in a format as close as possible to the original document's presentation and layout.

[The end of Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg 14 November 1945-1 October 1946 (Vol. 2), by Various.]