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recall in this connection the trials of collaborationists in France
and Belgium.
These difficulties which I have just described and which
were present or came up during the course of the trial, are, in my view, the
lesser evil when compared with the entire system employed in the preparation of
the charges.
Such a system makes an empty formality of the principle of
equality between prosecution and defense, a principle upon which all
Anglo-Saxon procedure rests. And not only is the situation of the defense
adversely affected by this character of the pretrial proceedings, but the
judges, too, are denied the possibility of finding justice. Since in this
proceeding the judges can evaluate as evidence for their judgment only the
material which is submitted by both parties, they lack all the necessary facts
and documents which the defense cannot produce and submit because of the
limitation of time and facilities.
I request that the Tribunal take
this situation into consideration in accepting and judging the evidence which
the defense will submit or has submitted under steady pressure. Of necessity
everything is done piecemeal, and we must rely upon the fact that the Tribunal
will not charge the shortcomings of the defense to the defendants who were
hindered in timely preparation, but rather to the system which itself is
responsible for such hindrance.
In submitting our evidence we shall
suffer from the same insecurity which plagues all Nuernberg proceedings. Until
now no one has been able to tell us what actually is the legal nature of these
tribunals staffed by judges who were appointed simultaneously or one after the
other by the President of the United States of America and the Military
Governor of the American Occupied Zone in Germany. I do not choose to touch
upon this question despite its importance, within the sphere of my opening
statement to any extent greater than the necessity required by such an opening.
There are two problems which are of direct practical importance to the
defense in this connection. The one concerns the regulations according to which
evidence is received or considered inadmissible. We have allowed ourselves
during the submission of evidence by the prosecution to be led by the idea that
this Tribunal is an American tribunal and is required to follow essentially the
rules of evidence which are prescribed in American law for military tribunals
of this nature. This cannot have escaped the notice of the Tribunal. Our
numerous objections against the evidence submitted are based on this concept.
In few cases did we have any success; in a great many cases, on the contrary,
the Tribunal withheld its decision. The prosecution |
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