The determination of the Rules of Procedures for the conduct of trials under Control Council Law No. 10 (sec. II B) was a function of the zone commander establishing tribunals for such trials in his respective zone of occupation. This was expressly stated in Article III, section 2, of Control Council Law No. 10. In the United States zone of occupation the general procedures to be followed in these trials were set forth in Ordinance No. 7 of Military Government for Germany, United States Zone (sec. II C), the ordinance dealing with organization and powers of the Nuernberg Military Tribunals. This ordinance, in Article V (f), stated that "The tribunals shall have the power . * * * to adopt rules of procedure not inconsistent with this Ordinance." By a further provision, Article V (f) anticipated the importance of maintaining uniform rules of procedure after several tribunals were holding sessions, and of allowing appropriate revisions of the rules based upon trial experience: "Such rules shall be adopted, and from time to time as necessary, revised by the members of the tribunal or by the committee of presiding judges * * * ." Article VII, in dealing with the general nature of the rules of evidence and procedure, provided: "The tribunals shall not be bound by technical rules of evidence. They shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which they deem to have probative value * * *."
This section contains the Rules of Procedure adopted and revised from time to time by Military Tribunal I in the trial of the Medical case (U. S. vs. Karl Brandt, et al.). This was the first trial held under Control Council Law No. 10 by a military tribunal established pursuant to Ordinance No. 7. The initial "Rules of Procedure for Military Tribunal I," adopted on 2 November 1946 (subsec. B), became the keystone in the development of the rules of procedural law in the Nuernberg trials held subsequent to the trial before the IMT. Many of these first Rules of Procedure of Military Tribunal I announced supplementary Rules of Procedure adopted by the IMT on 29 October 1945, for the first Nuernberg trial (sec. I D).
Military Tribunal I announced supplementary Rules of Procedure on 9 December 1946 (subsec. C) and later this Tribunal made two principal amendments to its rules (subsecs. D and E). These various rules of procedure of Tribunal I in the Medical case, as thus adopted, supplemented, and revised, were then codified, re-numbered as Rules 1 to 25 inclusive, and reissued on 18 February 1947 as "Rules of Procedure for Military Tribunal I" (subsec. F).
By the time Military Tribunal I codified and renumbered its rules of procedure on 18 February 1947, two other military tribunals (Tribunals II and III) had been established; and on 17 February 1947, these three Tribunals had organized the Committee of Presiding Judges (sec. XIII). The next section of this volume, section IV, is devoted to the action of Military Tribunals II and III in adopting the same rules of procedure as Military Tribunal I, and to the later development of uniform rules of procedure after still other tribunals had been established to try further cases.
The following proceedings were had:
It was ordered that Military Tribunal I approve and adopt certain Rules of Procedure, not inconsistent with Ordinance No. 7 and that a certified copy of said Rules of Procedure be incorporated in the Order and Judgment Book of the Tribunal.
Whereupon Military Tribunal I recess until the further order of the Tribunal.
[Signed]WALTER B. BEALSThe present rules of procedure of the Military Tribunal constituted by General Order No. 68 of the Office of Military Government for Germany (US) (hereinafter called "Military Tribunal I" or "the Tribunal") are hereby promulgated by the Tribunal in accordance with the provisions of Article V (f) of Military Government Ordinance No. 7 issued pursuant to the powers conferred by Control Council Law No. 10
When any rule of procedure adopted by Military Tribunal I directs or requires that a defendant in any prosecution before the Tribunal shall be furnished with a copy of any pleading, document, rule, or other instrument in writing, such rule shall be understood to mean that such defendant shall receive a true and correct copy of such pleading, document, rule, or other instrument, written in the English language, and also a written translation thereof in a language which the defendant understands.
(a) The Marshal of Military Tribunals, or his duly authorized deputy, shall make service of the indictment upon a defendant in any prosecution before the Tribunal by delivering to and leaving with him (1) a true and correct copy of the indictment and of all documents lodged with the indictment, (2) a copy of Military Government Ordinance No. 7, (3) a copy of Control Council Law No. 10, and (4) a copy of these Rules of Procedure.
(b) When such service has been made as aforesaid, the Marshal shall make a written certificate of such fact, showing the day and place of service, and shall file the same with the Secretary General of Military Tribunal.
(c) The certificate, when filed with the Secretary General, shall constitute a part of the record of the cause.
A period of not less than 30 days shall intervene between the service of the indictment upon a defendant and the day of his trial pursuant to the indictment.
(a) If before the trial of any defendant the Chief of Counsel for War Crimes offers amendments or additions to the indictment, such amendments or additions, including any accompanying documents, shall be filed with the Secretary General of Military Tribunals and served upon such defendant in like manner as the original indictment.
(a) A defendant shall receive a copy of such Rules of Procedure or amendments thereto as may be adopted by the Tribunal from time to time.
(b) Upon written application by a defendant or his counsel lodged with the Secretary General for a copy of (1) the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945, or (2) the judgment of the International Military Tribunal of 30 September and 1 October 1945 (1946), the same shall be furnished to such defendant, without delay.
(a) A defendant shall have the right to conduct his own defense or to be represented by counsel of his own selection, provided such counsel is a person qualified under existing regulations to conduct cases before the courts of defendant's country, or is specially authorized by the Tribunal.
(b) Application for particular counsel shall be filed with the Secretary General promptly after service of the indictment upon the defendant.
(c) The Tribunal will designate counsel for any defendant who fails to apply for particular counsel, unless the defendant elects in writing to conduct his own defense.
(d) Where particular counsel is requested by a defendant but is not available or cannot be found within 10 days after application therefor has been filed with the Secretary General, the Tribunal will designate counsel for such defendant, unless the defendant elects in writing to conduct his own defense. If thereafter, before trial, such particular counsel is found and is available, or if in the meanwhile a defendant selects a substitute counsel who is found to be available, such particular counsel, or substitute, may associated with or substituted for counsel designated by the Tribunal; provided that (1) only one counsel shall be permitted to appear at the trial for any defendant, except by special permission of the Tribunal, and (2) no delay will be allowed for making such substitution or association.
In conformity with and pursuant to the provisions of Articles IV and VI of Military Government Ordinance No. 7, the Tribunal will provide for maintenance of order at the trial.
(a) Before testifying before the Tribunal each witness shall take such oath or affirmation or make such declaration as is customary and lawful in his own country.
(b) When not testifying, the witnesses shall be excluded from the courtroom. During the course of any trial, witnesses shall not confer among themselves before or after testifying.
Rule 10. Applications and Motions, Before Trial (2)
(a) All motions, applications, or other requests addressed to the Tribunal shall be made in writing and filed, together with a copy thereof, with the Secretary General of Military Tribunals, at the Palace of Justice, Nuernberg, Germany.
(b) When any motion, application, or other request has been filed, the Secretary General shall deliver a copy thereof to the adverse party and note the fact of delivery, specifying date and place, upon the original. The adverse party shall have 2 days after delivery within which to file with the Secretary General his objections to the granting of such motion, application, or other request. If no objection is filed within the time allowed, the presiding judge of the Tribunal will make the appropriate order on behalf of the Tribunal. If objections are filed the Tribunal will consider the objections and determine the questions raised.
(c) Delivery of a copy of any such motion, application, or other request to counsel of record for the adverse party, shall constitute delivery to such adverse party.
The Tribunal will rule upon all questions arising during the course of the trial. If such course is deemed expedient, the Tribunal will order the clearing or closing of the courtroom while considering such questions.
(a) A defendant may apply to the Tribunal for the production of witnesses, or of documents on his behalf, by filing his application therefor with the Secretary General of Military Tribunals. Such application shall state where the witness or document is thought to be located, together with a statement of the last known location thereof. (3) Such application shall also state the general nature of the evidence sought to be adduced thereby, and the reason such evidence is deemed relevant to the defendant's case.
(b) The Secretary General shall promptly submit any such application to the Tribunal, and the Tribunal will determine whether or not the application shall be granted.
(c) If the application is granted by the Tribunal, the Secretary General shall promptly issue a summons for the attendance of such witness or the production of such documents, and inform the Tribunal of the action taken. Such summons shall be served in such manner as may be provided by the appropriate occupation authorities to ensure its enforcement, and the Secretary General shall inform the Tribunal of the steps taken.
(d) If the witness or the document is not within the area controlled by the United States Office of Military Government for Germany, the Tribunal will request through proper channels that the Allied Control Council arrange for the production of any such witness or document as the Tribunal may deem necessary to the proper presentation of the defense.
(a) An accurate stenographic record of all oral proceedings shall be maintained. Exhibits shall be suitably identified and marked as the Tribunal may direct. All exhibits and transcripts of the proceedings, and such other material as the Tribunal may direct, shall be filed with the Secretary General and shall constitute a part of the record of the cause.
(b) Documentary evidence or exhibits may be received in the language of the document, but a translation thereof into a language understood by the adverse party shall be furnished to such part:
(c) Upon proper request, and approval by the Tribunal, copies of all exhibits and transcripts of proceedings, and such other matter as the Tribunal may direct to be filed with the Secretary General, and all official acts and documents of the Tribunal, may be certified by said Secretary General to any government, to and other tribunal, or to any agency or person as to whom it is appropriate that copies of such documents or representations as to such acts be supplied.
If it be made to appear to the Tribunal by written application that one of the government signatories to the Four Power Agreement of 8 August 1945, or any other government having received the consent of the said four Signators Powers, desires to withdraw from the records of any cause, and preserve, any original document of file with the Tribunal, and that no substantial injury will result thereby, the Tribunal may order any such original document to be delivered to the applicant, and a photostatic copy thereof, certified by the Secretary General, to be substituted in the record therefor.
These rules shall take effect upon their approval by the Tribunal. Nothing herein contained shall be construed to prevent the Tribunal at any time in the interest of fair and expeditious procedure, from departing from, amending, or adding to these rules, either by general rules or special orders for particular cases, in such form and on such notice as the Tribunal may prescribe.
Promulgated and adopted by Military Tribunal I, this 2d day of November, A.D. 1946, at the Palace of Justice, Nuernberg, Germany.
[Signed] WALTER B. BEALS, Presiding JudgePRESIDING JUDGE BEALS: I have a statement which I desire to make for the benefit of the prosecution, defendants, and all concerned: Before opening the trial of Case 1, the United States of America against Karl Brandt, et al., there are certain matters which the Tribunal desires to call to the attention of the counsel for the prosecution and the counsel for the defendants.
1. The prosecution may be allowed, for the purpose of making the opening statement in this case, time not to exceed one trial day. This time may be allocated by the chief prosecutor, between himself and any of his assistants, as he desires.
2. When the prosecution has rested its case, defense counsel will be allowed two trial days in which to make their opening statements, and which will comprehend the entire theory of their respective defenses. The time allocated will be divided between the different defense counsel, as they may themselves agree. In the event the defense counsel cannot agree, the Tribunal will allocating the time, not to exceed 30 minutes to each defendant.
3. The prosecution shall, not less than 24 hours, before it desires to offer any record or document or writing in evidence as part of its case in chief, file with the Defense Information Center not less than one copy of such record, document, or writing for each of the counsel for defendants, such copies to be in the German language The prosecution shall also deliver to the Defense Information Center at least four copies thereof in the English language.
4. When the prosecution or any defendant offers a record, document, or any other writing or a copy thereof in evidence, there shall be delivered to the Secretary General, in addition to the original document or other instrument in writing so offered for admission in evidence, six copies of the document. If the document is written or printed in a language other than English, there shall also be filed with the copies of the document above referred to, six copies of an English translation of the document. If such document is offered by any defendant, suitable facilities for procuring English translations of that document shall be made available.
5. At least 24 hours before a witness is called to the stand either by the prosecution or by any defendant, the party who desired to interrogate the witness shall deliver to the Secretary General an original and six copies of a memorandum which shall disclose: (a) the name of the witness; (b) his nationality; (c) his residence or station; (d) his official rank or position; (e) whether he is called as an expert witness or as a witness to testify to facts and, if the latter, a prepared statement of the subject matter on which the witness will be interrogated.
When the prosecution prepares such a statement in connection with the witness whom it desires to call, at the time of the filing of this statement, two additional copies thereof shall be delivered to the Defense Information Center. When a defendant prepares such a statement concerning a witness whom it desires to call, the defendant shall, at the same time the copies are filed with the Secretary General, deliver one additional copy to the prosecution.
6. When either the prosecution or a defendant desires the Tribunal to take judicial notice of any official government documents or reports of the United Nations, including any action, ruling, or regulation of any committee, board, or counsel, heretofore established by or in the Allied Nations for the investigation of war crimes or any record made by, or the findings of, any military or other tribunal, this Tribunal may refuse to take judicial notice of such documents, rules, or regulations unless the party proposing to ask this Tribunal to judicially notice such documents, rules, or regulations, places a copy thereof in writing before the Tribunal. (6)
This Tribunal has learned with satisfaction of the procedure adopted by the prosecution with the intention to furnish to the defense counsel information concerning the writings or documents which the prosecution expects to offer in evidence for the purpose of affording the defense counsel information to help them prepare their respective defense to the indictments. The desire of the Tribunal is that this be made available to the defendants so as to aid them in the presentation of their respective defense.
The United States of America having established this Military Tribunal I, pursuant to law, through properly empowered military authorities, and the defendants having been brought before Military Tribunal I, pursuant to indictments filed 25 October 1946 in the Office of the Secretary General of the Military Tribunal at Nuernberg, Germany, by an officer of the United States Army, regularly designated as Chief of Counsel for War Crimes, acting on behalf of the United States of America, pursuant to appropriate military authority, and the indictments having been served upon each defendant for more than 30 days prior to this date, and a copy of the indictments in the German language having been furnished to each defendant, and having been in his possession more than 30 days, and each defendant having had ample opportunity to read the indictments, and having regularly entered his plea of not guilty to the indictments, the Tribunal is ready to proceed with the trial.
This Tribunal will conduct the trial in accordance with controlling laws, rules, and regulations, and with due regard to appropriate precedence in a sincere endeavor to ensure both to the prosecution and to each and every defendant an opportunity to Present all evidence of an appropriate value bearing upon the issues before the Tribunal; to this end, that under law and pending regulations impartial justice may be accomplished.
The trial, of course, will be a public trial, not one behind closed doors; but because of limited facilities available the Tribunal must insist that the number of spectators be limited to the seating capacity of the courtroom. Passes will therefore be issued by the appropriate authorities to those who may enter the courtroom The Tribunal will insist that good order be at all times maintained, and appropriate measures will be taken to see that this rule is strictly enforced.
PRESIDING JUDGE BEALS: In the matter of the need for an established procedure for obtaining written statements from persons having knowledge of facts deemed by the defendants to be material and of probative value to their respective defenses having been called to the attention of the Tribunal, and the members of the Tribunal having met with representatives of the prosecution and with a committee of defense counsel, and thereafter the representatives of both the prosecution and counsel for the defendants having presented to the Tribunal a written and signed outline of a method mutually satisfactory to the prosecution and to the defendants' counsel, whereby written statements signed and witnessed may, if of probative value and otherwise in proper form, be offered in evidence before the Tribunal and received in evidence if in the judgment of the Tribunal they should be so received, notwithstanding the fact that such statements may be signed by the person making the same without having been sworn to before an officer or any person having by virtue of an office lawful authority to administer an oath in due form of law.
The Tribunal has considered the written stipulation signed by representatives of the prosecution's staff and by representatives of counsel for the defendants and desires the following order in connection with the subject matter thereof: First, it is ordered by Military Tribunal I that the rule heretofore promulgated and adopted by the Tribunal concerning the requirements to be observed by the defendants in the preparation of written statements by defense witnesses "in lieu of oath" be and the same is hereby rescinded. Second, it is further ordered by Military Tribunal I that the following rule concerning the subject matter above referred to shall be and the same is hereby adopted and "promulgated by the Tribunal for the information of all concerned."
a. Statements of witnesses made "in lieu of an oath" may be admitted in evidence if otherwise competent and admissible and containing statements having probative value if the following conditions are met : (8)
(1) The witness shall have signed the statement before defense counsel, or one of them, and defense counsel shall have certified thereto; or
(2) The witness shall have signed the statement before a notary, and the notary shall have certified thereto; or
(3) The witness shall have signed the statement before a Buergermeister and the Buergermeister shall have certified thereto, in case neither defense counsel nor a notary is readily available without great inconvenience; or
(4) The witness shall have signed the statement before a competent prison camp authority, and such authority shall have certified thereto in case the witness is incarcerated in a prison camp.
(5) The statement "in lieu of an oath" shall contain a preamble which shall state, "I, (name and address of the witness), after having first been warned that I will be liable for punishment for making a false statement in lieu of an oath, state and declare that my statement is true in lieu of an oath, and that my statement is made for submission as evidence before Military Tribunal I, Palace of Justice, Nuernberg, Germany, the following:"
(6) The signature of the witness shall be followed by a certificate stating: "The above signature of (stating the name and address of the witness) identified by (state the name of the identifying person or officer) is hereby certified and witnessed by me. (To be followed by the date and place of the execution of the statement and the signature and witness of the person or officer certifying the same.)
b. If special circumstances make compliance with any one of the above conditions impossible or unduly burdensome, then defense counsel may make application to the Tribunal for a special order providing for the taking of the statement of a desired witness concerning conditions to be complied with in that specific instance. (9)
Finally, it is further ordered by Military Tribunal I that the foregoing rule as adopted and announced by the Tribunal be incorporated in the minute book and in the journal of Military Tribunal I, and that copies thereof, together with correct translations thereof into the German language, properly certified by the Secretary General, be delivered to each of the defendants or their respective counsel. (10)
Adopted at a Meeting of Tribunal I 10 February 1947 (11)
In all cases where persons are detained in the Nuernberg jail and who have been approved by a Military Tribunal as a witness for the defense, it is hereby ordered that, after the date of such approval by a Military Tribunal, the following procedure shall be followed in the interviewing or interrogation of such witness or witnesses by either counsel for the prosecution or defense:
(1) Counsel desiring to interview such witness shall petition the Tribunal in writing, stating in general the scope and subject matter of such interview.
(2) The Tribunal shall thereupon appoint an impartial commissioner to represent the Tribunal at such interview, to the end that it shall be orderly, proper and judicial in character, and within the scope of the petition filed, and to the further end that there shall be no attempt to harass, intimidate, or improperly influence the witness in giving his answers.
(3) Whenever such a witness is being interviewed or interrogated in the presence of such commissioner by counsel for either side, counsel for the other side shall not be entitled to be present.
(4) If in the course of such interview it shall appear to such commissioner that the proper scope of such interview as set forth in the petition therefor is being exceeded by the counsel conducting such interview or that it is in any other manner being improperly conducted, said commissioner shall on behalf of the Tribunal stop said interview.
(5) In such event, said commissioner shall report in writing to the Tribunal the substantial and significant facts in relation to such interview and his reasons for having stopped the same.
(6) Counsel conducting such interview may, if he so desires, promptly bring before the Tribunal in writing, after giving notice to opposing counsel, his objections, if any, to the action of the commissioner, whereupon the presiding judge of such Tribunal shall either confirm the action of the commissioner or direct the interview of the witness to proceed, with such directions or limitations as he may order.
(7) In any appeal to the Tribunal from such act of a commissioner, counsel so appealing shall state the name of the witness, the name of the defendant whom he represents, and the title of the cause in which he is acting as counsel.
(8) The above procedure shall not be interpreted as in effect in cases (a) where the witness or prospective witness has been procured by the prosecution but has not been approved by the Tribunal as a witness for the defense, or (b) where the witness for the defense has been procured as such by the defense [and voluntarily appears without being confined in the Nuernberg jail]. (12)
[Stamp] Filed 10 February 1947The present rules of procedure of the Military Tribunal constituted by General Order No. 68 of the Office of Military Government for Germany (U.S.) (hereinafter called "Military Tribunal or "the Tribunal") are hereby promulgated by the Tribunal in accordance with the provisions of Article V (f) of Military Government Ordinance No. 7 issued pursuant to the powers conferred by Control Council Law No. 10.
When any rule of procedure adopted by Military Tribunal I directs or requires that a defendant in any prosecution before the Tribunal shall be furnished with a copy of any pleading, document, rule, or other instrument in writing, such rule shall be understood to mean that such defendant shall receive a true and correct copy of such pleading, document, rule, or other instrument, written in the English language, and also a written translation thereof in a language which the defendant understands.
(a) The Marshal of Military Tribunals, or his duly authorized deputy, shall make service of the indictment upon a defendant in any prosecution before the Tribunal by delivering to and leaving with him (1) a true and correct copy of the indictment and of all documents lodged with the indictment, (2) a copy of Military Government Ordinance No. 7, (3) a copy of Control Council Law No. 10, and (4) a copy of these Rules of Procedure.
(b) When such service has been made as aforesaid, the Marshal shall make a written certificate of such fact, showing the day and place of service, and shall file the same with the Secretary General of Military Tribunals.
(c) The certificate, when filed with the Secretary General, shall constitute a part of the record of the cause.
A period of not less than 30 days shall intervene between the service of the indictment upon a defendant and the day of his trial pursuant to the indictment.
If before the trial of any defendant the Chief of Counsel for War Crimes offers amendments or additions to the indictment, such amendments or additions, including any accompanying documents shall be filed with the Secretary General of Military Tribunals and served upon such defendant in like manner as the original indictment.
(a) A defendant shall receive a copy of such Rules of Procedure, or amendments thereto, as may be adopted by the Tribunal from time to time.
(b) Upon written application by a defendant or his counsel, lodged with the Secretary General, for a copy of (1) the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945, or (2) the judgment of the International Military Tribunal of 30 September and 1 October 1946, the same shall be furnished to such defendant, without delay.
(a) A defendant shall have the right to conduct his own defense, or to be represented by counsel of his own selection, provided such counsel is a person qualified under existing regulations to conduct cases before the courts of defendant's country, or is specially authorized by the Tribunal.
(b) Application for particular counsel shall be filed with the Secretary General promptly after service of the indictment upon the defendant.
(c) The Tribunal will designate counsel for any defendant who fails to apply for particular counsel unless the defendant elects in writing to conduct his own defense.
(d) Where particular counsel is requested by a defendant but is not available or cannot be found within 10 days after application therefor has been filed with the Secretary General, the Tribunal will designate counsel for such defendant unless the defendant elects in writing to conduct his own defense. If thereafter, before trial, such particular counsel is found and is available, or if in the meanwhile a defendant selects a substitute counsel who is found to be available, such particular counsel, or substitute, may be associated with or substituted for counsel designated by the Tribunal; provided that (1) only one counsel shall be permitted to appear at the trial for any defendant, except by special permission of the Tribunal, and (2) no delay will be allowed for making such substitution or association.
In conformity with and pursuant to the provisions of Articles IV and VI of Military Government Ordinance No. 7, the Tribunal will provide for maintenance of order at the trial.
(a) Before testifying before the Tribunal each witness shall take such oath or affirmation or make such declaration as is customary and lawful in his own country.
(b) When not testifying, the witnesses shall be excluded from the courtroom. During the course of any trial, witnesses shall not confer among themselves before or after testifying.
(a) All motions, applications, or other requests addressed to the Tribunal shall be made in writing and filed, together with a copy thereof, with the Secretary General of Military Tribunals, at the Palace of Justice, Nuernberg, Germany.
(b) When any motion, application, or other request has been filed, the Secretary General shall deliver a copy thereof to the adverse party and note the fact of delivery, specifying date and place, upon the original. The adverse party shall have 2 days after delivery within which to file with the Secretary General his objections to the granting of such motion, application, or other request. If no objection is filed within the time allowed, the presiding judge of the Tribunal will make the appropriate order on behalf of the Tribunal. If objections are filed the Tribunal will consider the objections and determine the questions raised.
(c) Delivery of a copy of any such motion, application, or other request to counsel of record for the adverse party, shall constitute delivery to such adverse party.
The Tribunal will rule upon all questions arising during the course of the trial. If such course is deemed expedient, the Tribunal will order the clearing or closing of the courtroom while considering such questions.
(a) A defendant may apply to the Tribunal for the production of witnesses, or of documents on his behalf, by filing his application therefor with the Secretary General of Military Tribunals. Such application shall also state the general nature of the evidence sought to be adduced thereby, and the reason such evidence is deemed relevant to the defendant's case.
(b) The Secretary General shall promptly submit any such application to the Tribunal, and the Tribunal will determine whether or not the application shall be granted.
(c) If the application is granted by the Tribunal, the Secretary General shall promptly issue a summons for the attendance of such witness or the production of such documents, and inform the Tribunal of the action taken. Such summons shall be served in such manner as may be provided by the appropriate occupation authorities to insure its enforcement, and the Secretary General shall inform the Tribunal of the steps taken.
(d) If the witness or the document is not within the area controlled by the United States Office of Military Government for Germany, the Tribunal will request through proper channels that the Allied Control Council arrange for the production of any such witness or document as the Tribunal may deem necessary to the proper presentation of the defense.
(a) An accurate stenographic record of all oral proceedings shall be maintained. Exhibits shall be suitably identified and marked as the Tribunal may direct. All exhibits and transcripts of the proceedings, and such other material as the Tribunal may direct, shall be filed with the Secretary General and shall con-stitute a part of the record of the cause.
(b) Documentary evidence or exhibits may be received in the language of the document, but a translation thereof into a language understood by the adverse party shall be furnished to such party.
(c) Upon proper request, and approval by the Tribunal, copies of all exhibits and transcripts of proceedings, and such other matter as the Tribunal may direct to be filed with the Secretary General, and all official acts and documents of the Tribunal, may be certified by said Secretary General to any government, to any other tribunal, or to any agency or person as to whom it is appropriate that copies of such documents or representations as to such acts be supplied.
If it be made to appear to the Tribunal by written application that one of the government signatories to the Four Power Agreement of 8 August 1945, or any other government having received the consent of the said four Signatory Powers, desires to withdraw from the records of any cause, and preserve, any original document on file with the Tribunal, and that no substantial injury will result thereby, the Tribunal may order any such original document to be delivered to the applicant, and a photostatic copy thereof, certified by the Secretary General, to be substituted in the record therefor.
The prosecution may be allowed, for the purpose of making the opening statement, time not to exceed one trial day. The chief prosecutor may allocate this time between himself and any of his assistants as he may wish.
When the prosecution rests its case, defense counsel will be allotted two trial days within which to make their opening statement, which will comprehend the entire theory of their respective defenses. The time allotted will be divided between defense counsel as they may themselves agree. In the event that defense counsel cannot agree, the Tribunal will allot the time not to exceed 30 minutes to each defendant.
The prosecution, not less than 24 hours before it desires to offer any record, document, or other writing in evidence as part of its case in chief, shall file with the Defendants' Information Center not less than one copy of each record, document, or writing for each of the counsel for defendants, such copy to be in the German language. The prosecution shall also deliver to defendants' Information Center at least four copies thereof in the English language.
When the prosecution or any defendant offers a record, document, or other writing or a copy thereof in evidence, there shall be delivered to the Secretary General, in addition to the original of the document or other instrument in writing so offered for admission in evidence, six copies of the document. If the document is written or printed in a language other than the English language, there shall also be filed with the copies of the document above referred to, six copies of an English translation of the document. If such document is offered by any defendant, suitable facilities for procuring English translations of that document shall be made available to the defendant.
At least 24 hours before a witness is called to the stand either by the prosecution or by any defendant, the party who desires the testimony of the witness shall deliver to the Secretary General an original and six copies of a memorandum which shall disclose (a) the name of the witness; (b) his nationality; (c) his residence or station; (d) his official rank or position; (e) whether he is called as an expert witness or as a witness to testify to the facts, and if the latter, a brief statement of the subject matter concerning which the witness will be interrogated.
When the prosecution prepares such a statement in connection with a witness whom it desires to call, at the time of the filing of the foregoing statement two additional copies thereof shall be delivered to the Defendants' Information Center. When a defendant prepares the foregoing statement concerning a witness whom he desires to call, the defendant shall, at the same time the copies are filed with the Secretary General, deliver one additional copy to the prosecution.
When either the prosecution or a defendant desires the Tribunal to take judicial notice of any official government document or report to the United Nations, including any act, ruling, or regulation of any committee, board, or council heretofore established by or in the Allied nations for the investigation of war crimes, or any record made by, or finding of, any military or other tribunal of any of the United Nations, this Tribunal may refuse to take judicial notice of such document, rule, or regulation unless the party proposing to ask this Tribunal to judicially notice such a document, rule, or regulation places a copy thereof in writing before the Tribunal.
Statements of witnesses made "in lieu of an oath" may be admitted in evidence if otherwise competent and admissible and containing statements having probative value if the following conditions are met:
(1) The witness shall have signed the statement before defense counsel, or one of them, and defense counsel shall have certified thereof; or
(2) The witness shall have signed the statement before a notary, and the notary shall have certified thereto; or
(3) The witness shall have signed the statement before a Buergermeister and the Buergermeister shall have certified thereto, in case neither defense counsel nor a notary is readily available without great inconvenience; or
(4) The witness shall have signed the statement before a competent prison camp authority, and such authority shall have certified thereto in case the witness is incarcerated in a prison camp.
(5) The statement "in lieu of an oath" shall contain a preamble which shall state, "I, (name and address of the witness), after having first been warned that I will be liable for punishment for making a false statement in lieu of an oath, state and declare that my statement is true in lieu of an oath, and that my statement is made for submission as evidence before Military Tribunal Palace of Justice, Nuernberg, Germany, the following:"
(6) The signature of the witness shall be followed by a certificate stating: "The above signature of (stating the name and address of the witness) identified by (state the name of the identifying person or officer) is hereby certified and witnessed by me." (To be followed by the date and place of the execution of the statement and the signature and witness of the person or office certifying the same.)
If special circumstances make compliance with any one of the above conditions impossible or unduly burdensome, then defense counsel may make application to the Tribunal for a special order providing for the taking of the statement of desired witness concerning conditions to be complied with in that specific instance.
In all cases where persons are detained in the Nuernberg jail and who have been approved by a Military Tribunal as a witness for the defense, it is hereby ordered that, after the date of such approval by a Military Tribunal, the following procedure shall be followed in the interviewing or interrogation of such witness or witnesses by either counsel for the prosecution or defense:
(1) Counsel desiring to interview such witness shall petition the Tribunal in writing, stating in general the scope and subject matter of such interview.
(2) The Tribunal shall thereupon appoint an impartial commissioner to represent the Tribunal at such interview, to the end that it shall be orderly, proper, and judicial in character and within the scope of the petition filed, and to the further end that there shall be no attempt to harass, intimidate, or improperly influence the witness in giving his answers.
(3) Whenever such a witness is being interviewed or interrogated in the presence of such commissioner by counsel for either side, counsel for the other side shall not be entitled to be present
(4) If, in the course of such interview, it shall appear to such commissioner that the proper scope of such interview as set forth in the petition therefor is being exceeded by the counsel conducting such interview or that it is in any other manner being improperly conducted, said commissioner shall, on behalf of the Tribunal stop said interview.
(5) In such event, said commissioner shall report in writing to the Tribunal the substantial and significant facts in relation to such interview and his reasons for having stopped the same.
(6) Counsel conducting such interview may, if he so desires, promptly bring before the Tribunal in writing, after giving notice to opposing counsel, his objections, if any, to the action of the commissioner, whereupon the presiding judge of such Tribunal shall either confirm the action of the commissioner or direct the interview of the witness to proceed, with such directions or limitations as he may order.
(7) In any appeal to the Tribunal from such act of a commissioner, counsel so appealing shall state the name of the witness, the name of the defendant whom he represents, and the title of the cause in which he is acting as counsel.
(8) The above procedure shall not be interpreted as in effect in cases (a) where the witness or prospective witness has been procured by the prosecution but has not been approved by the Tribunal as a witness for the defense, or (b) where the witness for the defense has been procured as such by the defense.
These Rules shall take effect upon their approval by the Tribunal. Nothing herein contained shall be construed to prevent the Tribunal at any time in the interest of fair and expeditious procedure from departing from, amending, or adding to these rules, either by general rules or special orders for particular cases, in such form and on such notice as the Tribunal may prescribe.
It is ordered that the foregoing rules be entered in the journal of this Tribunal and that mimeographed copies be prepared sufficient in number for the use of the Tribunal and counsel.
[Signed] WALTER B. BEALS(1) Official Record, Tribunal Records, volume 1, page 9. Return to the Text
(2) Concerning the amendment of Rule 10 by the Committee of Presiding Judges on 2 December 1947, see section IV E. Return to the Text
(3) The second sentence of this rule was omitted from Rule 12 as adopted by Military Tribunal I, III, and II on 18, 19, and 24 February 1947 respectively (secs. III F and IV B), but was included again in the Uniform Rules of Procedure as subsequently published by the Secretary General of the Tribunals (sec. V). Return to the Text
(4) Rule 15 was renumbered Rule 24 in the rules adopted by Military Tribunals I, III, and II on l8; l9, and 24 February 1947 respectively (secs. III F and IV B). Return to the Text
(5) Extract from mimeographed transcript, Case 1, U.S. vs. Karl Brandt, et al., pages 9 - 11. The rules herein numbered 1 through 6, were renumbered 16 through 20 in the rules adopted by Military Tribunals I, III, and II on 18, 19 and 24 February 1947 respectively (secs. III F and IV B). Return to the Text
(6) Here ended rule 6. These six rules were also adopted in written form by Tribunal I as "Rules of Trial Procedure Announced by the Tribunal in Open Session, 9 December 1946" and were then filed with the Secretary General on the same day. Return to the Text
(7) Extract from mimeographed transcript, Case 1, U.S. vs Karl Brandt, et al., pages 1333-1336. Return to the Text
(8) Part (a) of this rule was redesignated Rule 21 in the rules adopted by Military Tribunals I, III and II on 18,19 and 24 February 1947 respectively (secs. III F and IV B). Return to the Text
(9) Part (b) of this rule was redesignated Rule 22 in the rules adopted by Military Tribunals I, III and II on 18,19, and 24 February 1947 respectively (sec. III F and IV B). Return to the Text
(10) The provisions of this paragraph directing the delivery of copies of the rules to the defendants or their counsel were subsequently adopted in altered form as Rule 26 by Military Tribunals I, III, and II on 18, 19, and 24 February 1947 respectively (sec. III F and IV B). Return to the Text
(11) U.S. vs. Karl Brandt, et al., Case l, Official Record, volume 34, pages 964-966. Return to the Text
This rule was redesignated Rule 23 in the rules adopted by Military Tribunals I, III and II on 18, 19 and a4 February 1947 respectively (secs. III F and IV B). Rule 23 was amended as to content on 3 June 1947 by an Executive meeting of Military Tribunals I, II, III and IV (sec. IV D), and it was again amended by the Committee of Presiding Judges on 8 January 1948 (sec. IV F).
(12) The portion of this rule appearing in brackets was deleted by Military Tribunal I on 13 February 1947. Return to the Text
(13) Official Record, Tribunal Records, volume I, pages 86-94. These same rules of procedure were adopted by Military Tribunals II and III within the next few days. See sections IV A and IV B. Return to the Text
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Source: Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 Vol XV. Procedure, Practice and Administration Washington, DC : Government Printing Office, 1946-1949 |