28 Nov. 45
should like, if it might be done in that way, to offer in
evidence, not merely the English original of the affidavit, but also
a translation into German, which has been mimeographed. This
translation of the affidavit into German has been distributed to
counsel for the defendants.
DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): An
affidavit of a witness who is obtainable has just been turned over to
the Court. The content of the affidavit offers so many subjective
opinions of the witness, that it is imperative we hear the witness
personally in this matter.
I should like to take this occasion to ask that it be decided as
a matter of principle, whether that which a witness can testify from
his own knowledge may, without further ado, be presented in the form
of an affidavit; or whether if a witness is living and can be reached
the principle of oral proceedings should be applied, that is, the
witness should be heard directly.
MR. ALDERMAN: If the Tribunal please, I should like to be heard
briefly on the matter.
THE PRESIDENT: You have finished what you had to say, I
understand?
DR. KUBUSCHOK: Yes.
THE PRESIDENT: Very well, we will hear Mr. Alderman.
MR. ALDERMAN: May it please the Tribunal, I recognize of course,
the inherent weakness of an affidavit as evidence where the witness
is not present and subject to cross-examination. Mr. Messersmith is
an elderly gentleman. He is not in good health. It was entirely
impracticable to try to bring him here; otherwise, we should have
done so.
I remind the Court of Article 19 of the Charter:
"The Tribunal shall not be bound by
technical rules of evidence. It shall adopt and apply to the greatest
possible extent expeditious and non-technical procedure, and shall
admit any evidence, which it deems to have probative value."
Of course, the Court would not treat anything in an affidavit
such as this as having probative value unless the Court deemed it to
have probative value; and if the defendants have countering evidence,
which is strong enough to overcome whatever is probative in this
affidavit, of course the Court will treat the probative value of all
the evidence in accordance with this provision of the Charter.
By and large, this affidavit and another affidavit by Mr.
Messersmith which we shall undertake to present cover background
material which is a matter of historical knowledge, of which the
Court could take judicial notice. Where he does quote these