28 Nov. 45

amazingly frank expressions by Nazi leaders, it is entirely open to any of them, who may be quoted, to challenge what is said, or to tell Your Honors what they believe was said. In any event, it seems to me that the Court can accept an affidavit of this character, made by a well-known American diplomat, and give it whatever probative value the Court thinks it has.

As to the question of reading the entire affidavit, I understand the ruling of the Court to be that only those parts of documents, which are quoted in the record, will be considered to be in the record. It will be based upon the necessity of giving the German counsel knowledge of what was being used. As to these affidavits, we have furnished them complete German translations. It seems to us that a different rule might obtain where that has been done.

THE PRESIDENT: Mr. Alderman, have you finished what you had to say?

MR. ALDERMAN: Yes, sir.

DR. KUBUSCHOK: The representative of the Prosecution takes the point of view that the age and state of health of the witness makes it impossible to summon him as a witness. I do not know the witness personally. Consequently, I am not in a position to state to what extent he is actually incapacitated. Nevertheless, I have profound doubts regarding the presentation of evidence of such an old and incapacitated person. I am not speaking specifically now about Mr. Messersmith. I do not think the Court can judge to what extent old age and infirmity can possibly influence memory and reasoning powers; so, personal presence would seem absolutely indispensable.

Furthermore, it is important to know what questions, in toto, were put to the witness. An affidavit only reiterates the answers to questions which were put to the person. Very often conclusions can be drawn from unanswered questions. It is here a question of evidence solely on the basis of an affidavit. For that reason we are not in a position to assume, with absolute certainty, that the evidence of the witness is complete.

I cannot sanction the intention of the Prosecution in this case to introduce two methods of giving evidence of different value; namely, a fully valid one through direct evidence of a witness, and a less complete one through evidence laid down in an affidavit. The situation is this: Either the evidence is sufficient, or it is not. I think the Tribunal should confine itself to complete and fully valid evidence.

THE PRESIDENT: Mr. Alderman, did you wish to add anything?

MR. ALDERMAN: I wish to make this correction, perhaps of what I said. I did not mean to leave the implication that Mr. Messersmith is in any way incapacitated. He is an elderly man,