30 Nov. 45
If the Tribunal will proceed to the third report, signed by the
Soviet doctors, at the foot of Page 1 of the copy that I have there
is a paragraph beginning "Psychologically..." which I
submit is of importance:
"Psychologically, Hess is in a state
of clear consciousness; knows that he is in prison at Nuremberg,
under indictment as a war criminal; has read, and, according to his
own words, is acquainted with the charges against him. He answers
questions rapidly and to the point. His speech is coherent, his
thoughts formed with precision and correctness and they are
accompanied by sufficient emotionally expressive movements. Also,
there is no kind of evidence of paralogism.
"It should also be noted here, that the present
psychological examination, which was conducted by Lieutenant Gilbert,
Ph. D., bears out the testimony, that the intelligence of Hess is
normal and in some instances, above the average. His movements are
natural and not forced."
Now, if I may come to the next report, I am sorry--the report
which is signed by the three Soviet doctors and Professor Delay of
Paris, dated the 16th, which is the last in my bundle, that says in
Paragraph 3:
"At present, he is not insane in the
strict sense of the word. His amnesia does not prevent him completely
from understanding what is going on around him, but it will interfere
with his ability to conduct his defense and to understand details of
the past, which would appear as factual data."
I refer, without quoting, because I do not consider that they are
of such importance on this point, to the explanation of the kind and
reason of the amnesia which appeared in the Soviet report, dated 17
November, under the numbers 1, 2, and 3 at the end of the report. But
I remind the Tribunal that all these reports unite in saying that
there is no form of insanity.
In these circumstances, the question in English law--and I
respectfully submit that to the consideration of the Tribunal as
being representative of natural justice in this regard--is, in
deciding whether the defendant is fit to plead, whether the defendant
be insane or not, and the time which is relevant for the deciding of
that issue is at the date of the arraignment and not at any prior
time.
Different views have been expressed as to the party on whom the
onus of proof lies in that issue, but the later, and logically the
better view, is that the onus is on the Defense, because it is always
presumed that a person is sane until the contrary is proved