14 Dec. 45

apparently the real source of this discussion. According to our legal system it 'is the duty of the Prosecution to produce not only the incriminating evidence but also evidence for the defense of the accused. I can well understand that my colleague, Dr. Kauffmann, protests the Prosecution's failure to mention a very important point, namely, that the German authorities indicted this inhuman. SS leader and his wife and condemned them to death. It is highly probable that the Prosecution knew of this and that these horrible exhibits of perverted human nature, which were presented to us, were found in the files of the German Court.

I believe the whale discussion would not have arisen if the Prosecution had mentioned, as part of the ghastly evidence, the fact that the German authorities themselves passed judgment on this inhuman man and condemned him to death.

We find ourselves in difficulties because, in contrast to our own procedure, the Prosecution for the most part simply presents incriminating evidence but omits to present the exculpating evidence which may form part of any document or part of the testimony of a witness. If the German procedure had been followed in the present case and if the Prosecution had stated that this man was condemned to death, then in the first place, the evidence against the Defendant Kaltenbrunner would not have appeared so weighty and secondly, public opinion would, on the whole, have been left with a different impression. My colleague Kauffmann could then have limited himself to proving at a later stage of the Trial that Kaltenbrunner had, in fact, nothing at all to do with this affair; and the inhuman character of the proceedings and the dreadful impression which it made on us would have been avoided.

THE PRESIDENT: Will you explain the part of the German law to which you were referring, where you say it is the duty of the Prosecution not only to produce evidence for the Prosecution but also to produce evidence for the Defense.

DR. BERGOLD: That is a general principle of German jurisprudence, established in Paragraph 160 of the Reich Code of Penal Procedure. It is one of the basic principles of law in Germany to . . .

THE PRESIDENT: Give me that reference again.

DR. BERGOLD: Paragraph 160. German law incorporates this principle in order to enable an accused person to . . .

THE PRESIDENT: 160 of what?

DR. BERGOLD: Of the Reich Code of Penal Procedure. The same is true of Austria. In the Austrian Code of Penal Procedure there is a similar paragraph with which, however, I am not quite familiar. This principle is established to permit the whole truth of a case to be brought to light, since a defendant in custody is frequently