14 Dec. 45

not in a position to produce all the evidence in his favor. Therefore, under German law it is the Prosecution's duty to present the exculpating as well as the incriminating evidence in a particular case.

DR. KUBUSCHOK: The question arising out of Pfaffenberger's evidence does not specifically concern the Defendant Von Papen, because that part of the Indictment does not apply to his case. I am therefore speaking only of the principle behind it. I believe that in practice the effect of the different opinions expressed by the Prosecution and the Defense cannot be of very great importance. Justice Jackson agrees with us that every witness whose affidavit is presented can, if available, be called to the stand by the Defense. Thus, in all cases in which the Defense holds that an affidavit is evidence of secondary value and as such insufficient and that direct examination of the witness is necessary —in all such cases there would be duplication of evidence, namely, the reading of the affidavit and then the examination and cross-examination of the witness. This would undoubtedly delay the proceedings of the Trial; and to prevent that the Tribunal would, in all such cases, rule against the reading of the affidavit. Consequently, it is futile for the Prosecution to present affidavits of witnesses who can be expected to appear in person later in the proceedings.

I do not think that the Prosecution should be worried about this. It is a matter of course that we — and we assume the same is true of the Prosecution — that we, the members of the Defense, want the Trial to be as speedy as possible but also want it to proceed cautiously to establish the full truth. But, it is obvious, if evidence is introduced which is a potential cause of completely unjust findings, that such evidence will have to be clarified in a more complicated and time-consuming way when the witness is called in person.

THE PRESIDENT: The Tribunal will consider the objection that has been raised when the Court adjourns.

MR. JUSTICE JACKSON: May I have one word?

THE PRESIDENT: Mr. Justice Jackson, it is unusual to hear counsel who opposes an objection a second time.

MR. JUSTICE JACKSON: I merely want to give you the answer to the question which you asked me as to the whereabouts of Pfaffenberger. My information is that these affidavits were taken by the American Army at the time it liberated the people in these concentration camps, at the same time the films were taken and the whole evidence that was available gathered. This witness was present at the concentration camp, and at that time, his statements were taken. We do not know his present whereabouts, and I see