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Interlocutory Rulings
It is deemed appropriate to call
attention to some of the more significant rulings made by the Tribunal during
the progress of the trial.
(a) Article VII of Military
Government Ordinance No. 7 provides that, “The Tribunals * * * shall admit
any evidence which they deem to have probative value (such as)
affidavits,” and “shall afford the opposing party such opportunity to
question the authenticity or probative value of such evidence as in the opinion
of the Tribunal the ends of justice require.” Among the guaranties for a
fair trial accorded defendants by Article IV of said Ordinance is the right
“to cross-examine any witness called by the prosecution.” The
Tribunal ruled, therefore, that it would receive affidavits in evidence,
subject to the right of the opposing party to test the same by
cross-examination, if production of the witnesses was requested and they could
be produced for that purpose, and that in instances where the witnesses could
not be made available the opposing party might procure counter affidavits from
the affiants or submit interrogatories for them to answer, in lieu of
cross-examination. In instances where the witnesses could not be
cross-examined, counter affidavits procured, or answers to interrogatories
obtained, the Tribunal, on motion, struck the affidavits from the evidence.
Consistent with this ruling, the Tribunal also refused to admit, over
objection, the affidavits of deceased persons.
(b) During the
presentation of its case in chief, the prosecution offered a number of
statements made by defendants prior to the filing of the indictment. These
offers were objected to on the ground that such defendants would thereby be
compelled to give evidence against themselves, in contravention of fundamental
principles of enlightened criminal jurisprudence. The Tribunal ruled: (1) That,
if voluntarily given, such statements were competent as admissions against
interest; but (2) that if the defendants making such statements did not take
the witness stand and thereby subject themselves to cross-examination, such
statements would not be regarded as evidence against the other defendants, but
that the Tribunal would limit its consideration thereof to the defendants
making such statements. In one instance the Tribunal rejected the purported
statement of a defendant upon a showing that the same was given while said
defendant was under duress.
(c) In response to a motion filed by
counsel for the defendants, the Tribunal ruled that, as a matter of law, a
common plan or conspiracy does not exist as to war crimes and crimes against
humanity, as those offenses are defined in Control Council Law No. 10. At the
same time, the Tribunal held that the acts described in sections A and B, under
count two of the indictment, would not, as a matter of law, constitute crimes
against humanity, since they related wholly to alleged offenses against
property; nor would said acts constitute war crimes, since they
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