Hearsay Evidence

[Charles Bunch]

Smith made the following comment in a closed thread:

Charles Bunch wrote:
The evidence discussed was not hearsay and includes the testimony of Mazur, Neely and Witton. What is amazing is how Smith will come back to his lies after what he considers a respectable period of time, much like a dog to his vomit.

It certainly was. We have seen the Mazur affidavit, which was presented at Nuremberg by the Soviets, along with their jars of "Human Soap." The Neely and Witton "corroboration" for Mazur does not exist, nor does the soap.

Smith continues to tell untruths.

Mazur's deposition is not hearsay evidence.

John Henry Witton's affidavit is not hearsay.

William Anderson Neely's affidavit is not hearsay.

This is not only true in the generally understood definition of the term (first hand versus second hand knowledge), but in terms of US rules of evidence.

Smith, borrowing from the distortions of Carlos Porter and others, rests his contention on the fact that affidavits were introduced into evidence at Nuremberg and the declarants were not present to offer testimony.

But Smith et al ignore the fact that there are numerous exceptions to the Hearsay rule, and that such evidence is introduced into US courts every day.

Rule 804 of the Federal Rules of Evidence Apply.

http://www2.law.cornell.edu/cgi-bin/fol ... fre/query=[jump!3A!27rule801!27]/doc/{@257}?

Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.

"Unavailability as a witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) [Transferred to Rule 807 ]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

------------------

There is nothing about the testimonies of Mazur, Witton, or Neely which would exclude its admission in any US court under 804 5 b1

[Scott Smith]

The Human Soap affidavits are certainly not "Hearsay" if the "Defense" never objected, and they didn't because nobody was charged with a crime; it merely had "probative value" as Greuelpropaganda under the terms of the London Agreement. And for the real historian the problem with this evidence is obvious.

-We've looked at the text for Mazur, USSR-397, and we have no corroboration whatever for his claims.

-We have photos of USSR-393, the alleged "Human Soap" samples in the jar, but no laboratory testing or documentation of the source, and nobody can locate the exhibit today. It must be kept in a government warehouse somewhere with the holiest-of-holies as in a Spielberg film.

-We don't have the text for the Neely and Witton hearsay, apparently used to support Mazur.

-We still have journalists referring to the "Nazi Human Soap evidence" at Nuremberg, even today.

-Critical methods for the scrutiny of lurid Holo-claims are wanting. Clearly some WANT or NEED to Believe.

[Dan]

The Human Soap affidavits are certainly not "Hearsay" if the "Defense" never objected

This could also be applied to "Katyn Libel". Those lying affidavits were simply accepted, even though every literate judge new the Soviets were breaking the ninth commandment.

[Roberto]

The Human Soap affidavits are certainly not "Hearsay" if the "Defense" never objected

Why the quote marks? Can Smith demonstrate that the defense failed to do its job properly?

, and they didn't because nobody was charged with a crime; it merely had "probative value" as Greuelpropaganda under the terms of the London Agreement.

Why, and I thought they were part of the evidence to War Crimes / Crimes Against Humanity that the defendants were charged with.

And for the real historian the problem with this evidence is obvious.

Then how come no real historian sees such a problem and only "Revisionist" propagandists do?

-We've looked at the text for Mazur, USSR-397, and we have no corroboration whatever for his claims.

Why, weren't there also the affidavits of Neely and Witton?

-We have photos of USSR-393, the alleged "Human Soap" samples in the jar, but no laboratory testing or documentation of the source, and nobody can locate the exhibit today. It must be kept in a government warehouse somewhere with the holiest-of-holies as in a Spielberg film.

Laboratory testing or not, the photograph is corroboration of Mazur's testimonial.

-We don't have the text for the Neely and Witton hearsay, apparently used to support Mazur.

Who is "we", Mr. Smith?

Who has assessed the evidence obviously had both affidavits at his/her disposal, as they are cited e.g. in the assessment of this “Revisionist” paper dragon under

http://www.us-israel.org/jsource/Holocaust/soap01.html

How about kindly asking Drobnicki and Hendy to give you a copy of what they have, Mr. Smith?

--We still have journalists referring to the "Nazi Human Soap evidence" at Nuremberg, even today.

Who are those journalists supposed to be?

What exactly do they write? Do they refer to the experiments at the Danzig Anatomical Institute, or to the unconfirmed rumors about large-scale human soap manufacture that “Revisionists” like to conflate with the evidence to said experiments ?

Last but not least, what relevance are the statements of journalists supposed to have ?

-Critical methods for the scrutiny of lurid Holo-claims are wanting.

I see no dearth of critical methods such as applied by criminal justice and historiography in regard to any other events.

If what Smith means by “critical methods” is dismissal of all evidence that doesn’t fit into a certain ideological bubble, however, then critical methods have not been applied indeed.

Clearly some WANT or NEED to Believe.

Exactly, Mr. Smith.

Folks like yourself WANT or NEED to Believe that “Holo-claims” are a “hoax”, hence they make a big bloody fuss about an irrelevant minor issue – experimental attempts to manufacture soap from human fat on a minor scale – as if they could thereby discredit the evidence to other “Holo-claims”, namely the conclusive eyewitness, documentary and physical evidence to the mass murder of millions of people.

Sorry creatures those “Revisionists” are indeed.

[Charles Bunch]

The Human Soap affidavits are certainly not "Hearsay" if the "Defense" never objected, and they didn't because nobody was charged with a crime; it merely had "probative value" as Greuelpropaganda under the terms of the London Agreement. And for the real historian the problem with this evidence is obvious.

Smith backs away from his claim that the testimonial evidence of Mazur, Witton and Neely should not have been admitted by the court because it was hearsay.

Smith's unsupported speculation about why no objection was made to three seperate pieces of testimonial evidence is worthless. He doesn't know.

Smith hasn't shown any problem with this evidence for real historians. The problem with it for deniers and Nazi apologists is they don't want bad things said about the Nazis.

-We've looked at the text for Mazur, USSR-397, and we have no corroboration whatever for his claims.

-

Neely and Witton represent corroborating evidence. Note the sheer dishonesty in making such a statement!

We have photos of USSR-393, the alleged "Human Soap" samples in the jar, but no laboratory testing or documentation of the source, and nobody can locate the exhibit today. It must be kept in a government warehouse somewhere with the holiest-of-holies as in a Spielberg film.

The evidence introduced were the soap samples, not the photograph. Any historian investigating this issue would have to weigh its value as submitted. Whether anyone can locate the sample today is unknown, despite Smith's assertion, one made about lots of evidence by deniers.

-We don't have the text for the Neely and Witton hearsay, apparently used to support Mazur.

Notice the language!! "Apparently used to support Mazur"! Of course it supports Mazur and they testified to what they saw. Since Smith doesn't know whether or not the full text of the affidavits is contained in the recorded evidence of the trials, he is merely spouting more mindless objections to inconvenient evidence. Historians would look for the statements. Deniers use tortured language to suggest it doesn't exist or can't be found.

-

We still have journalists referring to the "Nazi Human Soap evidence" at Nuremberg, even today.

And there is no reason they shouldn't.

-Critical methods for the scrutiny of lurid Holo-claims are wanting. Clearly some WANT or NEED to Believe.

Or Smith needs to deny evidence with false claims of hearsay inadmissability, lack of corroboration, and unobtainable evidence.

There is nothing "wanting" in the methods of scrutiny historians apply to Holocaust history. Smith knows that's the case, which is why he continually tries to confuse courts with historians, even to the extent of erroneous statements about the court procedings.

A laboratory assistant gave detailed testimony about the making of human soap.

Two British POWs corroborated the activities.

A document detailing the soap recipe testified to by Mazur was introduced into evidence.

Smith has offered no good reason why historians shouldn't find this evidence credible. He tried the hearsay gambit, but the evidence is clearly admissable under the Federal Rules of Evidence. Now he complains that we don't have the full text of the statements, as if that signifies the portions presented and recorded in Volume 7 of the Trial of the German Major War criminals are somehow misleading. That's the extent of his argument!

Conversely, Smith asks us to believe that Mazur and the two British POWs lied, for some reason, and presumably that the soap recipe found at an advanced Anatomical Institute which, among other things, provided skeletons for medical research, was just laying around!

[Scott Smith]

Lots of obfuscations in the preceding two posts. Nevertheless, we don't have the alleged affidavits from Neely and Witton supporting Mazur's affidavit, do we? Wonder why not...

[Dan]

Conversely, Smith asks us to believe that Mazur and the two British POWs lied, for some reason, and presumably that the soap recipe found at an advanced Anatomical Institute which, among other things, provided skeletons for medical research, was just laying around!

It would be interesting to find out why Mazur was in jail, but we have come to a stand still on the soap issue until we get more detail, which Hans has requested. I think the acceptance of the Soviet Katyn evidence was just as bad or worse than ruling against the Danzig An. Inst.

It should simply have been rejected, with a warning from the judges not to compromise the integrity of the trials.

[David Thompson]

Here are excerpts from the two affidavits read at the International Military Tribunal Proceedings on 19 Feb 1946. They are taken from The Avalon Project at the Yale Law School -- Nuremberg Trial Proceedings Volume 7, pp. 598-99. The fate of the affidavits is discussed following the quote.

CHIEF COUNSELLOR OF JUSTICE L. N. SMIRNOV (Assistant Prosecutor for the U.S.S.R.): In order to prove that the record of Mazur's interrogation corresponds to reality, I shall now submit to the Tribunal two documents which have been kindly put at our disposal They are records of sworn statements by two British prisoners of war; in particular that of John Henry Witton, a soldier of the Royal Sussex Regiment. The document is submitted to the Tribunal as Exhibit Number USSR-264 (Document Number USSR-264). The members of the Tribunal will find this quotation in Paragraph 5, Page 495, of the document book. I quote a very short excerpt from this record, if the necessary time is granted to me. This is Page 367. I quote:
"The corpses arrived at an average of seven to eight per day. All of them had been beheaded and were naked. They arrived sometimes in a Red Cross wagon containing five to six corpses in a wooden case and sometimes in a small truck which contained three to four corpses."
I omit the next sentence.
"The corpses were unloaded as quickly as possible and taken down into the cellar, which was entered from a side door in the main entrance hall of the Institute."
I omit the next sentence.
"They were then put into large metal containers where they were then left for approximately 4 months."
I omit the next three sentences and continue the quotation:
"Owing to the preservative mixture in which they were stored, this tissue came away from the bones very easily. The tissue was then put into a boiler about the size of a small kitchen table.... After boiling the liquid it was put into white trays about twice the size of a sheet of foolscap and about 3 centimeters deep."-These were the basins which I have already shown the Tribunal-"Approximately 3 to 4 trayfuls per day were obtained from the machine."
599
19 Feb. 46
This witness himself did not witness the application of the soap, but I am submitting to the Tribunal as Exhibit Number USSR-272 (Document Number USSR-272), the written testimony of a British citizen, William Anderson Neely, a corporal of the Royal Signals. The members of the Tribunal will find this excerpt on Page 498 of the document book, Volume 2. I begin the quotation:
"The corpses arrived at an average rate of 2 to 3 per day. All of them were naked and most of them had been beheaded." I interrupt the quotation-I omit two paragraphs and continue the quotation:
"A machine for the manufacture of soap was completed some time in March or April 1944. The British prisoners of war had constructed the building in which it was housed in June 1942. The machine itself was installed by a civilian firm from Danzig by the name of AJRD. It consisted, as far as I remember, of an electrically heated tank in which bones of the corpses were mixed with some acid and melted down.
"This process of melting down took about 24 hours. The fatty portions of the corpses and particularly those of females were put into a crude enamel tank, heated by a couple of bunsen burners. Some acid was also used in this process. "I think it was caustic soda. When boiling had been completed, the mixture was allowed to cool and then cut into blocks for microscopic examination."
I continue the quotation from the following paragraph:
"I cannot estimate the quantity produced, but I saw it used by Danzigers in cleaning tables in the dissecting rooms. They all told me it was excellent soap for this purpose."

Note the reference by Smirnov to the "document book" of exhibits. These document collections were passed out to the judges, prosecutors and defense attorneys of the International Military Tribunal, and kept as part of the record of proceedings. I have never heard or read that these document books, or their contents, were missing. The original records can be found in Records Group 238 of the National Archives, Washington, D.C., and are available on microfilm. Most of the documentary evidence was also published in the 42-volume set "Trial of the Major War Criminals Before the International Military Tribunal" (Nuernberg: 1947.). Unhappily, these records are not yet on-line.

However, the IMT "document books" are available (on microfilm, and for a small fee) through your local inter-library loan program. The National Archives website has the details. Ask for "Prosecution Exhibits Submitted to the International Military Tribunal"; Microfilm Publication T988. The set contains 54 rolls.

That gets us to a more interesting question -- why would affidavits from liberated British POWs have the same credibility problems as the Katyn affidavits taken from Soviet functionaries and indefinitely detained German captives in Stalinist Russia facing potential war crimes charges?

[Tarpon27]

Scott wrote:

Lots of obfuscations in the preceding two posts. Nevertheless, we don't have the alleged affidavits from Neely and Witton supporting Mazur's affidavit, do we? Wonder why not...

The simple answer is that no one following this discussion has ever gone to the trouble of sourcing the original depositions introduced as the Exhibits.

As David has pointed out, that can be done through an interlibrary loan.

Now, unless there is some valid reason to imply that the affidavits' existence is "alleged"...?

Regards,

Mark

[Scott Smith]

That gets us to a more interesting question -- why would affidavits from liberated British POWs have the same credibility problems as the Katyn affidavits taken from Soviet functionaries and indefinitely detained German captives in Stalinist Russia facing potential war crimes charges?

In either case the affidavits are entered into evidence without cross-examination or challenge.

[Scott Smith]

Lots of obfuscations in the preceding two posts. Nevertheless, we don't have the alleged affidavits from Neely and Witton supporting Mazur's affidavit, do we? Wonder why not...

The simple answer is that no one following this discussion has ever gone to the trouble of sourcing the original depositions introduced as the Exhibits.

I was referring to Nizkor, THHP, or even the Avalon project.

As David has pointed out, that can be done through an interlibrary loan.

Curious that I'm the only one of the forum who ever get things from Interlibrary Loan, which includes NA microfilm.

Now, unless there is some valid reason to imply that the affidavits' existence is "alleged"...?

I didn't find it the last time I looked at the NMT "Blue" books. However, the references provided by Mr. Thompson above, may be helpful.

We still have to compare the claims made by Mazur with those made by Neely and Witton; and when and under what circumstances those claims were made.

[Roberto]

We still have to compare the claims made by Mazur with those made by Neely and Witton; and when and under what circumstances those claims were made.

Who is "we" ?

As to comparison of "claims", this may help:

[...]

A close examination of both affidavits reveals only two "contradictions":

Number of corpses: Witton stated that corpses "arrived at an average of 7 to 8 per day," with sometimes 5 to 6 in a Red Cross wagon and sometimes 3 to 4 in a small truck. Neely, however, said that corpses "arrived at an average rate of 2 to 3 per day."

Length of preparation time of corpses: Witton stated that after fluids were inserted into the corpses, they "were then put into large metal containers where they were then left for approximately 4 months." Neely, however, said that the corpses were "kept for an average of three to four weeks in large tanks before being taken upstairs and used for dissection purposes."
What might be the possible explanations for these two apparent contradictions? One idea might be that the second one could just be a typo, where "months" was substituted for "weeks," or vice versa. But this is unlikely; the most logical explanation is that Witton was correct and Neely was wrong.

In his affidavit, Neely wrote: "I myself was employed in taking the corpses down to the cellar and laying them on the tables in the dissecting room and also in clearing them away at the end of the day." Perhaps Witton was much more involved in the process at the Danzig Institute than Neely was and therefore saw more corpses than his fellow POW did. This might also explain the discrepancy in the length of time, if Witton knew more details about the entire process than Neely did.

Aside from these two "contradictions," the rest of the two statements are in accord with each other. But it is really not surprising that their statements are not identical, since both men had been POWs for over four years, obviously traumatic events in their lives.

More importantly, it would have been more suspicious if their affidavits were exactly alike. In fact, Porter charged this as well: in one of his books, Porter complained that the two statements contained too many of the same phrases to be trusted, and in his other book he said they were too contradictory!

Finally, since both men worked in the Danzig Institute, their statements are not "hearsay."

[...]

Although it was a Russian (L. N. Smirnov) who brought up the soap allegations at the IMT, the Soviets had no control over the British statements. Both Neely and Witton gave their depositions to the British Judge Advocate General's Office -- in fact, both USSR-264 and USSR-272 clearly bear the designation MD/JAG/FS/22/609(4a) across the top.

What about Mazur's depositions? Were they just communist propaganda, or can his statements to the Soviets (USSR-197) be corroborated by anyone else? Before speaking to the Soviets and giving his depositions, Mazur was interviewed by the Glowna Komisja Badania Zbrodni Niemieckich w Polsce ("Committee for the Investigation of German Crimes in Poland").

This Committee, which was comprised of several prominent Poles (journalists, doctors, lawyers) as well as some representatives of the Red Army, entered the Danzig Institute on May 5, 1945. Mazur gave his formal deposition to the Committee on May 12, sixteen days before he gave his first deposition to the Soviets.

Zofia Nalkowska, a prominent novelist, was a member of the Committee and discussed Mazur, Spanner, and the Danzig Institute in her 1946 non-fiction book, Medaliony. The relevant portion was translated into English in Introduction to Modern Polish Literature, Ed. Adam Gillon and Ludwik Krzyzanowski. Nalkowksa quotes extensively from Mazur, and what he said to the Committee was in substance exactly what he later said to the Soviets. Nalkowska in no way can be considered a communist tool.

Stanislaw Strabski, another member of the Committee, was a Polish journalist and published a 1946 book called Mydlo z ludzkiego tluszczu, a preliminary translaton of which shows that he also discusses Spanner, Mazur, and the Institute. So it is disingenuous to merely dismiss the testimony at the IMT regarding the soap as communist propaganda: two of the three affidavits were provided by the British JAG, and Mazur's statements to the Soviets are consistent with what he told the Committee earlier in May 1945.

[...]

Emphases are mine. The source of the quotes is the assessment of the "soap allegations" by John Drobnicki and Julian Hendy featured on the site

http://www.us-israel.org/jsource/Holocaust/soap01.html

The quotes can be found on the chapters

http://www.us-israel.org/jsource/Holocaust/soap04.html

and

http://www.us-israel.org/jsource/Holocaust/soap05.html

of that site.

The assessment also contains an accurate statement on why "Revisionists" make such a fuss about what is actually an irrelevant minor issue:

Why should it matter whether or not human soap was made from the corpses of Nazi Germany's victims? Whether Nazi Germany, or even one Nazi, made human soap or attempted to make human soap does not change the fact that Hitler attempted to exterminate European Jewry and murdered between 5 and 6 million of them.

Compared with this monumental crime, the soap allegations can be seen as trivial.

Yet, the revisionists attach special importance to this question, hoping thereby to cast doubt on the Nuremberg proceedings and on the Holocaust itself.

[...]

As has already been pointed out several times above, the IMT did not "uphold" or "confirm" the soap allegations that these revisionists are talking about. Nor does it really matter whether or not the Nazis actually made human soap -- it does not affect, in any way whatsoever, the facts of the Holocaust.

Nor was the quantity or quality of the evidence for soap production in any way comparable to that of mass gassings: three testimonies and a few corroborating pieces of evidence is in no way comparable to the overwhelming stream of physical evidence and testimonies from the perpetrators and other witnesses of gassings and other facets of the Holocaust. To even try to draw the comparison is ludicrous.

But what the revisionists' writings on the soap allegations demonstrate is their usual techniques of anti-scholarship: deceit, denial, and misrepresentation. They misquote; they omit what contradicts their preconceived notions; and they offer nothing substantial to refute or disprove the statements of Mazur, Witton, and Neely. Then, they take their distorted case and say that it is only the beginning of "revisionist" historical successes: if the soap, why not the gas chambers?

[...]

Source of quote:

http://www.us-israel.org/jsource/Holocaust/soap06.html

[Charles Bunch]

Lots of obfuscations in the preceding two posts. Nevertheless, we don't have the alleged affidavits from Neely and Witton supporting Mazur's affidavit, do we? Wonder why not...

WE don't have any of the thousands of documents used by the IMT, nor do WE have any of the tens of thousands of documents dealing with the Holocaust. Come to think of it, WE have virtually NONE of the documents for any historical event.

So who is obfuscating!

So now Smith resorts to the very last stand of the denier when cornered. Maybe the documents don't exist!!

Yeah, and maybe our resident skeptic exhibits no difference in his approach than the average mindless denier!

[Scott Smith]

You're a Human Soap Believer, Chuck, and you are at an impasse to support your claim without the text of Neely and Witton. Perhaps you should fill out the ILL forms and get us the "affidavits."

[Charles Bunch]

Conversely, Smith asks us to believe that Mazur and the two British POWs lied, for some reason, and presumably that the soap recipe found at an advanced Anatomical Institute which, among other things, provided skeletons for medical research, was just laying around!

It would be interesting to find out why Mazur was in jail, but we have come to a stand still on the soap issue until we get more detail, which Hans has requested. I think the acceptance of the Soviet Katyn evidence was just as bad or worse than ruling against the Danzig An. Inst.

We've come to no standstill at all. Any reasonable assessment of the evidence to date would conclude a strong likelihood that soap was made from human fat at Danzig on an experimental basis. If future evidence comes to light then, and only then, is it proper to reevaluate the issue.

Katyn has nothing to do with this issue.

It should simply have been rejected, with a warning from the judges not to compromise the integrity of the trials.

Admitting evidence and then subjecting it to the rigors of the judicial process doesn't compromise the trials integrity. The Katyn evidence was discredited.