Rules of Evidence

[xcalibur]

What rules of evidence applied to the introduction of eyewitness testimony at The IMT, NMT and post war German trials?

[Sergey Romanov]

This might be somewhat helpful:
http://forum.axishistory.com/viewtopic.php?p=569025

[xcalibur]

This might be somewhat helpful:
http://forum.axishistory.com/viewtopic.php?p=569025

Thanks much, Sergey, very helpful.

[David Thompson]

Military Government -- Germany, United States Zone, Ordinance No. 7, 18 October 1946, in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10. Vol. XV: Procedure, Practice and Administration. US Government Printing Office, District of Columbia: 1953. pp. 28-32.

MILITARY GOVERNMENT -- GERMANY

UNITED STATES ZONE

ORDINANCE No. 7 [For amendments to this ordinance, see Ordinance No. 11, reproduced in section II D.]

ORGANIZATION AND POWERS OF CERTAIN MILITARY TRIBUNALS

The purpose of this Ordinance is to provide for the establishment of military tribunals which shall have power to try and punish persons charged with offenses recognized as crimes in Article II of Control Council Law No. 10 [Reproduced in section II B.], including conspiracies to commit any such crimes. Nothing herein shall prejudice the jurisdiction or the powers of other courts established or which may be established for the trial of any such offenses.

(a) Pursuant to the powers of the Military Governor for the United States Zone of Occupation within Germany and further pursuant to the powers conferred upon the Zone Commander by Control Council Law No. 10 and Articles 10 and 11 of the Charter of the International Military
Tribunal annexed to the London Agreement of 8/8/1945 [Reproduced in section I B.], certain tribunals to be known as "Military Tribunals" shall be established hereunder.

(b) Each such tribunal shall consist of three or more members to be designated by the Military Governor. One alternate member may be designated to any tribunal if deemed advisable by the Military Governor. Except as provided in subsection (c) of this article, all members and alternates shall be lawyers who have been admitted to practice, for at least five years, in the highest courts of one of the United States or its territories or of the District of Columbia, or who have been admitted to practice in the United States Supreme

(c) The Military Governor may in his discretion enter into an agreement with one or more other zone commanders of the member nations of the Allied Control Authority providing for the joint trial of any case or cases. In such cases the tribunals shall consist of three or more members as may be provided in the agreement. In such cases the tribunals may include properly qualified lawyers designated by the other member nations.

(d) The military Governor shall designate one of the members of the tribunal to serve as the presiding judge.

(e) Neither the tribunals nor the members of the tribunals or the alternates may be challenged by the prosecution or by the defendants or their counsel.

(f) In case of illness of any member of a tribunal or his incapacity for some other reason, the alternate, if one has been designated, shall take his place as a member in the pending trial. Members may be replaced for reasons of health or for other good reasons, except that no replacement of a member may take place, during a trial, other than by the alternate. If no alternate has been designated, the trial shall be continued to conclusion by the remaining members.

(g) The presence of three members of the tribunal or of two members when authorized pursuant to subsection (f) supra shall be necessary to constitute a quorum. In the case of tribunals designated under (c) above the agreement shall determine the requirements for a quorum.

(h) Decisions and judgments, including convictions and sentences shall be by majority vote of the members. If the votes of the members are equally divided the presiding member shall declare a mistrial.

* * *

(a) Charges against persons to be tried in the tribunals established hereunder shall originate in the Office of the Chief of Counsel for War Crimes, appointed by the Military Governor pursuant to Paragraph 3 of the Executive Order Numbered 9679 of the President of the United States dated 16 January 1946. The Chief of Counsel for War Crimes shall determine the persons to be tried by the Tribunals and he or his designated representative shall file the indictments with the Secretary General of the Tribunals (see Article XIV, infra) and shall conduct the
prosecution.

(b) The Chief of Counsel for War Crimes, when in his judgement it is advisable, may invite one or more United Nations to designate representatives to participate in the prosecution of an case.

* * *

In order to ensure a fair trial for the defendants, the following procedure shall be followed:

(a) A defendant shall be furnished, at a reasonable time before his trial, a copy of the indictment and of all documents lodged with the indictment, translated into a language which he understands.

The indictment shall state the charges plainly, concisely and with sufficient particulars to inform defendant of the offenses charged.

(b) The trial shall be conducted in, or translated into, a language which the defendant understands.

(c) A defendant shall have the right to be represented by counsel of his own selection, provided such counsel shall be a person qualified under existing regulations to conduct cases before the courts of the defendant's country, or any other person who may be specially authorized by the tribunal. The tribunal shall appoint qualified counsel to represent a defendant who is not represented by counsel of his own selection.

(d) Every defendant shall be entitled to be present at his trial except that a defendant may be proceeded against during temporary absences if in the opinion of the tribunal defendant's interests will not thereby be impaired, and except further as provided in Article VI (c). The tribunal may also proceed in the absence of any defendant who has applied for and has been granted permission to be absent.

(e) A defendant shall have the right through his counsel to present evidence at the trial in support of his defense, and to cross-examine any witness called by the prosecution.

(f) A defendant may apply in writing to the tribunal for the production of witnesses or of documents. The application shall state where the witness or document is thought to be located and shall also state the facts to be proved by the witness or the document and the relevancy of such facts to the defense. If the tribunal grants the application, the defendant shall be given such aid in obtaining production of evidence as the tribunal may order.

* * *

The Tribunals shall have the power

(a) to summon witnesses to the trial, to require their attendance and testimony and to put questions to them;

(b) to interrogate any defendant who takes the stand to testify in his own behalf, or who is called to testify regarding another

(c) to require the production of documents and other evidentiary material;

(d) to administer oaths;

(e) to appoint officers for the carrying out of any task designated by the tribunals including the taking of evidence on commission;

(f) to adopt rules of procedure not inconsistent with this Ordinance. Such rules shall be adopted, and from time to time as necessary revised by the members of the tribunal or by the committee of presiding judges as provided in Article XIII. [By amendments contained in Ordinance No. 11 (sec. II D), a new subdivision, designated "(g)," was added to Article V, and an entirely new article, designated "Article V B," was also added.]

* * *

The tribunals shall

(a) confine the trial strictly to an expeditious hearing of the issues raised by the charges;

(b) take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of any kind whatsoever;

(c) deal summarily with any contumacy, imposing appropriate punishment, including the exclusion of any defendant or his counsel from some or all further proceedings, but without prejudice to the determination of the charges.

* * *

The tribunals shall not be bound by technical rules of evidence. They shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which they deem to have probative value. Without limiting the foregoing general rules, the following shall be deemed admissible if they appear to the tribunal to contain information of probative value relating to the charges: affidavits, depositions, interrogations, and other statements, diaries, letters, the records, findings, statements and judgments of the military tribunals and the reviewing and confirming authorities of any of the United Nations and copies of any document or other secondary evidence of the contents of any document, if the original is not readily available or cannot be produced without delay. The tribunal shall afford the opposing party such opportunity to question the authenticity as the ends of justice require.

The tribunals may require that they be informed of the nature of any evidence before it is offered so that they may rule upon the relevance thereof.

The tribunals shall not require proof of facts of common knowledge but shall take judicial notice thereof. They shall also take judicial notice of official governmental documents and reports of any of the United Nations, including the acts and documents of the committees set up in the various Allied countries for the investigation of war crimes, and the records and finding of military or other tribunals of any of the United Nations.

The determinations of the International Military Tribunal in the judgments in Case No. 1 that invasions, aggressive acts, aggressive wars, crimes, atrocities or inhumane acts were planned or occurred, shall be binding on the tribunals established hereunder and shall not be questioned except insofar as the participation therein or knowledge thereof by any particular person may be concerned. Statements of the International Military Tribunal in the judgment in Case No. 1 constitute proof of the facts stated, in the absence of substantial new evidence to the contrary.

* * *

The proceedings at the trial shall take the following course:

(a) the tribunal shall inquire of each defendant whether he has received and had an opportunity to read the indictment against him and whether he pleads "guilty" or "not guilty."

() The prosecution may make an opening statement.

(c) The prosecution shall produce its evidence subject to the cross-examination of its witnesses.

(d) The defense may make an opening statement.

(e) The defense shall produce its evidence subject to the cross-examination of its witnesses.

(f) Such rebutting evidence as may be held by the Tribunal to be material may be produced by either the prosecution or the defense.

(g) The defense shall address the court.

(h) The prosecution shall address the court. [''Subdivisions (D) and (h) of Article XI were amended by Article III of Ordinance No. 11 (sec. II D) so as to make the order in which the prosecution and the defense addressed the court discretionary with the Tribunal.]

(i) Each defendant may make a statement to the tribunal.

(j) The tribunal shall deliver judgment and pronounce sentence.

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Article XII

A Central Secretariat to assist the tribunals to be appointed hereunder shall be established as soon as practicable. The main office of the Secretariat shall be located in Nuernberg. The Secretariat shall consist of a Secretary General and such assistant secretaries military officers, clerks, interpreters and other personnel as may be

* * *

The Secretary General shall be appointed by the Military Governor and shall organize and direct the work of the Secretariat. He shall be subject to the supervision of the members of the tribunals. except that when at least three tribunals shall be functioning, the presiding judges of the several tribunals may form the supervisory

* * *

The Secretariat shall:

(a) Be responsible for the administrative and supply needs of the Secretariat and of the several tribunals.

(b) Receive all documents addressed to tribunals.

(c) Prepare and recommend uniform rules of procedure, not inconsistent with the provisions of this Ordinance.

(d) Secure such information for the tribunals as may be needed for the approval or appointment of defense counsel.

(e) Serve as liaison between the prosecution and defense counsel.

(f) Arrange for aid to be given defendants and the prosecution in obtaining production of witnesses or evidence as authorized by the tribunals.

(g) Be responsible for the preparation of the records of the proceedings before the tribunals.

(h) Provide the necessary clerical, reporting and interpretative services to the tribunals and its members, and perform such other duties as may be required for the efficient conduct of the proceedings before the tribunals, or as may be requested by any of the

* * *

The judgments of the tribunals as to the guilt or the innocence of a defendant shall give the reasons on which they are based and shall be final and not subject to review. The sentences imposed may be subject to review as provided in Article XVII, infra.

* * *

The tribunal shall have the right to impose upon the defendant, upon conviction such punishment as shall be determined by the tribunal to be just, which may consist of one or more of the penalties provided in Article II, Section 3 of Control Council Law No. 10.

* * *

(a) Except as provided in (b) infra, the record of each case shall be forwarded to the Military Governor who shall have the power to mitigate, reduce or otherwise alter the sentence imposed by the tribunal, but may not increase the severity thereof. [See Regulation No. 1 under Ordinance No. 7, issued by the Office of Military Government for Germany (US), 4/11/1947, for detailed procedures later established in connection with this provision reproduced in section XXV D.]

(b) In cases tried before tribunals authorized by Article II (c), the sentence shall be reviewed jointly by the zone commanders of the nations involved, who may mitigate, reduce or otherwise alter the sentence by majority vote, but may not increase the severity thereof. If only two nations are represented, the sentence may be altered only by the consent of both zone commanders

************************************************

Article XVIII

No sentence of death shall be carried into execution unless and until confirmed in writing by the Military Governor. In accordance with Article III, Section 5 of Law No. 10, execution of the death sentence may be deferred by not to exceed one month after such confirmation if there is reason to believe that the testimony of the convicted person may be of value in the investigation and trial of other crimes.

* * *

Upon the pronouncement of a death sentence by a tribunal established thereunder and pending confirmation thereof, the condemned will be remanded to the prison or place where he was confined and there be segregated from the other inmates, or be transferred to a more appropriate place of confinement.

* * *

Upon the confirmation of a sentence of death the Military Governor will issue the necessary orders for carrying out the execution.

* * *

Where sentence of confinement for a term of years has been imposed the condemned shall be confined in the manner directed by the tribunal imposing sentence. The place of confinement ma be changed from time to time by the Military Governor.

Article XXII Any property declared to be forfeited or the restitution of which is ordered by a tribunal shall be delivered to the Military Governor, for disposal in accordance with Control Council Law No. 10, Article II (3).

Article XXIII

Any of the duties and functions of the Military Governor provided for herein may be delegated to the Deputy Military Governor. Any of the duties and functions of the Zone Commander provided for herein may be exercised by and in the name of the Military Governor and may be delegated to the Deputy Military Governor.

This Ordinance becomes effective 18 October 1946.

BY ORDER OF MILITARY GOVERNMENT

****************************************************************

MILITARY GOVERNMENT -- GERMANY

ORDINANCE No. 11

AMENDING MILITARY GOVERNMENT ORDINANCE NO. 7 OF 18 OCTOBER 1946 [REPRODUCED IN SECTION II C.], ENTITLED "ORGANIZATION AND POWERS OF CERTAIN MILITARY TRIBUNALS"

* * *

Article V of Ordinance No. 7 is amended by adding thereto a new subdivision to be designated "(g)," reading as follows:

"(g) The presiding judges, and, when established, the supervisory committee of presiding judges provided in Article XIII shall assign the cases brought by the Chief of Counsel for War Crimes to the various Military Tribunals for trial."

* * *

Ordinance No. 7 is amended by adding thereto a new article following Article V to be designated Article V-B, reading as follow:

"(a) A joint session of the Military Tribunals may be called by any of the presiding judges thereof or upon motion, addressed to each of the Tribunals, of the Chief of Counsel for War Crimes or of Counsel for any defendant whose interests are affected, to hear argument upon and to review any interlocutory ruling by any of the Military Tribunals on a fundamental or important legal question either substantive or procedural, which ruling is in conflict with or is inconsistent with a prior ruling of another of the Military Tribunals.

"(b) A joint session of the Military Tribunals may be called in the same manner as provided in subsection (a) of this Article to hear argument upon and to review conflicting or inconsistent final rulings contained in the decisions or judgments of any of the Military Tribunals on a fundamental or important legal question, either substantive or procedural. Any motion with respect to such final ruling shall be filed within ten (10) days following the issuance of decision or judgment.

"(c) Decisions by joint sessions of the Military Tribunals unless thereafter altered in another joint session, shall be binding upon all the Military Tribunals. In the case of the review of final rulings by joint sessions, the judgments reviewed may be confirmed or remanded for action consistent with the joint decision.

"(d) The presence of a majority of the members of each Military Tribunal then constituted is required to constitute a quorum.

"(e) The members of the Military Tribunals shall, before any joint session begins, agree among themselves upon the selection from their number of a member to preside over the joint session.

"(f) Decisions shall be by majority vote of the members. If the votes of the members are equally divided, the vote of the member presiding over the session shall be decisive."

* * *

Subdivisions (g) and (h) of Article XI of Ordinance No. 7 are deleted; subdivision (i) is relettered "(h)"; subdivision (j) is relettered "()"; and a new subdivision to be designated "(g)," is added, reading as follows:

"(g) The prosecution and defense shall address the court in such order as the Tribunal may determine."

This Ordinance becomes effective 17 February 1947.

BY ORDER OF THE MILITARY GOVERNMENT

[David Thompson]

The emphasis in these documents is mine, to assist the reader in finding the evidentiary rules.

I. CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL

Article 1.
In pursuance of the Agreement signed on the 8th day of August 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, there shall be established an International Military Tribunal (hereinafter called "the Tribunal'') for the just and prompt trial and punishment of the major war criminals of the European Axis.

Article 2.
The Tribunal shall consist of four members, each with an alternate. One member and one alternate shall be appointed by each of the Signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In case of illness of any member of the Tribunal or his incapacity for some other reason to fulfill his functions, his alternate shall take his place.

Article 3.
Neither the Tribunal, its members nor their alternates can be challenged by the prosecution, or by the Defendants or their Counsel. Each Signatory may replace its members of the Tribunal or his alternate for reasons of health or for other good reasons, except that no replacement may take place during a Trial, other than by an alternate.

Article 4
(a) The presence of all four members of the Tribunal or the alternate for any absent member shall be necessary to constitute the quorum.

(b) The members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a President, and the President shall hold office during the trial, or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed. If, however, a session of the Tribunal takes place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside.

(c) Save as aforesaid the Tribunal shall take decisions by a majority vote and in case the votes are evenly divided, the vote of the President shall be decisive: provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal.

Article 5.
In case of need and depending on the number of the matters to be tried, other Tribunals may be set up; and the establishment, functions, and procedure of each Tribunal shall be identical, and shall be governed by this Charter.

II. JURISDICTION AND GENERAL PRINCIPLES

Article 6.
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Article 7.
The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8.
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Article 9.
At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.

Article 10.
In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.

Article 11.
Any person convicted by the Tribunal may be charged before a national, military or occupation court, referred to in Article 10 of this Charter, with a crime other than of membership in a criminal group or organization and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organization.

Article 12.
The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence.

Article 13.
The Tribunal shall draw up rules for its procedure. These rules shall not be inconsistent with the provisions of this Charter.

III. COMMITTEE FOR THE INVESTIGATION AND PROSECUTION OF MAJOR WAR CRIMINALS

Article 14.
Each Signatory shall appoint a Chief Prosecutor for the investigation of the charges against and the prosecution of major war criminals.

The Chief Prosecutors shall act as a committee for the following purposes:

(a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff,

(b) to settle the final designation of major war criminals to be tried by the Tribunal,

(c) to approve the Indictment and the documents to be submitted therewith,

(d) to lodge the Indictment and the accompany documents with the Tribunal,

(e) to draw up and recommend to the Tribunal for its approval draft rules of procedure, contemplated by Article 13 of this Charter. The Tribunal shall have the power to accept, with or without amendments, or to reject, the rules so recommended.

The Committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation: provided that if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, or the crimes with which he shall be charged, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried, or the particular charges be preferred against him.

Article 15.
The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties:

(a) investigation, collection and production before or at the Trial of all necessary evidence,

(b) the preparation of the Indictment for approval by the Committee in accordance with paragraph (c) of Article 14 hereof,

(c) the preliminary examination of all necessary witnesses and of all Defendants,

(d) to act as prosecutor at the Trial,

(e) to appoint representatives to carry out such duties as may be assigned them,

(f) to undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial.

It is understood that no witness or Defendant detained by the Signatory shall be taken out of the possession of that Signatory without its assent.

IV. FAIR TRIAL FOR DEFENDANTS

Article 16.
In order to ensure fair trial for the Defendants, the following procedure shall be followed:

(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

V. POWERS OF THE TRIBUNAL AND CONDUCT OF THE TRIAL

Article 17.
The Tribunal shall have the power

(a) to summon witnesses to the Trial and to require their attendance and testimony and to put questions to them

(b) to interrogate any Defendant,

(c) to require the production of documents and other evidentiary material,

(d) to administer oaths to witnesses,

(e) to appoint officers for the carrying out of any task designated by the Tribunal including the power to have evidence taken on commission.

Article 18.
The Tribunal shall

(a) confine the Trial strictly to an expeditious hearing of the cases raised by the charges,

(b) take strict measures to prevent any action which will cause reasonable delay, and rule out irrelevant issues and statements of any kind whatsoever,

(c) deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges.

Article 19.
The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.

Article 20.
The Tribunal may require to be informed of the nature of any evidence before it is entered so that it may rule upon the relevance thereof.

Article 21.
The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.

Article 22.
The permanent seat of the Tribunal shall be in Berlin. The first meetings of the members of the Tribunal and of the Chief Prosecutors shall be held at Berlin in a place to be designated by the Control Council for Germany. The first trial shall be held at Nuremberg, and any subsequent trials shall be held at such places as the Tribunal may decide.

Article 23.
One or more of the Chief Prosecutors may take part in the prosecution at each Trial. The function of any Chief Prosecutor may be discharged by him personally, or by any person or persons authorized by him.

The function of Counsel for a Defendant may be discharged at the Defendant's request by any Counsel professionally qualified to conduct cases before the Courts of his own country, or by any other person who may be specially authorized thereto by the Tribunal.

Article 24.
The proceedings at the Trial shall take the following course:

(a) The Indictment shall be read in court.

(b) The Tribunal shall ask each Defendant whether he pleads "guilty" or "not guilty.''

(c) The prosecution shall make an opening statement.

(d) The Tribunal shall ask the prosecution and the defense what evidence (if any) they wish to submit to the Tribunal, and the Tribunal shall rule upon the admissibility of any such evidence.

(e) The witnesses for the Prosecution shall be examined and after that the witnesses for the Defense. Thereafter such rebutting evidence as may be held by the Tribunal to be admissible shall be called by either the Prosecution or the Defense.

(f) The Tribunal may put any question to any witness and to any defendant, at any time.

(g) The Prosecution and the Defense shall interrogate and may cross-examine any witnesses and any Defendant who gives testimony.

(h) The Defense shall address the court.

(i) The Prosecution shall address the court.

(j) Each Defendant may make a statement to the Tribunal.

(k) The Tribunal shall deliver judgment and pronounce sentence.

Article 25.
All official documents shall be produced, and all court proceedings conducted, in English, French and Russian, and in the language of the Defendant. So much of the record and of the proceedings may also be translated into the language of any country in which the Tribunal is sitting, as the Tribunal is sitting, as the Tribunal considers desirable in the interests of the justice and public opinion.

VI. JUDGMENT AND SENTENCE

Article 26.
The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.

Article 27.
The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just.

Article 28.
In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany.

Article 29.
In case of guilt, sentences shall be carried out in accordance with the orders of the Control Council for Germany, which may at any time reduce or otherwise alter the sentences, but may not increase the severity thereof. If the Control Council for Germany, after any Defendant has been convicted and sentenced, discovers fresh evidence which, in its opinion, would found a fresh charge against him, the Council shall report accordingly to the Committee established under Article 14 hereof, for such action as they may consider proper, having regard to the interests of justice.

VII. EXPENSES

Article 30.
The expenses of the Tribunal and of the Trials, shall be charged by the Signatories against the funds allotted for maintenance of the Control Council of Germany.

http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm

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Rules of Procedure, in Trial of the Major War Criminals before the International Military Tribunal. Volume I: Official Documents. [Official text in the English language.] Nuremberg: IMT, 1947. pp. 19-21.

Rules of Procedure

(Adopted 29 October 1945)

Rule 1. Authority to Promulgate Rules.

The present Rules of Procedure of the International Military Tribunal for the trial of the major war criminals (hereinafter called "the Tribunal") as established by the Charter of the Tribunal dated 8/8/1945 (hereinafter called "the Charter") are hereby promulgated by the Tribunal in accordance with the provisions of Article 13 of the Charter.

Rule 2. Notice to Defendants and Right to Assistance of Counsel.

(a) Each individual defendant in custody shall receive not less than 30 days before trial a copy, translated into a language which he understands, (1) of the Indictment, (2) of the Charter, (3) of any other documents lodged with the Indictment, and (4) of a statement of his right to the assistance of counsel as set forth in sub-paragraph (d) of this Rule, together with a list of counsel. He shall also receive copies of such rules of procedure as may be adopted by the Tribunal from time to time.

(b) Any individual defendant not in custody shall be informed of the indictment against him and of his right to receive the documents specified in sub-paragraph (a) above, by notice in such form and manner as the Tribunal may prescribe.

(c) With respect to any group or organization as to which the Prosecution indicates its intention to request a finding of criminality by the Tribunal, notice shall be given by publication in such form and manner as the Tribunal may prescribe and such publication shall include a declaration by the Tribunal that all members of the named groups or organizations are entitled to apply to the Tribunal for leave to be heard in accordance with the provisions of Article 9 of the Charter. Nothing herein contained shall be construed to confer immunity of any kind upon such members of said groups or organizations as may appear in answer to the said declaration.

(d) Each defendant has the right to conduct his own defense or to have the assistance of counsel. Application for particular counsel shall be filed at once with the General Secretary of the Tribunal at the Palace of Justice, Nuremberg, Germany. The Tribunal will designate counsel for any defendant who fails to apply for particular counsel or, where particular counsel requested is not within ten (10) days to be found or available, unless the defendant elects in writing to conduct his own defense. If a defendant has requested particular counsel who is not immediately to be found or available, such counsel or a counsel of substitute choice may, if found and available before trial, be associated with or substituted for counsel designated by the Tribunal, provided that (1) only one counsel shall be permitted to appear at the trial for any defendant, unless by special permission of the Tribunal, and (2) no delay of trial will be allowed for making such substitution or association.

Rule 3. Service of Additional Documents.

If, before the trial, the Chief Prosecutors offer amendments or additions to the Indictment, such amendments or additions, including any accompanying documents shall be lodged with the Tribunal and copies of the same, translated into a language which they each understand, shall be furnished to the defendants in custody as soon as practicable and notice given in accordance with Rule 2 (b) to those not in custody.

Rule 4. Production of Evidence for the Defense.

(a) The Defense may apply to the Tribunal for the production of witnesses or of documents by written application to the General Secretary of the Tribunal. The application shall state where the witness or document is thought to be located, together with a statement of their last known location. It shall also state the facts proposed to be proved by the witness or the document and the reasons why such facts are relevant to the Defense.

(b) If the witness or the document is not within the area controlled by the occupation authorities, the Tribunal may request the Signatory and adhering Governments to arrange for the production, if possible, of any such witnesses and any such documents as the Tribunal may deem necessary to proper presentation of the Defense.

(c) If the witness or the document is within the area controlled by the occupation authorities, the General Secretary shall, if the Tribunal is not in session, communicate the application to the Chief Prosecutors and, if they make no objection, the General Secretary shall issue a summons for the attendance of such witness or the production of such documents, informing the Tribunal of the action taken. If any Chief Prosecutor objects to the issuance of a summons, or if the Tribunal is in session, the General Secretary shall submit the application to the Tribunal, which shall decide whether or not the summons shall issue.

(d) A summons shall be served in such manner as may be provided by the appropriate occupation authority to ensure its enforcement and the General Secretary shall inform the Tribunal of the steps taken.

(e) Upon application to the General Secretary of the Tribunal, a defendant shall be furnished with a copy, translated into a language which he understands, of all documents referred to in the Indictment so far as they may be made available by the Chief Prosecutors and shall be allowed to inspect copies of any such documents as are not so available.

Rule 5. Order at the Trial.

In conformity with the provisions of Article 18 of the Charter, and the disciplinary powers therein set out, the Tribunal, acting through its President, shall provide for the maintenance of order at the Trial. Any defendant or any other person may be excluded from open sessions of the Tribunal for failure to observe and respect the directives and dignity of the Tribunal.

Rule 6. Oaths; Witnesses.

(a) Before testifying before the Tribunal, each witness shall make such oath or declaration as is customary in his own country.

(b) Witnesses while not giving evidence shall not be present in court. The President of the Tribunal shall direct, as circumstances demand, that witnesses shall not confer among themselves before giving evidence.

Rule 7. Applications and Motions before Trial and Rulings during the Trial.

(a) All motions, applications or other requests addressed to the Tribunal prior to the commencement of trial shall be made in writing and filed with the General Secretary of the Tribunal at the Palace of Justice, Nuremberg, Germany.

(b) Any such motion, application or other request shall be communicated by the General Secretary of the Tribunal to the Chief Prosecutors and, if they make no objection, the President of the Tribunal may make the appropriate order on behalf of the Tribunal. If any Chief Prosecutor objects, the President may call a special session of the Tribunal for the determination of the question raised.

(c) The Tribunal, acting through its President, will rule in court upon all questions arising during the trial, such as questions as to admissibility of evidence offered during the trial, recesses, and motions; and before so ruling the Tribunal may, when necessary, order the closing or clearing of the Tribunal or take any other steps which to the Tribunal seem just.

Rule 8. Secretariat of the Tribunal.

(a) The Secretariat of the Tribunal shall be composed of a General Secretary, four Secretaries and their Assistants. The Tribunal shall appoint the General Secretary and each Member shall appoint one Secretary. The General Secretary shall appoint such clerks, interpreters, stenographers, ushers, and all such other persons as may be authorized by the Tribunal and each Secretary may appoint such assistants as may be authorized by the Member of the Tribunal by whom he was appointed.

(b) The General Secretary, in consultation with the Secretaries, shall organize and direct the work of the Secretariat, subject to the approval of the Tribunal in the event of a disagreement by any Secretary.

(c) The Secretariat shall receive all documents addressed to the Tribunal, maintain the records of the Tribunal, provide necessary clerical services to the Tribunal and its Members, and perform such other duties as may be designated by the Tribunal.

(d) Communications addressed to the Tribunal shall be delivered to the General Secretary.

Rule 9. Record, Exhibits, and Documents.

(a) A stenographic record shall be maintained of all oral proceedings. Exhibits will be suitably identified and marked with consecutive numbers. All exhibits and transcripts of the proceedings and all documents lodged with and produced to the Tribunal will be filed with the General Secretary of the Tribunal and will constitute part of the Record.

(b) The term "official documents" as used in Article 25 of the Charter includes the Indictment, rules, written motions, orders that are reduced to writing, findings, and judgments of the Tribunal. These shall be in the English, French, Russian, and German languages. Documentary evidence or exhibits may be received in the language of the document, but a translation thereof into German shall be made available to the defendants.

(c) All exhibits and transcripts of proceedings, all documents lodged with and produced to the Tribunal and all official acts and documents of the Tribunal may be certified by the General Secretary of the Tribunal to any Government or to any other tribunal or wherever it is appropriate that copies of such documents or representations as to such acts should be supplied upon a proper request.

Rule 10. Withdrawal of Exhibits and Documents.

In cases where original documents are submitted by the Prosecution or the Defense as evidence, and upon a showing (a) that because of historical interest or for any other reason one of the Governments signatory to the Four Power Agreement of 8 August 1945, or any other Government having received the consent of said four signatory Powers, desires to withdraw from the records of the Tribunal and preserve any particular original documents and (b) that no substantial injustice will result, the Tribunal shall permit photostatic copies of said original documents, certified by the General Secretary of the Tribunal, to be substituted for the originals in the records of the Court and shall deliver said original documents to the applicants.

Rule 11. Effective Date and Powers of Amendment and Addition. These Rules shall take effect upon their approval by the Tribunal. Nothing herein contained shall be construed to prevent the Tribunal from, at any time, in the interest of fair and expeditious trials, departing from, amending, or adding to these Rules, either by general rules or special orders for particular cases, in such form and upon such notice as may appear just to the Tribunal.

[xcalibur]

Thanks, DT, likewise helpful.

[White Rose]

The tribunals shall not be bound by technical rules of evidence.

Does this mean that the court could accept any evidence (obtained by torture, etc) or was this an easing of the restriction, like in the US constitution, of having to obtain search warrants and observe all of the technical nicities of a civilian court room?

[Sergey Romanov]

WR, I think both of your alternatives are actually the same - i.e. court determined what was evidence and what wasn't. If it determined that a given testimony obtained under torture was admissible, it was (not that any court would actually do it). And I think it's better than when criminals are set free just because evidence against them was obtained "improperly" (and I don't mean torture here).

[Sergey Romanov]

As was explained by Roberto Muehlenkamp, (most?) European courts don't have the technical rules of evidence, and so that was a concession, because many of the judges and all of the defense attorneys were continental Europeans not familiar with US-style technical rules of evidence, and this concession actually benefited the defence, since it could present a larger amount of evidence in favor of the defendants.

[White Rose]

[...] (most?) European courts don't have the technical rules of evidence [...] this concession actually benefited the defence, since it could present a larger amount of evidence in favor of the defendants.

Thanks for the clarification SR. I have always been puzzled by what this means exactly, and of course it is used by critics of the process to argue that the defendents got a raw deal.
I think that they did the best the could in a difficult situation, evidenced by the fact that some of the defendants were acquited when the case couldn't be proven.

[David Thompson]

White Rose -- You asked:

Does this mean that the court could accept any evidence (obtained by torture, etc) or was this an easing of the restriction, like in the US constitution, of having to obtain search warrants and observe all of the technical nicities of a civilian court room?

At the IMT trial, the NMT trials, and some of the proceedings before American military tribunals at Dachau, a number of defendants had executed affidavits (sworn written statements). When the prosecution sought to introduce the defendants' own affidavits against them as evidence, some of the defendants claimed that they had been coerced into giving those affidavits. An example would be a defendant who only signed the affidavit because a member of the war crimes investigation unit had told him if the affidavit wasn't signed, his family would be shipped to the Soviet occupation zone.

At the trial, the defense lawyer for the defendant would ask the court to suppress the affidavit in question. I have seen several examples of this while reading through these proceedings, and in every case I saw the court granted the request and refused to admit the affidavit or statement into evidence.

At the IMT proceedings, Julius Streicher complained that he had been mistreated by his American guards immediately after his capture in May, 1945. That mistreatment was not linked to any affidavit Streicher signed, however, and it is an open question whether Streicher imagined the mistreatment. I haven't heard that any other IMT defendant complained of physical mistreatment by guards in connection with an affidavit or in some other context.

The formal rules of evidence are an Anglo-Saxon concept based on old English and American common law. Other countries don't use them at all, or only use some of them. In the course of time, some of these rules of evidence became hyper-technical, and have since been abandoned or modified. For example, the best evidence rule used to require production of the original of any written document, unless witnesses could appear in court and testify that the original had been destroyed. At the various war crimes trials, the court accepted affidavits that a translation or copy of a captured document was accurate and complete, without requiring the presence of live witnesses to further authenticate the document. Today, xeroxed documents are routinely admitted into evidence, and the original document is not required unless there is a genuine question about its authenticity.

Another rule of evidence required the witness to physically appear so that he could be cross-examined. The IMT and the American war crimes tribunals did not have this requirement, so the witness's testimony could be introduced by affidavit. The defense had the right to call the affiant who had signed the affidavit, if they wished to contest its contents, and the defendants also could introduce affidavits on their own behalf, without calling the witness. Beginning in the 1980s, affidavits in lieu of certain types of testimony (like the testimony of a blood test technician in a drunk driving case or the affidavit of a property owner who resides out of state) started to be used regularly in US courts, although a US Supreme Court ruling this year has called the practice into question

Many of the technical niceties of American law today did not exist in 1945 and would not exist until the early and mid-1960s. For example, in 1945 an American defendant on trial in his own country did not have the right to a court-appointed attorney, and the idea of a Miranda warning ("You have the right to remain silent, etc.") was unheard-of. It was not rare for police to take a defendant and "slap him around" to extract a confession. A defendant had no right to demand the prosecutor turn over evidence to him, and if the defendant didn't speak English, that was just too bad.

At the war crimes proceedings, however, defendants had appointed attorneys to represent them in court, and the courts adhered to the procedure outlined above. Many of the trial practice reforms of the 1960s were anticipated by the IMT and NMT rules of procedure. My main concern with the war crimes trials is whether there was sufficient admissible evidence to support the conviction of the defendant. I think those defendants were entitled to a fair trial, but not a perfect one.

Because there are a large number of open threads on the general question of fairness at one or another of these trials, let's keep this thread on the topic of the rules of evidence. Those wishing to raise other matters can post to one of the "fairness threads" at

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http://forum.axishistory.com/viewtopic.php?t=27987
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http://forum.axishistory.com/viewtopic.php?t=25160
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http://forum.axishistory.com/viewtopic.php?t=8139
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http://forum.axishistory.com/viewtopic.php?t=23385
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http://forum.axishistory.com/viewtopic.php?t=55352
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http://forum.axishistory.com/viewtopic.php?t=24304
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http://forum.axishistory.com/viewtopic.php?t=29274
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http://forum.axishistory.com/viewtopic.php?t=21670
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http://forum.axishistory.com/viewtopic.php?t=30087
War Crimes Trials - Righteous or Bogus Victors' Justice?
http://forum.axishistory.com/viewtopic.php?t=14807
Claims of Forged, Altered or Missing Evidence
http://forum.axishistory.com/viewtopic.php?t=14260
Hearsay Evidence
http://forum.axishistory.com/viewtopic.php?t=10029