“Psychologically, Hess is in a state of clear consciousness; knows that he is in prison at Nuremberg, under indictment as a war criminal; has read, and, according to his own words, is acquainted with the charges against him. He answers questions rapidly and to the point. His speech is coherent, his thoughts formed with precision and correctness and they are accompanied by sufficient emotionally expressive movements. Also, there is no kind of evidence of paralogism.
“It should also be noted here, that the present psychological examination, which was conducted by Lieutenant Gilbert, Ph. D., bears out the testimony, that the intelligence of Hess is normal and in some instances, above the average. His movements are natural and not forced.”
Now, if I may come to the next report, I am sorry—the report which is signed by the three Soviet doctors and Professor Delay of Paris, dated the 16th, which is the last in my bundle, that says in Paragraph 3:
“At present, he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defense and to understand details of the past, which would appear as factual data.”
I refer, without quoting, because I do not consider that they are of such importance on this point, to the explanation of the kind and reason of the amnesia which appeared in the Soviet report, dated 17 November, under the numbers 1, 2, and 3 at the end of the report. But I remind the Tribunal that all these reports unite in saying that there is no form of insanity.
In these circumstances, the question in English law—and I respectfully submit that to the consideration of the Tribunal as being representative of natural justice in this regard—is, in deciding whether the defendant is fit to plead, whether the defendant be insane or not, and the time which is relevant for the deciding of that issue is at the date of the arraignment and not at any prior time.
Different views have been expressed as to the party on whom the onus of proof lies in that issue, but the later, and logically the better view, is that the onus is on the Defense, because it is always presumed that a person is sane until the contrary is proved.
Now, if I might refer the Court to one case which I suspect, if I may so use my mind, has not been absent from the Court’s mind, because of the wording of the notice which we are discussing today, it is the case of Pritchard in 7 Carrington and Pike, which is referred to in Archibolds’ Criminal Pleading in the 1943 edition, at Page 147.
In Pritchard’s case, where a prisoner arraigned on an indictment for felony appeared to be deaf, dumb, and also of non-sane mind, Baron Alderson put three distinct issues to the jury, directing the jury to be sworn separately on each: Whether the prisoner was mute of malice, or by the visitation of God; (2) whether he was able to plead; (3) whether he was sane or not. And on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense, to challenge a juror, that is, a member of the jury, to whom he might wish to object and to understand the details of the evidence; and he directed the jury that if there was no certain mode of communicating to the prisoner the details of the evidence so that he could clearly understand them, and be able properly to make his defense to the charge against him, the jury ought to find that he was not of sane mind.
I submit to the Tribunal that the words there quoted, “to comprehend the course of the proceedings of the trial so as to make a proper defense,” emphasize that the material time, the only time which should be considered, is whether at the moment of plea and of trial the defendant understands what is charged against him and the evidence by which it is supported.