Article 19 provides that the Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value. That was made mandatory, that it shall admit any evidence which it deems to have probative value. The purpose of that provision, Your Honors, I may say, was this: That the whole controversy in this case—and we have no doubt that there is room for controversy—should be centered upon the value of evidence and not on its admissibility.
We have no jury. There is no occasion for applying jury rules. Therefore, when a piece of evidence is offered, there are two questions which arise: Does it have probative value? If it has no probative value, then it should not encumber the records, of course. The second is, does it have relevancy? If it has not, of course it should not come in.
The evidence in question has relevance; no one questions that. No one can say that an affidavit, duly sworn, does not have some probative value. What probative value it has, the weight of it, should be determined on the submission of the case. That is to say, if a witness has made a statement in an affidavit, and it is denied by Mr. Kaltenbrunner, and you believe that the denial has weight and credibility, of course, the affidavit should not be considered in the final consideration of the case. But we are dealing here with events that took place over great periods of time and great distances. We are dealing with witnesses widely scattered and a situation where communications are almost at a standstill.
If this affidavit stands at the end of this case undenied, unchallenged, it is not, then, beyond belief that you would give it value and weight. An affidavit might bear internal evidence that it lacked credibility, such as evidence where the witness was talking of something of which he had no personal knowledge. I do not say that every affidavit that comes along has probative value just because it is sworn to. But it seems to me that if we are to make progress with this case, this simple system envisioned by this Charter, which was the subject of long consideration, must be followed; that if, when a piece of evidence is presented, even though it does not comply with technical rules governing judicial procedures, it is something which has probative value in the ordinary daily concerns of life, it should be admitted. If it stands undenied at the close of the case, as many of these things will, then, of course, there is no issue about it; and it saves the calling of witnesses, which will take an indefinite period of time as we have already seen. I may say that the testimony of the witness Lahousen, which took nearly 2 days, could have been put in, in this Court, in 15 minutes in affidavit form, and all that was essential to it could have been placed before us; and if it were to be denied you could then have determined its weight.
We want to adhere to this Charter. I submit it is no reason for deviating from the Charter that an affidavit recites horrors. I should have thought that the world could not be more shocked by recitals of horrors in affidavits than it has been in the documents that have proceeded from sources of the enemy itself. There is no reason in that for departing from the plain principles of the Charter.
I think the question of orderly procedure and the question of time are both involved in this. I think that the Tribunal should receive affidavits, and we have prepared them—we hope carefully, we hope fairly—to present a great many things that would take days and days of proof. I may say that this ruling is more important in subsequent stages of this case than it is on this particular affidavit.
There is another reason, perhaps. We have some situations in which a member of an accused organization, who is directly hostile to our position because the accusation would reach him within the accused class, has made an affidavit or affidavits which constitute admissions against interest; but on some other issue he makes statements which we believe are untrue and incredible; and we do not wish to vouch for his general credibility by calling him as a witness, but we wish to avail ourselves of his admission. Those things we think since we have to make our proof largely from enemy sources. All this proof and every witness 8 months ago were in the hands of the enemy. We have to make our proof from them. God alone knows how much proof there is in this world that we have not been able to reach. We submit that the orderly procedure here is to abide by this Charter and admit these affidavits. If they stand unquestioned at the end of the case, there is no issue about them. If they are questioned, then the weight is a matter which you would determine on final submission.
THE PRESIDENT: Mr. Justice Jackson, I have three questions I should like to ask you. The first is: Where is Pfaffenberger?
MR. JUSTICE JACKSON: That I cannot answer at the moment, but I will get an answer as quickly as I can. It is unknown to us at the moment. If we are able to ascertain, I will inform you at the conclusion of the noon recess.
THE PRESIDENT: The second point to which I wish to draw your attention is Article 16(e) of the Charter, which contemplates cross-examination of witnesses by the defendants. The only reason why it is thought that witnesses who are available should not give evidence by affidavit is because it denies to the Defense the opportunity of cross-examining them.