DR. KAUFFMANN: May I add a few more words to this important question? The replies which have just been given illustrate that one of the main principles of the proceedings is that the Trial should proceed speedily. That is also expressed in Article 19 of the Charter, and no one can hope more than we that this principle be followed; but it is nevertheless my opinion that another principle, the highest known to mankind, the principle of truth, should not thereby suffer. If there is a fear that truth will suffer through an over-hasty trial, then formal methods of procedure must take a secondary place. There are human principles which remain unspoken, which need not be spoken.
This spirit of truth is certainly contained in and governs Article 19; and the objections I raised to the testimony of this witness seem to me justified to such a degree that the important principle of speeding up the Trial should give way to the principle of truth. Humanity itself is in question here. We want to establish the truth for our own generation and for that of our children. But if such testimony remains untold for months, then a part of mankind might well despair of all humanity and the German people, in particular, would suffer.
DR. FRIEDRICH BERGOLD (Counsel for the Defendant Bormann): May it please the Tribunal, I should like to bring up one other point, which appears to me important, because it was apparently the real source of this discussion. According to our legal system it is the duty of the Prosecution to produce not only the incriminating evidence but also evidence for the defense of the accused. I can well understand that my colleague, Dr. Kauffmann, protests the Prosecution’s failure to mention a very important point, namely, that the German authorities indicted this inhuman SS leader and his wife and condemned them to death. It is highly probable that the Prosecution knew of this and that these horrible exhibits of perverted human nature, which were presented to us, were found in the files of the German Court.
I believe the whole discussion would not have arisen if the Prosecution had mentioned, as part of the ghastly evidence, the fact that the German authorities themselves passed judgment on this inhuman man and condemned him to death.
We find ourselves in difficulties because, in contrast to our own procedure, the Prosecution for the most part simply presents incriminating evidence but omits to present the exculpating evidence which may form part of any document or part of the testimony of a witness. If the German procedure had been followed in the present case and if the Prosecution had stated that this man was condemned to death, then in the first place, the evidence against the Defendant Kaltenbrunner would not have appeared so weighty and secondly, public opinion would, on the whole, have been left with a different impression. My colleague Kauffmann could then have limited himself to proving at a later stage of the Trial that Kaltenbrunner had, in fact, nothing at all to do with this affair; and the inhuman character of the proceedings and the dreadful impression which it made on us would have been avoided.
THE PRESIDENT: Will you explain the part of the German law to which you were referring, where you say it is the duty of the Prosecution not only to produce evidence for the Prosecution but also to produce evidence for the Defense.
DR. BERGOLD: That is a general principle of German jurisprudence, established in Paragraph 160 of the Reich Code of Penal Procedure. It is one of the basic principles of law in Germany to . . .
THE PRESIDENT: Give me that reference again.
DR. BERGOLD: Paragraph 160. German law incorporates this principle in order to enable an accused person to . . .
THE PRESIDENT: 160 of what?