“If the Defense wish to put interrogatories to the witness, they will be at liberty to do so.”
Now in the afternoon of that day, when Schuschnigg’s affidavit came up . . .
THE PRESIDENT: Which day was this?
MAJOR BARRINGTON: This was the 28th of November, My Lord. It is on Page 473 (Volume II, Page 352) of the transcript, the Messersmith affidavit; and Page 523 (Volume II, Page 384) is the Schuschnigg affidavit.
Now, when the objection was taken to the Schuschnigg affidavit, the objection was put in these words:
“Today when the resolution was announced in respect of the use to be made of the written affidavit of Mr. Messersmith, the Court was of the opinion that in a case of very great importance possibly it would take a different view of the matter.”—And then defense counsel went on to say—“As it is a case of such an important witness, the principle of direct evidence must be adhered to.”
THE PRESIDENT: Have you a reference to a subsequent occasion on which we heard Mr. Justice Jackson upon this subject, when Mr. Justice Jackson submitted to us that on the strict interpretation of Article 19 we were bound to admit any evidence which we deemed to have probative value?
MAJOR BARRINGTON: My Lord, I haven’t got that reference.
THE PRESIDENT: Why don’t you call this witness?
MAJOR BARRINGTON: I say, quite frankly—and I was coming on to that—this witness is in a position of being an alleged co-conspirator, and I do not make any secret of the fact that for obvious reasons the Prosecution would not desire to call him as a witness, and I put this affidavit forward as an admission by a co-conspirator. I admit that it is not an admission made in pursuance of the conspiracy, but I submit that by technical rules of evidence, this affidavit may be accepted in evidence as an admission by a co-conspirator; and as I said before, there will be no objection to administering interrogatories on the subject matter of this affidavit, and indeed, the witness would be available to be called as a defense witness if required.