To ask us to prove individual knowledge or to ask us to accept the man’s own statement of his state of mind is to say that there can be no convictions, of course. It seems to me that the scale of this crime and the universality of it, going on all over Germany, concentration camps dotting the landscape, and the vast population, is sufficient to charge with knowledge the principal organizations of the Nazi Party which were responsible for those things. The test that I think applies as to knowledge is not what some member now on the witness stand may say he knew or did not know; but what, in the light of the conditions of the times, he ought to have known—what he is chargeable with.
THE TRIBUNAL (Mr. Biddle): Wouldn’t it follow from that that there was no taking of any evidence on what was generally known?
MR. JUSTICE JACKSON: Well, I think the proof of what was going on establishes the point as to chargeability with knowledge.
THE TRIBUNAL (Mr. Biddle): Do you claim that the defendants should not be permitted to give any evidence as to that which was generally known with respect to what was going on?
MR. JUSTICE JACKSON: To what was generally known, I do not think the defendant’s denial that he knew what was going on has any materiality.
THE TRIBUNAL (Mr. Biddle): That was not my question. My question was whether a witness could be permitted to testify that the acts of the particular organizations were not generally known to its members. Would you exclude that evidence?
MR. JUSTICE JACKSON: I certainly would, and if I heard it I would not believe it; but perhaps my . . .
THE TRIBUNAL (Mr. Biddle): Excuse me. Although on your test of knowledge, you wouldn’t permit the defendants to meet that test?
MR. JUSTICE JACKSON: I should say that that is just exactly the situation, that the Court would take judicial notice, from the evidence that is in, that this was a thing that must have been known in Germany; and I would not think that it would be permissible for a citizen of the United States to testify that he did not know the United States was at war, a fact of which he is chargeable with knowledge; and it seems to me that the magnitude of these things is so equally established and the repeated daily connection between the organizations and this criminal program is so equally clear.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I only have two or three more questions. One is directed to the General Staff. Does the particular date when an individual accused—I beg your pardon—when an individual assumed one of the commands listed in Appendix B of the Indictment have any bearing on whether he is a member of the organization? Now, I am going to bring that question down to the General Staff.