DR. DIX: I should be grateful to the Tribunal if I might just state my position—not as regards the case of Ribbentrop, with whom I am not concerned; my colleague, Dr. Horn, is dealing with him—but simply on principle, not exclusively from the Defense point of view, but quite objectively and basically in regard to the various problems which the Tribunal must consider before making their decision as to the admissibility of any piece of evidence—either in the form of a question put to a witness or a document to be submitted.
I am not asking for permission to talk for the sake of talking, but because I believe that by doing so I can shorten the later stages of the proceedings; because I hope that the Tribunal will be in agreement with the main points of my statements and that therefore it will be unnecessary for the Defense to make these statements at a later stage.
I have naturally to leave it entirely to the Tribunal whether they consider it now the appropriate time or whether I shall do it only after my colleague Horn has finished with his documentary evidence. At any case I should like to make the statements before the Tribunal have ruled upon the applications of the Prosecution and of Dr. Horn.
I should like to ask Your Lordship whether the Tribunal will allow me now to make clear, as shortly as possible, the position I take up in principle on the questions which I consider of vital importance for the decision. May I do this?
THE PRESIDENT: Yes.
DR. DIX: I believe, without wishing to criticize the juridical value of the statements which we have heard here, that there has been some confusion of ideas. We must keep the distinction quite clear in our minds: 1. Is an item of evidence—and that applies to witnesses as well as documents—relevant? 2. Is an item of evidence useful as such? 3. Is an item of evidence cumulative and therefore to be rejected?
If the Tribunal rule that something offered in evidence is not relevant, not useful, or cumulative, then it must refuse the application for it at this stage of the proceedings. On the other hand, the question of the credibility of something offered in evidence—that is, whether the answer of a witness is to be believed or not, whether the contents of a document may be considered credible, whether expositions set forth in a White Book, for instance, are to be believed or not believed—that, in my opinion, is a question which can be decided only when the evidence in question has been brought into the proceedings and the Tribunal have taken judicial notice of it and are able, when freely evaluating the evidence—a course which is open to the Tribunal—to pass judgment on its credibility or otherwise. For that reason I think that at the present moment there seems to be no reason for saying, for instance that this document cannot be used at all because it is part of a White Book published by the German Government. No one will deny that a White Book, that is, a publication, an official publication, issued by any government, can as such be useful and relevant evidence. Whether the passage read and introduced into the proceedings is such that the Tribunal can give it credence is a question that can be decided after the evidence in connection with the White Book has been introduced into the proceedings, and the Tribunal have taken official notice of the passage in question.
Now, I turn to the question of relevancy and effectiveness. The representative of the British Prosecution has stated here that the reports sent by the German ambassadors to their Foreign Minister are, per se, not useful. At least, that is the way I understood him. They will be admitted only if the Prosecution wishes to use them. In other words, they are to be admitted only if the Prosecution, wishes to use them to the detriment of the defendants. I do not think that this point of view can be maintained. The representative of the British Delegation cited Article 21 of the Charter in this connection. Article 21 of the Charter has nothing whatsoever to do with this question. Article 21 of the Charter merely states, so far as I remember it—I do not have the Charter on hand but I believe I know the contents of it very well—that documents referring to the investigation by the governments of the victorious powers of war crimes committed in their own countries do not have to be read, but may merely be submitted to the Tribunal for judicial notice. This question however has nothing whatsoever to do with the question of the usefulness or relevancy of a report submitted at any time by a German ambassador to his Foreign Office. Whether this report has been admitted, or is to be admitted, can be decided according to whether the Tribunal consider as relevant the subject which it concerns and which it is to prove—if the fact which is to be proved by it is considered relevant by the Tribunal and is adequately established by one or both parties. Then, in my opinion, this ambassador’s report should be admitted; and after its admission the Tribunal can, by freely weighing the evidence, consider the value of the evidence, that is, its credibility, and moreover its objective as well as its subjective credibility. So much for the clear-cut differentiation of the concepts of relevancy and usefulness and for the concept of the value of evidence, that is, the objective and subjective credibility of evidence.
Now, with regard to the question of whether evidence is cumulative. It is certain that every jurist in this courtroom agrees that cumulative evidence should not be admitted; but the question of whether evidence is cumulative may in no circumstances be judged formally, so to speak, mechanically. I can well imagine that a question with the same wording as one that has already been put, need not necessarily be cumulative, for reasons which I will enumerate in a moment and that a question which in form does not resemble one already put, may nevertheless be cumulative because it requires an answer from the witness regarding the same evidence, but expressed in different words. The fact that a question may be identical in wording with one which has already been put does not necessarily mean that it is cumulative as shown by the old proverb Si duo faciunt idem non est idem. If, for instance, I ask a witness who bears the stamp of a fanatical adherent of the Nazi regime for his subjective impression of something and then put the same question on the same impression to a witness who is known to be a fanatical opponent of the Nazi regime, then these two questions are certainly not cumulative, for it is of paramount importance, if the Tribunal is to be in a position to form an opinion and make a decision, to find out whether an impression is registered in the same way by two worlds, so to speak—by two diametrically opposed persons. Therefore one has to take the witness into consideration in judging whether a question is cumulative or not. A further example of the fact that a question which is exactly similar to one previously put need not be cumulative would be, for instance, if I put the question to the defendant and then to a witness who is not interested. In saying this I wish in no way to disparage the evidence given by the defendant under oath. That is far from being my intention. In principle, the testimony of both the witnesses is alike. There is, however, a great difference. In order not to take too long I will cite only one example—whether when investigating some phase of the defendant’s inner life about which he himself is best informed, I question a witness who had an impression of this incident concerning the defendant, or whether I question the defendant himself for whom this inner impression is a part of the psychological background of his deed.
I should like to stop at this point, in order not to take up too much of the Tribunal’s time with theoretical expositions. My intention in making this statement was only to request the high Tribunal in making their decision, I repeat in regard to relevancy and usefulness, to make a clear distinction in the question of the value to be attached to subjective evidence, which should be decided after its admission, and to ask the Tribunal, when considering whether evidence is cumulative, not to be guided solely by the outward form of the question or the document but to investigate whether it would not be in the interest of truth and give a deeper insight into the case to put the same question to different people, or to have the same question confirmed, or not confirmed, by written statements by different people.