In view of the fact that the defendant Gebhardt did not himself select the experimental subjects and that, on the other hand, no complaints of any kind on the part of the experimental subjects were ever reported to him,—the defendant Fischer was not in a position to make any personal observations along these lines either—we now must examine the question of the legal position of the defendant Gebhardt if he erroneously assumed the consent of the experimental subjects.
In criminal law it is a generally recognized principle that there can be no question of intentional action if there existed an erroneous assumption of justificatory facts. This principle can also be found in Article 59 of the German Penal Code.[[13]] But beyond that, this legal principle may be considered one of the principles which is generally valid and which is derived from the general principles of the criminal law of all civilized nations, thus representing an inherent part of our modern conception of criminal law. In application of this principle—and even if the Court does not consider the consent of the experimental subjects as proved and, therefore, does not provide the prerequisites for a legal excuse for objective reasons—we still cannot assume an intentional act on the part of the defendant Gebhardt if he acted under the “erroneous assumption of consent by the experimental subjects.”
The Erroneous Assumption of Probable Agreement
The same applies if the defendant Gebhardt erroneously assumed a probable consent of the experimental subjects. We do not mean here an erroneous assumption with regard to the legal suppositions of such a one, but the erroneous assumption of such facts, which, had they existed, would have induced the Tribunal to recognize the “probable consent.” I am referring here to my argumentation for the legal excuse represented by the “probable consent,” which I understand as “an objective opinion concerning the law, based on probability and according to which the person concerned would have consented to the act from his own personal standpoint, if he had been fully aware of the circumstances.” Provided that the defendant Dr. Gebhardt assumed the existence of such circumstances which seems certain according to the evidence, and even if he did so erroneously, the intent and thus the crime in this case would also be excluded according to the generally acknowledged principle.
d. Evidence
| Testimony | |
| Page | |
| Extract from the testimony of defendant Mrugowsky | [56] |
| Extract from the testimony of prosecution expert witness Dr. Andrew C. Ivy | [60] |
EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[[14]]
DIRECT EXAMINATION