Chapter XXIII: Part 23

“It should also be noted here, that the present psychological
examination, which was conducted by Lieutenant Gilbert, Ph. D.,
bears out the testimony, that the intelligence of Hess is normal
and in some instances, above the average. His movements are
natural and not forced.”

Now, if I may come to the next report, I am sorry—the report which is signed by the three Soviet doctors and Professor Delay of Paris, dated the 16th, which is the last in my bundle, that says in Paragraph 3:

“At present, he is not insane in the strict sense of the word.
His amnesia does not prevent him completely from understanding
what is going on around him, but it will interfere with his
ability to conduct his defense and to understand details of the
past, which would appear as factual data.”

I refer, without quoting, because I do not consider that they are of such importance on this point, to the explanation of the kind and reason of the amnesia which appeared in the Soviet report, dated 17 November, under the numbers 1, 2, and 3 at the end of the report. But I remind the Tribunal that all these reports unite in saying that there is no form of insanity.

In these circumstances, the question in English law—and I respectfully submit that to the consideration of the Tribunal as being representative of natural justice in this regard—is, in deciding whether the defendant is fit to plead, whether the defendant be insane or not, and the time which is relevant for the deciding of that issue is at the date of the arraignment and not at any prior time.

Different views have been expressed as to the party on whom the onus of proof lies in that issue, but the later, and logically the better view, is that the onus is on the Defense, because it is always presumed that a person is sane until the contrary is proved.

Now, if I might refer the Court to one case which I suspect, if I may so use my mind, has not been absent from the Court’s mind, because of the wording of the notice which we are discussing today, it is the case of Pritchard in 7 Carrington and Pike, which is referred to in Archibolds’ _Criminal Pleading_ in the 1943 edition, at Page 147.

In Pritchard’s case, where a prisoner arraigned on an indictment for felony appeared to be deaf, dumb, and also of non-sane mind, Baron Alderson put three distinct issues to the jury, directing the jury to be sworn separately on each: Whether the prisoner was mute of malice, or by the visitation of God; (2) whether he was able to plead; (3) whether he was sane or not. And on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense, to challenge a juror, that is, a member of the jury, to whom he might wish to object and to understand the details of the evidence; and he directed the jury that if there was no certain mode of communicating to the prisoner the details of the evidence so that he could clearly understand them, and be able properly to make his defense to the charge against him, the jury ought to find that he was not of sane mind.

I submit to the Tribunal that the words there quoted, “to comprehend the course of the proceedings of the trial so as to make a proper defense,” emphasize that the material time, the only time which should be considered, is whether at the moment of plea and of trial the defendant understands what is charged against him and the evidence by which it is supported.

THE PRESIDENT: And does not relate to his memory at that time.

SIR DAVID MAXWELL-FYFE: That is, I respectfully agree with Your Lordship, it does not relate to his memory. It has never, in English jurisprudence, to my knowledge, been held to be a bar either to trial or punishment, that a person who comprehends the charge and the evidence has not got a memory as to what happened at the time. That, of course, is entirely a different question which does not arise either on these reports or on this application as to what was the defendant’s state of mind when the acts were committed. No one here suggests that the defendant’s state of mind when the action charged was committed was abnormal, and it does not come into this case.

THE PRESIDENT: He will, it seems to me, be able to put forward his amnesia as part of his defense.

SIR DAVID MAXWELL-FYFE: Certainly, My Lord.

THE PRESIDENT: And to say, “I should have been able to make a better defense if I had been able to remember what took place at the time.”

SIR DAVID MAXWELL-FYFE: Yes, My Lord. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, “Because of the accident my memory is not good or fails as to the acts charged.” That should not, and no one has ever suggested that it could, be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.

THE TRIBUNAL (Mr. Biddle): Sir David, so I can understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defense, is it not?

SIR DAVID MAXWELL-FYFE: With the greatest respect, you have got to read that with the preceding words, which limit it. They say, “Whether a prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense.”

THE TRIBUNAL: (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defense under the procedure of the trial if you also find as a fact, which you, I think, do not dispute, and which you quoted in fact, that although not insane—now I quote that he did not understand, or rather:

“His amnesia does not prevent him completely from understanding
what is going on around him, but it will interfere with his
ability to conduct his defense, and understand details of the
past. . . .”

You don’t think that is inconsistent with that finding?

SIR DAVID MAXWELL-FYFE: No, I am submitting it is not. It is part of his defense, and it may well be, “I don’t remember anything about that at all.” And he could actually add to that, “From my general behavior or from other acts which I undoubtedly have done, it is extremely unlikely that I should do it.” That is the defense which is left to him. And he must take that defense. That is my submission.

THE TRIBUNAL (Mr. Biddle): So even if we assume, for the purpose of argument, that his amnesia is complete, and that he remembers nothing that occurred before the indictment though now understanding the proceedings, you think he should be tried?

SIR DAVID MAXWELL-FYFE: I submit he should be tried. That is my submission as to the legal position. I especially didn’t discuss, of course, as the Tribunal will appreciate—I didn’t discuss the quantum of amnesia here because I am putting that to the Tribunal. I wanted to put before the Tribunal the legal basis on which this application is opposed. Therefore I accept readily the extreme case which the learned American judge has put to me.

THE PRESIDENT: M. Donnedieu de Vabres would like to ask a question.

THE TRIBUNAL (M. De Vabres): I would like to know in what period the real amnesia of Hess applies. He pretends to have forgotten facts which occurred more than 15 days ago. It may be simulation or, as they say in the report, it may be real simulation. I would like to know if according to the reports Hess has really lost his memory of facts which are referred to in the Indictment, facts which pertain to the past covered by the Indictment.

SIR DAVID MAXWELL-FYFE: The facts which are included in the Indictment, the explanation that the doctors give as to his amnesia, is most clearly set out in these paragraphs of the Soviet report. That is the third report dated the 17th of November 1945, Page 2, and the numbered paragraphs 1 to 3. They say first:

“In the psychological personality of Hess there are no changes
typical of the progressive schizophrenic disease”—that is,
there are no changes typical of a progressive double personality
developing.—“and therefore, the delusions, from which he
suffered periodically while in England, cannot be considered as
manifestations of a schizophrenic paranoia, and must be
recognized as the expression of a psychogenic paranoic reaction,
that is, the psychologically comprehensible reaction”—now I ask
the learned French judge to note the next sentence—“of an
unstable personality to the situation (the failure of his
mission, arrest, and incarceration). Such is the interpretation
of the delirious statements of Hess in England as is bespoken by
their disappearance, appearance, and repeated disappearance
depending on external circumstances which affected the mental
state of Hess.”

Paragraph 2:

“The loss of memory by Hess is not the result of some kind of
mental disease but represents hysterical amnesia, the basis of
which is a subconscious inclination towards self-defense”—now I
ask the learned French judge to note again the next words—“as
well as a deliberate and conscious tendency towards it. Such
behavior often terminates when the hysterical person is faced
with an unavoidable necessity of conducting himself correctly.
Therefore the amnesia of Hess may end upon his being brought to
trial.”

Paragraph 3:

“Rudolf Hess, prior to his flight to England, did not suffer
from any kind of insanity, nor is he now suffering from it. At
the present time he exhibits hysterical behavior with signs
of”—and again I ask the learned French judge to note this
point—“with signs of a conscious-intentional (simulated)
character, which does not exonerate him from his responsibility
under the Indictment.”

The last sentence is a matter for the Tribunal. But in these circumstances it would be impossible to say that the amnesia may continue to be complete or is entirely unconscious. That is deliberately avoided by the learned doctors. Therefore the Prosecution do not say that that is the case, but they do say that even if it were complete, the legal basis which I have suggested to the Court is a correct one for action in this matter.

THE PRESIDENT: Thank you, Sir David. Would Dr. Rohrscheidt like to add anything by way of reply? One moment. Mr. Justice Jackson, I gathered from what Sir David said that he was speaking on behalf of you and of the French Prosecution, is that correct?

MR. JUSTICE JACKSON: I intend to adopt all that he said. I would only add a few more words, if I may.

THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has something to say first of all.

MR. JUSTICE JACKSON: I adopt all that has been said, and will not repeat. We have three applications before the Tribunal. One is for another examination. I will spend very little time on that. I think that we have made, up to this point with this examination, medical history in having seven psychiatrists from five nations who are completely in agreement. An achievement of that kind is not likely to be risked.

The only reason suggested here is that a relatively short time has been devoted to the examination, but I suggest to Your Honors that that is not the situation, because there have been available the examinations and observations and medical history during the incarceration of Hess in England, extending from 1941, and the reports of the psychiatrists of the American forces since he was brought to Nuremberg, and they all agree. So that there is a more complete medical history in this case than in most cases.

The next application was as to trial in absentia. I shall spend no time on that, for there seems to be no occasion for trying Hess _in absentia_ if he shouldn’t be tried in his presence. If he is unable to be tried, why, he simply shouldn’t be tried at all. That is all I can see to it.

I would like to call your attention to the one thing in all this, the one statement on which any case can be made here for postponement. That is the statement with which we all agree: That Hess’ condition will interfere with his response to questions relating to his past and will interfere with his undertaking his defense. Now, I think it will interfere with his defense if he persists in it, and I am sure that counsel has a very difficult task. But Hess has refused the treatment, and I have filed with the court the report of Major Kelly, the American psychiatrist, in whose care he was placed immediately after he was brought here.

He has refused every simple treatment that has been suggested. He has refused to submit to the ordinary things that we submit to every day—blood tests, examinations—and says he will submit to nothing until after the trial. The medication which was suggested to bring him out of this hysterical situation—every psychiatrist agrees that this is simply an hysterical situation if it is genuine at all—was the use of intravenous drugs of the barbital series, either sodium amytal or sodium phenotal, the ordinary sort of sedative that you perhaps take on a sleepless night. We did not dare administer that, to be perfectly candid, against his objection, because we felt if that, however harmless—and in over a thousand cases observed by Major Kelly there have been no ill effects although some cases are reported where there have—we felt that if should he be struck by lightning a month afterward it would still be charged that something that we had done had caused his death; and we did not desire to impose any such treatment upon him.

But I respectfully suggest that a man cannot stand at the bar of the Court and assert that his amnesia is a defense to his being tried, and at the same time refuse the simple medical expedients which all agree might be useful.

He is in the volunteer class with his amnesia. When he was in England, as the reports show, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, and went back into it. It is now highly selective. That is to say, you can’t be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete blotting out of the personality, of the type that would be fatal to his defense.

So we feel that so long as Hess refuses the ordinary, simple expedients, even if his amnesia is genuine, that he is not in a position to continue to assert that he must not be brought to trial. We think he should be tried, not in absentia, but that this trial should proceed.

THE TRIBUNAL (Mr. Biddle): Isn’t Hess asserting that he wants to be tried?

MR. JUSTICE JACKSON: Well, I don’t know about that. He has been interrogated and interrogated by us, interrogated by his co-defendants, and I wouldn’t attempt to say what he would now say he wants. I haven’t observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I wouldn’t attempt to speak for him.

THE PRESIDENT: Does M. Dubost wish to add anything?

[_M. Dubost indicated that he did not._]

DR. VON ROHRSCHEIDT: May I just say a few words to the Tribunal to explain my point of view once more?

Firstly, it is a fact that the Defendant Hess, according to the unanimous reports of the doctors, is not insane, that his mental faculties are not impaired.

Secondly, as all reports agree, the Defendant Hess is suffering from amnesia. The reports vary on whether this amnesia is founded on a pathological, a psychogenic, or hysterical basis, but they agree that it exists as an unsound mental condition. The defendant is therefore, not insane, but has a mental defect. Legally, therefore, he cannot claim that he is not to be held responsible for his actions; for at the time when the actions with which he is charged were committed, he was certainly not insane, and consequently can be held responsible. It is a different question, however, at least according to German law, whether the defendant is at this moment in a position to follow the proceedings of a trial, that is, whether he is fit to plead. And on the basis of the medical reports which I quoted, I think this question should be answered negatively. He is not fit to plead.

I admit that doubts are possible, that the Tribunal may have doubts whether the answers of the experts are sufficient to establish that the defendant’s ability to plead is actually impaired, that he cannot, as the Tribunal perhaps deliberately phrased it, defend himself adequately. I think that perhaps the emphasis should be on this last point. It is my opinion that the amnesia—this loss of memory confirmed by all experts—is such that the defendant is unable to make an adequate defense. It may be, of course, that he can defend himself on one point or another, that he can raise objections on some points, and that he may be able to follow the proceedings as such. But his defense could not be termed adequate in the sense in which the defense of a person in full possession of his mental faculties would be adequate.

May I add one word. I already mentioned that the defendant told me that he would like to attend the proceedings, as he does not consider himself unfit to plead, but that, in the opinion of the Defense, is quite irrelevant. It is a question which the Tribunal must examine, and in which the personal opinion of the defendant is of no account.

With regard to the conclusion which the American prosecutor draws from the defendant’s refusal to undergo the narco-synthesis treatment suggested by the doctors—that _is_ not a question of truculence. He refused it only because, as he assured me, he was afraid that the intravenous injections at this particular moment might incapacitate him in his weakened condition and make it impossible for him to follow the proceedings; he wants, however, to attend the trial. He refused also because, as I have already mentioned, he himself thinks that he is sound and therefore says, “I do not need any intravenous injections, I shall recover in the course of time.” The defendant also told me that he has an abhorrence of such treatments. I know that to be true, because in the unhappy times of the National Socialist regime, he was always in favor of natural remedies. He even founded the Rudolf Hess Hospital in Dresden, which uses natural and not medical remedies.

MR. JUSTICE JACKSON: May I make one observation, Your Honors?

THE PRESIDENT: Yes.

MR. JUSTICE JACKSON: The argument illustrates the selectivity of the memory of which I spoke to you. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad. I hope that the Court has not overlooked the statement of the matters that he does well recollect.

DR. VON ROHRSCHEIDT: May I make a correction?

THE PRESIDENT: It is unusual to hear counsel in a second reply, but as Mr. Justice Jackson has spoken again we will hear what you have to say.

DR. VON ROHRSCHEIDT: I merely want to say that I was misunderstood. It was not the defendant who told me that he always favored natural remedies; I said that from my own knowledge. I said it from my own experience to show that he has an instinctive aversion for medical interference. My remark was not based on the memory of the defendant, but on knowledge of my own.

THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if you consider it proper, that the Defendant Hess should state what his views on this question are.

DR. VON ROHRSCHEIDT: As his defense counsel, I have certainly no objection, and in my opinion it is the defendant’s own wish to be heard. The Tribunal would then be able to gain a personal impression of his condition.

THE PRESIDENT: He can state whether he considers himself fit to plead from where he is.

HESS: Mr. President, I would like to say this. At the beginning of the proceedings this afternoon I gave my defense counsel a note saying that I thought the proceedings could be shortened if I would be allowed to speak. I wish to say the following:

In order to forestall the possibility of my being pronounced incapable of pleading, in spite of my willingness to take part in the proceedings and to hear the verdict alongside my comrades, I would like to make the following declaration before the Tribunal, although, originally, I intended to make it during a later stage of the trial:

Henceforth my memory will again respond to the outside world. The reasons for simulating loss of memory were of a tactical nature. Only my ability to concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to defend myself, to put questions to witnesses, or to answer questions myself is not affected thereby.

I emphasize that I bear full responsibility for everything that I did, signed or co-signed. My fundamental attitude that the Tribunal is not competent, is not affected by the statement I have just made. I also simulated loss of memory in consultations with my officially appointed defense counsel. He has, therefore, represented it in good faith.

THE PRESIDENT: The trial is adjourned.

[_The Tribunal adjourned until 1 December 1945 at 1000 hours._]

TRANSCRIBER NOTES

Punctuation and spelling has been maintained except where obvious printer errors have occurred such as missing periods or commas for periods. English and American spellings occur throughout the document depending on the author. Multiple occurrences of the following spellings which differ and are found throughout this volume are as follows:

cooperate co-operate
coordidnated co-ordinated
gas wagons gas-wagons
peace time peacetime
Ausland Abwehr Ausland-Abwehr
Governor General Governor-General

Although some sentences may appear to have incorrect spellings or verb tenses, the original text has been maintained as it represents what the tribunal read into the record and reflects the actual translations between the German, English, Russian and French documents presented in the trial(s).

An attempt has been made to produce this ebook in a format as close as possible to the original document's presentation and layout.

[The end of _Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg 14 November 1945-1 October 1946 (Vol. 2)_, by Various.]