Chapter V: Introductory Statement on the Presentation

OF EVIDENCE MADE BY THE PROSECUTION,
10 DECEMBER 1946[13]

MR. MCHANEY: May it please the Tribunal:

Before any evidence is presented, it is my purpose to show the process whereby documents have been procured and processed in order to be presented in evidence by the United States. I shall also describe and illustrate the plan of presenting documents to be followed by the prosecution in this case.

When the United States Army entered German territory it had specialized military personnel whose duties were to capture and preserve enemy documents, records, and archives.

Such documents were assembled in temporary document centers. Later each Army established fixed document centers in the United States Zone of Occupation where their documents were assembled and the slow process of indexing and cataloging was begun. Certain of these document centers in the United States Zone of Occupation have since been closed and the documents assembled there sent to other document centers.

When the International Military Tribunal was set up, field teams under the direction of Major William H. Coogan were organized and sent out to the various document centers. Great masses of German documents and records were screened and examined. Those selected were sent to Nuernberg to be processed. These original documents were then given trial identification numbers in one of five series designated by the letters: “PS”, “L”, “R”, “C”, and “EC”, indicating the means of acquisition of the documents. Within each series, documents were listed numerically.

The prosecution in this case shall have occasion to introduce in evidence documents processed under the direction of Major Coogan. Some of these documents were introduced in evidence before the IMT and some were not. As to those which were, this Tribunal is required by Article XX of Ordinance No. 7 to take judicial notice thereof. However, in order to simplify the procedure, we will introduce photostatic copies of documents used in Case No. 1 before the IMT to which will be attached a certificate by Mr. Fred Niebergall, the Chief of our Document Control Branch, certifying that such document was introduced in evidence before the IMT and that the photostat is a true and correct copy thereof. Such documents have been and will be made available to defendants just as in the case of any other document.

As to those documents processed under the direction of Major Coogan which were not used in the case before the IMT, they are authenticated by the affidavit of Major Coogan dated 19 November 1945. This affidavit served as the basis of authentication of substantially all documents used by the Office of Chief of Counsel before the IMT. It was introduced in that trial as USA Exhibit 1. Since we will use certain documents processed for the IMT trial, I would now like to introduce as Prosecution Exhibit 1 the Coogan affidavit,[14] in order to authenticate such documents. This affidavit explains the manner in and means by which captured German documents were processed for use in war crimes trials. I shall not burden the court with reading it as it is substantially the same as the affidavit of Mr. Niebergall to which I shall come in a moment.

I have thus far explained the manner of authenticating documents to be used in this case which were processed under the direction of Major Coogan. I now come to the authentication of documents processed not for the IMT trial, but for subsequent trials such as this one. These documents are authenticated by the affidavit of Mr. Niebergall which I offer in evidence as Prosecution Exhibit 2. Since this affidavit explains the procedure of processing documents by the Office of Chief of Counsel for War Crimes, I shall read it in full:

“I, Fred Niebergall, AGO, D-150636, of the Office of Chief of
Counsel for War Crimes, do hereby certify as follows:

1. I was appointed Chief of the Document Control Branch,
Evidence Division, Office of Chief of Counsel for War Crimes
(hereinafter referred to as ‘OCC’) on 2 October 1946.

2. I have served in the U. S. Army for more than 5 years, being
discharged as a 1st Lieutenant, Infantry, on 29 October 1946. I
am now a Reserve officer with the rank of 1st Lieutenant in the
Army of the United States of America. Based upon my experience
as a United States Army officer, I am familiar with the
operation of the United States Army in connection with seizing
and processing captured enemy documents. I served as Chief of
Translations for OCC from 29 July 1945 until December 1945, when
I was appointed liaison officer between Defense Counsel and
Translation Division of OCC as assistant to the executive
officer of the Translation Division. In my capacity as Chief of
the Document Control Branch, Evidence Division, OCC, I am
familiar with the processing, filing, translation, and
photostating of documentary evidence for the United States Chief
of Counsel.

3. As the Army overran German occupied territory and then
Germany itself, certain specialized personnel seized enemy
documents, records and archives. Such documents were assembled
in temporary centers. Later fixed document centers were
established in Germany and Austria where these documents were
assembled and the slow process of indexing and cataloging was
begun. Certain of these document centers have since been closed
and the documents assembled there sent to other document
centers.

4. In preparing for the trial before the International Military
Tribunal (hereinafter referred to as ‘IMT’) a great number of
original documents, photostats, and microfilms were collected at
Nuernberg, Germany. Major Coogan’s affidavit of 19 November 1945
describes the procedures followed. Upon my appointment as Chief
of the Document Control Branch, Evidence Division, OCC, I
received custody, in the course of official business, of all
these documents except the ones which were introduced into
evidence in the IMT trial and are now in the IMT Document Room
in Nuernberg. Same have been screened, processed, and registered
in accordance with Major Coogan’s affidavit. The unregistered
documents remaining have been screened, processed, and
registered for use in trials before Military Tribunals
substantially in the same way as described below.

5. In preparing for trials subsequent to the IMT trial personnel
thoroughly conversant with the German language were given the
task of searching for and selecting captured enemy documents
which disclosed information relating to the prosecution of Axis
war criminals. Lawyers and research analysts were placed on duty
at various document centers and also dispatched on individual
missions to obtain original documents or certified photostats
thereof. The documents were screened by German speaking analysts
to determine whether or not they might be valuable as evidence.
Photostatic copies were then made of the original documents and
the original documents returned to the files in the document
centers. These photostatic copies were certified by the analysts
to be true and correct copies of the original documents.
German-speaking analysts either at the document center or in
Nuernberg, then prepared a summary of the document with
appropriate references to personalities involved, index
headings, information as to the source of the document, and the
importance of the documents to a particular division of OCC.

6. Next, the original document or certified photostatic copy was
forwarded to the Document Control Branch, Evidence Division,
OCC. Upon receipt of these documents, they were duly recorded
and indexed and given identification numbers in one of six
series designated by the letters ‘NO,’ ‘NI,’ ‘NM,’ ‘NOKW,’ ‘NG,’
and ‘NP,’ indicating the particular Division of OCC which might
be most interested in the individual documents. Within each
series documents were listed numerically.

7. In the case of the receipt of original documents, photostatic
copies were made. Upon return from the photostat room, the
original documents were placed in envelopes in fireproof safes
in the document room. In the case of the receipt of certified
photostatic copies of documents, the certified photostatic
copies were treated in the same manner as original documents.

8. All original documents or certified photostatic copies
treated as originals are now located in safes in the document
room, where they will be secured until they are presented by the
prosecution to a court during the progress of a trial.

9. Therefore, I certify in my official capacity as hereinabove
stated, that all documentary evidence relied upon by OCC is in
the same condition as when captured by military forces under the
command of the Supreme Commander, Allied Expeditionary Forces;
that they have been translated by competent qualified
translators; that all photostatic copies are true and correct
copies of the originals, and that they have been correctly
filed, numbered, and processed as above outlined.

[Signed] FRED NIEBERGALL.”

The Niebergall affidavit is in substance the same as the Coogan affidavit which was accepted by the International Military Tribunal as sufficient authentication of documents used in Case No. 1. However, in addition to these affidavits, the prosecution in this case will attach to each document submitted in evidence, other than self-proving documents such as affidavits signed by the defendants, a certificate signed by an employee of the Evidence Division of the Office of Chief of Counsel for War Crimes, reading, for example, as follows:

“I, Donald Spencer, of the Evidence Division of the Office of
Chief of Counsel for War Crimes, hereby certify that the
attached document, consisting of one photostated page and
entitled, ‘Letter from John Doe to Richard Rod, dated 19 June
1943,’ is the original of a document which was delivered to me
in my above capacity, in the usual course of official business,
as a true copy of a document found in German archives, records,
and files captured by military forces under the command of the
Supreme Commander, Allied Expeditionary Forces.

“To the best of my knowledge, information, and belief, the
original document is at the Berlin Document Center.”

So much for the authentication of documents to be presented in this trial. I turn now briefly to the distribution of documents which we will use. The prosecution made available to the Defendants’ Information Center approximately a week ago three photostatic copies of the great bulk of the documents which will be used in our case-in-chief. These documents are of course in German. In addition, the prosecution has prepared document books in both German and English which contain, for the most part, mimeographed copies of the documents, arranged substantially in the order in which they will be presented in this court. Each document book contains an index giving the document number, description, and page number. A space is also provided for writing in the index number.

Twelve official copies of the German document books will be filed in the Defendants’ Information Center at least 24 hours prior to the time that particular material will be introduced in court. In addition, defense counsel will receive seven so-called unofficial German document books, which will contain mimeographed copies prepared primarily for the German Press. Six official copies of the German document books will be presented to the Tribunal—one for each of the Justices on the bench and one for the Secretary General. Two of such document books will contain photostatic copies in order that the Tribunal may from time to time refer to the original. Document books will also be made available to the German interpreters and court reporters.

The English document books will contain certified translations of the documents in the German document books. The documents will be numbered and indexed identically in both the English and German versions. The Defendants’ Information Center will receive four copies of the English document books at the same time the corresponding German document book is delivered. A representative group of the defense attorneys have agreed that four of the English document books are sufficient to meet their needs.

The Tribunal will receive six English document books and sufficient copies will also be made available to the interpreters and court reporters. Copies of all documents introduced in evidence will thereafter be made available to the press.

The prosecution will sometimes have occasion to use documents which have just been discovered and are not in document books. In such cases we will try to have copies in the Defendants’ Information Center a reasonable time in advance of their use in court. Now, I must point out to your Honors, and I do so without any embarrassment, that there will surely be some instances during the course of this trial when the prosecution fails to comply with one or the other of the court’s rulings in view of the fact that few of our personnel here were able to obtain experience and training in the technicalities in the course of Case No. 1 before the International Military Tribunal, but be that as it may, we shall constantly endeavor to present our case as fairly, as clearly, and as expeditiously as is humanly possible.

The prosecution, when presenting a document in Court, will physically hand the original, or the certified photostatic copy serving as the original, to the clerk of the Tribunal, and give the document a prosecution exhibit number.

In the IMT trial, the usual practice, to which there were many exceptions, was that only those documents or portions of documents which had been read aloud in Court were considered to be in evidence and part of the record. Now this was due to the fact that the IMT trial was conducted in four languages and only through that method were translations in all four languages ordinarily available. However, the IMT ruled several times, for example on 17 December 1945, that documents which had been translated into all four languages and made available to defense counsel in the Defendants’ Information Center were admissible in evidence without being read in full.

The prosecution believed that, under the circumstances of this trial, which will be conducted in German and English only, and with all the prosecution’s documents translated into German, it will be both expeditious and fair to dispense with the reading in full of all documents or portions of documents. The prosecution will read some documents in full, particularly in the early stages of the trial, but will endeavor to expedite matters by summarizing documents when possible, or otherwise calling the attention of the Tribunal to such passages therein as are deemed important and relevant.

With respect to the order of trial, the prosecution intends to follow, to a large degree, the order in which the various experiments are set forth in the indictment. There will be some exceptions to that; for instance, we will present the sea-water experiments, the proof of sea-water experiments following the malaria experiments, which will be third in order, and in time we will move to the proof of reading the Lost gas experiments because of the overlapping of the testimony of certain witnesses. Insofar as possible, we will endeavor to present all of the evidence relating to a particular experiment at the same time. This will be impossible, of course, where the testimony of a witness overlaps several experiments.

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[13] Tr. pp. 75-83.

[14] Trial of the Major War Criminals, vol. II, pp. 157-160, Nuremberg, 1947.