"The Einsatzgruppen Case"


Case No. 9

Objections of the Defense against the Introduction of Einsatzgruppen Reports as Documentary Evidence on 29 September 1947 *

DR. ASCHENAUER (defense counsel for defendant Ohlendorf) : I object against the submission of the Document NO-4134. This document contains obvious errors. On page 31 of the German document book it says, "Situation Report U.S.S.R. No. 126, dated 29 October 1941." On page 36 of this copy, German document book, I find the following: "Situation report, U.S.S.R. No. 126, 27th October 1941. " On the same page, the following text is to be found: "The positions and news communications of daily re- port No. 110, 22 October 1941, remain unchanged." "Daily" report is evidently confused with "situation" report. Then the numbers 110 and 126 are not correct. It is also completely out of the question that from 22 October to 27 October, 16 situation reports or daily reports should be made out and passed on. Here there are obvious mistakes and I therefore ask that this document be refused.

MR. FERENCZ: As I understand the objection, your Honor, it is either a poor translation whereby something was translated as "daily report" instead of "operational report " or there is a number on the report which confuses the defense counsel. In the absence of a showing here of exactly what the defense counsel is talking about, I don't feel competent to comment on the particular objection. However, as a general matter, if there is such an error, I will certainly be glad to correct it. I am certain that there must be several errors in the presentation as we will give it. If there is anything more than purely formal objection, I wish the defense counsel would make that clear.

*Tr. pp. 78 - 81.

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PRESIDING JUDGE MUSMANNO: Dr. Aschenauer, is the docu ment, as you read it, at least clear as to intent, and you find objection only to some detail which perhaps later can be straightened out?

DR. ASCHENAUER: No, your Honor, I have the original in front of me now and here there are no typographical errors and this is not a matter of typographical errors nor of details. My objection refers to the probative value of the document. First of all, in the operational report 126, there are two different dates given. One date, 29 October 1941, on the first page of the document. In one of the further pages, the date 27 October 1941.

PRESIDING JUDGE MUSMANNO: Are you reading now from the original? That is, the photostat?

DR. ASCHENAUER: No, this is the original document which the prosecution is offering.

PRESIDING JUDGE MUSMANNO: Well, that's what I say. You are reading now from the original?


PRESIDING JUDGE MUSMANNO: And the objections, I take it, are to the original document and not to the translation?

DR. ASCHENAUER: Yes, that's right. And if I say "operational report" is confused with "daily report " or "situation report", then it's completely out of the question that the number 110 is correct.

PRESIDING JUDGE MUSMANNO: Well, if you have no objection to the translation itself, then we don't see how your objection to the original can have any value, because the prosecution submits it as it is and if it is defective in any way then, of course, it's to your advantage that it's defective and, at the proper time, you will point that out in argument to the Tribunal when the issue must be decided. So, therefore, it does not go to the authen- ticity nor to the relevancy of the document. It's up to the prosecution to determine whether they wish to present in evidence a document which may be defective.

DR. BERGOLD (defense counsel for defendant Biberstein) : I believe my colleague would have to object to something else. It isn't really the actual original, but the photostat of the original and, namely, that copy which the prosecution is submitting as evidence to the Tribunal. The objection of my colleague could, if I understand him correctly, mean that this is something which is not authentic and which perhaps, at the first look, might look like a forgery. Therefore, it seems necessary that the prosecution in this case does not submit the photostat, but the originals, so that it can be objected to or not.

PRESIDING JUDGE MUSMANNO: Well, the photostat is always taken at its face value unless it can be shown that there was some

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mechanical difficulty in the actual photographing of the document. Do I understand you to say, Dr. Bergold, that you insist on the presentation of the original report itself, and how would that help you any more than the photograph would?

DR. BERGOLD: No, the photostat isn't always the same. Sometimes one can see, by looking at an original, that, for example, different kinds of paper were used so that the original might be composed of different reports. Or that various typewriter ribbons were used. But you can only see that by looking at the original. The photostat does not show these color differences nor does it show the differences in the quality of paper.

PRESIDING JUDGE MUSMANNO: Well, Mr. Ferenez, what have you to say to this? MR. FERENCZ: Your Honor, there are two different objections to this document. The first objection made is that document which we have offered as a photostat of the original has, on the first page, the date 29 October 1941, whereas, on one of the pages next to the end, it has the date 27 October 1941. It seems quite im- material to me whether the date was 29 October or 27 October. We have offered the document for a completely different purpose.

The second objection, if that is what there is on the document, as you pointed out, is a matter which will be seen by the Court and which will be given weight in judging the probative value of this particular exhibit. The second objection made, however, is that this photostat copy may not be a true copy of the original. Either because-

Pardon me, I'd understood it as being an objection that there may have been some error in copying the original. However, I see that defense counsel does not agree with me.

PRESIDING JUDGE MUSMANNO: Well, Dr. Bergold, just what is your objection? The Tribunal had also understood it that way.

DR. BERGOLD: No, I merely say that the photostat is surely correct, but sometimes one can only judge a doubtful document if one looks at the original and sees if the original in itself is a closed document or doesn't consist of several reports. The photostat is, of course, always correct. The photostat is unimpeachable. My request is merely to submit the original. Then we can decide whether we can maintain the objection or not.

MR. FERENCZ: I would like to point out that the certificate which goes with every exhibit certifies that it is a true photostatic copy of the original. In most other cases it has not been necessary to present the original. However, in order that these defendants are convinced that they have been given every oppor- tunity, I have had the originals brought here from Berlin. They are available in my office and defense counsel are welcome, at any

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time, to compare the photostatic copy with the original and I will be very glad to correct any errors.

PRESIDING JUDGE MUSMANNO: Very well. That answers it very completely.

DR. BERGOLD: I thank the prosecution for their coopperation.

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Trials of War Criminals Before the Nurenberg Military Tribunals Under Control Council Law No. 10, Volume IV, Washington, D.C.: U.S. Government Printing Office. pp. 100 - 105

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Electric Zen
Ken Lewis
November 29, 1998
Rev. 1.0