The present Rules of Procedure of the Military Tribunal constituted by General Order No. 68 of the Office of Military Government for Germany (US) hereinafter called "Military Tribunal _____ " or "the Tribunal" are hereby promulgated by the Tribunal in accordance with the provision of Article V (f) of Military Government Ordinance No. 7 issued pursuant to the powers conferred by Control Council Law No. 10.
When any rule of procedure adopted by Military Tribunal directs or requires that a defendant in any position before the Tribunal shall be furnished with a copy of any pleading, document, rule, or other instrument in writing, such rule shall be understood to mean that such defendant shall receive a true and correct copy of such pleading, document, rule, or other instrument, written in the English language, and also a written translation thereof in a language which the defendant understands.
(a) The Marshal of Military Tribunals, or his duly authorized deputy, shall make service of the indictment upon a defendant in any prosecution before the Tribunal by delivering to and leaving with him, (1) a true and correct copy of the indictment and of all documents lodged with the indictment, (2) a copy of Military Government Ordinance No. 7, (3) a copy of Control Council Law No. 10, and (4) a copy of these Rules of Procedure.
(b) When such service has been made as aforesaid, the Marshal shall make a written certificate of such fact, showing the day and place of service, and shall file the same with the Secretary General of Military Tribunals.
(c) The certificate, when filed with the Secretary General, shall constitute a part of the record of the cause.
A period of not less than thirty days shall intervene between the service of the indictment upon a defendant and the day of his trial pursuant to the indictment.
(a) If before the trial of any defendant the Chief of Counsel for War Crimes orders amendments or additions to the indictment, such amendments or additions, including any accompanying documents, shall be filed with the Secretary General of Military Tribunals and served upon such defendant in like manner as the original indictment.
(a) A defendant shall receive a copy of such Rules of Procedure or amendments thereto as may be adopted by the Tribunal from time to time.
(b) Upon written application by a defendant or his counsel, lodged with the Secretary General for a copy of (1) the Charter of the International Military Tribunal annexed to the London Agreement of 8 August 1945, or (2) the judgment of the International Military Tribunal of 30 September and 1 October 1946, the same shall be furnished to such defendant, without delay.
(a) A defendant shall have the right to conduct his own defense, or to be represented by counsel of his own selection, provided such counsel is a person qualified under existing regulations to conduct cases before the courts of defendant's country, or is specially authorized by the Tribunal.
(b) Application for particular counsel shall be filed with the Secretary General promptly after service of the indictment upon the defendant.
(c) The Tribunal will designate counsel for any defendant who fails to apply for particular counsel, unless the defendant elects in writing to conduct his own defense.
(d) Where particular counsel is requested by a defendant but is not available or cannot be found within ten days after application therefor has been filed with the Secretary General, the Tribunal will designate counsel for such defendant, unless the defendant elects in writing to conduct his own defense. If thereafter, before trial, such particular counsel is found and is available, or if in the meanwhile a defendant selects a substitute counsel who is found to be available, such particular counsel, or substitute, may be associated with or substituted for counsel designated by the Tribunal; provided that (1) only one counsel shall be permitted appear at the trial for any defendant, except by special permission of the Tribunal, and (2) no delay will be allowed for making such substitution or association.
In conformity with and pursuant to the provisions of Articles IV and VI of Military Government Ordinance No. 7, the Tribunal will provide for maintenance of order at the trial.
(a) Before testifying before the Tribunal each witness shall take such oath or affirmation or make such declaration as is customary and lawful in his own country.
(b) When not testifying, the witness shall be excluded from the courtroom. During the course of any trial, witnesses shall not confer among themselves before or after testifying.
(a) All motions, applications (except applications for witnesses and documents), and other requests addressed to the Tribunal shall be filed with the Secretary General of Military Tribunals, at the Palace of Justice, Nuernberg, Germany.
(b) When any such motion, application or other request is filed by the prosecution there shall be filed therewith five copies in English and two copies in German; when filed by the defense there shall be filed therewith one copy in German to which shall be added by the Secretary General eight copies in English.
(c) The Secretary General shall deliver a translated copy of such motion, application or other request to the adverse party and note the fact of delivery, specifying the date, hour and place, upon the original. The adverse party shall have 72 hours after delivery to file with the Secretary General his objections to the granting of such motion, application or other request. If no objection is filed, the Presiding Judge of the Tribunal will make the appropriate order on behalf of the Tribunal. If objections are filed, the Tribunal will consider the objections and determine the questions raised.
(d) Delivery of a copy of any such motion, application or other request to counsel of record for the adverse party shall constitute delivery to such adverse party.
The Tribunal will rule upon all questions arising during the course of the trial. If such course is deemed expedient, the Tribunal will order the clearing or closing of the courtroom while considering such questions.
(a) A defendant may apply to the Tribunal for the production of witnesses or of documents on his behalf, by filing his application therefor with the Secretary General of Military Tribunals. Such application shall state where the witness or document is thought to be located, together with the last known location thereof. Such application shall also state the general nature of the evidence sought to be adduced thereby, and the reason such evidence is deemed relevant to the defendant's case.
(b) The Secretary General shall promptly submit any such application to the Tribunal, and the Tribunal will determine whether or not the application shall be granted.
(c) If the application is granted by the Tribunal, the Secretary General shall promptly issue a summons for the attendance of such witness or the production of such documents, and inform the Tribunal of the action taken. Such summons shall be served in such manner as may be provided by the appropriate occupation authorities to insure its enforcement, and the Secretary General shall inform the Tribunal of the steps taken.
(d) If the witness or the document is not within the area controlled by the United States Office of Military Government for Germany, the Tribunal will request through proper channels that the Allied Control Council arrange for the production of any such witness or document as the Tribunal may deem necessary to the proper presentation of the defense.
(a) An accurate stenographic record of all oral proceeding shall be maintained. Exhibits shall be suitably identified and marked as the Tribunal may direct. All exhibits and transcripts of the proceedings, and such other material as the Tribunal may direct, shall be filed with the Secretary General and shall constitute a part of the record of the cause.
(b) Documentary evidence or exhibits may be received in the language of the document, but a translation thereof into a language understood by the adverse party shall be furnished to such party.
(c) Upon proper request, and approval by the Tribunal, copies of all exhibits and transcripts of proceedings, and such other matter as the Tribunal may direct to be filed with the Secretary General, and all official acts and documents of the Tribunal, may be certified by said Secretary General to any government, to another tribunal, or to any agency or person as to whom it is appropriate that copies of such documents or representations as to such acts be supplied.
If it be made to appear to the Tribunal by written application that one of the government signatories to the Four Power Agreement of 8 August 1945, or any other government having received the consent of the said four Signatory Powers, desires to withdraw from the records of any cause, and preserve, any original document on file with the Tribunal, and that no substantial injury will result thereby, the Tribunal may order any such original document to be delivered to the applicant, and a photostatic copy thereof, certified by the Secretary General, to be substituted in the record therefor.
The prosecution may be allowed, for the purpose of making the opening statement, time not to exceed one trial day. The Chief Prosecutor may allocate this time between himself and any of his assistants as he may wish.
When the prosecution rests its case, defense counsel will be allotted two trial days within which to make their opening statement which will comprehend the entire theory of their respective defenses. The time allotted will be divided between defense counsel as they may themselves agree. In the event that defense counsel cannot agree, the Tribunal will allot the time not to exceed 30 minutes to each defendant.
The prosecution, not less than 24 hours before it desires to offer any record, document, or other writing in evidence as part of its case in chief, shall file with the Defendants' Information Center not less than one copy of each record, document, or writing for each of the counsel for defendants, such copy to be in the German language. The prosecution shall also deliver to Defendants' Information Center at least four copies thereof in the English language.
When the prosecution or any defendant offers a record, document, or other writing or a copy thereof in evidence, there shall be delivered to the Secretary General, in addition to the original of the document or other instrument in writing so offered for admission in evidence, six copies of the document. If the document is written or printed in a language other than the English language, there shall also be filed with the copies of the document above referred to, six copies of an English translation of the document. If such document is offered by any defendant, suitable facilities for procuring English translations of that document shall be made available to the defendant.
At least 24 hours before a witness is called to the stand either by the prosecution or by any defendant, the party who desires the testimony of the witness shall deliver to the Secretary General an original and six copies of a memorandum which shall disclose: (a) the name of the witness; (b) his nationality; (c) his residence or station; (d) his official rank or position; (e) whether he is called as an expert witness or as witness to testify to the facts, and if the latter, a brief statement of the subject matter concerning which the witness will be interrogated. When the prosecution prepares such a statement in connection with a witness whom it desires to call, at the time of the filing of the foregoing statement two additional copies thereof shall be delivered to the Defendants' Information Center. When a defendant prepares the foregoing statement concerning a witness whom he desires to call, the defendant shall, at the same time the copies are filed with the Secretary General deliver one additional copy to the prosecution.
When either the prosecution or a defendant desires the Tribunal to take judicial notice of any official government document or report to the United Nations, including any act, ruling, or regulation of any committee, board, or council heretofore established by or in the Allied nations for the investigation of war crimes, or any record made by, or finding of, any military or other Tribunal of any of the United Nations, this Tribunal may refuse to take judicial notice of such document, rule, or regulation unless the party proposing to ask this Tribunal to judicially notice such a document, rule, or regulation, places a copy thereof in writing before the Tribunal.
Statements of witnesses made "in lieu of an oath" may be admitted in evidence if otherwise competent and admissible and containing statements having probative value if the following conditions are met:
(1) The witness shall have signed the statement before defense counsel, or one of them, and defense counsel shall have certified thereof; or
(2) The witness shall have signed the statement before notary, and the notary shall have certified thereto; or
(3) The witness shall have signed the statement before a buergermeister, and the buergermeister shall have certified thereto, in case neither defense counsel nor a notary is readily available without great inconvenience; or
(4) The witness shall have signed the statement before a competent prison camp authority, and such authority shall have certified thereto in case the witness is incarcerated in a prison camp.
(5) The statement "in lieu of an oath" shall contain a preamble which shall state, "I, (name and address of the witness) after having first been warned that I will be liable for punishment for making a false statement in lieu of an oath, state and declare that misstatement is true in lieu of an oath, and that my statement is made for submission as evidence before Military Tribunal _______ Palace of Justice, Nuernberg, Germany, the following:
(6) The signature of the witness shall be followed by a certificate stating: "The above signature of (stating the name and address of the witness) identified by (state the name of the identifying person or officer) is hereby certified and witnessed by me (To be followed by the date and place of the execution of the statement and the signature and witness of the person or officer certifying the same.) "
If special circumstances make compliance with any one of the above conditions impossible or unduly burdensome, then defense counsel may make application to the Tribunal for a special order providing for the taking of the statement of desired witness concerning conditions to be complied with in that specific instance.
In all cases where persons are detained in the Nuernberg jail either as witnesses or prospective witnesses, and counsel for the prosecution or the defense wish to interview or interrogate such witnesses, the following procedure shall be followed:
(1) Counsel desiring such interview or interrogation shall give at least 48 hours' notice in writing to the opposite side, stating the title of the case, the name of the witness, and the date and hour of the proposed interview or interrogation and no more. The proposed interview shall not involve compensation for overtime. Prosecution shall give notice by filing such notice with the Defense Center. Defense counsel shall file such notice with Defense Center which shall give notice to the division of the prosecution concerned.
(2) In case the prosecution wishes to interview or interrogate such witness, counsel for the defendant or defendants involved shall have the right to be present. In case a defense counsel wishes to interview or interrogate such a witness, a representative of the prosecution shall be entitled to be present, but if the prosecution does not elect to be present at the time requested then the defense counsel may interview the witness without the presence of a representative of the prosecution.
(3) Defense Information Center shall have the right to make rules or regulations not inconsistent herewith for the purpose of facilitating the operations of this rule. Written copies of such rules or regulations shall be served on the prosecution and posted in Defense Information Center.
(4) Original Rule 23 and Rule 23 as amended on 3 June 1947 are superseded hereby.
(5) This rule shall be effective on and after the 14th day of January 1948.
These Rules shall take effect upon their approval by the Tribunal. Nothing herein contained shall be construed to prevent the Tribunal at any time in the interest of fair and expeditious procedure, from departing from, amending or adding to these rules, either by general rules or special orders for particular cases, in such form and on such notice as the Tribunal may prescribe.
It is ordered that the foregoing rules be entered in the journal of this Tribunal and that mimeographed copies be prepared sufficient in number for the use of the Tribunal and counsel.
At no time shall defense counsel represent defendants, who have pleaded to the indictments, in more than two cases which are being tried concurrently in separate Tribunals. It is permissible, however, for the counsel to represent two or more defendants in the same case.
No adjournment or delay shall be granted any defendant upon the ground that his counsel is engaged in the trial of another case before a separate Tribunal.
In no event shall a defense attorney receive as compensation for his services in one or more cases an amount in excess of 7,000 reichsmarks per month.
(1) Official Record, Tribunal Records, volume 4, pages 66-76. Return to the Text
(2) On three different occasions the Secretary General of the Military Tribunals published and circulated, in mimeographed form, "Uniform Rules of Procedure" (see sec. IV A). The first edition, entitled "Uniform Rules of Procedure, Military Tribunals, Nuernberg, revised to 1 April 1947" was identical in test with the "Rules of Procedure for Military Tribunal I," as codified on 18 February 1947 (sec. III F), except that it likewise included Rule 26 (sec. IV C). The second edition, entitled "Uniform Rules of Procedure, Military Tribunals, Nuernberg, Revised 3 June 1947," was the same as the first edition except that it incorporated Rule 23 as revised by an executive cession of Military Tribunals I, II, III, and IV on 3 June 1947 (sec. IV D).
The third edition, reproduced here, was the same as the second edition, except that it incorporated a revision of Rule 10 and a further revision of Rule 23 which meanwhile had been adopted by the Committee of Presiding Judges (see secs. IV E and IV F respectively). Return to the Text
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Source: Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 Vol XV. Procedure, Practice and Administration Washington, DC : Government Printing Office, 1946-1949 |