30 Nov. 45

to Count One, which is the Count that has been solely discussed up to the present date.

DR. NELTE: Do you mean, Mr. President, that in order to enable the Defense to cross-examine the witness, there will be a recess after the interrogation by the Prosecution during which Counsel may discuss the questions with their clients? The witness Lahousen, as far as I recall, has never until now been mentioned by the Prosecution.

THE PRESIDENT: Is that all you have to say?


THE PRESIDENT: I think the Tribunal would like to hear Counsel for the United States upon the agreement which counsel for the Defendant Keitel alleges, namely, an agreement that what was to be discussed on the following day should be communicated to defendants' counsel beforehand.

MR. JUSTICE JACKSON: I know of no agreement to informed defendants' counsel of any witness, nor of his testimony; nor would I want to make such. There are security reasons involved in disclosing to Defense Counsel the names of witnesses, which I don't need to enlarge upon, I am quite sure.

We did advise them that they would be given information as to the documentary matters, and I think that has been kept.

As to witnesses, however, a matter of policy arises. These witnesses are not always prisoners. They have to be treated in somewhat different fashion than prisoners; and the protection of their security is a very important consideration where we are trying this case, in the very hotbed of the Nazi organization with which some of Defense Counsel were identified.

THE PRESIDENT: I think, Mr. Justice Jackson, that that is sufficient. If you tell the Tribunal that there was no such agreement, the Tribunal will, of course, accept that.

MR. JUSTICE JACKSON: I know of nothing of that character, relating to witnesses. That does apply to documents.

We find it very difficult to know just the meaning of the ruling which the Court has just announced. Count One of the Indictment is a conspiracy count, covering the entire substantive part of the Indictment. There are problems, of course, of overlapping, which I had supposed had been worked out between the prosecutors until this morning. It is impossible, trying a conspiracy case, to keep from mentioning the fact that the act, which was the object of the conspiracy, was performed. In fact, that is a part of the evidence of the conspiracy.