30 Nov. 45

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