14 Dec. 45

in subsequent stages of this case than it is on this particular affidavit.

There is another reason, perhaps. We have some situations in which a member of an accused organization, who is directly hostile to our position because the accusation would reach him within the accused class, has made an affidavit or affidavits which constitute admissions against interest; but on some other issue he makes statements which we believe are untrue and incredible; and we do not wish to vouch for his general credibility by calling him as a witness, but we wish to avail ourselves of his admission. Those things we think since we have to make our proof largely from enemy sources. All this proof and every witness 8 months ago were in the hands of the enemy. We have to make our proof from them. God alone knows how much proof there is in this world that we have not been able to reach. We submit that the orderly procedure here is to abide by this Charter and admit these affidavits. If they stand unquestioned at the end of the case, there is no issue about them. If they are questioned, then the weight is a matter which you would determine on final submission.

THE PRESIDENT: Mr. Justice Jackson, I have three questions I should like to ask you. The first is: Where is Pfaffenberger?

MR. JUSTICE JACKSON: That I cannot answer at the moment, but I will get an answer as quickly as I can. It is unknown to us at the moment. If we are able to ascertain, I will inform you at the conclusion of the noon recess.

THE PRESIDENT: The second point to which I wish, to draw your attention is Article 16(e) of the Charter, which contemplates cross-examination of witnesses by the defendants. The only reason why it is thought that witnesses who are available should not give evidence by affidavit is because it denies to the Defense the opportunity of cross-examining them.

MR. JUSTICE JACKSON: I think that this provision means just exactly what it says. If we call a witness, they have the right of cross-examination. If he is not called, they have the right to call him, if he is available, as their witness; but not, of course, the right of cross-examination. The provision itself, if Your Honor notices, reads that they have the right to cross-examine any witness called by the Prosecution; but that does not abrogate or affect Article 19, that we may obtain and produce any probative evidence in such manner as will expedite the Trial.

THE PRESIDENT: Then the next point to which I wish to draw your attention is Article 17(a). As I understood it, you were arguing that it was mandatory upon the Tribunal to consider any evidence which was relevant. Therefore, I draw your attention to