On the morning of 20 March 1946 the British Deputy Chief Prosecutor, a forty-five-year-old Scottish KC named David Maxwell Fyfe, rose to his feet in Courtroom 600 of the Justizpalast and asked Hermann Göring his first question. The Reichsmarschall had just spent two days under cross-examination by Robert Jackson, the American Chief of Counsel. Most observers in the courtroom and in the press gallery had concluded that Göring had got the better of the exchange. Jackson, accustomed to a different courtroom culture, had let Göring give long answers, had been unable to interrupt them, and had ended his cross with the most powerful defendant in the dock visibly emboldened. Maxwell Fyfe was about to demonstrate, in a single morning’s work, what a different style of advocacy could do to the same witness.
The technique Maxwell Fyfe used had been developed at the English bar over a generation. It was the technique of Norman Birkett, of Patrick Hastings, of Edward Marshall Hall: short questions, only one fact at a time, no opportunities for narrative, the document produced at the moment the witness’s evasion required it. Maxwell Fyfe had thirty-two volumes of captured documents at his table and an extraordinarily prepared set of cross-references between them. He opened by handing Göring a 1939 memorandum of a conversation between Göring and the British ambassador Nevile Henderson. He asked Göring whether he had told Henderson that the German army would not be ready for war until 1942. Göring agreed he had. Maxwell Fyfe then handed him a document of the same week in which Göring had told the Nazi leadership exactly the opposite. There was a long pause. Maxwell Fyfe asked the next question.
The Stalag Luft III exchange
The exchange that has been replayed in every law school study of cross-examination came on the second day, when Maxwell Fyfe took Göring through the murder of fifty escaped British and Commonwealth airmen who had broken out of Stalag Luft III at Sagan in March 1944. The Gestapo had hunted them down and shot them on Hitler’s order, with Göring’s department, the Luftwaffe, certifying the killings as deaths during attempts to escape. Göring had been the senior airman in the Reich; the murdered men had been air force prisoners. Maxwell Fyfe began with the question:
You realised, did you not, that the killing of captured prisoners of war contrary to the Geneva Convention was murder?
Göring conceded the point. Maxwell Fyfe then produced the Luftwaffe’s own correspondence on the case, including a letter that had circulated among Göring’s senior staff while Göring was at his Carinhall hunting estate. Göring had earlier said in answer to Jackson that he had not been informed of the killings. Maxwell Fyfe handed him the letter and asked whether his name appeared on the distribution list. Göring acknowledged that it did. Maxwell Fyfe then handed him a second letter, dated three days later, with Göring’s own pencilled annotations on it. Göring acknowledged the annotations were in his hand. Maxwell Fyfe then asked the question that has been quoted ever since:
I suggest to you, witness, that nobody in his senses would believe for a moment that you, with all your prestige and your power as the head of the German Luftwaffe, would have allowed the cold-blooded murder of fifty officers of your own service to pass over without any disciplinary action whatever, unless you were yourself privy to the killing.
Göring tried three different answers. None of them held. By the end of the morning he had effectively admitted his complicity in the killings. The journalist Rebecca West, covering the trial for the New Yorker, wrote that Maxwell Fyfe’s cross-examination of Göring was the moment the trial recovered its moral footing. The Manchester Guardian’s correspondent reported that Göring had visibly aged in the witness box. The shift in the press tone toward Göring from that day forward was permanent.
Other defendants
Maxwell Fyfe cross-examined eight further defendants over the months that followed. The most damaging of these was the cross-examination of Joachim von Ribbentrop, the foreign minister, on 1 and 2 April 1946. Ribbentrop, who had a poor memory and a pretentious manner, was led through the diplomatic record of the regime’s aggression. Maxwell Fyfe produced a document in which Ribbentrop had told the Romanian foreign minister Mihai Antonescu in October 1942 that the elimination of the Jews of Europe was a precondition of peace. Ribbentrop denied the document. Maxwell Fyfe handed him the original, in his own hand. Ribbentrop attempted to argue that the word he had used did not mean what it appeared to mean. Maxwell Fyfe asked him whether he was familiar with the German language. The bench laughed.
His cross-examination of Albert Speer was different in tone. Speer had decided early in his imprisonment to acknowledge the regime’s crimes in general terms, accept what he called collective responsibility for them, and present himself as a technocrat who had served his country and lost his moral way. Maxwell Fyfe did not have a witness fighting him. He had a witness performing remorse. The result was a more conversational examination over which Maxwell Fyfe gradually drew out the documents on Speer’s actual operations, particularly the slave-labour programme. Speer’s life was saved by his calculation of when to concede; his testimony nevertheless did extensive damage to the cases of Sauckel, Funk and others who had not made his calculation.
What Maxwell Fyfe brought
The prosecution at Nuremberg had four national delegations and four chief counsel. Jackson was the senior figure; the case had been mainly American policy and largely American documents. What the British team brought, beyond their share of the workload, was a particular forensic style, and Maxwell Fyfe was its principal exponent. Where the American style was rhetorical and document-loading, the British style was conversational, slow and deadly. Jackson himself acknowledged the contrast in private correspondence after the trial, telling Justice Frankfurter that watching Maxwell Fyfe at work had been the best advocacy lesson of his career.
Maxwell Fyfe served as the deputy leader of the British team under Sir Hartley Shawcross, the Attorney General. Shawcross delivered the British opening and closing speeches; Maxwell Fyfe ran the courtroom day to day. He worked with a small staff including Mervyn Griffith-Jones, who would later prosecute the Lady Chatterley obscenity case at the Old Bailey. He produced the British prosecution’s daily strategy memos, which survive in the Foreign Office files at Kew. He prepared, on his own responsibility, the document books that drove each cross-examination.
Afterwards
Maxwell Fyfe returned to British politics in the autumn of 1946. He served as Home Secretary from 1951 to 1954 in Churchill’s second administration, then as Lord Chancellor from 1954 to 1962 under the title Viscount Kilmuir. His Home Secretary years were not his best moment; he authorised the executions of Derek Bentley and Ruth Ellis under circumstances that have been criticised since. As Lord Chancellor he was instrumental in drafting the European Convention on Human Rights, an irony given his Home Office record but a continuation of the work he had done at Nuremberg on the legal protection of individuals against state action. He died in January 1967 at the age of sixty-six.
The forty-two volumes of the Nuremberg transcripts contain his cross-examinations. Law schools use them. The Inner Temple, where Maxwell Fyfe had been called to the bar in 1922, holds a complete set in his memory. His work on Göring is on the shelves of every major international criminal advocacy programme in the world as the model of what a prepared cross-examination can do. The trial would have produced its convictions without him. It would not have produced the moral demolition of the senior defendant that historians and lawyers have been studying ever since. That was Maxwell Fyfe’s contribution. It is a substantial one.
See also
Sources
- International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal, vol IX (Göring cross-examination), Nuremberg, 1947
- David Maxwell Fyfe, Earl of Kilmuir, Political Adventure: The Memoirs of the Earl of Kilmuir, Weidenfeld and Nicolson, 1964
- Rebecca West, A Train of Powder, Macmillan, 1955
- Bradley F. Smith, Reaching Judgment at Nuremberg, Basic Books, 1977
- Ann Tusa and John Tusa, The Nuremberg Trial, Macmillan, 1983
- Joseph E. Persico, Nuremberg: Infamy on Trial, Viking, 1994