Cross examination



Early on in my exploration of the papers of David Maxwell Fyfe  I considered what I should do with such a dramatic bequest.


Notes, speeches and other documents look like a book.


However, letters only look like a book. They are, in fact, a form of conversation.  This conversation is not just a series of monologue responses between a  couple. In the case of a loving couple it is the conversation of the mind that exists even when they are separated. This became clear to me as I organised the letters from Nuremberg chronologically as they were written.


This conversation was taking place against a backdrop of extraordinary events, but the events were never more real than the presence of the loved one. To me this suggested a dramatisation, which considered the events through the intimate eyes.


To create Making History I traced the principal themes of the letters, paring down to two:  the progress of the tribunal, and the pathway of their relationship through the year as it impacted on the case.


I cannot think of a better way to illustrate the impact of Maxwell Fyfe’s cross-examination of Hermann Goering than the reproduction of the scene from Making History. This weaves the correspondence between David and Sylvia Maxwell Fyfe with extracts of  cross-examination, first Maxwell Fyfe with Kesselring, then Robert Jackson with Goering and finally Goering and Maxwell Fyfe.


Observing are two journalists, Genet from the New Yorker and Guy Ramsay from the Daily Mail. Genet was the pen name of Janet Flanner, an American writer and journalist who served as the Paris correspondent of The New Yorker magazine from 1925 until she retired in 1975.


There are a number of explanations offered for Jackson’s failure to get to grips with Goering. Having sat on the US Supreme Court for some time, he had not had the practice that his fellow prosecutors benefited from. And there were issues regarding his health.


As this extract illustrates, however, the US case sought to prove conspiracy, and Goering felt comfortable that conspiracy was a very vague term, and that he would not describe the ruling hierarchy of Germany as a conspiracy, but rather a form of government.


On the other hand Maxwell Fyfe’s cross-examination about the shootings of the escaped airmen (the basis for the film The Great Escape) show that Goering did consider this to be a ‘serious matter.’ Goering was head of the German Air force (the Luftwaffe). He would have been appalled and furious if his young pilots had been shot in cold blood while escaping. Prisoners of war were expected to attempt to escape.


Goering is therefore trying to prove that he did not know about the incident. Maxwell Fyfe courteously proves that he did in fact know, and had fallen short of standards that he would have acknowledged and followed before the outbreak of war.  Part of the success of Fyfe’s cross-examination lay in reminding the Nazis that they had failed themselves.




DMF I had my first bit of cross-examination to-day – Goering’s witness, Field Marshal Kesselring. You remember

              Civitella? You remember what was done with Civitella by your forces, do you not?


KESSELRING:     At the moment, no.


DMF Well, just let me remind you what was done at Civitella - that was on the 18th of June, one day after your order.


             "Two German soldiers were killed and a third wounded in a fight with partisans in the village of Civitella. Fearing

              reprisals, the inhabitants evacuated the village, but when the Germans discovered this, punitive action was

              postponed.  On June 29"


               -  that, you will remember, Witness, was 9 days after your proclamation to reinforce your order


              "when the local inhabitants were returned and when feeling secure once more, the Germans carried out a well-

              organised reprisal, combing the neighbourhood.  Innocent inhabitants were often shot on sight.  During that day

              212 men, women, and children in the immediate district were killed.  Some of the dead women were found

              completely naked.  In the course of investigations, a nominal roll of the dead has been compiled and is complete

              with the exception of a few names whose bodies could not be identified.  Ages of the dead ranged from 1 year to

              84 years. Approximately one hundred houses were destroyed by fire. Some of the victims were burned alive in

              their homes."


              That is the report of the United Nations War Crimes Commission on the incident. Now, Witness, do you really think

              that military necessity commands the killing of babies of 1 and people of 84?


Kesselring : No.


DMF (from the prosecutors table) Everyone was frightfully nice about it.  In my own view - after being unnecessarily

              het up about it, afraid I should not come off - I did rather knock Hell out of a conceited German Marshal.  I do not

              suppose it will get much press, as the space will be devoted to Goering going into the box.


Goering (at the defendants stand) Conspiracy may be variously interpreted.  Conspiracies naturally never took place in the

               sense that men secretly came together and discussed extensive plans in darkness and seclusion.  As to

               conspiracy in the sense that the Fuehrer had comprehensive conferences and as a result of these conferences

               decided upon joint undertakings, one can only talk of conspiracy here to the extent, and I beg of you again not to

              misunderstand me - that this took place between the Fuehrer and me until, say, 1941.


DMF Actually he, Goering, was extremely clever - very calm, factual and a little dull.  Jackson is going to start his



Genet Genet for the New Yorker…by wireless… On a recent visit to Nuremberg, a noted lawyer optimistically wrote to a

               colleague, “I expect you feel, as I do, that the first really great and dramatic moment of this trial will come when

               Goering is cross-examined by the American prosecutor Jackson.  It will be a duel to the death between the

               representative of all that is worthwhile in civilisation and the last important surviving protagonist of all that was



Jackson (at the stand)  I can only repeat my question, which I submit you have not answered.  Did you at that time see any

               military necessary for an attack by Germany on Soviet Russia?




Jackson I have understood from your testimony - and I think you can answer this "yes" or "no," and I would greatly

               appreciate it if you would - I have understood from your testimony that you were opposed, and told the Fuehrer

               that you were opposed, to an attack upon Russia at that time. Am I right or wrong?


DMF The oddity about his attempts so far is that they have no form and no follow up, but a wealth of carefully prepared



Jackson If you would answer three or four questions for me "yes" or "no," then I would be quite willing to let you give your

               entire version of this thing.


Genet In a sense the whole result of the trial depends on the outcome of this duel, and whilst the world could see the

               importance of the decisive battles fought out between the armed forces arrayed against each other, I hope they

               may see the immense importance of the decisive battle of ideas to be fought out that day in the courtroom.  It will

               colour this trial from now on and it may well colour the thoughts of men for generations to come.


DMF Curiously enough for the effete Old Country I get the impression that I have been brought up in a much harder and

               tougher school.  One up for Uncle Starkey!


Jackson I am now moving that this witness be instructed that he must answer my questions "yes" or "no" if they permit an

               answer, and that the explanation be brought out by his counsel in a fashion that will permit us to make objections,

               if they are irrelevant, and to obtain rulings of the Tribunal, so that the Tribunal can discharge its functions of ruling

              out irrelevant issues and statements of any kind whatsoever. We must not let the Trial degenerate into a bickering

              contest between counsel and the witness.


Genet The future thoughts of democratic men will have to take their hue from other, rosier episodes in the trial, for in the      

               extremely important Goering-Jackson duel it was, unhappily, Prosecutor Jackson who lost.


Guy Ramsay “Then rose to cross examine Herman Goering the British Prosecutor, Sir David Maxwell Fyfe, his dark hair

               receding, his heavy face stern, his massive body impressive, his voice steady and controlled.  Ruthless as an

               entomologist he pinned the squirming wriggling German decisively to every point he strove to evade reducing his

               sudden spasms of legal quibbling, his spots of rhetoric to the hollow shams they were.  Fyfe’s skills in cross

               examination alone saved the reputation of the court”


DMF (at the stand) I want to ask you first some questions about the matter of the British Air Force officers who

               escaped from Stalag Luft III.  Do you remember that you said in giving your evidence that you knew this incident

               very completely and very minutely?  Do you remember saying that?


Goering: No - that I had received accurate knowledge; not that I had accurate knowledge - but that I received it.


DMF Let me quote your own words, as they were taken down, "I know this incident very completely, very minutely, but it

               came to my attention, unfortunately, at a later period of time."  That is what you said the other day, is that right?


Goering: Yes, that is what I meant;   that I know about the incident exactly, but only heard of it 2 days later.


DMF You told the Tribunal that you were on leave at this time, in the last period of March 1944, is that right?


Goering Yes, as far as I remember I was on leave in March until a few days before Easter.


DMF And you said, "As I can prove."  I want you to tell the Tribunal the dates of your leave.


SMF Your name was on the wireless to-night as cross-examining and apparently making the first bit of headway in the

               trial since you last spoke.  You must have been going raving mad listening to the other stuff.


Goering I say again, that this refers to the whole of March - I remember it well - and for proof I would like to mention the

               people who were with me on this leave.


DMF        What I want to know is; where you were on leave?


Goering Here, in the vicinity of Nuremberg.


DMF So you were within easy reach of the telephone from the Air Ministry or, indeed, from Breslau, if you were wanted?


Goering I would have been easily accessible by phone if someone wanted to communicate with me.


DMF I want you to help me with regard to one or two other dates of which you have spoken.  You say: "I heard 1 or 2

              days later about this escape."  Do you, understand, Witness, that it is about the escape I am asking you, not about

              the shooting, for the moment;  I want to make it quite clear.


Goering: It is clear to me.


DMF Did you mean by that, that you heard about the actual escape 1 or 2 days after it happened?


Goering Yes.


DMF Did you hear about it from the office of your adjutant or from your director of operations?


Goering I always heard these things through my adjutant.


SMF Darling, it is a glorious day with bright sun, and flowers coming out in the Park, so perhaps this long,  long winter is

               going to end sometime.  Also the Times and  Telegraph (and doubtless ‘all the papers’) say that your cross-

               examination went beautifully.  “In a few skillful questions”… The Times says.  I fear Mr Justice Jackson felt a little

               out of it!!  The trial is now back in the press in a big way so I feel better about it.


DMF (away from the stand) I think that my cross-examination of Goering went all right.  Everyone was very pleased.  

               Jackson had not only made no impression but actually built the fat boy up further.  I think I knocked him

               reasonably off his perch.  Did you hear the extract on the BBC 9 o'clock news last night?


            (at the stand) You said the other day that you could prove when you were on leave. Am I to take it that you

               haven't taken the trouble to look up what your leave dates were?


Goering I have already said that I was on leave during March. Whether I returned on the 26th or the 28th or the 29th of

               March I cannot tell you. For proof of that you would have to ask the people who accompanied me, who perhaps

               can fix this date more definitely.  I know only that I was there in March.


DMF Witness, will it be perfectly fair to you if I take the latest of your dates, the 29th of March, to work on?


Goering It would be more expedient if you would tell me when Easter was that year, because I do not recall it.  Then it will

               be easier for me to specify the dates, because I know that a few days before Easter I returned to Berchtesgaden

               in order to pass these holidays with my family.


DMF Well, I can't give you Easter offhand, but I happen to remember Whitsuntide was the 28th of May, so that Easter

               would be early, somewhere about the 5th of April. So that your leave would finish somewhere about the end of

               March, maybe the 26th or the 29th;  that is right, isn't it? Now, these shootings of these officers went on from the

               25th of March to the 13th of April; do you know that?


Goering I do not know that exactly.


DMF You may take that from me, because there is an official report of the shooting, and I want to be quite fair with you.

              Only 49 of these officers were shot on the 6th of April, as far as we can be sure, and one was shot either on the

              13th of April or later.  But the critical period is the end of March, and we may take it that you were back from leave

               by about the 29th of March. I just want you to tell the Tribunal, this was a matter of great importance, wasn’t it?

              Considered a matter of great importance?


Goering: It was a very important matter.


DMF This is only a short note because, after all, there is very little news.  We have at last finished with Goering.  

              Jackson could do very little with slap happy Herman and I had to go in to prevent him being firmly re-seated on his



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Making History Cross-examination x

Click above to view a film about the cross examination of Herman Goering.