THE PREVALENCE OF EYEWITNESS TESTIMONY

Although the Nuremberg trial provides the legal, theoretical, and normative underpinnings for today's international criminal proceedings, it does not stand as their evidentiary model. The high-level Nazi officials who were prosecuted at the Nuremberg Tribunal were convicted on the strength of their own documentation. Nazi leaders kept meticulous written records; as one Nuremberg prosecutor put it: “These Nazis had a mania for writing things down. It is an amazing psychological phenomenon that not one of these men could have a minor political conversation without recording it.” Recognizing that witnesses had fallible memories and might collapse under cross-examination, lead prosecutor Robert Jackson decided to use witnesses sparingly and instead to base his prosecution of the Nazis almost exclusively on their own documents. Nuremberg prosecutors reviewed approximately one hundred thousand documents, and they presented a substantial proportion of these to the Tribunal: The prosecution put 331 documents into the record during the first four hours of the Nuremberg trial, and it submitted many thousands of documents during the trial as a whole.

Unlike the leaders of Nazi Germany, who meticulously documented their illegal acts, the architects of more recent atrocities have left few written records, and what written records they did leave often are not made available to prosecutors. Consequently, the vast bulk of the evidence presented to the current international tribunals comes in the form of witness testimony.