Matthews v. United States

REILLY, Chief Judge

(concurring in part and dissenting in part) :

I concur in that portion of the order remanding the case to the trial court to determine whether the PD 251 forms filled out in connection with the previous robberies were either “adopted” by the witness Rouse, or amounted to a “substantially verbatim recital of [any] oral statement made by said witness” on those occasions, although the Duncan holding relied upon in the opinion 1 is not really controlling. In Duncan, where the PD form, a report which police officers prepare and file as a matter of routine when crimes are reported, was actually signed by the policeman on the stand, it was clearly incumbent upon the trial court to order its production for in camera inspection under subsection (e)(1) of the Jencks Act. Here the PD 251’s could not have been signed by the witness. Nevertheless, I suppose if her statement was a short one, the officer making out the PD 251 may have transcribed her exact words.

I have more difficulty in understanding how the radio runs could fall within the statute. Such broadcasts are simply brief summaries of what a complaining witness has told the police — probably no more than a short description of the fugitive and the nature of the crime. The Supreme Court has held that selected excerpts do not fall within the purview of the act. In the leading case, Palermo v. United States, 360 U.S. 343 , 79 S.Ct. 1217 , 3 L.Ed.2d 1287 (1959), the Court said at 352, 79 S.Ct. at 1224 :

It is clear that Congress was concerned that only those statements which could properly be called the witness’ own words should be made available to the defense for purposes of impeachment. It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder’s opinions or impressions. It is clear from the continous congressional emphasis on “substantially verbatim recital,” and “continuous, narrative statements made by the witness recorded verbatim, or nearly so * * see Appendix B, post 79 S.Ct. page 1228, that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent’s interpretations or impressions. (Italics supplied; footnotes omitted.)

As the case is being remanded in any event for in camera inspection of the PD 251’s, I have no objection to the trial judge also requiring the prosecutor to present his “notes” to him before he rules on their admissibility. Had this been the only Jencks Act issue in the case, however, I should be inclined to agree with the trial judge, for the Augenblick 2 holding of the Supreme *913 Court plainly rejects the doctrine propounded in Williams, 3 and earlier decisions of the Court of Appeals for this circuit, which require the trial judge to call for the production of any documents that defense counsel characterizes as Jencks Act “material.” Here we say that the trial judge should not have been satisfied with the prosecutor’s explanation that his notes were “not substantially verbatim” until he had personally examined them. Yet in Au-genblick a unanimous court held that the presiding _ judicial officer did not err in failing to call for the production of a government agent’s “rough notes” and reversed a Court of Claims decision to the contrary. I find the purported distinction between the case before us and Augenblick unconvincing, particularly as Mr. Justice Douglas, in his opinion, observed:

It is difficult to tell from this record the precise nature of Mendelson’s “notes”, whether they recorded part of Hodges’ interview or whether they were merely a memorandum giving names, places, and hours. Certainly they were not a statement covering the entire interview; and if they were a truncated version, they would pose the question reserved in Palermo v. United States, 360 U.S. 343 , 79 S.Ct. 1217 , 3 L.Ed.2d 1287 . Since on examination of the record we are left in doubt as to the precise nature of the “notes”, we cannot say that the command of the Jencks Act was disobeyed when they were not ordered to be produced.

Moreover, we said in Palermo v. United States, supra, 360 U.S. at 353 , 79 S.Ct. 1217 at 1225 , that the administration of the Jencks Act must be entrusted to the “good sense and experience” of the trial judges subject to “appropriately limited review of appellate courts.” We cannot conclude that when it came to the “rough notes” of Mendelson, the law officer and Board of Review abused their discretion in holding that they need not be produced under the Jencks Act. 93 U.S. at 355, 89 S.Ct. at 533.

In the case before us the record also does not disclose the precise nature of the prosecutor’s notes. Consequently we, too, being unable to say that “the command of the Jencks Act was disobeyed when they were not ordered to be produced,” could well treat the trial court’s ruling as within the scope of its discretion.

. Duncan v. United States, 126 U.S.App.D.C. 371 , 379 F.2d 148 (1967). In the other case cited, United States v. Kasouris, 474 F.2d 689 (5th Cir. 1973), the document sought had also been signed by the witness. I-Ience the quoted observation of the court was mere dictum.

. United States v. Augenblick, 393 U.S. 348 , 89 S.Ct. 528 , 21 L.Ed.2d 537 (1969).

. Williams v. United States, 117 U.S.App.D.C. 206 , 328 F.2d 178 (1963).