Petition — United States v. Nobles

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FILED

NOV 22 1974

No. €4-634

Yn the Supreme Gourt of the Wnited States

OcTOBER TERM, 1974

UNITED STATES OF AMERICA, PETITIONER

Vv.

RoBert LEE NOBLES

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

HENRY E. PETERSEN,

Assistant Attorney General,

PAUL L. FRIEDMAN,

Assistant to the Solicitor General,

PETER M. SHANNON, Jr.,

IVAN MICHAEL SCHAEFFER,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

ERLE ERE SST Eat SERS Pet ae 1

REESE SP econ oe ec a re 1

I neue 2

Constitutional provision, statute and rule involved______- 2

he ERS LE iy ee a ee eee aCe 4

Reasons for granting the writ______._____.___________- 12

I 26

EEL a aa nN ee a la

SERRE ee ne ee ey Ont ee a 25a

FERRER RET ee ee Ry eR 26a

CITATIONS

Cases:

California v. Byers, 402 U.S. 424_........---------- 15

Couch v. United States, 409 U.S. 322__......---_---- 17

Dennis v. United States, 384 U.S. 855_.......-.----- 15

Giles v. Maryland, 386 U.S. 66.....-.------------- 24

Harris, Matter of, 221 U.S. 274...........--------- 17

Harris v. New York, 401 U.S. 222__.___--- 12, 14, 18-19, 20

Hickman v. Taylor, 329 U.S. 495._.....-.---------- 25

Jencks v. United States, 353 U.S. 657___....-------- 24

McGautha v. California, 402 U.S. 183__...------- 14, 18, 19

Miranda v. Arizona, 384 U.S. 436_..........------- 20

Murphy v. Waterfront Commission, 378 U.S. 52- - ---- 17

Palermo v. United States, 360 U.S. 343__.......----- 24

People v. Damon, 24 N.Y. 2d 256; 247 N.E. 2d 651i,

a inmtin 15, 17

People v. Sanders, 110 Ill. App. 2d 85, 249 N.E. 2d 124_ 15, 25

Raffel v. United States, 271 U.S. 494____-_..--.------ 18

Saunders v. United States, 316 F. 2d 346_....-.--.----- 25

Schmerber v. California, 384 U.S. 757__.--.---------- 15,17

State v. Montague, 55 N.J. 387, 262 A. 2d 398_... 15, 22, 25

State ex rel. Sikora v. District Court, 154 Mont. 241, 462

I a a ae ae 21

United States v. Dionisio, 410 U.S. 1_.....-.-------- 15

United States v. Mara, 410 U.S. 19____-_----------- 15

(I)

Cases—Continued

United States v. Nixon, No. 73-1766, decided July 24, Page

ES: Re eee en ee ee 14, 21

United States v. Wright, 489 F. 2d oI 15, 16

Walder v. United States, 347 U.S. 62__...----------- 19

Wardius v. Oregon, 412 U.S. 470___.------------ 14, 15, 19

Williams v. Florida, 399 U.S. 78. .----------- 14, 19, 20, 21

Constitution and statutes:

United States Constitution, Fifth Amendment-_------ 2,

11, 13, 14, 16, 17, 19, 21

Jencks Act, 18 U.S.C. 3600... .........-..-- 2-3, 12, 23, 24

EE Se eo ee die 5

4 ee ee Sa nee 5

Oe oun eee ee eeeten 5

Miscellaneous:

Advisory Committee Note to Rule 16, Federal Rules

of Criminal Procedure, 18 U.S.C. App., pp. 4493-

Freedman, Professional Responsibility of the Criminal

Defense Lawyer: The Three Hardest enone * 64

ek i, ee oe edennenedie 13

H.R. 5463, 93d Cong., 2d Seas.............-.------ 25

Rezneck, The New Federal Rules of Criminal Procedure,

I en snaps 24

Rule 16, Federal Rules of Criminal Procedure- -- -- - - 3-4,

9, 11, 12, 23

Rule 612, Proposed Federal Rules of Evidence (56

PE El ninntimiihndeesketnceetettnanantiees 25

a ere —

Gn the Supreme Court of the Anited States

OcToBER TERM, 1974

No.

UNITED STATES OF AMERICA, PETITIONER

Ropert LEE NOBLES

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Ninth Cireuit in the above-captioned case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra)

is reported at 501 F. 2d 146. '

JURISDICTION

The judgment of the court of appeals was entered

on June 10, 1974 (App. B, infra). On September 23,

1974, the court of appeals denied a petition for re-

hearing with a suggestion for rehearing en banc (App.

C, infra). By order of October 12, 1974, Mr. Justice

(1)

Douglas extended the time for filing a petition for

a writ of certiorari to and including November 22,

1974. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether in a criminal trial, after the completion

by the government of its case-in-chief and following

the direct examination of a defense witness, the court

may require the defense to provide the prosecutor,

for the purpose of possible impeachment on cross-

examination, prior written statements of the defense

witness relating to the subject matter of his testimony.

CONSTITUTIONAL PROVISION, STATUTE AND RULE

INVOLVED

1. The Fifth Amendment to the United States Con-

stitution provides in pertinent part:

No person * * * shall be compelled in any

criminal case to be a witness against himself

* 2 *

2. 18 U.S.C. 3500 (the Jencks Act) provides in per-

tinent part:

(a) In any criminal prosecution brought by

the United States, no statement or report in

the possession of the United States which was

made by a Government witness or prospective

Government witness (other than the defend-

ant) shall be the subject of subpoena, discovery,

or inspection until said witness has testified on

direct examination in the trial of the case.

(b) After a witness called by the United

States has testified on direct examination, the

court shall, on motion of the defendant, order

the United States to produce any statement (as

aes Se

hereinafter defined) of the witness in the pos-

session of the United States which relates to

the subject matter as to which the witness has

testified. If the entire contents of any such state-

ment relate te the subject matter of the testi-

mony of the witness, the court shall order it

to be delivered directly to the defendant for

his examination and use.

& * + e a

(e) The term “statement’’, as used in sub-

sections (b), (c), and (d) of this section in

relation to any witness called by the United

States, means—

(1) a written statement made by said

witness and signed or otherwise adopted

or approved by him;

(2) a stenographic, mechanical, electrical,

or other recording, or a_ transcription

thereof, which is a substantially verbatim

recital of an oral statement made by said

witness and recorded contemporaneously

with the making of such oral statement; or

(3) a statement, however taken or re-

corded, or a transcription thereof, if any,

made by said witness to a grand jury.

3. Rule 16 of the Federal Rules of Criminal Pro-

cedure provides in pertinent part:

(B) OTHER BOOKS, PAPERS, DOCUMENTS, TANGIBLE

OBJECTS OR PLACES

* * * Except 2s provided in subdivision

(a)(2), this rule does not authorize the discov-

ery or inspection of reports, memoranda, or

other internal government documents made by

government agents in connection with the

investigation or prosecution of the case, or of

statements made by government witnesses or

prospective government witnesses (other than

the defendant) to agents of the government

except as provided in 18 U.S.C. § 3500.

If the court grants relief sought by the de-

fendant under subdivision (a)(2) or subdi-

vision (b) of this rule, it may, upon motion of

the government, condition its order by requir-

ing that the defendant permit the government

to inspect and copy or photograph scientific

or medical reports, books, papers, documents,

tangible objects, or copies or portions thereof,

which the defendant intends to produce at the

trial and which are within his possession,

custody or control, upon a showing of materi-

ality to the preparation of the government’s

ease and that the request is reasonable. Except

as to scientific or medical reports, this sub-

division does not authorize the discovery or

inspection of reports, memoranda, or other

internal defense documents made by the

defendant, or his attorneys or agents in con-

nection with the investigation or defense of the

ease, or of statements made by the defendant,

or by government or defense witnesses, or by

prospective government or defense witnesses,

to the defendant, his agents or attorneys.

STATEMENT

Following a jury trial in the United States District

Court for the Central District of California, respon-

dent and two others * were convicted of bank robbery,

in violation of 18 U.S.C. 2113(a), and assault with

a dangerous weapon in the commission of the robbery,

in violation of 18 U.S.C. 2113(d). Each defendant

was sentenced to a term of twenty-five years’ impris-

onment, subject to the immediate parole eligibility

provisions of 18 U.S.C. 4208(a)(2). Over the dissent

of one judge, the court of appeals reversed respond-

ent’s conviction (App. A, infra).’

1. On the morning of February 6, 1973, at approxi-

mately 11:30 a.m., four men entered and robbed a

branch of the Crocker National Bank in Los Angeles,

California (Tr. 13-25, 185-186). One, identified as co-

defendant Brown, jumped behind the tellers’ windows

and moved down the line of cages, collecting a total of

$4,031 from the cash drawers (Tr. 18-20, 187-194).

Meanwhile, brandishing weapons and guarding the

customers and bank employees from various positions

in the bank, the other three men assured that no one

would interfere with Brown’s labors. The man identi-

fied as respondent, armed with a revolver, performed

his part in the robbery while standing directly beneath

the bank’s automatic surveillance camera and thus was

the only one of the robbers whose activities in the

bank were not captured on film for the jury to view

(Tr. 22-23, 192-194, 323-324).

1 Indicated, tried, and convicted with respondent were Tom-

mie Louis Brown and Virgil David Swain. A fourth person,

Jonathan Ray Nobles, was also indicted but was a fugitive at

the time of trial.

*The court unanimously affirmed the convictions of Brown

and Swain.

Accordingly, at trial the evidence against respondent

consisted exclusively of the testimony of two eyewit-

nesses, Peter Van Gemeren, a bank teller (Tr. 22-23),

and Gary Hoffman, a salesman visiting the bank (Tr.

323-325, 420-421). Van Gemeren testified that during

the robbery he observed respondent for approximately

one minute from a distance of twenty feet and that he

gave a detailed description of him to the F.B.I. (Tr.

61-62). Hoffman testified that he observed respondent

standing beneath the surveillance camera (Tr. 323-

325; see also Tr. 416), and that he focused his atten-

tion on respondent for a full two or three minutes,

one-third of the time that the robbery was in progress

(Tr. 328, 353). Hoffman also gave a description to the

F.B.I. (Tr. 329). Hoffman further testified that, prior

to trial, he identified respondent from a photographic

array and at a police lineup (Tr. 328-331; see also Tr.

420-421). While respondent presented an affirmative

defense of alibi, his strongest defense, as the court of

appeals noted (App. A, infra, p. 6a), was his attempt

to discredit the testimony of Van Gemeren and

Hoffman.

2. During his cross-examination of Van Gemeren,

respondent’s counsel asked the witness whether he

recalled being interviewed by a Public Defender’s

office investigator, John Bond (Tr. 77). It soon be-

came apparent that the witness was unsure of whether

the particular interview had taken place and, if it

had, of the nature of his responses to questions that

may have been asked in the course of the interview.

The government thereupon requested, and respond-

ent’s counsel agreed, that the witness be allowed to

examine his alleged statement for the purpose of

refreshing his recollection (Tr. 77-78). However, the

statement was not in fact shown to the witness during

the overnight recess.

When the trial resumed the following morning,

respondent’s counsel asked Van Gemeren whether

it was not a fact that he had told the defense investi-

gator that he had seen only the back of the robber

who had been standing under the surveillance camera;

Van Gemeren did not recall (Tr. 90). Government

counsel again requested that the witness be allowed

to refresh his recollection by reviewing the prior

statement that he had allegedly given to the investi-

gator (Tr. 90). Counsel for respondent then stated

that he had not allowed Van Gemeren to examine the

alleged statement during the overnight recess, as he

had previously agreed to do, because he had recon-

sidered his position on the matter: ‘‘I had agreed to

that, your Honor, arid after saying that yesterday, I

talked it over with several other attorneys in our

office. It is our position that we do not have to do

that hecause I am only trying to use this interview

for impeachment purposes’’ (Tr. 91). The court

ordered counsel to allow the witness to examine the

purported statement (Tr. 91-92). Counsel then tore

off a strip of paper from his investigator’s report,

showed it to the court, and had it marked as Defense

Exhibit A for identification (Tr. 92-94).° After Van

*Exhibit A, the purported statement of Van Gemeren,

did not contain the witness’s name or the date, time, or place

of the alleged statement. Moreover, the witness had never

read, approved, signed, or adopted any statement.

Gemeren examined the paper, he testified that it

refreshed his recollection but that he still did not

recall having told the investigator that he had seen

only the back of the robber standing under the sur-

veillance camera (Tr. 99). He further testified, in

response to a question from respondent’s counsel, that

in fact he had not seen only the back of the robber

under the camera (Tr. 100).

3. During the cross-examination of prosecution wit-

ness Hoffman by respondent’s counsel, the following

colloquy occurred regarding a telephone conversation

that Hoffman had had with the same Public De-

fender’s office investigator, John Bond (Tr. 404):

RESPONDENT’s CouNSEL: And isn’t it a fact that

you told Mr. Bond that to you all blacks appear

to be alike?

Tue Witness: I don’t believe I indicated that

to him.

RESPONDENT’s CouNSEL: You don’t recall stating

that to Mr. Bond?

THE Witness: No, I do not.

RESPONDENT’S CouNnsEL: That all blacks look

alike ?

THE Witness: No, I do not, sir.

At the bench, the prosecutor requested respondent’s

counsel to furnish him with a copy of the memoran-

dum containing Hoffman’s purported statements to

Bond (Tr. 405-407). Respondent’s counsel refused to

allow the prosecutor to inspect the memorandum. The

judge then indicated that, in the absence of legal au-

thority precluding such inspection, he would require

disclosure (Tr. 405) ;

It seems only fair, if the government gives

you copies of all the statements made. I think

that the Government is entitled, in view of the

_ attempt at least of impeachment to see a copy

of the statement that this witness made.

The court stated that it would reserve ruling on

the government’s motion for production until a hear-

ing was held on the matter (Tr. 411). After hearing

argument on the motion, the court narrowly defined

the issue before it, concluded that Rule 16 of the

Federal Rules of Criminal Procedure applied only

to pre-trial discovery and was thus inapplicable, and

then ruled as follows (Tr. 466, 470-471) :

First of all, the Court is not going to order

disclosure of this memorandum at this time. A‘

the present time there has been no impeachment

and will be no impeachment until the investi-

gator takes the stand and testifies as to the

allegedly impeaching statements.

Therefore, the issue will not arise until the

investigator does take the stand. The issue

thereafter will be whether or not for utilization

for impeachment purposes the government

should be entitled to examine the memorandum

made by the investigator, presumptively con-

currently with his inquiry of the allegedly im-

peached witness for purposes of furthering

the government’s cross examination.

* * * * *

[T]he government may not have the memo-

randum until the witness has taken the stand

and has indicated the particular impeaching

testimony which was the last part of Mr. Hoff.

man’s testimony relative to his inability to dis-

tinguish between people of the black race.

And if he does make such a statement, if

he [Mr. Bond] make[s] such a statement, then

I believe the government is entitled to an ex-

amination of the memorandum—not before that

time—but after that time, after he has com-

pleted his entire testimony.

The issue, of course, may not arise. It is de-

pendent upon whether or not Mr. Bond is called

to testify, but that is the Court’s view at this

time.

* * * 4 a

I will say this to assist you, Mr. Allis [re-

spondent’s counsel], while I think about it. I

am sure there are no statements by any of the

defendants contained in this particular memo-

randum, and my order is going only to this par-

ticular memorandum. I am not generalizing on

any other memorandum or memoranda you may

have.

It goes only to this particular memorandum

involving the particular witness Hoffman. If

you represent to me that there are matters con-

tained therein, such as recitals by the defend-

ants or your defendant, of course, I would view

it imperative that you have the opportunity to

excise that, perhaps after an in-camera session

with the Court, or something of that nature.

IT am specifically concerned only with the

Hoffman statement of Mr. Bond.

4. As a part of the defense case, counsel for re-

spondent called John Bond as a witness, without first

indicating whether he intended to comply with the

court’s previous ruling regarding production of Bond’s

investigative report (Tr. 518-519). When the court

requested an offer of proof as to Bond’s testimony,

respondent’s counsel stated that Bond would impeach

the testimony of the witnesses Van Gemeren and Hoff-

man (Tr. 519), but that he would not turn over these

witnesses’ statements following Bond’s direct testi-

mony (Tr. 520). The court reiterated its ruling (Tr.

520-528) and stated that, in the absence of disclosure

of the relevant portions of the investigative report,

Bond would not be permitted to testify regarding his

interviews with Van Gemeren and Hoffman (Tr. 520).

Bond then testified, but, pursuant to the court’s order,

he was not asked to impeach the identification testi-

mony of Hoffman or Van Gemeren.

5. Respondent was convicted. On appeal, respond-

ent contended that the district court’s ruling violated

his privilege against self-incrimination, denied him the

right of cross-examination, and was contrary to the

limitations contained in Rule 16 of the Federal Rules

of Criminal Procedure.

A divided panel of the court of appeals reversed.

The majority found prejudicial error in conditioning

impeachment upon disclosure to the prosecutor of

portions of the investigative report, even though this

discovery would only be used as an aid to cross-

examination by the government. The court held that

allowing discovery by the government of those portions

of Bond’s report relating to conversations about which

Bond sought to testify during trial would violate

respondent’s Fifth Amendment privilege against com-

pulsory self-incrimination (App. A, infra, pp. 9a—14a).

Moreover, although the disclosure would not take place

until after the government’s case-in-chief at trial, the

majority deemed the required production of the in-

vestigator’s notes to be a violation of the attorney

work-producgd rule that it found to be embodied in

Rule 16 (App. A, infra, pp. 15a-18a).

The dissenting judge, proceeding essentially on the

premise that “[t]he purpose of a trial is to develop

the truth, not suppress it’’ (App. A, infra, p. 22a),

concluded that there was no error in requiring a wit-

ness called for impeachment purposes to produce the

notes which he made on the subject of impeachment

and which form the basis of his testimony. Relying

in part on this Court’s opinion in Harris v. New York,

401 U.S. 222, he was of the view that the Fifth Amend-

ment’s privilege against self-incrimination did not bar

the trial court from ordering disclosure (App. A,

infra, p. 22a). He also concluded that the majority’s

reliance on Rule 16, which governs pretrial discovery,

and on the Jencks Act, 18 U.S.C, 3500, was misplaced

(App. A, infra, p. 24a).

REASONS FOR GRANTING THE WRIT

This case presents an important question concern-

ing the access for impeachment purposes that a prose-

cutor should have, following the testimony of a de-

fense witness on direct examination, to prior and

possibly inconsistent statements made by that witness,

particularly when the witness has been called for the

purpose of impeaching the testimony of a government

witness who has previously testified. The holding of

the court of appeals precluding production of such

documents undermines the truth-seeking process of

the criminal trial, and does so by means of an unwar-

ranted extension and misapplication of the Fifth

Amendment privilege against compulsory self-incrim-

ination. The decision of the court impedes effective

cross-examination through impeachment by prior in-

consistent statements, dilutes the traditional discretion

of the trial judge to rule on evidentiary matters and, at

its worst, may foster misstatement, exaggeration or

even perjury on the part of defense witnesses, par-

ticularly partisan investigators whose use by defense

counsel understandably is increasing with the estab-

lishment and growth of well-organized public defender

agencies.‘

In its efforts to protect what it viewed as respond-

ent’s Fifth Amendment privilege, the majority below

lost sight of the fact that the ascertainment of truth

is the ultimate objective of a criminal trial and that

‘This is of particular concern in light of the view. which

surprisingly has achieved respectability in some circles, that a

defense attorney may call a witness to testify although he

knows the witness will commit perjury. See Freedman, Pro-

fessional Responsibility of the Criminal Defense Lawyer: The

Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966). A

combination of this view on the part of an investigator and

defense attorney with the Ninth Circuit’s holding that dis-

closure of prior statements may not be ordered by a trial judge

could easily frustrate the search for truth and the ends of

justice in a criminal trial.

the existence of an adequate opportunity, through

eross-examination, to test the credibility of a witness

who takes the stand, whether for the prosecution or

the defense, is crucial to the realization of that goal.

It overlooked the established principle that the effort

to find the truth should give way only in the face

of a recognized privilege or some countervailing pol-

icy to which the Constitution compels deference or the

legislature or rule-makers have accorded priority.

Moreover, the decision of the court is in conflict

on many fronts with the philosophy of prior decisions

of this Court. See United States v. Nixon, No. 73-

1766, decided July 24, 1974, slip op., pp. 24-25 (the

privilege against self-incrimination, like other privi-

leges, is to be construed narrowly because it is in

derogation of the search for truth); Harris v. New

( 42 L, York, 401 U.S. 3Q (the shield of the Fifth Amendment

privilege cannot be perverted into a license to use

perjury free from the risk of confrontation with prior

inconsistent statements) ; McGautha v. California, 402

U.S. 183 (the privilege against self-incrimination is

not diminished by a defendant’s decision to testify,

although that decision may open the door to otherwise

inadinissible evidence that may be damaging to his

case); Williams v. Florida, 399 U.S. 78 (even pre-

trial, the defendant may be precluded from concealing

evidence about his alibi defense when its disclosure

would enhance the search for truth); Wardius v.

Oregon, 412 U.S. 470 (discovery must be a two-way

street, and reciprocal disclosure may be required in

some contexts because it enhances the search for

truth); Schmerber v. California, 384 U.S. 757 (the

compulsory production of certain types of evidence

is consistent with the privilege against self-incrimina-

tion even though it may be a ‘‘vital link” in the chain

of evidence against the accused; see also United States

v. Dionsio, 410 U.S. 1; United States v. Mara, 410

U.S. 19; California v. Byers, 402 U.S. 424); Dennis

v. United States, 384 U.S. 855 (disclosure rather than

suppression of relevant materials promotes the proper

administration of criminal justice). It is also at odds

with the decisions of the appellate courts of each

State that, so far as our research discloses, has con-

sidered the issue.°

1. The court of appeals held that the order to dis-

close relevant portions of the defense investigator’s

report violated the defendant’s privilege against com-

pulsory self-incrimination. Quoting from the District

of Columbia Circuit’s opinion in United States v.

Wright, 489 F. 2d 1181, 1195 (C.A.D.C.), the court

embraced the following view (App. A, infra, p. 14a):

The defendant has a right under the Fifth

Amendment to compel the state to investigate

’ State v. Montaque, 55 N.J. 387, 262 A. 2d 398; People v.

Sanders, 110 Ill. App. 2d 85, 249 N.E. 2d 124; People v. Damon,

24 N.Y. 2d 256, 247 N.E. 2d 651, 299 N.Y.S. 2d 830. The

only other federal decision concerning this issue is [/nited States

v. Wright, 489 F. 2d 1181 (C.A.D.C.), in which a divided

panel of the District of Columbia Circuit concluded that it

was error for the trial court to have ordered disclosure of an

investigator’s report.

its own case, find its own evidence, and prove

its own facts. The defense has no duty to help

the presecution convict the defendant. We

therefore reject any rule which would require

the defense to turn over to the prosecution

prior statements of defense witnesses which

could be used by the prosecution against the

accused.®

The court suggested that “[i]f the prosecutor doubted

the validity of the contexts in which the purported

statements were made as testified to by Bond, he

surely had access to his own witnesses and by their

testimony could have offered rebuttal to Bond’s

version’’ (tbid.).

This analysis both misses the point and reflects a

misunderstanding of the Fifth Amendment’s privilege

* The majority’s reliance on Wright was misplaced, as the

dissenting judge in this case made clear (App. A, infra, p. 23a;

emphasis in original).

(1) [I]n Wright the order was overly broad and re-

quired defense counsel to surrender for inspection the

entire report, rather than specific portions relevant only

to the impeachment question; (2) there, the prosecutor

was seeking the statement to use it as substantive evidence,

rather than for impeachment purposes; and (3) Wright

recognizes, as a Hornbook rule of evidence, that had the

investigator used parts of his report to refresh his recol-

lection, the prosecution would be entitled to examine those

parts of the report relating to impeachment, and would

be permitted to make use of them in the cross-examination.

The opinion then goes on to emphasize that the investigator

did not use the report to refresh his recollection. * * *

Here, as previously mentioned, I feel that the presence

of the statement on counsel table, his use of the statement

In interrogating Hoffman and his lengthy colloquy with

the court and opposing counsel would clearly indicate

that Bond had so refreshed his recollection.

against compulsory self-incrimination. The privilege

is “a personal privilege: it adheres basically to the per-

son, not to information which may incriminate him.”

Couch v. United States, 409 U.S. 322, 328. Moreover,

the privilege applies only to a defendant’s own testi-

mony or to evidence relating to some communicative

act or writing of the defendant himself (Schmerber v.

California, supra, 384 U.S. at 761, 765), and not, as

found by the court here, to statements or notes of a

defense investigator concerning his interviews with

witnesses to the offense who presumably would testify

for the government. Finally, it cannot be said in this

ease that respondent was compelled to produce in-

criminating statements in the Fifth Amendment sense,

for he was not forced to produce the tesimony of

John Bond; it was his decision to call the investi-

gator in his behalf. See People v. Damon, supra, 24

N.Y. 2d at 261, 247 N.E. 2d at 654, 299 N.Y.S. 2d

at 834. Thus, the court of appeals erred both be-

cause the privilege did not apply to the communica-

tions at issue and because there was no compulsion

to produce those communications. Indeed, none of

the values reflected by the privilege against self-

incrimination and comprehensively catalogued by the

Court in Murphy v. Waterfront Commission, 378 U.S.

52, 55, was compromised by the district court’s order

to disclose relevant portions of the investigator’s re-

port. Rather, that order reflected the court’s adherence

to the admonition of Mr. Justice Holmes, speaking

for a unanimous Court in Matter of Harris, 221 U.S.

274, 279-280: “The right not to be compelled to be a

witness against oneself is not a right to appropriate

property that may tell one’s s.ory.”’

The court of appeals, we submit, adhered much

less well than the district court to the teachings of

this Court. First, it failed to distinguish between

statements of an accused and those of a witness for

the accused, and it ignored the fundamental differ-

ence between compelled testimony and that which is

volunteered: the statements at issue were not those

of respondent but of a witness offered by respondent.

Second, it failed to recognize that respondent was not

compelled to produce either incriminating statements

of his own, substantive evidence against himself, or

the smallest link in the evidence necessary to convict

himself: disclosure of the investigator’s statement

would not have been required until long after the

government had closed its case-in-chief and had

already submitted sufficient evidence to withstand a

motion for acquittal. Third, since the choice of

whether to call the investigator belonged solely to

respondent, any privilege that possibly did exist as

to his testimony would have been waived following

an election to place the investigator on the witness

stand, just as it would have been waived had respond-

ent himself chosen to testify; for ‘‘[t]he safeguards

against self-incrimination are for the benefit of those

who do not wish to become witnesses in their own

hehalf and not for those who do.” Raffel v. United

States, 271 U.S. 494, 499." Finally, if under Harris v.

*The fact that the trial court conditioned that choice upon

disclosure of revelant portions of the investigator's report did

not impinge upon the privilege in a constitutionally impermis-

sible manner. Cf. MeGautha v. California, supra, 402 U.S. at

213.

New York, supra, 401 U.S. at 226, respondent would

have been unable to use the Fifth Amendment’s shield

as insulation from his own otherwise inadmissible

prior inconsistent statements, there is no conceivable

justification for clothing him with protection from

prior inconsistent statements made by another whom

he chose to call as a witness in his behalf. Cf. Walder

v. United States, 347 U.S. 62, 65.

In Williams vy. Florida, supra, this Court upheld a

Florida statute requiring a defendant to give the

prosecution prior notice of his intention to raise an

alibi defense and, upon the prosecutor’s request, to

provide a list of alibi witnesses. The defendant’s

major contention was that “he was ‘compelled * * *

to be a witness against himself?” because he was

forced to give the State information that ultimately

proved helpful in convicting him. 399 U.S. at 82. Com-

menting on this assertion the Court stated (id. at

83-84) :

The defendant in a criminal trial is fre-

quently forced to testify himself and to call

other witnesses in an effort to reduce the risk

of conviction. When he presents his witnesses,

he must reveal their identity and submit them

to cross-examination which in itself may prove

incriminating or whch may furnish the State

with leads to incriminating rebuttal evidence.

That the defendant faces such a dilemma de-

manding a choice between complete silence and

presenting a defense has never been thought

an invasion of the privilege against compelled

self-incrimination.

Cf. Wardius v. Oregon, supra, 412 U.S. at 474. Simi-

larly, in McGautha v. California, supra, the Court

noted that the privilege suffers no diminution by a

defendant’s decision to testify on his own behalf,

even though that testimony “may open the door to

otherwise inadmissible evidence which is damaging

to his case.”’ 402 U.S. at 213.

In Harris v. New York, supra, a defendant charged

with various narcotics offenses took the stand to tes-

tify in his own behalf. The prosecution made no at-

tempt during its case-in-chief to introduce certain

statements made by the defendant that were conced-

edly inadmissible under Miranda v. Arizona, 384 U.S.

436. However, these statements were later used to im-

peach the defendant in a procedure that this Court

subsequently approved (401 U.S. at 225-226):

Having voluntarily taken the stand, petitioner

was under an obligation to speak truthfully

and accurately, and the prosecution here did no

more than utilize the traditional truth-testing

devices of the adversary process. * * *

The shield provided by Miranda cannot be

perverted into a license to use perjury by way

of a defense, free from the risk of confronta-

tion with prior inconsistent utterances.

We submit that this case falls within the rationale

of Williams and Harris. If an accused can be com-

pelled to disclose the names and addresses of his alibi

witnesses before trial, thus affording the government

an opportunity to interview them, and if the accused

himself can be cross-examined even on the basis of

his own prior statements that were unconstitutionally

obtained, it follows, a fortiori, that he may be com-

pelled during trial to disclose the statements of wit-

nesses whom he chooses to call and that they may be

cross-examined on the basis of their prior statements

thus obtained through the lawful processes of the

court. ‘“‘[T]he Constitution does not protect a de-

fendant from the consequences of a defense he makes,

nor does it assure him a right to so defend as to deny

the state a chance to check into the truth of his posi-

tion.” State ex rel. Sikora vy. District Court, 154 Mont.

241, 244-245, 462 P. 2d 897, 899. If the adversary

system of trial “is not yet a poker game in which

players enjoy an absolute right always to conceal

their cards until played” (Williams vy. Florida, supra,

399 U.S. at 82), it hardly seems likely that, in the con-

text of the search for truth, it can be viewed as a

game in which the cards can be concealed even after

they have been played. On the contrary, our system

of criminal justice recognizes that

[t]he need to develop all relevant facts in the

adversary system is both fundamental and com-

prehensive. The ends of criminal justice would

be defeated if judgments were to be founded

on a partial or speculative presentation of the

facts. The very integrity of the judicial system

and publie confidence in the system depend on

full disclosure of all the facts, within the frame-

work of the rules of evidence. [United States

v. Nixon, supra, slip op. at 24. |

Extending the Fifth Amendment’s _ protection

against self-incrimination to prior statements of de-

fense witnesses can only serve to exclude meaningful

evidence and thus to hinder the fair and just opera-

tion of the system. Permitting the prosecutor to ex-

amine a witness’s prior statement, on the other hand,

would serve to enable him better to conduct a mean-

ingful cross-examination based upon available infor-

mation, rather than one based upon assumption,

hypothesis or innuendo. See State v. Montague, supra,

55 N.J. at 401-402, 262 A. 2d at 405. Moreover, in

this case such a procedure would have better enabled

the jury to weigh the testimony of Van Gemeren,

Hoffman and Bond, and thus to assess all the relevant

facts of the case in reaching its verdict; for then the

jury would have had before it the “best evidence”

available for assessing the credibility of all of the

witnesses."

* The dissenting judge in this case accurately summarized our

view of the panel's decision (App. A, infra, p. 22a):

* * * In these circumstances, the price a defendant must

pay for having a witness take the witness stand, and tes-

tify contrary to declarations of another witness, is to throw

open the entire subject to normal cross-examination and

to make his testimony vulnerable where, otherwise, it might

have been shielded. Surely, the appellant cannot claim for

this witness a right which was not available to himself if

he had taken the witness stand under the same cir-

cumstances.

Closely in point is Harris v. New York [supra], where the

court approved the introduction of a statement on cross-ex-

amination which could not have constitutionally been utilized

on the direct examination of the defendant. There the court

held that the defendant, having voluntarily taken the stand,

was under an obligation to speak truthfully and accurately,

and that in confronting him with his previous statement, the

prosecution was doing no more than utilizing the traditional

truth-testing devices of the adversary process. Here, if pro-

duced, the memorandum might show that Bond did not in-

clude the alleged material forming the basis for the impeach-

ing questions to Hoffman. If that were true, the integrity of

Bond's testimony would be severely diminished. The prose-

cutor, in requesting the production of the statement for cross-

examination, was doing “* * * no more than utiliz{ing] the

2. In reaching its decision in this case, the court of

appeals also examined the district court’s production

order from the perspective of Rule 16 of the Federal

Rules of Criminal Procedure, the Jencks Act (18

U.S.C. 3500), and the work-product rule. The court

erroneously concluded (App. A, infra, p. 17a; empha-

sis in original) :

[W Jhile Rule 16 is framed in terms of pretrial

discovery, its inclusion of the Jencks Act leads

use to conclude that Rule 16 has relevance to

discovery during trial. And, specifically, defense

may discover, for purposes of impeachment,

statements of government witnesses who have

testified. But no such exception is included

within the terms of subsection (c) [of Rule 16,

which governs discovery by the government].

We would conclude that the work product of

defense is inviolable under these circumstances.

This is an incorrect reading of both the Jencks Act

and Rule 16. To begin with, Rule 16 is inapplicable to

this case, since it was clearly intended to apply only to

pre-trial discovery. See Advisory Committee Note to

traditional truth-testing devices of the adversary process.”

401 U.S. at 225. One of the most common practices employed

in the art of cross-examination is to ask for the production of

any notes or statements which a witness may have used to re-

fresh his recollection.

The purpose of a trial is to develop the truth, not suppress

it. We can assume that appellant’ counsel was not playing

games and that the memorandum probably made no reference

to the impeachment questions propounded to the witness Hoff-

man. Otherwise, there would be no logical reason for the re-

fusal to produce it.

My conclusions with reference to the questions propounded

to Hoffman are equally applicable to the questions pro-

pounded to the witness Van Gemeren.

Rule 16, Federal Rules of Criminal Procedure, 18

U.S.C. App., pp. 4493-4494; Giles v. Maryland,

386 U.S. 66, 101 (Fortas, J., concurring); see also

Rezneck, The New Federal Rules of Criminal Proce-

dure, 54 Geo. L. J. 1276, 1276-1278 (1966). Subsec-

tion (b) of that Rule does not provide for pre-trial

discovery by defense counsel of statements by govern-

ment witnesses, and subsection (c) does not authorize

pre-trial discovery by the government of defense

witnesses’ statements. Nor do these subsections au-

thorize or provide for in-trial discovery or use of

witnesses’ statements for impeachment purposes. Cor-

rectly framed, this is an evidentiary question for

discretionary determination by the trial judge, who

traditionally has been called upon to regulate the

scope of cross-examination. Palermo v. United States,

360 U.S. 343, 361 (Brennan, J., concurring).

It is true that the Jencks Act, 18 U.S.C. 3500,

deals in part with in-trial disclosure. However, the

congressional intent in enacting that statute was only

to limit the right of the defense to the production of

statements of government witnesses that courts pre-

viously could order produced in the exercise

of their inherent discretion. Congress clearly ‘“‘had no

thought to invade the traditional disey ‘ion of trial

judges in evidentiary matters beyond checking the

extravagant interpretations” of the Jencks case’

by the lower federal courts. Palermo vy. United

States, supra, 360 U.S. at 361 (Brennan, J., coneur-

ring). Congress did not consider the production of

* Jencks v. United States, 353 U.S. 657.

defense witness statements in passing the Jencks Act,

since, in such eases, “[f]inal decision as to production

must rest, as it does so very often in procedural and

evidentiary matters, within the good sense and ex-

perience of the district judge * * * and subject

to the appropriately limited review of appellate

courts.’’ Id. at 353 (opinion of the Court). As the dis-

senting judgeg in this case properly stated: “[W Je are

not here concerned with the Jencks Act * * * or with

Rule 16 * * *. Our problem centers on a simple com-

mon law evidentiary question of whether a witness,

who was called for impeachment purposes, must pro-

duce the notes he admittedly made on_ the

subject of impeachment’’ (App. A, infra, p. 24a).”

10 Even assuming the court of appeals were correct in stating

that “the work product of defense is inviolable” (App. A,

infra, p. 17a), that doctrine is inapplicable to the case at bar.

The work product rule is only intended to protect against in-

quiry into the mental processes of counsel, including trial strat-

egy, legal opinions or conclusions, and the like; it does not pro-

vide protection for written statements of witnesses found in

counsel’s files that might be useful for purposes of impeach-

ment, corroborstion, and truth-finding. See Hickman v. Taylor,

329 U.S. 495, 510-511; Saunders v. United States, 316 F. 2d

346, 349-350 (C.A.D.C.). The state appellate courts that have

considered this proposition have similarly found the work

product rule to be inapplicable in these circumstances. See, e.g.,

People v. Sanders, supra, 110 Ill. App. 2d at 89-90, 249 N.E. 2d

at 126; State v. Montague, supra, 55 N.J. at 398F262 A. 2d at 401

Rule 612 of the proposed Federal Rules of Evidence (56 F.R.D.

276) as promulgated by this Court, would permit an adversary to

inspect, cross-examine from and introduce portions of a writing

used by a witness to refresh his recollection either before or

while testifying. The version passed by the House of Repre-

sentatives on February 6, 1974 (H.R. 5463, 93d Cong., 2d Sess.)

requires the trial court to determine in its discretion whether dis-

closure of a writing used by a witness to refresh his recollection

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

Rosert H. Bork,

Solicitor General.

Henry E. PETERSEN,

Assistant Attorney General.

Pau. L. FRIEDMAN,

Assistant to the Solicitor General.

Peter M. SHANNON, Jr.,

Ivan MICHAEL SCHAEFFER,

Attorneys.

NOVEMBER 1974.

before testifying would serve the interests of justice. The passage

of the Rule in either form, however, would not obviate the prob-

lem presented by this case. On the one hand, if the court of

appeals is correct in its decision, the rule itself may have con-

stitutional infirmities. On the other hand, if we are correct in

our view, the ability to get at the truth by the traditional

method of cross-examination on the basis of prior inconsistent

statements should not turn on whether a particular witness has

refreshed his recollection before testifying. The “best evidence”

should always be required to be produced, and the inherent

power of the district court to authorize discovery by the prose-

cution commensurate with that permitted the defense under the

Jencks Act should not be curtailed.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unrrep States or AMERICA, ”

Plaintiff-Appellee,

Vs. No. 73-2279

TomMIeE Louts Brown,

Defendant-A ppellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs. > No. 73-2678

VirciL Davip Swat,

Defendant-A ppellant.

Unitep STaTes or AMERICA,

Plaintiff-Appellee,

vs. No. 73-2280

Rosert LEE NoBLEs,

PURE Rgga. |

[June 10, 1974]

Appeal from the United States District Court

for the Central District of California

Before: ELY and KILKENNY, Circuit Judges, and

ENRIGHT, District Judge*

ENRIGHT, District Judge:

In late morning on February 6, 1973, four men robbed a

Crocker National Bank in Los Angeles. Three men were brought

to trial in April, 1973, for the offense: defendants Tommie Louis

*The Honorable William B. Enright, United States District Judge for

the Southern District of California, sitting by designation.

(la)

Brown, Robert Lee Nobles, and Virgil David Swain. The fourth

man, whose name appeared on the indictment as Jonathan Ray

Nobles, was a fugitive at time of trial.

The government’s theory was that Brown jumped behind the

tellers’ windows and moved down the line of cages, collecting

money from the cash drawers, while the other three guarded the

eustomers and personnel from various positions. A surveillance

camera took pictures of all the participants except the one who

stood beneath the camera, allegedly defendant Nobles [herein-

after Nobles}.

I The Brown and Swain Appeals

The evidence against Brown and Swain was similar and con-

sisted of surveillance photographs, items taken from the apart-

ment they shared, a comparison of photographs, eyewitness iden-

tifications, and a statement by Brown.

Defendants Brown and Swain primarily attack the comparison

of certain photographs. One group of photographs consisting of

enlarged surveillance pictures showing the faces and clothing of

the two robbers alleged to be Brown and Swain, were placed on

a chart next to a second group of photographs consisting of en-

larged police pictures of Brown and Swain as well as FBI pho-

tozraphs of the items of clothing seized from their apartment.

An FBI expert in photographie identification, Frederick E.

Webb, compared the two groups of photographs and stated that

the faces in the police photographs were the same faces as those

in the surveillance photographs. He also testified that the

clothing in the two groups of photographs was the same, and

further, he made a similar analysis of a surveillance photo-

graph of a pistol used in the robbery and a FBI photograph

of the handgun seized in the apartment.

When Mr. Webb, in response to the prosecutor’s questions,

began to state his opinion that Brown and Swain were indeed

two of the three pictured on the surveillance film, the district

court overruled the defense objection but not without some misgiv-

ing:

I must say in my own personal opinion it comes very,

very close to impinging upon the province of the jury... .

that case [United States v. Cairns, 434 F.2d 643 (9th Cir.

1970) |] I suggest to you, Mrs. Broady, which seems to author-

ize this very procedure.

Reporter’s Transcript [hereinafter R.T.] 260, lines 5-11. We too

are troubled by the proffered testimony.

In Cairns, this cireuit previously wrote:

Appellant next contends that over his objection on the

ground the testimony would invade the province of the jury,

Government’s witness, a special agent with the Federal Bu-

reau of Investigation and photographie identification spe-

cialist, compared two photographs: a photograph taken by

the bank’s surveillance camera at the time of the robbery

and a police photograph of appellant taken ten days prior

to trial. To assist in his identification, he enlarged the head

area of the surveillance photograph to the same size as the

enlarged head area in the police photograph. The witness

then pointed out the similarity in the two photographs in the

nose and mouth areas, chin line, hair lines, ear contours and

inner folds of the ears, among other things. He then testi-

fied that based on all the general characteristics the indi-

vidual in the surveillance photograph is the individual in

the police photograph “or another individual having all of

these characteristics as to nose, mouth, chin, and th ear

characteristics . . . . “We see no error in the admission of this

testimony. While the jury is the sole judge of the facts, ex-

pert testimony has long been admissible as an aid to the

jury.

434 F.2d at 644.

That concluding statement is undisputed. But whether the

situation is a proper one for the use of expert testimony is to

be determined on the basis of assisting the trier. “There is

no more certain test for determining when experts may be

used than the common sense inquiry whether the untrained

layman would be qualified to determine intelligently and to

the best possible degree the particular issue without enlighten-

ment from those having a specialized understanding of the

subject involved in the dispute.” Ladd, Expert Testimony, 5

Vand.L.Rev. 414, 418 (1952).

Advisory Committee’s Note to Proposed Federal Rule of Evi-

dence 702, Court Version, 56 F.R.D. 183, 282 (1972). To permit

an expert to testify as to his opinion of parentage based on the

resemblance of a child to a reputed father in a paternity suit

would be grossly inappropriate by the above standard. But just

as surely, fingerprint identification, the comprehensive examina-

tion of aerial photographs, and other similar scientifie and tech-

nical evaluations, are obviously within the realm of permissible

expert testimony. Testimony as to whether a particular indi-

vidual is portrayed in a photograph rests on some middle

ground. Since the Cairns decision relied solely upon traditional

expertise fields, we feel it incumbent upon ourselves to reexamine

the issue faced in Cairns.

We have requested and reviewed the briefs submitted in

Cairns. Such review allows us to conclude that the two cases—

Cairns and the instant one—are distinguishable.

In the instant case, Webb’s testimony was general. In refer-

ence to the photographs of Brown, he stated broad conclusions:

“rather thin-faced,” “somewhat elongated,” “[t]he mustache is

similar, the shape of the nose, the eves, the eyebrows, ... .”

R.T. 260, lines 22-24. In Cairns, however, the testimony was of

greater detail. Not only did the agent compare general contours

and shapes but also found ear and lobe formations particularly

significant and termed a particular facial crease as “distinctive”

and “unusual.” Government's Brief, United States v. Cairns, p. 5.

In its argument to this court in Cairns, the government also em-

phasized the detail of the agent’s testimony, for example, his com-

parison of a nipple in the center of the defendant’s ear. Id. at 6.

We would hold that Cairns should be limited to the precision

as argued in its briefs; therefore, when a party seeks to introduce

expert testimony on personal photographic identification—whether

to prove or disprove similarity, he should first be required to

make an offer of proof to the court outside the presence of the

jury.

After the elicitation of what facts the expert has depended

upon in reaching his conclusions, the court should determine

whether it has been convinced by a preponderance that the facts

offered are beyond the jury’s common experience. Of course, the

eens ee

~~ eons Ouse

court in reaching its determination must take into consideration

that the party desiring admission may be free to argue his posi-

tion without the benefit of expert testimony. If the court in its

diseretion, which may not be disturbed absent clear abuse, is

convineed that the expert may materially assist the jury beyond

their common experience as amplified by argument of counsel, the

expert should be allowed to testify.

The same general test shculd be applied to the photographic

identification and comparison of inanimate objects. The trial

courts, however, should be cognizant that while the everyday

experiences of twelve laymen over their combined lifetimes may

permit them to make photographic comparisons of persons, they

may utterly lack experience to distinguish or recognize certain

objects such as firearms. In the facts of this particular case, we

would hold the admission of the expert’s opinion on the personal

identification of Brown and Swain to have been error,’ but his

testimony concerning the items seized to have been properly

admitted. We cannot conclude, however, that the error was preju-

dicial, Disregarding the agent’s opinion as to their identity, the

evidence against Brown and Swain—the eyewitness testimony,

the discovery of the items—was overhelming, rendering the error

harmless.

1The photographs introduced in this case afford a spectrum for aiding

a trial court in determining when expert testimony may be permitted.

There can be no reasonable doubt that the pictures of the robber who

moved from cage to cage was indeed defendant Brown. The res lution

the camera is clear; his likeness unmistakable. Testimony of an expert

be of no useful purpose and hence error, but presumably, harm-

pictures of the man who stood to the rear of the bank are of poor

tion and quality. The only articulable characteristics concerning

ich the expert could testify were generalities, ¢.7., facial eontours,

of sideburns. This foundation would be inadequate, and expert

testimony would be error, perhaps prejudicial, depending upon the

state of other evidence.

The third pictured individual was the fugitive, allegedly Jonathan

Nobles, brother of defendant Nobles. The resolution of the surveillance

pictures is clear, but the conclusion that the individual is Jonathan

Nobles after comparison with a known photograph of Jonathan Nobles

is not entirely free of doubt. An expert, in our opinion, could be useful.

Of course, the diseretion would liv »ith the trial court.

iet

II Nobles Appeal

The evidence against Nobles differs from the case against

Brown and Swain. Most obvieus is the absence of surveillance

photographs, for Nobles is alleged to have been the robber who

stood underneath the eamera rather than within its scope. Second,

no objects were found to connect him to the offense in contrast

to the items seized at the apartment of Brown and Swain. Finally,

the eyewitness testimony was far less impressive against Nobles

than against Brown and Swain.

A bookkeeper at the bank identified Brown and Swain in court

as well as the items of clothing. He could not identify Nobles.

Similarly, the assistant branch manager identified Brown and

Swain in court but could not identify Nobles.

A bank teller, Peter van Gemeren, identified Brown in court.

He did identify Nobles but his testimony was subjected to exten-

sive cross-examination. Likewise, Gary Hoffman, a salesman visit-

ing the bank, pointed out the men alleged to be Brown and

Swain on the surveillanee photographs and described their activi-

ties; he too identified Nobles as having stood by the business

counter. Defense also subjected Hoffman to arduous cross-exami-

nation.

Although Nobles presented an affirmative alibi defense, his

strongest attack was to discredit the key evidence agzinst him:

the eyewitness identification by Van Gemeren and Hoffman. To

do so, his counsel not only emploved cross-examination but also

attempted to introduce expert opinion testimony on the frailties

of evewitness examination in general and to impeach the specific

eyewitnesses by statements made by them to his investigator.

A. Expertise on Eyewitness Identification

Nobles offered the testimony of Dr. Robert Buckhout as an

expert witness to deseribe the problems of evewitness identifiea-

tion in general and the specifie difficulties with the identifications

in this case. The court refused the proffered testimony, conelud-

ing that the testimony would invade the province of the jury,

that the undue consumption of time would substantially outweigh

its probative value, and that the offer of proof was inadequate.

We in turn cannot conelude that the trial court was in error.

United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973).

a ee

B. Impeachment

During the defense case, counsel sought to introduce the testi-

mony of John Bond, chief investigator for the Federal Public

Defenders. Mr. Bond had interviewed the witnesses Van Gemeren

and Hoffman. On cross-examination Van Gemeren had testified

that he did not recall telling Bond that he had seen only the

back of the bank robber beneath the camera; Hoffman, during

eross-examination, had denied telling Bond that all blacks look

alike. Defense counsel's offer of proof was that Mr. Bond would

testify that Hoffman had told him that “all blacks look alike”

and that Van Gemeren had told him that “as far as the man at

the surveillance camera is concerned, he [Van Gemeren] only

saw the back of that man.” Eventually, the court ordered that

impeachment of the witnesses by Bond through these statements

would be conditioned upon the defense agreeing to render to the

government upon completion of the investigator’s testimony the

alleged statements as contained in the investigator's report. Rather

than submit to this condition, defense counsel chose to forego

impeachment, preferring to stand upon his client’s right against

self-inerimination as well as the protection of a work product

rule.

For the reasons stated below, we would hold that, despite the

very limited and seemingly judicious restriction on the defense,

conditioning impeachment with prosecutorial discovery was prej-

udicial error. Admittedly, the order was narrowly drawn. But to

single out any one witness and require as a condition precedent

that his previous statement be produced is inappropriate. The

defendant must have the essential right to call an impeaching

witness; he need not corroborate the credibility of that witness

before calling him to the stand, ie., by producing a prior re-

corded or transeribed statement. Were it otherwise, we would fear

that such requested discovery would become a matter of routine,

a result we desire to avoid.

Although defense counsel did not argue that the condition

impinged on the attorney-client privilege, we deem it appropriate

to comment on the relevance of that privilege.

The proposed Rules of Evidence as tentatively promulgated by

the Supreme Court [hereinafter Court version) included Rule

Dee

503, Lawyer-Client Privilege. 56 F.R.D. 183, 235-240 (1972). That

rule in pertinent part states:

(a)(4) A communication is “confidential” if not intended to

be disclosed to third persons other than those to whom dis-

closure is in furtherance of the rendition of professional legal

services to the client or those reasonably necessary for the

transmission of the communication.

(b) General rule of privilege. A client has a privilege to

refuse to disclose and to prevent any other person from dis-

closing confidential communications made for the purpose

of facilitating the rendition of professional services to the

client, ...., (2) between his lawyer and the lawyers repre-

sentative, ....

Id. at 236. In contrast, the tentative draft of H.R. 5463, 93rd

Cong., Ist sess., as amended by the Subcommittee on Criminal

Justice, House Committee on the Judiciary [hereinafter House

version], contains no specific privilege rules. The House version

would promulgate only a general rule, Rule 501, which provides

that privileges “shall be governed by the principles of the com-

mon law as they may be interpreted by the courts of the United

States in the light of reason and experience... .” U.S.L.W.,

Supplement, p. 6, July 17, 1973. The rule does, however, further

provide that the Supreme Court may prescribe rules pursuant

to statutory authority. Thus, the Supreme Court may some day

preseribe rules such as Rule 503 of its version, the literal mean-

ing of which may arguably serve to protect a communication as

existed between the investigator and counsel for the defense.

But absent any prescribed rules, common law dictates the fed-

eral rules of evidence, and the common law does not protect com-

munications from third persons:

Since the privilege is designed to seeure subjective free-

dom of mind for the client in seeking legal advice ... , it

has no concern with other persons’ freedom of mind nor with

the attorney’s own desire for secreey in conduct of a client's

ease. It is therefore not sufficient for the attorney, in invok-

ing the privilege, to state that the information came somehow

to him while acting for the client nor that it came from some

particular third person for the benefit of the client.

ae es ee «ee -—- ~

ee ee

8 Wigmore, Evidence (McNaughton rev. 1961), § 2317(2) (em-

phasis original).

Defense counsel did strongly assert that to condition impeach-

ment in the manner ordered could infringe upon his client’s right

against self-incrimination. This problem is indeed troubling.

When Federal Rule of Criminal Procedure 16 was amended in

1966, Justices Black and Douglas dissented. Justice Black wrote:

“IT am reasonably certain, however, that the Court’s transmittal

does not carry with it a decision that the amended rules are all

unconstitutional. .. . And I agree with my Brother DOUGLAS

that some of the proposed criminal rules go to the very border

line if they do not actually transgress the constitutional right of

a defendant not to be compelled to be a witness against himself.”

39 F.R.D. 252, 272 (1966). And Justice Douglas stated:

The extent to which a court may compel the defendant to

disclose information or evidence pertaining to his ease with-

out infringing the privilege against self-incrimination is a

source of current controversy among judges, prosecutors,

defense lawyers, and other legal commentators. A distin-

guished state court has concluded—although not without a

strong dissent—that the privilege is not violated by discov-

ery of the names of expert medical witness whose appearance

at trial is contemplated by the defense. I mean to imply no

views on the point, except to note that a serious constitu-

tional question lurks here.

The prosecution’s opportunity to discover evidence in the

possession of the defense is somewhat limited in the proposal

with which we deal in that it is tied to the exercise by the

defense of the right to discover from the prosecution. But if

discovery, by itself, of information in the possession of the

defendant would violate the privilege against self-inerimi-

nation, is it any less a violation if conditioned on the defend-

ant’s exercise of the opportunity to discover evidence? May

benefits be conditioned on the abandonment of constitutional

rights? See, ¢.q., Sherbert v. Verner, 374 U.S. 398, 403-406,

83 S.Ct. 1790, 1793-1795, 10 L.Ed.2d 965. To deny a defend-

ant the opportunity to disecovery—an opportunity not with-

held from defendants who agree to prosecutorial discovery

or from whom discovery is not sought—merely because the

10a

defendant chooses to exercise the constitutional right to re-

frain from self-inerimination arguably imposes a penalty upon

the exercise of that fundamental privilege.

39 F.R.D. at 277 (footnote omitted).

The “distinguished state court” decision, referenced in the

omitted footnote, is Jones v. Superior Court, 58 Cal. 2d 56, 372

P.2d 919, 22 Cal. Rptr. 879 (1962). In Jones, the defendant

charged with rape requested a continuance of trial, alleging that

he had been impotent for a long time, and the continuance was

necessary to gather essential medical evidence. The prosecution

responded with a motion for discovery of witnesses, reports, and

data coneerning the alleged impotence. In holding that the prose-

eutorial discovery was proper, the California Supreme Court

concluded that “sinee the criminal discovery permitted to the

defendant is the result not of a constitutional mandate of due

process but rather of the desire to promote orderly ascertainment

of truth [discovery] should not be a ‘one-way’ street.” G. Lapides,

Cross-Currents in Prosecutorial Discovery: A Defense Counsel’s

Viewpoint, 7 U.S.F.L.Rev. 217, 219 (1973), citing Jones v. Supe-

rior Court, 58 Cal. 2d at 59-60.

More recently, however, the California Supreme Court has vir-

tually limited Jones to its facts. In Prudhomme v. Superior

Court, 2 Cal. 3d 320, 466 P.2d 673, 85 Cal. Rptr. 129 (1970), the

court wrote:

Our decision in Jones was based primarily upon our con-

viction that sinee discovery is a valuable tool for ascertaining

the truth, it should be conducted along a “two-way street”

in criminal as well as civil proceedings, to the extent per-

mitted by constitutional principles. We readily acknowledge

that pretrial disclosure would greatly facilitate the adminis-

tration of criminal justice by minimizing the element of sur-

prise, avoiding unnecessary delays and continuances, redue-

ing inconvenience to the court, counsel, jurors and witnesses,

and permitting more effective pretrial preparation. However,

certain significant developments in the law since Jones was

decided in 1962 caution us not to extend its holding beyond

its facts without careful consideration of the possible effects

which such an extension could have upon the aceused’s rights

Ee LOCC

lla

and privileges, and especially his fundamental right not to be

compelled to be a witness against himself.

We had oceasion, in People v. Schader, 71 Cal.2d 761, 770

(80 Cal. Rptr. 1, 457 P.2d 841], to analyze the policy which

underlies the privilege against self-inecrimination and recog-

nized, “. . . with the United States Supreme Court, ‘that the

American system of criminal prosecution is aceusatorial, not

inquisitorial, and that the Fifth Amendment privilege is its

essential mainstay. . . . Governments, state and federal, are

thus constitutionally compelled to establish guilt by evidence

independently and freely secured, and may not by coercion

prove a charge against the accused out of his own mouth.’

(Malloy v. Hogan (1964) 378 U.S. 1, 7-8... .) The People

must ‘shoulder the entire load’ of their burden of proof in

their case in chief, without assistance either from the defend-

ant’s silence or from his compelled testimony. [Citations].”

(See also Murphy v. Waterfront Com. of N.Y. Harbor, 378

U.S. 52, 55 [12 L.Ed.2d 678, 681-682, 84 S.Ct. 1594].)

Thus, if we analyze Jones in the light of the policy consid-

erations discussed in Schader, it is apparent that the prin-

cipal element in determining whether a particular demand

for discovery should be allowed is not simply whether the

information sought pertains to an “affirmative defense,” or

whether defendant intends to introduce or rely upon the

evidence at trial, but whether disclosure thereof conceivably

might lighten the prosecution’s burden of proving its case in

chief. Although the prosecution should not be completely

barred from pretrial discovery, defendant must be given the

same right as an ordinary witness to show that disclosure of

particular information could incriminate him.

An ordinary witness need not actually prove the existence

of an incriminatory hazard as that would surrender the very

protection which the privilege against self-incrimination was

designed to guarantee. Instead, the privilege forbids com-

pelled disclosures which could serve as a “link in a chain”

of evidence tending to establish guilt of a criminal offense;

in ruliag upon a claim of privilege, the trial court must find

that it clearly appears from a consideration of all the cirecum-

12a

stances in the case that an answer to the challenged question

cannot possibly have a tendency to ineriminate the witness.

Id. at 323, 325, 326, 466 P.2d at ........ , 85 Cal. Rptr. at ....... ( foot-

notes and citations omitted; emphasis supplied).

The California Supreme Court is not alone in this respect. In

United States v. Fratello, 44 F.R.D. 44, 449, 451 (S.D.N.Y.

1968), Judge Pollack coneluded:

If, therefore, the items sought from the defendants are of a

class of evidence which would ordinarily be privileged from

disclosure under the Fifth Amendment, the defendants ought

not be required to disclose them prior to the establishment

on trial of the government’s prima facie case.

Until appellate guidance appears which indicates that, in

the absence of special cireumstances, the price sought by the

prosecution for pre-trial disclosure of its records is not to be

treated as an encroachment on the privilege, this Court is

not prepared to condition discovery by the defendant under

Rule 16(b) on pre-trial disclosure of privileged records in the

possession or control of the defendant. In this connection it

is noted that Courts usually accept the defendant's view of

what records may be self-incriminatory.

Citations omitted; emphasis supplied.

Yet, Prudhomme and Fratello dealt with pretrial prosecutorial

discovery as well as the constitutional concerns of conditioning

defense discovery upon the possibility of enhancing the govern-

ment’s ease in chief. In the instant case, of course, the discovery

would have been during trial and useful only in rebuttal. Then,

too, both Prudhomme and Fratello preceded Williams v. Florida,

399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), which upheld

the constitutionality of a state’s notice of alibi statute in the face

of fifth amendment assault. We would, nevertheless, conclude that

the fifth amendment remains relevant in the instant circumstances.

In United States v. Wright, 489 F.2d 1181 (D.C. Cir. 1973),

the Cireuit for the District of Columbia faced an analogous situa-

tion. The appellant’s court-appointed counsel had employed an

investigator from the Public Defender Service. The investigator

interviewed potential witnesses and sent to counsel a report con-

~~ A A te

13a

sisting of summaries of the interviews. At trial the court ordered

the investigator who had testified in behalf of the defense to turn

over a copy of the report to the government. True, the order was

to forward the entire report rather than to specific, relevant por-

tions as were ordered here, but potential incrimination exists in

both circumstances.

The court concluded that the principle that criminal discovery

must inevitably remain basically a one-way street is firmly

imbedded in our common law tradition. 7d. at 1192. As that cir-

cuit also noted,

There has been some attempt in recent years to increase

the Government’s right to discovery in criminal cases—for

example, through statutes requiring the defense to give pre-

trial notice of the names of witnesses to be called as part

of an alibi defense. But as the Supreme Court has empha-

sized in holding such statutes constitutional under the Fifth

Amendment, they only require the defense to turn over to

the Government information which the defense intends to

reveal at trial. See Williams v. Florida, 399 U.S. 78, 85, 90

S.Ct. 1893, 26 L.Ed.2d 446 (1970).

Id. at 1194. (Emphasis added). In the instant case, the defense

prior to the cross-examination of the government's witnesses

surely could not have intended to reveal its own information

when the witnesses may have admitted its import during cross-

examination. And if the witnesses had admitted that they had

made such statements as “all blacks look alike” or “I only saw

him from the back” to the investigator, the government would

have had the responsibility of resurrecting its witnesses’ testimony

by eliciting any rehabilitating statements by those same wit-

nesses.”

2Enterprising counsel may arguably assert that the evidence doctrine

of completeness, e.g., Cal. Evid. Code § 356 and Proposed Federal Rules

of Evidence, Court version 107, House version 106, would require dis-

elosure. But as the comment to § 356 by the Assembly Committee on

the Judiciary implies, the doctrine is not a discovery device, but rather,

only permits certain relevant evidence to be admitted that would other-

wise be inadmissible. The burden is on the adversary to “inquire,” that

is, cross-examine or rebut.

Sinee the Proposed Federal Rule may shift that burden, i.e., the

adversary may “require” admission of the entirety, it would conceivably

l4a

Since the witnesses, for whatever reasons, denied making the

initial damaging statement, the defense had no alternative but to

present its impeachment evidence, i.¢., Bond’s testimony.’ If the

prosecutor doubted the validity of the contexts in which the pur-

ported statements were made as testified to by Bond, he surely

had access to his own witnesses and by their testimony could have

offered rebuttal to Bond’s version. In summary, then, we agree

with the Cireuit for the District of Columbia that

The defendant has a right under the Fifth Amendment to

compel the state to investigate its own ease, find its own evi-

dence, and prove its own facts. The defense has no duty to

help the prosecution convict the defendant. We therefore

reject any rule which would require the defense to turn over

to the prosecution prior statements of defense witnesses which

could be used by the prosecution as evidence against the

accused.

Id. at 1195. See also People v. Bais, 31 Cal. App. 3d 663 (1st

Dist. 1973).

The Wright panel also examined that discovery order from the

perspective of the Federal Rule of Criminal Procedure 16 and

the Jencks Act, 18 U.S.C. § 3500,4 as we must.

be utilized as a discovery tool. But the proposed rule only encompasses

writings or recorded statements introduced into evidence, not the testi-

mony of an individual, albeit that his recollection may be memorialized.

3That impeachment is the only alternative was not lost to the prose-

eutor. At the close of trial, he argued:

Mr. MacIntyre: ... Mr. Bond never testified in the trial as to

anything Mr. Hoffman did or did not say to him.

Mr. Hoffman, you heard his testimony, and I submit to you he

denied the questions, said, “No,” to the questions that were asked

by Mr. Allis. If he testified any differently Mr. Bond would have

testified in this courtroom to you as to what the inconsistencies were,

and Mr. Bond did not so testify. You heard his testimony.

R.T. at 745, lines 6-14.

4The panel in Wright gave due consideration to the problem which

could arise if a witness refreshed his recollection. (There is nothing in

the record to suggest Bond used his reports to refresh his recollection.)

That court considered it “hornbook rule of evidence that, had [the

investigator] used parts of his report to refresh his recollection while

OOOO EE

15a

Before the promulgation of the original rules of criminal proce-

dure, it was doubtful whether criminal discovery was permitted.

In 1986, however, Rule 16 was liberalized toward greater dis-

covery.

The pertinent portions of Rule 16 are as follows:

(b) Other Books, Papers, Documents, Tangible Objects

or Places. Upon motion of a defendant the court may order

the attorney for the government to permit the defendant to

inspect and copy or photograph books, papers, documents,

tangible objects, buildings or places, or copies or portions

thereof, which are within the possession, custody or control of

the government, upon a showing of materiality to the prep-

aration of his defense and that the request is reasonable.

Except as provided in subdivision (a)(2) [examinations,

tests, experiments], this rule does not authorize the discovery

or inspection of reports, memoranda, or other internal gov-

ernment documents made by government agents in connec-

tion with the investigation or prosecution of the case, or of

statements made by government witnesses or prospective gov-

ernment witnesses (other than the defendant) to agents of

the government EXCEPT as provided in 18 U.S.C. § 3500.

(e) Discovery by the Government. If the court grants

relief sought by the defendant under subdivision (a)(2) or

subdivision (b) of this rule, it may, upon motion of the

government, condition its order by requiring that the defend-

ant permit the government to inspect and copy or photo-

on the witness stand, the prosecution would be entitled to examine those

parts of the report and would be permitted to make use of those parts

of the report in cross-examining [him).” 489 F.2d at 1188 (emphasis

added). As noted by that panel, however, refreshing recollection prior

to testifying may stand in different posture. See McGill v. United States,

270 F.2d 329, 331 (D.C. Cir. 1959) ; see also, Sullivan v. Superior Court,

29 Cal. App. 3d 64, 105 Cal. Rptr. 241 (1st Dist. 1972) [attorney-

client privilege applicable when client previously refreshes recollection].

The Court version of Proposed Rule 612 generally permits an adver-

sary to inspect, cross-examine from, and introduce portions of a writing

used by a witness to refresh his recollection either before or while testi-

fying. The House version has amended this by requiring the ecurt in its

discretion to determine that it be necessary in the interest of justice

before a writing be divulged that has been used for prior refreshing of

recollection.

16a

graph scientific or medical reports, books, papers, documents,

tangible objects, or copies or portions thereof, which the

defendant intends to produce at the trial and which are

within his possession, custody or control, upon a showing of

materiality to the preparation of the government’s case and

that the request is reasonable. Except as to scientific or medi-

eal reports, this subdivision does not authorize the discov-

ery or inspection of reports, memoranda, or other internal

defense documents made by the defendant, or his attorneys

or agents in connection with the investigation or defense of

the case, or of statements made by the defendant, or by gov-

ernment or defense witnesses, or by prospective government

or defense witnesses, to the defendant, hig agents or attor-

neys.

Emphasis and capitalization added.

Each subsection contains a work product® savings clause, 1.e.,

the italicized portions. But the government’s work product is sub-

ject to an important exception, the Jencks Act, 18 U.S.C. § 3500,

which provides in relevant part:

5To apply the work product rule to criminal law is not unusual:

Although the . . . policies supporting protection of an attorney’s

work product {have been} stated with reference to civil litigation,

they are even more strongly applicable in criminal proceedings.

There is “an especially strong tendency toward the protection of

materials as the ‘work product’ of an attorney in criminal cases.

Thus, in relevant criminal cases (admittedly few), the courts have

consistently held statements by witnesses . . . to be the ‘work

product’ of an attorney.” Annot., 35 A.L.R.3d 424 (1971) (foot-

notes omitted) (emphasis added). In State v. Montague, 101 N.J.

Super. 483, 244 A.2d 699 (1968) the state sought access to the

defendant’s attorney’s notes concerning interviews with prospective

witnesses. The court states:

“(We are satisfied that the notes here in question represented

the work product of defendant's attorney and, under the doctrine

of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451

(1947), production should not have been compelled. The fears

therein expressed with regard to the inviolability of on attorney's

thoughts and the possibility of inefficiency, unfairness and sharp

practice are equally applicable to the setting of a criminal case.”

244 A.2d at 702.

In re Grand Jury Proceedings, Duffy v. United States, 473 F.2d 840,

846 (8th Cir. 1973).

17a

(b) After a witness called by the United States has testi-

fied on direct examination, the court shall, on motion of the

defendant, order the United States to produce any statement

(as hereinafter defined) of the witness in the possession of

the United States which relates to the subject matter as to

which the witness has testified. If the entire contents of any

such statement relate to the subject matter of the testimony

of the witness, the court shall order it to be delivered directly

to the defendant for his examination and use.

(e) The term “statement”, as used in subsections (b),

(ec), and (d) of this section in relation to any witness called

by the United States, means—

(1) a written statement made by said witness and signed

or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other re-

cording, or a transcription thereof, which is a substantially

verbatim. recital of an oral statement made by said witness

and recorded contemporaneously with the making of such

oral statement; or

(3) a statement, however taken or recorded, or a tran-

scription thereof, if any, made by said witness to a grand

jury.

Thus, while Rule 16 is framed in terms of pretrial discovery, its

inclusion of the Jencks Act leads us to conclude that Rule 16 has

relevance to discovery during trial. And specifically, defense may

discover, for purposes of impeachment, statements of government

witnesses who have testified. Buf no such exception is included

within the terms of subsection (c). We would conclude that the

work product of defense is inviolable in these cireumstances.* See

6We may note that new proposed amendments to the Federal Rules of

Criminal Procedure are pending and will be effective August 1, 1974,

unless sooner stayed by Congress. It must be noted that the proposed

changes include the addition of Rule 12.1, Notice of Alibi, and 12.2,

Notice of Defense Based Upon Mental Condition. Also, Rule 16 has

18a

also, United States v. Wright, 489 F.2d 1181, 1189-90 (D.C. Cir.

1973).

Finally, the court may make brief comment upon the alleged

misconduct of the prosecutor. A review of the entire transcript

permits us to conclude that the prosecutor’s conduct does not

require reversal. In fact, the record indicates that the trial judge

conducted the case most properly, and the defendants received a

fair trial.

Affirmed in part, reversed in part, remanded.

undergone revision; of particular note is the revised Rule 16(b), Dis-

closure of Evidence by the Defendant:

(1) Information subject to disclosure.

(A) Documents and tangible objects. Upon request of the govern-

ment, the defendant shall permit the government to inspect and copy

or photograph books, papers, documents, photographs, tangible objects,

or copies or portions thereof, which are within the possession, custody

or control of the defendant and which the defendant intends to introduce

as evidence in chief at the trial.

(B) Reports of examinations and tests. Upon request of the gov-

ernment, the defendant shall permit the government to inspect and copy

or photograph any results or reports of physical or mental examinations

and of scientifie tests or experiments made in connection with the par-

ticular case, or copies thereof, within the possession or control of the

defendant, which the defendant intends to introduce as evidence in chief

at the trial or which were prepared by a witness whom the defendant

intends to call at the trial when the results or reports relate to his

testimony.

fendant shall furnish the government a list of the names and addresses

of the witnesses he intends to call in the presentation of the case in

chief. When a request for discovery of the names and addresses of

witnesses has been made by the government, the defendant shall be

allowed to perpetuate the testimony of such witnesses in accordance

with the provisions of Rule 15.

It must be emphasized, however, that Rule 16(b)(2), Information not

subject to disclosure, retains the inviolability of internal defense docu-

ments.

19a

KILKENNY, Concurring and Dissenting:

BROWN AND SWAIN APPEALS

I coneur in the affirmances of tiie Brown and Swain convie-

tions, but not for the reasons stated by the majority. It is my

considered judgment that the records on these appeals are free

from error.

NOBLES’ APPEAL

Turning now to the Nobles’ appeal, I find myself in complete

disagreement with the conclusions of the majority on the issue

of impeachment by the defense witness, Bond.’ To understand the

issue, it is necessary to outline in detail the events leading up to

the action of the trial judge.

On direct examination, the government witness Hoffman iden-

tified Nobles as the robber standing under the surveillance camera

and also identified him from a photo spread and at a police

line-up prior to trial. On cross-examination, Nobles’ attorney asked

Hoffman, “And isn’t it a fact that you told Mr. Bond that to you

all the blacks appear to be alike?” Hoffman responded, “I don't

believe I indicated that to him.” Continuing, the attorney inquired,

“You do not recall stating that to Mr. Bond?” Hoffman replied,

“No, I do not.” Nobles’ attorney repeated, “That all blacks look

alike.” Hoffman responded, “No, I do not, sir.” At that time, in

a bench conversation outside the presence of the jury, the prose-

eutor requested defense counsel to furnish a copy of “any inter-

view, notes or recorded statements of Mr. Bond—in regard to a

phone eall.”,2 and noted “I notice he has a copy, and I would

like to have a copy of that at this time before I am able to pro-

ceed with redirect examination of the witness.” Defense counsel

objected. The judge indicated sympathy with the government's

view and asked defense counsel to furnish authority indicating

that the government was not entitled to the memorandum. After

defense counsel, for the second time, rejected the demand of the

prosecutor to see the document, the judge conducted a hearing

and held that the prosecutor was not entitled to see the investi-

gator’s memorandum until Bond took the witness stand and im-

peached Hoffman’s testimony in connection with the memorandum,

1Chief Investigator, Federal Public Defenders Association.

2Tt is conceded that the conversation was by way of phone.

and then only to the extent that any and all statements of any

defendant be excised prior to the delivery to the prosecutor.®

Later, defense counsel called Bond. The court inquired as to

the nature of Bond’s testimony. Counsel responded that the wit-

ness would testify as to certain photographs and that “. . . he is

going to impeach two statements of Mr. Hoffman.” The court then

inquired of defense counsel whether he would turn over, at the

completion of Bond’s testimony, the relevant portions of the docu-

ment to the prosecution. Defense counsel refused. The court there-

upon indicated that those portions of the testimony dealing with

the impeachment would be excluded.* After an extended colloquy

in which the judge fully explained that he would only require

the defense to permit inspection of those portions of the memo-

3*THE COURT: ... The Court is going to rule as follows: first

of all, the government may not have the memorandum until the witness

has taken the stand and has indicated the particular impeaching testi-

mony which was the last part of Mr. Hoffman's testimony relative to his

inability to distinguish between people of the black race. And if he does

make such a statement, if he and Mr. Bond make such a statement, then

I belicve the government is entitled to an examination of the memo-

randum—not before that time—but after that time, after he has com-

pleted his entire testimony ....

“THE COURT: I will say this to assist you, Mr. Allis, while I think

about it. I am sure there are no statements of any of the defendants

contained in this particular memorandum, and my order is going only to

this particular memorandum. I am not generalizing on any other

memorandum or memoranda which you may have. It goes only to this

particular memorandum involving the particular witness Hoffman. If

you represent to me that there are matters contained therein, such as

recitals by the defendants or your defendant, of course, 1 would view

it imperative that you have the opportunity to excise that, perhaps after

an in-camera session with the Court, or something of that nature.”

[R.T. 470-471}.

4“THE COURT: Mr. Allis is an officer of the court, and [if] Mr.

Bond is allowed to testify it would be necessary that those portions of

Mr. Bond’s investigative report which contain the statements of the

impeached witness will have to be turned over to the prosecution;

nothing else in that report.

“If Mr. Allis indicates to me that he refuses to do that, then I am

not going to allow the particular witness to testify in that area. Now,

it is entirely up to Mr. Allis as to what portion, if any, of Mr. Bond's

testimony he wishes to elicit.” [R.T. 520).

2la

randum which dealt with the impeaching questions propounded

to Hoffman, the court offered to expedite the trial by examining

the report in camera and there excise such portions not relevant

to the Hoffman impeachment. Defense counsel again rejected the

court’s offer with a statement of his position.> Defense counsel

then proceeded with the examination of Bond as a defense wit-

ness, but did not ask him whether or not Hoffman had made

the statement during the telephone conversation of April 6, 1973,

“ that all blacks appear to be alike.”

Obviously, the appellant is in no better position than if Bond

had been called, testified that Hoffman had made the statements

and on eross-examination was asked if he had made any notes at

the time of the telephone conversation, responded that he had

and then the prosecutor had asked for the production of the

notes. If defense counsel, after a direct order from the judge,

failed to produce the notes for inspection, the judge, no doubt,

would have ordered the testimony stricken and the jury would

have been instructed to disregard it. Here, as often happens in

a well-tried case, the judge and the attorneys anticipated the

problem and defense counsel was saved the embarrassment of

having the testimony stricken in the presence of the jury. It may

have been a good trial tactic, but I do not believe appellant is

entitled to cash in on it.

The record is clear that defense counsel had the Bond state-

ment on his desk and was utilizing it in connection with the

eross-examination of Hoffman. If the trial had followed the cus- -

tomary course and Bond had taken the witness stand, without

the preliminary discussions and the court’s advisory ruling on the

production of the statement, Bond, no doubt, would have said

that he used the statement to refresh his memory. For that matter,

the record of the proceedings necessarily points to this conclusion.

Additionally, there was nothing amateurish about defense coun-

sel’s performance and it would be doing him a great injustice to

5“MfR. ALLIS: My position at this time, your Honor, Rule 16 is

that the other discovery consents in the Federal Court, that the Fourth,

Fifth and Ninth Amendments protect the defendant in whose possession

the reports are from turning them over for any reason. ne

“THE COURT: We are not talking about pretrial diseovery. This is

post testimony diseovery. It has been carefully considered by the Court,

and I am narrowing my ruling to the very specific area.” [R.T. 526].

22a

assume that he did not properly prepare the witness by having

him read the memorandum. In these cireumstanees, the price a

defendant must pay for having a witness take the witness stand,

and testify contrary to declarations of another witness, is to

throw open the entire subject to normal cross-examination and

to make his testimony vulnerable where, otherwise, it might have

been shielded. Surely, the appellant cannot claim for this witness

a right which was not available to himself if he had taken the

witness stand under the same circumstances.

Closely in point is Marris v. New York, 401 US. 222 (1971),

where the court approved the introduction of a statement on

cross-examination which could not have constitutionally been

utilized on the direct examination of the defendant. There the

court held that the defendant, having voluntarily taken the stand,

was under an obligation to speak truthfully and accurately, and

that in confronting him with his previous statement, the prose-

eution was doing no more than utilizing the traditional truth-

testing devices of the adversary process. Here, if produced, the

memorandum might show that Bond did not inelude the alleged

material forming the basis for the impeaching questions to Hoff-

man, If that were true, the integrity of Bond's testimony would

be severely diminished. The prosecutor, in requesting the produc-

tion of the statement for cross-examination, was doing “. . . no

more than utiliz{ing] the traditional truth-testing devices of the

adversary process.” 401 U.S. at 225. One of the most common

practices employed in the art of cross-examination is to ask for

the production of any notes or statements which a witness may

have used to refresh his recollection.

The purpose of a trial is to develop the truth, not suppress it.

We can assume that appellant’s counsel was not playing games

and that the memorandum probably made no reference to the

impeachment questions propounded to the witness Hoffman. Other-

wise, there would be no logical reason for the refusal to pro-

duce it.

My conclusions with reference to the questions propounded to

Hoffman are equally applicable to the questions propounded to the

witness Van Gemeren.

We are not here confronted with pretrial discovery proceedings,

such as those before the court in the California cases cited by

9 ts Oe

23a

the majority, and United States v. Fratello, 44 F.D.R. 444, 449,

451 (S.D. N.Y. 1968), speaking to the same type of procedure.

Much more akin to our problem, as recognized by the majority,

is Williams v. Florida, 399 U.S. 78 (1970), where a state notice

of alibi statute was upheld in the face of a Fifth Amendment

constitutional challenge.

United States v. Wright, 489 F.2d 1181 (CA DC 1973), is

closer to the target, but is distinguishable on at least three impor-

tant grounds: (1) in Wright the order was overly broad and

required defense counsel to surrender for inspection the entire

report, rather than the specifie portions relevant only to the

impeaching question; (2) there, the prosecutor was seeking the

statement to use it as substantive evidence, rather than for im-

peachment purposes; and (3) Wright recognizes, as a Hornbook

rule of evidence, that had the investigator used parts of his

report to refresh his recollection, the prosecution would be entitled

to examine those parts of the report relating to impeachment, and

would be permitted to make use of them in the cross-examination.

The opinion then goes on to emphasize that the investigator did

not use the report to refresh his recollection. In Wright, there

was evidently nothing in the record to warrant the court in

assuming that the statement in the investigative report was used

by the witness to refresh his recollection. Here, as previously

mentioned, I feel that the presence of the statement on counsel

table, his use of the statement in interrogating Hoffman and his

lengthy colloquy with the court and opposing counsel would

clearly indicate that Bond had so refreshed his recollection.

Rule 612, Proposed Federal Rules of Evidence, as submitted to

the Congress by the Supreme Court, permits an adversary to

inspect, cross-examine on and offer in evidence portions of a writ-

ing used by a witness to refresh his recollection either before or

while testifying. The House has proposed an amendment which

would require the court, in its diserction, to pass on whether

the interests of justice would be served by divulging the contents

of the writing. The proposed legislation is in line with the in

camera inspection here suggested by the trial judge. In any event,

it is crystal clear that the decision in Wright turns on the over-

broadness of the order requiring the production of the report.

We quote from page 1189:

24a

“In addition, the rules governing documents used to refresh

recollection could in no event justify requiring Reeves to turn

over his entire investigative report to the prosecution. As a

defense witness Reeves testified only as to two matters—his

interview with Richardson on January 19 and his examina-

tion of the lighting conditions at the scene of the crime.

Assuming they had been used to refresh his recollection at

trial, those parts of his investigative report relative to this

testimony and of possible use to the Government in cross-

examining Reeves with respect to this testimony would have

to be turned over to the prosecution.”

@ e @ @ e

“Byen if Reeves used the report to refresh his recollection,

only those parts of the report relating to his testimony on

direct need have been turned over to the Government.”

Here, the majority concedes that the order was stated with pre-

cision and limited to the challenged areas of impeachment.

As repeatedly stated by the trial judge, we are not here con-

cerned with the Jencks Act, 18 U.S.C. § 3500, or with Rule 16,

FRCrimP. Our problem centers on a simple common law eviden-

tiary question of whether a witness, who was ealled for impeach-

ment purposes, must produce the notes he admittedly made on

the subject of impeachment.

Finding no error, I would affirm the judgment of the lower

court.

PERNAU-WALSH PRINTING CO., SAN FRANCISCO 6-20-74—480

—_

woe wre ter me /

APPENDIX B

In the United States Court of Appeals for the Ninth

Cireuit

No. 73-2279, No. 73-2678, No. 73-2280

Unitep StTaTEs OF AMERICA, PLAINTIFF-APPELLEE

TomMIE Louis Brown; Vira Davip Swain; ROBERT

LEE NOBLES, DEFENDANTS-APPELLANTS

D.C. No. 12113

APPEALS from the United States District Court

for the Central District of California.

THIS CAUSE came on to be heard on the tran-

script of record from the United States District Court

for the Central District of California and was duly

submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

judgment of the said District Court in this cause be,

and hereby is affirmed in part, reversed in part,

remanded.

Filed and entered June 10, 1974.

(25a)

APPENDIX C

In the United States Court of Appeals for the Ninth

Circuit

No. 73-2279, No. 73-2678, No. 73-2280

Unitep StaTes oF AMERICA, PLAINTIFF-APPELLEE

Tommir Lovis Brown: Virai. Davin Swain; ROBERT

LEE NOBLES, DEFENDANTS-APPELLANTS

Before Ety and Krxenny, Circuit Judges, and

EnriGE tT, District Judge*

Order—Filed September 23, 1974

Judges Ely and Enright have voted to deny the

Petition for Rehearing in the subject cases. Judge Ely

votes to reject the suggestion for en banc rehearing,

and Judge Enright recommends the rejection of such

rehearing. Judge Kilkenny votes to grant panel re-

hearing and, alternatively, recommends the adoption

of the suggestion for en bane rehearing.

The full court has been advised of the suggestion

for an en bane hearing, and no judge of the court has

requested a vote on the suggestion for rehearing en

bane. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing en banc is rejected.

*Honorable William B. Enright, United States District

Judge for the Southern District of California, sitting by

designation.

(26a)

US GOVERNMENT PRINTING OFFICE: 1974

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.