Opposition — United States v. Nobles

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74 634

IN THE

SUPREME COURT OF THE UNITED STATES

3 —

OCTOBER TERM, 1974 , Supreme Court, U. .

4 FILED

5 DEC 26 1792

6 MICHAEL RODAK, S ci roe |

NO. —

1 UNITED STATES OF AMERICA, Petitioner

11 v.

12 !

13 ROBERT LEE NOBLES, Respondent

1 The Respondent, ROBERT LEE NOBLES, who is presently

- incarcerated at the Federal Correctional Institution,

. Leavenworth, Kansas, by his undersigned counsel, asks leave to

file the attached Brief Opposing Petition For A writ of

2 Certiorari to the United States Court of Appeals for the Ninth

2 Circuit without payment of costs and to proceed in forma

2 pauperis pursuant to Rule 53.

The affidavit of Respondent's counsel in support of

this motion is attached hereto.

25 NA. wall 1

4 Ww

26 NVA R. ALLIS

Deputy Federal Public Defender

0 | BEST COPY AVAILABLE

9 V

1 $1

Pri -@andstone

3174 100 — 1073

Pri -Sancstone

$-1-74-100M—1073

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

UNITED STATES OF AMERICA, Petitioner

ROBERT LEE NOBLES, Respondent

AFFIDAVIT

I, Nicholas R. Allis, being first duly sworn

according to law, depose and state, in support of Respondent's

motion for leave to proceed without being required to prepay

costs for fees:

1. I am a Deputy Federal Public Defender for the

Central District of California appointed pursuant to the

Criminal Justice Act of 1964 to represent the Respondent at

trial and on appeal to the United States Court of Appeals for

the Ninth Circuit.

2. I am satisfied that his financial obligations and

his income are substantially the same as at the time of my

initial appointment. Consequently, because of his poverty he

is unable to pay the costs of said cause and he is unable to

give security for the same.

@o 2 o@ a a eo w

51-74 - 100M — 1073

3. Petitioner believes that he is entitled to the

redress he seeks in said cause.

rt J All

NICHOLAS R. ALLIS

Deputy Federal Public Defender

SUBSCRIBED AND SWORN to before

DEC 24 1974

me this day of December, 1974.

Ri teres Aua.

Notary Publ

Pr! -Bercewne

5 17% -100M 1073

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

UNITED STATES OF AMERICA, Petitioner

ROBERT LEE NOBLES, Respondent

BRIEF OPPOSING PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

JOHN K. VAN DE KAMP

Federal Public Defender

NICHOLAS R. ALLIS

Deputy Federal Public Defender

Rm 707, United States Courthouse |

312 N. Spring Street

Los Angeles, California 90012

Telephone: (213) 688-4796 |

Counsel for Respondent

* = 808 oa a eo w

1 len 1073

TABLE OF CONTENTS

Table of Authorities

Order Below

Jurisdiction

Questions Presented

Statement of the Case

Reasons for Not Granting the Writ

Conclusion

Certificate of Service

Appendix

Opinion of the United States Court

Of Appeals for the Ninth Circuit

Judgment of the Court of Appeals

Court of Appeals Suggestion for

Rehearing en banc

Page

Alford v. United States

282 U.S. 687, 691, 692 (1931)

Alma Motor Co. v. Timken Detroit Axle

Co., et al.

329 U.S. 129, 136

Ashwander v. Tennessee Vall Authorit

297 U.S. 288, 347 (1935)

Barr v. Matteo

355 u.S. 171, 172 (1957)

Berger v. United States

295 U.S. 78 (1935)

Boyd v. United States

16 U.S. 616 (1886)

Brady v. Ma land

73 U.S. 83 (1963)

Brooks v. Tennessee

406 U.S. 605, 610-11 (1972)

Bruton v. United States

391 U.S. 123 (1968)

Caldwell v. United States

205 F.2d 879 (D.C. Cir. 1953)

Charles River Bridge v. Warren Bridge

Pet. 420, 553 837)

Coplon v. United States

191 F.2d 749 (D.C. Cir. 1951)

Garrity v._New Jersey

385 U.S. 493, 500 (1967)

Glasser v. United States

315 U.S. 60, 76 (

21, 22,

11. 32

scsoexses#'°*+ 2

Cases

iffin v. cali fornia

U.S. 6

Vv.

1 U.S. 1 11226

Hickman v. Taylor

v. 8. ast 1847)

fa v. Unites States

U.S. 0 n. 7 (1966)

U.S. 4 *

Cal. 2 0 0 Cal Rptr 879

8. . » 56 (1899)

U.S. ° 911)

Malley v.

8 U.S. 1 (1964)

364 0 5 v. Arizona

U.S. 436, 460 (1966)

Murphy v. Waterfront Comm'n of New

sorte tices

378 U.S. 52, )

Pointer v. Texas

u.S. 400, 3 (1965)

ll v. Alabama

u.S. 45, 1932)

Prudhomme v. Superior Court of Los Angdes

county

2 Cal. 3d 320, , 85 Cal.Rptr 129,137 (1970)

iii

25, 31

26, 28,

TABLE OF AUTHORITIES (CONT'D )

—

c rv.

lifornia

U.S. 757, 761 (1966)

eater v. 198 135 & Nashville R. Co.

U.S. *

Sammons v. United States

U.S. 37 *

Slochower v. Board of Education

350 U.S. 551 (1956)

tor Motor Co. v. Metaugniin

U.S. 0 * 10 (1

Spevack v. Klein

385 U.S. 511 (1967)

United States v. German

32 F.R.D. 421 G. Bo kee 1963)

United States v. Judson

322 F.2d 460 (9thCir. 1963)

nited States v. Venuto

182 F.2d 519 (3d Cir. 1950)

United States v. White

U.S. (1

United States v.

35 10.

489 F.2d 1181, 11 C.A.D.C)

Williams v. Florida

399 U.S. 78, 82 (1970)

Constitution and statutes:

United States Constitution,Fifth Amendment

United States Constitution, Sixth Amendment

21, 23

22, 24

13,

20, 23, 25

21,22,

25, 26, 27, 28

28, 29, 30, 31.

23, 24,

}

—

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51-74 100M — 1073

TABLE OF AUTHORITIES (CONT'D)

Supreme Court Rules, Rule 19(1)

The Jencks Act, 18 U.S.C. §3500

Federal Rules Criminal Procedure

Proposed Federal Rules of Criminal Procedure

Proposed Federal Rules of Evidence

Miscellaneous:

Formal Opinion No. 23, A.B.A. Committee

on Professional Ethics

A.B.A. Standards, Providing Defense Service

§1.5 (Approved Draft, 1968)

A. B. N. Standards, The Defense Functions

54.1 (Approved Draft, 1971)

Annotation, Development, since

Payor. of attorney's Work P

ALR 3d 412

Wright,

Federal Practice and Procedure,

Vol. I, § „ at 490

8 J. Wigmore, Evidence (McNaughton Rev. 1961)

ickman v.

uct Doctrine,

Stern, R. and Gressman, E., Supreme Court

Practice (4th Ed. 1969)

comment, work Product’ in Criminal Discovery”

1966 Wash. U.L.Q. 321 (1966)

Note Developments in the Law, Discovery 74

Harv. Law Rev. 941, 1063 (1961)

M. Moore, “Criminal Discovery”, 18 The Hastings

Law Journal, 865, 907 (1968)

20,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

UNITED STATES OF AMERICA, Petitioner

Vv.

ROBERT LEE NOBLES, Respondent

BRIEF OPPOSING PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Respondent, through his counsel, hereby opposes

the petition of the United States for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the Ninth Circuit in the above-captioned case.

OPINION BELOW

The opinion of the court of appeals (Appendix A) is

reported at 301 F.2d 146.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 10, 1974 (Appendix B). On September 23, 1974, the court

of appeals denied a petition for rehearing with a suggestion

for rehearing en banc (Appendix Cc). By order of October 12,

1974, Mr. Justice Douglas extended the time for filing a

petition for a writ of certiorari to and including November 22,

owe

1974. The petition was received by respondent's attorney on

November 27, 1974. The jurisdiction of this Court is invoked

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

QUESTIONS PRESENTED

Whether in a criminal trial, prior to the direct

examination of a defense investigator, called by the defense

to impeach the testimony of a government witness, the trial

court may order the witness not to testify unless he provides

the prosecutor portions of his investigative report to Gotense |

counsel relating to the subject matter of his testimony.

CONSTITUTIONAL, STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Constitution of the United States, Fifth Amendment:

No person * * * shall be compelled in any

criminal case to be a witness again st himsel f.

Constitution of the United States, Sixth Amendment:

In all criminal prosecutions, the accused shall

enjoy the right co be confronted with

the witners against him; to have compulsory

process for obtaining witnesses in his

favor, to have the Assistance of Counsel for

his defense.

18 U.S.C. §3500 provides in pertinent 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 defendant)

shall be the subject of subpena, discovery,

or inspection until said witness has testified

on direct examination in the trial of the case.

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3174100. 107

(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 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 corm “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 recorded,

or a transcription ther of, if any, made

by said witness to a grand jury.

Rule 16 of the Federal Rules of Criminal procedure provides

in pertinent part:

9 ee K

FPI-Sandstone

5-1-74— 1004 1073

(b) Other Books, Papers, Documents,

Tangible Objects Or Places

+++ Except as provided in subdivision

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

discovery 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.. 53500.

(Cc) 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 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 materiality

to the preparation of the government's case

and that the request is reasonable. Except

as to scientific or medical reports, this

subdivision does not authorize the discovery

or inspection of reports, memoranda, or other

4/4

44/4

704

4%,

internal defense documents made by

the defendant, or his attomeys or agents

in connection with the investigation or

defense of the case, 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 OF THE CASE

1. Respondent, Robert Lee Nobles, was convicted in on

United St*tes District Court for the Central District of

California along with two other wen, Tommie Louis Brown and

Virgil David Swain, of bank robbery and assault with a danger

ous weapon during the commission of the robbery, in violation

of 18 U.S.C. §2123(a) (4). IR. T. 788) / on May 21, 1973, Ur.

Nobles and the other two men were sentenced to twenty five

years imprisonment pursuant to 18 U.S.C. §4208(a)(2). The

United States Court of Appeals for the Ninth Circuit affirmed

the convictions of Swain and Brown, but reversed the convicti

of Robert Lee Nobles. {hereinafter respondent Mr. Nobles]

2. On February 6, 1973, at about 11:00 a.m. four vino

males robbed the Crocker National Bank at 4117 Wost Pico

Boulevard in Los Angeles. The fourth man was & fugitive at

the time of tho trial.

The evidence against Tommie Louis Brown and Virgil

David Swain was similar and consisted primarily of surveillan

photographs, items taken from the apartment they shared, @

comparison of photographs, eye witness identifications, and 4

statement by Brown. The evidence against Mr. Nobles consiste

of an ambiguous statement and tho testimony of two eyewitnesse

Robert Lee Nobles was arrested at a bar by two :

a who had their guns drawn. IR. r. 431, 427] He denied

that he was Robert Lee Nobles and later stated that he knew

the r. 5. 1. had been looking for him. I. r. 433, 439)

7 R. T. refers to hoporter' s Transcript ot Court Proceedings

33) He noticed all four robbers but paid closest attention to

The first eye witness to testify was Peter Van

Gemeren, a teller stationed at the fourth window. He estimates

the men were in the bank from five to severn minutes. IR. 1.

Brown and the robber who did not stand trial. IR. r. 35, 38)

Brown was two feet away from him for one to one and a half

minutes and from two to fif teen feet from him for three to

four minutes.

He identified Robert Nobles as the man standing

under the surveillance camera. This man was the furthest away

from l. Im, about twenty feet, of any of the four robbers.

In. 1. 38] Moxeover, à post stood between him ang the surveil-

lance camera which he testified was 7 inches wide but which *

later shown to be 20 inches by 11 3/4 inches. IR. 1. 535]

He didn't remember whether the man under the

surveillance camera was faced towards him or away from hin,

but thought that his side was visible for a “half a minute.”

In. . 38, 39} For “most of the time” the man's back was to

him. IR. T. 39] Van Gemeren told the F. B. 1. «epproximately

two weeks after the robbery that the man under the surveillanc

—

camera was facing towards the bank manager. In. 71. 58, 60, 70

The manager was seated behind the business counter, and thus

the robber would have had to be facing away from Van Gemeren.

He could not recall whether the man was wearing

He could not recall the exact

a hat or jacket. IR. 7. 33-34)

datc of the robbery. IR. T. 43) He could not recall whether

it was the F. 3. 1. or Los Angeles Police Department Officials

who interviewed him two weeks after the robbery or on other

occasions. IR. T. 42, 70) When asked if he had told the

p. 5p. 1. two weeks after the robbery that the man under the

surveillance camera had “black hair, worn bushily”® and wore a

"floppy hat, Van Gemeren turned to the judge and stated,

"your Honor, that interview was many weeks ago. I cannot

recall what I said.“ IR. T. 64) He couldn't recall on April

llth the fact that on April 10th he testified that he could

not recall whether the man was looking toward him or away

from him. IR. T. 86] He couldn't recall whether he had told

Federal Public Defender Investigator, John Bond shat the only

part of the man he had seen was his back. Ia. 7. 89. 90) He

also couldn't recall whether the day on which John Bo.ud inter-

viewed him was closer in time to the day of the bank robbery

than “today.” IR. T. 100) He did not recall telling Mr. Bond

and the United States Attorney that when Elaine Zanders

fainted, he went to tar aid. IR. r. 951

The first time Van Gemeren saw Nobles after the day

of the robbery was over two months later, on the morning of

the trial. The prosecutor told him to go into the courtroom

and look at the three defendants to see if he could recognize

any of them. IR. T. 82-84) Van Gemeren went into the court

room and sat down in the second or third row. He saw the

defendants seated in the first row, ahead of him and to his

left. He decided, based on this observation, that Robert

Lee Nobles was one of the robbers. IR. r. 82-84)

Gary Hoffman identified Robert Nobles as the man

who was standing underneath the surveillance camera. {R.T.

325)

Hoffman was standing with his back against the

business counter, 24 feet away kenn the surveillance camera.

In. 1. 218, 327] ue said the robbery lasted from 5-8 minutes

and he focused on Robert Nobles for 2-3 minutes. IR. 7. 328]

However, he also testified that he observed

Brown working behind the tellers cages for three or four

minutes, then watched him jump the counter at the rear and

In. 1. 343, 344)

exit the bank. Moreover, he admitted telling

John Bond that the one he could sec most clearly was the

The defense also intended to call as a witness an expert

fourth bank robber who did not stand trial.* IR. 7. 417) in eyewitness identification but the Court refused to allow

Hoffman said the man under the camera was generally facing him to testify.

toward the teller area, and then occasionally shifting to his 3. Prior to trial, John Bond, the Chief Investigator i

right. IR. T. 351) Hoffman testified directly contrary to for the Pederal Public Defender's Office, had interviewed

—————

the two eyewitnesses, Hoffman and Van Gemeren and written

Van Gemeven when he stated.he did not recall the man under

the surveillance camera facing “the business counter at any reports of those interviews to defense . on cross-

tire.“ IR. 7. 353) examination Hoffman denied telling Bond that all blacks look

Hoffman said that when he met with Fr. 5. 1. agent alike. IR. T. 404] The other witness, Van Gemeren, testified

Wilkins sevén weeks after the robbery, he hoped that the that he did not recall telling Bond that he had seen only

mecting would not be a waste of timo and that he would be abl the back of the bank robber. IR. T. 88)

to pick out somebody from the photographs. IR. T. 394) not tu

—

Defense counsel's offer of proof was that John

told Agent Wilkins, at that time, that he could only give his Bond would testify that Hoffman told him that “all blacks

a general discription. ue picked out the photograph of Nobles look alike" Ic. T. 85], and that van Gemeren told him that

from a group of six pictures, but was not absolutely sure that “as far as the man at the surveillance camera is concerned,

Nobles was the man under the surveillance camera. IA. 7. 401] he [Van Gemeren] only saw the back of that nan. IR. 1. 326

Two days later, on March 30th, he attended e lineu The Court ordered that the investigator not testify to these

and picked Robert Nobles out of the lineup although he was not

statements unless defense counsel] was preparei to turn over

100% sure that he was the man under the survoillance camera. to the government at the completion of the investigator's

IR. 7. 404 testimony the alleged statements. . . as contained in

Hof{man testified that the robber who was under-

{John Bond's} report. [R.T. 519-20)

neath the surveillance camera was the one he saw cost cloarly Defense counsel refused to turn over to the govern-

and then admitted that he told John Bond of the Federal Public ment portions of the investigator's report to him and pursuant

* 1

Defender's Office that the man who was standing at the teller: to the court order, John Bond did not testify to the prior

cago directly across from [him] was the one (he) could sce inconsiste . statements. The reports were placed under seal

more clearly and would be able to identify. IA. 7. 417) That for the Court of Appeals.

° h

man was the fourth robber who did not stand trial However, hp 4. In reversing the conviction of respondent,

denied telling Mr. Bond that all blacks look alike. IR. r. the Court of Appeals held that the trial Court's order

404) directing defense counsel to surrender to the government

N f

1 The defense offered the alibi tostincay © portions of his investigator's report to him constituted

n i ied that she had

respondent's friend, Susan Mathis, who testifie prejudicial error. The Court held that the order violated

been with respondent during the period of time when the robber

respondent's Fifth Amendment privilege against self-incriminafio:

occured.

9 ö 10

and the provisions governing discovery set forth in Rule

16 of the Federal Rules of Criminal Procedure.

1. eme rt ld rant

The Petition For A writ Of Certiorari

Since There Are No “Special And

’ Important Reasons” For Reviewing The

2 Decision Of The United States Court

8 n

a Rule 19 (1) of the Supreme Court Rules provides that

review on a writ of certiorari “will be granted only where there

s/f * are special and important reasons therefor", such as, |

Wh “(b) Where a court of appeals has rendered a

decision in conflict with the decision of mother

771 court of appeals on the same matter; or has decided

wh an important state or territorial question in |

a way in conflict with applicable state or

2 territorial law; or has decided an important

WwW | question of federal law which has not beon, ;

but should be, settled by this court; or has

444 decided a federal question in a way in conflict |

Wh with applicable decisions of this court; or has |

eo far departed from the accepted and usual

444 ! ; course of judicial proceedings, or so far

Wh | sanctioned such a departure by a lower court,

as to call for an exercise of this court's

44/4 power of supervision.”

WH Respondent submits there are no “special and —

reasons for reviewing ne decision of the United States Court

(11 of Appeals for the Ninth Circuit in United States v- Nobles. .

7 The Court of Appeals did not depart “from the —

and usual course of judicial proceedings, nor did the court

11 1 g

— — — — — — —

sanction “such a departure by @ lower court, as to call for an

| exercise of this court's power of supervision.“ On the

contrary, the Court of Appeals corrected the trial court's

derarture from accepted trial procedure when it disapproved 4

tho enforced pro ict ion of defense investigation reports in the

labsence of any showing that the investigator had refreshed his.

recollection with these reports.

There is no conflict between the decision of the Court

after and based on an opinion of the United States Court of

fof Appelle in United States v- Nobles and the decision of any

other Court of Appeals. In fact, this decision is patterned

Appeals for the District of Columbia in the only other federal

decision dealing with the issue, ted States v. Wright. 40%

a 1181, 1195 (C. A. v. c.).

wor docs the opinion in United States v- Nobles decide

“a federal question in a way in conflict with applicable )

decisions* of the Supreme Court. That such a “conflict must

direct is emphasized by the fact that although old Rule 38 (5) .

(b) required only a showing that the decision of the Court of

Appeals is ‘probably’ in conflict with applicable bupreme court

decisions, the presmt Rule 19 (0 omits the word ‘probably’.

Stern, R. and Gressman, Ek., Supreme Court Practice, $4.5 |

(4th Ed. 1969).

Petitioner states that as to that part of the Court of

Appeals decision which is based on the Fifth Amendmont, “. - +

the decision of the court is in conflict on many fronts with =

philosophy of the prior decisions of this court. [Petition —

14 J. The cases cited by petitioner do not support this |

thesis. In any event, there is certainly no decision of the

Supreme Court with which the opinion of the Court of Appeals is

in direct conflict within the meaning of Rule 19 (1) (>).

Pinally, this case does not present an important

question of federal law which has not been, but snould be,

settled by the Supreme Court. The inviolability of defense

documents such as the report at issue in this case, is a

principle of long-standing, properly reiterated in the opinion

of the Court of Appeals. !

The government's argument as to why the Supreme court

should grant the petition for a writ of certiorari is premised

on the proposition that the case presents an issue under the

Pifth Amendment. However, the Court of Appeals based its

decision on a non constitutional grounds as an alternative to ,

the Fifth Amendment. In the present case, a8 was recognized by

the Court of Appeals, the statutory schene consisting of the |

Federal Rules of Criminal Procedure, the Jencks Act, and tho

common law applicable to the admissibility of documents clearly

prohibit the forced production of the report in question.

Therefore, the Supreme Court need not decide the constitutional

issue. The practice of the Court has been to refuse to reach

a constitutional issue when there is a non-const itutional basis

Alma Motor Co. v. Timken-Detroit Axle Co.. ,

et al, 329 U.S. 129, 136: (1946); Siler v. Louisville &

Nashville R. Co., 213 U.S. 175, 193 (1909); Light v. United

States, 220 U.S. 523, $36 (1911); tor r Co

McLaughlin, 323 U.S. 101, 105 (1944); Sce Brandeis „con-

curring in Ashwander v. Tennessce Valley Authority, 297 U.S.

2868, 347 (1936). This Court has stated that “the principle of

for the decision.

avoiding constitutional questions is one which was conceived

out of considerations of sound judicial administration. It is

a traditional policy of our courts.” In Motor Co. Vv.

Timken Co., Wat 142; Charles River Bridge v..Warren prided,

11 Pet. 429, 553 (1837); Barr v. Matteo, 355 U.S. 171, 172

(1957).

2. Rules Governing Discovery Effectively

Prohibited Court From Ordering Disclosure

Of Portions Of Report

Rule 16 of the Federal Rules of Criminal r.,

strictly and specifically limits prosecution discovery.

Subsection 16 (e] which governs prosecution rights to discovery,

permits government inepection of defense documents which will

be introduced at triai. In this case there was no intention

to introduce the investigator's report at trial.

“I7 Whe 1966 revision of the Rules represented a break with

the established policy of non-disclosure by the defendant.

Before enactment of Rule 16, a practice of non-disclosure on

both sides had been customary. United States v. Hughes, 413 . 2d

1244, 1249 (Sth Cir. 1969). At the time Rule 16 was first

recommended in 1944, it was thought doubtful that the law

allowed any discovery in a criminal case. Wright, Federal

Practice and Procedure, Vol I, §251, at 490. It was not until

19%, that Rule 16 was amendea to give any discovery powers to |

the prosecution, and even then the government was granted only |

“a limited right of discovery under certain circumstances.”

Wright, supra, at 492. Even this minor change was opposed by |

two members of the Court. Justice Black wrote a vigorous

dissent in which he warned, *. . . some of the proposed rules

go to the very borderline if they do not actually transgress

the constitutional right of a defendant not to be compelled to

be a witness against himself.” Order of February 28, 1966 '

nding Criminai Rules, 383 U.S. 1032 (1966).

IJ The subsection only applies as a reciprocal right for the |

ver ment when the defense has been granted discovery under

the other subsections of Rule 16. Here, there was no finding

the court in connection with the government request, that

the defense had been granted discovery rights.

a Most significantly, the Rule 16(c) provides in its

rk product savings clause, that,

Except as to scientific or medical reports, ©

this subdivision 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

connection with the investigation or defense

of the case, 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.

> 7 *hithough the . . . policies supporting protection of an

attorney's work product were 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. 35A,

L.R.3d 424 (1971) (footnotes omitted) (emphasis added). In

State v. Montague, 101 M. J. Super. 483, 244 A.2d 699 (19686) the

State sought access to the defondant’s attorney's notes con-

cerning interviews with prospective witnesses. The Court statcs:

“(wle are satisfied that the notes here in question

represented the work product of defendant's

attorney and under the doctrine of Hickrand v.

Taylor, 329 U.S. 495, 67 s. ct. 3865, 91 L.Ed. 451

(1947), production should not have been

compelled. The fears therein expressed with

regard to the inviolability of an 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.

The same result has been reached with respect to the defendant's

domands to cxamine materials (especially prospective witnesses’

statements) in the hands of the prosecuting attorney. 800

State v. Bowen, 104 Ariz. 138, 449 P.2d 603, 607 (1969); State

v. Superior Court, 99 Ariz. 382, 409 P.2d 547, 548 (1906);

Pisher v. State, 241 Ark. 545, 408 S.W, 2d 894, 697 (1966);

Edens v. State, 235 Ark. 178, 359 S.W. 2d 432,433 (1962);People

v. Bochm, 270 Cal. App.2d 13, 75 Cal. Rptr. 590, 595-596 (1969)

{further citations omitted“

— — — ——

“57 (cont'd) In Re Grand Jury Proceedings, Duffy v. United

States, 473 F. 2d 640. G46 (ath Cir. 197775 United states v.

Nobles, App.A, infra, at page 164 n. __.; See also Comment,

„Vork product in Criminal Discovery”, 1966 Wash. U. L. O. 321

(1966). The constitutional protections of the Fifth and Sixth.

Amendments which shicld defendant in a criminal case are

broader and more complete than the protection offered by the

work product rule. Sce parts 3 4 4infra.

of the investigator's report in this case, both because it is

an internal defense document and because it is a statement of

Amendments to the Rules leave unchanged this provision.

Petitioner claims that Rule 16 was “clearly intended

to apply only to pre-trial discovery.” [Petition at 23]

W the policy considerations supporting the work product

| savings Clause of the rules are the same during the course of

the trial as before trial, Morcover, subsection (b) of Rule

16, in setting limits to government discovery, provides, in

pertinent part, that,

This rule does not authorize the discovery

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

witness:s (other than the defendant) to agents

of the government except as provided in

18 U.5.C, §3500. [Jencks Act) (emphasis added)

The Court of Appeals properly concluded that this

not only to pretrial discovery but also to the production of

documents during trial. App. A, infra, p. _J7A_-

the Advisory Committee was careful not to expand prosccution

discovery to the extent of defense discovery. The philosophy

of criminal discovery is inconsistent with total reciprocity

chance as the defendant to prevail would seem to violate the

Thus,the rule specifically forbids government n

a government witness to an agent of the defendant. The proposed

—— — — —

referonce to the Jencks Act indicates that Rule 16 has relevance

a 0

Though 2ule 16 provides for reciprocity of disclosure,

and “any suggestion that the state must have at least as good a

traditional policy of favoring the defendant in order to avoid

PPI-Sandstone

$-1-74 lol 1073

conviction of he innocent." Note, “Developments in the Law,

Discovery“ 74 Harv. Law Rev. 941, 1063 (1961).

The Jencks Act, 18 U.S.C. §3500, is consistent with

the limited authority for prosecution discovery found in Rule |

16 and with the policy of limited reciprocity of disclosure. |

Section 3500, though expansive of defendant's post-testimony

discovery powers over statements of government witnesses,

provides for no reciprocal right of the government to statements

collected in defense files. Not only does Section 3500 not

authorize a trial judge to order disclosure of defense witness

reports, it implicitly prohibits such a procedure. Thus, the

Supreme Court in interpreting §3500 has emphasized that it is

the exclusive authority by which disclosure during trial may be

compelled. Thus, in Palermo v. United States, the court

stated. statements of a government witness made to an

terms of 18 U.S.C. 53500 cannot be produced at all."

360 U.S. |

343, 351 (1959). Absent any statutory compulsion similar to

agent of the Government which cannot be produced under the

§3500, the exclusive terms of §3500 indicate that a court has

no authority to require the defendant to surrender witness |

statements to the government. |

The thrust of petitioner's argument is that this court’

should adopt a common law rule of evidence which would require

defense counsel to turn over an investigator's portions of |

reports of interviews with witnesses after the investigator

testifies for the defense on direct examination.

The petitioner's reasoning that the Court of Appeals decision

may “foster misstatement, exaggeration, or even perjury on the

part of . . . partisan investigators ..." is misplaced. If a

particular investigator is prone to exaggeration or perjury he

can as easily misstate the interview in his report as on the

stand. The appropriate method of impeaching the investigator in

that situation as well as this, is to rehabilitate the government

witness who can testify in rebuttal. Commentsin footnote 8 ofthe

petition at page 23 indicate that both the dissenting judge and

petitioner were unaware of the fact that the original of the

investigator's réport in this case was placed under seal during

the trial for the benefit of the Cart of Appeals. The report

contains the exact words which defense attorney professed as Mr.

Bond's impeaching testimony. / |

so eo nk oO @

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5-1-74— 100M — 1073

uch a rule would constitute legislating by the judiciary of a |

odified Jencks Act applicable to the defense. Not only wuld

the rule significantly alter traditional trial procedures, but |

it would intrude upon an area 1. which Congress and the rule |

makers have spoken clearly in both the Federal Rules of |

See apres States v.

Wright, 489 F.2d 1181, 1190 (D. c. Cir. 1973)

Criminal Procedure and the Jencks Atc.

he rule sought by petitioner also would modify Rule 612

of the Proposed Federal Rules of Evidence which provides that,

“Except as otherwise provided in criminal

proceedings by 18 U.S.C. §3500, if a witness

uses a writing to refresh his memory for the

purpose of testifying, either before or while

testifying, an adverse party is entitled to have

it produced at the hearing to inspect it, to

cross-examine the witness thereon, and to

introduce in evidence those portions which

relate to the testimony of the witness... .

As noted by the court in United States v. Wright, 489

F. ad at 1191, “(t]he government's proposal would have us [do]

away with the requirement that the statement be used to

refresh recollection either before or while testifying."

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$-1-74 loom — 1073

De The Court's Order Violated Defendant

Nobles' Right Against Self-Incrimination

Guaranteed By The Fifth Amendment

The Court of Appeals need not have considered the

Fifth Amendment in reaching its decision. However, the Court

was correct in finding that the Amendment prohibits government |

discovery of the defense investigator's report.

The United States Supreme Court has held, “There are

rights of a constitutional stature whose exercise a State may |

Garrity v. New

Jersey, 385 U.S. 493, 500 (1967). In this case, the respondent

not condition by the exact ion of a price.”

paid a double price for exercise of his Fifth Amendment right |

against self-incrimination. Not only was respondent forced to |

forfeit valuable testimony tending to impeach the prosecution’ U

best identification witness, but respondent suffered a J

prejudice when the U.S. Attorney called the jury's attention |

to respondent's failure to produce that testimony. This court

traditionally has been solicitous about the Fifth Amendment

rights of defendants and has refused to allow the government to

Boyd v. .

116 U.S. 616 (1886) (in a civil forfeiture

obviate those rights by indirection and manipulation.

United States,

action, court would not condone the choice between producing *

document or forfeiting his goods); Slochower v. Board of Educa-

tion, 350 U.S. 551 (1956) (public school teacher cannot be dis-

charged merely because he invoked Fifth Amendment); Garrity v.

New Jersey, supra, (policeman cannot be forced to chose between

his job and taking the Fifth); Spevack v. Klein, 385 U.S. 3511

(1967) (attorney cannot be disbarred because he invoked Fifth

Amendment protections); Brooks v. Tennessee, 406 U.S. 60 5.610

611 (1972) (rule requiring that defendant be first in order of

defense witnesses cuts down on the privilege [to rein silent]

os @ 2 @ o > eo w —

—

—_

8 —

—

— —

by making its assertion costly.”') |

The Fifth Amendment protects the accused from being

compelled to testify against himself, or otherwise provide the

State with evidence of a testimonial or communicative

nature Schmerber v. California, 384 U.S. 757, 761 (1966)

That a written report constitutes evidence of a

communicative nature was recognized by this Court as long ago

as the last century when the Court stated that ". . . we have

been unable to perceive that the seizure of a man's private

books and papers to be used against him is substantially

different from compelling him to be a witness against himself."

Boyd v. United States, 116 U.S. 616, 633 (1886).

The government suggests that the privilege adheres

only to the defendant and cannot include documents in the

investigator's possession. [Petition at 17, 18] However, the

fact that the reports are those of the investigator does

not affect the protection afforded defendant Nobles. It has

sometimes been stated that the documents sought must be held

in a personal capacity by the individual exercising the right.

See United States v. White, 322 U.S. 694 (1944). This quali-

fication prohibits a labor union representative from with-

holding papers because he held the papers which belonged to

the union, not to him, in his capacity as an official of the

union. Id. The present case is distinguishable. The fact

that the investigator and not the defendant, himself, holds

the documents makes no difference. The attorney is clearly

the client's agent. United States v. Judson, 322 F.2d 460

(9th Cir. 1963) 8 J. Wigmore, Evidence, §§2270, 2307 (McNayghton

Rev. 1961.) An attorney's investigator, while working on the

client's case, is likewise the agent of the client. As

such, he can assert the privilege against self-incrimination

on behalf of the client.

Fri-Bandstone |

3177 10004 1073 |

To hold that a document is protected if obtained

and held by the client himself or if transferred from the

investigator to the client but not if held by the investi-

gator or the attorney is unreasonable, and may impede the

preparation of a case by the attorney because of his con-

sequent inability to adequately familiarize himself with all

the documents. Thus, if the investigator cannot assert the

privilege if he had conducted the interview, the defendant

without an attorney is granted protection not accorded the

defendant represented by counsel. An “intolerable” tension

is created when the defendant is placed in the position of

choosing whether to forego the benefit of counsel in order to

protect documents by asserting his Fifth Amendment privilege,

or making his documents vulnerable to perusal by the pro-

secution in order to have the benefit of counsel.

Simmons v.

United States, 390 U.S. 377, 392 (1968). An option which

exacts such a penalty“ upon the exercise of the privilege

against self-incrimination violates the Fifth Amendment.

Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California,

380 U.S. 609 (1965); Spevack v. Klein, 385 U.S. 511 (1967).

The petitioner also asserts that the “privilege

applies only to some communicative act or writing of

the defendant himself (Petition at 17). However,

as pointed out by the Court of Appeals for the District of

Columbia, "This line of analysis is plainly inconsistent

with the rationale of the privilege.“ United States v.

Wright, at 1193, n.15.

If the defendant took witnesses’ stat-ments on his

own, he could not be compelled to produce them as iong as

they were in his rightful possession. The person asserting

the privilege does not have to have actual ownership.

9 n 9

Rightful possession in a “personal capacity” is sufficient.

United States v. White, 322 U.S. 694 (1944). M. Moore,

“Criminal Discovery” 18 The Hastings Law Journal, 865, 907

(1968). The testimonial disclosure implicit in documents

which do not include a defendant's statements is the

Witness assurance, compelled as an incident of the process,

that the articles produced are the ones demanded. .. ."

8 J. Wigmore, Evidence §2263 at 379 - 80 (McNaughton Rev.

1961).

This court has defined one of the underlying

policies of the privilege as “our unwillingness to subject

those suspected of crime to the cruel trilemma of self-

accusation, perjury or contempt. .. ." Murphy v.

Waterfront Comm'n of New York Harbor, 378 U.S. 52, 55 (1964).

He faces this trilemma whenever the government forces the

defendant to produce a document regardless of whether the

document contains his statements or the statements of other

witnesses.

8 / “He can produce the sought after document, thereby

implicitly stating that the document produced is the

one requested, and provide evidence against himself.

He can perjure himself in two ways: he can refuse

production on the ground that he does not have the

requested item, or he can produce something other

than the document requested - for example, a forged

non-incriminating version of the document. Or he can

simply refuse production and subject himself to a

contempt sanction. Compelled production of a document

in the possession of the defendant, whether or not it

is a document written by the defendant, thus involves

a “communicative act" by the defendant within the

protection of the privilege. ‘[I]t is possession

of papers sought by the government, not ownership,

which sets the stage for exercise of the governmental

complusion which it is the purpose of the privilege

to prohibit.* Couch v. United States, Supra, 409

U.S. at 330 n. 12, 93 S.ct. at 617, quoting

United States v. Cohen. 9th Cir., 388 F. 2d 464, 468

(1967)." United States v. Wright, 489 F. 2d 1181,

1193 - 4, n. 15 (1973). (b. c. Cir. 1973).

. „ » h fact that the

1 United States v. Wright, 489 F.2d 1181, 1193 - 4 1 document sought is incriminating or the very fac

tion seeks it establishes that in the prosecution's view,

2 (1973); In Re Grant, 198 F.708, 709 (S.D.N.Y., 1912) e — 4 !

3 t be incriminating.” Jones v. rior Court, 58 Cal. 2d

s (Hand, J.). aff'd., 227 U.S. 74 (1913). = ay ng. Jones v. Super!

4 4 56, 60, 22 Cal. Rptr. 879, 881 (1962). See Miranda v. Arizona

The petitioner contends that the respondent waived

his right to be free of self-incrimination following an

6 6 The petitioner's reliance on this Court's decision in

election to place the investigator on the witness stand.

7 Williams v. Florida is misplaced. That opinion upheld the

’ However, the investigator did not take the stand as an ———— —_ ’ „

8 validity of a state statute requiring the defense to give prior

8 impeaching witness. Therefore, the order covering his report * *

9 . © notice to the prosecution of defendant's intention to present

was premature and any argument that he waived the privilege

10 n alibi and upon motion the government, to reveal the names

10 by taking the stand is misplacec. 1 * *

11 11 of the alibi witnesses. Williams v. Florida, 399 U.S. 78, 82

The Supreme Court has held that the due process

12 1970).

13 clause of the Fifth Amendment places a burden on the govern- a 5

13 , 13 The statute did not require that the alibi witnesses

ment to provide the defense with material favorable to it.

14 nder memoranda written in connection with the events, much

a Brady v. Maryland, 373 U.S. 83 (1963). The defense has no ourrenter :

15 force them to disclose internal defense reports.

15 commensurate obligation, for the self -incriminat ion clasue — 7 |

16 he alibi statute affects only the timing of the dis-

0 of the Fifth Amendment shields the defense from providing 20 *

17 N £ evidence which the defense would ultimately present

* information to the government which would aid its prosecution. 3 Cf evete

18 :; 18 since the fact that the defense relies on an alibi and the names

The privilege against self-incrimination extends

19 , 19 of witnesses would be revealed during the defense case. In this

not only to testimony which may be conclusive on the issue

a 20 case, however, the government sought portions of a confidential

20 : of guilt but applies broadly to information which might e * g

1 21 report from an investigator to an attorney which the defense

31 furnish "a link in the chain“ against the accused. Hoffa v. * .

intended to introduce into evidence.

United States, 385 U.S. 293, 304 n.7 (1966) Hoffman v. United — |

States, 341 U.S. 479, 486 (1951).

This case does not present the issue as did Williams

as to whether there would be. . . self-incrimination problems

if .. . the state vas permitted to... take the deposition

The Supreme Court of California has explained,

a8 „.. . the principal element in determining whether a

)

N of the witness and find rebuttal evidence. Id. at 85. |

particular demand for discovery should be allowed is

27 |

whether disclosure thereof conceivable might lighten the pe rulemakers have specifically prohibited discovery of

28 : reports of interviews by defense investigators of government

prosecution's burden of proving its case in chief witnesses, Rule 16(c), Federal Rules of Criminal Procedure,

0 see part 2, supra. Thus, instead of acceeding to the judgment

Prudhomme v. Superior Court of Los Angeles County, 2 Cal. 3d ay colenate as this court did in Williams, the trial court,

30 in the instant case, took a position directly contrary to that

320, 326, 85 Cal. Rptr. 129, 133 (1970). A defendant, in order of the rulemakers. It should be noted that proposed Rule 16

31 : ail 31 provides for the disclosure of alibi witnesses but continues to

to invoke the privilege, need make no showing that the specifically prohibit discovery of the report: focused on in

= / 32 this case.

Rr 25 5 1 % 100 1073 26

PPT -Sands one

5-11-74 1 1053

The defense offered no objection to the government presenting

rebuttal evidence such as the testimony of the government

— —— K—— —

witness the defense sought to impeach or the testimony of

other witnesses who may have been present at the interviews.

Neither did the defense ever object to revealing the name of

its impeaching witness, John Bond, or to a government interview

of him.

Thus, the holding in Williams offers no support for the

unusual order of the trial court. Furthermore, the policy

reason, avoidance of undue surprise, which justified discovery |

of the alibi defense and the names of alibi witnesses in

— eee

Williams is simply inapplicable in the impeachment situation.

First, the defense never knows whether it will call

impeaching witnesses until the g@vernment witness takes the |

stand at trial and testifies in a manner which is inconsistent

with his prior statements. Second, the benefit to the govern-

ment derived from an opportunity to investigate an alibi

defense is not ordinarily a valid consideration when dealing

with impeachment testimony. Such evidence is not susceptible

to the kind of on-the-scene investigation which law enforcement

officers often conduct when confronted with the contention that

defendant was at another place when the crime occurred. !

The serious potential danger lies in the fact that ie

impeachment of a defense witness is to be permitted by use of

an internal defense memorandum, clearly courts are going to |

order, at the least, that defense counsel produce material in

the memorandum “relating” to the statement sought to be — oy

Then, information not previously known to the government, help-

ful to it and arguably inappropriate for impeachment, would be |

revealed and could be used by the government in cross--examina- |

10/

t ion, in rebuttal, or at a new trial.

2 The problem is not solved by permitting in camera examination

by the court. Neither the prosecuting attorney nor the presiding

judge should be permitted to peruse sections of internal defense

files.

27 |

5-1-3+— loons — 1073

The government's proposal is seductive, but “[T]hose

who framed our Constitution and the Bill of Rights were ever

aware of subtle encroachments on individual liberty. They knew

that ‘illegitimate and unconstitutional practices get their

first footing . . . by silent approaches and slight deviations |

from legal modes of procedure. Boyd v. United States, 116 |

U.S. 616, 635 (1886). Miranda v. Arizona, 384 U.S. 436, 459

(1966).

As a result, they made the privilege “as broad as the |

mischief against which it seeks to guard.” Id, at 459-60. |

The Court of Appeals correctly recognized that the entire

investigator's report fell within that privilege.

4. Court's Order Improperly Impinged Upon

Confidentiality Of Communication Among

Members Of Defense Team

The ability of a defendant to establish his innocence |

is severely eroded if the results of the investigation and

preparation of his case are disseminated to the government.

The rulemakers and the courts have seen fit to draw a cloak |

around the defense team to protect its iavestigative efforts.

This cloak takes form variously as an obligation on the defense

team not to reveal confidential material without the express ,

consent of the defendant, restrictions on court ordered dis-

closure, and a prohibition against governmental intrustion into

the defense camp. Contrary to petitioner's assertion that the

Court of Appeals opinion conflicts with the “philosophy of ,

communications. . |

prior decisions of this court“, the opinion reflects the in-

creasing concern of the law with the sanctity of defense

The attorney-client privilege traditionally has placed

an obligation on members of the defense team to refrain from

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$-1-76 100m 1073 |

revealing confidential communications of the client made in

connection with the case. The Court of Appeals noted that the

scope of the privilege has been extended in Rule 503 of the

Proposed Rules of Evidence promulgated by the Supreme Court to

arguably include a — as W between the

investigator and counsel for the defense.” [App. A, inf ra.

at page =

In addition, the American Bar Association has urged |

that in some instances an attorney should not reveal

communications from third parties.

This Court has approved the judicially created work

product doctrine. Hickman v. Taylor, 329 U.S. 495 (1947). |

Its scope eee investigative reports to an attorney in

— —

a criminal case. See discussion at note 5 . supra.

L Rule 503(b) provides that a client has a privilege to pre-

vent disclosure of confidential communications made during the

preparation of his case (2) between his lawyer and the lawyer's

representative. ." 56 F. R. D. 183, 236 (1972). Although

the tentative draft of the House version contains only a |

general rule, the rule permits the promulgation of regulations ,

by the Supreme Court pursuant to its statutory authority.

U.S.L.W. Supplement, p. 6, July 17, 1973.

127 “To hold that an attorney should reveal confidential

information which he has obtained, by virtue of his professional

employment, from members of the family of a criminal would

prevent such frank disclosure as might be necessary to a proper

protection of the client's interest.” Formal Opinion No. 23,

ABA Committee on Professional Ethics. (January 24, 1930)

137 “Similarly . . . the doctrine of Hickman v. Taylor exempts

from discovery certain ‘work product “of the attorney: including

records of communications to him from third persons not within

the attorney-client privilege”. Annotation, Development, since

uickean v. Taylor, of Attorney's Work Product Doctrine”, 35

W % A Y 00 K « Ww

317% 100 1073

The Sixth Amendment's guarantee of counsel also

serves to ensure privacy during defense preparations of a

case. 7 As a result, the protections which modified W

client privileges and the work product doctrine afford, are

subsumed by the cloak in which the constitutional right to

effective assistance of counsel surrounds a defendant in a

criminal case.

A defendant is entitled to the effective assistance

of counsel "at every step in the proceedings against him."

Powell v. Alabama, 399 U. S. 1, 7 (1970); Glasser v. United

States, 315 U. S. 60, 76 (1942). Included in the concept of

effective assistance of counsel is the presumption that

counsel will investigate a case thoroughly and will interview

witnesses.

See Powell v. Alabama, supra, at 58; Griffin v.

Illinois, 351 U. S. 12 (1956); United States v. Germany, 32

F.R.D. 421 (M.D. Ala. 1963); ABA Standards, Providing

Defense Services § 1.5 (Approved Draft, 1968); The Defense rull-

tions g. 1 (Approved Draft, 1971).

Clearly the defense attorney, to carry out his

obligations, must work with assistants such as secretaries

and investigators. These individuals become part of the

defense team and agents of the attorney and the defendant.

The members of the defense team must be able to communicate

with each other. Considerations of efficiency and accuracy *

mand that certain of these communications be in writing.

Thus, an investigator implements the defense team's

obligation to interview witnesses by speaking with the

witness, and writing a report to the attorney setting forth

the content and his impressions, of the discussions.

Sixth Amendment considerations are involved in at

least two distinct ways. First, the government, by securing

14/ See Memorandum of the District of Columbia Public

Defender Service filed in connection with United States v.

Wright, supra.

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5-1-74— 100M — 1073

an order forcing the defendant to provide it with portions

of the report, improperly intrudes upon the defense

communication system. In terms of the effective assistance

of counsel, it makes absolutely no difference whether the

conversation is between the attorney and his client, or

between the attorney and his agents, or between a member of

the defense team and witnesses. See Hoffa v. United States,

385 U.S. 293, 305-7 (1966).

This court has condemned the government's invasion

of a defense camp by means of an informer who observed

interviews between the attorney and several defense witnesses.

In Hoffa v. United States, supra, the court stated that the

defendant would have been entitled to a new trial if he had

been convicted, since, ". . . a surreptitious invasion by a

government agent into the legal camp of the defense may

violate the protection of the Sixth Amendment. Id. at

306. See Caldwell v. United States, 205 F.2d 879 (D.C. Cir.

1953); Coplon v. United States, 191 F.2d 749 (b. c. Cir. 1951);

In Re Terkeltaub, 256 F.Supp. 683 (S.D.N.Y. 1966).

Disclosure of portions of the defense report places

the government in the camp of the defense with ears to listen

to the interview of the witness by the investigator, and eyes

to read portions of the confidential report the investigator

wrote the attorney.

A second Sixth Amendment consideration is the

chilling effect that disclosure of such reports would have on

a defense team, and the consequent ineffectiveness of

counsel that would result. Investigators would cease writing

reports. Then,as this court recognized in the context of

work product, inefficiency and inaccuracy would inevitably

develop in the ". preparation of cases for trial",

Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). "The effect

—

G W M 9 K

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5-1-74—100M—1073

on the legal profession would be demoralizing. And the

interests of the clients and the cause of justice would be

poorly served." Id.

The Sixth Amendment's concern for effective

communication between members of the defense team was

recognized in United States v. Venuto, 182 F.2d 519 (3d Cir.

1950). The court in that case held that the defendant was

denied the right to counsel when the court ordered the

defendant and his attorney not to speak to each other during

an eighteen hour recess in the midst of defendant's testimony

at trial. Id. at 522.

The trial court's order in the instant case, by

permitting government incursion into the defense camp when

an investigator writes a report and at trial impeaches a

witness, places an impediment in the way of effective defense

communications, potentially as serious as an order that

counsel and defendant not confer with each other during a

parcicular recess.

Such an impediment improperly exacts a price for

the exercise of rights of constitutional stature. See

Garrity v. New Jersey, 385 U.S. 493, 500 (1967).

| BEST COPY AYALABLE

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31-74 -100M-—1073

3. The Court's Order Forbidding

John Bond From Testifying As

To Prior Inconsistent Statements

Of Government Witnesses Denied

Defendant The Right Of Cross-

Examination

The Sixth Amendment forbade the trial court from

enforcing its discovery rule against respondent who

refused to comply, by excluding relevant, probative evidence.

The right to cross-examine witnesses is guaranteed by the

confrontation clause of the Sixth Amendment and has been

labeled as a “fundamental right", essential to a fair trial.

Pointer v. Texas, 380 U.S. 400, 203 (1965); See Bruton v.

United States, 391 U.S. 123 (1968). The court stated in

Kirby v. United States, 174 U.S. 47, 55, 56 (1899), that the

right of confrontation is “[o]ne of the fundamental guarantees

of life and liberty, and "a right long deemed so essential

for the protection of life and liberty that it is guarded

against legislative and 8 by provisions in the

constitution. . ." An integral part of cross-examination is

the opportunity of the cross-examiner to impeach the

credibility of a witness. As the Supreme Court has stated,

„. . . Certainly no one experienced in the trial of

lawsuits, would deny the value of cross-examination in

exposing falsehood and bringing out the truth in the trial

of a criminal case. Pointer v. Texas, 380 U.S. 400, 403

(1965).

Impeachment by showing prior inconsistent statements

or prior statements revealing bias or prejudice involves the

use of an impeaching witness. The cross-examination of a

witness is effectively denied a defendant when he is unable

to introduce testimony that the witness made a prior

we w —

—

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YPI-Sandstone

5-1-74— 100M 1073

inconsistent statement or a statement showing bias or

prejudice. No comparable constitutional right is involved

in the government's e: mination of a defense witness, such

as John Bond. This Court has stated that:

2 . [C])ross examination of a witness

is a matter of right ... . Its permissible

purpose, among others, are . that facts

may be brought out tending to discredit the

witness by showing that his testimony in

chief was untrue and biased. ...

E * „„ „*

„Prejudice ensues from a denial of

the opportunity to place the witness in his

proper setting and put the weight of his

testimony and his credibility to a test,

without which the jury cannot fairly appraise

chem. Alford v. United States, 282

U.S. 687, 691, 692 (1931).

Resporent Nobles was denied the opportunity to put

the weight of the testimony of Van Gemeren and Hoffman and

their credibility to a test, and to permit the jury to fairly

appraise them, when the court ordered that John Bond not

testify to the statements given him in interviews with

Hoffman and Van Gemeren.

1 6. Any One Of Three Additional 1 never testified that he had seen the man from the front" or

2 Issues Raised By The Respondent 2 that he observed his "face".

. In His Brief Before The Court Of 3 During the cross-examination of Hoffman, defense

‘ Appeals Warranted Reversal Of The 4 counsel attempted to establish that Hoffman did not see a

° Conviction Of Mr. Nobles, And Justifies 5 front view of the man alleged to be Nobles. Hoffman ee

0 Denial Of The Petition For Writ Of 6 “he would have been generally facing toward the teller area,

e Certiorari. 7 and then occasionally shifting to his right. . . IR. .

8 a. The Misconduct Of The Prosecutor Denied 8 3511 The teller area was directly opposite the side of the

Defendant Due Process Of Law Guaranteed & bank where Hoffman and Nobles were alleged to have been

10 By The Fifth Amendment. 10 Standing. The next question was interrupted by the prosecutor

11 Although the Court of Appeals stated that the 11 who stated, “He said he faced both ways, toward the witness

12 conduct of the prosecutor did not require reversal, respondent 12 and toward the tellers' area." IR. T. 3321 In fact, Hoffman

13 respectfully submits that his flagrant misconduct justifi i 13 never testified that the man faced towards hin.

14 denial by this Court of the Petition for Writ of Certiorari, 14 During closing argument, the prosecutor made a

* Since it constitutes a separate grounds justifying reversal 15 number of misstatements which severely prejudiced respondent.

= of the conviction in United States v. Nobles. 16 He said that the lineup which Hoffman attended and from which

* During the trial, the prosecutor improperly 17 | he picked out Mr. Nobles, occurred 16 days after the robbery.

= interrupted defense counsel's questioning of government 18 R. T. 676-77] In fact, the lineup occurred over seven weeks

* witnesses to misstate and repeat prior testimony of the witner 19 after the robbery. The misstatement struck at the essence

” sses in the presence of the jury. 20 of the defense theory that a substantial length of time betwedn

- For example, Van Gemeren testified that he saw the 21 the robbery and the lineup made the identifications suspect.

= side and back of the man under the surveillance camera. 22 R. T. 401, 404, 710, 7111. The prosecutor also stated that

2 [R. T. 891 He also testified that he could not recall whether 23 Mr. Hoffman testified that a struggle involving a witness

- the man under the surveillance camera was facing towards him 24 and Mr. Nobles made him particularly aware of Nobles. IR. T.

= or away from him but "thought" that he could see a side view 25 676) In fact, Mr. Hoffman did not so testify [See R. T. 328).

* for half a minute. He admitted that the man's back was 26 In addition, the prosecutor's statement that the testimony

* toward him "most of the time." IR. T. 38-39] 27 that Robert Nobles was under the surveillance camera was

Despite this testimony, the prosecutor rose to his 28 "uncontradicted" not only misrepresented the evidence but

* feet to make an objection to defense counsel's cross-examina- 29 constituted an improper comment on defendant's right not to

= tion and stated in the presence of the jury, "This witness hap 30 testify. IR. 7. 162-63, 194, 563, 7401.

31 testified as to the fact that he observed this person's face, 31 The prosecutor also improperly intimated that an

- that he then turned toward the bank manager, he saw him from 32 independent determination of defendant's guilt had been made

323 2 1 the side and from the front.“ IR. T. 67] In fact, Van Gene reh —— -

PP -Gandstone

$-1-74— 100M - 1073

prior to trial, and improperly expressed a personal opinion

as to the honesty of government witnesses. IR. T. 737-8, 742,

747). In addition, the prosecutor improperly stated that the

government possibly could have brought ten more witnesses

into the courtroom who would have identified Mr. Nobles,

thereby denying defendant the right of confrontation of those

witnesses. Finally, the prosecutor improperly and prejudicial

stated on four occasions that Mr. Nobles’ alibi witness worke

as a nude dancer, and also stated that she was “shacking up“

with defendant Nobles.

This Court's statement in Berger v. United States,

295 U.S. 78 (1935) is applicable to this case:

, we] have not here a case where

the misconduct of the prosecuting attorney

was slight or confined to a single instance

of, but one where such misconduct was pro-

nounced and persistent, with a probable

cumulative effect upon the jury which

cannot be disregarded as inconsequential." ~

—

% w W we Ww

b. Admission Into Evidence Of Statement Taken In

Violation Of Miranda v. Arizona Constituted Reversible Error.

The Court of Appeals did not comment on —

contention that the admission of Robert Nobles statement

Robert Nobles.

violated the provisions of Miranda v. Arizona.

in response to a question by officers after his arrest, and

before Miranda warnings were given, denied that he was Robert

Nobles.

The admission of this statement constitutes a

separate grounds justifying the reversal of defendant Nobles'

conviction and the denial of the petition.

ec. The Trial Court Erred In Refusing To Permit

Testimony Of Defendant Nobles’ Expert On Eyewitness Identifi-

cation.

The Court of Appeals found no error in the trial

court's refusal to permit the testimony of a defense expert

on eyewitness identification. App. A, infra, at page 8A ;

Respondent urges that the trial court's decision was erroneous

and constitutes a separate grounds justifying the reversal of

defendant Nobles' conviction and the denial of the petition.

FPI-Sooistone

$-1-74 -100M 1073

CONCLUSION

For the reasons set forth above, the Petition for

a Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit should be denied.

DATED: December 24, 1974

Respectfully submitted,

JOHN K. VAN DE KAMP

Federal Public Defender

V A

NICHOLAS R. ALLIS

Deputy Federal Public Defender

Rm 707, United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 688-4796

Counsel for Respondent

o 6 2 % „ „

PPI -Mandstone

5-1-74 ne 1073

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

UNITED STATES OF AMERICA, Petitioner

Vv.

ROBERT LEE NOBLES, Respondent

Ct TIFICATE OF SERVICE

I hereby certify that on this 24th day of December, —

1974, a copy of Motion for Leave to Proceed In Forma Pauperis,

Affidavit and Brief Opposing Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit,

were air mailed postage prepaid, and special delivery, to the |

Solicitor General of the United States, Department of Justice,

Washington, D. C. 20530, counsel for the Petitioner.

Jou K. VAN DE KAMP

9 47 7 i

NICHOLAS R. ALLIS

Deputy Federal Public Defender

Rm 707, United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 688-4796

Counsel for Respondent |

—ʒ—2— 22

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unrrep States or AMERICA,

Plaintiff-Appellee,

= No. 73-2279

Tomar Louis Brown,

Defendant-Appellant.

Unrrep States or AMERICA,

Plaintiff-Appellee,

vs. > No. 73-2678

Van. Dav Swarm,

Defendant-A ppellant.

Unrrep States or AMERICA,

Plaintiff-Appellee,

vs. No. 73-2280

Rosert Lee Noses,

Defendant-A ppellant.

June 10, 1974]

Appeal from the United States Distriet Court

for the Central Distriet of California

Before: ELV 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

»Tbe Honorable William B. Enright, United States District Judge for

the Southern District of California, sitting by designation.

APPENDIX "A"

2 United States of America vs.

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

customers 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 Nooles}.

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-

tifieations, and a statement by Brown.

Defendants Brown and Swain primarily attack the comparison

An FBI expert in photographie identification, Frederick E.

W. pared the two groups of photographs and stated that

in the police photographs were the same faces as those

surveillance photographs. He also testified that the

the two groups of photographs was the same, and

he made a similar analysis of a surveillance photo-

a pistol used in the robbery and a FBI photograph

n seized in the apartment.

Mr. Webb, in response to the prosecutor's questions,

to state his opinion that Brown and Swain were indeed

the three pictured on the surveillance film, the district

overruled the defense objection but not without some misgiv-

eee

8 8 83

gril

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.

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 3

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 circuit 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 the 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

jery.

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).

4 United States of America vs.

Advisory Committees 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 is 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 eyes, 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 u. Cairns, p. 5.

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

phasized the detail ef 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 identifieation—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

Y/)

Tommie Louis Brown, irgil David Swain, Robert Lee Nobles 5

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

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

convinced 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 should 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 photographie 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.

'The 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 resolution

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

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

less.

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

resolution and quality. The only articulable characteristics concerning

which the expert could testify were generalities, e.4., facial eontours,

shape 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 discretion would lie with the trial court.

——

6 . United States of America vs.

II Nobles Appeal

The evidence against Nobles differs from the case against

Brown and Swain. Most obvious is the absence of surveillance

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

stood underneath the camera rather than within its cope. Second,

no objects yere 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. 1 ‘ikewise, Gary Hoffman, a salesman visit-

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

Swain on the surveillance photographs and described their activi-

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

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

nation —

Although Nobles presented an affirmative alibi defense, his

strongest attack was to discredit the key evidence against him:

the eyewitness identification by Van Gemeren and Ioffman. To

do 80, his counsel not only employed cross-examination but also

attempted to introduce expert opinion testimony on the frailties

of eyewitness 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 describe the problems of eyewitness identifiea-

tion in general and the specific 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 conclude that the trial court was in error.

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

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 7

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-incrimination 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 transcribed 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 conditien

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

——

8 8 United States of America vs.

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-

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 ... .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

prescribe 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 secure 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 Here in conduct of a client's

case. 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.

»|

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 9

8 Wigmore, Evid f

— 1 ence (McNaughton rev. 1961), § 2317(2) (em-

Defense counsel did strongly assert th iti peach

* ass at to condition i -

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

against self. inerimination. This problem is indeed troubling.

When Federal Rule of Criminal Procedure 16

1966, Justices Black and Douglas dissented. —ä— tee ae

I am reasonably certain, however, that the Court's transwittal

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

een And I gree with my Brother DOUGLAS

some of the proposed criminal rules go to the very border

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 case w.th-

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

— * by the defense. I mean to imply no

detente — e that a serious constitu-

The prosecution’s opportunity to discover i

possession of the defense is somewhat limited 2 —

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

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

discovery, by itself, of information in the poaseasion of th

defendant would violate the privilege against 8

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 constitutio iI

rights? See, ¢.9., Sherbert v. Verner, 374 U.S. 398 403-406

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

ant the opportunity to discovery—an opportunity not ith.

held from defendants who agree to prosecutorial — é‘

or from whom discovery is not sought—merely because —

— —

— — ee

— —

— — — — —

10 f United States of America vs.

defendant chooses to exercise the constitutional right to re-

frain from self-incrimination 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 concerning the alleged impotence. In holding that the prose-

eutorial discovery was proper, the California Supreme Court

concluded that “since the criminal discovery permitted tg the

defendant is the result not of a constitutional mandate 4 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-

vietion that since 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 accused's rights

460A

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 11

and privileges, and especially his fundamental ri

5 t

compelled to be a witness against himself. *

We had occasion, in People v. Schader, 71 Cal. 2

[80 Cal. Rptr. 1, 457 P.2d 841], to analyze 93

. the Privilege against self-incrimination and recog-

nized, - +. With the United States Supreme Court, ‘that the

American system of criminal prosecution is accusatorial, 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 u. Hogan (1964) 378 US. 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 NY. Harbor 378

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

Thus, if we analyze Jones in the light of th i i

erations diseussed in Schader, it is edly ye dower

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

from pretrial diseovery, 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 i

of an incriminatory hazard as that would — oe

protection which the privilege against self-inerimination —

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 ruling upon a claim of privilege, the trial court must find

that it clearly appears from a consideration of all the circum.

4/79

— —— —

12 United States of America vs.

stances in the case that an answer to the challenged question

cannot possibly have a tendency to incriminate 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. 444, 449, 451 (S. D. N. v.

1968), Judge Pollack concluded:

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 Vratello dealt with pretrial prosecutorial

discovery as well as the constitutional concerns of conditioning

defense discovery upon the possibility of enhancing the govern-

ment’s case 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 Circuit 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-

40? 4

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 13

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. Jd. 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 resurreeting its witnesses’ testimony

by eliciting any rehabilitating statements by those same wit-

nesses.”

2Enterprising counsel may arguably assert that the evidence doctrine

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

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

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

the Judiciary implies, the doctrine is not a diseovery deviee, 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.

Since the Proposed Federal Rule may shift that burden, ., the

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

JIA

— —ũ—œU“ ——

— — — —— —

United States of America vs.

Since the witnemes, for whatever reasons, denied making the

initia] damaging statement, the defense had no alternative but to

present its impeachment evidence, ie, Bond's testimony.? If (ve

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 Circuit for the District of Columbia that

defendant has a right under the Fifth Amendment to

the state to investigate its own case, find its own evi-

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

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

Dist. 1973). a *

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, as we must.

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

writings or reeorded statements introduced into — wah the testi-

hen an individual, albeit that his recollection may be memorialized.

impeachment is the only alternative was not lost to

INA

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

anything Mr. Ho 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

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

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

„„

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

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

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

44-7

—— —

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 15

Before the promulgation of the original rules of criminal proce-

dure, it was doubtful whether criminal discovery was permitted.

In 1966, 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 governmem to permit the defendant to

inspect and copy or photograph books, papers, documents,

tangible objects, buildings or places, or eopirs or portions

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

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

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 ecross-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 (Ist Dist. 1972) [attorney-

client privilege applicable when client previously refreshes recolleetion }.

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 court in its

diseretion 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.

fO77

—

16 United States of America vs.

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-

cal 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, his agents or attor-

neys.

Emphasis and capitalization added.

Each subsection contains a work product® savings clause, i. 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:

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

the . . policies supporting protection of an attorney's

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

are even more strongly applicable in criminal proceedings.

is “an especially strong tendency toward the protection of

materials 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 NJ.

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

defendant's attorney’s notes coucerning interviews with pre-pective

witnesses. The court states:

“(Whe 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 an 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).

a —

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 17

(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),

(e), 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 stenographie, 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. But no such exception is included

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

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

We 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

— wee cee -

re ee ee

18 United States of America vs.

also,

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.

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

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

elosure 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 objccts,

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

photograph any results or reports of physical or mental examinations

ientifie tests or experiments made in connection with the par-

or copies thereof, within the possession or control of the

hich the defendant intends to introduce as evidence in chief

which were prepared by a witness whom the defendant

at the trial when the results or reports relate to his

witnesses. Upon request of the government, the de-

furnish the government a list of the names and addresses

intends to call in the presentation of the case in

a request for discovery of the names and addresses of

been made by the government, the defendant shall be

perpetuate the testimony of such witnesses in accordance

provisions of Rule 15.

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

disclosure, retains the inviolability of internal defense docu-

REES

gts

= f i

18 77

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Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 19

KILKENNY, Concurring and Dissenting:

BROWN AND SWAIN APPEALS

I concur in the affirmances of the Brown and Swain convic-

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. Or 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 cupy of “any inter-

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

phone call.“ 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 memorandym. 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.

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

497

— — — —

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20 United States of America vs.

and then only to the extent that an

\ y and all statements

defendant be excised prior to the delivery to the — asi

Later, defense counsel called Bond. The court inqui

the nature of Bond's testimony. Counsel responded aun

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

going to impeach two statements af 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-

upon indicated that those portions of the testi i

estimony deal i

4 impeachment would be excluded.* After an — > Ai

> the judge fully explained that he would only require

efense to permit inspection of those portions of the memo-

y which was the last part of Mr Hoffman's testi i

pony was the L mony relative to hi

— . — between people of the black race. And if he docs

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

. . \ @ 7

“THE COURT: I will say this to assist i

you, Mr. Allis, while I thi

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

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

In T. 470-471). with the Court, or something of that nature.”

“If Mr. Allis indicates to me that he

; refuscs to do th t,

A 1 5 — os — witness to testify in thet — oa

5 r. to rtion if Bond's

testimony he wishes to elicit.” In T. 520). *

f VAUABLE

BEST COPY AVAILABLE

— 9 -——..

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 21

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 positions 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 cross-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 direet 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 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

MR. 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 Pussession

the reports are from turning them over for any reason.

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

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

and I am narrowing my ruling to the very specific area.” LR. T. 526).

22.

ä—d1—U— i —

22 : United States of America vs.

assume that he did not properly prepare the witness by having

him read the memorandum. In these cireumstanecs, 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-cxamination 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 Harris v. New York, 401 U.S. 222 (1971),

where the court approved the introduction of a statement on

eros 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 include 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 produe-

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

A273

—— — —— —

Tommie Louis Brown, Virgil David Swain, Robert Lee Nobles 23

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 specific 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 erossexamination.

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 erystal 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:

—

AIA

——

— —

24 . United States of America vs.

“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.”

* * . .

„Even 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.

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

e+ with — Jencks Act, 18 U.S.C. 5 3500, or with Rule 16,

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

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

ment purposes, must produce the notes he admittedly made on

the subject of impeac nent.

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

court.

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

AYA

N— — — —

—— ͤ m——

. ˙ ! ̃ ˙²ůͥͤyp ⁵»Ä ̃ ͤůö ? ̃̃ 1 .

APPENDIX B

In the United States Court of Appeals for the Ninth

Circuit

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

Unrrep StaTes oF AMERICA, PLAINTIFF-APPELLEE

Tommie Louis Brown; VIRGIL 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)

——— — — ce Ue —

APPENDIX C

In the United States Court of Appeals for the Ninth

Cireuit

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

Unirep States oF AMERICA, PLAINTIFF-APPELLEE

Tommir Lovis Brown; VIRdIL. Davm Swalx; Ronkxr

Lee NoBLES, DEFENDANTS-APPELLANTS

Before EL and Kmxenny, Circuit Judges, and

Ennicut, 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 bane 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 banc rehearing.

The full court has been advised of the suggestion

for an en banc 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)

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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.