# Petitioners Reply Brief — United States v. Nobles

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0194%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 225

## Text

No. 74-634

Iu the Supreme Court of the United States

OCTOBER TERM, 1974

UNITED STATES OF AMERICA, PETITIONER
v.

ROBERT LEE NOBLES

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

ROBERT H. BORK,
Solicitor General,

JOHN C. KEENEY,
Acting Assistant Attorney General,

ANDREW L. FREY,
Deputy Solicitor General,

PAUL L. FRIEDMAN,
Assistant to the Solicitor General,

SIDNEY M. GLAZER,

IVAN MICHAEL SCHAEFFER,
Attorneys,
Department of Justice,
Washington, D.C. 20530.

——

Opinion below
ENS ae Re a 1
Question presented —(...... 2

Constitutional provision, statute and rules in-
IE ceiieaediipeicitiicishcecbeihinie iden

Statement

Se a eee 6 eee ee

Summary of argument _..__.__. als 15

Argument:

I. The order to disclose relevant portions

of the investigator’s report constituted

a sound exercise of the traditional, ap-

propriate and necessary powers of the
trial court over the conduct of a trial___ 22

A. Disclosure was necessary to facili-
tate cross-examination of the in-
vestigator and further the truth-
seeking goal of the trial __...____. 22

B. In the absence of a _ recognized
privilege, the trial court had dis-
cretion, as a part of its continuing
responsibility to rule on matters of
evidence, to order disclosure of rel-
evant portions of the defense in-
vestigator’s report _____ 28

C. The trial court’s disclosure order
was consistent with the provisions
of the new Federal Rules of Evi-
EC 35

II

Argument—Continued

II. The investigator’s report was not pro-
tected from disclosure by respondent’s
Fifth Amendment privilege against
self-incrimination _....--

A.

Because the privilege against com-
pulsory self-incrimination is a per-
sonal one relating to the personal
knowledge and private papers of
the accused, it does not extend to
the investigator’s report _...______.

Even if the self-incrimination priv-
ilege applied to the investigator’s
report, respondent was not “com-
pelled” to disclose its contents in
any constitutionally impermissible
sense; rather, he would have
waived whatever privilege he may
otherwise have enjoyed by electing
to call the investigator to the
IEE ciatievtinkvetiindidebiibiclenetinnsanietentailiaitiacs

The analysis of the court of ap-
peals and the cases upon which it
relied do not support its conclu-
AE ET ee eae eA,

III. Portions of written investigative re-
ports reflecting statements of govern-
ment witnesses interviewed by a de-
fense investigator are not protected by
Rule 16 or the Jencks Act from disclo-
sure during trial for impeachment pur-

EE ee

Page

44

45

48

55

&

Il

CITATIONS
Cases: Page
Bellis v. United States, 417 U.S. 85__.45, 47, 49
Boyd v. United States, 116 U.S. 616. 47
Brown v. United States, 356 U.S. 148. 19, 52
Brown v. Walker, 161 U.S. 591 __--..--- 49

Campbell v. United States, 373 U.S. 487. 30
Couch v. United States, 409 U.S. 322__. 45, 49

Dennis v. United States, 384 U.S. 855__. 23
Elkins v. United States, 364 U.S. 206_.. 29
Feldman v. United States, 322 U.S. 487-. 49
Funk v. United States, 290 U.S. |) 66
Garrity v. “New Jersey, 385 U.S. 493__. 49
Giles v. Maryland, 386 U.S. 66 -........- 63

Goldman v. United States, 316 U.S. 129. 16, 30
Gordon v. United States, 344 U.S. 414 16, 21,

32, 63
Harris v. New York, 401 U.S. 222.14, 19, 48,
53, 60
Illinois v. Somerville, 410 U.S. 458 30
Jencks v. United States, 353 U.S. 657__. 16, 26,
30, 33, 66
Keller v. Criminal Court of Marion
County, 16 Crim. L. Rptr. 2155 ____. 32
McGautha v. California, 402 U.S. 183_.. 19, 49,
51, 52, 60
Malloy v. Hogan, 378 U.S. 1 _... oie 49
Murphy v. Waterfront Commission, 378
ee es eee 20, 58

Nardone v. United States, 808 U.S. 338_ 21
Palermo v. United States, 360 U.S. 343_ 16, 21,
29, 31, 63, 66
People v. Damon, 26 N.Y. 2d 256, 247
N.E. 2d 661, 299 N.¥.S. 2d 830 _.. 31, 45
People v. Sanders, 110 I. APP. 2d 85,
— 4s Lf | a 32

ea

IV
Cases—Continued Page
Pittsburgh Plate Glass Co. v. United
States, 360 U.S. 395 _ , 30

Prudhomme v. Superior Court of ,% A.
County, 2 Cal. 3d 320, 466 P.2d 673,

oS Cal. Bote. 199 19, 25, 56, 57

Raffel v. United States, 271 U.S. 494 19, 51-

52, 53

Schmerber v. California, 384 U.S. 757 47

Smith v. Illinois, 390 U.S. 129 _.. 24
State v. Montague, 55 N.J. 387, 262 A.2d

398 - _ 81, 32
State v. _ Montague, 101 N. J. ‘Super. 483,

244 A.2d 699 - ae 65
Ullman v. United States, 350 U. S. ‘422 49
United States v. Augenblick, 393 U. S.

IE swcestisonnstinsieeasincelan amenniaas ae ee 30, 66
United States v. Fratello, 44 F.R.D. 444. 20, 55,

56, 57
United States v. Matthews, D.D.C. Crim.

No. 319-72, affirmed by order, C.A.

D.C., No. 73-1535, March 12, 1974 ___ 28
United States v. Nixon, No. 73-1766, de-

cided July 24,1974 = 16, 27, 29
United States v. Posey, D.D.C. Crim. No.

1178-72, affirmed by order, C.A.D.C.

No. 73-1379, June 14, 1974 27
United States v. White, 322 U.S. 694___ 47
United States v. Wright, 489 F. 2d 1181_ 20, 32,

33, 42, 55, 56, 58, 60
Wade v. Hunter, 336 U.S. 684 30
Walder v. United States, 347 U.S. 62 53
Wardius v. Oregon, 412 U.S. 474 51

Williams v. Florida, 399 U.S. 78 19, 23, 50,
55, 56

are

Vv

Constitution, statutes and rules: Page
United States Constitution:
Fifth Amendment ._...3, 14, 17, 18, 19, 20, 44,

48, 49, 51, 54, 55, 58
Rie silent 6
18 U.S.C. 3500 (The Jencks Act) _.....3, 14, 15,

20, 60, 61, 63, 64
Be I Seo ciccrssherissiectesiehinietatannenibncicing 3, 63
BE 7
Federal Rules of Criminal Procedure:
2 na 3, 20, 21, 55, 60, 61, 63, 64, 65
SD Pe cick nasineinisieiiieiencel 4, 62, 63, 64
Rule 16(c) .__.........4, 14, 20, 61, 62, 64, 65
on reer ee 5
TTR ele ee ae 66
lle 66
Federal Rules of Evidence:
i elleaiall 36
ee ene a 66
| ses 5, 17, 38, 41, 43
a 5, 17, 36, 37
BN ctiteericoniiiniieniantnaneniiieecinlies 37
Miscellaneous :
Advisory Committee Note to Rule 613(a),
Fed. R. Bvid., 56 F.R.D. 278 _...._... 36

Advisory Committee Note to Proposed
Rule 1°, Ped. R. Crim. P., 62 F.R.D.
309 . 64
Advisor Commxtee Note ‘to Rule 16,
Fed. K Crm. P., 18 USC. » APP. B pp.
4493-.404 - santas . 63, 64

tee eS ———<€£ EO EOE <<
—— ee a —_-

VI

Miscellaneous—Continued Page

Brennan, The Criminal Prosecution:
Sporting Event or Quest for Truih?,
1963 Wash. U.L.Q. 279 __... ae Wi 23
Freedman, Professional Responsibility of
the Criminal Defense Lawyer: The
Three Hardest Questions, 64 Mich. L.
Rev. 1469 (1966) sa 27
Ladd, Some Observations on Credibility:
Impeachment of Witnesses, 52 Cornell

ni We gc 23, 24
McCormick, Evidence (1972):
AR ETON cae tan kn EN ES 41
EEUU AeA Ted) 24
AREA at Bike Nee Ree teas ae 24
Eg PEER a ria te aerltlak a ome 26
ee eae eee eT, eens Le 38
Sai ae te ne FES Sena) ae 65

Nakell, Criminal Discovery for the De-

fense and the Prosecution—The Devel-

oping Constitutional Considerations, 50

N.C.L. Rev. 487 (1972) 63
Proposed Rules, Fed. R. Crim. P., 62

F.R.D. 305-306
Prosecutorial Discovery under Proposed

Rule 16, 85 Harv. L. Rev. 994 (1972) _ 63
Rezneck, The New Federal Rules of Crim-

inal Procedure, 54 Geo. L.J. 1276

(1966)
S. Rep. No. 981, 85th Cong., 1st Sess... 63
VII Wigmore, Evidence (3d ed. 1940):

$$ 2094-2125 3 38

OO EEE EEE ~~ — —

vil

Miscellaneous—Continued

VIII Wigmore, Evidence (McNaughton
rev. 1961):

| eer ae eee

1 Wright, Federal Practice and Proce-
I, Ee CUD eeirceceniecinertertenitscnction

— ua i HI UQOQU° _«-- <=

Page

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-634
UNITED STATES OF AMERICA, PETITIONER
Vv.

ROBERT LEE NOBLES

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pec. App. A)
is reported at 501 F. 2d 146.

JURISDICTION

The judgment of the court of appeals was entered
on June 10, 1974 (Pet. App. B). On September 23,
1974, the court of appeals denied a petition for re-
hearing with a suggestion for rehearing en banc

(1)

2

(Pet. App. C). By order of October 15, 1974, Mr.
Justice Douglas extended the time for filing a peti-
tion for a writ of certiorari to and including No-
vember 22, 1974, on which date the petition was
filed. Certiorari was granted on January 20, 1975
(App. 51). The jurisdiction of this Court rests on
28 U.S.C. 1254(1).

QUESTION PRESENTED

Two government witnesses were cross-examined re-
garding statements allegedly made by them to an
investigator employed by defense counsel, which state-
ments were inconsistent with their identification of
respondent as one of the participants in a bank rob-
bery. They denied having made such statements.
During the defense case, defense counsel proposed to
call the investigator to testify to his conversations
with the witnesses, with the intent of thereby im-
peaching the witnesses’ testimony. The investigator’s
report, prepared after his interview of the witnesses,
contained statements purporting to report or reflect
what the witnesses had said to him.

The question presented is whether, in these cir-
cumstances, the trial court has discretion to condi-
tion the defendant’s right to present the investiga-
tor’s impeaching testimony upon production to the
prosecution of the portions of the investigator’s re-
port relating to the statements purportedly made by
the government witnesses to the investigator.

3

CONSTITUTIONAL PROVISION, STATUTE AND
RULES INVOLVED

1. The Fifth Amendment to the United States
Constitution provides in pertinent part:

No person * * * shall be compelled in any

criminal case to be a witness against himself
* * *

2. 18 U.S.C. 3500 (the Jencks Act) 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 Govern-
ment witness (other than the defendant) shall
be the subject of subpena, discovery, or inspec-
tion until said witness has testified on direct
examination in the trial of the case.

(b) After a witness called by the United
States has testified on direct examination, the
court shall, on motion of the defendant, order
the United States to produce any statement (as
hereinafter defined) of the witness in the pos-
session of the United States which relates to the
subject matter as to which the witness has tes-
tified. If the entire contents of any such state-
ment relate to the subject matter of the testi-
mony of the witness, the court shall order it to
be delivered directly to the defendant for his
examination and use.

8. Rule 16 of the Federal Rules of Criminal Pro-
cedure provides in pertinent part:

4

(b) OTHER Books, PAPERS, DocUMENTS, TANGI-
BLE OBJECTS OR PLACES

* * * Except as provided in subdivision (a) (2),
this rule does not authorize the discovery or in-
spection of reports, memoranda, or other inter-
nal government documents made by government
agents in connection with the investigation or
prosecution of the case, or of statements made by
government witnesses or prospective government
witnesses (other than the defendant) to agents
of the government except as provided in 18
U.S.C. § 3500.

(c) DISCOVERY BY THE GOVERNMENT

If the court grants relief sought by the de-
fendant under subdivision (a) (2) or subdivision
(b) of this rule, it may, upon motion of the gov-
ernment, condition its order by requiring that
the defendant permit the government to inspect
and copy or photograph scientific or medical re-
ports, books, papers, documents, tangible objects,
or copies or portions thereof, which the defend-
ant intends to produce at the trial and which
are within his possession, custody or control,
upon a showing of materiality to the prepara-
tion of the government’s case and that the re-
quest is reasonable. Except as to scientific or
medical reports, this subdivision does not author-
ize the discovery or inspection of reports, memo-
randa, 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

5

prospective government or defense witnesses, to
the defendant, his agents or attorneys.

* * * * *

(f) TIME OF MOTIONS

A motion under this rule may be made only
within 10 days of arraignment or at such rea-
sonable later time as the court may permit. The
motion shall include all relief sought under this
rule. A subsequent motion may be made only
upon a showing of cause why such motion would
be in the interest of justice.

4. Rule 612 of the Federal Rules of Evidence pro-
vides:

Except as otherwise provided in criminal pro-
ceedings by section 3500 of title 18, United
States Code, if a witness uses a writing to re-
fresh his memory for the purpose of testifying,
either—

(1) while testifying, or

(2) before testifying, if the court in its
discretion determines it is necessary in the
interests of justice,

an adverse party is entitled to have the writing
produced at the hearing, to inspect it, to cross-
examine the witness thereon, and to introduce in
evidence those portions which relate to the testi-
mony of the witness. If it is claimed that the
writing contains matters not related to the sub-
ject matter of the testimony the court shall ex-
amine the writing in camera, excise any portions
not so related, and order delivery of the re-
mainder to the party entitled thereto. Any por-

6

tion withheld over objections shall be preserved
and made available to the appellate court in the
event of an appeal. If a writing is not produced
or delivered pursuant to order under this rule,
the court shall make any order justice requires,
except that in criminal cases when the prosecu-
tion elects not to comply, the order shall be one
striking the testimony or, if the court in its dis-
cretion determines that the interests of justice
so require, declaring a mistrial.

5. Rule 613 of the Federal Rules of Evidence pro-
vides in pertinent part:

(a) Examining witness concerning prior state-
ment.—In examining a witness concerning a
prior statement made by him, whether written
or not, the statement need not be shown nor its
contents disclosed to him at that time, but on
request the same shall be shown or disclosed to
opposing counsel.

STATEMENT

Following a jury trial in the United States Dis-
trict Court for the Central District of California.
respondent and two others’ were convicted of bank
robbery, in violation of 18 U.S.C. 2113(a), and as-
sault with a dangerous weapon in the commission of
the robbery, in violation of 18 U.S.C. 2113(d). Each

* Indicted, tried, and convicted with respondent were Tom-
mie Louis Brown and Virgil David Swain. A fourth suspect,
Jonathan Ray Nobles, was also indicted but was a fugitive
at the time of trial.

- lt tilts, a

7

defendant was sentenced to a term of twenty-five
years’ imprisonment, subiect to the immediate parole
eligibility provisions of 18 U.S.C. 4208(a)(2) (App.
48-49). Over the dissent of one judge, the court of
appeals reversed respondent’s conviction and ordered
a new trial (Pet. App. A; 501 F. 2d 146).

1. On the morning of February 6, 1973, at ap-
proximately 11:30 a.m., four men entered and robbed
a branch of the Crocker National Bank in Los An-
geles, California (Tr. 13-25, 185-186). One, identi-
fied as co-defendant Brown, jumped behind the tell-
ers’ windows and moved down the line of cages, col-
lecting a total of $4,031 from the cash drawers (Tr.
18-20, 187-194). Meanwhile, brandishing weapons
and guarding the customers and bank employees from
various positions in the bank, the other three men
ensured that no one would interfere with Brown’s
labors. Armed with a revolver, the man identified
as respondent performed his part in the robbery
while standing directly beneath the bank’s automatic
surveillance camera and thus was the only one of the
robbers whose activities in the bank were not cap-
tured on film for the jury to view (Tr. 22-23, 192-
194, 323-324).

Accordingly, the evidence against respondent at
trial consisted exclusively of the testimony of two
eye witnesses, Peter Van Gemeren, a bank teller (Tr.
22-23) and Gary Hoffman, a salesman visiting the
bank (Tr. 323-325, 420-421). Van Gemeren testified

2 The court unanimously affirmed the convictions of Brown
and Swain.

8

that during the robbery he observed respondent for
approximately one minute from a distance of twenty
feet and that he gave a detailed description of him
to the F.B.I. (Tr. 61-62). Hoffman testified that he
observed respondent standing beneath the surveillance
camera (App. 17; see also Tr. 416) and that he fo-
cused his attention on respondent for a full two or
three minutes, one-third of the time that the rob-
bery was in progress (App. 18-19). Hoffman also
gave a description to the F.B.I. (Tr. 329). Hoffman
further testified that, prior to trial, he identified
respondent from a photographic array and at a police
lineup (Tr. 328-331, 420-421). While respondent
presented an affirmative defense of alibi, his strongest
defense, as the court of appeals noted (Pet. App. 6a),
was his attempt to discredit the testimony of Van
Gemeren and Hoffman.

2. During his cross-examination of Van Gemeren,
respondent’s counsel asked the witness whether he re-
called being interviewed by an investigator from the
Public Defender’s office, John Bond (App. 11). The
witness was unsure whether such an interview had
taken place and, if it had, of the nature of his re-
sponse to questions that may have been asked in the
interview (ibid.). The government thereupon re-
quested, and respondent’s counsel agreed, that the
witness be allowed to examine his alleged statement
for the purpose of refreshing his recollection (ibid.).
However, the statement was not in fact shown to the
witness during the overnight recess.

_—-_ 7 —————— er ss ee TT TA Anes

When the trial resumed the following morning, re-
spondent’s counsel asked Van Gemeren whether it
was not a fact that he had told the defense investi-
gator that he had seen only the back of the robber
who had been standing under the surveillance camera.
Van Gemeren did not recall having so stated (App.
12). Government counsel again requested that the
witness be allowed to refresh his recollection oy re-
viewing the prior statement that he allegedly had
given to the investigator (ibid.).

Counsel for respondent then stated that he had
reconsidered his previous consent to allow Van
Gemeren to examine the alleged statement (App. 12-
13): “I had agreed to that, Your Honor, and after
saying that yesterday, I talked it over with several
other attorneys in our office. It is our position that
we do not have to do that because I am only trying
to use this interview for impeachment purposes.”
The court ordered counsel to allow the witness to
examine the purported statement (App. 13). Counsel
then tore off a strip of paper from his investigator’s
report, showed it to the court,’ and had it marked
as Defense Exhibit A for identification (App. 13-14).

After Van Gemeren examined the paper, he testi-
fied that it refreshed his recollection but that he still
did not recall having told the investigator that he had
seen only the back of the robber standing under the

’ The piece of paper was also shown to the prosecutor, who
found it “unintelligible” (App. 14). It was not subsequently
introduced in evidence and was not thereafter available to

the prosecutor.

10

surveillance camera (App. 15). He further testified,
in response to a question from respondent’s counsel,
that in fact he had not seen only tne back of the
robber under the camera (ibid.).

3. During defense counsel’s cross-examination of
Hoffman, the following colloquy occurred regarding
a telephone conversation that Hoffman had had with
the same Public Defender’s office investigator, John
Bond (App. 20):

[RESPONDENT’S COUNSEL:] And isn’t it a
fact that you told Mr. Bond that to you all the
blacks appear to be alike?

[THE WITNESS:] I don’t believe I indicated
that to him.

[RESPONDENT’S COUNSEL:] You do not
recall stating that to Mr. Bond?

[THE WITNESS:] No, I do not.

[RESPONDENT’S COUNSEL:] That all blacks
‘ook alike?

[THE WITNESS:] No, I do not, sir.

At the bench, the prosecutor requested respond-
ent’s counsel to furnish him with “a copy of any in-
terview, notes or recorded statements” of Hoffman’s
purported statements to Bond for use in redirect
examination of Hoffman (ibid.). Respondent’s coun-
sel refused to allow the prosecutor to inspect them,
but the court indicated that, in the absence of legal
authority precluding such inspection, it would re-
quire disclosure (App. 21):

al

It seems only fair, if the government gives
you copies of all the statements made. I think
that the government is entitled, in view of the
attempt at least of impeachment to see a copy
of the statement that this witness made.

After hearing argument on the motion for produc-
tion of portions of the report, the court modified its
ruling. It narrowly defined the issue before it (App.
24-25), concluded that Rule 16 of the Federal Rules
of Criminal Procedure applies only to pre-trial dis-
covery and was thus inapplicable (App. 25), and then
ruled as follows (App. 24, 26-27):

* * * First of all, the Court is not going to
order disclosure of this memorandum at this
time. At the present time there has been no
impeachment and will be no impeachment until
the investigator takes the stand and testifies as
to the allegedly impeaching statements.

Therefore, the issue will not arise until the
investigator does take the stand. The issue
thereafter will be whether or not for utilization
for impeachment purposes the government should
be entitled to examine the memorandum made
by the investigator, presumptively concurrently
with his inquiry of the allegedly impeached wit-
ness for purposes of furthering the government’s
cross-examination.

* * * * *

* * * [T]he government may not have tie
memorandum until the witness has taken the
stand and has indicated the particular impeach-
ing testimony which was the last part of Mr.

12

Hoffman’s testimony relative to his inability to
distinguish between people of the black race.

And if he does make such a statement, if he
* * * [Mr. Bond] make[s] such a statement,
then I believe the government is entitled to an
examination of the memorandum—not before
that time—but after that time, after he has
completed his entire testimony.

* * * The issue, of course, may not arise. It is
dependent upon whether or not Mr. Bond is

called to testify, but that is the Court’s view at
this time.
* ~ ~ * *

I will say this to assist you, Mr. Allis [re-
spondent’s counsel], while I think about it. I
am sure there are no statements by any of the
defendants contained in this particular memo-
randum, and my order is going only to this par-
ticular memorandum. I am not generalizing on
any other memorandum or memoranda you may
have.

It goes only to this particular memorandum
involving the particular witness Hoffman. If you
represent to me that there are matters contained
therein, such as recitals by the defendants or
your defendant, of course, I would view it im-
perative that you have the opportunity to excise
that, perhaps after an in-camera session with
the Court, or something of that nature.

I am specifically concerned only with the Hoff-
man statement of Mr. Bond.

4. As part of the defense case, counsel for re-
spondent called John Bond as a witness, without first
indicating whether he intended to comply with the

13

court’s previous ruling regarding production of por-
tions of Bond’s investigative report (App. 29-30).
When the court requested an offer of proof as to
Bond’s testimony, respondent’s counsel stated that
Bond would impeach the testimony of witnesses Van
Gemeren and Hoffman (App. 30),* but that the de-
fense would not turn over these witnesses’ statements
following Bond’s direct testimony (ibid.). The court
reiterated its prior ruling (App. 30-33) and stated
that, in the absence of disclosure of the relevant
portions of the investigative report, Bond would
not be permitted to testify regarding his interviews
with Van Gemeren and Hoffman (App. 30-31, 33,
36). Bond then testified concerning some photographs
that he had taken at the bank, but, pursuant to the
court’s order, he was not asked to impeach the iden-
tification testimony of Hoffman or Van Gemeren
(see Tr. 529-556).

5. Respondent was convicted and on appeal con-
tended that the district court’s ruling violated his
privilege against self-incrimination, denied him the
right of cross-examination, and was contrary to the
limitations contained in Rule 16 of the Federal Rules
of Criminal Procedure.

A divided court of appeals reversed. The majority
found prejudicial error in conditioning impeachment
upon disclosure to the prosecutor of portions of the
investigative report, even though the excerpts would

+A written offer of proof was filed with the court under
seal (see App. 33) and was supplemented by oral representa-
tions of defense counsel. App. 34-35.

ES

14

only be used as an aid to cross-examination by the
government. The court held that requiring produc-
tion to the government of those portions of Bond’s
report relating to conversations about which Bond
sought to testify during trial would violate respond-
ent’s Fifth Amendment privilege against compulsory
self-incrimination (Pet. App. 9a-14a). Moreover, al-
though the disclosure would not take place until
after the government had completed its case in chief
at trial, the court deemed the required production of
the excerpts from the investigator’s report to be a
violation of Rule 16(c)’s limitation on prosecutorial
discovery in criminal cases (Pet. App. 15a-18a).°
The dissenting judge, proceeding essentially on the
premise that “[t]he purpose of a trial is to develop
the truth, not suppress it” (Pet. App. 22a), con-
cluded that there was no error in requiring a witness
called for impeachment purposes to produce the notes
that he made on the subject of impeachment and that
form the basis of his testimony. Relying in part on
Harris v. New York, 401 U.S. 222, the dissenting
judge concluded that the Fifth Amendment’s privi-
lege against self-incrimination did not bar the trial
court from ordering disclosure (Pet. App. 22a). He
also found that the majority’s reliance on Rule 16,
which governs pretrial discovery, and on the Jencks
Act, 18 U.S.C. 3500, was misplaced (Pet. App. 24a).
“Our problem,” he wrote, “centers on a simple com-

* The court specifically held that the investigator’s report

was not protected by the attorney-client privilege (Pet. App.
7a-9a).

ee eee

15

mon law evidentiary question of whether a witness,
who was called for impeachment purposes, must pro-
duce the notes he admittedly made on the subject
of impeachment” (ibid.).

SUMMARY OF ARGUMENT

1. The trial court’s order—that defense investiga-
tor Bond could not testify about alleged prior incon-
sistent statements of government witnesses unless
the prosecution were allowed to examine the portions
of the investigator’s report relating to Bond’s inter-
views of the two witnesses—was eminently sensible
and fair. It was necessary and proper to advance
the truth-seeking function of the criminal trial by
providing the prosecution with the material most like-
ly to be pertinent in cross-examining the witness and
testing the accuracy of his recollection of the inter-
views. The court’s order did no more than to put the
prosecution on an equal footing in this particular
respect with the defense, which obtains copies of
statements of government witnesses under the Jencks
Act (18 U.S.C. 3500) in similar situations.

As the dissenting judge said (Pet. App. 22a),
“t]he purpose of a trial is to develop the truth, not
suppress it.” In our legal system this goal is thought
to be fostered by the adversary nature of the crimi-
nal trial itself, and particularly by the opportunity
for effective cross-examination. Thus, the order of
the trial court was fully consistent with the view
of this Court that “[t]he need to develop all rele-
vant facts in the adversary system is both funda-

|

16

mental and comprehensive. The ends of criminal
justice would be defeated if judgments were to be
founded on a partial or speculative presentation of
the facts.” United States v. Nixon, No. 73-1766, de-
cided July 24, 1974, slip op. 24.

In the absence of a recognized privilege shielding
disclosure, it follows that a trial court, as a part
of its continuing responsibility to rule on matters of
evidence, has discretionary power during trial to or-
der a witness or a party to produce for inspection
documents in his possession relating to the subject
matter of the witness’s testimony at trial. See, e.9.,
Goldman v. United States, 316 U.S. 129, 132; Gor-
don v. United States, 344 U.S. 414, 420; Jencks v.
United States, 353 U.S. 657, 669; Palermo v. United
States, 360 U.S. 343, 353. Moreover, there was no
burden on the prosecution to establish in advance
that Bond’s report would in fact have been incon-
sistent with his testimony. “Relevancy and mate-
riality for the purposes of production and inspection,
with a view to use on cross-examination, are estab-
lished when the reports are shown to relate to the
testimony of the witness” (Jencks v. United States,

supra, 353 U.S. at 669), as clearly jAdid here. _ te “pe

Moreover, the trial court exercised its discretion
with great care by limiting its disclosure order to
those portions of the investigator’s report relating
to the proffered testimony of Bond regarding his
interviews with Van Gemeren and Hoffman, by not
requiring disclosure until after Bond’s direct. testi-
mony, and by indicating that the irrelevant portions

A

17

of the report could be excised prior to disclosure to
the prosecution. Thus, absent the existence of a rec-
ognized privilege, it was an appropriate exercise of
inherent power for the trial court to order produc-
tion of the relevant portions of the investigator’s
report.

The trial court’s disclosure order also was con-
sistent with the provisions of the new Federal Rules
of Evidence (Pub. L. 93-595), which will go into
effect on July 1, 1975. Rule 613(a), by making
mandatory the disclosure to opposing counsel of al-
leged prior statements of a witness whenever the
witness is cross-examined about such statements,
would have required the disclosure to the prosecutor
of the purported statements of Van Gemeren and
Hoffman at the time respondent’s counsel interro-
gated them about their statements to Bond. Rule 612
would have permitted the court to require production
of the relevant portions of Bond’s report during or
after his direct testimony, assuming that Bond had
used the report to refresh his recollection before or
while testifying. Thus, the adoption of the new Fed-
eral Rules of Evidence lends further support to the
wisdom of the discretionary action of the trial court
in this case.

2. Despite the fact that the trial court’s order
furthered the search for the truth, the court of ap-
peals concluded that it violated respondent’s privilege
against self-incrimination. We submit, however, that
the Fifth Amendment privilege does not shield the
report from production in these circumstances.

DI EEE EE oO

18

The portions of the investigator’s report ordered
disclosed are not the kind of material within the am-
bit of the privilege, because they are neither personal
to respondent nor testimonial in nature. Respondent
did not prepare Bond’s report, nor did the portions
of the report ordered disclosed reflect any informa-
tion from or ideas of the respondent. Moreover,
while the portions of a written report relating to
witness interviews might, in the abstract, be con-
sidered “testimonial” in character, they are not “tes-
timonial” with reference to respondent—the only
relevant sense in considering his claim of privilege.
He neither gave the interviews nor prepared the re-
port.

In any event, respondent was not actually com-
pelled to produce the report and did not in fact
produce it. While it is true that the court condi-
tioned respondent’s right to adduce the impeaching
testimony from the investigator on production of the
report, that action involved no impermissible com-
pulsion in the Fifth Amendment sense. The court’s
order no doubt posed a difficult choice for respond-
ent—either to call the investigator as a witness at
trial on the condition that his report be disclosed and
risk effective impeachment of his testimony,’ or to
forego the introduction of that testimony from the
investigator—but the choice was respondent’s freely

* For purposes of the Fifth Amendment analysis, it must be
assumed that the report was in fact inconsistent with the
testimony Bond would have given; otherwise, its disclosure
would not have tended to incriminate respondent.

19

to make as a matter of trial strategy and did not
create the kind of compulsion against which the Fifth
Amendment protects. See McGautha v. California,
402 U.S. 183, 213; Williams v. Florida, 399 U.S. 78.

Moreover, even if the material in the investiga-
tor’s report were otherwise within the Fifth Amend-
ment privilege, the privilege was waived when re-
spondent offered the investigator as a witness in his
behalf. By choosing to tell his side of the story
through the investigator’s testimony, respondent
waived his Fifth Amendment privilege not only as
to the part of the story he wished the jury to hear,
but as to the whole story. See Harris v. New York,
401 U.S. 222, 226; Brown v. United States, 356 U.S.
148, 155-156; Raffel v. United States, 271 U.S. 494.
For one cannot “claim the privilege against cross-
examination on matters reasonably related to the
subject matter of his direct examination.” McGautha
v. California, supra, 402 U.S. at 215.

Finally, we note that there is virtually no prece-
dent supporting the holding of the court of appeals
that the trial court’s production order violated re-
spondent’s Fifth Amendment privilege. Two of the
cases on which the court placed primary reliance
relate to the entirely different question of pre-trial
discovery, and both took pains to distinguish the sit-
uation in which the defendant elected to take the
stand at trial, recognizing the need for full inquiry
and thorough cross-examination in such circum-
stances. Prudhomme v. Superior Court of L.A.
County, 2 Cal. 3d 320, 466 P.2d 673, 85 Cal. Rptr.

eee

20

129; United States v. Fratello, 44 F.R.D. 444 (S.D.
N.Y.). The third case, United States v. Wright, 489
F.2d 1181 (C.A.D.C.), did deal with a factual situa-
tion like that presented by this case, but its Fifth
Amendment discussion was not the basis for decision.

To the extent that the Fifth Amendment was im-
plicated in Wright, the court there, as here, was con-
cerned that disclosure of an investigator’s report
would undermine the “preference for an accusa-
torial rather than an inquisitorial system of criminal
justice” and the requirement that “the government
in its contest with the individual * * * shoulder
the entire load.” Murphy v. Waterfront Commission,
378 U.S. 52, 55. However, these values are not in-
fringed in this case, because the order of the trial
court did not require production of the relevant por-
tions of the investigator’s report until after the gov-
ernment had put on its entire case in chief and
withstood a motion for judgment of acquittal, and
after the defense had called Bond as a witness and
completed its direct examination of him.

3. The court of appeals also examined the district
court’s production order from the perspective of Rule
16 of the Federal Rules of Criminal Procedure and
the Jencks Act (18 U.S.C. 3500). Neither, we sub-
mit, has any bearing on the issue presented in this
case. We do not rely upon the affirmative authoriza-
tion in Rule 16(c) as a basis for the trial court’s
production order; indeed, we think Rule 16(c) is
entirely irrelevant. The question here is not one of
reciprocal discovery, and the pertinent portion of

21

the investigator’s report did not comprise material
the defendant “intends to produce at the trial.” Most
importantly, this case is not concerned with pre-trial
discovery. Once trial has commenced the function of
Rule 16 is ended; the rule neither authorizes nor
precludes in-trial production or use of witnesses’
statements for impeachment purposes.

As for the Jencks Act, it relates only to in-trial
disclosure to the defense of statements of government
witnesses, and it was .ntended to limit (rather than
define or expand) the discretion of trial judges in
ordering such disclosure. In the absence of a com-
parable statutory limitation upon disclosure of state-
ments to the prosecution, final decision as to such
matters remains in the sound discretion of the trial
court.’ Cf. Gordon v. United States, supra, 344 U.S.
at 418; Palermo v. United States, supra, 360 U.S.
at 353.

In sum, the decision of the court of appeals has
improperly required the exclusion of relevant evi-
dence essential to a fair testing of the credibility of
the defense investigator’s testimony. As Mr. Justice
Frankfurter observed in Nardone v. United States,
308 U.S. 338, 340, “Any claim for the exclusion of
evidence logically relevant in criminal! prosecutions is
heavily handicapped. It must be justified by an over-
riding public policy expressed in the Constitution or

* Considerations of due process might inhibit authorization
of greater disclosure to the prosecution than is permitted to
the defense, but no such element of inequality is involved

here.

22

the law of the land.” No such justification can be
demonstrated here.
ARGUMENT

I. THE ORDER TO DISCLOSE RELEVANT POR-
TIONS OF THE INVESTIGATOR’S REPORT CON-
STITUTED A SOUND EXERCISE OF THE TRA-
DITIONAL, APPROPRIATE AND NECESSARY
POWERS OF THE TRIAL COURT OVER THE CON-
DUCT OF A TRIAL.

A. Disclosure Was Necessary to Facilitate Cross-
Examination of the Investigator and Further the
Truth-Seeking Goal of the Trial.

Respondent’s counsel asked government witnesses
Van Gemeren and Hoffman, eye witnesses to the rob-
bery, whether the former had told defense investi-
gator Bond that he only saw the back of the robber
identified by him as respondent, and whether the
latter had said to Bond that all blacks looked alike
to him. During this cross-examination, however, re-
spondent’s counsel refused to disclose portions of a
report of the investigator containing statements of
these witnesses, except for a portion of a purported
statement of Van Gemeren. Thereafter, respondent’s
counsel sought to impeach the credibility of the twe
witnesses by offering testimony from Bond about
the prior statements of the government witnesses.

The district court ruled that if the investigator
testified about the prior statements, the government
could examine that portion of the report prepared
by the investigator relating to the statements made
to him by the two witnesses and that the court would
first examine the memorandum in camera, if neces-
sary, to excise any extraneous matter. Otherwise,

23

the court ruled, the investigator could not testify
about these alleged statements. Respondent’s counsel
declined to produce the report and thereby did not
elicit such testimony from the investigator.

This ruling by the district court was eminently
sensible and fair. The judicial process, whether in
the context of a civil or a criminal case, is a search
for truth and not a “sporting contest” between the
two sides. See, e.g., Williams v. Florida, supra, 399
U.S. at 82; Brennan, The Criminal Prosecution:
Sporting Event or Quest for Truth?, 1963 Wash.
U.L.Q. 279. The accomplishment of that ultimate
goal is fostered by “disclosure, rather than suppres-
sion, of relevant materials” (Dennis v. United States,
384 U.S. 855, 870) and by the adversary nature of
the process itself. The process contemplates exami-
nation and vigorous cross-examination in open court
of the witnesses to the events in question, in an effort
to enable the jury properly to weigh the credibility,
demeanor, ability to recall, and opportunity to ob-
serve of the various witnesses and thereby to arrive
at the truth. See, e.g., Ladd, Some Observations on
Credibility: Impeachment of Witnesses, 52 Cornell
L.Q. 239, 256-257 (1967). The existence of an ade-
quate opportunity to test the credibility of the wit-
nesses who take the stand is in turn crucial to the
reliability and success of this process. .

To assist the jury in assessing credibility and in
ascertaining the “whole truth,” our system of justice
provides for the confrontation of each witness of-
fered—even the defendant in a criminal trial, should

SOOO OOOO

24

he choose to testify—by opposing counsel. The wit-
ness’s credibility is put to searching test under fire
of cross-examination, and judges and lawyers have
therefore long regarded the opportunity to cross-
examine “as an essential safeguard of the accuracy
and completeness of testimony.” McCormick, Evi-
dence, § 19, p. 43 (1972). See also Smith v. Illinois,
390 U.S. 129; Ladd, supra, 52 Cornell L.Q. at 258.

Because the purpose of cross-examination is to ex-
plore those factors that determine whether testimony
is believable—perception, memory and narration of
the witness—probably the most effective and most
frequently employed method of attacking a witness’s
credibility is by proof that the witness on a previous
occasion has made a statement inconsistent with his
present testimony. McCormick, supra, at § 33, p. 66
and n. 1. As McCormick further states (id. at § 34,
p. 68):

The theory of attack by prior inconsistent
statements is not based on the assumption that
the present testimony is false and the former
statement true but rather upon the notion that
talking one way on the stand and another way
previously is blowing hot and cold, and raises
a doubt as to the truthfulness of both statements.

It is this doubt concerning the truthfulness or ac-
curacy of the statements made by Van Gemeren and
Hoffman that respondent sought to raise by cross-
examining them about their interviews with the de-
fense inv stigator, Bond. Had respondent been per-
mitted by the trial court to proceed as he intended,

25

he would then have attempted to reinforce the doubt
thereby created by calling Bond to the witness stand
and “completing the impeachment” through Bond’s
testimony that he had interviewed Van Gemeren and
Hoffman prior to trial and that they had in fact made
statements to him inconsistent with their trial testi-
mony.*

Having himself thus exploited the truth-seeking
devices of cross-examination and impeachment by
prior inconsistent statement to cres*e doubt about the
credibility of the two key government witnesses, re-
spondent nevertheless demands the right to deprive
the government of the effective use of the same tools
by denying it the opportunity to impeach his witness,
Bond, with his prior inconsistent statements (if the
report was inconsistent with his trial testimony) and
to rehabilitate the government’s own witnesses by
showing that their trial testimony may not have been
inconsistent with their statements to the investigator,
as the defense claimed it was. The trial court prop-

*As noted (supra, note 4), we have not been privy to
the written offer of proof concerning Bond’s proffered testi-
mony, which was filed with the court under seal. The thrust
of counsel’s oral representations (App. 33-34) indicates that
Bond would have testified that the prior statements of Van
Gemeren and Hoffman were inconsistent with their trial
testimony. However, no representation was made as to wheth-
er the report would confirm that testimony, and the dissenting
judge in the court of appeals inferred that it would not, stat-
ing (Pet. App. 22a) that “the memorandum probably made no
reference to the impeachment questions propounded to the
witness Hoffman. Otherwise, there would be no logical reason
for the refusal to produce it.”

26

erly recognized the essential unfairness of this ap-
proach (App. 21):

It seems only fair, if the government gives

you copies of all the statements made. I think

that the government is entitled, in view of the

attempt at least of impeachment to see a copy
of the statement that this witness made.

Two observations are pertinent. First, the defense
intended to open up the issue of the prior statements
made by the government witnesses to its investigator
while at the same time restricting the right of the
government to cross-examine the defense witness ef-
fectively. Second, if the statements as recorded by
Bond contained no reference to the impeaching in-
consistencies about which he planned to testify, dis-
closure would have cast grave doubt indeed on the
accuracy of the investigator’s testimony that those
prior inconsistent statements had actually been made
to him.’ As this Court said in Jencks v. United
States, 353 U.S. 657, 667:

Every experienced trial judge and trial law-
yer knows the value for impeaching purposes of
statements of the witness recording the events
before time dulls treacherous memory. Flat con-
tradiction between the witness’ testimony and
the version of the events given in his reports is

*If the report conformed to the investigator’s testimony,
it would possibly have had some probative value in reinforcing
his testimony, but it is doubtful that it would have been ad-
missible in evidence at the behest of the defense. It would
have been a prior consistent statement, and those are ordi-
narily inadmissible in the absence of a claim of recent fab-
rication or contrivance to give false testimony. See Mc-
Cormick, Evidence, supra, § 49, p. 106.

27

not the only test of inconsistency. The omission
from the reports of facts related at the trial, or
a contrast in emphasis upon the same facts,
even a different order of treatment, are also
relevant to the cross-examining process of test-
ing the credibility of a witness’ trial testimony.

The position of respondent and the decision of the
court of appeals serve to defeat the ends of justice
by allowing a partial presentation of the facts and
thereby impeding the ascertainment of truth.” The
court of appeals’ opinion is thus inconsistent with
the view of this Court that “[t]he very integrity of
the judicial system and public confidence in the sys-
tem depend on full disclosure of all the facts, within
the framework of the rules of evidence.” United
States v. Nixon, No. 73-1766, decided July 24, 1974,
slip op., p. 24.”

1° This is of particular concern in light of the view ad-
vanced on at least one occasion that a defense attorney may
call a witness to testify although he knows the witness will
commit perjury. See Freedman, Professional Responsibility
of the Criminal Defense Lawyer: The Three Hardest Ques-
tions, 64 Mich. L. Rev. 1469 (1966).

11 While the increasing professionalism of public defender
services is a beneficial development, there is no reason to
suppose that defense investigators are more thorough, im-
partial, or accurate than law enforcement agents or that there
is any less need for access to their prior reports to assess the
credibility of their testimony. Without in any way impugning
the motives of the investigator employed in the instant case or
of defense counsel, we think it worth noting that the unre-
liability of defense investigators has been the subject of ju-
dicial comment by several experienced federal trial judges.
For example, in United States v. Posey, D.D.C. Crim. No.
1178-72, affirmed by order, C.A.D.C. No. 73-1379, June 14,
1974, District Judge Pratt denied a request that a rape victim

eee ee S......QQ°;.Kenn

28

B. In the Absence of a Recognized Privilege, the Trial
Court Had Discretion, as a Part of Its Continuing
Responsibility to Rule on Matters of Evidence, to
Order Disclosure of Relevant Portions of the
Defense Investigator’s Report.

1. As the foregoing discussion indicates, the con-
tent of the defense investigator’s report of the state-
ments made to him by the government witnesses may
well have been critical to the jury’s determination of

who had refused to speak to a defense investigator be ordered
to do so. He explained the reasons for his ruling as follows
(Nov. 3, 1972, Tr. 18): “What you want to do, you want to
nail her to the cross. You want to send a Public Defender
investigator to interview her, take a statement, not show it to
her after she’s made it, then put the investigator on the stand,
and what comes out of the investigator’s mouth may be like
nothing she has said. * * * [I]t happens over and over again.”

Another case in the District of Columbia, United States v.
Matthews, D.D.C. Crim. No. 319-72, affirmed by order,
C.A.D.C., No. 73-1545, March 12, 1974, is strikingly simi-
lar factually to the instant case. There, defense counsel made
a proffer to the court that the complainant, when interviewed
by a Public Defender Service investigator, had stated (I Tr.
32-33): “All Niggers look alike.” The complainant denied
having made such a statement or having spoken to an in-
vestigator at all (I Tr. 31-A), and the investigator later
conceded that there was no mention of such an inflammatory
statement in his rough notes and that in his final written
report he had used only the phrase, “They all look alike,” a
phrase he had failed even to place in quotation marks (I Tr.
147-148). This retreat by the investigator, after forced dis-
closure by the trial court of his notes and report, prompted
District Judge Gesell to remark (I Tr. 33): “All of my ex-
perience has been that the investigators for the Public De-
fender Service are unreliable, and my only hesitancy is that
I have never had one before me that was not shown to be very
mistaken and inadequate in his reports, biased and lacking
in the kind of requirements expected of an investigating
officer.”

29

the credibility of the eyewitness identifications of
respondent as one of the robbers. At the heart of this
case, therefore, is the proposition recently enunciated
by this Court that “[t]he need to develop all relevant
facts in the adversary system is both fundamental
and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded
on a partial or speculative presentation of the facts.”
United States v. Nixon, supra, slip op. at 24. The
public has a right to “every man’s evidence,” and
exceptions to this principle “are not lightly created
nor expansively construed, for they are in derogation
of the search for truth” (id. at 25). In the absence
of a recognized privilege shielding disclosure, it fol-
lows that a trial court has discretionary power during
trial to order a witness or a party to produce for in-
spection documents in his possession relating to the
subject matter of the testimony of the witness at
trial.”

The decisions of this Court support that view. In
Palermo v. United States, 360 U.S. 348, 353, for ex-
ample, the Court stated: “Final decision as to pro-
duction must rest, as it does so very often in pro-
cedural and evidentiary matters, within the good sense
and experience of the district judge * * * subject

12 “Limitations are properly placed upon the operation of
this general principle only to the very limited extent that per-
mitting a refusal to testify or exciuding relevant evidence has
a public good transcending the normally predominant princi-
ple of utilizing all rational means for ascertaining truth.
Elkins v. United States, 364 U.S. 206, 234 (Frankfurter, )
dissenting, cited with approval in United States v. Nixon,

supra, slip op. at 25, n. 18).

30

to the appropriately limited review of appellate
courts.” See also Campbell v. United States, 373
U.S. 487, 493; United States v. Augenblick, 393 U.S.
348, 355. Thus, in the absence of a controlling statute
or rule, this Court has held that the trie] judge has
wide discretion in matters relating to cross-examina-
tion or the production of documents to assist in cross-
examination. See, e.g., Goldman v. United States, 316
U.S. 129, 132; Gordon v. United States, 344 U.S. 414,
420; Jencks v. United States, 353 U.S. 657, 669;
Pittsburgh Plate Glass Co. v. United States, 360 U.S.
395, 400.

While the cited cases were decided in the context
of defense requests for government documents or de-
fense cross-examination of a government witness,
there is no sound reason why the same principles
should not be equally applicable to the right of the
government to obtain disclosure for purposes of pos-
sible cross-examination (unless production of the
document requested is shielded by a privilege or is
barred by statute or rule, matters that we discuss
in subsequent parts of this brief). What is at stake in
considering the prosecution’s right to reciprocal pro-
duction is the vitally important “public’s interest in
fair trials designed to end in just judgments.” Jilinois
v. Somervilie, 410 U.S. 458, 463, quoting Wade v.
Hunter, 336 U.S. 684, 689.”

18 While the core issue is one of reciprocity, it should be
noted that our position here may be upheld without ruling
that the prosecution has a right of disclosure of prior state-
ments of defense witnesses as broad in all respects as that ac-

31

Three state courts have had occasion to consider
the question of reciprocity. As the Supreme Court
of New Jersey observed in State v. Montague, 55
N.J. 387, 398-399, 262 A.2d 398, 403-404:

We noted that cross-examination was the most
valuable safeguard that had been discovered
in the judicial search for truth and _ that,
if cross-examination is to be effective, it must
have wide latitude in the testing of the recol-
lection of the witness. * * * While this was
said in connection with the testimony of a
prosecution witness it applies equally to the
testimony of a defense witness. So long as no
constitutional privilege is infringed, there is no
sensible reason for imposing any restrictions on
the cross-examination of defense witnesses be-
yond those applied to prosecution witnesses. We
find no infringement whatever here, for * * *
nothing in the Constitution assures to a defend-
ant “a right so to defend as to deny the State
a chance to check the truth of his position.” * * *

Accord: People v. Damon, 24 N.Y. 2d 256, 261,
247 N.E. 2d 651, 654, 299 N.Y.S. 2d 830, 834;

corded the defense under the Jencks Act (which itself repre-
sented a narrowing of the traditional inherent powers of trial
courts, see Palermo v. United States, supra, 360 U.S. at 361
(Brennan, J., concurring) ). The trial court did not order full
disclosure of Bond’s prior statement, but confined its order to
the portion concerning Bond’s account of the prior statements
of the prosecution witness. This is relatively a special and
narrow instance in which disclosure was particularly essential.

Ee Se a

32

People v. Sanders, 110 Ill. App. 2d 85, 89, 249 N.E.

2d 124, 126 (1st Dist.).”

2. The trial judge is limited in the exercise of his
discretion to order production only by the traditional
doctrines of relevance and materiality. See Gordon
vy. United States, supra, 344 U.S. at 420. “Rele-
vancy and materiality for the purposes of produc-
tion and inspection, with a view to use on cross-
examination, are established when the reports are
shown to relate to the testimony of the witness.”

14 The court in Montague noted that applicable court rules
contained nothing explicit with respect to the right of the
prosecution to obtain production of a prior statement of a
defense witness who has actually testified. Its decision rested
instead upon “the court’s inherent power to order discovery
when justice so requires.” 55 N.J. at 400, 262 A.2d at 405.

So far as our research discloses, the three cited cases are the
only decisionsof state appellate courts that have considered the
question at issue here. Each of them concluded that, so long as
there is no common law or constitutional privilege precluding
disclosure of statements of witnesses in the possession of the
defense (and each found none), the trial court has inherent
authority to order their disclosure. Cf. Keller v. Criminal
Court of Marion County, 16 Crim. L. Rptr. 2155 (Indiana
Sup. Ct., October 15, 1974). Indeed, all three of these cases
actually go further than the present case, since the disclosure
required was not confined to the portion of prior defense
witness statements concerning interviews of government wit-
nesses.

The only reported federal decision we know of dealing
directly with this issue, besides that of the court of appeals
in the instant case, is United States v. Wright, 489 F.2d 1181
(C.A.D.C.), in which a divided panel ef the District of Co-
lumbia Circuit held, as did the court below, that it was error
for the trial court to have ordered disclosure of an investi-

gator’s report.

Jencks v. United States, supra, 353 U.S. at 669. In
deed, depending upon the care and completeness with
which it was prepared, the portion of the report that
the court ordered disclosed could have turned out to
be the weightiest evidence available for assessing the
relative credibility of Van Gemeren, Hoffman and
Bond; surely, at the time of trial, it was likely to be
better evidence than Bond’s recollection of what was
said at interviews weeks earlier. If the reports were
inconsistent with Bond’s testimony, the jury should
not have been deprived of such highly probative evi-
dence.

Here, the trial court exercised its discretion with
care. It limited its disclosure order to those portions
of the investigator’s report that related to the direct
testimony Bond would have given regarding his in-
terviews with Van Gemeren and Hoffman; it indi-
cated that counsel could excise any statements of the
defendant before delivering the other relevant por-
tions of the report to the prosecutor; it did not re-
quire disclosure until after Bond’s direct testimony ;
and it made clear that its ruling was limited to “the
very specific area” of “post testimony discovery” and
had nothing whatsoever to do with pretrial discovery
(App. 33).”°

While we believe United States v. Wright, supra, was
wrongly decided by the District of Columbia Circuit with
respect to this issue, it is significantly distinguishable from
the case at bar, for the trial judge in Wright did not exercise
his discretion with the care shown by the trial judge in the

In sum, the court’s disclosure order was limited
to that which was relevant and material to the pur-
pose for which respondent chose to call the investi-
gator as a witness, that purpose being the impeach-
ment of two government witnesses by alleged prior
inconsistent statements." Absent the existence of a

instant case. As the dissenting court of appeals judge stated
in this case (Pet. App. 23a; emphasis in original):

(1) [I]n Wright the order was overly broad and re-
quired defense counsel to surrender for inspection the
entire report, rather than the specific portions relevant
only to the impeaching question; (2) there, the prosecutor
was seeking the statement to use it as substantive evi-
dence, rather than for impeachment purposes; and (3)
Wright recognizes, as a Hornbook rule of evidence, that
had the investigator used parts of his report to refresh
his recollection, the prosecution would be entitled to ex-
amine those parts of the report relating to impeachment,
and would be permitted to make use of them in the cross-
examination. The opinion then goes on to emphasize that
the investigator did not use the report to refresh his
recollection. * * * Here, as previously mentioned, I feel
that the presence of the statement on counsel table, his
use of the statement in interrogating Hoffman and his
lengthy colloquy with the court and opposing counsel
would clearly indicate that Bond had so refreshed his
recollection.

** Consideration of the kind of cross-examination to which
investigator Bond could properly have been subjected shows
that the trial judge had discretion to order production of the
report. Specifically, testimony by Bond that Hoffman and Van
Gemeren made statements to him subjected Bond to cross-
examination as to all the details and circumstances under
which these statements were made; the context in which the
quoted statements were made; how he remembered these
particular statements, especially since he obtained them as

recognized privilege shielding the report, the trial
court properly exercised its discretion in ruling that
the memorandum of the defense investigator should
be disclosed to the prosecutor if the investigator tes-
tified about the prior statements of the two key gov-
ernment witnesses.

C. The Trial Court’s Disclosure Order was Consistent
with the Provisions of the New Federal Rules of
Evidence.

1. Rule 613(a) of the Federal Rules of Evidence *
provides :

In examining a witness concerning a prior
statement made by him, whether written or not,
the statement need not be shown nor its contents
disclosed to him at that time, but on request the
same shall be shown or disclosed to opposing
counsel. [Emphasis supplied. }

part of his job as a professional investigator; the form in
which he recorded these statements; and whether he had ever
refreshed his memory about these statements from ivoking at
his report.

* The Federal Rules of Evidence (Pub. L. 93-595) were
signed into law by President Ford on January 2, 1975, and
are scheduled to take effect 180 days later, on July 1, 1975.
They will apply to all proceedings brought after their effective
date, as well as “to further procedure in actions, cases, and
proceedings then pending, except to the extent that application
of the rules would not be feasible, or would work injustice, in
which event former evidentiary principles apply.” Pub.
L. 93-595. Thus, if there were to be a new trial in the instant
case, the new rules would govern unless the trial is held before

July 1 of this year.

a

36

By its terms, Rule 613(a) makes mandatory the
disclosure to opposing counsel (in this case, the prose-
cutor) of prior statements made by a witness when-
ever the attorney examining the witness (here, de-
fense counsel) asks the witness about his prior state-
ments. The purpose of the Rule is to “protect against
unwarranted insinuations that a statement has been
made when the fact is to the contrary.” Advisory
Committee Note to Rule 613(a), Fed. R. Evid., 56
F.R.D. at 278. The rule is consonant with the
overall purposes of the new Federal Rules of Evi-
dence as articulated by this Court and by Con-
gress: “These rules shall be construed to secure fair-
ness in administration, * * * and promotion of growth
and development of the law of evidence to the end
that the truth may be ascertained and proceedings
justly determined.” Fed. R. Evid. 102.

The Rule would require disclosure of the relevant
portions of the investigator’s report. Respondent’s
counsel asked Van Gemeren and Hoffman on cross-
examination whether the former had told Bond that
he only saw the back of the robber identified as re-
spondent and whether the latter had stated that all
blacks looked alike. During the testimony of the wit-
nesses, however, respondent’s counsel refused to dis-
close the report prepared by the investigator and
purportedly containing prior statements of these wit-
nesses to him.“ Under Rule 613(a), such refusal

*® Respondent’s counsel initially did make available a por-
tion of a purported statement of Van Gemeren (Defense Ex-
hibit A for identification), but it is unclear from the record

37

would not have been permitted once the question
about their prior statements had been asked of gov-
ernment witnesses. (Moreover, Rule 613(b) makes
clear that such questioning was a necessary predicate
to introduction of extrinsic evidence regarding al-
leged prior statements of the witnesses.)

Once respondent’s counsel had asked Van Gemeren
or Hoffman about their statements to Bond, under
the new Rule the purported statements necessarily
would have had to be “shown or disclosed” to the
prosecutor, in order to protect against “unwarranted
insinuations” that the statement had been made when
the fact may have been to the contrary.” The order
of the trial court thus reflected the very concerns
expressed by the Court and Congress in promulgating
Rule 613(a), and the adoption of the Rule lends

whether this disclosure would have been sufficient to satisfy
the requirement of Rule 613 (a). No disclosure of any kind was
made with respect to Hoffman’s alleged statement.

% Because the witnesses had apparently never read, ap-
proved, signed, or adopted Bond’s reduction to writing of their
statements to him (App. 13-14) it is doubtful that the “state-
ments” would themselves have been admissible as exirinsic
evidence of prior inconsistency on the part of Van Gemeren
and Hoffman. But the fact that they were not statements of
the government witnesses for admissibility purposes is not
pertinent to the right of disclosure afforded by Rule 613(a),
which is designed to permit opposing counsel to inform and
satisfy himself of the basis for undertaking the impeach-
ment.

The statements, if inconsistent with Bond’s testimony,
would have been admissible as his prior statement, but that
use does not implicate Rule 613.

38

further support to the wisdom of the discretionary
action of the trial court in this case. See also Rule
106, Fed. R. Evid.”

2. Rule 612 of the Federal Rules of Evidence pro-
vides in pertinent part:

Except as otherwise provided in criminal pro-
ceedings by section 3500 of title 18, United
States Code, if a witness uses a writing to re-
fresh his memory for the purpose of testifying,
either—

(1) while testifying, or

2 The evidentiary doctrine of completeness, expressed in
Rule 106, dictates that all evidence relating to a given docu-
ment be made available once that document is used by one of
the parties. Rule 106 provides: “When a writing or recorded
statement or part thereof is introduced by a party, an adverse
party may require him at that time to introduce any other
part or any other writing or recorded statement which ought
in fairness to be considered contemporaneously with it.” Com-
plete disclosure is favored because the courts have recognized
the danger of removing evidence from context and thereby
creating a possibly distorted impression as to what the evi-
dence actually reveals. See VII Wigmore, Evidence, §§ 2094-
2125, p. 466 (3d ed. 1940); McCormick, Evidence, supra, § 56,
p. 130. Once a part of a statement has been introduced, the ad-
versary has an opportunity to introduce the remainder of the
document or testimony, insofar as it is relevant to the subject
matter and tends to explain the earlier offered testimony. The
policy behind the completeness principle does not differ with
reference to documents referred to but not produced at trial.
The entire reason for the doctrine is the fair administration
of justice, which can only be assured where there is full dis-
closure. Once Bond testified concerning what was said during
the Hoffman and Van Gemeren interviews, the prosecution
would have been entitled to verify the content of the state-
ments or offer the balance of the statements into evidence.

39

/ (2) before testifying, if the court in its
discretion determines it is necessary in the
interests of justice,

an adverse party is entitled to have the writ-
ing produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to intro-
duce in evidence those portions which relate to
the testimony of the witness. If it is claimed
that the writing contains matters not related to
the subject matter of the testimony the court
shall examine the writing in camera, excise any
portions not so related, and order delivery of
the remainder to the party entitled thereto. * * *

This new Rule thus incorporates the Jencks Act’s
preduction rationale and recognizes it as a two-way
street, making prior statements available to the op-
posing party for purposes of cross-examination after
the direct examination of the witness. The Advisory
Committee’s Note demonstrates the Rule’s intended
application to a situation such as that presented in
the instant case (56 F.R.D. at 277):

The purpose of the rule is the same as that of
the Jencks statute, 18 U.S.C. $3500: to pro-
mote the search of credibility and memory. The
same sensitivity to disclosure of government files
may be involved; hence the rule is expressly made
subject to the statute * * *. With this limita-
tion in mind, some differences of application may
be noted. The Jencks statute applies only to
statements of witnesses; the rule is not so lim-
ited. The statute applies only to criminal cases;
the rule applies to all cases. The statute applies
only to government witnesses; the rule applies

EE

40

to all witnesses. The statute contains no require-
ment that the statement be consulted for pur-
pose of refreshment before or while testifying;
the rule so requires. Since many writings would
qualify under either statute or rule, a substan-
tial overlap exists, but the identity of procedures
make this of no importance. [Emphasis supplied
and citations omitted. |

This Rule would have required production at trial,
for purposes of cross-examination of Bond, of the
relevant portions of Bond’s notes, assuming that
Bond had used the notes to refresh his recollection.
Respondent’s counsel sought to impeach the credi-
bility of Van Gemeren and Hoffman by offering
Bond’s testimony about prior statements purportedly
made to him by those witnesses and recorded by him
in a written report.” The district court ruled that if
the investigator testified about prior statements, the

21 The fact that the alleged prior statements were included
in Bond’s written report is not in dispute, as the following
colloquy indicates (App. 35):

THE COURT. For the record, your offer of proof, does
it include the fact that Mr. Bond did in this particular
case, with these two witnesses, prepare notes during the
time he made his interview with these witnesses and then
subsequently reduced them to a written report; is that
correct, Mr. Allis?

MR. ALLIS. That is correct. It is not in the offer of
proof but that is what he did.

THE COURT. And that, of course, is what we have
been talking about when we were talking about a por-
tion of the report being turned over to the government
after the completion of Mr. Bond’s testimony, I assume.

41

government could inspect that portion of the investi-
gator’s report relating to the statements made to him
by the witnesses (after the court had first examined
the memorandum, in camera if necessary, to excise
any extraneous matter). Otherwise, the court ruled,
the investigator could not testify about these alleged
statements.

Because respondent did not produce the report and
was thus not permitted to elicit such testimony from
the investigator, we do not know whether Bond would
have found it necessary to refresh his recollection
while testifying. Had he done so, of course, the prose-
cutor would have been entitled to inspect the report,
both under Rule 612 (if the case had been tried after
the effective date of the Federal Rules of Evidence)
and under traditional rules of evidence. See e.g.,
McCormick, Evidence, supra, § 9, pp. 17-18; * United

22 McCormick has explained the purpose of this evidentiary
rule as follows (ibid.):

The second safeguard is the rule which entitles the ad-
verse party, when the witness seeks to resort to the
memorandum, to inspect the memorandum so that he may
object to its use if ground appears, and to have the memo-
randum available for his reference in cross-examining
the witness. With the memorandum before him, the
cross-examiner has a good opportunity to test the credi-
bility of the witness’s claim that his memory has been
revived, and to search out any discrepancies between the
writing and the testimony. This right to demand inspec-
tion has usually been limited to writings used by the wit-
ness on the stand, but the reasons seem equally appli-
cable to writings used by the witness to refresh his
memory before he testifies. Doubtless the courts have
thought that to require inspection of such papers may

42

States v. Wright, 489 F. 2d 1181, 1188-1189 (C.A.
D.C.). If Bond refreshed his recollection by review-
ing his report before testifying, it would have been in
the court’s discretion under Rule 612 to order produc-
tion. While the court of appeals here stated that
there “is nothing in the record to suggest Bond used
his reports to refresh his recollection” (Pet. App.
14a, n. 4), there is nothing to suggest that he had not
done so. Indeed, as the dissenting judge stated, the
fair inference is that Bond did in fact refresh his
recollection by reviewing his report (Pet. App. 21la-
22a):

The record is clear that defense counsel had
the Bond statement on his desk and was utiliz-
ing it in connection with the cross-examination
of Hoffman. If the trial had followed the cus-
tomary course and Bond had taken the witness
stand, without the preliminary discussions and
the court’s advisory ruling on the production of
the statement, Bond, no doubt, would have said
that he used the statement to refresh his mem-
ory. For that matter, the record of the proceed-
ings necessarily points to this conclusion. Addi-
tionally, there was nothing amateurish about
defense counsel’s performance and it would be
doing him a great injustice to assume that he
did not properly prepare the witness by having
him read the memorandum.

unduly encourage prying into the opponent’s file, but in-
creasingly, the decisions reflect the view that there is a
public interest in the full disclosure of the source of a
witness’s testimony. [Footnotes omitted.]

43

From the record in this case, it is fair to assume
that had Bond testified about his interviews with
Van Gemeren and Hoffman, the prosecutor in cross-
examination would have asked Bond whether he had
refreshed his recollection by reviewing his report
before testifying. If Bond responded that he had,
the relevant portions of the report would have been
producible under Rule 612 in the discretion of the
court, and the district court undoubtedly would have
exercised its discretion under the Rule to order pro-
duction “in the interests of justice” (just as it did
here in the exercise of its inherent discretion absent
a rule or statute). Thus the prosecutor would have
been permitted to inspect the report, to cross-examine
the witness about it, and to introduce in evidence
those portions relating to Bond’s testimony.”

*°It is, of course, theoretically possible that Bond never
examined the report to refresh his recollection and would
have testified without ever doing so. As a professional investi-
gator who interviews large numbers cf persons for a busy
public defender’s office, it seems unlikely that Bond would be
able to give reliable testimony without reviewing his report,
which was prepared several weeks and, presumably, many
interviews before the time of trial. In any event, it seems
hard to imagine any legitimate purpose that could be served
by a deliberate refusal of a defense investigator to refresh his
recollection from his report prior to testifying, and, in an
appropriate case, we think a trial court might have inherent
power to demand that the investigator refresh his recollec-
tion as a precondition to testifying.

Moreover, while Rule 612 itself would not specifically au-
thorize production of prior written statements not used to
refresh recollection, it is by no means clear that it was in-
tended to extinguish the court’s inherent power, apart from

44

Il. THE INVESTIGATOR’S REPORT WAS NOT PRO-
TECTED FROM DISCLOSURE BY RESPONDENT'S
FIFTH AMENDMENT PRIVILEGE AGAINST
SELF-INCRIMINATION.

The court of appeals concluded that the trial court’s
order requiring disclosure of relevant portions of the
defense investigator’s report as a condition of Bond’s
testifying about his interviews with Van Gemeren
and Hoffman violated respondent’s Fifth Amendment
privilege against compelled self-incrimination. The
precise analytical basis for the court’s decision is not
clear, and the opinion does not adduce any substan-
tial body of precedent supporting the conclusion it
reached, either directly or by analogy.

The Fifth Amendment privilege against self-in-
crimination does not sustain the court’s result. The
portions of the investigator’s report ordered dis-
closed are not the kind of material within the ambit
of the privilege, being neither personal to the defend-
ant nor testimonial in nature. Moreover, because the
court’s order did not require any disclosure unless
and until respondent himself chose to call the investi-
gator as a witness, it involved no compulsion in the
Fifth Amendment sense. Finally, even if the ma-
terial were otherwise within the privilege, the privi-
lege was waived when the defense elected to seek to
prove the making of prior inconsistent statements
by offering the investigator as a witness.

specific enabling rule, to require production in particular
cases, such as this, in which the statement is manifestiy likely
to have great materiality in assessing the credibility of the
witness’s trial testimony.

45

A. Because The Privilege Against Compulsory Self-
Incrimination is a Personal One Relating To The
Personal Knowledge and Private Papers Of The
Accused, It Does Not Extend To The Investigator’s
Report.

By investing Bond’s reports describing his inter-
views of government witnesses with the status of
materials protected by respondent’s privilege against
compulsory self-incrimination, the court of appeals
overlooked the essential attributes that must exist in
order for such protection to be properly recognized.
“By its very nature, the privilege is an intimate and
personal one. It respects a private inner sanctum of
individual feeling and thought and proscribes state
intrusion to extract self-condemnation.” Couch v.
United States, 409 U.S. 322, 327. “It is important
to reiterate that the Fifth Amendment privilege is
a personal privilege: it adheres basically to the per-
son, not to information that may incriminate him.”
Id. at 328 (emphasis in original). See also Bellis v.
United States, 417 U.S. 85, 90.

Respondent did not prepare Bond’s report, nor is
it suggested that the portions ordered disclosed in
any way reflected information or ideas of the re-
spondent. There was, in short, nothing personal to
respondent in this material, and compelled” its dis-
closure thus would not infringe his privilege. As
the New York Court of Appeals stated in upholding
a similar disclosure requirement in People v. Damon,
supra, 24 N.Y. 2d at 261, 247 N.E. 2d at 654, 299

N.Y.S. 2d at 834:

46

These statements were not those of the de-
fendant but of witnesses offered by the defendant.
In no sense can it be said that he is being com-
pelled to produce incriminating statements of his
own. The privilege against self incrimination
applies only to evidence of a testimonial or com-
municative nature obtained from the defendant
himself (Schmerber v. California, 884 U.S. 757,
761, 86 S. Ct. 1826, 16 L. Ed. 2d 908; see, also,
Jones v. Superior Ct. of Nevada County, 58 Cal.
2d 56, 22 Cal. Rptr. 879, 372 P.2d 919, 96 A.L.R.
2d 1213; Traynor, Ground Lost and Found in
Criminal Discovery, 39 N.Y.U.L. Rev. 228, 246
n.; Note, 76 Harv. L. Rev. 838). We have recog-
nized the defendant’s right to obtain and inspect
statements of prosecution witnesses for possible
use in cross-examining them (see People v. Ro-
sario, 9 N.Y.2d 286, 213 N.Y.S. 2d 448, 173 N.E.
2d 881, 7 A.L.R.38d 174). There is neither rea-
son nor justification for not allowing t'e People
to procure from the defendant statements taken
from his witnesses for the same purpose of cross-
examining them. [Footnote omitted. ]

The report does not become personal in the con-
stitutional sense simply because it was prepared by
respondent’s agents for purposes of his trial or be-
cause it was in the physical possession of his agents
at the time of trial. The content and character of
the material involved is still the analytic touchstone.
“The distinction which has emerged * * * is that
the privilege is a bar against compelline ‘communica-
tions’ or ‘testimony,’ but that compulsion which makes
a suspect or accused the source of ‘real or physical

47

evidence’ does not violate it.” Schmerber vy. Cali fornia,
384 U.S. 757, 764.

It might be argued that the matter in question here
—portions of a written report relating to witness
interviews—is “testimonial” in character and thus
is protected under the Schmerber distinction. While
this contention might have substance as applied to a
claim of privilege by Bond, the report cannot be
considered “testimonial” in connection with respond-
ent’s claim. At the time this Court first held that
the privilege could attach to documents as well as
to oral testimony, it referred to “forcible and com-
pulsory extortion of a man’s own testimony or of
his private papers to be used as evidence to convict
him of crime * * *.” Boyd v. United States, 116
U.S. 616, 630 (emphasis supplied). See also United
States v. White, 322 U.S. 694, 698 (“The constitu-
tional privilege against self-incrimination * * * is
designed to prevent the use of legal process * * * to
force [the accused] to produce and authenticate any
personal documents or effects that might incriminate
him.”) (emphasis supplied); Bellis v. United States,
supra.

For purposes of evaluating respondent’s claim of
privilege, the investigator’s written report is not
materially different from a tape recording of the in-
terviews or from purely physical evidence that may
have been uncovered by Bond in the course of the
investigation. Not being personal to respondent or
“testimonial” from him, it is not cloaked with the
protection afforded by his privilege against self-in-
crimination.

48

B. Even If the Self-Incrimination Privilege Applied To
The Investigator’s Report, Respondent Was Not
“Compelled” To Disclose Its Contents In Any Con-
stitutionally Impermissible Sense; Rather, He
Would Have Waived Whatever Privilege He May
Otherwise Have Enjoyed By Electing To Call The
Investigator To The Stand.

Even if Bond’s reports of his interviews of Van
Gemeren and Hoffman, although in no sense personal
to respondent, were considered to fall within the scope
of his compulsory self-incrimination privilege, the
trial court’s order conditioning Bond’s testimony re-
garding those interviews on disclosure of the pertinent
portions of the reports did not impermissibly in-
fringe on the privilege. The reports were not avail-
able to the prosecution for use during its case in
chief or, indeed, at any time thereafter, save if re-
spondent himself elected to seek to prove prior in-
consistent statements of the government witnesses by
putting Bond on the stand to testify thereto.

1. The command of the Fifth Amendment is that
“Tnjo person * * * shall be compelled in any criminal
case to be a witness against himself * * *.” Although
the privilege against self-incrimination thus protects
against compelled testimony, it does not allow a de-
fendant who chooses to testify in a criminal trial to
shield his own testimony, or that of one of the wit-
nesses whom he calls to testify in his behalf, against
the “traditional truth-testing devices of the adversary
process” (Harris v. New York, 401 U.S. 222, 225-
226), including the risk of confrontation with prior
inconsistent statements. This consequence has never

49

been considered to be “extortion of information from
the accused himself that offends our sense of justice.”
Couch v. United States, supra, 409 U.S. at 328; see
also Bellis v. United States, supra, 417 U.S. at 91:
Malloy v. Hogan, 378 U.S. 1, 8; Ullman v. United
States, 350 U.S. 422, 428; Brown v. Walker, 161
U.S. 591, 600; Feldman v. United States, 322 U.S.
487, 500 (Black, J., dissenting).
Accordingly, it was proper for the trial court to
condition presentation of Bond’s testimony upon d’s-
closure of the pertinent portions of the report. The
trial court’s order may have had adverse consequences
for respondent in the presentation of his case, but the
primary consequence was nothing more than a stra-
tegic choice whether to offer the investigator’s testi-
mony at trial, on the condition that his report be
disclosed, or to forego the introduction of such testi-
mony. This consequence does not. amount to “com-
pulsion” in the sense relevant for bringing the pro-
tection of the self-incrimination provision into play.
Cf. McGautha v. California, 402 U.S. 183, 213.
While the order of the trial court posed a choice
for respondent—perhaps even a difficult choice—the
choice was his freely to make as a matter of trial
strategy; the court’s order did not create the kind
of compulsion “likely to exert such pressure upon an
individual as to disable him from making a free and
rational choice” (Garrity v. New Jersey, 385 U.S. 493,
497), and therefore does not implicate the Fifth
Amendment. As this Court stated in McGautha v.
California, 402 U.S. 183, 213, in upholding the va-

50

lidity of a unitary trial procedure in a capital case,
under which the defendant could not testify in mitiga-
tion of punishment without exposing himself to ques-
tioning on the issue of guilt or innocence:

The criminal process, like the rest of the legal
system, is replete with situations requiring “the
making of difficult judgments” as to which course
to follow. McMann v. Richardson, 397 U.S., at
769. Although a defendant may have a right,
even of constitutional dimensions, to follow which-
ever course he chooses, the Constitution does not
by that token always forbid requiring him to
choose. The threshold question is whether com-
pelling the election impairs to an appreciable ex-
tent any of the policies behind the rights in-
volved.

Equally pertinent is Williams v. Florida, 399 U.S.
78, in which the Court upheld a notice-of-alibi rule
that conditioned the accused’s right to put on an alibi
defense on pretrial disclosure of the names of alibi
witnesses. In rejecting the assertion that this rule
impermissibly burdened the exercise of the privilege
against compulsory self-incrimination, the Court stat-
ed (399 U.S. at 83-84) :

The defendant in a criminal trial is frequently
forced to testify himself and to call other wit-
nesses in an effort to reduce the risk of con-
viction. When he presents his witnesses, he must
reveal their identity and submit them to cross-
examination which in itself may prove incrimi-
nating or which may furnish the State with
leads to incriminating rebuttal evidence. That

51

the defendant faces such a dilemma demanding
a choice between complete silence and presenting
a defense has never been thought an invasion of
the privilege against compelled self-incrimina-
tion.

Cf. Wardius v. Oregon, 412 U.S. 470, 474.

In the present case, accordingly, there was no in-
fringement of the privilege when respondent volun-
tarily elected not to disclose the investigator’s report.

2. Another side of the same coin is the recognized
principle that a defendant who elects to take the stand
or raise a particular matter in his defense places
himself in a fundamentally different position from
one who does not. He subjects himself to a require-
ment of completeness. Once on the witness stand, for
example, the defendant is subject like any other wit-
ness to cross-examination designed to assure the re-
liability of his testimony. By choosing to tell his side
of the story to the jury, he waives his Fifth Amend-
ment privilege not only as to the part of the story that
he wishes the jury to hear, but as to the whole story.

“CA] defendant who takes the stand in his own
behalf cannot then claim the privilege against cross-
examination on matters reasonably related to the
subject matter of his direct examination.” McGautha
v. California, supra, 402 U.S. at 215. See also VIII
Wigmore, Evidence § 2276, p. 459 (McNaughton
rev. 1961). “His waiver is not partial; having
once cast aside the cloak of immunity, he may not
resume it at will, whenever cross-examination may be
inconvenient or embarrassing.” Raffel v. United

52

States, 271 U.S. 494, 497. And, “[i]t is not thought
overly harsh in such situations to require that the
determination whether to waive the privilege take
into account the matters which may be brought out
on cross-examination.” McGautha v. California,
supra, 402 U.S. at 215.

The underlying rationale for these principles was
set forth in Mr. Justice Frankfurter’s opinion for
the Court in Brown v. United States, 356 U.S. 148,
155-156:

* * * (When a witness voluntarily testifies, the
privilege against self-incrimination is amply re-
spected without need of accepting testimony freed
from the antiseptic test of the adversary process.
The witness himself, certainly if he is a party,
determines the area of disclosure and therefore
of inquiry. Such a witness has the choice, after
weighing the advantage of the privilege against
self-incrimination against the advantage of put-
ting forward his version of the facts and his
reliability as a witness, not to testify at all. He
cannot reasonably claim that the Fifth Amend-
ment gives him not only this choice but, if he
elects to testify, an immunity from cross-ex-
amination on the matters he has himself put in
dispute. It would make of the Fifth Amendment
not only a humane safeguard against judicially
coerced self-disclosure but a positive invitation to
mutilate the truth a party offers to tell. * * *
The interests of the other party and regard for
the function of courts of justice to ascertain
the truth become relevant, and prevail in the
balance of considerations determining the scope

53

and limits of the privilege against self-incrimina-

a? *
In sum, “[t]he safeguards against self-incrimination
are for the benefit of those who do not wish to
become witnesses in their own behalf and not for
those who do.” Raffel v. United States, supra, 271
U.S. at 499. The privilege “cannot be perverted into
a license to use perjury by way of a defense, free
from the risk of confrontation with prior inconsistent
utterances.” Harris v. New York, supra, 401 U.S.
at 226; see also Walder v. United States, 347 U.S. 62,
65.

These established principles apply with even great-
er force to a witness offered on behalf of a defend-
ant than they do to the accused himself, for an ac-
cused can have no greater right to shield a wit-
ness whom he calls from cross-examination by invok-
ing his personal privilege than he has to shield his
own testimony. Moreover, there is sound policy in
requiring a defendant who offers a witness—whether
himself or another testifying in his behalf—to do
so without reservation and in allowing the prosecu-
tion to probe all seemingly questionable aspects rele-
vant to the witness’s testimony, including through the
production of interviews or reports prepared by the
witness.

Whether the defendant takes the stand himself or
has another give testimony on his behalf, he bene-
fits from the opportunity to tell the jury his side of
the story. The fair balance of advantages requires

54

that the jury have an opportunity to hear the entire
story—including the cross-examination of the witness
based on any of his prior interviews or reports. As
the dissenting judge stated in this case (Pet. App.
22a):

* * * In these circumstances, the price a de-
fendant must pay for having a witness take the
witness stand, and testify contrary to declara-
tions of another witness, is to throw open the
entire subject to normal cross-examination and
to make his testimony vulnerable where, other-
wis2, it might have been shielded. Surely, the
appellant cannot claim for this witness a right
which was not available to himself if he had
taken the witness stand under the same cir-
cumstances.

Finallv, the Fifth Amendment privilege is avail-
able only with respect to material that may tend to
incriminate. In the context of the narrow disclosure
that would have been required in the instant case,
the possibility of incrimination—insofar as we can
imagine without having seen the report—could arise
only to the extent that Bond’s report would be in-
consistent with his testimony. Since the privilege
is applicable, if at all, only to the extent that the
written report of the interviews conflicts with the
oral testimony, the need for adherence to the prin-
ciple of waiver and the requirement of completeness,
discussed above, are brought into clear focus.

55

C. The Analysis Of The Court Of Appeals And The
Cases Upon Which It Relied Do Not Support Its

Conclusion.

The court of appeals began its discussion of the
privilege against self-incrimination by noting that in
1966 Justices Black and Douglas had dissented from
the promulgation by the Court of amendments to
Rule 16 of the Federal Rules of Criminal Procedure
because of concern about their possible conflict with
the Fifth Amendment privilege (Pet. App. 9a). It
then proceeded to a discussion of the opinions of the
California Supreme Court in Prudhomme v. Superior
Court, 2 Cal. 3d 320, 466 P.2d 673, 85 Cal. Rptr. 129,
and of Judge Pollack in United States v. Fratello, 44
F.R.D. 444 (S.D.N.Y.). While acknowledging that
both cases dealt with pretrial discovery and concerned
“conditioning defense discovery upon the possibility
of enhancing the government’s case in chief” (Pet.
App. 12a), and that the decisions antedated this
Court’s opinion in Williams v. Florida, 399 U.S. 78,
the court of appeals “nevertheless, conclude[d] that
the fifth amendment remains relevant in the instant
circumstances” (Pet. App. 12a).

On this premise, it then considered the opinion of
the District of Columbia Circuit in United States v.
Wright, supra, referred approvingly to that court’s
concept that “criminal discovery must inevitably re-
main basically a one-way street” (Pet. App. 18a),
and concluded by announcing its agreement with the
following language from the Wright opinion (Pet.
App. 14a):

56

The defendant has a right under the Fifth
Amendment to compel the state to investigate its
own case, find its own evidence, 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 against the accused. [United States
v. Wright, supra, 489 F.2d at 1195.]

None of these authorities fairly supports the re-
sult in the instant case.

1. Rule 16 involves provisions for pretrial dis-
covery of certain materials that the defense intends
to rely upon at trial. The concerns voiced by Justices
Black and Douglas in the statements quoted by the
court of appeals have largely been dissipated by the
decision in Williams v. Florida, supra, upholding the
“notice of alibi” requirement. See also Wardius v.
Oregon, supra.

Moreover, it does make a material difference that
the concern upon which those Justices focused and
that prompted the decisions in Prudhomme and Fra-
tello was pretrial discovery and not in-trial disclo-
sure. The prosecution’s pretrial discovery requests
were deemed improper in Prudhomme because dis-
closure at that time “might lighten the prosecution’s
burden of proving its case in chief” (2 Cal. 3d at
326, 466 P. 2d at 677, 85 Cal. Rptr. at 133), and
“might serve as a link in a chain of evidence tend-
ing to establish [the defendant’s] guilt of a crimi-

57

nal offense” (2 Cal. 3d at 327, 466 P. 2d at 677-678,
85 Cal. Rptr. at 133-134), and in Fratello because
“the documents sought from the defendants are re-
quired by the government as a part of its prima facie
case” (44 F.R.D. at 449). Both cases took pains to
distinguish the situation in which the defendant
elected to take the stand at trial and open up a sub-
ject, recognizing the need for full inquiry and thor-
ough cross-examination in such circumstances (2 Cal.
3d at 325, 466 P. 2d at 676, 85 Cal. Rptr. at 132;
44 F.R.D. at 448).

The inapplicability of Prudhomme and Fratello to
the problem presented in this case is apparent. We
are not here concerned with pretrial discovery of evi-
dence the defense intends to offer at trial, nor are
we concerned with disclosure of evidence by the de-
fense before the government has made out a prima
facie case. The issue is the right of the government
to inspect relevant portions of a defense investiga-
tor’s report after the government has put in its en-
tire case in chief and has withstood a motion for
judgment of acquittal and after the accused has
voluntarily elected to offer the investigator as a wit-
ness in his defense. At that point, disclosure of the
report can hardly be said “to lighten the prosecu-
tion’s burden of proving its case in chief” or to
serve as a “link in a chain of evidence tending to
establish * * * guilt.”

Rather, as when the defendant himself chooses to
testify (a situation recognized by the courts in Prud-
homme and Fratello as entirely different from dis-

58

closure before trial), the decision to offer a witness
in one’s behalf subjects that witness to cross-exami-
nation about relevant matters. It would be unfair to
allow him to testify without being cross-examined,
and it cannot be argued on the basis of Prudhomme
and Fratello that disclosure of his report at that
point is an improper impingement on his Fifth
Amendment privilege.

2. Unlike Prudhomme and Fratello, the decision
of the District of Columbia Circuit in United States
v. Wright, supra, did deal with a factual situation
like that presented by this case. However, Wright’s
discussion of Fifth Amendment principles does not
appear to have been the basis for decision in that
case: its conclusion seems instead to turn on the
overbreadth of the trial court’s order and the fact
that the investigator there did not use his report to
refresh his recollection while on the stand. To the
extent that the Fifth Amendment was found to be
implicated in Wright, the analysis of the court there
was as unpersuasive, we submit, as was the analysis
here.

Of the various values fostered by the privilege
against self-incrimination, the courts both below and
in Wright appear to have focused upon that described
in Murphy v. Waterfront Commission, 378 U.S. 52,
55, as “our preference for an accusatorial rather
than an inquisitorial system of criminal justice” and
the concomitant requirement that “the government in
its contest with the individual * * * shoulder the
entire load,” or, as the court put it in Wright, the

59

precept that the state must “investigate its own case,
find its own evidence, and prove its own facts” (489
F. 2d at 1195).

Because of the timing of the court’s disclosure
order and its limited nature, however, we submit
that there is no validity to these concerns in the
context of this case. The trial court made clear that
before the defense investigator’s report would have
to be disclosed, the government first must have put
in its entire case in chief and withstood a motion
for judgment of acquittal; the defense must have
chosen to put on a defense and have opted for the
tactic of offering the investigator to testify about
the prior statements made to him by government
witnesses; and the defense must have completed its
direct examination of the investigator. The court
stated (App. 25): “So the Court is not going to order
the disclosure of any investigative reports until the
investigator has taken the stand, testified in full and
related, if he does, the allegedly impeaching state-
ment.”

Disclosure of the relevant portions of the investi-
gator’s report at that point would in no way alter
the character of our accusatorial system or lift the
burden of proof from the government’s shoulders,
for the government necessarily would have completed
its investigation and proved its own facts in its case
in chief. Moreover, since the trial court was prepared
to examine the report in camera and excise irrele-
vant portions before disclosing it to the prosecutor,
the government would receive no windfall of addi-

60

tional evidence that would assist it in refuting other
aspects of the defense case, as occurred in Wright.

In sum, the order of the trial court, limited in
scope and requiring production only after the direct
examination of Bond, would merely have permitted
the prosecution more effectively to use the “tradi-
tional truth-testing devices of the adversary process”
in its cross-examination of Bond. Harris v. New
York, supra, 401 U.S. at 225. The accusatorial sys-
tem of justice is not compromised merely because re-
spondent’s decision to offer the investigator as a wit-
ness in his behalf requires the disclosure of the in-
vestigator’s report, which in turn “may open the
door to otherwise inadmissible evidence which is
damaging to his case.” McGautha v. California,
supra, 402 U.S. at 213.

III. PORTIONS OF WRITTEN INVESTIGATIVE RE-
PORTS REFLECTING STATEMENTS OF GOVERN:
MENT WITNESSES INTERVIEWED BY A DE-
FENSE INVESTIGATOR ARE NOT PROTECTED
BY RULE 16 OR THE JENCKS ACT FROM DISs-
CLOSURE DURING TRIAL FOR IMPEACHMENT
PURPOSES.

The court of appeals also examined the district
court’s production order from the perspective of Rule
16 of the Federal Rules of Criminal Procedure and
the Jencks Act (18 U.S.C. 3500), and, after quoting
both extensively, concluded its analysis as follows
(Pet. App. 17a; emphasis in original) :

61

Thus, while Rule 16 is framed in terms of pre-
trial discovery, its inclusion of the Jencks Act
leads us to conclude that Rule 16 has relevance
to discovery during trial. And specifically, de-
fense may discover, for purposes of impeach-
ment, statements of government witnesses who
have testified. But no such exception is included
within the terms of subsection (c) [of Rule 16,
which governs discovery by the government}.
We would conclude that the work product of
defense is inviolable under these circumstances.
[Footnote omitted. ]
This passage, we submit, reflects an erroneous un-
derstanding of Rule 16 and the Jencks Act.
Subsection (c) of Rule 16, on which the court re-
lied, permits the trial court to condition a defend-
ant’s discovery against the government by requiring
the defendant to allow the prosecution to inspect and
copy books, papers, documents and other tangible ob-
jects in the defendant’s possession or control “which
the defendant intends to proauce at the trial * * *.”
Under this reciprocal discovery provision, the govern-
ment is generally given access to the same kind of
material that the defendant can discover from the
government. However, since the Jencks Act, 18 U.S.C.
3500, prevents a defendant from discovering state-
ments of government witnesses prior to trial, Rule
16(c) likewise limits the scope of the government’s
pretrial discovery by exempting from pretrial disclo-
sure statements of government or defense witnesses
to the defendant, his attorney or agents.

** Rule 16(c) also has a separate “work product” exception.
The Rule does not authorize “the discovery or inspection of

62

It is difficult to see how any of this bears on the
issue in this case. We do not rely upon the affirma-
tive authorization in Rule 16(c) as a basis for the
trial court’s production order, for the quite apparent
reasons that the question here is not one of reciprocal
discovery, the portions of the report do not comprise
material the defendant “intends to produce at the
trial,” and the case is not in any event concerned with
pretrial discovery procedures. It therefore matters
not that, had respondent sought pretrial discovery
from the government and had he intended to produce
the report at trial, nevertheless the government could
not have discovered it through a Rule 16(c) recipro-
cal discovery order because of the exception for this
type of material.

While the court below did say that “Rule 16 has
relevance to discovery during trial” (Pet. App. 17a;
emphasis in original) (a statement with which we
disagree), it could hardly have meant that the Rule
governs in-trial production of material by the defense.
The affirmative portion of Rule 16(c) pertains only
to material the defendant “intends to produce at the
trial”; there is nothing in the language or history of
Rule 16 in general or Rule 16(c) in particular to
indicate that it relates in any way to trial practice.
Indeed, it would be rather strange to have a rule that

reports, memoranda, or other internal defense documents
made by the defendant, or his attorneys or agents in connec-
tion with the investigation or defense of the case * * *.” Simi-
larly, under Rule 16(b), the defense may not discover the
“work product” of the government.

63

required a defendant to produce at trial only what
he intends to produce.*

The point is that once the trial has commenced
the function of Rule 16 is ended. See Advisory Com-
mittee Note to Rule 16, Fed. R. Crim. P., 18 U.S.C.
App., pp. 4493-4494.* While the Rule itself does

** We do not read the opinion of the court of appeals as
attributing any separate significance to the Jencks Act (18
U.S.C. 3500) other than the fact that Rule 16(b) refers to
it. By its terms, that Act is limited to disclosure to the de-
fense, “{a]fter a witness called by the United States has
testified on direct examination,” of “statement[s] or report [s]
in the possession of the United States which [were] made
by a Government witness or prospective Government witness
(other than the defendant) * * *.” 18 U.S.C. 3500(a), (b). Re
spondent can derive no solace from the fact that the Act
makes not the slightest reference to disclosure to the prose-
cutor of statements or reports in the possession of the de-
fense. Such omission is hardly surprising, since the purpose
of the Jencks Act was to limit the right of the defense to the
production of statements of government witnesses—produc-
tion that courts previously could and did order in the exercise
of their inherent discretion. S. Rep. No. 981, 85th Cong., 1st
Sess., pp. 2-4. See also Palermo v. United States, 360 U.S. 343,
361 (Brennan, J., concurring).

** The commentators are in agreement that Rule 16 is
directed only at the pretrial situation. See, e.g., Rezneck, The
New Federal Rules of Criminal Procedure, 54 Geo. L.J. 1276,
1279, 1282 n. 19 (1966); Nakell, Criminal Discovery for the
Defense and the Prosecution—The Developing Constitutional
Considerations, 50 N.C. L. Rev. 437, 494-514 (1972); Note,
Prosecutorial Discovery under Proposed Rule 16, 85 Harv. L.
Rev. 994 (1972). As Mr. Justice Fortas stated in his concur-
ring opinion in Giles v. Maryland, 386 U.S. 66, 101:

On its face, the Rule is directed to the relatively limited
problem of pretrial discovery and inspection in the fed-
eral courts. [Emphasis in original.]

64

not expressly use the term “pre-trial discovery,” sub-
section (f) provides that a “motion under this rule
may be made only within 10 days after arraignment
or at such reasonable later time as the court may
permit” and that the “motion shall include all relief
sought under this rule.” Moreover, the 1966 Ad-
visory Committee Note observes that the “extent to
which pretrial discovery should be permitted in crimi-
nal cases is a complex and controversial issue,” and
states that the “rule has been revised to expand the
scope of pretrial discovery.” 18 U.S.C. App., pp. 4493-
4494 (emphasis supplied) .”

Subsections (b) and (c) neither authorize nor pre-
clude the in-trial production or use of witnesses’
statements for impeachment purposes.” Subsection
(b) merely emphasizes that the Rule does not pro-
vide for discovery of statements of government wit-
nesses and that the federal criminal process only re-
quires such production “as provided in 18 U.S.C.
§ 3500,” the Jencks Act. Of course, there was no rea-
son for inserting a comparable provision in subsection
(c), the reciprocal discovery provision, since no con-
gressional enactment comparable to the Jencks Act

“? The proposed amendments to Rule 16 now pending in
Congress reflect a continuing intention tnat Rule 16 govern
only pretrial discovery. See Advisory Committee Note to Pro-
posed Rule 16, Fed. R. Crim. P., 62 F.R.D. 309, 313, 314.

8 The proposed amendments to Rule 16 would provide for
reciprocal discovery before trial of names and addresses of
witnesses but would not authorize pre-trial disclosure of

(2), (b) (1) (C), and (b) (2), Fed. R. Crim. P., 62 F.R.D.
305-306.

eases, ghotomerdy ta. Lragworerd Brute ilejo ce) Ca)

65

limits the scope of production of defense witness
statements.”

Rule 16 thus has no bearing on the question of
in-trial production of the defense investigator’s re-
port at issue here. That is a separate evidentiary
question, governed not by rule, but traditionally by

*® Even if Rule 16(c)’s exemption clause expresses some
general federal policy against requiring the production of
a defendant’s “work product” material at trial as well as be-
fore, the portions of the report ordered to be produced here
do not fit within that category. The basic purpose of the work
product rule is to protect the privacy of the attorney during
his preparation for trial; the rule is thus intended only to
protect “trial preparation materials” from inquiries that
might disclose the mental processes of counsel, including trial
strateyv, legal opinions or conclusions, and the like. See
McCormick, Evidence, § 96, p. 207.

But statements of witnesses—the essence of what was
ordered produced here—do not reflect such mental processes.
These were exempted from pretrial discovery by the govern-
ment in Rule 16(c) not because of any “work product” rule
but in order to put the defense on an even footing with the
prosecution which, under the Jencks Act, would not have to
turn over its witnesses’ statements until trial. Once the trial
has begun, however, the policy underlying the exemption no
longer applies. If anything, the even-footing rationale sup-
ports our position, since it is clear that, had the report in
question here been made by a government agent, it would
have had to be supplied to the defense.

In discussing the work product exemption in Rule 16, the
court of appeals relied on the intermediate New Jersey appel-
late court decision in State v. Montague, 101 N.J. Super. 483,
244 A. 2d 699, which characterized interview notes as work
product of the defense attorney (Pet. App. 16a, n. 5). How-
ever, this analysis has been rejected by the State’s highest
court in Montague, which modified the decision relied upon by
the court of appeals. See pp. 31-32 and n. 14, supra.

66

the discretion of the trial judge to regulate and con-
trol the scope of cross-examination at trial.”

Thus, since there is no federal statute or rule
concerning in-trial production by the defense of the
kind of material at issue here, the “[f]inal decision
as to production must rest, as it does so very often in
procedural and evidentiary matters, within the good
sense and experience of the district judge * * *.”
Palermo v. United States, supra, 360 U.S. at 353.”
For, “fi]n the absence of specific legislation, ques-
tions of this nature are governed ‘by the principles
of the common law as they may be interpreted by
the courts of the United States in the light of reason
and experience.’ ”” Gordon v. United States, 344 U.S.
414, 418 (citing Funk v. United States, 290 U.S.
371, and Rule 26, Fed. R. Crim. P.); see also Fed.
R. Evid. 501.”

3° While the correct characterization of disclosure as dis-
covery or evidentiary in nature is not always clear, the pro-
duction of statements and reports during trial is governed
by the rules of evidence. For example, in a case involving the
non-production of possible Jencks Act material, Mr. Justice
Douglas noted in an opinion for a unanimous Court:

[O]ur Jencks decision and the Jencks Act were not cast
in constitutional terms. * * * They state rules of evidence
governing trials before federal tribunals * * *. [United
States v. Augenblick, 393 U.S. 348, 356.]

31"{he inherent power of the courts to fashion rules of
evidence was well illustrated in the Jencks case itself, for the
rule announced there was not based on any statute or codified
rule. See Jencks v. United States, supra, 353 U.S. at 668;
Palermo v. United States, supra, 360 U.S. at 345-346.

32 Rule 17(c) of the Federal Rules of Criminal Procedure,
which authorizes the issuance of a subpoena duces tecum, is

67

As the dissenting judge correctly noted in this case
(Pet. App. 24a):

As repeatedly stated by the trial judge, we
are not here concerned with the Jencks Act, 18
U.S.C. § 3500, or with Rule 16, F.R.Crim.P.
Our problem centers on a simple common law
evidentiary question of whether a witness, who
was called for impeachment purposes, must pro-
duce the notes he admittedly made on the sub-
ject of impeachment.

available to the government “subject, of course, to such limi-
tations as are imposed by the Fourth and Fifth Amendments.”
1 Wright, Federal Practice and Procedure, § 274, p. 549
(1969). Of course, if there is no such prohibition on produc-
tion of the report here, the government could subpoena the de-
fense investigator to testify and produce those portions of the
report during the government’s rebuttal. To that extent, the
court’s production order involved merely a matter of timing,
since the court reasonably concluded that it would be more ap-
propriate for the material to be produced and used as a basis
for cross-examination.

68
CONCLUSION

For the foregoing reasons, it is respectfully sub-
mitted that the decision of the court of appeals should
he reversed.

ROBERT H. BORK,
Solicitor General.

JOHN C. KEENEY,
Acting Assistant Attorney General.

ANDREW L. FREY,
Deputy Solicitor General.

PAUL L. FRIEDMAN ,
Assistant to the Solicitor General.

SIDNEY M. GLAZER,
IVAN MICHAEL SCHAEFFER,

Attorneys.
MARCH 1975.

w os. GOVERNMENT PRINTING OFFicE; 1975 870712 122

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0194%3A4. Public record. Not legal advice.