# Amicus Brief — United States v. Nobles

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## Record

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

## Text

| Senrems Sevrt. ". &

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APR 11 1975
No. 74-634

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—. — __ __._ ae |

IN THE SUPREME COURT OF THE UNITED STATES
October Term 1974

UNITED STATES OF AMERICA, PETITIONER
Ve

ROBERT LEE NOBLES, RESPONDENT

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

BRIEF FOR THE CALIFORNIA PUBLIC DEFENDERS
ASSOCIATION, THE NATIONAL LEGAL AID AND
DEFENDERS ASSOCIATION, AND THE AMERICAN
CIVIL, LIBERTIES UNION OF SOUTHERN CALIFORNIA
AS AMICI CURIAE IN SUPPORT OF THE RESPONDENT

John J. Cleary

Warren R. Williamson

Federal Defenders of San Diego, Inc.
925 First Avenue, Suite 260

San Diego, California 92101
Attorneys for Amici Curiae

(714) 234-8467

Of Counsel,

Mr. Sheldon Portman, Chairman
California Public Defenders Association
Santa Clara County Public Defender

Mr. James Doherty
Chairman, Amicus Committee
National Legal Aid and
Defender Association

Mr. Fred Okrand

Legal Director

American Civil Liberties Union
of Southern California

IN THE SUPREME COURT OF THE UNITED STATES
October Term 1974

UNITED STATES OF AMERICA, PETITIONER
Vv.

ROBERT LEE NOBLES, RESPONDENT

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

BRIEF OF THE CALIFORNIA PUBLIC DEFENDERS

ASSOCIATION, THE NATIONAL LEGAL AID AND

DEFENDERS ASSOCIATION, AND THE AMERICAN

CIVIL LIBERTIES UNION FOR SOUTHERN

CALIFORNIA AS AMICI CURIAE IN SUPPORT OF
THE RESPONDENT

INDEX

Statement of Interest of Amici Curiae.... 1

Summary of Argument...........+. cocoe &

Argument:

I,

Il.

iil.

The report of the defense
investigator was protected from
disclosure to the government by
the Fifth Amendment privilege
against self-incrimination..... 4

A. The privilege against
compulsory self-incrimina-
tion extends to the report
of the defense investigator
such that the respondent
properly invoked its
protection to prevent dis-
closure of that report..... 4

The trial court's order

deprived respondent of his

right to the effective assistance
of counsel and his right to
present witnesses under the

Sixth Amendment.........+e+++ 17

The order of the court in this
case violated the principle of
reciprocity outlined in Wardius

Vv. Oregon..... weTTTrrTT TTTTS

en . 31

CITATIONS

Cases - Continued Page
Cases: Page

Menendez v. United States, 393 F.2d
Black v. United States, 385 U.S. fo i secoce
ere Miranda v. Arizona, 384 U.S. 436.
Boyd v. United States, 116 U.S. Tt! psececcecece eeeeveeeer eoseeveeeee 5,9
616 (1886) eeeeeveer er eer eee eer eee eee e eee 9, ll Murphy Ve Waterfront Commission,
Branzburg v. Hayes, 408 U.S. 665 378 U.S. 52 (1964). ccc ce cceccceesseseee 12
i Pr Nardone v. United States, 308 U.S.
Brown Vv. United States, 356 U. Ss. 338 (1939). eeeereeeeee . eeeeereee 5
Tt: , Pyro * eee 14 O'Brien v. United States, 386 U.S.
Coplon Vv. United States, 191 F, 2d 345 (1966). ee ee ee eer 21
. ee: 3 eee 17 | Palermo v. United States, 360 U. ‘s.
Couch v. United States, 409 U.S. S43 (1054). cccccces eees ecocee Oe
SEB (OTE) wccccocccccccecsscecossosess «© EE People v. Bennett, 29 N.Y. 2d 462
Counselman v. Hitchcock, 142 U.S. (1972).. eee #0 ee ee eee esreesees eeeeree 18
Bae Gee 00006686600866n6800 eee 9, ll . . Powell v. Alabama, 287 U.S. 45 _
Entick v. Carrington, 19 How. St. (1932). wscccccrccesccscccccsesecs oce §=(17
Be. BBD Gs oc 00cssccssndenessee Prudhomme v. Superior Court, 2 Cal.
Gilday v. Commonwealth, 274 N.E. : : 3d 1320, 85 Cal. Rptr. 129, 466 Pp, 2d
2d 589 (Mass. Sup. Jud, Ct. a) | ee 22 B73 (1970) cc eeccccrecvecccsccsessesens 8
Goldstein v. Great Atlantic and Raffle v. United States, 271 U.S.
Pacific Tea Co., Fla., 118 So. 253 EEE ES SEIS EPPO OPPO PET TT 14
BOE. 00 ccccnccessceeeesedesens Baeeee EE Reilly v. Berry, 250 N.Y. 456
Griffin v. California, 380 U.S. 609 ae EES See eee
(epee coc ce ceceeeesseenens ésennnanaease 12 ‘ Rodriguez v. Superior Court, | Cal.
Harris v. New York, 401 U.S. 222 App. 3d 493, 88 Cal. Rptr. 154 (1970)..... 22
PRR aenenhe canna wr 8, 14 Roe dem. Haldane v. Harvey, 4 Burr.
Henfield v. United States, 118 F.2d 2489, 38 Eng. Rep. 302 (1769).........+. 7
375 (D.C. Cir. 1941) ....... acoee’ Gan Schmerber v. California, 384 U.S.
Hoffa v. United States, 385 U.S. "293 757 (1966) . , Seeescese cocececen 6 BR
(1966).... QED Se Preys 21 Shephard ve Hunter, 163 F.2d 872

(10th Cir. Se . . eeree 18

In re Oliver, 333 U.S. 257 (1948)....... 13
Sherbert v. Verner, 374 U.S. ‘398

Jencks v. United States, 353 U.S.

GBe Gee epeccccece a ieee 23 Dito see a eeecenceneee ce *_ @e#e88 12
McGautha v. California, "402 U. gs. 183 Simmons v. United States, 290 U.S.

. Fae eeerreseeeeseeeeeeseeseeeeeer 9, 18 377 (1968). ee ee oe SOC SS SS eOe Ce 14
McMann v. Richardson, 397 U.S. 759 Specht v. —— 386 U.S. 605

GBUED « o0060c0ccensneeuneunnaeee (1967) wees esereeress seseeese 13, 17
Malloy v. Hogan, 378 U.S. 10964)...... 12 Spevack v. Klein, 385 U.S. 511

(1967) .......-. eccccecceces eoceccecees -» &B

ii. . .

Cases - Continued
State v. Benner, 284 A. 2d 91

(Maine Sup. Jud. Ct. 1971) ............ .

United States v. Augenblick, 393 U. Ss.

BAS (10GB) 2. cccccccccccccccccccccccecs

United States v. Cohen, 388 F. 2d

464 (9th Cir. 1967).......... see
United States v. Fratello, 44 F. R. Cc.

Ge GE G6 6060s enseeeesoeseeonecoon
United States v. Hoffa, 349 F.2d 20
oS ee .
United States v. Kovel, 296 F. 2d 918.
DCG UE 600 sceecuscunasedas oeee
United States v. Missler, 414 RP. od

Eee Gee Gas Beng coceceeoeeseseece
United States v. Nixon, 418 U.S. 683
Dt 66046046800 tebenennanade . .
United States v. Nobles, 501 F. 2d 146
(9th Cir. 1971) ... eeeeeeveeveee *“ee@eeevee
United States v. Smaldone, 484 F.2d 311
ee Car. BPUGP cocecceces secees
United States v. White, 322 U. Ss.

694 (1944) eeereeev er eoee eee ee eenereaeeeneee
United States v. Wright, 489 F., 2d

a eG Gee Beeiesocséescoceanasene
Warden v. Hayden, 387 U.S. 294 (1967).
Wardius v. — 412 U.S.

Gee Gees 600666000000 e0s 006eseseeske

Washington v. Texas, 388 U.S. 14
(1967) .. eevee eevee er eee eee eeeeneeeeee

Williams v. Florida, 399 U.S.
78 (1969) *eeeeeeoeeeeeeeeeeeeneeeneeeee

iv.

Page

Constitution, Statutes and rules:

United States Constitution:

Fifth Amendment........

Sixth Amendment........

18 U.S.C. 3500 (The Jencks Act).

18 U.S.C. 3500 (e) .....eeeeees .
18 U.S.C. 3500 (e)(1) .... 22 - eens

3,16, 20,
23, 26, 28,
30
23
24

Federal Rules of Criminal Procedure:

Rule 16 eeereeeveeeeeeeeee
ae BP cececee *e eevee *eeneee

Federal Rules of Evidence:

Ruse GEE ccccceccocecees
Ramee GES coccccoceccceoce
Rule 613 ...ccccccsesses
Ruse GBA) ccccccccccce

Miscellaneous:

A.B.A. Project on Standards for
Criminal Justice, Standards

Relating to the Defense Function,
$4.1 (Approved Draft 1971)......

A.B.A. Standards of Discovery
and Procedure Before Trial
Supplement, 5-6 — Draft,
October 1970) ......... TTTTTTT

10
26, 27, 28
26
26

22

Miscellaneous - Continued

Brennan, The Criminal
Prosecution: Sporting Event

or Quest for Truth? 1963

Wash. U.L.Q. 279, 280 (1963)....

Freeman, The Public Defender
System, J. Amer. Jud. Soc.
ft Frearrrrrrrrrrrerrerserry +

Goldstein, The State and the
Accused: Balance of Advantage
in Criminal Procedure, 69 Yale
LoS. GD CRGSD cocccccccecceces

Louisell, Criminal Discovery and
Self-Incrimination: Roger
Traynor Confronts the Dilemma,
53 Calif. L. Rev. 89 (1965) .....

Moore, Criminal Discovery, 19
Hastings L.J. 865 (1968) .......

Note, Agents Reports and the
Attorney-Client Privilege, 21
U. Chi. L. Rev. 752 (1954) ....

Note, Prosecutorial Discovery
Under Proposed Rule 16, 85
Harv. L. Rev. 994 (1972).....

Note, Right to Aid in Addition to
Counsel for Indigent Defendants,
47 Minn, L. Rev. 1054 (1963)...

Note, The Indigent's Right to
Adequate Defense: Expert and
Investigatorial Resources in
Criminal Proceedings, 55 Corn.
L. Rev. 632 (1970) .......eee0%

vi.

Page

30

19

12, 13

10

13, 19

18

18

Miscellaneous - Continued

Sevilla, The Exclusionary
Rule and Police Perjury,
11S.D.L.Rev. 839 (1974) .......

The Preclusion Sanction

- A Violation of the
Constitutional Right to

Present a Defense, 81

Yale L.J. 1342 (1972) ........ ee

Wilkerson, Public Defenders
As Their Clients See Them,
1Am., J. of Crim, L. 141
(April 1972) ..-ceeeseececeecs °

1974 U.S. Code Cong. and

Ad. News, Vol. 12A (15
January 1975) ......eeeeeeeers

vii.

Page

20

13

21

ll

STATEMENT OF INTEREST OF AMICI CURIAE

The California Public Defenders Association
is a non-profit corporation incorporated under the
laws of the State of California in 1969. The purpose
of the association is to assist public defender offices
in California, whether state or federalJ, in their
ongoing efforts to provide effective representation
for indigent criminal defendants. In this regard,
the association is vitally concerned with any action
which might have a substantial impact upon the rights
of their clients and upon their ability as defense
attorneys to protect these rights.

The American Civil Liberties Union of
Southern California is a non-profit organization
dedicated to the preservation of the personal
guarantees of the Bill of Rights o: the United States
Constitution. The ACLU is, therefore, concerned
with any decision of this Court which may effect the
constitutional rights of any citizen or group of
citizens.

The National Legal Aid and Defenders
Association has a nationwide membership including
legal aid and public defender offices as well as
individual attorneys who are concerned with providing
access to effective legal services to the poor.
Because of their focus on the representation of
indigents, and their position as a national
association, NLADA is actively involved in providing
input into action, legislative or judicial, which may
be of consequence to the clients they represent.

Amici are extremely concerned over the out-
come of the case at bar because of their common
desire to see the important constitutional rights
of citizens protected. The organizations involved in
this brief feel that the decision of the United States
Court of Appeals for the Ninth Circuit in United States

v. Nobles, 501 F.2d 146 (9th Cir. 1974) was proper.
Were the order of the trial court upheld, it would

1.

have disastrous and destructive impact on the Fifth
and Sixth Amendment rights of the criminally
accused, on the ability of defense attorneys to
effectively represent their interests, and provide
an unfair and unconstitutional advantage to the
prosecution in federal criminal trials.

Amici fully agree with the position of the
respondent that the order of the trial court at issue
here was improper and that the decision of the
Court of Appeals was correct. This brief is
submitted in support of that judgment.

SUMMARY OF ARGUMENT

The order of the trial court which was held
to be reversible error by the Court of Appeals
violated respondent's Fifth Amendment privilege
against self-incrimination. Respondent's privilege,
which extended to the defense investigator because of
his close relationship to respondent's cause,
protected the investigator's notes from disclosure
to the prosecution. Although the notes were not
the vords of respondent as such, they were
testimonial in nature, and, therefore, were covered
by the Fifth Amendment. The trial court's order that
the investigator either agree to surrender his notes
(which related to an interview of prosecution witnesses)
or forego the opportunity to testify, forced respondent
to choose between giving up his Fifth Amendment right
not to incriminate himself and his Sixth Amendment
right to present witnesses in his behalf. This choice
is constitutionally impermissible and amounts to a
form of ''compulsion.'' Because he himself did not
testify, respondent did not waive any objection he
might have had to this procedure by calling the
investigator as a witness.

By precluding the use of the investigator's
testimony regarding his interview with the
prosecution witnesses, the court violated respondent's
Sixth Amendment right to present witnesses and to

2.

challenge the government's case. The inability to
present this evidence also denied respondent his

right to the effective assistance of counsel. If the
trial court's order is permitted to stand, the Court's
decision in that regar’d could have a detrimental
impact on the ability of attorneys, particularly
appointed counsel, to provide effective representation
for those accused of criminal conduct.

Finally, the order of the trial court
violated the principles outlined in Wardius Vv.
Oregon, 412 U.S. 470 (1973), because it gave the
prosecution access to discovery from respondent
which respondent had no reciprocal right to demand
from the prosecution. The investigator's report
did not constitute his ''statement'’ within the mean-
ing of the Jencks Act, 18 U.S.C. 3500, and therefore
a similar report in the hands of a government
witness would not have been discoverable by
respondent under the provisions of that Act.

I

THE REPORT OF THE DEFENSE INVESTIGATOR
WAS PROTECTED FROM DISCLOSURE TO THE
GOVERNMENT BY THE FIFTH AMENDMENT
PRIVILEGE AGAINST SELF-INCRIMINATION,

A. The Privilege Against Compulsory Self-
Incrimination Extends to the Report of

the Defense Investigator such that the

Respondent Properly Invoked its
Protection to Prevent Disclosure of that

Report.

The petitioner argues that the order of the
trial court requiring that, as a condition precedent
to testifying, the defense investigator from the
Federal Public Defender's office agree to surrender
to the prosecution his notes of the interview with the
eyewitness did not violate respondent's Fifth
Amendment right not to incriminate himself. This
contention is based on two premises. First, the
respondent's Fifth Amendment privilege does not
extend to the notes of the investigator, and second
that, even if the notes were covered by the privilege,
respondent was not compelled to disclose them, and
would have waived any objection to their introduction
by putting the investigator on the stand. (Brief for
Petitioner at 44-45, 52-54)

Dealing with these arguments in order, we
confront at the outset what is perhaps the most
significant issue in this case: Cana member of the
defense team as closely allied to the defendant's
cause as the defense investigator be compelled to
disclose evidence which may tend to incriminate the
accused?

In attempting to answer this question, this

——— ee =

court finds itself again facing the problem of
resolving the conflict between the ''search for truth’
in criminal trials and the need to guarantee that a
defendant in a criminal trial not be compelled to
assist the State in proving his guilt. Wardius v.
Oregon, 412 U.S. 470 (1973); Williams v. Florida,
399 U.S. 78 (1969). Ina recent opinion dealing with
this troubling point, the Court noted:

The public. . .has a right to every
man's evidence except for those persons
protected by a constitutional, common
law, or statutory privilege. ''

United States v. Nixon, 418 U.S. 683, 709 (1974)
(citing Branzburg v. Hayes, 408 U.S. 665, 688
(1972)).

In light of this standard, the critical question
is one of whether the ‘constitutional privilege’
afforded respondent by the Fifth Amendment protected
from disclosure to the government the notes of the
investigator, despite their potential relevance in
the search for truth at the trial. There is no question
that the fact that evidence may be relevant is not
alone enough to require disclosure of that evidence
when disclosure would violate an over-riding public
policy to protect an individual's constitutional rights.
Nardone v. United States, 308 U.S. 338, 340 (1939).
Cf. Couch v. United States, 409 U.S. 322 (1972);
Miranda v. Arizona, 384 U.S. 436 (1966); United
States v. Wright, 489 F.2d 118 (D.C. Cir. 1973);
United States v. Cohen, 388 F.2d 464 (9th Cir.

1967). The principle has been expressed often and in
the context of the issue now before the court, no better
than this:

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

5.

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 progecution as evidence against
the accused, "

United States v. we ht, supra at 1195. See Couch
v. United States, U.S. (1972); Williams v.
Florida, supra at 112 (Black and Douglas, J.J.,
dissenting); United States v. White, 322 U.S. 694,
698 (1944); United States v. Nobles, 501 F.2d 146,
155 (9th Cir. I974),

The rationale for this position is a familiar
one and is the same as that which was the basis for
the inclusion of the Fifth Amendment by the Framers
in the Bill of Rights.

"Historically, the privilege sprang
from an abhorrence of governmental
assault against a single individual
accused of crime and the temptation
on the part of the State to resort to
the expedient of compelling incrimi-
nating evidence from one's own mouth.
United States v. White, foal The
Court has thought the privilege
necessary to prevent any ‘recurrence
of the Inquisition and the Star Chamber,
even if not in their stark brutality, '"'

Couch v. United States, supra at 327.

This concept of not forcing from the accused
evidence which may damage his cause is rooted deep

. .
TT i

in our common law tradition.! Commentators have
expressed real concern that the trend in recent
years of allowing the State greater access to the
defendant's case may lead to the excesses which
the Fifth Amendment was designed to prevent. 2

Petitioner argues that the respondent was
not being required to help the prosecution" convict
him because they were not seeking to introduce the
investigator's reports in their case in chief, and
had already met the initial burden of establishing
a prima facie case against respondent sufficient
to meet the challenge of a motion for judgment of
acquittal under Rule 29, Federal Rules of
Criminal Procedure. (Brief for Petitioner at
56-57) The fallacy of this argument lies in its

1 "{I]n civil causes, the Court will force
parties to produce evidence which may
prove against themselves; or leave the
refusal to do it (after proper notice) as
a strong presumption to the jury ****
But in a criminal or penal cause, the
defendant is never forced to produce any
evidence; though he should hold it in his
hands in court."

Roe dem. Haldane v. Harvey, 4 Burr. 2489, 38
Eng- Rep. 302, 305 (K. B. 1769); cf. Entick v.
Carrington, 19 How. St. Tr. 1029 (1765).

- Louisell, Criminal Discovery and Self-
Incrimination: Roger Traynor Confronts
the Dilemma, 53 Coalit, ev. 59 (1965);

Goldstein, The State and the Accused:

Balance of Advantage in Criminal Procedure,
69 Yale L.J. 1149 ISD}

7.

apparent assumption that any evidence introduced by
the government following the close of their case in
chief, no matter how incriminating, does not figure
in the mind of the trier of fact when considering

the issue of guilt or innocence. Anyone familiar
with trial practice knows that this is not the case.
See Harris v. New York, 401 U.S. 222 (1971).
Experienced prosecutors are well aware of the
strategic impact of a strong rebuttal case as are the
courts. In setting forth a standard for determining
whether an accused's Fifth Amendment rights were
being violated by a discovery order, the California
Supreme Court observed:

The privilege forbids compelled
disclosures which could serve as ‘link

in a chain' of evidence tending to

establish guilt of a criminal offense. . . ."'

Prudhomme yv. Superior Court, 2 Cal. 3d 320, 325,
note. Cal. Rptr. 129, 131, 466 P.2d 673, 677

The emptiness in the constitutional sense of
any distinction between incriminating evidence that
is introduced against a defendant during the
prosecution's case in chief, and incriminating
evidence used at later stages in the trial is well
recognized:

The privilege against self-incrimination
protects the individual from being held

to incriminate himself in any manner. . .
[S]tatements merely intended to be
exculpatory by the defendant are often

used to impeach his testimony at trial. ...
These statements are incriminating in
any meaningful sense of the word... .

Miranda v. Arizona, 384 U.S. at 476-477. °

Petitioner argues that even assuming that
the materials sought from the defense investigator
in this case could have incriminated respondent by
serving as a ‘link in a chain’ of evidence tending to
establish his guilt, that the investigator was not
covered by the privilege. A careful examination of
both the nature of the coverage afforded by the
Fifth Amendment and the relationship between
defense investigator and the defendant's interests
shows that the privilege does extend to prevent
disclosure such as was ordered by the trial court
here.

On the first point it is important to

remember that ''. . .the protection of the
privilege 'is as broad as is the mischief against
which it seeks to guard.''’ Schmerber v. California,
384 U.S. 757, 764 (1966) (citing Counselman v.
Hitchcock, 142 U.S. 547, 562 (1892)). Mindful of
this fact, and of the ‘duty of courts to be watchful
for the constitutional rights of the citizen, and
against any stealthy encroachments thereon, |
Boyd v. United States, 116 U.S. 616, 635 (1886), it

s been observed that’. . .the Fifth Amendment
marks ‘a zone of privacy' which the government may
not force a person to surrender.'' Schmerber, supra
at 778 (Douglas, J., dissenting)

3 On this point it has been observed:
'', . «{[A] defendant whose motion for
acquittal at the close of the Government's
case is denied must decide whether to stand
on his motion or put on a defense, witha
risk ‘hat in so doing he will bolster the
Government case enough for it to support

a verdict of guilty."

McGautha v. California, 402 U.S. 183, 215 (1970).
9.

Given the close relationship between the
investigator for the defense and the accused's
interests, it is clear that the reports of the
investigator were within this ‘zone of privacy’ and
were protected from disclosure by respondent's
privilege against self-incrimination. The proximity
of this relationship is evident by the fact that, in
the opinion of many authorities, investigators are
included within the coverage of the attorney-client
privilege. See Lo United States v. Kovel, 296
F.2d 918 (2d Cir. 1961); Goldstein v. Great Atlantic
and Pacific Tea Co., Fla., I18 So. 253 (1960); Note,
Agents Reports and the Attorney-Client Privilege,
TU. Chi L. Rev 752, 753 (155 . L. Rev. ; 1954). In fact, as
originally proposed by the Senate, the Federal Rules
of Evidence. Rule 503, included within the lawyer -
client privilege anyone’. . .employed to assist the
lawyer in the rendition of professional legal services. ''
The final version of the Rules, which are now in
effect, does not include the specific privileges. All
that remains is Rule 501 which provides in pertinent

part:

"Except as otherwise required by the
Constitution of the United States or
provided by Act of Congress or in

rules prescribed by the Supreme Court
pursuant to statutory authority, the
privilege of a witness, person, govern-
ment, state or political subdivision thereof
shall be 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. "'

In commenting on Rule 501, and the deletion of the
specific privileges from the final version of the Rules,
the Senate Report noted:

"It should be clearly understood that,
in approving this general rule as to
privileges, the action of Congress should

10.

not be understood as disapproving any
recognition of a psychiatrist, patient

or husband-wife, or any other of the
enumerated privileges contained in the
Supreme Court rules. Rather, our
actions should be understood as reflect-
ing the view that recognition of a
privilege based on confidential relation-
ship and other privileges should be
determined on a case-by-case basis."’

1974 U.S. Code Cong. and Ad. News, Vol. 12A
at 48-49 (15 January 1975).

Petitioner also contends, if somewhat
obliquely, report of the investigator was not
"testimonial" in character and therefore its
disclosure is not protected by the Fifth Amendment.
Schmerber v. California, 384 U.S. 757 (1966). This
position does not comport with the requirement that
constitutional provisions which protect personal
rights be given a ‘liberal construction. Counselman
v. Hitchcock, supra at 584-585. It also fails to
consider that in the context of the case at bar, the
order of the trial court would have required divulging
the contents of a report which is, in itself, obviously
of a testimonial nature. Boyd v. United States, supra;
United States v. Cohen, 388 Fr 2d 464 (9th Cir. CLAAE
United States v. Fratello, 44 F.R.D.444 (1968). Cf.
Warden v. Hayden, 387 1.S. 294 (1967); Schmerber
v. California, supra.

B. The Respondent was Impermissibly
Compelled to Surrender the Investigator's
Report by the Trial Court's Order and His
Calling of the Investigator as an Impeaching
Witness Did Not Constitute a Waiver of His

Fifth Amendment Privilege as to the Reports.

ll.

Petitioner argues that, even if the defense
investigator's report of his interview with the
eyewitnesses was covered by respondent's Fifth
Amendment privilege, there was no impermissible
compulsion, in the constitutional sense, for
defendant to surrender these reports. Instead,
it is asserted, respondent waived any objection he
might have had by calling the investigator as a wit-
ness. On the first point, the Petitioner claims
that ''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 full and
rational choice.'' and that therefore the Fifth
Amendment is not implicated. (Brief for Petitioner
at 49-50, citing McMann v. Richardson, 397 U.S.
759, 769 (1970)).~

This position ignores reality as well as legal

precedent. First, it has long been held that
requiring a person, particularly a criminal
defendant, to abandon important constitutional
rights in order to gain some other benefit, is a
form of compulsion. as v. Waterfront Commis-
sion, 378 U.S. 52 (1964); Sherbert v. Verner, 374
U.S. 398, 403-406 (1963). See also Moore, Criminal
Discovery, 19 Hastings L. J. 865, 912-913 (1968). To
say that criminal trial strategy sometimes requires

the making of difficult decisions" is no answer, for
the courts have specifically held that options which
exact a penalty upon the exercise of the privilege
against self-incrimination violate the Fifth Amendment.
United States v. Fratello, supra; cf. Griffin v.

California, 380 U.S. 609 ( ; Malloy v. Hogan, 378
U.S. T (1964). And, as noted in Spevack Vv. Klein,

"In this context 'penalty' is not restricted

to fine or imprisonment. It means...

the imposition of any sanction which makes

the - rare of the Fifth Amendment privilege
‘eet. cece”

385 U.S. 5ll at 515 (1967).
12.

In this case, the respondent was given a
choice between exercising his Sixth Amendment
right to effectively confront and cross examine the
witnesses who testified against him, the eyewitnesses,
by presenting evidence through the investigator that
might have impeached their credibility, and exer-
cising his Fifth Amendment right not to incriminate
himself. There is, of course, no question that an
accused's right to confront and cross examine
witnesses who testify against him is a minimum
requirement of due process. In re Oliver, 333 U.S.
257, 273 (1948); Washington v. Texas, 388 U.S. 14,
18 (1967); Specht v. Patterson, 386 U.S. 605 (1967).

To preclude respondent from exercising this
right was certainly a sanction of the most significant
proportions and to require him to choose between the
Sixth and Fifth Amendment rights confronts him with
the kind of dilemma that rises to the level of
constitutionally impermissible compulsion. 4 In
discussing the problem confronting an accused faced
with the choice of complying with court-ordered
discovery which might incriminate him, or foregoing
altogether the presentation of evidence which could
be critical to his defense, one commentator noted:

'|S]ince the evidence or witnesses involved
might provide incriminating as well as
exculpatory information, the defendant would
be placed between the Scylla of providing the
prosecutor with potentially incriminating
information and the Charybdis of being pre-
cluded from offering elements of his

defense. "
Note, Prosecutorial Discovery Under Proposed Rule
16, 85 Harv. L. Rev. 994, 998 (1972).
4 The Preclusion Sanction - A Violation of

the Constitutional Right to Present a
Defense, 51 Yale Ly 1342, 1354 (1972);
Moore, Criminal Discovery,19 Hastings
L.J. 865, SIZ, SIS (1968).

13.

By putting respondent in this position the trial
court's order clearly created that kind of
intolerable tension between constitutional
rights which has been condemned by this Court.
Simmons v. United States, 290 U.S. 377, 394
(1968).

Petitioner argues, however, that
respondent has no standing to claim compulsion
because his decision to call the defense investigator
as a witness effectively waived any claim he might
have had to the protection of the Fifth Amendment
privilege as to the investigator's report. In support
of this contention, petitioner cites a series of cases
which deal with the concept of waiver of the privilege
against self-incrimination. Of these cases, a
number deal with situations where the accused
himself elected to take the stand, thus exposing
himself to cross examination. Harris v. New York,
supra, McGautha v. California, 402 U.S. 183 (1970);
Brown v. United States, 356 U.S. 148 (1957); Raffle
v. United States, 271 U.S. 494 (1925). This case. of
course does not present the same situation. The
incriminatory information would not have been made
available to the prosecution because respondent
chose to testify, but because he called a witness, the
investigator.

The circumstances under which the investigator
was called also points up a flaw in petitioner's
waiver argument. In commenting on the cases where
this Court has upheld notice-of-alibi statutes, which
cases are relied upon by petitioner here in support of
its position, the United States Court of Appeals for
the District of Columbia observed:

"There has been some attempt in
recent years to increase the govern-
ment's right to discovery in criminal
cases - for example, through statutes
requiring the defense to give pretrial
notice of the names of witnesses to be

14,

called as part of an alibi defense. But

as the Supreme Court has emphasized

in holding such statutes constitutional
under the Fifth Amendment, they only
require the defense to turn over to the
government information which the

defense intends to reveal at trial. See
Williams v. Florida, 399 U.S. 78, 85,
(1970). Alibi statutes, the Court
reasoned, affect only the timing of
disclosure, and the defendant has no

Fifth Amendment privilege to mount

an eleventh hour defense. Id. at 82.

The government's proposal in the instant
case is entirely different. It would require
the defense tot urn over information which
the defense never intended to use at trial. '

United States v. Wright, 489 F.2d 1181, 1194 (D.C.
° ootnotes ommitted).

Similarly, the trial court's order in this case
would have required respondent to disclose albeit
during trial, information which he could not have
intended before trial to use. The distinction which
must be looked to exists between an accused's right
to present a defense, and his right to challenge the
government's case against him. In the former ,
situation, with which the government's ''waiver
cases deal, the affirmative presentation of evidence
may well be considered sufficiently voluntary to

15.

constitute a constitutionally-recognized relinquish- ; ; 7

ment of privilege. 5 In the latter situation, the
maveusel ‘op wiititecl wu Cudhecuge tue povernuimeiit’s

THE TRIAT. COTIRT'S ORDER DEPRIVED RFESPON-

case by cross examination, impeachment and DENT OF HIS RIGHT TO THE EFFECTIVE
surrebuttal, without ever offering evidence himself, ASSISTANCE OF COUNSEL AND HIS RIGHT TO

or taking the stand. There was no way that PRESENT WIl'NESSES UNDER THE SIXTH AMEND-
respondent, given the Jencks Act, 18 U.S.C. 3500, MENT,

could have planned to call the investigator for .

impeachment purposes until after the eyewitnesses The order of the trial court precluded

had testified and, on cross examination, denied respondent from offering impeachment evidence, and
making their earlier statements. thus denied him the opportunity to effectively con-

front and cross examine the government eyewitnesses
who placed him at the scene of the crime, certainly

a critical element of proof in the case against him.
By denying respondent this opportunity the trial court

*) The petitioner offers Couch vy, United States, denied him also his constitutionally guaranteed right
409 U.S. 322 (1972) in support of the to the effective assistance of counsel and the right to
"waiver'’ argument. ; . present witnesses. Washington v. Texas, 388 U.S.

14 (1967); Specht v. Patterson, 386 U.S. 605 (1967);
In Couch the situation is distinguishable Powell v. Alabama, 287 U.S. 45 (1932); Coplon v.
from that in Nobles, There the " ” United States 191 F, 2d 749, 757 (D. i. r. );
accused's voluntary relinquishment of Henfield v. United States, 118 F. 2d 375 (D.C. Cir.
incriminating documents to an accountant, 1941) Cross examination of the eyewitnesses was a
who was not an employee of either the nullity absent the ability to present, through the
accused or his attorney, was held to investigator, the evidence of their prior inconsistent
prevent the assertion of the accused's statements.
privilege against self-incrimination as
to those documents. In this case there The trial court's order, if permitted to stand,
was no "'relinquishment" of the reports _ could have far broader implications that its mere
to the investigator, and the reports were application to the respondent. As pointed out in
prepared specifically for the purpose of United States v. Cohen:

assisting the accused in this case.
g "An attorney is his client's advocate. His

function is to raise all the just and meritorious
defenses his client has."' 388 F. 2d at 467.

Today it is increasingly apparant that ''adequate fac-
tual investigation is clearly a component of effective
assistance of counsel. . . .'' United States v. Wright,

16.
17.

oupre at 1188 n. 6. . This is particularly true in
ight of the vastly superior resources of the govern-
ment as compared to the accused's which give it a
correspondingly greater investigative ability.
Wardius v. Oregon, supra at 475 n. 9. Mr. Justice
Douglas commented on this problem in his concur-
ring opinion in Wardius where he said:

"The Bill of Rights does not envision
an adversary proceeding between two
equal parties. If that were so, we
might well benefit from procedures
patterned after the Rules of the Marquis
of Queensberry. But, the Constitution
recognized the awesome power of
indictment and the virtually limitless
resources of government investigators.
Much of the Bill of Rights is designed
to redress the advantage that inheres

See e.g.,Shephard v. Hunter, 163 F. 2d 872
(10th Cir. 1967); People v. Bennett, 29 N.Y.
2d 462 (1972); A. B. A. Project on Standards for
Criminal Justice, Standards Relating to the
Defense Function, § 4.1 (Approved Draft 1971).
Providing such investigative assistance for the
indigent defendant has proved difficult. See
e.g. Reilly v. Berry, 250 N.Y. 456, 461 (1929);

ote, The Indigent's Right to Adequate Defense:
Expert and Investigatorial Resources in

riminal Proceedings, 99 Corn. L. Rev. 632
(1970); Note, Right z Aid in Addition to
Counsel for Indigent endants. inn. L.
Rev. 1054 (1963).

18.

in a government prosecution. It is not
for the courts to change that balance."
412 U.S. at 480.

It is because of these realities that investigative
services have been cited as one of the ''chief assets''
of defender offices. Freeman, The Public Defender
System, J. Amer. Jud. Soc. 74, 76 (1948)

Yet now, even the little evidence that defender
service investigators are able to obtain from govern-
ment witnesses is held up as so inherently lacking in
veracity (see Brief for Petitioner at 27 n. 11) that
the production of their reports is made a condition

One commentator has noted:

Besides greater financial and staff resources
in which to investigate and scientifically
analyze evidence, the prosecutor has a
number of tactical advantages. First, he
begins his investigation shortly after the crime
has been committed when physical evidence

is more 'ikely to be found and when witnesses
are more apt to remember events. In addition
to the advantage of timing, the prosecutor may
compel people, including the defendant, to
cooperate. Finally, respect for government
authorities will cause many people to
cooperate with the police or prosecutor
voluntarily when they might not cooperate

with the defendant.'' Note, Prosecutorial

piscovery under es aL Rule 16, 85 Harv.
. ev. , =

19,

precedent to their giving testimony in impeachment. .
Petitioner is in reality asking that production of notes
be made an essential element of the competence of

a defense investigator as a witness. The govern-
ment counterparts of defense investigators certainly
do not find themselves similarly impugned by such a
requirement. It is true, that if a verbatim report
was made of a government witness's statement, a
different situation might exist, but then the protection
of Rule 16, Federal Rules of Criminal Procedure and
the Jencks Act would apply.

There is no question but that if an order such
as that of the trial court in this case were held to be
permissible, that it could cause a serious disruption
in the ability of defense counse! who regularly rely
on investigators to help prepare their case, to
adequately prepare for trial, particularly in situa-
tions involving complex factual issues. [It is not un-
reasonable to foresee that investigators, fearful of
disclosure of their reports, may cease to memorial-
ize the results of their efforts. The delay between
the time of their investigation and the time of trial
could easily affect their ability to remember import-
and facts which were of importance to the defense.
Cf. United States v. Kovel, 296 F. 2d 918, 921 (2d
Cir. 1961).

It is also interesting to note petitioner's
contention that disclosure such as ordered by
the trial judge here would help prevent perjury
on the part of defender office investigators
when the availability of discovery to the defense
seems not in all cases to have corrected the
same problem insofar as government investi-
gators are concerned. See Sevilla, The

Exclusionary Rule and Police Perjury, 11S. D.
L. Rev. 539 (1974).

+s 20.

In addition, it requires little imagination to
picture what regular disclosure of reports to the
prosecution by a member of the defense team would
do to what is often an already- strained relationship
between appointed counsel and his client. It is no
small irony that the availability of effective investi-
gative services which is considered an advantage to
the defendant suddenly becomes a disadvantage if an
order such as that of the trial court in this case makes
material for use by the prosecution. The position of
the investigator as a member of the defense team is
too closely identified with the interests of the accused
to permit a disclosure such as was ordered by the trial
court. Cf. Hoffa v. United States, 385 U.S. 293
(1966); O'Brien v. United States, 386 U.S. 345 (1966);
Black v. United States, 385 U.S. 26 (1966).

9 Wilkerson, Public Defenders As Their Clients
See Them, fAm.J.of Crim. Ly I4T (April

21.

Til

THE ORDER OF THE COURT IN THIS CASE
VIOLATED THE PRINCIPLE OF RECIPROCITY
OUTLINED IN WARDIUS V. OREGON,

This Court's opinion in Wardius v. Oregon,
supra, dealt with the question of reciprocal
discovery under a notice-of-alibi statute. In
Wardius, it was held that the Oregon notice-of-
alibi statute was unconstitutional because it
precluded an accused from presenting alibi
evidence as a sanction for failing to notify the
prosecution prior to trial of who the alibi-witnesses
would be. The statute was held to be uncon-
stitutional because it failed to provide the
accused the right to reciprocal discovery of the
ore rebuttal witnesses. 10 It was pointed out

at:

10 On the advisability of ever preventing an
accused from presenting evidence as a
sanction for non-compliance with a court-
ordered discovery rule, see Rodriguez v.
Superior Court, 9 Cal. App. 3d 493, 88 Cal.
Rptr. 154 (1970); State v. Benner, 284 A. 2d
91 (Maine Sup. Jud. Ct. 1971); Gilday v.
Commonwealth, 274 N. E. 2d 589 (Mass.
Sup. Jud. Ct. 1971). The American Bar
Association was able to conclude that the
sanctions in situations of non-compliance
with an alibi-notice requirement should not
include the denial of the right of the accused
to offer evidence. A.B.A. Standards of
Discovery and Procedure Before Trial

rap pement, 5-6 (Approved Draft, October

22.

"The State may not insist that trials be
run as a ‘search for truth' so far as
defense witnesses are concerned, while
maintaining 'poker game’ secrecy for
its own witnesses.’ 412 U.S. at 475.

It is clear, when analyzing the situation
that presents itself here that the order of the
trial court violated this principle.

The Jencks Act, 18 U.S.C. 3500, was

passed by Congress in response to a concern by
the government that this Court's decision in Jencks
v. United States, 353 U.S. 657 (1957), would allow
defendants too great access to government investi-

tor's reports. See Palermo v. United States,
360 U.S. 343 (1954). Because of this concern,
cases which have interpreted the Act have carefully
limited its coverage. Only reports which can
fairly be said to be the witness's own statement, a
"substantial verbatim record" of the witness's words
rather than an investigator's interpretation of a
witness's words, are subject to disclosure to the
defense. 18 U.S.C. 3500(e). Cf. United States v.
Augenblick, 393 U.S. 348 (1968); Palermo v. United
States, TT at 352; United States v. Smaidone,

464 F.2 10th Cir. 1973); United States v.
Missler, 414 F.2d 1293 (4th Cir. 1969); Menendez v.

23.

United States, 393 F.2d 312 (5th Cir. 1968), 1
Reports which do not meet this standard are
protected from disclosure to the defense under
the Act even if a government witness testifies

during trial. United States v. Hoffa, 349 F.2d 20
(6th Cir. 1965).

i. Petitioner appears to contend that a type
of ‘reverse Jencks Act" should apply in this case
to require defense witnesses to surrender to the
prosecution copies of any prior statements they

18 U.S.C. 3500(e)(1) provides:

"The term statement, as used in subsections
(b), (c), and (d) of this section in relation

to any witness called by the United States,
means---

(1) a written statement made by said witness

and signed or otherwise adopted or approved
by him;

(2) a stenographic, mechanical, electrical,
or other recording, or a transcription
thereof, which is a substantially verbatim
recital of an oral statement made by said
witness and recorded contemporaneously

with the making of such oral statement. .. ."'

24.

have made upon completing their testimony.
(Brief for Petitioner at 25) !

This requirement, it is argued, is
mandated by the concept of fairness: What the
defense is entitled to, the government should be
as well; as well as the need for criminal trials
to be a "search for truth."

Amici recognize that the task of the
prosecution would be easier if they could have
unrestricted access to defense files. But, apart
from the concerns expressed in the preceding
arguments, and the fact that such a result was not
within the contemplation of Congress, United
States v. Wright, supra at 1190, this practice at
least insofar as it may be a justification for the
court's order in this case, ignores the decision
in Wardius v. Oregon, supra which holds that
‘fundamental fairness’ requires that discovery,
particularly that which flows from the defense
to the prosecution, be reciprocal.

There was no evidence that the investigator's
report was a ‘substantial verbatim record’ of any
prior statement of his. In fact there is nothing in
the record which reflects that the investigator said

a That this rationale is the basis for the

trial court's ruling is apparent from a
reading of the proceedings below.

The following comment of the trial judge
underscores this fact:

"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."

Brief for Petitioner at ll.
25.

anything about the eyewitnesses. The indication
is to the contrary, that the report sought contained
statements of the government witness not of the
investigator. (Brief for Petitioner at 8-12) Thus
if the court's order in this case were permitted to
stand, the government would be entitled to
discovery of reports prepared by defense
investigators, whether or not they were
"statements" within the meaning of the Jencks
Act, while the defense would not have a similar
right of disclosure from prosecution witnesses.
This result is impermissible under Wardius.

The petitioner also argues that the order
of the trial court was consistent with the new
Yederal Rules of Evidence, Rule 613(a), discussed
by petitioner, provides:

"In examining a witness concerning

a prior statement made by him,
whether written or not, the statement
need not be snown or its contents
disclosed to him at that time, but on
request the same shall be shown to
opposing counsel. "

trial court was proper. *? This argument, of course,
has no application in the present situation because
Rule 612 applies only to writings used by witnesses
to refresh their memory either, ''(1) while
testifying, or (2) before testifying. . oa A
reading of the record discloses no evidence that the
defense investigator had used his notes or would
have used his notes to refresh his memory.
Petitioner argues that If Bond [the defense
investigator] refreshed his recollection by reviewing
his report before testifying. . . .'' his report may

13 It is by no means evident that petitioner's
argument in this regard is a tenable one.
A reading of Rule 612 reveals that no
sanctions are provided for an accused's
failure to comply with its provisions,
while failure of the prosecution to comply
with the Rule can result in the striking
of testimony or the declaring of a mistrial.
This difference can be interpreted as a
reflection of an intent on the part of the
drafters not to make available any
sanctions for non-compliance by the

Aside from the fact it was not in effect at -
the time that the events in this case occurred, Kule question should and need not be decided
613 does not affect the impropriety of the court's here because it is not even implicity
order. Even in the unlikely event that Rule 613 presented in the record.
had some broadening impact on the application of
the Jencks Act, the fact remains that the court's
order required respondent to submit to a form of
discovery impermissible under Wardius.

accused. See footnote 18, supra. This

It is also contended that since Rule 612 of the
Federal Rules of Evidence may have made the
investigator's notes discoverable, the order of the

have been discoverable. (Brief for Petitioner
at 42)14 But this possibility, and that is all it is,
is of no help to petitioner's position:

[I]t misses the point to argue that
since the government might obtain

14

Petitioner invites this Court to presume that
the defense investigator must have reviewed
his notes prior to testifying or, alternatively,
to hold that "a trial court might have inherent
power to demand that the investigator

refresh his recollection as a pre-condition

to testifying'’ (Brief for Petitioner at 43

n. 23) thereby rendering the investigator's
notes discoverable under Rule 612. Amici

is tempted, totally as a conjectural

matter, to accept this invitation, asa

patent violation of the Wardius reciprocity
principle would result. The Jencks Act has
been interpreted to render only substantially
verbatim accounts of government investigators
producible while the petitioner's suggestion
would render all defense investigator's
account producible. This lack of

reciprocity would clearly contravene Wardius.

BEST GOPY AVAILABLE |

28.

the papers by another means it
should be permitted to compel the
possessor to produce them over his
claim of privilege - that the govern-
ment might obtain these documents
without compelling [the defendant]
to incriminate himself is hardly a
justification for compelling [him]

to incriminate himself. We cannot
ignore the dictates of the Fifth
Amendment on the ground that it
would be more convenient or
efficient to do so."'

United States v. Cohen, 388 F.2d 464, 469 (9th

Cir. 1967).

The order of the trial court here was in
error as it has no support in statute or in case
law, and, most importantly, because it required
the defendant to be the source of information that
could be used to convict him. On this point, the
comments of Mr. Justice Brennan in discussing
the rationale behind excluding evidence from
criminal prosecutions obtained at the expense of
constitutional guarantees are of significance:

“Too many of us seem to have forgotten
the true office of the constitutional
procedural safeguards. . .We have for-
gotten that these safeguards, while they

do indeed make harder the conviction of

an accused, were not provided for that
purpose -- the Framers of the Constitution
weren't 'soft on criminals.' These safe-
guards are a check upon government -- to
guarantee that government shall remain the

29.

servant and not the master of us all, ''15

Until the ''shield'' provided government
witnesses by the Jencks Act is removed by
legislation, an order such as that proposed by
the trial court denies the accused statutory
parity with the prosecution in the area of
discovery. That Congress failed to enact
legislation providing for compelled disclosure
by a member of the defense team of evidence
which might damage the cause of the accused,
may well be a recognition of the fundamental
guarantees of the Fifth and Sixth Amendments.

15 Brennan, The Criminal Prosecution:

Sporting Event or Quest for Truth?
1563 Wash. U.L.Q. 275, 280 (1963)

30.

CONCLUSION

For the foregoing reasons, as well as those
contained in respondent's brief, amici respectfully
submit that this Court affirm the decision of the
Court of Appeals.

John J. Cleary

Warren R. Williamson

Federal Defenders of San Diego, Inc.
925 First Avenue, Suite 260

San Diego, California 92101
Attorneys for Amici Curiae

Of Counsel,

Mr. Sheldon Portman, Chairman
California Public Defenders Association
Santa Clara County Public Defender

Mr. James Doherty
Chairman, Amicus Committee
National Legal Aid and
Defender : Association

Cook County Public Defender

Mr. Fred Okrand

Legal Director

American Civil Liberties Union
of Southern California

31.

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