Brief for the United States — United States v. Nobles

Supreme Court brief1975

Ask Donna

What actually matters in this document.

Text

INDEX

Page

q Opinion below - 1

: Question presented —___._-__.. 2

Constitutional provision, statute and rules in-

volved

3 Statement

j Summary of argument 15

; _Argument:

_ I. The order to disclose relevant portions

a 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

Disclosure was necessary to facili-

tate cross-examination of the in-

vestigator and further the truth-

seeking goal of the trial _..____ 22

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

The trial court’s disclosure order

was consistent with the provisions

of the new Federal Rules of Evi-

dence 35

Conclusion

Argument—Continued

II. The investigator’s report was not pro-

tected from disclosure by respondent’s

Fifth Amendment privilege against.

self-incrimination

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

stand

The analysis of the court of ap-

peals and the cases upon which it

relied do not support its conclu-

sion

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-

poses

Ill

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. 371...... 66

Garrity v. New Jersey, 385 U.S. 493: 49

Giles v. Maryland, eed 2 Rear os 63

Goldman v. United States, 316 U.S. 129. 16, 30

Gordon v. United States, 344 USS. 414. 16, ‘21,

' 32, 68

Harris v. New York, 401 U.S. 222... 14, 19, 48,

53, 60

Illinois v. Somerville, 410: U.S. 458 ___. | 80

Jencks v. United States, 353 U.S. 657... 16, 26, |

30, 33, 66

Keller vy. 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 US. | ea eT eee 49

Murphy v. Waterfront Commission, 378

ile OR cseh 20, 58

Nardone v. United States, 308 U.S. 338. 21

Palermo ‘v. Usited States, 360 U.S. 348. 16, 21,

29, 31, 68, 66

People v. praaety 24 N.Y. 2d 256, 247

_ N.E. 2d 651, 299 N.Y.S. 2d 880 31, 45

People v. Sanders, 110 Ill. App. 2d 85,

249 N.E. 2d' 124

Cases—Continued Page

Pittsburgh Plate Glass Co. v. United

States, 360 U.S. 395... 30

‘Prudhomme v. Superior Court of L.A.

County, 2 Cal, 3d 320, 466 P.2d 673,

85 Cal. Rptr. 129° -_....-19, 25, 56, 57

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

tn 53

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

Smith v. Iinois, 390 U.S. 129 _... 24

State v. Montague, 55 N.J. 387, 262 A.2d

Oe : 31, 32

State v. Montague, 101 N.J. ‘Super. 483,

ee 65

Ullman v. United States, 350 U.S. 422... 49

United States v. Augenblick, 393 U.S.

BONE inhi GAR EMBIL BAe 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-

queen war ee 3016 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 __.. ce 51

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

os) 55, 56

Constitution, statutes and rules: . Page

United States Constitution:

Fifth Amendment .__.3, 14, 17, 18, 19, 20, 44,

, 48, 49, 51, 54, 55, 58

Ee ee RD ovine 6

18 U.S.C. 3500 (The Jencks Act) 3, 14, 15,

20, 60, 61, 63, 64

1 Us. ee)... 3, 63

Mw Ua sees) ) 7

Federal Rules of Criminal Procedure:

mee ae 2 3, 20, 21, 55, 60, 61, 63, 64, 65

| a See 4, 62, 63, 64

nae 36(¢6) 4, 14, 20, 61, 62, 64, 65

| a a ee 5

ecm sod) PO 66

| ne ictcieteideiataesiikaiatenee 66

Federal Rules of Evidence:

I FE tnceireccnsneecensceen serveeenarensntce 36

TI siiciiicornicaicinitnesionsiamansienaiitmatiabccils 66

|) ae 5, 17, 38, 41, 43

SY ee: 5, 17, 36, 37

mame 618(b) 37

Miscellaneous:

Advisory Committee Note to Rule 613(a),

Fed. R. Evid., 56 F.R.D. 278 36

Advisory Committee Note to Proposed

Rule 16, Fed. R. Crim. P., 62 F.R.D.

RE EE OE 64

Advisory Committee Note to Rule 16,

Fed. R. Crim. P., 18 U.S.C. App., pp.

4493-4494 . Boi 63, 64

Miscellaneous—Continued

Brennan, The Criminal Prosecution:

Sporting Event or Quest for Truth?,

1963 Wash. U.L.Q. 279

Freedman, Professional Responsibility of

the Criminal Defense Lawyer: The

Three Hardest Questions, 64 Mich. L.

Rev. 1469 (1966)

Ladd, Some Observations on Credibility:

Impeachment of Witnesses, 52 Cornell

L.Q. 239 (1967)

McCormick, Evidence (1972):

§9

§ 19

§ 33

§ 49

§ 56

§ 96

Nakell, Criminal Discovery for the De-

fense and the Prosecution—The Devel-

oping Constitutional Considerations, 50

N.C.L. Rev. 437 (1972)

Proposed Rules, Fed. R. Crim. P., 62

F.R.D. 305-306

Prosecutorial Discovery under Proposed

Rule 16, 85 Harv. L. Rev. 994 (1972) _.

Rezneck, The New Federal Rules of Crim-

inal Procedure, 54 Geo. L.J. 1276

(1966) .

S. Rep. No. 981, 85th Cong., 1st Sess.

VII Wigmore, Evidence (3d ed. 1940):

§§ 2094-2125

23, 24

Page

23:

_—_

Vil

Miscellaneous—Continued Page

VIII Wigmore, Evidence (McNaughton

rev. 1961):

$2276 51

1 Wright, Federal Practice and Proce-

dure, §274 (1969) 67

—-a

| Bu the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-634

UNITED STATES OF AMERICA, PETITIONER

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 (Pet. 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)

(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.

CONSTITUTIONAL PROVISION, STATUTE AND

RULES INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person * * * ghall 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:

(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 F Peeves in 18

U.S.C. § 3500.

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

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

diseretion 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-

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-

, ¢retion determines that the interests of justice

- go 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 ©

1 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.

defendant was sentenced to a term of twenty-five

years’ imprisonment, subject 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. 323825, 420-421). Van Gemeren testified

* The court unanimously affirmed the convictions of Brown

and Swain.

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.

_ 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 eounsel again requested that the

witness be allowed to refresh his recollection by 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

Poo sr eee, f

* 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. '

surveillance camera (App. 15). He further testified,

in response to a question from respondent’s counsel,

that in fact’ he had not seen only the back of the

robber under the camera (ibid.).

8. During defense counsel’s cross-exarnination 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 a all the

blacks appear to be alike?

TTHE 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

look 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):

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-exam.nation.

* * * * *

* * * [T]he government may not have the

memorandum until the witness has taken the

stand and has indicated the particular impeach-

ing testimony which was the last part of Mr.

Hoffman’s testimony relative to his inability to -

distinguish between people of the black race.

And if he does make such a statement, if he

* * * [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 “— 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 containei!

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 cast, counsel for re-

spondent called John Bond as a witness, without first

indicating whether he intended to comply with the

court’s previous ruling regarding production of 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. 30-81, 38,

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. |

——

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.

Ta-9a).

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-

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.g.,

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. 348, 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, 358 U.S. at 669), as clearly Pe tees, Ae “7”

Moreover, the trial court exercised 1 iscretion

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

—

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.

ey |

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 repdrt 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.

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.

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

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 on 0 in-triz

disclosure to the defense of statements of government

witnesses, and it was intended 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 te-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.

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 ATRIAL. —

A. Disclosire Was Necessary to Facilitate Cross-

Examination of the Investigator and Further -

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 two

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,

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, ¢.g., Williams v. Florida, supra, 399

U.S. at 82; Brennan, The Criminal Prosecution:

Sporting Event or Quest for Truth?, 19638 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

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,

890 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 i 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 investigator, Bond. Had respondent been per-

mitted by the trial court to proceed as he intended,

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.” j

Having himself thus exploited the truth-seeking

devices of cross-examination and impeachment by

prior inconsistent statement to create 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.”

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. .

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."

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. 73-1879, June 14,

1974, District Judge Pratt denied a request that a rape victim

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

(Noy. 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.

82-83): “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. 343, 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

* “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 excluding 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, J.,

dissenting, cited with approval in United States v. Nizon,

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

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 trial 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, 182; 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.” Jllinois

v. Somerville, 410 U.S. 458, 468, 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-

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. 2 256, 261,

247 N.E. 2d 651, 654, 299 N.Y.S. 2 830; 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.

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

2d 124, 126 (1st Dist.).* 7

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

v. 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.”

%* 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-

nessés.

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 of 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.

16 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

nee 35

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 looking 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. 98-595. 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.

\ }

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

1® Respondent’s counsel initially did make available a por-

“tion of :a-purpotted statement of Van Gemeren (Defense Ex-

hibit A for identification), but it is unclear from the record

‘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 i 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 (4). 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 extrinsic :

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. P

The statements, if inconsistent with Bond’s. testimony,

would have been admissible as his prior statement, but that '

use does not implicate Rule 613.

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

ri /

* 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.

(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 destimony 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

production 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

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 — 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.

‘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 80, 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.9.,

McCormick, Evidence, supra, § 9, pp. 17-18; * United

*? 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

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. 21a-

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.] =

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 of 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

aA.

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 manifestly likely

to have great materiality in assessing the credibility of the

witness’s trial testimony.

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 compellef# 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 withesses offered by the defendant.

In no sense tan it be said that he is being com-

pelled to produce {incriminating statements of his

own. The p?ivilege against self incrimination

applies only to evidence of a testimonial or com-

municative nature obtained from the defendant

himself (Schmerber v. California, 384 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. 888). 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 the 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 compelling ‘communica-

tions’ or ‘testimony,’ but that compulsion which makes

a suspect or accused the source of ‘real or physical

evidence’ does not violate it.” Schmerber v. California,

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.

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 com 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

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 dis-

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, 218, in upholding the va-

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,

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

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. Ss Se :

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.

“[A] 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

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, 856 US. 148,

’ 155-156:

.* * * [W]hen a witness voluntarily testifies, the

privilege agairist 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 choicé> 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 @ 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 hé 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 coutts of justice to ascertain

the truth become relevant, and prevail in the

balance of considerations determining the scope

a ‘ f | '

‘

and limits of the privilege against self-incrimina-

a 8 *

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 US.

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

. $0 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

. _ ~

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-

wise, 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.

Finally, 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.

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 Supremé Court in Prudhomme v. Superior

Court, 2 Cal. 3d 320, 466 P.2d 678, 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):

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. [[/nited 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-

nal offense” (2 Cal. 8d 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.

8d 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-

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. 4

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

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.” ae

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-

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 . 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. —

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 DIS-

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) :

cinta

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 defgnd-

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 produce 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

~~...

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.

—

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 Vv. United States, 360 U.S. 343,

361 (Brennan, J., concurring). rs

* 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.]

hat

4 _

“not expressly use the term “prp-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 that 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.

2 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

: . . of

witnesses—but— would tot —authorise—pretrial_sdisclosure 0

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

805-306.

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 erdered 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

strategy, 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.

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, “[ijn 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.)5 see also Fed.

R. Evid. 501.*

%° 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.]

The 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 Vv. United States, supra, 360 U.S. at 345-346.

%? Rule 17(c) of the Federal Rules of Criminal Procedure,

which authorizes the issuance of a subpoena duces tecum, is

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-

(cose fob amp ala and wed 26 0 bonis

for cross-examination.

i CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the decision of the court of appeals should

be 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 ou. S. covarnmeny printine orrice; 1975 S70712 122

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